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Home My WebLink About2021-09-07 C. Macbeth - COLW Comments1 Chenelle Hale From:Carol Macbeth <carol@colw.org> Sent:Tuesday, September 7, 2021 1:14 PM To:William Groves Subject:LandWatch Sept. 7 comments LUBA No. 2018-140 Attachments:LandWatch September 7 comments.pdf; Att. 1.pdf; Att. 2.pdf; Att. 3.pdf [EXTERNAL EMAIL] Hi Will, Attached please find our additional comments on the above application. Please place these comments before the Hearings Officer, and acknowledge receipt. Best, Carol -- Carol Macbeth Staff Attorney Central Oregon LandWatch Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 2843 NW Lolo Dr., Ste. 200 | Bend, OR 97703 Phone: (541) 647-2930 www.colw.org September 7, 2021 Hearings Officer Deschutes County Community Development 117 NW Lafayette Avenue Bend, OR 97703 Re: 247-21-000731-A, 18-386-TP, 18-454-SP, 18-542-MA, LUBA No. 2018-140, Court of Appeals A171603: Dear Hearings Officer: This is in response to Applicant's August 31, 2021 "Post-Hearing Evidence" letter regarding the loss of lot of record status of TL 7800, 7801, and 7900. The subject parcels TL 7800, TL 7801, and TL 7900 are no longer lots of record. No land use decision may be made concerning them. DCC 22.04.040(B)(1)(a); DCC 22.20.15(A).1 This matter is squarely before the Hearings Officer. The lot of record status of the new parcels TL 7800, TL 7801, and TL 7900 is a threshold issue that must be addressed prior to making this land use decision. DCC 22.04.040(B)(1)(a) requires verification of lot of record status before any permits may be issued to units of land in the Exclusive Farm Use Zones. 1 DCC 22.20.15(A) : [I]f any property is in violation of applicable land use regulations, and/or the conditions of approval of any previous land use decisions or building permits previously issued by the county, the county shall not: 1. Approve any application for land use development 2. Make any other land use decision... Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 2 Applicant changed the lot of record status of TL 7800, TL 7801, and TL 7900 on July 30, 2021 by creating a 10.73-acre parcel and a 0.5-acre parcel in the SE 1/4 of Section 29, T 15 S, R 12 E, WM. Att. 1, 2 (July 30, 2021 deeds creating new parcels); Att. 3 (approximate map of new 0.5-acre parcel). Since the recording of these deeds the property has been in violation of DCC 17.04.02 and ORS 92.012 (prohibiting subdivision or partition except in accordance with state and county subdivision or partition requirements).2 The approval criterion that the parcels must be lots of record can be likened to an approval criterion for a bridge to a land development. It would't matter if in a former proceeding the bridge criterion had been found to be met, if the bridge subsequently burned down. The bridge criterion would still have to be addressed, again, prior to final approval. In the same way it does not matter if lot of record status for the parcels was found to be met in an earlier proceeding. Now that TL 7800, TL 7801, and TL 7900 are no longer lots of record, the criterion must be addressed again prior to final approval. Applicant is in error in stating in the August 31, 2021 letter that the recording of the attached deeds was not consequential. The subsequent conveyances of the same lands described in the August 31, 2021 letter do not validate the new unlawfully created units of land: validation of unlawfully created units of land is governed by statute. ORS 92.176. The statutory remedy to validate unlawfully created units of land is limited to units of land unlawfully created before January 1, 2007 and does not apply: 2 DCC 17.04.02: No person may subdivide or partition land within the County except in accordance with ORS 92 and the provisions of DCC Title 17. ORS 92.012: No land may be subdivided or partitioned except in accordance with ORS 92.010 (Definitions for ORS 92.010 to 92.192) to 92.192 (Property line adjustment). Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 3 "ORS 92.176(6): A county or city may not approve an application to validate a unit of land under this section if the unit of land was unlawfully created on or after January 1, 2007." The subsequent conveyances referred to in Applicant's August 31, 2021 letter do not validate the unlawfully created TL 7800, TL 7801, and TL 7900. Applicant's August 31, 2021 letter is further in error in stating "the deeds would have been allowable as a lot line adjustment between Central Land’s lots of record." Letter, n. 1. The attached deeds create additional parcels, one of 0.5 acres, and one of 10.73 acres. A lot line adjustment cannot create an additional parcel by definition. DCC 17.08.030; ORS 92.010(12)3 (defining a "property line adjustment" to mean relocation or elimination of all or a portion of the common property line between abutting properties that does not create an additional lot or parcel). Applicant is utterly mistaken in stating that creation of the additional 0.5-acre and 10.73-acre parcels "would have been allowable as a lot line adjustment." Id. Applicant quotes LandWatch Lane County v. Lane County (Doughty), __ Or LUBA __ (LUBA No. 2019-044, October 15, 2019) for the proposition that: “[N]ew parcels have not been created because the deed creating the parcels occurred after land use laws regulating land division became applicable." This is a semantic rather than a legal argument. In Ogan v. Ellison, 297 Or. 25, 28, 682 P.2d 760(1984), the Supreme Court addressed the question of 3 ORS 92.010 (12): “Property line adjustment” means a relocation or elimination of all or a portion of the common property line between abutting properties that does not create an additional lot or parcel. Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 4 whether parcels are or are not created by deeds where no partition has been approved though prior partition approval is required. Ogan concerned the conveyance of two areas of land. The court wrote: "Technically, it could be argued that defendants did not convey parcels of land to plaintiffs in the two transactions because they were not 'parcels of land' as defined in ORS 92.010(6). ... In any event, defendants admit that the conveyances were not of lawfully partitioned land." The Supreme Court noted that ORS 92.016(2)4 forbids the sale of a parcel for which a partition is required prior to the approval of a partition. The court considered whether the prohibition in ORS 92.016(2) renders a seller's promise to convey a parcel by deed unenforceable because it is void. The Court held that whether a promise which is violative of a statute is enforceable depends on the intent of the legislature and the public policy furthered by the statute, noting that courts will refuse to enforce contractual promises to murder or pay for a murder. The Court concluded the legislature did not intend for ORS 92.016(2) to mean that conveyances like the one in Ogan, and here, are void. Id. at 31. Just as the purchasers became the owners of the areas of land conveyed in Ogan, Pinnacle Utilities became the owner of the 10.73-acre and 0.5-acre "parcels," i.e. "discrete areas of land in a single ownership" on July 30, 2021. The deeds are not void. Ogan, 297 Or. at 31. The fact that these are not "parcels" in the sense of ORS 92.010 does not mean they were not created. 4 ORS 92.016(2) provides in relevant part: "[N]o person may sell any parcel in a partition for which approval of a tentative plan is required by any ordinance or regulation adopted under ORS 92.044 [] or ORS 92.046 [], respectively, prior to such approval." Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 5 They exist, and in common parlance they are "parcels," just not as that term is defined in ORS 92.010. LUBA has explained that the recording of a deed produces parcels. Wolcott v. Lane County, __Or LUBA__, LUBA No. 2017-096 (2018). To be lawful, parcels must be created pursuant to a county-approved partition: otherwise, as occurred here, the recording of a deed creates unlawfully created parcels. Id. Applicant's argument that the deeds "did not create new parcels" is semantic rather than legal. The deeds did not create developable "parcels" as that term is defined in ORS 92.010. But unless the deeds were void as in violation of ORS 92.016(2), which the Supreme Court has said they are not, then the parcels were created in the sense of "areas of land in discrete ownership." Semantics aside, five new parcels were created by the recording of the attached deeds. The July 30, 2021 illegal land divisions effected by the attached deeds make all of the parcels involved in the division undevelopable units of land. The new 0.5-acre parcel, the new 10.73-acre parcel, TL 7800, TL 7801, and TL 7900 are all undevelopable as a result of the unlawful division of land in the attached deeds. All five are unlawfully created parcels that cannot and do not qualify as lots of record. LandWatch Lane County v. Lane County (Doughty), ___ Or LUBA ___, LUBA No. 2019-044 (2019); Hartmann v. Washington County, 36 Or LUBA 442, aff'd, 164 Or App 177, 991 P2d 65 (1999). The new parcels were not created in compliance with all zoning and subdivision or partition requirements. DCC 17.04.02; ORS 92.012. Because Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities 6 they were not created in compliance with all zoning and subdivision or partition requirements they do not qualify as lots of record under the county definition of "lot of record." DCC 18.04.030 : " 'Lot of Record' means: A. A lot or parcel ... which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created" To summarize, the Hearings Officer lacks the authority to issue a decision for these EFU lands unless the parcels are lots of record. DCC 22.04.040(B)(1)(a) (parcels must be verified to be lots of record prior to the issuance of any land use permit for a unit of land in the Exclusive Farm Use Zones). This matter is squarely before the Hearings Officer. TL 7800, TL 7801, and TL 7900 are no longer lots of record because they were created on July 30, 2021 in violation of applicable land use regulations. The application must therefore be denied. DCC 22.20.15(A) (no land use decision or approval of any application for land use development may be issued to "any property that is in violation of applicable land use regulations"). Thank you for your attention to these views. Sincerely, /s/ Carol Macbeth Carol Macbeth Staff Attorney Central Oregon LandWatch AFTER RECORDING RETURN TO: Pinnacle Utilities, LLC 244 7 NW Canyon Drive Redmond, OR 97756 UNTIL A CHANGE IS REQUESTED, ALL TAX STATEMENTS SHALL BE SENT TO: Pinnacle Utilities, LLC 2447 NW Canyon Drive Redmond, OR 97756 Deschutes County Official Records 2021-44814D-D Stn=7 AP 07/30/2021 02:54 PM $25.00 $11.00 $10.00 $61.00 $6.00 $113.00 I, Nancy Blankenship, County Clerk for Deschutes County, Oregon, certify that the instrument identified herein was recorded in the Clerk records. Nancy Blankenship -County Clerk STATUTORY QUITCLAIM DEED (Oregon) CENTRAL LAND AND CATTLE COMPANY LLC, an Oregon limited liability company ("Grantor"), releases and quitclaims to PINNACLE UTILITIES, LLC an Oregon limited liability company ("Grantee"), all right, title and interest held by Grantor in and to the following described real property: The real property described in Exhibit "A" attached hereto. The true consideration for this conveyance is $330,116.00. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT THE PERSON'S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. THIS INSTRUMENT DOES NOT ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.010 OR215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2010. Dated this 30th day of July, 2021. [Signature and notary acknowledgment appear on following page.] Return To: 1 - STATUTORY QurTcLAIM DEED (OREGON) Deschutes County ·Title eompanY STATE OF Drt3{)1/l ) County of Deuhub � ss. GRANTOR: CENTRAL LAND AND CATTLE COJvfi>ANY LLC, an Oregon limited liability -4-\tt J . This instrument was ackn�v.;Iedged before me this JO day of -LJ,./ '{ , 202 J., by Kffi'Y)uDn ToLts.h m12�. as-----of Central Land add Cattle Company LLC, an Oregon limited liability company. • OFFICIAL STAMP GRETCHEN CONNER PECK NOTARY PUBLIC-OREGON COMMISSION NO.1008322 ·IIY COMMISSION EXPIRES FEBRUARY01,2G25 2 -STATUTORY QUITCLAIM DEED (OREGON) NOT y PUBLIC FOR 6 :le. . � f 6 /'e(:JC:4·1.,.My Commission Expires: ,;7 e-I �-� O,;J. s--- more less, 01 °27'23" West a distance a the 3 -STATUTORY QUITCLAIM DEED (OREGON) 1 11 HEGISJt:RE:b PROFl;SS!ONAl,, LANO: SU.R'.VEYdR PATRICK.�A(tE COLE· EXHIBITB-2 LOCATED IN THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER (SE1/4 SE1/4) OF SECTION 29, TOWNSHIP 15 SOUTH, RANGE 12 EAST, W.M., DESCHUTES COUNTY, OREGON ------ NORTH N15'21 '46"E 57.24' 7/ZB/ZI REGISTERED PROFESSIONAL LAND SURVEYOR NE CORNER SE1/4SE1/4 SECTION 29 N88"32'36"E 507.92' FACILITY LOT 5 TRUE POINT OF BEGINNING N89'22'43"W 525.00' N45'25'10"W 72.03' OREGON JULY 10, 2007 PATRICK GAGE COLE 79157 EXPIRES: 12(31/21 POINT OF COMMENCEMENT SE CORNER SECTION29 S: \Land Prajects\Thornburgh\dwg\SURVEY\1801 lOA-Descriptions.dwg Jul 28, 2021 1-1 Wr A. FACILITY LOT s SHEET ,M _____ c_E_N_T_R_A_L_LA_N_□_A_N_□_c_A_TT_LE_co_M_PA_N_Y_L_L_c __ ---t 2/2 SCALE: 1" = 200' DRAWN BY: AQR DATE: 7/29(2021 CML El,GINEEl'IING I SVl'IV�YIHG I PLANNING