2007-375-Order No. 2007-026 Recorded 3/26/2007COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKDS 1~J ~00~'3~5
COMMISSIONERS' JOURNAL
1,.,,.,,,,..,Jim ,In NINON ,,MEN min 03/26/2007 08:50:04 AM
2007-375
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Deschutes County Clerk
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If this instrument is being re-recorded, please complete the following
statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
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NANCYUBLANKCOUNTY OFFICIAL ENSHIP, COUNTY CLERKDS 1041'17111
REVIEW
LEGAL COUNSEL 111111111111111 11111111111111111 NO FEE
0 37218200700172210080082
03/23I204103:36:43 PM
D-M37 Cntsl Stns23 PO
This In s no fee document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESC14UTES COUNTY, OREGON
60 An Order Approving a Waiver of Land Use
Regulations to Authorize John Reames to Use the * ORDER NO. 2007-026
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, John Reames made a timely demand for compensation under Measure 37 for a reduction in
value to their property at 25775 Alfalfa Market Rd., 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 June 27, 2006, John Reames filed a Measure 37 claim with the Community Development
Department.
2. The property is located at 25775 Alfalfa Market Rd., 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 February 3, 1986 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 John Reames is the present owner of the
subject property described in Exhibit "B," having acquired an interest in it and continuously
owned it since February 3, 1986. 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 the siting of a farm-related dwelling.
The current regulations are land use regulations which are not exempt from Measure 37 claims.
PAGE 1 of 3- ORDER No. 2007-026 (03/19/07)
6. The Board concurs with the Administrator's report that an application for a farm-related
dwelling on the subject property 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 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 partition application. Despite the lack of a precise
amount of reduction in value, the loss of the ability to build a farm-related dwelling 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 Februrary 3, 1986. 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(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(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 John Reames.
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 Claimant first
obtains 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
PAGE 2 of 3- ORDER No. 2007-026 (03/19/07)
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.
0-,
DATED this 'day of March, 2007.
ATTEST:
Recording Secretary
PACE 3 of 3- ORDER No. 2007-026 (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 DATE: March 19, 2007
From: David Kanner, County Administrator
RE: Measure 37 Claim - John Reames (Claimant)
25775 Alfalfa Market Rd., Bend, 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 June 27, 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 39 acres. The current zoning is EFU-
AL. The Claimant's desired use is a farm dwelling and Claimant alleges a reduction in value of
Page 1 of 4 - Exhibit A - Order No. 2007-026
approximately $492,000 due to the inability to establish a farm dwelling on 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 Reames is owner of the property comprising this claim: 17-14-27, Tax lot 1101 and
located at 25775 Alfalfa Market Rd., Bend. Claimant acquired the property, as part of a larger 120-acre
parcel on February 3, 1986. Thereafter the property was partitioned into three roughly equally sized
parcels. The subject parcel is the last parcel.
Owner Date of Acquisition - February 3, 1986
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 John Reames obtained an interest in the property is February 3, 1986.
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 Claimant has
identified the EFU-AL zoning as reducing the value of his property by prohibiting establishment of a farm
dwelling without meeting the minimum annual gross income of $80,000.
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 zoning in effect in 1986, that a separate farm dwelling could have been established on the
subject property in 1986 without the owner having to first establish a minimum annual gross income of
$80,000.
Enforcement of County Regulation - futile DCC 14.10.040(G).
Page 2 of 4 - Exhibit A - Order No. 2007-026
Measure 37 requires that an ordinance which restricts the current owner's use be "enforced" against
them. Claimant has not applied for a farm-related dwelling on the subject property resulting in the current
zoning being enforced on the subject property. Claimant has asserted and this Report confirms that such
an application for the desired farm-related dwelling would violate the current zoning requirements and be
denied. Therefore, the intent of DCC 14.10.040(G) has been met for this claim.
Reduction in Value - $492,000,000 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 the soils are satisfactory for supporting a standard septic system.
• Claimant has also asserted that domestic water from wells is sufficient to support domestic water.
• Claimant has not submitted an appraisal, but has instead provided an opinion letter from a local
realtor which has concurred that the property value, as bare land is substantially less than it
would be if it were legal to site a farm dwelling.
• The property abuts Alfalfa Market Rd.
Claimant's alleged reduction in value appears to be based upon the assumption that a farm-related
dwelling on the subject parcel would be fully marketable and useable by others. 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 Claimant may be unreliable, if the
resulting farm-related dwelling is unusable by future owners, based on their having to comply with zoning
regulations in place when such future owners acquire the property.
Assuming without deciding Claimant could have obtained approval of a farm-related dwelling on 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 lot is 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:
Page 3 of 4 - Exhibit A - Order No. 2007-026
"(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 Reames has continuously owned an interest in the property since 1986. 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
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
February 3, 1986, the date when Claimant first acquired an interest in the property. There is evidence in
the record that a farm-related dwelling on the subject property would 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
February 3, 1986, 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 nonfarm dwelling.
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 4 of 4 - Exhibit A - Order No. 2007-026
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