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2007-467-Order No. 2007-078 Recorded 4/27/2007COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKDS Q 200746 COMMISSIONERS' JOURNAL 111111111 loll IN I,.,.,.,...,, 0412712007 09:27:55 AM 2007-467 Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page REV' D EGAL OUNSEL 741 COUNTY NANCYUBLANKENSHIP,F000NTY CLERKDS 001014056 NO FEE 005445 2200700240660080080" ' 0 04/26/2007 03:10:43 PM D-M3T Cntsi Stn=4 TM This is a no fee document BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESC1 UTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Darrell and Judith Barnes to Use the Subject Property as Allowed When They Acquired the Property * * ORDER NO. 2007-078 * * 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, Darrell and Judith Barnes made a timely demand for compensation under Measure 37 for a reduction in value to their property at 24185 East Highway 20, Bend, 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 November 27, 2006, Darrell and Judith Barnes filed a Measure 37 claim with the Community Development Department. 2. The property is located at 24185 East Highway 20, Bend, 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 May 13, 1997, 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 Darrell and Judith Barnes are the present owners of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since May 13, 1997. The County finds and concludes as set forth below. PAGE 1 of 3- ORDER No. 2007-078 (04/23/07) 5. The Board concurs with the Administrator's report that the current minimum lot size regulations, if applied to the subject property, would not permit a three-lot partition 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 three-lot partition 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 Claimants' 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 subdivision 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 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. Claimants 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 May 13, 1997. 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 Darrell and Judith Barnes. 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. 2007-078 (04/23/07) 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 thisc;~&-day of April, 2007. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON MICH L ~M.ALY' H ATTEST: D~EKNIS R. LUKE, VICE Recording Secretary TAMMY 19A2QEY. COMMISSIONER PAGE 3 of 3- ORDER No. 2007-078 (04/23/07) 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: April 23, 2007 From: David Kanner, County Administrator RE: Measure 37 Claim - Darrell and Judith Barnes (Claimants) 24185 East Highway 20, 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 November 27, 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 lot with approximately 60 acres in one tax lot. The current zoning is EFU-AL. The Claimants' desired use is to partition the property into three parcels, currently restricted by County land use regulations. Claimants allege a reduction in value of approximately Page 1 of 4 - Exhibit A - Order No. 2007-078 $189,000 due to the inability to divide as desired. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owner - Darrell and Judith Barnes are the owners of the property comprising this claim: 18-13- 24, Tax lot 700 located at 24185 East Highway 20, Bend. Claimants submitted a copy of a trust deed, dated May 13, 1997, showing them as grantees and following a Deschutes County Land Sale Auction. (See: Vol. 450, Page 1015 of the Records of the County Clerk.) They are listed on County records as the owners and have owned the property continuously. Owner Date of Acquisition - May 13, 1997 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 owners. If a waiver is granted as to County land use regulations which were adopted after the current owners' 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 Darrell and Judith Barnes obtained an interest in the property is May 13, 1997. Restrictive Regulation - Zoning 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 the property was acquired, and thus reduce the value of the claimants' property. The Claimants have identified DCC 18.16.055 and 18.16.60 [sic] specific provisions of the county's ordinance and have alleged that current EFU-AL zoning regulations have reduced the value of their property by prohibiting their ability to divide the property. At the time of acquisition, the property was zoned EFU-AL/LM under Title 18 of the Deschutes County Code. The Court of Appeals' decision in Dorvinen v. Crook County and some County regulations adopted after the acquisition date of 1997 (See: Ordinance No. 2002-016) would have the effect of restricting the division of the property. While the county would need to evaluate any land use application Page 2 of 4 - Exhibit A - Order No. 2007-078 that may be submitted pursuant to regulations in effect at the time Claimants first acquired an interest in the property, it appears that in theory, based upon regulations in effect in 1997, that a land division may 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 owners' use be "enforced" against them. Claimants have not have applied for a partition resulting in the current zoning being enforced on the subject property. Claimants have demonstrated that submitting an application for a three-lot partition would be futile. This Report confirms that such an application for the desired partition 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 - $189,000 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. • Claimants' property is located along East Highway 20 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. • Claimants' alleged reduction in value appears to be based upon the assumption that lots created by partitioning 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 owners. Assuming an owner, having obtained the necessary "waivers" from the County and the State, could divide 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 division 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: Page 3 of 4 - Exhibit A - Order No. 2007-078 "(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, Darrell and Judith Barnes have continuously owned an interest in the property since 1997. 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 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 owners of the property 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 May 13, 1997, the date when Claimants first acquired an interest in the property. 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 May 13, 1997, 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 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 4 of 4 - Exhibit A - Order No. 2007-078 EXHIBIT B The Southwest quarter of the Southwest quarter (SW'/4SW'/a) and all of the Southeast quarter of the Southwest quarter (SE'/a SW'/a) lying West of the Central Oregon State Highway, in Section Twenty-four (24), Township Eighteen (18) South, Range Thirteen (13) East of the Willamette Meridian, in Deschutes County, Oregon. :.EXGEPTING;THEREFROM the Southerly 860.00 feet of the Westerly 891.46 feet of [lip theast quarter of the-Southwest'quaitei (SE'/a SW'/a); EXHIBIT B