2007-368-Order No. 2007-060 Recorded 3/26/2007NANCYUBLANKECOUNTY NSHIP~FCOUNTY CLERKOS Q 2007-300
COMMISSIONERS' JOURNAL
03/26/200108;49;10 AM
2007-388
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4;G VIE DESCHUTES DS
NANCY BLANKENSHIP, COUNTY CLERK 2007-1721;
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0 7171200700172140080090 03/23/2007 03;36;43 PM
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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 E. Leona Johnson to Use * ORDER NO. 2007-060
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, E. Leona and Gary Johnson made a timely demand for compensation under Measure 37 for
a reduction in value to their property at 26590 Horsell 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 16, 2006, E. Leona and Gary Johnson filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 26590 Horsell Road in Bend, Oregon and is within Deschutes
County.
3. The County Administrator has recommended that the zoning regulations for the subject property
that were not already in effect until after August 14, 1972 not be applied. 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 E. Leona Johnson is the present owner
of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since August 14, 1972. The County finds and concludes as set forth
below.
PAGE 1 of 3- ORDER No. 2007-060 (03-13-07)
5. The Board concurs with the Administrator's report that the current land use regulations,
EFU/AL if applied to the subject property, would not permit a partition to create three 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 division to create
three lots would be denied if the current zoning were applied. Therefore, such an 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 land divisions and development applications have
reduced the value of the subject property.
The Board concurs with the Administrator's report that there is no 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,
Leona Johnson, 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 August 14, 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 Claimant Leona Johnson'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 E. Leona
Johnson.
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,
PAGE 2 of 3- ORDER No. 2007-060 (03-13-07)
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. 2007-060 (03-13-07)
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 - E. Leona and Gary Johnson (Claimants)
26590 Horsell Road, Bend. OR
Introduction
DATE: March 13, 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 16, 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 tax lot with approximately 31 acres. The current zoning is
EFU-AL. The Claimants' desired use is a three-lot partition and Claimants allege a reduction in value of
Page 1 of 5 - Exhibit A - Order No. 2007-060
approximately $600,000 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 - E. Leona Johnson is the owner of the parcel comprising this claim: 17-14-24 Tax lot
200 located at 26590 Horsell Road, Bend. Claimants, Leona and Gary, first acquired an interest in the
property by land sales contract dated August 14, 1972. That contract was satisfied and title was
conveyed by Warranty Deed dated December 6, 1977, recorded at Volume 264, page 811, Deschutes
County Deed Records. According to the Claimant's attorney, they evidently gave to Gary's father a deed
to the property as security for a loan. This loan was repaid and the property was deeded back. Under
circumstances such as these the County has taken the position that there was no intention to transfer the
entire interest in the property, but to use title as security for a loan. Therefore, Claimant's would have had
continuous ownership in the property.
The County's property records indicate that Gary executed a quitclaim deed conveying his interest in the
property to his wife Leona on May 22, 1996. A quitclaim deed has the effect of transferring without
warranties of title all of the grantor's interest in the property. Thus, Leona, but not Gary, is the owner of
the property.
Owner Date of Acquisition - August 14, 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 (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
Page 2 of 5 - Exhibit A - Order No. 2007-060
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 E. Leona and Gary Johnson obtained an interest
in the property is August 14, 1972.
Claimants originally acquired the property encompassing TL's 200 and 201. They conveyed TL 201,
which was later transferred. Ultimately, David and Kyra Winters acquired TL 201. Johnson brought a
court case against Winters challenging their ownership of a one-acre strip along the boundary of TL 200
and TL 201. The case went to trial and the Court ruled in Johnsons' favor. Based upon the Court
decision, it would appear that Johnsons (or at least Leona) have owned both TL 200, as well as this
disputed strip continuously since their original acquisition date.
Restrictive Regulation - EFU/AL.
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 Claimants have
identified the EFU/AL zoning, and the county's partition ordinance as reducing the value of their property
by inhibiting development of a partition. All of these regulations were adopted after the current owner's
acquisition date of 1972. However, in 1972 the property was designated Intensive Agriculture under the
County's comprehensive plan, making it eligible for a Rural Subdivision under PL-2, the County's
subdivision ordinance of 1970.
It appears that, based upon zoning in effect in 1972, that a partition of the property may 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. Claimants have not applied for a partition of the property resulting in the current zoning being
enforced on the subject property. Claimants have not demonstrated that submitting an application for
such a land division would be futile. However, this Report confirms that such an application for the
Page 3 of 5 - Exhibit A - Order No. 2007-060
desired partition 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 - $600,000 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.
• Claimants have not submitted evidence that domestic water is available for the desired partition.
• Claimants have not submitted evidence that sanitary service is or would be feasible for the
desired partition.
• Claimants have not submitted an appraisal of the property or an opinion of a real estate
professional as evidence of the diminution of value from just before and just after adoption of the
county's restrictive land use regulations.
Claimants' alleged reduction in value appears to be based upon the assumption that lots created by
dividing 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 Claimants' 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. 2007-060
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, E. Leona Johnson has continuously owned an interest in the property since 1972. 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
E. Leona Johnson, the present owner of the property, has submitted a claim pursuant to Measure 37
which demonstrates eligibility for her use of the subject property based on nonexempt land use
regulations in effect on August 14, 1972, the date when she and her husband first acquired an interest in
the property. There is some evidence in the record that some additional development on the subject
property may be feasible for available domestic water, sanitary waste disposal and road access.
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 14, 1972, to allow the Claimant (E. Leona Johnson) to use the property in a manner permitted at
the time she acquired the property. This waiver is not a development permit. By granting a waiver, the
County does not commit itself to approving Claimants' 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. 2007-060
EXHIBIT B
The Northwest Quarter of the Northeast Quarter (NW-,NE-4) of Section
Twenty-four (24), Township Seventeen (17) South, Range Fourteen (14)
East of the Willamette Meridian, Deschutes County, Oregon.
EXCEPTING that portion deeded to Danny O. Olson and Gayle E. Olson,
in Book 264, Page 812, being further described as follows:
The Southwest Quarter of the Northwest Quarter of the Northeast Quarter
(SW4NW4NE4) of said Section 24, Township 17 South, Range 14 East of the
Willamette Meridian, Deschutes County, Oregon.
EXHIBIT B