2007-541-Order No. 2007-116 Recorded 5/23/2007jESCHUTES COUNTY OFFICIAL RECORDS ~J 1001'541
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL
11,1111, 11, 111
05 /23/2007
0446.19
[A
2007-541
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
COUNTY OFFICIAL
REVIWSEL NANCYUBLANKENSHIP, COUNTY CLERKDS 2007.202
EGALC1111111111111111111111111111111111111111111111111 NO FEE
00 '30288200700283420110110 05/23/2007 04;15;20 PM
D-M37 Cnt=1 Stn=3 PO
This is a no fee document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESC14UTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Halligan Ranch, Inc. to * ORDER NO. 2007-116
Use the Subject Property as Allowed When It
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, Donald Halligan and Halligan Ranch, Inc. made a timely demand for compensation under
Measure 37 for a reduction in value to their property at 9020 South Highway 97, Redmond, 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 4, 2006, Donald Halligan and Halligan Ranch, Inc. filed a Measure 37 claim with
the Community Development Department.
2. The property is located at 9020 South Highway 97, Redmond, 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 October 15, 1986, 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 Halligan Ranch, Inc. is the present
owners of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since October 15, 1986. As Donald Halligan's interest is in the
corporation and not the property per se, he has no entitlement to a Measure 37 waiver.
However, he is a family member of the current owner with an acquisition date of September 13,
1974 The County finds and concludes as set forth below.
PAGE 1 of 3- ORDER No. 2007-116 (05/21/07)
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 subdivision 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 subdivision 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 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. Claimant,
Halligan Ranch, Inc. may apply for a use of the subject property consistent with the substantive land use
regulations in effect at the time it 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 October 15, 1986. If a reviewing
court should decide that, despite his being merely a shareholder of the corporation, Donald Halligan has an
interest in property as that term is interpreted under Measure 37, then his acquisition date is September 13, 1974,
he has had a continuous interest in the property since that date and may apply for a use of the property consistent
with substantive land use regulations in effect at the time he first acquired an interest in the property. 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 Donald Halligan (if he is determined to be an owner of the property) and Halligan
Ranch, Inc.
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.
PAGE 2 of 3- ORDER No. 2007-116 (05/21/07)
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
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.
ATTEST:
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-116 (05/21/07)
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 DATE: May 21, 2007
From: David Kanner, County Administrator
RE: Measure 37 Claim - Donald Halligan and Halligan Ranch, Inc.
(Claimants)
9020 South Highway 97, Redmond, 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 December 4, 2006, when
Measure 37 was in lawful effect. Claimants have not paid the filing fee but have submitted the County's
official demand form. The property consists of approximately 225 acres in two tax lots. The current
zoning is EFU-AL. The Claimants' desired use is to subdivide the property into 5 lots, currently restricted
Page 1 of 7 - Exhibit A - Order No. 2007-011
by County land use regulations. Claimants allege a reduction in value of approximately $380,400 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 Owner - Halligan Ranch, Inc. is the owner of the properties comprising this claim: 16-12-13, Tax
lot 101 and 16-13, TL 700 located at 9020 South Highway 97, Redmond. Claimants submitted a copy of a
bargain and sale deed, dated November 17, 1983, but actually signed by Reginald, Darrell and Donald
Halligan, respectively, on October 7, 8 and 15, 1986, showing Halligan Ranch, Inc. as grantee. The
deed was recorded at 0134-2830 of the County Clerk's records on October 22, 1986. The corporation is
listed on County records as the current owner and has owned the property continuously since 1986.
According to records of the Secretary of State's office, Donald Halligan is listed as the president of the
corporation.
Donald Halligan, first acquired an interest in the subject property by a September 13, 1974 Contract of
Sale with him and Reginald Halligan as purchasers.
Owner Date of Acquisition - October 15, 1986 for Halligan Ranch, Inc.
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 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 Halligan Ranch, Inc. obtained an interest in the property is October 15, 1986.
As to the individual interest of Donald Halligan, it appears he is a shareholder in the Halligan Ranch, Inc.
As a shareholder his interest is in the corporation, not in the real property held by the corporation. The
order will reflect this interpretation, but recognize that if a reviewing court should determine that a
shareholder of a corporate owner has an ownership in the corporate property, then an earlier acquistion
date may be approved.
Page 2 of 7 - Exhibit A - Order No. 2007-011
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 by the owner or a family member of the owner, and thus reduce the value of
the claimants' property. The Claimants have identified specific provisions of the county's ordinance,
including alleging that current EFU-AL zoning regulations have reduced the value of their property by
prohibiting their ability to divide the property into smaller lots. In 1974 the property was zoned A-1 under
PL-5; in 1986 the property was zoned EFU-40 under PL-15.
Additional zoning regulations were adopted after the acquisition date of 1974 and 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 1974, that a land
division may have been permitted at that time.
With respect to property acquired in 1974 it would have been subject to the County's Comprehensive
Plan designation as "intensive agriculture," under PL-2 as Rural Subdivision and under PL-5 as A-1
exclusive farm use. These designations would have allowed 5-acre minimum lot sizes with certain
minimum lot dimensions, street frontages and setback requirements. PL-5 did not permit development of
a Planned Development for rural subdivisions, as it did for urban, suburban and rural recreational
subdivisions. Besides agricultural uses, this zone would have permitted uses allowed in the R-1 zone,
which included single family dwellings. Thus, the requirements generally referred to above for each lot
would apply.
The provisions of PL-5 also contained a provision on interpretation of the ordinance, which reads:
"Section 2.060 Interpretation. If the conditions imposed by a provision of this ordinance are less restrictive
than comparable conditions imposed by another provision of this ordinance or of any other County or
State regulation, the provision which is more restrictive shall govern." This provision has been interpreted
by the Deschutes County Circuit Court in Case No.05CV-0546ST, as specifically incorporating any other
applicable more restrictive state or county regulations. Thus, the County must consider any more
restrictive state regulations. The 1973 version of ORS 215.213 generally made a distinction between
farm-related dwellings and nonfarm dwellings, and set approval criteria for each type of dwelling. County
Page 3 of 7 - Exhibit A - Order No. 2007-011
code did not make this distinction, nor did it apply the statutory approval criteria.' As this provision would
have first applied under PL-5 in 1973, it would have been in place at the time Claimants acquired their
pieces. However, if Claimants would have applied for a rural subdivision of their property in 1974, then
according to the Circuit Court's interpretation of Section 2.060 in addition to the lot size and configuration
limitations, the County would have also applied State law and the standards associated with farm versus
nonfarm dwellings. The 1973 version of ORS 215.263 deals with land divisions in EFU zones and
requires county review of all land divisions creating parcels less than 10 acres in size.2 Under PL-2
(1970) the county reviewed all such subdivisions, but not partitions. It was not until the County adopted
PL-7 (1/5/77) that the county officially asserted review authority over all partitions. Additionally, ORS
215.263(3) required the county to make findings on land divisions in EFU zones against the legislative
intent set forth in ORS 215.243(2) and Section 1(2) of 1973 Oregon Laws c. 503 (i.e., preserving the
maximum amount of agricultural land in order to protect the agricultural economy ...).3 County code did
not contain this review requirement expressly, but only by the reference contained in DCC 2.060. For
purposes of this claim properties acquired after 1973 are subject to such State regulations, as
incorporated by reference in County Code.
' 215.213(1)(e); farm related dwellings: "The dwellings and other buildings customarily provided in conjunction with farm use,
referred to in paragraph (a) of subsection (2) of ORS 215.203." ORS 215.213(2)(a) allowed the county governing body to premit the
establishment of "comercial activies that are in conjunction with farm use."
215.213(3); nonfarm dwellings: "Single-family residential dwellings, not provided in conjunction with farm use, may be established,
subject to the approval of governing body of the county, in any area zoned under ORS 215.010 to 215.190 and 215.402 to 215.422
for farm use upon a finding that each such proposed dwelling:
(a) Is compatible with farm uses described in subsection (2) of ORS 215.203 and is consistent with the intent and
purposes set forth in ORS 215.243; and,
(b) Does not interfere seriously with accepted farming practices as defined in paragraph (c) of subsection (2) of ORS
215.203 on adjacent lands devoted to farm use; and
(c) Does not materially alter the stability of the overall land use pattern of the area; and
(d) Is situated on generally unsuitable land for the production of farm crops and livestock, considering the terrain, adverse
soil or land conditions, drainage and flooding, vegetation, location and size of the tract; and
(e)Complies with such other conditions as the governing body of the county considers necessary." 1973 Or Laws c 503
2 Land divisions:
215.263(2): "Any proposed division of land included within an exclusive farm use zone resulting in the creation of one or more
parcels of land less than 10 acres in size shall be reviewed and approved or disapproved by the governing body of the county within
which such land is situated."
215.263(3): "If the governing body of a county initiates review as provided in subsection (1) or (2) of this section, it shall not approve
any proposed division of land unless it finds that the proposed division of land is in conformity with the legislative intent set forth in
Section(1) of this Chapter.
3 Agricultural land use policy:
1973 Oregon Laws Chapter 503 §1(2) and the current ORS 215.243(2)reads: "The preservation of a maximum amount of the limited
supply of agricultural land is necessary to the conservation of the state's economic resources and the preservation of such land in
large blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and
nutritious food for the people of this state and nation."
Page 4 of 7 - Exhibit A - Order No. 2007-011
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 - $380,400 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 so access may 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. A
letter in the file from the daughter of the claimant discusses why she believes the property value
has been diminished.
• Claimant's 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 Claimant's acquisition date, and the resulting lots are fully marketable
and useable by future owners, then the value of Claimant's 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,
Page 5 of 7 - Exhibit A - Order No. 2007-011
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, Halligan Ranch, Inc. has continuously owned an interest in the property since 1986. 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 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 October
15, 1986 as to the Halligan Ranch, Inc., the date when this Claimant first acquired an interest in the
property. With respect to Donald Halligan his interest may have arisen on September 13, 1974, the date
he entered into a purchase contract. He evidently conveyed his interest in this property along with his
brothers to the Halligan Ranch, Inc. As a shareholder of the corporation, he does not have an interest in
real property held by the corporation. If a reviewing court should determine that he does have an interest
in the corporate property, then his acquisition date would be September 13, 1974.
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
October 15, 1986, 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 6 of 7 - Exhibit A - Order No. 2007-011
37 are advised to contact the State Department of Land Conservation and Development and the
Department of Administrative Services.
Page 7 of 7 - Exhibit A - Order No. 2007-011
PARCEL 1:
That portion of the Northeast Quarter of the Northeast Quarter (NE1/4NE1/4) of Section
Thirteen (13), Township Sixteen (16) South, Range Twelve (12), East of the Willamette
Meridian, Deschutes County, Oregon, lying Easterly of the Oregon Trunk Railway right of
way, and the Southeast Quarter of the Northeast Quarter (SE1/4NE1/4) of Section
Thirteen (13), Township Sixteen (16) South, Range Twelve (12), East of the Willamette
Meridian, Deschutes County, Oregon,
PARCEL 2:
That portion of the Northwest Quarter of the Northeast Quarter (NW1/4NE1/4) of Section
Thirteen (13), Township Sixteen (16) South, Range Twelve (12), East of the Willamette
Meridian, Deschutes County, Oregon, lying Easterly of the Oregon Trunk Railway right of
way.
PARCEL 3:
The Southwest Quarter (SW114) of Section Eighteen (18), Township Sixteen (16) South,
Range Thirteen (13), East of the Willamette Meridian-, Deschutes County, Oregon,
EXHIBIT B