2007-547-Order No. 2007-106 Recorded 5/23/2007DESCHUTES COUNTY OFFICIAL RECORDS r ~o07~~~~
NANCY BLANKENSHIP, COUNTY CLERK IrJ
COMMISSIONERS' JOURNAL ~~123~2~~7 a4;46'S3 PM
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2007-547
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Deschutes County Clerk
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statement, in accordance with ORS 205.244:
Re-recorded to correct [give reason]
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and Page
REVIE D
DESCHUTES COUNTY OFFICIAL
NANCY BLANKENSHIP, COUNTY
RECORDS
CLERK
2001'Z934B
LEGAL OUNSEL
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
IIIIIIIIII)
NO FEE
00 S02942007002g3480300302
05/23/2007
04:19:21 PM
D-N37 Cnts3 Stns3 PO
This is a no fee document
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
~p An Order Approving a Waiver of Land Use
Regulations to Authorize Marlene (Salinas)
Kirkpatrick to Use the Subject Property as
Allowed When They Acquired the Property
* ORDER NO. 2007-106
*
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, Marlene and Gayle Kirkpatrick made a timely demand for compensation under Measure 37
for a reduction in value to property located at 4620 NW Quince Lane, Redmond, Oregon due to regulations
which took effect after they allegedly 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, Marlene and Gayle Kirkpatrick filed a Measure 37 claim with the
Community Development Department.
2. The property is located at 4620 NW Quince Lane, 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 March 15, 1978, 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 Marlene (Salinas) Kirkpatrick is the
present owner of the subject property described in Exhibit "B," having acquired an interest in it
and continuously owned it. 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 desired
PAGE 1 of 3- ORDER No. 2007-106 (05/21/07)
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 Claimant's 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 division of the property may be feasible
under the County's regulations in effect in 1978. However, these matters can and would be
evaluated in connection with a permit application. Despite the lack of a precise amount of
reduction in value, the loss of the ability to divide the subject property would be a substantial
amount of reduction in fair market value if the regulations at the time Claimants acquired the
property allowed such a use; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board hereby determines, based on these findings, conclusions, and the Administrator's
report in Exhibit "A," that the claim of Marlene (Salinas) Kirkpatrick is eligible under DCC 14.10.100. The
claim of Gail Kirkpatrick is not eligible.
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,
Marlene (Salinas) Kirkpatrick, but not Gail Kirkpatrick, may apply for a use of the subject property consistent
with the substantive land use regulations in effect at the time they first acquired the property. That land use
shall be permitted if the subject property fully complies with all substantive land use regulations in effect on
March 15, 1978. 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 date
of acquisition for Marlene (Salinas) Kirkpatrick.
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. 2007-106 (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.
Ir
DATED this ~J day of May, 2007.
ATTEST:
Recording Secretary
VhNINIJ K. LUKE, VICE CHAIR
- 4~4
TAMMY B Y, CO ISSIONER
PAGE 3 of 3- ORDER No. 2007-106 (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
From: David Kanner, County Administrator
RE: Measure 37 Claim - Marlene and Gayle Kirkpatrick (Claimants)
4620 NW Quince Lane, Redmond, 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 approximately 10 acres in one tax lot. The current zoning is EFU-
TRB. The Claimants' desired use is to divide the property into two parcels, currently restricted by County
land use regulations. Claimants allege a reduction in value of approximately $127, 072 due to the inability
Page 1 of 6 - Exhibit A - Order No. 2007-106
to divide as desired. The following is an analysis of the evidence in the record on the elements of this
Measure 37 claim.
Current Owners - County property and tax records, as well as documentation submitted with the claim
indicate that subject the property, described as Map 15-13-06, Tax lot 800 and located at 4620 NW
Quince Lane, Redmond, is owned by Marlene Salinas. Legal staff has corresponded with Claimant
Marlene Kirkpatrick to obtain verification that such claimant is the same person as Marlene Salinas. On
Monday, May 14 Claimant Gail Kirkpatrick furnished such document from his wife Marlene (Salinas)
Kirkpatrick. According to a marriage certificate the Claimants were married in May, 1980. At that time
Marlene took her husband's name of Kirkpatrick. She remains in title and by letter has indicated her
inability to attend Tuesday's hearing and authorizing her husband to appear on her behalf.
Owner Date of Acquisition - March 15, 1978
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 Marlene Salinas obtained an interest in the property is March 15, 1978 via a Warranty Deed
recorded at Vol. 269, Page 610, records of the County Clerk.
Restrictive Regulation - Zoning Regulations.
Under the terms of the ordinance, the claimants must identify County land use regulations that prevent
the claimants from using the property in a way that they otherwise could have used the property at the
time the property was acquired, and thus reduce the value of the claimants' property. The Claimants have
not identified specific provisions of the county's ordinance but have alleged that current EFU zoning
regulations have reduced the value of their property by prohibiting their ability to divide the property into
Page 2 of 6 - Exhibit A - Order No. 2007-106
smaller lots. At the time of acquisition the property was zoned A-1 under PL-5, which had a five-acre
minimum lot size. (See: ZM-3; effective 02/07/73).
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
1 215.213(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. 2007-106
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.
Zoning regulations were adopted after the acquisition date of 1978 and have the effect of further
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 1978, that a land division may
have been permitted at that time.
Enforcement of County Regulation - futile DCC 14.10.040(G).
Measure 37 requires that an ordinance which restricts the current owner's use be "enforced" against
them. Claimants have not have applied for a division resulting in the current zoning being enforced on the
subject property. Claimants have not demonstrated that submitting an application for such a land division
would be futile, but 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.
Reduction in Value - $127,072 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.
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. 2007-106
• 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 what they assert is the reduction in value based upon a
comparison of the current FMV of the subject property from the county tax assessor's records
with the average values of six 5-acre parcels with the same assessor tax map number.
Claimant's alleged reduction in value appears to be based upon the assumption that lots created by
dividing the property are fully marketable and useable by others for development. Referring to a recent
Opinion of the Oregon Attorney General, rights obtained under Measure 37 are personal to the present
property owner. Assuming an owner, having obtained the necessary "waivers" from the County and the
State, could 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 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 claimants 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."
Page 5 of 6 - Exhibit A - Order No. 2007-106
In this case, Marlene (Salinas) Kirkpatrick has continuously owned an interest in the property since 1978.
There is no evidence establishing an ownership interest in the property by Gayle Kirkpatrick. Claimants
who receive a waiver must use the current process to seek the needed permits based on the zoning in
place at the time the current owners acquired the property. Except in a rare case, the current procedural
requirements for handling permits are not regulations that reduce value. Therefore, the County's
procedural regulations are not waived.
Conclusion and Recommendation
The Claimants have presented evidence demonstrating that Marlene (Salinas) Kirkpatrick has an
ownership interest in the subject property and would be eligible for waiver of land use regulations on the
subject property, based upon an acquisition date of March 15, 1978. However, Gail Kirkpatrick is not so
entitled to such waiver, as he has not demonstrated an ownership interest in the property.
My recommendation is that the Board approve the attached order. This Order would have the effect of
granting Marlene and denying Gail a waiver under Measure 37.
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. 2007-106
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