2006-495-Order No. 2006-078 Recorded 5/15/2006DESCHUTES CLERKDS 1~~1 ~00~-495
REVIEWED COMMISSIONERS' JOURNAL 05/15/2006 04.59;56 PM
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2006-4a
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Calling up for Review a Hearings
Officer's Decision on Waldron Lot of Record
Verification
ORDER NO. 2006-078
WHEREAS, Elroy and Rena Waldron (applicants) submitted to the Deschutes County Planning
Division an application for a lot of record verification, and
WHEREAS, after an administrative denial of the application the applicants appealed that decision to the
Deschutes County Hearings Officer, and
WHEREAS, on May 8, 2006 the Deschutes County Hearings Officer issued a decision reversing the
decision of the Planning Division and approving the lot of record verification, and
WHEREAS, Section 22.28.050(A) of the Deschutes County Code allows the Board of County
Commissioners to initiate review of any Hearings Body decision, and
WHEREAS the Board has given due consideration as to whether to initiate review of this decision; now,
therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That it will hear on its own motion application LR-05-56 (A-05-14) pursuant to Title 22 of
the Deschutes County Code and other applicable provisions of the County land use ordinances.
Section 2. The review shall be de novo.
Section 3. Staff shall set a hearing date and cause notice to be given to all persons or parties entitled to
notice pursuant to DCC 22.24.030 and DCC 22.32.030.
Dated this of )TAM 12006 BOARD OF COUNTY COMMISSIONERS
0 OF DESCHUT COUNTY, OREGON
R. LUKE,
ATTEST:
4~y~ T~57d~
Recording Secretary
BEV CI ARNO, VICE CHAIR . A01 jetll
i
MI AEL M. DALY, CO ISSIONER
ORDER No. 2006- 078 (5/15/06)
v
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER:
APPLICANT:
OWNER:
REQUEST:
A-05-14 (LR-05-56)
Elroy and Rena Waldron
64330 Old Bend-Redmond Highway
Bend, OR 97701
Paul J. Speck
1123 NW Bond
Bend, OR 97701
X09 678975"7
NAY 2006
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The applicant/appellant requests reconsideration of the Planning
Division's determination that tax lots 4200 and 4300 are not legal
lots of record.
STAFF CONTACT: Kathleen Stockton, Associate Planner
1. APPLICABLE CRITERIA:
Title 18 of the Deschutes County Code, Deschutes County Zoning Ordinance
Chapter 18.04.03, Definitions
Title 22 of the Deschutes County Code, the Development Procedures Ordinance
Chapter 22.32, Appeals
Section 22.32.010, Who May Appeal
Section 22.32.015, Filing Appeals
Section 22.32.020, Notice of Appeal
Section 22.32.027, Scope of Review
II. BASIC FINDINGS:
A. LOCATION: The property is identified on the County Assessor's tax map 17-12-
08A as tax lots 4200 and 4300.
B. ZONING: The property is zoned Multi Use Agricultural, (MUA-10), and is also
located within a Landscape Management (LM) Combining Zone.
C. PROCEDURAL HISTORY: The Planning Division received Applicant's
application for lot of record determination on October 5, 2005. On November 1,
2005, the County issued a Lot of Record Determination letter which concluded
that the subject property was not two separate legal lots of record. On November
11, 2005, the Deschutes County Planning Division received a Notice of Appeal
filed by Rena Waldron. I conducted a public hearing on the appeal on January
31, 2006. In attendance at the hearing were the Applicants and the Applicants'
attorney. I granted Applicant's attorney's request for permission to submit a
memorandum outlining the legal basis for the Appeal. Appellant's attorney
submitted a Memorandum in Support of Applicant's Appeal.
D. RECORD ON APPEAL: I hereby incorporate into this decision all facts set forth
in the record, and as summarized in the November 1, 2005 Lot of Record
PDX/1 14198/145925/IAT/1 420691.1
Determination letter from the Planning Division (prepared by Assistant Planner
Kathleen Stockton).
I admit to the record Exhibit A, attached to Memorandum in Support of
Applicant's Appeal. I also admit to the record two documents provided to me by
the Planning Division on February 28, 2006: Official Deschutes County Zoning
Ordinance PL-5, adopted December 1971, and supporting Order; and
Memorandum from Bruce White, Assistant Deschutes County Legal Counsel, to
Karen Green, dated April 21, 1993, Regarding Effective date of Building Code
and Zoning Ordinances. The later document, herein after referred to as the White
Memorandum, includes a chronology of Zoning Ordinance/Zoning Map adoption
by Deschutes County. I also admit, sua sponte, a map referred to in the White
Memorandum and available from the County's website. It is entitled "Official
Zoning Map," and was signed on November 15, 1972 by the Board of County
Commissioners and a representative of the Planning Commission. In the upper
right corner is a stamp "Filed January 11, 1979, Rosemary Patterson, Deschutes
County Clerk."
TITLE 18 OF THE DESCHUTES COUNTY CODE, COUNTY ZONING.
A. CHAPTER 22.32, APPEALS.
1. Section 22.32.101. Who may appeal.
A. The following may file an appeal.
1. The party;
FINDING: Elroy and Rene Waldron, both a party, filed this appeal.
2. Section 22.32.015. Filing appeals.
A. To file an appeal, an appellant must file a completed notice of
appeal on a form prescribed by the Planning Division and an
appeal fee.
B. Unless a request for reconsideration had been filed, the
notice of appeal and appeal fee must be received at the
offices of the Deschutes County Community Development
Department no later than 5:00 PM on the twelfth day following
mailing of the decision. if a decision had been modified on
reconsideration, an appeal must be filed no later than 5:00 PM
on the twelfth day following mailing of the decision as
modified. Notices of Appeals may not be received by
facsimile machine.
FINDING: The record indicated that Appellants filed their Notice of Appeal,
accompanied by the required appeal fee and statement, on November 11, 2005. The
Hearings Officer finds this appeal was timely.
3. Section 22.32.020. Notice of appeal.
Every notice of appeal shall include:
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A. A statement raising any issue relied upon for appeal with
sufficient specificity to afford the Hearings Body an adequate
opportunity to respond to and resolve each issue in dispute.
FINDING: Appellant's Notice of Appeal was accompanied by 1) a one page letter that
summarily included that the property was "legally partitioned in the 70's"; 2) a letter from
a former owner of the subject property which states that he was told by the Deschutes
County Planning Department in 1975 that the subject property could be used for the two
houses, indicating if consisted of two legal lots. Neither of these letters contain sufficient
specific reasons upon which I could overturn the Planning Division Lot of Record
Determination. Although Appellant letter submitted more materials in support of the
appeal, these also fail to raise issues with sufficient specificity to afford me an
opportunity to address why they do or do not warrant reversal. It was not until the
hearing that Appellant's lawyer presented a legal argument that could warrant reversal of
the Planning Division's determination. The county did not argue that the appeal should
be dismissed for lack of sufficient notice of appeal. Therefore, despite the failure of the
notice of appeal to comply with this section, I will allow the appeal to proceed.
4. Section 22.32.027. Scope of Review.
A. Before Hearings Office or Planning Commission. The review
on appeal before the Hearings Officer or Planning
Commission shall be de novo.
FINDING: I find de novo review means I may consider both the administrative record
and evidence presented on appeal.
B. CHAPTER 18.04, TITLE, PURPOSE, AND DEFINITIONS.
Section 18.16.030. Definitions.
"Lot of Record" means:
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:
1. By partitioning land as defined in ORS 92;
2. By subdivision plat, as defined in ORS 92, filed with the
Deschutes County Surveyor and recorded with the Deschutes
County Clerk;
3. By deed or contract, dated and signed 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 on lot of record shall be recognized unless the legal
descriptions describe lots subject to a recorded subdivision
or town plat;
4. By a town plat filed with the Deschutes County Clerk and
recorded in the Deschutes County Record of plats; or
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5. By the subdividing or partitioning of adjacent or surrounding
land, leaving a remainder lot or parcel.'
FINDING: In its February 21, 2006 Memorandum in Support of Applicant's Appeal,
Appellants conclude that the subject parcels were created by contract and in
conformance with the land use ordinances in existence on April 11, 1974. This
conclusion is based on the argument that the property was not subject to the County
Zoning Ordinance, because no validly adopted county zoning ordinance map existed in
1974. 1 must agree with Appellants. According to the information and documents in the
record, it appears that no official zoning map was available to the public (or apparently,
planning staff) in April 1974. Therefore, Deschutes County could not have enforced the
A-1 zoning, and its 5 acre minimum lot size, on the subject property. Therefore,
REVERSE the staff decision and find that tax lots 4200 and 4300 are legal lots of record.
A-1 Zoning did not apply in 1974 because no valid available map
depicted the boundaries of the zone.
The following analysis is based on the documents in the record for the present
application. I also researched the Deschutes County Measure 37 website but found no
other pertinent documents except the "Official Zoning Map" which I entered into the
record. My frequent use of the word "apparently" indicates the incompleteness of the
record. Revelation of new documents could change this analysis significantly.
Although the County Zoning Ordinance was intended to become effective January 1,
1972, it did not apply to any land on that date.' Rather, PL-5 provided that zoning would
become effective in a piecemeal fashion, as zoning maps were adopted. Section 2.030
provided.
Section 2.030-Official Zoning Maps
The locations and boundaries of zones listed in this ordinance shall apply
to areas for which an "Official Zoning Map" has been prepared and
adopted after public hearing as required by this ordinance and O.R.S. Ch.
215. At the time an Official Zoning Map may be adopted, the provisions
of this ordinance is [sic] thereby incorporated by reference. Any changes
in zone boundaries shall be made by amendment to the Official Zoning
Map. The Official Zoning Map or its subsequent amendments shall be
dated with the effective date of the ordinance that adopts the map or map
amendments. An Official Zoning Map or its amendment may be prepared
by authority of the Deschutes County Planning Commission pursuant to
O.R.S. Ch. 215 and recommended, after public hearing, to the Board of
County Commissioners for adoption and filing with the office of the
County Clerk.
I find that Deschutes County substantially complied with Section 2.030. On November
15, 1972 the Board of County Commissioners issued an order "in the Matter of A-1
' Appellant also notes that the County Zoning Ordinance might not have been effective because it
was not contemporaneously filed with the County Clerk. Although my personal research has
shown this omission did not effect the validity of the ordinance, I make no finding regarding this
issue.
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Countywide Zoning and Planned Development Zoning." White Memorandum, Exhibit 4.
This Order was based on the Planning Commission's recommendation, made after the
Commission held a public hearing. The Order directed that "the official Zoning Map
#ZM-1 with zones shown be adopted" and that A-1 zoning be applied to areas within a
certain legal description set forth in the order. The subject property is contained within
that description. However, no Zoning Map #ZM-1 is attached to the order, and I am not
aware that such map ever existed.
The Board of Commissioners did sign the "Official Zoning Map" on November 15 the
same day it enacted the A-1 order. The purpose of and the Board's intent for the
"Official Zoning Map" is unclear. The map depicts A-1 zoning, as well as the Urban
Area Zones for Sisters, Bend, and Redmond, Rural Area zoning for La Pine, and other
zone designations. Still I find that this map does not implement PL-5, and therefore is
not a true zoning map, for several reasons.
Neither State nor County law required adoption of map by "ordinance."
First, I will address Appellants' argument that state and county law required the map be
adopted by ordinance to be effective. I disagree. As further explained below, it appears
that the Board of Commissioners intended to implement PL-5 zoning by a series of
orders adopting a series of maps. I know of no significant difference between an
"ordinance" and an "order" which would render such orders ineffective as a matter of
law. I find the maps are ineffective because the county apparently failed to adopt maps
which would put land owners on notice that their land had been zoned.
Regarding state law: ORS 215.223 (1973 version), cited by Appellants, does not
explicitly require that zoning maps be adopted by ordinance. It does not even mention
maps. It does provide that zoning ordinances are not effective unless public hearings
with certain notice are provided prior to enactment. Apparently, Deschutes County
complied with the public notice and hearing requirements prior to adoption of PL-5 on
December 2, 1971. See Fifth Avenue Corporation v. Washington County, 282 Or 591,
596 (1978) (finding that even though statute used the term "ordinance," comprehensive
plan was not invalid because it was adopted by resolution, because statute gave "no
indication that the legislature intended it to compel counties to observe strict ordinance
formalities in the adoption of a comprehensive plan.")
Similarly, Section 2.030 does not explicitly require that the zoning maps be adopted by
"ordinance" rather than by "order." Such requirement, if it exists, is ambiguous at best.
The first sentence provides that the "Official Zoning Map" shall be "prepared and
adopted after public hearing as required by this ordinance and O.R.S. Ch. 215." It does
not say "adopted by ordinance." I find the important requirement is that a public hearing
be held prior to adoption of the map. The order implementing A-1 zoning states that the
Planning Commission held a public hearing on the subject on November 14, 1972.
When the Board signed the "Official Zoning Map," public meetings had not yet been held
on any zones except A-1. Therefore, the boundaries of the other zones had not been
officially established. It appears that this map was only a conceptual map when it was
signed on November 15, 1972. Apparently the Board later decided to use this
Conceptual Map as the final "Official Zoning Map" because the zones enacted were the
same as those proposed. This is supported by the handwritten notes in the margins of
the map, which note when the various orders implementing the other zones were
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enacted. This was apparently the Board's attempt to comply with Section 2.030's
requirement "The Official Zoning Map or its subsequent amendments shall be dated with
the effective date of the ordinance that adopts the map or amendments."
2. No effective zoning map gave notice to affected landowners in 1974.
In sum, it appears that the Deschutes County Board of Commissioners intended to
implement Section 2.030 via a series of orders. These orders provided legal
descriptions of the land affected by the zoning, and apparently intended to adopt maps
identified as official Zoning Map #ZM-[#]." Had these orders been accompanied by the
ZM maps, and those maps were available to the public, the zoning likely would have
been effective. The problem is that the county apparently did not follow through on
these orders in a way which gave notice to affected landowners. For example, if the
November 15 A-1 zoning order had been recorded in the property records of all affected
property, it would have given Applicants' predecessor notice, and it likely would have
been effective.
The preliminary reason that I cannot find that A-1 zoning applied to the subject property
in 1974 is that, apparently, no valid maps gave notice of any zoning to affected
landowners. There is no evidence of the alleged "official Zoning Map #ZM-1" which was
intended to apply A-1 zoning to the subject property. The "Official Zoning Map" dated
November 15, 1972 was apparently not available to the public until 1979, when it was
filed with the County Clerk.2 This is probably why planning staff approved the creation of
the subject lots in 1974.
Fundamental property law principles, and basic notions of fairness, provide that
government cannot enforce a property law restriction on a landowner who has no way of
knowing of the restriction. The Oregon Supreme Court has opined:
We cannot conceive of anything more important in a zoning ordinance
than to establish with certainty the zone classification or district assigned
to a given parcel of land. 'The general rule may be said to be that an
ordinance must be sufficiently certain as to the place or area of its
operation so that persons subject to it will know of its provisions and when
they violate it."
Lane County v. Heintz Construction Co., 228 Or 152, 163 (1961) (quoting 5 McQuillin,
Vol 6, Municipal Corporations, at 118). It is true that the November 15, 1972 order
included a legal description of the property subject to A-1 zoning, and that such
description included the subject property. I do not believe that such description alone,
without having been recorded in the property records of the subject property or
illustrated on a map available to the public, provided proper notice to Applicant's
predecessors. However, further legal research could prove my belief inaccurate as a
matter of law.
2 The legal effect of the "Official Zoning Map" is further questionable because it was prepared
before November 15, 1972, before public hearings on all but one of the zones had been held.
Recall that PL-5 and state law required public hearings before enactment of zoning ordinances.
Therefore, I presume that the "Official Zoning Map" was a really only a conceptual map on
November 15, 1972.
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3. The Countv's approval of parcel creation is evidence that no effective zoning
map exists.
Appellants argue that it is not necessary to revisit the legality of the County's approval of
the creation of the subject parcels in 1974. Indeed, the present application does not
invite me to revisit the legality of the decision, but not for the reasons provided by
Appellants. Rather, the lot of record ordinance that controls the present application
requires me to review de novo whether the subject parcels were created in conformance
with all zoning and subdivision requirements in effect in 1974. For the reasons stated
above, I find that they were.
IV. DECISION:
1. I hereby REVERSE the Planning Division's Lot of Record Determination
and find that present tax lots 4200 and 4300 are separate legal lots of
record.
This decision becomes final twelve (12) days after the date of mailing, unless
appealed by a party of interest.
Dated this T/ day of May, 2006
Mailed this 7 day of May, 2006
Isa A. Taylo
Deschutes County Hearings Officer
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