2007-546-Order No. 2007-115 Recorded 5/23/2007DESCHUTES COUNTY OFFICIAL RECORDS rJ 200.546
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL 05/23I2007 04;46;49 PM
2007-546
Do not remove this page from original document.
Deschutes County Clerk
Certificate Page
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a
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 Zpp1.19341
REVIENSEL NANCY BLANKENSHIP, COUNTY CLERK
NO FEE
LE AL CO 111111111111111111111111111111111111111111111111
00 0293200700293470101 05 05/23/2007 04;18;21 PM
D-M37 Cntol Stns3 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
Regulations to Authorize Kenneth and Betty * ORDER NO. 2007-115
Williamsen 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, Kenneth and Betty Williamsen made a timely demand for compensation under Measure 37
for a reduction in value to their property at 24395 Dodds Road, 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 4, 2006, Kenneth and Betty Williamsen filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 24395 Dodds Road, 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 April 4, 1960 and September 29, 1967 for the portion of TL
18-13-7 Lot 700 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 Kenneth and Betty Williamsen are the
present owners of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it since April 4, 1960 and September 29, 1967 for the portion of TL
18-13-7 Lot 700. The County finds and concludes as set forth below.
5. The Board concurs with the Administrator's report that the current zoning regulations, if
applied to the subject property, would not permit a division of the subject property in the
PAGE 1 of 3- ORDER No. 2007-115 (05/21/07)
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 a partition 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 4, 1960 and September 29, 1967 for the portion of TL 18-
13-7 Lot 700. 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 Kenneth and Betty Williamsen.
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
TO STATE REGULATIONS WHICH WOULD OTHERWISE PRECLUDE THE PROPOSED LAND USE.
PAGE 2 of 3- ORDER No. 2007-115 (05/21/07)
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 COUNT)h OREGON
M. DALY,
ATTEST:
r1 i
DENNIS R. LUKE, VICE
Recording Secretary TAMMY
PAGE 3 of 3- ORDER No. 2007-115 (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 - Kenneth and Betty Williamsen (Claimants)
24395 Dodds Road, Bend. 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 4, 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 40 acres in one tax lot. The current zoning is EFU-
AL. The Claimants' desired use is to divide the property into 2 or 3 parcels, currently restricted by County
land use regulations. Claimants allege a reduction in value of approximately $72,000 due to the inability
Page 1 of 5 - Exhibit A - Order No. 2007-115
ti
to divide as desired. The following is an analysis of the evidence in the record on the elements of this
Measure 37 claim.
Current Owner - Kenneth and Betty Williamsen are the owners of the property comprising this claim: 18-
13-12, Tax lot 701 located at 24395 Dodds Road, Bend. Claimants submitted a copy of a deed, dated
April 4, 1960, showing them as grantees recorded at Volume 124, Page 557 Deschutes County Deed
Records. Later they required for access purposes and obtained a small portion of an adjacent property,
which in this report is described as a portion of TL 18-13-7 Lot 700, which they acquired on September
29, 1967. Their joint revocable Trust is listed on County records as the owners, which for Measure 37
purposes will be treated the same as though held in their individual names. Thus, they have owned the
property continuously. There was evidence in the record of a conveyance of a % interest in the property in
the mid-70's, which was later reconveyed to the Claimants. Further, there was a conveyance of the
property subject to a mortgage in 1984 with the purchasers financing the price and Claimant/sellers taking
back a mortgage. In 1986 after purchasers defaulted they tendered and Claimants accepted a deed in
lieu of foreclosure. Some jurisdictions have interpreted Measure 37 such that such conveyance subject to
a mortgage and a later reacquisition constitutes a break in ownership, and thus result in a new acquisition
date. This report assumes that the meaning of "Owner' includes persons who have a mortgage have an
"interest" in the property. While the interest Claimants held throughout this period changed over the years,
they continued to have an ownership interest in the property for Measure 37 purposes.
Owner Date of Acquisition - April 4, 1960 and September 29, 1967 for the portion of TL 18-13-7 Lot 700
The dates of acquisition by the current owners are the relevant dates 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
Page 2 of 5 - Exhibit A - Order No. 2007-115
documentation showing Kenneth and Betty Williamsen obtained an interest in the property is April 4, 1960
and September 29, 1967 for the portion of TL 18-13-7 Lot 700.
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
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. There were no minimum lot size regulations in effect in 1960.
This requirement was adopted after the acquisition date of 1960 and would have the effect of restricting
the division 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 1960, 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 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. While Claimants have partitioned the property in the past (See: County file no. MP-
86-11), Claimants have demonstrated that submitting an application for the desired 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 - $72,000 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 Dodds Road so access may not be an issue.
• Other public utilities may be available to the property.
Page 3 of 5 - Exhibit A - Order No. 2007-115
• 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.
They have nonetheless calculated the value of separate parcels based upon county assessor's
records of the value of comparable properties and accounted for the cost of furnishing utilities.
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
partition 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 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, Kenneth and Betty Williamsen have continuously owned an interest in the property since
1960 and September 29, 1967 for the portion of TL 18-13-7 Lot 700. A claimant who receives a waiver
Page 4 of 5 - Exhibit A - Order No. 2007-115
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 4,
1960 and September 29, 1967 for the portion of TL 18-13-7 Lot 700, 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 4, 1960, 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. 2007-115
a
Lot numbered Three (3) of Section Seven (7), Town-
ship Eighteen (18) South, Range Fourteen (14) East
of the Willamette Meridian.
EXHIBIT B /
That portion of the Southeast Quarter (SE1/4) of Section Twelve (12), Township
Eighteen (18) South, Range Thirteen (13), East of the Willamette Meridian,
Deschutes County, Oregon, and that portion of Government Lot Three (3),
Section Seven (7), Township Eighteen (18) South, Range Fourteen (14), East of
the Willamette Meridian, Deschutes County, Oregon, described as follows:
Beginning at the Southeast corner of Section 12, Township 18 South, Range 13,
East of the Willamette Meridian, Deschutes County, Oregon; thence along the
South boundary of said Section 12 South 89°33'57" West, 1327.24 feet; thence
leaving said boundary and running North 00°09'37" west, 1244.83 feet; thence
North 89°33'57" East, 648.40 feet; thence North 83°14'35" East, 631.65 feet;
thence North 08°01'34" East, 360.27 feet; thence North 09°26'52" West, 309.39
feet; thence North 00°09'37" West, 628.92 feet to a point on the South margin
of Dodds Road; thence along said South margin along the arc of a 2834.79 foot
radius curve right (the long chord of which bears South 86°28'51" East, 50.10
feet to a point that is on the East boundary of said Section 12; thence along
the East boundary of Section 12 South 00°09'37" East, 621.65 feet; thence
leaving said East boundary and running South 09°26'52" East, 313.01 feet;
thence South 08°01'34" West, 354.76 feet to a point on said East boundary of
Section 12; thence along said East boundary South 00°09'37" East,.1320.09 feet
to the point of beginning.
EXHIBIT B-2-