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2007-370-Order No. 2007-024 Recorded 3/26/2007COUNTY NANCYUBLANKENSHIP,P000NTY CLERKS 1rJ Lpp1.31p COMMISSIONERS' JOURNAL 03116/2007 08;49;10 AM 2007-370 Do not remove this page from original document. Deschutes County Clerk Certificate Page 4 Qj C, If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page , COUNTY OFFICIAL REVIE NANCYUBLANKENSHIP, COUNTY CLERKS 0001-17116 AL GAL UNSEL 0 II ill III '5200 IIIII 1171211111111 340100102llllllllillllllll NO FEE 3 03123/2007 03;36;43 PM 0-H37 Cntal Stn:23 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 Kenneth Miltenberger to * ORDER NO. 2007-024 Use the Subject Property as Allowed When He 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, Kenneth Miltenberger made a timely demand for compensation under Measure 37 for a reduction in value to his property at 63560 and 63550 Johnson Ranch Road, Bend, Oregon due to regulations which took effect after he 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 October 6, 2006, Kenneth Miltenberger filed a Measure 37 claim with the Community Development Department. 2. The property is located at 63560 and 63550 Johnson Ranch Road, Bend, Oregon and is within Deschutes County. 3. The County Administrator has recommended that the regulations for the Tax Lot 400 that were not already in effect until after March 23, 1973 for TL 400 and July 20, 2004 for TL 500 not be enforced in lieu of payment of just compensation to Claimant. Claimant has not demonstrated a legal interest in Tax Lot 500. 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 Kenneth Miltenberger is a present owner of the Tax Lot 400, described in Exhibit "B," having acquired an interest in it and continuously owned TL 400 since March 23, 1973 and TL 500 since July 20, 2004. The County finds and concludes as set forth below. PAGE 1 of 3- ORDER No. 2007-024 (03/19/07) 5. The Board concurs with the Administrator's report that the current regulations, if applied to the subject property, would not permit a subdivision on the subject property in the desired 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 on 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 building permit have reduced the value of the subject property. 8. The Board concurs with the Administrator's report that a subdivision on 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 Claimant 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 properties 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 he first acquired the property. That land use shall be permitted if Claimant demonstrates that Tax Lot 400 fully complies with all substantive land use regulations in effect on March 23, 1973 for TL 400 and July 20, 2004 for TL 500. 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's proposed use. As used in this section, "land use regulations" refer to those listed in ORS 197.352(l l) (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 Kenneth Miltenberger. 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 PAGE 2 of 3- ORDER No. 2007-024 (03/19/07) 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 7. 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. M-aAC At ' DATED this q 1--, day of Fgbpaary, 2007. ATTEST: Recording Secretary PACE 3 of 3- ORDER No. 2007-024 (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.ora TO: Board of County Commissioners From: David Kanner, County Administrator RE: Measure 37 Claim - Kenneth Miltenberger (Claimant) 63560 and 63550 Johnson Ranch Road, Bend, OR Introduction DATE: February 26, 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 6, 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 approximately 193 acres in two tax lots. The current zoning is EFU-AL. The Claimant's desired use is to subdivide the property, a use currently restricted by County land use regulations. Claimant alleges a reduction in value of approximately $2,394,000 due to the Page 1 of 6 - Exhibit A - Order No. 2007-024 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 - Kenneth Miltenberger is the owner of the property comprising this claim: 17-14-14, Tax lots 400 and 500 and located at 63560 and 63550 Johnson Ranch Road, Bend. Claimant submitted copies of several deeds. The first, a Bargain and Sale deed, dated March 23, 1973, describes Tax Lot 400 as it existed in 1973 and identifies him as grantee. He is listed on County records as an owner and has owned the property continuously. A second Bargain and Sale deed, also dated March 23, 1973, describes Tax Lot 500 and identifies Don and Jeane Miltenberger as grantees. Kenneth and his then wife, Dorothy Miltenberger conveyed an interest in a portion of the original TL 400 to Orville and Beverly Miltenberger by deed on September 11, 1978. This portion became known as TL 401 and is not part of this claim. Dorothy Miltenberger conveyed her interest in "Tracts I, II, III" to Ken Miltenberger by Warranty Deed on October 8, 1980. Evidently this was to fulfill the terms a divorce in which Ken was to receive his wife's interest in TL 400 (less TL 401), TL 500 and other property not part of this claim. There is no evidence showing Dorothy had any interest in TL 500. In 1982 Ken Miltenberger conveyed TL 400 (less TL 401) and other property (but not TL 500) to himself and his new wife, Shane Miltenberger, who is not presently a claimant. Claimant has submitted an affidavit in which he describes how his mother and father acquired TL 500 on his behalf and how he has since possessed and farmed the property. Likewise, Ken's mother, Jeanne has submitted a letter confirming this arrangement. According to Ken's affidavit and the letter from Jeanne, title to TL 500 was conveyed in 2004. No copy of the deed of conveyance has been submitted. Ken's father and Jeanne's husband, Don, passed away recently, although the date is not specified. Ken Miltenberger's affidavit and Jeanne's letter are the only documentation offered in support of the arrangement between Ken and his parents relative to the acquisition of TL 500. No other contemporaneous writing evidencing such agreement has been presented. ORS 41.580 provides: "In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the party; evidence, thereof, of the agreement shall not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law:.. . (e) An agreement for the leasing for a longer period than one year, or for the sale of real property, or any Page 2 of 6 - Exhibit A - Order No. 2007-024 interest therein." The case law interpreting this statute holds that agreements to convey property or to transfer an equitable interest in property must be in writing or they are void. Owner Date of Acquisition - March 23, 1973 as to TL 400 (less TL 401), July 20, 2004 as to TL 500 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 Kenneth Miltenberger obtained an interest in TL 400 is March 23, 1973. However, a portion of TL 400 (TL 401) was conveyed in 1979 and is not part of this claim. Claimant submitted a copy of a deed, dated July 20, 2004, which shows that claimant acquired an interest in TL 500 on that date. This property was originally acquired by Ken's parents in 1973 and it appears to have been continuously owned by them until 2004. Restrictive Regulation - Zoning regulations. 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 Claimant has identified zoning provisions of the county's ordinance and alleged the same have reduced the value of both properties by prohibiting subdivision thereof. In 1973 the zoning of the property was A-1, permitting five-acre lots. These current minimum lot size requirements were adopted after the acquisition date of 1973 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 Claimant first acquired an interest in TL 400, it appears that in theory, based upon regulations in effect in 1973, that a subdivision could be permitted. Page 3 of 6 - Exhibit A - Order No. 2007-024 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 have applied for a subdivision 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 - $2,394,000 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 demonstrated that based upon soils and topography and well logs that individual wells and septic systems could be approved for a thirty-eight lot subdivision. • Claimant's property is located along Johnson Ranch Road, so access may not be an issue. • Electricity and telephone utilities are available to the property. • Claimant has not submitted an appraisal. An opinion from engineering professionals of development in an attempt to show the diminution in value based upon limitations on the subdivision of the property. Claimant's alleged reduction in value appears to be based upon the assumption that lots created by a subdivision of 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 Claimant could have obtained approval of a subdivision of the property on the date he 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 Page 4 of 6 - Exhibit A - Order No. 2007-024 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, Kenneth Miltenberger has continuously owned an interest in TL 400 since 1973. 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 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 March 23, 1973, the date when Claimant first acquired an interest in TL 400. There is evidence in the record that a subdivision 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 March 23, 1973, to allow the Claimant to use TL 400 in a manner permitted at the time he acquired 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. Assuming that Ken can produce a deed showing he has an interest in TL 500, then he would be entitled to a waiver of county land use regulations adopted after he acquired his interest. Page 5 of 6 - Exhibit A - Order No. 2007-024 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 6 of 6 - Exhibit A - Order No. 2007-024 EXHIBIT B ?ARM. - It The Northeast Quarter of the xorthacxt Quarter (N£-1/4 104-114); Soathepat Quarter of the NortWoot. tluarU. r (SL-1/i And the Soutrx: Quarter of the lorthcast Quarter (SN~I14 US-1!4), all bein;: In Section Fourteen. (14), Township Seventeen (17) South, Unge Fourteen (14), East of the Willaaette Haridian, Deschutes County, Oregon. »T a parcel of land in the northeast Quarter of the Northwest. Quarter (X&-1/4 0-1/4) of Section 14, Township 17 South, Range 14 East of the VULlaxette Meridian, Deschutes County, Oregon, doxcrf6ed as follows: >setitunittg at the Vortbwest corner of the said M-1/4 %V-1/49 rheum Fast aloe the said &•ctioa line 467 feat, thence South 467 feet, thence West 44 fLeto thence berth 467 feat to thu point of beginaiug. The Northwest Quarter of the northwest quarter and the Southwest Quarter of the northwest quarter of Section 14, Township 17 South, Range 14 East of the Willamette Meridian, Deschutes County, Oregon EXHIBIT B