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2007-545-Order No. 2007-114 Recorded 5/23/2007DESCHUTES COUNTY OFFICIAL RECORDS ~o~~~~~ NANCY BLANKENSHIP, COUNTY CLERK CJ J L ry COMMISSIONERS' JOURNAL „1„1„ ,1 „l 05/23/2007 04:46:45 PM 2007-545 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 T IE\ NANCYUBLANKENSHIP,F000NTY CLERKDS 2007-9346 ---A LEGAL COUNSEL 111jill 111111111111 1111111111111 NO FEE 00 002822007002x3460090083 05/23/2007 04;17;21 PM D-M37 Cntml Stn=3 PO This is a no fee document BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Approving a Waiver of Land Use Qt\ Regulations to Authorize Kathleen and L. Keith * ORDER NO. 2007-114 Shirley 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, Kathleen and L. Keith Shirley made a timely demand for compensation under Measure 37 for a reduction in value to their property at 16590 Serpentine Drive, La Pine, 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, Kathleen and L. Keith Shirley filed a Measure 37 claim with the Community Development Department. 2. The property is located at 16590 Serpentine Drive, La Pine, 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 25, 1978 for Kathleen Shirley and June 10, 1993 for L. Keith Shirley II, 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 Kathleen and L. Keith Shirley are the present owners of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since October 25, 1978 (Kathleen) and June 10, 1993 (L. Keith). The County finds and concludes as set forth below. PAGE 1 of 3- ORDER No. 2007-114 (05/21/07) 5. The Board concurs with the Administrator's report that the current zoning regulations, if applied to the subject property, would not permit a 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. 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 October 25, 1978, as to Kathleen Shirley and June 10, 1993 as to L. Keith Shirley. 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 Kathleen and L. Keith Shirley. 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, PAGE 2 of 3- ORDER No. 2007-114 (05/21/07) 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. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY.-OREGON Y, ATTEST: R. 096 i i Recording Secretary TAMMY Y, CO ISSIONER PACE 3 of 3- ORDER No. 2007-114 (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 From: David Kanner, County Administrator RE: Measure 37 Claim - Kathleen and L. Keith Shirley (Claimants) 16590 Serpentine Drive. La Pine. OR Introduction DATE: May 21, 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 9.1 acres in one tax lot. The current zoning is RR10. The Claimants' desired use is to subdivide the property into 9 lots, currently restricted by County land use regulations. Claimants allege a reduction in value of approximately $733,000 due to the Page 1 of 5 - Exhibit A - Order No. 2007-114 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 - Kathleen and L. Keith Shirley are the owners of the property comprising this claim: 21- 10-23B, Tax lot 302 located at 16590 Serpentine Drive, La Pine. Claimants submitted a copy of a deed, dated October 25, 1978, showing Kathleen Packard, nee Shirley as grantee recorded at Volume 286, Page 182 Deschutes County Deed Records. On June 10, 1993 Kathleen J. Packard conveyed the subject property to Kathleen J. Shirley and L. Keith Shirley II, recorded at Volume 301, Page 477 Deschutes County Official Records. They are listed on County records as the owners and have owned the property continuously. Owner Date of Acquisition - October 25, 1978 for Kathleen Shirley and June 10, 1993 for L. Keith Shirley. 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 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 Kathleen Shirley and L. Keith Shirley obtained an interest in the property is October 25, 1978 for Kathleen Shirley and June 10, 1993 for L. Keith Shirley. 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 1978 the property would have been subject to the county comprehensive plan (Recreation Residential), the subdivision ordinance (PL-2), the zoning ordinance (PL-5) and the partition ordinance (PL-7). These Page 2 of 5 - Exhibit A - Order No. 2007-114 would have restricted the division of the property to 1-acre lots under the Rural Receation Residential zone designation of PL-5. In 1993 the property was zoned RR-10 under Title 18. 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. With a comprehensive plan designation of Recreation Residential, staff is not aware of any state regulations that may have been more restrictive. Additional regulations were adopted after the acquisition date of 1978 and would 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 1978 for Kathleen Shirley, that a land division may have been permitted at that time. However, further division of the property would not have been permitted in 1993 when L. Keith Shirley acquired his interest in the property. 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 land 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 - $733,000 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. Page 3 of 5 - Exhibit A - Order No. 2007-114 • Claimants' property is located along Serpentine Drive so access may not be an issue • Other public utilities may be available to the property. • Claimants have submitted an appraisal, but it merely gives an opinion of the current fair market value of the property, not 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 owners. 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, Kathleen and L. Keith Shirley have continuously owned an interest in the property since 1978 and 1993, 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 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 Page 4 of 5 - Exhibit A - Order No. 2007-114 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 25, 1978 for Kathleen Shirley and June 10, 1993 for L. Keith Shirley, the dates 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 October 25, 1978 for Kathleen Shirley and June 10, 1993 for L. Keith Shirley, 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. 2007-114 B The Southeast Quarter of the Southeast Quarter of the Northwest Quarter (SE1/4SE1/4NW1/4) of Section Twenty-three (23), Township Twenty-one (21) South, Range Ten (10), East of the Willamette Meridian, Deschutes County, Oregon, except that portion dedicated to the public August 21, 1985, in Book 102, Page 809, Deschutes County Records. EXHIBIT B