2007-453-Order No. 2007-070 Recorded 4/18/2007COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS ~u 2001~~~~
COMMISSIONERS' JOURNAL 0411812007 09;40;33 AM
IIIIIIII IIIIIIIIIIIIIIIIIIII III
2007-453
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Deschutes County Clerk
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statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
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REVIE WD NANCY UBLANKENSHIP,FCOUNTY CLERKDS 2007.22099
LEGAL COUNSEL IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII NO FEE
00542427200700220880110112
04/17/2007 03:54:10 PM
D-M37 Cnt=1 Stn=2 JS
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 Charles Clement to Use
the Subject Property as Allowed When He
Acquired the Property
* ORDER NO. 2007-070
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, Charles Clement made a timely demand for compensation under Measure 37 for a
reduction in value to his property at 6503 SW Catlow Way, Redmond, 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 November 22, 2006, Charles Clement filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 6503 SW Catlow 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 1965, 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 Charles Clement is the present owner of
the subject property described in Exhibit "B," having acquired an interest in it and continuously
owned it since 1965. The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2007-070 (04/16/07)
5. The Board concurs with the Administrator's report that the current zoning regulations, if applied
to the subject property, would not permit a division of the subject property. 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 division of the
subject property would be denied if the current regulations were applied. Therefore, such an
application to determine enforcement of the current zoning to the Claimant's property would be
futile.
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 property.
8. The Board concurs with the Administrator's report that a division of the property 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
divide 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 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 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 in 1965. 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 dates of acquisition for Charles Clement.
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
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
TO STATE REGULATIONS WHICH WOULD OTHERWISE PRECLUDE THE PROPOSED LAND USE.
PAGE 2 of 3- ORDER No. 2007-070 (04/16/07)
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. tay DATED this ! 6 of April, 2007.
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-070 (04/02/07)
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 - Charles Clement (Claimant)
6503 SW Catlow Way, Redmond, OR
Introduction
DATE: April 16, 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. Claimant and affected parties have the opportunity to rebut this Report and
provide additional relevant evidence to the Board. Also, under the County's process, claimant 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 22, 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 1.42 acres in one tax lot. The current
zoning is EFU-TRB. The Claimant's desired use is a residential division of the property, currently
restricted by County land use regulations. Claimant alleges a reduction in value of approximately
Page 1 of 7 - Exhibit A - Order No. 2007-070
$100,000 due to the inability to divide and develop as desired. The following is an analysis of the
evidence in the record on the elements of this Measure 37 claim.
Current Owner - Charles Clement is the owner of the property comprising this claim: 15-12-13, Tax lot
1400 located at 6503 SW Catlow Way, Redmond. Claimant submitted some evidence from 1965
intending to show him as owner by the doctrine of adverse possession, ORS 105.620. Claimant's
affidavit of December 15, 2006 states that his acquisition of this property was included in his 1965
purchase of adjoining Tax Lot 1700. Further, he states that "Both my predecessor and I grew crops on
the area (of the subject property) on an annual basis since 1965...."
Claimant has provided a letter addressed by a lawyer to the State Department of Veterans' Affairs, which
appears to be in connection with a loan to Claimant and the uncertain boundary to the property. This
letter describes the nature of the discrepancy over the disputed strip which is described as 165 feet in
width. Apparently, in connection with the County's establishing roadways in the area some years prior,
the centerline of Vosberg Road was placed in such a manner that adjacent property owners believed it
followed a section line, when in fact it did not. Thereafter fencing and other agricultural activities by
Claimant's predecessor in interest occurred within the fenced area.
The Oregon Supreme Court has recently addressed the requirements of adverse possession. To succeed
on an adverse possession claim, a claimant must establish, by clear and convincing evidence, that the
use of the property was actual, open, notorious, exclusive, continuous, and hostile for a 10-year period.
Claimant bears a "heavy burden" to establish ownership by adverse possession.
The requirement of actual use is satisfied if the claimant establishes a "use of the land that would be
made by an owner of the same type of land, taking into account the uses for which the land is suited. The
Claimant's use of the subject property is open and notorious if it is "of such a character as to afford the
[owner of record title] the means of knowing it, and of the claim." Occasionally growing hay may be
sufficient to satisfy the requirement of actual use, if that is the use to which the land is best suited. Such
limited activity may satisfy the requirement of open and notorious use, but only if it is significant enough to
put an owner on notice that his or her title is being challenged.
The requirement of exclusive use is satisfied so long as the use is similar to that which would be expected
of an owner in like circumstances.
Page 2 of 7 - Exhibit A - Order No. 2007-070
To be continuous, use of the property must be constant and not intermittent. As the Oregon Supreme
Court has stated, "the claimant * * * must 'keep his flag flying, and present a hostile front to all adverse
pretensions.'" 173 Or at 153 (quoting Olewine v. Messmore, 128 Pa 470, 484, 18 A 495 (1889)).
Finally, an adverse possession claimant must establish that the use is hostile to the interests of the
owner. This requirement is sometimes referred to as a "claim of right." To establish the requisite hostility,
a claimant must demonstrate a subjective intent to "possess the property intending to be its owner and
not in subordination to the true owner." To determine if a claim is adverse or "hostile," a court must inquire
into subjective intent of adverse possession claimant. If an adverse possession claimant establishes an
intent to appropriate land to him or herself, to the exclusion of all others, regardless of whether that
claimant has actual title to that land, then the claimant is said to possess that land under "claim of right" or
"claim of ownership."
A deed or "color of title," where one exists, purporting to convey an interest in the disputed property is
evidence of that claim of right, but even that evidence "can be overcome by acts or statements indicating
that the [claimant] intends to claim more or less than [the claimant's] deed purports to convey." In the
absence of a claim of right, "the law will presume [an adverse possession claimant's] possession to be in
subservience to the legal title." see also Robinson v. Leverenz, 185 Or. 262, 278, 202 P2d 517 (1949)
(where one possesses land without knowing where the true boundary lies, but "acknowledge [s] that his
possession is subordinate to any right that may belong to his neighbor," then possession is permissive,
not hostile.
The fact that Claimant openly and exclusively used the property for an extended period of time is not
sufficient to give him title by adverse possession, because his use of that property was not inherently
inconsistent with the rights of the owner. If Claimant has not established that his use of the disputed strip
was under a claim of right, i.e., hostile, then his claim of adverse possession fails
Even if the Claimant's use of the strip can be viewed as sufficiently "open and notorious" to put the owner
on notice of an adverse possession claim, that use may not be significant enough to constitute clear and
convincing evidence that Claimant and his predecessor used the land "intending to be its true owner and
not in subordination to the true owner."
Page 3 of 7 - Exhibit A - Order No. 2007-070
An exception exists if the adverse possession claimant establishes that possession was under an honest
but mistaken belief of ownership, resulting, for example, from a mistake as to the correct location of a
boundary. In that case, a court generally will presume that the use is hostile without inquiring into the
adverse possession claimant's subjective intent.
The attorney's letter indicates that the fence was installed consistent with the mistaken belief that the
nearby roadway system was located along a section line.
On the other hand Claimant has furnished a deed which indicates the disputed property was conveyed by
the adjoining neighbors. This may be considered evidence of the parties' opinions on a property line
dispute, that Claimant was aware of a paramount interest by the holder of record title and that the deeds
express an intent on settling a disputed boundary. Claimant would apparently testify that the
consideration amounted to nuisance value, vis, that the cost of pursuing a quiet title proceeding in court
far outweighed the minimal amount paid for the property. Thus, the deeds would not controvert Claimant's
assertion that he acquired the property by adverse possession.
Based upon these facts the Board may conclude there was sufficient evidence of adverse possession
such that Claimant acquired the property by adverse possession when he acquired his other parcels.
Owner Date of Acquisition - 1965.
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 Charles Clement obtained an interest in the property is 1965.
Restrictive Regulation - Zoning Regulations.
Page 4 of 7 - Exhibit A - Order No. 2007-070
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 they 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 not
identified specific provisions of the county's ordinance but has alleged that current EFU-TRB zoning
regulations have reduced the value of his property by prohibiting his ability to divide the property into
smaller lots.
The property was not zoned at the time of acquisition. Zoning requirements were adopted after the
acquisition date of 1965 and have the effect of restricting the use of the property. 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 the absence
of land use regulations in effect in 1965, that a division of the property could have been permitted at that
time.
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 division or a dwelling resulting in the current zoning being enforced
on the subject property. Claimant has demonstrated that submitting an application for such a siting would
be futile. This Report confirms that such an application for the desired development 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 - $100,000 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 a land division would be approved.
• Claimant's property is not located along any public road so access may be an issue. However,
Claimant would most likely utilize the substantial adjacent property which has previously obtained
a Measure 37 waiver from the County for any development.
• Other public utilities may be available to the property.
• Claimant has not submitted an appraisal or opinions from real estate professionals in an attempt
to show the diminution in value based upon limitations on dividing or siting a building on the
property.
Page 5 of 7 - Exhibit A - Order No. 2007-070
Claimant's alleged reduction in value appears to be based upon the assumption that lot created and siting
a dwelling on the property is 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 Claimant 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 Claimant could have obtained approval of a
subdivision of 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 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, Charles Clement has continuously owned an interest in the property since 1965. 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 6 of 7 - Exhibit A - Order No. 2007-070
Conclusion and Recommendation
The present owner of the property has submitted a claim pursuant to Measure 37 which demonstrates
eligibility for his use of the subject property based on nonexempt land use regulations in effect in 1965,
the date when Claimant 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 waiver of nonexempt County land use regulations which were not in effect until after
1965, 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 desired permit.
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. Claimant 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 7 of 7 - Exhibit A - Order No. 2007-070
-may-pa-r-ce-]_-cf-lan sHu ate in a portion of the
Northeast Quarter Southeast Quarter of Section
Thirteen (13)-,- Township Fifteen (15) South,
Range Twelve (12) East of the Willamette
Meridian, Deschutes County, Oregon, and now to
be more particularly described,--as follows:
Commencing at a 1/2"
pin at --the South 1/4
corner of said Section 13, the initial point;
thence North 00° 04' 04"
Westerly line of the SE-1/4 East along the
- 165.47 feet _t_o__
a 1/214 , pipe at the SW corner --of said-- NW-1/4
SW--1/4 NW-1/4 SE-1/4 and the Point of
Beginning; thence North 000 04' 04" East along
said line - 993.88 feet- -to - a -1" pipe at the
Center of said section; thence- South '89° 52'
-59" East along the Northerly line of said NW-
1/4 SE-1/4 - 179.12 feet to . an existing- fence
line; thence along said existing fence line,
corners -being monumented by 1/2" pipes as
follows: South 036- 44' 16" West - 6.31 feet;
thence South 050 44' 23" West 374.4-5 feet;
thence South 08° 15' 54" East - 14.57 feet;
thence South 050 391- 13" West 27.75 feet;
thence -South 00° 57' 01" East - 352.65 feet;
thence - South 04° 58' 51" West - 113.46 feet;
thence South 550 091 35" East - 66.19 feet;
thence South 00° 21' 48" East
.thence South 00* 21' 48" 71.78 feet;
East - 3.16 feet to
the Southerly line of said NW-1/4 SG*-1/4 NW-
.1/4 SE-1/4; thence North 89° !3V 36" West
along said Southerly line - 187.6§ feet to the
point-of beginning.
EXHIBIT B
x.
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