1995-41244-Order No. 95-099 Recorded 11/27/1995,0148-Qi 0
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, O9REGON
An Order accepting and approving the Engi eer's 244
Report on the vacation of a portion of Big Buck Road
located in Fremont Canyon Subdivision, Deschutes
County , Oregon, setting a date for a public hearing,
and providing for public notice of said hearing.
ORDER NO. 95-099
REVIEWED
27 .
LEG COUN L
WHEREAS, the Board of County Commissioners of Deschutes County, Oregon, initiated the
vacation by Resolution Number 95-073 dated on November 22, 1995; and
WHEREAS, at the request of the Board of County Commissioners of Deschutes County,
Oregon, the County Engineer has submitted a report on the proposed vacation pursuant to ORS
368.346; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
ORDERS as follows:
Section 1. That the Engineer's Report relating to the vacation of a certain dedicated public
road known as a portion of Big Buck Road, Exhibit "A", attached hereto and by this reference
incorporated herein, is hereby accepted and hereby approved.
Section 2. That on Wednesday, January 3, 1996, at 10:00 a.m. at the Deschutes County
Juvenile Justice Center, Conference Room "A", Bend, Oregon 97701, the Board will hold a hearing
to determine whether vacation of the subject property, described in Exhibit "B", attached hereto and
by this reference incorporated herein, is in the public interest.
Section 3. Notice of said hearing shall be provided by posting and publication in a form that
substantially conforms with Exhibit "C", attached hereto and by this reference incorporated herein,
pursuant to ORS 368.346(3) and 368.401 to 368.426.
DATED this A-`� day of X-), 1995.
BOARD OF COUNTY COMMISSIONERS
OF D HUTES, 0 TY, OREGON
BARRY H. S AUGHTER, C AIRMAN
AT l✓ 1CROFILIAED
NAN OPE SCHLANG , COMMISSIONER
NOV 2 8995
Recording Secretary
A
ROB RT L. NIPPER, COM I SIONER
(rTJ
1995
1 -ORDER NO. 95-099
_TES C
EXHIBIT "A"
( IL �1
Department of Public Works
MEMORANDUM
TO: Board of County Commissioners
FROM: Tom Blust, County Engineer
DATE: November 13, 1995
SUBJECT: Engineer's Report
Vacation of a Portion of Big Buck Road
61150 S.E. 27th St., Bend, OR 97702
(503) 388-6581 • FAX (503) 388-2719
This report is made pursuant to ORS 368.326 through 368.366, concerning the vacation
of public road right-of-way.
Background:
Deschutes County received a petition (attached as "Exhibit I") from Lisa and Gary
Zimmerman, John McElhiney, Donna Wolff, Drew Snyder, B.C. Harvey, and Louise
Taylor, requesting the vacation of a public road right-of-way. The requested vacation is
for a portion of Big Buck Road lying within Fremont Canyon Subdivision. The legal
description of the proposed public right-of-way vacation is attached as "Exhibit 2".
Maps showing location, ownership, and zoning are attached as "Exhibit 3".
The chief petitioners, Gary and Lisa Zimmerman, own the abutting property on both
sides of the proposed road vacation (Fremont Canyon, Block 1, Lots 5 & 8). The
petitioners are requesting this vacation because they feel that the road right-of-way is not
needed for public access, and since they own the property on both sides of the right-of-
way they would be able to make better use of the parcel, rather than having it sit as an
un -used piece of land.
Discussion:
The proposed vacation lies within Fremont Canyon Subdivision approximately 6 miles
northeast of Sisters. Fremont Canyon Subdivision consists of 12 lots of 40 acres each.
Lots 5 through 10 abut Big Buck Road. An 80 acre parcel of land, administered by the
Bureau of Land Management (BLM), abuts the westerly terminus of Big Buck Road.
Big Buck Road is just over 1/2 mile in length and is accessed from Wilt Road. Big
Buck Road, from Wilt road to the easterly boundary of the Zimmerman property, is a
non -County maintained cinder and dirt road. The traveled road ends at the easterly
boundary of the Zimmerman property and there is no evidence of the right-of-way being
used for road purposes beyond this point to the west.
The petitioners represent all of the properties abutting Big Buck Road, with the
exception of the BLM, which administers property abutting the westerly terminus of the
road.
Quality Services Performed with Pride
Engineer's Report
Page 2
0148-09'j2
From evidence on the ground, it appears that there are both telephone and electrical
power facilities within this portion of public road right-of-way. There is also a wire
fence running along the center line of the right-of-way, the entire length of the
Zimmerman parcels (Lots 5 & 8).
The Department of Public Works mailed preliminary notices of the proposed vacation to
the affected utilities and agencies. Their responses are as follows:
U.S. West Communications: U.S. West has no interest in this utility easement.
Pacific Power and Light: No response
Central Electric Cooperative: No response.
Deschutes County Community Development: George Read - Please note: This road
was dedicated as part of a subdivision plat. Vacating this road may invalidate the plat.
All parcels are required to have access on a public road. This action may need a land
use permit.
Deschutes County Property Management: It has been general County policy to not
vacate public right of way which provides access to public land. The exception would
be situations in which alternate access exists providing adequate public access and
vacation of the right of way serves a legitimate public purpose. The BLM should be
consulted on the issue.
Cloverdale Rural Fire Protection District: No response
Sisters Fire Department: D. Mouser, Chief - June 27, 1994, Sisters - Camp Sherman
RFPD offered a fire contract. To date 5/30/95 we have received no response. If in the
future they wish protection we will need roads to the property identified. At this time it
is out of any fire district.
Bureau of Land Management: Phil Paterno - No comment regarding vacation of Big
Buck Road. Please continue to maintain Bay Rum Ln. as a public easement. This right-
of-way provides access to BLM administered lands located in the W 1/2, NW 1/4
Section 18.
Deschutes County Legal Counsel: (Response is attached as Exhibit "4")
Findings•
Based on preliminary responses, and the Department's research of the proposed
vacation, the Engineer makes the following findings:
1. The right-of-way proposed for vacation was dedicated to the public for road
purposes on the original plat of Fremont Canyon Subdivision recorded with the
Deschutes County clerk on April 26, 1978. Preliminary approval of this plat was given
by the Deschutes County Hearings Officer, Eugene Venn, on February 21, 1978. The
approval incorporated the findings and requirements outlined in the Deschutes County
staff report dated February 7, 1978. This report makes no mention of providing access
to the surrounding public lands, other than a requirement for dedication of a public road
right-of-way for access to County owned lands in Section 7 (this was dedicated as
Blazer Lane on the Plat). However, the County's Subdivision Ordinance at the time,
PL -2, required that a subdivision adjoining unsubdivided land include stubbed streets to
Engineer's Report 0148-0973
Page 3
the boundary of the unsubdivided land to permit future subdivision or through flow of
the adjoining land. Stubbed streets on the plat, such as Big Buck Rd., seem designed to
meet this requirement. Thus it would appear that the dedication of Big Buck Road was a
requirement of subdivision plat approval.
2. It appears that the vacation process is adequate to amend the plat and that a land use
process is not necessary to effect the vacation of this dedicated right-of-way. The
vacation process requires adequate findings, notice and a hearing per ORS Chapter 368.
Furthermore, ORS Chapters 92 and 368 both seem to anticipate that the vacation process
will be used to change the configuration of platted property.
3. Wilt Road, which is classified as a rural collector, is the only road in this area that is
shown on the Deschutes County Transportation Plan. The Plan does not show any
arterial or collector connections through the area of the proposed vacation.
4. Surrounding zoning: all of section 18, comprising Fremont Canyon Subdivision as
well as the BLM parcel, is zoned EFU. Section 7 to the north is also zoned EFU. The
land in section 13, to the west, is zoned F2 and the land in section 12 adjoining the
northwest corner of section 18 is zoned F1. Any future extension of either Big Buck
Road or Bay Rum Lane across these parcels would require a land use goal exception.
5. The Big Buck Road right-of-way provides access to public lands administered by the
BLM. The BLM has consented to the proposed vacation with the stipulation that the
public access to the BLM parcel be maintained through Bay Rum Lane, which abuts
their property on the south. Although Bay Rum Lane exists as a dedicated right-of-way,
the roadway has never been cleared or constructed and is not passable at present. Based
on a field inspection of both Big Buck Road and Bay Rum Lane, it appears that Bay
Rum Lane would be the more economical of the two routes to construct due to
topographical considerations.
6. There appear to be both telephone and power utility facilities lying within the
proposed vacation.
7. This right-of-way does not provide access to any parcels other than the abutting
properties.
8. DCC 17.36.180 A, states: "Each lot or parcel shall abut upon a public road for at
least fifty feet, except for lots or parcels fronting of the bulb of a cul-de-sac, then the
minimum frontage shall be thirty feet". The proposed vacation would leave both lots 5
and 8 with 30 feet of frontage on the end of Big Buck Road. This amount of frontage
meets the minimum for frontage on a cul-de-sac bulb. However, since the road would
not end in a bulb, a dedication for a bulb would be necessary to meet code requirements.
The frontage of all other lots would remain unaffected by the vacation.
9. Per ORS 368.366, vacated property shall vest in the owner of the land abutting the
vacated property by extension of the person's abutting property boundaries to the center
of the vacated property.
Recommendation:
The County has maintained an unwritten policy against vacating right-of-way that
provides access to public land. However, from discussions with the BLM, they feel that
either Big Buck Road or Bay Rum Ln. would provide adequate public access to their
parcel. Since neither Big Buck Road nor Bay Rum Ln. have been constructed, it
Engineer's Report
Page 4 0148--0974
appears that one or the other could be vacated without compromising access to public
lands. The decision to vacate one of these roads over the other will impact the abutting
owners on the other road by eliminating any future possibly of vacating their abutting
frontage. Action by the Board would constitute a choice between vacations.
Given this situation, the Engineer cannot recommend the vacation of Big Buck Road
without input from the owners abutting Bay Rum Lane. It is recommended that notice
of the public hearing required under ORS 368.346, be mailed to the owners of the
parcels abutting Bay Rum Lane (Fremont Canyon, Blk. 1, Lots 2 & 3), as well as other
parties with a recorded interest as required under this section.
If, following the public hearing, the Board approves the vacation, the Engineer
recommends the following conditions:
1. Since Big Buck Road would dead end at the easterly boundary of Lots 5 and 8, a cul-
de-sac should be provided at the end of the road. Right-of-way for a cul-de-sac should
also be provided at the end of Bay Rum Lane for a vehicle turn around and better access
to the BLM land. The vacation shall be contingent upon the dedication of additional
road right-of-way for cul-de-sacs at the end of Big Buck Road and Bay Rum Lane as
shown on "exhibit 3".
2. A reservation for utility easements shall be retained upon this parcel for the existing
utility facilities.
3. The vacated property shall vest with the abutting property owner in accordance with
ORS 368.366.
EKE i.13 i , " 1,
0148-09'15
PETITION FOR VACATION OF A PUBLIC ROAD
TO: THE HONORABLE BOARD OF COUNTY COMMISSIONERS
We, the undersigned, respectfully request the following described
road be vacated.
Description of road to be vacated:
131 zK
��� YSuCK 900-d ,
Located in jfQfS Deschutes County.
DATED this _day oft#k0q19
NAME
ADDRESS
! x.
p�{2u"ccb Dg L"q CA A C6 9/0/
17� iia kms;<� q7*
110192 j V kd �f'S4CfS 97751
I certify that this is the true and original. petition circulated by me.
61 2 viz,
SMNATUR
ADDRESS
C, Co
TELEPHONE
FORM: DPW - VAC 2 {��rK✓� (�tJ
March 29, 1995
Dear Mr. and Mrs. Zimmerman,
0148-09'!0
I apolegize for not returning this sooner. I hope my signature alone will be
sufficient. Due to anoxic brain damage, my husband is not mentally capable of
signing at the present time and I do not have power of attorney. I may have to
have myself named his legal guardian but I want to avoid the expense and legal
hassle for as long as possible, with the hope that he will one day improve to the
extent that this step would not be necessary.
wish you luck on your home building. Perhaps someday we will be neighbors.
Si erely,
Donna M. Wolff
0148-0911
2 -
EXHIBIT "8"
PORTION OF BIG BUCK ROAD VACATION
That portion of Big Buck Road lying between Lots 5 and 8, Block 1, as
shown on the official plat of Fremont Canyon Subdivision filed on April 26,
1978 located in Cabinet B Page 445 of the plat records in the office of the
County Clerk, Deschutes County, Oregon.
r
EXHIBIT 663"
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0148-0978
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EXHIBIT "4"
DES J @* OUNSEL 01.48-0981
ANDY CROSBY
AssistantCounty Counsel AUG+ QExt 6713
l �i 19s�
TO: Tom Blust
RE: Big Buck Road
August 15, 1995
DESCHUTES CO. RUAB� UPT. 396 (Planning Archives)
I reviewed the Fremont Canyon file as well as PL -2, the County's
Subdivision Ordinance from that period. My tendency is to agree
with George Read that Big Buck Rd. was dedicated as a requirement
of subdivision plat approval. My reasoning is as follows:
dedications
• Section 604 of PL -2 requires dedications to be included
as information on the final plat.
• Section 606 of PL -2 also requires that certificates
offering dedication of streets and rights-of-way for
public use appear on the final plat.
• Page 1 of the final plat states that the owner "caused
the lands shown on the attached plat to be surveyed and
platted into lots, blocks, and streets as shown on said
plat" and that the owner dedicated to to the public "all
streets and easements as shown on said plat."
• So it would seem that the dedication of all roads shown
on the plat was a response to the requirements of PL -2.
stubbed streets
Section 301.F.1 of PL -2 requires that a subdivision
adjoining unsubdivided land include stubbed streets to
the boundary of the unsubdivided land to permit future
subdivision or through flow of the adjoining land.
Stubbed streets on the plat, such as Big Buck Rd., seem
designed to meet this requirement.
One flaw in this reasoning is that Section 610 of PL -2 requires all
dedicated rights of way within a subdivision to be improved to the
appropriate standard prior to acceptance and approval of the final
plat. The Fremont Canyon file contains a letter from Gary Judd
confirming that all roads were constructed to standard and
authorizing release of the security bond. Since Big Buck Rd. is
not improved, Gary made a mistake, or dedication of Big Buck Rd.
was not required as a condition of plat approval.
If dedication of Big Buck was required, the question becomes
whether a land use process is necessary to effect the vacation.
0148-0982
Or, whether the vacation process is adequate to amend the plat.
Adequate findings, notice and a hearing are required by ORS Chapter
368. Furthermore, ORS Chapters 92 and 368 both seem to anticipate
that the vacation process will be used to change the configuration
of platted property.
Also, as we discussed last week, the County maintains an unwritten
policy against vacating right of way that provides access to public
land. As you point out, Bay Rum Lane provides alternative southern
access to the adjoining parcel of BLM land. However, vacating Big
Buck Rd. will automatically preclude vacation of Bay Rum Land in
the future. Thus, action essentially constitutes a choice between
vacations. Should we determine whether vacation of Big Buck Rd. is
the preferable choice from a transportation standpoint before
recommending vacation?
Another problem with vacation is that it would leave existing lots
with inadequate frontage and pose obstacles to future subdivision,
particularly with respect to the northerly parcel.
Finally, vacation may prevent the continuation of collector roads
or arterials in the event the County trades for the BLM parcel and
the area is sought for development.
Sorry, there is no clear resolution to this one and numerous policy
questions which beg for answers. I think your strategy sounds
good. Let the petitioner decide whether or not to proceed, develop
a thorough report, advise the Commissioners and let the Board
decide.
0148-0983
EXHIBIT "B"
PORTION OF BIG BUCK ROAD VACATION
That portion of Big Buck Road lying between Lots 5 and 8, Block 1, as
shown on the official plat of Fremont Canyon Subdivision filed on April 26,
1978 located in Cabinet B Page 445 of the plat records in the office of the
County Clerk, Deschutes County, Oregon.
EXHIBIT "C"
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
NOTICE OF ROAD VACATION HEARING
NOTICE IS HEREBY GIVEN THAT THE BOARD OF COUNTY COMMISSIONERS WILL
HOLD A PUBLIC HEARING ON JANUARY 3, 1996, AT 10:00 A.M. IN THE DESCHUTES
COUNTY JUVENILE JUSTICE CENTER, CONFERENCE ROOM "A", BEND, OREGON, ON THE
PROPOSED ROAD VACATION PROCEEDING DESCRIBED BELOW. ALL INTERESTED
PERSONS MAY APPEAR AND BE HEARD.
NOTICE TO MORTGAGEE. LIE
THE PURCHASER.
TER 215
In response to a petition by landowners, Deschutes County initiated the vacation of a
portion of Big Buck Road in Fremont Canyon Subdivision located in Deschutes County be
vacated.
NOTE:
In contrast to the County's past policy, a utility easement will not be reserved on vacated
public road right-of-way parcels unless there is physical evidence of an existing utility on the
parcel, or a utility company provides evidence of an existing facility, or there is a specific request
from a utility company to retain an easement for a planned future facility.
Persons interested in obtaining more detailed information or a map of the proposed
vacation may contact the Deschutes County Public Works Department, 61150 S.E. 27th Street,
Bend, Oregon, (503) 388-6581.
ORS 368.326 to 368.366 provides authority for road vacation.
BOARD OF COUNTY COMMISSIONERS
DESC UTES COUN Y, OREGON
BARRY H. A GHTER, Chairman
PUBLISHED:
Bulletin.
December 14 and 24, 1995
Nugget:
December 13 and 20, 1995
POSTED:
December 14, 1995
MAILED:
December 4, 1995