2005-1047-Order No. 2005-078 Recorded 9/12/2005REVIEW UTES COUNTY OFFICIAL
COUNTY CLERKS CJ 2005~~0~~
NANCY COMMISSIONERS' JOURNAL 09/12/2005 03:29:52 PM
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BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Approving a Waiver of Land Use
Regulations to Authorize Marilyn Gragg,
individually, and Jane Gragg, Trustee of the
Robert L. Gragg Trust, to Use the Subject
Property as Allowed When each Acquired their
interest in the Property
* ORDER NO. 2005-078
*
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, Marilyn Gragg, individually, and Jane Gragg, Trustee of the Robert L. Gragg Trust, made
a timely demand for compensation under Measure 37 for a reduction in value to her property at 16915 Hwy 126,
Sisters, Oregon due to regulations which 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 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 March 22, 2005, Marilyn Gragg, individually, and Jane Gragg, Trustee of the Robert L.
Gragg Trust, filed a Measure 37 claim with the Community Development Department.
2. Claimants' property at 16915 Hwy 126, Sisters, Oregon is within Deschutes County.
The County Administrator has recommended that for the Robert L. Gragg Trust the zoning
regulations for the subject property at 16915 Hwy 126, Sisters, Oregon that were not already in
effect until after March 16, 1994, not be enforced in lieu of payment of just compensation to
Claimant. The County Administrator has recommended that for Marilyn Gragg the zoning
regulations for the subject property at 16915 Hwy 126, Sisters, Oregon that were not already in
effect until after July 1, 1974, 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."
PAGE 1 of 3- ORDER No. 2005-078 (09/07/05)
4. The Board concurs with the Administrator's report that Marilyn Gragg, individually, and the
Robert L. Gragg Trust are the present owners of the subject property described in Exhibit "B,"
having acquired their interests in it and continuously owned it since March 16, 1994 for the
Robert L. Gragg Trust and since July 1, 1974 for Marilyn Gragg.
5. The Board concurs with the Administrator's report that the current regulations, especially EFU
zoning, if applied to the subject property, would not permit a subdivision on this subject
property. The current regulation is a land use regulation which is not exempt from Measure 37
claims.
6. The Board concurs with the Administrator's report that an application for a subdivision on the
subject property would be denied if the current zoning were applied. Therefore, such an
application to determine enforcement of the current zoning to the Claimants' 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 land divisions and development applications and
approvals have reduced the value of the subject property.
8. The Board concurs with the Administrator's report that Claimants have not demonstrated that
domestic water, and septic for the desired use on the subject property are feasible. Despite the
lack of a precise amount of reduction in value, the loss of the ability to add additional buildable
lots from the subject property would be a substantial amount of reduction in fair market value if
the regulations at the time Claimant, Marilyn Gragg, acquired the property allowed that
development; 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 zoning and nonexempt land use regulations to the
subject property described in Exhibit "B" in lieu of payment of just compensation under Ballot Measure 37.
Claimant is hereby authorized to use the subject property as permitted at the time he acquired the property.
Claimant may apply for a use of the subject property consistent with the zoning and regulations in effect at the
time he acquired the property. That use of the property by the Robert L. Gragg Trust shall be permitted if the
subject property fully complies with all regulations in effect on March 16, 1994. That use of the property by
Marilyn Gragg shall be permitted if the subject property fully complies with all regulations in effect on July 1,
1974. The Community Development Director is hereby authorized to determine the effects that any other non-
exempt regulations in effect on this date would have on Claimants' proposed development differently than
current non-exempt regulations. However, the current procedural regulations for land division and development
applications and approval, including, but not limited to setbacks, access, height, and landscaping requirements
shall be applied.
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. 2005-078 (09/07/05)
Section 5. A STATE OF OREGON WAIVER MAY BE REQUIRED FOR THE DEVELOPMENT OR
USE OF THE SUBJECT PROPERTY. 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 does not affect any land use regulations of the State of Oregon. If the use allowed
by Section 2, above, remains prohibited by a State of Oregon land use regulation, the Planning Director shall
send notice of the Board's decision to the Director of the Department of Land Conservation and Development.
The notice shall include a statement that the County will not accept an application for a building permit related
to the newly allowed use on the property until the earlier of the following events: (i) notice by the Department of
Land Conservation and Development that it concurs with the Board's decision, or (ii) a date 180 days from
issuance of the Board's decision where no response is made to the notice by the Department of Land
Conservation and Development.
Section 7. 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 September, 2005.
BOARD OF COUNTY
OF DESCHUTES COU
DEWOLF, Chair
ATTEST:
Recording Secretary
Y,
R. LUKE, Cor
PAGE 3 of 3- ORDER No. 2005-078 (09/07/05)
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.orq
TO: Board of County Commissioners DATE: September 7, 2005
From: Michael A. Maier, County Administrator
RE: Measure 37 Claim - Marilyn Gragg, aka Marilyn Knott, and
Jane Gragg as Trustee of the Robert L. Gragg Trust
16915 Hwy 126, Sisters
Introduction
The County processed the initial Measure 37 claims using its brief claim form, evaluating the initial
submission, asking that the Claimants furnish more evidence to complete or clarify the claim, 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 that 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, 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 March 22, 2005 when
Measure 37 was in lawful effect. Claimants have paid the filing fee and the County's official demand form
Page 1 of 6 - Exhibit A - Order No. 2005-078
has been submitted. The property is about 80 acres. The current zoning is Exclusive Farm Use (EFU)
with a farm use minimum lot size. The Claimants' desired use is to develop the property into a 16-lot
subdivision with lots of 5 acres. The following is an analysis of the evidence in the record on the
elements of this Measure 37 claim. Claimant is represented in this proceeding by Edward P. Fitch,
attorney.
Current Owners - Marilyn Gragg, aka Marilyn Knott, individually, and Jane Gragg, Trustee of the Robert
L. Gragg Trust
Claimants presented a series of deeds relating to family member ownership from 1974. A Land Sales
Contract shows Robert and Marilyn Gragg purchased the property under contract in 1974. A deed from
the sellers to the Graggs in 1986 indicates fulfillment of this contract. A Bargain and Sale Deed from
Robert Gragg to the Robert L. Gragg Trust dated March 16, 1994, recorded at 88-00823 of the Deschutes
County deed records seems to be the date that the trust first acquired legal title to the property. A title
report accompanying the claim indicates that each claimant owns the property as tenants in common.
Owners Date of Acquisition - Marilyn Gragg, individually - July 1, 1974; Jane Gragg, as Trustee of the
Robert L. Gragg Trust - March 16, 1994
The date of acquisition by the current owners 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 owners. If a waiver is granted as to County land use regulations that were
adopted after the current owners' 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 Claimant, Robert L. Gragg Trust acquired an interest is March 16, 1994, the date the Trust
was created and title was transferred. Claimant Trust has been an Owner for Measure 27 purposes
continuously since that time. The first date Claimant, Marilyn Gragg acquired an interest is July 1, 1974,
Page 2 of 6 - Exhibit A - Order No. 2005-078
the date of the Land Sale Contract, and she has been an Owner for Measure 37 purposes continuously
since that time.
Restrictive Regulation - EFU zoning.
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 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
reduction of property value.
The Claimants have identified the EFU zoning as the only county land use regulations restricting the
desired use of a 16-lot residential subdivision. This regulation is a County land use regulation, which is
subject to Measure 37 claims. At the time Marilyn Gragg acquired the property, the County's ordinances
contained a 5-acre minimum lot size for property then zoned Agriculture A-1 and allowed dwellings as of
right. This property was later classified as EFU and under restrictions adopted by the State in 1993 was
required to have an 80-acre minimum lot size. As to the Robert L. Gragg Trust, the county regulation
imposing an 80-acre minimum lot size would apply, but as to Marilyn Gragg, the 5-acre minimum lot size
would apply.
The applicability of additional development standards will be determined consistent with the Board's
Order when a specific land use application has been received. Non-exempt regulations will not be
applied. Public safety regulations or others exempt under Subsection (3)E of the Measure cannot be
waived.
Enforcement of County Regulation - futile DCC 14.10.040(G).
Measure 37 requires that an ordinance that restricts the current owners' use be "enforced" against them.
There is no evidence that Claimants have applied for a land division of the property resulting in the
current zoning being enforced on the subject property. Claimants have not demonstrated that submitting
an application for such a land division would be futile. However, this Report confirms that such an
application for the desired use would violate the current zoning and be denied. Therefore, the intent of
DCC 14.10.040(G) has been met for this claim.
Page 3 of 6 - Exhibit A - Order No. 2005-078
Reduction in Value - $3,000,000 alleged on Claim Form
The ordinance requires that 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 have submitted no evidence that domestic water is available.
• Claimants have submitted no evidence that electricity is available.
• Claimants have submitted no evidence that the property would qualify for septic permit approval
as evidence that septic approval is feasible in the area.
• Claimants have submitted no evidence that demonstrates access for 16 proposed lots.
• Claimants have not submitted an appraisal of the reduction in value or evidence of the reduction
in value that complies with DCC 14. 10.040(1).
Assuming Claimant Marilyn Gragg could obtain approval of a 16-unit subdivision of the property, absent
current EFU zoning restrictions, the value of her property for Measure 37 purposes would be substantially
reduced.
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 owner, 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, the present owners have continuously owned an interest in the property since 1974, as to
Marilyn Gragg and since 1994 as to the Robert L. Gragg Trust. The latter follows the effective date of Title
18, the County zoning ordinance. Therefore, the full extent of the desired use by Jane Gragg, Trustee of
the Robert L. Gragg Trust, may not be permitted by the regulations in effect in 1994.
A Claimant who receives a waiver must use the current process to seek the needed development permits
based on the zoning in place at the time the current owners acquired the property. Except in a rare case,
Page 4 of 6 - Exhibit A - Order No. 2005-078
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
Marilyn Gragg, individually, as an owner of the property submitted a claim pursuant to Measure 37 that
demonstrates eligibility for her use of the subject property based on non-exempt land use regulations in
effect on July 1, 1974, the date she acquired an interest in the property. There seems to have been
zoning of the subject property at the time. There is no evidence in the record that some additional
development on the subject property would be feasible for available domestic water, sanitary waste
disposal and public road access. The non-exempt County land use regulations that were in effect at the
time Claimant acquired the property would be applied to a subdivision application for that use.
My recommendation is that the Board approve a waiver in the form of Order attached. This Order would
have the effect of waiving the non-exempt County land use regulations that were not in effect until after
July 1, 1974, to allow the Marilyn Gragg to use the subject property in a manner permitted at the time she
acquired the property. In essence, the County would not apply any land use regulations to Marilyn
Gragg's property which were not in effect when she acquired the property unless they are exempt from a
Measure 37 waiver under Subsection (3)E of the Measure.
Jane Gragg, Trustee of the Robert L. Gragg Trust, and as an owner of the property submitted a claim
pursuant to Measure 37 that demonstrates eligibility for her use of the subject property based on non-
exempt land use regulations in effect on March 16, 1994, the date she acquired an interest in the
property. There seems to have been zoning of the subject property at the time. There is no evidence in
the record that some additional development on the subject property would be feasible for available
domestic water, sanitary waste disposal and public road access. The non-exempt County land use
regulations that were in effect at the time Claimant acquired the property would be applied to a
subdivision application for that use.
My recommendation is that the Board approve a waiver in the form of Order attached. This Order would
have the effect of waiving the non-exempt County land use regulations that were not in effect until after
March 16, 1994, to allow Jane Gragg, trustee of the Robert L. Gragg Trust, to use the subject property in
a manner permitted at the time she acquired the property. In essence, the County would not apply any
Page 5 of 6 - Exhibit A - Order No. 2005-078
land use regulations to Jane Gragg's property which were not in effect when she acquired the property
unless they are exempt from a Measure 37 waiver under Subsection (3)E of the Measure.
This waiver is not a development permit. Claimants must apply for development of any use that the
regulations in effect on each of their respective acquisition dates would allow.
Page 6 of 6 - Exhibit A - Order No. 2005-078
EXHIBIT B
In Towmhip 15 South, Range 10 East Of OM Willamette Meridian, Deschu= County,
Ompa; Section 12. The west 112 of the NotthweM 114, reserving dmefrow a foadway .
easement 34' in width along Ow Westerly bmnadary of the described pt%erly.
Order No. 2005-078; Gragg