2007-539-Order No. 2007-104 Recorded 5/23/2007DESCHUTES COUNTY OFFICIAL RECORDS ry007~J39
NANCY BLANKENSHIP, COUNTY CLERK IiJ LLU J 7
COMMISSIONERS' JOURNAL
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2007-539
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DESCHUTES COUNTY OFFICIAL RECORDS ~nO~~~Qp~~~
REV1E ED NANCY BLANKENSHIP, COUNTY CLERK V
LEGAL COLTNSE
IIIIIIIII I) IIIIIIIII 111111111111111111111 IN 11111 NO FEE
00548880200700288SB0090084 05/22/2007 02;53;23 PM
D-M37 Cnt=i Stn" TM
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 Jerry and Gloria Amey
to Use the Subject Property as Allowed When
They Acquired the Property
* ORDER NO. 2007-104
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, Jerry and Gloria Amey made a timely demand for compensation under Measure 37 for a
reduction in value to their property at 14-12, Tax Lot 3401, Terrebonne, 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, Jerry and Gloria Amey filed a Measure 37 claim with the Community
Development Department.
The property is located at Map 14-12, Tax Lot 3401, Terrebonne, 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 March 11, 1988, 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 the Jerry and Gloria Amey Trust is the
present owner of the subject property described in Exhibit "B," and that the trustees first
acquired an interest in it and continuously owned it since March 11, 1988. The County finds
and concludes as set forth below.
PACE 1 of 3- ORDER No. 2007-104 (05/15/07)
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 division of the subject
property in the desired 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 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 divide 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 March 11, 1988. 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 Jerry and Gloria Arney.
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. 2007-104 (05/15/07)
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 day of May, 2007.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Y,
ATTEST:
144vuf
(F~
Recording Secretary
DENNIS R. LUKE, VICE IIZ
T Y ANEY, Co ISSIONER
PAGE 3 of 3- ORDER No. 2007-104 (05/15/07)
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 - Jerry and Gloria Arney (Claimant)
14-12, Tax Lot 3401, Terrebonne. OR
Introduction
DATE: May 15, 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 approximately 80 acres in one tax lot (NOTE: Tax Lot 3401, in
conjunction with Tax Lot 3400, is considered to be a single, legal lot of record pursuant to the decision in
file no. LR-05-12). The current zoning is EFU-LB, SMIA. The Claimants' desired use is to divide the
Page 1 of 5 - Exhibit A - Order No. 2007-104
property into 80-acre parcels and place a house on each parcel, currently restricted by County land use
regulations. Claimants allege a reduction in value of approximately $122, 500 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 Owners - Jerry and Gloria Arney Trust is the owner of the property comprising this claim: 14-12-
00. Tax Lot 3401, located off Lower Bridge Rd., Terrebonne, and described in the attached exhibit. The
claimant, Jerry and Gloria Arney acquired full title to the subject property by warranty deed on March 11,
1988. The Arneys conveyed the subject property to the Jerry and Gloria Arney Trust by Bargain and Sale
Deed on August 5, 1996. This trust is a revocable trust which the Arneys as trustees may revoke or
amend as to the subject property during their lifetimes. Both individuals signed the claim form in this
case. The Trust is listed on County records as the owner and has owned the property continuously. Since
the claimants are trustees of the current owner with full power to revoke the trust (during their lifetimes),
the claimants are treated as the current owner for Measure 37 purposes.
Owner Date of Acquisition -March 11, 1988
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 Jerry and Gloria Arney obtained an interest in the property is March 11, 1988.
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-LB and
Page 2 of 5 - Exhibit A - Order No. 2007-104
SMIA 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-80 under PL-15 (Effective 1981).
Zoning regulations adopted after the acquisition date of 1988 and may have the effect of further
restricting the development 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 1988, 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 owner's use be "enforced" against
them. Claimants have not have applied for a land division 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 division 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 - $122, 500 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 not located along a public road, however, Claimants own adjacent land
which could be used to furnish access to Lower Bridge Way. So access would need to be
addressed as part of a development application.
• Other public utilities may be available to the property.
• Claimants have not submitted an appraisal. An opinion from a real estate professional has been
submitted 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
dividing 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
Page 3 of 5 - Exhibit A - Order No. 2007-104
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:
"(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, Jerry and Gloria Arney have both as individuals and through their revocable trust
continuously owned an interest in the property since 1988. Claimants who receive 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 their use of the subject property based on nonexempt land use regulations in effect on March
11, 1988, 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 may be feasible.
Page 4 of 5 - Exhibit A - Order No. 2007-104
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
March 11, 1988, 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. 2007-104
The West One-half of the Northwest One-quarter (W %i NW 1/4) of Section Twenty-
Nine (29), Township Fourteen (14) South, Range Twelve (12), East of the
Willamette Meridian, Deschutes County, Oregon.
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