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2006-939-Minutes for Meeting June 19,2006 Recorded 9/27/2006DESCHUTES COUNTY OFFICIAL RECORDS P NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 111111111 oil oil 09/27/2006 04:58:09 PM 2006-93-9 Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY9 3UNE 199 2006 Commissioners'Hearing Room - Administration Building - 13 00 NW Wall St.., Bend Present were Commissioners Dennis R. Luke, Michael M Daly and Bev Clarno. Also present were Laurie Craghead, Legal Counsel; Kevin Harris and Kathleen Stockton, Community Development Department; Erik Lukens of the Bulletin; and one other citizen. Chair Luke opened the meeting at 10: 02 a.m. The purpose of the work session was to discuss the Waldron lot of record verification appeal, file numbers A-05-14/LR-05-56. Commissioner Luke stated that since this is a work session, the Board can only discuss the issue with staff. KEVIN HARRISON: This is a lot of record verification case that has brought to question some of the history of the adoption of PL -5, which is the County's first zoning ordinance. LUKE: Just so we are all on the same page, an owner can come in and ask staff or the County to verify whether a lot that they are looking to buy or already own is a lot of record. What does that mean? HARRISON: These are properties that are created in conformance with all applicable zoning regulations. The way that the Community Development Department treats these is that we do not issue any development permits — building or septic permits — to properties unless we can determine that they are legal lots of record. So there is a verification process when a property has no history. A A Minutes of Work Session — Waldron Lot of Record Appeal onday, j une 19, 2-006 Page 1 of 9 Pages If there is a history that exists in the County records, including any recorded plats, any history of issued building or septic permits, any history of land use decisions, then we can go right on and proceed with whatever the development application is for the property owner. But if we have a piece of property that has no history, then before we issue any permits we require that they go through this verification process. And that's what's happened here with the Waldrons. They have two pieces of property that show up as two separate tax lots but we had no history and didn't know when or how they were created, so they applied for this lot of record verification. In the process of that review, we determined that they were created during a time period when the properties were governed by the zoning restrictions of PL -5. DALY: So PL -5 took effect before these lots were created? HARRISON: That was our determination. A zoning ordinance consists of two elements — there is generally a text that describes zones and development standards such as setbacks, minimum lot sizes and those kinds of things — and then maps that apply the zoning districts to specific geographic areas. So, text and map go together to create the basis for zoning. The way the history has played out here is that the text of PL -5 was adopted in I believe 1971 , and the series of twelve maps implementing PL -5 were adopted in piecemeal fashion between 1972 and 1973. What has happened in this case is that the applicant first argued that the maps were adopted by order and not by ordinance, and that was an improper adoption method. The Hearings Officer found no legal or substantive difference between adoption by order or by ordinance9 so she said this was not an issue in terms of applying the zoning. What she did in her decision is determined that when she looked at the orders and the references to the zoning maps that were adopted, she could not positively identify the map that is at question. It is really a function of the adoption process back in 1972 and 1973. Each order contained a brief legal description that describes the area being covered by the map, and then it gives a reference to a ZM number — zone map numbers 1 through 12. The zoning maps were not actually filed with the County Clerk until 1979, and none of the twelve maps have the same ZM number as referenced in the original adopting orders. Minutes of Work Session — Waldron Lot of Record Appeal Monday, June 19, 2006 Page 2 of 9 Pages So what we have tried to do is reconstruct the entire history of the adoption of the text and the maps, and what we are going to present to you at the hearing is a map that is actually labeled in the Clerk's records as ZM-72, but is actually ZM- I as referenced in the order that was adopted in 1972. The zoning map exists and covers the subject property. MEW, It is difficult as Commissioners dealing in today's time frame — as organized as your department is and as much stuff that is available — in 1972 there was no building department. They didn't require building permits. There may have been planning, but there wasn't a lot of planning being done. You had environmental health, but there was no building department until about the fall of 1973. So a lot of this was handled a lot differently than it would be today. HARRISON: That's exactly right. In finding the materials and trying to backtrack to find the materials and follow the evidence has been difficult. The Clerk's office helped us to try to track down the documents to figure out exactly what happened. LUKE: Literally, in 1972, people were building houses outside the city limits with no building permit. You had to get a state electrical permit. If you were lucky you got a sewage disposal permit. But there were a lot of houses that went up without permits. HARRISON: This was really like the beginning of a unified development system. I am not questioning the irregularities or anything. What we found were things were quite a bit different back then, and it has taken some time and effort to try to retrieve the documents. We think we have everything necessary now. LUKE: How much has been done since the Hearings Officer's decision? Did the Hearings Officer have the same information that we are going to have? Or do you have additional information now? I I don't believe that the Hearings Officer actually went to the Clerk's office. The Hearings Officer was using basically the County's Measure 37 webpage and the documentation there in order to review the history. Minutes of Work Session — Waldron Lot of Record Appeal Monday, June 19, 2006 Page 3 of 9 Pages That Measure 37 webpage is not necessarily complete, so staff went beyond that and went to the Clerk's office directly to see the original maps and to find out and get copies of the adopting orders and those kinds of things in order to make sure we had the history correct. LUKE: So the short answer is, we'll have more information. HARRISON: Yes. CRAGHEAD: As it was pointed out in the Hearings Officer's decision that Paul Speck has raised is, even if they were in existence, whether the maps were properly adopted. He is claiming that they were not since they were adopted by order rather than by ordinance. The Hearings Officer found that there was nothing she could find that said the maps had to be adopted by ordinance. DALY: So, where on this map is the subject property? I or It is off of the Old Bend -Redmond Highway. The yellow highlights are these insert maps that were described in the orders. (He referred to maps at this time) The dates on the insert maps correspond to the dates of the orders. DALY: So you are saying that these lots are in an A- 1 exclusive agriculture zone. The maps were adopted in 1972 before the property was divided in 1974. HARRISON: They just recorded deeds that divided the property and legal descriptions. We don't know if there was a survey. There was no plat or partition. STOCKTON: There is a warranty deed dated April 30, 1974, pertaining to tax lot 233, consisting of 1.29 acres. In 1975 by warranty deed dated October 17, tax lot 234 was separated from the main parcel. And that lot consists of 1.64 acres. Zoning for both lots was A-1. Minutes of Work Session — Waldron Lot of Record Appeal Monday, June 19, 2006 Page 4 of 9 Pages DALY: These are recorded in the Clerk's office? HARRISON: The Clerk doesn't check for legal lots. If a person brings in a deed that is properly filled out, then they can record it and send a copy of the recorded deed to the Assessor, who creates a tax account based on that legal description. It isn't until the owner actually comes into Community Development and they want to develop the property that this question of a legal lot of record comes up. DALY: So the Hearings Officer could not determine, with the record she had, whether these lots were created — I mean, the dates are pretty clear. HARRISON: I think the confusion was that she had a copy of the order adopting the map, and that order references zoning map # 1. That zoning map was not attached to the order, dated November 15, 1972. Then when you actually look at the map in question it is labeled zoning map 72, which I think is a function of the map being given to the Clerk for filing in 1979 and the Clerk's office put its own number on it, saying it was basically a 1972 zoning map. We don't know that, but it's the only thing that makes any sense. DALY: And the Commissioners' signatures are all 1972. CRAGHEAD: The same date as the order adopting it. So up to that point it was in the planning division, and wasn't in the Clerk's records. So it could have been found by the public. DALY: This map was never in the Clerk's records. HARRISON: It was filed with the Clerk in 1979. CRAGHEAD: They could have come to the planning division and gotten the map then. It was available to the public. Minutes of Work Session — Waldron Lot of Record Appeal Monday, June 19,2006 Page 5 of 9 Pages LUKE: We've adopted things late. Someone discovers it, and we have to do it then. CRAGHEAD: This wasn't a matter of it not being adopted. It was already adopted in 1972, it just wasn't filed until 1979. So our argument is that it was adopted and effective in 1972, but was just located Ina different place. LUKE: Again, a lot of people recorded their discharge papers with the Clerk so there was a place they could be found. The map is still effective, it just wasn't on file there. That's your argument. CRAGHEAD: Right. Paul Speck's argument is that even if it could have been found in the Clerk's office, it was not properly adopted since it wasn't adopted by ordinance. LUKE: Do you expect there to be opposition? HARRISON: This has been fairly self-contained, with the staff and the applicant and their attorney. LUKE: Why did it go to the Hearings Officer? HARRISON: Because staff initially rendered a decision, and the applicant appealed that to the Hearings Officer. We asked the Board to call this up because this is an important kind of historically determination as to when zoning was effective. LUKE: What is the staff recommendation? HARRISON: Staff maintains that the map was properly adopted, and it is the zoning map # 1 referenced in the order from 1972. So the zoning shown on the map would be effective November 15, 1972. The lot of record determination should be denied then. Minutes of Work Session — Waldron Lot of Record Appeal Monday, June 19, 2006 Page 6 of 9 Pages DALY: What if these lots had houses on them, built when they created the lot? I: If the County had issued building or septic pen -nits for a piece of property, we recognize it no matter what happened. But these are vacant. LUKE: So it is a blank piece of property in single ownership. What staff is asking is that we clarify the Hearings Officer's decision on the map, adopt the maps into the record, and that adoption and recording are the same, and that it was properly adopted by order, and turn down the lot of record request. HARRISON: Let me clarify the lot of record verification. What we have are two tax lots that are under single ownership. So the staff decision was that what they have is one legal lot If record, not two. So they have two tax lots, but this constitutes one single legal lot of record. They have a buildable property, but don't have two. There is already a house on it. LUKE: They appealed that, since they want two. STOCKTON: They didn't meet the minimum lot size even that far back. DALY: Even then though, you don't have even three acres. But you are saying you will recognize one legal lot. CRAGHEAD: Because that was prior to our having a partition and zoning code. DALY: These were created at two different times. CRAGHEAD: They were originally under separate ownership, and then one person bought them both. There is a house on one. Minutes of Work Session — Waldron Lot of Record Appeal Monday, June 19, 2006 Page 7 of 9 Pages LUKE: We need clarification of the map, and then can take a look at whether there are one or two lots. HARRISON: The hearing is set for Thursday, June 22 at 1:30 p.m. CRAGHEAD: We are not under the 150 day limit because it is not a zone change or a permit. CLARNO: Were a lot of properties approved by order during that time, instead of by ordinance? CRAGHEAD: The maps during that time frame were adopted by order rather than ordinance. There was the PL -5 ordinance which referenced in 2.030 any subsequently adopted zoning maps. It did not say they had to be adopted by ordinance; it did say to follow the property procedure under ORS 215, but nothing in 215 says a map has to be adopted by ordinance, just zoning regulations. LUKE: That was a different time. Land use laws were just starting to be written then. HARRISON: Senate Bill 100, which is the Oregon land use bill, was adopted in 1973. Local jurisdictions had the ability to adopt comprehensive plans and zoning ordinances before then. After 1973 it was mandatory, and those comp plans and zoning ordinances had to be consistent with the statewide planning program. Being nofurther discussion, the meeting adjourned at 10:30 a.m. Minutes of Work Session — Waldron Lot of Record Appeal Monday, June 19,2006 Page 8 of 9 Pages DATED this 1 91h Day of June 2006 for the Deschutes County Board of Commissioners. ATTEST: &Uo"� &k�— Recording Secretary De6nis R. LukerChair 4Bevlarmo, Vice Chair Minutes of Work Session — Waldron Lot of Record Appeal Monday, June 19, 2006 Page 9 of 9 Pages