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2007-497-Order No. 2007-085 Recorded 5/3/2007DESCHUTES COUNTY OFFICIAL RECORDS yJ 2007■497 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 0510312007 09:45:55 AM 11111111111111111111111111111 2007-497 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 DESCHUTES COUNTY CLERK DS 200~~~M PG-AL IE NANCY {J L C UNSEL 1111111111 III IIIIIII IIIIIIII 1111111111111111111111111111 NO FEE 005459472007002535501101i9 05/OZ/Z00103:35:34 PM D-M37 Cntm1 Stn=7 BN This is a no foe document i BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Regulations to Authorize Glenn and Bonnie * ORDER NO. 2007-085 \ Bartnik 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, Glenn and Bonnie Bartnik made a timely demand for compensation under Measure 37 for a reduction in value to their property at 26350 Horsell Road, 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 ownerss 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 30, 2006, Glenn and Bonnie Bartnik filed a Measure 37 claim with the Community Development Department. 2. The property is located at 26350 Horsell Road, 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 April 1, 1975, 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 Glenn and Bonnie Bartnik are the present owners of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since April 1, 1975. The County finds and concludes as set forth below. 5. The Board concurs with the Administrator's report that the current zoning regulations, if applied to the subject property, would not permit a subdivision of the subject property in the desired PAGE 1 OF 3- ORDER No. 2007-085 (04/30/07) location. 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' 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 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 April 1, 1975. 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 Glenn and Bonnie Bartnik. 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 TO STATE REGULATIONS WHICH WOULD OTHERWISE PRECLUDE THE PROPOSED LAND USE. THIS WAIVER APPLIES ONLY TO THE LOCAL REGULATIONS SPECIFIED ABOVE. DESCHUTES PACE 2 of 3- ORDER No. 2007-085 (04/30/07) 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 April, 2007. ATTEST: Recording Secretary BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON CH L IVI. AL , CH IR D E, VICE HAIR TAMMY BANEY, C MISSIONER PAGE 3 of 3- ORDER No. 2007-085 (04/30/07) 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 From: David Kanner, County Administrator RE: Measure 37 Claim - Glenn and Bonnie Bartnik (Claimants) 26350 Horsell Road, Bend. OR Introduction DATE: April 30, 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 30, 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 approximately 80 acres in three tax lots. The current zoning is EFU-AL. The Claimants' desired use is to subdivide the property into sixteen lots, currently restricted by County land use regulations. Claimants allege a reduction in value of approximately $1,785,649 due to Page 1 of 5 - Exhibit A - Order No. 2007-085 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 - Glenn and Bonnie Bartnik are the owners of the property comprising this claim: 17-14- 23, Tax lots 100, 101 and 17-14-14, Tax lot 1200 located at 26350 Horsell Road, Bend. Claimants submitted a copy of a lease, dated April 1, 1975, showing them as lessees. The lease contained an option to purchase. A Memorandum of Contract dated July 16, 1976, recorded at Volume 234, page 464 Deschutes County Deed Records followed. They are listed on County records as the owners and have owned the property continuously. Owner Date of Acquisition - April 1, 1975 The date of acquisition by the current owners 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 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 Glenn and Bonnie Bartnik obtained an interest in the property is April 1, 1975. Restrictive Regulation - Zoning Regulations. Under the terms of the ordinance, the claimants must identify County land use regulations that prevent the claimants 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 not identified specific provisions of the county's ordinance but have alleged that current EFU zoning regulations have reduced the value of their property by prohibiting their ability to divide the property into smaller lots. At the time of acquisition the property was zoned A-1 under PL-5 (Effective 11/15/72). There was a five acre minimum lot size regulation in effect in 1975 in A-1 zoning, Deschutes County Ordinance No. PL-5. Page 2 of 5 - Exhibit A - Order No. 2007-085 Additional regulations were adopted after the acquisition date of 1975 and would have the effect of further restricting the subdivision 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 Claimants first acquired an interest in the property, it appears that in theory, based upon regulations in effect in 1975, that a subdivision 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 owners' 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 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 - $1,785,648 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 Horsell Road 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 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 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. Page 3 of 5 - Exhibit A - Order No. 2007-085 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, Glenn and Bonnie Bartnik have continuously owned an interest in the property since 1975. 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 April 1, 1975, 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 April 1, 1975, 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 Page 4 of 5 - Exhibit A - Order No. 2007-085 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. 2007-085 LEGAL DESCRIPTION ADJUS TAR L07 100 17 14 A PORTION OF THE NEkNEk OF SECTION 23 TOGETHER WITH A PORTION OF. THE SE4SEk OF SECTION 14 ALL IN TOWNSHIP 17 S. RANGE 14 E.W.M., DESCHUTES COUNTY, OREGON AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE BRASS CAP WHICH MARKS THE SOUTHEAST CORNER OF SAID SECTION 14; THENCE N 00034123" W 25.04 FEET UPON THE EAST LINE OF SAID SECTION 14 TO AN ORANGE PLASTIC CAP BY LS2253; THENCE N 87°23'54 W 1291.89 FEET TO AN ORANGE PLASTIC CAP BY LS2253; THENCE S 00001'45" E 1304.55 FEET TO AN ORANGE PLASTIC CAP BY LS2253; THENCE S 47034'15" E 33.82 FEET TO AN ORANGE PLASTIC CAP BY LS2253; THENCE S 02°34'15 W 10.19 FEET TO THE SOUTH LINE OF SAID NE4NEk OF SECTION 23; THENCE UPON SAID SOUTH LINE S 87°27'40" E 1268.37 FEET TO THE N1116 CORNER BETWEEN SECTIONS 23 6 24; THENCE N 00°03'54" W 1310.06 FEET UPON THE EAST LINE OF SAID SECTION 23 TO THE POINT OF BEGINNING AND TERMINUS OF THIS DESCRIPTION. CONTAINING 39.58 ACRES MORE OR LESS. EXHIBIT B LEGAL DESCRIPTION A PORTION OF THE NEOE'k OF SECTION 23 (TAX LOT 100) TO ATTACH TO THE SE~SSE:4 OF SECTION 14 (TAX-LOT 1200) ALL IN TOWNSHIP 17 S. RANGE 14 E.W.M., DESCHUTES COUNTY, OREGON BEGINNING AT THE ORANGE PLASTIC CAP BY LS2253 THAT MARKS THE NW CORNER OF SAID NEY.NE:4 SECTION 23; THENCE S 00°01'45" E 1311.47 FEET TO THE SW CORNER OF SAID NEI.NEk; THENCE UPON THE SOUTH LINE OF SAID NE&tNE&t S 87°27'40" E 49.54 FEET; THENCE N 02°34'15" E 10.19 FEET TO AN ORANGE PLASTIC CAP BY LS2253; THENCE N 47°34'15" W 33.82 FEET TO AN ORANGE PLASTIC CAP BY LS2253; THENCE N 00°01'45" W 1279.52 FEET; THENCE N 87°23'54" W 25.03 FEET TO THE POINT OF BEGINNING AND TERMINUS OF THIS DESCRIPTION. EXHIBIT B - Z 9 M` Y LEGAL. DES ~ ADJUS TAX_ LOT 12.0.0. MAP -'I- 14 i 4 A PORTION OF THE SEkSEk OF SECTION 14, TOWNSHIP 17 S. RANGE 11 E.W.M., TOGETHER WITH A PORTION OF THE NEkNE&S OF SECTION 23, TOWNSHIP 17S. RANGE 14 E.W.M., DESCHUTES COUNTY, OREGON BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE BRASS CAP WHICH MARKS THE SOUTHEAST CORNER OF SAID SECTION 14; THENCE N 00°34'23" W 25.04 FEET UPON THE EAST LINE OF SAID SECTION 14 TO AN ORANGE PLASTIC CAP BY LS2253 BEING THE POINT OF BEGINNING; THENCE CONTINUING UPON SAID EAST LINE N 00034.23" W 1285.22 FEET TO THE SOUTH 1/16 CORNER BETWEEN SECTIONS 14 & 13; THENCE N 87°20105" W 1313.02 FEET UPON THE NORTH LINE OF THE SE44SE74 OF SAID SECTION 14 TO THE SE 1/16 CORNER OF SAID SECTION; THENCE S 00°23'22" E 1311.50 FEET UPON THE WEST LINE OF SAID SE4(SE;4 TO AN ORANGE PLASTIC CAP BY LS2253 BEING THE EAST 1/16 CORNER BETWEEN SAID SECTIONS 14 6 23; THENCE S 00°01'45 E 1311.47 UPON THE WEST LINE OF THE NE14NEk OF SAID SECTION 23 TO THE NE 1/16 CORNER OF SAID SECTION 23; THENCE S 87°27'40" E 49.54 UPON THE SOUTH LINE OF SAID NE:kNEk; THENCE N 02°34'15" E 10.19 FEET TO AN ORANGE PLASTIC CAP BY LS2253; THENCE N 47°34'15" W 33.82 FEET TO AN ORANGE PLASTIC CAP BY LS2253; THENCE N 00°01145" W 1304.55 FEET TO AN ORANGE PLASTIC CAP BY LS2253; THENCE S 87°23'54" E 1291.89 FEET TO THE POINT OF BEGINNING AND TERMINUS OF THIS DESCRIPTION. CONTAINING 39.54 ACRES MORE OR LESS. EXHIBIT B -3