2007-1406-Order No. 2007-075 Recorded 7/31/2007FICIAL NANCYDESCHUTESBLANKENSHIPCOUNTY CLERKS CJ 20070IJ06
COMMISSIONERS' JOURNAL 0713112007 10;28;39 AM
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2007-1406
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COUNTY OFFICIAL
NANCYUBLANK
ENSHIP, COUNTY CLERKDS 2007'41544
NO FEE
MLEGALCOUNSEL
IIIIIII III II II IIIIII VIII I III) I II III IIII IIII II III
00563710200700435440090094
07/27/2007 04:25:33 PM
D-M37 Cnt=1 Stn=2 CE
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 Big Falls Ranch Co. to * ORDER NO. 2007-075
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, Big Falls Ranch Co. made a timely demand for compensation under Measure 37 for a
reduction in value to its property at 70460 NW Lower Bridge Way, Terrebonne, Oregon due to regulations
which took effect after it 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 November 22, 2006, Big Falls Ranch Co. filed a Measure 37 claim with the Community
Development Department.
2. The property is located at 70460 NW Lower Bridge Way, Terrebonne, 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 28, 1988, not be enforced in lieu of payment of
just compensation to Claimant. 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 Big Falls Ranch Co. is the present
owner of the subject property described in Exhibit "B," having acquired an interest in it and
continuously owned it since October 28, 1988. The County finds and concludes as set forth
below.
PAGE 1 of 3- ORDER No. 2007-075 (07-23-07)
5. The Board concurs with the Administrator's report that the current EFU/LB zoning regulations,
if applied to the subject property, would not permit a subdivision of the subject property at the
desired density. 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 elements of the FP Flood Plain Zone
reflect federal (FEMA) designation for at-risk flood areas and are exempt from Measure 37
claims.
7. The Board concurs with the Administrator's report that an application for a division of the
subject properties 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.
8. 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 Claimant 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
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 28, 1988. 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 Claimant's 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 Big Falls Ranch, Co.
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 Claimant 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).
PAGE 2 of 3- ORDER No. 2007-075 (07-23-07)
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. 4-4 )
DATED thise7S 'day of July, 2007.
ATTEST:
(&UV-A~ K&At/L-
Recording Secretary
PAGE 3 of 3- ORDER No. 2007-075 (07-23-07)
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
4
C
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: July 23, 2007
From: David Kanner, County Administrator
RE: Measure 37 Claim - Big Falls Ranch, Co. (Claimant)
70460 NW Lower Bridge Way, Terrebonne 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. Claimant and affected parties have the opportunity to rebut this Report and
provide additional relevant evidence to the Board. Also, under the County's process, claimant 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 November 22, 2006, when
Measure 37 was in lawful effect. Claimant has paid the filing fee and submitted the County's official
demand form. The property consists of approximately 1,740 acres in seven tax lots. The current zoning is
EFU-LB, SMIA and FP. The Claimant's desired use is to subdivide the property into 22 lots, currently
restricted by County land use regulations. Claimant alleges a reduction in value of approximately
Page 1 of 5 - Exhibit A - Order No. 2007-075
$5,085,760 due to the inability 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 - Big Falls Ranch, Co. is the owners of the property comprising this claim: 14-12-00, Tax
lots 1400, 1402, 1403, 1404, 1405, 1406, 1500 located at 70460 NW Lower Bridge Way, Terrebonne.
Claimant has submitted a copy of a Quitclaim deed, dated October 28, 1988, showing it as grantee. It is
listed on County records as the owner and has owned the property continuously.
Owner Date of Acquisition - October 28, 1988
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 Big Falls Ranch, Co. obtained an interest in the property is October 28, 1988.
Restrictive Regulation - Zoning Regulations.
Under the terms of the ordinance, the claimant must identify County land use regulations that prevent the
claimant from using the property in a way that it otherwise could have used the property at the time the
property was acquired, and thus reduce the value of the claimant's property. The Claimant has identified
all provisions of the county's ordinance CDD 18.16 and has alleged that current EFU-LB zoning
regulations have reduced the value of its property by prohibiting its ability to divide the property into
smaller lots. There was a minimum lot size regulation in effect in 1988 of 80 acres.
The current lot size requirement was adopted after the acquisition date of 1988 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 Claimant first acquired an
interest in the property, it appears that in theory, based upon regulations in effect in 1988, that a
subdivision could have been permitted at that time.
Page 2 of 5 - Exhibit A - Order No. 2007-075
However, that portion of the property now subject to the FP Zoning designation may affect the
configuration of a future subdivision. Certain elements of the FP Zone may be exempt under Measure
37, as they are related to health and safety and are based on federal (FEMA) designations for at-risk
flood areas. The FP Zone restricts the ability to create new lots within areas that are subject to the 100
year flood occurrence.
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. Claimant has not applied for a subdivision resulting in the current zoning being enforced on the
subject property. Claimant has, however, applied to partition the property. (See: Partition Plat Nos. 1996-
26, 1999-50 and 1999-51) Claimant has demonstrated that submitting an application for the desired
subdivision 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 - $5,085,760 alleged on Claim Form
The ordinance requires that the Claimant 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.
• Claimant has asserted that a land division would be approved.
• Claimant's property is located along NW Lower Bridge Way so access may not be an issue.
• Other public utilities may be available to the property.
• Claimant has submitted an opinion from real estate professionals in an attempt to show the
diminution in value based upon limitations on land division of the property.
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 Claimant 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 Claimant could have obtained approval of a
Page 3 of 5 - Exhibit A - Order No. 2007-075
subdivision of the property on the date it 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,
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, Big Falls Ranch, Co. has continuously owned an interest in the property since 1988. 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 owner of the property has 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
28, 1988, the date when Claimant 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 28, 1988, to allow the Claimant to use the property in a manner permitted at the time it acquired
Page 4 of 5 - Exhibit A - Order No. 2007-075
the property. This waiver is not a development permit. By granting a waiver, the County does not commit
itself to approving Claimant's desired permit.
Cautionary Note on Measure 37
Claimant 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. Claimant 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. 2007-075
EXHIBIT B
PARTITION PLAT 1996-26
Parcel I
PARTITION PLAT 1996-51
Parcel 1,2 & 3
PARTITION PLAT 1999-50
Parcel 2 & 3
Parcel 1 of Partition Plat No. 1999-50 located ill tho Sections 17,18, 19 and 12 East of the Willamette Meridian. Deschutes County, Oregon, except thO following described-parcel 148outh
and shown Range
the attached snap and folly described as follows;
Beginning at a 5/8" iron rod at the southerly angle point'of said parcel 1 In Section 19; thence North 76009'18"
West 1432.27 feet along the southerly boundary of said Parcel 1 to a 518" iron rod; thenco leavlgg said southerly
boundary, North 3203 0'26" Past 300.00 feet; thence South 69001'15" East 1056,23 feet to a point that is 1.00 feet
north of the northeast corer of a concrete slab for pivot irrigation; thenco South 67034'j 5" East 412.03 feut to the
southerly boundary of said Parcel 1; thence South 66919'04" West 150.29 feet to the point of bcgiuning. Contains
6,59 acres,
EXHIBIT B