2007-528-Order No. 2007-091 Recorded 5/16/2007COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS U BOMB
COMMISSIONERS' JOURNAL 05/16/2007 04;22;03 PM
IIIIIIIIIII IIIIIIIIIIIIIIIIIIII III
2007-528
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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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DE UHCS TES COUNTY OFFICIAL RECORDS nn'J e~nf~
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IEGAL VI D NANCY BLANKENSHIP, COUNTY CLERK COUNSEL III~IIIII III I IIII NO FEE
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05/11/2007 11:28:23 AM
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This is a no fee document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
n~ An Order Approving a Waiver of Land Use
Regulations to Authorize Peter Stearns and Susan * ORDER NO. 2007-091
Clark to Use the Subject Properties as Allowed
When They Acquired the Properties
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, Peter Stearns and Susan Clark made a timely demand for compensation under Measure 37
for a reduction in value to their properties at 21-10-26C on 3100 and 3200; 21-10-26B - 3700; 21-10-35A-99,
21-20-27A-100, 21-10-27D-6500, 21-10-23C-300 and 21-10-3100, LaPine, 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 December 1, 2006, Peter Stearns and Susan Clark filed a Measure 37 claim with the
Community Development Department.
2. The properties are located in LaPine, Oregon and are within Deschutes County.
The County Administrator has recommended that the regulations for the subject properties,
except 21-10-35A-99, that were not already in effect until after July 16, 1965, 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. Claimants first acquired an interest in the property described on the Assessors maps as 21-10-
35A-99 by Bargain and Sale Deed on April 18, 1995. For this reason this parcel has not been
included in the remaining properties identified herein for which a waiver of county land use
regulations dated after 1965 is granted.
PAGE 1 of 3- ORDER No. 2007-091 (05/07/07)
5. The Board concurs with the Administrator's report that Peter Stearns and Susan Clark are the
present owners of the subject properties described in Exhibit "B," having acquired an interest in
them and continuously owned it since July 16, 1965. The County finds and concludes as set
forth below.
6. The Board concurs with the Administrator's report that the current zoning regulations, if applied
to the subject properties, would not permit a subdivision of the subject property. The current
regulations are land use regulations which are not exempt from Measure 37 claims.
7. 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.
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.
9. The Board concurs with the Administrator's report that subdivision 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 properties would be a substantial amount of reduction in fair market value
if the regulations at the time Claimants acquired the properties 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
properties described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37.
Claimants may apply for a use of the subject properties consistent with the substantive land use regulations in
effect at the time they first acquired the properties. That land use shall be permitted if the subject properties
fully comply with all substantive land use regulations in effect on July 16, 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 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(1 1)(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 Peter Stearns and Susan Clark.
Section 3. To the extent that any law, order, deed, agreement or other legally enforceable public or
private requirement provides that the subject properties 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 properties 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).
PAGE 2 of 3- ORDER No. 2007-091 (05/07/07)
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
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 properties for recording
purposes.
DATED this 1.1~1 day of May, 2007.
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-091 (05/07/07)
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 - Peter Stearns and Susan Clark (Claimants)
21-10-26C for 3100, 3200; 21-10-35A for 99; 21-10-27A for 100; 21-
10-23C for 300; 21-10-27D for 6500; 21-10-26B for 3700; 21-10 for 3100 ,
LaPine, OR
Introduction
DATE: May 7, 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 December 1, 2006, when
Measure 37 was in lawful effect. Claimants have paid the filing fee and submitted the County's official
demand form. The properties consist of approximately 560 acres in eight tax lots. The current zoning is
FP, EFU-LA, RR-10. The Claimants' desired use is to subdivide the properties into approximately 112 5-
Page 1 of 5 - Exhibit A - Order No. 2007-091
acre lots, currently restricted by County land use regulations. Claimants allege a reduction in value of
approximately $17,335,920 due to 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 Owners - Peter Stearns and Susan Clark are the owners of the properties comprising this claim:
21-10-26C-3100, 3200; 21-10-35A-99; 21-10-27A-100; 21-10-23D-300; 21-10-27D-6500; 21-10-266-
3700; 21-10-3100 located in LaPine. Claimants submitted a Deschutes County Circuit Court Order of
Distribution, dated July 16, 1965, showing them as grantees. They are listed on County records as the
owners and have owned the properties continuously. The property described in this Order includes all of
the above parcels, except 21-10-35A-99, which was acquired separately by these two claimants.
Owner Date of Acquisition - July 16, 1965 as to parcels 1 through 7 and April 18, 1995 as to parcel 8
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 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 Peter Stearns and Susan Clark obtained an interest in the properties is July 16,
1965. This acquisition date corresponds to parcels 1 through 7, described on the attached exhibit. Parcel
8 was acquired separately by Bargain and Sale Deed by the claimants on April 18, 1995.
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 properties in a way that they otherwise could have used the properties at the
time the properties 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 FP, EFU-LA
zoning regulations have reduced the value of their properties by prohibiting their ability to divide the
properties into smaller lots. There were no minimum lot size regulations in effect in 1965.
Page 2 of 5 - Exhibit A - Order No. 2007-091
Zoning regulations adopted after the acquisition date of 1965 would have the effect of 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 1965, that a land division may have
been permitted at that time. The same regulations adopted after 1965 that would likely prevent the
desired land division were already in place when parcel 8 was acquired. No further analysis has been
furnished by Claimants to support a claim of diminution in value as to Parcel 8 specifically.
Furthermore, that portion of the property now subject to the FP Zoning designation may affect the
configuration of a future subdivision. Certain elements of the FP Zone may be exempt under Measure
37, as they are related to health and safety and are based on federal (FEMA) designations for at-risk
flood areas. The FP Zone restricts the ability to create new lots within areas that are subject to the 100
year flood occurrence.
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 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 - $17,335,920 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 properties resulting from the enforcement of the County's land
use regulation.
• Claimants have asserted that a land division would be approved.
• Claimants' properties are not all located along a dedicated public road so access may be an issue
with respect to future development.
• Other public utilities may be available to the property
• Claimants have submitted an appraisal in an attempt to show the diminution in value based upon
limitations on land division of the property. The appraisal concludes that the property has a value
of $17,335,920, which is the product of 540 acres times $30,957 per acre. However, this does not
factor in the current bare land value of $5,043 per acre or the cost to develop the property in the
Page 3 of 5 - Exhibit A - Order No. 2007-091
desired manner and intensity. This calculation also includes the portion of the property identified
as Parcel 8, which would not be entitled to the same waiver as the other 7 parcels. So the amount
of alleged damages may be significantly less.
Claimants' alleged reduction in value appears to be based upon the assumption that lots created by
subdividing the properties 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 properties, 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 properties 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' properties 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, Peter Stearns and Susan Clark have continuously owned an interest in the properties,
identified as parcels 1 through 7, since 1965. Parcel 8 was acquired in 1995. 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
Page 4 of 5 - Exhibit A - Order No. 2007-091
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 their use of the subject properties (parcels 1 through 7 only) based on nonexempt land use
regulations in effect on July 16, 1965, the date when Claimants first acquired an interest in the properties.
There is evidence in the record that a land division of the subject properties 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
July 16, 1965, to allow the Claimants to use only Parcels 1 through 7 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 5 of 5 - Exhibit A - Order No. 2007-091
Order No. 095601
Page 6
EXHIBIT
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PARCEL 1:
The Northwest Quarter (NW1/4) of Section Thirty-five (35), Township Twenty-one (21)
South, Range Ten (10), East of the Willamette Meridian, Deschutes County, Oregon.
PARCEL 2:
The South Half of the Southwest Quarter (S1/2SW1/4) of Section Twenty-three 43
Township Twenty-one (21) South, Range Ten (10), East of the Willamette MeridiVn,
Deschutes County, Oregon.
PARCEL 3:
The Northwest Quarter of the Northwest Quarter (NW1/4NW1/4); the Southwest Quarter.of
the Northwest Quarter (SW1/4NW1/4) of Section Twenty-six (26), Township Twenty-one (21)
South, Range Ten (10), East of the Willamette Meridian, Deschutes County, Oregon..
PARCEL 4:
The Northwest Quarter of the Southwest Quarter (NW1/4SW1/4) of Section Twenty=six-(26 Township Twenty-one (21) South, Range Ten (10), East of the Willamette Meridian,
Deschutes County, Oregon.
PARCEL 5:
The South Half of the Southwest Quarter (S1/2SW1/4) of Section Twenty-six '(26);
Township Twenty-one (21) South, Range Ten (10), East of the Willamette Meridian,
Deschutes County, Oregon.
PARCEL 6:
The Northeast Quarter of the Southeast Quarter (NE1/4SE1/4) of Section Twenty-seven
(27), Township Twenty-one (21) South, Range Ten (10), East of the Willamette.Meridian,
Deschutes County, Oregon.
PARCEL 7:
The Northeast Quarter of the Northeast Quarter (NEl/4NEl/4); the Southeast *Quarter' of
the Northeast Quarter (SEl/4NE1/4), Section Twenty-seven (27), Township Twenty'-one''(21)
South, Range Ten (10), East of the Willamette Meridian, Deschutes County, Oregon.
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