2007-422-Order No. 2007-048 Recorded 4/4/2007DESCHUTES COUNTY OFFICIAL RECORDS CJ 2001~~Zg
NANCY BLANKENSHIP, COUNTY CLERK V LL
COMMISSIONERS' JOURNAL
04/04/2007 09:07:49 AM
2007-429
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COUNTY
LEGAREVI D NANCYUBLANKENSHIP,P000NTY CLERKDS 2007.19370
L OUNSEL IIIIIIIIIIIIIII IIIIIIIIlIIIIIIIIIIIIIIIIIIIIIIiII NO FEE
0053!46'3200700183700080099 04/03/2007 42:25:32 PM
D-M37 Cnt_1 Stnol BN
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 Estate of Beverly D. * ORDER NO. 2007-048
Campbell to Use the Subject Property as Allowed
When the Heirs of Beverly D. Campbell 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, Estate of Beverly D. Campbell made a timely demand for compensation under Measure 37
for a reduction in value to its property at 60706 and 60720 Tekampe Road, Bend, Oregon due to regulations
which took effect after it 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 October 13, 2006, Estate of Beverly D. Campbell filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 60706 and 60720 Tekampe Road, 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 decedent Beverly D. Campbell's date of death, 2006
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."
The Board concurs with the Administrator's report that Estate of Beverly D. Campbell
represents the present owners of the subject property described in Exhibit "B," having acquired
an interest in it and continuously owned it since decedent Beverly D. Campbell's date of death,
2006. The County finds and concludes as set forth below.
PAGE I OF 3- ORDER No. 2007-048 (02/26/07)
5. The Board concurs with the Administrator's report that the current land use regulations, if
applied to the subject property, would not permit a subdivision to create 8 - 10 MUA-10 and
SMIA, 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 subdivision to create
8 - 10 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.
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 it 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 decedent Beverly D. Campbell's date of death, 2006. 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(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 date
of acquisition for heirs of Beverly D. Campbell.
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. 2007-048 (02/26/07)
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 day of Fe ary, 2007.
ATTEST:
wt&~-
Recording Secretary
PAGE 3 OF 3- ORDER No. 2007-048 (02/26/07)
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 - Estate of Beverly D. Campbell (Claimant)
60706 and 60720 Tekampe Road, Bend. OR
Introduction
DATE: February 26, 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 October 13, 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 two tax lots with approximately 4.81 acres in total. The current
zoning is MUA-10 and SMIA. The Claimant's desired use is an 8 - 10 lot subdivision and Claimant
alleges a reduction in value of approximately $1,700,000 due to the inability to divide the property as
Page 1 of 5 - Exhibit A - Order No. 2007-048
desired. The following is an analysis of the evidence in the record on the elements of this Measure 37
claim.
Current Owner - Heirs of Beverly D. Campbell are the owners of the parcels comprising this claim: 18-
12-22 Tax lots 900 and 1000 located at 60706 and 60720 Tekampe Road, Bend. Decedent acquired Tax
Lots 900 and 1000 by Contract of Sale dated May 14, 1971 and Tax Lot 1000, separately, by Warranty
Deed dated May 9, 1972. The record shows that the 1971 contract was satisfied and a Warranty Deed
dated May 19, 1981 conveyed title to Tax Lot 900. In the usual case of a Will, title to real property no
longer remains in a decedent. A devise of property by Will passes all property interest of the testator to
the heirs at the time of death. ORS 112.355; ORS 114.215(b). In this case, decedent died without a Will.
Under ORS 114.215(a) the heirs vest also in property at the time of death. The record does not show
decedent's date of death. However, the court order admitting the estate to administration and appointing
the personal representative is dated May 26, 2006, about five months prior to this claim. Therefore, at the
time of this claim, the heirs of Beverly D. Campbell were the present owners of the subject property. The
Estate of Beverly D. Campbell is administering the estate on behalf of these heirs. The record in this
case demonstrates that the property was acquired by the present owner, heirs of Beverly D. Campbell, by
operation of law in 2006.
Owner Date of Acquisition - Decedent Beverly D. Campbell's date of death, 2006
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
Page 2 of 5 - Exhibit A - Order No. 2007-048
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 heirs of Beverly D. Campbell obtained an interest
in the property is Decedent Beverly D. Campbell's date of death, 2006. While the claim asserts that their
interest first arose in 1971 by way of a Contract of Sale for Tax Lots 900 and 1000 and 1972 by Deed for
Tax Lot 1000, these were decedent's acquisition dates and the present heirs did not acquire an interest
by operation of law until Decedent's date of death, 2006.
Restrictive Regulation - MUA-10, SMIA.
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 MUA-10 and SMIA zoning, as reducing the value of their property by inhibiting development
of a subdivision. All of these regulations were adopted prior to the current owner's acquisition date of
2006, but after acquisition by related family member, Beverly Campbell.
While the county would need to evaluate any land use application that may be submitted pursuant to
regulations in effect at the time Beverly Campbell first acquired an interest in the property, it appears that
in theory, based upon zoning in effect in 1971 and 1972, that a subdivision of the property 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 - $1,700,000 alleged on Claim Form
Page 3 of 5 - Exhibit A - Order No. 2007-048
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 submitted an opinion that the current value of the property if a subdivision was
allowed is $2.5 million. This is the basis for concluding a reduction in value of $1.7 million by the
current restrictive zoning. Since that would not have been allowed in 2006, this is not evidence of
the diminution of value from just before and just after adoption of the county's restrictive land use
regulations.
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 the owner or a family member 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 the owner's
acquisition date, and the resulting lots are fully marketable and useable by future owners, then the value
of the 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
Page 4 of 5 - Exhibit A - Order No. 2007-048
acquired the Property. (emphasis added)
11(c) "Owner" is the present owner of the property, or any interest therein. "
In this case, heirs of Beverly D. Campbell have continuously owned an interest in the property since
Decedent Beverly D. Campbell's date of death, 2006. 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
Heirs of Beverly D. Campbell, the present owners of the property, have submitted a claim through the
Estate of Beverly D. Campbell, pursuant to Measure 37 which demonstrates eligibility for their use of the
subject property based on nonexempt land use regulations in effect on Decedent Beverly D. Campbell's
date of death, 2006, the date when the heirs 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.
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
Decedent Beverly D. Campbell's date of death, 2006, to allow the heirs 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 5 of 5 - Exhibit A - Order No. 2007-048
EXHIBIT B
7a. ALSC,~IPTUM: Beal P'ropesCp -
The Sou tbee t Quarter of the Northeast Qnsrter (S1ZkWk)
of Seatfen •Lr. Tanship Seventeen (17) South,
Tkis~ Cl3) Z01.312).. Deschutes CaMtg, Oregon.
t+e et'her uit3:~ sixteen (16) uses of C .O. i . water, ind
to,gedwr with a non-ozelusive easmat for ingress and
egrvw 30 fWwe fn width e=tendim fran the abbve-described
premises to the public road slang the western boundary
of the Sarthasst quarter of the Soztbeast quarter
(FETE) of Section Thirty-two (32). Township Seventeen
(17) swath. Saw Thirtsea C13) L.W.M., Desdftites Caenty,
Oregon.
..l •rr.. .y.:.. .liter 4N... "riT
The West'.Ofi'e`=half> of+~;the or t. Quarter of the
`Northeas;t . QuazCer (W t1E NE ~:`of ..Section .Thirty-two
;(32} ~;Tow*ciship;,5e'v~ate'eri'(17)" South;' Range Thirteen
(I3) EW'.M;>'Deschut`es°Coiinty.Oregon, containing
20.:-;'ac gs', more or
EXHIBIT B