2007-374-Order No. 2007-056 Recorded 3/26/2007DESCHUTES COUNTY OFFICIAL RECORDS 7001'314
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL 0312612001 08;50;04 AM
11111111111111111111 111
2007-374
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Deschutes County Clerk
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Re-recorded to correct [give reason]
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REVI DESCHUTES COUNTY OFFICIAL RECORDS
NANCY BLANKENSHIP, COUNTY CLERK
LEGAL COUNSEL III JIIIIII II IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII III NO FEE
00 37205200700172200090097 43/23/2007 03;36;43 PM
D-H37 Cnts1 Stn:23 PO
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 John Marks and * ORDER NO. 2007-056
Marshall Hieronimus to Use the Subject Property
as Allowed When Each Acquired An Interest In
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, John Marks and Marshall Hieronimus made a timely demand for compensation under
Measure 37 for a reduction in value to their property at 15-11-19A, Tax Lot 1301, Sisters, Oregon due to
regulations which took effect after each acquired an interest in 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 October 31, 2006, John Marks and Marshall Hieronimus filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 15-11-19A, Tax Lot 1301 in Sisters, 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 September 7, 1976 for John Marks and May 22, 1989
for Marshall Hieronimus not be enforced in lieu of just compensation. 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 John Marks and Marshall Hieronimus
are the present owners of the subject property described in Exhibit "B," having acquired an
interest in it and continuously owned it since September 7, 1976 for John Marks and May 22,
1989 for Marshall Hieronimus. The County finds and concludes as set forth below.
PAGE 1 OF 3- ORDER No. 2007-056 (03/13/07)
5. The Board concurs with the Administrator's report that the current land use regulations, MUA-
10, if applied to the subject property, would not permit a partition to create two 5-acre 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 partition to create
two 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 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.
8. The Board concurs with the Administrator's report that there is no evidence that domestic
water, sanitary sewer and access for the desired partition 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 Claimants 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.
Claimants may apply for a use of the subject property consistent with the substantive land use regulations in
effect at the time each first acquired an interest in the property. That land use shall be permitted if the subject
property fully complies with all substantive land use regulations in effect on September 7, 1976 for John Marks
and May 22, 1989 for Marshall Hieronimus. 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 John Marks and Marshall Hieronimus.
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. 2007-056 (03/13/07)
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 134-day of March, 2007.
ATTEST:
lmi~c S?Lk"-
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-056 (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 DATE: March 13, 2007
From: David Kanner, County Administrator
RE: Measure 37 Claim - John Marks and Marshall Hieronimus
(Claimants)
15-11-19A; TL 1301, Sisters, OR
Introduction
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 31, 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 of approximately 10 acres. The current zoning is MUA-
10. The Claimants' desired use is a two-lot partition and Claimant alleges a reduction in value of
Page 1 of 5 - Exhibit A - Order No. 2007-056
approximately $214,331 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 - John Marks and Marshall Hieronimus are the owners of the parcel comprising this claim:
15-11-19A; Tax lot 1301 located near Ivy Lane, Sisters. Claimant Marks acquired the property by land
sales contract with Douglas Hieronimus (now deceased) on September 7, 1976. That contract was
satisfied with Marks and Douglas Hieronimus receiving a warranty deed June 13, 1977. Probate records
indicate that Henry and Happy Hieronimus succeeded Douglas in interest in this property October 13,
1989. Marshall Hieronimus received the interest in this property by Bargain and Sale Deed May 22,
1989. John Marks and Marshall Hieronimus are the current owners of the subject property in Deschutes
County records.
Owner Dates of Acquisition - September 7, 1976 for John Marks; May 22, 1989 for Marshall Hieronimus.
The dates of acquisition by the current owners are the relevant dates 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.
Page 2 of 5 - Exhibit A - Order No. 2007-056
The first date for which there is documentation showing John Marks obtained an interest in the property is
September 7, 1976. Marshall Hieronimus first acquired an interest in the property on May 22, 1989.
Restrictive Regulation - MUA-10.
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 MUA-10 zoning, reducing the value of their property by inhibiting a partition. Deschutes
County Ordinance No. PL-15 was effective November 1, 1979, containing the current MUA zoning. Prior
to that time, PL-5 contained A-1 zoning for this property, permitting five-acre lots.
It appears that, based upon zoning in effect in 1976, that a partition of the property would have been
allowed. A partition would not have been allowed in 1989.
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
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 - $214,331 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 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 submitted an analysis of the current value of the property if a partition to create
two 5-acre lots was allowed. While that would not have been allowed in 1989, it would have been
allowed under ordinances in effect when a "family member" of the current owner Hieronimus first
acquired the property. As such, this would represent some 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
partitioning the property are fully marketable and useable by others for development. Referring to a recent
Page 3 of 5 - Exhibit A - Order No. 2007-056
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 partition 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,
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, John Marks has continuously owned an interest in the property since 1976. Marshall
Hieronimus has continuously owned an interest in the property since 1989. 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.
Page 4 of 5 - Exhibit A - Order No. 2007-056
Conclusion and Recommendation
John Marks and Marshall Hieronimus, the present owners of the property, have submitted a claim
pursuant to Measure 37 which demonstrates John Marks' eligibility for his use of the subject property
based on nonexempt land use regulations in effect on September 7, 1976, the date when this Claimant
first acquired an interest in the property. Marshall Hieronimus is eligible for his use of the property based
on non-exempt land use regulations in effect on May 22, 1989, when he first acquired an interest in the
property. There is no evidence in the record that 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
September 7, 1976 for John Marks and May 22, 1989 for Marshall Hieronimus, to allow the Claimants to
use the property in a manner permitted at the time each of them 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 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. 2007-056
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