2007-400-Order No. 2007-064 Recorded 3/30/2007COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKS yJ 2001400
COMMISSIONERS' JOURNAL 03/30/2007 08;51;35 AM
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COUNTY OFFICIAL
NANCYUBLA NKENSHIP, COUNTY CLERKDS 2007.18467
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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 Elbert and Wini * ORDER NO. 2007-064
Whitaker 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. 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, Elbert and Wini Whitaker made a timely demand for compensation under Measure 37 for a
reduction in value to their property at 2015 NW Helmholtz Way, Redmond, 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;
On November 20, 2006, Elbert and Wini Whitaker filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 2015 NW Helmholtz Way, Redmond, Oregon and is within
Deschutes County.
3. The County Administrator has recommended that the regulations for the subject property that
were not already in effect until after November 10, 1972 for Tax Lot 1100; November 26, 1965
for Tax Lot 400, not be enforced in lieu of payment of just compensation to Claimants. 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 Elbert and Wini Whitaker are the
present owners of the subject properties described in Exhibit "B," having acquired an interest in
it and continuously owned it since November 10, 1972 for Tax Lot 1100 (except that portion
obtained by Claimants in 2004); November 26, 1965 (Elbert) and April 27, 1993 (Wini) for
Elbert for Tax Lot 400 and April 27, 1993 for Wini Whitaker. The County finds and concludes
as set forth below.
PAGE 1 OF 3- ORDER NO. 2007-064 (03/19/07)
5. The Board concurs with the Administrator's report that the current minimum lot size
regulations, if applied to the subject properties, would not permit a subdivision of the subject
properties. 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 of the
subject properties would be denied if the current regulations were applied. Therefore, such an
application to determine enforcement of the current zoning to the Claimants' properties 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 land use permit have reduced the value of the
subject properties.
8. The Board concurs with the Administrator's report that division of the properties 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 Claimants 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
property 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 November 10, 1972 for Tax Lot 1100; for Tax Lot 400:
November 26, 1965 (Elbert) and April 27, 1993 (Wini). 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 Elbert and Wini Whitaker.
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,
PAGE 2 of 3- ORDER No. 2007-064 (03/19/07)
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. `~/~'1
DATED this , day of March, 2007.
ATTEST:
6bw~lkkq
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-064 (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
From: David Kanner, County Administrator
RE: Measure 37 Claim - Elbert and Wini Whitaker (Claimants)
2015 NW Helmholtz Way, Redmond. OR
Introduction
DATE: March 19, 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 20, 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 two lots with approximately 93.77 acres in two tax lots. The
current zoning is EFU-TRB. The Claimants' desired use is to subdivide the property, currently restricted
by County land use regulations. Claimants allege a reduction in value of approximately $2,400,000 due to
Page 1 of 5 - Exhibit A - Order No. 2007-064
the 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 - Elbert and Wini Whitaker are the owners of the properties comprising this claim: 15-13-
06, Tax Lot 1100 and 15-13-06 Tax Lot 400 located at 2015 NW Helmholtz Way, Redmond. Claimants
submitted a copy of a Contract of Sale, dated November 10, 1972, showing them as purchasers of the
West half of the NE quarter of the SW quarter of Section 6, Township 15 South, Range 13 East of the
Willamette Meridian. Volume 206, page 729 Deschutes County Deed Records contains a Bargain and
Sale Deed executed on July 11, 1991 which conveyed title to Tax Lot 1100 to claimants. A Warranty
Deed, dated November 26, 1965, shows Elbert Whitaker as grantee for Tax Lot 400, Volume 149, page
30 Deschutes County Deed Records. Wini Whitaker first obtained a legal interest in Tax Lot 400 by a
Bargain and Sale Deed, dated April 27, 1993. Volume 296, page 2792 Deschutes County Deed Records.
They are listed on County records as the owners and have owned the properties continuously from their
dates of acquisition.
Owner Dates of Acquisition - November 10, 1972 for Tax Lot 1100; for Tax Lot 400: November 26, 1965
(Elbert) and April 27, 1993 (Wini).
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 Elbert and Wini Whitaker obtained an interest in the properties is November 10, 1972 for Tax Lot
1100; For Tax Lot 400: November 26, 1965 (Elbert) and April 27, 1993 (Wini).
Restrictive Regulation - Minimum Lot Size Regulations.
Under the terms of the ordinance, the claimants must identify County land use regulations that prevent
the claimant from using the property in a way that they otherwise could have used the property at the time
Page 2 of 5 - Exhibit A - Order No. 2007-064
the property was acquired, and thus reduce the value of the claimants' property. The Claimants have
identified EFU-TRB zoning as the specific provision of the county's ordinance, alleging that those current
regulations have reduced the value of their property by prohibiting their ability to divide the property into
smaller lots. There were no minimum lot size regulations in effect in 1965 when Elbert Whitaker acquired
Tax Lot 400. In 1993, when Wini acquired her interest in the property, the property was zoned EFU-TRB.
This requirement was adopted after the acquisition date of 1965 and would have the effect of restricting
the subdivision of that property. The minimum lot size for Tax Lot 1100 in November, 1972 was five acres
based on a comprehensive plan designation of Intensive Agriculture and the requirements for a Rural
Subdivision uner PL-2. While the county would need to evaluate any land use application that may be
submitted pursuant to regulations in effect at the time Claimants first acquired an interest in the
properties, it appears that in theory, based upon regulations in effect in 1965 and 1972, that a land
division might have been permitted at those times.
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 have applied for a subdivision resulting in the current zoning being enforced on
the subject property. Claimants have applied for a partition of tax lot 1100 (See County file no. MJP-79-
65). Claimants have 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 - $2,400,000 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 asserted that a land division would be approved for each lot.
• Claimants' property is located along NW Helmholtz Way so access may not be an issue.
• Other public utilities may be available to the property.
• Claimants have not submitted an appraisal, or opinions from real estate professionals in an
attempt to show the diminution in value based upon limitations on land division of the property.
Page 3 of 5 - Exhibit A - Order No. 2007-064
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
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
subdivision of the property on the date they 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, Elbert and Wini Whitaker have continuously owned an interest in the properties since their
respective dates of acquisition. 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.
Page 4 of 5 - Exhibit A - Order No. 2007-064
Conclusion and Recommendation
The present owners of the properties 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 November 10, 1972 for Tax Lot 1100; for Tax Lot 400: November 26, 1965 (Elbert) and April
27, 1993 (Wini), the dates when Claimants first acquired an interest in the properties. There is evidence in
the record that a land division of the subject property would 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
the respective dates of acquisition, to allow the Claimants to use the properties in a manner permitted at
the time they acquired the properties. This waiver is not a development permit. By granting a waiver, the
County does not commit itself to approving Claimants' desired permit.
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 5 of 5 - Exhibit A - Order No. 2007-064
EXHIBIT B
Lot Five (5), and the Northwest Quarter of the
Southwest Quarter (NASA) of Section Six (6), Township
Fifteen (15) South, Range Thirteen (13) East of the
Willamette Meridian, with all irrigation rights appur-
tenant thereto.
A parcel of land in the West Half of the North-
east Quarter of the Southwest Quarter (WJsNEkSWk)
Of Section 6, Township 15 South, Range 13
East of the Willamette Meridian, Deschutes
County, Oregon,'more particularly described as
follows:
PARCEL NO. 2
Commencing at the Center quarter corner of said
Section 6; thence North 890 33' 00" West along
the North line of the SWk of said Section 6 a
.distance of 978.28 feet to the true point.of
beginning; thence South 000 32' 12" West a
distance of 666.68 feet; thence South 890 S4' 10"
East a distance of 327.92 feet; thence South
:009.221 47" West a distance o£ 664.66 feet;
thence South 890 44' S2" West a distance of
659.53 feet; thence North 000 41' 33" East a'
distance of 1337.40 feat; thence South 890 33' 00"
East a distance of 326.09 feet to the true point
of beginning. Along with a 60.00 foot wide access
EXHIBIT B