HomeMy WebLinkAbout2021-09-07 L. Fancher - Rebuttal and Exhibits1 Chenelle Hale From:Liz Fancher <liz@lizfancher.com> Sent:Tuesday, September 7, 2021 3:56 PM To:William Groves Cc:Kameron DeLashmutt; Kameron DeLashmutt; Katzaroff, Kenneth; Mark Douglas Subject:Copy of Map Illustrating Phase A-1 Tentative Plan Lots of Record - File 247-21-000731- A Attachments:Phase A-1 Tentative Plan Lots of Record.pdf; Exhibit 1.pdf; Exhibit 2.pdf; Tax Lot 7700 LOR Decision 2014.pdf; Exhibit D.pdf [EXTERNAL EMAIL] Will: In rebuttal to comments filed by Central Oregon LandWatch regarding lots of record, I have attached a marked up and edited version of the County Assessor’s tax map 15-12-00. Please include this document and my e-mail in the record of 247-21-000731-A as rebuttal filed on behalf of Central Land and Cattle Company, LLC. I have marked the approximate locations of lots of record that are being subdivided to create the Phase A-1 lots. The locations of the lots of record are described in decisions and a County-approved partition plan that are a part of the record of 247-21-000731-A. I have attached copies for ease of reference and to include the illustrations that accompanied the decision for File 247-14-000450-LR. The lots of record are: Tax Lot 7800 – Lot of Record per County decision in File LR-91-56 Tax Lot 7801 – Lot of Record per MP-79-159 (County-approved land division) Tax Lot 7900 – Lot of Record per County decision in File LR-98-44 Tax Lot 7700 – Contains six lots of record per File 247-14-000450-LR – identified on map as LOR 1 – LOR 6 Earlier today I filed electronic and written copies of rebuttal documents on behalf of Central Land and Cattle Company. I do not plan to file a written copy of the e-mail and attachments unless requested because they are printed in black and white and there are fewer than 20 pages of materials. Thank you, Liz Fancher Liz Fancher, Attorney 2465 NW Sacagawea Ln Bend, OR 97703 541-385-3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. • Community Development Department .~.·~".~i;i;[nrum~~~ 117 NW Lafayette Avenue • Bend, Oregon • 97701-1925 (541) 388-6575 FAX 385-1764 Planning Division Ken Theobald 230 SE Third Street Bend, OR 97702 Building Safety Division Environmental Health Division RE: Lot of Record Determination for a tax lot identified on County Assessor's map number 15-12-00 as tax lot 7900, (File #LR-98-44). The Planning Division has reviewed the information you submitted with the application, County Assessor's records and county building and land use permit records. Staff has determined that tax lot 7900 is one legal Lot of Record .. Tax lot 7900 was first described in its present 40 acre configuration in a Warranty Deed dated January 26, 1967, recorded in the Deschutes County Book of Records, Volume 152, Page 88. Subsequently, in 1977, this parcel was conveyed via Statutory Warranty ·Deed dated December 21 , 1977 and record1ed in the Deschutes County Book of Records, Volume 265, Page 853. In 1972, Deschutes County adopted Public Law 5 (Pl-5), the county zoning ordinance, which established county-wide zones and minimum lot sizes for each zone. There was not a land partition ordinance as of the date of the above referenced land transaction. The subject tax lot was zoned Agriculture (A-1), which had a five (5) acre minimum lot size. The approximate 40 acres of land identified as tax lot 7900 is considered to be one Legal Lot of Record because it met all county land use regulations when it was created and it was described in one instrument pursuant to Section 18.04.680(J)(1 )(c). If you have questions regarding this decision, please feel free to contact this office. This decision becomes final ten (10) days from the date this decision Is mailed unless appealed by a party of interest. Sincerely, DESCH UT""~""' (Brian J. Haring BJH:slr Quality Services Perfonned with Pride EXHIBIT 1 LUBA 2018-140 Record - Page 1618LUBA 2019-136 AMENDED RECORD - Page 2691 Community Development Department Administration Bldg. I 1130 N.W. Harriman I Bend, Oregon 97701 (503) 388-6575 May 10, 1991 Harry Kem 1336 NE Ely Terrebonne, Oregon 97760 RE: Lot of Record Determination Deschutes County Assessor's 7800: #LR-91-56. Dear Applicant: for Property Map 15-12-00 Planning Division Building Safety Division Environmental Health Division Identified on as Tax ·Lot The Planning Division has determined that the referenced property is a legal Lot-of-Record and thus is potentially buildable. Tax Lot 7800 was created by a warranty Deed, dated March 14, 1952, recorded in Volume 124, Page 426 of the Deschutes County Book of Records. The parcel met all land use regulations, applicable at the time it was created. The current configuration of the parcel was established when a Minor Partition (MP-79-159) split off Tax Lot 7801. The property is zoned EFU-40, Exclusive Farm Use -40 acre minimum lot size. Development of . the property is subject to the requirements of the Deschutes County Zoning Ordinance PL-15, as well as those of the Building and Environmental Health Divisions. If you have any questions regarding this material, please feel free to contact this office. Sincerely, DESCHUTES COUNTY PLANNING DIVISION George J. Read, Planning Director /1/1~ ~e-4 Nancy Ki~d, Assistant Planner NMK:mjz EXHIBIT2 LUBA 2018-140 Record - Page 1619LUBA 2019-136 AMENDED RECORD - Page 2692 Exhibit D Exhibit D CO/11121U opment De u€€ding Safety; Dimion Envmo part ment 0 March 116 201, Central Land and Cattle Company, LLC1 Post Office Box `>.553 Redmond, Oregon 97756 D RE: Fi id le No. 247-14-0 0045 RO. Box 6005 117 14 ' t,afavette Avenue Bend, Oregon 97708-60d5 541)388-6575 FAX (541)385-1764 LR; Lot of Record Determiination for Property entified on Deschute an ear Applicant:'''' d 7701 County Assessor's Map 15-12-00, Tax Lots 7700 You submitted an application for a lot of record determination for the above referenced tax lot. The Planning Division has reviewed the information you submitted with the application along ith Federal lard conveyance records, County Assessor's records, County Surveyor records, County Cler'ic deeds, and County building and and use permit in€formation.2 Based on this information, we have determined the subject property, consisting of two tax lots as listed above, constitutes six (6) legal lots of record; Section 18.04.030 of the Deschutes County Zoning Ordinance defines a °lot of record" as: A A lot`' or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means: 1a By partitioning land as defined in ORS 92; 2. By a subdivision plat, as defined in ORS 92, filed with the De chutes County Surveyor and recorded with the Deschutes County Clerk, By deed or contract, dated and signd by the parties to the transaction, containing a separate legal description of the lot or parcel, and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description, only one lot of record shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat;. 1 The property owner is Loyal Land Company. The applicant. Central Land and Cattle C,,ompany, LLC Karneron €DeLa hrutt), signed an behalf of the property owner. Kameron DeLashmutt was authorized by the owner to sign on its behalf. The signed authorization is included in the record for the lot of record application. 2 The land use history including past applications and County approvals may not have been relevant in this lot of record determination. 7; X'P+G ,#'ek4'61rd t7 7134ti :.:. 4. By a town plat filed with the Deschutes County Clerk and recorded in the Deschutes County Record of Plats; or 5. By the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot > or parcel. B The following shall not be deemed to be a lot of record: 1. A lot or parcel created solely by a tax lot segregation because of , n assessor's roll change or for the convenience of the assessor. 2. A lot orparcel created by an intervening section or tnship line or right of ways 3, A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was' conveyed subject to DCC ''1&O4 030(B). 4. A parcel created by the foreclosure of a security interest. Deschutes County adopted its first zoning ordinance (PL -5) on November 1, 1972, which described' minimum lot sizes for new parcels. This zoning ordinance was replaced in 1979 with PL -15. The subdivision ordinance of 1970, PL. -2, regulated subdivisions less' than 10 acres in size but did not regulate partitions. The partition ordinance (PL -7) was adopted in 1977, vk ich described the criteria under which parcels could be partitioned (divided). Land Use History and Public Comments The subject property and other properties in the area include a detailed and controversial land use history in regards to the potential development of the Thornburgh Destination Resort. Based on this land use history, on January 9, 2015, Central Oregon Land Watch (COLW) sublrr fitted' a written comment, wt ich is inc luded`>below. LandWatch does not believe that these applications for lot of record determinations are complete. We disagreewith the interpretation that subsequent conveyances do not consolidate' lots and believe that past 'applications ''and county approvals on this property are inconsistent with these proposed determinations. The record is incomplete as it fails to explain the full hisfoiry of these properties. Further, the property owner has not signed these applications and there is no attached letter frorn the owner authorizing any other signature. The proper procedure for partitioning of these lands is provided In Title 17` In the event that this decisi is3 les addressed on here. is appealed, staff recommends the Hearings B ody review the Tax Lot 7700 History The following atlon is a sequentia review of land conveyances in the area involving the subject property, tax lots 7700 and 7701 of map 15-12-00 (index map). For reference, Figure 1 shows the tax lot in its current configuration. Figure 2 For the ten years between 1910 and 1919, five land grants were conveyed in the area. The five land grants were dated and signed by the parties to the transaction, containing a se, arate'lega description of the parcels„ and eventually recorded in Deschutes County. The first of these federal conveyances was from € M rch 24, 1910 when 160 acres was conveyed to George W. Hinshaw ''in a United States land grant (Patent Number 120954) and later recorded in Volume 1 of Patents, Page 505 at the Deschutes County Clerk's Office. This parcel is illustrated as Parcel'' A on Figure 2. Parcel A is described as the northeast quarter (NE V4) in Section 28; Township 247-14-000 400--1.R, entr Land Cattle Cor ,pang, LLC Pa e2 15 >>South, Rang as a legal lot of e 12 Eas record, he lar Tette Meridian. This unit of land (Parcel A) is recognized Through a U.S. land grant dated April 20, 1911, 160 acres was conveyed to John T. Park Patent Number 192094) and later recorded in Volume 22, Page 437 at the Deschutes County Clerk's Office. This parcel is illustrated as Parcel E on Figure 2. Parcel D is described as the northwest quarter of the southeast (NW %%4 SE %) and the southwest quarter of the northwest quarter (SW 1/4 NW Y4) of Section 28 and the northeast quarter of the southeast quarter (NE 3 SE ') and the southeast quarter of the northeast quarter (SE % NE 1) of Section 29, Township 15 South, Range 12 East of the Willamette Meridian. This unit of land (Parcel 6) is recognized; as a legal lot of record, On November 3, 1916, 160 acres was conveyed to the Heirs of Hannah M. Anderson in a U.S. land grant (Patent Number 552951) and later recorded in Volume 24, Page 505 at the Deschutes County Clerk's Office. This parcel is illustrated as Parcel C on Figure 2 and is described as the east half of the southeast quarter (E A SE %) and the southwest quarter of the southeast quarter (SW % SE %) of Section 20 and the northwest quarter of the northeast quarter (NW Y4 NE %) of Section 29, Township 15 South, Range 12 East of the fitillara ette Meridian. Parcel Cis recognized as a legal lot of record. As noted in Patent No, 684417, the United States conveyed 160 acres to Erton Fielding on June 9, 1919. This and grant was later recorded at the Deschutes County Clerk's Office in Voiume 28, Page 165. This parcel is illustrated as Parcel D on Figure 2. Parcel D is described as the southwest quarter of the southwest quarter (SW 1.4 SW 14) of Section 21, the north half of the northwest quarter (NY; NW %) of Section 28, and northeast quarter of the northeast quarter NE % NE F9) of Sections 29, Township 15 South, Range 12 East of the Willamette Meridian. This unit of land (Parcel D) is recognized as a legal lot of regard. On August 11, 1919, 160 acres was conveyed to Rosetta Wells in a U.S. land grant (Patent Number 702272) and later recorded in Volume 32, Page 128 at the Deschutes County Clerk's Office. This parcel is illustrated as Parcel E on Figure 2. Parcel E is described as the southeast quarter of the northwest quarter (SE % 'N " 4), the northeast quarter of the southwest quarter NE % SW %), and the north half of the southeast quarter (N Y2 SE `Yi) of Section 28, Township 15 South, Range 12 East of the Willamette Meridian. This unit of land (Parcel E) is recognized as a legal lot of record. Figures3 and 4 On March 29, 1949. Jack Shumway conveyed to Chloe E. Bryant several tracts of and that included the those areas of Parcels 13, C, and D that are located in Section 29 as shown on Figure 2, This parcel is illustrated as Parcel F on Figure 3. The Warranty Deed was recorded in Volume 89, Page 467 at the Deschutes County Clerk's Office. Because of the 1949 conveyance, Parcels f , C, and D were separated. The western half of Parcel E (Fig. 2) was separated from its eastern half (80 acres) in Section 28, leaving behind a remnant parcel with legally established boundaries. The southern 40 acres of Parcel C (Fig. 2) was separated from its. northern 120 acres in Section 20. Additionally, the Nester rmost 40 acres of Parcel D located in Section 29 was separated from the 120 acres located in Sections 21 and 28. On January 29, 1957, Jack and Sarah Shumway conveyed to Everett W. and Eva S. Thornburgh several tracts of land that included those areas of Parcels C and D that are located in Sections 20 and 21. This parcel is illustrated as Parcel G on Figure 3, The Warranty Deed 247; 14 -000450 -LR, Centra Land & Cattle Company LLC Page 3 was recorded in Volume 118, Page 152 at the Deschutes County Clerk's Office. The result of the 1957 conveyance separated the northern 40 acres of Parc& 0 (Fig. 2) located in Section 21, leaving behind a remnant parcel with legally established boundaries, The remainder parcels, shown as Parcels H, J, K, and L, that result from the 1949 and 1957 conveyances are illustrated on Figure 4. Parcel H is described as the northwest quarter of the southeast (NWY4 SE ,) and the southwest quarter of the northwest quarter (SW % NW 1/4) of Section 28, Township 15 South, Range 12 East of the Willamette Meridian. Parcel J is described as the north half of the northwest quarter (NIA NW Y4) of Section 28, Township 15 South, Range 12 East of the Willamette Meridian. Parcel K is described as the east half of the southeast quarter (E SE %) and the southwest quarter of the southeast quarter (SW"/ SE %)' of Section 20, Township 15 South, Range 12 East of the Willamette Meridian. Parc& ''L is described as the southwest quarter of the southwest quarter (SW ' SWY4) of Section 21 Township 15 South, Range 12 East of the Willamette Meridian. Parcels H, J, K, and L are recognized as separate legal) lots of record as discussed below. Figure 6 On August 30, 1977, Everett and Eva Thornburgh conveyed to Key TV Incorporated four tracts of land (Vol. 258, Page 166). One of the four units of land was separated from Parcel K shown on ''Figure 4. This unit of land is shown as Parcel M on Figure 5 and is approximately one (1) acre. At the time of the 1977 conveyance to Key TV inc., the land partition ordinance PL -7 was, used to regulate all partitions, In addition, the zoning ordinance PL -5 regulated minimum lot sizes. In 1977, the subject property was zoned Exclusive Agriculti cal, A-1, which had a 5 -acre minimum »lot size. The subject property did not receive the benefit' of an approval for a partition or subdivision and did not meet the minimum lot size for the zone, Parcels M is not recognized as separate legal lot of record. Lot of Record Analysis The applicant applied for verification of I'ot(s) of record under Deschutes County Code (DCC) 18.040.030(A), which;;, is defined above. The applicant, provided a complete application regarding the history of the parcel creation, which allowed staff to render a decision where only lots or parcels legally created are recognized by the County for development purposes, Based on the sequential conveyances of land, staff finds the subject property (tax lots' 7700 and 7701) constitute six separate legal lots of record. The six legal lots of record are shown on Figure 6. The noted legal lots of record are all at least 5,000 square feet in area and 50 feet wide. In addition, the sequential land conveyances for all properties occurred prior to the County's first subdivision ordinance and zoning ordinance (1970 and 1972, respectively). Since the applicant is not seeking to divide the subject property, the procedures set forth in the current county subdivision ordinance, Title 17, are not applicable, The 1977 conveyance of Parcel M shown on Figure 5 is an exception. This parcel is not recognized as separate legal lot of record because the partition and zoning ordinances were in effect at the time of the 1977 conveyance. Two legal,' lots of record, Parcels 1 and 2 on Figure 6 were established with discrete boundaries ifs federal conveyances from 191.0 and 1919, respectively. These jx..ircels have remained unchanged since 1910 and '1919, Parcels 3, 4, 5, and 6 on Figure 6 were first established with discrete boundaries through three separate federal conveyances but were changed through two subsequent conveyances. The subsequent conveyances in 1949 and 1957 separated the parcels, leaving remnants of the parent parcels. Although a subsequent deed from 1977 conveyed one unit of land, Parcel' M as shown on Fig. 5, it is not recognized as a legal lot of 247;414--000450-LR, Central Land ;. tt€e Company, LLC Page 4 record, Therefore, Pa e 5 is recognized as a leg boundaries from the 1916 conveyance, a lot of repo rd using the initia discrete Most of the parcels reviewed here were ''included in subsequent deeds that described adjacent lands together in a single deed. Including the parcels in a single deed does not eradicate the boundary lines that legally established those properties in the pastEvidence was not found that indicated the subject legal lots of record were consolidated through a property line adjustrnent approval or platted as part of a subdivision or partition. In the decision LR -10-2 (A, 10- ) and in LR -92-43, LR -92-44, LR -92-46, and LR -92-47, Deschutes County Hearings Officers Bound that the mere inclusion in a single deed of multiple parcels lawfully created by conveyances did not result in the eradication of the parcels'previous legally established boundary lines." Furthermore, the remnant parcels (Parcel 3, 4, 5, and 6, Fig.'' 6) were first established as separate larger parcels with legally established boundaries, and were surrounded by legally established' boundaries of other parcels. Although the remainder parcels left behind does not meet the strict definition contained in DCC 18.040,030(A)(5) because the adjacent or surrounding lands have not been subdivided or partitioned, once altered by subsequent conveyances it becomes a legal remainder parcel, In decision LR -10-2 (A-10-3), the County Hearings Officer articulated'' that remainder lots are surrounded by legally created lots. Staff finds this determination is reasonable in this instance for all parcels considered a remainder parcel The subject property is zoned Exclusive Farm Use —Sisters/Cloverdale subzone (EFUSC) and Destination Resorts (DR). Any development of this property is subject to the requirements of Title 18, Deschutes County Zoning Ordinance. Development of this property is also subject to the requirements of the County Building and Environmental Soils Divisions; This d eclision becomes final twelve (1 2) d appealed by a party of interest Cynthia Sm Enclosures dt, Associate Planner 3 ys fro the date al is decision is mailed un On February 2, 2015, the app€acant's°attorney, Liz Fancher, submitted the following comments. ORS 92.017 protects historic lots created by deeds (as well as lots and parcels created by partitions and subdivisions) from being consolidated due to con on ership. ORS 92.017 provides that a "loot' or parcel lawfully created shall remain a discrete> lot or parcel, urnnss the lot or parcel lines are vacated e>lot or parcel is further divided, ;s provided by law." Affirmative>action to eliminate lot boundaries y platting, ?rpt line core oliclations or B rough vacation proceedings is required Weyerhaeuser Real Estate Development>.Co, v. Polk County, 246 Or App 546 (2011)(recorded pplat approved under law in effect in early 1983 vacated historic lot lines for lots shown on partition plat; discusses other eans of elim inating lot lines otherwise protected by ORS 92017); Kishpaugh v. Clackamas County, 24 Or LLIBA 164, 172 (1952 ORS 92.017 requires counties to recognize !awfully created lots and parcels e action is taken to erase the lawfully -established prone lines."). To date, no actions that lines have occurred on the>subject property. 247 -14 -000450 -LR, ntral Land Cattle Company, LLC Pa Deschutes County File 247-14-000450 FR URE 151217 151215 151 21 0 16122 15122 15122 151227 151233 151234 CURB ENT CON RATION 151218 Deschutes County File 247 -14 -000450 -LR CURE 2 1512.E 15ii. 151215 1.51221 51219 151220 151229 PARCEL A 1910 U.S, LAND GRANT , PARCEL B -1911 U.S. LAND GRAN" PARCEL C>1916 U,S. LAND`GRANT PARCEL D ---- 1919 U.S., L AND GRANT PARCEL 1919 U.S. LAND GRANT Deschutes County File 247 14 -000450 -LR FIGU RE 1512' 151234 PARCEL F -1949 DEED PARCEL G 1957 D ED Deschutes County File 247 -14 -000450 -LR FIGURE 4 151216 W- 151215 151221 15122€ 230 151229 15123 151232 151233 Tu...E Sri, i.ECt .& ' is• v' X\N PARCEL H - REMAINDER, PARCEL - REMAINDER`` PARCEL K``_ REMAINDER PARCEL L. REMAINDER 151215 Deschutes County 151217 File 247-14-000450- R F1 7i4 OOO450- FR 3l RE 51215 151215 151221 1512191 151220 151230 151229 vnauaxa\ 151227 X 51234 e. 6.i,?.... . 1 #?1 ._ . 3ittZ ,i.; :;., r'2 .1, k.fl>::::. PARCEL M 1977 DEED es County He 247 14-000450 15122 224 232 151233 15 2' vvvvvvvv.v. LGL LOT 0 xv 6 Co amity Dev Depa P/an ing Division Building Safety Division Envir&nrn Division DOCU CERT FILE NU 111 E MB NT l P.O. Box 6005 117 NW Laf yette Avenue Bend, Oregon 97008-6005 541)388-8575 FAX (541)385-1764 ht p://wwwt,co,deschuLe . +r.s-sjcdd/ F CATE OF B LE R: 24714 MA 000450 -LFR D: Decision Letter MAP AND TAX LOT N UM BE 5-12-00-7700 (primary), -77 01 certify that on the 15 i, day of March, 2015, the attached notice, dated March 16, 2015, o the persons and addresses set forth on thewasmailedbyfirstclassmail, postage prepaid, attached list, Dated this 116 CO Lei Fai1c er, Attorney, 644 NW Broadway St;. Bend, OR 97701 Kameron DeLashmutt, Central Land and Cattle Company, LLC P.0, Box 553 Redmond, OR 97756 Loyal Land LLC 80908 Hermitage La Quinta, CA 92253 MMUN day of ,larch, 2015. TY DEVE By: 0 he P ENT D r Buckner FP RT my Assessor ENT Paul >.Dewey Central Oregon Land Watch 50 SW Bond, Ste 4 Bend, OR 977021 Qu acs Perfonsned with Pride