Loading...
HomeMy WebLinkAboutOrder 037 - Measure 37 Claim - KulinDeschutes 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 April 21, 2008 Use "tab" to move between fields, and use as much space as necessary within each field. Do not leave anv fields incomplete. Agenda requests & backup must be submitted to the Board Secretary no later than noon of the Wednesday prior to the meeting to be included on the agenda. DATE: 4/11/08 TO: Deschutes County Board of Commissioners FROM: Kevin Harrison; CDD; 385-1401 TITLE OF AGENDA ITEM: Consideration of claim for compensation under Measure 37 (DCC Chapter 14.10) and signature of Order. HEARING?: Yes BACKGROUND AND POLICY IMPLICATIONS: Claims to be considered are: (1) M37-07-171 (Hingley ), Order No. 2008-035; (2) M37-07-172 (Dunham), Order No. 2008-036; (3)M37-070173 (Kulin), Order No. 2008-037. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Decision on the three claims. ATTENDANCE: Tom Anderson/Mark Pilliod DISTRIBUTION OF DOCUMENTS: Orders and staff reports to be recorded with County Clerk. Copies to be sent to Legal Counsel, CDD, DLCD (Cora Parker, Deputy Director; DLCD; 635 Capitol Street, NE, Suite 150; Salem, OR 97301- 2524); Claimants. For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Denying a Waiver of Land Use Regulations pursuant to Ballot Measure 37 - Kulin * * * ORDER NO. 2008-037 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, Steve and Lori Kulin made a demand for compensation under Measure 37 for a reduction in value to their property at 447 SW 67th, Redmond, Oregon due to regulations which they claim took effect after they 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 one or more identified land use regulations that restrict 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 May 14, 2007, Steve and Lori Kulin fi led a Measure 37 claim with the Community Development Department. 2. The property is located at 447 SW 67th, Redmond, Oregon and is within Deschutes County. 3. The County Administrator has recommended against waiver of county regulations far the subject property. 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 Steve and Lori Kulin are the present owners of the subject property, having acquired an interest in it and continuously owned it since August 14, 1998. 5. The Board concurs with the Administrator's report that at the time Claimants purchased their property, the county's regulations on home occupations were generally more restrictive than after amendments were adopted by the County in 2004. PAGE 1 OF 2- ORDER No. 2008-037 (04/21/08) 6. The Board concurs with the Administrator's report that there is no evidence which demonstrates that County's home occupation regulations as adopted after Claimant's acquisition date have reduced the value of the subject property. 7. With the adoption of Ballot Measure 49, only residential uses are entitled to compensate m under Measure 37 and Claimants have not alleged any limitation on their use of the subjt;ct property as a residence, now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREI3Y 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 not eligible under DCC 14.10.100. Section 2. A STATE OF OREGON MEASURE 37 WAIVER WOULD BE REQUIRED FOR THE DEVELOPMENT OR USE OF THE SUBJECT PROPERTY. ALTHOUGH THE COUNTY WILL ACCT: PT 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. DATED this day of April, 2008. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON DENNIS R. LUKE, CHAIR ATTEST: TAMMY BANEY MELTON, VICE CHAIR Recording Secretary MICHAEL M. DALY, COMMISSIONER PAGE 2 OF 2- ORDER No. 2008-037 (04/21/08) -TES a w 0 TO: Board of County Commissioners From: David Kanner, County Administrator Deschutes County Department of Administrative Services 1300 NW WaII St., Ste. 200, Bend, OR 97701-1947 (541) 388-6570 Fax (541) 385-3202 - www.deschutes.orq RE: Measure 37 Claim — Steve and Lori Kulin (Claimant) 447 SW 67th, Redmond, OR DATE: April 21, 2008 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 Tess 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, a 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 May 14, 2007, 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 one lot with approximately 5 acres. The current zoning s Landscape Management and EFU-TRB. The Claimants' desired use is a home occupation. Claimants allege a reduction in value of approximately $700,000 due to their alleged inability to use the property as Page 1 of 6 — Exhibit A - Order No. 2008-037 a home occupation. The following is an analysis of the evidence in the record on the elements of this Measure 37 claim. Current Owner — Claimants assert on the claim form that they are the owners of the property comprising this claim: 15 -12 -14 -AO, Tax lot 601 located at 447 SW 67th, Redmond. Claimants submitted a copy of a deed, dated August 14, 1998, showing claimants as grantees. Owner Date of Acquisition — August 14, 1998, 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 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 claimant obtained an interest in the property is August 14, 1998. Restrictive Regulation — Zoning Regulations. Under the County's Measure 37 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. Claimants currently have the potential to establish a home occupation of the property under DCC 18.16.030(N) and 18.116.280. However, Claimants allege that unspecified provisions of the county's zoning ordinance pertaining to Home Occupations restrict Claimants' use as a home occupation in a manner that would not have so restricted Claimants' use of the property at the time Claimants acquired the property and which have thus had the effect of reducing the value of claimants' property. In terms of the county's history on regulation of home occupations, they were first regulated under PL -5 (1/1/72), defined in section 1.030(13) and standards were contained in section 5.010. They were further regulated under PL -15 (11/1/79), by definition in section 1.030(52) and were listed in appropriate use zones as conditional uses. Conditional use standards were contained in section 8.050(7). Under PL -15 Page 2 of 6 — Exhibit A - Order No. 2008-037 the zoning ordinance was codified as Title 18 in 1991 via Ord. No. 91-020. Current standards were adopted into Title 18 via Ord. No. 2004-002 and modified in 2007 via Ord. No. 2007-021. When Claimants acquired their property all home occupations required a conditional use permit from the county. The county code during that period prohibited home-based businesses from having any employees who were not family members living on the property. DCC 18.128.110(A) (1998). Outdoor storage of materials or equipment was barred under all circumstances. Ibid. Furthermore, the code required that the home occupation be secondary to the "residential or other use for which a dwelling had been permitted." Ibid. That determination of "secondary" was made on a case-by-case basis. In 2004, after many comments from property owners, those with home occupations and those complaining about them, the Board requested that Planning staff propose amendments to the home occupations code. Amendments were adopted after a year-long process of public hearings before and revisions by the County Planning Commission and the Board. That code amendment was not appealed. The current code divides home occupations into four tiers. Home occupations with the least impact do not need permits. See DCC 18.116.280 (2008). Those with the most impact require conditional use permits. DCC 18.116.280(E). Additionally, each tier contains objective standards to determine whether a home occupation is secondary to the residential use of the home. The objective standards are not necessarily more restrictive than the 1998 counterpart, but rather provide clearer guidance as to what does and what does not constitute a "secondary use." The current code is generally more permissive than the 1998 code in terms of the types and intensities of home occupation uses which are permitted. One standard relevant here is the percentage of the dwelling and other structures which may be used for home occupations. Depending on the level of intensity, the current code allows the home owner to use a maximum of between 25 to 35 percent of the combined floor area of the dwelling, an attached garage, and one accessory structure for his or her home occupation. For example, if the person's home, garage, and accessory total 4000 square feet of floor area, the person may use a maximum of between 1000 and 1400 square feet for the home occupation, depending on the type of home occupation approved. In 1998 the determination of the amount of space which could be dedicated to the home -occupation was made as part of the less clear "secondary" standard. In theory, the 1998 code could have allowed a greater percentage of floor area to be used for the home occupation, if it could still be determined that the home occupation was "secondary" to the residential use Page 3 of 6 — Exhibit A - Order No. 2008-037 of the dwelling. The claimant has not provided any information to allow the board to determine how the application of the more objective standards regarding the total area which may be dedicated to the home occupation denigrate the value of the land. The 1998 version of the home occupation code absolutely prohibited the outdoor storage of materials and equipment related to the home occupation. The current code, by contrast, permits outdoor storage in some circumstances. The current code provides that the most intense home occupations (type 3), "May include outside storage of equipment and materials." DCC 18.116.280(E)(14). Importantly, the outside storage is not included in the calculation total floor space which may be allocated to the home occupation. It is not clear how this more relaxed standard would reduce the value of the claimant's land. The final relevant standard relates to employees. The 1998 code, in all circumstances, prohibited the hiring of non -family, non-resident employees to assist in running the home occupation. The code stated, "[The home occupation] shall be conducted only by members of the family residing on the property." DCC 18.128.110(A) (1998). In other words, under the 1998 code the operator of a home occupation would be prohibited from hiring any non-resident, non -family member employees or independent contractors. This prohibition applied equally to on-site and off-site workers. In application, the 1998 code limited home occupations to traditional "mom and pop" operations. The current code has more relaxed criteria allowing for employees outside of the family for certain types of home occupations. The most intense home occupations permit up to 5 on-site employees and an unlimited number of off-site employees or independent contractors. DCC 18.116.280(E)(3) (2008) (relating to on-site employees) and (4) (relating to off-site employees). The current code does not limit home occupations to "mom and pop" operations but, under some circumstances, can be relatively robust enterprises. It is unclear how the current standard allowing non -family, non-resident employees in some circumstances would reduce the value of the applicant's property. Claimants have not identified the manner in which regulations in effect when Claimants acquired the property but amended after such acquisition have further restricted Claimants' desired home occupation use of the property and thereby caused a reduction in the value of the property. Page 4 of 6 — Exhibit A - Order No. 2008-037 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 applied for a variance to the home occupation standards in response to a code enforcement proceeding, so current zoning regulations are currently being enforced on the subject property. (See: County file no. V-08-1) As of the date of the writing of this memo, no decision has been rendered on that application. Reduction in Value - $700,000 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' legal counsel has asserted that the value of claimants' property has been diminished by $700,000 as a consequence of the county's home occupation ordinance. • Claimants have not submitted an appraisal, or opinions from real estate professionals or any evidence in an attempt to show the diminution in value based upon limitations on the county's home occupation ordinance. 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, Claimants have continuously owned an interest in the property since 1998. 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. Page 5 of 6 — Exhibit A - Order No. 2008-037 Effect of Adoption of Measure 49 On November 6, 2007 the Oregon electorate approved a measure referred by the Oregon Legislature commonly known as Ballot Measure 49 (HB 3540), (herein Measure 49), which had the effect of substantially amending the provisions of Measure 37. Claimant currently enjoys the residential use of the property and has not sought to expand such residential activity. It would appear that since the claim is not based upon any restriction of a residential use, but rather a commercial use, Measure 49 does not allow any form of compensation, including waiver of such regulations. However, this would be a matter for determination by the State in the first instance. Conclusion and Recommendation The present owner of the property has submitted a claim pursuant to Measure 37 which fails to demonstrate eligibility for use of the subject property based on nonexempt land use regulations first in effect after August 14, 1998, the date when Claimants acquired an interest in the property. Claimants have failed to demonstrate any reduction in value based upon regulations which were not in effect when Claimants first acquired the property. With the adoption of Measure 49 and claimants' desire for a commercial use of their property, they are no longer entitled to compensation under Measure 37. My recommendation is that the Board deny the claim in the form of Order attached. Page 6 of 6 — Exhibit A - Order No. 2008-037 Community Development Department Planning Division Building Safety Division Environmental Health Dk ision 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes,or.us/ :dd/ Demand for Compensation - Measure 37 Claim PROPERTY OWNER INFORMATION (Please type or print firmly in dark ink) STEVE and LORIE KULIN Name of Property Owner 447 SW 67th Street Mailing Address REDMOND, OR 97756 City, State, Zip (541) 504-9538 Phone Fax LISA DT KLEMP Name of Representative (If Any) PO Box 457 Mailing Address REDMOND, OR 97756 City, State, Zip (541) 548-2151 Phone (541) 548-1893 Fax PRIVATE REAL PROPERTY DESCRIPTION Assessor's Map and Tax Lot Number: 15-12-14—A0-601 Street Address: 447 SW 67th Street, Redmond, OR 97756 ZONING DESIGNATION WHEN ACQUIRED: EFU TRB CURRENT ZONING DESIGNATION: EFU TRB DATE CLAIMANT ACQUIRED PROPERTY: 8/18/1998 (include deed, contract, or other conveyance). DATE CLAIMANT'S RELATIVE ACQUIRED PROPERTY, IF APPLICABLE: (include title report; chain of title letter; lot book report; Assessor's tax lot card). AMOUNT OF CLAIM: $ ',lliV 70b I (Y)(] A statement 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 regulation Signat ur Clairr>jApnt (P\al,� wner(s): SCANNED DISCLAIMER NOTICE: Approval of compensation or modification, removal or non -application of land use regulation does not warrant or otherwise guarantee that the present property owner or any successors interest can legally use the subject property for the purpose, or in the manner, approved by the County as such use or purpose may impact third parties, including rights established by Covenants, Conditions and Restrictions (CC&Rs), other private restrictions, or other regulations, restrictions or contracts. Quality Services Performed with Pride DEMAND FOR COMPENSATION — MEASURE 37 CLAIM CHECKLIST AND ATTACHMENTS TO BE SUBMITTED BY PROPERTY OWNER Although there are no prerequisites for filing a claim, the inclusion of the following information in a claim application will allow the County to evaluate and render a decision on a claim in a more expeditious manner. The absence of this information may result in an extended amount of time to process the claim due to increased research by County staff. /1. Fee. The demand processing fee shall be refunded if the county, circuit court or an appellate body determines that just compensation should be paid. LV2. Form. A completed demand form. V3. Proof of Present Property Ownership. Deed or other documentation demonstating that the property is in the exclusive fee simple ownership of the owner or that the owner has the consent of all owners in the property. The names and mailing address of all owners other than the owner making the demand should be provided. 4. Ownership History. Required when the claim concerns application or enforcement of County Regulations in effect prior to the Claimant's acquisition of the property. A title report, chain of title letter, lot book report or Assessor's tax lot card showing chain of title for the property. ✓ 5. Identification of Regulation. A copy of the land use regulation that owner making the demand claims restricts the use of the property or interest therein that has had the effect of reducing the fair market value of the property. 6. Copy of Prior Regulations. A copy of the land use regulation in existence, and applicable to the property, when the owner became the owner of the property. 7. Enforcement of County Regulation. Copies of any land use actions, development applications or other relevant applications for permits that have previously been filed in connection with the property and the action taken. Any such actions that represent the required "enforcement" and/or "application" of the land use regulation that are prerequisites to making a demand must be described and identified as such. 8. Appraisal. A copy of a written appraisal or appraisals by an MAI appraiser, qualified, certified, and licensed as such in the State of Oregon, for the type of property under consideration, indicating the amount of the alleged reduction in the fair market value of the property by showing the difference in the fair market value of the property before and after enactment, enforcement or application of the land use regulation described in item (7) above and explaining the rationale and factors leading to that conclusion In the alternative, the applicant should submit a statement detailing the current value of the property with the restrictive regulation and a statement detailing what the value of the property would be if the restrictive regulation was not applied to the property. 9. Statement of the Owner's Understanding of the Effect of Any Modification, Removal or Non -Application of Land Use Regulation. 1) A statement by the owner explaining how the County's enforcement of the regulation restricts the use of the Claimant's property, and 2) a statement explaining Owner's potential development of the property, stating the greatest degree of development that would be sought if the identified regulations were modified, removed or not applied. BRYANT EMERSON & FITCH, LLP Attorneys at Law May 14, 2007 Kevin Harrison Planning Director Deschutes County Community Development Department 117 NW Lafayette Avenue Bend, OR 97701-1925 Re: Claim for Compensation Pursuant to Ballot Measure 37 (2004) Dear Kevin: Ronald L. Bryant * Craig P. Emerson Edward P. Fitch Steven D. Bryant Michael R. McLane Michael W. Flinn Lisa D.T. Klemp Nicholas J. Geil Alison M. Trimble * Also admits d Washington My office represents Steve and Lorie Kulin with respect to a Measure 37 Claim. This letter constitutes written demand pursuant to Section (4) of Ballot Measure 37 (2004) for compensation for the property located at: Claimant :Steve and Lori Kulin Street address :447 SW 67`" Street City, State Zip :Redmond, OR 97756 Tax Lot ID # :15-12-14-A0-6 01 Current Zoning Designation :EFU TRB which has been owned by my client and/or a family member (as that term is defined by Ballot Measure 37 (2004)) since August 18, 1998. Enclosed is our client's check in the amount of $750.00 in payment of the filing fee. This sum is being paid under protest. If these fees are found to be invalid, my client reserves the right to request reimbursement. Also, enclosed are the following: 1. Measure 37 Application Form 2. Deed dated, August 18, 1998 3. Deschutes County DIAL search results. The restriction that remains in force and effect on the property is the Home Occupation Ordinance. Since 1998, Deschutes County has enacted ordinances and/or regulations which placed the following restrictions upon the use of the property described above: Restricts the ability of the claimants to use their property for Home Occupation as was permitted at the time they acquired the property in 1998. This restriction remains in force and effect as of the date of this letter and has been enforced by the Deschutes County Code Enforcement, Case Number C06244. There is a pending enforcement action against the Kulins as evidenced by the DIAL report attached hereto. The decrease in value to the property is $700,000.00. This amount is based upon the analysis of the benefits to the property owner 888 S.W. Evergreen Ave. P.O. Box 457 Redmond, OR 97756-0103 (541) 548-2151 Fax (541) 548-1895 E-mail bef@redmond-lawyers.com BRYANT EMERSON & FITCH, LLP Attorneys at Law in using their property as they may for the operation of the home business. Page 2 May 14, 2007 Pursuant to Ballot Measure 37 (2004), you have 180 days from the date of this letter to provide compensation for the loss of fair market value of the property described above. In the alternative, the offending statute(s), regulation(s), and/or ordinance(s), may be waived and uses may be allowed on the property which could have occurred at the time the property was acquired. Specifically, the property will be put to the following use: Claimant intends to use the property for Home Occupation. Thank you in advance for your prompt attention to this matter. Since LD Enclosure cc: Mark Pilliod, Deschutes County Counsel Clients G:\WP51\EPF\Kulin, Steve Lorie\County Claim Letter.wpd(lrb) 77 /77-7 SEE YAP 15 12 14B Teo 1 '0\19 e AA W 51� r��' �\.t6 ��96 y- a OW * • ft_ \4. - $ S51 - 139.31 94 51- ST - 9.36 - iaSH 92 2. 016 n$3SS I. 111.19 __Ill pst 555.29 292.) (7' 91.01 go I6� a 91.10 I91,sa� 12 I"kj eI L-+ 1�1eo� 651 2 —10A—_L567 SIS ly,u_ 151 It .11 —1 50 359.50 59 1250 316.16 1110 CAS, AA Yw ▪ 356.00 501.01 - r 356.00 50 260.00 p(� I s 16301 —STREET i INIL __32.21._ Lai _25644 — 41L —2400 e� SEE MAP 15 12 13 (7'