2007-1511-Order No. 2007-152 Recorded 9/18/2007NANCYDESCHUTESBLANKENSHIPCOUNTY CLERKDS Q 2007Ei511
COMMISSIONERS' JOURNAL
09/18/2007 09;54;00 AM
11111111111111111111111111111 II
2007-1512
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Re-recorded to correct [give reason]
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COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKDS 1441.54353
REV~EWE
LE AL CO SE`EL NO FEE
00573430200700503530080089 49/17/2407 12;56;51 PM
D-M37 Cnt.al Stnal BN
This is a no fee document,
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying Compensation and a Waiver of
Flood Plain Land Use Regulations Not in Effect * ORDER NO. 2007-152
When Lee Hellmuth 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, Lee Hellmuth made a timely demand for compensation under Measure 37 for a reduction
in value to his property at 54800 Forest Lane, Bend, Oregon due to regulations which took effect after they
acquired this property, and
Q0 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; 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 January 11, 2005, Lee Hellmuth filed a Measure 37 claim with the Community
Development Department.
2. Claimants' property at 54800 Forest Lane, Bend, Oregon is within Deschutes County.
3. The County Administrator has recommended that the claim is not claim eligible and that current
flood plain regulation for the subject property at 54800 Forest Lane, Bend, Oregon continue to
be enforced, because the flood plain regulations are for the protection of public health and
safety. 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 Lee Hellmuth is the current owner of
the subject property described in Exhibit "B", having acquired it and continuously owned it
since September 17, 1978.
PAGE 1 OF 2 - ORDER N0.2007-152 (09/12/07)
5. The Board concurs with the Administrator's report that the current flood plain regulations for
the subject property might allow a boat ramp/slip on this subject property only with a
conditional use permit or verification of non-conforming use. The current regulations are land
use regulations which are exempt from Measure 37 claims; 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 and conclusions and the
Administrator's report in Exhibit "A," that the Hellmuth claim is not eligible under DCC 14. because the
restrictive regulations identified are exempt from Measure 37 compensation and waivers of land use regulations.
Section 2. The Board hereby elects to continue to apply current flood plain regulations to the subject
property described in Exhibit "B." Claimant has submitted an application and received County approval of a
preexisting boat ramp/slip as a nonconforming for the subject property consistent with flood plain regulations
now in effect.
Section 3. This Order does not affect any land use regulations of the State of Oregon. This Order
applies only to the local regulations specified above. Deschutes County lacks the authority to consider waiver of
any state regulations or laws. State laws and regulations may apply to the use of the property described herein.
DATED this 'day of September, 2007.
BOARD OF COUNTY COMMIS
OF DESC1 UTES COUNTY, OF4
DALY,
.At
ATTEST: DE . LUKE, Vice-Ch 'r
Recording Secretary TAMMY ANEY, Co issioner
PAGE 2 of 2 - ORDER No. 2007-152 (09/12/07)
Deschutes County Department of Administrative Services
1300 NW Wall St., Ste. 200, Bend, OR 97701-1947
(541) 388-6570 Fax (541) 385-3202 - vwwv.deschutes.org
TO: Board of County Commissioners
From: Dave Kanner, County Administrator
RE: Measure 37 Claim - Lee Hellmuth
54800 Forest Lane, Bend
Introduction
DATE: September 12, 2007
The County processed the initial Measure 37 claims using its brief claim form and prepared 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 to 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 January 11, 2005 when
Measure 37 was in lawful effect. Claimant paid the filing fee and submitted an official demand form. The
Claimant's desired use is a boat slip/ramp on the Fall River on this property. After Claimant initiated this
proceeding he applied to the County for a verification of a non-conforming use. Claimant consented to the
Page 1 of 4 - Exhibit A - Order No. 2007-152
County delaying the processing of his Measure 37 claim while this land use proceeding was pending. The
record of such proceeding that concluded favorably for the claimant is made part of the record in this
proceeding. The following is an analysis of the evidence in the record on the elements of this Measure 37
claim.
Current Owner - Lee Hellmuth, sole owner
Claimant presented a warranty deed showing that title is vested in Lee Hellmuth recorded at Vol. 304,
p.1173 of the Deschutes County deed records dated September 17, 1978
Owner Date of Acquisition - September 17, 1978
The alleged date of acquisition by the current owner is the relevant date for Board consideration of
waivers under subsection (8) of Measure 37. The compensation section of Measure 37, subsection (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 subsection (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 based on 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 date the current owner acquiring an interest is the date of the recorded warranty deed listed above.
Restrictive Regulation - DCC 18.96.040, 18.96.050, 18.36.020 (1989)
Under the terms of the Measure 37 ordinance the Claimant must identify County land use regulations that
prevent the Claimant from using the property in a way that he or she otherwise could have used the
property at the time the property was acquired. The Claimant must also show that these identified
regulations cause a loss of property value.
The claim form identifies the above referenced code sections as the land use regulation restricting the
Claimant's desired use. While these regulations are County land use regulations, they are exempt from
Page 2 of 4 - Exhibit A - Order No. 2007-152
Measure 37 claims. DCC Chapter 18.96 contains the 1989 Flood Plain Zone regulations. DCC 18.96.010
states the purposes of these regulations: "to protect the public from the hazards associated with flood
plains." The regulations might allow the desired use only based upon approval of a conditional use permit
or a verification of non-conforming use.
Measure 37 has a list of regulations which are exempt from Measure 37 compensation or waivers of
regulations. Subsection (3)(B) states:
"(3) Subsection (1) (compensation) of this act shall not apply to land use regulations;
(B) Restricting or prohibiting activities for the protection of public health and safety,
such as fire and building codes, health and sanitation regulations, solid or hazardous
waste regulations, and pollution control regulations." (Emphasis and parenthesis
added.)
This exemption for public health and safety regulations is not limited to the examples listed in (3)(B).
Flood plain regulations, generally, are intended to protect persons and property from flood hazards. DCC
18.96.010 explicitly states that purpose for the restrictive regulations that are the subject of this claim.
Enforcement of County Regulation - DCC 14.10.040(G)
Measure 37 requires that an ordinance that restricts the current owner's use be "enforced" against them.
There is evidence that Claimant has been notified by the County that his continued use of a boat
slip/ramp on the Fall River is in violation of the flood plain zoning on the subject property. (September 8,
2004 letter from Deschutes County Code Enforcement). On August 4, 2005, Claimant submitted a land
use application for the purpose of verifying the existing boat slip as a lawful, non-conforming use and
requesting permission to alter the boat slip in such a way as to convert it to a boat ramp. (See: County
file no. NUV-05-1) Those requests were approved and became final on October 16, 2006. The record for
file no. NUV-05-1 is incorporated herein by reference.
Reduction in Value - $20,000 alleged on Claim Form
The ordinance requires that the Claimant provide evidence of the amount of the claim in dollars based on
the alleged reduction in the fair market value of the property resulting from the enforcement of the
County's land use regulation.
Page 3 of 4 - Exhibit A - Order No. 2007-152
Claimant has submitted a broker's opinion letter as evidence that "the loss of value due to the lack of a
boat ramp/slip is at least $20,000" In an email transmission dated August 7, 2007, Claimant asserts that
land use restrictions still in place, or placed as a condition of approval of NUV-05-1, still decrease his
property value. However, Claimant has provided no evidence to support that assertion. Claimant also
asserts in that 8/7/07 communication that the countys requirement for a conservation easement to be
recorded against the property as a condition of approval of NUV-05-1 further decreases the value of his
property. Again, no evidence was provided to support that assertion.
The County adopted the use of the conservation easement as a tool to, among other things, address
aspects of Statewide Planning Goals 5 and 6 concerning protection of water quality, fish and wildlife
habitat and riparian vegetation. (See: DCC sections 23.112.040(2) and 23.116.040(2)(n)) To the extent
that the conservation easement addresses Statewide Planning Goals, the Claimant would need to obtain
waivers from the State as well as the County in order to achieve the desired relief. To the extent that the
conservation easement protects water quality, the easement would be an exempt regulation. Finally, the
Claimant has provided no evidence to show that the recordation of the easement has resulted in the
reduction of property value.
Conclusion and Recommendation
The current owner of the subject property has submitted a claim pursuant to Measure 37 which alleges
Claimants eligibility for a Measure 37 claim relating to the subject property based on land use regulations
in effect on September 17, 1978, the date he is alleged to have acquired the property. The flood plain
ordinances which restrict his boat ramp/slip use were enacted in 1989, after the Claimant first acquired an
interest in the property. There is evidence in the record, that there is a reduction of value if a boat slip is
not allowed based on the professional real estate broker's opinion. However, under the terms of Measure
37 subsection (3)(B), neither compensation nor a wavier of the restricting regulations is due when the
regulations are designated to protect public health and safety, as flood plan regulations do.
My recommendation is that the Board deny Claimants waiver of the flood plain regulations in the form of
Order 2007-152.
Page 4 of 4 - Exhibit A - Order No. 2007-152
- w (I ~ 117 3
IA;
WARRANTY DSIED
D
HARRY D. METKE and LORLEI METKE, hushand and wife,
ti. hereinafter called Grantor, convey to LEE HELLMU`1'H, hereinafter.
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1 called Grantee,.the following described real property:
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That part of the Southwest Quarter of the Southeast
Quarter (SW1/4 SE1/4) of Section Thirty-four (34),
Township Twenty (20) South, Range Ten (10), East of the
Willamette Meridian, Deschutes County, Oregon and that
part of the Northwest Quarter of the Northeast Quarter
(NW1/4 NE1/4) of Section Three (3), Township Twenty-one
(21) South, Range Ten (10), Fast of the Willamette
Meridian described as follows:
COMMENCING at the quarter corner between said Sections
34 and 3, being the Northwest corner of the said NW114
NE1/4 of Section 3; thence Easterly along the North
boundary of said Section 3, a distance of. 330 feet to a
point of beginning; thence Easterly along the said North
boundary of said Section 3, a distance of 660 feet; thence
due North, a distance of 330 feet.; thence due East a
distance of 330 feet, more or less, to the East line of
the said SW114 SE1/4 of Section 34; thence Southerly along
said East boundary of the SW1/4 SE1/4 of Section 34, and
the East boundary of the NW1/4 NE1/4 of Section 3, a
distance of 1,000 feet, more or less, to the South bank of
Fall and Deschutes River; thence generally Westerly along
the South bank of Fall River to a point due South of the
point of beginning; thence due North to the point of be-
ginning: EXCEPTING AND RESERVING to the United States of
America all. minerals including source materials as the same
M are defined by the Act of August 1, 1946 (Public Law 585,
79th Congress) whether or not of commercial value, together
with the right of the United States, through its authorized
agents or representatives at any time to enter upon the
land, prospect for, mine or remove the land, making just
Q `t compensation for any damage or any injury occasioned there-
.U by to the subject land or improvements thereon. The above
'o mineral reservation pertains to the following described
J o property: Township 21 South, Range 10 East of the Willam-
ette Meridian, Deschutes County, Oregon: Section 3: The
o NW1/4 of the NE1/4 of Lot 2 and the NE1/4 of the NW1/4
of Lot 2.
SUBJECT TO: 1978-79 Taxes, a lien as of July 1, 1978, but
(11 not yet payable.
SUBJECT TO: Existing telephone, telegraph, power lines,
roads, railroads, highways, ditches, canals and pipelines.
SUBJECT TO: Relocation Agreement and Grant of. Easement,
including the terms and provisions thereof, by and between
The United States of America, First Party, and Luther Metke
and Anna Metke, his wife, dated April 12, 1954 and recorded
July 28, 1954 in Book 107 at page 575 of Deed Records.
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- EXHIBIT B -
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T; 'M SUBJECT TO: A perpetual right to flood, seep or
is-c dam, e by release of water into the Deschutes
g
olherw
River from the Wick 'iup Reservoir, as required for the
r
•i normal irrigation and operation of the Deschutes
Federal Reclamation Project. (125 D 579) (EXCEPT the
NW1/4 of the NE1/4 of Lot 2 and EXCEPT the IjEl/4 of
O the NW1/4 of Lot 2.)
and covenant that Grantor is the owner of the above described
property free of all
encumbrances except as above described
s
and will warrant and
defend the same against all persons who
w
may lawfully claim the same, except as shown above.
The true an
d actual consideration for this transfer
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is $150,000;00.
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DATED this
(2&, day of. September, 1978.
,
H RRY rTKF
Ilk
OR METKE
STATE OF OREGON
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county of Deschutes
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10,
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Personally
appeared HAP.RY D. METKE, and LORLEI METKE
10
and acknowledged the
foregoing instrument to be their voluntary
act. Before me:
NARY PUBLIC FO' OREGON
My Commission Expires :
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Send tax statement to:
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L-IV
LEE HELLMUTH
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5060 Aldea Street
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Encino, CA 91316
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WARRANTY DEED - 2 and Final
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