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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701 -1960
(541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of February 4, 2009
DATE: January 22, 2009
FROM: Steven Griffin Assistant County Counsel 330 -4645
TITLE OF AGENDA ITEM:
Consideration of Board signature of Order No. 2009 -012 vacating Board of Commissioners Order
Numbers 2005 -054, 2005 -066, and 2007 -109 regarding Measure 37 claims.
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
Measure 37 allowed landowners whose property values were reduced by land use regulations enacted
after they acquired the property to receive compensation for the diminished value. Governments had
the option to pay monetary compensation or to decide not to apply the offending land use regulation to
the affected property. Decisions not to apply land use regulations were commonly referred to as
Measure 37 waivers.
Board order numbers 2005 -054, 2005 -066, and 2007 -109 are three Measure 37 waivers. After the
board issued its orders in each case a party timely sought judicial review of the county's decision to
issue the waivers. While judicial review was pending, voters enacted Ballot Measure 49. Measure 49
substantially revised Measure 37. In Corey v. DLCD, 344 Or 457, 184 P3d 1109 (2008) the Oregon
Supreme Court construed Measure 49 and held that it completely replaced Measure 37 and is to be
applied retroactively. It stated, "Measure 49 pertains to all Measure 37 claims, successful or not, and
regardless of where they are in the Measure 37 process." The court specifically stated that the intent
behind the new law was "to extinguish and replace the benefits and procedures that Measure 37 gra iced
to landowners." "Measure 49 by its terms deprives Measure 37 waivers – and all orders disposing of
Measure 37 claims —of any continuing viability[.]"
In each of these cases, consistent with the rule announced in Corey, the circuit court remanded the
matters to the county with directions to vacate the relevant Measure 37 waivers. The purpose of thi
agenda item is for the board to consider a proposed order that would effectuate the court's decision.
FISCAL IMPLICATIONS:
None
RECOMMENDATION & ACTION REQUESTED:
Approve the proposed order vacating the Measure 37 waivers.
ATTENDANCE: Steven Griffin
DISTRIBUTION OF DOCUMENTS:
Legal Department
REVIEWED
LEGAL CO,UI TSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGOI"
An Order Vacating Board Order Numbers
2005 -054, 2005 -066, and 2007 -109
*
ORDER NO. 2009 -012
WHEREAS, in Board order numbers 2005 -054, 2005 -066, and 2007 -109 the Board of County
Commissioners issued orders waiving certain land use regulations with respect to property owned by certa:i n
claimants; and
WHEREAS, in each case the claimants or another party timely sought judicial review of the board s
decision to issue the orders; and
WHEREAS, upon judicial review the Circuit Court for the State of Oregon remanded the orders 10
the county and ordered that the Board of County Commissioners vacate the orders waiving certain land
use regulations. The court's judgment was not appealed and is final; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
ORDERS as follows:
Section 1. Deschutes County Board of County Commissioners' Order numbers 2005 -054, 200. -
066, and 2007 -109 are vacated.
DATED this 4th day of February, 2009. BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAMMY BANEY, CHAIR
ATTEST: DENNIS R. LUKE, VICE CHAIR
Recording Secretary
PAGE 1 OF 1- ORDER No. 2009 -012 (02/04/09)
ALAN UNGER, COMMISSIONER