2007-530-Order No. 2007-092 Recorded 5/16/2007COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKOS U 2007■530
COMMISSIONERS' JOURNAL
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2007-530
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NANCYUBLANKENSHIP,F000NTY CLERKDS 2007.26910
REVI ED
LEGAL COUNSEL
IIIlillllill IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII /III NO FEE
0064768020070026910001 195 05/11/2007 11;28;23 AM
D-N37 Cnt=1 Stn=1 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 William and Mabel * ORDER NO. 2007-092
Kauffman 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, William and Mabel Kauffman made a timely demand for compensation under Measure 37
for a reduction in value to their property at 23011 Oxbow Lane, 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 December 1, 2006, William and Mabel Kauffman filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 23011 Oxbow Lane, 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 February 29, 1968 for William Kauffman and May 18,
1973 for Mabel Kauffman, 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 William and Mabel Kauffman are the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since February 29, 1968 for William Kauffman and May 18, 1973
for Mabel Kauffman. The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2007-092 (05/07/07)
5. The Board concurs with the Administrator's report that the current zoning regulations, if applied
to the subject property, would not permit a partition of the subject property. The current
regulations are land use regulations which are not exempt from Measure 37 claims.
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 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 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 partition 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. Claimant
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 February 29, 1968 for William Kauffman and May 18, 1973 for
Mabel Kauffman. 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 William and Mabel Kauffman.
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. 2007-092 (05/07/07)
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 this ~,A day of May, 2007.
ATTEST:
lA
(yc-'W~ 644-tl
Recording Secretary
PAGE 3 OF 3- ORDER No. 2007-092 (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 - William and Mabel Kauffman (Claimants)
23011 Oxbow Lane, Bend, 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 property consists of one lot with approximately five acres in one tax lot. The current
zoning is MUA-10. The Claimants' desired use is to divide the property into 2 parcels, currently restricted
by County land use regulations. Claimants allege a reduction in value of approximately $100,000 due to
Page 1 of 5 - Exhibit A - Order No. 2007-092
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 Owners - William and Mabel Kauffman are the owners of the property comprising this claim: 17-
13-16, Tax lot 8800 located at 23011 Oxbow Lane, Bend. The subject property was purchased by
William Kauffman by Warranty Deed dated February 29, 1968 recorded at Volume 157, page 527,
Deschutes County Deed Records. Later, in September 1968, the property was part of the Cimarron City
platted subdivision as Lot 3, Block 4. Mabel Kauffman acquired her interest in the subject property by
deed on May 18, 1973, recorded at Volume 195, Page 579 Deschutes County Deed Records. Claimants
submitted copies of deeds, dated May 18, 1973, showing them as grantees. They are listed on County
records as the owners and have owned the property continuously.
Owners Dates of Acquisition - February 29, 1968 for William Kauffman; May 18, 1973 for Mabel
Kauffman.
The dates of acquisition by the current owners are 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 William and Mabel Kauffman obtained an interest in the property is February 29,
1968 for William Kauffman and May 18, 1973 for Mabel Kauffman.
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 not
identified specific provisions of the county's ordinance but have alleged that current MUA-10 zoning
Page 2 of 5 - Exhibit A - Order No. 2007-092
regulations and the provisions of Title 17 as they relate to partitions, have reduced the value of their
property by prohibiting their ability to divide the property into smaller lots.
There were no minimum lot size regulations in effect in 1968. Zoning regulations adopted after the
acquisition date of 1968 would have the effect of restricting the division of the property for William but not
for Mabel. In 1972 the property was zoned A-1 under PL-5 (Effective 11/15/72). This established a
minimum lot size of 5 acres. While Claimant asserts that in the absence of partitioning regulations, which
were not adopted until 1977, the Kaufmans in 1973 would have been able to divide their 5-acre parcel
into two 2 %2 acre parcels. This conclusion is not correct. They would need to satisfy the minimum lot size
requirements before any County approval could be obtained.
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 1968, that a land division 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. 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 such a land division
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 - $100,000 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 demonstrated that a land division would have been approved in 1968, but not in
1973.
• Claimants' property has frontage along Oxbow Lane, a county road, so access seems to not be
an issue.
• Other public utilities are available to the property. Water is available from Cimarron City Water
System. Septic is feasible for another dwelling from soil and neighbor property data.
Page 3 of 5 - Exhibit A - Order No. 2007-092
• 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 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
partition 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:
"(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, William and Mabel Kauffman have continuously owned an interest in the property since 1968
and 1973, respectively. 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
Page 4 of 5 - Exhibit A - Order No. 2007-092
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
February 29, 1968 for William Kauffman and May 18, 1973 for Mabel Kauffman, the dates when
Claimants each 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
February 29, 1968 for William Kauffman and May 18, 1973 for Mabel Kauffman, 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 5 of 5 - Exhibit A - Order No. 2007-092
B
Lot S in Block 4of Cimarron City, Derohutes
County, Oregon.
EXHIBIT B
