2007-373-Order No. 2007-061 Recorded 3/26/2007COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKDS CJ 7441.313
COMMISSIONERS' JOURNAL
, 03/26/2007 08:54:04 AM
2007-373
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Deschutes County Clerk
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~Jlq REVIE D DESCHUTES COUNTY OFFICIAL RECORDS 100■i1119
I!M
NANCY BLANKENSHIP, COUNTY CLERK
LEGAL COUNSEL II II III IIII VIII IIIIIIIIIII III IIIIIIII~) III NO FEE
0 s 2032007001721900 0x103/23/2007 03;36;43 PM
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This is s no fee document.
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
U An Order Approving a Waiver of Land Use
Regulations to Authorize Melvin Coulter to Use * ORDER NO. 2007-061
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, Melvin Coulter made a timely demand for compensation under Measure 37 for a reduction
in value to his property at TL 17-14-23-1400, 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;
1. On November 16, 2006, Melvin Coulter filed a Measure 37 claim with the Community
Development Department.
2. The property is located at T1-17-14-23-1400 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 January 4, 1977 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 Melvin Coulter is the present owner of
the subject property described in Exhibit "B," having acquired an interest in it and continuously
owned it since January 4, 1977. The County finds and concludes as set forth below.
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 subdivision to create 5-acre lots.
The current regulations are land use regulations which are not exempt from Measure 37 claims.
PAGE 1 of 3- ORDER No. 2007-061 (03/13/07)
6. The Board concurs with the Administrator's report that an application for a subdivision to create
5-acre lots would be denied if the current zoning 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 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
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 the subject property fully complies with
all substantive land use regulations in effect on January 4, 1977. 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 1) (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(l 1)(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 Melvin Coulter.
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
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,
PACE 2 of 3- ORDER No. 2007-061 (03/13/07)
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 /3'day of March, 2007.
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-061 (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.ora
TO: Board of County Commissioners
From: David Kanner, County Administrator
RE: Measure 37 Claim - Melvin Coulter (Claimant)
TL 17-14-23-1400, 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. Claimant has paid the filing fee and submitted the County's official
demand form. The property consists of one tax lot of approximately 19 acres. The current zoning is EFU-
AL. The Claimant's desired use is a subdivision and Claimant alleges a reduction in value of
Page 1 of 5 - Exhibit A - Order No. 2007-061
approximately $300,000 - $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 - Melvin Coulter is the owner of the parcel comprising this claim: 17-14-23 Tax lot 1400
located in Bend. Claimant acquired an interest in the property by Warranty Deed executed January 4,
1977, recorded at Volume 243, page 375 Deschutes County Deed Records. Claimant is the owner of
record in current County records.
The deed in this case demonstrates that an interest in the property was acquired by the present owner,
Melvin Counter in 1977.
Owner Date of Acquisition - January 4, 1977
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
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 Melvin Coulter obtained an interest in the
property is January 4, 1977.
Restrictive Regulation - EFU/AL.
Page 2 of 5 - Exhibit A - Order No. 2007-061
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 the EFU/AL zoning as reducing the value of their property by inhibiting development of a
subdivision. This regulation was adopted after the current owner's acquisition date of 1977.
It appears that, based upon A-1 zoning in effect in 1977, that a subdivision of the property into five-acre
lots would 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. Claimant has not applied for a subdivision of the property resulting in the current zoning being
enforced on the subject property. Claimant has not demonstrated that submitting an application for such a
land division would be futile. However, this Report confirms that such an application for the desired
subdivision 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 - $300,000 - $600,000
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 not submitted evidence that domestic water is available for the desired subdivision.
• Claimant has not submitted evidence that sanitary service is or would be feasible for the desired
subdivision.
• Claimant has not submitted an appraisal or an opinion of the value of the property if a subdivision
was allowed.
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
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
Page 3 of 5 - Exhibit A - Order No. 2007-061
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
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, Melvin Coulter has continuously owned an interest in the property since 1977. 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 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
Melvin Coulter, the present owner of the property, has submitted a claim pursuant to Measure 37 which
demonstrates eligibility for his use of the subject property based on nonexempt land use regulations in
effect on January 4, 1977, the date when Claimant first acquired an interest in the property. There is no
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.
Page 4 of 5 - Exhibit A - Order No. 2007-061
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
January 4, 1977, to allow the Claimant to use the property 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 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. 2007-061
f The South One-Half of tha Southwest Quarter-of the Southwest
Q"Vtir (SkSW%SW#) of Soction Twenty-three (23). Township
Seventeen (17) South. Range Fourteen (14) East. Willamette
Meridian. Deschutes County,, Oregon.
Together with seventean- (17) ,acres of C.O.I. xrrig&tion District
Miter.
EXHIBIT B