2007-399-Order No. 2007-043 Recorded 3/30/2007COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKDS 0J 2001'399
COMMISSIONERS' JOURNAL 0313017001 08:57:35 AM
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2007-390
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REVIE
LEGAL COUNSEL
COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS 1007.18466
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D-M37 Cnt=3 Stn=26 SRB
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BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Dana and Carolyn Craig * ORDER NO. 2007-043
to Use the Subject Property as Allowed When
They 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. hi 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, Dana and Carolyn Craig made a timely demand for compensation under Measure 37 for a
reduction in value to their property at 15036 Yorkie Lane, LaPine, 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;
1. On September 5, 2006, Dana and Carolyn Craig filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 15036 Yorkie Lane, in LaPine, 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 April 12, 1978 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 Dana and Carolyn Craig are among the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since April 12, 1978. The County finds and concludes as set forth
below.
PAGE I of 3- ORDER No. 2007-043 (04/02/07)
5. The Board concurs with the Administrator's report that the current land use regulations, RR-
101WA, if applied to the subject property, would not permit a partition to create 2.5-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
2.5-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 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 they 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 April 12, 1978. 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 Dana and Carolyn Craig.
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. 2007-043 (04/02/07)
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 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 ~Jav of April, 2007.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
yv-&k- - XA -
ATTEST:
N 117 r
WA~t'
Recording Secretary
ZISR. LY, CHAIR
, VI CHAIR
TA MMY BANEY, COMMJS IONER
PAGE 3 of 3- ORDER No. 2007-043 (04/02/07)
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 - Dana and Carolyn Craig (Claimants)
15036 Yorkie Lane, LaPine, 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 September 5, 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 5 acres. The current zoning is RR-
1O/WA. The Claimants' desired use is a partition into two lots of 2.5 acres and Claimants allege a
Page 1 of 6 - Exhibit A - Order No. 2007-043
reduction in value of approximately $94,000 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 - Dana and Carolyn Craig are among owners of the parcel comprising this claim: 22-10-
30A Tax Lot 2000 located at 15036 Yorkie Lane, LaPine. In December 1976, Richard and Diane Craig,
the parents of Claimant, Dana Craig, purchased an interest in property that includes the subject property
from Donald and Margaret Campbell. In the Memorandum of Sale executed December 23, 1976 all tax
statements were to be sent to the Ehleringers. Evidently, the Ehleringers were the contract purchasers of
the subject property and six other lots adjacent to the subject property because the Ehleringers were
grantees of a warranty deed for seven lots, including the subject property, dated March 25, 1980.
On October 10, 1985, the Ehleringers conveyed title by Warranty Deed to Donald and Margaret
Campbell. On November 6, 1985 the Campbells conveyed title by Warranty Deed to Dana Craig's
parents. Dana Craig's parents conveyed the subject property to their two sons, including Dana Craig and
his wife, Carolyn Craig, in a warranty deed executed April 3, 1986. In a Bargain and Sales Deed dated
February 26, 1992, claimant Dana Craig's brother, Richard, conveyed his one-half interest in the property
under the 1986 deed, to himself and his wife. In a Bargain and Sales Deed dated February 22, 1995, the
two sons and their wives conveyed an undivided fifty percent (50%) interest in the property to each
couple with each couple's interest being tenants by the entireties with rights of survivorship. Both couples
are shown as owners on the tax records.
Based on an affidavit from Diane Craig, the surviving parent of claimant, Dana Craig, the claimants assert
an interest from 1978 in a 2.5 acre "lot" which Diane Craig asserts she and her husband intended to
create by agreement with the sons and without having obtained approval from the County. She has
furnished a permit issued by the county indicating approval of the siting of a manufactured home on the
2.5 acres, dated April 12, 1978. The affidavit further claims that this permit was based on unrecorded
contracts of sale of 2.5 acres each to the two sons in 1978 and that these records have been since been
stolen. Claimants allegedly have lived on the property and paid taxes since 1978. And the affidavit
states: "We subsequently conveyed a one-half interest to Dana and Carolyn Craig, upon payment in full
of the sale price as per the agreement in 1978." While not accomplishing the transfer a distinct one-half
interest to each of the two brothers and their spouses, Claimant submitted evidence showing that all of
the parties acted as though distinct lots had been established with each brother assuming an interest in
Page 2 of 6 - Exhibit A - Order No. 2007-043
each 2 %2 acre parcel. Community Development staff's review shows one manufactured home in 1978
on the five-acre legal lot that was replaced in 1984 by another manufactured home.
The deed records in this case demonstrates that claimants' undivided one-half interest in the property
was acquired in 1986. Diane Craig's affidavit about the parents' intent is the only evidence in this record
about a possessory interest or a land sales contract for some interest in the property in 1978.
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
interest therein." Claimant's attorney asserted that this limitation is subject to a legal principal of part
performance, indicating that the law would recognize and give effect to an agreement that is subsequently
lost, misplaced or stolen, as was the case here.
Owners Date of Acquisition - April 12, 1978
Claimant's evidence of an agreement to purchase the property consists of an affidavit that some form of
agreement was contemplated and prepared back in 1978. Claimant and his wife resided on the property
and treated it for all purposes as being owned by them. This, despite the absence of documented
evidence of an agreement to purchase the subject property.
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
Page 3 of 6 - Exhibit A - Order No. 2007-043
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 Dana and Carolyn Craig obtained an interest in
the property is April 1.2, 1978, when they were issued a permit to site a mobile home on the property.
Restrictive Regulation - RR-10/WA.
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 RR-10 zoning, and the county's partition ordinance as reducing the value of their property
by inhibiting development of a partition. The RR-10 zone was adopted in 1979, under PL-15; PL-7, the
County's first partition ordinance, was adopted on January 5, 1977. It appears that, based upon zoning in
effect in 1978, that a partition of the property would not 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 partition 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
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 - $94,000 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 submitted no evidence that domestic water is available for the desired partition.
• Claimants have not submitted an appraisal of the current value of the property if a partition to
create 2.5-acre lots was allowed.
Page 4 of 6 - Exhibit A - Order No. 2007-043
Claimants' alleged reduction in value appears to be based upon the assumption that lots created by a
partition 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 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, Dana and Carolyn Craig have continuously owned an interest in the property since 1978. 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 5 of 6 - Exhibit A - Order No. 2007-043
Conclusion and Recommendation
Dana and Carolyn Craig have demonstrated an interest in the subject property, and have 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 April 12, 1978, the date when Claimants first acquired an
interest in the property.
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
April 12, 1978, to allow the Claimants to use the property in a manner permitted at the time they 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 6 of 6 - Exhibit A - Order No. 2007-043
Lot Four (4) in Block One (1) of THE SOUTH FORTY, located in Section
Thirty (30), Township Twenty-two (22) South Range Ten (10), East of the
Willamette Meridian, Deschutes County, Oregon
EXHIBIT B