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2007-544-Order No. 2007-113 Recorded 5/23/2007DESCHUTES COUNTY OFFICIAL RECORDS CJ 1007.544 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 05/23/2007 04;46 41 PM .1.. 1.1. 1101.1...■ 1.1..1.. 2007-544 I 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 OFFICIAL RECORDS 2007-2934 R NANCY BLANKENSHIP, COUNTY CLERK LEGEVIEW ALCOUNSEL illilIIIII1111111111IllIIIllIIIIII111111111111III NO FEE 00 50281200700293450100101 05/23/2007 04:15:50 PM D-M37 Cnts1 Stn:3 PO This is s no fee document I 0 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON * An Order Approving a Waiver of Land Use Regulations to Authorize Richard Robinson, Jr., * ORDER NO. 2007-113 and Dorothy Robinson-Foldes 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, Richard Robinson, Jr., and Dorothy Robinson-Foldes made a timely demand for compensation under Measure 37 for a reduction in value to their property in Tumalo, 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, Richard Robinson, Jr., and Dorothy Robinson-Foldes filed a Measure 37 claim with the Community Development Department. 2. The property is located at Map 16-12-07, TL 300,301 and 302 in Tumalo, 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 11, 1977, 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 Richard Robinson, Jr., and Dorothy Robinson-Foldes are the present owners of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since April 11, 1977. The County finds and concludes as set forth below. PAGE 1 of 3- ORDER No. 2007-113 (05/21/07) 5. The Board concurs with the Administrator's report that the current zoning regulations, if applied to the subject property. 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. 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 11, 1977. 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 Richard Robinson, Jr., and Dorothy Robinson- Foldes. 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. 2007-113 (05/21/07) 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 "t day of May, 2007. ATTEST: Recording Secretary BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON MIC AEL M. DALY, AIR NNIS R. LUKE, VICE C IR TAMM EY, COM SSIONER PAGE 3 of 3- ORDER No. 2007-113 (05/21/07) 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 DATE: May 21, 2007 From: David Kanner, County Administrator RE: Measure 37 Claim - Richard Robinson, Jr., and Dorothy Robinson- Foldes (Claimants) Map 16-12-07, TLs 300, 301 and 302, Tumalo 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 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 22 acres in three tax lots. The current zoning is EFU-TRB. The Claimants' desired use is to divide the property in either one-acre or 5-acre parcels, Page 1 of 6 - Exhibit A - Order No. 2007-113 currently restricted by County land use regulations. Claimants allege a reduction in value of approximately $600,000 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 - Richard Robinson, Jr., and Dorothy Robinson-Foldes are the owners of the property comprising this claim: 16-12-07, Tax lots 300, 301 and 302 located in Tumalo. Claimants submitted a copy of a Contract of Sale dated April 11, 1977, showing them as purchasers, recorded at Volume 248, Page 577 Deschutes County Deed Records. A Warranty Deed dated March 18, 1992 conveyed title to claimants. They are listed on County records as the owners and have owned the property continuously. Owner Date of Acquisition -April 11, 1977 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 owners. 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 Richard Robinson, Jr., and Dorothy Robinson-Foldes obtained an interest in the property is April 11, 1977. 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 regulations have reduced the value of their property by prohibiting their ability to divide the property into smaller lots. In 1977 the property would have been subject to the county comprehensive plan, the subdivision ordinance (PL-2), the zoning ordinance (PL-5) and the partition ordinance (PL-7). These would have restricted the division of the property to 5-acre lots under the A-1 zone associated with PL-5. Page 2 of 6 - Exhibit A - Order No. 2007-113 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 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 1977, then under according to the Circuit Court's interpretation fo 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 t 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. Page 3 of 6 - Exhibit A - Order No. 2007-113 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. Further requirements were adopted after the acquisition date of 1977 and 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 1977, that a partition of tax lot 300 might have been permitted at that time. Tax lots 301 and 302 at 5.2 and 6.4 acres, respectively, might not have been eligible for further division under the A-1 zone or State laws designed to preserve agricultural land that the County had incoporated in its code by reference. 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, however, applied for a partition under the A-1 zone to create the three subject parcels. (See: County file no. MP-79-77) Claimants have not demonstrated that submitting an application for the desired 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 - $600,000 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 asserted that a land division would be approved. • Claimants' property is located along Barr Road, so access may not be an issue. 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 6 - Exhibit A - Order No. 2007-113 • 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. 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, Richard Robinson, Jr., and Dorothy Robinson-Foldes have continuously owned an interest in the property since 1977. 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 11, Page 5 of 6 - Exhibit A - Order No. 2007-113 1977, 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 11, 1977, 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 6 of 6 - Exhibit A - Order No. 2007-113 That portion of the West Half of the Northeast Quarter (ONFx) of Section Seven (7), Township Sixteen l16) South, Range Twelve (12) East of the Willamette Meridian, lying East of Lower Bridge Market Rd., Deschutes County, Oregon. EXHIBIT B