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2007-1560-Order No. 2007-117 Recorded 10/5/2007DESCHUTES COUNTY CLERKDS vu ~~0+~~~~~ NANCY COMMISSIONERS' JOURNAL 10/05/2007 08;21;12 AM 1111111I II 11111111111 2007-i d0 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 AIIZRE DESCHUTES COUNTY OFFICIAL RECORDS 2007053602 NANCY BLANKENSHIP, COUNTY CLERK LEGAL COUNSEL I IIIIIIIIIIIII IIIIIIII II III NO FEE I IIIIIIIII III II 4!6420 70 536020090090 10/04/7007 02:09:48 PM D-M37 Cntal Stnm3 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 Rose Allen Kraft and * ORDER NO. 2007-117 Kraft Family Living Trust to Use the Subject Property as Allowed When Each 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, Kraft Family Living Trust made a timely demand for compensation under Measure 37 for a reduction in value to its property at 65085 Allen Road, Bend, 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; 1. On December 4, 2006, Rose Allen Kraft and the Kraft Family Living Trust filed a Measure 37 claim with the Community Development Department. 2. The property is located at 65085 Allen 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 October 23, 1970 as to Rose Allen Kraft and June 26, 2002 as to the Kraft Family Living Trust, 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 Kraft Family Living Trust is the present owner of the subject property described in Exhibit "B," having acquired an interest in it and continuously owned it since June 26, 2002. The County finds and concludes as set forth below. PAGE 1 OF 3- ORDER No. 2007-117 (10/01/07) 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 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. 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 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, Rose Allen Kraft, may apply for a use of the subject property consistent with the substantive land use regulations in effect at the time she 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 23, 1970. Claimant Kraft Family Living Trust, 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, which was June 26, 2002. 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 197.3 52(1 1)(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 the respective dates of acquisition for Rose Allen Kraft and the Kraft Family Living Trust. 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. 2007-117 (10/01/07) 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. / DATED this day of October, 2007. ATTEST: 6~ 6dl-tA~ Recording Secretary PAGE 3 of 3- ORDER No. 2007-117 (10/01/07) 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 - Rose Allen Kraft and Kraft Family Living Trust (Claimants) 65085 Allen Road, Bend, OR Introduction DATE: October 1, 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. 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 December 4, 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 one lot with approximately 38.5 acres in one tax lot. The current zoning is EFU-TRB. The Claimant's desired use is to subdivide the property into 7 lots, currently restricted Page 1 of 5 - Exhibit A - Order No. 2007-117 by County land use regulations. Claimant alleges a reduction in value of approximately $1,134,447 due to the 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 - Kraft Family Living Trust is shown on a title company report as the owner of the property comprising this claim: 16-11-27, Tax lot 604 located at 65085 Allen Road, Bend. Claimant submitted a copy of a deed, dated October 23, 1970, showing Rose Allen Kraft as a grantee. Kraft Family Living Trust, which was established by Walter C. (deceased) and Rose Allen Kraft, is listed on County records as the owner and has owned the property continuously since June 26, 2002. As this is a revocable trust, the property may be returned to the grantor, Rose Kraft, at her discretion. County records indicate that the property was sold under contract to Charles and Wendy Allen in 1994 with the Krafts retaining title. As the buyers were unable to fulfill the contract, an Estoppel deed, reconveying the property was executed in 2001. Owner Date of Acquisition - October 23, 1970 as to Rose Allen Kraft and June 26, 2002 as to the Kraft Family Living Trust. 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 Kraft Family Living Trust obtained an interest in the property is June 26, 2002. Claimant Rose Allen Kraft first acquired an interest in the property on October 23, 1970. 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 claimants' property. The Claimant has not Page 2 of 5 - Exhibit A - Order No. 2007-117 identified specific provisions of the county's ordinance but has alleged that current EFU-TRB zoning regulations have reduced the value of its property by prohibiting its ability to divide the property into smaller lots. At the time of acquisition, the property had a comprehensive plan designation of "Intensive Agriculture" (Effective 6/17/70), and was subject to the development standards for a "Rural Subdivision" under PL-2 (Effective 10/1/70). Additional requirements were adopted after the acquisition date of 1970 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 Claimant first acquired an interest in the property, it appears that in theory, based upon regulations in effect in 1970, that a land division may have been permitted at that time. As of the acquisition date of the Kraft Family Living Trust (distinct from the Trustee) in 2002, the current county land use regulations were in effect, which would have restricted land division of the property. Claimant has not asserted any regulations adopted after 2002 which have had the effect of reducing the value of 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. Claimant has not applied for a land division resulting in the current zoning being enforced on the subject property. Claimant has demonstrated that submitting an application for such a land division 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 - $1,134,447 alleged on Claim Form The ordinance requires that the Claimant provides 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 65085 Allen Road, which appears to be an easement, so access may be an issue. • Other public utilities may be available to the property. • Claimant has 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. Page 3 of 5 - Exhibit A - Order No. 2007-117 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 it having to comply with zoning regulations in place when such future owners acquire the property. If Claimant could have obtained approval of a 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, Rose Allen Kraft, Trustee of the Kraft Family Living Trust, has continuously owned an interest in the property since 1970. 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 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 23, 1970, the date when Claimant, Rose Allen Kraft, first acquired an interest in the property. There is evidence in the record that a land division of the subject property would be feasible. Page 4 of 5 - Exhibit A - Order No. 2007-117 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 23, 1970, to allow the Claimant, Rose Allen Kraft, to use the property in a manner permitted at the time she acquired the property. This Order would also specify that as to the Kraft Family Living Trust, waiving only those nonexempt County land use regulations which were not in effect until after June 26, 2002. 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 wishes to obtain information relative to its "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. 2007-117 Exhibit "B" That portion of the northwest Quarter Northwest Quarter (NW1/4 NWl/4) of Section Twenty-six (26), Township Sixteen (16) South, Range Eleven (I1). East of the Willamette Meridian, Deschutes County, Oregon, lying North and West of Allen Road except the following described parcel: Beginning at the Northwest corner of said Section 26, and running thence South 89°47-06" East along the North section line, a distance of 450.00 feet; thence South 34014120" West, a distance of 797.52 feet to the West line of said Section 26; thence North 0006140" West along the west line of said section 26, a distance of 661.0 feet to the point of beginning. ALSO that portion of the Northeast Quarter of the Northeast Quarter (NEl/4 NE1/4) of Section Twenty-seven (27), Township Sixteen (16) South, Range Eleven (11), East of the Willamette Meridian, Deschutes county, Oregon, described as follows: Beginning at the Southeast corner of said NE1/4 NEi/4 of Section 27, and running West 450.0 feet; thence North 34010014" East, a distance of 798.92 feet to the East line of said Section 27; thence South 0906040" East along the East line of said Section 27, a distance of 661.0 feet Co the point of beginning. ALSO the southeast Quarter of the Northeast Quarter (SE1/4 NE1/4) of Section- Twenty- seven (27), Township Sixteen (16) South. Range Eleven (11), East of the Willamette Meridian, Deschutes County, Oregon. Except the Westerly Four Hundred Fifty feet (W 4S0') of the Northerly Four Hundred Eighty-four feet (N 4841) thereof. -A [A Iz)-r t4o'