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2015-288-Minutes for Meeting June 03,2015 Recorded 6/23/2015 • DESCHUTES NANCY BLANKENSHIP,PCOUNTY CLERK DS 4d �� '�88 COMMISSIONERS' JOURNAL 06/23/2015 08:54:06 AM 1111111111111111111111111111111 201 -288 0 ee , .� 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 WEDNESDAY, JUNE 3, 2015 Present were Commissioners Anthony DeBone, Tammy Baney and Alan Unger. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, John Laherty and Laurie Craghead, County Counsel; and,for a portion of the meeting, Nick Lelack, Peter Gutowsky, Will Groves, Peter Russell and Paul Blikstad, Community Development; Capt. Scott Beard, Sheriff's Office; Wayne Lowry, Finance; and five other citizens including media representative Ted Shorack of the Bulletin. Chair DeBone opened the meeting at 1:30 p.m. 1. Sheriff's Office - Justice Assistance Grant Application —Active Shooter Scenario Training. Capt. Scott Beard gave a brief overview of the two-year project that would be funded by this grant. No matching funds or additional staffing is required. This will involve just the Sheriff's Office but they will share information with other agencies. UNGER: Move approval. BANEY: Second. VOTE: UNGER: Yes. BANEY: Yes. DEBONE: Chair votes yes. Minutes of Board of Commissioners' Work Session Wednesday, June 3, 2015 Page 1 of 7 Pages 2. Discussion of Discretionary Grant Applications. • Rural Development Initiative • La Pine Rodeo • Redmond Parks & Recreation Judith Ure said there is about $5,000 left in this fund for this fiscal year. Two items are time-sensitive. The La Pine Rodeo Association is having its annual event. Chair DeBone stated there is a new board and they have a lot of new ideas. The Board granted $500 per Commissioner. Chair DeBone said that he has been involved in this effort, and the Rural Development Initiative supports training for leadership. Commissioner Baney will support it this year but hopes they figure out another way in the future. The Board granted $500 each. Redmond Parks & Recreation District asked for funds for their 4th of July event. Commissioner Baney asked why they did not go to the City for funding. The Board supported $500 each. Commissioner Unger asked about his previous request for funding a process for the trail issue outside Sisters. Oregon Solutions was going to try to get consensus but one faction does not want to work towards agreement. At this time, the proponents are working to engage the community. The Forest Service wants to see compelling public support to move forward. Tom Andersons stated that the County is providing $30,000 to the Sunriver Chamber of Commerce to operate, but there was a stipulation that part of the funds would be used differently. He feels their intent should be to do more of the traditional Chamber-type work with local businesses. Commissioner Baney would like them to talk about their tourism efforts with COVA. Commissioner Unger thinks that they should get what they have before, but ask them to dedicate the additional amount to figuring out how to complement each other. The Chamber needs to figure out its mission. They don't have a city sponsor so they are in an awkward situation. Minutes of Board of Commissioners' Work Session Wednesday, June 3, 2015 Page 2 of 7 Pages 3. Discussion of an Appeal of the Hearings Officer's Decision on a Declaratory Ruling (File # DR-13-16; 247-14-000165-A). Paul Blikstad provided a brief review of the item. (He referred to his staff memo.) A condition of approval was required at the time, condition #2. There was never a formal written agreement between the parties, but at the time Mr. Kuhn applied for permits, it appeared to be in place. Since then the parties have not been able to come to an agreement. The Dowells feel the 2014 Hearings Officer's decision needs to be challenged in several ways. The Hearings Officer decided what a maintenance agreement should include, but the parties think it is either not strong enough or too strong. The applicant is asking for Board review, either on the record, de novo or limited de novo. Nick Lelack stated that staff did not make a recommendation. They see good points either way. The decision was very thoughtful. The Board could determine if the errors per the applicant are valid. It is a local situation and LUBA would likely allow great deference to the Board. Commissioner Unger suggested that limited de novo would be best, to limit the information to what truly fits the questions. He does not want to hash out the same old information again. David Doyle said they should do this de novo but the Chair can limit what they want to hear. Chair DeBone asked what might be appealed after the Board hears this. Mr. Doyle stated that one or both parties could take it to LUBA. Mr. Lelack said there is no clock involved. Chair DeBone wants to see this come to resolution. Commissioner Baney feels the Board should hear it and it can go to LUBA if the parties so wish. She hopes this brings some kind of closure between the parties; it may not be a win-win, but maybe both parties will give a little. This is essentially a civil matter being handled through land use. Laurie Craghead said they need to be clear on what might have been acceptable at the time. Mr. Lelack stated that a hearing may not be able to be scheduled until July. Commissioner Baney would like to have a work session before then to review how this got here. Mr. Blikstad said the Hearings Officer's decision page 3 through 8 details this. Chair DeBone feels they should look at this in a fresh way. The Board was supportive of a de novo hearing. Minutes of Board of Commissioners' Work Session Wednesday, June 3, 2015 Page 3 of 7 Pages 4. Discussion of a Text Amendment to Prohibit Permits on Properties with Code Violations. Peter Russell provided an overview of the proposed text amendment (a copy of his staff memo is attached for reference). They convened a stakeholders group to discuss this issue. There are four key variables: • What defines a Code violation; • Whether a Code violation should stop a building permit; • Whether a Code violation should stop a land use application; • Whether unfulfilled conditions of approval are a Code violation. The group reviewed local rules and those of other outside agencies. The agreement was it should not be denied unless there was already an active land use application. The draft Ordinance was reviewed by the group, and they assembled draft Code language for the Board to consider. This would be in the form of a text amendment. The group settled on unanimous language. This will go through the Planning Commission and eventually come to the Board for a hearing and consideration of adoption. 5. Other Items. Nick Lelack discussed the recent Cooper decision regarding events on private property. The limited use permit was denied by the Hearings Officer by a lack of substantial evidence on a couple of key factors. One is whether the trees on the property were grown there, and whether the weddings are incidental and subordinate to farming. The Downs' had tax information and other info to support their decision, but the paperwork form the Coopers was not specific. Mr. Gutowsky said the product is hay. The incidental and subordinate test needs to show the farm use is first and wedding venues are secondary. There was insufficient information to support the farm use, and there were weddings being held and overnight use of dwellings without permits. About 49% of income was not related to the farm use, and it has been established that the test is a maximum of 40% of the farm income. The applicant can appeal this and supplement the information. Minutes of Board of Commissioners' Work Session Wednesday, June 3, 2015 Page 4 of 7 Pages Mr. Lelack said it will likely be appealed and Community Development will then ask the Board whether it is to be heard. He will also ask that Code enforcement be held in abeyance during this time. There is opposition, represented by an attorney. Chair DeBone said he spoke with the applicant about a year ago. He got a call a few days ago from the applicant who was concerned about the denial, and Chair DeBone referred him to Mr. Lelack. Mr. Gutowsky said the BLM has issued its final environmental impact report regarding Sage Grouse. Deschutes County is not affected at the magnitude other counties are. Regulations are in place, and LCDC will have a hearing in July to see whether to develop rules regarding development on private lands if there is an effect on habitat or a lek. Under State law, if rules are adopted, the County is obligated to administer those. The County typically amends Code to take these in. DLCD is determining whether these rules are subject to Measure 56. If not, DLCD may not notify affected property owners of hearings. In this case, Mr. Gutowsky would like to be able to notice the sixty or so property owners. This would help to minimize overreaction from property owners when the County adopts the changes, if the State fails to let those property owners know. Commissioner Baney said there was an interagency meeting to discuss fire danger in rural areas, and the CO IA operations fire chief stated that the Dept. of Interior now will be considering Sage Grouse and lek as priority lands to protect. Therefore, there will be the same priority for this as there is for communities, so resources have to be provided in this case. She wants to be clear about what this means. Mr. Lelack said the hearings are in June and July, and the Board can testify in person or submit something in writing. Mr. Gutowsky said there are two distinct agencies, the Department of the Interior/USFS and the Department of Agriculture/BLM. There could be unintended impacts on communities and individuals. Commissioner Baney stated that there needs to be balance. They do not want to lose resources that protect communities and high value assets. Commissioner Unger added that these agencies need to add resources, if this is the case. Mr. Gutowsky said that the smaller counties are sensitive to this issue since it affects their businesses and livelihood. Minutes of Board of Commissioners' Work Session Wednesday, June 3, 2015 Page 5 of 7 Pages At 2:55 p.m., the Board went into executive session regarding labor negotiations and real property negotiations. At 3:25 p.m., the Board reconvened the work session and Wayne Lowry joined in. Mr. Anderson said that on Monday afternoon he heard back from Clay Higuchi, Bruce Barrett and Mike Maier, and came up with a list of decisions of the Budget Committee. There is one unresolved issue needing final direction. Regarding the extra transient lodging tax to public safety, the three citizens members feel the word `capital' was left out in error. They advise that anything over $3.1 million of TRT should go into capital reserves and not just used for general public safety. Commissioner Baney likes the idea of having capital reserves rather than the Sheriff spending it as he sees fit at the time. Commission Unger supports the idea of capital reserves for the jail or other large projects in the future. This could be for a Courthouse or other improvements. All is related to public safety. This might create a disagreement, because the Sheriff wants it for operations. Excess money should not just go to the Sheriff but public safety in general. He needs to convince the Board why he specifically needs the money, which should be used for future capital expenditures. Mr. Anderson stated that the Sheriff called him and wanted to know the outcomes. It did not register that there was this restriction on capital reserves. He would like to cap the amount to the Sheriff at $3.1 million, and the rest would go into public safety reserves that could be used for a variety of purposes. The Sheriff accepted this. The Budget Committee feels they do not want additional TRT to be pegged for ongoing expenses like staffing. This needs to be paid by the Sheriffs tax base to be sustainable. He did not realize that some Budget Committee members want to restrict it to just capital expenses. Chair DeBone said that someone has to pay for future HVAC, building improvements and other big-ticket items. Minutes of Board of Commissioners' Work Session Wednesday, June 3, 2015 Page 6 of 7 Pages Wayne Lowry said that $2.65 million is the floor. The budget is based on $3.15 million. Commissioner Baney said she heard concerns about reserves, and bricks and mortar. Commissioner Unger said he hears conversations about future jail expansion and other big projects. He would like this to be for capital needs, for another judge and the jail. However, `capital' does not need to be in the line item. He is concerned that the Sheriff increased the levy and still cannot live with it. They should be able to build reserves with this funding. Mr. Anderson said that the Board said at its annual retreat that there is a desire to develop a long-term capital needs plan. The plan can include an analysis of all sources of funding for that purpose. Being no other items discussed, the meeting was adjourned at 3:45 p.m. DATED this /6 Day of 2015 for the Deschutes County Board of Commissio s. Anthony DeBone, Chair atiA.t_ (LTA- Alan Unger, Vice Chair ATTEST: (67014/tAi U Tammy Baney, Co ti•issioner Recording Secretary Minutes of Board of Commissioners' Work Session Wednesday, June 3, 2015 Page 7 of 7 Pages mikir 00 40. Deschutes County Board of Commissioners 1300 NW Wall. St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 P.M., WEDNESDAY, JUNE 3, 2015 1. Sheriffs Office - Justice Assistance Grant Application — Active Shooter Scenario Training — Capt. Beard, Capt. Utter and/or Julie Lovrien 2. Discussion of Discretionary Grant Applications —Judith Ure • Rural Development Initiative • La Pine Rodeo 3. Discussion of an Appeal of the Hearings Officer's Decision on a Declaratory Ruling (File # DR-13-16; 247-14-000165-A) —Paul Blikstad 4. Discussion of a Text Amendment to Prohibit Permits on Properties with Code Violations —Peter Russell 5. Other Items • Executive Sessions: Labor Negotiations; Real Property Negotiatons PLEASE NOTE:At any time during this meeting,an executive session could be called to address issues relating to ORS 192.660(2)(e),real property negotiations;ORS 192.660(2)(h),litigation;ORS 192.660(2)(d),labor negotiations;or ORS 192.660(2)(h),personnel issues;or other issues under ORS 192.660(2),executive session. Meeting dates,times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners'meeting rooms at 1300 NW Wall St.,Rend,unless otherwise indicated. If you have questions regarding a meeting,please call 388-6572. Deschutes County encourages persons with disabilities to participate in all programs and activities, This event/location is accessible to people with disabilities. If you need accommodations to make participation possible,please call(541)388-6571,or send an e-mail to bonnie.bakcr(a),dcschutcs.org. .._\(-) F.J. t i i , a •I 7 ,' 4 i 4. (I) i Z-- !' ) 6 1 , . , , 1 0 , , ill C 1 M 7A3 0 5� c M �' a ; M - M I �}NI ,Ti Ti r d.. i. r I .4.:1 %%}' ..%, ° 1 <-7 ,„t 2 , '6 2 hAT, 1 i 6:. g 1 1 J 1 3 r C © _ ,i7 1r .'- 13 .(t' s<&- c o c •� ,- Iig - )I �:, _ i i I i I i I � � � (a. Community Development Department 0 At Planning Division Building Safety Division Environmental Bolls Division P.O.8 Box 6005 117 NW Lafayette,Avenue Send, Oregon 97708-6005 (541)388.6575 FAX (541)385-1764 tittp://www„co,deschutes,or.us/cddi MEMORANDUM To: Deschutes County Board of Commissioners From: Paul Blikstad, Senior Planner Date: May 26, 2015, for Commissioner's June 3, 2015 Work Session Re: DR-13-16 (247-14-000165-A), An appeal of the County Hearings Officer's decision on a Declaratory Ruling. BACKGROUND: The applicants, Jeff and Pat Dowell, applied for a Declaratory Ruling (DR) to interpret what requirements are necessary for a maintenance agreement to be approved by the County for the property identified on County Assessor's Map 16-11-19, tax lot 300. This interpretation is based on Condition of Approval no. 2 of CU-80-22, a conditional use permit application for a cluster development in the former F-3 zone in the County, approved back in 1980, with an associated partition (MP-79-232). See the history of the subject property, as well as the Kuhn's property, and the cluster development approval on pages 3-8 of the Hearings Officer's decision (attached). The application included a proposed agreement. This Declaratory Ruling application went before the County Hearings Officer on December 3, 2013. The record on this matter closed on March 28, 2014. The Hearings Officer's determined that the proposed agreement did not meet the requirement for a maintenance agreement. The Hearings Officer's decision was mailed out on June 4, 2014. The applicants appealed the Hearings Officer's decision within the 12-day appeal period that followed. In June the applicants requested that the appeal be put on hold, pending discussions with the adjacent owners of tax lot 200 — William and Leigh Kuhn. By letter dated May 14, 2015, the applicant's attorney requested that the Planning Division reactivate the appeal. The cluster development proposed and approved in 1980 included a 41.8-acre parent parcel, which was partitioned into three parcels — two parcels of approximately 4.3 acres each, and a 33.21-acre open space parcel. The open space parcel is the subject of the DR a pp lication, and is owned jointly between the Dowells and Kuhns, the respective owners of tax lots 100 and 200, the other two parcels in the cluster development. Condition of Approval no. 2 of CU-80-22 states: 2. Prior to the sale of any lot a written agreement shall be recorded which establishes an acceptable homeowners association or agreement assuring the maintenance of common property in the partition. Quality Services Performed with Pride The only "common" property in the proposal was the 33.21-acre open space parcel, The Planning Division allowed both the Kuhn and Dowell properties to be developed based on the "Land Use Restrictions" document recorded in 1987 (Volume 148, Page 1792). The County Commissioners determined in the written decision for A-09-4, A-09-5, A-07-9 (a Land Use Compatibility Statement) that the "recorded deed restrictions, dated July 20, 1987, do not include provisions to assure the maintenance of common property in the partition nor do they create a homeowners association." Thus the Board determined that the condition no. 2 requirement has not been met. The applicants submitted the DR application in an attempt to clarify what is required for the maintenance agreement that assures maintenance of the common property, meeting the condition no. 2 requirement. ISSUES: The applicants have stated four reasons for the appeal that they believe constitute errors in the Hearings Officer's decision as follows: • The homeowner's association or maintenance agreements should only contain common property maintenance requirements, and not an open space vegetation maintenance requirement for wildlife habitat. • The Hearings Officer erroneously concluded that the property must be maintained for wildlife habitat values. Requiring that the property be maintained for wildlife habitat values impermissibly elevates this use/value above other co-equal open space values and prohibits permitted open space uses. • The Hearings Officer erroneously concluded that William and Martha Kuhn as well as the Dowells (the "parties") must execute the obligations of the original partner jointly, including jointly signing the homeowner's association or maintenance agreement. • The Hearings Officer's decision erroneously implies that the interests in TL 300 cannot be severed from the residential parcels. The applicant believes that the maintenance agreement does not need to be jointly signed by the parties and the resulting document need only be recorded against TL 300, and not against tax lots 100 or 200. DEICSION: The Board must decide whether it will hear this appeal. The applicant has requested an appeal on the record (i.e. no new hearing). If the Board decides to hear it, the Board will need to determine whether it will review the appeal on the record, or full de novo. And if de novo, whether it will limit the appeal to only specified issues. Per DCC 22.32.035(D), the Board may consider only the following when determining whether to hear an appeal: 1. The record developed before the lower Hearings Body; 2. The notice of appeal; and 3. Recommendations of Staff. Page 2 of 3 Staff memo to Board of County Commissioners, DR-13-16 (247-14-000165-A) The following are attached to this memorandum: • The applicant's Notice of Appeal • Hearings Officer's decision on DR-13-16 • CU-80-22 Findings and Decision • Land Use Restrictions Document • Current Assessor's Map showing tax lots 100, 200, 300 At the Board meeting on June 30, 2015, Staff will put before the Board the entire record below. Page 3 of 3 Staff memo to Board of County Commissioners, DR-13-16 (247-14-000165-A) Community Development Department W:p Planning Division Building Safety Division Environmental Soils Division %' P.D. Box 6005 117 NW Lafayette Avenue Bend,Oregon 97705-6005 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes,or.us/cdd/ APPEAL APPLICATION FEE:9 ca lg• °0 `:.liERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal_ -. `the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired,a request for de novo review by the Board_ stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010)or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name(print): Jeff and Patti Dowell Phone: (541 ) 382-4331 Mailing Address:c/o Bryant Lovlien & Jarvis, PC-591 SW Mill View Way City/State/Zip: Bend, OR 97702 Land Use Application Being Appealed: Decision of the Deschutes County Hearings Officer, File Nos.:MA-144/DR-13-16 15 11 i9 100&300 2 Property Description: Township Range Sec.•n Tax Lot /� :Appellant's Signature: A9-0 / �' t E , EXCEPT AS PROVIDE SECTION 22.32.024. APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON-THE-RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. over} 947— /q-000 BEFORE THE DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPARTMENT ) DR-13-16 ) As modified by ) NOTICE OF APPEAL MA-14-1 ) ) APPLICANT/OWNER: Jeff and Patti Dowell c/o Bryant, Lovlien &Jarvis, P.C. 591 SW Mill View Way Bend, Oregon 97702 ATTORNEY: Sharon R. Smith Bryant, Lovlien &Jarvis, P.C. 591 SW Mill View Way Bend, Oregon 97702 LOCATION: 65595 Sisemore Road, Bend, OR 97701 Tax Map: 16-11-19, Tax Lots 100, 300, Deschutes County, Oregon. REQUEST: Declaratory Ruling for an interpretation of the requirements (specific provisions, required signatures, and any other considerations) necessary to satisfy Condition of Approval #2 of CU-80-02, which mandates an `acceptable written agreement' prior to the sale of any lot in the cluster development established by CU-80-02. I. STANDING: Appellants Jeff and Patti Dowell (the "Dowells") are the Applicants in the matter that is the subject of this appeal and appeared in proceedings below. IL STATEMENT DESCRIBING SPECIFIC REASONS FOR APPEAL: Appellants concur with a majority of the Hearings Officer's decision dated June 3, 2014. However, Appellants object to certain aspects of the Conditions of Approval and seek to clarify other facets of the decision. Accordingly, Appellants assert that the decision is in error for the following reasons: 1. The Hearings Officer erroneously concluded that the required homeowner's association or maintenance agreement is the vehicle for preservation of open space values and therefore must include a provision describing how vegetation is to be maintained for wildlife habitat values (Condition of Approval #4(b)). As part of an application for a Notice of Appeal Page 1 of 3 t09187016-00452668,11 cluster development, Section 8.05(16)(C)(b) of PL-15 requires a submittal of"adequate deed restrictions to maintain the land in the open space provided" ("open space maintenance requirements"). Section 8.05(16)(C)(c) establishes a separate requirement for a homeowner's association for maintenance of common property ("common property maintenance requirements"). The recorded Land Use Restrictions satisfy 8.05(16)(C)(b) and thus prohibit the County from imposing additional open space maintenance requirements. By requiring that the homeowner's association or maintenance agreement include a provision regarding vegetation maintenance for wildlife habitat, the Hearings Officer erroneously added an open space maintenance requirements as an obligation in the homeowner's association or maintenance agreement. The homeowner's association or maintenance agreements should only contain common property maintenance requirements. 2. The Hearings Officer erroneously concluded that the property must be maintained for wildlife habitat values (Condition of Approval #4(b)). In arriving at this conclusion, the Hearings Officer relied upon an improperly selective excerpt from the definition of"open space." The definition of "open space" in PL-15 also indicates that agricultural uses, landscaping, golf courses, and recreational opportunities, among a menu of other activities, meet the definition of "open space." The Land Use Restrictions already establishes restrictions on uses of Tax Lot ("TL") 300 and requiring that the property be maintained for wildlife habitat values impermissibly elevates this use/value above other co-equal open space values and prohibits permitted open space uses. Furthermore, the reference to "wildlife preserves"in the definition of"open space" states open spaces "enhance the value of abutting or neighboring ...parks, forests, and wildlife preserves." There are no neighboring wildlife preserves, only federally owned range lands and some forest lands further to the west. The Wildlife Area Combing (WA) Zone and the Tumalo Deer Winter Range overlay zone do not render the subject property, or any neighboring properties, a "wildlife preserve." Thus, the County cannot obligate that TL 300 be maintained as a wildlife preserve and cannot impose additional open space maintenance requirements beyond those included in the Land Use Restrictions. 3. The Hearings Officer erroneously concluded that William and Martha Kuhns as well as the Dowells (the "parties") must execute the obligations of the original developer jointly, including jointly signing the homeowner's association or maintenance agreement (Conditions of Approval #1, 2, 3, 5, 6, 7). Nothing in the text of Condition #2 requires both parties be signatories to the Agreement, even if both parties "step into the shoes of the Developer," and nothing prevents the maintenance agreement to be between one of the parties and a third party such as the County, a property management company, or a conservation organization. There is also no reason that the parties could not independently fulfill the obligations of the original developer as the developer could have performed the tasks independently for the two residential parcels by signing separate agreements with third parties. 4. The Hearings Officer's decision erroneously implies that the interests in TL 300 cannot be severed from the residential parcels. Specifically, the Hearings Officers concludes Notice of Appeal Page 2 of 3 109187016-00452668;1; that the homeowner's association or maintenance agreement must be binding on all future owners of the cluster development parcels by being recorded against the residential parcels. As the Hearings Officer found, Section 1.030(21) of PL-15 does not require joint ownership of TL 300. Moreover, Condition #1 to CU-80-2 only requires that TL 300 be in joint ownership prior to the sale of any lots. That condition has been satisfied because TL 300 was placed in joint ownership prior to the sale of a lot and a lot has been sold. T1., 300 no longer needs to be held in joint ownership and the owners of TL 300 can sell their interests to each other or to a third party. Accordingly, the required association or agreement need not be jointly signed by the parties and the resulting document need only be recorded against TL 300. III. REQUEST FOR REVIEW: For the foregoing reasons, the Dowells request the Board of County Commissioners review the subject decision on the record. The Board should hear the appeal because it will assist in resolving a long standing land use dispute and will resolve matters of interpretation of the County Code. SUBMITTED this 16th day of June, 2014 BRYANT, LOVLIEN & JARVIS, P.C. By: SHARON R. SMITH, OSB#862920 GARRETT CHROSTEK, OSB#122965 Of Attorneys for Applicants Notice of Appeal Page 3 of 3 109187016-00452668,1} ES Community Development Department Planning Division Building Safety Division Environmental Soils Division t ( Yr2b wl d aln:as n..aF:n vri ?.,P ti c$'' Asti ,r., P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 • http://www.co.deschutes.or,us/cdd/ CERTIFICATE OF MAILING FILE NUMBERS: DR-13-16/MA-14-1 DOCUMENT MAILED: Hearings Officer's Decision MAP/TAX LOT NUMBERS: 16-11-29, 100, 200, 300 (U1 and U2) I certify that on the 4th day of June, 2014 the attached Hearings Officer's Decision, dated June 4, 2014, was mailed by first class mail, postage prepaid, to the persons and addresses set forth on the attached list. Dated this 4th day of June, 2014. COMMUNITY DEVELOPMENT DEPARTMENT By: Sher Buckner Jeff and Pat Dowell William and Leigh Kuhn do Bryant, Lovlien & Jarvis, PC P.O. Box 5996 591 SW Mill View Way Bend, OR 97708-5996 Bend, OR 97702 - Sharon Smith Liz Fancher Bryant, Lovlien Jarvis, PC 644 NW Broadway Street 591 SW Mill View Way Bend, OR 97701 Bend, OR 97702 Lavonda J. Lowther Living Trust Thompson J. Barton Lavonda J. Lowther, Trustee 90 6th Street 38943 Luckiamute Road Ashland, OR 97520 Philomath, OR 97370 Ron and Marilyn Peery Irene and Lance Olivieri 3910 Mirror Pond Way 65580 Sisemore Road Eugene, OR 97408 Bend, OR 97701 Richard and Alana Spinrad 8330 NW Chaparral Drive Corvallis, OR 97330 Quality Services Performed with Pride a. who pays the property taxes on the open space parcel; b. how vegetation is to be maintained for wildlife habitat values and to minimize risk of wildfire; c. who is to physically maintain the common property; e. who is to pay the costs of maintenance of the common property; and e. how disputes between the Dowells and the Kuhns concerning the interpretation and implementation of the homeowners' association or maintenance agreement are to be resolved. 5. The Dowells and the Kuhns must agree on the language of the common property maintenance document they agree to use. 6. The Dowells and the Kuhns must both sign the common property maintenance document they agree upon. 7. The Dowells and the Kuhns must present the agreed-upon document to the county for approval prior to signing and recording the document with the conditions of approval agreement. Dated this,...3,2 4& day of June, 2014. Mailed this day of June, 2014. Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. Dowell MA-14-1/DR-13-16 Page 25 • 21, 2014 submission, Ms. Fancher argued a maintenance agreement such as that contemplated by Condition 2 is not recordable. I am uncertain if this is the case. However, to assure any written maintenance agreement is recorded, I find that whichever document is chosen by the applicants and opponents to assure maintenance of the common property shall be attached to the conditions of approval agreement for recording. Hers' association or written maintenance agreement, With respect t o the contents of the homeowners' 9 p the Hearings Officer finds that whichever document is chosen by the applicants and opponents, it must include provisions assuring the natural resource values and wildlife habitat in the cluster development open space parcel are preserved and maintained, and that the open space does not become a nuisance through lack of maintenance. Those provisions should include, but need not be limited to: (1) who pays the property taxes on the open space parcel; (2) how vegetation is to be maintained for habitat values and to minimize risk of wildfire; (3) who is to physically maintain the common property;4 (4) who is to pay for the costs of maintenance; and ( ) how disputes between the parties concerning the maintenance agreement are to be resolved. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DECLARES AS FOLLOWS: 1. The Dowells and Kuhns now stand in the shoes of the original cluster development developer and as such are jointly responsible for carrying out and complying with the conditions of approval in CU-80-2 including Condition 2. 2. The Dowells and the Kuhns, as successors in interest to the original cluster development developer, may enter into a conditions of approval agreement with the county on a form of agreement provided by the county. Such agreement shall state that the Dowells and Kuhns acknowledge and agree to comply with the conditions of approval in CU-80-2, including Condition 2, in exchange for the exercising their rights under the cluster development conditional use approval. 3. The Dowells and the Kuhns, as successors in interest to the original cluster development developer, must agree as to whether they will use a homeowners' association or written maintenance agreement to assure maintenance of the cluster development common area. 4. Whichever document the Dowells and the Kuhns agree upon to assure maintenance of the cluster development common property, the document must include provisions assuring the natural resource values and wildlife habitat in the cluster development open space parcel are preserved and maintained, and that the open space does not become a nuisance through lack of maintenance. Those provisions should include, but need not be limited to: 4 The Hearings Officer finds there is nothing in PL-15 or the decision in CU-80-2 that limits to the Dowells and/or the Kuhns the obligation to physically maintain the common property. In other words, a third party could undertake the required maintenance if the parties agree to that arrangement_ 5 Any additional provisions agreed to by the Dowells and the Kuhns must be directed at carrying out the purposes of the common property maintenance agreement. Dowell MA-14-1/DR-13-16 Page 24 association or maintenance agreement for the cluster development common area; 2. he must either establish a homeowners' association or a separate written agreement assuring maintenance of the common property; 3. he must obtain the county's approval of the homeowners' association or written maintenance agreement, whichever he chose; and 4. to be acceptable, the homeowners' association or written maintenance agreement must both preserve and maintain the natural resource values and wildlife habitat on the common property and assure the common property is kept up so it does not become a nuisance. Mr. Barton did not comply with these requirements and is no longer in the picture. Section 22.36.050 addresses the status of land use permits, approvals and conditions thereof following the transfer of property ownership as follows: A. A land use action permit shall be deemed to run with the land and be transferable to applicant's successors in interest. B. The Planning Division may require that an applicant record a notice of land use permit and conditions of approval agreement in the Deschutes County Records. Such an agreement shall set forth a description of the property, describe the permit that has been issued and set forth the conditions of approval. The Planning Director is authorized to sign the notice and agreement on behalf of the County. C. The terms of the approval agreement may be enforced against the applicant and any successor in interest. The Hearings Officer finds that under Paragraph (A), the applicants and opponents now stand in the shoes of the applicant — i.e., Mr. Barton, original cluster development developer. In other words, they are both responsible for carrying out and complying with the conditions of approval in CU-80-2. Accordingly, I find that under the circumstances presented in this case, and in order to accomplish what the original developer did not, the applicants and opponents must jointly undertake all actions required to comply with Condition 2. I further find that under Section 22.36.050(B) the Planning Director may enter into a conditions of approval agreement with both the Dowells and the Kuhns through which they jointly acknowledge and agree to comply with the conditions of approval in CU-80-2, including Condition 2, in exchange for the exercising their rights under the cluster development conditional use approval. With respect to the required homeowners' association or written agreement for maintenance of the common property, the Hearings Officer finds that because execution of one of these documents was required of the original developer, the applicants and opponents again step into his shoes and therefore must agree as to which method they will use for assuring maintenance of the common area_ They also must agree on the language used in whichever document they chose, they must both sign that document, and they must present that document to the county for approval. Although Condition 2 does not expressly require that either the homeowners' association or written maintenance agreement be recorded, I find that the chosen document must be recorded in order for it to be binding on the cluster development parcels. In her March Dowell MA-14-1/DR-13-16 Page 23 and it was no improper for the board of county commissioners to reach and decide a question that it felt was likely to arise in reaching the required agreement or arise after that agreement is reached. The board of county commissioners'interpretation is also obviously correct. The agreement that is required by Condition 2 will only be entered if it is acceptable to both intervenors [Dowellsl and petitioners. The only other entity that has any direct interest in the agreement is the county. Viewed in this context, the requirement that the agreement be `acceptable' could only mean it must be acceptable to the county."(Emphasis added.) The Hearings Officer finds the above-underscored language also is dicta. That is because the only question before LUBA was whether the board erred in interpreting "acceptable" to mean "acceptable to the county." It was not necessary to that holding for LUBA to determine who must sign the agreement(s). Circuit Court Decision (Case No. 01-CV-0233-MA). Opponents argue the context for interpreting Condition 2 in CU-80-2 also includes the decision issued by the Deschutes County Circuit Court on August 2, 2002, which included the following language: "(MANDATORY INJUNCTION) Defendants are ordered to enter into the required 'home owners association or agreement assuring the maintenance of common property' as set forth in the conditions required with respect to the conditional use permit. At a minimum, this agreement shall provide that any property taxes and any maintenance costs with regard to the common property shall be shared equally."(Emphasis added.) In her March 21, 2014 submission, opponent's attorney Liz Fancher argued this language specifically ordered the applicant to enter into an agreement with opponents. The Hearings Officer disagrees. I find there is nothing in the above-quoted and underscored language that identifies who must be a party to the required maintenance agreement. Rather, the decision simply refers back to Condition 2. Conclusion As discussed in the findings above, the applicants' modified declaratory ruling request asked for a determination of: "What requirements (specific provisions, required signatures, and any other considerations) are necessary to satisfy condition of approval #2 of CU 80-22 [sic]." Based on the foregoing findings and conclusions, the Hearings Officer finds Condition 2 established the following four requirements of the original cluster development developer: 1. he must enter into a written agreement with the county that establishes either a homeowners' Dowell MA-14-1/DR-13-16 Page 22 Board's 2010 Decision (A-09-4, A-09-5, A-07-9) As discussed in the findings above, in its 2010 decision the board held the term "acceptable" in Condition 2 of CU-80-2 means "acceptable to the county_" The parties disagree as to whether the board's decision interpreted any other language in Condition 2. The board found the applicants' parcel was in violation of Title 18 because of the lack of an acceptable homeowners' association or "agreement between both property owners" for maintenance of the open space parcel. Opponents argue the quoted language signifies the board's decision held both the applicants and opponents must sign any agreement creating a homeowners' association. The Hearings Officer disagrees. I find the above-quote language is dicta because it was not required for the board to resolve the question before it, which was whether the county erred in issuing a LUCS and a building permit for the applicants' proposed remodel of their dwelling in the absence of an acceptable homeowners association or written maintenance agreement. The question was not who is required to sign any agreement(s) required by Condition 2 of CU-80-2. In order to determine the meaning of the phrase "acceptable to the county" in the board's 2010 decision, the Hearings Officer finds I must again look to PL-15 for context. As discussed in the findings above, cluster developments were conditionally permitted uses in the F-3 and WA Zones, and the definition of "cluster development" included an open space area. Section 8.050(16)(B)(a) required that at least 65 percent of the cluster development be "kept in open space uses" which included agricultural and forest uses and preservation of natural resources including wildlife habitat. Therefore, I find the purpose of the open space requirement for the subject cluster development was three-fold: (1) to assure no development of the open space parcel with uses other than "open space" uses—which was to be accomplished by the recording of deed restrictions; (2) to assure preservation of the natural resource values of the open space parcel, and in particular its value as wildlife habitat — which was to be accomplished through either a homeowners' association or a maintenance agreement; and (3) to assure the common property is "kept up" — i.e., that it does not become a "nuisance" due to lack of care and maintenance. LUBA Decision (Kuhn v. Deschutes County 62 Or LUBA 165 (20101 In its 2010 decision, LUBA reviewed the board's denial on appeal of the LUCS and building permit for a remodel of the dwelling on the applicants' dwelling. LUBA held that in the context of that appeal it was not improper for the board to reach and decide the issue of what the term "acceptable" in Condition 2 means. LUBA's decision states in relevant part: "Petitioners [Kuhns] contend the above finding ["acceptable" means "acceptable to the county"] was unnecessary to the board of county commissioners'decision, since there is no agreement there is no issue presented regarding who the agreement must be acceptable to. We understand petitioners to contend that issue will not be presented until there is an agreement and it was error for the board of commissioners to resolve the issue in the decision that is the subject of this appeal. Petitioners are no doubt correct that the finding regarding who the agreement must be acceptable to is not actually presented in this case, need not have been answered by the board of commissioners, and need not be addressed by LUBA in this appeal. But while it may be improper for a judicial court to decide hypothetical questions, the board of county commissioners is not a judicial court, Dowell MA-14-1/DR-13-16 Page 21 conditions of approval provide some context for interpreting Condition 2. Conditions 1 and 3 provide: "1. The applicant shall receive an approved partition for two residential lots, with the remaining lot to be held in joint ownership prior to the sale of any lots. 3. The common areas shall not be used for any residential dwelling." (Emphasis added.) It appears from these conditions that in drafting Condition 2 for CU-80-2, former Hearings Officer Myer Avedovich considered the cluster development open space parcel to constitute common property — i.e., in joint ownership of the residential parcel owner(s). Such a finding is consistent with the cluster development partition plat, a copy of which is included in Exhibit 9 to the applicants' original burden of proof. The plat labels the open space parcel as "common area." As discussed above, Section 8.050(16)(C)(c) requires the establishment of only a homeowners' association for maintenance of the common property. However, in Condition 2 former Hearings Officer Avedovich required a written agreement establishing either a homeowners' association or an "agreement" that assures the maintenance of common property. The record indicates there was no appeal from this condition. And no written agreement was executed or recorded establishing either a homeowners' association or a maintenance agreement.2 Finally, Condition 2 does not identify who must sign either the written agreement establishing a means for maintaining the common property, or the written agreement for maintenance which was offered as an alternative to the establishment of a homeowners' association. However, because the actions required by Condition 2 were required to be undertaken prior to the sale of partition lots— i.e., before there were any property owners other than Mr. Barton --the Hearings Officer finds former Hearings Officer Avedovich necessarily contemplated the parties to the first agreement would be Mr. Barton and the county. In other words, the first agreement was intended to serve a function similar to an improvement guarantee or conditions of approval agreement typically executed between the developer and the county.3 Officer finds that because the second agreement Hearings Off reement was offered to Mr. Barton as an 9 9 association, it necessarily was intended have the alternative to establishing a homeowners assoc y same effect as a homeowners' agreement. In other words, it would specify how and by whom the common property would be maintained and would be binding on all future owners of the cluster development parcels. For the second agreement to have such an effect, it would have to be recorded against the residential parcels. And again, because Condition 2 required this maintenance agreement, if chosen by Mr. Barton, to be in place prior to the sale of any cluster development lots, I find the hearings officer likely also intended that the parties to this agreement would be the developer and the county. 2 Exhibit 9 to the applicant's original burden of proof includes a copy of a letter dated March 5, 1980 from James Drew, attorney for Mr. Barton, stating it was Mr. Barton's intent to develop"an agreement creating the Homeowners'Association"for maintenance of the"common property" including payment of taxes_ 3 Section 22.36.050(6)authorizes the county to require that an applicant record a conditions of approval agreement. Dowell MA-14-1/DR-13-16 Page 20 land in open space provided. (c) A written agreement establishing an acceptable homeowners association assuring the maintenance of common property in the development. (Emphasis added.) Section 1.030(80) of PL-15 defined "open space" as: Lands used for agricultural or forest uses, and any land area that would, if preserved and continued in its present use, conserve and enhance natural or scenic resources . . . enhance the value to the public of. . .wildlife preserves. In light of the"open space" definition, the Hearings Officer finds the deed restrictions required by subparagraph (b) of Section 8.050(16)(C) were intended to assure that only open space uses could occur on designated open space. As discussed in the findings above, the record indicates deed restrictions were recorded for the subject cluster development residential parcels that limited the uses permitted on the open space parcel. Subparagraph (c) of Section 8.050(16)(C) addresses "common property" rather than "open space." It requires an agreement establishing a homeowners' association for the "maintenance" of that property. Neither PL-14 nor PL-15 defined "common property." The ordinary definition of "common" includes "belonging to or shared by each or all." Webster's New World Dictionary and Thesaurus, Second Edition. Applying this definition, the Hearings Officer finds "common property" as used in Section 8.050(16)(C)(c) means property in the joint ownership of cluster development property owners. The terms "open space" and "common property" have different meanings and are used in different contexts in Section 8.050(16)(C). Consequently, the Hearings Officer finds they do not necessarily encompass the same property. For instance, common property in a cluster or other planned development may include improvements such as a water or sewage disposal system that does not constitute "open space." Moreover, there appears to be nothing in the cluster development provisions of PL-15 that requires the designated open space be in joint ownership of the cluster development property owners.' PL-15 also does not define the term "maintain." The ordinary definition of the term includes "to keep in continuance or in a certain state" and "to keep or keep up." Webster's New World Dictionary and Thesaurus, Second Edition_ The Hearings Officer finds that in the context of Subparagraph (b) relating to open space, "maintain" has the former meaning — i.e., to keep in a certain state. I find that in the context of Subparagraph (c) relating to common property, "maintain" has the former meaning--i.e., to "keep up." CU-80-2 The decision in CU-80-2 includes little analysis. However, the Hearings Officer finds two other Section 1.030(21)of PL-15 defines"cluster development"as: A ,lanned development, at least five acres in area, permitting the clustering of single- family p family residences on one part of the property, with no commercial or industrial uses permitted. Dowell MA-14-1/DR-13-16 Page 19 3. that assures the maintenance of common property in the cluster development. The Hearings Officer finds Condition 2 is ambiguous on its face for several reasons. It does not describe the form or nature of either agreement referred to in the condition. It does not identify the necessary parties to either agreement. It does not specify what is meant by "maintenance" of the common property. And it does not explain what constitutes an "acceptable" homeowners association or maintenance agreement, although as discussed above the board in its 2010 decision held the term "acceptable" means "acceptable to the county." However, neither Condition 2 nor the board's decision identifies what the homeowners' association or agreement must include to be "acceptable to the county." Finally, as discussed in detail in the findings below, the language of Condition 2 deviates from the ordinance language on which it was based by adding alternative language that has caused confusion for the parties and the county. To interpret Condition 2 the Hearings Officer must look to the both the text and context of the condition to determine the drafter's intent. I find the context of Condition 2 includes PL-15, the zoning ordinance in effect when CU-80-2 was issued, the decision in CU-80-2, and the board's and LUBA's decisions interpreting and applying Condition 2. PL-15 The record indicates that in 1980 the subject property was zoned Forest Use (F-3) and Wildlife Area Combining A . Sections 4.085 and 4.190 of PL-15, respectively, allowed cluster Combm Y 9 (W ) developments as a conditional use in the F-3 and WA Zones. Conditional uses were governed by Chapter 8 of PL-15. Section 8.050 established specific conditional use standards for cluster developments in relevant part as follows: A conditional use shall comply with the standards of the zone in which it is located and with the standards and conditions set forth in this section. * * * (16) Cluster Development(Single-Family Residential Uses Only). * * * (B) The conditional use shall not be granted unless the following findings are made: (a) No more than 35 percent of the land will be utilized for the development and 65 percent will be kept in open space uses. * * * (C) All applications shall be accompanied by a plan with the following information: * * * (b) The area to be preserved for open space clearly designated on the plan and adequate deed restrictions to maintain the Dowell MA-14-1/DR-13-16 Page 18 cannot reapply for a declaratory ruling on that same issue. And because this decision has not been made by the board, I find it does not constitute a policy of the county. e. Section 22.40.050, Interpretation Interpretations made under DCC 22.40 shall not have the effect of amending the interpreted language. Interpretation shall be made only of language that is ambiguous either on its face or in its application. Any interpretation of a provision of the comprehensive plan or other land use ordinance shall consider applicable provisions of the comprehensive plan and the purpose and intent of the ordinance as applied to the particular section in question. FINDINGS: The applicants have not requested an interpretation of the comprehensive plan or zoning ordinance. Rather, they have requested an interpretation of Condition 2 of CU-80-2. As discussed in detail in the findings below, the Hearings Officer has found the language of Condition 2 is ambiguous both on its face and as applied. Therefore, I find the applicants' declaratory ruling request satisfies this criterion. INTERPRETATION OF CONDITION 2 OF CU-80-2 FINDINGS: The applicants' modified declaratory ruling application requests a determination of: "What requirements (specific provisions, required signatures, and any other considerations) are necessary to satisfy Condition of Approval#2 of CU 80-22." As noted in the findings above, this is a different question from that posed in the applicant's original declaratory ruling application which asked the Hearings Officer to declare that a specific proposed maintenance agreement would be acceptable to the county and satisfy Condition 2. As also discussed above, I have found the applicants' modified declaratory ruling request essentially asks for a determination of what the language of Condition 2 requires. Condition 2 states: "Prior to the sale of any lot a written agreement shall be recorded which establishes an acceptable homeowners association or agreement assuring the maintenance of common property in the partition." Section 22.40.050 authorizes the Hearings Officer to interpret only language that is "ambiguous either on its fact or in its application." As discussed in the findings above, the record indicates that until the board's 2010 decision held otherwise, planning staff and the parties apparently believed the requirements in Condition 2 had been fully satisfied by the recording of deed restrictions for the cluster development parcels. Therefore, I find this condition has been ambiguous in its application. Condition 2 requires that prior to the sale of any cluster development lot: 1. a written agreement must be recorded; 2. that establishes either an acceptable homeowners association or acceptable agreement; Dowell MA-14-1/DR-13-16 Page 17 case involving multiple property owners the application can be submitted by "a" property owner. The Hearings Officer adheres to my holdings in Smith and Loyal Land and finds the applicants had authority to submit their declaratory ruling requests without the signature or consent of the Kuhns. B. A request for a declaratory ruling shall be initiated by filing an application with the planning division and, except for applications initiated by the Planning Director, shall be accompanied by such fees as have been set by the Planning Division. Each application for a declaratory ruling shall include the precise question on which a ruling is sought. The applicant shall set forth whatever facts are relevant and necessary for making the determination and such other information as may be required by the Planning Division. FINDINGS: The record indicates the applicants filed original and modified declaratory ruling applications and paid the fees required by the county. The applications and supporting materials set forth both the questions posed by the applicants and the facts relevant to answering those questions. Therefore, the Hearings Officer finds the applicants satisfied this requirement. c. Section 22.40.030, Procedures Except as set forth in DCC 22.40 or in applicable provisions of a zoning ordinance, the procedures for making declaratory rulings shall be the same as set forth in DCC Title 22 for land use actions. Where the Planning Division is the applicant, the Planning Division shall bear the same burden that applicants generally bear in pursuing a land use action. FINDINGS: The subject declaratory ruling application has been processed in accordance with the requirements of Title 22, the development procedures ordinance. d. Section 22.40.040, Effect of Declaratory Ruling A. A declaratory ruling shall be conclusive on the subject of the ruling and bind the parties thereto as to the determination made. B. DCC 22.28.040 notwithstanding, and except as specifically allowed therein, parties to a declaratory ruling shall not be entitled to reapply for a declaratory ruling on the same question. C. Except where a declaratory ruling is made by the Board of County Commissioners, the ruling shall not constitute a policy of Deschutes County. FINDINGS: The Hearings Officer finds this declaratory ruling decision will be conclusive as to the question presented in the applicants' modified declaratory ruling request, and the parties Dowell MA-14-1/DR-13-16 Page 16 FINDINGS: The Hearings Officer finds neither the Planning Director nor the Hearings Officer determined to not accept or to deny the applicants' declaratory ruling request. b. Section 22.40.020, Persons Who May Apply A. DCC 22.08.010(B) notwithstanding, the following persons may initiate a declaratory ruling under DCC 22.40: 1. The owner of a property requesting a declaratory ruling relating to the use of the owner's property. 2. In cases where the request is to interpret a previously issued quasi-judicial plan amendment, zone change or land use permit, the holder of the permit; or 3. In all cases arising under DCC 22.40.010, the Planning Director. FINDINGS: The referenced Section 22.08.010 establishes general requirements for filing land use applications. Paragraph (A) of that section defines "property owner" as "the owner of record or the contract purchaser and does not include a person or organization that holds a security interest." Paragraph (B) of Section 22.08.010 authorizes land use applications to be submitted "by the property owner or a person who has written authorization from the property owner as defined herein to make the application." Section 22.40.020(A), relating to declaratory rulings, expands the list of applicants authorized to submit an application beyond those identified in Section 22.08.010 to include: (1) "the property owner" when the declaratory ruling relates to "the use of the owner's property;" (2) "the holder of the permit" in cases where the declaratory ruling requests an interpretation of a previously issued land use permit; and (3) the Planning Director "in all cases." In the Hearings Officer's decisions in Smith (A-10-2, NUV-09-1) and Loyal Land(DR-11-8) I found the intent of this broad authorization, combined with the extensive list of subjects for declaratory rulings under Section 22.40.010(A), is to provide an expansive rather than restrictive process for resolving issues and "status situations" in a timely manner. The applicants own Tax Lot 100 and are co-owners with opponents of Tax Lot 300, the open space parcel. The Hearings Officer therefore finds the applicants are owners of the property subject to the declaratory ruling proceeding. I also find they are holders of the cluster development conditional use permit issued to their predecessor in title because under Section 22.36.050 that approval runs with the land. For these reasons, I find the applicants are entitled to request this declaratory ruling. In her January 17, 2014 submission, Ms. Fancher argued the Hearings Officer cannot consider the applicants' declaratory ruling application because it was submitted without the Kuhns' signature or other form of consent. The Hearings Officer disagrees. In Loyal Land I found the applicant was entitled to request a declaratory ruling affecting nine tax lots comprising a destination resort although the applicant owned only eight of those tax lots and the owner of the remaining tax lot did not consent, and in fact was opposed, to the filing of the application. My holding was based on my analysis in Smith (A-10-2, NUV-09-1) in which I held that because Section 22.40.020(A)(1) authorizes "the" owner of property to apply for a declaratory ruling, in a Dowell • MA-14-1/DR-13-16 Page 15 acceptable to the county—the gist of their request is for a determination of what the language of Condition 2 means and requires. Consequently, I find the applicants' modified declaratory ruling application requests a determination to resolve a fact-specific controversy and is not for the purpose of obtaining an advisory opinion. C. Declaratory rulings shall not be used as a substitute for an appeal of a decision in a land use action or for a modification of an approval. In the case of a ruling on a land use action a declaratory ruling shall not be available until six months after a decision in the land use action is final. FINDINGS: The Hearings Officer finds the subject declaratory ruling request is not a substitute for an appeal since the appeal period for CU-80-22 expired many years ago, and the applicants are not challenging the validity of that approval but rather an interpretation thereof_ D. The Planning Director may refuse to accept and the Hearings Officer may deny an application for a declaratory ruling if: 1. The Planning Director or Hearings Officer determines that the question presented can be decided in conjunction with approving or denying a pending land use application or if in the Planning Director or Hearing Officer's judgment the requested determination should be made as part of a decision on an application for a quasi-judicial plan amendment or zone change or a land use permit not yet filed; or FINDINGS: The Hearings Officer finds the question presented through this declaratory ruling proceeding cannot be decided in conjunction with a pending land use application because none exists other than the subject declaratory ruling request. I also find the question cannot be resolved through a plan amendment, zone change or land use permit application not yet filed because the question presented does not request an interpretation of the county's comprehensive plan or zoning ordinance, and declaratory ruling proceedings are intended to provide a mechanism through which the status of a previously issued land use approval is determined. 2. The Planning Director or Hearings Officer determines that there is an enforcement case pending in district or circuit court in which the same issue necessarily will be decided as to the applicant and the applicant failed to file the request for a declaratory ruling within two weeks after being cited or served with a complaint. FINDINGS: The Hearings Officer finds there are no enforcement cases pending in district or circuit court that raise the same issue presented in this declaratory ruling proceeding. The Planning Director or Hearings Officer's determination to not accept or deny an application under DCC 22.40.010 shall be the County's final decision. Dowell MA-14-1/DR-13-16 Page 14 cluster development including the residential and open space parcels. B. A declaratory ruling shall be available only in instances involving a fact-specific controversy and to resolve and determine the particular rights and obligations of particular parties to the controversy. Declaratory proceedings shall not be used to grant an advisory opinion. Declaratory proceedings shall not be used as a substitute for seeking an amendment of general applicability to a legislative enactment. FINDINGS: The applicants requested a declaratory ruling of what is required to comply with Condition 2 of CU-80-2. As discussed in the findings above, the applicants' original application requested a determination of whether a specific proposed maintenance agreement would be acceptable. The applicants modified their original request by withdrawing the proposed agreement and instead requesting a determination of "what requirements (specific provisions, required signatures, and any other considerations) are necessary to satisfy Condition of Approval #2 of CU 80-22." The applicants stated this modification was prompted by questions posed by the Hearings Officer and responsive comments submitted by Assistant Legal Counsel Laurie Craghead regarding my authority to consider and find acceptable a specific agreement. In the Hearings Officer's December 11, 2013 letter to the parties, I asked whether I had authority to declare what specific provisions must be included in any agreement required by Condition 2 of CU-80-2, and whether any such declaration would amount to a prohibited "advisory opinion." In her December 12, 2013 memorandum, Ms. Craghead responded in relevant part as follows: "The question before the decision maker is not to determine what specific provisions must be included in any maintenance agreement. Therefore, the decision maker does not have that authority in this case. Such a determination, however, is not necessary in order to determine whether the particular agreement before the decision maker complies with the condition of approval. Of course, providing findings as to why the particular agreement complies with the condition of approval, the decision maker may appear to be providing an advisory opinion to guide the drafting of any other homeowners' agreement that might also be proposed to meet the condition of approval. Any finding in any type of decision, however, provides guidance for future similar decisions". (Underscored emphasis added.) The term "advisory opinion" is not defined in the county code. The ordinary definition of "advisory" is "advising" and "relating to advice." Webster's New World Dictionary, College Edition. The ordinary definition of "advise" includes "to give advice; to counsel; to offer as advice; to recommend." Id. In the context of Section 22.40.010(B), the term "advisory opinion" is contrasted with a ruling resolving a "fact-specific controversy." In light of these definitions and the context of the term "adviso ry opinion,"inion," the Hearings Officer finds the intent of Paragraph (B) was to limit declaratory rulings to resolving actual controversies rather than answering hypothetical questions. The applicants' modified declaratory ruling request arises from a fact- specific controversy concerning the meaning of Condition 2 of CU-80-2. Although the applicants' request is worded in a manner that suggests they are requesting an advisory opinion — i.e., asking for guidance as to what should be included in an agreement in order for it to be Dowell MA-14-1/DR-13-16 Page 13 Restrictions document was recorded and after the plat was filed. However, despite the fact that the County allowed the plat to be recorded and issued building permits for both parcels created by MP-79-232, the Board found that the Land Use Restrictions document was insufficient to comply with Condition of Approval #2 to CU 80-02. The Board found that the recorded Land Use Restrictions do not include provisions to ensure the maintenance of common property. This inconsistent interpretation by the County has led to a situation where the parties cannot agree on the matter because of the ambiguity in Condition of Approval #2 to CU 80-02. It is essential to moving this prolonged dispute forward that the County declare what provisions must be in the agreement, whether both owners must sign it, and any other pertinent considerations. A declaratory ruling is an available and appropriate vehicle for the County to take such an action." The Hearings Officer finds the applicants' modified request asks for an interpretation of a provision or limitation in a land use permit issued by the county about which there is doubt or a dispute, and therefore satisfies this criterion. Such a determination or interpretation shall be known as a "declaratory ruling" and shall be processed in accordance with DCC 22.40. In all cases, as part of making a determination or interpretation the Planning Director (where approp ri ate) o r Hearings Bod y (where appropriate) shall have the authority to declare the rights and obligations of persons affected by the ruling. FINDINGS: The parties disagree as to whether the requested declaratory ruling will declare the rights and obligations of, and be binding on, both the applicants and opponents and all three cluster development parcels. Opponents argue the ruling will not be binding on them for two reasons: (1) they did not sign or consent to the declaratory ruling application; and (2) the application does not include their property, Tax Lot 200. As discussed in detail in the findings below, incorporated by reference herein, the Hearings Officer has found the applicants were authorized under Section 22.40.020 to submit the subject applications without opponents' signature or consent. In addition, I find both opponents and the applicants are "persons affected by" the requested declaratory ruling under this paragraph because both are parties to this proceeding and both own property within the cluster development approved by the decision in CU-80-2. Therefore, I find I have authority to declare the rights and obligations of the applicants and opponents with respect to the question presented in the declaratory ruling request. The Hearings Officer also finds my declaratory ruling will be binding on all three parcels in the cluster development because Condition 2 of CU-80-2 is a condition of approval for the cluster development and as such applies to all three parcels. In addition, the condition specifically applies to both residential parcels by prohibiting the sale thereof prior to the recording of the required agreement_ For the foregoing reasons, the Hearings Officer finds my declaratory ruling will declare the rights and obligations of both the Dowells and the Kuhns insofar as they relate to the question presented in the applicants' declaratory ruling request, and will apply to and affect the entire Dowell MA-14-1/DR-13-16 Page 12 * * * 2. Interpreting a provision or limitation in a land use permit issued by the County or quasi-judicial plan amendment or zone change (except those quasi- judicial land use actions involving a property that has since been annexed into a city) in which there is doubt or a dispute as to its meaning and application; * * *. FINDINGS: The applicants request a declaratory ruling interpreting Condition of Approval 2 of CU-80-22, the decision approving the three-parcel cluster development. Condition 2 states: "Prior to the sale of any lot a written agreement shall be recorded which establishes an acceptable homeowners association or agreement assuring the maintenance of common property in the partition," The applicants' first modification to its declaratory ruling application requests a determination of: "What requirements (specific provisions, required signatures, and any other considerations) are necessary to satisfy Condition of Approval#2 of CU 80-22." In their burden of proof for the first modification application, the applicants described the nature of the doubt or dispute concerning Condition 2 in relevant part as follows: "The history of this matter clearly illustrates that there is doubt or dispute as to what is required in Condition of Approval #2 of CU 80-02. The two current lot owners have attempted to negotiate a maintenance agreement for years. They disagree as to what must be in the agreement and the county has been unwilling to tell the parties what must be in the agreement. Moreover, county counsel stated in her December 12, 2013 letter that both owners must sign an agreement despite a lack of such a specific requirement in the condition. * * * For many years, the County and the property owners assumed that the document entitled `Land Use Restrictions' recorded at Vol. 148, Page 1792 constituted the 'homeowners association or agreement' in compliance with the decision. The language in the Land Use Restrictions is identical to the proposed restrictions on land use submitted by the property owner at the time in CU-80-2_ These provisions were evidently acceptable to the County because the County subsequently issued building permits to both the Kuhns and the Dowells. Moreover, the Kuhns acknowledged that this document had become accepted as compliance with the joint homeowners'maintenance agreement in a letter dated January 29, 1997(Exhibit 8 in DR 13-16). Mr. Kuhn stated: `The deed restrictions of record, met your definition of the necessary joint homeowners maintenance agreement.' Both the Applicant and the Kuhns purchased their properties after the Land Use Dowell MA-14-1/DR-13-16 Page 11 advised the Hearings Officer that no request to reopen the record would be submitted. The parties correctly note the statutory 150-day period under ORS 21 5.427(1) does not apply to the applicants' declaratory ruling request because it does not involve a "permit, limited land use decision, or zone change." However, the county code makes a 150-day period for issuance of final decisions applicable to all "land use actions." Section 22.20.040. Section 22.04.010 defines "land use action" to include any consideration of a request for a declaratory ruling." The only declaratory ruling not subject to the 150-day period is one requesting a determination of whether an approval has been initiated. Section 22.20.040(D)(4). To the extent the county's procedures ordinance independently imposes a 150-day period for issuance of a final local land use decision in this declaratory ruling proceeding, the Hearings Officer finds the filing of the applicants' second modification on February 27, 2014 restarted the 150-day period and the period expires on July 27, 2014. As of the date of this decision there remain 60 days in the 150- day period. G. Public/Private Agency Notice. The record indicates the Planning Division did not send notice of the applicants' original and modified declaratory ruling requests to agencies. H. Public Notice and Comment. The record indicates the Planning Division mailed individual notice of the applicants' original declaratory ruling request to the owners of record of all property located within 250 feet of the subject property. In addition, notice of the public hearing was published in the Bend "Bulletin" newspaper, and the subject property was posted with a notice of proposed land use action sign. The record indicates notice of the applicants'first modification of the declaratory ruling request was not mailed to parties entitled to notice. In accordance with the Hearings Officer's March 5, 2014 order the Planning Division mailed individual notice to those persons entitled to notice and the subject property was again posted with a notice of proposed land use action sign. As of the date the record in this matter closed, the county had received two letters from the public in response to these notices. No members of the public testified at the public hearing_ Lot of Record. The subject property consists of three legal lots of record within a cluster development created through a 1979 partition (MP-79-232). Ill. CONCLUSIONS OF LAW: DECLARATORY RULING STANDARDS AND PROCEDURES A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.40, Declaratory Ruling a. Section 22.40.010, Availability of Declaratory Ruling A. Subject to the other provisions of DCC 22.40.010, there shall be available for the County's comprehensive plans, zoning ordinances, the subdivision and partition ordinance and DCC Title 22 a process for: Dowell MA-14-1/DR-13-16 Page 10 Unlike the original declaratory ruling application, the modification application did not include a proposed maintenance ag r eement. It also included o nl y Tax Lot 100 in the description of the subject property. On January 21, 2014 opponents submitted a letter asserting the applicants' modification application did not constitute a modification as defined in the county code. On January 31, 2014 the applicants submitted their First Supplemental Burden of Proof on the modification responding to opponents' letter. On February 4, 2014 the Hearings Officer issued a "Determination and Order on Modification of Application" finding the applicants' modified declaratory ruling request constituted a "modification of application" as defined in Section 22.04.020. The Hearings Officer found that no additional public hearing would be required but directed the Planning Division to provide written notice of the modified application to all persons entitled to notice. The Hearings Officer also revised the post- hearing schedule for evidence and argument to close the written evidentiary record on February 28, 2014 and to allow the applicants' final argument through March 7, 2014. The order also stated the record for the modification would include the entire record for DR-13-16 and all non-duplicative evidence and argument submitted by the parties and planning staff until the close of the record on the modification (MA-14-1). By a letter dated February 20, 2014, the applicants requested an extension of the record for the modification, and by a letter of the same date opponents stated they did not object to the extension. By an order dated February 21, 2014, the Hearings Officer revised the submission dates for evidence and argument to March 21 and March 28, 2014, respectively. On February 27, 2014 the applicants submitted a second modification to their declaratory ruling request to add Tax Lot 300 — the open space parcel -- to the description of the property subject to the modified declaratory ruling. By an electronic mail messaged dated March 2, 2014 and transmitted electronically to the Hearings Officer on March 4, 2014, opponents questioned whether notice of the first modification was adequate due to a number of alleged procedural errors. On March 5, 2014 the Hearings Officer issued a "Determination and Order on Second Modification of Application" addressing opponents' procedural issues, finding that the applicants' second modification request constituted a modification, that the second modification request was timely filed, and that no new hearing was required. The order directed the Planning Division to provide notice of the second modification by mailing notice to persons entitled to notice and directed that the subject property be posted with new notice of proposed land use action. In addition, the Hearings Officer revised the post-hearing schedule for evidence and argument to close the evidentiary record on March 28, 2014 and to allow the applicants' final argument through April 4, 2014. By an electronic mail message dated March 31, 2014, Senior Planner Paul Blikstad informed the Hearings Officer that some of the testimony and exhibits submitted by opponents by electronic mail were not received by the county prior to the close of the record at 5:00 p.m. on March 28, 2014. By a letter to the parties dated April 1, 2014, the Hearings Officer advised the parties that in order to consider any such evidence opponents would have to submit a written request by 5:00 p.m. April 2, 2014 to reopen the record for that purpose. By an electronic message dated April 1, 2014, the Kuhns Dowell MA-14-1/DR-13-16 Page 9 the agreement to determine that it `assures the maintenance of common property.' The Kuhns appealed the board's decision to LUBA. On October 22, 2010 LUBA issued a decision affirming the board's decision. Kuhn v. Deschutes County, 62 Or LUBA 165 (2010). The Kuhns appealed LUBA's decision to the Court of Appeals. 2011. The Court of Appeals affirmed LUBA"s decision without opinion on January 26, 2011. Kuhn v. Deschutes County, 240 Or App 563, 249 Pad 166 (2011) On December 21, 2011 the Dowells submitted an application requesting a "declaratory ruling to establish a homeowners' agreement" (DR-11-13). 2012. By a letter dated January 20, 2012 the Planning Division notified the Dowells that their declaratory ruling application was incomplete and informed them of the missing information. By a letter dated May 17. 2012, the Dowells withdrew their declaratory ruling application (DR-11-13). F. Procedural History. On June 5, 2013 the Dowells submitted a declaratory ruling application (DR-13-16). The application form stated they were requesting "a declaratory ruling to establish a homeowner's agreement" and listed Tax Lots 100 and 300 as the property subject to the declaratory ruling. Their Burden of Proof Statement described their request as a declaratory ruling "to determine whether a proposed Maintenance Agreement assures the maintenance of common property and is acceptable to the County." The burden of proof included a proposed maintenance agreement. By a letter dated June 14, 2013, the Planning Division advised the Dowells that their application was incomplete and that they needed to submit a hearing fee. The fee was submitted on July 2, 2013 and the application was accepted as complete on that date. Following extensive correspondence among planning staff, the Hearings Officer, the parties and their attorneys, a public hearing was scheduled for December 3, 2013. At the hearing, the Hearings Officer received testimony and evidence, left the written record open through February 7, 2014, and allowed the applicants through February 14, 2014 to submit final argument pursuant to ORS 197.763. At the hearing, the Hearings Officer inquired as to the precise nature of the applicants' request and the extent of my authority to address it under the declaratory ruling provisions in Chapter 22.40. By a letter dated December 11, 2013, to planning staff, the county's legal counsel, and the parties' attorneys, the Hearings Officer presented five questions concerning application of the declaratory ruling provisions and asked for briefing on those issues. By a letter dated December 12, 2013, Assistant County Legal Counsel Laurie E Craghead submitted a response. In response to the Hearings Officer's and Ms. Craghead's letters, on January 16, 2014 the Dowells submitted a modification application (MA-14-1) that revised their original declaratory ruling application to request a determination as to: "What requirements (specific provisions, required signatures, and any other considerations) are necessary to satisfy condition of approval #2 of CU 80-22[sic].,, Dowell MA-14-1/DR-13-16 Page 8 county land use regulations back to September 20, 1989, the date the Dowells acquired their parcel. On November 26, 2007 the Kuhns submitted to the county another code violation complaint alleging the Dowells' existing dwelling and the county's issuance of the building permit to remodel the dwelling violated the Dowells' LM approval (LM-92-9) because the dwelling is located more than 400 feet from Sisemore Road. 2008: The record in the Kuhns' issuance appeal of the county's ss of a LUCS and building permit closed on January 2, 2008. On March 26, 2008, this Hearings Officer issued a decision dismissing the Kuhns' appeal on the grounds that the appeal was barred by the previous circuit court judgment, and that the Kuhns were not authorized to appeal the 2007 LUCS and building permit issuance under either state law or the county's land use procedures ordinance. I also found the LUGS and building permit were not land use decisions, and therefore the provisions of ORS 215.427 establishing a 150-day period for the issuance of a final local land use decision did not apply. The Kuhns appealed this decision to the board which declined to hear the appeal. On May 29, 2008, the Kuhns appealed the Hearings Officer's decision to LUBA. 2009: On March 11, 2009 LUBA issued a decision remanding the Hearings Officer's decision dismissing the Kuhns' appeal for further county proceedings. Kuhn v. Deschutes County, 58 Or LUBA 483 (2009). LUBA held the LUGS and building permit at issue in the Kuhns' appeal constituted a land use decision from which the Kuhns had the right to appeal. By a letter dated March 26, 2009, the Dowells requested that the remand proceedings be initiated. A public hearing on the LUBA remand was held on May 21, 2009. In August 2009 the Hearings Officer issued a decision reversing the Planning Division's decision to issue a LUCS and building permit to remodel the Dowells' existing dwelling, finding that the Dowells' dwelling was subject to the 400-foot maximum setback from Sisemore Road, and finding that since it was constructed outside the setback the Dowells' dwelling was not "lawfully established" for purposes of obtaining approval for an alteration of the dwelling under Section 18.40.020(N) of the zoning ordinance. 2010. By a decision dated February 22, 2010 (Document No. 2010-128), the board affirmed the Hearings Officer's decision (A-09-4, A-09-5, A-07-9)to reverse the Planning Division's decision to issue a LUGS and building permit to remodel the Dowells' dwelling, but on different grounds. The board held: "Therefore, the Board finds that the parcel violates DCC Title 18 because of the lack of the existence of an acceptable homeowner's association regulations or agreement between both property owners for the maintenance of the o p en space parcel. Because the parcel violates DCC Title 18, the issuance of a remodel permit was also in error. Moreover, the Board finds that any existing building permits within the partition were issued unlawfully. The Board finds that it must also determine the meaning of `acceptable.' In this case, `acceptable'means acceptable to the County. That is not to say that the County will enforce the agreement. The County will review Dowell MA-14-1/DR-13-16 Page 7 Defendants are ordered to enter into the required `home owners association or agreement assuring the maintenance of common property' as set forth in the conditions required with respect to the conditional use permit. At a minimum, this agreement shall provide that any property taxes and any maintenance costs with regard to the common property shall be shared equally." The circuit court's decision was affirmed without opinion by the Court of Appeals in Kuhn v. Dowell, 196 Or App 787, 106 P3d 699 (2004). 2006: In November 2006 the Dowells filed state and county Measure 37 claims asserting their property would be devalued by application of the 300-foot maximum road setback in the WA Zone established in August 1992 because compliance with that setback would prevent them from completing the second phase of their existing dwelling. 2007: On May 4, 2007 the Kuhns filed three county code enforcement complaints alleging, among other things, that the Dowells' existing dwelling is "illegal" because it was constructed outside the 400-foot maximum setback shown on the partition plat. On May 25, 2007 the Kuhns received an electronic mail message from Dennis Perkins, the county's Building Safety Director, stating that the county's code enforcement staff did not intend to pursue the May 2007 code violation complaints. By an electronic mail message dated May 30, 2007 the Kuhns advised Mr. Perkins that they wanted to appeal the county's decision not to prosecute their code violation complaints. On July 23, 2007 the Dowells applied for a building permit to remodel the existing dwelling on their parcel in order to convert the garage into residential space. The Planning Division issued a Land Use Compliance Statement (LUGS), and a building permit for the interior remodel was issued by the Building Division on July 24, 2007 (B65731). By an electronic mail message dated August 3, 2007 to Dennis Perkins and to Tom Anderson, the county's Community Development Department Director, the Kuhns stated they were appealing the county's issuance of building permit 665731 on the ground that the existing dwelling is illegal, and referred to the Kuhns' May 4, 2007 code violation complaints. On August 8, 2007 the Kuhns filed with the Planning Division a land use appeal application form and paid the $250 appeal fee. The application stated the as a land use decision." On August 9, 2007 the Kuhns filed appeal was from "665731 g pp with the Building Division a "Request for Appeal" form concerning issuance of the building permit. A hearing on the planning appeal was scheduled for September 24, 2007. The Dowells' attorney requested that the public hearing be continued because he could not be present at the hearing. The Hearings Officer continued the hearing to November 14, 2007. On October 10, 2007 the Department of Land Conservation and Development (DLCD) issued a Draft Order in Claim No. M131207 recommending approval of the Dowells' state Measure 37 claim, and recommending that in lieu of compensation, application of the applicable provisions of Goal 5 and OAR 660, Division 23 enacted or adopted after September 20, 1987 be waived. DLCD did not issue a final Measure 37 waiver order because of the intervening adoption of Measure 49 which modified the scope of Measure 37 waivers. On October 22, 2007, the board signed Order No. 2007-080 approving the Dowells' county Measure 37 claim and waiving application of nonexempt Dowell MA-14-1/DR-13-16 Page 6 1995: In February of 1995 the Planning Division reviewed the Dowells' building permit B34821 for land use compatibility. The Assessor's data for the Dowells' parcel state the "entire residence" was approved, but that the Dowells would be building "Phase I" of the dwelling which would consist of a 1,000-square-foot structure including a 424-square- foot apartment/guest room and a 576-square-foot garage, and that when the rest of the dwelling was constructed the kitchen in the guest room had to be removed. 1996:The Dowells requested and received an extension of several construction permits for the dwelling on their parcel. 1997: The Dowells completed a portion of their dwelling and received final inspection and approval thereof from the Building Division on February 11, 1997. The record indicates the dwelling was constructed between 400 and 500 feet from Sisemore Road but still on the Dowells' parcel. 2001: On May 3, 2001, the Dowells requested that the county issue a declaratory ruling to determine the approved side yard setbacks for their dwelling (DR-01-5). On September 17, 2001 this Hearings Officer issued a decision declaring that the cluster development approval in CU-80-22 approved side yard setbacks on the subject property of less than 100 feet, but did not approve side yard setbacks of not less than 25 feet. The Dowells appealed the Hearings Officer's decision to the Deschutes County Board of Commissioners (board) (A-01-19). The board agreed to hear the appeal, but because the required transcript of the hearing before the Hearings Officer was not submitted within five days of the appeal hearing, the appeal hearing did not occur. By a letter dated December 12, 2001 the Dowells formally withdrew their appeal. In 2001, the Kuhns filed a civil complaint in Deschutes County Circuit Court (Case No. 01 CV0233MA). The lawsuit requested, among other things: (1) a declaratory judgment that the Dowells' dwelling on the subject property was unlawful because it was built more than 400 feet from Sisemore Road, and that the Dowells' practice of leaving exterior lights on all night constituted a nuisance; and (2) a mandatory injunction requiring the Dowells to enter into an agreement for maintenance of the common area (Tax Lot 300). 2002: On January 21, 2002, the Dowells submitted another land use application for a declaratory ruling concerning the required minimum side yard setbacks on their parcel (DR-02-2). On May 7, 2002 this Hearings Officer issued a decision denying this request on the ground that the question presented was the same as that addressed in the Dowells' previous declaratory ruling application, and the county's procedures ordinance prohibited the Dowells from applying for another declaratory ruling on the same question. The Dowells appealed that decision to the board (A-02-2). The board agreed to hear the appeal. In a decision dated August 11, 2002, the board found the record for the subject property included at least one site plan map showing a side yard setback of 40 feet, and therefore held the side yard setbacks for the subject property are 40 feet. The board's decision did not address the setback from Sisemore Road. On August 2, 2002 Deschutes County Circuit Judge A. Michael Adler issued a judgment in the Kuhns' civil suit against the Dowells that included the following: "(MANDATORY INJUNCTION) Dowell MA-14-1/DR-13-16 Page 5 1987: The Kuhns acquired their property — Tax Lot 200 on Assessor's Map 16-11-19 — by a deed dated July 22, 1987. On June 19, 1987 the county approved a lot line adjustment requested by the Kuhns (LL-87-23) that reconfigured their lot relative to the open space parcel in order to provide the Kuhns with a buildable lot meeting all required setbacks. According to the Kuhns, this lot line adjustment reconfigured their parcel so it is located entirely within 400 feet of Sisemore Road. This lot line adjustment approval was subject to a condition requiring that prior to issuance of a building permit for a dwelling on the Kuhns' property the deed restrictions required by the 1980 cluster development conditional use approval be recorded with the Deschutes County Clerk. 1989: The Dowells acquired their property —Tax Lot 100 -- through a land sale contract dated August 3, 1989. 1992: On February 7, 1992 the Dowells submitted an application for LM site plan approval for a dwelling on their parcel. By a letter dated February 10, 1992, then- Associate Planner Paul Blikstad advised the Dowells that the previous conditional use and partition approvals affecting the subject property (CU-80-22 and MP-79-232, respectively) established a 400-foot maximum dwelling setback from Sisemore Road. The letter went on to state: "I am sending you a copy of the official partition drawing which established this restriction. Frank Cibelli has submitted a Landscape Management Plan application on your behalf which changed the location of the dwelling site to meet this 400-foot restriction. The intent of this restriction was for preservation and protection of wildlife in the area." On March 10, 1992 the county granted LM site plan approval for the Dowells authorizing them to construct a 1,568-square-foot single-family dwelling on their parcel (LM-92-9). The LM decision states in the "site description" section: "These [conditional use and partition] approvals established the two parcels for building sites which required a maximum 400' setback from Sisemore Road retaining approximately 33 acres for the protection and preservation of wildlife in the area." However, the conditions of approval did not include or refer to the 400-foot maximum setback. The Dowells' LM site plan showed the dwelling set back from Sisemore Road 744 feet. However, the site plan also had a notation stating: "This drawing is not to scale, the house site will not be more than 400 ft from Sisemore Road." On August 5, 1992, the county adopted amendments to Title 18, the county's zoning ordinance replacing PL-15, to establish in the WA Zone a 300-foot maximum setback for dwellings from roads existing as of the date of the amendment. On December 21, 1992 the Dowells applied for a one-year extension to the 1994 LM site plan approval (E-92-68). 1993: In March 1993, the county granted the Dowells' requested extension of their LM approval. On March 18, 1993 the Dowells submitted an application for a building permit for the previously-approved dwelling on their parcel. 1994:The original building permit for the Dowells' dwelling (B34821) was issued on July 22, 1994. Dowell MA-14-1/DR-13-16 Page 4 200. Vegetation on all three parcels consists of juniper woodland and native brush and grasses. The subject property has varied topography. E. Land Use History. This declaratory ruling is the latest chapter in a protracted dispute between the parties concerning use of the land in the cluster development. The following history is taken largely from this Hearings Officer's August 2009 decision in Kuhn (A-07- 9) on remand from the Land Use Board of Appeals (LUBA). 1979: The subject property was the subject of a 1979 partition application (MP-79-69) submitted by the Dowells' and Kuhns' predecessor John Barton. At the time of this application the property was zoned F-3, a zone that no longer exists. The 1979 partition would have created two parcels, one 22 acres in size and one 20 acres in size. The county denied this partition by an administrative decision dated May 9, 1979 on the basis of what was referred to as an "interim agreement" between the county and the Oregon Department of Fish and Wildlife (ODFW) to maintain a 40-acre minimum lot size for parcels developed within the proposed -- but yet adopted --Tumalo Deer Winter Range. The record indicates this partition denial was not appealed. In November 1979 the county adopted its zoning ordinance PL-15 that included a new WA Zone that, among other things, established a 40-acre minimum lot size except for cluster developments that could be allowed as conditional uses with smaller residential parcels and large open space parcels. The new WA Zone did not establish any particular dwelling setbacks from roads. On December 11, 1979 Mr. Barton submitted another partition application that again proposed to create two parcels, one 20 acres in size and one 23.1 acres in size (MP-79-232). This application also was denied because of the newly adopted WA Zone 40-acre minimum lot size. The record indicates Mr. Barton then modified his proposed partition to create a cluster development with two 4.3-acre residential parcels and a 34.5-acre common area parcel. This proposed partition was put on hold pending Mr. Barton's submission of a conditional use application for a cluster development. 1980: On May 13, 1980 the county granted conditional use approval for Mr. Barton's proposed cluster development as well as tentative partition plat approval, subject to six conditions of approval (CU-80-22/MP-79-232). One of those conditions required Mr. Barton to obtain final partition approval and another condition required the recording of certain deed restrictions. Condition 2 of the decision stated: • "Prior to the sale of any lot a written agreement shall be recorded which establishes an acceptable homeowners association or agreement assuring the maintenance of common property in the partition." None of the conditions of approval referred to or established dwelling setbacks from Sisemore Road. The final partition plat was approved on November 12, 1980 and filed with the Planning Division. The plat included a building setback line on both residential parcels 400 feet west of Sisemore Road measured perpendicular to the road, as well as a notation stating "Max. Bldg. Setback 400' From Sisemore Rd." The record indicates the final partition plat was not recorded with Deschutes County Clerk until October 5, 2004, long after the Dowells acquired the subject property in 1989 and constructed the existing dwelling on their property between 1994 and 1997. Dowell MA-14-1/DR-13-16 Page 3 * Section 22.04.020, Definitions 2. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions * Section 22.20.055, Modification of Application 3. Chapter 22.36, Limitations on Approvals * Section 22.36.040, Modification of Approval * Section 22.36.050, Transfer of Permit 4. Chapter 22.40, Declaratory Ruling *Section 22.40.010, Availability of Declaratory Ruling * Section 22.40.020, Persons Who May Apply * Section 22.40.030, Procedures * Section 22.40.040, Effect of Declaratory Ruling * Section 22.40.050, Interpretation C. PL-14, Deschutes County Subdivision/Partition Ordinance of 1979 D. PL-15, Deschutes County Zoning Ordinance (1980) 1. Article 1, Section 1.030, Definitions 2. Article 4, Section 4.085, Cluster Developments in F-3 Zone 3. Article 8, Section 8.050, Requirements for Cluster Development II. FINDINGS OF FACT: A. Location: The subject property is identified as Tax Lots 100 and 300 on Deschutes County Assessor's Map 16-11-19. Tax Lot 100 is owned by Jeff and Pat Dowell (hereafter "Dowells" or "applicants") and has an assigned address of 65595 Sisemore Road, Bend. Tax Lot 300 is an open space parcel jointly owned by the Dowells and William and Leigh Kuhn (hereafter"Kuhns" or"opponents"). B. Zoning and Plan Designation: The subject property is zoned Forest (F-2), Landscape Management (LM), and Wildlife Area (WA) to protect the Tumalo Deer Winter Range. The property is designated Forest on the Deschutes County Comprehensive Plan. C. Surrounding Zoning and Land Uses. The subject property is surrounded by land zoned F-2 and WA, including the adjacent Tax Lot 200 owned by the Kuhns. To the west are large parcels of forest land in both private and public ownership. D. Site Description. The property described in the applicants' second modified declaratory ruling request consists of Tax Lots 100 and 300 on Assessor's Map 16-11-19, two parcels of a three-parcel cluster development that also includes Tax Lot 200. Tax Lots 100 and 200 are 4.3-acre residential parcels developed with the applicants' and opponents' residences. Tax Lot 300, the open space parcel, is approximately 34 acres in size and is undeveloped. Tax Lot 300 is located west and south of Tax Lots 100 and Dowell MA-14-1/DR-13-16 Page 2 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: MA-14-1, DR-13-16 APPLICANTS: Jeff and Pat Dowell c/o Bryant Lovlien & Jarvis, PC 591 S.W. Mill View Way Bend, Oregon 97702 APPLICANTS' ATTORNEY: Sharon R. Smith Bryant Lovlien & Jarvis, PC 591 S.W. Mill View Way Bend, Oregon 97702 OPPONENTS: William and Leigh Kuhn P.O. Box 5996 Bend, Oregon 97708-5996 OPPONENTS' ATTORNEY: Liz Fancher 644 N.W. Broadway Street Bend, Oregon 97701 REQUEST: Applicants requested a declaratory ruling to determine whether a proposed agreement assures the maintenance of common property and can be approved by the county. The first modification revised the declaratory ruling to request an interpretation of what requirements are necessary for a maintenance agreement to be approved by the county. The second modification revised the description of the subject property. STAFF REVIEWER: Paul Blikstad, Senior Planner HEARING DATE: December 3, 2013 RECORD CLOSED: March 28, 2014 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.04, Introduction and Definitions Dowell MA-14-1/DR-13-16 Page 1 G ,4 µ�.�.. . ��.�...- _._�� M......_..-._ .__..._.._ ..___. __.....,),.,:arik . .• --..7,,,,,,,,r,„..,,,,,4 • • , , . „ ,‘ ,., I' I ;I : .; 1 .� HEARINGS OFFICER ;,,`•• - e 4, �y!r ti DESCHUTES COUNTY COURTHOUSE BEND,OREGON 97701 . j;,, • .i; N A.4.(dx `.NI;d irk u,-,.,.at..;';u::.•r1 c�.;n71 TELEPHONE(503)382-4000,EXT.223 #. :l 'i. FINDINGS AND DECISION • ,�..r. FILE NO CU-80--22 1 APPLICANT: John Barton 1 REQUEST: An application for a conditional use permit to, allow a cluster development for two lots in a ]?-3, Forest Use Zone with a WA, Wildlife Area Combining Zone, and LM Lanscape Management Combining Zone. PLANNING STAFF RECO, 1ENDATION: Approval with .conditions PLANNING STAFF . REPRESENTATIVE•: .. Craig Smith PUBLIC HEARING: Public Hearing was held in the Deschutes County Justice Building, Bend, Oregon, on March 25, 1980 at 7:00 P.M. i• An oral decision was rendered at that time.. ' BURDEN OF PROOF: • In order to receive approval on this conditional. use ' application the applicant must be in conformance with , Article 8, Section 8.050 (16) of PL-1S of the Deschutes County. Zoning Ordinance and Article I, Section 1.030 (25A) of PL-15. In addition must meet: the conditions of Procedural Ordinance PL-9, Section 6.000.. • • . FINDINGS: A. Subject Property: 1. Location: The subject property is located westerly of Sisemore Road, approximately mile Dam ans is further described as Tax Lot: Tuma D bed a. one m.[14 north of the Old la s a • 1414, Township 16 south, Range 11 east, Section 19. 2. Zone:. F-3, Forest Use Zone with a WA, Wildlife Area Combining Zone. 3. Comprehensive Plan Designation: ' Agricultural and the Deschutes County Resource element of the plan designates the subject property to be within the deer winter range. • , 4. Site Description: t� The subject property is approximately 43 acres in size, and has a :1'', ' rock ledge which runs east and west across approximately the middle of the property. The property is within the Tumeio Winter Deer Range. ,'f, 'a.:' .' oo_ah-'7,' ._ mum RART M — PA CF 1 , .. , . 0110.. , . . Access will be provided to each lot by Sisemore Road, a county road. The surrounding property is zoned F-3, Forest Use and is within, the WA, Wildlife Area and .Landscape ManagementCombiniftg:. Zones, as well ' as all surrounding property. ,.; CONCLUSIONS: ` ' . . 1'. ,'10-"c- ; A. The goals of Deschutes County Year 2,000 Plan concerning rural development . on page 49 states: ' ∎` . • "a. To preserve and enhance the open spaces, rural character, scenic values _," •� and'natural resources of the County. b. To quide the location and design of rural development so as to minimize the public costs of facilities.-and services, to avoid unnessary expansion of service boundaries and to preserve and enhance the safety an viability of rural land uses. c. To provide ..for the possible long-term expansion of urban areas while pro- tecting the destinction between urban (urbanizing) lands and rural ].and. uses." . In addition the goals and policies of the Comprehensive Plan Year 2,000 con-- • cerning Fish and Wildlife indicate in part that the goals are:. • a. To preserve and protect existing fish and wildlife area. - b. To 'maintain all species at optimum levels to prevent serious. depletion of indigenous species. . c'. • To develop and manage the lands and waters of this country in a manner- that will enhance, where possible, the production and public enjoyment ' , of wildlife. , . B. Certainly one .of the more controversial issues in the. County has been the deer winter. ranges. Within the winter ranges the minimum lot size shall be 40 acres. Planned developments (including cluster developments) may-be permit- , ' ted on parcels 160 acres or larger in size. However,. man's activities must be limited to 20 percent of the 'development's lands with 80 percent left as . open space. In the case of planned developments the density shall be deter-- • mined by the underlying zone. C. The applicant is in conformance with LCDC Goals which are applicable as . follows: . . • ' Goal Three - Agricultural Lands - not applicable. The subject property is within the Deschutes-Deskamp and Gosney-Deschutes soil associations. These soils are generally considered Class VT. soils without irrigation. Therefore, this goal is not applicable to this case. • • Goal Four - Forest Lands - The subject is considered a low timber productive-- • ity rating the Deschutes County Resource Element. ' Coal Thirteen - Energy Conservation - The approval of this application will allow one additional dwelling on the property, 'therefore, the 'impact would he . minimal, Approval subject to the following conditions: , , .,.: +'��; .. . 1. • INF • 1. The applicant shall receive an approved partition for two residential lots,• with the remaining lot to be held in joint ownership prior to the sale of any lots. , • :. z.wF+tf.. 2. Prior to the sale of any lot a written agreement shall be recorded which 1 establishes an acceptable homeowners association or agreement assuring. the maintainance of common property in the partition, •-• ••.rPa;. 3. The common area shall not be used for any residential dwelling. x 4. Any buildings shall conform to section 4.180 concerning the Landscape Management Combining Zone of PL--15. 5. All necessary permits shall be received prior to the construction of any buildings. 6. This development will be in accordance with the Year 2,000 Comprehensive Plan as it relates to the open space and dedication of that open space as required. • _ DATED. this 3rd. day of April, 1980. - . .. . .. - ..: . • �iY :� f dyer vedoveeh • - HEARI GS OFFICER • MA:ch • • • cc: file • John Barton ' Planning Commission Planning Department • • • 1: � i� CU-80-22 - JOHN BARTON - PAGE 3 ` Kvr, • 1. , u "� ,_ .2' A ; 4n- 1-. a i AI ;V W �' :fl 1 iii V 1111:;‘'t ILI —3 \ el '4 % ii.ik *„... %,, -� cc P Qf w w w 1 T1i W aN 0 li a a t }' w F- ai .. y z -r x a ~ w z a x ? ��„ F' � o� Q c' w Ucn � �„ acv) a 1 ` w * _� Q W , C- i t 1 � w vz O F w 5i) O 0,u , ,u u _11. Q ) L w U) U .. < �kk U V Q. 0. a � cn w ��:� ❑ 3 �6� �❑ a I- 4� - —— }�1 Q • V ,1 k,, a � ` 1 1 ,tie, . 1 9 %*1 j b 1 blip° $ e� q N 11 11 e �B� � WaV �_o�ryb O p*k II f".3 q®� $ L ' 1 �tv kvv h 'A bo ) o � l 1 MA cc W2v � ` 1 ` J � abtuv^N Ct o / I i i . V`' 6" M , or,'n . rsi; i � . m dt3N . h• r o kt Pi q � A k n 1 a :% ► Z , $ Nti ,` r d .1.‘ it 01 ti oO hi ti` t q/n M\ abn 1 � 9Ntti 4 0o P k� Ob .44. N klh \ . N 11 a N ®t a li 0 �� k9h f ■ z° 0 \ h Z a_ F*C h % I�� O • �\ �0 ii 91 010 k CO it to cry �`'� tM t a O hry IC I e a 9 p't F b h k " e� j 0 p dM ' I • ,>d - - - -i _�i.vf.voiv _ r. 1 '18- :1-11� a� 148 -- 092 eits/a??-: 87.14178 ( :8 ,�S %() LAND USE RESTRICTIONS ktd �"� JOHN E. BARTON • d MARK BURCHETT. b- ng the owner's of property more particularly described in Exhibit A attached hereto. hereby declare said property to be subject to the following Conditions, Covenants and Restrictions. 1. ' Owners or family members may not acquire additional dogs other • than the dog(s) they may own when they purchase the property. All dogs must be kept in such a way that they do not run loose in the.area. Dogs allowed to "run" will disrupt deer habitat. 2. Owners or family members may not operate "dirt bikes" on the property. 3. All telephone and electric lines must be underground. 4. All fencing must be wood. Top rail may not be higher than 42"; bottom rail may not be lower than 18". No barbed wire or straight wire may be used for fencing. 5. Owners or fancily members may not take "target" practice with rifle or hand-gun on property. • 6. This contract carries with it the 51.,ongest encouragement to demonstrate sensitivity to living within the boundaries of the Tumalo Winter Deer Range, and urges the•'owners to adjust their life style accordingly. Dated this,4a)aay of (2f, 1987. • • o 1'iark Burcfteti STATE OF OREGON, COUNTY-OF DESCHUTES lss.• • • he foregoing instrument was acknowledged before me this 7 day' ,•aI of, , 1987 by JOHN E. BARTON. • 3110 r }' !w fit f el. otary 1 or gon• s;°U C t Ic:°:` Hy Com. ssion Expires; te 5/4•`? r STATt OF OREGON. COUNTY OF DESCHUTES )ss. The foregoing instrument was acknowledged before me this .le day of, J', (;• • 1987 by NARK DURCNETT. 1 •. fiotary ul1li Tor e'reg ri •• u,,, .canaelssi Expires: -y .- . o'10L1 • t ' . ;'+. 4 n Cops Tills is i,1 AP- Jra Fib Jo i rlt l- ; .. . y,nrrn 11101 I __.__..................... . .......,.....„... .--- ___. ......._ ___....._._...._. .. . cn a) '7^^ 't- ,- CO 1-- CO ,-- I •i,P • : .0 1•1:11.atm 33S . VF*. • . rreer.' 0 • -• 1.•• • • . . •. • •. . . ..•'.:••.••:••." • :. .. .: :• :I ••••;• • . .6f' • ' .1 ••.!H,...,..6 k . . ,.........! . , i 1 ,r : . . • '-i . \- - -..`'-'. ....--' Jr;..71 .........--- ! i; --•,-,76.-iii- i I, r, • • $ 61,61 I r •t I I, e•-•,-.., i R t— 1 .•,•, .. .... .: ..... • ii .• • ,c) ,re . ., . .... .... .... ,,,,,,,, :• zi CV ''',J c■—• 1. ' . . -... I. . • • ,.. ,, • • I • ,•,, 1‘•-•;•.,. i . Ii :.• .•• I . .: .. I '' s uj „.,, .• :. .. • :. .. — — •• _ = __ ,1: _._ _ _____A_-• 0 / .. ° - .: . / •,6- 1.1.1 II g . .-• -.- —, 0 : 1. • ..c. .n •••• W.. :. . . 4, ly1 . . . . . • P. Cl iiindtlWall . . 1 .....'•:......:.:......:..... ... . . • ' . o .. . . LLI ... .: . I : . . CO .• : ... .. . • . . ... .. . .. . . • ..,...•.-4:•::H —.•+------ ..——— . .,——..+—,_._._—_.,. ..,.......__........_H—_. . . . .. . . . . . . .. . . . . . . . . •!..;\ • • • . .. . . :•::s,‘\ . • :1 '":.---'::::7.7;_.-_,:.:'.,-27-7:','7„:.-,:-.....,.. • '''',1:-•-,-- • :.•. ..: ..• . '•-:::-....., • W .:.:..: •''—' ± — . —_H._ 7 • I I ✓ I,I. . . . . g c1, I I 11 ., ,,,......_. ... . ._...._...................._......_ ........._._ • After recording,return to: William J.Kuhn P.O. Box 5996 Bend,OR 97708 COVENANTS, CONDITIONS and RESTRICTIONS PARTIES: Party 1: Jeffrey T. Dowell & Patti J. Dowell Party 2: William John Kuhn & Martha Leigh Kuhn REAL PROPERTY: The real property bound by this document is described on Exhibit 1. A copy of Exhibit 1 is attached hereto and incorporated by reference herein. RECITALS: WHEREAS, Deschutes County Conditional Use Case 80-22 (CU-80-22) allowed a "cluster development" on a 43-acre parcel in the Tumalo Winter Deer Range; and WHEREAS,the approved "cluster development" required a substantial set aside for open space; and WHEREAS,the approved "cluster development" created two parcels for residential development and one common area parcel ("Open Space Parcel"); and WHEREAS,the three authorized parcels are currently identified by the Deschutes County Tax Assessor as Tax Lot 100,Tax Lot 200 and Tax Lot 300,Assessor's Map 16-11-19, and are the land described on Exhibit 1 (hereinafter collectively referred to as "PARCELS") and are owned by Party 1 and Party 2; and WHEREAS, CU-80-22 required the developer of the cluster development to execute and record a homeowners association or agreement that would assure maintenance of the Open Space Parcel; and CC&Rs-Dowell/Kuhn P 1 Exhibit A g t5 Page 1 of 6 WHEREAS, to preserve and protect existing wildlife and wildlife habitat and to comply with CU-80-22, Party 1 and Party 2 intend for this CC&R and the 1987 deed restrictions recorded at Volume 148, page 1792 (Document 87-14178)to serve as the required homeowners agreement; and WHEREAS, Party 1 has conveyed all of its right,title and interest in the Wildlife Parcel to Party 2 and Party 2 has agreed to maintain the Wildlife Parcel for the purposes intended by CU- 80-22; NOW THEREFORE,the parties, as owners of all land described on Exhibit 1 agree as follows: COVENANTS,CONDITIONS AND RESTRICTIONS Party 1 and Party 2 agree to impose the covenants, conditions and restrictions on the use of the Exhibit 1 Property for the mutual benefit of the parties and for the protection of wildlife and open space values: 1. Party 1 and Party 2 agree to abide by all applicable laws and regulations (including but not limited to general civil and criminal laws, building codes, Deschutes County Code, land use decisions, landscape management plans, ODF&W Wildlife Habitat Conservation Plan) addressing their actions and uses on the PARCELS. 2. No motorcycles or off-road vehicles shall be used on the PARCELS except on established roads or improved driveways. This restriction does not prohibit an owner from using off-road vehicles for off-road property maintenance purposes. 3. All new utility lines or extensions to existing utility lines must be located underground consistent with applicable standards recognized by the utility provider. 4. No person may develop or divide the Wildlife Parcel. 5. Each owner shall comply with Deschutes County Code regarding the control of noxious weeds on the parcels they own in the cluster development. Owners shall use only environmentally safe methods of weed control and not use pesticides or herbicides harmful to human,animals or wildlife. Each owner shall use biodegradable detergents, soaps and cleaners whenever possible. 6. Disputes between Party 1 and Party 2 shall be subject to resolution through binding arbitration before the Arbitration Service of Portland. Venue for any arbitration hearing is in Deschutes County. The prevailing party at arbitration shall be entitled to an award of attorney fees and costs as determined reasonable by the arbitrator(s). CC&Rs-Dowell Kuhn Page 2 Exhibit A-1 Page 2 of 5 7. The following maintenance standards/restrictions apply to the PARCELS: a. All fencing must be of wood or simulated wood made of recycled plastic or other natural material and not metal. The top rail may not be higher than 42" and the bottom rail may not be lower than 18". No barbed wire or straight wire may be used for fencing. No fencing is allowed on Tax Lot 300. b. No discharge of firearms is allowed. c. No hunting or trapping is allowed. d. Livestock(including but not limited to horses, cattle, llamas, sheep,emus, ostriches, pigs, chickens, game birds)grazing is not allowed. e. The parties shall comply with 1987 deed restrictions recorded at Volume 148, page 1792 (Document 87-14178).No dogs are allowed on the Wildlife Parcel. f. Party 1 and Party 2 may not keep dogs on any parcel other than the dog(s) they own at the time they purchased their parcel. This restriction also applies to any person who is a resident in the cluster development and the the date the current owner of the parcel of residence controls. g. Guests who reside on the property no more than 14 days in any calendar year may be accompanied by a dog(s) but must comply with all pet restrictions provided herein. h. All pets shall be kept on a leash, under voice control or within a fenced enclosure adjoining the primary residence or within a building at all times. Dogs that bark more than 15 minutes at a time shall be placed inside a building and not left outside. i. All persons shall respect the solitude of all other persons and the underlying wildlife interests of the Tumalo Winter Deer Range by keeping music,voices, power equipment and other noise sources to a low level. To the extent practical, power equipment and generators shall be placed and used inside buildings to mitigate noise. j. Exterior lighting, including security lighting, shall be low-intensity,adequately shielded to eliminate spillage, and directed downward. All exterior lights shall be left on no longer than absolutely necessary. A motion detection light may be used only if it does not blink off and on regularly at night. k. No dumping or storing of waste material is permitted. I. Trash shall be securely stored and timely removed. m. Any new construction shall to the extent practical use fire resistant building materials. n. No open burning is allowed. o. These covenants, conditions and restrictions apply to any renters, caretakers, invitees and any resident of their property. Owners shall be responsible for any failure of these persons to abide by the terms of this document. CC&Rs—Dowell/Kuhn Page 3 Exhibit A-1 Page 3 of 5 8. The covenants, conditions and restrictions contained in this document run with the land and bind the heirs, successors and assigns of the parties hereto. DATED: , 2014 PARTY 1: PARTY 2: Jeffrey T.Dowell William John Kuhn Patti J.Dowell Martha Leigh Kuhn STATE OF OREGON,County of Deschutes: ss. This instrument was acknowledged before me on ,2014,by Jeffrey T.Dowell. Notary Public for Oregon My Commission Expires: STATE OF OREGON,County of Deschutes: ss. This instrument was acknowledged before me on ,2014,by Patti J.Dowell. Notary Public for Oregon My Commission Expires: STATE OF OREGON,County of Deschutes: ss. This instrument was acknowledged before me on ,2014,by William John Kuhn. Notary Public for Oregon My Commission Expires: STATE OF OREGON,County of Deschutes: ss. This instrument was acknowledged before me on ,2014,by Martha Leigh Kuhn. Notary Public for Oregon My Commission Expires: CC&Rs-Dowell/Kuhn Page 4 Exhibit A-1 Page 4 of 5 William John Kuhn Martha Leigh Kuhn PO Box 5996 Bend, Oregon 97708-5996 Phone: (541) 389-3676 Tuesday 26 May 2015 Reguarding 247-14-000165-A which is an appeal of DR 13-16/ MA 14-1 Dear County Commissioners, The original declaratory ruling, the modification of application, and this appeal which you are considering hearing are all premature because there is no agreement. Look at your own previous rulings. Look at LUBA's affirmation of your rulings, and look at County Administrator David Kanner's letter of 19 January 2011. Although there are flaws in Hearings Officer Green's decision we believe it might be best to not hear this appeal because the main issue raised in the appeal has already been decided by the Board and upheld by LUBA. If you do, however, decide to hear the appeal please consider these significant and realistic issues. It is our furvent hope to eventually find a fair, just, ethical, and honorable solution to our nightmare in Deschutes County known to you as the Kuhn/Dowell situation. The basics of the problem are: 1. ignored and unequally enforced land use restrictions; 2. how to properly weigh property rights; and 3. deep seated lack of moral duty and ethical integrity. We, the Kuhns, have already secured a factual stipulated agreement that establishes 20 different specific facts, one of which is that our property values are lower than they ought to be because of the property restrictions Deschutes County has put on us. We have realized since January 1997 and realtors have insisted since 2000 that our property isn't worth diddly squat unless the other party in our cluster development follows the basic social rules and requirements. The stipulated facts agreement between the Kuhns and Deschutes County also says that it has been an error for this County to call us negligent. In layman terms the stipulated agreement basically says that we did nothing wrong and that we followed all the rules, 20150526 Statement to BoCC re Appeal.doc 1 of 4 2015 05 27 regulations, ordinances and state statutes. And again in layman terms,it is reasonable to imply that the blame, the accountability, the responsibility, and the fault that needs correcting lies elsewhere and not with us. It is also reasonable for the lay person to figure out that there are three parties involved. The Kuhns,Deschutes County, and the other party. And because there are three parties involved it is neither reasonable, prudent, nor wise for us to subject ourselves to mediation or arbitration that is overseen by Deschutes County which has treated us and its own ordinances with such disrespect. Regarding the three basic problems: I Ignored and unequally enforced Land Use Restrictions which are meant to protect basic Goal 5 principals. You would think that of all the property locations in Deschutes County the greatest restrictions would be found in a Goal 5 protected area. Landscape Management Overlay, Wildlife Area Overlay, Forest Zone issues, Fire Fuels reduction concerns,weed abatment, and Deed Restrictions that specifically prohibited owners from acquiring new dogs after purchase would normally be sufficient deterants for most prospective purchasers to at least think twice. The party that bought in 1989, however,without benefit of legal or real estate professional help, didn't buy title insurance, didn't use the escrow process, and who were determined to obliterate the no-new-dog deed restriction at any cost through their personally drawn and fraudulant land purchase contract. They tried to eliminate the no-new-dog deed restriction as well as claiming full and sole ownership of the jointly owned parcel. They recorded this fraudulant purchase contract and then used it inappropriately in applications to Deschutes County. A list of several specific examples are readily available for consideration such as: Why did County require the owners of TL200 to obtain a lot line adjustment to deal with the 100 foot minimum side yard set backs in a forest zone, while the TL100 owners were allowed to skate by and then were granted ex-post facto approval while other parcels in Deschutes County in similar situations were also obligated to obtain lot line adjustments? 2 How to properly weigh Property Rights which are one of the most essential guidelines we all hold dear. My property - my castle is the first and most recognized concept model when arguing property rights. The second model concept shows property as a form of investment in a market economy that creates reasonable expectations likely to yield economic rewards. We do not deny either of these concepts and models. We embrace them. The investment concept is the very basis for our property tax appeal— since we can't legally or ethically sell our property, then how can it possibly be worth what Deschutes County says its worth. There is however, a third concept of property rights that needs consideration and that is the obligation of ownership. Having absolute domain over your property does not give the 20150526 Statement to BoCC re Appeal.doc 2 of 4 2015 05 27 owner the right to use their property to harm others. You cannot legally build an unsafe structure. That is one of the reasons why we have building codes. This was also at the root of the abolishionist movement to eliminate slavery. Ownership is not just about rights;it is equally about obligations. We can argue about exactly what those obligations of ownership should be,but the existence and importance of the obligations of ownership should not be in doubt. The Hearings Officer's decision begins the discussion of what those obligations might be. When our rights of ownership are fraudulantly denied us by government, and when those who ignore their ownership obligations cause us both physical and financial harm,we are able to show that we do not flourish. Is that how you want Deschutes County to be shown to the rest of the world?Are you, the County Commissioners,willing to give preferential treatment to those who did not follow the law,who did not even follow their own landscape management plan, and who are now holding us hostage for$750,000 even though we are the ones who had to pay the entire cost of development within our cluster, and continue to be the only owners to maintain the common parcel while the other 1/2 owners contribute nothing, and continue to refuse to abide b y the civil court ruling that do not g, a d c by g at re uires q them to enter into a homeowners agreement that establishes a homeowners association with us or abide by the conditional use for this cluster. 3 Deep seated lack of moral duty and ethical integrity with no sense of community or social responsibility. What is the purpose and intent of Chapter 18? 18.04.020. Purpose. A. The intent or purpose of DCC Title 18 is to promote the public health, safety and general welfare and to carry out the Deschutes County Comprehensive Plan,the provisions of ORS 215 and the Statewide Planning Goals adopted pursuant to ORS 197. DCC Title 18 is to establish zoning districts and regulations governing the development and use of land within portions of Deschutes County,Oregon; B. To provide regulations governing nonconforming uses and structures; to establish and provide for the collection of fees; to provide for the administration of DCC Title 18 and for the officials whose duty it shall be to enforce the provisions thereof; to provide penalties for the violations of DCC Title 18; and to provide for resolution of conflicts; From a local professional HOA management firm we received these words of wisdom: "One of the biggest advantages of living in an HOA is the ability of the association to preserve,protect and enhance property values... The secret to a successful HOA is that each member acknowledges their role in the community and at times be willing to take on some added responsibility... Think about a greater concern in our society of HOAs: RESPONSIBILITY. Who is responsible for maintenance of our homes? Our landscape? 20150526 Statement to BoCC re Appeal.doc 3 of 4 2015 05 27 • Who is responsible for our behavior?What does your neighbor think of your behavior and what do you think of theirs?... When you purchase a home in an HOA you automatically become a member of the association and are bound to deed restrictions, covenants and conditions (CC&Rs). These rules and restrictions are to protect the community and to maintain or improve property values." We have not had these crucial advantages because we arc denied our homeowners association. We have had to deal with property owners who have refused any responsibility except the paying of taxes. What we would like the Deschutes Board of County Commissioners to do is to emphatically communicate to the appellants that enough is enough. We ask you to please consider as appropriate for this appeal what you did when reviewing the Peery Appeal of a DR in January 2008. Please sec the minutes of your "Consideration of Whether to Hear an Appeal (File #A-07-21) of the Hearings Officer's Decision Revoking Land Use Approvals for the Construction of a Dwelling (Applicant: Peery)." We also strongly suggest you at least scan the very small sampling of documents that helps paint the picture of who and what we have had to deal with beginning the summer of 1989 when the other party claimed 100% of the common parcel as their own. What the Board of County Commissioners must do is to prevent this stupid situation from continuing. We want our property rights restored, and we want to be able to refinance. We want to live safely here;we want the right to enjoy our property. We want to be able to steward and maintain this land as Goal 5 intended. However that can be best achieved,it can't be achieved without positive, forceful and creative action by this Board of County Commissioners. And as our stipulation agreement says we did everything by the book. Please see these Exhibits and understand their significance: 1. Stipulation Agreement between Deschutes County and the Kuhns 2. Dowells fraudulent 1989 purchase contract 3. Dowell recent email—re no-new-dogs as concession 4. Spitz report on what the 33.21 acre common parcel contains and its challenges 5. Civility& Home Associations by Teresa Payne 6. BoCC considers Peery appeal request from January 2008 These are just a small fraction of the "truths" that need to be considered. Thank ou for cons'dering our thoughts and;uggesti�ns, 1114 Ota .z William John Kuhn and Martha Leigh Kuhn 20150526 Statement to BoCC re Appeal.doc 4 of 4 2015 05 27 ATE ii. 1� L:r I.)1,) O ;ON TA X C()Ifl i IN THE OREGON TAX COURT I G AUG 25 AM 9: 37 MAGISTRATE DIVISION Property Tax WILLIAM JOHN KUHN ) and MARTHA LEIGH KUHN, ) ) Plaintiffs, ) TC-MD 140068N ) v. ) ) DESCHUTES COUNTY ASSESSOR, ) ) Defendant. ) JUDGMENT OF DISMISSAL This matter is before the court on the parties' Stipulations and Settlement of Appeal (stipulation)filed on August 21,2014. In the stipulation,the parties stated that this appeal"is fully resolved, compromised and settled * * * [and][t]he parties request that the Court dismiss the appeal." (Stip at 4.) The parties agreed that neither shall be entitled to costs and fees. (Id.) After considering the request,the court finds the case should be dismissed. Now,therefore, IT IS ADJUDGED that Plaintiffs' appeal is dismissed. IT IS FURTHER ADJUDGED that,by agreement of the parties,neither party shall be awarded costs and disbursements. Dated this 2'sbday of August 2014. 02L.,/' garerze,_ ALLISON R. BOOMER MAGISTRATE Judgments from the Magistrate Division are final and may not be appealed. ORS 305.501. JUDGMENT OF DISMISSAL TC-MD 140068N 1 1 2 3 4 IN THE OREGON TAX COURT Magistrate Division 5 Property Tax 6 WILLIAM JOHN KUHN and MARTHA LEIGH KUHN, TC-MD 140068N 7 Plaintiffs, STIPULATIONS; SETTLEMENT OF 8 APPEAL; ORDER g v. (TCR-MD Rule 2F) 10 DESCHUTES COUNTY ASSESSOR, 11 Defendant. 12 The parties enter into and agree to the below Stipulations: 13 A. Factual Stipulations 14 15 1. Deschutes County Conditional Use 80-22 allowed a"cluster development" on a 43 16 acre parcel in the Tumalo Winter Deer Range. 17 2. In 1980,the requirements for development were addressed in PL-15 and included: 18 (a)allowance for a"cluster development"in order to create parcels smaller than the 19 40 acre minimum required in the WA overlay zone; (b)compliance with subdivision 20 requirements contained in PL-14;and (c)a written agreement establishing a 21 homeowners agreement 1 association.' 22 3. The approved"cluster development"required a substantial set aside for wildlife 23 habitat; 24 4. As implemented,the approved"cluster development"authorized two 4.3 acre parcels 25 and one 34.4 acre parcel. 26 Page 1 of 5--STIPULATIONS; SETTLEMENT OF APPEAL; ORDER DESCHUTES COUNTY LEGAL COUNSEL 1300 NW Wall Street,Suite 205,Bend,OR 97701 541-3S8-6623"""fax:541-617.4748 5. CU;80-22 required that"prior to the sale of any lot a written agreement shall be 2 recorded which establishes an acceptable homeowners association or agreement 3 assuring the maintenance of common property in the partition,"which is a Goal 5 4 issue. 5 6 6. In 1 987,without the recording of a homeowners association or agreement,Kuhn purchased one of the 4.3 acre parcels,Tax Lot 200, and one-half interest in the 34.4 8 acre parcel,Tax Lot 300. 9 7. In 1987,prior to the Kuhn's purchase of Tax Lot 200 and one-half interest in Tax Lot 10 300, Deschutes County informed Kuhn that before a building permit could be issued 11 the deed restrictions identified in the CU 80-22 application had to be recorded. 12 8. In November 1988,Deschutes County approved the Kuhn's Landscape Management 13 Plan; one of the approval conditions required Kuhn to provide Deschutes County with 14 a copy of the Homeowners Maintenance agreement for Tax Lot 300. 15 9. At all times from November 1988. until February 2010,. Deschutes County staff 16 maintained that the recorded deed restrictions encumbering the three"cluster 17 development"parcels satisfied the requirement in CU 80-22 and in the Landscape 18 Management Plan that Kuhn record a Homeowners Maintenance agreement for Tax 19 Lot 300. 20 21 10. Deschutes County granted Kuhn lot line adjustment approval,accepted Kuhn's 22 Landscape Management Plan,and issued building permits for Kuhn's home without a 23 "recorded . . . acceptable homeowners association or agreement. ." Kuhn has 24 complied with applicable laws,codes and requirements from CU 80-22. 25 26 Page 2 of 5—STIPULATIONS; SETTLEMENT OF APPEAL; ORDER DESCHUTES COUNTY LEGAL COUNSEL 1300 NW Wall Street,Suite 205,Bend,OR 97701 541-388-6623*"*Fax:541-617-4748 11. Kuhn brought the lack of and need for a homeowners association agreement to the 2 attention of Deschutes County in January 1997 through the code enforcement 3 complaint system. 4 12. Beginning in August 2000,Kuhn requested that Deschutes County record the final 6 partition plat map for the subject"cluster development." Deschutes County recorded 7 it in October 2004. 8 13. In February 2010,the Deschutes County Board of Commissioners held that the 9 dwellings within the"cluster development,"Tax Lot 100 (Dowell) and Tax Lot 200 10 (Kuhn)"are not lawfully established until a written agreement is recorded that 11 establishes an acceptable homeowners association or agreement assuring the 12 maintenance of common property in the partition." This decision requires a written, 13 signed and recorded agreement that is agreed to by Kuhn and Dowell and also 14 deemed"acceptable"by Deschutes County. 15 14. At all times relevant to this appeal, despite Judge Adler's 2002 ruling requiring a 16 homeowners association agreement,and despite multiple attempts by both Kuhn and 17 Dowell,no homeowners maintenance agreement covering Tax Lot 300, has been 18 agreed to or recorded, 19 15. Judge Adler's 2002 court order required the Dowells to enter into a Homeowners. 20 Agreement with Kuhn;the court order remains unfulfilled. 21 22 16. For tax year 2013-2014 (at issue in this proceeding)the Assessor imposed the 23 following values for Kuhn's one-half interest in Tax Lot 300: (a)RMV: $82,420; (b) 24 MAV: $44,330; (c)TAV: $44,330. These values were sustained by BOPTA in 25 Petition No 13-153. 26 Page 3 of 5 -STIPULATIONS; SETTLEMENT OF APPEAL; ORDER DESCHUTES COUN1 Y LEGAL COUNSEL 1300 NW Wall Street,Suite 205,Bend;OR 97701 541-388-4623***Pax:541-617-4748 17. At the time of the BOPTA proceeding in Petition No. 13-153, the Assessor provided a written summary(dated February 19,2014)that included the following: 3 "PROPERTY RESTRICTIONS: The restrictions stated by the petitioner can be 4 remedied at any time by recording a Homeowners Association Agreement. The 5 restrictions are not an effect of real estate market factors or conditions. The 6 restrictions are an effect of the parties involved negligence to record a Homeowners 7 Association Agreement. Any disagreements between the parties involved are their 8 responsibility to resolve." 9 10 18.The Assessor's use of the word"negligence"was in error. 1 19. Since the BOPTA proceeding,and following an extensive inspection of Tax Lot 300, 12 the Assessor has agreed to reduce the 2013-2014 values for Kuhn's one-half interest 13 in Tax Lot 300 to: (a) RMV:$35,000; (b) MAV;$44,330; (c)TAV: $35,000. This 14 reduction does account for the requirement in CU 80-22 and Judge Adler's court 15 order requiring that a joint homeowners agreement be recorded. 16 20. At no time since creation of Tax Lot 300 have any of the involved parties 17 (Barton(alone),BartonBurchett, Burchett/Kuhn, or Kuhn/Dowell)recorded a signed 18 Homeowners Agreement. 19 B. Settlement Stipulation 20 21 1. The present tax appeal (TC-MD 140068N)is fully resolved,compromised and settled 22 as provided herein. 23 2. The parties request that the Court dismiss the appeal. 24 3. Each party to bear its own costs and fees (including attorney fees). 25 26 Page 4 of 5—STIPULATIONS; SETTLEMENT OF APPEAL; ORDER DESCHUTES COUNTY LEGAL COUNSEL 1300 NW Wall Street,Suite 205,Bend,OR 97701 541-388-6623***Fax 541-6174748 1 2 C. Agreement 4 THE STIPULATIONS contained herein are understood and agreed to. 5 } $ Date: Zo c4 Q$Tzo Gc tit r,a 6 William John Kuhn 7 8 Date: 9 Martha Leigh Kuhn 10 ********************************************* 11 12 d..0111111011. Date: fi//9/ .�-a 13 AppriProp 14 15 D. Order 16 1. ITS IS ORDERED that the appeal is dismissed upon settlement of the parties and 17 pursuant to the terms of the stipulations contained herein. 18 19 2. Each party is to bear its own costs and fees(including attorney fees). 20 DATED this -day of August,2014. 21 22 ALLISON R. BOOMER MAGISTRATE 23 24 25 28 Page 5 of 5—STIPULATIONS; SETTLEMENT OF APPEAL; ORDER DESCHUTES COUNTY LEGAL COUNSEL 1300 NW Wall Street,Suite 205,Bend,OR 97701 541-388-6623***Fax:541-617-4748 -0a `rA MAGISTRATE DIVISION U „ ', : OREGON TAX COURT i: Presiding Magistrate: Jill A.Tanner Magistrates: Daniel K.Robinson Allison R. Boomer \9?4. Ov 0� c› August 25, 2014 Andrew Mathers Andrew S Mathers PC 250 NW Franklin Ave Ste 401 Bend OR 97701 Deschutes County Legal Counsel David Doyle 1300 NW Wall St#205 Bend OR 97701 RE: William John Kuhn and Martha Leigh Kuhn v.Deschutes County Assessor TC-MD 140068N Dear Parties: Enclosed is a copy of the Judgment of Dismissal signed by Magistrate Allison R. Boomer on August 25,2014. The case has now been closed and all scheduled proceedings canceled. If you submitted exhibits to the court and would like them returned to you,you must contact the court in writing within 30 days from the date of this letter, or they will be destroyed. If you have any questions,please call the court at(503)986-5650. Thank you for your attention to this matter. Enclosure 1163 State Street,Salem,OR 97301-2563 http://courts.oregon.gov/tax Phone:503.986.5650 Fax:503.986.4507 89-24952 1 9 3 "11 0 0 7 (2. Contract - Deed This agreement made and entered into this 3rd day of August 1989, by and between HARK BURCHETT, ,hereinafter "seller" and JBEE DOWELL and PATTI DOWELL, hereinafter "purchaser", witnesseth that: (1) "Seller" hereby agrees to sell to "purchaser" and "purchaeer" agrees to purchase and pay for certain real property located in Deschutes County, Oregon and more particularly described as follows, to wit: A parcel of land located in the North 1/2 of Section 19, T.16 S., R. 11 E., W.M., Deschutes County, Oregon which is described as follows: Commencing at the Northeast corner of said Section 19; thence N 891147" W 1208.23'; thence S 00°48'13" W 200.00 feet to the TRUE POINT OF BEGINNING; thence S 89°11'47" E 946.35' to the Westerly right-of-way line of the Sisemore County Road; thence along said right of way line on a 151.80' radius curve right 77.43', the long chord of which bears S 29°07'55" W 78.62' ; thence along said right of way line S 43°33'17" 117,24' ; thence along said right of way line on a 194.18' radius curve right 81.01', the long chord of which .bears S 55°30'22" W 80.42' ; thence N 89°11'47" W 826.06' ; thence N 00°48'13" g 200.00'; thence S 89°11'47" E 61,291 to the TRUE POINT OP BEGINNING containing 34.5 acres more or less. (2) eh parcel of land located in Section 19, T.16 S., R.11 B" W.N.,DeschUtes County, Oregon ,and described as follows: Beginning at the Northeast corner of said Section 19; thence N 89°11'47 W 306.60 feetto the Westerly right- of-way line of Sisemore County Road and the true point of beginning; thence along said right-of-way line S 23°56'02" E, 66.67 feet; thence along said right-of- 1.W line on a 233. 88 foot radius curve r ight 114,47 feet, the long chord o which bears S 09'54'46" E, 113. 33 feet; thence along said r ight-of -way line on a 153.80 foot radius curve right 28.46 feet; the long chord of which bears S 09°2432" W 28.42 feet; thence N 89°11'47" W, 946. 35 feet; thence N 00°48'13" E, 200. 00 feet; thence ' S 89°11'47° E. 901.63 feet to the TRUE POINT OF BEGINNING, containing 4.3 acres more or less net. ' II; " The 'total purchase price of forty-two thousand dollars ($42,000) is to be paid by "purchaser" to "seller" in a Manner more particularly described as fellows: (1) NeUrdhaser" pays -twenty-five thousand dollars ($25,000) upon acceptance of this agreement, (2) "Purchaser" pale; remaining balance seventeen thousand dollars ($17400) over15' years At a fixed interest rate of 9.5% with option to recalculate mortgage Whenever a' lump sum payment of five thousand dollars ($5,000) or more is made. There are - no penalties for paying oft mortgage early and early payment is encouraged by both Paities- • Conveyence of the real property by "seller" to the "purchaser" shall be made by warranty deed conveying marketable title in and to the subject property subject to all easements, and incumbrances of record upon final payment of subject property. IV. . "Purchaser" shall be entitled to possession of said property upon acceptance of this agreement v. . All ad wlorem real ,property taxes and all governmental or other assessments levied against said property for the current tax year shall be divided equally between, and "purchaser" (July let was approximate date of verbal agreement) . "Purchaser" shall pay recording fees for recording the deed. "Seller" shall pay the recording fees for release of deed of trust. 193 .. 0076 VI. "Purchaser" agrees to land use restrictions described as follows: 1. Owners .or family members may not operate dirt bikes on the property. 2. All telephone and electric lines must be underground. 3. Ail fencing must be wood. Top rail may not be higher than 42", bottom rail may not be lower that 18" . No barbed wire or straight wire may be used for fencing. • 4. Owner or family members may not take target practice with rifle or handgun on property. 5.. This contract carries with it the strongest encouragement to demonstrate sensitivity to living within the boundaries of the Tumalo. Winter Suer Range, and =nes the owners to adjust their lifestyle accordingly. VII. This agreement is the entire, final and complete agreement of the parties •to the sale and purchase of sand.property, and supersedes and replaces all prior existing writtt x _and.,Oral:agreements 'between both parties. ti SIX "Purchaser" accepts` said property in its present condition, .as is,' including latent defects,•' wthout ,any representation or warranties, expressed or implied.. "Purchaser" : 2tgree tl+at "purchaser" shall ascertain, fro sources other than "seller", the applicable xbnfng0building, �:hous pg and other regulatory ordinances and laws and that "purchaser". accepts:"said property with full awareness of these. ordinances and-laws as they may affect the re*Opt VuSe or any intended future use of said,propeity, and "seller" has :made :no P 'ep.�r-e'sesitations with respect to such' laws and 'ordinances: his ns� rument oe?s .rot guarantees that .any particular use may be made ' of the property descri.bed..ln th='_ : ±r$trument "Purchaser" should check with the appropriate county planning-department`to verity appcveYd uses. .0 k 4 193 .0 0 7.7 ..014/1 11 11 • • Mark Burchett (useller") date 01, public for tile "seller" CrirCilit RAC JOYCE A STRAN liIC)TART Pil$LIC 1T-AT5 u ILL1)1015 MY COW. CO. AUG. 29,1990 ita Nth 111161117q.g1 Jeff rswell• "pur aser") da. e ; .0•0 91%139 date State bf:/s1pW''York) County of Monroe) On this .„•• t ay•of.setrteinber , 1989 , before me personally ,appeared : . to Tn. e known and known to me to be t..t1e individual (e)",-detcribed in and who executed the within instrument, 414 :11.e/tPy. :.::,;:,40411041tact,c)...Aggdat.1Jy3 he/the.y executed the .same. -419. • • • date :114-ggikEYACOODat. Xic14IMPW:realit;.**-0 Ye* ouiditioririmonfge , , • mitreinniswayExiro• "zsr-gi Please send all sllbsevent tax &currents to: Jeff Dowell 422 Lakeshore ,Drive• Hilton Y 14468: .. • \ 4; t t 0 .-., - ' • 193 . ... f;,-... . _ . ,. .,..-.. .;•ii,..v? . --. -., .;,..:-.,.--., . .. .''. ... ' . . .. ., , Y.4-':'-'-A".!.-.1.-:',,4•,-7-...•,'",%-•,:•••.•-,e-.• , -••, . , ,.. . . „.. . .. . ' - ,- • -: '-, . - -.„.•-•--..:-:..L.---- :::- '.-•'';'-i-74-,--:•,4.:.A.,,....;,:-.• '.-. „ .----"- •• -• -•-• ' •• • : : 5'1'- '.:-.''..--..':- ••••••-.=,..!..1,-•,.:--.4.-„,... . • - . . . • , •-.;...: :.........:..'....._...'...._::,......,... '- ..4., --,,'• .....,- ,____., riATE Of OREGON ) ss ,• . - ' tOUMFY,OF.01Saitirit4 I, MART SUE PENNOLLOY6 COUNTY OJOUVANO RECORDER OF CONYETAKM,,WARP,YOE Will] COUNTY, DO.11TREBY-wain' THAT-THE WINER DISTREIMENT WASIECOODEDTNISIMT:- '-'-• 89 RP 28 *Pigt*43.? -• •- -•--Y 4Affif SUE.PE,16011,01 ' • litiTY CLE141 .. - .7...„, .. . . ... . , . ,„ .. .. , . .. . . . . .. (2kii 0-tflit . ..,. . .. .. - . . , • /f3.56 - ' ' - ' .. /eidi_. . „ „ . .. . , /1--P-i-jitii-6t4o . 110 . • • • .• By /A ---A---24.1.f.0 'di . "A - DEPUTY . q770/ No. S91".. ..e 95 EF e•215— - - DESCHUTES COIREW OFFICIAL RECORDS • -I D http://recordings.deschutes.org/Detail-rsp?INSTRUMENT ID=133399 a ice r1' `ssuelr� 1300 NW Wa ft.,Suite 200,,•Kan-,OragOn 17701•P■541.3824341•F:342.383.4424 L■❑out I ocument Details 4)94ak Forrard EiEfri Return to Search Return to Results DocTMErtT et 1989-024952 DOC4?Axt tam: D-DEED DDt sLRTTPE: CON-Contract Records RECORDLNO DATE:9%281989 2:32:00 PM atco Date FILL ROOK t<PACE: 193-75 ecorsinanunmer $42,000 DESCRIPTION, D.0 1 Contract of Sale PIDIXED: Yes VERIFIED: Yes AEC31117 DATA View Additional Information DIACt: View Document Image as TIE { View Document Image as PDF Return To ._. NAME ADDRESS ADD CITY i. IR Parties PARTY TYPE LAST NAME FIRST NAac =DLL Swat stniS DIRECT sURC ETT MARK D''DIRECT DOWELL 7EFF ItDT1IRECT DOWELL PATTI 0ga11]escriptiotis SL'KDIVISION LOT 11.0CA DIRECTION PART C.PART TEPI I IRK 1.I iC7. QQ TAXI.Or PARCEL,,LEGAL DISCRJPTIOx 16 11 19 319T16RIINI/2 CI 11 19 1 S19 T16R11 _.... .,- ............ .-...........m..........----.._.....---°--..... 11 r...w.19......._00..----001 C http//recordings.desc hutes.org/ArchiveData.asp?IINST_ID=133399 r; r',' , I Office 1300 Nw wall St.,Sure 200,.!and,Oregon 17701•1:341.71s.1D41•F1141.353,4424 dditional Information q Pao► Feraati Return to Search Return to Results LOCATION ___..............-...� 193-75 --_....... ..,....,....,.........._.._..----- ROMs mm_ SEE DOCUM T FORCOMPLITE LEGAL NOTES CONTRACT DEED mammon SC1111R 09-24952 C:\Docs\prop65575\Dowe ll\pdfl890928_DcsCoClerksRecords_193-75_I 989-024952.doc page I 12/18/2006 8:17:47 AM I 19890803 Dowell Contract - Deed Recorded 19890928 with notes Pg 1a 193 - 0075 89-24952 Contract - Deed This agreement made and entered into this 3rd day of August 1989, by and between MARK BURCHETT, hereinafter "seller" and JEFF DOWELL and PATTI DOWELL, hereinafter "purchaser", witnesseth that: (I) "Seller" hereby agrees to sell to "purchaser" and "purchaser" agrees to purchase and pay for certain real property located in Deschutes county, Oregon and more particularly described as follows, to wit: A parcel of land located in the North 1/2 of Section 19, T.16 S., R. 11 E. , W.M., Deschutes County, Oregon which is described as follows: The following is what the Dowells are describing to be the "34.5 acres of land and that it is owned entirely by the Dowells. The following is the Dowell created legal description with all the "thence's lined up so they are easier to read. Commencing at the Northeast corner of said Section 19; thence N 89°11'47" W 1208.23' ; thence S 00°48'13" W 200.00 feet to the TRUE POINT OF BEGINNING; thence S 89°11'47" E 946.35' to the Westerly right-of-way line of the Sisemore County Road; thence along said right of way line on a 153.80' radius curve right 77.43' , the long chord of which bears S 29°07'55" W 76.62' ; thence along said right of way line S 43°33'17" 117.24' ; thence along said right of way line on a 194 .18' radius curve right 81.01' , the long chord of which bears S 55°30'22" N 80.42' ; thence N 89°11'47" W 826.06' ; thence N 00°48'13" E 200.00' ; thence S 89°11'47" E 61.29' to the TRUE POINT OF BEGINNING containing 34.5 acres more or less. If you follow this on a partition plat map or on the tax map... The description begins at the 4 section corner of Sections 18, 17, 19, and 20. Measuring almost due West 1208.23 feet. (to the NW corner of the Dowell TL100) Then almost due South 200,00 feet to the TRUE POINT OF BEGINNING. Then we go almost due east 946.35 feet to get back to Sisemore Road. Then we go South along the arch of the road, 1st 77.43 feet, then strait 117.24 feet, then we take the arch of the road again for another 81.01' then we go West 826.06' ; then we go North 200.00' ; and then we go East again for 61.29' back to the TRUE POINT OF BEGINNING and this contains 34.5 acres more or less. In fact it describes 2/3's of the KUHN's parcel, and it describes 4.3 acres of land. There is no mention of only 1/2 interest in what is supposed to be JOINT ownership. 19890803 Dowell Contract - Deed Recorded 19890928 with notes Pg lb The following is what the Dowells are describing to be the 4.3 acre building lot. The following is the Dowell created legal description with all the 'thence's lined up so they are easier to read. (2) A parcel of land located in Section 19, T.16 S. , R.11 E. , W.M.,Deschutes County, Oregon and described as follows: Beginning at the Northeast corner of said Section 19; thence N 89°11'47" W 306.60 feet to the Westerly right- of-way line of Sisemore County Road and the true point of beginning; thence along said right-of-way line S 23°56'02" E, 66.67 feet; thence along said right-of-way line on a 233.88 foot radius curve right 114.47 feet, the long chord of which bears S 09°54'46" E, 113.33 feet; thence along said right-of-way line on a 153.80 foot radius curve right 28.46 feet; the long chord of which bears S 09°24'32" W 28.42 feet; thence N 89'11'47" W, 946.35 feet; thence N 00°48'13" E, 200.00 feet; thence S 89°11'47" E, 901.63 feet to the TRUE POINT OF BEGINNING, containing 4 .3 acres more or less net. NOTE: Price is for 2 parcels [ (I) 34.5 acres more or less; AND (2) 4.3 acres ] II. The total purchase price of forty-two thousand dollars ($42,000) is to be paid by "purchaser" to "seller" in a manner more particularly described as follows: (1) "Purchaser" pays twenty-five thousand dollars ($25,000) upon acceptance of this agreement, (2) "Purchaser" pays remaining balance seventeen thousand dollars ($17,000) over 15 years at a fixed interest rate of 9.5% with option to recalculate mortgage whenever a lump sum payment of five thousand dollars ($5,000) or more is made. There are no penalties for paying off mortgage early and early payment is encouraged by both parties. How much of the $42,000 is for the 4.3 acres? How much for the 34.5 acres more or less?" III. Conveyence of the real property by "seller" to the "purchaser" shall be made by warranty deed conveying marketable title in and to the subject property subject to all easements and incumbrances of record upon final payment of subject property. IV. "Purchaser" shall be entitled to possession of said property upon acceptance of this agreement. V. All ad valorem real property taxes and all governmental or other assessments levied against said property for the current tax year shall be divided equally between "seller" and "purchaser" (July 1st was approximate date of verbal agreement) . "Purchaser" shall pay recording fees for recording the deed. "Seller" shall pay the recording fees for release of deed of trust. NOTE: the Dowells had NOT YET met the Kuhns. The Dowells introduced themselves to the Kuhns on the long July 4th weekend of 1989. This contract was drawn up by the Dowells and claims ownership of a large portion of the Kuhn property, as well as full ownership of the joint parcel. Also note: the Dowells, through this 'Contract - Deed' are attempting to remove the 'No- Dog' deed restriction which was recorded for the cluster on 20 July 1987. 19890803 Dowell Contract - Deed Recorded 19890928 with notes Pg 2 19 3 '" 0 0?6 t VI. "Purchaser" agrees to land use restrictions described as follows: 1. Owners or family members may not operate dirt bikes on the property. 2. All telephone and electric lines must be underground. 3. All fencing must be Wood. Top rail may not be higher than 42", bottom rail may not be lower that 18" . No barbed wire or straight wire may be used for fencing. 4. Owner or family members may not take target practice with rifle or handgun on property. 5. This contract carries with it the strongest encouragement to demonstrate sensitivity to living within the boundaries of the Tumalo Winter Deer Range, and urges the owners to adjust their lifestyle accordingly. VII. This agreement is the entire, final and complete agreement of the parties to the sale and purchase of said property, and supersedes and replaces all prior existing written and oral agreements between both parties. VIII. "Purchaser" accepts said property in its present condition, as is, including latent defects, without any representations or warranties, expressed or implied. "Purchaser" agrees that "purchaser" shall ascertain, from sources other than "seller", the applicable zoning, building, housing and other regulatory ordinances and laws and that "purchaser" accepts said property with full awareness of these ordinances and laws as they may affect the present use or any intended future use of said property, and "seller" has made no representations with respect to such laws and ordinances. This instrument does not guarantee that any particular use may be made of the property described in this instrument. "Purchaser" should check with the appropriate county planning department to verify approved uses. Note the missing number one restriction shown below from the recorded deed restrictions. Covenants and Restrictions. 1 . Owners gar fe014 r mam arrt *4 not acquires additional dogs other than the dog(sy they may on when the purchase the property. All dogs must be kept in such a way that they do net run loose in the area. logs Allowed to "run" will disrupt deer habitat. 2. Owners or family members may not operate "dirt bikes" on the property. 3, All telephone and electric lines must be underground. 4. All fencing must be wood. Top rail may not be higher than 42"; bottom rail May not be lower than 18". no barbed wire or straight wire may be used for fencing. 5. Owners or fanlly members may not take "target" practice with rifle or hand gun on property. 8. This contract carries with it the strongest encouragement to demonstrate sensitivity to iiving within the boundaries of the. 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' ,., • ., (0 gl'•• : <0. • 9 , „ ....„, "0. \ Sin OD -A • • 1- • •"6""' t- '•Alk), OD i I =• , ••••.:',. 1; ts.) ,..," . 1.::::; i,,,,,,,,,,C,,!...2.,:,..\., ).,. • . :''...::.::V: :. .. 4,,,,j i'''''''''''' •i r •'•''''';'• •-4 • This disuse*is srosd up • .. , • 111100103 lartarratt larla ood"ma from 19090103 Dose Coatrest-Doest-Cartigraphor Me** 19900711 Lrorrest Meta aid heels free 11090103 Dm"imarert-beag.-Carrapaphsr.311,0,Cab 9131111419 Taterrse-011etas ad hawk from 19090101 Irma cartmet-tmed-Cortogropher hito Cain ; •:: ommoismismissommoim. to 19890803 Dowell descriptions of CA nowt . Parcel (I) and Parcel (2) color.JP6 UTU I . I `i' . b o.o�f o 21n1 i - q,-- a . . 4ttg.. 2. nAi4 a \,,, t�oq ,e o. d C.,t1 . C...71 / co wr ,. i i P CP 1 / . .• . .., i .fr' ., . I , ,,.:(5,. Pi , cn 4 i 1 -. 2 I it ?cX � � a t 1 11 8 0) 0 a 0 w N. q 19890803 Dowell descriptions of Parcel (Z)and Parcel (2) color•JP6 C/3,-) 1 20150227 email from Dowell re no dogs Original Message From: Jeff @Outlook To: william@riskfactor.com ;windriverdesign(c7i.riskfactor.com Cc: 'Pat Dowell' Sent: Friday, February 27, 2015 2:55 PM Subject: Dowell Kuhn Meeting? Bill and Leigh, Pat and I were sorry to see the County's mediation efforts break down. We believe we made some very significant concessions(giving you the joint property,agreeing to'no dogs'on any of the 3 parcels, etc), in exchange for simplifying the paperwork to all but eliminate the chances for continued disagreements going forward, but apparently it wasn't enough. That is unfortunate. It's our belief that it's going to take both parties conceding more than either would like to get this settled once and for all, and move on. To that end,you have said repeatedly that one of your'requirements'was to meet with Pat and I directly,without attorneys present. Though we have been resistant to meeting until the basic framework of an agreement is already in place,we have given it a lot of thought and would like to see if such a meeting would be productive in reaching resolution. We are willing to meet with you at a neutral location. Perhaps we could meet at your attorney's office in a private conference room? The best timing for us would be any time after mid-March. Please let us know if this would be acceptable,and if so,what times and dates would work best for you. Thank you. Jeff Dowell Please note: Highlights and bold added The Dowells didn't have the "no-dog" issue to give us as a concession, since the Dowells never had the right to have dogs in the first place. Also, since the third parcel is actually an obligation both physical — having to deal with weeds and fire fuels reduction, and financial— having to pay not just the taxes but also for manpower to do the work, what exactly is it the Dowells are conceding? Ownership of this land is an obligation that the Dowells have never lifted a finger to help with. 20150227 email from Dowell re no dogs.doc page 1 2015 02 27 JIM SPITZ, ACF FORESTRY CONSULTANT 60045 River Bluff Trail Bend, Oregon 97702 541/389-5978 July 10, 2014 William Kuhn P.O. Box 5996 Bend, Oregon 97708-5996 Dear Mr. Kuhn: This letter responds to your request that I evaluate potential economic uses and provide an opinion of value for Tax Lot 300, T16S, R11E, WM. I inspected this parcel with you on May 15, 2014. This letter summarizes the results of my inspection, property assessment, and opinion of value for this property on your requested date of value of January 1, 2013. Ownership and Use Regulations Tax Lot 300 is a separate,legal lot of record. It was created in 1980 along with Tax Lots 100 and 200,as part of a cluster development. Tax lots 100 (currently owned by Jeff and Patti Dowell) and 200 (currently owned by William and Leigh Kuhn) were created as buildable lots and now have existing structures. Tax Lot 300 was created to serve as undeveloped wildlife habitat with undivided interests by the owners of Tax Lots 100 and 200. Jeff and Patti Dowell and William and Leigh Kuhn currently own Tax Lot 300 with undivided and equal interests. Tax Lot 300 was created with numerous land use restrictions,which remain in place. It was and is in a Forest Use zone (F-3 originally, F-2 now) and is included within both WA Wildlife Area Combining (deer winter range) and LM Landscape Management Combining overlays. The owners of Tax Lot 300 are required to develop and obtain Deschutes County approval for a homeowners association or other agreement to control management of Tax Lot 300. Guidance on requirements for managing Tax Lot 300 is provided by findings and decisions from a 1980 Deschutes County land-use public hearing (file number CU-80-22). This guidance is derived from the Deschutes County Comprehensive Plan and other land use regulations, which were in place when Tax Lot 300 was created. Goals cited from the wildlife overlay were: 1. To preserve and protect existing fish and wildlife area. 2. To maintain all species at optimum levels to prevent serious depletion of indigenous species. 3. To develop and manage the lands and waters of this country in a manner that will enhance, where possible,the production and public enjoyment of wildlife. More specific guidance for management of this property is provided by a staff report in 2013 (file number DR-13-16). In this report the staff's opinion is that Tax Lot 300: 1. Should be left in a natural state. 2. Farm use would be inconsistent with the intent of the 1980 code. 3. Structures, regardless of their use are prohibited. Member of the Association of Consulting Foresters 4. Irrigation is prohibited. 5. No new dogs is an important part of the agreement, and 6. All fencing must be wood with the top rail no higher than 42 inches and the bottom rail no lower than 18 inches. Deschutes County has blocked issuance of building permits and sale of Tax Lots 100, 200, and 300, until an approved management agreement is in place. To date a management agreement proposed by the Dowell's and efforts to create a conservation easement or a Wildlife Habitat Conservation and Management Program Plan by the Kuhn's have not achieved agreement between the property owners nor declaratory acceptance by Deschutes County. Thus, an approved management agreement for Tax Lot 300 still does not exist. Physical Characteristics Tax Lot 300 contains 33.21 acres,per the Deschutes County Assessor's records. This property is located within the Cascade Mountains precipitation shadow and receives only 10 to 12 inches of precipitation annually. Sixteen inches are usually considered to be minimum for commercial timber production. Soil conditions on the property are described in the USDA Natural Resources Conservation Service National Soil Survey and are summarized in the map and table on pages 6 and 7 of this report. These are very rocky, porous soils with low nutrition, water storage capacity, and productivity in their natural condition. My inspection found only natural levels of soil erosion on this property currently. There are no streams or water bodies on this property. Physical and legal access to the soil complex 34C portion of Tax Lot 300 is excellent via Sisemore Road, an all-season, gravel, mainline road. Road access to soil type 28A and much of complex 34C would require obtaining easements over adjoining private or BLM lands or difficult and expensive road construction from the complex 34C area. Vegetation and Productivity This property supports a western juniper/sagebrush-bitterbrush/Idaho fescue plant community (Photos on pages 8 through 10). Pecks milkvetch is the most unique plant species present on this property. Pecks milkvetch is a prostrate perennial with red-colored sterns and cream to pale yellow colored,butterfly-shaped flowers. Its Federal status is species of concern and its Oregon status is threatened. Vegetation on this property is declining in health,primarily as a result of fire exclusion and lack of compensating management activities. Pre-white settlement plant communities, like this, experienced light to moderate intensity wildfires every 10 to 30 years. These fires limited juniper and brush competition and favored native bunchgrasses and other forage species. As a result of decades of fire exclusion, vegetation on this parcel is shifting toward juniper and decadent brush domination. Thermal and hiding cover for mule deer are increasing at the expense of forage. This shift has gone beyond the optimal balance between cover and food for deer and for most native wildlife species. Invasion by non-native plants, especially cheat grass, near roads and other areas of human activity,is increasing and further damaging the composition and productivity of this native plant community. 2 • According to the USDA Natural Resources Conservation Service soil survey this property is capable of producing approximately 850 air-dried pounds per acre per year of biomass. Currently,juniper and unusable sagebrush account for approximately 650 pounds per acre per year of biomass growth. Browse accounts for approximately 150 pounds per acre per year. Ponderosa pine accounts for 50 pounds or less per acre per year. Juniper is the most common and an increasing tree species on this property. It is not usually considered to be a commercial species, however, it does have low-value markets as firewood, fence posts,and craft woods. Realizable (net of foliage,limbs,and tops) and sustainable juniper harvest on this property is approximately one-fifth of a cord per acre per year. Sagebrush, bitterbrush, and Idaho fescue are the main sources of forage on this property. Range and forage conditions are fair and declining, due mostly to increasing competition from juniper and aging sagebrush. At most half of the 150 pounds per acre per year of forage production can be utilized for grazing in order to carry healthy, perennial plants into subsequent growing seasons. Thus,the sustainable carrying capacity of this property is approximately 3 animal unit months (AUM's). This would feed one cow and calf or 5 sheep for 3 months. Alternatively,it is capable of feeding approximately four wintering deer(December through April). Ponderosa pine is the only native, commercial tree species capable of growing on this property. There are approximately 30 to 40 ponderosa pine trees on this property and none of them are of sufficient size and quality to be economically harvestable. These trees range from approximately 50 to 180 years of age. They occur on deeper pockets of soil and especially in locations with north-facing slopes and topographic shade. These trees have survived near the minimum moisture limit for ponderosa pine. Mortality is high and undesirable growth characteristics, including multiple tops, sweep, and spiral grain are common defects. Few of these trees are capable of reaching merchantable size, even if competing vegetation is removed, because they outgrow their available water supply as they approach merchantable size. During my inspection of this property, I found no stumps, logs, tops or other indications that commercial logging has ever occurred here. The Oregon Department of Forestry considers 20 cubic feet per acre per year to be the minimum threshold for commercial timber production. Potential growth here is 2 to 3 cubic feet per acre per year,under normal condition. Properties,like this,are not considered to be commercial forestland under Oregon Forest Practices Regulations and reforestation and other commercial forest practices requirements do not apply to sub-marginal sites,like this. Management Costs and Potential Income Net income potential from this property is negative. Private land grazing rights sell for approximately $10 per AUM. The 3 AUM's per year available here are not worth using, considering costs. Juniper firewood stumpage sells for approximately $5/cord on properties with good access. Access to juniper here is difficult, except for areas close to Sisemore Road and the primitive road near the southern boundary of the parcel. A firewood cutter might be willing to remove juniper with an all-terrain vehicle (ATV) within 500 feet of these roads for no net cost. This could reduce the excessive number of juniper on 40% of the property for administrative costs only. Currently and for decades less than one log truck load of ponderosa pine logs will be available for harvest from this property. Such a harvest will not cover logging and haul costs to the nearest mill(now Interfor Pacific in Gilchrist). 3 Management costs for meeting wildlife habitat requirements on this property are speculative without an approved management plan. Improving and maintaining winter deer range would be the primary goal. This would entail maintaining a reasonable amount of hiding and thermal cover, increasing the quantity and quality of winter forage (brush and early grasses and forbs), and reducing fire hazard to protect the improved habitat and nearby properties. Most property owners would select a minimum cost management program. Thus, relatively low-cost, high- benefit activities, like juniper removal and spot mowing of decadent brush would be favored. Piling and burning, lopping and scattering, and in safe situations broadcast burning would also be used to modify vegetation and to reduce fuel hazards. Use of mechanized equipment on this property is limited to approximately half of the area, due to rocky surface conditions and steep, erodible slopes. ATV's and small farm tractors can be used for skidding, piling, mowing, and fireline construction on easy ground. However much of the area will need to be treated with gentler, but more expensive, hand labor (chainsaws, loppers, shovels, etcetera). Diversity is desirable, so treatment intensity should be varied and not all acres need to be treated. I estimate that approximately $15,000 in treatments would be needed, during the first few years to bring this property into good and reasonably fire safe winter range conditions and then approximately $1,000 per year would be required for monitoring and maintaining these habitat conditions. This treatment would increase deer winter range carrying capacity by 4 to 6 deer. The net present value of these costs is approximately $30,000 at a 6%real discount rate. On balance, I believe that Tax Lot 300 currently has no net income potential. Adoption of the required habitat management plan would result in acceptance of the equivalent of a one-time, $30,000 negative income by the undivided owners. This cost would be largely offset by relief from permitting and sale restrictions on Tax Lots 100, 200, and 300. Highest and Best Use Tax Lot 300 is zoned for forestry, landscape, and wildlife uses and developed uses of this property are prohibited. Therefore, I conclude that maintenance of this property in a natural forested condition is its highest and best use, even though this use would result in no or a negative income for this parcel. Opinion of Value and Certification A full appraisal of Tax Lot 300 as a separate parcel would be complex and expensive, due to the property's legal and cost/benefit ties to Tax Lots 100 and 200; unique land-use requirements; undivided ownership; and the lack of comparable sales. The unfulfilled requirement for an approved habitat management plan for Tax Lot 300 increases appraisal difficulty. The cost to complete a full appraisal for Tax Lot 300 would be difficult to justify, given the parcel's low economic and market value. Therefore, I am only offering some market observations and opinions of value here, based upon assuming that forest management (open-space) is its highest and best use and upon my experience with appraising forested properties with little or no income potential. In my experience Eastern Oregon "forestland" properties, which have little or no income potential and little or no higher and better use (HBU) potential, sell for approximately $100 per acre. Isolated "scablands " are typical examples of these properties. Scablands contain very shallow, rocky soils. They are usually capable of growing a few, isolated trees and usually do 4 not produce enough forage to make livestock grazing worthwhile. These properties usually have very little IIBU potential, when they are in isolated locations. Forested in-holdings located deep within Federal wilderness areas are another example of this type of property. Federal regulations and lack of access prevent most economic uses of these parcels. The motivation for owning properties with no significant economic return is often described as "pride of ownership." In my experience minority interests in properties w ith undivided ownership usually sell at a discount of 40 to 60%. In this situation minority owners have no say in management of the property, unless they can combine into a majority vote. A 50/50 ownership situation, as exists on Tax Lot 300, is especially difficult. Either party can block action by disagreeing. In my opinion the market value of Tax Lot 300 as a separate property without an approved management plan was $3,000 on. January I, 2013. This is based upon a land value of$225/acre (less isolated than typical no-income/IIBU properties and good mountain views from a few locations) and a 60% discount for ownership and management plan difficulties (more difficult than typical). The current situation could change in the future and this might affect the market value of Tax Lots 100, 200, and 300. Agreement on a management plan for Tax.Lot 300 is possible. Some or all ownership interests in Tax Lot 300 might be sold or donated to a third party. Regulations affecting these properties might be changed. The fact that 34 years have passed without development of an approved management plan for Tax Lot. 300 or finding alternate solutions shows difficulties with all of these possibilities and impasse does delay significant costs and work for the landowners. Based upon this analysis, I conclude that Tax Lot 300 had a market value of $3,000 ($1,500 attributable to each family) on January 1 2013. I hereby certify that: I. 1 have no undisclosed interest in this property, present or contemplated. 2. My employment and payment are not contingent upon the value found. 3. I personally and thoroughly inspected this property. 4. According to my knowledge, everything contained in this report is true, and no important facts have been withheld or overlooked. 5. No one provided significant professional assistance to me in developing this opinion of value or report. 6. In my opinion the market value of Tax I.ot 300 was $3,000 on January 1, 2013. '2';'-`) -44 July 12, 1014 Jim'Spitz, ACF Date, 5 mr „ t+F imp "W p w h I ,,,..„,,:,,,!:, ,:„:„,,,,,,•„•,•:•,,k‘:,; :,:;., ':' ,•,•...,A0, :'''':t.'::•.:1,,,, ,: :::!tir, .*,14:;.•7,',..T': ,-,I,'. i•*:': :!;"".„i**Fiip,„,., fr gy" ;::.,,07.......:.:kitor!1:1:"1:Z:4j1V:17k;Y'. :'..,.4:7,,,:. .".-..,y'::'., ::''....,..t...04;.4.,."..:'4,..,,;:-,,:.*7.4 :,,,ttk.4 4?": :n "gr t r RR " xP ��' m va � 7m, G7 C « " Y4 �s�py^a¢tr e � nA'"a y•.�,n �w�x°,N N"4p n na. 4 wprMMs w M � `" 0 ' w �, a a7 , �.a wFY � ! ., w w7 4t r4 n a 4 !: X c + 4� "� u rWa 4 m h� Wy 1 J n4! ,�.i w ma a �*M4 :4� V wl� a� 4 ��a � � , w a s �°�«�Yw "�ee�^ 4";'1'''" .'; w � mw 'H !'1*"'''.; r " ti44 � °"; Mxa «N^" 4e �4 «ran r i r �NM �� a k ; "� mw 4 w R i ww" �'mM �k1 4 w "', " "^'« { � °� a� M " a 7.q y!�. b . 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Cp Him r w ;� ., iY "r 4* r�, 1„.,,i.:••,4,k,,*ii:•,;,1 ,44/ r ,. i, ,,, Od "o " , ., ;« ' > ,,,...,,,,,i!!:.:ii:::::4,..,1:‘,,,!..a1):::,:1,i,1:11:',,i,„!,,,,,,,!..,.:.,..,:.„,:.: , lo A. r ry . .. "' CI CPI) v Y "CI I deti Ct '�:, '' e " C ti n 7i "r• p � i :"; °' a��" Ct : G) m• U J X1 M C O ""° .„e'.'' CO) C ` Po fin:. , • ,,.„,"''''''' ',,:r,sr:.,„.,,' '•°',•17,': It..,,..1'',4,, M 5 ° 7 * : p.d ' M a 4- ja �U c cs v - + CO CJ Cly C ,,..,,,,,,, ,-jr,,,,,,, O U � , G�dy `� ,wh + ' x�tl 'm nJ wik y, r�K „ t , t rs ce r ywp .i M G r m Professional Qualifications of Jim Spitz, ACF 60045 River Bluff Trail,Bend, OR 97702 541/389-5978--jspitz @bendcable.com • Education Graduate, Tropical Dendrology Course, Centro Cientifico Tropical, Costa Rica, 1995. Graduate,Forest Engineering Institute, Oregon State University, 1974. Master of Business Administration, Forest Industries Program, U of Oregon, 1972. Bachelor of Science,Forest Management, Oregon State University, 1967. Work Experience Forest Industries Consultant, 1979 to Present Now assisting clients with the acquisition of and management planning for 180,000 acres of timberland in Eastern Oregon. on. Now helping with revising the valuation chapter in the classic textbook, Forest Management. Served as an expert witness on forestry and wood product matters in Federal Court of Claims cases, which resulted in settlement payments of over$300 million to my clients. Appraised over 1,000,000 acres of timber and timberland in Oregon, Washington, and California for purchases, sales, exchanges, divorce settlements, estate settlements, insurance settlements, lawsuits, foreclosures, and criminal cases, including: :g • Appraised stumpage on the 125,000-acre Crown Pacific/US Forest Service Land Exchange in Central Oregon, 1996-98. • Appraised stumpage on 3,000 acres of Bureau of Land. Management Lands in the Cashe Creek Exchange in Northern California, 1997 &98. • Appraised stumpage on approximately 23,000 acres of Bureau of Land Management Lands in the Orwick Exchange in Northern California, 1996 & 97. • Appraised stumpage on the 35,000-acre Cedar River Watershed Land Exchange (City of Seattle & U.S. Forest Service), including prescribing management for late successional ecosystems on selected areas, as required in the enabling legislation, 1995. • Appraised stumpage on the 10,500-acre Oregon holdings of Plum Creek Timber Company as a basis for their sale, 1989. • Appraised stumpage on the 15,000-acre Gilchrist Timber Company/U.S. Forest Service Land Exchange, 1987. • Appraised stumpage on the 4,500-acre Galesville Reservoir site for purchase and condemnation, 1983. • Provided domestic and export sort timber cruises and stumpage appraisals for over 100 smaller projects. 11 • Completed numerous appraisal reviews for compliance with USPAP and Federal requirements. Served on a stumpage appraisal committee, which determined stumpage transfer prices for over 200 million board feet of timber in Northeastern Washington. Helped two logging companies and one timber purchaser monitor their costs, bid for logging and stumpage contracts, and complete thinning for forest health and fuels abatement in Central Oregon during the late 1980's and early 1990's. Advised numerous investors and financial institutions on potential investments in timberland, forest product manufacturing facilities, and forest products wholesaling and retailing companies. Served as the primary, independent advisor to the CEO and Tribal Council of the Confederated Tribes of Warm Springs from 1988 to 2010 on management of their 400,000-acre forest and 45 to 100 million board feet per year sawmilling, plywood manufacturing, cutstock manufacturing, chipping, and log merchandizing operations, including: • Monitored day-to-day forest management operations and provided ongoing recommendations for procedural improvements. • Helped analyze and plan for tribal assumption of control and redirection of their forest management program. • Participated in the design and implementation of a turn-around of the wood products operations, which greatly improved profitability in less than 1 year. • Participated in the development of a 10-year, integrated, forest management plan and the associated environmental assessment and timber harvest schedule. • Recommended and helped implement new timber harvest priorities, utilization standards, marketing methods, and appraisal systems, which greatly increased stumpage revenue. • Coordinated analysis of the plywood manufacturing and large-log sawmilling operations and then the design of a new 50 mmbf per year, medium-log sawmill, which replaced them. • Developed analyses of millwork,wood chip, and sort yard opportunities. • Helped identify opportunities and assisted with timberland acquisitions. Developed a marketing guide for value-added wood products in the Southwestern U.S., which identified local market opportunities, entry points, channels of distribution, and key contacts for potential suppliers. Helped design and coordinated work on a $3/4 million national and regional study of forest product markets and business opportunities. Inventoried forest resources and assessed the environmental and economic potential of 38,000 acres of tropical rainforest in Belize. 12 Helped review management of a 60 million board feet per year log merchandizing operation to evaluate past financial performance and to identify ways to improve economic return. Conducted Forest Stewardship Council and Sustainable Forestry Initiative certification assessments and peer reviews of certification assessments in the Western U.S. and Lake States. Completed numerous FSC chain-of-custody certifications of forest product manufacturers, wholesalers, and retailers in the Western U.S. and British Columbia. Served as a technical advisor in developing FSC Rocky Mountain regional certification. standards. Assessed damages, developed rehabilitation plans, and provided expert witness testimony in numerous fire-damage cases. Served as forestry and valuation advisor in a lawsuit, which resulted in an award of$20 million in damages from improper timber sale layout,'marketing, administration, and other mis-management. Coordinated work on the 1993, Congressionally-mandated, national assessment of the condition of Indian forest lands and their management programs (IFMAT 1). This project included: • On-site reviews of 33 Indian forests and management programs and representative samples of the national and regional offices o f the e B r u e au of Indian Affairs. • On-site reviews of 7 tribal sawmills and numerous cutstock, post and pole, shake and shingle, pallet, particleboard, log chipping, log sort yard, and other wood product manufacturing operations. • Use of questionnaires, focus groups, and personal interviews to survey tribal communities and resource managers. • Comparison of forest management practices and costs on Indian lands with those found on similar Federal, state, and private lands. • Preparation of a report, two summaries, and an oral presentation to the U.S. Congress. • Education of tribal resource managers, officials, and interested members on findings and recommendations from the study. Served as an expert witness on general forestry, logging systems, and forest economics in U.S. District Court in USA vs. Link and USA vs. Elder, timber theft cases. Served as an expert witness on helicopter logging, logging safety, and rights-of-way in U.S. District Court in USA vs. Hemstreet et. al., a logging protest case. Provided technical guidance for the development of integrated resource management plans and environmental assessments for over 1 million acres of forestland. Developed a transportation plan for a 600,000-acre forest. Developed an intensive fish and wildlife management plan for a 70,000-acre forest. 13 Testified to the U.S. Senate Select Committee on Indian Affairs on the status and quality of management of Indian forests. Participated in a study to determine the most efficient ways to log small timber and to produce in-woods chips. Completed a raw materials supply study and a preliminary feasibility study for a proposed biomass power plant. Developed environmental assessments for microwave relay stations. Identified and analyzed potential socio-economic affects on local communities and industries of proposed forest and grassland management programs. Developed draft policy guidelines for a geothermal exploration and development program. Oversaw logging on a 22,000-acre ranch on behalf of the owner and lender. Helped a city acquire 1,000 acres of land for construction of a sewerage treatment facility. Taught classes to forest industries and appraisal professionals on forest industries evolution, investment opportunities, certification programs, and appraisal of timber and timberland. Conducted tree farm inspections as a volunteer for the Oregon Tree Farm System. U.S. Army, 1967-1970 Taught surveillance, interview, interrogation, and investigative techniques. Served as a counterintelligence special agent and managed counterintelligence operations in South Korea for the Eighth Army. • U.S. Forest Service, 1962 to 1979 Worked in the following permanent and seasonal positions: systems analyst, program of work analyst, forest management planner, other resources manager timber sale administrator, presale forester, reforestation forester, and forest pathology research technician. Presale forestry included substantial experience in timber cruising, design, and layout of logging units and roads, mostly on sensitive sites using advanced cable and aerial logging systems. Partial List of Consulting Clients Plum Creek Timber Company Broughton Lumber Company Rough&Ready Timber Company Thomas Lumber Company Gilchrist Timber Company Niedermeyer-Martin 14 Capital Veneer Sales Modoc Lumber Company Kinzua Timber Company Day River Partnership Crown Pacific,LLP Northwest Agri-Tech Giustina Resources G Bar W Ranch Fishhole Creek Ranch Forked Meadow Ranch Box T Ranch Salt Creek Plantation Jeld-Wen Timber and Ranches Lassen Gold Mining Oregonians in Action Wilson Logging Smith-Greene Logging Wissie Inc. The Timber Exchange Dixie Chemical Company lntcrforest,LLC Centro Cientifico Tropical Jay Gruenfeld&Associates Moana Corporation Travelers Insurance North Pacific Insurance Farmers Insurance GAB Robbins Union Oil of California MCI Telecommunications Seattle Water Department Sunriver Utilities U.S.National Bank Oregon Bank Wall Street Financial Corp Viking Community Bank Soros Funds Deutsche Bank Goldman Sachs Brencourt Advisors Greywolf Capital Seneca Capital Oaktree Financial Amaranth Advisors Polygon Investments Taconic Capital Gerson Lehrman Group Triarc Companies Basso Capital Luxor Capital Avenue Capital Rockybay Capital MFS Investments Silver Point Capital QVT Financial Stark Investments Empyrean Capital Partners TIAA-CREFF Fidelity Investments Endowment Management,LLC Perry Capital Eaton Park TPG Axion Capital Ziff Brothers Investments Och-Ziff Capital Di Maio Ahad Capital GLG Inc.US Greenlight Capital JP Morgan MFS Investments Canyon Capitol Advisors Alliance Bernstein Glenview Capital Quadrangle Group Watershed Asset Management Old Lane KS Capital Partners DE Shaw Company Atlantic Investments Bain and Company Barrington Capital Blackport Capital Centerbridge Partners Chisuk Yom Davidson Kemper Fortress Investment Generation Investment Golden Tree Associates GSO Capital KBK Investments Highbridge Capital King Street Capital Kolberg Kravis Roberts Lehman Brothers Morgan Stanley MSD Capital Obrem Capital Management OSS Capital Redwood Capital Rockcrest Capital SAC Capital Advisors Sage Asset Management Sankaty Advisors Satellite Assets Thales Fund Management Tisbury Capital Wellington Management Wesley Capital Management Ridgetop Research The Equity Group Trellus Community First Bank Arneson,Wales&Bernier James,Denecke&Harris Karnopp,Peterson,Noteboom, ... Brandsness,Brandsness,and Rudd 15 Forcum&Speck Lands of Amcrica Trust for Public Land Pacific States Marine Fisheries Commission Western Land Group Wetlands Conservancy North Coast Conservancy Oregon Water Enhancement Board Forest Stewardship Council,U.S. Scientific Certification Systems Girl Scouts of America RREDCo Confederated Tribes of Warm Springs Klamath Tribes Confederated Tribes of Colville Confederated Tribes of Grand Ronde Yakima Indian Nation Redding Rancheria First Nations Coeur`d Alene Tribes Intertribal Timber Council Quinault Indian Nation Applegate Forestry City of Depoc Bay,Oregon City of Detroit,Oregon City of Madras,Oregon City of Sisters,Oregon Bend Metro Parks&Recreation District City of ldanah,Oregon Marion County,Oregon Douglas County,Oregon Oregon General Services Administration Oregon Department of Transportation Oregon Department of Forestry Oregon Department of Revenue Washington Department of Natural Resources Bonneville Power Administration U.S.Department of Energy Federal Public Defender Columbia River Gorge National Scenic Area U.S.Army Corps of Engineers U.S.Fish and Wildlife Service U.S.Bureau of Land Mgmt,National U.S.Bureau of Land Mgmt,Oregon U.S.Bureau of Land Mgmt,California Region 6,U.S.Forest Service Region 5,U.S.Forest Service Willamette National Forest Deschutes National Forest Mt.Hood National Forest Winema National Forest Fremont National Forest Siuslaw National Forest Siskiyou National Forest U.S.Senate Canadian Consulate Occasional Small Woodland Owners Professional Memberships Association of Consulting Foresters Society of American Foresters International Society of Tropical Foresters International Wood Collectors Society Central Oregon Rock Collectors 6/2014 16 Civility & Home Associations Teresa Payne Civility & Home Associations, The Secrets to Success By Teresa Payne CMCA AMS Owner of Fieldstone Management LLC on April 23, 2015 E-Headlines Homeowner associations (HOAs) are non-profit "There's a dog chasing a deer, you need to do corporations where ALL owners are members. One something." of the biggest advantages of living in an HOA is the ability of the association to preserve,protect and "My neighbor's tree roots are growing over into enhance property values: my property." The secret to a successful HOA is that each member "My girlfriend is allergic to bees. Please remove acknowledges their role in the community and at all the flowers so she doesn't get stung." times be willing to take on some added Associations aren't always responsible for solving responsibility. problems. If an owner's behavior doesn't violate the Recently 1 helped a client community transition governing documents, then the board generally has no business Whatever the complaint,the from self-management to professional management. ess butting in. W atev p , Kudos to them! Even the smallest HOAs can be a first question we ask is—have you talked to your challenge to self-manage. When my associate and I neighbor? attended our first board meeting for this community, A lady from that same community walked into our a man asked us, "Did the board hire you because office and said, "I'm here to work in my office." they're incompetent?"...unfortunately at the time i She brought in her work and sat down at our didn't think to say, "No—Your board hired us conference table and said, "You changed our HOA because they ARE competent." address and therefore this is MY office." This experience led me to think about a greater Well,technically the address was changed to a PO concern in our society of HOAs: Box, so go right ahead and set up shop down there! RESPONSIBILITY. Who is responsible for maintenance of our homes?Our landscape?Who is Despite the horror stories and critics, it's obvious responsible for our behavior?What does your many people appreciate the way HOAs operate. neighbor think of your behavior and what do you Why else would 20 percent of the population think of theirs? voluntarily place themselves under their control? HOA boards and managers have to handle a When you purchase a home in an HOA you surprisingly wide variety of situations. We regularly automatically become a member of the association deal with owners who have a bone to pick about a and are bound to deed restrictions, covenants and neighbor's behavior. Sometimes,two neighbors just conditions (CC&Rs). These rules and restrictions don't like each other and will always find are to protect the community and to maintain or something to report to the manager or board. improve property values. "My neighbor parks his car in front of my house Lastly, I leave you with some thoughts on How to so now it's what I see when I look out my Create a Strong Community: window."{ You all must obey your governing documents; you "Can you make kids stop running across my agreed to do that when you closed escrow. By front lawn." obeying community rules and regulations,you. "The street light shines in my bedroom and I contribute to your community and accept the role of a rule abiding member. Each year you conduct an can't sleep, so please fix it NOW." annual meeting at which time you elect your board of directors. Although you don't have to participate C:\Docs\prop65575\Kuhn\Civility&Home Associations Teresa Payne.doc page 1 2015 04 23 in the election process, choosing to do so Fieldstone Management strives to find the most contributes to the success of your community. effective solutions to the challenges faced by community associations. We hope that in your Your role as a rule abiding member expands to process of promoting peace and aesthetics in your include that of a voting member. You also have the community, your property values are protected. opportunity to attend your board of directors meetings in order to better understand the business Teresa Payne, CMCA,AMS is the owner and decisions made by the board. When you choose to general manager of Fieldstone Management, LLC attend those meetings,your role as a rule abiding, located at 371 SW Upper Terrace Drive, suite 2, voting member now expands to include that of a Bend, OR. 541-385-7799 participating member. And when you choose to Fieldstone Management is a bonded, licensed serve on community committees or the board of property management company specializing in the directors, you accept another role and become a rule management of community associations. We offer abiding, voting,participating and contributing full service association management, consulting, member. and education for communities. Fieldstone is a member of CAI (Community Associations Volunteering for your HOA Board and living in an Institute). HOA should be a rewarding experience and we urge every board—no matter how small—to have a www.fieldstonemanagement.com relationship of some sort with a professional manager. C:\Docs\prop65575\Kuhn\Civility 8 Home Associations Teresa Payne.doc page 2 2015 04 23 4 VOTE: DALY: Yes. BANEY: Yes. LUKE: Chair votes yes. 4. Before the Board was Consideration of Whether to Hear an Appeal (File #A-07-21) of the Hearings Officer's Decision Revoking Land Use Approvals for the Construction of a Dwelling (Applicant: Peery). Anthony Raguine provided an overview of the item. He said there was a Code complaint regarding retention of vegetation filed by a neighbor; it was determined that a violation did occur, and there was a declaratory ruling to revoke two of the permits issued in June 2007. In November the Hearings Officer revoked all four permits, and this has been appealed. There is no time constraint, and the appellant asked for a de novo review. The applicant has been working with the Oregon Department of Fish & Wildlife on this issue. Mr. Raguine referred to an oversized map and explained where the dwelling would have to be built. If approvals are revoked, they would have to build where an old irrigation ditch was located, and the Oregon Department of Fish & Wildlife does not want it built there due to the existence of a wildlife game trail and corridor. Restoration would also need to be done. The original approval includes a modification of conditions. The previous owners had applied for a site away from Sisemore Road. Ms. Craghead noted this was a violation of the original conditions of approval. If the County revokes all permits, the owners can still build but the structure might be where the Oregon Department of Fish & Wildlife does not want them to be, and also mitigation with the County would not be required. Mr. Raguine stated that originally Community Development revoked two conditions; the Hearings Officer revoked all four. The County could require more trees to be planted for screening, but there is no requirement to restore the site if the ermits are revoked. Staff agrees with the Hearings Officer in this case. p g g Laurie Craghead stated that this could be heard de novo, limited de novo or on the record. Ms. Raguine advised that the applicant is working with the Oregon Department of Fish & Wildlife. However, not hearing the appeal would send a clear message that people are not to violate conditions, but on the other hand this would not allow the County to require mitigation efforts. 20080107_13oCCAskedToHearPeery_A-07-21_Minutes Pg4 5.pdf J Minutes of Board of Commissioners' Business Meeting Monday, January 7, 2008 Page 4 of 7 Pages R Commissioner Baney agreed that conditions of approval should be followed, but thinks this one should be heard to have an opportunity to mitigation some damage that has already been done. Commissioner Daly agreed, in an effort to try to make the best of a bad situation. Chair Luke noted that they took out material on the neighbor's lot as well. He thinks their permits should be revoked. They will have to reapply and he feels they can be made to mitigate some conditions at that time. Commissioner Baney stated that she feels it should be punitive, but the County may not be able to require mitigation if the four permits are revoked. Ms. Craghead said it depends on where they plan to build. There might be a way to get some mitigation. The house would also have to be screened. Commissioner Luke said that ODF&W will have an opportunity to comment on a new application. Commissioner Daly stated that the applicant is working with the Oregon Department of Fish & Wildlife now, and he would like to hear what they have worked out. DALY: Move that the Board hear this de novo. BANEY: Second. VOTE: DALY: Yes. BANEY: Yes. LUKE: Chair votes no. (Split vote.) 5. Before the Board was Consideration of Whether to Hear an Appeal (File #AD-07-12) of the Hearings Officer's Decision regarding a Utility Facility, Including AM Radio Towers, in the EFU Zone (Appellant: Follansbee). Dee Van Donselaar said there are fourteen appellants in this issue. There has been no offer to extend the clock by the applicant. Laurie Craghead said that a minimum of a week would be required to get a decision finalized. The mailing takes ten days. Commissioner Luke stated that it appears that there is not enough time to hear this in the amount of time allowed, especially since some of the Commissioners will be out of the office part of the time, so he feels it should be appealed to LUBA if the appellants so desire. 20080107_BoCCAskedToHearPeery_A-07-21_Minutes Pg4 5.pdf Minutes of Board of Commissioners' Business Meeting Monday, January 7, 2008 Page 5 of 7 Pages �T s Q *I% GII % La p 1r�` 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 BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JANUARY 7, 2008 Commissioners'Hearing Room-Administration Building- 1300 NW Wall St.,Bend Present were Commissioners Dennis R. Luke, Michael M Daly and Tammy Baney. Also present were Laurie Craghead, Legal Counsel; Catherine Morrow, George Read, Will Groves, Anthony Raguine and Chris Bedsaul, Community Development Department; and approximately a dozen other citizens. Chair Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was a Public Hearing and Consideration and First and Second Readings and Adoption, by Emergency, of Ordinance No. 2008- 003, regarding a Zone Change (Applicant: Reid). Will Groves explained the item, which was requested by the applicant. The Hearings Officer concluded split zoning of property in 1992 was a mistake, as it was based on a section line. She recommended approval under one type of zoning. The applicant has asked for an emergency clause because it took an inordinate period of time for the Hearings Officer to hear this case, and the owner would like to proceed with other applications regarding the property. Laurie Craghead stated that this is an individual case and not a legislative change, and the Board often allows these to be handled on an emergency basis. Chair Luke opened the public hearing, and read the opening statement. 20080107_BoCCAskedToHearPeery_A-07-21_Minutes Pg4 5.pdf Minutes of Board of Commissioners' Business Meeting Monday, January 7, 2008 Page 1 of 7 Pages VOTE: DALY: Yes. BANEY: Yes. LUKE: Chair votes yes. 7. ADDITIONS TO THE AGENDA None were offered. Being no further items to come before the Board, Chair Luke adjourned the meeting at 12:05 p.m. DATED this 7th Day of January 2008 for the Deschutes County Board of Commissioners. Dennis R. Luke, Chair Ta Caney, Vice Ch, ATTEST: Alf ,_ /,/ Or _ r Mi' a-. M. Daly, Com 'ssioner Recording Secretary 20080107_BoCCAskedToHearPeery_A-07-21_Minutes Pg4 5.pdf Minutes of Board of Commissioners' Business Meeting Monday,January 7,2008 Page 7 of 7 Pages William John Kuhn Martha Leigh Kuhn Box Oregon 97708 6496 Phone: (541) 389-3676 P�Bo 5996 Send, Or �o ( ) Tuesday 26 May 2015 Reguarding 247-14-000165-A which is an appeal of DR 13-16/ MA 14-1 Dear County Commissioners, Although there are flaws in 1 learings Officer Green's decision we believe it might he best to not hear this appeal because the main issue raised in the appeal has already been decided by the Board and upheld by LUBA. If you do,however, decide to hear the appeal please consider these significant and realistic issues. It is our furvent hope to eventually find a fair,just,ethical,and honorable solution to our nightmare in Deschutes County known to you as the Kuhn/Dowell situation. The basics of the problem are: 1. ignored and unequally enforced land use restrictions; 2. how to properly weigh property rights; and 3. deep seated lack of moral and ethical integrity. We, the Kuhns, have already secured a factual stipulated agreement that establishes 20 different specific facts,one of which is that our property values are lower than they ought to be because of the property restrictions Deschutes County has put on us. We have realized since January 1997 and realtors have insisted since 2000 that our property isn't worth diddly squat unless the other party in our cluster development follows the basic social rules and requirements. The stipulated facts agreement between the Kuhns and Deschutes County also says that it has been an error for this County to call us negligent. In layman terms the stipulated agreement basically says that we did nothing wrong and that we followed all the rules, regulations, ordinances and state statutes.And again in layman terms,it is reasonable to imply that the blame, the accountability,the responsibility,and the fault that needs correcting lies elsewhere and not with us. It is also reasonable for the lay person to figure out that there are three parties involved. The Kuhns, Deschutes County,and the other party. And because there are three parties involved it is neither reasonable,prudent,nor wise for us to subject ourselves to mediation or arbitration that is overseen by Deschutes County which has treated us and its own ordinances with such disrespect. Regarding the three basic problems: 20150526 Statement to BoCC re Appeal.doc 1 of 4 2015 05 27 1 Ignored and unequally enforced Land Use Restrictions which are meant to protect basic Goal 5 principals. You would think that of all the property locations in Deschutes County the greatest restrictions would be found in a Goal 5 protected area. I.andscape Management Overlay,Wildlife Area Overlay, Forest Zone issues,Fire Fuels reduction concerns,weed abatment, and Deed Restrictions that specifically prohibited owners from acquiring new dogs after purchase would normally be sufficient deterants for most prospective purchasers to at least think twice. The party that bought in 1989, however,without benefit of legal or real estate professional help, didn't buy title insurance, didn't use the escrow process,and who were determined to obliterate the no-new-dog deed restriction at any cost through their personally drawn and fraudulant land purchase contract. They tried to eliminate the no-new-dog deed restriction as well as claiming full and sole ownership of the jointly owned parcel. They recorded this fraudulant purchase contract and then used it inappropriately in applications to Deschutes County. A list of several specific examples are readily available for consideration such as: Why did County require the owners of TL200 to obtain a lot line adjustment to deal with the 100 foot minimum side yard set backs in a forest zone,while the TL100 owners were allowed to skate by and then were granted ex-post facto approval while other parcels in Deschutes County in similar situations were also obligated to obtain lot line adjustments? 2 How to properly weigh Property Rights which are one of the most essential guidelines we all hold dear. My property- my castle is the first and most recognized concept model when arguing property rights.The second model concept shows property as a form of investment in a market economy that creates reasonable expectations likely to yield economic rewards. We do not deny either of these concepts and models. We embrace them.The investment concept is the very basis for our property tax appeal—since we can't legally or ethically sell our property, then how can it be worth what Deschutes County says its worth. There is however,a third concept of property rights that needs consideration and that is the obligation of ownership. 1-laving absolute domain over your property does not give the owner the right to use their property to harm others. You cannot legally build an unsafe structure. That is one of the reasons why we have building codes. This was also at the root of the abolishionist movement to eliminate slavery. Ownership is not just about rights;it is equally about obligations. We can argue about exactly what those obligations of ownership should be,but the existence and importance of the obligations of ownership should not be in doubt.The Hearings Officer's decision begins the discussion of what those obligations might be. When our rights of ownership are fraudulantly denied us by government, and when those who ignore their ownership obligations cause us both physical and financial harm,we are able to show that we do not flourish. Is that how you want Deschutes County to be shown to the rest of the world? Are you, the County Commissioners,willing to give preferential treatment to those who did not follow the law,who did not even follow their own landscape management plan,and who are now holding us hostage for$750,000 even though we are the ones who had to pay the entire cost of 20150526 Statement to BoCC re Appeal.doc 2 of 4 2015 05 27 development within our cluster, and continue to be the only owners to maintain the common parcel while the other 1/2 owners contribute nothing,do nothing, and continue to refuse to abide by the civil court ruling that requires them to enter into a homeowners agreement that establishes a homeowners association with us or abide by the conditional use for this cluster. 3 Deep seated lack of moral and ethical integrity with no sense of community or social responsibility. What is the purpose and intent of Chapter 18? 18.04.020. Purpose. A. The intent or purpose of DCC Title 18 is to promote the public health, safety and general welfare and to carry out the Deschutes County Comprehensive Plan, the provisions of ORS 215 and the Statewide Planning Goals adopted pursuant to ORS 197. DCC 'Title 18 is to establish zoning districts and regulations governing the development and use of land within portions of Deschutes County,Oregon; B. To provide regulations governing nonconforming uses and structures; to establish and provide for the collection of fees; to provide for the administration of DCC Title 18 and for the officials whose duty it shall be to enforce the provisions thereof; to provide penalties for the violations of DCC Title 18; and to provide for resolution of conflicts; From a local professional HOA management firm we received these words of wisdom: "One of the biggest advantages of living in an HOA is the ability of the association to preserve, protect and enhance property values... The secret to a successful.I-IOA is that each member acknowledges their role in the community and at times he willing to take on some added responsibility... Think about a greater concern in our society of HOAs: RESPONSIBILITY. Who is responsible for maintenance of our homes?Our landscape?Who is responsible for our behavior?What does your neighbor think of your behavior and what do you think of theirs?... When you purchase a home in an I IOA you automatically become a member of the association and are bound to deed restrictions, covenants and conditions (CC&Rs). These rules and restrictions are to protect the community and to maintain or improve property values." We have not had these crucial advantages because we are denied our homeowners association. We have had to deal with property owners who have refused any responsibility except the paying of taxes. What we would like the Deschutes Board of County Commissioners to do is to emphatically communicate to the appellants that enough is enough. We ask you to please consider as appropriate for this appeal what you did when reviewing the Peery Appeal of a DR in January 2008. Please see the minutes of your"Consideration of Whether to Hear an Appeal (File #A-07-21) of the Hearings Officer's Decision Revoking Land Use Approvals for the Construction of a Dwelling(Applicant: Peery)." 20150526 Statement to BoCC re Appeal.doc 3 of 4 2015 05 27 We also strongly suggest you at least scan the very small sampling of documents that helps paint the picture of who and what we have had to deal with beginning the summer of 1989 when the other party claimed 100% of the common parcel as their own. What the Board of County Commissioners must do is to prevent this stupid situation from continuing. We want our property rights restored,and we want to be able to refinance.We want to live safely here;we want the right to enjoy our property. We want to be able to steward and maintain this land as Goal 5 intended. However that can be best achieved,it can't be achieved without positive, forceful and creative action by this Board of County Commissioners.And as our stipulation agreement says we did everything by the book. Please see these Exhibits and understand their significance: 1. Stipulation Agreement between Deschutes County and the Kuhns 2. Dowell 1989 purchase contract 3. Dowell recent email--re no-new-dogs as concession 4. Spitz report on what the 33.21 acre common parcel contains and its challenges 5. Civility&Home Associations by Teresa Payne 6. BoCC considers Peery appeal request from January 2008 These are just a small fraction of the "truths" that need to be considered. Thank you for considering our thoughts and suggestions, agitqrn. � 4,4 William John Kuhn and Martha Leigh Kuhn 20150526 Statement to BoCC re Appeal.doc 4 of 4 2015 05 27 Andrew S. Mathers, P.C. ATTORNEY AT LAW August 20, 2014 Magistrate Allison R. Boomer Oregon Tax Court 1163 State Street Salem, Oregon 97301-2563 VIA UNITED STATES FIRST CLASS MAIL; and FACSIMILE(503) 986-4507 Re: William and Martha Kuhn v. Deschutes County Assessor Case No. 140068N Settlement and Order Dear Judge Boomer: Please find enclosed the Stipulations; Settlement of Appeal; and Order(the"Order"), which provides an agreement to lower the Real Market Value and Assessed Value of Tax Lot 300. The Order includes Factual Stipulations as part of the agreement and Order. Also enclosed are two conformed copies with self-addressed stamped envelopes for each party. We request the Court sign the enclosed Order and conform the copies. Please mail the conformed copies using the self-addressed stamped envelopes. Please call me if you have any questions. Sincerely, Tt. . Andrew S. Mathers Cc: David Doyle 250 NW FRANKLIN AVE., SUITE 401 - BEND, OREGON 97701 TEL: (541) 382-0046 FAX: (541) 382-6875 0 0 Z t]uofec- .� Legal Counsel '; �i� 1300 NW WALL STREET,SUITE 205•BEND,OREGON 97701-1960 101 ;4 TELEPHONE 2541-388-6623 +4 541-388-6624 FACSIMILE 21541-617-4748 David Doyle.Legal Counsel Laurie E.Craghead,Assistant Legal Counsel Christopher Bell,Assistant Legal Counsel John E.Laherty,Assistant Legal Counsel August 19, 2014 Andrew S.Mathers,Esq. Please Refer To Attorney at Law File No. 2/4-187 250 NW Franklin Ave #401 Bend,OR 97701 Re: Kuhn v. Assessor Case No. 140068N Dear Mr, Mathers: Enclosed please find the Stipulation pleading which is signed and dated by the Assessor. This document remains a"settlement negotiation document"until fully executed by Bill and Leigh. Once it is fully executed by Bill and Leigh you are authorized to submit same to the Tax Court. The document has no legal status and remains inadmissible in all matters and proceedings unless and until it is fully executed by Bill and Leigh. Please scan/email me a copy as soon as it is fully executed by Bill and Leigh. Thank you. Respe fully, 'd..)71"/ David Doyle Deschutes County Legal Counsel Enclosure DD/s Quality Services Performed with Pride 1 2 3 4 IN THE OREGON TAX COURT Magistrate Division 5 Property Tax 6 WILLIAM JOHN KUHN and MAR'T'HA LEIGH KUHN, TC-MD 140068N 7 Plaintiffs, STIPULATIONS; SETTLEMENT OF 8 APPEAL; ORDER 9 v. (TCR-MD Rule 2F) 10 DESCHUTES COUNTY ASSESSOR, 11 Defendant. 12 'IMO 04 twee t ;? b tat : 13 .,may SAS ti9p Wil.::..'. 14 15 1. Deschutes County Conditional Use 80-22 allowed a"cluster development"on a 43 16 acre parcel in the Tumalo Winter Deer Range. 17 + r "•. ,, the INUireakeniS fix did , ` ; ere : 15 and 18 ;a aeliOter delattOPM011, .order:to creOnstiantels smiler than the 19 400$ mum required in the WA y zone;03)-centrptince with subdivision 20 1***Orekent8 contained in PL-14;and(Oa ishing a 21 botneowners agreement/'association.. 22 3. The approved"cluster development"required a substantial set aside for wildlife 23 habitat. 24 4. As implemented, the approved"cluster development" authorized two 4.3 acre parcels 25 and one 34.4 acre parcel. 26 Page I of 5—STIPULATIONS; SETTLEMENT OF APPEAL; ORDER UESCNI.JTES COUNTY I EGAL COUNSEL 1300 NW Wall Street,Suitc 205,Bend,OR 97701 541-388-6623•••Fax:541-617-4748 So MO=; red that"prior to the;WOO any lot twittlehlttitetrtent Shall be 2 0#0404 140011 estabits,bes an anenPlatolebelneovheThaftWatien tt•>t 3 an*inttheintintetesnee of common, n the parnan," a Goal 5 4 5 6 6. In 1987, without the recording of a homeowners association or agreement, Kuhn 7 purchased one of the 4.3 acre parcels,Tax Lot 200, and one-half interest in the 34.4 8 acre parcel, Tax Lot 300. 8 7. In 1987,prior to the Kuhn's purchase of Tax Lot 200 and one-half interest in Tax Lot 10 300, Deschutes County informed Kuhn that before a building permit could be issued 11 the deed restrictions identified in the CU 80-22 application had to be recorded. 12 8. In November 1988, Deschutes County approved the Kuhn's Landscape Management 13 Plan; one of the approval conditions required Kuhn to provide Deschutes County with 14 a copy of the Homeowners Maintenance agreement for Tax Lot 300. 15 40*$:fran Novernber i988:tom. rY Coup staff 16 that the recorded deed neshiWtone enctilnhtfttthe`: "duster 17 ene parcels satisfied the requitoement in CU 1104.2nod in the,Landscape 18 Arktomentebn.that Kuhn records,'. ..: wners Mai ce agreement agreement fr Tax 19 44; ) 20 21 10. Deschutes County granted Kuhn lot line adjustment approval, accepted.Kuhn's 22 Landscape Management Plan, and issued building permits for Kuhn's home without a "recorded . . . acceptable homeowners association or agreement . ." Kahn has 23 24 W applicable laws, is : ltt i - .2 .. 25 26 Page 2 of 5 —STIPULATIONS; SETTLEMENT OF APPEAL; ORDER 1)ESCIiUTES COUNTY LEGAL COUNSEL 1300 NW Wall Street,Suite 205,Bend,OR 97701 541-388-6623't*I'ax:541-617-4748 ..brouglat the 1t of and need lifirdheacowitait',, ' M ,., ex11t the 2 '0000 °Meacham.qty in Jaa$030199714011110114,0000,4am 3 $yfin. 4 12. Beginning in August 2000, Kuhn requested that Deschutes County record the final 5 partition plat map for the subject"cluster development." Deschutes County recorded 6 it in October 2004. 8 ILX:101tebruary 2010,the Deschutes 9 Board ofCotiaiWdaWrs held that the 9 thin the"cluster dev - "Tax Lot400001.044 and Tax Lot 200 10 "are not lawfully establishes until writtottao that 11 aotabliihes an acceptable homeownaasamiationoragSanaltamning the 12 OttOjeteittetee Q amnion property the' i ThitaNiaigintegtfireS a fttgn, 13 wed:agraelnellt" ?. t✓e 140M ell and als l 14 W b1e"by Deschutes,C004'.. 15 14. At all times relevant to this appeal, despite Judge Adler's 2002 ruling requiring a 16 homeowners association agreement, and despite multiple attempts by both Kuhn and 17 Dowell,no homeowners maintenance agreement covering Tax Lot 300, has been. 18 agreed to or recorded. 19 if44#04104410es 2002 urt order retiSadtherDowellshaeadat into a Homeowners 20 Agie*Osnt with Kuhn;the court 21 22 16. For tax year 2013-2014 (at issue in this proceeding)the Assessor imposed the 23 following values for Kuhn's one-half interest in Tax Lot 300: (a) RMV: $82,420; (b) 24 MA.V: $44,330; (c)TAV: $44,330. These values were sustained by BOPTA in 25 Petition No. 13-153. 26 Page 3 of 5 ---STIPULATIONS; SETTLEMENT OF APPEAL; ORDER DESCHUTES COUNTY LEGAL COUNSEL 1300 NW Wall Street,Suite 205,Bend,OR 97701 541-388-6623***Fax:541-617-4748 17. At the time of the BOPTA proceeding in Petition No. 13-153,the Assessor provided a 2 written summary (dated February 19, 2014)that included the following: 3 "PROPERTY RESTRICTIONS: The restrictions stated by the petitioner can be 4 remedied at any time by recording a Homeowners Association Agreement. The 5 restrictions are not an effect of real estate market factors or conditions. The 6 restrictions are an effect of the parties involved negligence to record a Homeowners 7 Association Agreement. Any disagreements between the parties involved are their 8 responsibility to resolve." 9 0 104: S of the word * 11 19. Since the BOPTA proceeding,and following an extensive inspection of Tax Lot 300, 12 the Assessor has agreed to reduce the 2013-2014 values for Kuhn's one-half interest 13 in Tax Lot 300 to: (a)RMV: $35,000; (b)MAV: $44,330; (c)TAV: $35,000. This 14 reduction does account Adler's unt for the requirement in CU 80-22 and Judge Adler s court. g 15 order requiring that a joint homeowners agreement be recorded. 16 20. At no time since creation of Tax Lot 300 have any of the involved parties 17 (Barton(alone),Barton/Burchett, Burchett/Kuhn, or Kuhn/Dowell)recorded a signed 18 Homeowners Agreement. 19 B. Settlement Stipulation 20 21 1. The present tax appeal (TC-MD 140068N)is fully resolved,compromised and settled 22 as provided herein. 23 2. The parties request that the Court dismiss the appeal. 24 3. Each party to bear its own costs and fees(including attorney fees). 25 26 Page 4 of 5—STIPULATIONS; SETTLEMENT OF APPEAL; ORDER DESCHUTES COUNTY LEGAL COUNSEL 1300 NW Wall Street,Suite 205,Bend,OR 97701 541-388-6623•••Fax 541-617-4748 1 2 3 C. Agreement 4 'l'HE STIPULATIONS contained herein are understood and agreed to. 5 Date: 2° 4 Q$,20 3 / .:.. r. L ..,. 6 William John Kuhn 7 t o2C��l / 8 Date: n � g Martha Leigh Kuhn 10 ********************************************* 11 -00e700.111111" -J.d11111.. Date: $(i9/ll _. _.,.a_Aiki P r./ 13 S 01 L.• _ ss ,ss( • 14 15 D. Order 16 1. ITS IS ORDERED that the appeal is dismissed upon settlement of the parties and 17 pursuant to the terms of the stipulations contained herein. 18 19 2. Each party is to bear its own costs and fees (including attorney fees). 20 DATED this day of August, 2014. 21 22 ALLISON R. BOOMER MAGISTRATE 23 24 25 26 Page 5 of 5—STIPULATIONS; SETTLEMENT OF APPEAL; ORDER DESCHUTES COUNTY LEGAL COUNSEL 1300 NW Wall Street,Suite 205,Bend,OR 97701 541-388-6623*•*Fax 541-617-4748 „..0-ii I A k 6 MAGISTRATE DIVISION � OREGON TAX COURT rO�:.& ._., 'rl:” I e Presiding Magistrate: Jill A. Tanner Magistrates: Daniel K.Robinson riei \,r,9r = Allison R. Boomer a August 25,2014 Andrew Mathers Andrew S Mathers PC 250 NW Franklin Ave Ste 401 Bend OR 97701 Deschutes County Legal Counsel David Doyle 1300 NW Wall St#205 Bend OR 97701 RE: William John Kuhn and Martha Leigh Kuhn v. Deschutes County Assessor 1 TC-MD 140068N Dear Parties: Enclosed is a copy of the Judgment of Dismissal signed by Magistrate Allison R. Boomer on August 25,2014. The case has now been closed and all scheduled proceedings canceled. If you submitted exhibits to the court and would like them returned to you,you must contact the court in writing within 30 days from the date of this letter, or they will be destroyed. If you have any questions,please call the court at(503)986-5650. Thank you for your attention to this matter. Enclosure 1163 State Street,Salem,OR 97301-2563 http:/Icourts.oregon.gov/tax Phone:503.986.5650 Fax:503.986.4507 IN THE OREGON TAX COURT 1 y AUG Ail g: 7 MAGISTRATE DIVISION Property Tax WILLIAM JOHN KUHN ) and MARTHA LEIGH KUHN, ) ) Plaintiffs, ) TC-MD 140068N ) v. ) ) DESCHUTES COUNTY ASSESSOR, ) ) Defendant. ) JUDGMENT OF DISMISSAL This matter is before the court on the parties' Stipulations and Settlement of Appeal (stipulation) filed on August 21,2014. In the stipulation,the parties stated that this appeal"is fully resolved, compromised and settled* * * [and][t]he parties request that the Court dismiss the appeal." (Stip at 4.) The parties agreed that neither shall be entitled to costs and fees. (Id.) After considering the request,the court finds the case should be dismissed. Now,therefore, IT IS ADJUDGED that Plaintiffs' appeal is dismissed. IT IS FURTHER ADJUDGED that,by agreement of the parties,neither party shall be awarded costs and disbursements. Dated this `L5 day of August 2014. ‘v.,7' igt,,z,?, t_ ALLISON R. BOOMER MAGISTRATE Judgments from the Magistrate Division are final and may not be appealed. ORS 305.501. JUDGMENT OF DISMISSAL TC-MD 140068N 1 89-24952 19 3 - 0 0 7 5 contract - Deed This agreement made and entered into this 3rd day of August 1989, by and between MAR: BURCHETT, hereinafter "seller" and JIFF DOWELL and PATTI DOtIELL, hereinafter "purchaser", witnesseth that: (I) "Seller" hereby agrees to sell to "purchaser" and "purchaser" agrees to purchase and pay for certain real property located in Deschutes County, Oregon and more particularly described as follows, to wit: A parcel of land located in the North 1/2 of Section 19, T.16 S., R. 11 E., W.M., Deschutes County, Oregon which is described as follows: Commencing at the Northeast corner of said Section 19; thence N 89°11'47" W 1208.23' ; thence S 00°48'13" W 200.00 feet to the TRITE POINT OF BEGINNING; thence S 89°11'47" E 946.35' to the westerly right-of-way line of the Sisemore County Road; thence along said right of way line on a 153.80' radius curve right 77.43', the long chord of which bears S 29°07'55" w 76.62' ; thence along said right of way line S 43°33'17" 117.24' ; thence along said right of way line on a 194.18' radius curve right 81.01', the long chord of which bears S 55°30'22" N 80.42' ; thence N 89°11'47" W 826.06' ; thence N 00°48'13" E 200.00'; thence S 89°11'47" E 61.29' to the TRUE POINT OF BEGINNING containing 34.5 acres more or less. (2) •A parcel of land located in Section 19, T.16 S., R.11 E., W.M.,Deschutes County, Oregon and described as follows: Beginning at the Northeast corner of said Section 19; thence N 89°11'47" W 306..60 feet.to the Westerly right- of-way line of Sisemore County Road and the true point of beginning; thence along said right-of-way line S 23°56'02" E, 66.67 feet; thence along said right-of-- way line on a 233. 88 foot radius curve r ight 114.47 feet, the long chord Of which bears S. 09°54'46" E, 113. 33 feet; thence along said r ight-of -way line on a 153.80 foot radius curve.right 28.46 feet; the long chord of which bears S 09°-24'32" W 28.42 feet; thence N 89°11'47" W, 946. 35 feet; thence N 00°48'13" E, 200. 00 feet; thence S.89°11.'47" B, 901.63 feet to the TRUE POINT OF BEGINNING, containing 4.3 acres uore'or less net. IX,. The total purchase price of forty-two thousand dollars ($42,000) 'is to be paid by. "purchaser" to "seller" in a manner more particularly described as follows: (1) "PUrchaser" pays twenty-five thousand dollars ($25,000) upon acceptance of this agreement, (2) "Purchaser" paye remaining balance seventeen thousand dollars ($17,000) over45' .years at a fixed interest rate of 9.5% with option. to recalculate mortgage whenever * lump sum payment of five thousand dollars ($5,000) or more is made. There are no penalties. for paying off mortgage early and early payment is encouraged by both parties. III. Conveyence of the real property by "seller" to the "purchaser" shall be ma. e by warranty deed conveying marketable title in and to the subject property subject to all. easements' and incumbrances of record upon final payment of subject property. lv. "Purchaser" shall be entitled to possession of said property upon acceptance of this .agreement. V, All, ad'va,lorem real property taxes and all governmental or other assessments levied egeinst ,said property for the current tam year shall be divided equally between "seller" and "purchaser" (July 1st was approximate date of verbal agreement) . "Purchaser" shall pay recording fees for recording the deed. "Seller" shall pay the recording fees for release of deed of trust. 1 ) 3 .. 0076 I. "Purchaser" agrees to land use restrictions described as follows: 1. Owners .or family members may not operate dirt bikes on the property. 2. All telephone and electric lines must be underground. '3. All fencing must be wood. Top rail may not be higher than 42", bottom rail may not be lower that 1$" . No barbed wire or straight wire .may be used for fencing. 4. Owner or family members may not take target practice with rifle or handgun on. property. 5. This contract carries with it the strongest encouragement to demonstrate sensitivity to living within the boundaries of the Tumalo Winter Deer Range, and .urTes the owners to adjust their lifestyle accordingly. VI1. This agreement is the entire, final and complete agreement of the parties ,to the sale and purchase of said.property, and supersedes and replaces all prior existing •writte.n: and.oraal agreements between both patties:. VIII.' °Purchaser.° •accePts' said property in its present condition, as is," inc7 ud.rg latent defects, wIthout. .ar±y representations or warranties, expressed or implied, 'Purchaser'.'. agrees that "purchaser" shall ascertain, from sources other thani "seller", the applicable zenin x buildin `housing azd other regulatory ordirences and laws and that "purchaser" accepts 'saic p perty with full awarene ss of these. oxd raances and aws as they may affect the pre,ser't fuse or any a.ntended future use of said-property, and "seller" has, made .no repre•seatatiens :with respect to such laws 'and ordinances. - This instrument'.does :not guarantee that a*y particular use may be made of the„ property described this i.rst�iaent: "P.urchaser" should check with the appropriate county planning.depa tnient- ,to verily approtied ,uses. ' ':_► ,# _ 193 " .007.? /11 Y Mark 13urchett ("seller") date N ' -. Public fit;orr the "seller" CFr crA1 SELL • JOYCE A STRAN wort fd9L1C Si-RT! of ILLINOIS MY CO M. EXP. AUG. 29,1950 : *th. ‘1111N1 Jeff '`well ( "pure -ser") da a \ Patti Dowell . ("purchaser") Cdurljtegl State af'.New York). County of Monroe) SS. : On. this 7th day of September , 1989 , before me personally appeared Jeff f-wei 1 and pat'ti Dowell.' to me known and known to me to be the. individual (s); described in and who executed the within instrument, and 'he/they t4,./4p _he/they executed the -same. date a }: r ls1i For Memor .i ' +. COhus�issio�i Expires. X711 :-- ote: Please send all subsequent tax documents. to: Jeff Dowell 422 Lakeshore Drive Hilton NY 1446$' .. 19890803 Dowell Contract - Deed Recorded 19890928 with notes Pg la 193 - 0075 89-24952 Contract - Deed `Phis agreement made and entered into this 3rd day of August 1989, by and between MARK BURCHETT, hereinafter "seller" and JEFF DOWELL and PATTI. DOWELL, hereinafter "purchaser", witnesseth that: (I) "Seller" hereby agrees to sell to "purchaser" and "purchaser" agrees to purchase and pay for certain real property located in Deschutes county, Oregon and more particularly described as follows, to wit: A parcel of land located in the North 1/2 of Section 19, T.16 S. , R. 11 E. , W.M. , Deschutes County, Oregon which is described as follows: The following is what the Dowells are describing to be the r434.5 acres of land and that it is owned entirely by the Dowells. The following is the Dowell created legal description with all the 'thence's lined up so they are easier to read. Commencing at the Northeast corner of said Section 19; thence N 89°11'47" W 1208.23' ; thence S 00°48'13" W 200.00 feet to the TRUE POINT OF BEGINNING; thence S 89°11'47" E 946.35' to the Westerly right-of-way line of the Sisemore County Road; thence along said right of way line on a 153.80' radius curve right 77.43' , the long chord of which bears S 29°07'55" W 76.62' ; thence along said right of way line S 43°33'17" 117.24' ; thence along said right of way line on a 194.18' radius curve right 81.01' , the long chord of which bears S 55°30'22" N 80.42' ; thence N 89°11'47" W 826.06' ; thence N 00°48'13" E 200.00' ; thence S 89°11'47" E 61.29' to the TRUE POINT OF BEGINNING containing 34.5 acres more or less. If you follow this on a partition plat map or on the tax map... The description begins at the 4 section corner of Sections 18, 17, 19, and 20. Measuring almost due West 1208.23 feet. (to the NW corner of the Dowell TL100) Then almost due South 200.00 feet to the TRUE POINT OF BEGINNING. Then we go almost due east 946.35 feet to get back to Sisemore Road. Then we go South along the arch of the road, 1st 77.43 feet, then strait 117.24 feet, then we take the arch of the road again for another 81.01' then we go West 826.06' ; then we go North 200.00' ; and then we go East again for 61.29' back to the TRUE POINT OF BEGINNING and this contains 34.5 acres more or less. In fact it describes 2/3's of the KUHN's parcel, and it describes 4.3 acres of land. There is no mention of only 1/2 interest in what is supposed to be JOINT ownership. 19890803 bowel) Contract - Deed Recorded 19890928 with notes Pg lb The following is what the Dowells are describing to be the 4.3 acre building lot. The following is the Dowell created legal description with all the 'thence's lined up so they are easier to read. (2) A parcel of land located in Section 19, 7.16 S. , R.11 E., W.M. ,Deschutes County, Oregon and described as follows: Beginning at the Northeast corner of said Section 19; thence N 89°11'47" W 306.60 feet to the Westerly right- of-way line of Sisemore County Road and the true point of beginning; thence along said right-of-way line S 23°56'02" 5, 66.67 feet; thence along said right-of-way line on a 233.88 foot radius curve right 114.47 feet, the long chord of which bears S 09°54'46" E, 113.33 feet; thence along said right-of-way line on a 153.80 foot radius curve right 28.46 feet; the long chord of which bears S 09°24 '32" W 28.42 feet; thence N 89'11'47" W, 946.35 feet; thence N 00°48'13" E, 200.00 feet; thence S 89°11'47" E, 901.63 feet to the TRUE POINT OF BEGINNING, containing 4.3 acres more or less net. NOTE: Price is for 2 parcels [ (I) 34.5 acres more or less; AND (2) 4.3 acres ] II. The total purchase price of forty-two thousand dollars ($42, 000) is to be paid by "purchaser" to "seller" in a manner more particularly described as follows: (1 ) "Purchaser" pays twenty-five thousand dollars ($25,000) upon acceptance of this agreement, (2) "Purchaser" pays remaining balance seventeen thousand dollars ($1'7,000) over 15 years at a fixed interest rate of 9.5%, with option to recalculate mortgage whenever a lump sum payment of five thousand dollars ($5,000) or more is made. There are no penalties for paying off mortgage early and early payment is encouraged by both parties. How much of the $42,000 is for the 4.3 acres? How much for the 34.5 acres more or less?" III. Conveyence of the real property by "seller" to the "purchaser" shall be made by warranty deed conveying marketable title in and to the subject property subject to all easements and incumbrances of record upon final payment of subject property. IV. "Purchaser" shall be entitled to possession of said property upon acceptance of this agreement. V. All ad valorem real property taxes and all governmental or other assessments levied against said property for the current tax year shall be divided equally between "seller" and "purchaser" (July 1st was approximate date of verbal agreement) . "Purchaser" shall pay recording fees for recording the deed. "Seller" shall pay the recording fees for release of deed of trust. NOTE: the Dowells had NOT YET met the Kuhns. The Dowells introduced themselves to the Kuhns on the long July 4th weekend of 1989. This contract was drawn up by the Dowells and claims ownership of a large portion of the Kuhn property, as well as full ownership of the joint parcel. Also note: the Dowells, through this 'Contract - Deed' are attempting to remove the 'No- Dog' deed restriction which was recorded for the cluster on 20 July 1987. 19890803 Dowell Contract - Deed Recorded 19890928 with notes Pg 2 1 9 3 " 0 0 7 6 VI. "Purchaser" agrees to land use restrictions described as follows: 1. Owners or family members may not operate dirt bikes on the property. 2. All telephone and electric lines must be underground. 3. All fencing must be Wood. Top rail may not be higher than 42", bottom rail may not be lower that 18" . No barbed wire or straight wire may be used for fencing. 4. Owner or family members may not take target practice with rifle or handgun on property. 5. This contract carries with it the strongest encouragement to I demonstrate sensitivity to living within the boundaries of the Tumalo Winter Deer Range, and urges the owners to adjust their lifestyle accordingly. VII. This agreement is the entire, final and complete agreement of the parties to the sale and purchase of said property, and supersedes and replaces all prior existing written and oral agreements between both parties. VIII. "Purchaser" accepts said property in its present condition, as is, including latent defects, without any representations or warranties, expressed or implied. "Purchaser" agrees that "purchaser" shall ascertain, from sources other than "seller", the applicable zoning, building, housing and other regulatory ordinances and laws and that "purchaser" accepts said property with full awareness of these ordinances and laws as they may affect the present use or any intended future use of said property, apd "seller" has made no representations ' with respect to such laws and ordinances. This instrument does not guarantee that any particular use may be made of the property described in this instrument. "Purchaser" should check with the appropriate county planning department to verify approved uses. Note the missing number one restriction shown below from the recorded deed restrictions. Covenants and Restrictions. r1 . "k * . , 00017 MObart teary iiiit $rre 444 r" ,V#040040 icyr� t Ail ,000% t on ireu 4*;, 00 iiirs4. Dogs allowed to " t1 d#. .t‘nbttnt. 2. Owner:, or family members may not operate "dirt bikes" on the property. 3. All telephone and electric lines must be underground. 4. All fencing must be wood. Top rail may not be higher than 42"; bottom rail may not be lower than 18". No barbed wire or straight wire may be used for fencing. 5. Owners or family members may not take "target" practice with rifle or hand gun on property_ 6.. This contract carries with it the strongest encouragerr.ent to demonstrate sensitivity to living within the boundaries of the Tumalo Winter Deer Range, and urges the owners to adjust their life style accordingly. 19890803 Dowell descriptions of C) Parcel (I) and Parcel (2) color../P 14) 6 -ii.OTT. '""'f ^y tU 1t 00.01 I _ _ m b a C?'et n 21 u. 11 a g Q tLei C..1.3 CD 7 I N.) i o � CM ivy" ` t 4D n.� �``' �i"" ' 0 .P<76, 1 _ fli • i Q v - •• ). " i s. . 1. C b - 8 1 e i 4::.. r. m ia" ' r« CO n a w v 0. 9 mcs % it 3'T to t' 1 J -j PO g'. E 2' 1 \ "r-__.) 41a. i..r° • b \ lit 00 ,. . \ A g' c) I q 19890803 Dowell descriptions of Parcel (I) and Parcel (2) calor.JP6 b V .....".' ° I.M.I . 4.11. 1111110.01•010 4110....4‘1.1=■PP •■•11111111.. „ ' illIllIll II 20150227 email from Dowell re no dogs Original Message From: Jefft Outlook To: william@riskfactor.com ;windriverdesign ariskfactor.com Cc: 'Pat Dowell' Sent: Friday, February 27,2015 2:55 PM Subject: Dowell Kuhn Meeting? Bill and Leigh, Pat and I were sorry to see the County's mediation efforts break down. We believe we made some very significant concessions(giving you the joint property,agreeing to'no dogs'on any of the 3 parcels, etc),in exchange for simplifying the paperwork to all but eliminate the chances for continued disagreements going forward, but apparently it wasn't enough. That is unfortunate. It's our belief that it's going to take both parties conceding more than either would like to get this settled once and for all, and move on. To that end,you have said repeatedly that one of your'requirements'was to meet with Pat and I directly,without attorneys present. Though we have been resistant to meeting until the basic framework of an agreement is already in place,we have given it a lot of thought and would like to see if such a meeting would be productive in reaching resolution. We are willing to meet with you at a neutral location. Perhaps we could meet at your attorney's office in a private conference room? The best timing for us would be any time after mid-March. Please let us know if this would be acceptable, and if so,what times and dates would work best for you. Thank you. Jeff Dowell Please note: Highlights and bold added The Dowells didn't have the "no-dog" issue to give us as a concession, since the Dowells never had the right to have dogs in the first place. Also, since the third parcel is actually an obligation both physical— having to deal with weeds and fire fuels reduction, and financial --- having to pay not just the taxes but also for manpower to do the work, what exactly is it the Dowells are conceding? Ownership of this land is an obligation that the Dowells have never lifted a finger to help with. 20150227 email from Dowell re no dogs.doc page 1 2015 02 27 JIM SPITZ, ACF FORESTRY CONSULTANT 60045 River Bluff Trail Bend, Oregon 97702 541/389-5978 July 10,2014 William Kuhn P.O. Box 5996 Bend, Oregon 97708-5996 Dear Mr. Kuhn: This letter responds to your request that I evaluate potential economic uses and provide an opinion of value for Tax Lot 300, T16S, R 1 1E, WM. I inspected this parcel with you on May 15, 2014. This letter summarizes the results of my inspection, property assessment, and opinion of value for this property on your requested date of value of January 1, 2013. Ownership and Use Regulations Tax Lot 300 is a separate, legal lot of record. It was created in 1980 along with Tax Lots 100 and 200,as part of a cluster development. Tax lots 100 (currently owned by Jeff and Patti Dowell) and 200 (currently owned by William and Leigh Kuhn) were created as buildable lots and now have existing structures. Tax Lot 300 was created to serve as undeveloped wildlife habitat with undivided interests by the owners of Tax Lots 100 and 200. Jeff and Patti Dowell and William and Leigh Kuhn currently own Tax Lot 300 with undivided and equal interests. Tax Lot 300 was created with numerous land use restrictions,which remain in place. It was and is in a Forest Use zone (F-3 originally, F-2 now) and is included within both WA Wildlife Area Combining (deer winter range) and LM Landscape Management Combining overlays. The owners of Tax Lot 300 are required to develop and obtain Deschutes County approval for a homeowners association or other agreement to control management of Tax Lot 300. Guidance on requirements for managing Tax Lot 300 is provided by findings and decisions from a 1980 Deschutes County land-use public hearing (file number CU-80-22). This guidance is derived from the Deschutes County Comprehensive Plan and other land use regulations, which were in place when Tax Lot 300 was created. Goals cited from the wildlife overlay were: 1. To preserve and protect existing fish and wildlife area. 2. To maintain all species at optimum levels to prevent serious depletion of indigenous species. 3. To develop and manage the lands and waters of this country in a manner that will enhance, where possible,the production and public enjoyment of wildlife. More specific guidance for management of this property is provided by a staff report in 2013 (file number DR-13-16). In this report the staff's opinion is that Tax Lot 300: 1. Should be left in a natural state. 2. Farm use would be inconsistent with the intent of the 1980 code. 3. Structures,regardless of their use are prohibited. Member of the Association of Consulting Foresters 4. Irrigation is prohibited. 5. No new dogs is an important part of the agreement, and 6. All fencing must be wood with the top rail no higher than 42 inches and the bottom rail no lower than 18 inches. Deschutes County has blocked issuance of building permits and sale of Tax Lots 100, 200, and. 300, until an approved management agreement is in place. To date a management agreement proposed by the Dowell's and efforts to create a conservation easement or a Wildlife Habitat Conservation and Management Program Plan by the Kuhn's have not achieved agreement between the property owners nor declaratory acceptance by Deschutes County. Thus, an approved management agreement for Tax Lot 300 still does not exist. Physical Characteristics Tax Lot 300 contains 33.21 acres,per the Deschutes County Assessor's records. This property is located within the Cascade Mountains precipitation shadow and receives only 10 to 12 inches of precipitation annually. Sixteen inches are usually considered to be minimum for commercial timber production. Soil conditions on the property are described in the USDA Natural Resources Conservation Service National Soil Survey and are summarized in the map and table on pages 6 and 7 of this report. These are very rocky, porous soils with low nutrition, water storage capacity, and productivity in their natural condition. My inspection found only natural levels of soil erosion on this property currently. There are no streams or water bodies on this property. Physical and legal access to the soil complex 34C portion of Tax Lot 300 is excellent via Sisemore Road, an all-season, gravel, mainline road. Road access to soil type 28A and much of complex 34C would require obtaining easements over adjoining private or BLM. lands or difficult and expensive road construction from the complex 34C area. Vegetation and Productivity This property supports a western juniper/sagebrush-bitterbrush/Idaho fescue plant community (Photos on pages 8 through 10). Pecks milkvetch is the most unique plant species present on this property. Pecks milkvetch is a prostrate perennial with red-colored stems and cream to pale yellow colored,butterfly-shaped flowers. Its Federal status is species of concern and its Oregon status is threatened. Vegetation on this property is declining in health,primarily as a result of fire exclusion and lack of compensating management activities. Pre-white settlement plant communities, like this, experienced light to moderate intensity wildfires every 10 to 30 years. These fires limited juniper and brush competition and favored native bunchgrasses and other forage species. As a result of decades of fire exclusion, vegetation on this parcel is shifting toward juniper and decadent brush domination. Thermal and hiding cover for mule deer are increasing at the expense of forage. This shift has gone beyond the optimal balance between cover and food for deer and for most native wildlife species. Invasion by non-native plants,especially cheat grass, near roads and other areas of human activity,is increasing and further damaging the composition and productivity of this native plant community. 2 According to the USDA Natural Resources Conservation Service soil survey this property is capable of producing approximately 850 air-dried pounds per acre per year of biomass. Currently,juniper and unusable sagebrush account for approximately 650 pounds per acre per year of biomass growth. Browse accounts for approximately 150 pounds per acre per year. Ponderosa pine accounts for 50 pounds or less per acre per year. Juniper is the most common and an increasing tree species on this property. It is not usually considered to be a commercial species, however, it does have low-value markets as firewood, fence posts, and craft woods. Realizable (net of foliage,limbs,and tops) and sustainable juniper harvest on this property is approximately one-fifth of a cord per acre per year. Sagebrush,bitterbrush, and Idaho fescue are the main sources of forage on this property. Range and forage conditions are fair and declining, due mostly to increasing competition from juniper and aging sagebrush. At most half of the 150 pounds per acre per year of forage production can be utilized for grazing in order to carry healthy, perennial plants into subsequent growing seasons. Thus, the sustainable carrying capacity of this property is approximately 3 animal unit months (AUM's). This would feed one cow and calf or 5 sheep for 3 months. Alternatively,it is capable of feeding approximately four wintering deer(December through April). Ponderosa pine is the only native, commercial tree species capable of growing on this property. There are approximately 30 to 40 ponderosa pine trees on this property and none of them are of sufficient size and quality to be economically harvestable. These trees range from approximately 50 to 180 years of age. They occur on deeper pockets of soil and especially in locations with north-facing slopes and topographic shade. These trees have survived near the minimum moisture limit for ponderosa pine. Mortality is high and undesirable growth characteristics, including multiple tops, sweep, and spiral grain are common defects. Few of these trees are capable of reaching merchantable size, even if competing vegetation is removed, because they outgrow their available water supply as they approach merchantable size. During my inspection. of this property, I found no stumps, logs, tops or other indications that commercial logging has ever occurred here. The Oregon Department of Forestry considers 20 cubic feet per acre per year to be the minimum threshold for commercial timber production. Potential growth here is 2 to 3 cubic feet per acre per year, under normal condition. Properties,like this,are not considered to be commercial forestland under Oregon Forest Practices Regulations and reforestation and other commercial forest practices requirements do not apply to sub-marginal sites,like this. Management Costs and Potential Income Net income potential from this property is negative. Private land grazing rights sell for approximately $10 per AUM. The 3 AUM's per year available here are not worth using, considering costs. Juniper firewood stumpage sells for approximately$5/cord on properties with good access. Access to juniper here is difficult, except for areas close to Sisemore Road and the primitive road near the southern boundary of the parcel. A firewood cutter might be willing to remove juniper with an all-terrain vehicle (ATV) within 500 feet of these roads for no net cost. This could reduce the excessive number of juniper on 40% of the property for administrative costs only. Currently and for decades less than one log truck load of ponderosa pine logs will be available for harvest from this property. Such a harvest will not cover logging and haul costs to the nearest mill (now Interfor Pacific in Gilchrist). 3 Management costs for meeting wildlife habitat requirements on this property are speculative without an approved management plan. Improving and maintaining winter deer range would be the primary goal. This would entail maintaining a reasonable amount of hiding and thermal cover, increasing the quantity and quality of winter forage (brush and early grasses and forbs), and reducing fire hazard to protect the improved habitat and nearby properties. Most property owners would select a minimum cost management program. Thus, relatively low-cost, high- benefit activities, like juniper removal and spot mowing of decadent brush would be favored. Piling and burning, lopping and scattering, and in safe situations broadcast burning would also be used to modify vegetation and to reduce fuel hazards. Use of mechanized equipment on this property is limited to approximately half of the area, due to rocky surface conditions and steep, erodible slopes. ATV's and small farm tractors can be used for skidding, piling, mowing, and fireline construction on easy ground. However much of the area will need to be treated with gentler, but more expensive, hand labor (chainsaws, loppers, shovels, etcetera). Diversity is desirable, so treatment intensity should be varied and not all acres need to be treated. I estimate that approximately $15,000 in treatments would be needed, during the first few years to bring this property into good and reasonably fire safe winter range conditions and then approximately $1,000 per year would be required for monitoring and maintaining these habitat conditions. This treatment would increase deer winter range carrying capacity by 4 to 6 deer. The net present value of these costs is approximately $30,000 at a 6%real discount rate. On balance, I believe that Tax Lot 300 currently has no net income potential. Adoption of the required habitat management plan would result in acceptance of the equivalent of a one-time, $30,000 negative income by the undivided owners. This cost would be largely offset by relief from permitting and sale restrictions on Tax Lots 100, 200, and 300. Highest and Best Use Tax Lot 300 is zoned for forestry, landscape, and wildlife uses and developed uses of this property are prohibited. Therefore, 1 conclude that maintenance of this property in a natural forested condition is its highest and best use, even though this use would result in no or a negative income for this parcel. Opinion of Value and Certification A full appraisal of Tax Lot 300 as a separate parcel would be complex and expensive, due to the property's legal and cost/benefit ties to Tax Lots 100 and 200; unique land-use requirements; undivided ownership; and the lack of comparable sales. The unfulfilled requirement for an approved habitat management plan for Tax Lot 300 increases appraisal difficulty. The cost to complete a full appraisal for Tax Lot 300 would be difficult to justify, given the parcel's low economic and market value. Therefore, I am only offering some market observations and opinions of value here, based upon assuming that forest management (open-space) is its highest and best use and upon my experience with appraising forested properties with little or no income potential. In my experience Eastern Oregon "forestland" properties, which have little or no income potential and little or no higher and better use (HBU)potential, sell for approximately $100 per acre. Isolated "scablands " are typical examples of these properties. Scablands contain very shallow, rocky soils. They are usually capable of growing a few, isolated trees and usually do 4 not produce enough forage to make livestock grazing worthwhile. These properties usually have very little HBU potential, when they are in isolated locations. Forested in-holdings located deep within Federal wilderness areas are another example of this type of property. Federal regulations and lack of access prevent most economic uses of these parcels. The motivation for owning properties with no significant economic return is often described as"pride of ownership." In my experience minority interests in properties with undivided ownership usually sell at a discount of 40 to 60%. In this situation minority owners have no say in management of the property, unless they can combine into a majority vote. A 50/50 ownership situation, as exists on. Tax Lot 300, is especially difficult. Either party can block action by disagreeing. In my opinion the market value of Tax Lot 300 as a separate property without an approved management plan was $3,000 on January 1, 2013. This is based upon a land value of$225/acre (less isolated than typical no-income/HBU properties and good mountain views from a few locations) and a 60% discount for ownership and management plan difficulties (more difficult than typical). The current situation could change in the future and this might affect the market value of Tax Lots 100, 200, and 300. Agreement on a management plan for Tax Lot 300 is possible. Some or all ownership interests in Tax Lot 300 might be sold or donated to a third party. Regulations affecting these properties might be changed. The fact that 34 years have passed without development of an approved management plan for Tax Lot 300 or finding alternate solutions shows difficulties with all of these possibilities and impasse does delay significant costs and work for the landowners. Based upon this analysis, I conclude that Tax Lot 300 had a market value of$3,000 ($1,500 attributable to each family) on January 1, 2013. 1 hereby certify that: 1. I have no undisclosed interest in this property,present or contemplated. 2. My employment and payment are not contingent upon the value found. 3. I personally and thoroughly inspected this property. 4. According to my knowledge, everything contained in this report is true, and no important facts have been withheld or overlooked. 5. No one provided significant professional assistance to me in developing this opinion of value or report. 6. In my opinion the market value of Tax Lot 300 was $3,000 on January 1, 2013. 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''' r=i ,■ c.J © .i. c.) 42-■ E d c,) Cr ' 1*- ',,,,,•, ' „er** ,A,.,. 1/411 — ', 's ,,i t. ,,,4*& ' " ' * 4„ '''', rre,ft. ' , .4t,'• 0“ ' 0 CZ C1.1 : . . ''' • '—'1',.,:',..i.`:4,' 11 '' ''' ft ' " . ' ' ' ' '' ''' - Po '''''',:je"-,*‘ A,,,:i . la ' ' 440', ''• - cz con c '' : 1—, *, .,L t,,„'',.", ;.'itt ,.'„.•,r24 . ,,, cd -1Z 4„,(41i,',*07 444..14111.4' , f.4 0 • ' ''. ',,,,jr i, , .• .. = ..,,....r.. i,,,is...,, , : ,. , , „44-■,,,w, ' .0. , 1*,4' • $.f,,■4 • • t *P c. ' ita"- - 4.... '''',,,, 4 ft,4,' ' ,,,,,,,, , .v.) ■I.M5 CZ .= Professional Qualifications of Jim Spitz, ACF 60045 River Bluff Trail, Bend, OR 97702 541/389-5978—jspitz @bendcable.com Education Graduate, Tropical Dendrology Course, Centro Cientifico Tropical, Costa Rica, 1995. Graduate, Forest Engineering Institute, Oregon State University, 1974. Master of Business Administration, Forest Industries Program, U of Oregon, 1972. 7 Bachelor of Science,Forest Management, Oregon State University, 1967. Work Experience Forest Industries Consultant, 1979 to Present Now assisting clients with the acquisition of and management planning for 180,000 acres of timberland in Eastern Oregon. Now helping with revising the valuation chapter in the classic textbook, Forest Management. Served as an expert witness on forestry and wood product matters in Federal Court of Claims cases,which resulted in settlement payments of over$300 million to my clients. Appraised over 1,000,000 acres of timber and timberland in Oregon, Washington, and California for purchases, sales, exchanges, divorce settlements, estate settlements, insurance settlements, lawsuits, foreclosures, and criminal cases, including: • Appraised stumpage on the 125,000-acre Crown Pacific/US Forest Service Land Exchange in Central Oregon, 1996-98. • Appraised stumpage on 3,000 acres of Bureau of Land Management Lands in the Cashe Creek Exchange in Northern California, 1997 & 98. • Appraised stumpage on approximately 23,000 acres of Bureau of Land Management Lands in the Orwick Exchange in Northern California, 1996 & 97. • Appraised stumpage on the 35,000-acre Cedar River Watershed Land Exchange (City of Seattle & U.S. Forest Service), including prescribing management for late successional ecosystems on selected areas, as required in the enabling legislation, 1995. • Appraised stumpage on the 10,500-acre Oregon holdings of Plum Creek Timber Company as a basis for their sale, 1989. • Appraised stumpage on the 15,000-acre Gilchrist Timber Company/U.S. Forest Service Land.Exchange, 1987. • Appraised stumpage on the 4,500-acre Galesville Reservoir site for purchase and condemnation, 1983. • Provided domestic and export sort timber cruises and stumpage appraisals for over 100 smaller projects. 11 Completed numerous appraisal reviews for compliance with USPAP and Federal requirements. Served on a stumpage appraisal committee, which determined stumpage transfer prices for over 200 million board feet of timber in Northeastern Washington. Helped two logging companies and one timber purchaser monitor their costs, bid for logging and stumpage contracts, and complete thinning for forest health and fuels abatement in Central Oregon during the late 1980's and early 1990's. Advised numerous investors and financial institutions on potential investments in timberland, forest product manufacturing facilities, and forest products wholesaling and retailing companies. Served as the primary, independent advisor to the CEO and Tribal Council of the Confederated Tribes of Warm Springs from 1988 to 2010 on management of their 400,000-acre forest and 45 to 100 million board feet per year sawmilling, plywood manufacturing, cutstock manufacturing, chipping, and log merchandizing operations, including: • Monitored day-to-day forest management operations and provided ongoing recommendations for procedural improvements. • Helped analyze and plan for tribal assumption of control and redirection of their forest management program. • Participated in the design and implementation of a turn-around of the wood products operations, which greatly improved profitability in less than 1 year. • Participated in the development of a 10-year, integrated, forest management plan and the associated environmental assessment and timber harvest schedule. • Recommended and helped implement new timber harvest priorities, utilization standards, marketing methods, and appraisal systems, which greatly increased stumpage revenue. • Coordinated analysis of the plywood manufacturing and large-log sawmilling operations and then the design of a new 50 mmbf per year, medium-log sawmill, which replaced them. • Developed analyses of millwork, wood chip, and sort yard opportunities. • Helped identify opportunities and assisted with timberland acquisitions. Developed a marketing guide for value-added wood products in the Southwestern U.S., which identified local market opportunities, entry points, channels of distribution, and key contacts for potential suppliers. Helped design and coordinated work on a $3/4 million national and regional study of forest product markets and business opportunities. Inventoried forest resources and assessed the environmental and economic potential of 38,000 acres of tropical rainforest in Belize. 12 Helped review management of a 60 million board feet per year log merchandizing operation to evaluate past financial performance and to identify ways to improve economic return. • Conducted Forest Stewardship Council and Sustainable Forestry Initiative certification assessments and peer reviews of certification assessments in the Western U.S. and Lake States. Completed numerous FSC chain-of-custody certifications of forest product manufacturers, wholesalers, and retailers in the Western U.S. and British Columbia. Served as a technical advisor in developing FSC Rocky Mountain regional certification standards. Assessed damages, developed rehabilitation plans, and provided expert witness testimony in numerous fire-damage cases. Served as forestry and valuation advisor in a lawsuit, which resulted in an award of$20 million in damages from improper timber sale layout, marketing, administration, and other mis-management. Coordinated work on the 1993, Congressionally-mandated, national assessment of the condition of Indian forest lands and their management programs (1FMAT 1). This project included: • On-site reviews of 33 Indian forests and management programs and representative samples of the national and regional offices of the Bureau of Indian Affairs. • On-site reviews of 7 tribal sawmills and numerous cutstock, post and pole, shake and shingle, pallet, particleboard, log chipping, log sort yard, and other wood product manufacturing operations. • Use of questionnaires, focus groups, and personal interviews to survey tribal communities and resource managers. • Comparison of forest management practices and costs on Indian lands with those found on similar Federal, state, and private lands. • Preparation of a report, two summaries, and an oral presentation to the U.S. Congress. • Education of tribal resource managers, officials, and interested members on findings and recommendations from the study. Served as an expert witness on general forestry, logging systems, and forest economics in U.S. District Court in USA vs. Link and USA vs. Elder, timber theft cases. Served as an exp ert witness on helicopter logging, logging safet y, and ri ghts- of-way in U.S. District Court in USA vs. Hemstreet et. al., a logging protest case. Provided technical guidance for the development of integrated resource management plans and environmental assessments for over 1 million acres of forestland. Developed a transportation plan for a 600,000-acre forest. Developed an intensive fish and wildlife management plan for a 70,000-acre forest. 13 Testified to the U.S. Senate Select Committee on Indian Affairs on the status and quality of management of Indian forests. Participated in a study to determine the most efficient ways to log small timber and to produce in-woods chips. Completed a raw materials supply study and a preliminary feasibility study for a proposed biomass power plant. Developed environmental assessments for microwave relay stations. Identified and analyzed potential socio-economic affects on local communities and industries of proposed forest and grassland management programs. Developed draft policy guidelines for a geothermal exploration and development program. Oversaw logging on a 22,000-acre ranch on behalf of the owner and lender. Helped a city acquire 1,000 acres of land for construction of a sewerage treatment facility. Taught classes to forest industries and appraisal professionals on forest industries evolution, investment opportunities, certification programs, and appraisal of timber and timberland. Conducted tree farm inspections as a volunteer for the Oregon Tree Farm System. U.S. Army, 1967-1970 Taught surveillance, interview,interrogation,and investigative techniques. Served as a counterintelligence special agent and managed counterintelligence operations in South Korea for the Eighth Army. U.S. Forest Service, 1962 to 1979 Worked in the following permanent and seasonal positions: systems analyst, program of work analyst, forest management planner, other resources manager timber sale administrator, presale forester, reforestation forester, and forest pathology research technician. Presale forestry included substantial experience in timber cruising, design, and layout of logging units and roads, mostly on sensitive sites using advanced cable and aerial logging systems. Partial List of Consulting Clients Plum Creek Timber Company Broughton Lumber Company p Y � P Y Rough&Ready Timber Company Thomas Lumber Company Gilchrist Timber Company Niedermeyer-Martin I4 Capital Veneer Sales Modoc Lumber Company Kinzua Timber Company Day River Partnership Crown Pacific,LLP Northwest Agri-Tech Giustina Resources G Bar W Ranch Fishhole Creek Ranch Forked Meadow Ranch Box T Ranch Salt Creek Plantation Jeld-Wen Timber and Ranches Lassen Gold Mining Oregonians in Action Wilson Logging Smith-Greene Logging Wissie Inc. The Timber Exchange Dixie Chemical Company Interforest,LLC Centro Cientifico Tropical Jay Gruenfeld&Associates Moana Corporation Travelers Insurance North Pacific Insurance Farmers Insurance GAB Robbins Union Oil of California MCI Telecommunications Seattle Water Department Sunriver Utilities U.S. National Bank Oregon Bank Wall Street Financial Corp Viking Community Bank Soros Funds Deutsche Bank Goldman Sachs Brencourt Advisors Greywolf Capital Seneca Capital Oaktree Financial Amaranth Advisors Polygon Investments Taconic Capital Gerson Lehrman Group Triarc Companies Basso Capital Luxor Capital Avenue Capital Rockybay Capital MFS Investments Silver Point Capital QVT Financial Stark Investments Empyrean Capital Partners TIAA-CREFF Fidelity Investments Endowment Management,LLC Perry Capital Eaton Park TPG Axion Capital Ziff Brothers Investments Och-Ziff Capital Di Maio Ahad Capital GLG Inc.US Greenlight Capital JP Morgan MFS Investments Canyon Capitol Advisors Alliance Bernstein Glenview Capital Quadrangle Group Watershed Asset Management Old Lane KS Capital Partners DE Shaw Company Atlantic Investments Bain and Company Barrington Capital Blackport Capital Centerbridge Partners Chisuk Yom Davidson Kemper Fortress Investment Generation Investment Golden Tree Associates GSO Capital KBK Investments Highbridge Capital King Street Capital Kolberg Kravis Roberts Lehman Brothers Morgan Stanley MSD Capital Obrem Capital Management OSS Capital Redwood Capital Rockcrest Capital SAC Capital Advisors Sage Asset Management Sankaty Advisors Satellite Assets Thales Fund Management Tisbury Capital Wellington Management Wesley Capital Management Ridgetop Research The Equity Group Trellus Community First Bank Arneson,Wales&Bernier James,Denecke&Harris Karnopp,Peterson,Noteboom, ... Brandsness,Brandsness,and Rudd 15 Forcum&Speck Lands of America Trust for Public Land Pacific States Marine Fisheries Commission Western Land Group Wetlands Conservancy North Coast Conservancy Oregon Water Enhancement Board Forest Stewardship Council,U.S. Scientific Certification Systems Girl Scouts of America RREDCo Confederated Tribes of Warm Springs Klamath Tribes Confederated Tribes of Colville Confederated Tribes of Grand Ronde Yakima Indian Nation Redding Rancheria First Nations Coeur`d Alene Tribes Intertribal Timber Council Quinault Indian Nation Applegate Forestry City of Depoe Bay,Oregon City of Detroit,Oregon City of Madras,Oregon City of Sisters,Oregon Bend Metro Parks&Recreation District City of Idanah,Oregon Marion County,Oregon Douglas County,Oregon Oregon General Services Administration Oregon Department of Transportation Oregon Department of Forestry Oregon Department of Revenue Washington Department of Natural Resources Bonneville Power Administration U.S.Department of Energy Federal Public Defender Columbia River Gorge National Scenic Area U.S.Army Corps of Engineers U.S.Fish and Wildlife Service U.S. Bureau of Land Mgmt,National U.S. Bureau of Land Mgmt,Oregon U.S. Bureau of Land Mgmt,California Region 6,U.S.Forest Service Region 5,U.S.Forest Service Willamette National Forest Deschutes National Forest Mt.Hood National Forest Winema National Forest Fremont National Forest Siuslaw National Forest Siskiyou National Forest U.S.Senate Canadian Consulate Occasional Small Woodland Owners Professional Memberships Association of Consulting Foresters Society of American Foresters International Society of Tropical Foresters International Wood.Collectors Society Central Oregon Rock Collectors 6/2014 16 Civility&Home Associations Teresa Payne Civility & Home Associations, The Secrets to Success By Teresa Payne CMCA AMS Owner of Fieldstone Management LLC on April 23, 2015 E-Headlines Homeowner associations (HOAs) arc non-profit "There's a dog chasing a deer, you need to do corporations where ALL owners are members. One something." of the biggest advantages of living in an HOA is the ability of the association to preserve,protect and "My neighbor's tree roots are growing over into enhance property values. my property." The secret to a successful HOA is that each member "My girlfriend is allergic to bees. Please remove acknowledges their role in the community and at all the flowers so she doesn't get stung." times be willing to take on some added Associations aren't always responsible for solving responsibility. problems. If an owner's behavior doesn't violate the Recently I helped a client community transition governing documents, then the board generally has from self-management to professional management. no business butting in. Whatever the complaint, the Kudos to them! Even the smallest HOAs can be a first question we ask is—have you talked to your challenge to self-manage. When my associate and I neighbor? attended our first board meeting for this community, A lady from that same community walked into our a man asked us, "Did the board hire you because office and said, "I'm here to work in my office." they're incompetent? ...unfortunately at the time I She brought in her work and sat down at our didn't think to say, "No—Your board hired us conference table and said, "You changed our HOA because they ARE competent." address and therefore this is MY office." This experience led me to think about a greater Well,technically the address was changed to a PO concern in our society of HOAs: Box, so go right ahead and set up shop down there! RESPONSIBILITY.Who is responsible for maintenance of our homes?Our landscape?Who is Despite the horror stories and critics, it's obvious responsible for our behavior? What does your many people appreciate the way HOAs operate. neighbor think of your behavior and what do you Why else would 20 percent of the population think of theirs? voluntarily place themselves under their control'? HOA boards and managers have to handle a When you purchase a home in an HOA you surprisingly wide variety of situations. We regularly automatically become a member of the association deal with owners who have a bone to pick about a and are bound to deed restrictions, covenants and neighbor's behavior. Sometimes, two neighbors just conditions(CC&Rs). These rules and restrictions don't like each other and will always find are to protect the community and to maintain or something to report to the manager or board. improve property values. "My neighbor parks his car in front of my house Lastly, I leave you with some thoughts on How to so now it's what I see when I look out my Create a Strong Community: window."{ You all must obey your governing documents; you. "Can you make kids stop running across my agreed to do that when you closed escrow. By front lawn." obeying community rules and regulations, you "The street light shines in my bedroom and I contribute to your community and accept the role of a rule abiding member. Each year you conduct an can't sleep, so please fix it NOW." annual meeting at which time you elect your board of directors. Although you don't have to participate C:\Does\prop65575\Kuhn\Civility&Home Associations Teresa Payne.doc page 1 2015 04 23 in the election process, choosing to do so Fieldstone Management strives to find the most contributes to the success of your community. effective solutions to the challenges faced by community associations. We hope that in your Your role as a rule abiding member expands to process of promoting peace and aesthetics in your include that of a voting member. You also have the community,your property values are protected. opportunity to attend your board of directors meetings in order to better understand the business Teresa Payne, CMCA,AMTS is the owner and decisions made by the board. When you choose to general manager of Fieldstone Management, LLC attend those meetings,your role as a rule abiding, located at 371 SW Upper Terrace Drive, suite 2, voting member now expands to include that of a Bend, OR. 541-385-7799 participating member. And when you choose to Fieldstone Management is a bonded, licensed serve on community committees or the board of property management company specializing in the directors, you accept another role and become a rule management of community associations. We offer abiding,voting,participating and contributing full service association management, consulting, member. and education for communities. Fieldstone is a member of CAI(Community Associations Volunteering for your HOA Board and living in an Institute). HOA should be a rewarding experience and we urge every board—no matter how small—to have a www.fieldstonemanagement.com relationship of some sort with a professional manager. C:\Does\prop65575\Kuhn\Civility&Home Associations Teresa Payne.doc page 2 2015 04 23 WAG ` ikvolA 0/" Deschutes County Board of Commissioners -�. 1300 NW Wall St., Bend, OR 97701-1 960 -t '{? (541) 388-6570 -Fax(541) 385-3202 -www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JANUARY 7, 2008 Commissioners'Hearing Room-Administration Building- 1300 NW Wall St.,Bend Present were Commissioners Dennis R. Luke, Michael M Daly and Tammy Baney. Also present were Laurie Craghead, Legal Counsel; Catherine Morrow, George Read, Will Groves, Anthony Raguine and Chris Bedsaul, Community Development Department; and approximately a dozen other citizens. Chair Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was a Public Hearing and Consideration and First and Second Readings and Adoption, by Emergency, of Ordinance No. 2008- 003, regarding a Zone Change (Applicant: Reid). Will Groves explained the item, which was requested by the applicant. The Hearings Officer concluded split zoning of property in 1992 was a mistake, as it was based on a section line. She recommended approval under one type of zoning. The applicant has asked for an emergency clause because it took an inordinate period of time for the Hearings Officer to hear this case, and the owner would like to proceed with other applications regarding the property. Laurie Craghead stated that this is an individual case and not a legislative change, and the Board often allows these to be handled on an emergency basis. Chair Luke opened the public hearing, and read the opening statement. 20080107_BoCCAskedToHearPeeryA-07-21_Minutes Pg4 5.pdf Minutes of Board of Commissioners' Business Meeting Monday,January 7, 2008 Page 1 of 7 Pages VOTE: DALY: Yes. BANEY: Yes. LUKE: Chair votes yes. 4. Before the Board was Consideration of Whether to Hear an Appeal (File #A-07-21) of the Hearings Officer's Decision Revoking Land Use Approvals for the Construction of a Dwelling (Applicant: Peery). Anthony Raguine provided an overview of the item. He said there was a Code complaint regarding retention of vegetation filed by a neighbor; it was determined that a violation did occur, and there was a declaratory ruling to revoke two of the permits issued in June 2007. In November the Hearings Officer revoked all four permits, and this has been appealed. There is no time constraint, and the appellant asked for a de novo review. The applicant has been working with the Oregon Department of Fish & Wildlife on this issue. Mr. Raguine referred to an oversized map and explained where the dwelling would have to be built. If approvals are revoked, they would have to build where an old irrigation ditch was located, and the Oregon Department of Fish & Wildlife does not want it built there due to the existence of a wildlife game trail and corridor. Restoration would also need to be done. The original approval includes a modification of conditions. The previous owners had applied for a site away from Sisemore Road. Ms. Craghead noted this was a violation of the original conditions of approval. If the County revokes all permits, the owners can still build but the structure might be where the Oregon Department of Fish & Wildlife does not want them to be, and also mitigation with the County would not be required. Mr. Raguine stated that originally Community Development revoked two conditions; the Hearings Officer revoked all four. The County could require more trees to be planted for screening, but there is no requirement to restore the site if the permits are revoked. Staff agrees with the Hearings Officer in this case. Laurie Craghead stated that this could be heard de novo, limited de novo or on the record. Ms. Raguine advised that the applicant is working with the Oregon Department of Fish & Wildlife. However, not hearing the appeal would send a clear message that people are not to violate conditions, but on the other hand this would not allow the County to require mitigation efforts. 20080107 BoCCAskedToHearPeery_A-07-21_Minutes Pg4 5.pdf Minutes of Board of Commissioners' Business Meeting Monday,January 7, 2008 Page 4 of 7 Pages Commissioner Baney agreed that conditions of approval should be followed, but thinks this one should be heard to have an opportunity to mitigation some damage that has already been done. Commissioner Daly agreed, in an effort to try to make the best of a bad situation. Chair Luke noted that they took out material on the neighbor's lot as well. He thinks their permits should be revoked. They will have to reapply and he feels they can be made to mitigate some conditions at that time. Commissioner Baney stated that she feels it should be punitive, but the County may not be able to require mitigation if the four permits are revoked. Ms. Craghead said it depends on where they plan to build. There might be a way to get some mitigation. The house would also have to be screened. Commissioner Luke said that ODF&W will have an opportunity to comment on a new application. Commissioner Daly stated that the applicant is working with the Oregon Department of Fish & Wildlife now, and he would like to hear what they have worked out. DALY: Move that the Board hear this de novo. BANEY: Second. VOTE: DALY: Yes. BANEY: Yes. LUKE: Chair votes no. (Split vote.) 5. Before the Board was Consideration of Whether to Hear an Appeal (File #AD-07-12) of the Hearings Officer's Decision regarding a Utility Facility, Including AM Radio Towers, in the EFU Zone (Appellant: Follansbee). Dee Van Donselaar said there are fourteen appellants in this issue. There has been no offer to extend the clock by the applicant. Laurie Craghead said that a minimum of a week would be required to get a decision finalized. The mailing takes ten days. Commissioner Luke stated that it appears that there is not enough time to hear this in the amount of time allowed, especially since some of the Commissioners will be out of the office part of the time, so he feels it should be appealed to LUBA if the appellants so desire. 20080107_BoCCAskedToHearPeery_A-07-21_Minutes Pg4 5.pdf Minutes of Board of Commissioners' Business Meeting Monday,January 7, 2008 Page 5 of 7 Pages VOTE: DALY: Yes. BANEY: Yes. LUKE: Chair votes yes. 7. ADDITIONS TO THE AGENDA None were offered Being no further items to come before the Board, Chair Luke adjourned the meeting at 12:05 p.m. DATED this 7rh Day of January 2008 for the Deschutes County Board of Commissioners. Dennis R. Luke, Chair Oild&rol‘b■IA Ta Taney, Vice C ATTEST: .j. Mi' a- M. Daly, Col 'ssioner Recording Secretary 20080107,BoCCAskedToHearPeery_A-07-21_Minutes Pg4 5.pdf Minutes of Board of Commissioners' Business Meeting Monday,January 7, 2008 Page 7 of 7 Pages 7 ' 1 Community Development Department 0 t \ ! Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 9770$-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ TO: Board of County Commissioners FROM: Peter Russell, Senior Transportation Planner RE: Potential approach to land use applications on properties with code violations DATE: June 3, 2015 Background At the behest of the Board, Planning staff formed a stakeholders group to discuss how the County could deal with land use applications on properties that had either an existing code enforcement case, unfilled conditions of approval from a previous land use decision, or both. Stakeholders representing a wide array of opinions on the topic met several times between January and April to discuss the topic of code enforcement and land use applications and building permits. The discussion focused on four variables, which overlap to a degree: • What defines a code violation; • Whether a code violation should stop a building permit; • Whether a code violation should stop a land use application; • Whether unfulfilled conditions of approval are a code violation Staff presented existing ordinances from several other jurisdictions in Oregon on the topic. The group agreed the language from Multnomah and Jefferson counties provided an acceptable starting template. Staff then prepared a draft language based on the Multnomah and Jefferson examples and distributed it to the stakeholders for comments and revisions. The draft language went through multiple iterations before all came to an agreement in May. Summary Stakeholders agreed that violation means the matter has been decided by a court of law, a hearing's officer, a deliberative body, or a signed Voluntary Compliance Agreement(VCA). It was agreed that the applicant at the time of submittal should state that to the best of the applicant's knowledge no code violations exist on the property and if there are previous conditions of approval, the applicant is in compliance with those and existing applicable laws. If there is a code violation, the County will not process the application, unless the application will remedy the violation or complete previous conditions of approval that are currently unfulfilled. There is language that exceptions can be made in case of emergency. Next Steps Staff awaits Board direction on whether to amend the County's development procedures to incorporate the stakeholders committee's suggested language. Quality Services Performed with Pride t Enclosure: Proposed code language, May 15, 2015, version 2 Draft Code Language for Properties With Pending Code Violations (5/15/15 version) (A) Except as described in (E) below, if 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, including land divisions and/or property line adjustments; 3. Issue a building permit (B)As part of the application process, the applicant shall certify: 1. That to the best of the applicant's knowledge, the property in question, including any prior development phases of the property, is currently in compliance with both the Deschutes County Code and any prior land use approvals for the development of the property; or 2. That the application is for the purpose of bringing the property into compliance with the Deschutes County land use regulations and/or prior land use approvals. (C)Section A shall not apply to uses permitted outright (D)A violation means the property has been determined to not be in compliance either through a prior decision by the County or other tribunal, or through the review process of the current application, or through an acknowledgement by the alleged violator in a signed voluntary compliance agreement ("VCA"). (E)A permit or other approval, including building permit applications, may be authorized if: 1. It results in the property coming into full compliance with all applicable provisions of the federal, state, or local laws, and Deschutes County Code, including sequencing of permits or other approvals as part of a voluntary compliance agreement; 2. It is necessary to protect the public health or safety; 3. It is for work related to and within a valid easement over, on, or under the affected property; or 4. It is for emergency repairs to make a structure habitable or a road or bridge to bear traffic (F) Public Health and Safety. 1. For the purposes of this section, public health and safety means the actions authorized by the permit would cause abatement of conditions found to exist on the property that endanger life, health, personal property, or safety of the residents of the property or the public. 2. Examples of that situation include, but are not limited to issuance of permits to replace faulty electrical wiring, repair or install furnace equipment; roof repairs; replace or repair compromised utility infrastructure for water, sewer, fuel or power; and actions necessary to stop earth slope failure. 2