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HomeMy WebLinkAbout2016-36-Minutes for Meeting January 13,2016 Recorded 2/3/2016 I 0- \-.51-E 71 a .. 'Y o/I . ■ 4 Avt,,,40,„M 0-I NANCHUTES COUNTYPOFFICITY CLERKOS vu `016,x+6 COMMISSIONERS' JOURNAL 02/03/2016 08:28:58 AM 1916 - � lllb ; 1: a { 1r1 111111111111111111111111 0 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 WEDNESDAY, JANUARY 13, 2016 Commissioners'Hearing Room -Administration Building - 1300 NW Wall St.,Bend Present were Commissioners Alan Unger, Tammy Baney and Anthony DeBone. Also present were Torn Anderson, County Administrator; Erik Kropp, Deputy County Administrator; Dave Doyle, County Counsel; Will Groves, Peter Gutowsky and Nick Lelack, Community Development; and about fifteen other citizens. No representatives of the media were in attendance. 1. CALL TO ORDER Chair Alan Unger called the meeting to order at 10:00 a.m. 2. PLEDGE OF ALLEGIANCE 3. CITIZEN INPUT None was offered. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 1 of 17 CONSENT AGENDA Before the Board was Consideration of Approval of the Consent Agenda. BANEY: Move approval. DEBONE: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. 4. Board. Signature of a Letter Appointing Jimm Burton to the Deschutes County Budget Committee, through December 31, 2018. 5. Board Signature of a Letter Reappointing John Morter to the Panoramic Access Special Road District Board, through December 31, 2018 6. Board Signature of a Letter Reappointing David Engeman to the Board of Cascade View Estates Special Road District, through December 31, 2018 7. Board Signature of Minutes: • Work Sessions of December 21 and 28, 2015 and January 4, 2016 • Business Meetings of December 21 and 28, 2015 and. January 6, 2016 • Continued Public Hearing on a Goal 11 Exception Proposal, in La Pine, January 6, 2016 CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 8. Before the Board was Consideration of Board Signature of Document No. 2016-056, An Intergovernmental Agreement with the Oregon Department of Transportation Awarding a Grant for Radio Communications System Interoperability. Steve Reinke provided an overview of the agreement, which is an award from the State to help with enhancing the funding needed for radio communications with responders. It is a grant with no match required. The Commissioners acknowledged that the County is an important partner in this undertaking. BANEY: Move Board signature of the agreement. DEBONE: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 2 of 17 9. Before the Board was a Public Hearing and Consideration of Board Signature of Order No. 2016-003, regarding Initiating Formation of a Deschutes County Chapter 451 Service District for Emergency Communications Services; Initiating Withdrawal of Properties Currently in the Emergency Communications Services District formed by Deschutes County 9-1-1 County Service District. Chair Unger convened the public hearing, at which time Mr. Reinke gave an overview of the Order. Mr. Reinke explained that this process started in late 2013 with the stakeholders. They have reviewed the needs of 9-1-1 and the responders, including replacement of the radio system that has reached end of life. A decision and recommendation was developed by the users to seek out a new system that works for all partners. It was decided that it would work best under the guidance of the 9-1-1 District. The radio systems have needed to be replaced for years, as they are over fifteen years old. The vendor no longer manufactures parts or provides service for this system. They have to replace the system. The consultant report done in mid- 2014 said the cost would be $13 million. They investigated ways to reduce this cost without sacrificing quality. The result is the new system would be about $6.5 million and they are partnering with the State to help with coverage. The District recognizes that there has been a good job of banking funds for this replacement to be able to pay for the radio infrastructure, but what the District P PY does not have is a mechanism for maintaining the system and eventual replacement. The Order does not allow the current funding rate to be raised without dissolving the old District and creating a new one. The requested amount covers the replacement of the current levy. It is only .063 more than what is already levied. This gives predictability and funding into the future. They have committed to only levy the amount of the .425 cents that is needed. The partners will weigh in on whether this covers the needs of the District. The current combined rate would be used for the first two years, and in fiscal year 2019 and beyond they will levy only what is needed. Tom Anderson feels this was a good explanation. The .425 is only a 3 cent increase over the previous operating levy. At that time it was approved at .39 cents but they only went to 36 cents. A careful analysis has been done and will be levied in the future. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 3 of 17 Commissioner DeBone said that there are citizen members and representatives of all the agencies that need 9-1-1 services. The Commissioners are the governing body of the District. Commissioner Baney is very supportive and noted that there have been a lot of efficiencies shown. It is a much different District than in the past, being stable and with the support of all agencies. There have been a lot of spirited conversations to come to what is needed to protect the public. She is very comfortable with where they have arrived. The user board and each agency know that the public would lose if these agencies cannot work together. She has heard from a few people that this is going to the Sheriff or other departments, which is not the case, so some education is needed. Each user board member would have to provide their own dispatch if this was not in place. She will do what is necessary to educate the public on this issue. Mr. Reinke stated that some people think that 9-1-1 is part of a law enforcement district or fire district. It is important to let people know this is a separate and distinct entity that works with all of the agencies to support them in the field. Chair Unger noted that 9-1-1 operators have very difficult work, and it is hard to recruit the right people. Mr. Reinke said this is an industry-wide problem. These people need to be highly trained in a stressful situation. They need the best possible system to make them more efficient. The stability of the District and compensation help to attract the right staff. They appreciate that they are able to be fully operational and have funding, but if a levy that has to be undertaken every five years fails, this jeopardizes the operation overall. Permanent funding would help them to better perform their mission. Chair Unger asked for some of the representatives of the agencies to speak. Larry Langston spoke on behalf of the Bend Fire Department, Bend Police and the Bend City Council. They appreciate the Board's attention to this. When their officers are in the field, it does not work well if there is not good connection through 9-1-1. This gets them out to the public faster, which is very important. They appreciate the support in helping get this before the voters. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 4 of 17 Roger Johnson of the Sisters-Camp Sherman Fire Department said they support this measure. It is a critical link, and the first connection in an emergency. Operators can often provide lifesaving information while the response is underway. Having a dependable communications system helps fire personnel stay informed. In western Deschutes County, some areas do not have good radio coverage and this would help enhance this and improve their ability to serve. Dave Tarbet, Redmond Police Chief, appreciates the thoroughness of this process. Permanent funding is critical for all the agencies, citizens and visitors. The radio system is critical because they also need to plan ahead to replace it down the road without having to come up with a lot of money at that time. He feels the small amount requested is very important. Mr. Reinke noted that this is the first of two public hearings, and he appreciates the support. They hope to provide a higher level of service to the public and offer better operational support from the dispatchers. These people are very talented, but permanent funding will have additional dedicated operators to be more efficient, including monitoring ground operations for fire incidents or major events. Part of this covers infrastructure and long-term needs. Larry Fulkerson, citizen, provided a letter to the Commissioners which he read at this time, offering his support for this plan after watching what the District has done over the past few years. He originally objected to a levy but after being involved, has decided that the requested amount is appropriate, and he g q has a lot of faith in what the District has done and plans to do. (A copy of the letter is attached for reference.) Chair Unger thanked Mr. Fulkerson for his input, and said he is gratified having an interested citizen involved at this level. Being no further testimony offered, the hearing was closed. There is a separate public hearing scheduled for February 17, and the Order provides for this. Commissioner DeBone said it is important to support the next generation of radios, and the needs of the agencies and the public. Almost all meetings are open to the public and citizens are encouraged to attend. Commissioner Baney added that they are a better County government because of citizen involvement, and she is thankful for it. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 5 of 17 BANEY: Move Board signature of Order No. 2016-003. DEBONE: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. 10. Before the Board was a Public Hearing on a Supplemental Budget Adjustment for the 9-1-1 County Service District; and Consideration of Board Signature of Resolution No. 2016-001. Chair Unger opened the public hearing. Wayne Lowry said that this recognizes some grant revenue that was discussed today, and makes some adjustments in the equipment reserve fund to carry this into the current year. Chair Unger clarified that this is taking reserve funds to help with the radio system. Commissioner Baney stated that they were looking at $13 million not that long ago, and is grateful that they have worked towards partnering to reduce this cost significantly. This does not happen just by chance. Commissioner DeBone said that $6.5 million is still a big number, but it is being shown that it is needed. Mr. Reinke noted that it is helpful that the State has been very cooperative, as it benefits them as well as the local agencies. Being no testimony offered, Chair Unger closed the public hearing. DEBONE Move Board signature of Resolution No. 2016-001. BANEY: Second. VOTE: BANEY: Yes. DEBONE: Yes. UNGER: Chair votes yes. 11. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $71,298.742. BANEY: Move approval, subject to review. DEBONE: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016. Page 6 of 17 CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 12. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District in the Amount of$5,114.78. DEBONE: Move approval, subject to review. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 13. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of$1,474,900.41. DEBONE: Move approval, subject to review. BANEY: Second. VOTE: DEBONE: Yes. BANEY: Yes. UNGER: Chair votes yes. ACTION ITEM 14. Before the Board was a Public Hearing on an Application for a Declaratory Ruling regarding a Maintenance Agreement (Dowell/Kuhn). Chair Unger opened the public hearing, and Peter Gutowsky gave an overview of the item. He asked the Board if they had any conflicts of interest, or issues of ex parte contact or bias to disclose. Commissioner Unger said that Mr. Kuhn reached out to him when he first took office as Commissioner, and he did have a site tour of the property. He does not feel he is biased. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 7of17 Commissioner Baney said she has been serving as Commissioner since 2007, and there have been various meetings and other times since then regarding this issue where she was present. She might have met a couple of times with Mr. Kuhn, but what was discussed was already in the record. She does not feel she has any bias or conflicts of interest. She has been near the property but has not toured it. Chair Unger said he started as Commissioner in January 2009 and is familiar with the situation since then. It was an issue for a long time before then. He understands the relationship and met with Mr. Kuhn and staff at times. He feels that he can make a fair decision. He also has been near the property but has not been on it. No challenges were offered from the public. Mr. Gutowsky gave a PowerPoint presentation with the recent history regarding the appeal. He entered the case file into the record, and provided a transcript of the last hearing, and documents submitted by Mr. Kuhn. This information is available at this time, but most had already been made available to the Commissioners. Mr. Gutowsky gave an overview of the history of the property. There are three parcels: one owned by the Kuhns, one owned by the Dowells, and one that is held by both as open space. The Hearings Officer did a good job of summarizing the land use history of the property in her decision. The main question relates to homeowners' agreement and maintenance of the jointly-owned property. This has been in court and to LUBA. The Dowells' requested building permit was a violation of a 1980 condition of approval because the homeowners' agreement was not in place. The Kuhn and Dowell dwellings have both been found to not be lawfully established until this agreement is recorded. Since then there have been numerous discussions about what is appropriate in a document to satisfy this requirement. The parties have failed to agree on the wording. The Hearings Officer in June 2014 came up with findings regarding several issues relating to the cluster development and the agreement. Both parties were required to sign this document and a maintenance agreement, but this has not occurred for a variety of reasons. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 8 of 17 About a year later, the Dowells stayed their appeal of this decision in an attempt to mediate the matter. County Counsel, staff and others participated. Ultimately these mediation attempts were not successful, so in May 2015 the Dowells reactivated their appeal. They asked the Board to declare the provisions that might be acceptable, whether a third party can be used, and other issues regarding the open space parcel. It is uncertain whether the 150-day time limit applies to this declaratory ruling, but he would like the applicant to address this more specifically in case the timeline should be tolled,just to be clear. David Doyle said they have agreed that they will extend it at least sixty days from th i s date. It i s unclear lear whether there is a 150-day requirement in this unique type of case. Mr. Gutowsky said that the Board needs to affirm, overturn or modify the Hearings Officer's decision regarding maintenance of the open space parcel and other issues. The hearing can be continued to a date certain, or the Board can close the hearing and allow for rebuttal time, or close it and deliberate now. Chair Unger said that there was only one citizen form submitted for testimony, so he asked for any others. He requested that both sides agree to 45 minutes each for testimony. Sharon Smith, representing the Dowells, said this is appropriate for them, and will include her PowerPoint presentation and time for questions or rebuttal within the 45 minutes. Ms. Smith said she would go into more depth on the situation. The open space parcel is jointly owned. It was approved as a cluster development in the late 1970's and in 1980. Things were done differently then, as land use was new. It was never appealed at the time, so they have the decisions that were done then. Today they must interpret the decisions made then, decades ago. A written agreement was required relating to the common property. The developer sold the properties prior to doing any of this, but did record land use restrictions in 1987 which were meant to perfect this situation, but they addressed the entire property and not just the commonly owned property. Some was very specific regarding dogs and fencing. The County had deemed that this was acceptable. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 9 of 17 Subsequently, the County decided that the deed restrictions did not satisfy the conditions. In 2002, a Circuit Court decision said that costs involved in this agreement would be shared equally. The parties have established separate accounts for this and pay separately. In 2010,. an agreement was deemed to be acceptable to the County, and this was confirmed by LUBA, but the owners have to be parties to the agreement and would not settle. Prior adjudications do not really provide guidance on what the terms ought to be, and the parties do not seem able to agree on even minimal standards. They are looking for resolution to this long-term dispute. There were attempts made to settle this, but those have been unsuccessful. Initially, the Kuhns developed what they said was an acceptable agreement. It said that the Dowells would give the open space to the Kuhns, and that there would be no dogs, hunting or livestock on the properties. The Kuhns wanted some vague conditions that were difficult to define, such as respecting the solitude of others, the use of exterior lights, the use of power tools and other issues. Some negotiations were offered after this, with clarifying language, including incorporating the deed restrictions into the same document, and replacing subjective language with language that is clearer. One would mean giving the open space to the Kuhns, so they would have ownership along with maintenance responsibilities. Another is the parties owning the open space jointly. They reached an impasse when the Kuhns said that the Dowells should sell their own property to the Kuhns at what the Dowells felt was a below-market rate. The Dowells are open to either an agreement with the Kuhns or the County, including the first option, giving up their ownership in the open space. Joint ownership may result in ongoing disputes. They are also open to an agreement with just the County. The declaratory ruling decision determined that they inherited all the obligations of the developer, and could enter into a conditions of approval agreement. The requirement of the agreement is to address how the natural resources and wildlife habitat are maintained on the jointly owned property. Part of the agreement would clarify physical maintenance, payment of taxes and how to resolve disputes. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 10 of17 The first assignment of en-or was that the maintenance agreement was to preserve open space values and vegetation maintenance. The applicant feels is supposed to be directed at maintenance, not open space values which can mean different things to different people. There are also two separate sets of standards for cluster developments. Deed restrictions provide the open space limitations such as wildlife friendly fencing, no hunting and so on. The maintenance agreement needs to address issues related to property maintenance, taxes and costs. This should fall under reasonable and generally applicable law. The Dowells also propose the expense and maintenance be split, and limit maintenance of the common property to what is required, and not for enhancement. Cost allocation should be equal. There are options if this is not done. Dispute resolution provisions are not essential but the County can include this. There could be a mediation provision or arbitration requirement. Maintenance standards should include the basics of most such agreements, such as compliance with noxious weed control, and hazardous fuels requirements. P q The Hearings Officer was erroneous in stating that open space is exclusively for wildlife values. Open space is used for a number of things in the County, and Code does not limit this to just wildlife values. The third assignment of error is that the agreement must be signed by both parties. She said that the Planning Director could enter into this as well. A third party does not have to hold an ownership interest in the properties, but a maintenance agreement is needed. There could be a third party involved. If there was no joint ownership of the property, or if it was transferred, an agreement would not be needed at all. The Hearings Officer said that the interest in open space can't be severed from the parties. However, nothing in PL-15 imposes this obligation. It does not have to be commonly owned. Otherwise, this would mean that one party cannot convey the property to the other or even to a conservation entity. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 11 of 17 They request that the Board find that if this not dedicated exclusively to wildlife habitat, it doesn't have to be just the Kuhns and. Dowells, and that the maintenance agreement can be simplified regarding taxes, maintenance expenses and a dispute mechanism; and the Planning Director can enter into a conditions of approval agreement with the two parties or separately with each. This should satisfy condition of approval #2. The Board had no questions at this time. Ms. Smith said the applicant agrees that the 150 days is not applicable but will extend it for another sixty days anyway. They requested keeping the record open for written testimony and she suggested a week for additional information and another week for rebuttal. Chair Unger said there is one other party who wishes to testify after Mr. Kuhn does. William Kuhn testified that he recommended the Board not hear this, but it has allowed him to complete a documentary film that he and his wife made to speak to the basic issues. He feels they are supposed to be specific and does not know if 45 minutes is adequate to do this. There are issues that go back forty years and he feels that he should have more time. He will attempt through this film to do an overview, but he wants to get down to the specifics to make sure the Board understands the questions that they need to answer. Chair Unger said that, to be fair, the Board can limit the time and ask for other information to be offered in writing. Mr. Kuhn stressed that he does not feel this amount of time will be adequate. At this time, a video developed by Mr. Kuhn was presented to the Board, dating from before they moved onto the property, and demonstrating their commitment to making sure the property as a whole would be cared for as they felt it should be. They were agreeable to the hand-written restrictions discussed at the time with the then owner of the property. They met the owner of the other property when they began building. The two residences were to be built close together and close to the road to mitigate any impacts to wildlife. The County supported this. They wanted the people who lived there to have as little impact on wildlife and the land as possible. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 12 of 17 There was an agreement with the Dowells so they could have power to the utility pole, enabling them to build within 400 feet of the road. Neither could be there if they had not agreed to these limitations. There would be an easement for the utilities to where the Dowells were to build, but they built elsewhere, Mr. Kuhn feels to get a better view. Mr. Kuhn said they were allowed to build where they were not supposed to, but the Kuhns had to build exactly where the County said they could. All this time, there have been issues of garbage on the grounds, and other misuse of the Dowell property. They put in flood lights with no shielding and the County had to tell them to desist, even after a judge forced them to pay a fine. There was an explosion at one time during construction that sent shrapnel into the Kuhn home. The Sheriff found no evidence of intentional wrongdoing. The general contractor for the Dowells assaulted the Kuhns physically. From that point, the Kuhns were not interested in making any deals with them. The Kuhns feel the County turned its back on them many times, and they consider this a taking of their property, so they can't get permits, or sell until there is a specific agreement with the other party. He does not feel that the joint owners have ever done their part regarding maintenance of the jointly owned property. The County has been enabling the other party by not enforcing the rules that they are supposed to follow. It is more than just an agreement. The County is inept, corrupt or both, as are the Dowells. There is a lack of integrity in not following through on something that is so important to the Kuhns. They do not want to just give it up. This behavior should not be allowed to just go on. The County ignored all the other restrictions except the one that says an agreement is needed. They had a long-distance magistrate meeting, with Mrs. Kuhn at the County and Mr. Kuhn in Salem, mostly relating to taxes. The County was to set up the conference call to meet with the judge. At this time, the County asked them to stop filming in the County Counsel offices. Mrs. Kuhn was allowed to be in a conference room, and she remained there for some time. She was not allowed to distribute documents to witnesses. The magistrate was told that statements were hearsay or irrelevant. The magistrate found against them because of this. Mrs. Kuhn was treated rudely by the County. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 13 of 17 At that time, Patricia Gainsforth, a friend (since deceased) involved in real estate, submitted documents on their behalf to the County. She said that it appeared the County was punishing the Kuhns for something. She said they had to unscramble the current impasse with the County and the Dowells before the property would have any value. They do not feel that anyone will help them, not the police, the Courts, the District Attorney or the County. This video was made as a last resort to have the County admit that they made a lot of mistakes that have damaged the Kuhns. They want to move forward to fix what is needed to make the development work as it should for them, and the residents and wildlife of the Tumalo winter deer range. Chair Unger asked that Mr. Kuhn limit his testimony after the video to ten minutes, as it is now 11:50 a.m. He continued the hearing at 11:55 a.m. Mr. Kuhn distributed some exhibits at this time, using a hand-held microphone. He presented a small juniper in a bag to each Commissioner. He said each year he pulls about 100 of those to keep them from overtaking the property. He also passed out bags of cheat grass. They need help dealing with the vegetation issues. They are the only ones maintaining the property all these years. He referred to information that was provided a few days ago. He wants the Board. to read Mr. Spitz's report regarding vegetation growth. Also, he wants the Board to pay special attention to #4, the settlement agreement, as well as the six letters regarding the value of the property. He said. that ORS law that gives them the right to collect some of what the Dowells are getting for rent. He and his wife can't get help because there is no agreement. Issue #21 is what the Dowells claimed in their purchase contract. He is disappointed that in 2008 Commissioner Baney accepted this fraudulent document as proof of their purchase when she should have known better. Issue #22 is the Dowells' communications with the County regarding what they were going to build, which is completely different than what they did. And issue #28, which has to do with Cibelli (the contractor). Mr. Kuhn stated that this is all crap, what they have had to put up with all these years. Issue #30 talks about the Dowells refusing to deal with the Kuhns. They could not agree on not having dogs on the property. The Kuhns gave all the documents to Bob Lovlien, attorney, who then was hired by the Dowells and tried to use the information against the Kuhns. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 14 of 17 Issues #32 through #34 are e-mails that talk about FUD, fear, uncertainty and doubt. And issue #35, the County making other property owners get lot line adjustments, but the Dowells were not required to. Mr. Kuhn called for Kevin Serrapede to speak. Mr. Serrapede said he lived in the area until 1994, and during that time he understood he was subject to restrictions that existed. He knew they could not develop property fully due to the overlay. He said he has worked with Deschutes County since 1978 and also with the City. He had been on the Broken Top homewares' association. Has known the Kuhns for 25 years and they are hard workers and law abiding. They are entitled to equal protection under the law. He referred to the website page regarding code enforcement. He said it appears the Dowells have been in violation of code since they have been told so by the county. The Kuhns have been violated in various ways. It is clear the Kuhns are not asking for special treatment. The County should restore a way forward for the Kuhns to do what they feel is right. Commissioner DeBone asked Mr. Serrapede if he used to live on the subject property. Mr. Serrapede replied that he was a neighbor but has not lived there since 1994. He had a conditional use permit at one time, and because of wildlife there, was told he would have to restrict construction to certain times of the day. He did not live in a cluster development but on a 40-acre parcel that was split into two. The Kuhns were his closest neighbors to the north. Mr. Kuhn said that there is no site visit report in the file. He has repeatedly asked for this. Seven County personnel have visited, including one County Counsel, staff from Community Development and the Assessor. There should be a site visit report from each in the file. In his opinion, Deschutes County owes the Dowells a lot of money also because the County did not do proper oversight, probably as much as $300,000. He will fight for this. But he won't be bullied by Mr. Dowell who offers his property for sale to others for less than he would sell to the Kuhns. He does not want to deal with the legalities. He appreciates Ms. Smith's concept that cost sharing matters. This is a cluster development and no others remain with just two parcels. This is the only one left. It was a stupid decision to create it that way and he has tried his best to work within the restrictions of this. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 15 of 17 After the Dowells spend the next twenty-seven and a half years maintaining the property just on their own, the Kuhns will consider entering into this agreement. He is the only one who has done this work. In today's dollars, bringing power to the cluster would have been about $150,000 per party. The Kuhns will negotiate only if the County is negotiating as a separate party. The County made significant errors that cost both parties a lot of money. The Kuhns are owed something as well as the Dowells. They want their property rights restored. The stuff they have had to go through, the eroding of their rights, has to stop. They will not allow the County to undermine the restrictions that should be in place. He does not like bullies. Mr. Cibelli and Mr. Dowell are bullies, and so is Mr. Doyle (County Counsel). They want their rights back. They will move forward only when they get their rights back. Ms. Smith said they are here to address the appeal of a declaratory ruling. In response to some of the testimony given, she indicated that there are two sides to every story. In the interest of time, she asked for the record to be left open for written rebuttal. She is amenable to more time if Mr. Kuhn wants it. Commissioner Baney asked that some of the issues raised be addressed even if they are not part of the declaratory ruling. She asked staff about the statement regarding a fraudulent document and concerns regarding the owing of money, and rent that was said should have been shared. She'd like to know if any of this is valid. Ms. Smith asked for two weeks to respond to this. Commissioner DeBone asked about the event regarding providing power to the property. The Board decided that they would allow two weeks for additional testimony and one week for rebuttal, and a week for applicants' final legal argument. These dates would be January 27, February 3 and February 10. Ms. Smith agreed to 90 days beyond the 150 days if applicable. The oral hearing was closed at 12:18 p.m. 15. OTHER ITEMS None were offered. Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 16 of 17 16. ADJOURN Being no further discussion, the meeting was adjourned at 12:20 p.m. DATED this �-� ' Day of 2016 for the Deschutes County Board of Commissione Alan Unger, Chair Tammy Baney, V. Chair ATTEST: ittZ9S-6"r\51--- (friAiht,t■L Anthony DeBone, Commissioner Recording Secretary Minutes of Board of Commissioners' Business Meeting Wednesday, January 13, 2016 Page 17 of 17 fj_ Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JANUARY 13, 2016 T- Commissioners Hearing Room-Administration Building 1300 NW Wall St.,Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be considered or discussed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Business Meetings are usually recorded on video and audio, and can be viewed by the public live or at a later date; and written minutes are taken for the record. 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not being conducted as a part of this meeting will NOT be included in the official record of that hearing. If you offer or display to the Board any written documents, photographs or other printed matter as part of your testimony during a public hearing,please be advised that staff is required to retain those documents as part of the permanent record of that hearing. Board of Commissioners' Business Meeting Agenda Wednesday, January 13, 2016 Page 1 of 6 CONSENT AGENDA 4. Board Signature of a Letter Appointing Jimm Burton to the Deschutes County Budget Committee, through December 31, 2018. 5. Board Signature of a Letter Reappointing John Morter to the Panoramic Access Special Road District Board, through December 31, 2018 6. Board Signature of a Letter Reappointing David Engeman to the Board of Cascade View Estates Special Road District, through December 31, 2018 7. Board Signature of Minutes: • Work Sessions of December 21 and 28, 2015 and January 4, 2016 • Business Meetings of December 21 and 28, 2015 and January 6, 2016 • Continued Public Hearing on a Goal 11 Exception Proposal, in La Pine, January 6, 2016 CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 8. CONSIDERATION of Board Signature of Document No. 2016-056, An Intergovernmental Agreement with the Oregon Department of Transportation Awarding a Grant for Radio Communications System Interoperability--Steve Reinke, 9-1-1 • Suggested Action: Move approval of Order No. 2016-003. 9. CONSIDERATION of Board Signature of Order No. 2016-003, regarding Initiating Formation of a Deschutes County Chapter 451 Service District for Emergency Communications Services; Initiating Withdrawal of Properties Currently in the Emergency Communications Services District formed by Deschutes County 9-1-1 County Service District—Steve Reinke, 9-1-1 Director Suggested Action: Move approval of Order No. 2016-003. 10. A PUBLIC HEARING on a Supplemental Budget Adjustment for the 9-1-1 County Service District; and Consideration of Board Signature of Resolution No. 2016-001 —Steve Reinke, 9-1-1 Director Suggested Actions: Open hearing; take testimony; close hearing; move Board signature of Resolution No. 2016-001. Board of Commissioners' Business Meeting Agenda Wednesday, January 13, 2016 Page 2 of 6 11. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 12. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 13. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County ACTION ITEMS 14. A PUBLIC HEARING on an Application for a Declaratory Ruling regarding a Maintenance Agreement (Dowell/Kuhn) —Peter Gutowsky, Community Development Suggested Actions: Open hearing; take testimony; close hearing; deliberate and provide direction to staff as appropriate. 15. OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. At any time during the 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; ORS 192.660(2)(b),personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. 16. ADJOURN Board of Commissioners' Business Meeting Agenda Wednesday, January 13, 2016 Page 3 of 6 To watch this meeting on line, go to: http://www.deschutes.org/bcc/page/board-meeting-videos Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. ®L*( Deschutes County encourages persons with disabilities to participate in all programs and el® activities. To request this information in an alternate format please call (541)617-4747, or email ken.harms©deschutes.org. FUTURE MEETINGS: (Please note:Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners'meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting,please aye call 388-6572.) Wednesday, January 13 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Friday, January 15 7:30 a.m. Joint Meeting with La Pine and Sunriver Chambers of Commerce, at 1,000 Trails 10:00 a.m. Site Visit to Lower Bridge Road Property(meet at County) Monday, January 18 Most County offices will be closed to observe Martin Luther King, Jr. Day. Tuesday, January 19 10:00 a.m. 911 User Board Meeting, at 911 Wednesday, January 20 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Friday, January 22 8 a.m. Board Annual Retreat, at Deschutes Historical Society Conference Room Board of Commissioners' Business Meetiig Agenda Wednesday, January 13, 2016 Page 4 of 6 Monday, January 25 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session--could include executive session(s) Wednesday, January 27 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Monday, February 1 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Tuesday, February 2 3:30 p.m. Regular Meeting of Public Safety Coordinating Council Wednesday, February 3 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Wednesday, February 10 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Monday, February 15 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Tuesday, January 16 10:00 a.m. 911 User Board Meeting, at 911 Monday, February 22 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Board of Commissioners' Business Meeting Agenda Wednesday, January 13> 2016 Page 5of6 Wednesday, February 24 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Monday, February 29 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Tuesday, March 1 3:30 p.m. Regular Meeting of Public Safety Coordinating Council Wednesday, March 2 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Monday, March 7 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) (4 Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541)617-4747, or email 0,01 ken.harms @deschutes.org. Board of Commissioners' Business Meeting Agenda Wednesday, January 13, 2016 Page 6 of 6 / , "� BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: Y/J AeolA5- _ Date: )--/3-/‘ Name 1_432 g FUL,Z/F./7Sakr Address a2_,2 3 / Phone #s ' /- 7 ? - 1 E-mail address L4-0coc /L/L/Z S/y / In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No If so, please give a copy to the Recording Secretary for the record. oi ES Ct "" G� BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK ,ILLLSubject: Date: r3 Name r u Address 1 c D \ i ,1 vvJ it.A Phone #s E-mail address In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? I Yes No If so, please give a copy to the Recording Secretary for the record. w/fir 4-1, BOARD OF COMMISSIONERS' MEETING ❑ , REQUEST TO SPEAK Subject: r3 /73 it 1l Date: 7O/C, 113. 3 Name 011(sc+.% k v 14 in Address jfo i30x �" 1?'.. g770g •s�'�4 Phone #s 5'41. I 389 34 7 C E-mail address /AMA +4.w, � .i sC �� , c.a in Favor , , Neutral/Undecided Opposed Submitting written documents as part of testimony? EIYes 1 No If so, please give a copy to the Recording Secretary for the record. 0.411 BOARD OF COMMISSIONERS' MEETING o REQUEST TO SPEAK Subject: /61, ,/ tvm d / Date: //i 3// Name j . v, S `? a r} p :- Address ? i ✓L ,`'it /-) Phone #s c`fl - ;30 0 -- $i 7-2_ E-mail address ' c i,� 6e .i c'((.„ In Favor [ Neutral/Undecided Opposed Submitting written documents as part of testimony'? Yes No If so, please give a copy to the Recording Secretary for the record. a• +, c o co - 4 0 o M n 0 ro c m.0 +' is o c C3 7j N N L1l y E u° O c =a 0 w _c U a--r LY1 Ln 5 U C c ca n oo 'o T c In 0 U oo 447 rn 0' C Q C d m C v v CA Cr).�-4 N N N 0 O ▪ yG +C C U CO T C m -w T ▪a O w 0. n5 U coo v E O v T O E O d. Q o7-1 n .-r O cr M E ro � .5-1 n ,-1 o O �° p ■ U 1D o C . C. CO 0' x cro 5 C7 -cs N u; 0 r1 n M Ln c w v ro O A O 0 M co a 4J a) T d0 O L +� C 3 _ in N N Lf1 L C O cyo 0 a. U E O O o O' a 0- MI i m co a, cu Y �a 3 0 Cl) ttl cn .2 N _o t v c 2 1 u O 0 00 m N O N O -a 4- in 0 M n .-1 cu O O "O H 7 O N 1 s. L O Q O !6 v. •- l0 .- vr N co N U ••- J a- N d m Lf1 5-c P _c V VI _C 0 m N r-I n C }' '} E N 0 m m m C {'' z 0 n CO RI 0 a U U U m +, N w 0C w C C a o I >. O n N 01 v .d ,N al 1.n a, 44- aJ ,, _C a l N O N O O V . 1? U .0 CO N M LLnn ay. V O +E-' GG '. N O ,--1 N m ++ C M M C w C CL) ro Q5 •- E v d- v 0 rCo 0 a +, +, 4., o E O c 4- -a ,,, .--r .1 Ln O C v 0 To co - C W o rn Orl) re)M y E 13 0 O O 11+ m N tic' a1 c0 a oN co _ -I N 0 vii ni r- I � rn O � = o t c t m E +-, to O U •- C O C L C O c0 3 C z a m n a1 v in •° m o u H ms ,-oi o rn L`nn a C Q2! 2 w = O m =. 000 4 to Lo 0 C + L CI) U I U N Q rI Cr C E o N 0 O z M M OU of ` O E N MI c O > CO Lu z < It Ln z E ce 4i o O N Q 2 c u 2 o ' ° o o c-3 a T O CO 0. vii o_ u 0 _. a U January 13, 2016 County Commissioners DeBone, Baney and Unger: My name is Larry Fulkerson. As you may recall, in May of 2013 I opposed the 911 funding proposal of 23 cents per thousand assessed value. In a very short period of time I had a meeting with 911 Executive Board and we reached a compromise on the levy proposal and reduced it 3 cents per thousand of assessed value. This allowed the surplus in the 911 budget to remain sufficiently high to fund the new County wide communication system, which is now being implemented without letting the surplus or reserve amount to grow inordinately high. In the early fall of 2014 I was contacted by the then new 911 Service District Executive Director, Mr. Steve Rienke. Mr. Reinke invited me to attend the 911 Board meeting as an observer. I was surprised that a Director of any service district would invite a self proclaimed taxpayer's advocate to observe any of their meetings. They are public meetings and we all have a right to attend, but public scrutiny is not often invited by some government officials. I and many other citizens have held a generally unfavorable opinion of government. I am not referring specifically to this governing body because you have a much better reputation than most political subdivisions. My interaction with Mr. Reinke and the 911 Board has greatly improved my overall opinion of this County government. When I first met Mr. Reinke and attended my first 911 Board meeting I was astounded at the in depth knowledge shown by Mr. Reinke of virtually all of the then current problems associated with the 911 District. Mr. Reinke was not only aware of the problems but had an incredible grasp of what needed to be changed and how to accomplish it. He accomplished more in his first 2 months than most people, including me, could have learned and accomplished in one year. Since the fall of 2014 I have attended approximately one half of the 911 Board meetings. I continue to be impressed with all of the people in attendance, their experience, and depth of knowledge of the issues. Their suggestions for path forward have shown to me that indeed our fire, police, sheriff and 911 Districts are all run by competent leaders who are focused on solving problems at minimum expense and maximum efficiency for the taxpayers. Mr. Reinke has led this process. He has had radio contracts researched, consultants hired, arranged agreements with the State and other political subdivisions that saved the District approximately $6.5 million on radio project costs and has successfully implemented plans for the new County wide communication system, plus restructuring the 911 District. We now will have a new 911 District and new communications system that is paid for with the reserves and surplus accumulated mostly prior to 2013. We now need to increase the permanent and temporary rates, convert both to a new maximum levy rate p P rY Y of 42.5 cents per thousand of assessed value. The new levy is needed to pay for day to day operations plus maintenance and to set aside sufficient funds to replace this system just like funds were previously set aside to build this new system. Mr. Reinke has stated that he will only request 36 cents per thousand for the first 2 years while drawing down reserves. This will impose no new tax burden on property owners for at least 2 years. Given the fact that the Sheriffs Department is still not drawing its maximum approved levy rate, I am sure that the 911 District will do as planned. I had suggested a higher maximum rate to give the District more flexibility because I believe Mr. Reinke will only use what is necessary, but the Board decided on the 42.5 cent per thousand rate. I strongly support the County putting the proposed ballot measure for new and permanent funding before the voters on the May ballot. I am sure if the voters are aware of the process the 911 District has gone through to get this much needed new communication system in place, the ballot measure will be approved. The new system will improve safety, and speed communications, and increase efficiency at minimal cost. Thank you for the opportunity to participate in this process, and for taking the time to hear my comments this morning. Sincerely, La/ rryl ulkerson 22321 McArdle Rd. Bend, OR 97702 Kevin Serrapede 3803 NE Purcell Blvd Bend OR 97701 January 13, 2016 Re: William and Leigh Kuhn Hello, I have lived and worked in Deschutes County since 1978. I have had interaction with both the City of Bend and Deschutes County concerning building codes. I was on the Broken Top Community Association Board for three years as well as two additional years on the Board of a Broken Top Neighborhood within the broader Community Assoc. My final position was Treasurer. I have known Bill and Leigh for twenty five years.They are of high moral character, are hard workers who treat their clients fairly and equitably without exception.They are law abiding citizens on all levels. Even without these qualities,they are entitled, as are all citizens,to "equal protection" under the law. I am including the printout of the website page from Deschutes County pertaining to Code Enforcement and am asking you to respectfully consider the following three questions: 1 Does the County consider some actions by the Dowells to be in violation of the Codes? It would appear the Dowells have since actions have been taken versus the Kuhns by the County were based on the Dowells actions. 2 Would you please review the Code Enforcement Mission Statement as posted and review the facts in this case to determine if the operation principles as listed were adhered to: namely the "consistency" and "flexible in timing, not in Code". 3 Lastly, if there is a determination of a Code violation occurrence, has the process been followed as outlined pertaining to Code violations(edited for brevity): "Sheriff's Office sends or delivers a warning" "Sheriff's Office issues a Citation(s)" "Injunction Contempt of Court Daily Fines for Non Compliance Property Lien Foreclosure" Please review these items in light of the fact that the Kuhns have been harmed in numerous ways, all the time being law abiding citizens who are following the process as established by the County. For simplicity sake, please refer to the document prepared by Patricia Gainsforth and named in the video presented here today.This document, prepared by a long standing and extremely well respected Realtor identifies one, and only one of the many issues. It is abundantly clear that the Kuhns are not asking for any special treatment,they are only asking to be treated equitably. Please consider this request as an appeal to restore the economic and living benefits that the Kuhns worked so hard to accomplish, all the while adhering to the County's requirements to the "letter of the law". Respectfully, / & AV1 Kevin Serrapede C nhancin the lives of citizens by delivering c f�1�' ., f Y g quality r services in a cost-effective manner. Search Code Enforcement The mission of code enforcement in Deschutes County is to protect the health and safety of the county's residents and visitors, and the livability of the community, by assuring compliance with the county's land use, environmental and construction codes. The county will assure code compliance both by encouraging voluntary compliance and by punishing code violators who do not comply. The Community Development Department administers the Code Enforcement program for Buildings, Environmental Soils, Land Use and Solid Waste. The division consists of two code enforcement technicians and a law enforcement technician from the Sheriffs department. Deschutes County Code Enforcement operating principles focus on: • Citizen complaints • Voluntary compliance emphasis • Consistency • Flexible in timing, not in code When a code violation is identified every effort is made to work with the property owner to resolve the issue. If all efforts are exhausted it's necessary to start the enforcement process which proceeds as follows until issue is resolved: • Sheriff's Office sends or delivers a warning - if the issue is not resolved in the specified time • Sheriff's Office issues a Citation (s) - if the issue still continues • Injunction o Contempt of Court o Daily Fines for Non-Compliance o Property Lien o Foreclosure Frequently Asked Questions or " 2a i a 400t. 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 AGENDA REQUEST & STAFF REPORT For Board Business Meeting of January 13,2016 DATE: December 8, 2015. FROM: Peter Gutowsky CDD (541)385-1709 TITLE OF AGENDA ITEM: Public hearing on an application for a Declaratory Ruling 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 1.6-11-19, tax lot 300. Tax lot 300 is an approximately 33.21-acre open space parcel owned jointly by the Dowells and Kuhns. PUBLIC HEARING ON THIS DATE? Yes BACKGROUND AND POLICY IMPLICATIONS: Jeff and Pat Dowell applied for a declaratory ruling as described above. This request was made in an attempt to meet the Condition of Approval no. 2 from a conditional use permit in 1980(file no. CU-80- 22). The conditional use permit was for a cluster development in the Forest Use(F-3)zone, and included two parcels of approximately 4.3 acres each, and the open space parcel. This application went before the County Hearings Officer, who issued a decision mailed out on June 4, 2015, with seven conditions related to the required maintenance agreement. The Dowells appealed the Hearings Officer's decision and the Board, under Order No. 2015-032,agreed to hear the appeal de novo. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Conduct the hearing and either close the oral and written records, or leave the written record open for additional testimony. ATTENDANCE: Peter Gutowsky, Planning Manager DISTRIBUTION OF DOCUMENTS: The Planning Division will distribute the Board's decision to all the parties. Community Development Department Planning Division Building ilsgsty Division Etrivironnientsi Soils Division ,Ant o \' r\r u',v``\`\\Y`Y\ n V rlr\w:;;r rrN wp i F `u'S\N PPp V�11.N\agvgprVrraUprgw\p4Plpr\p'8\wN\r wNr&r;rPo,'lrruOVNW`',1pur rPtlJi,�1 �'\"�f\\\'\\�\\\\\\N�\Gr0\h\�Vp\\\H\\\Nr P 0 Box 6005 117 NW Lafayette Avenue Bend.Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cddi MEMORANDUM DATE: January 4, 2016 TO: Board of County Commissioners FROM: Peter Gutowsky, Planning Manager RE: DR-13-16 (247-14-000165-A): Appeal of Hearings Officer's Declaratory Ruling Decision The Board of County Commissioners (BOCC), under Order No. 2015-032, determined they would hear an appeal of a Hearings Officer decision regarding a declaratory ruling, and the hearing would be de novo. The public hearing is scheduled for Wednesday, January 13. I. Background Applicants, Jeff and Pat Dowell, applied for a Declaratory Ruling (DR) to clarify what requirements are necessary for a maintenance agreement to be approved for property identified on County Assessor's Map 16-11-19, tax lot 300. The DR is based upon a Condition of Approval (no. 2) associated with a conditional use permit (file no. CU-80-22) for a cluster development in a former Forest Use zone (F-3).1 It was approved in 1980, with an associated partition (MJP-79-232). The property history is described in the Hearings Officer's decision on pages 3-8. The cluster development included a 41.8-acre parent parcel, which was partitioned into three parcels—two residential 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 application, and is owned jointly by the Dowells and Kuhns, the respective owners of tax lots 100 and 200. The Community Development Department allowed both the Dowell and Kuhn properties to be developed based on the "Land Use Restrictions" document recorded in 1987 (Volume 148, Page 1792). The BOCC subsequently determined in a written decision (A-09-4/A-09-5/A-09-7; a Land Use Compatibility Statement) that the recorded deed restrictions, dated July 20, 1987, do not include provisions to assure the maintenance of the common property in the partition, nor do they create a homeowners association. The BOCC determined the condition no. 2 requirement has not been met. The DR application went before a Hearings Officer on December 3, 2013. The record closed on March 28, 2014 and a decision was issued on June 3, 2014. The Hearings Officer determined 1 Condition of Approval no.2 of CU-80-22 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. Quality Services Performed with Pride that the proposed agreement did not meet the requirement for a maintenance agreement, and set forth conditions for an agreement, including one that both the Dowells and Kuhns must sign a common property maintenance document. II. Appeal The Dowell's notice of appeal identified the following issues: • Declare what provisions would be acceptable in a homeowners agreement. • Declare a homeowners association agreement can be between the parties or third parties. • Homeowners association or maintenance agreements should only contain common property maintenance requirements, and not an open space vegetation maintenance requirement for wildlife habitat. • Correct Hearings Officer's conclusion that the property must be maintained for wildlife habitat values. • Correct Hearings Officer's conclusion that both parties must execute the obligations of the original developer jointly, including jointly signing the homeowners association or maintenance agreement. • Correct Hearings Officer's conclusion that implies the interest of the open space parcel cannot be severed from the residential parcels. The required association or agreement need not be jointly signed by the parties and the resulting document need only be recorded against the open space parcel. Ill. Deadline for Local Decision This specific DR is not subject to the 150 day deadline for a local decision. IV. Next Steps At the conclusion of the hearing, the BOCC can choose one of the following options: 1. Continue the hearing to a date certain. 2. Close the hearing and begin deliberation. 3. Close the hearing and leave the written record open to a date certain. Deliberations will be scheduled at a date to be determined. 4. Close the hearing and then allow a specified amount of time for a rebuttal period; and a specified time for final argument. Deliberations will be scheduled at a date to be determined. 5. Close the hearing, allowing the applicant a specified amount of time for final argument. Deliberations will be scheduled at a date to be determined Attachments: A. Applicant's Notice of Appeal B. Hearings Officer Decision (DR-13-16) Attachment A BRYAN "1' LOVLiEN jARV1S Jc11t.C,, May 14, 2015 TORNt:ua Via: E-mail and Regular Mail Paul Blikstad, Senior Planner ""' ' Deschutes County Community Development Department c..ncu,o,kc 117 NW Lafayette Ave Bend, Oregon 97701 Paul.Blikstad@deschutes.org Re: Jeff and Pat Dowell •,,.;,,hz, Deschutes County File Nos,: DR 13-16/MA 14-1 /247-14-000165-A Dear Paul: As you know,we asked that this matter be placed on hold on June,20, 2014 in order to attempt to resolve the matter with the Kuhns with facilitation by David Doyle and Nick Lelack. We appreciate all their efforts to that goal. Unfortunately, that attempt did not result in a settlement. At this time,please reactivate the appeal and contact me to discuss scheduling the next step. Thank you. Sincerely, Sharon R. Smith smith®bljlawyers.com c: Nick Lelack (via e-mail only:Nick,Lelack@deschutes.org.) David Doyle(via e-mail only:David.Doylgadeschutes.org) A legacy of s e r vpa21s7&69-oo0uc9:4JO m mu n i t y. (09187016-00558399;1) b91 oW Mill View Way,Bend,OR 97702 , p 541,362,43a: 1 F' 5,11,89.33M , b1Jlawyers,cn,n 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 (09187016-00452668. 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 ("IL") 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, arid 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 Paget of 3 {09187016-0045266R,l; 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. TL 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: ii SHARON R. SMITH,OSB 4862920 GARRETT CHROSTEK, OSB#122965 Of Attorneys for Applicants Notice of Appeal Page 3 of 3 109187016-00452668;1) BEFORE THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY DR-13-16 ) As modified by ) REQUEST FOR DE NOVO REVIEW MA-14-1 (247-14-000165-A) ) APPELLANTS: Jeff and Patti Dowell c/o Bryant,Lovlien&Jarvis,P.C. 591 SW Mill View Way Bend,Oregon 97702 ATTORNEY: Sharon It 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: Appellants request the Board of County Commissioners hear this appeal de novo to provide a resolution to a long running dispute. I. BACKGROUND: On June 16,2014, Appellants Jeff and Patti Dowell (the "Dowells") filed a "Notice of Appeal" of the Hearings Officer's decision in DR-13-16 as modified by MA-14-1 (the "Appeal"). The Appeal is part of a long standing dispute between the Dowells, opponents Bill and Martha Kuhn (the "Kuhns") and the County. Full details of the dispute are set out in the Hearing's Officer's decision. Pursuant to the County's request, Applicants stayed the Appeal in order to pursue settlement negotiations with the Kuhns. These negotiations did not result in a settlement. With the encouragement of the Kuhns, the Dowells reactivated the Appeal. While the Notice of Appeal requested an on the record review of the Appeal, the Dowells now request de novo review for the reasons set out in this"Supplemental Request for De Novo Review." II. EXHIBITS: A-1. HO Agreement- September 2014 A-2. Letter from David Doyle dated January 13,2014 A-3. E-Mail chain between the parties dated Feb. 27—April 15,2015 A-4. Draft HO Agreement-Conveyance A-5. Draft HO Agreement-No Conveyance A-6. Appellants'Notice of Appeal Request for De Novo Review Page 1 of 3 (09187016-00562065;4) III. DE NOVO REVIEW: De novo review is appropriate in order to fully flesh out the issues that will allow the Board to assist in resolving a long standing land use dispute and deciding matters of interpretation of County Code. This Appeal was placed on hold at the request of County Staff who initiated an attempt to mediate this matter. There have been several prior mediation attempts over the decades' long dispute. The goal of the mediation was to resolve all outstanding matters among the parties and to determine what would be an acceptable homeowners' maintenance agreement (hereinafter referred to as"HO Agreement"). The County worked with the Kuhns to develop an"acceptable" HO Agreement. The County Staff provided the HO Agreement attached as Exhibit A-1 to Dowells as an HO Agreement acceptable to the Kuhns. Dowells raised concerns regarding that HO Agreement because there were inconsistent remedies in the existing deed restrictions and the proposed HO Agreement, as well as, subjective standards that could be the source of future litigation. For example,that HO Agreement draft stated that: "exterior lights shall be left on no longer than absolutely necessary." The Dowells suggested edits to clarify the terms and address their concerns. A series of subsequent negotiations occurred, which are too numerous to detail. Our understanding is that the County found the Dowells' revised draft acceptable. The revised HO Agreement provided that the Dowells would convey the jointly owned property to the Kuhns. However, the Kuhns would not agree to resolution until they had a face to face meeting with the Dowells and were paid a substantial financial settlement. Dowells subsequently conceded to prohibit all livestock and dogs, believing this was of major importance to the Kuhns. This concession was not sufficient for the Kuhns. The Kuhns rejected Dowells proposal and the County sent a letter January 13, 2015, attached as Exhibit A-2 stating that the Kuhns were unwilling to continue negotiations absent a face to face meeting and financial settlement. As a last attempt to try and resolve the matter, the Dowells met with Mr. Kuhn. The results were unsuccessful. Attached as Exhibit A-3 is an e-mail exchange between the parties following the meeting. It is clear that the parties have different perspectives. However, the Dowells' perspective is that the Kuhns will not be satisfied unless the Dowells give them the jointly owned property, as well as, the Dowells' property at a deep discount and the residence on the Dowells' property is moved from its current location, which has been approved by the County and affirmed upon appeal to LUBA. It is apparent that the parties will not agree upon the terms of an HO Agreement. The Dowells ask that the County hear the Appeal de novo and take the following actions: 1. Declare what provisions would be acceptable in an HO Agreement. Attached as Exhibit AA4 and Exhibit A-5 are examples of proposed HO Agreements based on the original HO Agreement that the Kuhns found acceptable. Exhibit A-4 contemplates the Dowells conveying the joint property to the Kuhns. Please note, this is only workable if the Request for De Novo Review Page 2 of 3 109187016-00562065;4 Kuhns agree to accept the joint property. Exhibit A-S is an HO Agreement that assumes that the Dowells and Kuhns retain joint ownership of the open space property. 2. Declare that an HO Agreement can be between the parties or third parties as outlined in the Notice of Appeal (attached as Exhibit A-6). 3, Clear up the errors in the Hearings Officer's Decision as described in the Notice of Appeal (attached as Exhibit A-6). Several of the attached exhibits were created following the public hearing before the Hearings Officer. Such exhibits would thus not be properly before the Board if the Board reviews the Appeal on the record. The exhibits are critical for resolving the matter because they reflect developments in the nature and scope of the dispute and set out potential options for the Board to consider in deciding this matter. To allow for more robust consideration of this Appeal, and to facilitate a more comprehensive resolution, the Dowells respectfully request that the Board hear this Appeal de novo. SUBMITTED this 27th day of May,2015 BRYANT, LOVLIEN &JARVIS, P.C. By: SHARON R. SMITH, OSB#862920 GARRETT CHROSTEK, OS134122965 Of Attorneys for Applicants Request for De Novo Review Page 3 o f 3 109187016-00562065;4) 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 wildlife habitat;and WHEREAS,the approved "cluster development"created two parcels for residential development and one wildlife habitat parcel("Wildlife 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 Wildlife Parcel;and WHEREAS,a 2002 Order of the Deschutes County Circuit Court(Case No.01-CV-0233- MA), required Party 1 to enter into a homeowners agreement with Party 2 that, at a minimum, assured maintenance of the Wildlife Parcel;and CC&Rs-Dowell Kuhn Page 1 Exhibit A-1 Page 1 of 5 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 gp Y County. The prevailing art at arbitration shall be entitled to an award p 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 p ractical, 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 EXHIBIT 1 (Legal Description) CC&Rs--Dowell/Kuhn Page 5 Exhibit A-1 Page 5 of 5 0-TES 0, Legal Counsel 1300 NW WALL STREET,SUITE 205•BEND,OREGON 97701-1960 TELEPHONE 541.388.6623 541.388.6624 FACSIMILE 541-617.4748 David Doyle,Legal Counsel Laurie E,Craghead,Assistant Legal Counsel Christopher Bell,Assistant Legal Counsel John E.Latterly,Assistant Legal Counsel January 13, 2015 Sharon R. Smith, Esq. Please Refer To 13L J File No.4/1 591 SW Mill View Way Bend. OR 97702 Re: Kulin/Dowell Dear Sharon: Nick, myself and Deputy County Administrator Erik Kropp met last Friday with Bill Kuhn, Leigh Kuhn,and their attorney Andrew Mothers. Despite repeated efforts to keep Bill focused on finding a path forward, he continued to bring up past wrongs and injustices that he feels the Dowells and/or Deschutes County have perpetrated. Many times during the meeting it seemed as if Bill and Leigh were not always on the same page with regard to what it will take to get them to sign a CCR and settlement agreement. Toward the end of the meeting I asked Bill to re-draft the CCRs in a version that included every final concession that he and Leigh are prepared to make. He refused, stating that there can be no agreement on the CCRs until the Kuhns and the Dowells have a face-to-face meeting during which the Kuhns will present their grievances and monetary demands. Thereafter, if the monetary demands are met, the appropriate OCRs and settlement agreement can be prepared. At that point I called Bill out and asked "is this all about money?" He didn't answer. Finally, as the meeting was ending Bill suggested that I advise you to re-activate the Hearings Officer/ 130CC appeal (DR 13-16). It appears that we have circled buck to square one. In my opinion, no concession -- short of'conveying TI, 300 to Kuhn for free and TL 100 to Kuhn for an amount below market value — will satisfy his needs and result in recorded CCRs and a fully executed settlement agreement, Nick and I remain willing to continue working with Bill and Leigh should you see additional concepts or strategies that might bring about settlement and closure. if not, we are prepared to disengage. Quality Services Pt'ifornicd with Pride Exhibit A-2 Page 1 of 2 Sharon R.Smith,Esq. January 13,2015 Page 2 Your Cooperation and good faith efforts are acknowledged and appreciated. Please let me know how you and your clients wish to proceed. Thank you. Respectfully. \(14 ' David Doyle Deschutes County Legal Counsel david.dgylendeschutes.o Cc: Nick Lelack, CDD 1JD/s Exhibit A-2 Page 2 of 2 Sharon Smith From: Jeff@Outlook[jeffdowell@outlook.com] Sent: Tuesday,April 14,2015 9:57 AM To: 'William Kuhn';'_Leigh WRDc RF' Cc: 'Dowell Pat at outlook' Subject: RE:Dowell Kuhn Meeting? Bill, The summary you have provided below leaves out key discussion points from our meeting: 1) You stated that we still had'house-siting issues'that needed to be addressed and resolved before any Agreement with you could be reached.The current citing of our house,has been finally approved by the County, LUBA and the State Appellate Court. That is no longer an issue. 2) We asked what better deal you could possibly hope for us to put forth beyond our most recent offer,in order to get this issue resolved and move on. You then stated that no offer from the Dowell's,short of our relinquishing ownership of our property,was acceptable to the Kuhn's. You further stated that as part of this sale to you or another party,you would approach the would-be buyer to'remove the existing structure and build any new structure(s)100 ft closer to Sisemore Rd.' 3) As a last ditch effort to find resolution,we did offer to put our place up for sale,but only at a price point equal to what the property was worth to us—not an amount that any appraiser,or group of appraisers might come up with. 4) Unfortunately,none of our offers were acceptable to you,so we find ourselves in exactly the same situation as we were when entered into this negotiation: The need for some other party(Commissioners,judges,lawyers) to determine our mutual fate. 5) To be clear,we do not need to sell our property to anyone,unless we get our asking price,based on recent sales of similarly configured cluster developments in our area. We are happy to hold the property for the long term, and sell it at some point In the future,or perhaps Just pass it onto another family member. Thank you. JO From; William Kuhn[mailto:william @riskfactor.com] Sent:Friday,April 10,2015 4:05 PM To:'Dowell Pat at outlook';Jeff@Outlook Cc: Leigh WRD @RF Subject:Re:Dowell Kuhn Meeting? Pat and Jeff, is this a fair summary of the meeting on Thursday at the Bend Library? There was no meaningful consensus as to how to move beyond our current impasse except that the Kuhns asked the Dowells to move forward with their appeal, which the Dowells indicated Exhibit A-3 Page 1 of 4 they would. The Kuhns remain willing to meet in order to satisfy the requirements of CU-80-22 as soon as the current appeal of DR-13-16 is exhausted, In general the Dowells believe they made some very significant concessions (by agreeing to 'no dogs' on any of the 3 parcels, and giving the Kuhns outright the joint property TL#300), in exchange for the Dowells to be able to move forward with their development, eliminating all past disagreements,all issues of lack of cooperation,and financial issues past and future. The Kuhns indicated they wanted any agreement to include the Dowells relinquishing their ownership within our cluster development, although no specifics were discussed. In summary the two stumbling blocks seem to be: the Dowells want $750,000 to willingly give up ownership,and the Kuhns want the Dowells gone but have no interest in paying the DowelIs $750,000. Please share your interpretation of events if you feel this is not a fair representation of our discussion, Thank you, Bill William Kuhn INVEST/0 - Registered Investment Advisors PO Box 5996 Bend, OR 97708-5996 541 389 3676 William@RiskFactor.com "Illegitimi non carborundum" - refers to the continuing acts of Deschutes County "First, they ignore you, Then they laugh at you. Then they fight you. Then you win." Mahatma Gandhi —0%901 M From .Jefitddt ' To:'William Kuhn';'Dowell ' .� ',well Pat at �..} � ..,�. �:�� , , n .. � z� ,. Cc: Lelah WRDORF' Sent: Friday, March 27,2015 2:50 PM Subject: RE:Dowell Kuhn Meeting? Bill and Leigh, Apologies for the delays,but I've spent far more time on the road for work over the last few weeks than I'd anticipated, and it will continue through April 6th, and then let up. So we'd like to propose getting together in one of the private meeting rooms at Tetherow Lodge for an hour,sometime between 3pm and 5pm the week of the 7th of April, if that can work for you. 2 Exhibit A-3 Page 2 of 4 Let us know what fits your schedule and we'll take care of getting the room reserved. Thanks JD From:William Kuhn[mailto:william@riskfactor.com] Sent:Tuesday,March 24,2015 8:29 AM To:Dowell Pat at outlook;Dowell Jeff at outlook Cc:_Leigh WRD@RF Subject:Fw:Dowell Kuhn Meeting? Pat and Jeff, This is a resend of our response to your acceptance of our invitation to meet. Please let us know you have received this email. Thank you, Bill — ill — original Message �From on:.,.—. To:Jeff(diOutlook;windriverdesionOriskfacjgf.com Cc:'Pat Dowell' Sent:Wednesday,March 04,2015 10:45 AM Subject:Re: Dowell Kuhn Meeting? Pat and Jeff, Good, When you are ready give us a couple of possible meeting dates and times. Early afternoon is usually best for us. We will find a neutral location to meet. We are approaching this as a private and confidential meeting between the four of us, Thank you, Bill and Leigh Ortglnal Message F To:wilitem4riskfactar.corn. ;windriverdesignw 2riskfactor.corm Cc:'Pat Doweir Sent:Friday,February 27,2015 1:55 PM Subject Dowell Kuhn Meeting? Bill and Leigh, 3 Exhibit A-3 Page 3 of 4 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 roam? 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 4 Exhibit A-3 Page 4 of 4 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 Page 1 (09187016-00500n70;8} Exhibit A-4 Page 1 of 5 WHEREAS,a 2002 Order of the Deschutes County Circuit Court(Case No.01-CV-0233- MA), required Party 1 to enter into a homeowners agreement with Party 2 that,at a minimum, assured maintenance of the Open Space Parcel;and WHEREAS, Party 1 and Party 2 acknowledge the 1987 deed restrictions recorded at Volume 148, Page 1792 (Document 87-14178) and agree that those restrictions, as deemed applicable by Party 1 and Party 2 have been expressly incorporated into this CC&R and upon recording of this CC&R the recorded deed restrictions identified as Document 87-14178 become null and void and no longer burden or encumber the PARCELS;and WHEREAS, Party 1 has conveyed all of its right,title and interest in the Open Space Parcel to Party 2 and Party 2 has agreed to maintain the Open Space 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 A. Tax Lot 300: Party 1 and Party 2 agree to impose the below-listed covenants,conditions and restrictions on the use of TL 300 for the mutual benefit of the parties and for the protection of wildlife and open space values: 1. Party 2 agrees to abide by the ODF&W Wildlife Habitat Conservation Plan. 2. No person may develop or divide the Open Space Parcel. 3. No livestock grazing is allowed (including but not limited to horses, cattle, llamas, sheep, emus,ostriches, pigs,chickens,game birds). 4. No fencing is allowed. 5. No motorcycles or off-road vehicles shall be used 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. r CC&Rs-Dowell/Kuhn Page 2 {09187016-00500870;8) Exhibit A-4 Page 2 of 5 B. All Parcels(Tax Lot 100,Tax Lot 200,Tax Lot 300): 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)addressing their actions and uses on the PARCELS. 2. In addition,the following maintenance standards/restrictions apply to ALL PARCELS: a. No dogs are allowed. b. No hunting or trapping is allowed. c. No discharge of firearms is allowed. d. No livestock grazing is allowed (including but not limited to horses,cattle, llamas, sheep,emus,ostriches, pigs,chickens,game birds). e. No dumping or storing of waste material is allowed. f. No unsecured trash is allowed, and all trash will be timely removed. g. No open burning is allowed. h. No new utility lines or extensions to existing utility lines may be located above ground. i. No fencing is allowed with a top rail higher than 42"and a bottom rail lower than 18". No metal,barbed wire,straight wire fences or metal fence posts are permitted. No fencing is allowed on Tax Lot 300. j. No noxious weeds shall be allowed to propagate and 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. k. To the extent practical, power equipment and generators shall be placed and used inside buildings to mitigate noise I. Exterior lighting,including security lighting, shall be low-intensity, adequately shielded to eliminate spillage, and directed downward. m. Any new construction shall to the extent practical use fire resistant building materials. C. Additional Terms: 1. 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. 2. 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 3 {09187016-00500870;8} Exhibit A-4 Page 3 of 5 3. 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 , by William a Y John Kuhn. Notary Public for Oregon STATE OF OREGON, County of Deschutes: ss. This instrument was acknowledged before me on , 2014, by Martha Leigh Kuhn. Notary Public for Oregon STATE OF OREGON, County of Deschutes: ss. This instrument was acknowledged before me on ,2014, by Jeffrey T. Dowell. Notary Public for Oregon STATE OF OREGON, County of Deschutes: ss. This instrument was acknowledged before me on , 2014, by Patti J. Dowell. Notary Public for Oregon CC&Rs-Dowell/Kuhn Page 4 (09187016-00500870;8) Exhibit A-4 Page 4 of 5 EXHIBIT 1 (Legal Description) CC&Rs-Dowell/Kuhn Page 5 {09187016-00500870;8} Exhibit A-4 Page 5 of 5 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 Exhibit Ag a" Page 1 of 6 WHEREAS,the Parties have agreed to maintain the Open Space 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 A. Tax Lot 300: Party 1 and Party 2 agree to impose the below-listed covenants,conditions and restrictions on the use of TL 300 for the mutual benefit of the parties and for the protection of open space values; 1. No person may develop or divide the Open Space Parcel. 2. Livestock(including but not limited to horses,cattle, llamas,shee p,emus, ostriches, pigs, chickens,game birds)grazing is not allowed. 3. No fencing is allowed. 4. No motorcycles or off-road vehicles shall be used 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. 5. The Parties shall agree annually on the maintenance to be done and who will perform the maintenance. If the parties are unable to agree,they will follow the provisions of paragraph A.6. below. Tax Lot 300 shall be maintained to the following standards. a. Noxious weeds. Noxious weeds shall be removed in accordance with Deschutes County Code. Each Party shall make a reasonable effort to use environmentally safe methods of weed control and avoid using pesticides harmful to humans, animals,and wildlife. b. Trees. All trees must be separated by a distance equal to the diameter of the crowns of adjacent trees,or 15 feet from the bases of such adjacent trees, whichever is greater. All trees remaining on the property after thinning will be pruned and limbed to maintain a minimum of 80%crown length (live green foliage)on the live tree.The 80%crown shall be measured vertically from the top down the trunk toward the ground a distance that is equal to the height of the tree multiplied by 80%. Any branches or limbs below that 80%height shall be removed.All dead trees will be removed. c. Grass and Brush.All grass and brush shall be maintained to a height of no more than four(4) inches within 130 feet of any structure. d. Trash. Trash shall be removed. .r CC&Rs-Dowell/Kuhn ExhibitP,g� Page 2 of 6 6. The Parties shall treat one another with respect.The Parties shall identity early and work towards amicable resolutions any and all disputes. The Parties agree to participate in good faith in the Deschutes County Mediation program prior to taking any legal action. Failure to agree to and participate in mediation shall negate any right to seek attorney fees. 7. Taxes: a. Each Party shall be responsible for one-half(1/2)of the property taxes assessed against Property. b. The Deschutes County Assessor created a split assessment account for the Property that corresponds to Parcels 1 and 2 shown on Exhibit 2. c. Party 1 shall pay the assessment with the current account number 264944 (Parcel 1)and Party 2 shall pay the assessment with the current account number 264943 (Parcel 2). d. Neither party shall request a consolidation of the tax accounts into one account. e. In the event that the Deschutes County Assessor consolidates the two accounts into one account,each party shall continue to be responsible for one-half(1/2) of the property taxes assessed against Property. B. All Parcels(Tax Lot 100,Tax Lot 200,Tax Lot 300): 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)addressing their actions and uses on the PARCELS. 2. In addition,the following maintenance standards/restrictions apply to ALL PARCELS: a. No fencing is allowed with a top rail higher than 42"and a bottom rail lower than 18". No metal, barbed wire,straight wire fences or metal fence posts are permitted. No fencing is allowed on Tax Lot 300. b. No hunting or trapping is allowed. c. No discharge of firearms is allowed. d. No dumping or storing of waste material is allowed. f. No unsecured trash is allowed,and all trash will be timely removed. g. No open burning is allowed. h. No new utility lines or extensions to existing utility lines may be located above ground. i. No fencing is allowed with a top rail higher than 42" and a bottom rail lower than 18". No metal, barbed wire,straight wire fences or metal fence posts are permitted. j. No noxious weeds shall be allowed to propagate and owners shall use only environmentally safe methods of weed control and not use pesticides or CC&Rs—Dowell/Kuhn p Exhibit Ag Page 3 of 6 herbicides harmful to human, animals or wildlife. Each owner shall use biodegradable detergents,soaps and cleaners whenever possible. k. Exterior lighting, including security lighting,shall be low-intensity,adequately shielded to eliminate spillage, and directed downward. m. Any new construction shall to the extent practical use fire resistant building materials. n. 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. C. Additional terms: 1. The covenants,conditions and restrictions contained in this document run with the land and bind the heirs,successors and assigns of the parties hereto. 2. In the event either Party engages an attorney to enforce this Agreement or any of its terms, if a suit or action is commenced, it is agreed that the prevailing party shall be entitled to recover all expenses reasonably incurred before, at and after trial and on appeal to be paid by the losing party to the prevailing party and to be fixed by the arbitrator,trial or appellate courts.The parties agree that venue and jurisdiction shall be Deschutes County, Oregon. 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 STATE OF OREGON,County of Deschutes: ss. This instrument was acknowledged before me on 2014,by Patti J.Dowell. Notary Public for Oregon CC&Rs.. ......11. ... EXh l bl1P�g�4. Dowell/Kuhn Page 4 of 6 STATE OF OREGON,County of Deschutes: ss. This Instrument was acknowledged before me on ,2014,by William John Kuhn, Notary Public for Oregon STATE OF OREGON,County of Deschutes: ss. This instrument was acknowledged before me on ,2014,by Martha Leigh Kuhn. Notary Public for Oregon CC&Rs-Dowell/Kuhn p g Exhibit A-5 Page 5 of 6 EXHIBIT 1 (Legal Description) CC&Rs-Dowell/Kuhn Exhibit p Agg Page 6 of 6 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 Sisennore 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 CUJ-80-02, which mandates an `acceptable written agreement' prior to the sale of any lot in the cluster development established by CU-80-02. 1. 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. ll, 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 Nonce of Appeal Page I of 3 1091EtAtl oV6 Page 1 of 3 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-l5 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 ("IL") 300 and requiring that the property he 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 1-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 i f both parties "step into the shoes of the Developer," and nothing prevents the maintenance agreement to he 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 09I 1>tbt6A-P Page 2 of 3 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 IL 300, Moreover, Condition #1 to CU-80-2 only requires that IL 300 he in joint ownership prior Ia 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. TL 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 IL 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 I& day of June, 2014 BRYANT, LOVLII N & JARVIS, I.C. SHARON R. SMITH, OSB#862920 GARRET T'CI-IROSTEK, OSF#122963 Of Attorneys for Applicants Notice edAppeal Page 3 of 3 1091@+?>rhtblf'6A46 Page 3 of 3 :+r , BEFORE THE DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPARTMENT ) DR-13-16 ) As modified by ) ARGUMENT ON APPEAL MA-14-1 ) ) APPLICANT/OWNER: Jeff and Patti Dowell do 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. EXHIBITS: A-7. BOCC Power Point Slides A-8. Page 2 of judgment in Cv-0233-MA II. ASSIGNMENTS OF ERROR: 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. Recorded Deed Restrictions Satisfy the Open Space Restrictions 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 Notice of Appeal Page 1 of 5 {09187016-00610752;2} 71111■ 1 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 cluster development, Section 8.05(16)(C)(b) of PL-l5 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. TL 300 is Not Limited to Wildlife Habitat Values 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 establish 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 �, rve. Thus, the County cannot obligate that IL 300 be maintained as a wildlife preserve prese Thu., y g P requirements be and cannot impose additional open space maintenance and those included in the y Land. Use Restrictions. If the County determines that TL 300 may only be maintained and used for wildlife habitat, it will have deprived the property owners of all economically beneficial use of the property and thus violated Article I, Section 18 of the Oregon Constitution and the 5th Amendment to the U.S. Constitution. Joint Execution of Maintenance Agreement is Not Required 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 that 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, Notice of Appeal Page 2 of 5 {09187016-00610752;2} 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. This provision must be construed to allow third party agreements because nothing required that the property be jointly owned. If owned by a single party, this provision would be meaningless unless the required agreement could be between either the Kuhns or Dowells and a third party. Tax Lot 300 Can be Separately Owned 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 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. Finally, ORS 94.665 allows homeowner associations to convey common property, why should the Kuhns and Dowells not be afforded similar rights? III. COLLATERAL ESTOPPEL Kuhn has not expressly made the argument, but submission of the Kuhn's property tax appeal and a settlement agreement between Kuhn and the County from 2014 suggests that a collateral estoppel argument is forthcoming. Collateral estoppel is a legal principle that issues already decided cannot be re-litigated in a subsequent proceeding. Specifically, Kuhn will likely argue that the County's stipulation to certain statements in the Kuhn property tax appeal binds the County to those stipulations in the present Declaratory Ruling. Collateral estoppel does not apply to the present Declaratory Ruling and the County is not bound by stipulations in the Kuhn property tax appeal in this proceeding. In Nelson v. Emerald Peoples Util. Dist., 318 Or 99, 103, 862 P2d 1293 (1993), the Oregon Supreme Court enumerated the five requirements that must be met for a tribunal's decision on an issue to preclude litigation of that issue in a subsequent proceeding: 1. The issue in the two proceedings is identical. 2. The issue was actually litigated and was essential to a final decision on the merits in the prior proceeding. 3. The party sought to be precluded has had a full and fair opportunity to be heard on that issue. 4. The party sought to be precluded was a party or was in privity with a party to the prior proceeding. 5. The prior proceeding was the type of proceeding to which [the] court will give preclusive effect. Notice of Appeal Page 3 of 5 (09187016-00610752;2} r � Nelson, 318 Or at 104 (citations omitted). At a minimum, the party asserting issue preclusion bears the burden to establish the first, second, and fourth Nelson factors. Barackman v. Anderson, 214 Or App 660, 666-667, 167 P3d 994 (2007) (citing State Farm Fire & Casualty Co. v. Century Home Components, Inc., 275 Or 97, 104-105, 550 P.2d 1185 (1976)). Thereafter, the burden shifts to the party opposing issue preclusion to negate the third and fifth factors. Barackman, 214 Or App at 667.1 First, the issues in the Kuhn property tax appeal and this Declaratory Ruling are not identical and the issues in this Declaratory Ruling were not essential to resolving the Kuhn property tax appeal. The Kuhn property tax appeal touched on Conditional of Approval #2 for the tangential purpose ose of determining the value of the Kuhn property and TL 300. The specific requirements of Conditional of Approval #2 were not material to the ultimate question of valuation for purposes of property taxes. Second, the Dowells were not a party to the Kuhn property tax appeal and thus never had an opportunity to challenge, edit, or qualify any of the stipulated statements in the settlement agreement.2 That there was common ownership of TL 300 and TL 300 was part of the Kuhn property tax appeal does not establish privity between the parties, particularly in the absence of an HOA or agreement between the Kuhns and Dowels. With respect to the County, to the extent the County constitutes a party to the Declaratory Ruling, the motivations for the Kuhn property tax appeal and this Declaratory Ruling are entirely distinct. In the Kuhn property tax appeal, the County was focused on settling a valuation dispute, not evaluating the requirements of Condition of Approval #2. Thus, the County never had a full opportunity to explore the questions raised in the present Declaratory Ruling proceedings in the property tax appeal proceedings. Finally, it would be precedent setting to invoke a settlement agreement for a property tax appeal as the basis for collateral estoppel in a land use proceeding. Collateral estoppel normally only applies where the issues were "actually litigated", not settled. Moreover, collateral estoppel only has limited application in land use proceedings because local governments can change and re- interpret their local regulations. For these reasons, the stipulations in the Kuhn property tax settlement agreement are not binding on either the County or the Dowells for purposes of this Declaratory Ruling. There is a split in the case law. See Employment Dep't v. Nat'l Maint. Contrs. of Or., Inc.226 Or App 473,490, 204 P3d 151 (2009)(citing Barackman for the proposition that the party asserting issue preclusion bears the burden on the first four factors). However,because Kuhn cannot satisfy factors I-4 against either the Dowells or the County,the relevant standard does not make a difference. 2 There are several errors in the 2014 settlement agreement including: • Section 13: The issue of necessary parties to the required agreement has not been definitively determined. • Section 15: Judge Adler's order simply directed Dowell to comply with Condition of Approval #2, it did not state that the agreement be between Kuhn and Dowell. See attached Exhibit 4-8. Notice of Appeal Page 4 of 5 {09187016-00610752;2) A T IV. PL-15 Included in "Part P' of the Kuhn submission is a copy of PL-15 with some commentary from Kuhn. There is no memo or overview describing the purpose of the submission. One of the comments suggests that the subject cluster development was "illegally created" and cites a number of"violations of law." It is not disputed that the subject cluster development was not approved consistent with applicable law at the time. However, CU-80-22 was not timely appealed and thus the parties are beholden to that decision for better or worse. Despite the inconsistencies, the CU-80-02 approval is not "illegal". The only legal question remaining is how do the parties comply with the conditions of approval for this legally effective, albeit inconsistent, decision. SUBMITTED this 12th day of January, 2016 BRYANT, LOVLIEN & JARVIS, P.C. By: SHARON R. 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U u_ U I I— • • • 1 has caused Plaintiffs to suffer significant mental anguish and awards Plaintiffs non-economic 2 damages in the amount of$5,000.00 against the Defendants and each of them. 3 6) On the Plaintiffs' sixth claim for relief for mandatory injunction, the Court orders 4 the Defendants to enter into a homeowner's association or agreement assuring the maintenance of � 5 the common property as set forth in the conditions required with respect to the conditional use 6 permit which shall, at a minimum, provide that any property taxes and maintenance costs with 7 regard to the common property shall be shared equally. 8 The Defendants' first counterclaim was withdrawn. 9 10 8) On Defendants' second counterclaim,judgment is for the Plaintiffs. 11 9) On Defendants' third counterclaim,judgment is for the Plaintiffs. 12 10) On Defendants' fourth counterclaim,judgment is for the Plaintiffs. so § 13 11) On Defendants' firth counterclaim,judgment is for the Plaintiffs. P4 co 14 a41 � 12) On Defendants' sixth counterclaim,judgment is for the Plaintiffs. � A C i 5 13) On Defendants' seventh counterclaim,judgment is for the Plaintiffs. 16 14) Defendants' eighth counterclaim was withdrawn. 17 a) 15) Defendants' ninth counterclaim was withdrawn. 18 16) Plaintiffs shall have judgment against Defendants for their costs and disbursements 19 20 incurred in this proceeding to be established by the Cost Bill. 21 ******, ************************************************************************ 22 MONEY JUDGMENT ******************************************************************************* 23 Judgment Creditor(s):( ) s : WILLIAM JOHN KUHN and MARTHA LEIGH KUHN,Plaintiffs 24 25 Creditor's Attorney: Gerald A. Martin,OSB#69112 26 Judgment Debtor(s): JEFF DOWELL and PATTY DOWELL,Defendants 2-JUDGMENT EXHIBIT A-8 1 of PL-1 S 4.190. WA_UseLInitatians_MustBeCluster i 3 125 generate Aare or other distracting conditions. (B,) Retention of existing plant materials and, natal L+eatures *Q as to retain as `Ia possible the natural character o the area. (C) Establish Establishment Pof introduced landscape materials to assure patibiiiti with existing vegetation, reduce glare, direct automobile and pedestrian circulation and e�� the overall appearance To US this of the develoc+a .t white not interfeeri r ,nth.and means V the vi to of o ing t:ratf is at access points or views of mountaiaas,forests and �r igno a tote scenic areas as seen tray tt�e p posed site. definition (n N the in this section shall bei construed to Subdivision prevent the use of accepted agricultural practices* Drops Or equipament or rest i+ t: the construction being 4 or of innovative residences, t..e. i'domes houses, except ire their design or citing unduly rc)wheat 1 ore. the esthetic �quatiitiea of the area. a.' ,„ ,s „ �3 .\W ';. . `� t Net\ . "\ ' , x w ° y . t d4 P 1 4 / P '. '' " : . �.` ,^; \�, .a ' ° " !wt...,, +t T tiw h 1 k a^xa 'a a. +. (3) uses Fermi tted outri. ht r In a zone with which the Caine► f e ed he ur�os Pe- ni tte.d ov1t�underlying shall be those permitted outright by the u erlying scne� with which tae I A0. ranee is mined (4) ease Pea�ittedCondit aza l Ina done with which soae�'e ovi bin+ad: conditional aces perau fitted tau be those permitted conditionally by the underlying 200. wn f-h Must be which the la zone i.s c binsd. cluster 6 'P'y m uu4«` \ a ,..a , ,,„#,,, a , ti , ,,,,„,,,Ax,,,‘, .d t.,� t �a I. ,m„,,,,,...;...,,,1-- ,' � '' e4 k development ,*,' ..Y . y��i,"R' d” 'm.,\ "'''�'' 'F Y� ,yam K" . " M ' ■ k ' &aa ffi. s N;' 1b•, y ,,. %v P'LW15 4.190.6 WA Us.L in ans MustBsCk ter il**100#4,ittb0shinsikisocest$0041 vat 33 1 &OPAGE 182 (b) Elementary and secondary schools shall provide a basic site area consistent with state standards for the predicted ultimate enrolment. (C) Secondary schools shall provide a basic site area of 10 acres plus one additional acre for each 100 pupils of predicted ultimate enrollment. p Cluster e � d" (A) Such uses may be authorized as a conditional use only after consideration of the following factors; (a) Need for residential uses in the immediate area of the proposed development. (b) Environmental* social and sic impacts likely to result from the development, including impacts on public facilities such as schools and roads. (c) Effect of the development on the rural character of the area. (d) Effect of the development on agricultural, forestry wildlife or ether natural resource uses in the area The Conditional oottIiit\glinted,\ Use cu-80-22 was illegally (a) No more than 35 percent of the land will be utili= for the development and 65 percent will be kept in created because Cbb did not X4'044'c follow PL-15 (c) The total number of units does not exceed the over- all density estalbished by the minimum lot size Article $,Section of the zone in which the development is proposed. ( )d The rural character of the area shall not be aad- 8.050 (16) va.raely affected. 11:1 *,;" P A `Y 0, \Y1��\ Violations of • ,+ Law can be 440% 0 at thit ilithekklia tettairegulatt found at (B)(b) lb} The area to to preserved tor open space clearly C a designated, ,on the plan and adequate deed rest:irc and at ( )( ) tions to p 1 1 - ,1 .ace rovided. and at (Cxc) tot `, . : (D) Di*enaional Standards: (a) Setbacks and height limitations shall be as pre- scribed in the zone in which the development is proposed unless adequate justification for reducti: x PL:115_8.0 .16.C.c CU Cluster_Requires -136- Written Agreement Establishing Assoolation.gWf • 41/1111 DESCHUTES COUNTY SUBDIVISION/PARTITION ORDINANCE OF 1979 ORDINANCE NO. PL-14 ENACTED ON THE 1st DAY OF November 1979 DESCHUTES COUNTY ORDINANCE NO. PL-14 TABLE OF CONTENTS Article/Section Page 1. INTRODUCTORY PROVISIONS 1 1. 010 Purpose 1 1. 020 Interpretation 1 1. 030 Repealer 2 1.040 Repeal of Ordinances as Affecting Existing Liabilities 2 1.050 Severability 2 1.060 Construction and Terminology 2 1.070 Definitions 3 2. GENERAL REQUIREMENTS AND SUBDIVISION REVIEW COMMITTEE 13 2. 010 Scope of Regulation 13 2.020 Minimum Standards 13 2.030 Subdivision Review Committee 13 2.050 Subdivision Committee Review 14 Factors 2.060 Executive Committee 15 3. APPLICATION PROCEDURE 16 3.010 Application Submission 16 3.020 Required Findings for Approval 16 3.030 Outline Development Plan 17 3.040 Tentative Plan Required 19 3.050 Scale of Tentative Plan 19 3.060 Informational Requirements 19 3.080 Supplemental Information Required 21 3.085 Master Development Plan 23 3.100 Specific Approval Requirements 24 3.110 Resubmission of Denied Tentative 26 Plans 4. FINAL PLAT 27 4.010 Submission of the Final Plat 27 4.020 Form of Final Plat 27 4.030 Requirements of Survey and Plat 28 of Subdivision 4.040 Monumentation Requirements 28 4.050 Information on Plat 29 4.060 Supplemental information with Plat 32 4.070 . Technical Review of Plat 33 4.080 Conditions of Plat Approval 33 i Article/Section Page 4. 100 Final Plat Approval 36 4.110 Recording of Plat 36 4. 120 Filing Plat with State 37 5. LAND PARTITIONING 5. 010 Applicability of Regulations 38 5. 020 Filing Procedures and Requirements 38 5. 030 Requirements for Approval 39 5. 040 Additional Factors to be Considered 40 5. 050 Improvement Requirements 40 5. 060 Final Map or Drawing for 41 Partitioning 5. 070 Application Review 42 5. 080 Appeal 42 5.090 Special Partitioning Regulations 42 5. 100 Partitioning for Financial Purposes 43 6. DEDICATION OF STREETS NOT PART OF 45 A SUBDIVISION 6.010 Application 45 6. 020 Minimum Design Standards 45 6. 030 Procedure 45 4110 7. DESIGN STANDARDS 47 7.010 Compliance Required 47 7. 020 Streets 47 7.030 Blocks 50 7.040 Building Sites 51 7.050 Grading of Building Sites 52 7.060 Special Setbacks 52 7. 070 Large Building Sites 52 7.080 Land for Public Purposes 52 7.110 Sold Waste 54 7.120 Public Utilities 54 7.130 Fire Hazards 54 8. IMPROVEMENTS 55 8.010 Improvement Procedures 55 8.030 Improvements in Subdivisions 55 8. 040 Improvements in Partitions 57 8. 060 Acceptance of Improvements 57 8. 070 Building Permits 57 9. IMPROVEMENTS GUARANTEE 9.010 Agreement for Improvements 58 9. 020 Bond 59 ii Article/Section Page 41/ 10. VARIANCES 59 ' 10.010 Variance Application 59 10 .020 Action of Hearings Officer 59 10. 030 Hearings Officer Action on Variance 59 11. ADMINISTRATION AND APPEALS 60 11.010 Basis of Disposition 60 11. 020 Appeals 60 11. 070 Penalties 60 11. 080 Violation Declared a Nuisance 60 11. 090 Enforcement 60 - 11.110 Compliance with. Oregon Real Estate 60 Regulations 11.120 Civil Relief 60 11. 130 Administration Ordinance 61 11. 140 Severability 61 11.150 Amendment, Repeal 61 11.160 Corrections 61 11. 170 Emergency Clause 61 APPENDIX "A" MINIMUM STANDARDS FOR ROADS WITHIN 62 A SUBDIVISION OR NOT WITHIN A SUB- DIVISION REQUIRED FOR CONSIDERATION BY DESCHUTES COUNTY FOR ACCEPTANCE AS "COUNTY ROADS" 411 • iii r r 0 IN THE BOARD OF COUNTY COMMISSIONERS OF THE STATE OF OREGON FOR DESCHUTES COUNTY , AN ORDINANCE PROVIDING ] SUBDIVISION AND 3 PARTITIONING 3 STANDARDS AND PROCEDURES ] FOR DESCHUTES COUNTY, OREGON ] COUNTY 1 AND REPEALING COUNTY ORDINANCES] ORDINANCE NO. PL-14 NO. PL-2 and PL-7. ] Pursuant to the authority vested in the Board of County Commissioners by Oregon Revised Statutes, Chapters 92, 197 and 215, the following ordinance is enacted. ARTICLE 1. INTRODUCTORY PROVISIONS Section 1.010. PURPOSE. In accordance with the pro- visions of O.R.S. Chapters 92, 197 and 215, this ordinance 1 411' sets forth the minimum standards governing the approval of subdivisions and partitions within Deschutes County as necessary to carry out the County's comprehensive plan and to promote the public health, safety and general welfare. The purpose of these provisions and regulations is to: (1) Ensure that subdivision and partition develop- ment will provide liveable neighborhoods with needed amenities and facilities. (2) Encourage development in harmony with the natural environment and within resource carrying capa- cities. (3) Improve land records and boundary monumentation. Section 1.020. INTERPRETATION. The provisions of this ordinance shall be construed to effect the purposes set forthin Section 1. 010 of this ordinance. These pro- visions are declared to be the minimum requirements ful- filling such objectives, and the County may impose addit- ional conditions necessary to promote the health, safety and general welfare, and to carry out the comprehensive plan. Where conditions set forth herein are less restrictive than comparative conditions imposed 4I by any other provisions of any other local ordinances resolution or regulation, or by provision of state statute or regulation, the more restrictive shall govern. 1 - Y Section 1.030. REPEALER. The following ordinances 410 together with all amendments thereto are hereby repealed: Deschutes County Subdivision Ordinance No PL-2 and PL-7. Section 1.040. REPEAL OF ORDINANCES AS AFFECTING EXISTING LIABILITIES. The repeal, express or implied, of any ordinance by this ordinance shall not release or extinguish any duty, condition, penalty, forfeiture, or liability incurred under such ord- inance, unless a provision of this ordinance shall so expressly provide, and such ordinance repealed shall be treated as still remaining in force for the purpose of sus- taining any proper action or prosecution for the enforce- ment of such duty, condition, penalty, forfeiture, or liability, and for the purpose of authorizing the prosec- ution, conviction and punishment of the person or persons who violated the repealed ordinance. Section 1.050. SEVERABILITY. The provisions of this ordinance are severable. If any section, sentence, clause, or phrase of this ordinance is adjudged to be invalid by a court of competent jurisdication that decision shall not affect the validity of the remaining portions of this ordinance. fie Section 1.060. CONSTRUCTION AND TERMINOLOGY. (1) Construction. Words used in the present tense include the future tense; words used in the singular include the plural, and words used in the plural include the singular; the word "shall " is mandatory; the word "may" is permissive; the masculine shall include the feminine and neuter. (2) Terminology. The word "County" shall mean the County of Deschutes, State of Oregon. The words "Board of County Commissioners" and "Board" shall mean the Board of County Comm- issioners of Deschutes County. The words "Planning Commission" and "Commission" shall mean the County Planning Commission of the County of Deschutes duly appointed by the Board of County Commissioners. The words "Planning Director", "County Engineer", "Assessor", "County Sanitarian" , "Hearings Officer", "County Surveyor" , "County Clerk" , and "Tax Collector" shall mean the Planning Director, Engineer, Assessor, Sanitarian, Hearings Officer, Surveyor, County Clerk and Tax Collector of the County of Deschutes. - 2 S Section 1. 070. DEFINITIONS. As used in this ordinance, the following word and phrases shall mean: (1) Access. The right to cross between public and , private property allowing pedestrians and vehicles to enter and leave property. (2) Advertising. Publication or causing to be published of any material relating to disposition of interests in a land development, which has been prepared for public distribution by any means of communication. (3) Affected Governmental Body. A city, county, state or federal agency or special district which either has a jurisdictional: interest or is of such pro- ximity to the land partition that a reasonable like- ' lihood of annexation exists. (4) Affected Person. Any person adversely affected or aggrieved by a decision relating to the partitioning of land. (5) Agent. Any person who represents or acts for any other person in disposing of interests in a land development. Includes a real estate broker as defined in ORS 696. 010 (12) but does not include an attorney at law whose representation of another Ili, person consists solely of rendering legal services. (6) Alley. A narrow way primarily for vehicular service access to the back or side of properties abutting a street. (7) Block. An area of land bounded by streets or by a combination of streets and public parks, cemeteries, railroad rights-of-way, bulkhead lines or shore lines of waterways, or corporate boundary lines of a city. (8) Building. A. structure which is designated and suit- able for the habitation or shelter of human beings or animals or the shelter or storage of property or for the use and occupation for some purpose of trade or manufacture. (9) Building Line A line on a plat indicating the limit beyond which buildings or structures may not be erected. If no line is shown on the plat, the building line shall be that set forth in the County Zoning Ordinance. (10) Community Water Suvply System. A domestic water supply source or distribution system which serves more than three single residences or other users for the purpose of supplying water for household - 3 - uses, but is neither a municipal water supply system nor a public utility water supply system. (.11) Comprehensive Plan. As adopted by the County pursuant to ORS Chapter 197, ORS 215.050 and 215.060, and in compliance with Statewide Planning Goals. A coor- dinated land use map and policy statement of the county that interrelates all functional and natural systems and activities relating to the use of lands, including but not limited to sewer and water systems, transportation systems, educational systems, recre- ational facilities and natural resources and air and water quality management programs. "Comprehensive" means all-inclusive, both in terms of the geographic area covered by the plan and functional and natural activities and systems occurring in the area cov- ered by the plan. The plan is an expression of public policy in the form of goals, objectives and policy statements, maps, standards and guidelines, and is the basis for this ordinance and other rules, regulations and ordinances which are intended to implement the policies expressed through the plan. (12) Construction Plans. The plans, profiles, cross- sections and drawings or reproductions thereof, approved by. a registered professional engineer, which show the details of the work to be done on improvements. (13) Contiguous. That which touches or connects, including that which only connects or touches a common point; the touching together of two or more tracts of land which lie alongside one another or which touch or connect with one another for any length or distance whatsoever, no matter how finite. (14) Contiguous Land. Units of land under the same owner- ship which abut, irrespective of roadways, easements or rights-of-way. (15) County Engineer. The individual appointed or de- signated by the Board of County Commissioners to serve as Deschutes County Engineer. (16) Cross-Section. A profile of the ground surface perpendicular to the centerline of a street, stream or valley bottom. (17) Curb Lines. The line dividing. the roadway from the planting strip of footway, meaning the inside (street side) of the curb. (18) Developer. Any person, corporation, partnership or other legal entity who creates or proposes to create a land development; includes any agent of a dev- eloper. 4 - P (19) Disposition. Includes sale , lease for more than one year, option, assignment, award by lottery or as a prize, or any offer or solicitation of an offer to do any of the foregoing concerning a land Bever lopment or any part of a land development. (20) Drainage Easement. An easement required for drain- age ditches, or required along a natural stream or water course to preserve the channel, to provide for the flow of water therein, and to safeguard the public against flood damage or the accumulation of surface water. (21) Easement. A grant of the right to use a parcel of land for specific purposes, but in which ownership of the land is not transferred. (22) executive Committee;. See Subdivision Review Committee. (23) Final Drawing. The final Plan for a minor partition. (24) Final Map'. The final plan for a major partition. (25) Fire Break. A break in the ground cover fuels as specified by the fire protection agency involved. • (26) Flood. An overflow of water onto lands not normally covered by water. (27) Flood Hazard Area. The relatively flat area or lowlands 3 g adjoining the channel of a river, stream, watercourse, land- or reservoir. (28) Forest Purposes. The current employment of land primarily for the purpose of raising or harvesting timber products. (29) Frontage. All property fronting on one side of a street and measured along the street lines, between intersecting and intercepting streets of between a street and right of way, waterway, end of a dead- end or city boundary. (30) Improvements. Include, but are not limited to, streets, alleys, curbs, gutters, roadbed, road surface, storm drains and appurtenances, sidewalks, street lights, street signs, fire hydrants, sanitary sewers and appurtenances, public water supply and water distribution systems and other utilities. (31) Interest. Includes a lot or parcel, share, undivided interest or membership which includes the right to occupy the land overnight, and a lessee's . interest in land for more than three years or less - 5 - than three years if the interest may be renewed under the terms of the lease for a total period more than 411, three years. Interest does not include any interest in a condOminizun as defined in ORS 91.500 (22) or anj security interest under a land sales contract, . trust deed or mortgage. Interest does not include divisions of land created by lien foreclosures or foreclosure:- of recorded contracts for the sale of real property. (32) Land Development. The subdividing or partitioning of land for any purpose into parcels or the creation of units or parcels for the purpose of sale or lease for a term of one year or more. Includes intent to dispose of any land, whether contiguous or not, including any land divided, lots, parcels, units or interests offered as a part of a common promotional plan of advertising by a single developer or a group of developers acting in concert. If the land is contiguous or is known, designated or advertised as a common unit or by a common name the land shall be presumed, without regard to the number of lots covered by each individual offering, to be offered for disposition as part of common promotional plan. (33) Lot. A unit of land created by a subdivision of land, intended as a unit for dispos- ition, transfer of ownership or interest, or for development. (A) Lot Area. The total horizontal area contained i with n the lot lines,such area shall be computed as gross area for lots larger than 2. 5 acres and net area for lots 2. 5 or smaller. The total horizontal net area within lot lines of a lot is that square footage of a lot that is free from roads, streets, rights-of-way or easements of access to other property, provided, however, that the Planning Director shall include in gross lot areas all streets, roads and ease- ments of access to other property that would accrue to that lot if the road, street or ease- mentwere vacated, and shall treat the gross area of lots that have never been previously described of record as other than fractions of a section as if the section contained 640 acres, in cases where a lot is sought to be partitioned. (B) Lot,Corner. A lot abutting two or more streets, other than alleys, at their intersection, pro- vided the angle of intersection of abutting streets does not exceed 135 degrees. (C) Lot Depth. The average horizontal distance between the from and rear lot lines. - 6 - (D) Lot Line. The property line bounding a lot. (E) Lot Line, Front. The lot line separating a lot from a street other than an alley. In the case of a corner lot, the longest lot line along a street other than an alley. (F) Lot Line, Rear. The lot line opposite and most distant from the front:lp . line. In the case of an irregular, triangular, or other odd-shaped lot a line 10 feet in length within the lot, p ralielto and at a maximum distance from the front lot line. (G) Lot line, Side. Any lot line other than a front or rear lot line bounding on a lot. (H) Lot, Through or Double Frontage. A lot frontage on two parallel or approximately parallel streets other than alleys. (I) Lot Width. The average horizontal distance between the side lot lines, measured at right angles to the lot depth at a point midway between the front and rear lot lines. (34) Map. A final diagram, drawing or other writing concerning a partition. (35) Monument. A permanent and fixed survey marker conforming to the requirements established by state law and the regulations of Deschutes County. (36) MUTCD. Manual of uniform Traffic Control Devices, Federal Highway Administration. (37) Municipal Water Supply System. A water supply source and distribution system owned and operated by a city or county or special district or other public corporation which has independent tax-levying powers to support the system and which supplies water to a total of 1,000 or more households. (38) Negotiate. Any activity preliminary to the execution of a binding agreement for the sale of land in a subdivision or partition, including but not limited to advertising, solicitation and promotion of the sale of such land. (39) Offer. Includes every inducement, solicitation or encouragement of a person to acquire a lot, unit, parcel or interest in land. - 7 - (40) Owner. The owner of the title to real property or the authorized agent thereof having written notarized authorization recorded with the County Clerk, or the contract purchaser of real property or record as shown on the last available complete tax assess- ment roll or county clerk's records. Does not include an interest created for security purposes. (41) Parcel. A unit of land created by a partitioning of land. (42) Partition'. The act of partitioning land or an area or tract of land partitioned. (A) Major Partition. A partition which includes the actual creation of a road or street. (B) Minor Partition. A partition which does not require the creation of a road or street. (43) Partition Land. To divide an area or tract of land into two or three parcels within a calendar year when such area or tract of land exists as a unit or contiguous units of land under single ownership at the beginning of such year. Partition land does not include divisions of land resulting from the creation of cemetery lots; partition land does not include any adjustment of a lot line by the relocation of a common boundary where an additional parcel is not created and where the existing parcel reduced in size by the adjustment is not reduced below- the minimum lot- size established by any applicable zoning ordinance. A lot line adjustment shall be defined as an alteration which does not create a tax lot additional to those existing in the subject area or tract of land at the beginning of the calendar year in which the adjustment is made. Partition land does not include divisions of land resulting from lien foreclosures or division of land resulting from foreclosure of recorded contracts for the sale of real property Partition land does not include the sale of a lot in a recorded subdivision even though the lot may have been acquired prior to the sale with other contiguous lots or property by a single owner. (44) Person. A natural person, firm, trust, partnership, association, social or fraternal organization, cor- poration, trust estate, receiver, syndicate, branch of government, or any group or combination acting as a unit. - 8 -- (45) Planned Development. The development of an area of land as a single entity for a number of dwelling units or a number of uses, according to a plan which does not necessarily correspond in lot size, bulk or type of dwelling, density, lot coverage or required open space to the standard regulations otherwise required by this ordinance. (46) Plat. A final map, diagram, drawing replat or other writing containing all descriptions, locations, spec- ifications, dedications, provisions and information concerning a subdivision. (47) Potable Water. Water which is sufficiently free from biological, chemical or radiological impurities so that users thereof will not be exposed to or threatened with exposure to disease or harmful physiological ef- fects, and which has such other physical properties as to be reasonably palatable to humans for drinking purposes. Irrigation water shall not be considered potable water for purposes of this ordinance. (48) Preliminary Drawing. A drawing of a proposed minor partition. (49) Public Utilities Water System. A domestic water supply source and distribution system supplying water for 101 household uses, owned and operated by a person subject to regulation by the Public Utility Commission of Oregon, and supplying water to a total of 500 or more households. (50) Public Water System. A system for the provision to the public of piped water for human consumption, if such system has at least 15 service connections or regular- ly serves at least 25 individuals. (51) Reserve Strip. A strip of property contiguous to a public way which is offered to the County for street purposes,which offer is not accepted by the County until additional adjacent right-of-way is acquired by the County,and across which the access rights are abandoned until such time as the additional adjacent right-of-way is acquired by the County. (52) Right-of-way. The area within the boundary lines of a street, road or other easement. (53) Road or Street. A public or private way actually created to provide ingress or egress for persons to one or more lots, parcels, areas or tracts of land, excluding a private way created to provide ingress or egress to such land in conjunction with the use of, such land for forestry, mining or agricultural purposes. - 9 - (53) (A) Alley. A narrow street through a block, primar- ily for vehicular service access to the back or side of properties abutting another street. ' (B) Arterial. A restricted access street of substan- tial continuity which is primarily a traffic ar- tery for inter-communication among large areas, and so designated by the County. (C) Bicycle Route. A right-of-way for bicycle traffic. (n) Collector. A street supplementary to the arterial street system used or intended to, be used princi- pally for the movement of traffic between arterials and local streets and roads within the county. (E) Cul-de-sac. (dead end street) A short street having one end open to traffic and terminated by a vehicle turnaround. (F) Half Street. A portion of the width of a street sufficient for a safe service temporarily (as approved by the County Engineer) , usually along the edge of a subdivision, when the remaining portion of the street is likely to be provided in another subdivision. (G) Frontage Road. A minor street parallel and ad- jacent to a major arterial providing access to abutting properties, but protected from and protecting,through traffic. (H) Marginal Access Road. A frontage road. (I) Local Street. A street intended primarily for access to abutting properties. (J) Stubbed Street. A street having only one outlet for vehicular traffic and which is intended to be extended or continued to serve future subdivisions or developments on adjacent lands. (54) Roadway. That portion of a street or road right-of- way developed for vehicular traffic. (55) Sidewalk. A pedestrian walkway with permanent sur- facing. (56) Sale or Lease. Every disposition or transfer of land in a subdivision or an interest or estate therein, by a subdivider or developer or their agents. In- cludes the offering of land as a prize or gift when a monetary charge or consideration forwhatever purpose is required by the subdivider, developer or their - 10- agents. (57) Subdivided Land and SUbdivisioi'. Improved or unim- proved area or tract of land divided, or created into interests or sold under an agreement to be subsequently divided or created into interests, for the purpose of sale or lease, whether immediate or future, into 4 or more lots within a calendar year, when such area or tract of land exists as a unit or contiguous units of land under a single ownership at the beginning of such year. Subdivided land does not include the sale of a lot in a recorded subdivision or an approved partition even though the seller of the lot may have owned other contiguous lots or property prior to the sale; said lot, however, must be sold as platted and recorded. (58) Subdivider. Any person who causes land to be subdivided into a subdivision for himself or for others, or who undertakes to develop a subdivision, but does not in- clude a public agency or officer authorized by law to make subdivisions. (59) Subdivision Review Committee. A committee as set forth in subsection 2.030 to review subdivision and other development proposals. (A) Executive Committee. A subunit of the Subdivision 4101 Review Committee, established in subsection 2. 060. (60) Tentative Map. A mop setting forth the proposed plan or a major Partitioning in conformance with the pro- visions of this ordinance and subject to review and modification. (61) Use. The purpose for which land or a structure is designated, arranged or intended, or for which it is occupied or maintained. (62) Utilities. Include electric, telephone, natural gas and other services providing for energy or communication needs. (63) Variance. An authorization for the construction or maintenance of a building or structure, or for the establishment or maintenance of a use of land, which is prohibited by a zoning ordinance. (A) Area Variance. A variance which does not concern a prohibited use. Usually granted to construct, alter or use a structure for a permitted use in a manner other than that prescribed by the zoning or other applicable ordinances. - 11 - (B) Use Variance. A variance which permits a use of land other than that prescribed by the zoning or other applicable ordinances. (64) Water Supply. A source of water whether publicly or privately owned which serves two or more single residences or other uses for the purpose of supplying potable water for drinking, culinary, or household uses. Irrigation water shall not be considered po- table water for purposes of this ordinance. • - 12 - 411111 :ARTICLE 2, ' GENERAL REQUIREMENTS .AND SUBDIVISION REVIEW COMMITTEE Section 2.010. SCOPE OF REGULATION. (1) Before a plat of any subdivision or the map of- any partition may be made and recorded, the person proposing the subdivision or the partition, or his authorized agent or representative, shall make an application in writing to the County Planning Department for approval of the proposed sub- division or partition in accordance with the requirements and procedures established by this ordinance. 2 No person shall undertake the acts prohibited b ( ) P P by ORS 92.025 within the unincorporated area of Deschutes County without making application as required in subsection (1) of this section and receiving approval as provided elsewhere herein. (3) No person shall undertake the acts prohibited by ORS 92. 025 without complying with any and all conditions 41/1 lawfully imposed upon the grant of an application. Section 2.020. MINIMUM STANDARDS No proposed subdivision ',shall be approved unless it complies with the comprehensive plan for the county, the applicable zoning. and .OR$ Chapter 92 Section 2.030 SUBDIVISION PREVIEW' COMMITTEE - :'here' is hereby established a 'Subdivision Review Committee-to! review all tentative subdivision'' glans, final plats and other Proposals as 'indicated elsewhere in this ordinance, and make recommendations to the Hearings Officer. The committee' shall consist of the following members: (1) County Planning Director, who wall be chairs ah. (2) County Engineer. (3) County Sheriff (4) Fire 'Chief (if; subdivision is within a fire district) (5) County Sanitarian (6) State' Forestry representative for fire protection.,e esigrated by the C my PlanningoDire ormandbmay ('7) Other ex-officio members include, among', others, ;as follows • (A) Public utility representative (s) ) (B) Irrigation district representative(s) (C) School(D) Department of'cEnvironmentari-Quality rip "e enta , ve(s (E) Department of Transportation representative (s) 13 (8) Each member authorized by subsections (1)through (7) of this section may designate a substitute repre- sentative to serve in case of the member' s absence. Such designation shall be in writing and filed with the chairman. It will be the responsibility of the member to ensure the designee 's informed participation at each meeting in which the designee is substituting for the member. Section 2.050 SUBDIVISION COMMITTEE REVIEW FACTORS: (1) In review o :.;proposed subdivisions, the committee shall consider the following factors: (A) Preliminary plat requirements (B) Conformance to zoning and comprehensive plan. (C) Quantity and quality of existing or proposed water supply and adequacy of the existing or proposed sewage disposal system to support the projected population. In the event that subsurface sewage disposal is proposed for any or all of the parcels of the development, the capability of the soil for the proper long-term support of such a system or systems shall be considered. (D) Adequacy of public services, existing or committed and funded, in the area of the proposed development, , such as schools, police and fire protection, health facilities, highway and arterial road networks and other transportation facilities parks and other recreational facilities, to serve the increase in population expected to be created by the development. (E) Effect of the development in relation to industrial plants, livestock feedlots, solid waste disposal sites (existing and proposed) , mining and quarrying operations and other possible conflicting land uses, particularly agricultural and forestry use. (F) Possible adverse effects on the development by natural hazards, such as floods, slides or faults, etc. (G) Possible adverse effects of the development on adjacent or area agricultural, grazing, forest or industrial lands and operations. (H) Design and development for retention of the maximum feasible amount of vegetation and other natural amenities. (I) Possible environmental damage to the area or possible effects on fish, wildlife or their habitat. (J) Possible conflicts with easements acquired by the public for access through or-use of property within or adjacent to the proposed development. (K) Unusual conditions of the property involved such as high water table, slope, bedrock, or other topographic or geologic conditions which might limit the capability 411 to build on the land when using ordinary . and reasonable construction methods. - 14 - (L) Marketable title or other interest contracted for. 41110 (M) Adequate financial arrangements for onsite arid' offsite! improvements ;,proposed or required.; (N) Evidence that each and every parcel can be used for the purpose for which. it is intended. :and is to be offered. (p) Agreement or by-laws to provide for management, construction', maintenance, or other ,services pertaining to common .:'facilities or elements in the development (P Protective covenants or deed restrictions.- (2) The committee is not empowered to agree to conditions '' therefore, recommendations made by the committee do not band, the County but', are only intended to aid ,the applicant to determine what requirements will probably be necessary for satisfaction of ORS Chapters 92 and 215, the compre- hensive plan and this ordinance. Any conditions not add ressed by the committee iShall not be considered to be met and shah. not be precluded from future consideration if determined to be necessary to comply with ORS Chapters 92.197 and 215, the comprehensive' plan or this, ordnance:' Section 2.060. EXECUTIVE COMMITTEE. (1) (A)Thereis hereby established an Executive Committee which will serve as a sub-unit of the Subdivision Review Committee. The Executive Committee shall consist of: (1) County Planning Director (2) County Engineer (3) County Sanitarian (B) Each of the above members may designate a substitute in accordance with the conditions of Subsection 2.030 (8) . (2) The Executive Committee shall review outline develop- ment plans as provided for by section 3.030, re-sub- missions of denied tentative plans as provided for in section 3.110, final plats, as provided for in subs section 4.080 (1) and other proposals as indicated else- where in this ordinance. - .15 - ARTICLE 3. 410 APPLICATION PROCEDURE Section 3. 010. APPLICATION SUBMISSION. (1) Any person proposing a subdivision, or his authorized agent or representative, shall include with an application for a subdivision either an outline development plan as described in section 3. 030 or a tentative plan as set forth in sections 3. 040 through 3. 080 for the proposed subdivision, together with improvement plans and other supplementary material as may be required. A master development plan may also be required in accordance with ubsection 3.085. The applicant must submit 20 copies of any plan required together with all required accompanying material to the Planning Department. (2) An outline development plan or a tentative plan for a subdivision on a form provided by the Planning Department together with the appropriate filing fee. (3) The time for filing shall be construed to be the time when the outline development plan or tentative plan is received by the Planning Department in completed form, together with the appropriate filing fee,required supplemental material and subdivision application form. Section 3.020. REQUIRED FINDINGS FO R APPROVAL. T he Hearings Officer shall not approve an outline development plan or a tentative plan for a:proposed subdivision unless the Hearings Officer finds, in addition to other require- ments and standards set forth in this ordinance, that the subdivision as proposed or modified will satisfy the intent and requirements of this ordinance and will be in compliance with the comprehensive plan. Such findings shall include the following: (.1) The subdivision contributes to orderly development and land use patterns in the area, and provides for the preservation of natural features and resources such as streams, lakes, natural vegetation, special terrain features, agricultural and forest lands, and other natural resources. (2) The subdivision will be compatible with the uses surrounding the project site, and will not create an excessive demand on public facilities and services required to serve the development. - 16 - (3') Financing will be available to the applicant sufficient to assure completion of the subdivision as proposed 'or required. Such financing arrangement may be dontingent upon tentative plan approval. A performance bond may be required of the applicant by the'Hearings Officer if he determines such bond is necessary to assure proper Completion. The-applicant may substitute an adequate nerformance bond for other evidence of financial sufficiency required by this subsection. (4) That there will be no undue adverse impacts on neighboring properties, natural resource quality, area livability, and public services and facilities. Section 3.025. ADDITIONAL FINDINGS FOR APPROVAL. (1-5) (1) Streets, Alleys, and Adjacent Areas. The Hearings Officer may require the -weather surfacing or paving of any or all streets, alleys and parking areas before accepting or approving a tentative plan. (2) Sewers and Sewage. The Hearings Officer may require the installation of sewers or adequate sewage disposal facilities as shown by the required plans and specifications, prepared by a certified licensed engineer and approved by the County Sanitarian or Department of Environmental Quality ity before accepting or approving a tentative plan. (3) Water Lines and Supply. The Hearings Officer may require the installation of waterlines or provision of adequate water supply to serve each lot as sham by the required plans and specifications prepared by a qualified licensed engineer and approved by the County Sanitarian before accepting or approving a tentative plan. (4) Parks, Playgrounds and Recreational Areas. Parks, playgrounds and recreational areas adequate to serve the subdivision may be required in tentative plan submitted in locations and sizes indicated by the comprehensive plan for the area in which the subdivision is located. If such facilities are deemed necessary, parks, playgrounds or other recreational areas or facilities shall be provided or guaranteed by the applicant prior to approval of the tentative plan. (5) Fire Hazard Restrictions. The Hearings Officer may also require that necessary restrictions be placed on record at the time of filing of the plat or be contained in each and every deed of conveyance of the lots within such snajcii vision. - 17 - i Section 3.030. OUTLINE DEVELOPMENT PLAN. If an outline development plan is prepared and submitted with the appli- cation for a subdivision, it shall include both maps and written statements as set forth in this section. The information shall discuss the area surrounding the proposed subdivision in sufficient detail to demonstrate the relation- ship of the subdivision to adjoining land uses, both existing and allowable under applicable zoning and compre- hensive plan classifications. (1) The maps which are part of the outline development plan may be in general schematic form, but shall be to scale, and shall contain the following information: (A) The existing topographic character of the land. (B) Existing and proposed uses and the approximate location of buildings and other structures on the project site and adjoining lands. (C) The approximate density of the proposed subdivision. (D) The approximate location of street and roads within and adjacent to the subdivision. (E) Public uses including schools, parks, play- grounds and other public open spaces or facilities. (F) Common open spaces' and facilities and a descrip- tion of the proposed use of these spaces and facilities. (G) Landscaping, irrigation and drainage plans. - 18 . - (2) Written statements which are part of the outline development plan shall contain the following information: (A) An explanation of the character of the subdivision and the manner in which it has been planned and will be designed to be in compliance with the comprehensive plan, applicable zoning and this ordinance. (B) A statement and description of all proposed onsite and offsite improvements proposed. (C) A statement of the proposed financing for completion of the subdivision as proposed. (D) A statement of the present ownership of all land included within the subdivision. (E) A general schedule of developement and improve- ments. (F) A statement setting forth expected types of housing and other uses to be accommondated, traffic generation, population and sectors thereof to be served, and any other information relative to demands on public services and facilities and public needs. (G) A statement relative to compatibility with adjoining and area land uses, present and future, the comprehensive plan and applicable zoning ordinance. (3) (A) A review of an outline development plan will be conducted by the Executive Committee and is intended only as a preliminary examination of the proposal for comprehensive plan and zoning compliance, offered as a service to the applicant. Approval by the Executive Committee shall not constitute approval by the Subdivision Review Committee. (B) The Executive Committee shall complete its recommendation concerning the outline development plan within 10 days following receipt of the plan by the Planning Department, and shall notify the applicant of its decision in writing. The notif- ication shall be accompanied by a report of the reasons for the decision, including facts and conclusions utilized in the committee's consid- eration of the plan for conformance with . comprehensive plan and zoning provisions. 4 _ 19 _ (C) Copies of the committee decision and accompanying 4IP materials shall be submitted to each member of the Subdivision Review Committee. (D) Upon receipt of notification by the Executive Committee the applicant may resubmit a revised outline development plan, submit a tentative plan pursuant to section 3.010 or withdraw the application. Section 3.040. TENTATIVE PLAN REQUIRED. Following submittal and approval of an outline development plan and subdivision application, or as an initial subdivision application, any person proposing subdivision in accordance with Section 3.010 of this article, the tentative plan for a subdivision shall be prepared and submitted in compliance with the provisions of sections 3. 050 through 3.080 of this article. Section 3.050. SCALE OF TENTATIVE PLAN. The tentative plan of a proposed subdivision shall be drawn on a sheet 18 by 24 inches or a multiple thereof at a scale of one (1) inch per 50 feet for subdivisions up to 10 acres in size, one (1) per 200 feet for subdivisions up to 100 acres in size, and for subdivisions of more than 100 acres in size, a scale not greater than one (1) inch per 400 feet. Section 3.060. INFORMATIONAL REQUIREMENTS. The following information shall be shown on the tentative plan or provided in accompanying materials. No tentative plan submittal shall be considered complete unless all such information is provided. (1) General Information Required (A) Proposed name of the subdivision. (B) Names, addresses and phone numbers of the owner of record, authorized agents or representatives, engineer or surveyor, and any assumed business names filed or to be filed with the Corporation Commissioner by the applicant which will be used in connnection with the subdivision. (C) Date of preparation, north point, scale and gross area of the proposed subdivision. (D) Appropriate identification of the drawing as a tentative plan for a subdivision. - 20 - 0 (E) Location and tract designation sufficient to define its location and boundaries, and a legal description of the tract boundaries in relation to existing plats and streets. (F) Certified copy of the recorded instrument under which the applicant claims an ownership interest, or copy of a land sales contract which binds the applicant in the event of tentative approval. (2) Information Concerning Existing Conditions. (A) Location, names and widths of existing improved and unimproved streets and roads within and adjacent to the proposed subdivision. (B) Location of any existing features such as section lines, section corners, city and special district boundary lines, and survey monuments. (C) Location of existing structures, irrigation canals and ditchs, pipelines, waterways, rail- roads and any natural features such as rock outcroppings, marshes, wooded areas and natural hazards. (D) Location and direction of water courses, and the location of areas subject to flooding and high water tables. (E) Location, width and use or purpose of any existing easement or right-of-way within and adjacent to the proposed subdivision. (F) Existing sewer lines, water mains, culverts, and other underground and overhead utilities within and adjacent to the proposed subdivision together with pipe sizes, grades and locations. (G) Contour lines related to some established bench mark or other engineering--acceptable datum and having minimum intervals of two feet for slopes of less than five percent, five feet for slopes of five to fifteen percent, ten feet for slopes of fifteen to twenty percent, and twenty feet for slopes greater than twenty percent. (H) Zoning classification of lands within and adja- cent to the proposed subdivision. (I) Names and addresses of all adjoining property owners. - 21 - (3) Information Concerning Proposed Subdivision. 411 (A) Location names,width, typical improvements cross-sections, bridges, culverts, approximate grades, curve radii and centerline lengths and reserve strips of all proposed streets, and the relationship to all existing and projected streets. (B) Location, width and purpose of all proposed easements or rights-of-way and relationship to all existing easements and rights-of-way. (C) Location of at least one temporary bench mark within the proposed subdivision boundary. (D) Location, approximate area and dimensions of each lot, and proposed lot and block numbers. (E) Location, approximate area and dimensions of any lot or area proposed for public use, the use proposed, and plans for improvements or develop- ment thereof. (F) Proposed use, location, approximate area and dimensions of any lot intended for non-residential use. (G) An outline of the area proposed for partial recording if contemplated or proposed. (H) Source, method, and preliminary plans for domestic and other water supplies, sewage disposal, solid waste disposal, and all utilities. (I) Description and location of any proposed community facility. (J) Storm water and other drainage facility plans. Section 3.080. SUPPLEMENTAL INFORMATION REQUIRED. The following information shall be submitted with the tentative plan. If such information cannot practicably be shown on the tentative plan it shall be submitted in separate documents accompanying the plan at the time of filing. (1) Proposed deed restrictions including access restric- tions or protective covenants, if such are proposed' to be utilized for the proposed subdivision. -- 22. -- 4010 (2) Two copies of a letter from a water purveyor providing a water supply system serving potable domestic water needs or a letter form a licensed well driller or registered engineer. The letter shall state the source, name of supplier, known quantity and quality of water available, and that the system will be installed in accordance with all applicable regulations. In addition, the letter from a water purveyor providing a domestic water system shall state that he is able and willing to serve each and every lot within the proposed subdivision and the conditions and estimated cost of providing such service. A letter from a water purveyor shall further indicate that the water supply system proposed for the subdivision is adequate to meet the fire protection needs set forth by the appropriate fire protection agency. (3) Statement from each utility company proposed to serve the proposed subdivision stating that each such company is able and willing to serve the proposed subdivision as set forth in the tentative plan, and the conditions and estimated costs of such service. (4) Proposed fire protection system for the proposed subdivision and written approval thereof by the appropriate serving fire protection agency. Fire hydrant placement shall conform to the comprehensive plan requirements set forth in the Public Facilities section unless the appropriate local fire protection agency agrees to a lesser stand- ard. (5) Title or subdivision guarantee report from a licensed title company stating the record owner(s) of the land proposed to be subdivided and setting forth all encumbrances relative to the subject property. (6) Reasons and justifications ons f or any varianc es requested from the provisions of this ordinance or any other applicable ordinance or regulation. (7) Every application for division of property shall be accompanied by a water procurement plan approved by the Deschutes County Watermaster. Such plan shall explain in detail the proposed manner of providing potable domestic water. If irrigation water is to be provided in addition, the water procurement plan shall also explain the manner of providing such irrigation water. (8) If a tract of land has water rights, the application shall be accompanied by a water rights division plan 41; approved by the irrigation district or othe water district holding the water rights, or when there is no such district, by the district watermaster or his 23 - representative serving the Deschutes County area. Every plat and tentative plan shall indicate the 410 water right that is to be transferred to each parcel or lot. Section 3.085. MASTER DEVELOPMENT PLAN. An overall master development plan shall be submitted for all develop- ments of more than 25 parcels or for all developments requiring phased or unit development. The master development plan shall include, but not be limited to, the following elements: (1) Overall development plan, including phase or unit sequence. (2) Schedule of improvements inititati'on and completion. (3) Overall transportiation and traffic pattern plan. (4) Program timetable projection. (5) Development plans for any common elements or facilities. (6) Financing plan for all improvements. (7) If the proposed subdivision has an unknown impact upon adjacent lands or lands within the general • vicinity, the Hearings Officer may require a potential street development pattern for adjoining lands to be submitted together with the tentative plan as part of the master development plan for the subject subdivision, to verify a non-detrem.ental impact of the subdivision upon adjacent lands. Section 3. 090. APPROVAL OF TENTATIVE PLAN. (1) The Subdivision Review Committee shall make its recommendation concerning the tentative plan to the applicant and Hearings Officer within 30 days following the date of its submittal by the applicant. (2) Upon written request of the Planning Director the Hearings Officer may extend the review period. (3) The Hearings Officer shall review the tentative plan and all reports and recommendations of appropriate officials and agencies. The Hearings Officer may approve, modify, or disapprove the tentative plan for the proposed subdivision, and shall set forth findings for such decision. (4) Staff and Hearings Officer review shall be in accor- dance with County Ordinance PL-9. 24 (5) Approval or disapproval of the tentative plan by the Hearings Officer shall be final unless the decision is appealed or reviewed in accordance with County Ordinance PL-9 . (6) Approval of the tentantive plan shall not constitute final acceptance of the plat of the proposed sub- division for recording; however, approval of such tentative plan shall be binding upon the County for purposes of the preparation of the plat and the County may require only such changes in the plat as are necessary for compliance with the terms of its a proposed of the tentative plan for o the p oposed subdivision and the terns of this ordinance. (7) The decision of the Hearings Officer shall be set forth in writing in a formal report and, in the case of approval, be noted on 3 copies of the tent- ative plan, including references to any attached documents describing conditions. Within five days of the decision, one copy of the Hearings Officer report shall be sent to the applicant, one copy to the Board of County Commissioners and one copy shall be retained by the Planning Department. Section 3.100. SPECIFIC APPROVAL REQUIREMENTS. In addition to the requirements set forth by the provisions of this ordinance and applicable local and state regulations, specific requirements for tentative plan approval are as follows: (1) No tentative plan shall be approved which bears a name using a word which is the same as, similar to or pronounced in the same way as a word in the name of any other subdivision in the same county, except the words "town" , "city" , "place" , "court" , "addition" , "estates" , or similar words unless the land platted is contiguous to and platted by the same party that platted the subdivision bearing that name or unless the party files and records the consent of the party that platted the subdivision bearing that name. All plats must continue the lot and block numbers of the last filed plat of the same name. (2) No tentative plan for a proposed subdivision shall be approved unless: (A) The streets and roads are laid out to conform to the plats of subdivisions and maps of partitions already approved for adjoining property as to width, improvements, general direction and in all other respects unless the Hearings Officer determines -- �5 it is in the public interest to modify the street IIP and road pattern and makes appropriate findings to support such decision. (B)The dedication of additional rights-of-way and widening of the existing roadway shall be required whenever existing streets adjacent to or within a tract are inadequate to safely accommodate traffic anticipated by: (1) The current County Roadway Network Plan; (2) The planning Director's or County Engineer's projection from current growth experience wherein it is found that the present require- ments for roads differ from that anticipated when the Network Plan was adopted. Dedication of additional right-of-way widening shall be required where topography requires cut or fill slopes for roads under the criteria above, where state law requires rights-of-way for utilities to be dedicated or where a rationally supported traffic engineering study states that additional through lanes, lanes for turning exits, bike paths, public safety or efficient traffic flow are required. (C)Streets and roads are approved by the Hearings • Officer and are clearly indicated on the tentative plan and all reservations or restrictions such as ownership or maintenance responsiblities are set forth. (3) No tentative plan for a proposed subdivision located within an urban growth boundary adopted jointly by Deschutes County and a city within the county but outside the city, shall be approved unless the subject proposal has been submitted to the City Planning Commission or City Council, as applicable, for review and until such time, within 30 days of submission, that a written review and recommendation therefrom has been received and considered. The Hearings Officer may allow additional time for response by a city, for good cause shown and upon the entry of findings to support such an extension. (4) Approval or denial shall take into consideration; (A) Factors listed in Sec. 2.050; (B) Recommendations of the Subdivision Review Committee and the City Planning Commission or City Council, where applicable; and (C) All applicable comprehensive plan policies. - 26 - (5) Disposition by the Hearings Officer of the application • shall be entered along with appropriate findings to support the decision. Section 3. 110. RESUBMISSION OF DENIED TENTATIVE PLANS. (1) If the tentative plan for a subdivision is denied, resubmittal thereof shall not be accepted for a period of six (6) months after the date of the final action denying said plan. Upon resubmission the ap- plicant shall consider all items upon which the prior denial was based, and the resubmission shall be accompanied by a new filing fee. (2)The resubmittal of a tentative plan shall be first considered by the Executive Committee as provided in Subsections 2.060 and 3.030 before review by the Subdivision Review Committee. (3)The Executive Committee may recommend either approval or denial of the resubmittal to the Subdivision Review Committee, in which case findings described in sub- section 3.100 (4) shall accompany the recommendation or it may make new recemmendation' to the Subdivision Review Committee. (4)Findings to support the Executive Committe 's recommendation 411 shall include a recapitulation of the basis for the original denial along with facts and conclusions relative to the recommendation for the resubmittal. - 27 - ARTICLE 4. FINAL PLAT Section 4.010. SUBMISSION OF THE FINAL PLAT. (1) Filing Time Period Requirements. Within six (6) months after the date of approval of the tentative plan for a subdivision, the applicant shall prepare and submit to the Planning Department a final plat that is in conformance with the tentative plan as approved. The applicant shall submit the original drawing fifteen prints, and any supplementary information required by this ordinance and the Hearings Officer. (2) If the applicant fails to proceed with the subdivision before the expiration of the six (6) month period following the approval of the tentative plan, the plan approval shall be void. The applicant may submit a new plan together with the appropriate filing fee. (3) The Hearings Officer may, upon submittal of a formal request prior to expiration of the six month period provided for by subsection (2) of this section, grant an extension of not more than 90 days of the six (6) month time period set forth in section 4.010 (1) . Section 4.020. FORM OF FINAL PLAT. The final plat shall be submitted-.in the form prescribed by state statute and this ordinance. All plats subdividing any tract of land in the county, dedications of streets, roads or public parks and squares, and other writings made a part of such plats offered for record shall be made in black India ink, upon material that is 18inch.es by 24 inches, suitable for binding and copying , having such characteristics of strength and permanency as may be required by the County. The plat shall be of such a scale, and the indication of the approvals thereof and of the dedication and affidavit of the surveyor, shall be of such a size or type as will be clearly legibile, but no part shall come nearer any edge of the sheet than one inch. The plat may contain as many sheets as necessary, but a face sheet and an index page shall be included for plats of two or more sheets. 28 Section 4. 030. REQUIREMENTS OF SURVEY AND PLAT OF SUBDIVISION. Any final plat submitted shall meet the following require- ments: (1) The survey for the plat of the subdivision shall not exceed an error of closure of one foot in 4, 000 feet. (2) The survey and plat of the subdivision shall be made by a surveyor who is a registered engineer or licensed land surveyor. (3) The plat shall be of such scale that all survey and mathematical information and all other details may be clearly and legibly shown thereon. Each lot shall be numbered and each block lettered or numbered. The lengths of all boundaries of each lot shall be shown. Each street shall be named. (4) The locations and descriptions of all monuments shall all plats and the proper be clearly recorded upon l p t p p courses and distances of all boundary lines shall be shown. Section 4.040. MONUMENTATION REQUIREMENTS. (1) The initial point of all subdivision plats shall be marked with a monument conforming to the following specifications: Galvanized iron pipe, two inch inside diameter, not less than thirty inches long, with a brass cap no less than 2 1/2 inches in diameter, soldi].y and permanently attached at the top. The brass cap shall be secured in position with either a substantial, non-corrosive rivet or a solid-metal weld. The bottom of the pipe shall end in a welded footplate or be split and flared to a minimum holding width of six inches to anchor the monument when set in the ground. Any galvan- ization destroyed during threading, cutting, flaring or welding must be retreated against rust. The monument shall be set with the top at finished grade elevation and the subdivision name, year of establishment, and registration number of the registered engineer or registered land surveyor, establishing same, clearly marked with steel dies on the brass cap. The location of the monument shall be noted with reference to a known corner established by the United States Survey. I - 29� - (2) The intersection of all streets and roads and all ponts on the exterior boundary where the boundary line changes direction shall be marked with monuments either of stone, concrete, galvanized iron pipe, or iron or steel rods. (3) All lot corners except lot corners of cemetery lots shall be marked with monuments of either galvanized iron pipe not less than one-half inch in diameter or iron or steel rods not less than one-half inch in least dimension and two feet long. (4) Points shall be plainly and permanently marked upon monuments so measurements may be taken to them within one-tenth of a foot. (5) All required interior and exterior monuments shall be marked and such monuments shall be referenced on the plat of the subdivision before the plat of the sub- division is offered for approval and recording. Section 4.050. INFORMATION ON PLAT. In addition to that required for the tentative plan or otherwise specified by law, the following information shall be shown on the plat: (1) Name of subdivision. (2) Name of the owner, applicant, and engineer or surveyor. (3) The date, scale, north point, legend, controlling topography such as bluffs, creeks, and other bodies of water,and existing highways and railroads. (4) Legal description of the tract boundaries. (5) Reference points of existing surveys, identified, related to the plat by distances and bearings, and referenced to a field book or map as. follows: (A) Stakes, monuments, or other evidences found on the ground and used to determine the boundaries of the subdivision. (B) Adjoining corners of adjoining subdivisions. (C) Other monuments found or established in making the survey or required to be installed by provisions of this ordinance. (6) The exact location and width of streets and easements intercepting the boundary of the tract. (7) Tract, block and lot boundary lines and street rights- of-way and center lines, with dimensions, bearing or • deflecting angles, radii, arcs, points of curvature and tangent bearings. Normal high water lines for any creek, bay or other body of water. Tract boundaries and street bearings shall be shown 'to the nearest 30 seconds with basis of bearings. Distances shall be shown to the nearest 0. 01 feet. No ditto marks shall be used. - 30 - (8) Streets. The width of the streets being dedicated and the curve data shall be based on the street center line. In addition to the center line dimen- sions, the radius and central angle shall be indicat- ed together with the long chord distance and bearing. (9) Easements. Easements shall be noted by fine dotted lines, clearly identified and, if already of record, their recorded reference. If an easement is not of record, a statement of the easement shall be given. The width of the easement, its length and bearing, and sufficient ties to locate the easement with respect to the subdivision shall be shown. If the easement is being dedicated by the map, it shall be properly referenced in the owner's certificates of dedication. (10) Lot Numbers. Lot numbers beginning with the number "1" and numbered consecutively in each block. (11) Block Numbers. Block numbers beginning with the number "1" and continuing consecutively without omission or duplication throughout the subdivision. The numbers shall be solid and of sufficient size and thickness to stand out and placed so as not to obliterate any figure. Block numbers in an addition to a subdivision of the same name shall be a contin- uation of the numbering in the original subdivision. (12) Public Lands. Identification of land, including reserve strips, purpose, public or private, to dist- inguish it from lots intended for sale. (13) Building Setback Lines. Building setback lines, if any, that are a part of the subdivision restrictions. (14) Access Restrictions. Limitations on rights of access to and from streets, lots and other parcels of land. (15) Area. The area of each lot,if larger than one acre, to the nearest hundreth of an acre; and the area of each lot less than one acre, to the nearest square foot. (16) Address. Pursuant to the applicable addressing system, the address of each lot shall be shown. (17) Certificates. The following certificates are required and shall be combined where appropriate. (A) A certificate signed and acknowledged by all parties having any record title interest in the land, consenting to the preparation and recording of the plat. -- 31 -- (B) A certificate signed and acknowledged as above, dedicating all land intended for public use, 4110 except land intended for the exclusive use of the lot owners in the subdivision, their licensees, visitors, tenatns, and servants. (C) A certificate with the seal of and signed by the engineer or surveyor responsible for the survey and final map. (D) A certificate for execution by the County Hearings Officer. (E) A certificate for execution by the County Engineer. (F) A certificate for execution by the County Planning Director. (G) A certificate for execution by the County Surveyor. Any plat prepared by the County Surveyor in his private capacity shall be approved by the County Surveyor of another county in accordance with ORS 92.100(2)and (3) . (H) A certificate for execution by the County Tax Collector. (I) A certificate for execution by County the Count Assessor. (J) A certificate for execution by the irrigation district, where applicable. All plans, plats or replats of subdivisions located within the boundaries of an irrigation district, drainage district, water control district, district improvement company or similar service district shall be submitted to the board of directors of the district or company and its approval thereof shall be indicated thereon by the board before county approval of such plan, plat or replat of any subdivision. Except that if the applicant is unable to obtain action or approval of any district or company within 45 days the applicant shall notify the Board of County Commissioners (Board) in writing and thereafter the Board shall serve notice on that district or company by certified mail advising the district or company that any objections to the plan, plat or replat must be filed in writing withthe Board within 20 days. Failure of the district or company to respond shall be considered an approval of such plan, plat or replat. (K) A certificate of approval of execution by the Board of County Commissioners. (L) Other certificates required by state regulations. - 32- Section 4.060. SUPPLEMENTAL INFORMATION WITH PLAT. The following data, if applicable, shall accompany the plat: (1) Title Report. A preliminary title or subdivision guarantee report issued by a title insurance company in the name of the owner of the land, showing all parties whose consent is necessary and their interest in the premises; such report shall show evidence of a clear and marketable title. (2) Survey Data Sheets. Sheets and drawings shall contain the following information: (A) Traverse data including the coordinates of the boundary of the subdivision and ties to section corners and donation land claim corners, and showing the error of closure, if any. A survey control work sheet may be substituted for this item. (B) The computation of distances, angles and courses shown on the plat. (C) Ties to existing monuments, proposed monuments, adjacent subdivisions, street corners, and state highway stationing. (3) Deed Restrictions. A copy of any deed restrictions applicable to the subdivision. (4) Homeowner's Association. A copy of any homeowner's association agreements proposed or required for the subdivision. (5) Dedications. A copy of any dedication requiring separate documents with specific reference to parks, playgrounds, etc. (6) Taxes. A list of all taxes and assessments on the tract which have become a lien on the land subdivided. (7) Board of County Commissioners. A certificate by the Board of County Commissioners that the applicant has complied with the improvement guarantee requirements of sections 9.010 and 9. 020. (8) Improvements. If g radin g, street improvements, sewer or water facilities are required as a condition of approval of the final plat, the following shall be required to be submitted with final plat: (A) Improvement Plan in accordance with Appendix A 1 of this ordinance. (B) Plans and profiles of proposed sanitary sewers, - 33. - location of manholes and proposed drainage system. 410 (C) Plans and profiles of the proposed water dist- ribution system showing pipe sizes and location of valves and fire hydrants. (D) Specifications for the construction of all pro- posed utilites. (E) Grading plans and specifications as required for areas other than streets and ways. (F) Planting plans and specifications for street trees and other plantings in public areas. (G) Plans for improvements,design factors, or other provisions for fire protection or fire hazard reduction. (9) Access Permits. If access is to a state highway the necessary access permits shall be obtained prior to final plat approval. Section 4. 070. TECHNICAL REVIEW OF PLAT. (1) Ordinance Check. Upon receipt by the Planning Depart- ment, the plat and other data shall be reviewed by the Executive Committee to determine that the sub- division as shown is substantially the same as it appeared on the approved tentative plan, and for compliance with provisions of this ordinance and other applicable laws. (2) Field Check. The County Engineer and Planning Director or their designated representatives may make such checks in the field as are desirable to verify that the map is sufficiently correct. The Engineer or Planning Director or representatives thereof may enter the property for this purpose. (3) Corrections. If the field check reveals that full conformity has not been met, the applicant shall be advised in writing of the changes or additions to be made and shall be afforded a reasonable opportunity to make the changes or additions. (4) Reimbursement. Expenses incurred by the County Engineer in the technical plat review shall be reimbursed by the applicant prior to final approval of the plat. Section 4.080. CONDITIONS OF PLAT APPROVAL. (1) Upon recept of the plat with the approval of the -- 34 - Executive Committee, the Subdivision Review Committee 41/1 (committee) shall determine whether it conforms with the approved tentative plan and with these regulations. If the committee does not approve the plat, it shall advise the applicant of the changes or additions that must be made and shall afford him an opportunity to make corrections. If the committee determines that the plat conforms to all requirements it shall recommend approval, provided supplemental documents and provisions for required improvements are satisfactory. Recommendation of approval of the plat does not constitute or effect an acceptance by the pbulic of the dedication of any street or other easement shown on the plat nor does such approval constitute final approval, said authority for final approval being vested with the Board of County Commissioners. (2) No plat of a proposed subdivision shall be approved unless: (A) The plat complies with the comprehensive plan, zoning ordinances and other conditions applicable to the proposed o ed subdivision. (B) Streets and roads for public use are to be dedicated without any reservation or restriction 41IP other than reversionary rights upon vacation of any such street or road and easement for public utilities. (C) Streets and roads held for private use and indicated on the tentative plan for such subdivision have been approved by the County. (D) The plat or map contains provisions for dedication to the public of all common improvements , including but not limited to streets, roads, parks, sewage disposal and water supply systems, if made a condition of the approval of the tentative plan. (E) Explanations of all common improvements required as conditions of approval of the tentative plan shall be recorded and referenced on the final plat or map. (3) No plat of a subdivision shall be approved unless the County has received and accepted: (A) A certification by a municipal water supply system, or by the owner of a community or public water supply system, subject to regulation by the Public Utility Commissioner of Oregon, that water will be available to the lot line of each .and every lot depicted in the proposed plat; or 410 - 35 - (B) A proposed bond, contract or other assurance by the applicant to the County and approved by the 410 County' s Legal Counsel that a domestic water supply system will be installed by or on behalf of the applicant to the lot line of each and every lot depicted in the proposed plat. The amount of any such bond, contract or other assurance by the applicant shall be determined by a registered professional engineer subject to any change in such amount as determined necessary by the County. (C) Certification by a publicly-owned sewage disposal system or by the owner of a privately owned sewage system that is subject to regulation by the Public Utility Commissioner of Oregon that a sewage disposal system will be available to the lot line of each and every lot depicted in the proposed plat; or (D) A proposed bond, contract or other assurance by subdivider to the County and approved by the County's Legal Counsel that a sewage disposal system will be installed by or on behalf of the subdivider to the lot line of each and every lot depicted on the proposed plat. The amount of such bond, contract or other assurance shall be determined by a registered professional engineer, subject to any change in such amount as the County considers necessary; or (E) A final plat in compliance with the tentative plan approval. (F) Certification that all required and proposed improvements and repairs to existing public facilities damaged in the development have been completed, or a bond, contract or other assurance by the applicant to the County approved by the County's Legal Counsel specifying the period within which required improvements and repairs shall be completed. Section 4.100. FINAL PLAT APPROVAL. After the final plat has been checked and approved as provided in this article, and when all certificates appearing thereon, except those of the Planning Director, County Clerkand Board of County Commissioners have been signed and,when necessary, acknow- leged, the Planning Direcotr shall certify the fnal plat and submit it to the Board of County Commissioners for final approval. Section 4.110. RECORDING OF ;PLAT. (1) No plat shall have any force or effect until the same has been finally approved by the Board of County Commissioners. No title, to any property - 36 - described in any offer of dedication shall pass until the final plat has been recorded, (2) The Planning Afregtor or' his representative shall rile', the',', approved'; final plat, including; an exact copy thereof as described 'in subsection (4) of this. section, With the County Clerk. (3) No plat shall be recorded unless all ad valorem taxes and all special assessments fees or other charges required by law to be placed upon the tax roll, which have become a lien upon the subdivision or which will become a lien during the calendar year, have been paid. (4) The applicant shall also submit with the final plat an exact copy thereof, made with black India Ink or photocopy upon a good quality of linen, tracing cloth or other suitable drafting material having the same or better characteristics of strength, stability and transparency. The engineer or surveyor who made the plat shall make an affidavit to indicate that the photocopy or tracing is an exact copy of the plat. The copy shall be filed with the County Recorder and shall be certified by him to be an exact copy and then shall be filed in the archives of the County, and be preserved by filing without folding. The applicant shall provide without cost prints from such copy to the County Assessor, County Sanitarian, County Engineer, County Planning Department and appropriate postal and fire protection agencies. (5) The final plat shall be accompanied by a filing fee as set by the Board of County Commissioners. Section 4.120. FILING PLAT WITH STATE. Either before or after recording the final plat, the applicant or his surveyor shall file a report with the Real Estate Division, Department of Commerce, State of Oregon, and shall comply with all provisions of the Oregon Revised Statutes relating to the sale of subdivided land in Oregon. A full and complete copy of said report shall be filed with the County Planning Depart- ment. - 37 ARTICLE 5. 410 LAND PARTITIONING Section 5.010. APPLICABILITY OF REGULATIONS. (1) All land partitionings within the county shall be approved by the Executive Committee. Said approvals shall only be granted in accordance with the provis- ions of this ordinance. (2) In its discretion, the Executive Committe may submit the partition to the County Surveyor for approval. (3) Any plat prepared by the County Surveyor in his private capacity shall be approved by the County Surveyor of another county in accordance with the provisions of ORS 92.100(2)and (3) . Section 5.020. FILING PROCEDURES AND REQUIREMENTS. (1) Any person proposing a land partitioning, or his authorized agent or representative, shall prepare and submit five (5) copies of the documents hereinafter described, in accordance with the prescribed procedures, and the appropriate filing fee, to the Planning Department. (2) The tentative plan for partitioning shall include the following: (A) A vicinity map locating the proposed partitioning in relation to adjacent subdivisions, roadways and adjoining land use and ownership patterns. The map must include names of all existing roadways shown therein. (B) A plan of the proposed partitioning showing tract boundaries and dimensions, the area of each tract or parcel,locations of all easements, and the names, right-of-way widths and improvement stand- ards of existing roads. (C) Names and addresses of the landowner, the applicant (if different) , a mortgagee if applicable, the engineer or surveyor employed or to be employed to make necessary surveys and prepare the legal descriptions of each parcel to be created, and record owners of land contiguous to the proposed partition. N (D) A statement regarding contemplated water supply, sewage disposal, solid waste disposal, fire - 38 - protection and access, etc. (E) North point, scale and date of map, and property identification by tax lot, section, township and range. (F) Statement regarding past, present and intended use of the parcels to be created, or the use for which the parcels are to be offered. (G) If a tract of land has water rights, the application shall be accompanied by a water rights division plan approved by the irrigation district or other water district holding the water rights, or when there is no such district, by the County Watermaster. (H) Location of all existing buildings, canals, ditches, septic tanks and drainfields. (I) Location of any topographical feature which could impact the partition, such as canyons, bluffs, rock outcroppings, natural springs and flood plains. (J) Location, width, name, curve ratio and approximate 410 grade of all proposed rights-of-way. Section 5. 030. REQUIREMENTS FOR APPROVAL. (1) No application for partitioning shall be approved unless the following requirements are met: (A) Proposal is in compliance with ORS Chapter 92, the comprehensive plan and applicable zoning. (8) Proposal does not conflict with acquired public access easements within or adjacent to the partition. (C) Each parcel is suited for the use intended or offered. (D) Proposal is compatible with adjoining and area land uses. (E) All required public services and facilities are available and adequate or are proposed to be provided by the petitioner. (F) Proposal will not have any undue adverse impacts-on adjoining or area land uses, public services and facilities, and natural resource carrying capacities. - 39 - (G) An approved water rights division plan. (2) The Executive Committee shall deny an application for 4IP partitioning when it appears the partitioning is ' part of a plan or scheme to create more than three (3) parcels without going through subdivision, or is part of a development pattern having the effect of creating more than three (3) parcels without sub- dividing. Section 5.040. ADDITIONAL FACTORS TO BE CONSIDERED. In addition to the requirements set forth in section 5.030. the following additional factors shall be considered by the Executive Committee when appropriate : (1) Placement and availability of utilities. (2) Safety from fire, flood and other natural hazards. (3) Adequate provision of public facilites and services. (4) Possible effects on natural, scenic and historical resources. (5) Need for onsite or offsite improvements. (6) Need for additional setback, screening, landscaping and other requirements relative to the protection' of adjoining and area land uses. Section 5.050. IMPROVEMENT REQUIREMENTS. • (1) In the approval of a land partitioning, the Executive Committee shall consider the need for street and other improvements, and may require as a condition of approval any improvements that may be required for a subdivision under the provisions of this ordinance. All roads in major partitions shall be dedicated to the public without reservation or restriction. (2) Existing Streets. The dedication of additional right- of-way-and widening of the existing roadway shall be required whenever existing streets adjacent to or within a tract area are inadequate to safely accommodate traffic anticipated by: (A) Current County Roadway Network Plan;or (B) The Planning Director's or County Engineer' s projection from current growth experience where- in it is found tha the present requirements for roads differ from those anticipated when the Net- work Plan was adopted, Dedication of additional right-of-way widening shall be required where topography requires cut or fill slopes for roads under the criteria above, where state law 40 - requires rights-of-way for utilities to be dedicated or where a rationally supported traffic engineering study states that additional through lanes, lanes for turning, exits, bike paths, or walkways are needed for public safety or efficient traffic flow. Section 5.060. FINAL MAP OR DRAWING FOR PARTITIONING. Following approval of the tentative plan for a proposed partitioning, the applicant shall prepare and submit to the Planning Department the final map or drawing for the subject partitioning. Such filing shall be completed within six months from the date of the approval, or the approval shall be void. The final map or drawing shall be prepared in accordance with the following requirements and the original and two (2). copies thereof submitted by the Planning Department to the Executive Committee for approval. The original shall be recorded by the Planning Director in the office of the County Clerk following approval by the Executive Committee. (1) Final map or drawing requirements: CA) Maps shall be drawn to a scale of one inch per 100 feet. (B) Name of the owner, developer and engineer or surveyor shall be shown on the map or drawing. (C) Date, scale, north point, legal description of boundaries, and a tie by actual survey to a section or donation land claim corner. (D) Parcel boundary lines, with dimensions and bearings; bearings shall be to the nearest 30 seconds, and distances to the nearest 0. 01 feet. The area of each parcel shall be shown. (E) An affidavit by the engineer or surveyor having surveyed the land involved a major partitioning. of acceptance of an (F) A certification P y public dedication.P (G) A guarantee of approved or required improvements, including identification of maintenance responsibilities for proposed or existing roads and streets. CH) A certification of approval for execution by the Planning Direcotr. (I) Water rights to be assined to each parcel shall be indicated on the map or drawing and certification JI■ of approval thereof. (2) Approval Requirements: No final map or drawing for a land partitioning shall be approved by the Executive - 41 - Committee unless all of the following requirements are met: 410 (A) The final map or drawing is in strict conform- ance with the approved tentative plan. (B) The final map or drawing is in conformance with the requirements set forth in subsection (1) of this section. (C) Access is guaranteed to each parcel. (D) Each parcel is approved for subsurface sewage disposal if applicable to the intended or offered use. (E) All required public utilities are available. (F) All conditions of the tentative plan approval have been met or guaranteed. (G) A guarantee of all proposed or required improvements has been submitted and approved or such improvements completed and approved as set forth by the Executive Committee. Section 5.070. APPLICATION REVIEW. (1) Within 30 days following submission of an application for a land partitioning the Executive Committee shall review the plans and application submitted, and shall either deny or recommend application. (2) Upon written requrest of the Planning Director the Hearings Officer may extend the review period. (3) Staff and Hearings Officer review shall be conducted in accordance with County Ordinance PL-9. Section 5.080. APPEAL. An appeal of a decision or require- ment of the Executive Committee relative to a land partitioning shall be made in accordance with the provisions of article 11 of this ordinance, and County Ordinance PL-9. Section 5.090. SPECIAL PARTITIONING REGULATIONS. (1) The partitioning of a tract of land in which not more than one (1) parcel is created and transferred to a public or semi-public agency for the purpose of a road, railroad, electric substation or canal right- of-way may be approved by the Planning Director. A filing fee shall be required. 2 The adjustment of a lot line by the relocation ,of a ( ) 7 Y common boundary does not include cases when an - 4.2 - additional parcel or tax lot is created, when a parcel existing before the adjustment is reduced in size by more than 5% of its original area, when a parcel existing before the adjustment is reduced below the minimum lot size establihed by the applicable zoning, when the entire common boundary involved is not relocated an equal distance, when there are dwellings,roads , rights-of-way existing or shown in the comprehensive plan or County Road Network Plan, or other structures located within the area involved in the adjustment. All such adjustments shall be treated as partitions. (3) al le executive ocrr+ittee may waive the operation of subsection (2) of this section for previously approved partition parcels where the applicant seeks to relocate the entire carman boundary an unequal distance for the purpose of retaining a pre-existing distance for the purpose of retaining a pre-existing tree of six inches in caliper or greater. Section 5.100. PARTITIONING FOR FINANCIAL PURPOSES. (1) Upon application to the Planning Director, a special permit may be granted authorizing the creation of a security interest or leasehold in a parcel of land. (2) Permits issued under the authority of this section shall be subject to the following limitations and restrictions: (A) A parcel possessed or subject to a right of possession by a person under the terms of a lease or the foreclosure of a security interest, and the remaining parcels, must remain in the same legal use the parcels were in at the time the interest became possessory, except the parcels may be put into agricultural use; but in no case may an additional structure or improvement, other than that which is the subject of the applicable security interest, be added to any parcel by the authority of the permit authorized in subsection (1) of this section. In order to establish uses other than agriculture or to erect structures including farm accessory structures, the owner of the parcel must secure a land partitioning approval as other- wise required by this ordinance. (B) The permit authorized in subsection (1) of this section shall be valid only for the time of the lease or the life of the security interest, except in the case of default and foreclosure upon the interest. In the case of default and foreclosure, the permit shall be valid only until a land partitioning permit is granted or the parcels are rejoined in a contiguous unit of land under the same ownership. -43- (C) At the expiration of the security interest if there is no default or foreclosure or at the 410 expiration of the lease, the parcels shall be rejoined into a contiguous unit of land under one ownership and, if possible, shall be reunited or combined into a single tax lot. The owner of the property shall be in violation of this ordinance if he has not, within 30 days of the permit becoming void, made written application to the County Assessor for the combination of the paroles into a single tax lot. (3) No permit may be issued under this section until the owners of the subject property and the holder of the security or lease interest sign a statement indicating that all parties agree to comply with the limits being placed upon the permit. (4) The permit issued under this section shall be immediately void if the owner of the property attempts any transfer of the subject parcels except as provided by the terms of the permit or of this ordinance. (5) The partitioning permit authorized by this section shall be granted only if the applicant certifies and the Planning Director finds that; (A) The intended partitioning is temporary and not created for the purpose of evasion of the requirements of this ordinance, other County ordinances or regulations, or state law. (B) The partitioning will not result in the need for additional roads or other access. (C) The partitioning will not result in the need for additional improvements. (D) The partitioning will not interfere with adjoining and area land uses. (E) The partitioning will not violate any provisions of applicable zoning or policies of the comprehensive plan. -44- ARTICLE 6. DEDICATION OF STREETS NOT PART OF A SUBDIVISION Section 6.010. APPLICATION. Any person desiring to create a street not part of a subdivision or major partition shall make written application to the Planning Department. Said application shall be made on prescribed forms, and shall be accompanied by the required information and appropriate filing fee. Section 6. 020. MINIMUM DESIGN STANDARDS. The minimum standards of design and improvements for the dedication of a street shall be the same as set forth in this ordin- ance for streets within a subdivision and shall be in compliance with other applicable street standard regulations. Section 6.030. PROCEDURE. (1) Upon receipt of written application and appropriate filing fee for street dedication, the Planning Director shall refer the proposal to the County Engineer for review and recommendation. The applic- ation must be accompanied by two copies of the proposed dedication, written legal description and proposed improvements. (2) If access to a County Road or State Highway is planned, the necessary permits shall be obtained prior to approval by the Board of County Commissioners. (3) The County Engineer shall report his findings and recommendations regarding the proposed dedication and improvements to the Planning Director. (4) Upon receipt by the Planning Director of written findings and recommendations from the County Engineer, the proposal shall be submitted to the Board of County Commissioners for preliminary review and approval. (5) Upon preliminary approval by the Board of County Commissioners, the engineering and improvements design of the roadway conforming to the requirements of this ordinance and other applicable regulations shall be submitted to the County Engineer for review and approval. Said engineering and improvements 411 design shall be prepared and signed by a licensed engineer or. surveyor. .. 45 (6) Following approval of the roadway engineering and design, the applicant shall prepare a warranty deed 410 dedicating said street to the public and an improve- ments guarantee. Said documents shall be submitted to the County Legal Counsel for review and approval, together with a current title report on subject property. (7) Following receipt of the approvals set forth in subsections (_5) and (6) of this section, the deed and improvements guarantee shall be submitted to the Board of County Commissioners for final approval. • 110 - 46 - 41/11 ARTICLE 7. DESIGN STANDARDS. Section 7. 010. COMPLIANCE REQUIRED. A land division, by major partition subdivision, creation of a street or other right-of-way, shall be in compliance with the design standards set forth in this ordinance, including Deschutes County Road Standards (Appendix A) . Section 7.020. STREETS. (1) General. The location, width and grade of streets shall be considered in their relation to existing and planned streets, topographical conditions, public convenience and safety, and the proposed use of land to be served by the streets. The street system shall assure an adequate traffic circulation system with intersection angles, grades, tangents and curves appropriate for the traffic to be carried considering the terrain. The proposed street location and pattern shall be shown on a development plan and the arrangement of streets shall provide for the contin- uation or projection of existing principal streets in surrounding areas. (2) Partial Plats. If the plat submitted covers only a part of the applicants tract, a drawing of the pro- spective future street system of the entire tract shall be furnished. (3) Future Re-Subdivision. If a tract is subdivided into lots of one to ten acres in area, the Subdivision Review Committee may require an arrangement of lots and streets to permit a future re-subdivision in conformity with street and other requirements contained in this ordinance. (4) Existing Streets. Whenever existing streets, adjacent to or within a tract, are of inadequate width to accommodate the increase in traffic expected from the subdivision, additional right-of-way shall be provided at the time of the land division by the applicant. During consideration of the tentative plan for a subdivision, the Subdivision Review Committee (Committee) shall determine whether improvements to existing streets, adjacent to or within the tract, are required; such improvements may be required as a condition of approval of the tentative plan. - 47 - a (5) Minimum Right-of-way and Roadway Width. Unless otherwise approved in the tentative development 411 plan, the street right-of-way and roadway surfacing widths shall bei;n°conformance with standards and specifications set forth in Appendix A of this ordinance. If land division is located within an urban growth boundary, compliance with applicable city street improvement standards and specifications may be required. (6) Reserve Strips. Reserve strips controlling access to streets shall be required when deemed necessary by the Committee for the protection of public safety and welfare. The strips shall be dedicated to the public for future street pruposes. 7 Future Extensions of Streets. When necessary to give ( ) Y g access to or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary of the subdivision or partition and the resulting dead- end streets may be approved without a permanent turn- around. Reserve strips shall be required to preserve the objective of street extensions. (8) Half Street. Half streets, while generally not acceptable, may be approved where essential to the reasonable development of the subdivision or partition if in conformity with other requirements of these regulations and if the Committee finds it will be practical to require the dedication of the other part when the adjoining property is divided. Reserve strips may be required to preserve the objectives of half streets. (9) Cul-De-Sacs. A cul-de-sac shall conform to the conditions contained in Appendix A of this ordiance. (10) Street Names. Except for extensions of existing streets, no street name shall be used which will duplicate or be confused with the name of an existing street in a nearby city or in the county. Street names and numbers shall conform to the established pattern in the city and shall be subject to the approval of the City Planning Commission if located within an urban growth boundary jointly adopted by a city and the County. Street names shall comply with the provisions of appendix A unless superseded by a controlling local government. (11) Streets Adjacent to Railroad Right-of-Way. If the proposed land division contains or is adjacent to a railroad right-of-way, provision may be required for a street approximately parallel to and on each side of such right-of-way at a distance suitable for use of the land between the streets and the railroad. The - 48 - r distance shall be determined by considering the 410/1 minimum distance required for approach grades to a future grade separation and to provide sufficient depth to allow screen planting along the railroad right-of-way. In the case of a railroad right-of-way a land strip of not less than twenty-five feet in width shall be provided along such right-of-way for screen planting between the railroad and residential lots. When such parallel streets are less than eighty (80) feet from a freeway or parkway the intervening property shall be held or developed for park or thoroughfare purpose only. Streets parallel to streets which intersect a railroad shall be located at a distance from such railroad sufficient to make provisions for any possible grade separations on the cross streets. (12) Marginal Access Streets (Frontage Roads) . If a land division abuts or contains an existing or proposed collector or arterial steet, the Committee may require marginal access streets, reverse frontage lots with suitable depth, screen planting contained in a non- access reservation along the rear or side property line, or other treatment necessary for adequate protection of residential properties and to afford separation of through and local traffic. Provision may be made for emergency access. All marginal access streets shall comply with appropriate local road standards. (13) Alleys. Alleys should be provided:in commercial and industrial districts unless other permanent provisions for access to off-street parking and loading facilities are approved by the Committee. The minimum width of an alley in a residential block when platted shall be sixteen (16) feet. Alleys in commercial and industrial districts shall not be less than twenty (20) feet. The corners of all alleys at their intersection with streets and other alleys shall be curved with a radius of not less than ten (10) feet. (14) Access Generally. Each lot shall be provided with a road having unrestricted access to an existing public street. (15) Access Crossing Public Lands. If provision of public requires the crossing of public lands, approval of the subdivision shall be obtained from the agency having. jurisdication over siad public lands crossed over prior to Hearings Officer approval of the tentative plan. (16) Access to State Highway.. Where a subdivision requires an access approach to a State Highway, approval shall 110 be obtained from the State Highway Dept. prior to Hearings Officer approval of the tentative plan. - 49 - s Section 7.030. BLOCKS. (1) General. The length, width and shape of blocks shall S accommodate the need for adequate building site size and street width and shall be compatible with the limitations of the topography. (2) Size. No block shall be more than 1,000 feet in length in lots of five acres or less and 2,640 feet in lots of less than five acres between street corner lines unless adjacent to the arterial street or unless the topography or location of adjoining streets justifies an exception. The recommendation minimum block length along an arterial street is 1,800 feet. A block shall have sufficient width to allow for two building sites unless topography of the location of and adjoining street justifies an exception. (3) Easements . (A) Utility Easements. Easements shall be provided along property lines when necessary for the placement of overhead or underground utilities and to provide the subdivision with electric power, communication facilities, street lighting, sewerlines, waterlines, gaslines,or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative and final plat; they shall be at least 12 feet in width and centered on lot lines where possible, except utility pole gpylines easements along the rear of lots adjacent to unsubdivided land may be reduced to 10 feet in width. (B) Drainage. If a tract is traversed by a water course such as a drainage way, channel or stream, there shall be provided a stormwater easement or drainage right-of-way conforming substantially with the lines of the water course or in such further width as will be adequate for the purpose. Streets or parkways parallel to major water courses or drainage ways may be required. (C) Pedestrian and Bicycle Ways. When desirable for public convenience, a pedestrian or bicycle way in conformance with the comprehensive plan may be required to connect to a cul-de-sac or to pass through an unusually long or oddly shaped block or otherwise provide appropriate circulation. Section 7.040. BUILDING SITES. (1) Size and Shape. The size, width, shape and orientation of building sites shall be appropriate for the location of the land division and for the type of develccment and - 50 - • use contemplated, and shall be consistent with the lot size provisions of the zoning ordinance, with the following exceptions: (A) In areas not to be served by a public sewer, minimum lot and parcel sizes shall permit compliance with the requirements of the Depart- ment of Environmental Quality and County Sanitarian, and shall be sufficient to permit adequate sewage disposal. Any problems posed by soil structure and water table as related to sewage disposal by septic tank shall be addressed and resolved in the applicant's initial plan. (B) Where property is zoned and planned for business or industrial use, other widths and areas may be permitted by the Hearings Officer. Depth and width of properties reserved or laid out for commercial and industrial purposes shall be adequate to provide for the off-street service and parking facilities required by the type of use and development contem- plated. (2) Access. Each lot and parcel shall abut a street other than an alley for a distance of at least 50 feet. (3) Throu9h Lots and Parcels. Through lots and parcels shall be avoided, except where they are essential to provide separation of residential development from major traffic arterials or adjacent non- residential activities, or to overcome specific disadvantages of topography and orientation. A planting screen easement at least ten (10) feet wide, across which there shall be no right of access, shall be required along the line of building sites abutting such a traffic arterial or other incompatible uses, except that if the lot or parcel abuts on any side an area to which access is likely to be required for emergency vehicles, the planting screen shall be sufficiently short to allow such access. (4) Lot and Parcel Side Lines. The lines of lots and parcels, as far as is practicable, shall run at right angles to the street upon which they face, except that on curved streets they shall be radial to the curve. (5) Division by Rights-of-way, Drainage Ways. No lot established after the effective date of this ordinance shall be divided by the boundary line of the County, city or other taxing or service district, or by the right-of-way of a street, utility line or drainage way, or by easement for utilities or other services, or by major irrigation delivery canals. - 51 - 6 (6) Solar Access. The lines of lots and parcels, as far as is practicable shall be oriented to allow structures constructed on the lots or parcels to utilize solar 41/ energy by establishing the long axis in the east west direction permitting sunlight access three hours before and after solar noon. Easements necessary to assure solar access may also be required for subdivision approval. Section 7.050. GRADING OF BUILDING SITES. Grading of building sites shall conform to the following standards unless physical conditions demonstrate the propriety of other standards. (1) Cut slope ratios shall not exceed one foot vertically to one and one-half feet horizontally. (2) Fill slope ratios shall not exceed one foot vertically to two feet horizontally. (3) The composition of soil for fill and the characteristics of lots and parcels made useable by fill shall be suitable for the purpose intended. Section 7.060. SPECIAL SETBACKS If special building ' setbacks lines are to be established in a subdivisi.cn, they shall be shown on the tentative plan and final plat and included in the deed restrictions. Section 7.070. LARGE BUILDING SITES In dividing tracts into large lots or parcels wh ci h exceed the minimum lot size permitted by either the zoning map or the comprehensive plan map, the Subdivision Review Committee may require that the blocks be of a size and shape which will facilitate future redivision. Such conditions shall allow for future street extensions and openings . Section 7.080. LAND FOR PUBLIC PURPOSES (1) If the County has an interest as expressed in its capital improvements program in acquiring a portion of a proposed subdivision for a public purpose, or if the County has been advised of such interest bpi a school district or other public agency, and there is reasonable assurance that steps will be taken to acquire the land, the Hearings Officer may require that those portions of the subdivision be reserved for public acquisition, for a period not to exceed one year, although such area may be platted and approved as part of the subdivision. (2) All subdivisions hall be required to dedicate an amount of land for recreational purposes sufficient to provide 2.5 acres of usable park land for each 1.000 people. Outside an urban gowth boundary the amount to be - 52 -. ■ dedicated shall be established by determining the 41,1 maximum potential occupant density per acre(including seasonal) . The total amount to be dedicated will be determined by applying the method indicated in the example set forth below: Example 15, 000 sq.ft. lots = 9 people/acre* 1,000 people s 9 people/acre =111 acres necessary to accommondate 1, 000 people 2.5 acres ; 111 acres = . 023 acres 100 gross acre subdivision x.023 = 2.3 acres to be dedicated for park purposes. *Assumes three people per household (1970 U.S. Census) Inside urban growth boundaries, the park dedication standard shall be that established by mutual agreement between Deschutes County and the appropriate city and park district authorities. The Hearings Officer shall determine whether a fee in lieu of land dedication is appropriate. The land to be dedicated for park purposes must actually be functional park land. The amount of 4111 the in-lieu fee shall be determined by multiplying the amount of land to be dedicated times the per acre most recently assessed value as shown on county tax rolls of the subdivsion lots to be sold in the subdivision. Example. 10 acre lots require . 0075 acres of land for park purposes for each acre of subdivision. A 100 acre subdivision would require . 075 acres of land for park purposes. Assuming the lots are assessed at $3,500/acre ($3,500 x . 075) the in-lieu fee would be $262. 50. (4) The in lieu fees paid in accordance with this section shall be set aside in a fund whose assets are limited to the acquisition, improvement , or maintenance of park land. Section 7.090. FLOOD HAZARDS. Areas subject to ponding of surface waters or flooding caused by surface waters or a high water table, shall not be subdivided until necessary measures have been taken to eliminate the hazard involved. The existence of such hazard may be just cause for disapproval of the proposal. I, Section 7.100. WATER SUPPLY. An adequate water supply shall be required for all subdivisions and partitions, and 111 shall be one of the following: - 53 - i • (1) Individual wells: In any development where individual wells are proposed, the applicant shall furnish evidence 411 that a safe and potable water supply will be provided in adequate quantity and quality for domestic use (5 gall_onWminute minimum) . (2) Community domestic water supply system: In any development where a community water supply system is required or proposed, plans for the said water supply system shall be submitted to and approved by the appropriate state or federal agency. (3) A community water supply system shall be required where lot sizes are less than one (1) acre or where potable water sources are at depths greater than 500 feet, excepting land partitions. Section 7. 110. SOLID WASTE. The applicant must provide a plan for disposal of solid waste generated by the develop- ment. Such plan must be approved by the County Sanitarian. Section 7.120. PUBLIC UTILITIES. In subdivisions all public facilites provided shall be underground wherever feasible. Section 7.130. FIRE HAZARDS. Subdivisions shall be subject to the following requirements: (1) Ingress/egress routes from at least two different directions shall be provided to assure adequate access to fire and emergency equipment and easy resident evacution. (2) Access ways to all lakes, streams, swimming pools or other water sources, shall be provided for fire trucks, and shall allow the trucks to locate within 12 feet from the water source. The access way shall be capable of supporting a 65,000 pound equipment vehicle. (3) Bridges and roads shall be constructed to accommodate fire fighting equipment appropriate to the area. (4) All roads, streets and buildings shall be clearly identified by permanent signs or numbers readable from the street or road. (5) All developments shall provide an adequate firebreak around and within various segments of the subdivision and protective covenants shall be required to maintain . appropriate firebreaks, vegetation (as to height and type) , and building materials to reduce the likelihood of fire. 54 ARTICLE 8 IMPROVEMENTS OIDSection 8.010 IMPROVEMENT PROCEDURES. In addition to other requirements, improvements to be installed by the applicant, either as a requirement of this ordinance or other applicable regulations or at his own option, shall conform to the requirements of this article. (1) Plan Review and Approval. Improvement work shall not be commenced until plans therefor have been reviewed and approved by the Executive Committee or a desig- nated representative thereof. To the extent neces- sary for evaluation of a proposed development, such improvement plans may be required before approval of the tentative plan or preliminary map or drawing. (2) Improvements as Platted. Improvements shall be de- signed, installed and constructed as platted and ap- proved, and plans therefor shall be filed with the final plat at the time of recordation or upon com- pletion. (3) Inspection. Improvements shall be constructed under the inspection and approval of a County inspector designated by the Executive Committee. Expenses incurred thereby shall be borne by the applicant. The inspector may require changes in sections and details of the improvements if unusual conditions arise during construction to warrant such changes. (4) Utilities. Underground utilities including but not limited to electric power, telephone, water mains, water service crossings, sanitary sewers and stormwater drains shall be constructed by the applicant prior to the surfacing of the streets. (5) As-Built Plans. A map showing public improvements as built shall be filed with the Planning Department upon completion of the improvements, and a copy thereof shall be recorded with the final plat. Section 8.030 IMPROVEMENTS IN SUBDIVISIONS. The follow- ing improvements shall be installed, at the expense of the applicant: (1) Streets. Streets, including alleys and curbs, within the subdivision, adjacent thereto, and those out- side the subdivision required to be installed or im- proved as a condition of subdivision approval, shall be improved to specifications set forth by this or- dinance and other applicable regulations. Catch basins shall be installed and connected to drainage . facilities in accordance with specifications in this and other applicable regulations, and in accordance with additional specifications imposed by the County - 55 - to meet specific conditions . Upon completion of street improvements, monuments shall be re-established in accordance with this ordinance and Oregon Revised Statutes at every street intersection and all points of curvature and points of tangency at their center- lines. (2) Surface Drainage and Storm Sewer System. Drainage facilities required within the subdivision and to connect the subdivision drainage ways or storm sewers outside the subdivision. Design of drainage within the subdivision shall take into account the capacity and grade necessary to maintain restricted flow from areas draining through the subdivision and to allow extension of the system to serve such area. (3) Sanitary Sewers. Sanitary sewers shall be installed to serve the subdivision and to connect the sub- division to existing mains. Design shall take into account the capacity and grade to allow for desirable extension beyond the subdivision. (4) Water System. Water lines and fire hydrants serving each building site in the subdivision and connecting the subdivision to the serving system shall be installed to specifications of the serving water system pur- 1,' veyor. The design shall take into account provisions for extension beyond the subdivision. (5) Sidewalks. Sidewalks are required to be installed on at least one side of a public street and in any special pedestrian way within the subdivision except ' that in the case of collectors, arterials, or special industrial type districts, the Subdivision Review Committtee may approve a subdivision without sidewalks if alternative pedestrian routes are available. In the case of streets serving residential areas hav- ing single-family dwellings located on lots equiva- lent to two and one-half or fewer dwellings per acre, the requirement of sidewalks shall not apply, provided there is no evidence of regular pedestrian activity along the streets involved. (6) Bicycle Routes. If appropriate to the extension of a system of bicycle routes, existing or planned, the Subdivision Review Committee may require the installation of separate bicycle lanes within streets and separate bicycle paths. (7) Signs. Street name signs, stop signs, and all other traffic control signs as required by the County En- gineer or in accordance with the MUTCD shall be in- stalled. A minimum.:of one street sign shall be pro- vided at four-way intersections. - 57 - (8) Street Lights. Street lights shall be installed, and shall be served from an underground source of supply as feasible. (9) Other. The applicant shall make necessary arrangements for the installation of underground lines and facil- ities. Electrical lines and other wires, including but not limited to communication, street lighting and cable television, shall be placed underground as feasible. Section 8. 040. IMPROVEMENTS IN PARTITIONS. The same improvements may be required to be installed to serve each building site of a partition as are required of a subdivi- sion. Section 8.060 ACCEPTANCE OF IMPROVEMENTS. Improvements shall be considered for preliminary acceptance after inspection at the time the improvements are constructed. Final accep- tance shall be considered by the County Engineer within one year after construction is completed. Section 8.070. BUILDING PERMITS. No building permit shall be issued upon lots to be served by sanitary sewer and water service as improvements required pursuant to this ordinance unless such improvements are in place and service- able. All improvements required pursuant to this ordinance and other applicable regulations shall be completed, in service and approved by the County Engineer prior to the sale and occupancy of any building unit erected upon a lot within the subdivision or partition. Prior to sale and occupancy, and as a condition of acceptance of improvements, the County Engineer may require a one-year naintenance surety bond in an amount not to exceed 10 percent of the value of all improvements to guarantee maintenance of said improvements for a period of not less than one year from the date of acceptance. • • - 58 - i -n • ARTICLE 9 IMPROVEMENT GUARANTEE 410 Section 9. 010 AGREEMENT FOR IMPROVEMENTS. Prior to final approval of a subdivision plat or partition map, the appli- cant shall either install required improvements and repair existing streets and other public facilities damaged in the development of the property or execute and file with the Planning Department an agreement between himself and the County specifying the date on which required improvements and repairs shall be completed and providing that if the work is not completed within the period specified, the County may contract to have the work completed and recover the full cost and expense, together with court costs and attorney fees necessary to collect said amounts from the applicant. The agreement shall also provide for reimburse- ment of the County for the cost of inspection. Section 9.020. BOND (1) Type of Security. The applicant shall file with the improvement agreement, to assure his full per- formance thereof, one of the following: a. A surety bond executed by a surety company auth- orized to transact business in the State of Oregon in a form approved by the County Counsel. 41011 b. Cash. (2) Amount Required. Such assurance of full performance shall be for a sum approved by the County Engineer as sufficient to cover the cost of improvements and repairs, including related engineering and in- cidental expenses and to cover the cost of county inspection. (3) Default Status. If the applicant fails to carry out provisions of the agreement and the County has un- reimbursed costs or expenses resulting from such failure, the County shall call on the bond or cash deposit for reimbursement. If the amount of the bond or cash deposit exceeds cost and expense incurred by the County, it shall release the remainder. If the amount of the bond or cash deposit is less than the cost and expense incurred by the County, the applicant shall be liable to the County for the dif- ference. (4) The bond shall not be released by the County until one year from the improvement completion date spec- ified by the applicant. (5) The bond shall not be released by the County until • County inspectors have inspected the improvements and approved them in writing. - 59 I ARTICLE 10. VARIANCES 410 Section 10.010 VARIANCE APPLICATION. The Hearings Officer may authorize area or use variances from the require- ments of this ordinance. Application for a variance shall be made by petition stating fully the grounds of the appli- cation and the facts relied upon by the petitioner. The petition shall be filed with the preliminary plan. Section 10.020 . ACTION OF HEARINGS OFFICER. The Hear- ings Officer shall consider the application for a variance at the same hearing at which he considers the preliminary plan. A variance may be granted unqualifiedly or may be granted subject to prescribed conditions, provided that the Hearings Officer shall make all of the following findings: A. Area Variance. (1) That the literal application of the ordinance would create practical difficulties resulting in greater private expense than public benefit. (2) That the condition creating the difficulty is not general throughout the surrounding area but is unique to the applicant's site. (3) That the condition was not created by the applicant. A self-created difficulty will be found if the ap- plicant knew or should have known of the restriction at the time the site was purchased. (4) That the variance conforms to the comprehensive plan and the intent of the ordinance being varied. B. Use Variance. (1) That the literal application of the ordinance would result in unnecessary hardship to the applicant. An unnecessary hardship will be found when the site cannot be put to any beneficial use under the terms of the applicable ordinance. (2) Each of the findings listed in subsections A(2) , (3) and (4) of this section. Section 10.030. HEARINGS OFFICER ACTION ON VARIANCE. In granting or denying a variance, the Hearings Officer shall make a written record of his findings and the facts in connection therewith, and shall describe the variance granted and the conditions designated. The Planning Depart- ment shall keep the findings on file, and a copy of the vari- ance granted and the conditionsthereof shall be recorded together with the final plat.: 41/0 - 60 - 'i ARTICLE 11. ADMINISTRATION AND APPEALS. 010 Section 11.010 BASIS OF DISPOSITION. Approval or de- nial of an application for land development shall be based upon and accompanied by a statement explaining the criteria and standards considered relevant to the decision, stating the facts relied upon in rendering the decision, and explain- ing the justification for the decision based upon the cri- teria, standards and facts set forth. Section 11. 020. APPEALS. (1) A person, including a county agency may appeal a decision, or requirement made by the Hearings Officer as provided in County Ordinance PL-9. A person may appeal to the Hearings Officer from a decision or requirement made by the Planning Director, the Ex- ecutive Committee on the Subdivision Review Committee. (2) Appeals will proceed according to the provisions of County Ordinance PL-9. (3) The Hearings Officer, Planning Commission or Board of County Commissioners may review a lower decision on its own motion, in accordance with the provisions of county Ordinance PL-9. 41111 Section 11.070. PENALTIES. Violation of any provision of this ordinance is punishable upon conviction by a fine of not less than $50.00 nor more than $500 . 00, or imprison- ment in the County Jail for not less than 25 days not more than 90 days, or both. Section 11. 080. VIOLATION DECLARED A NUISANCE. A land division or use in violation of this ordinance is hereby declared a nuisance. Section 11.090. ENFORCEMENT. It shall be the respon- sibility of the Planning Director to notify the Board of County Commissioners of any violation of the ordinance and to sign any necessary complaints. Section 11. 110. COMPLIANCE WITH OREGON REAL ESTATE REGU- LATIONS. Prior to the sale of any lot within a subdivision, a final subdivision plat shall be approved and recorded and the subdivider shall file a "Notice of Intent" with the Oregon State Real Estate Division. Section 11. 120. CIVIL RELIEF. When any real property is or is proposed to be used, transferred, sold or disposed of in violation of this ordinance, the Board of County Com- missioners or any person whose interest in the property is or may be affected by the violation, in addition to other V remedies provided by law, may institute injunction, mandamus, abatement or other appropriate proceedings to prevent, - 61 - a temporarily or permanently enjoin, abate or set aside such use, transfer, sale, disposition, offer, negotiation or agreement. • Section 11.130. ADMINISTRATION OF ORDINANCE. It shall be the duty of the Planning Director or designated represen- tatives and the Hearings Officer to administer the provisions of this ordinance in such a way as to carry out its intent and purpose. Section 11.140. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by any court of compe- tent jurisdiction, such decision shall not affect the validity of the remaining portions of the ordinance. The Board of County Commissioners of the County of Deschutes hereby de- clares that it would have passed this ordinance and each sec- tion, subsection, sentence, clause and phrase thereof, ir- respective of the fact that any one or more of other sections, subsection, clauses or phrases be declared invalid or un- constitutional. Section 11.150. AMENDMENT, REPEAL. This ordinance may be amended or repealed as provided by law. County Ordinances PL-2 and PL-7 and all amendments thereto are hereby repealed. Section 11.160. CORRECTIONS. This ordinance may be corrected by order of the Board of County Commissioners to cure editorial and clerical errors. Section 11.160. EMERGENCY CLAUSE. It being deemed by the Board of County Commissioners of the County of Des- chutes that an emergency exists, this ordinance shall be in full force and effect from and after its adoption. Adopted by the Board of County Commissioners of the County of Deschutes, State of Oregon, on this 1st day of November 1979 CHAI .-11°14 4 CO' ISS ONE 614 721.1., COMMISSIONER ATTEST: - S County Clerk MP _ 62 .. Kuhn v DesCo Assessor MD-150093D Ex Plaintiff's Document List numbers 1 - 20 #pgs Kuhn v DesCo Assessor MD-150093D Ex 1-10 —105 pgs.pdf 105 BoPTA Documents 1 20150223 Document List Submitted to BoPTA.pdf 4 2 real-property-petition 310-063 2014-15 TL200 20141231 plus addendum 4pg_.pdf 4 3 20140710 Spitz Kuhn Final.Report Small.pdf 16 4 20140825 Settlement Kuhn v Assessor Langton re Tax Appeal TL300 Binder.pdf 9 4 n/a 20140219 BoPTA DesCo calls Kuhns negligent.pdf 1 5a Final Partition Plat Map highlight max build Line 85x14 .pdf 2 5b 05b Location Maps LL8721 BLM ODFW RoadClose MD-150093D Ex#005b.pdf 6 6a 20110208 email ODR Thummel ORS 308.205.2.d.pdf 4 6c USPAP 2010-2011 Standards Rule 1-3.pdf 1 6d 2014-15 eUSPAP with Bookmarks(Final)BASIC 22pgs .pdf 22 7 ORS 308.205(2)(d)Gov Restrictions adjust Real Market Value pl 3-5.pdf 4 8 08 To Bankers re loan Homeowners Agreement History 19pgs.pdf 19 includes: 19800403 CU-80-22 Findings&Decision 3 includes: 19870604 cover letter re LL adjustment 1 includes: LL adjustment application 1 includes: 19870619 Shipman letter re deed restrictions 1 includes: 19970115 Kuhn complaint re lack of homeowners agreement 1 includes: 20040930 First Am Title 2 includes: 20041004 First Am Title to Mark Pilliod 1 includes: 20100224 A-09-4 A-09-5, A-07-9 BoCC Decision 8 includes: 20110119 Kanner-no permits until agreement is recorded 1 9 09 20110207 email DEMO fee$176.40.pdf 2 10 10 2000-2014 6 letters re Property 8pgs.pdf 8 Kuhn v DesCo Assessor MD-150093D Ex 11-20—29 pgs.pdf 29 Supplimentary ORS 11 a I l a ORS 40.190 Rule 408. Compromise and offers to compromise lib 1 lb ORS 92.025 2 12 12 ORS 105.820 1 7 07 ORS 308.205(2)(d) 4 legal opinions re County's actions 13 13 20000809_011212 J Martin To Liz Fancher Re Dennis Luke 2pgs.pdf 2 14 20011205 Fancher To Craghead re 14th Amendment 2pgs.pdf 2 15 20060323 Magistrate Decision with yellow highlights.pdf Magistrate Daniel Robinson 13 16 20140808 email exchange Fancher&Mathers Outrageous Misinterpretation.pdf 1 financial help den ied 17 20060213 Letter from ODF&W re WHCMP Kuhn 2-06 1 18 20150914 ODF&W re WHCMP-problem with ownersship 1 19 20150922 NRCS Tom Bennett re ownership funding 1 20 2015 Letter from DS&WCD to Kuhn re assistance 1 Document List Dates&History.xlsx Document List 1/7/2016 ................... ‘2,‘',,,,„ ,,' ' ','':,'„,,,', „"1:‘',',,',,‘, ‘:::,'', :,,, ::‘\‘' , 9 , ',,,,,,,, ,,,',„"‘•,',, ,,,,,,',,,;,,:‘,•';‘'::,:" '',' : ' ,, , ,•'''„,„„::••,,,,,,,‘„,:,,,, , : , .•,‘„,, ' • ,',',:,',,,,,I,,9,„',,'',,:„ ,,,,,,:,,,,:,-,, , ,,', \,,,t,':',',,,„,:,,,,,,,,',',,,,,,,,-,',,,,,,,,, , ,,,,,a,,,,,, ,,,, ,: ,22„1,,„:;'\k,,,,,-, ,:',',,,,,,,',„; ‘,,,‘,, ,,‘,,,,: , ,, ,,,,,,,„::,:‘,,, ,,',2,,,,,,,, ,„,„ ' ,,,,',,:',„2‘,,,,,,','„',„,''' \ K , „ * \ \\,\\ � , , ceo essor \o t\Dh s Cn. \ s . ,,,,e i L „ :,, ,,,, ,,,, ,, ,,,,,,,\,,,,„,,,,,,,,,‘,,,,,,,,,,,,„ ‘,,,,,,‘,,,,,,,,,,s‘, „,,;,, , ,,,,, ,,,,, , ” 2, ,‘,,,„,,,,,,',,,,, ,,,',,,,,,,,,‘,,,,,,,,, #, 4 ,, ,,,,,,,,,,„; ,,,,,,,,,,,2,,,,4,, ,, ,„, ,,,, ,,,,i,,,,,,,,i,,,,,,,,',,:,,,,,,,,‘,2',,,,,,:,:,,,f,,,,,,‘,,,,‘,,,,,,,,,,,,,,, „ , ,,,,,,,,,,,„,,,,,,,,,, „,,,,,,,,,,,-,";, E # ' 1,,,,,,„,,,,,„2„p.,\,\\\,‘‘,,s . , .,,,,,,,,4,„„,,,, , ,,„ ,,,,,,,,, , „, „ „,,,,,,i,„,„,, ,,,,,, ,s, ‘,„„„ „ ' ,22,',,,, ,,,,,,',‘,,;',,,,,,,,,,‘„,,„‘„,,,, „,,,,,,,,,,-,2,,, ,,,,,,,,,,,, ,, \ „,,,A ,'',;;',„,,,, ,,, ',,‘,,‘„,s,',2,,,,',," :,,,,:s ‘‘‘‘",' ,2‘,,',',',',':‘,,,, ,,i,t1,0,,,lk,,,N,,,k,',‘,,‘ ‘,,,‘,, , -, 2', ' ' ,,,,,;‘,; ,,,,,,,,,,,,,,,,„,,, ,„ ,,,,,,„„\,,, , ,,,,,,,,,,,„,,,,,,,,,, ,, ,,,,,,,,,,,,,,,,,„„,,,,,,,, , „ ,‘„,„, ,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,;,,,,-,,,‘„,„,,,,,,,,,,,„, ,,,,,,„,,, , ,, ,,,'v,,,,,,,,,,,‘,,,,,,,,,,%\,,,k\ ,, 0, ,,\\\\ l,„,,,,,, \ \\\ \\\�\\\ \\Q\ \ \,,,, \\\ \ ,, \\\\ \\ \\�„\ - 3 N� \-\ \\ r 201 \\ \\,\\\\\\` ‘ \ \ \ \ \ \\A \,'�\ \\ \\\fit \\\\\ \\�\ �\ \\\\\ � \ Kuhn v DesCo ,Assess, or MD-150093D Ex 1-10 -105 pgs.pdf 1,36p9s as pdf, ( 20150223 Document List Submitted to BoPTA.pdf I 20150223 Document List Submitted to BaPTA Forms submitted in December 2014 real-property-petition 310-063 2014-15 TL200 20141231.pdf 2 pages form filled in real-property-petition_310-063 2014-15 TL300 20141231.pdf 2 pages form filled in Our Addendum to Real Property Petitions 20141230.pdf 2 pages summary of our position 20140710 Spitz Kuhn Final Report Small.pdf see page 5 16 pages 5 third paragraph—Land value is$225/acre 5 fifth paragraph—Total market value of$3,000($1,500 per each owner) 20140825 Settlement Kuhn v Assessor Langton re Tax Appeal TL300 Binder .pdf 9 pages # 5 CU-80-22 Prior to sale agreement shall be recorded... # 9 County has admitted it was wrong between Nov 1988 to Feb 2010 # 12 County was wrong about the final partition plat map # 15 County admits the other party is in violation of court order # 18 County admits the use of the word"negligence"was in error 20140219 BoPTA DesCo calls Kuhns negligent .pdf 1 page Map final partition plat ma p Map Kuhn Lot#200 with lot line adjustment Google First American of Lot#300 a 20110208 email ODR Thummel ORS 308.205.2.d.pdf pd four pages 2014-15 eUSPAP with Bookmarks(Final) 394 pages USPAP 2010-2011 Standards Rule 1-3.pdf 1 page 2014-15 eUSPAP with Bookmarks(Final) BASIC p01-22.pdf pages 1,10,17-36 Rule 1-3 ORS 308.205(2)(d) Gov Restrictions adjust Real Market Value.pdf To Bankers re loan Homeowners Agreement History.pdf 19 page summary includes: 1980 CU-80-22 - Agreement must be recorded prior to sale of any lot 19870604 Kuhn Lot Line Adjustment Cover Letter Please Deny If the lot isn't buildable. 19870604 Kuhn Lot Line Adjustment Application 19870619 CDD Letter to Kuhn Deed Restrictions must be recorded 19970115 Code Violation Complaint re NO Homeowners Agreement 20100224 BoCC Decision A-09-4,A-09-5,A-07-9 20110119 Kanner letter to Kuhns re building permits denied until recording of HOAA 20110207 email DEMO fee$176.40.pdf CDD's Judy Hackett re Building Demolition permit C:1Pocskaiet \KW&MPropertyTax&Appean2ol4-1S\to BoPTA\20150223 Document List Submitted to BOPTA.doc e 1 2123/2015 I MID-150093D Ex# I! 11# 0 2000-2014 6 letters re Property .pdf 8 pages includes: 20120810 Gainsforth letter to BoCC 20000403 Tumalo Real Estate Barbara Nicholson re Loss of Value 20110202 Skyline Financial Corp Trena O'Bill Can not finance home 20110205 US Bank Rockland Dunn Unwilling to extend credit 20110214 Ponderosa Properties Rad Dyer Tremendous Negative Impact on Market Value 20140204 Gainsforth letter You Can not assure a purchaser of"Quiet Enjoyment"and unclouded title DesCo and safety permits one granted one not.pdf 2014-15 eUSPAP with Bookmarks (Final)394 pages from the Appraisal Standards Board Contains: 5 Basic Rules that deal with: Ethics Record Keeping Competency Scope of Work Jurisdictional Exception 45 Standards Rules 128 pages of Advisory Opinions 150 pages of Frequently asked Questions An Index of 9 pages The balance is fluff C:U)ocs1Clients\KW&M11°ropertyTex&Appei1\2014-t5 to BoPTA\20150223 Document List Submitted to EoPTA.doc me 2 2/23/2015 I MD-150093D Ex# 1 I 11# Statement to the BoPTA on 23 February 2015. We can't legally sell our property and it's not our fault. It's been 18 years since we first brought the lack of a homeowners association agreement to the attention of Deschutes County and we still have no agreement. Last year when we appealed out taxes for basically the same reason we were handed a document from the Assessor which stated that there would be no reduction in our taxes because we were negligent. We entered into a stipulation agreement with the County where the `negligent' statement was withdrawn. We hired a Forestry expert to evaluate our property and he determined that the land was costing us money to own. Beginning in 2011 we've been in contact with Gregg Thummel of the Oregon Department of Revenue. Mr. Thummel directed us to Chuck Fisher, Compliance Analyst with the Oregon Appraiser Certification&Licensure Board in Salem,who was stunned to hear of our situation,and John Brenan, Director of Appraisal Issues from the ASB—the Appraisal Standards Board part of the Appraisal Foundation which is authorized by Congress. They produce the USPAP—Uniform Standards of Professional Appraisal Practice—the Standard Rule 1.3. regarding governmental. restrictions. Mr.Thummel also communicated that the Assessor must consider ORS 308.205 (2)(d) which also references governmental restrictions. In the P ast we have not been treated fairly nor have we been treated impartially by Deschutes in both our land development processes and in our appeals of our property taxes. County P P PPe P PertY We know that BoPTA is supposed to be an independent body which is not supposed to simply rubber stamp the Assessor's values or be influenced by wrongly by statements made by the Appraiser or Legal Counsel. So please consider that the Deschutes County Assessor has NO justification to NOT consider either the USPAP Standard Rule 1.3 or ORS 308.205 (2) (d). We're asking you to reduce our assessed value based on the FACT that we can't legally sell our property,nor can we obtain permits from the County. These are governmental restrictions imposed on us. All because the other party is in violation of a court order that this county recognizes but ignores. It's not right and it's not fair. C:1DocAchent x.w&m propertyTsx&Appel\2014-I5\to BoPTM20150223 Document List Submitted to DorTA.doc page 3 2/238015 I Mil-1 won) Rx# III Pe* LIST OF issues where the other party was given preferential treatment over us. Ex-post-facto approvals Side yard set backs Lot Line Adjustment Maximum building line was addressed in Kuhns' application process Other party did not build where they were supposed to Other party allowed to apply for land use applications then they put their application on hold- not acting on them which precludes the Kuhns from communicating with SoCC Deschutes County refuses to allow a health and safety permit to remove the walls of the illegally constructed (1997)room in the garage. This can be done. CADocs\Clients\KWk lrMropertyTax8cAppeal\2014-15‘to BoPTA\20150223 Document List Submitted to BoPTA.doc image 4 2/23/2015 I MD-150093D Ex# 1 Pig# I ■■..., ' ",..'\ , ■■,■ ■ , '„, „ , '',,,\,,,;,\,,,,,,,\ ,,,, ,,,.\\\.,,•,,,, ,o, ,, ,,\ k ,g ‘‘,.,,‘,, ,, ,,,„\,\„,„ ,‘‘, ,,,,4\, ,,.;),,„,,,,''.,, \,, ,,,,,,,,,,,e,,,,,,,,,,,,,, ,, , ,,,,,, ‘,o ,,,•,•,•,,•, ,,,,, , \ , ‘,,, ,,\ ,,,A,,\4\,,,„,„ , ,, ,„,,,,‘, „„,,,‘‘I,t,,,,‘,.\\,‘„,‘,„\\,,,,,,,„,,‘„ %1,,,‘ ,•,,,„,,,,•,.,„;,.,‘,,,,\,,,.,,,,,,‘„, Kuhn is.unii vs D,,,,,, e sc u'\ L', 0, t' „4n i2i ,Assess ssgsa 1",,,' Scot a, e t,„on # 2,, ,,\opg. ', '" ' 4 v, , ,,,,\ ,,, . ,,,,,„, , ,,, - , E A ' \ \ ‘' k 0,9 '',' ,,,.. \w ,, , ,-10%., \'' 3' 0, -11-ii- 4o ' ' 4 , 2 3 November 20 15 2 ', , ','', ';,'\" ;\'‘,' ', ',',','",'',,''''',',,,"'''',',;",,'''„',',''„:,•,'",,' , \, t','' '' ' '\''\''' '''''''''r''' ,\„,,;,,\ '‘ .tt ‘ci,,*i,, , ,;'„'„, ', ' ':, ,,,,,,,,,‘,,, , ,, ' ,...i,\,,,,„,, ‘„ ,,, , \0i,..,..a., real-property-petiti©n, 310-063 2014-15 TL200 20141231 plus addendum 4pg _.pdf Board of Property Tax Appeals For Official Use Only REAL PROPERTY PETITION Petition Number and Date Received for Deschutes County •Read all instructions carefully before completing this form. •Please print or type the requested information on both sides of this petition. •Complete one petition form for each account you are appealing. • completed petition(s)to the address shown on the back. Return your camp p ( ) •Please attach a copy of your tax statement. Petitioner(Person In whose name petition is filed) 1 Check the box that applies: [J Owner 0 Person or business,other than owner,obligated to pay taxes(attach proof of obligation) 2 Name—Individual,corporation,or other business 3 Telephone number William John&Martha Leigh Kuhn Daytime 541 389 3676 ,Evening same 4 Mailing address(street or PO Box) 5 City 8 State y ZIP code 8 Email address(optional) PO Box 5996 Bend OR 977085996 William r∎RiskFactor.com 9 Name of person acting for corporation,LLC,or other business 10 This(i.e.,president,vice president,tax manager,etc.) FOR BUSINESS USE ONLY If a representative is named on line 11,all correspondence regarding this petition will be mailed or delivered to the representative. Representative To be completed when petition Is signed by an authorized representative of petitioner.Only certain people qualify to act as an authorized representative.See the instructions for a list of who qualifies. 11 None of representative 12 Telephone number Daytime I Evening 13 Mailing address(street or PO Box) 14 City 16 State 16 ZIP code 17 Email address(optional) 18 Relationship to petitioner named on line 2 19 Oregon state bar number 20 Oregon appraiser license number 21 Oregon broker license number 22 Oregon CPA or PA permit or S.E.A.number Any refund resulting from this appeal will be made payable to the petitioner named on line 2 unless separate written authorization Is made to the county tax collector. Attendance at Hearing 23 Will you or your designated representative attend the hearing? ©Yes ❑No If you choose to not be present at the hearing,the board will make a decision based on the written evidence you submit. Property Information 24 senor account • your tax statement) Y Asses.- map . • • num• your lax stat 4 163467 TL200 home building site 161119-00-00200 Kuhn building site 26 Street address and car where property Is located n + Residential ❑Commercial ❑Firm 65575 Sisernore Road Bend 97701 ❑Mfd Structure 0 Multi-family i Forest 0 Industrial 1110-310-063 Ow.10-14) Please turn over--form continues on back..l■•♦ [MD-150093D Ex# 2 Pg# I areal-property-petition_310-063 2014-15 TL200 20141231 plus addendum 4pg_.pdf Real Market Value(RMV)from tax statement or assessor's records RMV Requested 28 Land ...* $ 147,550 $ 2,472 29 Buildings,machinery,etc. $ 119,420 $ 50,000 30 Manufactured structure $ 0 $ 0 31 Total RMV 266,970 $ 52,472 Most property is not specially assessed.Please read the instructions to see if this section applies to your property. SAV from assessor's records SAV Requested 32 Total SAV of Specially Assessed Portion $ 0 $ 0 Assessed Value(AV) AV Requested from tax statement or assessor's records (AV is limited to the calculation allowed by law) 33 Total Assessed Value(AV) •♦ $ 225,790 $ 52,472 Evidence of Property Value Attach documentation such as copies of recently recorded deeds,listings,appraisals(attach complete report),construction bids,etc. 34 Why do you think the value of your property Is Incorrect?(Answer the question in the space provided or by attaching additional pages.Pro- vide enough Information to support the value(s)you are requesting.Be specific.) We are not able to sell our property under current conditions. Please see attached documents. 35 Did you purchase the property within the past three years? ❑Yes ® No If yes,complete the following: Date purchased: . Purchase Price: Did you purchase the property through a real estate office? ['Yes ❑No Name of real estate office: 36 Have you sold or attempted to sell your property within the past three years? ❑Yes ® No If yes,complete the following: Sales/Asking price:, Date sold or dates offered for sale: Was the property listed with a real estate office? ❑Yes ❑No Name of real estate office: 37 Has your property been appraised within the past three years? ❑Yes El No If yes,complete the following: Appraised value: Date of appraisal: Purpose of appraisal:, Name of appraiser:_ 38 Have you made any changes to your property within the past three years? ❑Yes © No If yes,complete the following: Changes made:We've not been allowed to change it because we may not aply for permits. Dates of construction:, Cost of new construction: Declaration: I declare under the penalties for false swearing(ORS 305.99014))that I have examined this document,and to the best of my knowledge,it is true,correct,and complete. 39 Signature and name of petitioner or petitlonerhs representative(attach authorization If necessary) 40 Date X I William John Kuhn&Martha Leigh Kuhn 30 December 2014 Sion name Print or type name Please return this petition to: ♦- When and where to file your petition File your petition in the office of the county clerk.No other county office can accept petitions.Your petition must be postmarked or delivered by December 31 to the county clerk's office lo the county where the property is located. If December 31 falls on a weekend or holiday,the fling deadline moves to the next business day.Mail or deliver your petition to the address shown in the box. 150-310-063 mat 10-14) MD-150093D Ex# 2 Pg# 2 I real-property-petition_310-063 2014-15 TL200 20141231 plus addendum 4pg_.pdf T William John Kuhn Martha Leigh Kuhn PO Box 5996 Be nd, Oregon 97708-5996 Phone: ((541) 389-3676 So Tuesday 30 December 2014 Addendum to Real Property Petition for both our home(4.3 acre buildable) lot and our %z interest in 32 acre common property which is a set aside for wildlife. Account# 163467 Map 161119-00-00200 4.3 acre home site Account#264943 Map 161119-00-00300U1 33.21 acre wildlife set aside We are appealing our taxes on both of our properties because we cannot legally sell either lot since the restrictions put on our parcels by Deschutes County, THROUGH NO FAULT OF OUR OWN. When we appealed our taxes last year the Assessor responded calling us negligent. We are not and were not negligent. We also have attached the stipulated agreement from last year which describes the general situation that confronts us. Ever since we asked Deschutes County to help us obtain the required homeowners agreement which would establish a homeowners association which would oversee the maintenance of the jointly owned parcel in January 1997, Deschutes County has systematically denied us of our homeowner's rights and our right of enforcement of County Codes. This situation continues today. The other party in our cluster development has, since their original purchase contract,refused to honor our deed restrictions and since January 1997 refused to sign any agreement which would adequately accomplish the purpose of the parcel's restrictions within our cluster development and that would give us the necessary protections from those owners. Our conditional use permit(CU-80-22)required that prior to sale a signed recorded agreement be on file with the Deschutes County Clerk. No such agreement has been established. After an appeal of a building permit that eventually was ruled on by both the County Commission and LUBA, Deschutes County Administrator wrote us a letter stipulating we would not be allowed to apply for permits until the an agreement was recorded with the Clerk's Office, and then be considered"acceptable"by Deschutes County Board of Commissioners. We can neither improve nor demolish our home. We cannot move our home. We can't sell it or sell it as building scrap. We can apparently live in it,but we have no property value other than what we might be able to rent it for on a month to month basis. Assuming such a rental was possible, given the risk of not being able to repair any structural damage that would require C:\Does∎ClientssKW&MAPropectyTax&Appeal\2014-1 SUddendum to Real Property Petitions 20141230.dnc page I 12/30/2014 I MD-150093D Ex# 2 Pg# I real-property-petition_310-063 2014-15 11200 20141231 plus addendum 4pg _.pdf permits; we might be able to rent it for around$500 per month. If we use an old real estate rule of thumb value for the livability of our rented house we might put the value at 100 times the $500/month rental value which would equal 450,000 Real Market Value. But we still can't legally sell our property, or obtain permits. Also, we are asking that the Assessed value of our land property be adjusted to reflect that it cannot be legally sold, so we are suggesting that value be assessed at what the taxes would be for land that is under special tax assessment based on it being considered Open Space or in the WHCMP or Wildlife Habitat Conservation Management Plan. Other properties within the Tumalo Winter Deer Range have their land property taxes cut by as much as 98+%. So, we have adjusted the land property taxes based on a comparable parcel across the road or 1.82142%of the listed Real Market Value for the land. The wildlife set aside land is not irrigated. It cannot be farmed. It cannot be sold. The 33.21 acre wildlife parcel costs us money to maintain especially since we have to do ALL of the maintenance alone with out any help from the party who has been ordered by a civil court judge to enter into an agreement with us,but still refused to do so. It's time for Deschutes County to own up to the fact that since January 1997,it has been punishing us for a situation we did not create,but that we actively, at great financial and personal cost, attempted to gain compliance for all the requirements for this cluster. We are not responsible for any failure to do this,and we have no ability to fix it under current circumstances. Deschutes County repeatedly failed to do their job, enabling, and being at least partly responsible for an ongoing nightmare for us. Deschutes County needs to take responsibility for its role in the predicament it has put us in. Until ALL our property rights are restored, Deschutes County has no ethical or legal justification for not lowering our tax rates as requested. During the past year we worked on an agreement which County Legal Counsel stipulated was acceptable to Deschutes County. This is the agreement which was submitted to the other party. The other party refuses to sign the agreement. Given that a Civil Court Judge has ordered the other party to enter into an agreement with us we will not accept any other substitution for this document unless we are compensated for giving up more of our property rights which Deschutes County has repeatedly denied us. Further documentation may be submitted later. We ask that you look at this situation reflectively and consider what you would do were you in our place. The BoPTA panel has the authority to consider and render a lower assessed value more equal to the true real market value based on the governmental restrictions imposed unfairly and unequally by Deschutes County. Th yo 0 o consideration. at. Alit 44- William d Leigh Kuhnlit MD-150093D Ex# 2 P # C:l Docs\Ct ients\KW&M\PropertyTax&Appea1\2014-15\Addendum to Real Property Petitions 20141230.doc page 2 12/30/2014 \\ . . , ,, ,,,,,,,,,,,,,,, , , ,, ,„ „,, \\\ , ,.. ‘ -:‘‘‘‘ ‘,‘',,,,I,,I - , ‘ :-: ‘ '''',,,, ;.,,,‘,,,.\,., ' -'2,,-,':‘ ,,,,,,,,:ivre„,„ ' ,. 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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, TI6S, 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: I. 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 20140710 Spitz Kuhn Final Report Stnall.pdf ! I MD-150093D Ex# 3 Pg# 1. 1 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 [20140710 Spy Kuhn Final Report Small.pdf I I tin-150093D EX# 3 Pg# A J 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 120140710 Spitz Kuhn Final Report Snaail.pdf I MD-150093D Ex# 3 Pg# ,., ' 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 20140710 Spitz Kuhn Final Report Smell.pdf MD-150093D Ex# 3 Pg# 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. I 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 $3,000 on January 1, 2013. — „� July 12, 1014 Jim pitz, ACF Date S MD-150 093D Ex# 3 Pg# 3 ':i.:.:. fib ' d "a"7 3 fie, a6 • .,7,4),..*:it { k. . " 4r;.v a »; 9 °'' �a:,."44:,,,;',.,..'°,,. +k ; i •,�$* ' e b". % ' �` ': , ,,,,,,,,. , .,7.,.,IF, N.L , ,, , ..14,,,„1030,, , ,,,v . x..g.,..\',,_„',„:\'„■A::';'4,i'llr'' ''''''' lit, ' : ''''!°'0411 ° ro � r .. ' v 7 a M $ro � \t ^ °J+b,?. e �MPY . � t'T �; V 44 'P.7. M ,�R �� s t'vr ," ga �' f : � itiokii r"d , 4, l ,«,' ,..„,-747,t-„,..-8.,,,,:, , a °m" $ � pp C N '.',k',,.. w tm"i � " n✓ ;° 'I � ry w' � u � r ,� ' e� : ,*`,01;14,77:1 "010 . 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O (.1) y, 4d C O d " , •ri„ MD-15, 0093D Ex# 3 Pg# _ � m S ' gyp., r .'',..,.;414i,,, ;'7":::, 4,,,,, pmat Yi pF N' r `'X.*, d ,v 4,,,, A l,aiM 40, 7' Ft, „.„........., ,. - -,. ‘,.,,,,‘ ,44';4. . ILI,' M " 4T i i, 0 R ,:v A .. , , y9 01'„- .. 1'4,4. 4,.if*' i,,,,,,,,, ... . , ,t. Cd CZ rl CO wwli al E 4 O LO) "!, A l♦ r♦: M Ae R p Mh a x e"" @ w 1 F ra . , " Ptiv ao cv rn -!•:,,,, QI ��,,.ti f • ti Jr�, t r', a �; MD-150093D ) x# 3 Pg# 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. 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 120140710 Spitz Kuhn Final Report Srnall.pdf I f MD-150093D Ex# 3 1 /1 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 20140710 Spitz Kuhn Final Report Small.pdf MD-150093D Ex# 3 Pg# }' 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 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 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 20140710 Spitz Kuhn Final Report Smati.pdf MD-1500930 Ex# 3 Pg# �` 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 Iender. 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 20140710 Spitz Kuhn Final Report Smal'I.pdf 1 MD-150093D Ex# 3 Pg# J i I Capital Veneer Sales Modoc Lumber Company Kinzua Timber Company Day River Partnership Crown Pacific,LLP Northwest Agri-Tech Giustina Resources 0 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 GLO 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 Tholes Fund Management Tisbury Capital Wellington Management Wesley Capital Management Ridgetop Research The Equity Group Trellus Community First Bank Arneson,Wales&Bernier James,Denecke&Harris Kamopp,Peterson,Noteboom,... Brandsness,Brandsness,and Rudd 15 20140710 Spitz Kuhn Final Report Smatl.pdfi j C MD-150093D Ex# 3 Pg# /.:' 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 MD-150093D Ex# 3 Pg# f(r 120140710 Spitz Kuhn Final Report Small.pdf \ v \ \ \\\\\\\\\ \ ,ti,hti \\\*\\\ \ \ , ..t \ i:gi.116.t.0 \ \\ \ \ \\ \ 9 \\,\% % \ \ A \A fi ,c, ,4,, \ \ \ \\\ \ 4\g:iri 0 9,3 ,\ \ ',, .. \\\\\\\\* \ k m\\ \\\ \\ \ \ l,\*ID,,LijI, \ \ \ \ \ \ \\.\\ \ \ \%\ \\ \ \ , \\ \ \ \ \*\ \ � \\\ \ \ \ 4i, 2.()2Qi ....r \ \\,v \\`\\ 4 , , \\\\\\\\\\\\\ \ \\\\ \\ \\\ \\ \\\\\\\\\ \ \\ /20140825 Settlement Kuhn v Assessor Langton re Tax Appeal TL300 Binder.pdf I Andrew S. Mathers, P.C. ATTORNEY AT LAW {MD-150093D Ex# 4 Pg# l 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, ( 11A.1 741-L-Cr . Andrew S. Mathers .Cc: David Doyle 250 NW FRANKLIN AVE., SUITE 401 - BEND, OREGON 97701 TILT (841) 8 62-0048 MD-150093D Ex# 4 P$## FAX: (541) 882-6878 (20140825 Settlement Kuhn v Assessor Langton re Tax Appeal TL300 Binder.pdf 0-1-ES o o r Legal Counsel 1900 NW WALL STREET,SUITE 205•BEND,OREGON 97701-1900 TELEPHONE 10041.388-0023 1141.388-0824 FACSIMILE W041.017-4748 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. Res • fully, hi/1Y David Doyle Deschutes County Legal Counsel Enclosure DD/s Quality Services Performed with Pride I MD-150093D Ex# 4 PO I7n1Af$ 7F S attlomant Ka ihn v Aceacc-,r I nntr.n rca Tnv Arno.-! TI 'ann Ct;.,.t,,. «,.tc 1 1 2 3 IN THE OREGON TAX COURT Magistrate Division g Property Tax 6 WILLIAM JOHN KUHN and MARTHA LEIGH KUHN, TC-MD 140068N 7 Plaintiffs, STIPULATIONS; SETTLEMENT OF s APPEAL; ORDER 9 v. (TCR-MD Rule 2F) 10 DESCHUTES COUNTY ASSESSOR, 11 Defendant. 12 The parties enter into and agree to the below Stipulations:. 13 A. )victual 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/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. 28 Page 1 of 5-STIPULATIONS; SETTLEMENT OF APPEAL; ORDER DE,9CHUTES CO NNTY LEGAL COUNSEL 1300 NVV Walt Stied,SuKo 203,send, 97701 �D-150093D Ex# 4 PO g 541-338.6623**•Fax:341.617.4748 r.. .,....w .. . 1 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. In 1987, 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 7 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 DESCIIUTES COUNTY LEGAL COUNSEL MD-150093D Ex# 4?g# 1-1, 1300 NW Wall Street,Suite 205,Bend,OR 97701 541-388-6623'••Fax:541-617-4741 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 s 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 it in October 2004. • 7 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 Dowell 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 COUNTY LEGAL COUNSEL 1300 NW Wan Street,Suite 205.134nd,OR 97701 L MD-150093D Ex# 4 # 541-388-6623•••Fax:541-617-4748 1 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 10 18, The Assessor's use of the word"negligence"was in error. 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: $35,000. This 14 reduction does account for the requirement in CU 80-22 and Judge Adler's court 15 order requiring that a joint homeowners agreement be recorded. 16 20. At no time since creation of Tax Lot 300 have any of the involved parties 17 (Barton(alone),Barton/Burchett,Burchett/Kuhn, or Kuhn/Dowell)recorded a signed 18 Homeowners Agreement. 19 B. Settlement Stipulation 20 21 1. The present tax appeal (TC-MD I40068N) is fully resolved,compromised and settled 22 as provided herein. 23 2. The parties request that the Court dismiss the appeal. 24 3. Each party to bear its own costs and fees(including attorney fees). 25 26 Page 4 of 5—STIPULATIONS; SETTLEMENT OF APPEAL; ORDER DESCHUTES COUNTY LEGAL COUNSEL MD-150093D Ex# 4 P 1300 NW Wall Street,Suite 203,Bend,OR 97701 ( 8# I 1...,. ... .,.� .J• . 541-3U-6673 I nr•5411.F.17.41741 A . Y. ...,,, IA, , ... 1 2 3 C. Agreement 4 THE STIPULATIONS contained herein are understood and agreed to 8 Date: ZO t'f C) 2'' 4 '3 r 6 William John Kuhn 7 • 8 Date:,_s,1 a 9 Martha Leigh Kuhn 10 ********************************************* 11 12 ,,•. r:s. lrl Date: g(i9/ii .,al►1F.et 13 S of L9 • . ' S.. •$SR. 14 15 D. Q� 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 28 28 Page 5 of 5—STIPULATIONS; SETTLEMENT OF APPEAL;ORDER DESCHUTES COUNTY LEGAL COUNSEL 1300 NW Wail Street,Suite 205,Bend,OR 97701 I MD-150093D Ex# 4 Pg# 1j 541-3ii-6623•••Fax:544617474E 1 pry T n x MAGISTRATE DIVISION ° OREGON TAX COURT �, �' Presiding Magistrate: Jill A. Tanner Magistrates: Daniel K.Robinson s """ Allison R. Boomer 4 a --- E./ 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 l MD-150093D Ex# 4 Pg# 1163 State Street,Salem,OR 97301-2563 http://courts.oreson.gov/ttax Phone:503.916.5650 Fax:503.916.4507 20140825 Settlement Kuhn v Assessor Langton re Tax Appeal TL300 Binder.pdf E.) A GI._ IR ATE DI': >iu, ORE ON TAX CO1J i IN THE OREGON TAX COURT MAGISTRATE DIVISION 114 AUG 25 AM 9: 37 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 * * * [andj[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 t' day of August 2014. 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 Imp__-ts®W Ex# 4 Pg# 1 120140825 Settlement Kuhn v Assessor Langton re Tax Appeal TL300 Binder.pdf \ \\\\ \ I, , \\ .\‘.,‘\\\\ , , \\,\\\\v�'�,..w. vVAvA\\,v vI v Avvvvy�� vw ���`�\v�Avvv� � v\y, ,,V \,. 6,\',',;,\,.'. '.\'''' '‘`,.',.'‘,.,.`,,;.',. ','\'; w,k4i`,, , .,,,,,;,.,.'„ .,,,, , ,.,;.,,,,,',\.. „,,,, .,.,.' 4',‘\\\ ,‘‘,,\,`.,..`,,'; v, ,k,''..',;';\\,..,, ,,.,V.', \.,',,,.4\.\ ,, ;‘', %%,\,',\ ,, ,,,,,, ,,',,,'',\',,,',;,'' ,' ,,,‘,', , , ]Rt , '\i:..1. '‘' ','‘ ,',,\\,,\'' , k,,,k,\\',',;x,;\ ,v ,,‘,;,,,,, ,,,;,,,,,,\i,, ,k th ,, ,,0',' ,', " ;,'\',,0,',,02\,,,,,',, ' ' ,''\`'', ,'"'', ' ':0,,, , ' :',', ' ":,:'',;,'' '.;, , , ,',„,,,y,— * \,çount \ \ \\ \Q ; \ \ ' ,\ \\\ \ s s \ p+ tLtws\\ ' ,;'','.0, ' W\'‘',,;'','',''', '',' ',' '.,:'' ,'','` ',‘',.\;N'‘'','\\,\,,0.' 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The restrictions are not an effect of real estate market factors or conditions. The restrictions are an effect of the parties involved negligence to record a Homeowners Association gent. Any disagreements between the parties involved are their responsibility to t, solve. PROPERTY REAL MARKET VALUE: The petitioner's structure real market value request is not supported by any market data. The petitioner's land real market value request is not supported by any market data. Properties enrolled Open Space special assessment or Wildlife Habitat Conservation Management Plan special assessment are approved through an application process. The petitioner's property has never applied or been approved for these type of special assessment programs. PETITON: 13-153 PETITIONER: KUHN, WILLIAM & MARTHA PROPERTY RESTRICTIONS: The restrictions stated by the petitioner can be remedied at any time by recording a Homeowners Association Agreement.The restrictions are not an effect of real estate market factors or conditions. ii. es O ofd'. iitiktiiMfolve4 eogligoese to record n Hoe Astiotigititt' alailareetitenta between the parties involved ate their rereoreibillit 40;`resolve, PROPERTY REAL MARKET VALUE: The petitioner's land real market value request is not supported by any market data. Properties enrolled Open Space special assessment or Wildlife Habitat Conservation Management Plan special assessment are approved through an application process. The petitioner's property has never applied or been approved for these type of special assessment programs. 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' ,\tVF,"'','„4"'",",",A\''' ,, ."\"'''\ \,,,',`"'„',,','„''`,';%\* ' ' ,,,,'',;,,''';'„'',4,k‘ ,;\!,‘ ,.,",;.,;.","., ..,,,\'6,$1 ,,'",,,' ','..;'%%I , ' ,, ,,,",'',,,',,',,:,''').',';',.,,`,4,\&,\",';'";,'',',\.,,,,o'"''',"",g, ,'",",, ,,,",',"'.,','", ,'„'„,"4, ,,,,,,,, ,',;,‘','.. ,,,,,',', ",:' ' ''\''.,,,,.'',\''''''' ', .''''','A'''''''''',„+ '''.."2,t;\ .0,,,,,,,,",6'''''''''',' ,‘,,,,,',k, ' ',,x,„\\I\'k''''',"'.' , ',',,\''‘''','' ' ,",,', '''''''‘''''' ''' ,,,I,''''''':''',"„'','"';',"'"':',,, ''''‘'' i, ,, ',,\,,,,,g,k* zi''','Nov,,,,,Fw.'\,7,, , ,,,,,,',',,,,',',',-,',,,,,,,':',,,,:::::',,,s4..',.::,...,;..,,,,‘,1\'‘,,, i„ ,,., ,‘,;,,' \\\,,',,,,4,,I',,,, i,,,',,ki\',,\4‘,;.\,\\,'1,.,,),\,A\,.,'kt,\\\1\ \ \` \\\ \ \\\\\ \`�\\\\\ \\, „,, 6 , , .,.,,,.„„‘„„, „ „,„,„\‘‘,„,14i ,„„,„\,,,.„.„,,.„ , „„,,, ,,,,„ ,, \,,„, , , „„, „ , , , , \„ , .. „. , , \\\`\ \, \\ \\ ;\ \\1\\1 �\\\\\\\�\\ \ \ ,; \,,. 4\'",,'\ \\\�'' \\\\\ \ \\\ [20110208 email ODR Thummel ORS 308.205,2.d MD-I50093D Ex# 6aPg# William Kuhn From: "THU'MMEL Gregg W'<gregg.w.thummelrw dor.state.or.us> To: "William Kuhn"<william riskfactor.com> Sent Tuesday, February 08, 2011 1:32 PM Subject: RE: how do we proceed? Hi Bill, I am glad that you also received some response from the ACLB. Your reference to USPAP rule 1-3(a) reminded me that ORS 308.205(2)(d)also applies to your situation. It states: "If the property is subject to governmental restriction as to use on the assessment date under p P y subject g applicable law or regulation, real market value shall not be based upon sales that reflect for the property a value that the property would have if the use of the property were not subject to the restriction unless adjustments in value are made reflecting the effect of the restrictions." You can access ORS 308.205 at htto://Iandru.Ieg.state.or,us/ors/308.html. Good luck! Gregg Thummel, Team Lead Special Programs Property Tax Division Oregon Ore 9 bepartment artment of Revenue Phone: (503)945-8371 Fax: (503)945-8737 From: William Kuhn[mailto:wiliam @riskfactor.com] Sent:Tuesday, February 08,2011 1:11 PM To:THUMMEL Gregg W Subject: Re: how do we proceed? Thank you Gregg. I read over Chapter 6 of the Appraisal Methods for Real Property and see stumbling blocks for each of the three methods to determine value. For example using the principle of substitution there is the phrase "assuming no unusual delay". Given the county's requirements can't be fulfilled... we have already been delayed for over 14 years. Using the replacement cost - this is not possible due to the limits put on us by the county. We have searched the county for sales of any parcels that have legal limitations such as ours, there have been no such sales. And based on the ORS laws governing jointly owned parcels without an agreement we would be required to give up as much as 1/2 of any rent to the other land owners. And again since there is no homeowners' agreement even the income approach is blown out of the water because the other party would object to our renting out our home based on the objections in the past. 20110208 email ODR Thummel ORS 308.205.2.d MD-150093D Ex# 6aPg# I I did have a call back early this morning from Chuck Fisher, Compliance Analyst with the Oregon Appraiser Certification & Licensure Board at 3000 Market Street NE- Suite 541 Salem, OR 97301, Telephone: (503) 485-2555 Mobile: (503) 939-0491 Fax: (503) 485-2559. Chuck Fisher directed me to httr ://oregonaclb.ora/aclb prod/index.ohp and https://netforum.avectra.com/eWeb/DynamicPacle.aspx? Site=TAF&WebCode=HomePaae In particular the Uniform Standards of Professional Appraisal Practice, Standards Rule 1- 3(a). This says that "an appraiser MUST: (a) identify and analyze the effect on use and value of existing land use regulations, reasonably probable modifications of such land use regulations, economic supply and demand, the physical adaptability of the real estate, and the market area trends; and (b) ..." Thank you for your assistance, Bill Original Message From:THUMMEL Gregg W To:William Kuhn Sent:Tuesday, February 08, 2011 10:34 AM Subject: RE: how do we proceed? Mr. Kuhn, Following our phone conversation and your follow-up e-mail below, I directed you to the following publications from the department: Appraisal Methods(specifically chapter six)at http://www.oregon.00v/DOR/PTD/docs/303-415/06- three appro.pdf Cost Factors for Residential Buildings at htto://www.oreoon.gov/DOR/PTD/docs/303-419-05.pdf I find that these are the only resources we have developed that may be useful for your situation. Note that the information in chapter six of the Appraisal Methods manual is basic in nature. I would advise you to seek further information from a professional real estate appraiser. In addition I can refer you to ORS 308.205(2)(c)which states: "If the property has no immediate market value, its real market value is the amount of money that would justly compensate the owner for loss of the property." For any further analysis or advice, I can only suggest that you seek legal counsel. I hope this is helpful. Please let me know if you have further questions or concerns. Gregg Thummel, Team Lead Special Programs Property Tax Division 20110208 email ODR Thummel ORS 308.205.2.d MD-150093D Ex# 6a Pg# Oregon Deportment of Revenue Phone: (503)945-8371 Fax: (503)945-8737 From: William Kuhn (mailto:wiiliam@riskfactor.com] Sent: Monday, February 07, 2011 2:55 PM To:THUMMEL Gregg W Subject: how do we proceed? To Department of Revenue: Property Tax Division Phone: 503-945-8278 Gregg W.Thummel - Direct Phone: 503 945 8371 Because of actions taken by Deschutes County we find we are unable to obtain either building or land use permits. According to conditional number 2 of the conditional use permit issued in 1980, a homeowners' agreement was to have been recorded prior to the sale of any parcel within our cluster development. When we bought our parcel in 1987 we asked about the homeowners' association and Deschutes County responded with the requirement that we record the deed restrictions mentioned in the application for the cluster development. In 1997, it had become apparent that the deed restrictions were not a homeowners' agreement. We filed a complaint with Deschutes County to force the issue PRIOR to the final inspection of another parcel in the development. Deschutes County ignored our complaint and gave final approval to the building permit. In 2000 a civil court judge ruled that the deed restrictions were deed restrictions not the required homeowners' agreement. In 2002 a civil court judge ruled that the other party in our cluster development was required to enter into an agreement with us. Deschutes County claimed It was not a party to the judgment and therefore they continued to take the position that the deed restrictions were the homeowners' agreement. In 2007 after another code violation complaint was filed claiming there was no homeowners' agreement. It took three years to work its way through the system and now Deschutes County has ruled that there must be a homeowners' agreement before new permits will be issued, and the conditional use permit still says that we cannot sell without such an agreement. Our current situation is that the other party does not live in Oregon, they are in contempt of court, and we who live here can't seli our home. We are appealing our property taxes based on our inability to sell, however we cannot find an appraiser who is willing to appraise our home based on the legal [20110208 email ODR Thummel ORS 308.205.2.d MD-150093D Ex# 6a Pg# limitations. Because of the statement in your literature, "Without specific value evidence of a lower real market value, such as comparable sales of similarly situation lots, there is nothing to mediate."we do not know how to proceed. We do have letters from to money lenders (attached) saying they are unwilling to lend money based on the legal limitations. And we are unable to even apply for a declaratory ruling from Deschutes County because we are not allowed to apply for any building or land use permits. We need directive guidance as to how to approach our BoPTA hearing and deal with the extreme difficulties imposed on us by a local government which didn't do their job correctly in 1980 or in 1997 and who are now punishing us for something we have no control over. Attached are: 19800403 -The conditional use from 1980. See condition #2 on page three. 19870619 -The letter to us prior to our purchase regarding the deed restrictions. 19970115 -The complaint letter from 15 January 1997 three weeks before the final inspection. 20020731 - 2nd court decision Judge Orders DowelIs to enter into agreement Page 3 20110119 -The letter from Deschutes County telling us no permits until agreement is filed. 20110202 - US Bank rejection letter. 20110205 - Skyline Financial rejection letter. Thank you for your guidance as to how to proceed. William Kuhn INVEST/O- Registered Investment Advisors PO Box 5996 Bend, OR 97708-5996 541 389 3676 William @RiskFactor.com "First, they ignore you, Then they laugh at you. Then they fight you. Then you win." 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The Financial Institutions Reform, Recovery and Enforcement Act of 1989 recognizes USPAP as the generally accepted appraisal standards and requires USPAP compliance for appraisers in federally related transactions. State Appraiser Certification and Licensing Boards; federal, state, and local agencies, appraisal services;and appraisal trade associations require compliance with USPAP. https://netforum.avectra.com/e Web/DynamicPage.asnx?Site=TAF&WebCode=USPAP http://www.uspap.org/2010USPAP/USPAP/stds/sr 1 3.htm USPAP 2010 — 2011 Standards Rule 1-3 When necessary for credible assignment results in developing a market value opinion, an appraiser must: {a) identify and analyze the effect on use and value of existing land use regulations, reasonably probable modifications of such land use regulations, economic supply and demand,the physical adaptability of the real estate, and market area trends; and Comment: An appraiser must avoid making an unsupported assumption or premise about market area trends, effective age, and remaining life. (b) develop an opinion of the highest and best use of the real estate. 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' '' ''''';,,„;',.,,,,'.,'„,;',' \ '‘'v''''','''''''''''''''''''''''''' r \ `h>"r qr Y}"n r ,. 7 \.,,i'S ?kj.H t r ,Y 1r` \ ,r a,� ',�:'.M?,.^Gt.a @;` ` +era:n..•ay ,,.i'�^ "�4>:. +�, �^',,g..,� .tR.@�,�o':^�,. a.,.>1a'".�.� �vi$,..�:4'Jrs9 @:.,.:''!'h a """ ,+4,'g"��... ,:. �. ,,2094-9 5 eUSPAP with Bookmarks (Final) BASIC 22pgs Mn-150093D Ex# 6d P�# .pdf tfw . t"'.`a1"�� s r�,a r� v „„,,,,,,,,r,,,,,,,,,,,, ,,` R ,a^, @h a x a �.,'\�... �""ror�"sa"��;�th� ) } e r':u :X.•a:. \ .' . . Y t.,.. \1""'R.a� n @^. . �� \ \ � "1\. @;+\�, '.:uG ,�,: �r � M .�� 4:”" R �i+, �,\ 1w+ , er e @ w� , �.� ; ; .`! d\; L 1 ,, `\ , ,rit .c, 'i.li! r@ , y as r; �k ,`r °4+@ \ @ i #,`' n \3 ; ,, Rro 1~rkw �r Q � \x �` "+ 'i ;l�»n �^ ,w e@ :may,., ���,` a ` � �1h 1\e��;�k of fi 'e,� a "�\. J� a+ w 1 '? + " 1 kka a" , ' 'M"a•1\A �'a� }`% a » , ;; `� �' +� a, at, � � \ wa �>A „> ar : 'ka,'�+e�' \arc "�;, "�, ,�,9, „w", �` �t� ' \ N � �` 'a ."4",,,,,,....,-..,.."..‘',,. °� �',.:::�y,sa, : Pty a "\ � ,' lea ti� i r „,,i,';'4', a t,.a ,k @ rl @ ,a '� \tit , iiiii 1,f4. 1, ' .„iL',,fill F x ^&' ,xy '4Aa"YS '� � ,#1��'C'ti�k,\1'i, ea,. ,-,, ?. 6.,:^ �".1 Pty S' q I a„ \ V p S4 ;r i'i n , e .wu w.w el&V. 44167i 426' r . ��.... w M.,�p�A ' w 9yw te' f.$'Y . y r, K n ”rJ •r� /N! . , ,/ / " dyy H rNr�f' ygi r w, 7 ✓. Guidance from the Appraisal Standards Board r + USPAP ADVISORY OPINIONS + USPAP FREQUENTLY ASKED QUESTIONS (FAQ) v' electronic editior 1Pt-- �tAI c..✓.\!. �) �.. L_Jr 1 �r. ' .R1. 1 2014 — £. APPRAISAL f OUNDAI I(,)N 4 1} r Effective January 1 J 1 , i tP {r, K f ir, >dat,/', ✓ through December 31, ?015 r ' e t r, {n ., ,,r; M -I 93D fix# 6d Pt# P FOREWORD APPRAISAL. STANDARDS BOARD :sx THE APPRAISAL FOUNDATION 111 Audaerie d iy Congrraa as the Source(Appraisal Standards mu Appraiser Quelifratiom FOREWORD The Appraisal Standards Board (ASB) of The Appraisal Foundation develops, interprets, and amends the Uniform Standards of Professional Appraisal Practice(USPAP)on behalf of appraisers and users of appraisal services. The 2014-2015 Edition of USPAP (2014-2015 USPAP) is effective January 1, 2014 through December 31,20I5. USPAP has five sections:DEFINITIONS,PREAMBLE,Rules,Standards and Standards Rules,and Statements on Appraisal Standards. For convenience of reference, USPAP is published with this Foreword and a Table of Contents. The publication also includes the Advisory Opinions and Frequently Asked Questions (FAQs) as additional reference materials.These reference materials are forms of"Other Communications"provided by the ASB for guidance only and are not part of USPAP. It is important that individuals understand and adhere to changes that are adopted in each edition of USPAP. State and federal regulatory authorities enforce the content of the current or applicable edition of USPAP. History of USPAP These Standards are based on the original Uniform Standards of Professional Appraisal Practice developed in 1986-47 by the Ad Hoc Committee on Uniform Standards and copyrighted in 1987 by The Appraisal Foundation.The effective date of the original Uniform Standards was April 27, 1987.Prior to the establishment of the ASB in 1989, USPAP had been adopted by major appraisal organizations in North America. USPAP represents the generally accepted and recognized standards of appraisal practice In the United States. At its organizational meeting on January 30, 1989, the Appraisal Standards Board unanimously approved and adopted the original USPAP as the initial appraisal standards promulgated by the ASB. Portions of USPAP may be amended, interpreted, supplemented, or retired by the ASB after exposure to the appraisal profession,users of appraisal services,and the public in accordance with established rules of procedure. Changes to USPAP Over the years, USPAP has evolved in response to changes in appraisal practice. The ASH has developed a process for developing both Standards and guidance based,in part,on written comments submitted in response to exposure drafts and oral testimony presented at public meetings. Guidance The ASB issues guidance in the form of Advisory Opinions, USPAP Frequently Asked Questions (FAQ) and periodic questions and responses "USPAP Q&A." These communications do not establish new Standards or interpret existing Standards and are not part of USPAP.They illustrate the applicability of Standards in specific situations and offer advice from the ASH for the resolution of specific appraisal issues and problems. The USPAP Q&A is published periodically and available on The Appraisal Foundation website. These questions and responses are compiled and published in the USPAP Frequently Asked Questions. ()The Appraisal Foundation U-i l -150093D Exit 6d11# X. 1 TABLE OF CONTENTS TABLE OF CONTENTS UNIFORM STANDARDS OF PROFESSIONAL APPRAISAL PRACTICE DEFINITIONS U-1 PREAMBLE U-5 ETHICS RULE U-7 RECORD KEEPING RULE U-10 COMPETENCY RULE U-I I SCOPE OF WORK RULE U-13 JURISDICTIONAL EXCEPTION RULE U-15 Standards and Standards Rules STANDARD I:REAL PROPERTY APPRAISAL,DEVELOPMENT U-16 STANDARD 2:REAL PROPERTY APPRAISAL,REPORTING U-21 STANDARD 3:APPRAISAL REVIEW,DEVELOPMENT AND REPORTING U-28 STANDARD 4: REAL PROPERTY APPRAISAL CONSULTING,DEVELOPMENT-Retired U-35 STANDARD 5: REAL PROPERTY APPRAISAL CONSULTING,REPORTING-Retired U-36 STANDARD 6: MASS APPRAISAL,DEVELOPMENT AND REPORTING U-37 STANDARD 7:PERSONAL PROPERTY APPRAISAL,DEVELOPMENT U-48 STANDARD 8:PERSONAL PROPERTY APPRAISAL,REPORTING U-53 STANDARD 9:BUSINESS APPRAISAL,DEVELOPMENT U-60 STANDARD 10:BUSINESS APPRAISAL,REPORTING U-64 Statements on Appraisal Standards Statements on Appraisal Standards(SMT)are authorized by the by-laws of The Appraisal Foundation and are specifically for the purposes of clarification, interpretation, explanation, or elaboration of the Unifarni Standards of Professional Appraisal Practice(USPAP). Statements have the full weight of a Standards Rule and can be adopted by the Appraisal Standards Board only after exposure and comment. Each Statement is labeled as to its applicability to the various appraisal disciplines.The abbreviations are: • Real Property—RP • Personal Property—PP • Intangible Property—IP(includes business interests) • All disciplines—ALL SMT-I Appraisal Review—Clarification of Comment on Standards Rule 3-1(g)-Retired U-70 SMT-2 Discounted Cash.Flow Analysis(RP) U-7l SMT-3 Retrospective Value Opinions(RP,PP) U-74 SMT-4 Prospective Value Opinions(RP,PP) U-76 SMT 5 Confidentiality Section of the ETHICS RULE-Retired U-78 SMT-6 Reasonable Exposure Time in Real Property and Personal Property Opinions of Value(RP,PP) U-79 SMT-7 Permitted Departure from Specific Requirements in Real Property and Personal Property Appraisal Assignments-Retired U-81 SMT-8 Electronic Transmission of Reports-Retired U-82 SMT-9 Identification of Intended Use and Intended Users(ALL) U-83 SMT-10 Assignments for Use by a Federally Insured Depository Institution in a Federally Related Transaction-Retired .0-87 U-viii OThe A 'sal Foundation MD-150093D Ex# 6d PO=1 DEFINITIONS UNIFORM STANDARDS OF PROFESSIONAL APPRAISAL PRACTICE 2 as promulgated by the 3 Appraisal Standards Board of 4 The Appraisal Foundation 5 DEFINITIONS 6 For the purpose of the Uniform Standards of Professional Appraisal Practice (USPAP), the following 7 definitions apply: 8 APPRAISAL: (noun)the act or process of developing an opinion of value;an opinion of value. 9 (adjective) of or pertaining to appraising and related functions such as appraisal practice or to appraisal services. 11 Co►nment: An appraisal must be numerically expressed as a specific amount, as a range of 12 numbers,or as a relationship(e.g.,not more than,not less than)to a previous value opinion or 13 numerical benchmark(e.g.,assessed value,collateral value). 14 APPRAISAL PRACTICE: valuation services performed by an individual acting as an appraiser,including but 15 not limited to appraisal and appraisal review. 16 fp_mmr&i: Appraisal practice is provided only by appraisers, while valuation services are 17 provided by a variety of professionals and others. The terms appraisal and appraisal review 18 are intentionally generic and are not mutually exclusive. For example, an opinion of value 19 may be required as part of an appraisal review assignment. The use of other nomenclature for 20 an appraisal or appraisal review assignment (e.g., analysis, counseling, evaluation, study, 21 submission, or valuation) does not exempt an appraiser from adherence to the Uniform 22 Standards of Professional Appraisal Practice. 23 APPRAISAL REVIEW: the act or process of developing and communicating an opinion about the quality of 24 another appraiser's work that was performed as part of an appraisal or appraisal review assignment. 25 Comment: The subject of an appraisal review assignment may be all or part of a report, 26 workfile,or a combination of these. 27 APPRAISER: one who is expected to perform valuation services competently and in a manner that is 28 independent,impartial,and objective. 29 Comment: Such expectation occurs when individuals, either by choice or by requirement 30 placed upon them or upon the service they provide by law,regulation,or agreement with the 31 client or intended users,represent that they comply,' 32 APPRAISER'S PEERS: other appraisers who have expertise and competency in a similar type of assignment. 33 ASSIGNMENT: I) An agreement between an appraiser and a client to provide a valuation service; 2) the 34 valuation service that is provided as a consequence of such an agreement. 35 ASSIGNMENT RESULTS: An appraiser's opinions or conclusions developed specific to an assignment. 36 Comment:Assignment results include an appraiser's: See PREAMBLE and Advisory Opinion 21,USPAP Canplicmve. USPAP 2014-2015 Edition U-1 ®The Appraisal Foundation I MD-150093D Ex# 6d Pg# DEFINITIONS 37 • opinions or conclusions developed in an appraisal assignment,not limited to value; 38 • opinions or conclusions,developed in an appraisal review assignment,not limited to an opinion 39 about the quality of another appraiser's work;or 40 • opinions or conclusions developed when performing a valuation service other than an appraisal or 41 appraisal review assignment. 42 ASSUMPTION:that which is taken to be true. 43 BIAS: a preference or inclination that precludes an appraiser's impartiality, independence,or objectivity in an 44 assignment. 45 BUSINESS ENTERPRISE:an entity pursuing an economic activity. 46 BUSINESS EQUITY:the interests,benefits,and rights inherent in the ownership of a business enterprise or a 47 part thereof in any form (including, but not necessarily limited to, capital stock, partnership interests, 48 cooperatives,sole proprietorships,options,and warrants). 49 CLIENT: the party or parties who engage,by employment or contract,an appraiser in a specific assignment. 50 Comrne%The client may be an individual,group,or entity,and may engage and communicate with 51 the appraiser directly or through an agent. 52 CONFIDENTIAL INFORMATION: information that is either: 53 • identified by the client as confidential when providing it to an appraiser and that is not available 54 from any other source;or 55 • classified as confidential or private by applicable law or regulation*. 56 *NOTICE: For example, pursuant to the passage of the Gramm-Leach-Bliley Act in November 1999, some 57 public agencies have adopted privacy regulations that affect appraisers. As a result, the Federal Trade 58 Commission issued a rule focused on the protection of "non-public personal information" provided by 59 consumers to those involved in financial activities"found to be closely related to banking or usual in connection 6o with the transaction of banking." These activities have been deemed to include "appraising real or personal 61 property." (Quotations are from the Federal Trade Commission, Privacy of Consumer Financial Information; 62 Final Rule, 16 CFR Part 313.) 63 COST:the amount required to create,produce,or obtain a property. 64 Comment:Cost is either a fact or an estimate of fact. 65 CREDIBLE:worthy of belief. 66 Cmnnrent: Credible assignment results require support,by relevant evidence and logic,to the 67 degree necessary for the intended use. 68 EXPOSURE TIME: estimated length of time that the property interest being appraised would have been 69 offered on the market prior to the hypothetical consummation of a sale at market value on the effective date of 70 the appraisal. 71 Comment: Exposure time is a retrospective opinion based on an analysis of past events assuming a 72 competitive and open market. U-2 USPAP 2014-2015 Edition OThe Appraisal Foundation Fib '0093D Ex# 6d Pg# DEFINITIONS 73 EXTRAORDINARY ASSUMPTION: an assumption, directly related to a specific assignment, as of the 74 effective date of the assignment results, which, if found to be false, could alter the appraiser's opinions or 75 conclusions. 76 Coinisat: Extraordinary assumptions presume as fact otherwise uncertain information about 77 physical, legal, or economic characteristics of the subject property; or about conditions 78 external to the property, such as market conditions or trends; or about the integrity of data 79 used in an analysis. so FEASIBILITY ANALYSIS: a study of the cost-benefit relationship of an economic endeavor. 81 HYPOTHETICAL CONDITION: a condition, directly related to a specific assignment, which is contrary to 82 what is known by the appraiser to exist on the effective date of the assignment results, but is used for the 83 purpose of analysis. 84n ems: Hypothetical conditions are contrary to known facts about physical, legal, or 85 economic characteristics of the subject property;or about conditions external to the property, 86 such as market conditions or trends;or about the integrity of data used in an analysis. 87 INTANGIBLE PROPERTY (INTANGIBLE ASSETS): nonphysical assets, including but not limited to 88 franchises, trademarks, patents, copyrights, goodwill, equities, securities, and contracts as distinguished from 89 physical assets such as facilities and equipment. 90 INTENDED USE: the use or uses of an appraiser's reported appraisal or appraisal review assignment opinions 91 and conclusions, as identified by the appraiser based on communication with the client at the time of the 92 assignment. 93 INTENDED USER: the client and any other party as identified,by name or type, as users of the appraisal or 94 appraisal review report by the appraiser on the basis of communication with the client at the time of the 95 assignment. 96 JURISDICTIONAL EXCEPTION: an assignment condition established by applicable law or regulation, 97 which precludes an appraiser from complying with a part of USPAP. 98 MARKET VALUE: a type of value,stated as an opinion,that presumes the transfer of a property(i.e.,a right 99 of ownership or a bundle of such rights),as of a certain date,under specific conditions set forth in the definition too of the term identified by the appraiser as applicable in an appraisal. 101 Comment:Forming an opinion of market value is the purpose of many real property appraisal 102 assignments,particularly when the client's intended use includes more than one intended user. 103 The conditions included in market value definitions establish market perspectives for 104 development of the opinion. These conditions may vary from definition to definition but 105 generally fall into three categories: 106 1. the relationship,knowledge,and motivation of the parties(i.e.,seller and buyer); 107 2. the terms of sale(e.g.,cash,cash equivalent,or other terms);and 108 3. the conditions of sale (e.g.,exposure in a competitive market for a reasonable time 109 prior to sale). 110 Appraisers are cautioned to identibt the exact definition of market value, and its authority, 111 applicable in each appraisal completed for the purpose of market value. 112 MASS APPRAISAL: the process of valuing a universe of properties as of a given date using standard 113 methodology,employing common data,and allowing for statistical testing. USPAP 2014-2015 Edition U-3 OThe Appraisal Foundation I MD-150093D Ex# 6d Pg# I DEFINITIONS 114 MASS APPRAISAL MODEL: a mathematical expression of how supply and demand factors interact in a 115 market. 116 PERSONAL PROPERTY: identifiable tangible objects that are considered by the general public as being 117 "personal" - for example, furnishings, artwork, antiques, gems and jewelry, collectibles, machinery and 118 equipment;all tangible property that is not classified as real estate. 119 PRICE:the amount asked,offered,or paid for a property. 120 caniligni: Once stated,price is a fact,whether it is publicly disclosed or retained in private. 121 Because of the financial capabilities, motivations, or special interests of a given buyer or 122 seller,the price paid for a property may or may not have any relation to the value that might 123 be ascribed to that property by others. 124 REAL ESTATE:an identified parcel or tract of land,including improvements,if any. 125 REAL PROPERTY:the interests,benefits,and rights inherent in the ownership of real estate. 126 Comwent: In some jurisdictions,the terms real estate and real property have the same legal 127 meaning. The separate definitions recognize the traditional distinction between the two 128 concepts in appraisal theory. 129 REPORT: any com munication, written or oral, of an appraisal or appraisal review that is transmitted to the 130 client upon completion of an assignment. 131 Comment: Most reports are written and most clients mandate written reports. Oral report 132 requirements(see the RECORD KEEPING RULE)are included to cover court testimony and 133 other oral communications of an appraisal or appraisal review. 134 SCOPE OF WORK: the type and extent of research and analyses in an appraisal or appraisal review 135 assignment. 136 SIGNATURE: personalized evidence indicating authentication of the work performed by the appraiser and the 137 acceptance of the responsibility for content,analyses,and the conclusions in the report. 138 VALUATION SERVICES:services pertaining to aspects of property value. 139 Comment: Valuation services pertain to all aspects of property value and include services 140 performed both by appraisers and by others. 141 VALUE:the monetary relationship between properties and those who buy,sell,or use those properties. 142 .em V!7,4 : Value expresses an economic concept. As such, it is never a fact but always an 143 opinion of the worth of a property at a given time in accordance with a specific definition of 144 value. In appraisal practice, value must always be qualified - for example, market value, 145 liquidation value,or investment value. 146 WORKFILE:documentation necessary to support an appraiser's analyses,opinions,and conclusions. U-4 USPAP 2014-2015 Edition ©The Appraisal Foundation C MD-150093D Ex# 6d Pg# 7 PREAMBLE 147 PREAMBLE 148 The purpose of the Uniform Standards of Professional Appraisal Practice(USPAP)is to promote and maintain 149 a high level of public trust in appraisal practice by establishing requirements for appraisers. It is essential that Ise appraisers develop and communicate their analyses, opinions, and conclusions to intended users of their 151 services in a manner that is meaningful and not misleading. 152 The Appraisal Standards Board promulgates USPAP for both appraisers and users of appraisal services. The 153 appraiser's responsibility is to protect the overall public trust and it is the importance of the role of the appraiser 154 that places ethical obligations on those who serve in this capacity. USPAP reflects the current standards of the 155 appraisal profession. 156 USPAP addresses the ethical and performance obligations of appraisers through DEFINITIONS, Rules, 157 Standards,Standards Rules,and Statements. 158 • The DEFINITIONS establish the application of certain terminology in USPAP. 159 • The ETHICS RULE sets forth the requirements for integrity, impartiality, objectivity, 160 independent judgment,and ethical conduct. 161 • The RECORD KEEPING RULE establishes the workfile requirements for appraisal and 162 appraisal review assignments. 163 • The COMPETENCY RULE presents pre-assignment and assignment conditions for 164 knowledge and experience. 165 • The SCOPE OF WORK RULE presents obligations related to problem identification, 166 research and analyses. 167 • The JURISDICTIONAL EXCEPTION RULE preserves the balance of USPAP if a 168 portion is contrary to law or public policy of a jurisdiction. 169 • The Standards establish the requirements for appraisal and appraisal review and the 170 manner in which each is communicated. 171 - STANDARDS 1 and 2 establish requirements for the development and 172 communication of a real property appraisal. 173 - STANDARD 3 establishes requirements for the development and communication of 174 an appraisal review. 173 - (Note:STANDARDS 4 and 5 have been retired). 176 - STANDARD 6 establishes requirements for the development and communication of 177 a mass appraisal. 178 - STANDARDS 7 and 8 establish requirements for the development and 179 communication of a personal property appraisal. 180 STANDARDS 9 and 10 establish requirements for the development and 181 communication of a business or intangible asset appraisal. 182 • Statements on Appraisal Standards clarify, interpret, explain, or elaborate on a Rule or 183 Standards Rule. 184 • Comments are an integral part of USPAP and have the same weight as the component 185 they address. These extensions of the DEFINITIONS, Rules, and Standards Rules 186 provide interpretation and establish the context and conditions for application. 187 1$8 When De USPAP Ralf sad Stendards.Moir 1 USPAP does not establish who or which assignments must comply. Neither The APPreisei Fouudgition our its 190 optaissi Stang**Dowd is a government ontity with tbe power to nuke,Apt,or Jaw. An WOW**191 must �with US,PAP when 'service or the appraiser Is roq* s ectiulation!or 192 with the client or intended met Individuals may also ehoose to comply with USW toy time ihOt individual i 193 perforating the service Its on,: r. In enter to 004411y with USW.On tettet meet the 194 01440111011s: USPAP 2014-2015 Edition U-5 OThe Appraisal Foundation (MD-150093D Ex# 6d Pg# 5' 1 PREAMBLE 195 • An appraiser must act competently and in a manner that is independent, impartial, and i9 objective. 197 • An appraiser must comply with the ETHICS RULE in all aspects of sisal practice. 198 • An appraiser must maintain the data,information and analysis necessary to support his or 199 her opinions for appraisal and appraisal review assignments in accordance with the 200 RECORD KEEPING RULE. 201 • An appraiser must comply with the COMPETENCY RULE and the JURISDICTIONAL 202 EXCEPTION RULE for all assignments. 203 • When an appraiser provides an opinion of value in an assignment,the appraiser must also 204 comply with the SCOPE OF WORK RULE, the RECORD KEEPING RULE, the 205 applicable development and reporting Standards and applicable Statements. 206 • When an appraiser provides an opinion about the quality of another appraiser's work that 207 was performed as part of an appraisal or appraisal review assignment,the appraiser must 208 also comply with the SCOPE OF WORK RULE, the RECORD KEEPING RULE, 209 applicable portions of STANDARD 3 and applicable Statements. 210 • When preparing an appraisal or appraisal review that is a component of a larger 211 assignment with additional opinions, conclusions, or recommendations, the appraisal or 212 appraisal review component must comply with the applicable development and reporting 213 Standards and applicable Statements, and the remaining component of the assignment. 214 must comply with the ETHICS RULE, the COMPETENCY RULE, and the 215 JURISDICTIONAL EXCEPTION RULE. U-6 USPAP 2014-2015 Edition ®The Appraisal Foundation MD-15009.3D Ex# 6d Pg# ETHICS RULE 216 ETHICS RULE 217 An appraiser must promote and preserve the public trust inherent in appraisal practice by observing 218 the highest standards of professional ethics. 219 An appraiser must comply with USPAP when obligated by law or regulation,or by agreement with 220 the client or intended users. In addition to these requirements,an individual should comply any time 221 that individual represents that he or she is performing the service as an appraiser. 222 Comment: This Rule specifies the personal obligations and responsibilities of the individual 223 appraiser. An individual appraiser employed by a group or organization that conducts itself in a 224 manner that does not conform to USPAP should take steps that are appropriate under the 225 circumstances to ensure compliance with USPAP. 226 This ETHICS RULE is divided into three sections: Conduct, Management, and Confidentiality 227 which apply to all appraisal practice. 228 «Conduct: 229 An appraiser must perform assignments with impartiality, objectivity, and independence, and 230 without Accommodation ofpersonni interests. 231 An rrppratserr 232 • mast not perform an assignment with bias; 233 • must not advocate the cause or interest of any party or issue; 234 • must not accept an assignment that includes the reporting of predetermined opinions and 235 conclusions; 236 • must not misrepresent his or her role when providing valuation services that are outside of 237 appraisal practice; 238 • must not communicate assignment results with the intent to mislead or to defraud; 239 • must not use or communicate a report that is known by the appraiser to be misleading or 240 fraudulent; 241 • must not knowingly permit an employee or other person to communicate a misleading or 242 fraudulent report; 243 • must not use or rely on unsupported conclusions relating to characteristics such as race, 244 color, religion,national origin,gender,marital status, familial status,age, receipt of public 245 assistance income, handicap, or an unsupported conclusion that homogeneity of such 246 characteristics is necessary to maximize value; 247 • must not engage in criminal conduct; 248 • must not willfully or knowingly violate the requirements of the RECORD KEEPING RULE;and 249 • must not perform an assignment in a grossly negligent manner. 250 Comment: Development standards (1-1, 3-1, 6-1, 7-I and 9-1) address the requirement that "an 251 appraiser must not render appraisal services in a careless or negligent manner." The above 252 requirement deals with an appraiser being grossly negligent in performing an assignment which 253 would be a violation of the Conduct section of the ETHICS RULE. USPAP 2014-2015 Edition U-7 OThe Appraisal Foundation MD-150093D Ex# 6d Pg# /© ETHICS RULE 254 If known prior to accepting an assignment, and/or if discovered at any time during the assignment, 255 an appraiser must disclose to the client,and in each subsequent report certification: 256 • any current or prospective interest in the subject property or parties involved;and 257 • any services regarding the subject property performed by the appraiser within the three 258 year period immediately preceding acceptance of the assignment, as an appraiser or in any 259 other capacity. 260 „COMM:Disclosing the fact that the appraiser has previously appraised the property is permitted 261 except in the case when an appraiser has agreed with the client to keep the mere occurrence of a 262 prior assignment confidential. if an appraiser has agreed with a cheat not to disclose that he or she 263 has appraised a property,the appraiser must decline all subsequent assignments that tall within the 264 three year period. 265 In assignments in which there is no appraisal or appraisal review report,only the initial disclosure 266 to the client is required. 267 Manaeement: 268 An appraiser must disclose that he or she paid a fee or commission, or gave a thing of value in 269 connection with the procurement of an assignment. 270 calimag: The disclosure must appear in the certification and in any transmittal letter in which 271 conclusions are stated; however, disclosure of the amount paid is not required. In groups or 272 organizations engaged in appraisal practice, intra-company payments to employees for business 273 development do not require disclosure. 274 An appraiser must not accept an assignment, or have a compensation arrangement for an 275 assignment,that is contingent on any of the following: 276 1. the reporting of a predetermined result(e.g.,opinion of value); 277 2. a direction in assignment results that favors the cause of the client; 278 3. the amount of a value opinion; 279 4. the attainment of a stipulated result(e.g.,that the loan closes,or taxes are reduced);or 280 5. the occurrence of a subsequent event directly related to the appraiser's opinions and specific 281 to the assignment's purpose. 282 An appraiser must not advertise for or solicit assignments in a manner that is false, misleading, or 283 exaggerated. 284 An appraiser must affix, or authorize the use of, his or her signature to certify recognition and 285 acceptance of his or her USPAP responsibilities in an appraisal or appraisal review assignment(see 286 Standards Rules 2-3, 3-6, 6-9, 8-3, and 10-3). An appraiser may authorize the use of his or her 287 signature only on an assignment-by-assignment basis. 288 An appraiser must not affix the signature of another appraiser without his or her consent. 289 :An appraiser must exercise due care to prevent unauthorized use of his or her signature. 290 An appraiser exercising such care is not responsible for unauthorized use of his or her signature. U-a USPAP 2014-2015 Edition 011e Appraisal Foundation I MD-150093D Ex# 6d Pg# r i j ETHICS RULE 291 Confidentiality: 292 An appraiser must protect the confidential nature of the appraiser-client relationship. 293 An appraiser must act in good faith with regard to the legitimate interests of the client in the use of 294 confidential information and in the communication of assignment results. 295 An appraiser must be aware of,and comply with,all confidentiality and privacy laws and regulations 296 applicable in an assignment.' 297 An appraiser must not disclose: (I) confidential information; or (2) assignment results to anyone 298 other than: 299 • the client; 300 • persons specifically authorized by the client; 301 • state appraiser regulatory agencies; 302 • third parties as may be authorized by due process of law; or 303 • a duly authorized professional peer review committee except when such disclosure to a 304 committee would violate applicable law or regulation. 305 A member of a duly authorized professional peer review committee must not disclose confidential 306 information presented to the committee. 307 Comment: When all confidential elements of confidential information and assignment results are 308 removed through redaction or the process of aggregation,client authorization is not required for the 309 disclosure of the remaining information,as modified. 2 Pursuant to the passage of the Gramm-Leach-Bliley Act in 1999, numerous agencies have adopted privacy regulations. Such regulations are focused on the protection of information provided by consumers to those involved in financial activities "found to be closely related to banking or usual in connection with the transaction of banking." These activities have been deemed to include"appraising real or personal property" (Quotations are from the Federal Trade Commission, Privacy of Consumer Financial Information; Final Rule, 16.CFR Part 313.) USPAP 2014-2015 Edition 11-9 eThe Appraisal Foundation MD-150093D Ex# 6d Pg# It, 1 RECORD KEEPING RULE 310 RECORD KEEPING RULE 311 An appraiser must prepare a workfile for each appraisal or appraisal review assignment. A workf le 312 must be is existence prior to the issuance of any report. A written summary of an oral report must be 313 added to the workfile within a reasonable time after the issuance of the oral report. 314 The workflle must include: 315 • the name of the client and the identity,by name or type,of any other intended users; 316 • true copies of any written reports,documented on any type of media. (A true copy is a replica of 317 the report transmitted to the client. A photocopy or an electronic copy of the entire report 318 transmitted to the client satisfies the requirement of a true copy.); 319 • summaries of all oral reports or testimony, or a transcript of testimony, including the 320 appraiser's signed and dated certification; 321 • all other data, information, and documentation necessary to support the appraiser's opinions 322 and conclusions and to show compliance with USPAP, or references to the location(s) of such 323 other documentation;and 324 • a workfile in support of a Restricted Appraisal Report must be sufficient for the appraiser to 325 produce an Appraisal Report. 326 An appraiser must retain the workfile for a period of at least five years after preparation or at least two 327 years after feral disposition of nay Judicial proceeding in which the appraiser provided testimony related 328 to the assignment,whichever period expires last. 329 An appraiser must have custody of the workfile, or make appropriate workfile retention, access, and 330 retrieval arrangements with the having custody of the workfile. This ge party hrg y includes ensuring that a 331 workfile is stored In a medium that is retrievable by the appraiser throughout the prescribed record 332 retention period. 333 An appraiser having custody of a workfk must allow other appraisers with workflle obligations related 334 to an assignment appropriate access and retrieval for the purpose of: 335 • submission to state appraiser regulatory agencies; 336 • compliance with due process of law; 337 • submission to a duly authorized professional peer review committee;or 338 • compliance with retrieval arrangements. 339 comment; A workfile must be made available by the appraiser when required by a state appraiser 340 regulatory agency or due process of law. 341 An appraiser who willfully or knowingly falls to comply with the obligations of this RECORD KEEPING 342 RULE is in violation of the ETHICS RULE. U-I0 USPAP 2014-2015 Edition ()The Appraisal Foundation MD-150093D Ex# 6d Pg# (3 I COMPETENCY RULE 343 COMPETENCY RULE 344 An appraiser must:(1)be competent to perform the assignment;(2)acquire the necessary competency to 345 perform the assignment;or(3)decline or withdraw from the assignment.In all cases,the appraiser must 346 perform competently when completing the assignment. 347 Define Competent 348 The appraiser must determine, prior to accepting an assignment, that he or she can perform the 349 assignment competently. Competency requires: 350 1. the ability to properly Identify the problem to be addressed;and 351 2. the knowledge and experience to complete the assignment competently;and 352 3. recognition of,and compliance with,laws and regulations that apply to the appraiser or to the 353 assignment. 354 CComment: Competency may apply to factors such as, but not limited to, an appraiser's 355 familiarity with a specific type of property or asset, a market,a geographic area,an intended 356 use,specific laws and regulations,or an analytical method. If such a factor is necessary for an 357 appraiser to develop credible assignment results, the appraiser is responsible for having the 358 competency to address that factor or for following the steps outlined below to satisfy this 359 COMPETENCY RULE. 360 For assignments with retrospective opinions and conclusions, the appraiser must meet the 361 requirements of this COMPETENCY RULE at the time of the assignment, rather than the 362 effective date. 363 Acoulirinn Comueteacv 364 If an appraiser determines he or she is not competent prior to accepting an assignment, the appraiser 365 must: 366 1. disclose the lack of knowledge and/or experience to the client before accepting the assignment; 367 2. take all steps necessary or appropriate to complete the assignment competently;and 368 3. describe,In the report,the lack of knowledge and/or experience and the steps taken to complete 369 the assignment competently. 370 Comment: Competency can be acquired in various ways, including, but not limited to, 371 personal study by the appraiser,association with an appraiser reasonably believed to have the 372 necessary knowledge and/or experience, or retention of others who possess the necessary 373 knowledge and/or experience. 374 In an assignment where geographic competency is necessary,an appraiser who is not familiar 375 with the relevant market characteristics must acquire an understanding necessary to produce 376 credible assignment results for the specific property type and market involved. 377 When facts or conditions are discovered during the course of an assignment that cause an appraiser to that he or she lacks the required knowledge and experience to complete the 378 determine, at that time, q ledge xpe p 379 assignment competently,the appraiser must: 380 1. notify the client,and 381 2. take all steps necessary or appropriate to complete the assignment competently,and USPAP 2014-201 S Edition U-i 1 OThe Appraisal Foundation MD-150093D Ex# 6d P$# SCOPE OF WORK RULE 387 SCOPE OF WORK RULES 388 For each appraisal and appraisal review assignment,an appraiser must: 389 1. identify the problem to be solved; 390 2. determine and perform the scope of work necessary to develop credible assignment results;and 391 3. disclose the scope of work in the report. 392 An appraiser must properly Identify the problem to be solved in order to determine the appropriate 393 scope of work. The appraiser must be prepared to demonstrate that the scope of work is sufficient to 394 produce credible assignment results. 393 Comment:Scope of work includes,but is not limited to: 396 • the extent to which the property is identified; 397 • the extent to which tangible property is inspected; 398 • the type and extent of data researched;and 399 • the type and extent of analyses applied to arrive at opinions or conclusions. 400 Appraisers have broad flexibility and significant responsibility in determining the appropriate 401 scope of work for an appraisal or appraisal review assignment. 402 Credible assignment results require support by relevant evidence and logic.The credibility of 403 assignment results is always measured in the context of the intended use. 404 Problem idontitkotioe 405 An appraiser must gather and analyze Information about those assignment elements that are necessary to 406 properly identify the appraisal or appraisal review problem to be solved. 407 Comment:The assignment elements necessary for problem identification are addressed in the 408 applicable Standards Rules(i.e.,SR 1-2,SR 3-2,SR 6-2,SR 7-2 and SR 9-2). In an appraisal 409 assignment, for example, identification of the problem to be solved requires the appraiser to 410 identify the following assignment elements: 411 • client and any other intended users; 412 • intended use of the appraiser's opinions and conclusions; 413 • type and definition of value; 414 • effective date of the appraiser's opinions and conclusions; 415 • subject of the assignment and its relevant characteristics; and 416 • assignment conditions. 417 This information provides the appraiser with the basis for determining the type and extent of 418 research and analyses to include in the development of an appraisal. Similar information is 419 necessary for problem identification in appraisal review assignments. 420 Communication with the client is required to establish most of the information necessary for 421 problem identification. However, the identification of relevant characteristics is a judgment 422 made by the appraiser that requires competency in that type of assignment. 3 See Advisory Opinion 28,Scope of Work Decision, Performance, and Disclosure and Advisory Opinion 29,An Acceptable Scope of Work. USPAP 2014-2015 Edition U-13 011ie Appraisal Foundation MD-150093D Ex# 6d Pg# 7 4 COMPETENCY RULE 382 3. describe,in the report,the lack of knowledge and/or experience and the steps taken to complete 383 the assignment competently. 3$4 of Ci 385 If the assignment cannot be completed competently, the appraiser must decline or withdraw from the 386 assignment. U-12 USPAP 2014-2015 Edition 011ie Appraisal Foundation 1 MD-150093D Ex# 6d Pg# f S sCDPE of WORK RULE 423 Assignment conditions include assumptions, extraordinary assumptions, hypothetical 424 conditions, laws and regulations,jurisdictional exceptions,and other conditions that affect the 425 scope of work. Laws include constitutions, legislative and court-made law, administrative 426 rules, and ordinances. Regulations include rules or orders, having legal force, issued by an 427 administrative agency. 428 §cone of Work AcceotabWWtr' 429 The scope of work must include the research and analyses that are necessary to develop credible 430 assignment results. 431 Comment:'The scope of work is acceptable when it meets or exceeds: 432 • the expectations of parties who are regularly intended users for similar assignments;and 433 • what an appraiser's peers' actions would be in perforating the same or a similar 434 assignment. 435 Determining the scope of work is an ongoing process in an assignment. Information or 436 conditions discovered during the course of an assignment might cause the appraiser to 437 reconsider the scope of work. 438 An appraiser must be prepared to support the decision to exclude any investigation, 439 information, method, or technique that would appear relevant to the client,another intended. 440 user,or the appraiser's peers. 441 An appraiser must not allow assignment conditions to limit the scope of work to such a degree that the 442 assignment results are not credible in the context of the intended use. 443 Ccl : If relevant information is not available because of assignment conditions that limit 444 research opportunities(such as conditions that place limitations on inspection or information 445 gathering),an appraiser must withdraw from the assignment unless the appraiser can: 446 • modify the assignment conditions to expand the scope of work to include gathering the 447 information;or 448 • use an extraordinary assumption about such information, if credible assignment results 449 can still be developed. 450 An appraiser must not allow the intended use of an assignment or a client's objectives to cause the 451 assignment results to be biased. 452 Rinkailliikkalkan 453 The report must contain sufficient information to allow intended users to understand the scope of work 454 performed. 455 Comment: Proper disclosure is required because clients and other intended users rely on the 456 assignment results. Sufficient information includes disclosure of research and analyses 457 performed and might also include disclosure of research and analyses not performed. ' See Advisory Opinion 29,An Acceptable Scope of Work. U-l4 USPAP 2014-2015 Edition OThe Appraisal Foundation I MD-150093D Exit 6d Pg# 7 I JURISDICTIONAL EXCEPTION RULE 458 JURISDICTIONAL EXCEPTION RULE 459 If any applicable law or regulation precludes compliance with any part of USPAP, only that part of 460 USPAP becomes void for that assignment. 461 Comment: When compliance with USPAP is required by federal law or regulation,no part of 462 USPAP can be voided by a law or regulation of a state or local jurisdiction. 463 In an assignment involving a jurisdictional exception,an appraiser must: 464 1. identify the law or regulation that precludes compliance with USPAP; 465 2. comply with that law or regulation; 466 3. clearly and conspicuously disclose in the report the part of USPAP that is voided by that law 467 or regulation;and 468 4. cite in the report the law or regulation requiring this exception to USPAP compliance. 469 Comment: The JURISDICTIONAL EXCEPTION RULE provides a saving or severability 470 clause intended to preserve the balance of USPAP if compliance with one or more of its parts 471 is precluded by the law or regulation of a jurisdiction. When an appraiser properly follows 472 this Rule in disregarding a part of USPAP,there is no violation of USPAP. 473 Law includes constitutions, legislative and court-made law, and administrative rules and 474 ordinances. Regulations include rules or orders having legal force, issued by an 475 administrative agency. Instructions from a client or attorney do not establish a jurisdictional 476 exception. USPAP 2014-2015 Edition U-15 OThe Appraisal Foundation I MD-150093D Ex# 6d Pg# (g 1 STANDARD 1 477 STANDARD 1:REAL PROPERTY APPRAISAL,DEVELOPMENT 478 In developing a real property appraisal,an appraiser must identify the problem to be solved,determine 479 the scope of work necessary to solve the problem,and correctly complete research and analyses necessary 480 to produce a credible appraisal. 481 Comment:STANDARD I is directed toward the substantive aspects of developing a credible 482 appraisal of real property. The requirements set forth in STANDARD I follow the appraisal 483 development process in the order of topics addressed and can be used by appraisers and the 484 users of appraisal services as a convenient checklist. 485 avdards Rule 1-1. 486 In developing a real property appraisal,an appraiser must: 487 (a) be aware of,understand,and correctly employ those recognized methods and techniques that are 488 necessary to produce a credible appraisal; 489 :This Standards Rule recognizes that the principle of change continues to affect the 490 manner in which appraisers perform appraisal services.Changes and developments in the real. 491 estate field have a substantial impact on the appraisal profession. Important changes in the 492 cost and manner of constructing and marketing commercial, industrial, and residential real 493 estate as well as changes in the legal framework in which real property rights and interests are 494 created,conveyed,and mortgaged have resulted in corresponding changes in appraisal theory 495 and practice. Social change has also had an effect on appraisal theory and practice. To keep 496 abreast of these changes and developments, the appraisal p rofession is constantly reviewing 497 and revising appraisal methods and techniques and devising new methods and techniques to 498 meet new circumstances. For this reason,it is not sufficient for appraisers to simply maintain 499 the skills and the knowledge they possess when they become appraisers.Each appraiser must 500 continuously improve his or her skills to remain proficient in real property appraisal. Sot (b) not commit a substantial error of omission or commission that significantly affects an appraisal; 502 and 503 Conifigill:An appraiser must use sufficient care to avoid errors that would significantly affect 504 his or her opinions and conclusions.Diligence is required to identify and analyze the factors, 505 conditions,data,and other information that would have a significant effect on the credibility Sob of the assignment results. 507 (c) not render appraisal services in a careless or negligent manner, such as by making a series of 508 errors that,although individually might not significantly affect the results of an appraisal,in the 509 aggregate affects the credibility of those results. 510 Comment: Perfection is impossible to attain, and competence does not require perfection. 511 However, an appraiser must not render appraisal services in a careless or negligent manner, 512 This Standards Rule requires an appraiser to use due diligence and due care, 513 AWN*.Rule 1-a 514 In developing a real property appraisal,an appraiser must: U-16 USPAP 2014-2015 Edition OThe Appraisal Foundation F D-150093D Ex# 6d Pg# el I STANDARD 1 515 (a) identify the client and other intended users;5 516 (b) identify the intended use of the appraber's opinions and conclusions;' 517 Comment: An appraiser must not allow the intended use of an assignment or a client's 518 objectives to cause the assignment results to be biased.' 519 (c) identify the type and definition of value, and, if the value opinion to be developed is market 520 value,ascertain whether the value is to be the most probable price: 521 (i) in terms of cash;or 522 (ii) in terms of financial arrangements equivalent to cash;or 523 (iii) in other precisely defined terms;and 524 (iv) if the opinion of value is to be based on non-market financing or financing with unusual 525 conditions or incentives, the terms of such financing must be clearly identified and the 526 appraiser's opinion of their contributions to or negative influence on value must be 527 developed by analysis of relevant market data; 528 C9tninent: When exposure time is a component of the definition for the value 529 opinion being developed, the appraiser must also develop an opinion of reasonable 530 exposure time linked to that value opinion!' 531 (d) identify the effective date of the appraiser's opinions and conclusions;' 532 (e) identify the characteristics of the property that are relevant to the type and definition of value 533 and intended use of the appraisal,' including: 534 (i) its location and physical,legal,and economic attributes; 535 01) the real property interest to be valued; 536 (iii) any personal property,trade fixtures,or intangible items that are not real property but 537 are included in the appraisal; 538 (iv) any known easements, restrictions, encumbrances, leases, reservations, covenants, 539 contracts, declarations, special assessments, ordinances, or other items of a similar 540 nature;and See Statement on Appraisal Standards No,9,Identification of Intended Use and Intended Users. 6 See Statement on Appraisal Standards No.9,Identtfication of Intended Use and Intended Users. See Advisory Opinion 19,Unacceptable Assignment Conditions in Real Property Appraisal Assignments. a See Statement on Appraisal Standards No,6,Reasonable Exposure Time in Real Properly and Personal Property Opinions of Value. See also Advisory Opinion 7,Marketing Time Opinions,and Advisory Opinion 22,Scope of Work in Market Value Appraisal Assignments, Real Property. ' See Statement on Appraisal Standards No.3,Retrospective Value Opinions,and Statement on Appraisal Standards No.4,Prospective Value Opinions. 1'See Advisory Opinion 2,Inspection of Subject Property.and Advisory Opinion 23,Identifying the Relevant Characteristics of the Subject Proper°,of a Real Properly Appraisal Assignment. USPAP 20142015 Edition U-l7 011ie Appraisal Foundation MD-150093D Ex# 6d Pg# .Z.ZP STANDARD I 54t (v) whether the subject property is a fractional interest, physical segment, or partial 542 holding; 543 Comment on (i)—(vI: The information used by an appraiser to identify the property 344 characteristics must be from sources the appraiser reasonably believes are reliable. 545 An appraiser may use any combination of a property inspection and documents, such as a 546 physical legal description,address, map reference,copy of a survey or map,property sketch, 547 or photographs,to identify the relevant characteristics of the subject property. 548 When appraising proposed improvements, an appraiser must examine and have available for 549 future examination, plans, specifications, or other documentation sufficient to identify the 550 extent and character of the proposed improvements." 551 Identification of the real property interest appraised can be based on a review of copies or 352 summaries of title descriptions or other documents that set forth any known encumbrances. 553 An appraiser is not required to value the whole when the subject of the appraisal is a 554 fractional interest,a physical segment,or a partial holding. 555 (t) identify any extraordinary assumptions necessary in the assignment; 556 SSA:An extraordinary assumption may be used in an assignment only if: 557 • it is required to properly develop credible opinions and conclusions; 558 • the appraiser has a reasonable basis for the extraordinary assumption; 559 • use of the extraordinary assumption results in a credible analysis;and 560 • the appraiser complies with the disclosure requirements set forth in USPAP for 561 extraordinary assumptions. 562 (g) identify any hypothetical conditions necessary in the assignment;and 563 Comment:A hypothetical condition may be used in an assignment only if: 564 • use of the hypothetical condition is clearly required for legal purposes, for purposes of 565 reasonable analysis,or for purposes of comparison; 566 • use of the hypothetical condition results in a credible analysis;and 567 • the appraiser complies with the disclosure requirements set forth in USPAP for 568 hypothetical conditions. 569 (h) determine the scope of work necessary to produce credible assignment results in accordance with 570 the SCOPE OF WORK RULE.12 571 tibAtitikastiLibil 572 WO*0000orrilir"troth assignment l r 1►:4i1OVOtoPhIg d o an appraiser mt ist. "See Advisory Opinion 17,Appraisals of Real Property with Proposed Inlprovemrenia. 12 See Advisory Opinion 28,Scope of Work Decision. Performance,and Disclosure,and Advisory Opinion 29,An Acceptable Scope of Work. U-18 USPAP 2014-2015 Edition ®The Appraisal Foundation {i 1 MD-150093D Ex# 6d Pg# ,4-f 1 STANDARD 1 573 (a) identify and analyze the effect on use and value of existing land use regulations, reasonably 574 probable modifications of such land use regulations,economic supply and demand,the physical 575 adaptability of the real estate,and market area trends;and 576 Comment: An appraiser must avoid making an unsupported assumption or premise about 577 market area trends,effective age,and remaining life. 578 (b) develop an opinion of the highest and best use of the real estate. 579 Comment: An appraiser must analyze the relevant legal, physical, and economic factors to the 580 extent necessary to support the appraiser's highest and best use conclusion(s). 581 Standards ibis 1-4 582 In developing a real property appraisal, an appraiser must collect, verify, and analyze aft information 583 necessary for credible assignment results. 584 (a) When a sales comparison approach is necessary for credible assignment results, an appraiser 585 must analyze such comparable sales data as are available to indicate a value conclusion. 586 (b) When a cost approach is necessary for credible assignment results,an appraiser must: 587 (i) develop an opinion of site value by an appropriate appraisal method or technique; 588 (ii) analyze such comparable cost data as are available to estimate the cost new of the 589 improvements(if any);and 590 (iii) analyze such comparable data as are available to estimate the difference between the 591 cost new and the present worth of the improvements(accrued depreciation). 592 (c) When an income approach is necessary for credible assignment results,an appraiser must: 593 (i) analyze such comparable rental data as are available and/or the potential earnings 594 capacity of the property to estimate the gross income potential of the property; 595 (II) analyze such comparable operating expense data as are available to estimate the 596 operating expenses of the property; 597 (iii) analyze such comparable data as are available to estimate rates of capitalization and/or $98 rates of discount;and 599 (iv) base projections of future rent and/or income potential and expenses on reasonably clear 600 and appropriate evidence." 601 Ste: In developing income and expense statements and cash flow projections, 602 an appraiser must weigh historical information and trends, current supply and 603 demand factors affecting such trends, and anticipated events such as competition 604 from developments under construction. 6os (d) When developing an opinion of the value of a leased fee estate or a leasehold estate,an appraiser 606 must analyze the effect on value,if any,of the terms and conditions of the lease(s). "See Statement on Appraisal Standards No.2,Discounted Cash Flow Analysis. USPAP 2014-2015 Edition U-19 ©The Appraisal Foundation (MD-150093p Ex# 6d Pg# 7,1,,1 \\\ � \ \\ Gp 4\\\ \' \\ \ ,\ \ \\ \ v\, %%,% \%%%,„%,%‘, %\,,,, „, %,%\\%%%,,,,,%%, ,, \%‘, ,%%\ %%\ % %, ,,,,%%„„„,$,,, %A\%%%% ', %% '%4 4. % %\ \\%\ , %,%, %%, % %, ,4 \,..\,.,;., , ,, .,,„%%,%%.,, ,„,,, %%,.% %, % ,,,,,A%%%. %%%%;\\ \\\ ` \\ \ \ � \ % % %%%„ ",, ' . !:),4, %ii ,Ii, ' 'iLl(% :,,,14El 'f,",;;.,%. ,,,, 4' '',, t.'".% ','” '\ ;''7' '.7 ' '' 7Z' ,' % ,,,,,, %%'%, ,:,,%,,W, %:'''‘,) ii,%,;%„,'„'0 ,'%., ,, ,„,%,% ,%oi\i,,,, \.„',,%,',„„ %\%\% ''''\ % ' '''k'' %\' \\% '%\ \ ' % 3' \''''''' \440'.;4%'% ' '%% % % '' ' '%%% %''''''\'\\% -% %%% % %'''-' % \% % %%,%%% %„0,%„„,%% , ,, ,% \,‘‘ % %% „%,„1„\so , , \ , „„.„,x,,, „..., „,„„ %,„% %%%„„%%„‘%,,\I \,,,%,\,, ,,,%%„%%,,„\ %%„ ,„,, %% ,\ ,%\,%%%,%% %.,,, ‘„ %,„, , , , „, %% „„,‘ %% \ %% %„% , %„% .\\ %,,,,,„%\%,,,,„,„,,,,,„,,..,,,%%,\ \N\,„,,',,,,,„„„\\\\„,,,,,,,‘„,\%\,\,,,,,, ,.,,,,,,,,,.„,„,‘ \%, ,,,,% %„„,,, , ,,, ,„‘„, „\% ,,,,,%,,„„ ,, , „„,„%%%,:,„, „,%%%,,,„,,,,,,,„., : ,,,,,, % ,„„„„„%% „,„„„,,%„,„,„,\,,„%,%%%%,%„.,,,,,,%,%, %, \%%% ,,\,%,,, ,,,%% , %%,%,%%, ,,,,,,„;,,,,,„t\\„,„%„,„,„„\,„,%„,„.,„„ ‘,„% %%,,,,,,,,,,,,,,„%% ,,,„%%%%%%%,% %,„,,,,,,,,\,,% , \%%%%,,„,‘„% ,,,,,,%%,%,%„,,,%%\„%%,,,,,,,,„„ ,%„,„,„,%„„%,„%%„%%:,% „ ‘,,, , ,,%„%,‘ .ivj( t) ti \\ \ y\\\ ,\ \ ra. �\ ` `\\ , \ \ \\ i\ \ \ \\ e ;\\\ � '\ ,\ \ \\,..\ \\^ \\ \ t\\,,; \\ �' \\\ , , y; %%'\ \�\\, \\\, \,o \ \iii \\\, v\\\ p\\ „� �'r`'''% \ ‘'' ''" %\\''\ ' it '''%''''%%%\%'''' %%%'''‘ \\\ ''\.%'''''''''' 'T\% ' \\\\\\ %%% \'%%'%%' ' ' ''' ����\\\, � ��\� �, � � ''`'',''%''''''''',\ , ,„,„ ,,,,%%,\,;%„k' \%,,%%,,,% ;%%'%;%,\%;,,,,N \% \%\,,,%,,,,„, *,\%', ,,,;\% ' %\ \%;,\\\'% ,,',''',.,-"'''%\ \v\,%\,,",,,,,A%:, ,''%'.,%% 't'%%\ ' % ,% ,\`,'%% ' %%,%\,T , 7 %::„.,v,,,,„.,,,,,, ,,%,'%\%‘,,,,,,,,,,..,%%%\\„,\ \\\ \\ \\ ,.:%%,%,,,,„%.%%\%%\%%%,\%:,,„\\;.,%,,\%%%%,:0,,,,%,:%,x\\%%\:,\\„,%,,„;,,;,\%\%\;„\\\\\,,,,%\,% , ,%%%,,,,%,,,,\„,%\,\\,,\:%%,,,,,%,;,,%:,,,%,\,,%\:\,%%,,,, , \,, % %\%% %%,, ,%4 \ \ \\ \\\\ \\ \\\\` TORS 308.205(2)(d) Gov Restrictions adjust Real Market Value p1 3-5.pdf MD-150093D Ex# 7 Pg# 14 1 ORS 308.205 Real Market Value Defined http://vvww.oregonlaws.org/ors/308.205 § 308.205' Real market value defined • rules (1)Real market value of all property, real and personal, means the amount in cash that could reasonably be expected to be paid by an informed buyer to an informed seller, each acting without compulsion in an arms-length transaction occurring as of the assessment date for the tax year. (2) Real market value in all cases shall be determined by methods and procedures in accordance with rules adopted by the Department of Revenue and in accordance with the following: (a) The amount a typical seller would accept or the amount a typical buyer would offer that could reasonably be expected by a seller of property. (b) An amount in cash shall be considered the equivalent of a financing method that is typical for a property. (c) If the property has no immediate market value, its real market value is the amount of money that would justly compensate the owner for loss of the property. If the property is subject to governmental restriction as to use on the assessment date under applicable law or regulation,real market*Mae shall not be based upon sales that reflect for the property*value that the property would e if the use Mae property were net subject,tote restriction unless miluatMente in value are,made reflecting the 0000 of the ieetilc ions. [Amended by 1953. c.701 §2; 1955 c.691 §§1, 2; 1977 c.423 §2; 1981 c.804 §34; 1989 c.796 §30; 1991 c.459 §88; 1993 c.19 §6; 1997 c.541 §152] MD-150093D BO 7Pg# C:\17ocs\Clients\KW&M\PrapertyTax&AppeaPORS 308.205 Real Market Value Defaed.doc page I 12/31/2014 . (c)In utilizing the sales comparison approach only OAR 150-308.205-(D) actual market transactions of property comparable to http://arcweb.sos.state.or.us/pages/rules/oars 100/oar the subject,or adjusted to be comparable, will be 150/150 308.html used.All transactions utilized in the sales comparison Industrial Property Valuation for Tax Purposes approach must be verified to ensure they reflect arms- length transactions. When non-typical market (I) For the purposes of this rule, the following words conditions of sale are involved in a transaction and phrases have the following meaning: (duress,death, foreclosure, bankruptcy, liquidation, interrelated corporations or persons,etc.)the (a)A "unit of property" is the item, structure,plant,or transaction will not be used in the sales comparison integrated complex as it physically exists on the approach unless market-based adjustments can be assessment date. made for the non-typical market condition. (b) "Real property" means the real estate(physical (d) Properties utilized in the sales comparison land and appurtenances including structures, and approach, although not necessarily identical,at the machinery and equipment erected upon the land or very least must be similar in many respects. attached to the land or structures)and all interests, Adjustments must be made for differences in location, benefits, and rights inherent in the ownership of the product,production capacity, and all other factors that physical real estate. may affect value. Excessively large adjustments or an excessive number of adjustments is an indication that (c)"Highest and best use" means the reasonably the properties are not comparable. probable and legal use of vacant land or an improved property that is physically possible,appropriately (e) When utilizing the sales comparison approach,the supported, and financially feasible,and that results in appraiser must take into consideration difference the highest value. See The Appraisal of Real Estate, between the subject and the comparable properties for 12th edition (2001). physical condition, functional obsolescence and economic obsolescence.Adjustments must be made (2) If the highest and best use of the unit of property is for differences between the subject and comparable an operating plant or an operating integrated complex, properties for factors such as physical condition, the real market value will be considered to be a "going functional deficiencies,operating efficiency,and concern." The going concern concept recognizes that economic obsolescence. If the properties are the value of an assembled and operational group of functionally or economically equivalent,verification assets usually exceeds the value of an identical group of the equivalency must be included in the appraisal. of assets that are separate or not operational. (f) Sales for the disposal of properties through auction, (3)Methods and Procedures for Determining the Real liquidation or scrap sales are indicators of market Market Value of Industrial Property: value only when on the assessment date such disposal of the subject property is imminent,or has actually (a) For the valuation of industrial property all three taken place. approaches sales comparison,cost,and income, must be considered. For a particular property, it may be that (g)The cost approach may utilize either the all three approaches can not be applied,however,each reproduction,replacement,or the used equipment must be investigated for its merit in each specific technique. It is acceptable to use trended historical appraisal. cost to estimate the reproduction cost new.The value estimate must include all costs required to assemble (b)The market value of a unit of property must not be and construct the unit of property. determined from the market price of its component parts,such as wood, glass,concrete, furnaces, (h) When using the income approach,the income from elevators,machines,conveyors,etc.,each price the operation of the property may be utilized for separately as an item of property,without regard to its industrial properties and other properties that are not being integrated into the total unit. typically leased or rented.When the income from the property's operation is used,the unit of property must be valued as a going concern. In utilizing the income C:\Docs\Clients\KW&M\PropertyTax&Appeal\ORS 308205 Real Market Value Definelice Value page 3 12/31/2011 MD-150093D Ex# 7 Pg# 2 approach for the valuation of industrial properties, the (k)Fixed assets schedules; discounted cash flow technique is one of the appropriate methods to derive a value estimate. (1)Income statements; Consideration in the discounted cash flow technique is given to items such as the anticipated free cash flow (m)Such other data that may affect value. available to the debt and equity holders, inventory valuation methods, intangible assets,income taxes,net (5) Basic information for an appraisal utilizing the working capital,capital reinvestment,etc. When annual report method. Basic data for an appraisal utilizing the discounted cash flow technique,the utilizing the annual report method normally includes capitalization or discount rate must be derived in the following: accordance with OAR 150-308.205-(C). (a) Report of additions; (i)Determining the highest and best use for the unit of property is necessary for establishing real market (b)Report of retirements; value. This determination of highest and best use may include,among others,all possible uses that might (c)Knowledge of miscellaneous technical and result from retaining,altering or ceasing the integrated economic conditions that affect value; nature of the unit of property. (d)Trending factors: (4) Basic information for an appraisal.Basic data and procedures in making appraisals normally include the (A) Separate factors for yard improvements, following when applicable: buildings, and equipment classified as real property must be developed. (a)Location of property by tax codes and tax lot numbers; (B)The development of the factors must use data published by the United States Department of Labor, (b)Map or sketch of land owned and layout of plant; the Oregon Building Construction Trades Council, and other sources the Department of Revenue deems (c) Inventory of physical plant; to be reliable indicators of p l�rh'ro value over time. (d) Reproduction or replacement cost computations, as (C) Data developed by physical inspection together applicable; with appraising a segment of the total property or making a general review of the total value under (e)Analysis of depreciation; certain circumstances may supplement the data utilized in(A)above. (f)Analysis of economics as they affect valuation; (e)Depreciation allowances; (g)Analysis of sales data,when applicable; (f)Real market value for prior year. (h)Field inspection; Stat. Auth.: ORS 305.100 (i)Research and familiarization with typical Stats. Implemented: ORS 308.205 properties of the industry; Hist.: RD 9-1989, f. 12-18-89,cert.ef. 12-31-89; RD 8-1991,f. 12-30-91,cert.ef. 12-31-91; REV 12-2004, (j)Annual reports to stockholders; f. 12-29-04,cert.ef. 12-31-04 MD-150093D Eidi 7 Pg# 3 C:\Dots\Clients\KW&M PrupertyTax&AppeaI\ORS 30$203 Real Market Value Defined.doc page 4 12/31/2014 Search Results when searching for ORS 308.205(d) 250 document(s)found. Case Title Case Date Filed _ Number 76% LYDON-ALBANY,LLC v. LINN COUNTY 040144F 10/29/2004 ASSESSOR _ 74% Martin v. Yahmill County Assessor _ 110246D 09/01/2011 74% Vandiver v. Deschutes County Assessor 080384D 08/18/2008 74% Oden-Orr v. Multnomah County Assessor 070295C 06/12/2007 74% Lane County Assessor v. Flynn Jr 060086C 02/14/2007 74% Terry v Umatill County 050492A 01/18/2006 73% Freitag v. Department of Revenue 4764 07/03/2007 73% Norpac Foods,Inc. v. DOR 4490 09/28/2004 72% ~Dale v. Lane County Assessor _ 1206201 03/26/2013 72% Clapa v. Multnomah County Assessor _ 111125D 05/21/2012 72% Clapa v. Multnomah County Assessor 111124D 05/21/2012 ,72% Clapa v. Multnomah County Assessor 111123D 05/21/2012 1 72% 1 Clapa v. Multnomah County Assessor 111122D 05/21/2012/2012 72% Sutton v. Jackson County 070186C 09/05/2007 72% Gall v. Yamhill County Assessor 060207C 06/15/2006 72% Durkee v. Lincoln County Assessor _ _010491F _ 12/27/2001 72% Wilsonville Heights Assoc. v. DOR 4262 08/07/2003 71% Clapa v. Multnomah County Assessor 111126D 05/21/2012 71% 7 Clapa v. Multnomah County Assessor 111121 1) 05/21/2012 71% Clapa v. Multnomah County Assessor 111120D 05/21/2012 71% Clapa v. Multnomah County Assessor J , 110500D , 05/21/2012 71% Strader v. Clatsop County Assessor 090834C 09/09/2009 71% Thomas v. Deshcutes County Assessor 080284B 08/27/2009 (Control)r 71% Redmond v.Hood River County Assessor 081073C 02/26/2009 71% Leaper v. Department of Revenue and Multnomah 4786 01/16/2008 County Assessor 71% ADC Kentrox v.Department of Revenue 4722 , 07/05/2007 71% Department of Revenue v. Butte Creek Associates(Butte 4676 07/20/2006 Creek II) 71% - Magna v. Department of Revenue and Washington 4720 05/18/2006 County Assessor 71% Kuhn v. Deschut.s County Assessor 050021 C 03/23/2006 _ (Control) 71% Hamer v.Multnomah County Assessor 050514C 12/20/2005 71% Emami v. Clackamas County 040460B 07/13/2005 71% Sutton Family Rev.Trust v. Jackson County Assessor 050208D _ 05/02/2005 71% Richard v. Malheur County Assessor 040336C 04/12/2005 71% Schaefer v. Lincoln County Assessor 040809C 02/24/2005 71% RICHARD L. RODE and LINDA P. RODE v. 040238F _ _ 10/29/2004 C:1 Rocs\Ciiems\KW&M1Pr°pertyTex&AppeallORS 308.205 Real Market Value Defined, 1/2O1 • \\ \ \k , \ \.k kk \ \\\\\ \\0\ ,\\,k,' \\\N' \k. \%,\\ \ v \ Iuhn\\ \ \ \\ \ To \ \\\\\\ \\\\ \ \\\S \\t t;,..,1„p. \\ '\\ \\\ \ , ,, \\ , a gtO \\ \` \ \\ \\ ., ill: \\„ _ \;\\\,c,„,.,.., ii.ity QS , \ \\ \ \\'\\ i \„, ,,, \ ; , \ ,, # 19 \,,\,,,,,,,,\,„ , , „, „,,, , ,„\ , , ,, \ \ t\t, , , .,... „ , , ,,,,, ,,,„„,,, \ \ \\\ '\, , \ \ . t),t,kielsi-.% 1:;t1i,, \\,, 43„,, , ,11,,i, ‘\ \q\\\ \ \\\\\ \ \\\ \`; \\. \ \\\, \\\\ \ \\\�\\�\�\\\\\\\\ \,\,,,,\'\\\\'\ \\\\ \\ \\„ \\ \' \\' \ \ \ '\\ ' \ '\'\\\\\ ' k\''t '''''''''''\''''tk '\N 2 - 3 Novenbr 2Oi \ ��\ \\\\ \\ \ \ \\\ U \\ , \kN 8 \ \\ \\ .., ,„\, ,\\, \ \ \\ \\ ,\\ „ \ \\ ,,, \ \ \,\ , ,„\ \ v\,\ \\ \ \ \\�\\,,2 \.\\ \ \\\\\�\\\, [To Bankers re loan Homeowners Agreement History.pdf •. .• MD-150093D Ex# 8 Pg# l HEARINGS OFFICER 74. . ' 4,,,. • DESCHUITEScOUNTYCOURTI4QUSE•+r= 2=• •; BPSlit7,gtEt40tVA77At•i • N<.,�ti aa,;dF,a. .-r'.="ryw_. :�: 'TA TT.t:r BONE 003)3$2400x,t er.223 FINDINGS AND DECISION FILE NO: CU-80-22 • APPLICANT: John Barton REQUEST: An application for a conditional use permit to allots a cluster development for two lots in a F-3, Forest Use Zone with a WA, Wildlife Area Combining Zone, and LM Lanscape Management Combining Zone. PLANNINTAFF RECOMMENDATION: • . Approval with conditions PLANNING STAFF REPRESENTATIVE: .Craig Smith PUBLIC NEARING: Public Nearing was held in the Deschutes County Just ica. Building, Bend, Oregon, on March 25, 1980 at. 7:00 P.M. 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 (15) of PL--15 of the Deschut County.Zoning Ordinance and Article I, Section 1 .03(: (25A) of P1-15. In addition must tweet the condi t tan:: of Procedural Ordinance PL-.9, Section 6.000. • FINDINGS: a A. Subject property: 1. Location: The subject property is located westerly of Si.t;emore Road, approximately one mile north of the Old 'Amato Dam ans is further described as Tax Lot 1414, Township 16 south, Runge 11 east, Section 19. 2. Zone: F-3, Forest Use Zone with a WA, Wildlife Area Combining Zone. 3. Comprehensive Plan Designptian: Agricultural and the Deschutes County Resource element of Ole p].ln designates the subject property to be within the deer winter range. 4. Site Description: The subject property is approximately 43 acres in site, and has a rock ledge which runs east and west across approximately the middle of the property. The property is within the Tumalo Winter Deer Rants. MD-150093D E,d# 8 Pg# rn_An_99 AMIN BARTON - PACE 1 [To Bankers re loan Homeowners Agreement History.pdfl Access viii. be prov.Sded.to.each lot by. Sisemore Road, a county,Hoed. The surrounding.Iropeety is zoned F-3, Forest Use and is withb e WA, Wildlife.Area-and 'Landscape Management Combining• Zones, as well. as all surrounding property. CONCLUSIONS: 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 guide 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' end -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 land uses., In addition the goals and policies of the Comprehensive Plan Year 2,000 con- cerning Fish and Wildlife indicate in pare 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 site 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 an 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 Coals which are applicable as follows: Coal Three - Agricultural Lands - not applicable. The subject property is within the Deschutes-Ueskamp and Cosney-Deschutes soil associations. These soils are generally considered Class Ail soils without irrigation. Therefore, this goal is not applicable to this case. Coal Four - Forest Lands - The subject is considered a low timber produtti.v-- 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 be minimal. DECISION: tai: MIS-150093D Exit 8 Pg# 2 Approval subject to the follows conditions; To Bankers re loan Homeowners A•raiment Histo .•df 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. 2. Prior to the sale of any lot a written agreement shall be recorded which establishes an acceptable homeowners association or agreement assuring the maintainance of common property in the partition. 3. .The common area shall not be used for any residential dwelling. 4. Any buildings shall conform to section 4.180 concerning the Landscape Management Combining lone '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. this1* day of April, 1980. Ll wr .fi Myer vedovech �r HEllfti S OFFICER MA:ch cc: file • John Barton Planning Commission Planning Department MD-150093D Di/ 8 Pg# 3 ITo Bankers re loan Homeowners Agreement History.pdf en_An_19 ,. 'num nADTnm - • WILLIAM JOHN KUHN 8c MARTHA LEIGH KUHN Post Office Box 5996 Bend, Oregon 97708-5996 (503) 389-3676 389-5483 4 June 1987 Denyse McGriff - CDD - Planning Division (503) 388-6575 Jeb Barton - Owner and Seller (503) 388-1854 Mark Burchett - Neighboring Affected Owner (503) 382-5893 Bend OR 97701 Dear Denyse McGriff. Jab Barton, and Mark Burchett, We are asking for a lot line adjustment prior to the purchase of Jeb's Sisemore Rd property. We desire to purchase a buildable lot and do not wish to buy anything that will prohibit the placement of a home at the top of the hill just to the west of the old test pit. We are asking the CDD department to deny the application if this Is not the case. We wish to have a southern exposure for a solar designed home, since the original site was mostly a ridge facing north west. We also wanted less impact on the Tumalo Winter Deer Range, by moving hte building site closer to the road we cause less Impact on their natural habitat. Bringing the back part of the property up closer to the road we can also deal with the side lot problems mentioned by Denyse and Karen. It also allows us to have the septic system near the house rather than down in the valley below. Once we have your approval we will then be able to have Mr. Colvin proceed with his survey. We appreciate your consideration on all this. Sincerely, aLAKIrLt,ki:L William Jo Kuhn Martha Leigh Kuhn CDD8706.ws4 MD-150093D End# 8 Pg# 1To Bankers re loan Homeowners Agreement History.pdf APP •CATION FOR A LOT LINE ADJ. ;MENT APPLICANT: William John Kuhn A Martha Leigh Kuhn PHONE: (503) 389_3696 SITE ADDRESS: Sisenore Road. ZIP CODE: 97701 PROPERTY OWNER: John Barton PHONE: (503) 3110-1854 (if different) SITE ADDRESS: 19671Sncm CreekRoad Bend, ZIP CODE: grivi PROPERTY DESCRIPTION: T 16 R 1:1. S19 Tax Lot: .t ADJOINING PROPERTY INVOLVED IN TOE LOT LINE ADJUSTMENT PROPERTY OWNER: ►dark Burchett PHONE: (403) 382-5893 SITE ADDRESS: Siseaore Road ZIP CODE: g pi PROPERTY DESCRIPTION: T 16 R 11 519 Tax Lot:_300 GENERAL LOCATION: West aide of Siseaore Road about 14 piles North of Ituaal_o Dika. REASON FOR ADJUSTMENT: sioncr ar heerne ire or a tar de i ed e �g� mo�y a r��ge tao�nnoreJ�t, we also wanted lees impact on the Tunalo Airr�er Miser'Range, by smovfng t e Tiul.id3np site closer to the road we cause less impact on their natural habitat. PRESENT ZONE OF APPLICANT'S PROPERTY: F-3000640 PRESENT ZONE OF ADJOINING PROPERTY: F-3 (wA1(tM) PRESENT AREA OF APPLICANT'S PROPERTY: appx 4.3 Acres AREA OF APPLICANT'S PROPERTY AFTER ADJUSTMENT: apex 4.3 Acres PRESENT AREA OF ADJOINING PROPERTY: apex 34.6 Acres AREA OF ADJOINING PROPERTY AFTER ADJUSTMENT: akpoc34,6 Acres PLEASE ATTACH A MAP DRAWN TO SCALE *e**************e*************ee** NOTE ********************ire*err, ***air** The proper form, signed by a representative of the County Assessor's Office, shall be attached, certifying: 1) All taxes for parcels are paid in full;. 2) The deeds are in the same name for all parcels to be adjusted or consolidated; 3) Accurate legal descriptions have been prepared for all adjustments. INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED ************************************************************************** 5 June 1987 pp can s gnu ure bate imp e / 1 4 June 19!19 roper y 0 ner s na ur- Date THIS APPLICATION MUST BE PROCESSED WITHIN THE 120-DAY DEADLINE .� OFFICE USE ONL' FILE NUMBER: -?1 DATE SUBMITTED 4-547 PPROY DE IED ph.�v131474.x�� ECEIVED BY: C•11-free94,.,r,,0 PAID:43S'po RNer Y,4;� �f:3 7 (7 a yC d.�. 4; j, 414 ,c1 game A► [To Bankers re loan Homeowners Agreement History.pdf o °c. FILE COPY �. Community Development Department 4.) Administration iron B klg./Bend,Ore9at 97701 (503)388-6575 June 19, 1987 8 7 planting Division Bung Safety Division Environmental Health Division Aeri Mr . and Mrs. William Kuhn 80780 River Bend Drive W Bend, Oregon N w RE: Lot Line Adjustment LL-87-21 m A Dear Mr. end Mrs . Kuhn: O We have Approved your lot line adjustment application subject to the following condition: '1 . Prior to the issuance of a building permit , the deed N restrictions to the Cluster Development on CU-80-22 shall be recorded with the Desoutes County Clerk to run with parcels to 1 ,2, & 3 of that land use application. 0 0 We were not able to find that these restrictions were recorded ✓ with the parcels . iTh!s was .a condition of approval on thel 1conditional use permit.) If you have any concerns or questions , please contact this H office. Tf Sincerely, '0d DESCHUTES COUNTY PLANNING DIVISION Craig J. Smith, Director Note: ' Mark D. ship The Deed Restrictions were NOT a Assistant Planner condition of approval. They were MDS/cd CP3-22 however mentioned in the application cc: John Barton process. Mark Burcbett Denyse NcGrirf It was the Homeowners' Agreement that was a condition of approval. rn ta CDD should have asked for a rr- Homeowners' Agreement. co cit Lip Bankers re loan Homeowners Agreement History.Pdf i MD-150p93D Exit 8 Pg# • • William John Kuhn Martha Leigh Kuhn PO Box 5996 Bend,Oregon 97708-5996 Phone:(5411389-3676 Wednesday 15 January 1997 Dennis Perkins,Director w 541 388 6576 Deschutes County Building Department ,ti 14 is /7/,„ Administration Bldg. fi '¢ , Bend, Oregon 97701 m 3,341997 N Regarding B34821 at 65595 Sisemore Road. ` Dear Dennis, ,I szti� In 1988 when we submitted our plans to the county we were asked to provide a copy of the Home-owners Maintenance Agreement on the common property(tax lot 390)owned.by us and our neighbors.The request was made by Mark Shipman,Assistant Planner under Craig I. Smith, Planning g Director before the county would proceed with any permits.A copy of the county's request is attached. In 1990 the Dowel's purchased their building site and their half of the jointly owned land.Please note that the Dowell's purchase agreement knot cover the provisions required by the original CU-80-22 dated 3 April 1980 and signed by Myer Avedovecb,Hearings Officer. When the Dowell's applied for their permits,did they provide you with a copy of the Home- anglers Maintenance Agreement?lithe county does have this agreement on file then we would like a copy of the agreement that was submitted.Presumably our names are on It and we should be able to have a copy of something we signed.(Why would the county require us to submit a . copy and not require theDpweli's to submit a copy?)If you do not have.a copy of their . Agreement are you the county using the agreement that was submitted by us in•1988.If you are then we would like to have it copy of that agreement and a letter from you that says you are using that document even though it does not have the Dowell's signature on it. Ifthere is no agreement on record we ask that you not proceed with any current permits,and we ask that you not approve any further permits Until you have received a copy of a Home-owners Maintenance Agreement signed by both the Dowell's and us. Sincerely, The County told us we had to file a complaint we did. The County could have acted prior to • i4< the final approval - they didn't. !/u f;t •� William John Kuhn _ A-�7--! WJI Document*11 E Dennis Perkins ) No 40A Jot* a'1f97 OttlectiVetserftikrlatrlee Pop I en 4701 IS 07:41 MD-150093D ENS $P# 2. f ro Bankers re loan Homeowners Agreement History-pdfJ William John Kuhn Martha Leigh Kuhn PO Box 5996 Bend,Oregon 97708-5996 Phone: (541) 389-3676 Thursday 30 September 2004 David DeCourcey, VP DesCo Manager ddecourcey@FirstAm.com FirstAm.com First American Title Insurance Company of Oregon w 541 382 4201 395 SW Bluff Drive Suite 100 fax 541 389 5431 Bend, OR 97702 Re: Policy#D-106814-E and Loss of Ability to Economically Benefit from the Sale of Our Property because of having a deed to a parcel that apparently does not legally exist,and a title that may not exist. Dear David DeCourcey, Our properties are located at 65575 Sisemore Road and our location is Township 16 -Range 11 - Section 19,NE corner tax lots 200 and 300 at mile marker 3.3 on.Sisemore Road. This September we found out that according to both County Ordinance and State Law,we cannot sell our property based on Deschutes County's oversight of never recording the final plat map for MP-79-232,as they were required to do. We believe that during the MP-79-232 and CU-80-22 process the County may have negligently misrepresented itself in granting a cluster development to John E. Barton on his original parcel.A contract was entered into by Mr.Barton with the County. By failing to record the MP-79-232 map the County never completed their end of the contract. It may or may not be true that because the County has allowed permits and a conditional use on our property,we could withhold the recently discovered information and sell the property; however,based on ORS 92.018 it would be possible that we could be held liable for damages to the buyer of these properties. Any involved realtor, insurance company,etc. possibly could also be held liable. Deschutes County Chapter 17.24.150.Recording.A.No plat shall have any force or effect until it has been recorded. No title to property described in any dedication on the plat shall pass until recording of the plat. ORS 92.025 Prohibition of sale of lot or conveyance of interest in parcel prior to recordation of plat; waiver.(1)No person shall sell any lot in any subdivision or convey any interest in a parcel in any partition until the plat of the subdivision or partition has been acknowledged and recorded with the recording over of the county in which the lot or parcel is situated. ORS 92.018 Buyer's remedies for purchase of improperly created lot or parcel.(l)A person who buys a lot or parcel that was created without approval of the appropriate city or county authority may bring an individual action against the seller in an appropriate court to recover damages or to obtain equitable relief. The court may award reasonable attorney fees to the prevailing party in an action under this section. We believe that if our properties were to be sold today without this major defect they would bring a sale price of somewhere between$600,000 and$1,100,000 based on acreage and view. c:wocs\praposisuhavuo93afinu ntinoossOraconomicbenefitdoc Popp i or3 MD,150093D E' # 8 "o' [ITo Bankers re loan Homeowners Agreement History.pdf It is not acceptable to us to have any assurances or warranties from the County less than the recording of the map with full force and authority to all aspects and rights of the map as it was created for the MP-79-232 as required by both Deschutes County code and state statutes. Although First American Title Insurance Co may consider we have a title since we have a deed, it is essentially a title and deed to something that doesn't exist as a legally recognized property. Also,we can't pass this title to anyone,apparently including heirs or charitable organizations. According to Deschutes County Chapter 17.24.1 S0 quoted above,where does this leave us regarding the validity of our title? Sincerely, Aftat;P- V- William John Kuhn WJK/k MD-150093D Ex# 8Pg# c:WoceNpmp655731kuhO1040930 finuuatitle km ofawaauicbene64.docPost 2 of 3 04 10 04 !!:*! To Bankers re loan Homeowners Agreement History.pdf s A M E R f c First American Title Insurance Company of Oregon An assumed business name of TITLE INSURANCE COMPANY OF OREGON * 395 SW Bluff Drive, Suite 100 P.O.Box 323,Bend,Oregon 97709 Phone:(541)382-4201 •Fax:(541)389-5431 October 4,2004 Mark Pilliod,County Council Deschutes County 1130 NW Harriman St Bend,Oregon 97701 Re: William and Lee Kuhn Dear Mark, I have been contacted by William and Lee Kuhn. They have property on Sisemore Road that was created by Minor Partition 79-232. Their concern is that their Minor Partition was never recorded with the County Clerk, in accordance with the County Ordinances in place at the time. There appear to be literally hundreds of Partitions which were approved but never recorded. From my perspective at County Manager for First American Title I see this as a potential problem in that there are partitions that reflected restrictions, easements and or right of ways and other specific items that are not shown elsewhere of record. Literally, recording was to give constructive notice of these items. William and Lee have sought to have their partition recorded and have to this point been rebuffed by the county in their efforts. I must ask if there is a reason for this refusal, and further if there is a reason that the County has not administered their own Ordinances and recorded these partitions. 1 urge you to consider recording the partitions. I would think that at a very minimum some curative action should be taken by the county for legal recognition of the parcels created in the partitions. 1 would welcome the opportunity to talk with you further concerning this issue,please feel free to call me at 382-4201. Sincerely, David R. DeCourcey,County Manager First American Title Insurance Company of Oregon MD-150093D Exit Pg# / ITo Bankers re loan Homeowners Agreement History.pdf / Community Development Department pAW RA Planning Division Building Safety Division Environmental Health Division ... :.:.:.. .. .::�:, h�, ,..a.,.v;>"a. 4.,.,5:••• �` •5...•.,...v...{xr:,;Ca.s,'" },is,�gar N ab, a , '�, ... ,. . s�5} .>Y i"nv;aS?:i•�b`�`s�'�;.���a;'ti0�C46 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ CERTIFICATE OF MAILING FILE NUMBER: A-09-4,A-09-5,A-07-9 DOCUMENT MAILED: BOCC Decision MAP AND TAX LOT NUMBER(S): 16-11-19 Tax Lot 100 I certify that on the 24th day of February, 2010, the attached Staff Report, dated February 24th, 2010, was mailed by first class mail, postage prepaid, to the persons) and address(es)set forth on the attached list. Dated this 24th day of February,2010. COMMUNITY DEVELOPMENT DEPARTMENT By: Bend Mailing Services William and Martha Leigh Kuhn Robert S. Lovlien P.O. Box 5996 Bryant, Lovlien&Jarvis, PC Bend,OR 97708 P.O. Box 880 Bend, OR 97709 Pat and Jeff Dowell Pam Hardy 10705 NE 38th Ave 1629 NW Fresno Ave. Vancouver,WA 98686 Bend,OR 97701 MD-150093D Exit 8 Pg# IL [To Bankers re loan Homeowners.Agreement History.pdf Quality Services Performed with Pride REED LEGAL COUNSEL IFor Recording Stamp Only DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS FILE NUMBER: A-09-4,A-09-5,A-07-9 APPELLANTS: William and Martha Leigh Kuhn P.O. Box 5996 Bend,Oregon 97708 APPLICANTS! PROPERTY OWNERS: Jeff and Pat Dowell 10705 N.E. 38th Ave Vancouver,Washington 98686 APPLICANTS' ATTORNEYS: Robert Lovlien Helen Eastwood Bryant Lovlien S Jarvis P.O. Box 880 Bend, Oregon 97709 APPELLANTS' ATTORNEY: Pamela Hardy 1629 N.W. Fresno Avenue Bend,Oregon 97701 REQUEST: Appellants appeal a Hearings Officer decision reversing the Planning Division's decision to issue a LUCS and building permit to remodel the DowelIs' existing dwelling on the subject property (A-07-9). STAFF REVIEWER: Will Groves,Senior Planner RECORD CLOSED: November 6,2009 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 15 of the Deschutes County Code, Buildings and Construction 1. Chapter 15.04,Buildings end Construction Codes and Regulations * Section 15.04.150, Building or Mobile Home Placement Permit Issuance- Zoning and Subdivision Conformance MD-150093D Ex# 8 Pg# C�" A-09-4,A-09-5,and A-07-9 Document No. 2010-128 Page 1 of 7 To Bankers re loan Homeowners Agreement History.pdf DC 201C:1 ' 1 2 9 B. Title 18 of the Deschutes County Code,the Deschutes County Zoning Ordinance 1. Chapter 18.08,Basic Provisions *Section 18.08.010,Compliance 2. Chapter 18.40,Forest Use Zone(F-2) *Section 18.40.020, Uses Permitted Outright 3. Chapter 18.84,Landscape Management Combining Zone(LM) *Section 18.84.030,Uses Permitted Outright 4. Chapter 18.88,Wildlife Area Combining Zone(WA) *Section 18.88.030, Uses Permitted Outright 5. Chapter 18.144,General Provisions *Section 18.144.050,Violation C. Title 22 of the Deschutes County Code,the Development Procedures Ordinance 1. Chapter 22.04,introduction and Definitions *Section 22.04.020,Definitions 2. Chapter 22.16,Development Action Procedures *Section 22.16.010,Review of Development Action Applications *Section 22.16.030,Review of Development Action 3. Chapter 22.24.Land Use Action Hearings *Section 22.24.030,Notice of Hearing or Administrative Action 4. Chapter 22.32,Appeals *Section 22.32.010,Who May Appeal *Section 22.32.015,Filing Appeals *Section 22.32.020,Notice of Appeal *Section 22.32.050,Development Action Appeals 5. Chapter 22.34,Proceedings on Remand *Section 22.34.020,Hearings Body *Section 22.34.030,Notice and Hearings Requirements *Section 22.34.040,Scope of Proceeding A-09-4,A-09-5,and A-07-9 Document No.2010-128 Page 2 of 7 [To Bankers re loan Homeowners Agreement AID-114)093D Ex# 8 Pg# ory.p Ii. INDINGS QE FACT: The Board of County Commissioners ("Board") adopts and incorporates herein by reference the findings of fact proposed by the Hearings Officer in the August 17, 2009, decision, as revised and supplemented herein. A. Procedural History: Procedural history prior to August 17th, 2009 is documented in the Hearings Officer's decision and is incorporated herein by reference. In a decision dated August 17th, 2009,the Hearings Officer reversed the Planning Division's decision to issue a LUGS and building permit to remodel Jeff and Patricia Dowells' existing dwelling on the subject property. A timely appeal was filed by the Dowells(A-094)on August 28,2009 and by William and Leigh Kuhn(A-09-5)on August 31,2009. In Order 2009-061,dated October 5,2009 and incorporated herein by reference,the Board agreed to hear both appeals limited de novo, limited to the specific type of new evidence listed in the order. Pursuant to DCC 22.32.025, the appeals were consolidated and noticed and heard as one proceeding. As specified in Order 2009-061, the written record closed on November 6, 2009. On January 25,2010, the Board deliberated and rendered a decision that is documented in this findings and decision document. Ill. CONCLUSIONS OF LAW: A. Adoption of Hearings Officer's Conclusions of Law FINDINGS;The Board adopts and incorporates herein by reference the conclusions of law adopted by the Hearings Officer in the August 17,2009,decision,as revised and supplemented herein. LNERITS OF APPEAL B. Title 15 of the Deschutes County Code, Building and Construction 1. Chapter 15.04,Building and Construction Codes and Regulations a. Section 15.04.150, Building or Mobile Home Placement Permit - Zoning and Subdivision Conformance No building permit or mobile home placement permit shall be issued If_the parcel of land upon which the building or mobile home is to be erected or located on, or is located on,would_be in violation of DCC Title j7. the subdivision title or DCC Title 18, the zoning title. A subdivision shall be deemed in violation of the zoning ordinance for the purpose of issuing building permits so long as roads and other improvements remain uncompleted in accordance with the applicable subdivision provisions. (Emphasis added.) FINDINGS: The Land Use Compatibility Statement (LUCS) and building permit subject to this appeal were Issued pursuant to this section,which was adopted by the county to comply with the state agency coordination requirements of ORS 197.180 and OAR Chapter 660, Divisions 30 and 31. The above-underscored language in Section 15.04.150 states the review required by this code section is directed at determining the lawfulness of the paroel on which the building is to be located. MD-150093D Mt 8 Pg# A-09-4,A-09-5,and A-07-9 Document No.2010-128 Page 3of7 1To Bankers re loan Homeowners Agreement History.pdf The subject parcel was created as part of a duster development and partition(CU-80-22/MP-79- 232). The conditional use approval for the duster development, CU-80-2, included a condition of approval that required: 2. Prior to the sale of any lot, a written agreement shall be'worded which establishes an acceptable homeowners association or agreement assuring the maintenance of common property In the partition. Initially, the Board finds that PL-15 was the operative zoning ordinance when CU-80-2 was approved. PL-15 was later codified as Title 18. Thus, the Board finds that DCC 15.04.150(a) applies to the conditions of approval detailed in CU-80-2. The Board finds that, while the property has been sold, no such homeowners association or agreement assuring the maintenance of common property in the partition has been recorded. The recorded deed restrictions, dated July 20, 1987, do not indude provisions to assure the maintenance of common property in the partition nor do they create a homeowners association. Although the condition was to be fulfilled prior to the sale of the property, the Board cannot ignore such a condition merely because the property was sold without fulfilling that condition. Many other land use decisions have included prior to sale conditions. To find that no violation occurred if they are not fulfilled prior to sale would render such conditions useless and superfluous. No applicant would take seriously any prior to sale condition knowing that the County will not enforce It If they Ignore it. The Dwells' requested building permit for an interior remodel of their existing dwelling is an alteration of a building in violation of a permit, specifically condition#2 of CU-80,which permitted both the creation of the subject parcel and the development of a dwelling on the subject parcel. The County's issuance of a building permit for the dwelling without that homeowner's agreement in place does not, however,automatically excuse the fulfillment of that condition. At the time, no official governing body decision on the matter had occurred and staff issued that sign-off using the best information they had at the time. The County is not obligated, however, to compound its previous mistakes in issuing a land use compatibility sign-off for the remodeling permit. Therefore, the Board finds that the parcel violates DCC Title 18 because of the tack of the existence acceptable homeowner's association regulations or agreement between both property owners for the maintenance of the open space parcel. Because the parcel violates DCC Title 18, the issuance of the remodeling 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 the agreement to determine that it"assures the maintenance of the common property." C. Tile 18 of the Deschutes County Code,the County Zoning Ordinance 1. Chapter 18.08,Basic Provisions a. Section 18.08.010,Compliance c MD-150093D Ex# 8 Pg# . A-09-4,A-09-5,and A-07-9 Document No.2010-128 Page 4 of 7 To Bankers re loan Homeowners A•reement History,pdf I A. A lot may be used and a structure or part of a structure may be constructed, reconstructed,altered,occupied or used only as DCC Title 18 permits. No new structure shall be constructed on any lot of less area than the minimum for the zone in which it is located, except as provided by DCC Title 18 and ORS 21.203 et.seq. 2. Chapter 18.40, Forest Use Zone— 2 a. Section 18.40.020, Uses Permitted Outright M. Alteration, restoration or replacement of a lawfully established dwelling that: 1. Has intact exterior walls and roof structure; 2. Has indoor plumbing consisting of a kitchen sink, toilet and bathing facilities connected to a sanitary waste disposal system; 3. Has Interior wiring for Interior lights; 4. Has a heating system;and 5. In the case of replacement, is removed, demolished or converted to an allowable use within three months of completion of the replacement dwelling. 3. Chapter 18.144,General Provisions a. Section 18.144.050,Violation The location, erection, construction, maintenance, repair, alteration or use of a building or structure or the subdivision, partitioning or other use of land in violation of this title or of any permit, land use approval or status determination issued or made under DCC Title 18 is a Class A violation. FINDINGS: The subject parcel was created as part of a cluster development and partition(CU- B0-22IMP-79-232). The Board found above that the parcel is in violation of DCC Title 18. For this reason, the Board also finds that dwellings within the subject partition are not lawfully established until a written agreement is recorded that establishes an acceptable homeowners association or agreement assuring the maintenance of common property in the partition. As for the issue raised by the Kuhns of the maximum setback from Sisemore Road for building the dwelling, no code provision existed in 1980 that established a maximum setback on the subject property. MD-150093D Exit 8 Pg# l ' A-09-4,A-09-5,and A-07-9 Document No.2010-128 Page5of 7 ITo Bankers re loan Homeowners Agreement History.pdf The record indicates, however, that Mr. Barton proposed a 400-foot maximum building setback from Sisemore Road in order to address the Oregon Department of Fish and Wife's(ODFW) concerns about protecting the Tumalo Deer Winter Range that was about to be, but had not yet been, designated on the county's comprehensive plan and protected through adoption of the WA Zone (which later included a 300-foot maximum building setback from roads). it is uncertain whether or not Mr. Barton proposed the maximum setback from the road,and showed It on the partition plat, in order to secure the county's approval of the partition and cluster development or merely as a gesture to ODFW. Thus. it is doubtful that the 400 foot designation on the 1980 plat, by itself, would have been enforceable by the County. The Dowells, however, are now bound by that maximum setback because,in 1992, the Dowel's submitted a Landscape Management(LM)site plan containing a notation that the dwelling would not be built beyond the 400-foot road setback in order to obtain site plan approval for their dwelling. Additionally, in that LM site plan approval decision, Deschutes County planner, Paul Biikstad found that the 400-foot designation was applicable to the property and that decision was not appealed-. The record, however, includes a number of theories regarding which portions of the subject property fall within this 400-foot maximum setback: 1) The area between the line shown in Partition Plat 2004-80 labeled "Max. Bldg. Setback 400'from Sisemore Rd."and Sisemore Road. 2) AN areas on the subject property within 400 feet of Sisemore Road, as measured from the subject property's frontage along Sisemore Road. 3) All areas on the subject property within 400 feet of Sisemore Road, as measured from all points on Sisemore Road,regardless of frontage. The Board finds that the establishment of the Kuhn dwelling under County File No. LM-88-7 and Building Permit B26266 within the subject partition set a dear precedent for using measurements other than the line shown in Partition Plat 2004-80 as a basis of complying with the 400-foot maximum setbaclk. The Board also notes that the purpose of a maximum road setback within a Wildlife Area is to minimize wildlife habitat fragmentation by keeping new residential development adjacent to existing roads. The Board finds that this goal is not advanced by arbitrarily tying the measurement of the 400-foot maximum setback to a specific segment of road frontage. Therefore, the Board finds that the 400-foot maximum setback includes all areas on the subject property within 400 feet of Sisemore Road, as measured from all points on Sisemore Road,regardless of frontage. The record indicates that the Dowell dwelling falls within 400 feet of Sisemore Road, as measured from all points on Sisemore Road. Therefore, the Board finds that the Dowell dwelling complies with the 400-foot maximum setback. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Board affirms the Hearings Officer's August 17, 2009dedsionto REVERSE the Planning Division's decision to issue a LUCS and building permit to remodel the Doweils' existing dwelling on the subject property but on different grounds as stated above. MD-150093D Exit 8 Pg# l A-09-4,A-09.6,and A-07-9 Document No.2010-128 Page 6of7 ITo Bankers re loan Homeowners Agreement History.pdf Dated this ? of i BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY,OREGON DENNIS R. LUKE,ChiIr altUt_ elk ALAN UNGER,Vice C117— h i ATTEST: 6)114.44AL 45r1111A.— q-A - Recording Secretary TAMMY BANEY, Commissk,j er MD-150093D Ex# 8 Pg# ) c" A-09-4,A-09-5.and A-07-9 Document No.2010-126 Page 7 of 7 (To Bankers re loan Homeowners Agreement History.pdf Page I of I William Kuhn From: "Dave Kanner" Dave_Kanner @co.deschutes.or.us> To: <william @riskfactor.com> Sent: Wednesday,January 19, 2011 8:22 AM Subject: Answer to your question Mr. Kuhn (bcc: Board of Commissioners)— At the Board of Commissioners meeting of January 12,you requested an answer to the following question: "What is the proper process for me to follow to obtain a building permit in light of the County ruling that a homeowner's agreement must be recorded with the County prior to the issuance of further building permits?" The answer to your question is: You and the Dowells must submit and record a written. homeowner's association or homeowner's agreement that is acceptable to the County, assuring the maintenance of the property in your partition. The agreement must be submitted to the Community Development Department, which will review it to determine that it assures the maintenance of the common property. Once the County notifies you that the agreement is acceptable,you will need to provide the Community Development Department with proof of the recording of the agreement in the Deschutes County Official Records. Then,you can apply for the building permit by submitting the appropriate plans and permit fee deposit. The County Building Division can assist you with this last step. You can submit the homeowner's association document or homeowner's agreement to the county at the same time as you submit the plans and fee for the building permit. The building permit, however, will be issued only after the County notifies you that the agreement is acceptable and you provide the Community Development Department with proof of the recording of the agreement in the Deschutes County Official Records. Regards, Dave Kanner County Administrator Deschutes County 1300 NW Wall St. Ste.200 Bend,OR 97701 541-388-6570 541-385-3202(fax) MD-150093D Exit 8 Pg# f9 To Bankers re loan Homeowners Agreement History.pdf 1 1/19/2011 \, \ h a Quf *ssesr \e cu '2' ‘,‘,'‘,,,‘,,,‘,,,:‘;'",‘ , , ' '‘,',,‘2,,,,,,,,,‘,2,,,\'',',0,2:',, ,,,- -‘‘,,„‘„,,‘„,,,,, ',',,,‘,,'‘,,,,, ' ., \-,,,v„'„,,,,,,,,,,e,,,,,,,„,„,,,,,,,,',,,,,, -',;,,,‘,,,, ,,;',„2,,,,r,,,„, ,,‘,,,,,iii ,,..,,‘2,\'.' ,.,,t,1,,,',,i,,k:',- „' ;,,,.%;,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,‘,', ,,,,„ 93D rix,ff., 7: ' . ''''1,15;:,p„,',,, ," s ., ,, ' ' ' \,$% ',,'',,','' '`,, 7, ,x4,,,,,,,.,,,s,,,,, ,15, ,„ 0 \\ . 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The permit fee for a demolition permit is$176.40 and it can be issued across the counter. There will be one inspection when the building is gone and the site cleaned up. The inspection is to make sure all has been cleared and there is not any hazards left,such as wires and things. If the demolition is for a house and there is an existing septic system that will no longer be in use there is also a Tank Abandonment permit needed from the Environmental Soils division also in our department. This is also a permit that can be issued across the counter. The fee for this permit is $160.00 Hope this answers all your questions. Judy 541-385-1713 . ........ ......... From:Cynthia Smidt Sent: Monday, February 07, 2011 8:49 AM To: Lai Furlong; Marti Mello;Judy Hackett; Lisa Petersen Subject: FW: 2 questions re DEMOS Could I get a tech to answer this inquiry? Thanks. From:William Kuhn [mailto:wllliam@riskfactor.com] Sent: Sunday,February 06,2011 6:03 PM To: Cynthia Smldt Subject: 2 questions re DEMOS Hi Cynthia, Thank you for helping to obtain the answer to the date of the change in address for the Lowther parcel. Regarding"DEMO"s: So if someone wants to deconstruct their home a land use permit is required? What the cost is for a"DEMO" since the value is listed as zero? Examples are: B69924 10/18/2010'181124C004900 19360 INDIAN SUMMER RD,BEND DURFEE,JAMES OWNER 0 DEMO MAHO DESCHUTES RIVER WOODS B70109 1/21/2011 '1611190000400 65556 KOHFIELD RD,BEND LAVONDA J LOWTHER LIVING TRUST SHORTYS INC 0 DEMO 0 B70143 2/3/2011 '171215DD01400 21131 BEE TREE LN,BEND STEVENS,SCOTT X MD-150093D Ex# 9 Pg# 2/7/2011 Page 2 of 2 120110207 email DEMO fee $176.40.pdf OWNER 0 DEMO BEE TREE SUBDIVISION Thank you, Bill William Kuhn INVEST/0 -Registered Investment Advisors PO Box 5996 Bend,OR 97708-5996 541 389 3676 William ce,RiskFactor.com "First,they ignore you,Then they laugh at you.Then they fight you.Then you win." 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FROM : i1L.o REAL ESTATE INC FAX NO. : 1 541 382 0649 Apr. 03 2000 04:01PM Pi 120000403_Turnalo Real Estate 2 kwj Value Of Our Property TUMALO REAL ESTATE,INC. MD-150093D ENEt 10 P # _11Q,S 64619 W Hwy 24 Bend OR 97701 (541)382-0288 April 3,2000. Mr. William Kuhn P.O.Box 5996 Bend OR.97708-5996 Re: 65575 Sisemore Road,Bend Dear Mr.Kuhn, As per our telephone conversation this morning,I am happy to provide you with my opinion concerning your property at 65575 Sisemore Road and it's common area& PUD status.I understand from our conversation that there is no written or recorded document which provides for the manner in which issues that effect your property and ft's common area with the neighbor at 65595 Sisemore Road. 1 have been in the real estate brokerage business for 28 years and have specialized in acreage properties to the Tumal°area for the past 8 years.I am not an appraiser and therefore I cannot speak to the actual value or in this case loss of value due to the lack of written provisions for your PUD.However,my experience with buyer's.espechdly in recent years is that they are far more cognitive that ever.Most buyer's would make it a condition of purchase that shared maintenance issues and clarification of use be in writing and recorded before they would purchase such a property.There is no doubt in may mind that the lack of such a document would deter most buyers from buying.Should a buyer be willing to bear the risks involved in such a situation,they would certainly expect a significant price reduction on the property. Further,a seller,and/or a seller's agent,has a duty to disclose to a buyer any material dofbct to the property known to then.In this case,my opinion is,that the lack of an agreement is a material float effiaotting the value of the property end therefore would require disclosure of same to prospective buyers. I suggest you contact a real estate attorney for legal counsel in this matter. If you need any further information. S„ .., .1/ Barbara L.btiaho o Brokrer 120000403_Tumalo Real Estate 2 kwj Value Of Our Property 1 • MD-150093D Exit 10 Pg# • Financial Corp. Northwest Division 120110202 Skyline Financial Trina OBill.pdf February 2,2011 William Kuhn PO Box 5996 Bend,OR 97708-5996 Dear William, I am responding to your inquiry about the feasibility of financing your home with the current Home Owners Association issues that you have been dealing with for years. After reviewing the paperwork you provided to me, it is clear to me that I would not be able to finance your home(or any other one with the same issues you are dealing with). Sincerely, NAM 61'62'— Trena O'Bill Mortgage Loan Officer 1180 SE Division St,#1,Bend,OR 97702 541.788.3005 Mobile 541.306.3700 Office!541.306.6641 Fax Trena @Trena4loans.com http://northwest.skylinefinancialcorp.com/trenaobill>� Individual NMLS 0 130701;ML 02797; Corporate NMLS 0313768 MD-150093D Fes# 10 Pg# 2-- 120000403_Tumalo Real Estate 2 kwj_Value Of Our Property OCR.pdf 1 180 S.E. Division Street, Suite 1, Bend,OR 97702 I Phone(541)306-37001 Fax(541)306-6641 www.SkyIineFinanelalCorp com eit Corp NMLS•313768 1 ML#2797 I DOC#413-0296 [20110205 from Rockland Dunn US Bank.pdf February 5,2011 William&Martha Kuhn PO Box 5996 Bend,OR 97708 RE: Potential Financing of Sisemore Rd. Property Dear William&Martha: Thank you for contacting me regarding the potential financing of your home located at 65575 Sisemore Rd.,Bend,OR 97701. Unfortunately,without the legal ability to obtain a building permit at this time,US Bank would be unwilling to extend credit in the form of a mortgage with this particular home as collateral. US Bank is not willing to take the risk of lending against a property that cannot be re-built or properly maintained. The most obvious concern,but not limited to,would be if the home were damaged in any way,with no legal ability to replace the existing structure,the bank would be at risk of an insufficient asset to cover the outstanding liability. I am sorry that we are unable to help you at this time but if you have any questions or would like additional information please do not hesitate to contact me. Sincerely, Rock(and (Dunn Rockland Dunn. Mortgage Sales Manager 86 SW Century Drive Bend,OR 97702 (541)633-1205 Rockland.Dunn @USBank.com 120110205 from Rockland Dunn US Bank.pdf MD-15O093D ENii 14 Fg# usbank.com r:- :; PROPERTIES LLC PONDEROSA E . , 20110214 Rad Dyer Ponderosa Properties.pdf February 14,2011 William and Martha Kuhn PO Box 5996 Bend,OR 97702 Dear Bill and Leigh: Thank you for asking me to come by to view and evaluate your property located at 65575 Sisemore Road, Bend,OR 97701 relating to the possible market value and potential sale in the current market. Prior to meeting with you I reviewed the public data available online from Deschutes County in DIAL and LAVA. This research brought to my attention some deficiencies in the subject property and your neighboring property that have a severe adverse impact on value and potential sale. These issues pertain to a Deschutes County decision to not issue building permits based on the lack of a written Homeowners Association Agreement with your neighboring property. Another issue relates to whether or not the recorded partition and conditional use application was completed properly. In discussing these issues while visiting your home you agreed that they were correct and that they remained unresolved at this time. You also indicates)that the Dowells who own the neighboring property have been uncooperative hi resolving these issues even while under a court order to do so. These issues have a tremendous negative impact on the market value of your property and also make it nearly impossible to sell your property until they are resolved. Based on the current status and circumstances relating to your property I.can neither provide you a market value estimate or consider listing the property for sale until this is cleared up In a satisfactory manner. You have a beautiful home and setting and 1 regret not being able to help you more at this time. WI can be of further assistance or if you have any questions please feel free to contact me. Best i ; i s, t / / F 0 Rad Dyer,ABR,ABRM,AL.C,CCIM, RB,CRS,a-PRO,GREEN,GRI,REPS,SFR,SRES Principal Broker RAD/QQOI111 20110214 Rad Dyer Ponderosa Properties.pdf > MD-150093D ER# 10 Pg# (541)549-2002 Bus. •P.O.Box 1779.221 S.Ash•Sisters,OR 97759•(541)549-3570 Fax•wwwponderosaproperties.com August 10, 2012 To the Board of County Commissioners Deschutes County Service Center 1300 NW Wall Street, 2nd Floor Bend, Oregon 97701 Dear Deschutes County Commission, William and Leigh Kuhn have asked me for my observations on how the county has dealt with the Kuhn's property situation over time from my perspective as a real estate agent and friend. I'm quite familiar with the property they bought in 1987, both before they purchased and afterword. I've hiked and ridden my horse over that entire area since 1970. I know what the original intent was for that land. I was a member of the original group discussing what became the Tumalo Winter Deer Range study area. The Bartons (John Barton sold William and Leigh their parcel) had a vision and worked with ODF&W to reduce the human impact on the wildlife habitat. The Kuhns were aware of this history when they purchased. They honored both the letter and the intent of the Winter Deer Range in all stages of their building and land use process. The difficulties began when Jeff and Pat Dowell purchased into the cluster. I sat through and spoke at several hearings and witnessed the contortions the county made on behalf of the Dowel's. What the Kuhns have gone through to preserve and protect their deed restrictions, the county ordinances, the state statutes in Senate Bill 100, and the wildlife use of their land, was demeaning, unbalanced, and overreaching. The cost to the Kuhns in real dollars, their time, their health and well- being has been unconscionable. 20120810 Gainsforth to BoCC re Histo pdf � ry� 1 MD-i50093D Ex4 10 Pg# � The issue for the county to address is that the enforceability of building lines on plat maps appears to be jeopardized by the ruling of the Board of County Commissioners reversal of the decision of a Hearings Officer's ruling (A-07-9 and A-09-4) on the Dowell building line. The County's decisions appear to be punishing the Kuhns, unreasonable, slanted, and dishonoring of the intent for wildlife corridor preservation. Sincerely, Patricia Gainsforth cc: William & Leigh Kuhn [20120810 Gainsforth to BoCC re History.pdf MD-150093D ExEi 10 Pg# 20140204 Gainsforth Quiet Enjoyment Letter .pdf February 4, 2014 To William and Leigh Kuhn PO Box 5996 Bend, Oregon 97708-5996 Regarding the fair market value of your property Dear William and Leigh, I find it difficult to identify a fair market value for your property in its present status with the ongoing actions regarding the CC&Rs and the missing homeowners' agreement. I read the planning department information, reviewed court documents, consulted with my title company, and relied upon my own experience to address the present and fair market value of your property. You're in a unique situation in that when you purchased the property you live on, it came with certain covenants that are unenforceable. At this moment the lack of enforceability has these properties out of compliance with the original intent. Deschutes County has not supported you in your efforts to enforce the few restrictions that were available to you when you purchased your property. As a member of the original community group that initiated the Tumalo Winter Deer Range concept, I am disappointed that the 1979 land use plan did not address the deer range protections adequately. At the moment there is only complaint driven enforcement of wildlife protections and most protection is being done by landowners. 20140204 Gainsforth Quiet Enjoyment Letter . df 15O O93D E lO F�# At the moment I don't feel I can give you a true market value on your property as technically your property is unsalable until there is an agreement that is signed and recorded. I consider your property valueless until you are able to unscramble the present impasse. In the meantlrne You Can not assure a purchaser of"quiet enjoyment" and unclouded title; therefore a real estate broker would have fiduciary issues around representing your property to other brokers and potential purchasers. Right now you have a place to be warm, and you have a view, but you also have neighbor issues. What that is worth to you Is different than what can be represented by realtors, and title companies to potential purchasers. The Kuhns are willing to pay taxes for a place to be warm. Our taxes must reflect the lack of Sincerely, quiet enjoyment and clouded title • if based on the governmental - /,/ restrictions. Patricia M. 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',••,,.•....•.••••••••••,,•.,..•...•.,•:,•:........,••.,..•••••'.." .‘.:...,..‘.....,..• .............• ..,..............:'....,,...,:•••:.....•:•.‘...‘::•...,.. ....,,.,N1 • .... .. ••,;,.,:.,.„..,•,,..,,.,,:•„.,.,.,,,.,•,H.....,.• ••••••••••:,,,..j,,,.,:•:.•,.....;••,•••••.,,.:•....,...:...,.,:,.,.,.....,........ •,,4„,.,...i,.,.,:.•••••••••• ............,,.... ,,,..„2.,,,,••••• ••••••••?•••••• •••••,.„.....,,,,...,•,,,•:•,,.,:.•.\.,..,...,..... „.,....,..,..,.. •••••...,•,..:,:••••:..:•••••,,f........,..............•:„„...•••,H....,...,.,..,..•:.•,,,,‘,„,.. ,0\.\a•utl.•.••••••••••;,...,,.:„.,......,:,•,,...2,,,,,,,,,,„„••,,,,s.„.....,.,.,....,.,..,:•,..,,•••,, • •••Kuhn v DesCo Assessor MD-150093D Ex 11-20 —29 pgs.pdf 38pgs as pdf y, °` ORS 40.190 Rule 408 Compromise and offers to compromise.pdf ORS 40.190 Rule 408 Compromise and offers to compromise http://www.oregonlaws.org/ors/40.190 § 40.1901 Rule 408. Compromise and offers to compromise (1)(a) Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. (b) Evidence of conduct or statements made in compromise negotiations is likewise not admissible. (2)(a) Subsection(1) of this section does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. (b) Subsection(1) of this section also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. [1981 c.892 §28] 66 11 & C:\Rocs\Clients\KW&M\PropertyTax&Appeal\2014-15\ORS 40.190 Rule 408 Compromise and offers to compromise.docx page 1 2015-10-25 MD-1-50093D ENV 1. 2 p 5- ORS 092 SubdivisionsAndPartitions 1979version Chapter 92 • 1979 REPLACEMENT PART Subdivisions and Partitions APPROVAL OF PLAN;PLATS UNDEVELOPED SUBDIVIBIONS 92.010 Definitions for ORB 02.025 to 92.160 93.005 Policy • 92.012 Complienee with ORS 92.010 to 212.160 92.215 Review authorized manner 1 i required 92285 Lietennining vdrether subdivision subject a 92.014 Approval of planning commission or to review and need for revision or vacs- . ;t body of oily or county re- lion: . flood for revision or 'Eldred before creating street or road to vacation of subdivision; } 074015 Wk en sales of lots prohibited until apprav- 98.E Re vacation cation of a ndenelo a eubdivi-hearings;notice to landowners al obtained;exception rrp]a�pproval 98025 Peoblbitian of*alas of lots price to recur- vacation initiation by of- . dation of plat footed landowner of vacation proceed. - 92,0{0 Aeration to planning commission or ings.affect ��rnh�g hoctY of cio nirt for 6 Fees for review proceedings resulting in e o! subdivlsba plan ar map modification or vacation r eoordin{( 99042 (inventing body having testlictiOn to . . approve plans,maps or p ISUSCELLANEOUS PROVISIONS 98344 Adoption of standards rod procedures t t; 92385 Retrwatlw prohiWted al of plats and of pas . 92.096 Adopdoa of ulat{ons requiring a;►yera�'- OREGON STRIDlV1�N CONTROL LAW alof� lane not bthenvise i 0? ' 92.045 under Rs 98.094 and 92046 regulations 962.1105 Pe one for Olin 99,305 to 92.195 . 99 050 snte of survey and plat of eubdi- 91813 Ponce eormttruetiom suasion 02.1117 Pallor prat ction of consti tiers 98.060 Marling certain pants of plats with menu- 99.325 Application at ORB 98.1186 to 98.490 mentor specifications of monuments 92.337 Exemption p M.fora;verification; 92.085 Niarking Interior monuments after record- to satisfy Ilene and enanm- pha; bon of hand; thtur rash o- fee of exemption;filing payment for sarsey work; - 92,339 Klee of men . ty survey�o g survey work 92.070 Surveyor'. vtt neo.seary to record unread markings;filing =tics d man Ming Requirements) i affidavit 92.090 Preparation o f plat 921145 Notice of intention;content;fee Z 92.090 R u�for approval of tentative plan 972.366 �'may west further infer- , matiwy content 92.006 Payment of taxes required before plat 07;•880 Filing Information to be kept current;fee . recorded for notice of material change 92.097 Employment of private licensed engineer 92.375 Consent to service of process on commis. � by d developer; government sten- stoner 92.100 Approval of plat by city engineer or pur- veyor or by county surveyor; ;Wine val (Exeminatton of Subdivision Public Report) { by county assessor and county govern- tag*AY;lees 92.885 Examination of subdividers;public report; 92.110 Land la special dist acts;appa�avel of plat; Waiver of la thi.states notice sipped refusal of efL<rict to ap- to subdivider prove or act 92.180 �and recording plate copies 92.406 Sale prohfb tsd where public report not ! calved; yon and use of public Y 9741710 Additional tracings erasetarred to k �s replacing lost or fed y 92.410 Review of revised for which public • i. 92.141 Indexing of plat records r sable chit � 02150 Construction of donation m on Oat �sa v` 410i) 92.160 Node. Estate Commissioner of 02.415 Advance opener for auatmination 7 receipt ? #MD-150093D Ex 11bPPg## EXHIBIT PAGE „L ..'• _.._.. . ....___- ._saw. • � ; o,4. `� V. TcMU �c ORS 092 SubdivisionsAndPartitions 1979version 92.025 PROPERTY RIGHTS AND TRANSACTIONS regulation adopted under ORS 92.044 or • the map of the proposed major partition for 92.046, respectively, prior to the approval of recording; however, approval by a city or • the tentative plan for the major or minor county of such tentative plan shall be binding partition;but no petaadn may sell any parcel in upon the city or county for the of the a major partition or in a minor partition for preparation of the plat or map the city or which approval of a tentative plan is required county may require only such changes in the by any ordinance or regulation adopted under plat or the map as are neoeesary for cotnpli- ORS 92.044 or 92.046, respectively, prim., to once with the terms of its approval of the such approval. [1965 cane 424;1973 c.898 18;1974: tentative plan for the proposed subdividon or e.e.0.7411;1977e•809151 the proposed major partition. (Amended bar 1965 92.020[Repealed by 1955 c.75618(92.026 enacted in c.756 17;1978 e.696 171 lieu of 92.020 and 92.490)] ' 92.042 Governing body having Julia- 02.025 PxrohibItion of saales,of Iota diction to approve plans,maps or plats-(1) prior to recordation of plat. (1)No person Land within six miles outside of the corporate obeli eell any lot in flrly subdivision until the limits of a city is under the jurisdiction of the plat of the subdivision has been acknowledged city for the purpose of giving approval of and recorded with the recording officer of the plans, maps and plats of subdivisions and county in which the lot is situated. major partitions under ORS 92.040 and (2) No person shall sell any lot in any 227.110. However, when the governing body subdivision of a county has adopted ordinances or regula- by reference to or exhibition or Lions for subdivision and major tion other use of a plat of such subdivision before control as required by ORS 92.044, in the plat for such subdivision has been so such county within such six-mile limit shall recorded.In negotiating to sell a lot in a sub- be under the ]won of the county for division under subsection(1)of ORS 92.016,a such person may use the approved tentative plan �. for such subdivision. [1966 c.75916(enacted in lieu (2)Land over six miles from the corporate of 92.020 and 98.030];1973 096 le;1977 e-809 141] limits of a city is under the jurisdiction of the •1 99.5130[Repealed by 1985 0.75615(92.025 enacted In eotrnty for the purpose of giving approval of ; lien of 9:t.4$(1 and 9r(t30)] plans, maps and plats for subdivisions and major partitions under ORS 92.040. 11955 e.756 82.040 Application to planning con- 44;1973 c.251 11;1973 096 Di mission or governing body of city or coun- ty for approval of subdivision plan or map 92.044 Adoption of standards and : before recording.Before a plat of any srubdi- procedures governing approval of plats vision or the map of any major pa rtitlon may and of partitioning of land. (1)The govern- be made and recorded, the person proposing tog body of a county or a city shall,by multi-- the subdivision or the major partition or his tion err ardinanae. adopt Standards and proce- authorized agent or representative shall make duree, in addition to those otherwise provided an application in writing to the county or city by law,governing,in the area over which the having jurisdiction under ORS 92.042 for 4:4mab►or the city has jurisdiction under ORS approval of the proposed subdivision or the 92.042,the submission and approval of tenta- lroloeed major partition in accordance with five plans and plats of subdivisions and gov- procedures established by the applicable ordi- ex7ring the submission and approval of tente- nano3 or regulation adopted under ORS five plans and maps of major partitions. 92.044. Each such application shall be accom- (a) Such standards may include, taking partied by a tentative plan showing the goner into consideration the location and surround- al design of the proposed subdivision or the ing area of the proposed subdivisions or the proposed major partition. No plat for any proposed major partitions,requirements for: proposed subdivision and no map for any (A. Placement of atilities. for the width proposed major partition may be considered for approval by a city or ntil the and location of streets or for minimum lot tentative plan for the proposed until or sizes and such fie' requirements as the the proposed major partition has been ap- gpverning body considers neeesearl►for lessen- proved by the city or county. Approval of the ing man In the streets; tentative plan shall not constitute final accep` (B) For securing satisfy from fire, flood, tame of the plat of the proposed subdivision or slides,pollution or other dangers; ' pao EXHIBIT & PAGE, Y MD-150093D Ex# 11 # 2 TC410 010.21C [12 ORS 105.820 Remedy of tenants in common 1pg.pdf 12 ORS 105.820 Remedy of tenants in common 1pg MD-150093D E # 12 Pg# 1 °° 7 C -1,ar ! t d r J C t nr'" r iAY r " ► r S C pt1 r1 MW i1a11eous AEiion 3 ,05.805 105.8201 Action for Waste I Remedy of tenants in common 105.810 Trebledarmages A tenant in common may maintain any proper action,suit or for Injury to or removal of i proceeding against a cotenant for receiving more than the Just produce,trees or j shrubs proportion of the rents or profits of the estate owned by them in ... .......; common_ 105.81 When doubler 12 ORS 105.820 Remedy of tenants in common ipg fwirded for Ire ' MD-150093D Ex# 12 Pg# 1 105.c/ t.9nant5 to c cufr;ar} 12 ORS 105.820 Remedy of tenants in common 1pg page 1 MD-150093D Exit 12 1 • ORS 308.205(2)(d) Gov Restrictions adjust Real Market Value p1 3-5.pdf MD-150093D Ex# 7 Pg# ORS 308.205 Real Market Value Defined http://www.oregonlaws.org/ors/308.205 § 308.205' Real market value defined • rules (1) Real market value of all property, real and personal, means the amount in cash that could reasonably be expected to be paid by an informed buyer to an informed seller, each acting without compulsion in an arms-length transaction occurring as of the assessment date for the tax year. (2) Real market value in all cases shall be determined by methods and procedures in accordance with rules adopted by the Department of Revenue and in accordance with the following: (a) The amount a typical seller would accept or the amount a typical buyer would offer that could reasonably be expected by a seller of property. (b) An amount in cash shall be considered the equivalent of a financing method that is typical for a property. (c) If the property has no immediate market value, its real market value is the amount of money that would justly compensate the owner for loss of the property. (d)If the property is subject to governmental restriction as to use on the assessment date under applicable law or regulation, real market value shall not be based upon sales that reflect for the property,a value that the property would. have if the use of the property were not subject to the restriction unless adjustments in value are made reflecting the effect of'0 a teSteittiOns. [Amended by 1953 c.701 §2; 1955 c.691 §§1, 2; 1.977.c.423 §2; 1981 c.804 §34; 1989 c.796 §30; 1991 c.459 §88; 1993 c.19 §6; 1997 c.541 §152] • MD-150093D Ex# 7 Pg# C:\Docs\Clients\KW&M\PropertyTax&Appea1\ORS 308.205 Real Market Value Defiued.doc page 1 12/31/2014 . (c) In utilizing the sales comparison approach only OAR 150-308.205-(D) actual market transactions of property comparable to http://arcweb.sos.state.or.us/pages/rules/oars_l00/oar_ the subject,or adjusted to be comparable, will be 150/150 308.html used.All transactions utilized in the sales comparison Industrial Property Valuation for Tax Purposes approach must be verified to ensure they reflect arms- length transactions. When non-typical market (1) For the purposes of this rule,the following words conditions of sale are involved in a transaction and phrases have the following meaning: (duress,death, foreclosure, bankruptcy, liquidation, interrelated corporations or persons,etc.)the (a)A "unit of property" is the item,structure,plant, or transaction will not be used in the sales comparison integrated complex as it physically exists on the approach unless market-based adjustments can be assessment date. made for the non-typical market condition. (b) "Real property" means the real estate (physical (d)Properties utilized in the sales comparison land and appurtenances including structures, and approach, although not necessarily identical, at the machinery and equipment erected upon the land or very least must be similar in many respects. attached to the land or structures)and all interests, Adjustments must be made for differences in location, benefits, and rights inherent in the ownership of the product, production capacity,and all other factors that physical real estate. may affect value. Excessively large adjustments or an excessive number of adjustments is an indication that (c) "Highest and best use" means the reasonably the properties are not comparable. probable and legal use of vacant land or an improved property that is physically possible,appropriately (e)When utilizing the sales comparison approach,the supported, and financially feasible, and that results in appraiser must take into consideration difference the highest value. See The Appraisal of Real Estate, between the subject and the comparable properties for 12th edition(2001). physical condition, functional obsolescence and economic obsolescence.Adjustments must be made (2) If the highest and best use of the unit of property is for differences between the subject and comparable an operating plant or an operating integrated complex, properties for factors such as physical condition, the real market value will be considered to be a"going functional deficiencies, operating efficiency, and concern." The going concern concept recognizes that economic obsolescence. If the properties are the value of an assembled and operational group of functionally or economically equivalent,verification assets usually exceeds the value of an identical group of the equivalency must be included in the appraisal. of assets that are separate or not operational. (f) Sales for the disposal of properties through auction, (3) Methods and Procedures for Determining the Real liquidation or scrap sales are indicators of market Market Value of Industrial Property: value only when on the assessment date such disposal of the subject property is imminent, or has actually (a) For the valuation of industrial property all three taken place. approaches sales comparison, cost,and income, must be considered. For a particular property,it may be that (g)The cost approach may utilize either the all three approaches can not be applied,however,each reproduction,replacement, or the used equipment must be investigated for its merit in each specific technique. It is acceptable to use trended historical appraisal. cost to estimate the reproduction cost new. The value estimate must include all costs required to assemble (b)The market value of a unit of property must not be and construct the unit of property. determined from the market price of its component parts,such as wood, glass,concrete,furnaces, (h) When using the income approach,the income from elevators, machines, conveyors,etc.,each price the operation of the property may be utilized for separately as an item of property,without regard to its industrial properties and other properties that are not being integrated into the total unit. typically leased or rented. When the income from the property's operation is used, the unit of property must be valued as a going concern.In utilizing the income C:\Does\Clients\KW&M\PropertyTax&Appeai\ORS 308.205 Real Market Value D fined:d:: Pttge 2 1233112011 MD-150093D End# 7 Pg# approach for the valuation of industrial properties, the (k)Fixed assets schedules; discounted cash flow technique is one of the appropriate methods to derive a value estimate. (1)Income statements; Consideration in the discounted cash flow technique is given to items such as the anticipated free cash flow (m) Such other data that may affect value. available to the debt and equity holders,inventory valuation methods, intangible assets, income taxes,net (5)Basic information for an appraisal utilizing the working capital,capital reinvestment,etc. When annual report method. Basic data for an appraisal utilizing the discounted cash flow technique,the utilizing the annual report method normally includes capitalization or discount rate must be derived in the following: accordance with OAR 150-308.205-(C). (a)Report of additions; (i)Determining the highest and best use for the unit of property is necessary for establishing real market (b)Report of retirements; value.This determination of highest and best use may include,among others,all possible uses that might (c)Knowledge of miscellaneous technical and result from retaining,altering or ceasing the integrated economic conditions that affect value; nature of the unit of property. (d)Trending factors: (4)Basic information for an appraisal. Basic data and procedures in making appraisals normally include the (A)Separate factors for yard improvements, following when applicable: buildings,and equipment classified as real property must be developed. (a)Location of property by tax codes and tax lot numbers; (B)The development of the factors must use data published by the United States Department of Labor, (b)Map or sketch of land owned and layout of plant; the Oregon Building Construction Trades Council, and other sources the Department of Revenue deems (c) Inventory of physical plant; to be reliable indicators of property value over time. (d)Reproduction or replacement cost computations, as (C) Data developed by physical inspection together applicable; with appraising a segment of the total property or making a general review of the total value under (e)Analysis of depreciation; certain circumstances may supplement the data utilized in (A)above. (f)Analysis of economics as they affect valuation; (e) Depreciation allowances; (g)Analysis of sales data, when applicable; (f)Real market value for prior year. (h)Field inspection; Stat. Auth.: ORS 305.100 (1)Research and familiarization with typical Stats. Implemented: ORS 308.205 properties of the industry; Hist.:RD 9-1989, f. 12-18-89,cert.ef. 12-31-89; RD 8-1991, f. 12-30-91,cert.ef. 12-31-91;REV 12-2004, (j)Annual reports to stockholders; f. 12-29-04,cert. ef. 12-31-04 MD-150093D Eat 7 Pg# .� C:\Docs\Clients\KW&M\PropertyTax&Appeal\ORS 308.205 Real Market Value Detned.doc page 4 12/31/20R Search Results when searching for ORS 308.205(d) 250 document(s) found. Case Title Case Date Filed Number 76% LYDON-ALBANY, LLC v. LINN COUNTY 040144F 10/29/2004 ASSESSOR _ 74% Martin v. Yahmill County Assessor 110246D -09/01/2011 74% Vandiver v. Deschutes County Assessor 080384D 08/18/2008 74% Oden-Orr v. Multnomah County Assessor _ 070295C 06/12/2007 74% Lane County Assessor v. Flynn Jr _ 060086C 02/14/2007 74% Terry v Umatill County _ 050492A 01/18/2006 73% Freitag v. Department of Revenue 4764 07/03/2007 73% _ Norpac Foods, Inc. v. DOR 4490 09/28/2004 72% Dale v. Lane County Assessor 120620D 03/26/2013 72% Clapa v. Multnomah County Assessor 111.125D 05/21/2012 72% _ Clapa v. Multnomah County Assessor 111124D 05/21/2012 72% Clapa v. Multnomah County Assessor 111123D 05/21/2012 72% Clapa v. Multnomah County Assessor 111122D 05/21/2012 72% Sutton v. Jackson County 070186C 09/05/2007 72% Gall v. Yamhill County Assessor 060207C 06/15/2006 72% Durkee v. Lincoln County Assessor 010491F 12/27/2001 1 72% Wilsonville Heights Assoc. v. DOR 4262 08/07/2003 . 0 71/o Clapa v. Multnomah County Assessor 111126D 0 5/21/2012 71% Clapa v.Multnomah County Assessor 111121D 05/21/2012 71% Clapa v. Multnomah County Assessor 111120D 05/21/2012 71% Clapa v.Multnomah County Assessor 110500D 05/21/2012 71% Strader v. Clatsop County Assessor 090834C 09/09/2009 71% _ Thomas v. Deschutes County Assessor 08028413 08/27/2009 (Control) 71% Redmond v. Hood River County Assessor 081073C 02/26/2009 71% Leaper v. Department of Revenue and Multnomah 4786 01/16/2008 County Assessor _ 71% ADC Kentrox v. Department of Revenue 4722 07/05/2007 71% Department of Revenue v. Butte Creek Associates(Butte 4676 07/20/2006 W _Creek II) 71% Magna v. Department of Revenue and Washington 4720 05/18/2006 County Assessor . 71% Kuhn v. DesohUtes County Assessor 050021 C 03/23/2006 (Control) 71% _Hamer v. Multnomah County Assessor 050514C 12/20/2005 71% _Emami v. Clackamas County 040460E 07/13/2005 71% Sutton Family Rev.Trust v. Jackson County Assessor 050208D 05/02/2005 71% Richard v.Malheur County Assessor 040336C 04/12/2005 71% Schaefer v.Lincoln County Assessor 040809C 02/24/2005 71% RICHARD L.RODE and LINDA P. RODE v. 040238F 10/29/2004 C:\Dots\Clients\KW&M\PropertyTax&Appeal\ORS 308.205 Real Market Value Defined. i paw t/20 4 �rIL�-15 �al� 7� • 20000809 X011212_JMartinToLizFancherReDennisLuke000809.pdf 1 FRANCIS &MARTIN, LLP LaPine Office C.E."Win"Francis Attorneys at Low (5,41)536-3731 1199 NW Wail Street F) Gerald A.Martin Bend, Oregon 97701-1934 ! Facsimile (541)382-7068 (541) 389-5010 December 12,2001 MD-150093D Ex# 13 Pg# , Liz Farier HAND-DELIVERED 25 N Minnesota Avenue Be ,OR 97701 Re: Kuhn v.Dowe11 Deschutes County Circuit Court Case No.01-CV-0233-MA Our File No. 01-037 Dear Liz: The purpose of this letter is to disclose a meeting,which I attended on August 9,2000 with my clients Bill and Leigh Kuhn. They scheduled a meeting with Commissioner Dennis Luke and asked that I attend. We arrived at the County offices and after waiting a few minutes Commissioner Luke appeared accompanied by George Read. At that time,either George Read or Dennis Luke made the comment that they were not aware the Kuhns' attorney was going to be accompanying them. We proceeded to a conference room and George Read produced a diagram showing the Dowells' property and the Kuhns'property. The primary issue at that time was whether the Dowells' structure on their property was in violation of the 400-foot maximum setback from Sisemore Road. The diagram had a line on it from the side or corner of the Dowell home across the side of their property diagonally to Sisemore Road showing that by measuring in such a manner the structure was within the 400-foot setback. The Kuhns questioned why that measure was appropriate rather than measuring from the structure to the front of the Dowells'property where it abutted Sisemore Road. George Read stated that was a proper way to measure the 400-foot maximum setback and Commissioner Luke nodded his head affirming that statement. At the time of that meeting I had had little or no prior contact with Commissioner Luke or George Read. I was surprised by what seemed to be an adversarial or confrontational approach taken by both Commissioner Luke and George Read. I had anticipated a meeting with some exchange and discussion regarding the appropriate measurement for the 400-foot maximum MD-150093D Exit 13 Pg# • Liz Fancher December 12,2001 Page Two setback. Instead the meeting was quite short with George Read simply indicating that this is the way we measure it and Dennis Luke concurring. That meeting was the first occasion when anyone had suggested the diagonal measurement to Sisemore Road. The documents submitted to the County by the Dowel's when they were seeking approval for the structure on their property showed the usual measurements from Sisemore Road at the front of their lot straight back and parallel with the sides of their lot. If 1 can offer you any further information,please contact me. Ve truly yours, /t G d A.Martin GAM/grw cc William and Leigh Kuhn MD-150093D EzEt 13 Pg# �- LIZ FitN/CI ER, ATTORNEY 20011205_Fancher To Craghead re 14th Amendment 2pgs.pdf MD-150093D Elect 14 Pg# 2111 December 5,2001 011206 LAURIE CRAGHEAD COPY' DESCHUTES COUNTY OFFICE OF LEGAL COUNSEL ADMINISTRATION BUILDING 1130 NW HARRIMAN AVENUE BEND,OREGON 97701 Re: DR-01-5(A-01-19),Jeffrey and Pat Dowell,Appeal of Declaratory Ruling I am writing to seek your assistance in preparing for next week's,December 12,2001 hearing on the Dowell appeal. At the beginning of the hearing the Board of Commissioners will disclose any ex parte contacts, bias, prejudgment or personal interest. I believe it is likely that one or more of the Commissioners may make disclosures regarding these issues. I am writing to let you know of potential issues that may merit disclosure or disqualification so that you and the Board will have time to consider the issues prior to the hearing. All Board members may be affected by the fact that the County has potential legal liability for granting building permits for the Dowell property, if Ms. Green's decision is affirmed. The County has issued permits for development on the Dowell property that do not comply with the F2 zone's 100' yard setback. Additionally, the County has either permitted or condoned the construction of the Dowell's house behind the 400'building line shown on the final plat of the partition that created the Dowell's lot. The actions could be the basis of a legal claim against the County, This fact may impact the ability of the Board to act as an impartial decision maker in this case. This is one of the reasons my clients asked that the Board not hear the appeal in the October 15,2001 letter the Board refused to consider when it granted discretionary review. Commissioner Luke has taken a position regarding setback requirements for this property. He has told the Kuhns that the side yard is a building area because it is in front of the 400'building line required for the property by the partition and PUD approval. Commissioner Luke measured this area across the side, rather than front yard of the Dowell property to create a building line that does not match the building line established on the final plat of the partition. Chair DcWolf, at the October 29, 2001 Commission meeting asked "[cjan't we just set a setback of 25 feet and save everybody a bunch of time and money?" This comment indicates that Chair DeWolf may have already decided to reverse Ms.Green's decision. MD-150093D DO 14 Pg# . 120011205_Fancher To Craghead re 14th Amendment 2pgs.pdf —2— December 5,2001 Request for Information To assist me in determining whether 1 should be concerned about the above issues, I would ask that you provide me with copies of any of the following materials prior to December 12,2001: 1. Copies of any tort claims notices, complaints or correspondence filed with Deschutes County by the Dowells, their agents or attorneys or others arising out of Deschutes County's permit decisions regarding the Dowells' property that is the subject property in the above-referenced appeal. 2. Copies of any letters, memoranda, notes or other written documents, other than documents prepared by William or Leigh Kuhn, that contain any claim or claims that allege or infer that the County or County employees or officials were in error in issuing permits for development on the Dowell's property. 3. Copies of any documents prepared by or for consideration by any County Board, Legal Department, or Planning Division employee or official that are of record at Deschutes County that refer to William or Leigh Kuhn or to Jeffrey or Pat Dowell, excluding permit records that are available for public inspection through the Building or Planning Division of the Community Development Department. Record of Appeal It remains my position, as stated in my letter of October 15, 2001, that the Board should have declined to hear the Dowells' appeal. I am enclosing a copy of the October 15, 2001 letter and ask that it be included in the record of the appeal at this time. 1 believe that the County Board should have considered the letter at its October 29, 2001 work session despite the provisions of DCC 22.32.035(D). I believe that code provision is unenforceable as it grants the appellant,but not other parties, a voice in the determination of whether to hear an appeal. This denies my clients due process of law, a right protected by the 14th Amendment of the US Constitution. County code provisions that are unconstitutional are not enforceable and should not have been applied. The decision whether to hear the appeal and the scope of review are matters that directly affect my client's legal position in this matter. Please include this letter and my October 15,2001 letter in the record of DR-01-5/A-01-19. Sincerely, Liz Fancher Enc. Cc: client IV"- file MD-150093D Ex# 1413g# 644 NW BROADWAY STREET • BEND, OREGON • 97701 PHONE: 541-385-3067 • FAX: 541-3854076 . 20060323 Magistrate Decision with yellow highlights.pdf r _ r MAGISTRATE DIVISION 4 ;:. OREGON TAX COURT MD-150093D Ex# 15 Pg# 13 ("45 Presiding Magistrate: Jill A.Tanner Magistrates: Je lli+my S.Mattson • Daniel K.Robinson Soot A-Skims • Coyrccn It Weider March 23,2006 William John Kuhn Martha Leigh.Kuhn PO Box 5996 Bend OR 97708 Laurie E Craghead 1300 NW Wall Street#200 Bend OR 97701-1960 Re: William John Kuhn and Martlialcish Kuhn v.DeschutmCounty Assessor TC-MD 050021C(Control);050248C Dear Parties: Enclosed is a copy of the Decision signed by Magistrate Dan Robinson on March 23, 2006. The Decision was filed and entered on March 23,2006. Enclosure • • • • • MD-150093D Ex# 15 Pg# 1163 State Street,Salem,OR 97301-2563 www.ojd atats.or u,Jtr x Phone:503.916.5650 Fax:503.916.4507 20060323 Magistrate Decision with yellow highlights.pdf FILED MAGISTRATE DIVISION IN THE OREGON TAX COURT OREGON TA X COURT MAGISTRATE DIVISION Property Tax Ab MAR 23 AM 7= 02 • WILLIAM JOHN KUHN ) and MARTHA LEIGH KUHN ) ) Plaintiffs, ) TC-MD 050021C(Control) ) 050248C v. � ENTERED DESCHUTES COUNTY ASSESSOR, ) MAR 23 2006 Defendant. ) DECISION MAGISTRATE DIV. Plaintiffs have appealed the real market value(RMV)of their property for tax years 2002-03,2003-04,and 2004-05. There are two accounts at issue: 163467(tax lot 200),and 131396(tax lot 300)) The value of both tax lots is properly before the court for the 2004-05 tax year,because Plaintiffs timely appealed from an order of the county board of property tax appeals(BOPTA). Only tax lot 200 is before the court for the two prior tax years(2002-03 and 2003-04),based on the court's earlier Order finding an alleged error in value of at least 20 percent,as provided in ORS 305.288(1)(b).2 That Order is incorporated by reference into this Decision. /// The county map numbers are 16111900-00-200 and 16111900-00-300,respectively,for tax lots 200 and 300. 2 Unless noted otherwise,all references to Oregon Revised Statutes(ORS)are to 2001. Plaintiffs properly and timely appealed both accounts(the improved parcel and the unimproved,jointly- owned parcel,tax lots 200 and 300)for the 2004-05 tax year from an order of the county board. That appeal was assigned case number TC-MD 050248C. Several months earlier,Plaintiffs appealed the value of both accounts back to tax year 1987-88,under cue number TC-MD 050021C. The court issued an Order April 20,2005,allowing the appeal of the residential account(tax lot 200)to be heard for tax years 2002-13,2003-04,and 2004-05,with relief, however,contingent upon a finding by the court of an error in value of at least 20 percent,as required by • • ORS 305.288(1)(b). The appeal of the other account(t air lot 300)was dismissed because the 20-percent error rule does not apply to undeveloped land,and Plaintiffs did not establish"good and sufficient cue,"as provided in ORS 305.2lU(3),(5). DECISION TG-MD 050021C(Control) MD-150093D E1d 15 Pg# 1 20060323 Magistrate Decision with yellow highlights.pdf Plaintiffs appeared and testified on their own behalf at trial. Defendant was represented d by Laurie Craghead,Assistant County Counsel,Deschutes County. Testifying for Defendant were Theresa Maul,Chief Appraiser,Deschutes County Assessor's Office,and Tom Anderson, Director of Deschutes County Community Development Department. 1. STATEMENT OF FACTS The following facts are either agreed to by the parties or found by the court. In 1980, Plaintiff'predecessor in interest,John Barton(Barton),received approval for a conditional use (CU-80-22)to allow a"cluster development"for three lots on an approximately 43 acre parcel in the Tumalo Winter Deer Range. (Der s Ex I at 2-3.) The zoning at the time of the 1980 conditional use approval was Forest Use F-3. The current zoning is F-2,with Landscape Management and Wildlife Area Combining Zone overlays 3 Ordinarily,the minimum lot size in the Turnalo Winter Deer Range was 40 acres. (Der s Ex I at 2;Ptfs'Ex 15 at 126.4) A"cluster development"is a conditional use that allows developments with smaller minimum lot sizes than is otherwise allowed under applicable zoning laws.' Commensurate with that conditional use application,Barton amended a previously filed partition application proposing two 4.3 acre parcels and an approximately 34.4 acre parcel designated as a"common o The minimum pared size for a single-family residential dwelling not used In cotijunatlon with forest or farm use on land zoned FU-2 was 40 sores per PL-15,section 4.080(b)(A),and 20 acres for FU-3 zoned land pursuant to section 4.085(6XA). (Ptfs'Br 15 at 93,98.) •The court's numbering of Plaintiffs'Ex 15 is based on the page numbering appearing at the top of the exhibit,which is the method used by the parties at trial. That numbering system does not correspond to the actual page count because the exhibit,marked by volume and page,begins with page 42(i.e.,Vol 33 Page 42). 'A county hearing officer's decision on Plaintiffs'neighbors'2001 application for a declaratory ruling to establish minimum side yard setbacks for their property Includes a discussion of the procedural history of the original owner's efforts to divide the property to create the two homelike'Plaintifh and their neighbocs now occupy. That decision indicates that the properties are in a Wildlife Area(WA),which requires a 40 a minimum lot size. It further states"PL l5 also allowed as a conditional use cluster developments within which entailer minimum lot sizes could be approved." (Does Ex Rat 2.) PL•l5,seaman 1.030(21)defined a cluster as"(a]plarmed development,at least 5 acres in area,permitting the°luster of si hm ly residences on one part of the property, with no commercial or industrial uses permitted." (Ptfe'Mt 1S at 48.) DECISION TC-MD 050021C(Control) ' MD-150093D Exit 15 Pg# 3 2 20060323 Magistrate Decision with yellow highlights.pdf area." (Def s Ex R at 2.) Barton received preliminary approval for the minor partition, • MP-79-232,on May 13, 1980. (Defs Ex J at 1.) The plat map received final approval by the requisite county officials in November 1980. (Ptfs'Ex 7 at 12.) The conditional use permit and partition created tax lots 100,200,and 300. Tax lots 100 and 200 are the 4.3 acre parcels,and tax lot 300 is the 34.4 acre parcel. Plaintiffs purchased tax lot 200,and a one-half interest in tax lot 300,in July 1987. Plaintiffs'neighbors,Jeff and Pat Dowell,purchased tax lot 100, and the other one-half interest • in tax lot 300. On June 19, 1987,"the month before Plaintiffs purchased their property, Plaintiffs' application for a lot line adjustment was approved by the Deschutes County Community Development Department. (Def s Ex L) The following year on November 14, 1988,Plaintiffs' Landscape Management Plan was approved,with two conditions: the first condition noted a 400 foot maximum setback from Sizemore Road imposed by the minor partition,pursuant to which Plaintiffs were required to move their home slightly to the east;the second condition was that Plaintiffs provide a copy of the homeowners maintenance agreement for the commonly-owned property,as part of their building permit.(Defs Ex M at l.) The lot line adjustment and landscape management plan paved the way for Plaintiffs to construct their home(presumably subject to the submission and approval of a building permit application). In 1989,Plaintiffs built their home on tax lot 200. The Dowells'home was subsequently built on tax lot 100. The total RMV on tax lot 200(Plaintiffs'homesite)for tax years 2002-03,2003-04, and 2004-05 was$230,590,$242,830,and$251,670,respectively. The total RMV of tax lot 300 was$183,130 for the 2004-05 tax year. /// /// DECISION TC-MD 05002IC(Control) MD-150093D Ex# 15 Pg# 3 [20060323 Magistrate Decision with yellow highlights.pdf • The Deputes County land division code applicable to the 1980 conditional use and partition approvals was PL-14. The applicable zoning ordinance was PL-15' PL-14,section 5.060,required the Deschutes County Planning Director to record partition plans and maps. The Deschutes County Planning Director did not record the partition map for the subject ty P aP subject property until October 2004. Therefore,the partition map was not recorded as of January 1,2002, January 1,2003,or January 1,2004. Defendant further admits in its Answer that"some of the other minor partition plats approved during the time flume listed in Plaint 'Complaint regarding the sect property's approval were not recorded."' Plaintiffs believe there are as many as 500 other parcels in the county with unrecorded partition plats. Plaintiffs contend that their property had no value for the tax years at issue because various county ordinances required the county to record the"p1st"map for their property,and that state law prohibits the sale of their lot unless and until the plat is recorded. Plaintiffs further assert that the Dowells'home was built beyond the applicable setback requirements in the plat map(MP-79-232),that the county refuses to enforce those requirements,and that the county's . refusal diminishes the value of Plaintiffs'property. Finally,Plaintiffs assert that the lack of a recorded homeowners agreement providing for the shared maintenance of the jointly owned property(tax lot 300)also reduces the value of their property. Defendant responds that Plaintiffs'property was part of a flan"creating a"partition" rather than a"plat"creating a"subdivision." Accordingly,the statutory provision prohibiting the sale of a lot in a subdivision until the plat is recorded is inapplicable. Defendant presents three alternative arguments in response to Plaintiffs'position relative to the alleged setback violations. "he pies submitted only the 1979 versions of the county ordinances(P1.44 and PL-15)mooed in this Decision. The court's resod of this ease obviates the need for more current versions. Des Answer for TC-MD No 05024W at 2. DECISION TC-MD 050021C(Control) MD-150093D Exit 15 Pg# � 4 20060323 Magistrate Decision with yellow highlights.pdf Finally,Defendant contends that,by their own admission,the deed restrictions Plaintiffs recorded satis fy the requirement of a homeowners agreement Defendant's bottom line is that �► Plaintiffs'asserted legal deficiencies are misplaced and that it has comparable sales to support the current tax roll values. II. ANALYSIS The court begins its analysis by setting out certain definitions. A"partition"involves the division of land into two or three`parcels." See ORS 92.010(7). A"subdivision,"on the other hand,is a division of land into four or more"lots." ORS 92.010(15). The requirements surrounding a subdivision are generally more stringent than the requirements for a partition. Plaintiffs' lots were created through the process of a partition.' The court rejects at the outset Plaintiffs' assertion that the provisions of PL-14 and PL-15 transform their partition into a subdivision. The court recognizes that Plaintiffs'property lies loosely within a Wildlife Area Combining Zone(WA),and that section 8.050(16XB)(b) of PL-15,made applicable through section 4.190(5),provides that lain subdivision requirements contained in County Ordinance PL-14 shall be met." (See Ptfs' Ex 15 at 182.) • Similarly,section 8.050(16)(C)requires applications for cluster developments to be accompanied . by a plan with"[a]plat map meeting all the subdivision requirements of* * *PL-14." (Id.) However,the fact that the development was required to meet the county's subdivision requirements does not mean that the partition thereby became a subdivision.' At the same time, 'At the time Barton received approval for the partition,Oregon law distinguished between"major and "minor partitions,the former including the creation of a road or street,and the latter not involving roads or streets. See ORS 92.010(2)and(4)(1979). 'Subdivision designation is important to Plaintiffs for two reasons. First,PL-14,section 4.110(1)prohibits certain title transfers until the final plat is recorded(See Ptfs'Ex 14 et 36-37),and section 1.070(46)admit ordinance defines a plat as"Is)final map,diagram,drawing***wing a subdivision" (Id.at 9.)(emphasis added). Second,Plaintiffs accept Defendant's assertion that the statutory prohibitions in ORS 92.025 against the sale of property prior to the recording of the plat pertain only to subdivisions. DECISION TC-MD 050021C(Control) MD-150093D Ex# 15 Pg# 4> 5 20060323 Magistrate. Decision with yellow highlights.pdf l the court's analysis below eliminates the importance,to Plaintiffs' case,of the subdivision designation. A. Th. he Lack of a Recorded Plat , Plaintiffs'principal argument is that applicable county ordinances required the recording of their plat,that the plat was not recorded when the partition was approved(nor at any time on or before the assessment dates here at issue),and that state law prohibited the sale of their property absent the recording of that plat. Accordingly,Plaintiffs contend that their property had no value on the applicable assessment dates. • PL-14,section 5.060,which clearly pertains to partitions(as opposed subdivisions), provides in relevant part: "Following approval of the tentative plan for a proposed partitioning,the applicant shall prepare and submit to the Planning Department the final map or drawing for the subject partitioning. * * * [The original and two(2)copies thereof[shall be)submitted by the Planning Department to the Executive Committee for approval. The original shall be recorded by the Planning Director in the office of the County Cleric following approval by the Executive Committee." (Ptfs'Ex 14 at 41.) (Emphasis added.) Defendant come* , .060 requited"find partition ind maps*,a*.*to be recorded by the Deschutes 000r4►"Nanning Motor der, upprovel,,"and that the director"did not recot4 the pateu map fOr the Subject propetty until October 2." (Stip Facts 17, 18.) However,Defendant argues that by requiring the recording of"final"maps or drawings after final approval,section 5.060 violates ORS 92.046(1979),which,according to Defendant,only allowed the county governing body to /// /// /// DECISION TC-MD 050021c(control) MD-150093D E # 15 Pg# y 6 120060323 Magistrate Decision with yellow highlights.pdf 1 establish recording requirements for"tentative plans"of minor partitions.'D The court is not persuaded that section 5.060 exceeds the bounds of ORS 92.046,as that statute existed in 1979. However,the court need not resolve that issue,for reasons that become obvious later in this Decision. Moreover,the court will accept,without deciding,that applicable county ordinances required the recording of Plaintiffs'plat and the plat was not recorded on the assessment dates for the years at issue. The next question is whether state law prohibited the sale of Plaintiffs'property prior to the time the partition plat"was recorded. This is where Plaintiffs' subdivision argument becomes important,if only to the parties. That characterization(subdivision)appears driven by Plaintiffs' acceptance of Defendant's contention that the 1979 version of ORS 92.025(1)governs this case. The statute at that time provided: "(I)No person shall sell any lot in any subdivision until the plat of the subdivision has been acknowledged and recorded with the recording officer of the county in which the lot is situated." (Emphasis added.) Clearly,the law in effect at the time Plaintiffs'partition was created applied only to subdivisions,prohibiting any sale until the plat was recorded. However,Plaintiff are concerned with the value of their property in 2002,2003,and 2004. ORS 92.025(1)was amended in 1989 /// /// 10 ORS 92.045(1)(1979)authorized the county governing body to adopt regulations or ordinances requiring approval of proposed partitions,and subsection(2)provided: "Such ordinances or regulations may establish the form and contents of the tentative plans of minor partitions admitted for approval and may establish adequate measures for the central filing,including but not limited to recording with the city recorder or the county recording officer, and for the maintenance of tentative plans for minor partitions following approval." "Throughout the proceeding Defendant emphasized the distinction between a plat and a plan,because the statutory definition of a plat in the 1979 version of ORS 92.010(9)tied 4 plat to a subdivision. However,by 2001,a plat came to be defined as"a dal subdivision plat,midst or partItloa plar[,p'and by statute a'partition prat" concerns a partition. ORS 92.010(9),(5)(emphasis added). DECISION TC-MD 050021C(Control) MID-150093D Ex# 15 Pg# 8 7 • 20060323 Magistrate Decision with yellow highlights.pdf to expand the restriction to parcels in partition& The italicized language below reflects the 1989 amendment,pursuant to which the statute rte: "(1)No person shall sell any lot in any subdivision or convey any Interest . In a parcel In any partition until the plat of the subdivision or partition has been acknowledged and recorded with the recording officer of the county in which the lot is situated." Or Laws 1989,ch 722,§4(1);see also ORS 92.025(1)(1989). A minor amendment in 1991 . added the words"or parcel"prior to the last two words of the statute as set forth immediately above,so that the plat was required to be"recorded with the recording officer of the county in which the lot or parcel is situated." See Or Laws 1991,oh 763, §6. There have been no further amendments to the statute through 2003. Therefore,its amended,ORS 92.025(1)does in fact prohibit the sale of parcel in is partition until the plat is recorded. That brings the court to the • final question relating to the first issue. Assuming ORS 92.025(1)prohibited the sale of Plaintiffs'property,what was the value of that property?' Again,Plaintiffs insist the legal impediments render the property worthless. The court disagrees. • A valuation dispute in the property tax arena is governed by the statutory definition of real market value. ORS 308.205 provides in relevant part as follows: "(1)Real market value of all property,real and personal,means the amount in cash that could reasonably be expected to be paid by an informed buyer to an informed seller, each acting without compulsion in an arm's length transaction oocunring as of the assessment date for the tax year. '1 The statutory prohibition in ORS 92.023(1)did not necessarily prevent Plaintlf from selling their property. The property could always be sold by quitclaim deed. Moreover,in Ogan v.Ellison,297 Or 25,6821'2d 760(1984),the Oregon Supreme Court concluded that the statutory pmhibldon'in a very similar statute, ORS 92.016(2),which prohibited the sale of a parcel in a partition prior to approval of the tentative plan(as opposed to daa recording of that plan),did not bar the purchaser from enforcbng the seller's promise to convey the property. `The tale that an agreement is illegal and unenforceable if it conflicts with the provisions of a statute is not Ineammble and unbending" fl==an,297 Or at 31,quoting Ubbnann v.Kan DIM',97 Or 681,689,193 P 435(1924). The court may Inquire into legislative intent unless"the statute expressly declares that an agreement made its contravention of it is void." M.,quoting limn at 689-690. The Ogan court concluded that the limns latent behind the statutory same within which ORS 92.016 is a pant,was"the prevention of undealrible partitioning of land"as opposed to the oak of property. Id.at 32. It would appear that the same legislative intent mu behind the adoption of ORS 92.025(1);with the focus being on the recording process as opposed to the approval process. DECISION TO-MD 050021c(Control) MD-150093D Eidi 15 Fg# 9 8 20060323 Magistrate Decision with yellow highlights.pdf "(2)Real market value in all cases shall be determined by the methods and procedures in accordance with the rules adopted by the Department of Revenue and in accordance with the following: "(a)The amount a typical seller would accept or the amount a typical buyer would offer that could reasonably be expected by a seller of the property. * * * * * * "(c)If the property has no immediate market value,its real market value is the amount of money that would justly compensate the owner for loss of the property." This case raises the question of whether the property has an immediate market value. If not,value would be determined based on the standard of just compensation,per ORS 308.205(2)(c). This is not good news for Plaintiffs because their position essentially asserts that the property had no value by operation of law. Yet,the statutory definition of market value set forth above refutes that assertion,requiring that the property be taxed based on some measure . of value. Plaintiffs assert that they could not morally sell the property because of the legal problems surrounding the unrecorded plat. The statutory prohibition against conveying their parcel until the plat is recorded was enacted two years after they purchased the property,and Plaintiffs,therefore,urge the court to reject any claim that their own purchase demonstrates that the property could be sold notwithstanding the statute. Although that is true,Defendant submitted evidence showing that Brian and Marilyn Sholtis,of Mansfield,Ohio,offered to purchase the Dowels' property in January 2001 for$220,000. (Def s Ex Q at 1.) The Sholtis's offer was submitted by a Portland attorney. The Dowels'property is the other residential lot (technically termed a parcel)created by the unrecorded partition,and,on the applicable assessment dates,the sale of that parcel was as restricted by the statute(ORS 92.025(1))as Plaintiffs'property. The Dowels rejected the Sholtis's offer and,therefore,it cannot be used es MD-150093D Ex# 15 Pg# ) a DECISION TC-MD 050021C(Control) 9 • `20060323 Magistrate Decision with yellow highlights.pdf evidence of an immediate market for the subject property. And,although there were perhaps hundreds of similarly situated parcels plagued by unrecorded plats,neither party submitted any sales of such parcels. Accordingly,on theAvidence before it,the court eonciudes that Plaint property bad no immediate market value. Plaintiffs' value ninst'therefore be determined under the principle of just compensation. See ORE 308205(2)(c). As this court has previously noted," just compensation'is a condemnation law test," and,oddly enough,the value sought is`fair market value or`value in exchange." Truitt Brothers, Inc. v.Department of Revenue, 10 OTR 111, 114(1985), The court elaborated by stating that ORS 308.205"is simply saying that if there is no immediate market,then the value I ' of the property is to be estimated using a method other than the sales orison approach." id.r3 . The other two methods for valuing property are the income and cost approaches. See OAR 150-308.205-(AX2Xa)(2001). The i c ,me ePprosob clay r because the Object as regidentittl and genetates no IMMO. Accordingly,Plaintiffs' value must be based on the cost approach. Plaintiffs have the statutory burden of proof under ORS 305.427, and they have not submitted any evidence on the cost approach. Accordingly,the values on the roll are sustained. /// /1/ 13 That makes sense because Plaintitti's are required to pay taxes based on the"value"of their property,and the court has no doubt that,if the government took(oondemned)their property,Plaintiffs would expect monetauy compensation. The law requires that compensation be lust." That no doubt brings some comfort to Defendant who, on a number of occasions,reminded the court that although Pleintifth claim they did not have a legal lot of record, the county acted as though the des were legally established. Plaintiffs were issued a mss of approvals cad perms baton they were allowed to build their home,which they have now mad in for 2S years. Moreover,the Dowabbs were also issued all the approvals required for the conotructioa of their home..and.they,too, have lived there tar many yearn. MD-150093D Ex# 15 Pg# < DECISION TC-MD 050021 C(Control) 10. [20060323 Magistrate Decision with yellow highlights.pdf B. Remaining Issues The other two points asserted by Plaintiffs concern the alleged setback violations and the nonexistent homeowners agreement. As to the first point,there is insufficient evidence for the court to determine whether the Dowells'home was built beyond the applicable setback requirements in the plat map. Additionally,assuming the home was built beyond the applicable setbacks,Plaintiffs have not provided any market evidence of how that would affect the value of their property, as opposed to the Dowells'property. As to the second point,Defendant responds that Plaintiffs do,in flint,have a recorded homeowners agreement,but that they are simply not satisfied with the parameters of that agreement. In support of that assertion,Defendant points to a letter written by Plaintiffs to the Deschutes County Community Development Department in 1991,in which they state"[the deed restrictions of record met your definition of the necessaty joint homeowners maintenance agreement Unfortunately the wording on this accepted document is so vague on certain points of the restrictions** e that it becomes extremely difficult and expensive for the patties of the agreement to enforce pliance." (Def's Ex 0 at 1.) The court's response to this issue is the same as its response to the alleged setback violations. Namely,assuming the required • homeowners agreement does not exist,Plaintiffs have failed to demonstrate the.market impact of that deficiency. IL CONCLUSION For the reasons set forth above,the court concludes that Plaintiffs'request for a reduction in value must be denied. Plaintiffs have not established that the statutory prohibition against the sale of their property prior to the recording of the plat rendered their property valueless. Additionally,Plaintiffs have not established that their neighbors erected their home in violation MD-150093D Ex# 15 Pg# 1 DECISIQN 're-MD 050021C(Control) 11 120060323 Magistrate Decision with yellow highlights.pdf of applicable setback requirements;nor have they established what,if any,impact such a violation would have in the value of their property. Finally,PlT have not established that a required homeowners agreement does not eixlst and,if that is true,how the nonexistence of such an agreement its the value of their property. Now, therefore, IT IS THE DECISION OF THIS COURT that Plaintiffs' appeal is denied and the values on the assessment and tax rolls for the years at issue are upheld. Dated this z-,/3- day of March 2006. Litli AI Ala AltraPAI DAN ROB r SON MAGISTRATE If you want to appeal this Decision,file a Complaint in the Regular Division of the Oregon Tax Court, by mailing to: 1163 State Street,Salem, OR 973012563; or by hand lama to: Fourth Floor, 1241 State Street,Salem, OR. Your Complaint must be submitted within .Q days after the date of the Decision or this Decision becomes final and cannot be changed. MD-150093D El* 15 #. 6 DECISION TC-MD 050021C(Control) 12 • MD-150093D EIdt lei Pg# L 120140808 email exchange Fancher & Mathers Outrageous Misinterpretatian.pdt Original Message From: "Liz Fancher" <Liz @Iizfancher.com> Bill: To: "Andrew Mathers" <amatherslaw @gmail.com> Cc: "William Kuhn" <william @riskfactor.com> You can use my e-mail,below,as you Sent: Friday, August 08, 2014 9:28 AM _ please. I'm not normally so strident but feel that the outcome on the Subject: RE: ORS 215.190 setback issue was unjust. Andy: Liz No,I do not know the statute of limitations for bringing private actions regarding land use violations. In the governmental world (code enforcement), the violations are"continuing" violations and any statute of limitations is academic unless the violation has been corrected (except to the extent it prevents the government from imposing fines retroactively). Jerry Martin handled the private enforcement case many years ago. That resulted in a partial win for Leigh and Bill but a loss on some of the major issues - mostly due to the testimony of then County Counsel Rick Isham and, I believe, then Community Development Department Director George Read. I was very disappointed that Judge Adler bought what I believed was an outrageous misinterpretation of the County's land use decisions which seemed, to me, to be designed to cover the County's potential liability to the Dowel's for issuing the permits despite the clear meaning of the setback line on the partition plan. That said, LUBA upheld the ridiculous interpretation of measuring setbacks across the Kuhns property, . . but did so under the "plausible" interpretation standard which supports almost any interpretation no matter how much another interpretation is the clear winner being a land use lawyer is frustrating when it comes to cases like this! Liz 541-385-3067(telephone) Original Message From: Andrew Mothers [mailto:amatherslaw @gmail.com] Sent: Thursday, August 07, 2014 9:27 PM To: Liz Fancher Subject: ORS 215.190 Liz Do you know what the statute of limitations is for land use violations? This is regarding the Dowell house. I believe this issue was already resolved. Correct? Andrew Mothers MD-150093D Emit 16 Pg# C:\Docs\prop65575\Dowell1 1Ulnder1ying docs\20140808 email exchange Fancher&Mathers Outrageous Misinterpretation.doc page i 8/8/201 [20060213 ODF&W Letter Re WHCMP Kuhn declined 1 pg .pdf Department of Fish and Wildlife , y OregOn High Desert Region tv 61374 Ferrell Road .;, Bend,OR 97702 Theodore R Kulongcski,Gownicr (541)388-6363 FAX(541)388-6281 February 13,2006 MD-150093D Ex# 17 Pg# I William and Leigh Kuhn PO Box 5996 Bend,OR 97708-5996 Leigh and William, Thank you for interest in managing your property for wildlife benefit. It was obvious during my visit to your place that you have developed and maintained your land to preserve and protect the native wildlife habitat conditions that are so very important in this wildlife winter range area. Regrettably,your enrollment in the Wildlife Habitat Conservation and Management Program(WHCMP)is not possible at this time due to current zoning designation of your property. In.Deschutes County,only properties zoned Exclusive Farm Use(EFU)qualify for participation in.WHCMP. Otherwise,your property and the management practices you use on your property are very compatible with the goals and objectives of this program. ODFW appreciates your commitment to wildlife habitat protection. If I can provide you with additional information on wildlife and habitat management,please let me know. Sincerely, Larry Pecenka,ODFW Habitat Biologist (541)388-6444 Ext.29 MD-150093D End# 17 Pg## L 120060213 ODF&W Letter Re WHCMP Kuhn declined 1 pg pdf 1 [20150914 ODF&W re WHCMP and problem with ownership.pdf 20150914 ODF&W re WHCMP and problem with ownership Original Message MD-150093D Exit 18 # I From:Nancy Breuner To: William@riskfactor.com Cc: Corey Heath ; Joy R Vaughan(joy.r.vaughan state.or.us) Sent: Monday, September 14,2015. 11:56 AM Subject: revised WHCMP materials Dear Mr. Kuhn, Following up on our phone conversation a bit ago,you asked that I send you an email about the Wildlife Habitat Conservation and Management Program(WHCMP) with a contact at ODFW headquarters. Joy Vaughn is the statewide coordinator of the program and she is copied on this email. I informed you that the landowner interest form,the application and some other materials are currently being revised by headquarters staff. I think the new versions will be available online no earlier than mid-to late October. However you stated that you are not the sole owner of the 33 acre property in question.So,until the ownership situation has been resolved,the property cannot be enrolled in WHCMP even if it meets the program's criteria. Regards,Nancy Nancy Breuner Deschutes District Wildlife Habitat Biologist 61374 Farrell Road Bend, OR 97702 (541) 388-6229 MD-150093D Exit 18 Pg# .� C:\Doca\Clients\KW&M\Prope rax&Appea112014-13\20130914 ODF.docx page 1 2013-09-19 120150922 NRCS Tom Bennett re ownership funding.pdf 20150922 NRCS Tom Bennett re ownership funding MD-150 )93D Oa 19 Pg# •t Original Message J.y From: Bennett, Tom-NRCS, Redmond, OR To: William Kuhn Sent: Tuesday,September 22,2015 2:49 PM Subject: RE: I understand grant money and 50%ownership don't mix Bill, I'm reluctant to comment on eligibility criteria for other agencies programs but I can explain how it works for NRCS financial assistance programs. Applicants who do not own the land where conservation work is requested are eligible for financial assistance for those practices on that land provided that they document that they have control of the land for the length th of their P Y $ contract with us and permission from the owners for any structural or vegetative practices. Typically that would be a lease if it is a tenant and sometimes a written confirmation from the owner for specific types of practices. Other eligibility factors,such as maximum income limits for the participant(and no marijuana production)must be met. My experience with joint ownership has mostly been spouses or family members who are listed as owners so we have some confidence that there is agreement with the proposal. In situations like yours with truly separate owners, we would probably want something from the other owner authorizing the conservation practices. It would be between you who was a participant on the contract and who pays for what. For our Environmental Quality Incentives Program(EQIP for your love of acronyms), access to financial assistance is based on whether the request falls within the scope of one of the funded Conservation Implementation Strategies for the area. They are based on the specific resource concerns,often in a specific area. Let me know if you have any questions Tom Bennett Resource Conservationist USDA/NRCS Redmond 541-923-4358 Ext 123 fax 855 651-8899 MD-150093D Ex# 19 Fog# i C:\Docs\Clients\KW&M\PropertyTax&AAppewl\2014-15\20150922 NRCS Tom Bennett re ownership funding.docx page 1 201509 22 120150930 Letter from DS&WCD to Kuhn re assistance.pdf MD-150093D Ex# 20 Pg# 1 vanoN sue DESCHUTES SOIL AND WATER CONSERVATION DISTRICT 625 SE Salmon Avenue,Suite 7,Redmond,OR 97756 Phone(541)923-2204 September 30,2015 Bill&Leigh Kuhn 65575 Sisemore Road Bend,OR 97701 RE: GRANT PROGRAM APPLICATION Dear Bill&Leigh, The Deschutes Soil and Water Conservation District(DSWCD)provides assistance to private landowners in Deschutes County to conserve and enhance natural resources. In that capacity,the DSWCD assists landowners by writing grant applications for conservation and restoration efforts on their lands. You asked that I send you information about our small grant program through the Oregon Watershed Enhancement Board and other grant funders for these types of projects. The most important application criteria is that all the owners of a property sign the grant application as well as the grant agreement. Other requirements include landowner participation which includes the landowner(s)participating through a cost share of a minimum of 25%of the cost of the project. In some instances,the landowner labor counts towards those project costs. You stated that you are not the sole owner of the 33 acre property In question.So,all the landowners would need to sign the grant application as well as the grant agreement.We could not accept an application without signatures and commitments from all owners of the land. Please contact me if you have any additional questions or concerns. Sincerely, c„...„.. .zn.S., rny Harty nager,Deschutes Soil and Water Conservation District 1 MD-150093D Ex# 20 1 # 1 Kuhn v DesCo Assessor MD-150093D Ex Plaintiff's Document List numbers 21 - 35 225 rebuttal 21 19890803 what the Dowell claimed in their Contract-Deed_Binder.pdf 10 22-24 Dowell 1992 LM-92-9 22 19920204_Draft-l_LM-Supporting Doc with map Dowell to Cibelli with notes added.pdf 10 23a 19920210 Blikstad to Dowell with MP map and Sight map attached 3 23b 19920310 LM-92-9 Findings and Decision 4 24 19920129_LM-92-9_Complete.pdf Does not include the discovery documents 50 25 Photos 20001022-20020000 of assault &harassment with lights etc 11 26 Photos after Pipe bomb explosion 12 27 2005-2008 the fire bug or was he a pyromaniac 36 Cibelli Assault Light harassment tenants 28a 20001022_IncidentReport-Cibelli Assault Leighs Statement ORC.pdf 1 28b 20001202_emailCibelliToAsh with notes and color.pdf 1 28c 20001219_ChitwoodLightsLetter.pdf Jeff Dowell told her to keep them on. 10 28d 19880325 IncidentReport-Cibelli Sent to and met with DA Mike Dugan 1 28e 20010101—Kuhn to DA-Doty Anna re Cibelli following stalking via truck&Nails in driveway 1 28f 20010101 Dowell signs contract with Cibelli as property manager 1 28g 20010104_email Dowell To Barton Re Moonshine-Discovery FUD INTENT .pdf 1 28h 20010109_emailEx Dowell&Barton Re Moonshine-Discovery Color Notes OCR INTENT .pdf 2 28i 20010409 and 0410 Dowell communication with Thom Barton_and Frank Cibelli_INTENT .pdf 2 28j 19830825 Cibelli Pot Seized Illegally 6 29 20150109 DesCo and safety permits one granted one not.pdf 3 30 19990729_Djp_99h1_Lovlien with redactions 6 DCPC Kuhn Test Amendment 2003 31 20030703_PC Memo Kuhn Proposal.pdf 41 20030710_PlanningCommMinutes WithAdds.pdf 20030717 TranscriptRequest.pdf clarifying 5a Final Partition Plat Map highlight max build Line 85x14 .pdf Clarifying rebuttal 32 19970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf 9 33 19990426 Kuhn to Dowell two additional proposals highlight.pdf 3 34 1.9990627_Dowells Will Not Pursue Further INTENT.pdf 1 35 20120202 Steckler Schwass Brooks Meares Best Lot Line Adjustment required 100 feet see Dowells'Documents 20151019 Defendants Exhibit List MD-15009D .pdf Document List Dates&History.xlsx Document List 1/7/2016 19890803 what the Dowell claimed in their Contract-Deed Binder.odf 89�2495.Z 19 3 0 0 7 5 Contract -- Deed This agreement made and entered into this 3rd day of August 1989, by and between MARK BURCHLTT, .hereinafter "seller" and JEFF DOWELL and PATTI DORM, hereinafter "purchaser", witnesseth -that: (I) "Seller" hereby agrees to seal 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 TRUE POINT OF BEGINNING thence $ 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" W 80.42'; thence N 89°11'47" W 826.06'; thence N 00°48'13" E 200.00'; thence S 89°11'4'7" E 61.29' to the TRUE POINT OP 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 .g td;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" L,: 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" N, 946. 35 feet; thence N 00°48'13" E, 200. 00 feet; thence • • S.89°l1'47" E, 90.1.63 feet to the TRUE POINT OF BEGINNING, containing 4.3 acres morefor less .II: :. '12:4e'total purdhase 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 agreeement; ' T2) 'purchaser" pay:. remaining balance seventeen thousand dollars 017.460) over{ip''.years apt a. fixed interest rate of 9.5% with option. to recalculate mortgage whenever ak'lump sum payment pf five thousand dollars ($5,000) or.more is made. There are no..;pengities.,:for .paying off mortgage early and early payment is encouraged by both pasties. xrl. Conveyance 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: y. A3.i :nd'viorem real property taxes and all governmental or other assessments levied ainst said property for the current tax shall be divided equally between seller" er" shd :"purchasers .(Judy last was approximate date 'of verbal agreement). "Purchaier T! shall pay recording fees for recording the deed. "Seller" shall pay the recording fees for 7:01004'6f deed of trust. MD-150093D E 2 #,1 119890803 what the Dowell claimed in their Contract-Deed Binder.odf VI. "Pnrchaser",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. Owner or faintly 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 Flo Winter Deer Range, and arses the owners to adjust their lifestyle accordingly. W.I. This agreement is the entire, final and complete agreement of the paxti.es,tg the 'sale and purchase of said.property, ard:supersedes.and replaces •all `prior existing w�rittes :end--oral.agreements between•both parties:. ' rchaaer`,'•accepts-said property in its preae nt condition; as i.e; >inciuding latent :d ucts,./. $,hbut:.any •representations or warranties, expressed or implied, wpi asex" agrees;.`that;trpurc user" shall ascertain, frcia sources other Ah '"8el1a ", the ,ep it able r k�2�uilding, izo ' rid'other regulatory ordinances ipid•laws and:that ."purchaser": ¢carte i� d property with i+:uil `awareness of these. ozd�'nanoes l ws:as they t afi<rgt he pr t ruse gr, aril►• inter ed future use of .said•property, and "eelLe;", has de mo_ e� erse�t ens :with respect:to such: lava and br�linances. i�hi.s in tr=iunen cil?Zs nab :g�irar tai 'isap :arid► particular use may be made •of the property desciri:heid :S'ri this '. nat oaent•Q:.."Pu ra'haser" should c heck with the appropriate county planning p tent to m®#0. appYaved•uses; MD-150093D El* Pg# 2 .Ii)" 0t/ c : 193 .O07'7 [19890803 what the Dowell claimed in their Contract-Deed Binder.odf - Mark Hurchett ("seller") date N Puublic Ile "seller" CI;IicIAL fU/L JOYCE A STRAN `NQTAIIY PIOLIC$T.ATI OF ILLINOIS M1'`COMI. E1('. AUG. 29,1990 111X11111W1 ( kC) ti3\ Jeft',• ell vpurc aser" da e ,l att '.'Dowell l (�'pu c ase r") date • State::'of°fir'DYOrk) �aurity 'o€ Menrcie) SS.: • • On t e _' i'._day-of$epteinj�ier l9 9, before me personally appeared to ine mown and k o rn.. ta 4{e tp.^fie the. •4.:ndiv 44tial.t d a9rfbed ih and who executed the within instacumer t, , and ...•he/they .w N r�' , he tIi / ey'executed the same. • .. C ti ' EI�y it r3' • Q. ,p • d e 41114.0W itOg , ;"!ktote: please".a`end all subsequent tax documente to: Jeff Dowell • 422 :Lakeshore .Drive Hilton NY•` .4468-- MD-150093D Ea# 2) Pg# 3 193 'a 0078 19890803 what the Dowell claimed in their Contract-Deed Binder.odf «K.. ... . •.:�.,.+.. .. .ate ref:,, + •.•, ^r _ r',, a.. r+"•�'•r •s:•�f!•tj - ' " :r �ljJ' r .1+" k.�Y,:�e:' ;• COUNTY Of a aiu s`,) . t MAItTpE?ENNOt__t°,,--�I11 CUU• _ 1►.O'er ItLC DER•:OF'.C Dint N, )>E*. COUNTY; DQ.Hl1' OT1FX:Th*'I . I.wmf...pt summon olm.ThW tii►r..W' • 89'EP`' MD-150093D Ex# Pg# 4 89 9fr4 wool at COUNTY WICK'*MOM 1:19890803 what the Dowell claimed in their Contract-Deed Bind jer.bdf -- • ••••---. ,. „ , A 71 . lord boseriorfans or isstAbsillo*a 1.-° A!.° 19110 Fire bomb Coodroot-Otod cr, Provided by the Deschutes r-.I fo:2:: neKinilLORSAVO“CO '71 o j Chola b000nbibb-dbra County Assessor's Office :.i ,j■N'l i, 1,1111-014911 me 1 of Coohoet bad , Pored(11)b 4.80 Awn 0, CI 0: g :9 1 , 'bowl(I)b 440 floras 01; 41. & 1 ', Woo how a 11114 polio moth,'mole of 44 C .wiwo fo desarbod os find(I)from*lb ki 0 i : 1117 loolboso with lot km adjostiotat. oi 45 U. ' -n --I .• g pi._ < 0 r.s.a. • 0 g " a 0 0 - -,-c, I g 0 a ..., •I a 5 LI ci" =atn I r> t4,th 0 tai ta A. O 0 .i 0. < iii o P o --1 , V c■ .1 ., 'i'' t,i....- •-, , , •..k, ,,,, c(A 1 • cr. 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Pt w ` • A lie C) o k •) . ... .§. t g : M t r m v,tty, 03 A w _A. 1 'R, "4"7 6 ti I1 iw . gj,Tf - jr')-- i 1 6,52 i '11.11" 9 0) --,i tqh -61 P. .Atri \ c:"N ti w t 1 .." A 0 • 198908003 Dowell descriptions of Parcel (I)and Parcel(2)color.JPG 4 e ' MD-150093D E Pg#il 6 [19890803 what the Dowell claimed in their Contract-Deed Binder.odf I 19890803 bowel) Contract - Deed Recorded 19890928 with notes Pg la 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 w34.5 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 KUWN'e parcel, and it describes 4.3 acres of land. There is no mention of only 112 interest In what is supposed to be JOINT ownership. MD-150093D Ex# Z l Pg# 7 119890803 what the Dowell claimed in their Contract-Deed Binder.odf 19890803 bowel! Contract - Deed Recorded 19890928 with notes Pg lb The following is what the Dowel's 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 Dowel's 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. MD-150093D Ex# ZL Pg# 8 119890803 what the Dowell claimed in their Contract-Deed Binder.odf 1 19890803 bowel! Contract - Deed Recorded 19890928 with notes Pg 2 19 3 '"R 0 016 VT. "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 reprices all prior existing written and oral agreements between both pasties. 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 bra`tai+ farm li y mo�wrg may not acqui r0 4144104W044 46 �an the dogs 0 they 00Y +grew Vin thel 000000100:. All f dogs st die kept in $um o grey that tiny * , Dose iLn the .rea. Bogs allowed to r► ," w!ll disr apt. des tat.. 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 10". No barbed Wire or straight wire may be used for fencing. 5. Owners or ropily members may not take "target" practice with rifle or hand gun on property. • 6.• 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 life style accordingly. MD-150093D F # Z I Pg# e 9 119890803 what the Dowell claimed in their Contract-Deed Binder. ,df I D http://recordings.deschutes.org/Detail.asp?INSTRUMENT 1D=133399 ", _ 1 1 ` elks Office MD-150093D E761# Pg# 10 r' t-, t ; ,@ , . `Web Query 1200 NW W1 I It„fvlte 200,•land,Orr 6,1 97701•Pr541.298.134,•Ft541.3t2.4424 La°Ovt Document Details g scot tp Forward IIIEQ )return to Search Return to Results DOCV ENT r. 1989-024952 DOCtaaxrT1? D-DEED Doc ILatn7i: CON.Contract Records *demurer:DATT:971'1919 2:32:00 PM 9.2CO1DCtG TTL1: BOOK Anna 193.75 cOXL@IIGTIOx: 942,000 Olson TION: D-C 1.Contract oFSale 17tDE1732 Yet 1791T iD: l es AaCART DATA View Additional information IMAM Viva Documept;moat as TIT ti'iew•Document lmact as PDF eturu To �7iAl11AODRaS91AD0Rlf11 crrY sunfaP Ponies PARTY TM LOOT tcOMR FIRSTXA2¢ iszoima1T SWIM DIRECT BU9 1!ETT MARY. INDIRECT DOWELL JEFF INDIRECT DOWELL PATTI Legal Descriptions inn nTUOx LOT stoat DDtiCT1oN I PART l PART T1T[ nut I R'ic l IC7 QQ TAILOT PARCRL LIGALDi6CDaFIO( 16 II 19 3l9T16RItXI.2 Ran EERIE SI9T16R11 16 II 19 00 001 ! http//recordings,deschutos.org/Arohnrobata.asp?INST 10=133399 t, t,,t h I erks Office t, ri' s m ' ;Wo`b Query 1200 NW Wri It.,SuM 200,•Nnd,Oregon 97701•P.141,..211.0541•Ito 541.209.4429 dditional Information c1 ea4■ Forr+d .ai Return to Starch Return to Results LOCATION 193-75 Notts SEE DOCIJMLN7TORCO2.IPLETEIIOAL NOTIS -..—CONTRACT DEED Promo.xtaIIU 19.24952 MD-150093D Exit Z./ Pg# 10 C:\Docs‘prop65575\DowelllpdA890928 DesCeCkrh•Records_193.15_1989-024952.doc page I I 2/18f2006 E:17:47 AM Kuhn vs Deschutes County Assessor Scot Langton MD-150093D Ex# 21 ~P s# / 0 19890803 what the Dowell claimed in their Contract-Deed _Binder.pdf 2 - 3 November 2015 CtlOaa Clime WANDPrawn+n*&Aaaen2014-I n_s�enfalx6f Dvommo..thtdaaddeex wt+17 w e.Go I Kuhn vs Deschutes County Assessor Scot Langton MD-150093D Ex# 22-24 Pgs# 6? Dowell 1992 LM-92-9 22 19920204_Draft-1_LM-Supporting Doc with map Dowell to Cibelli with notes added .pdf 23 19920210 Blikstad to Dowell with MP map and Sight map attached 24 19920129_LM-92-9_Complete.pdf Does not include the discovery documents 2 - 3 November 2015 c: ■ .awsemeropnyTaxRA�Y1014 &dubsL.neaa D..nlems. ma. wnrc 18 ioiaioi 119920204_Draft-1_LM-Supporting Doc with map Dowell to Cibelli with notes added .pdf 2/4/92 (1st of two cover letters/versions sent) Frank Cibelli letter f to 041 WM*On on # Nib was 1972 N.E. 3rd. St. WOO 00'5 Nil Ps letter to Aiff\'bowsli oo 10 Fob Bend OR 97701 19928 This that the Dwells knew t, and or ly planned for their stroottire 'to he In fro* the lootheteil heilOw line as shown on the final partition p inap. Dear Frank, I had a long talk with Brian Harrington at the planning commission shortly after we spoke yesterday. He is the same contact that is currently processing/approving Thommy's application. We spoke at great length about how similar my application was going to be to Thommy's and he pointed out a couple of things that he wanted to see different on mine, and I 've made note of them below. I've also attached little yellow post-it notes to key areas of some of the documentation that I've enclosed. For your reference, I 'll make mention of them in my dialog and call them out by number. To take things from the beginning, on 12/31/91, I had my parents go down and pick up from Brian Harrington what he described as 'everything I needed' to submit my application. What I got was #1, #2, #3 & #4. In talking with Brian yesterday on the phone, he confirmed that the important elements of the application had been highlighted in yellow. I also made some notes on comments he made to me over the phone next to a few of the highlighted areas. I have enclosed a separate document, "Supporting Documentation, which addresses all of these to what I hope will be Brian's and the Planning Boards satisfaction. You might want to run this document by him early on in the process, just in case there are any major changes that need to be made to it. ���, . � � y, w M , ""...',F ' '>. r y ' �:`,, « �', .6°j'�"M� ° e.b A,* er'' a p, • �L` . „w' If you or Brian have suggested changes, just give me a call. I've got it all on the computer here so it's a snap to edit it as much as necessary. I have also enclosed the copies of Bartons Site Map and responses to the "regulations, ” as well as an overall topographical map to the area. I assume you are already familiar with them as it 's my understanding that you worked with he and JB very closely on his recent submission. These documents are labeled #5 & #6 respectively. Page X MD-150093D Eidi 1 Z Pg# 19920204_Draft-1_LM-Supporting Doc with map Dowell to Cibelli with notes added .pdf For *or ot e en e and tot itta w±;11 the OPP t*ort4 I Wit attettioti to the *ACT 'Atitge Ovettfriele,; Altistgitt iz &`, bf the *Sttpli)Ortitig Du ntat\t m. ' These stave you a 9000 illea nt the loosition# type and. ..a of ,o l va' in Mind' Please give me a call after you get this information and have a chance to go over it. I need to know that I gave you everything that you/we need to get this application submitted, approved and on-file. Can you give me an idea as to how long you think it will take to the work you need to do, and of equal importance, when you' ll have a chance to start working on it. IM 14 O aE it viQue. ► that it tteta 4.0 ehood of t fast^4pproachin9 zone ba ° 4-1 c to t a th ;S **elided activiOy .0 more than 1 I h s again ' yam. Si UtanCe. 0'04 anttid.X1 totticitat >P . \ail out Of tiospkot 01410000,4404 $-)3.00 SS we , S 'per ,iOatt ***Vet et fait , at " '0** ,'4 efkaA7t0 6tt 1 .' e shows the proposed ' id fins und the mod. Mr 000 a %*O O P400 WA MAO a00 ft Respectfully, bekev lire wig raft' he otki AriMtiOlOpp the hard poawd ant an'h°tinni P 'n**Ott 00P- *F-418,A4 ;Ora y. moot r4*6.40: Jeff T Do w e l 1 Mr. tooweS t PI 0100114100 Itt P d *IOW hail'".Itt N 422 Lakeshore Drive in latte Wanhlt 'ta**fa SOP* + at*410 Hilton NY 14468 lft 1 : Day: 800 888 7860 EST Eve: 716 392 7271 EST this letter from bowel' to 40,written on 4 Peb 1992 *as before 40W* Pool 'a letter to Jeff Dowell on 10 Feb. 1902. This shaem That the bowl* Was abbot, and ortfiktrilli planned for their Strtithire to be J front of the nuodonini tngkling a$ shown on:.lb*fkol POetttioe Piot Page 2 MD-150093D Ex# 22. Pg# 2 19920204_Draft-1_LM-Supporting Doc with map Dowell to Cibelli with notes added.pdf 2/7/92 (2nd of two cover letters/versions sent. This was approved by the planning board on 2/9/92. Done deal as z understand it. We're supposed to be getting written confirmation shortly and have one year to get building started) Frank Cibelli. 1972 N.E. 3rd St. send OR 97701 Dear Frank, I 've made some additions to the parts of the application as we talked about this weekend. If there needs to be furthre elaboration, let me know and I 'll add some more. I'll be in Chicago the next 3 days so if you need to get a hold of me, leave word here at the office and I' ll call you from there. Thanks, Respectfully, Jeff T Dowell 422 Lakeshore Drive Hilton NY 14468 Day: 800 888 7860 EST Eve: 716 392 7271 EST Page 3 MD-150093D Exit z Pg# 3 19920204_Draft-1_LM-Supporting Doc with map Dowell to Cibelli with notes added.pdf Supporting Documentation Forest Use 18.44. 020 ,Purpose Understanding the purpose of F-3 Zoning, following paragraphs address the burden of proof required, as well as carefully outline the intent and level of awareness and sensitivity of the people who already live in the properties immediately adjacent to mine. Perhaps the single most important point to bring to light in substantiating my case for allowing a house to put on this land is the fact that a precedent has already been set which deemed the properties immediately adjacent to this one, not suitable for forest use, and thus, not posing any threat or negative impact to the Purpose stated in 18 .44 . 010 . There is no irrigation or running water of any type in the area, thus no opportunity for crop or forest management and the soil content is predominantly sand and pumice dust, with a consistency barely sufficient to support patches of sage brush and a small number of juniper trees. The only way to get water is amounts sufficent for use is to drill a well, an even then, the amount available would support a single household. It would be nothing which could support forest or agriculture harvesting. To further support the above statement, it should be noted that within the last 18 months, a new residence has been erected on the tax lot 200 (see enclosed map labeled "Acreage Overview") immediately adjacent to my lot, a conditional use permit application very similar to this one has been granted for a house to be constructed on tax lot 500, and there has been a residence on tax lot 400 for the last 10+ years. Additionally, the following were conditions incorporated into a legally binding contract that I approved when I signed the purchase contract on this property: 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"x, 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 the 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 Page 4 MD-150093D E # ii Pg# j 19920204_Draft-1_LM-Supporting Doc with map Dowell to Cibelli with notes added.pdf owners to adjust their lifestyle accordingly. I can assure you that every precaution will be taken with respect to the actual building of the house and the required modifications to the area immediately surrounding the house. Forest Use 18.44.040 Limitations on Conditional Uses As was detailed in 18.44 .410, Purpose, above, this land has already been designated as not suitable for forest use, and as such, the conditions stated in 18 .44 .040, are all met as follows: A. This use is consistent with existing farm and forest uses as set forth in the stated articles. B. Establishment of this residence would in no way interfere with farm or forest use on adjacent lands because as noted above, none of the adjacent lands are suitable for such purposxee, or are being used for such purposes. C. This proposed use in no way alters the stability of the overall land use pattern of the area, and further, is very consistent with the immediately surrounding properties, as detailed in 18.44.010 above. D. This property is not suitable for timber production since the soil is very rocky and sandy and is covered by sparse scrub juniper, not to mention the fact that water is not present in seufficent amounts to support forest or agriculture management of any type. The precedent now in effect is that this area is generally known as being unsuitable for timber production and the production of farm crops and livestock, particularly when one considers the terrain, and adverse soil land and water conditions. The top soil is too thin are void of the necessary nutrients for good alfalfa or grass production or harvesting. Forest Use 18.44. 050 Limitations on Non-Forest Residential & Recreational Uses A. This use is consistent with these distance and proximity considerations and regulations. B. This stipulation does not apply, as there are no such surrounding uses or areas.. C. This proposed use will in no way negatively impact the current public services, existing road systems or traffic demands and/or fire protection support mechanisms. All. of these mechanisms are now in place for the existing residences in the area and will not be *ffeated by the addition of one more house. Relating specifically to fire protection, a pond on tax lot 400 was recently used for helicopter water- refilling during the "delicious road" fire will always be accessible for public use Page 5 MD-150093D Edi ?. Pg# c 19920204_Draft-1LM-Supporting Doc with map Dowell to Cibelli with notes added.pdf in fire emergency. D. Nothing in my proposed use of the land will in any way tax or affect the capacity of the soil type, or in any significant way alter it from it's current state. My proposed building site, and for that matter, the majority of my lot, is rock base, with minimal soil of any type. E. There is no forest production in the area. The nearest known forest production it3 at least 20 mikes away. F. My proposed home site is on a very gradual down slope, in an existing clearing, almost completely obscured from view on Sisemore Rd. With the possible exception of one or two 3-4 ft scrub junipers, no trees will be cut to accommodate my homesite or driveway. 4. This proposal is consistent with the Comprehensive Plan. H. A well will be dug similarly to those on tax lot 200 and 400 and it is assumed that it will produce the necessary quantity and quality of water to support my residence. The sanitary disposal systems and solid waste disposal will be handled by leech fields extending westward away from the proposed building site, all in accordance with established code. 1. The house site is situated so as to maximize the exposure to the southern sun during the winter. The existing house plans also call for a passive solar design, with the potential addition of active solar cells in the near future, particularly as the costs associated with such alternative energy sources continue to drop. J. Refer to "C" above K. The effects on natural resources, habitats and wildlife will be minimized. As mentioned earlier, the entire 'community' has been developed with the utmost emphasis on the existing natural habitat and the conditions outlined in the purchase contract for the property further assure that such will always be a top priority. This proposed house site will be very difficult to see from the road or the immediately surrounding area, as it sits at the base of a long gradual elope with trees and brush surrounding the clearing. The pond on let 400 also serves tc draw in and support a wide variety of wild-life which might not otherwise be present in such density in this area. L. J, Refer to "C" above Forest Use 18.44. 060 Dimensional Standards A. Please refer to the attached "Acreage Overview" for the approximate location and size of the lot. The overall lot itself is 40 acres in size, but it divided into three distinct parcels. The first is a parcel of approximately 3.4 acres owned by Bill and Leigh Kuhn (Map and Tax Lot a 16 11 19 00 00200) . The second is a parcel of the name approximate 1.4 acres, owned by me (Lot 100) . The remaining parcel, lot 300 is one which is shared in ownership by the two of us and is approximately Page 6 MD-150093D Ex# Z Z Pg# (o 19920204_Draft-1_LM-Supporting Doc with map Dowell to Cibelli with notes added.pdf 33.2 acres in size. This joint property is to be 'forever wild' and cannot, by contractual agreement, be built upon or altered in any way. Such was done to ensure a sufficient buffer zone to maintain the natural state of the habitats of the surrounding area. Wildlife Area Combining Zone 18. 88, 060 Dimensional Beds., A. Please refer to Forest Use, 18.44.060, Dimensional Standards, "A" above. Respectfully submitted, Jeff T Dowell 422 Lakeshore Drive Hilton NY 14468 Day: 716 247 7860 Eve: 716 3927271 Page 7 MD-150093D E # 22. Pg# `1 R' I ,E •Wo . • I19920204_Draft-1_LM-Supporting Doc with map Dowell to Gibelli with notes added.pdf .1 Vi44 I ;0 U 1 Y T Y S ED • .- - �• '„,, 1 1 1 .a.....d.dy4A440,,;P•i:). "A c, E. A. CC . „''A peciewLe de See Map 16 I1 . 440 fir'` • I 0 0 10g . - --;`: if. i , . ,,-...., . . I 4 7.1•°7-..-,.. ...1,...---- •••••-"--- 4'7-- irj-. Vii_ . t j ,w y�1 r ��+.` ti 'S t } - • 1,._ I i . .' , 4 ,„,., \ . .. , . . ...............,....,.... ..,,..,......„,„,.... . ..See Map 16 E • 920129_LM-92-9_Aore g.OverviewMap.QiF \\H . . : . - lg.) 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ConUit iuna L uAle, (cu-8O-22 aid M1IQr PaTtitlon 041:7-.-7923.2 or two nor-serest _ -dwi 7 gigs. on_t1 43 . 1-acre total- parcel. These land uae apprott1d 0,StabliShed tae two parcels for building ai.tesi nnd consequently at new conditional USe permit will not be required. The approvals dfd however, establish lish a iva ximui setback from SiseMcre Road of 400 feet• r am sending you a copy of the tifZ J.~1,a,. partition dawixrg which eetab141ec this rsetriivri4 iranX Cib4l1i has $111mitted n p ndM ape Maneyeinent Plan application on your Jathalf Vhi0h changed the locations of the dwelling site to Meet this 400-foot r$satricticn. The intent of this restriction was for preservation and protaoti an Of wildlife in the area. If you should have any questioned feed, free to r~:carstaot me At this office Sin.oerely1 sus sCMUrSs COUNTY PLANNING DIVISION Geo.rle J. 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''. ,....„..\\ I.: t: 1,0_, ... 0 7.„_.... 4.'4 • ..'..s,s. -. , • • nil 1 k if . a • q . „.... .. A: Z ki: .7---iG.Sts.4...4,....._: ...„ ; . 4:1‘ 7 11. :.....i. i....:11 le.4741\1\41\ : ..1‘:\\.:4th.:..:1..'...' . \.. N. . ....1. ",.• , 1 Ili t• !'k'; ,,vk,'-, ,,,,, •3•••i :f: 171'. .. • •\ ;.'' ..\,a• . i•••, , i k k ^'," OgN 1 .61\■ • ' '.'... \ 1, , • . .r.: •-. 7 •-.0.,• No 10,c.M. . ..,„G •• ,,,-...•'';Ld• • ••11) ■,-.._ . k •'.N .sc.. t LA', 14• 's k •-11.NY • • v ..t ..1413.: ;4',.i .k .-' .' l'I. • ..... 0•:. i:H‘.1,,• • IX ' " 11,', 4. 's • Z .14 % '".. •'4 • " '....". • 'al- . .1 4., ' •_ ' f. I. I ,t.1$, ,,,, q t .. I \\t,,,,, .til A •44, !-i vi 'A 44 • 44 \ \ ." k \• ,ki• 404 •,; ,,,,• 'Nk . ' . •%.,NIN.-Zt. ' ''i. •i.. 4 ki:• * :.• 4 .,:No. , t,.. ,rit, r'-• k.,,;• .• k %"•?. .ii . I.. • • 'v' '' ti \ . \ '," 'R e •;a ',..1 k .• • • • • .14 ''/ fli A.,... • •,..b e L ••ct e. Qe• •••Q, ‹). a e• ,.., .• • • oar .Q..• -0, ':,%•:.•%•.. • . . . •H • 1.1 1 ....• \ , , ' ,. .... .. ... . ..., :&• ......L.....a .b: . , . . t . . v FINDINGS AND DECISION FILE NUMBER: LM-92-9 APPLICANT: Jeff Dowell PROPERTY OWNER; Mark Burchett REQUEST: The applicant is requesting approval of a land use permit to construct a single family dwelling in a Landscape Management Combining Zone. REVIEWER: Brian Harrington APPLIC4.BLE STANDARDS AND CRITERIA: Title 18 of the Deschutes county Code, the county Zoning Ordinance: Section 18.44, Forest Use Zone - F3. Section 18.84, Landscape Management Combining Zone. Section 18.88, Wildlife Area Combining Zone -, WA. Section 18.124, Site Plan Approval Criteria. Title 22, the Deschutes County Procedures Ordinance. PL-20, the Deschutes County Comprehensive Plan, Year 2000. NASIC FINDINGS: 1. LOCATION: The subject property is located approximately 1/2 mile south of the intersection of Kohfield Road and Sisemore Road, and is further identified on the Deschutes County Assessors Map #16-11-19 as tax lot 100. 2. ZONING: The property is zoned F3/WA/LM, Forest Use, Wildlife Area Combining Zone, and Landscape Management, and is designated Agricultural and Landscape Management on the Deschutes County Comprehensive Plan. LM-92-9 Page 1 )q92 °316,?.... MD•150093D Ex#2.3 bPg# 3. SITE DESCRIPTION: The subject property contains approximately 3.4 acres with the predominant vegetation being juniper trees and sagebrush. The terrain slopes moderately to the north and contains rocky soils with some scattered natural clearings. According to the applicant, and confirmed by a Staff site visit, visibility from the designated scenic road., Sisemore Road is screened by the existing vegetation and topography. The subject parcel was created by a Conditional Use Permit (CU-80-22) , and Minor Partition (MP-79-232) for two nonforest dwelling sites on the 43.1 acre total parcel. These approvals established the two parcels for building sites which required a maximum....._,.4OO 40W, setback from Sisemore Road retaining approximately 33 acres for the protection and preservation of wildlife in the area. 4. PROPOSAL: The applicant is requesting approval of a Landscape Management Plan to construct an approximate 1568 square foot dwelling residence within 1/8 of a mile of the designated scenic road, Sisemore Road. The applicant has submitted a Burden of Proof Statement, site plan and construction design in support of their application. 5. SURROUNDING PROPERTY: The surrounding property to the south contains the second parcel approved for a nonforest dwelling in 1980, (CU-80-22, and MP-79-232) . The parcels to the west also contain two nonforest dwellings approvals on 20 acre parcels of similar rocky terrain. Surrounding the subject parcel and the parcels to the west are public lands managed by the Bureau of Land Management. All surrounding property is zoned F3/WA/LM. 6. The parcel is a legal Lot of Record created by an approved Minor Partition in 1979, (MP-79-232) . CONCLUSIONARY FINDINGS: Conformance with Title 18, the Deschutes County Zoning Ordinance. 1. Section 18.84, Landscape Management Zone. Subsection 18.84.080, Design Review, states that in reviewing applications the Planning Director and Hearings Officer shall consider the following: A. "Height, width, color, bulk and texture of the proposed building or structure to assure that the building or structure is visually compatible with the surrounding natural landscape and does not unduly generate glare or other distracting conditions." The Planning Division finds that according to the LM-92-9 Page 2 MD-150093D Ex 3b pg#¢ plans submitted, the proposed dwelling will be a single story structure containing approximately 1568 square feet. The structure will have a pitched composition roof, colored natural weather wood, and the exterior cedarwood siding will be natural earthtone colors. Planning Staff finds the proposed addition will be compatible with the surrounding landscape and will not generate any distracting conditions. B. "Retention of existing plant materials and natural features so as to retain as much as possible the natural character of the area." The Planning Division finds that according to the plans submitted, the applicant indicates there will be no substantial alteration in the existing landscape. Staff finds that the proposal meets this criteria. C. "Establishment of introduced landscape materials to assure compatibility with existing vegetation, reduce glare, direct automobile and pedestrian circulation and enhance the overall appearance of the development while not interfering with the views of oncoming traffic at access points or views of mountain, forests, and other open and scenic areas as seen from the proposed site." The applicant indicates that there will be no substantial alteration in the existing landscape. D. "Nothing in this section shall be construed to prevent the use of accepted agricultural practices, crops or equipment or restrict the construction of innovative residences, i.e. 'dome' houses, except where their design or siting unduly diminishes ,the aesthetic qualities of the area." Staff finds that the proposed structure will not unduly diminish the aesthetic qualities of the area. 3. Section 18.124.060, Site Plan Approval Criteria. (1) . "The elements of the site plan shall relate harmoniously to the natural environment and existing buildings and structures having a visual relationship with the site." The Planning Division finds that the proposed structure will be compatible with other structures in the surrounding area. (7) . "In the Landscape Management zone, emphasis shall be placed on maintaining the existing landscape close to travel routes as well as any view of distant vistas." LM-92-9 Page 3 MD-150093D E423 b pg#3 I The applicant has proposed a building site which is partially screened from Sisemore Road by the existing topography and vegetation and is located as far from the road as possible, given the existing site plan and conditions of approval requirements of cU-80-22. The Planning Division finds that the proposal meets this criteria. CONCLUSION: It appears the applicant can meet all necessary criteria for approval if the following conditions are met. DECISION: APPROVAL CONDITIONS OF APP OVAI{: 1. The applicant shall obtain a Building Permit from the County Building Division prior to construction. 2. The applicant shall obtain approval for a method of sewage disposal from the Deschutes County Environmental Health Division prior to construction. 3. Any substantial change in the location of the addition shall require a new application. 4. The applicant shall meet all conditions of this approval and construct the addition on the property within one (1) year following the date of this mailing or this approval shall be void. This decision shall become final ten (10) days following the date of this mailing unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION George J. Read, Planning Director BJH:mic LM-92-9 Page 4 MD-150093D Ex#23 6 P9# 4 ci 19920129_LM-92-9 Complete.pdf Community Development Department Administration Bldg:/1130 N.W.Harriman/Bend.Oregon 97701 (503)388-6575 . FEE: APPL[CATION FORA PER T ' aNDSC�1PE M GET LONE APPLICANT r S NAM F W E I.._.L PRONE r11(, raW) 18 6 0 l T 1 T G ADDRESS � 3' 1� L V Z. - i 1"t 0 Q 7 k _ PROPERTY DESCRIPTION T 1 b R / S 141 TAX LOT / 00 PROPS CLIZ ADDS 1/ . - - • • ZIP ZONING LM/ PROPOSED USE _ DESCRIPTION OF PROPOSED STRUCTORE(S) AND LANDSCAPING: Type of exterior material? a joie Color? y .cry Type of roofing material? L. Color? cuvop Describe `vegetation to be removed and proposed landscaping for the site: SUBMIT THE FOLLOWING WITH TflIS APPLICATION NORM: (1) A plot plan, drawn to scale, showing: * Location and dimensions of existing and proposed buildings, access, septic system, well and other improvements * Lo ation, size • and species of existing vegetation six (6) inches in diaMeter or greater. * Setbacks from lot lines (and river and rib:tack, if present) . (2) A drawing of the proposed building elevations showing exterior ° appearance, height and size. (3) A landscape plan, if introduced landscaping will be used. . (4) A vicinity map shoaling directions to the property from the nearest highway_ • • APPLICANT DATE (Si ature)PROPERTY OWNER \NIA(lf other than ap• i.=n\r‘l (Sl grlature) • 1 INCO '-EDIMM S W NOT BE ACC i M1)11500920 INV Zy F # .i f el. 19920129_LM-92-9_Complete.pdf Supporting Documentation Forest Use 18.44. 010 - Purpose understanding the purpose of F-3 Zoning, following- paragraphs address the burden of proof required, as well as carefully outline the intent and level of awareness and sensitivity of the people who already live in the properties inns iately adjacent to mine. Perhaps the single Trost important point to bring to light in substantiating my case for allowing a house to put on this land is the fact that a precedent has already been set which deemed the properties irrnediately adjacent to this one, .not suitable for forest use, and thus, not posing any threat or negative impact to the Purpose stated in 18.44.010. There is no irrigation or running water of any type in the area, thus no oppeTtunity for crop or forest rrenagei+ent and the soil content is predcminantly sand and pumice dust, with a consistency barely sufficient to support patches of sage brush and a areal nun er of juniper trees. The only way to get water is amounts sufficent for use is to drill a well, an even then, the amount available would art a single household. It would be nothing which could support forest or agriculture harvesting. 'lb further support the above statarent, it should be noted that within the last 18 months, a new residence has been erected on the tax lot 200 (see enclosed map labeled "Acreage Overview") irrmt i i.ately adjacent to Try lot, a conditional use permit application very similar to this me has been granted for a house to be constructed on tax lot 500, and there has been a residence on tax lot 400 for the last 10+ years. Additionally, the following were conditions incorporated into a legally binding contract that I apprroved. when I signed the purchase contract on this property: . 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. ' Page 2 • MD-150093D Ex# 1 .Pg# 19920129_LM-92-9_Complete.pdf handgun on the 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. I can assure you that every precaution will be taken with respect to the actual building of the house and the required modifications to the area i iately surrounding the house. Forest Use 18.44. 040 Limitations on Conditional Uses As was detailed in 18.44.010, Purpose, above, this land has already been designated as not suitable for forest use, and as such, the conditions stated in 18.44.040, are all met as follows: A. This use is consistent with existing farm and forest uses as set forth in the stated articles. B. Establishment of this residence would in no way interfere with farm or forest use on adjacent lands because as noted above, none of the adjacent lands are suitable for such purposes, or are being used for such purposes. • C. This proposed use in no way alters the stability of the overall land use pattern of the area, and further, is very consistent with the innediately surrounding properties, as detailed in 18.44.010 above. D. This property is not suitable for timber production since the soil is very rocky and sandy and is covered by sparse scrub juniper, not to mention tha fact that water is not present in sufficent amounts to support forest or agriculture management of any type. The precedent now in effect is that this area is generally known as being unsuitable for timber production and the production of farm crops and livestock, particularly when one considers the terrain, and adverse soil land and water conditions. The top soil is too thin are void of the necessary nutrients for good alfalfa or grass production or harvesting, Forest Use 18.44.050 Limitations on Non-Forest Residential & Rsgreational Uses A. This use is consistent with these distance and proximity • . considerations and regulations. B. This stipulation does not apply, as there are no such surrounding uses or areas. Page 3- i MD-150093D Ex# Z V Pg# �... 19920129LM-92-9_Compiete.pdf C. This proposed use will in no way negatively impact the current 1 public services, existing road systems or traffic demands and/or fire protection support mechanisms. All of these mechanisms are now in place for the existing residences in the area and will not be affected by the addition of one more house. Relating specifically to fire protection, a pond on tax lot 400 was recently used for helicopter water-refilling during the "delicious road" fire will always be accessible for public use in fire emergency. A. Nothing in my proposed use of the land will in any way tax or affect the capacity of the soil type, or in any significant way alter it from it's current state. My proposed building site, and for that matter, the majority of my lot, is rock base, with minimal soil of any type. E. There is no forest production in the area. The nearest known forest production is at least 20 males away. F. My proposed home site is on a very gradual down slope, in an existing clearing, almost completely obscured from view on Sisemore Rd. With the possible exception of one or two 3-4 ft scrub junipers, no trees will be cut to accommodate my homesite or driveway. G. This proposal is consistent with the Comprehensive Plan. H. A well will be dug similarly to those on tax lot 200 and 400 and it is assumed that it will produce the necessary quantity and quality of water to support my residence. The sanitary disposal systems and solid waste disposal will be handled by leech fields extending westward away from the proposed building site, all in accordance with established code. I. The house site is situated so as to maximize the exposure to the southern sun during the winter. The existing house plans also call for a passive solar design, with the potential addition of active solar cells in the near future, particularly as the costs associated with such alternative energy sources continue to drop. J. Refer to "C" above K. The effects on natural resources, habitats and wildlife will be minimized. As mentioned earlier, the entire 'community' has been developed with the utmost emphasis on the existing natural habitat and the conditions outlined in the purchase contract for the property further assure that such will always be a top priority. This proposed house site will be very difficult to see from the road or the immediately surrounding area, as it sits at the base of a long gradual slope with trees and brush surrounding the clearing. The pond on lot 400 also serves to draw in and support a wide variety of wild-life which might not otherwise be present in such density i.n this area. L. J. Refer to "C" above MD-150093D Emit ZIA Pg# Page 4 19920129_LM-92-9_Compiete.pdf Forest Use 18.44.060 _ Dimensional Standards A. Please refer to the attached 'Acreage overview' for the approximate location and size of the lot. The overall lot itself is 40 acres in size, but it divided into three distinct parcels. The first is a parcel of approximately 3.4 acres owned by Bill and Leigh Kuhn (Map and Tax Lot # 16 11 19 00 00200) . The second is a parcel of the same approximate 3.4 acres, owned by me (Lot 100) . The remaining parcel, lot 300 is one which is shared in ownership by the two of us and is approximately 33.2 acres in size. This joint property is to be 'forever wild' and cannot, by contractual agreement, be built upon or altered in any way. Such was done to ensure a sufficient buffer zone to maintain the natural state of the habitats of the surrounding area. Wildlife Area Combining Zone 18.88. 060 Dimensional Stds A. Please refer to Forest Use, 18.44.060, Dimensional Standards, "A" above. Respectfully sulani.tted, Jeff T Di ll . 422 Lakeshore Drive Hiitcn NY 14468 - Day: 716 247 7860 Eve: 716 392 7271 •:t:.: :;:: MD-150093D Ex# Pg# t• Pages \ . 19920129mmL.M-92-9_Complete.pdf n s Y s A ± z31 ki 1 l'' )1" 0 ' 1' 4 Pt i v 71V. t' k (-4, ,..i N. 4 \ ak ^ 014 \ J Q■ \ \ \4 fr ~ `� oft c I ` * `'I n V 1 �' 7°' w i A ' \ II61 ...\ 1/49 'bN1 c, . `"*"-';'—i---:4 ;10 1A.3 'N \ • v a T` n°` a fi \ \ \ \\" 0 "4,, G -1 , sk, 4'N'.-- a 4 k er \\Iti 1, dr,,11...-11. \ e , e 6, ________ tP .-----------„, 1 P ' ‘,3, fl.' "Ni \ )sti t. t' NIV I' c" ' , zi t 3\ ,,,' \ (-D E, ;1,11 -7 -2 t \ 4 Z' j i -cil ---- \\NN. 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O 0 `�� 19920129LM-92-9_Complete.pdf `�/ r <r,, �J/ ,f"f�1w rFr� Community Development Departirent • ' "tip -' � rr Admint rrtian 5idg,/ 113th N.W. H©rrin tt/ Bend.drown 97701 ( 13B5-5575 'ebru. ry 1.c1, 199 E C nuI4n Divisinn 15uibsng Safety Divis+ n Erviroorrieilco H�Ith D ivision .Neff Dowell 42;?_ Lakeshore Dri.Ve aalton, New York 144e8 Dear Mr. Dowel's The p "operty you own adip aht to Sieemor Real, described 40 16,.11'.L9 , tax lot 10o, wet created by a Conditional UU© (CU-8G^22 _and! Miner Partition (MP X9.232) for two non-forest dw'r "tr c:s` sites on_the 43 . 1-acre total. paroel. 'thine land u$e approvals estabzished the two parcels for building site and Consequently Gt new conditional u e permit will not be raiiuired. The approvals did however, establish 4 alaximum setback from Sisemore Road of 400 feet. I am sending yOu a copy of the orricial p PattitiL711arttwi#43 which eatablieed this reatrictiori. FranX Cibelli hiti auDloitted n Tinnc1sc_apR Manngemant Plan app1ioation on your benhir I+thich change* 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. - rf you should have eny questions,+, feel fres to contact me ett this office, sincerely, Dxs E T I C c T IIY PLNINXMG DTVXSSXON Gpcf.p J. 4ad( :..:Flenoin5 ntfiector 142Uti tarAPAtP - Pftui Bl iketnd 1 ?seociate. Planner MD-150093D E # z� # 15 ttlk �i_ t( a 7 4 il xi tA A . () I J k Id A N F_ 4 ♦ �� �f W ° .r %, 1 - f . 1 ' I j; < . p i a �.! i< 0 w � z J t 1- wb CO 0. a firl 1 i La N N w W 41 .1' u•n n •11 \ (fi t Li cn 3 4 ROD • UDD II k ? 1 t Fw��'e��( o s ,'• % inyt4M4q a .i) 'till L fl o4� w N M 11' - 1-Di) \ \ .1 «y �\ ti�vv 4 q��,1 pN �g _. Q. Vte.va , w,, 0 I. N.% M 4 �\ • VOV -ry p 1� I, 0 li N Ayr InN� t `• \off ft oMp �ti = D t d �,^� ` Atiti hN rN 444%it tit h ■ltt y\\ % liv , :l a)N V f` A e! 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REVIEWER: Brian Harrington APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, the County Zoning Ordinance: Section 18.44, Forest Use Zone - P3. Section 18.84, Landscape Management Combining Zone. Section 18.88, Wildlife Area Combining Zone - WA. Section 18.124, Site Plan Approval Criteria. Title 22, the Deschutes County Procedures Ordinance. PL-20, the Deschutes County Comprehensive Plan, Year 2000. 8AS.IC FINDIW : 1. LOCATION; The subject property is located approximately 1/2 mile south of the intersection of Kohfield Road and Sisemore Road, and is further identified on the Deschutes County Assessors Map #16-11-19 as tax lot 100. 2. ZONING: The property is zoned F3/WA/LM, Forest Use, Wildlife Area Combining Zone, and Landscape Management, and is designated Agricultural and Landscape Management on the Deschutes County Comprehensive Plan. LM-92-9 Page 1 3 Plc'2 MD-150093D ��# Z� # � ... 119920129_LM-92-9_Complete.pdf 3. SITE DESCRIPTION: The subject property contains - approximately 3.4 acres with the predominant vegetation - being juniper trees and sagebrush. The terrain slopes moderately to the north and contains rocky soils with some scattered natural clearings. According to the applicant, and confirmed by a Staff site visit, visibility from the designated scenic road, Sisemore Road is screened by the existing vegetation and topography. The subject parcel was created by a Conditional Use Permit (CU-80-22) , and Minor Partition (MP-79-232) for two nonforest dwelling sites on the 43.1 acre total parcel. These approvals established the two parcels for building sites which required a maximum......._4DO!., setback from Sisemore Road retaining approximately 33 acres for the protection and preservation of wildlife in the area. 4. PROPOSAL: The applicant is requesting approval of a Landscape Management Plan to construct an approximate 1568 square foot dwelling residence within 1/8 of a mile of the designated scenic road, Sisemore Road. The applicant has submitted a Burden of Proof Statement, site plan and construction design in support of their application. 5. SURROUNDING PROPERTY: The surrounding property to the south contains the second parcel approved for a nonforest dwelling in 1980, (CU-80-22, and MP-79-232) . The parcels to the west also contain two nonforest dwellings approvals on 20 acre parcels of similar rocky terrain. Surrounding the subject parcel and the parcels to the west are public lands managed by the Bureau of Land Management. All surrounding property is zoned F3/WA/LM. 6. The parcel is a legal Lot of Record created by an approved Minor Partition in 1979, (MP-79-232) . CONCLUSIONARY FINDINGS: Conformance with Title 18, the Deschutes County Zoning Ordinance. 1. Section 18.84, Landscape Management Zone. Subsection 18.84.080, Design Review, states that in reviewing applications the Planning Director and Hearings Officer shall consider the following: A. "Height, width, color, bulk and texture of the proposed building or structure to assure that the building or structure is visually compatible with the surrounding natural landscape and does not unduly generate glare or other distracting conditions." The Planning Division finds that according to the LM-92-9 Page 2 MD-150093D He 2.4 Pg# t�i 19920129_LM-92-9_Complete.pdf plans submitted, the proposed dwelling will be a single story structure containing approximately 1568 square feet. The structure will have a pitched composition roof, colored natural weather wood, and the exterior cedarwood siding will be natural earthtone colors. Planning Staff finds the proposed addition will be compatible with the surrounding landscape and will not generate any distracting conditions. H. "Retention of existing plant materials and natural features so as to retain as much as possible the natural character of the area." The Planning Division finds that according to the plans submitted, the applicant indicates there will be no substantial alteration in the existing landscape. Staff finds that the proposal meets this criteria. C. "Establishment of introduced landscape materials to assure compatibility with existing vegetation, reduce glare, direct automobile and pedestrian circulation and enhance the overall appearance of the development while not interfering with the views of oncoming traffic at access points or views of mountain, forests, and other open and scenic areas as seen from the proposed site." The applicant indicates that there will be no substantial alteration in the existing landscape. D. "Nothing in this section shall be construed to prevent the use of accepted agricultural practices, crops or equipment or restrict the construction of innovative residences, i.e. 'dome' houses, except where their design or siting unduly diminishes the aesthetic qualities of the area." staff finds that the proposed structure will not unduly diminish the aesthetic qualities of the area. 3. Section 18.124.060, site Plan Approval Criteria. (1) . "The elements of the site plan shall relate harmoniously to the natural environment and existing buildings and structures having a visual relationship with the site." The Planning Division finds that the proposed structure will be compatible with other structures in the surrounding area. (7) . "In the Landscape Management zone, emphasis shall be placed on maintaining the existing landscape close to travel routes as well as any view of distant vistas." LM-92-9 Page 3 MD-150093D Ex# Pg# lb 19920129_LM-92-9_Complete.pdf The applicant has proposed a building site which is partially screened from Sisemore Road by the existing -- topography and vegetation and is located as far from the road as possible, given the existing site plan and conditions of approval requirements of CU-8O-22. The Planning Division finds that the proposal meets this criteria. CONCLUS : It appears the applicant can meet all necessary criteria for approval if the following conditions are met. DECISION: APPROVAL CONDITIONS OF APPROVAL: 1. The applicant shall obtain a Building Permit from the County Building Division prior to construction. 2. The applicant shall obtain approval for a method of sewage disposal from the Deschutes County Environmental Health Division prior to construction. 3. Any substantial change in the location of the addition shall require a new application. 4. The applicant shall meet all conditions of this approval and construct the addition on the property within one (1) year following the date of this mailing or this approval shall be void. This decision shall become final ten (10) days following the date of this mailing unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION George J. Read, Planning Director BJH:mic LM-92-9 Page 4 MD-150093D Ex# 2,14 Pg# 1 03/22/00 WED 17:53 FAX 541 383 1764 Des. Co. CDD la 001 19920129_LM-92-9_Complete.pdf w 0106 1368 Chapter 18.44 (D. Dwellings and other buildings,includ- ing manufactured homes in accordance with FOREST USE-F-3 ZONE Section 18.116.070, customarily provided in • conjunction with forest uses set forth in Sections: paragraph (B), above, upon approval by the 18.44.010 Purpose Planning Director of a forest management 18.44.020 Uses Permitted Outright plan.] (Ord. 91-005§26, 1991) 18.44.030 Conditional Uses Permitted E. Dwelling, including manufactured 18.44.040 Limitations on Conditional home in accordance with Section 18.116.070, Uses and other buildings customarily provided in 18.44.050 Limitations on Non-Forest conjunction with forest uses as specified in Residential and Recreational paragraph (B), above, upon approval by the Uses Planning Director or Hearings Body of a 18.44.060 Dimensional Standards forest management plan. [Dwellings and 18.44.070 Yards and Setbacks other buildings customarily provided in con- 18.44.080 Stream Setbacks junction with forest uses set forth in para- 18.44.090 State Law Controls graph (B), above.] 18.44.100 Rlmrock Setback F. Exploration for minerals. (Ord. 91- 002§ 10, 1991) In an F-3 Zone, the following regulations shall apply: 18.44.030 Conditional Uses Permitted, A. Manufactured home as a secondary 18.44.010 Purpose. accessory farm or forest use dwelling,subject The purposes of the F-3 Zone are to con- to the provisions of Section 18.116 070. (Ord. serve and protect designated forest lands for 91-005 §i 27, 1991) small commercial woodlot operations; to B. Operations conducted for exploration, conserve and protect watersheds, wildlife mining and processing of geothermal habitats, and other forest associated uses; to resources as defined by ORS 522.005; explo- protect scenic values; to provide for agricul- ration and extraction of natural gas or oil; turai uses; to assure orderly and planned surface mining mineral and aggregate development of public and private recrea- resources exclusively for on-site personal, tional and other uses which are compatible farm or forest use, or in conjunction with with forest use and to minimize potential maintenance of irrigation canals. (Ord. 90- hazards or damage fir e pollution, 014§ 1990) erosion or urban development. C. Private parks, playgrounds, hunting and fishing preserves,campgrounds and other 18.44.020 Uses Permitted Outright. commercial recreational facilities serving the The following uses and their accessory uses general public. are permitted outright: D. Parks, playgrounds, campgrounds, A. Fern use, as defined in ORS group camping or community centers owned 215.203(2). and operated by a governmental agency or 1 B. Management,propagation orhatvest- non-profit community organizations. ing of a forest product. E. Personal-use landing strip for air- C. Utility facilities necessary for public planes and helicopter pads, including associ- service, except landfills or commercial facili- ated hangar, maintenance and service facili- ties for the purpose of generating power for ties. (A personal-use landing strip as used in public use by sale. _ this section means as airstrip restricted except for aircraft emergencies to use by the owner post-it'Pax Note 7671 °" /2. eat L( C°1bep'• Co. .5..wk6 CArrIi , Ph., Phona R g$6-176 9 , �,� MD-150093D Ex# Z� Pg# 03/22/00 WED 17:53 FAX 541 385 1764 Des. Co. CDD W002 19920129LM-92-9_Camplete.pdf 0106 1369 and on an infrequent and occasional basis by forth by the Comprehensive Plan.] (Ord. 91- his invited guests,and by commercial aviation 005 §28, 1991) activities in connection with agricultural or K. Destination resorts. forestry operations. No aircraft may be based L. Cluster developments. on a personal-use landing strip other than M. Landfills when a written tentative those owned or controlled by the owner of approval by the DEQ of the site is submitted the airstrip. Exception to the activities per- with the conditional use application. mitted under this definition may be granted N. Time-share unit or the creation through waiver action by the Aeronautics thereof. (Ord. 83-033 §4, 1983) Division in specific instances. A personal-use 0. Hydroelectric facility, in accordance airport lawfully existing as of September 1, with Sections 18.116.130 and 18.128.040(V). 1975,shall continue to be permitted subject to (Ord.86-018 § 10, 1986) any applicable regulations of the Aeronautics P. Storage, crushing and processing of Division.] minerals, including the processing of aggre- F. Commercial utility facilities for the gate into asphaltic concrete or portland purpose of generating power for public use by cement concrete,when such uses are in con- sale. junction with the maintenance or construction O. Home occupations carried on by of public roads or highways. (Ord.90.014 § residents as an accessory use within their 37, 1990) dwelling or other buildings customarily pro- Q. Dude ranch. vided in conjunction with farm or forest use. R. Partition, planned development or H. A facility for the primary processing subdivision in accordance with the terms of of forest products, provided that such facility this ordinance; Deschutes County Code Title is found to not seriously interfere with other 17,the Subdivision/Partition Ordinance and . forest and farming practices and is compatible the Comprehensive Plan. with forest and farm uses. Such a facility may be approved for a one-year period which is 18.44.040 Limitations on Conditional renewable. These facilities are intended to be Uses. only portable or temporary in nature. The Conditional uses permitted by this section primary processing of a forest product, as may be established otr non-productive timber used in this section,means the use of a porta- lands upon findings by the Planning Director ble chipper or stud mill or other method of or Hearings Body that each such use [The initial treatment of a forest product in order following limitations shall apply to conditional to enable its shipment to market. Forest uses permitted by this section. products, as used in this section, means A. Conditional uses permitted by this timber grown upon a parcel of land or contig- section may be established on non-productive txous land where the primary processing timber lands upon a finding by the Hearings facility is located, Officer that each such use:] I. Stables and the boarding of horses A[a]. Is consistent with farm and forest for profit.[, stables and dude ranches.] uses, and is consistent with the intent and L Single-family dwelling,including[or] purposes set forth in the State Forest manufactured home subject to[in accordance Practices Act, the Comprehensive Plan and with]Section 18.116.070,not provided in con- this ordinance. junction with forest or farm use.[; partitions, B[b]. Does not interfere with accepted planned developments and subdivisions in forest management practices and farming uses accordance with the terms of this ordinance on adjacent lands devoted to farm and forest and County Ordinance PL-I4,and policies set use. 48 MD-150093D fix# 24 Pg# 18 03/22/00 WED 17:54 FAX 541 385 1764 Des. Co. CDD Q003 19920129_LM-92-9_Complete.pdf - 0106 1370 C(cj. Does not alter the stability of the indicate a future zone change for the existing overall land use pattern of the area. pattern. D[d]. Is situated upon generally unsuitable H. An adequate quantity and quality of land for timber production and the water, either subsurface or other sanitary production of farm crops and livestock, con- disposal systems and adequate provisions for sidering the terrain, adverse soil or land solid waste disposal. conditions,drainage and flooding,vegetation I. Provisions to conserve energy or to and location and size of tract. become energy self-sufficient,considering the application of current and readily available 18.44.050 Limitntions on Non-Forest technologies for alternate forms of energy and Residential and Recreational power generation and recycling, in the Uses. structural designs. In addition to other standards and condi- J. Provisions for fire safety measures, tions set forth in this chapter, the following K. Effects on natural resources,habitats . factors shall be considered [limitations shall and wildlife. be applied]in the evaluation of an application L Factors set forth in the guide pub- for a use permitted by Section 18,44.030(J), lishcd by the Northwest Inter-Agency Fro above. Prevention Group entitled"ire Safety Con- A. The dwelling shall not be located siderations for Development in Forested within one mile of a primary forest product Areas." processing fadllty or within one-quarter mile (A mobile home shall not be permitted as a of commercial forest or agricultural lands not non-farm or non-forest residence...repealed owned by the applicant, by Ord. 91-005 $29, 1991) B. Provision Is made for a buffet between commercial forest or agricultural 18.44.060 Dimensional Standards, lands and the proposed use.. In an F-3 Zone, the following dimensional C. Immediate and future impact on standards shall apply: public services, existing road systems and A. Lot Area, 20 acres, except that traffic demands and fire protection systems. destination resorts shall be allowed to D. Soil type and its development limits- proceed according to the density standard dons, including susceptibility to slides, contained in Section 18.128.040(S)(d). erosion,flooding and drainage and provisions B. 'Minimum average lot width shall be to minimize possible adverse effects resulting 150 feet. therefrom. C. Density Factor. Planned and cluster E. Effects on forest or timber and developments shall be allowed an equivalent forage agricultural productivity Including the density of one unit per 15 acrd, production of any other usable forest or D. Except as otherwise requiredd by this agricultural product which requires open section,minimum lot sizes for uses permitted space and a non-urban environment. hi paragraph (C), above, shall be as deter- F. Density of development shall be mined by the Planning Director or Hearings designed to minimize adverse effects on Body[Officer]to be necessary for the protect- terrain,slope and ground cover and shall be tion of public health,safety and welfare, the in compliance with applicable Comprehensive objectives of this section and applicable state Plan policies. and Comprehensive Plan policies. G. Development and density shall be compatible with the existing land use pattern 18.44.070 yards and Setbacks. providing the Comprehensive Plan does not A. The front yard setback shall be 40 feat from a property line[from the property 49 MD-150093D Extt 2-4" Pg# 19 03/22/00 WED 17:54 FAX 541 385 1764 Des. Co. CDD U004 19920129_LM-92-9_Complete.pdf 0106 1371 line shall be 40 feet for property] fronting on 18.44.100 Rimruck Setback. a local street, 60 feet from a property line Setbacks from rimrock shall be as provided fronting on a collector right-of-way and 100 in Section 18.116.160. (Ord.86-05 0 9,1986) . feet from a property line fronting on an arterial. B. Each side yard setback shall be a minimum of 25 feet, except a parcel or lot with a side yard adjacent to forest land shall have a minimum side yard of 100 feet. [and for parcels or lots with side yards adjacent to forest lands,the adjacent side yard shall be a minimum of 100 feet.] C. Rear yards shall be a minimum of 25 feet, except parcels or lots with rear yards adjacent to forest land shall have a minimum rear yard of 100 feet.[for parcels or lots with rear yards adjacent to forest lands,said rear yard setback shall be a minimum of 100 feet.] D. The setback from the north lot line shall meet the solar setback requirements in Section 18.116.180. (Ord.83-037§12, 1983) 18.44.080 Stream Setbacks. All sewage disposal installations, such as outhouses,septic tanks and drainfield systems, shall be set back from the ordinary high water [line or] mark along all streams and lakes a minimum of 100 feet, measured at right angles to the ordinary high water [line or] mark. All structures, buildings or similar permanent fixtures shall be set back from the ordinary high water [line or] mark along all streams or lakes a minimum of 100 feet measured at right angles to the ordinary high water[line or)mark. 18.44.090 State Law Controls. A. Whenever a use allowed by this section conflicts with or is prohibited by the Oregon Forest Practices Act or regulations promulgated thereunder, State law shall control. B. Every permit application shall be accompanied by a letter of compliance from the state Board of Forestry indicating that the proposed use conforms to Board regulations • for the affected use. 50 MD-150093D E # 2 P' # U> 06/19/02 WED 11:15 FAX 541 385 1764 Des. Co. CAA 'IUul 19920129_LM-92-9_Complete.pdf Deschutes County Oregon Da!e Community Development Department Numboraf nct coyersheet FAA TO: FROM: f t1 [ Paid llS' • Phone Bend, Ore, Phone: • Fax Phone Bend Fax Phone: 547-3054754 Redmond, Oro. Phone: [CC: Redmond Fax Phone: 541-923-3097 • 0 Urgent 181 For your review 0 Reply ASAP ❑ Pease Comment REMARKS: 2014--e, /6 19/ NED-150093D ENV 24 Pg# 1- 1 06/19/02 WED 11:15 FAX 541 385 1764 Des. Co. CDD 'ejuuz 19920129_LM-92-9_Complete.pdf 0106 1400 0106 Chapter 18.84 permitted conditionally by the underlying �-= zone with which the LM Zone is combined, LANDSCAPE MANAGEMENT subject to Section 18,84.050,below. COMBINING - LM ZONE 18.84.050 Use Limitations. Sections: No structure, including agricultural build. 18.84.010 Purpose ings, shall be erected or substantially altered 18.84.020 Application of Provisions externally within one-quarter mile (measured 18.84.030 Uses Permitted Outright at right angles from centerline of any identi- 18.84.040 Uses Permitted Conditionally fled landscape management roadway or within 18.84.050 Use Limitations 200 feet of the ordinary [mean) high water 18.84.060 Dimensional Standards mark of any identified landscape management 18.84470 Zoning Permits corridor along a river)without first obtaining 18.84.080 Design Review the approval of the Planning Director or 18.84.090 Septic Permits Hearings Body. In any LM Combining Zone, the require- 18.84.060 Dimensional Standards. ments and standards of this section shall In an LM Zone, the following dimensional apply in addition to those specified in this standards shall apply: ordinance for the underlying zone. If a con- A. Minimum lot size shall be as estah,- filet in regulation or standards occurs, the lishcd In the underlying zone with which the provision of this section shall govern. LM Zone is combined. B. Setbacks shall be those established in 18.84.010 Purpose. the underlying zone with which the LM Zone The purposes of the Landscape Manage- is combined. If upon written recommenda- mcnt Combining Zone are to maintain scenic tion front the Planning Director,the Planning and natural resources of the designated areas Director or Hearings Jody(Officerl finds the and to maintain and enhance scenic vistas established setbacks inappropriate to carry important to the local economy. out the purpose of the LM Zone, he may require more or less restrictive dimensions. 18.84.020 Application of Provision. The provisions of this section shall apply to 18.84.070 Zoning Permits. all areas identified as landscape management Al buildings or structures coveFed by this corridors In the Comprehensive flan or the section not requiring a building permit shall county zoning map. The limitations in this be required to obtain a zoning permit before section shall not unduly restrict accepted beginning construction. agricultural practices. 18.84.080 Design Review. 18,84.030 Uses Permitted Outright. In reviewing an application, the Planning In a zone with which the LM Zone is com- Director or Hearings Body shall consider the bined, the uses permitted, shall be those following. permitted outright by the underlying zone A. Height,width,color,bulk and texture with which the LM Zone is combined,subject of the proposed building or structure to to Section 18.84.050,below, assure that the building or structure Is visually compatible with the surrounding natural land- 18.84.040 Uses Permitted Conditionally. scape and does not unduly generate glare or In a zone with which the LM Zone is arm- other distracting conditions. bined, the uses permitted shall be those �✓ 79 MD-150093D E . 24 Pg# 12- 06/18/02 WED 11:16 FAX 541 386 1764 Des. Co. CDD 1j003 19920129_LM-92-9_Complete.pdf 0106 1401 B. Retention of existing plant material and natural features[so asi to retain as much as possible the natural character of the area. C. Establishment of introduced land- scape materials to assure compatibility with existing vegetation, reduce glare,direct auto- mobile and pedestrian circulation and enhance the overall appearance of the devel- opment while not interfering with the views of oncoming traffic at access points or views of mountains,forests and other open and scenic areas as seen from the proposed site. . D. Nothing in the section shall be con- strued to prevent the use of accepted agricul- tural practices,crops or equipment or restrict the construction of innovative residences,i.e. "dome" houses, except where their design or siting unduly diminishes the aesthetic qualities of the area. E. The placement of on-site sewage disposal systems shall be subject to joint review by the Planning Director or Hearings Body and Deschutes County Environmental Health Division. The placement of such systems shall minimize the impact on the vegetation along the river and shall allow a dwelling to be constructed on the site as far from the stream or lake as possible. Sand filter systems may be required as replacement systems when this will allow a dwelling to be located further from the stream or to meet the 100-foot setback requirement. 18.84.090 Septic Permits. Prior to the issuance of any on-site sewage disposal permit that is to be located in the Landscape Management Corridor along a stream or lake, a Landscape Management Plan shall be approved in accordance with this section. (Ord.90-020 § 1, 1990) � ' 80 MD-150093D Ex# Pg# 7-3 19920129_LM-92-9_Complete.pdf Chapter 18.88 underlying zone with which the WA Zone is combined. WILDLIFE AREA COMBINING WA ZONE 18.88.050 Use Limitation. All residential, commercial or industrial Sections: developments within the WA Zone shall be a 18.88.010 Purpose cluster development (residential only), a 18.88.020 Application of Provisions planned development, or a destination resort 18.88.030 Uses Permitted Outright and shall conform to the provisions of 18.88.040 Uses Permitted Conditionally Sections 18.128.040(P), (Q) or (R). 18.88.050 Use Limitation 18.88.060 Dimensional Standards 18.88.060 Dimensional Standards. 18.88.070 Additional Requirements In a WA Zone, the following dimensional standards shall apply: In any zone which is a Wildlife Area A. Minimum lot size shall be 40 acres in Combining Zone(WA),the requirements and the Metolius and North Paulina and Tumalo standards of this chapter shall apply in addi- deer winter ranges,except that planned devel- tion to those specified in this title for such opments in these areas shall be allowed to underlying zone. If a conflict in regulations conform to the density of the underlying or standards occurs, the provisions of this zone. section shall govern except that the larger B. Planned or cluster developments shall minimum lot size shall always apply. have a minimum area of 160 acres. Parcels existing under single ownership at the time of 18.88.010 Purpose. adoption of this title that are at least 40 acres The purpose of the Wildlife Area in size which may also be considered for Combining Zone is to conserve important planned or cluster development status. wildlife areas in Deschutes County; to protect C. In the Tumalo deer winter range, the an important environmental, social, and minimum acreage shall be as designated in economic element of the area; and to permit the Tumalo winter range study. Planned or development compatible with the protection cluster developments in this area shall be at of the wildlife resource. least 160 acres in size unless a 40 acre or larger parcel existed under single ownership 18.88.020 Application of Provisions. at the time of the adoption of this title, in The provisions of this section shall apply to which case the parcel may be considered for all areas identified in the Comprehensive Plan planned or cluster development status. as a winter deer range, antelope range or D. In the antelope range, the minimum riparian area. lot size shall be 320 acres. Planned or cluster developments shall be 320 acres unless a 40 18.88.030 Uses Permitted Outright. acre or large parcel existed tinder single In a zone with which the WA Zone is ownership at the time of the adoption of this combined, the uses permitted outright shall title,in which case the parcel may be eligible be those permitted outright by the underlying for planned or cluster development status. zone with which the WA Zone is combined. E. In riparian areas,the minimum parcel size shall be that determined by the County 18.88.040 Uses Permitted Conditionally. Sanitarian and Planning Director or Hearings in a zone with which the WA Zone is Body, with advice from the Oregon Fish & combined, the conditional uses permitted Wildlife Department,necessa ry to protect the shall be those permitted conditionally by the health and safety of the public as well as fish 72 pidtutes County 1091) MD-150093D E0 z4 Pg# 2-11 19920129_LM-92-9_Complete.pdf and wildlife resources. (Ord. 91-020 § 1, 1991) F. Setbacks shall be as described in the underlying zone with which the WA Zone is combined. 18.88.070 Additional Requirements. Fencing in a Wildlife Area Combining Zone shall be to design standards which provide for safe migration of protected animals, (Ord. 91-038 § 3, 1991) 73 (Deschutes Coanty 10/91) D-150093D Exti # . 19920129LM-92-9_Complete.pdf Chapter 18.124 b. Multiple-family dwellings with more than three units; SITE PLAN REVIEW c. All commercial uses that require parking facilities; Sections: d. All industrial uses; 18.124.010 Purpose e. All other uses that serve the general 18.124.020 Elements of Site Plan public or that otherwise require parking 18.124.030 Approval Required facilities, including, but not limited to, land- 18.124.040 com- 1$.1Z4.440 Contents and Procedure hilts schools, utility facilities, , rt l� , ry 18.124.050 Decision on Site PIan munity buildings cemeteries, mausoleums, 18.124.060 Approval Criteria crematories, airports, parks and recreation 18.124.070 Required Minimum Standards facilities and livestock sales yards; and f. As specified for Landscape Manage- 18.124.010 Purpose. mcnt Combining Zones (LM), Flood Plain This section provides for administrative Zones (FP) and Surface Mining Impact Area review of the design of certain developments Combining Zones (SMIA). and improvements in order to promote func- C. Non-compliance with a final approved tional, safe, innovative and attractive site site plan shall he a zoning ordinance violation. development compatible with the natural and D. As a condition of approval of any man-made environment. action not included in subsection (B) of this section, the Planning Director or Hearings 18.125.020 Elements of Site Plan. Body may require site plan approval prior to The elements of a site plan are the layout the issuance of any permits. (Ord.91-038 §1, and design of all existing and proposed 1991; Ord. 91-020 § 1, 1991) improvements, including, but not limited to, buildings, structures, parking, circulation 18.124.040 Contents and Procedure. areas,outdoor storage areas,landscape areas, A. Any site plan shall be filed on a form service and delivery areas,outdoor recreation provided by the Planning Department and areas, retaining walls, signs and graphics, cut shall be accompanied by such drawings, and fill actions, accessways, pedestrian walk- sketches and descriptions necessary to ways, buffering and screening measures and describe the proposed development. A plan street furniture. shall not be deemed complete unless all information requested is provided. 18.124.030 Approval Required. "B. Prior to filing a site plan, the appli- A. No building, grading, parking, land cant shall confer with the Planning Director use, sign or other required permit shall be or his representative concerning the require- issued for a use subject to this section, nor ments for formal application. (Ord, 91-020 § shall such a use be commenced, enlarged, 1, 1991) altered or changed until a final site plan is C. After the pre-application conference, approved according to Deschutes County the applicant shall submit a site development Code Tide 22, the Uniform .Development plan, an inventory of existing plant materials Procedures Ordinance. (Ord. 86-032 § 1, including all trees six inches in diameter or 1986) greater and other significant species, a land- B. The provisions of this section shall scape plan•and architectural drawings includ- apply to the following: ing floor plans and elevations. (Ord. 91-020 a. All conditional use permits where a § 1, 1991) site plan is a condition of approval; 118 • Nugvaltae4 county 1agtl MD-150093D Es# Pg# 2�p 19920129_LM-92-9_Complete.pdf D. The site development plan shall b. Location, size and species of existing indicate the following: (Ord. 91-020 § 1, vegetation six inches in diameter or greater. 1991) (Ord. 91-020 § 1, 1991) a. Access to site from adjacent rights-of- c. Building elevations of the proposed way, streets and arterials. structure. h- Parking and circulation areas. d. A drawing of the proposed exterior c. Location, dimensions (height and appearance and a description of materials to bulk) and design of buildings and signs. be used. d. Orientation of windows and doors. e. Entrances and exits. 18.124.050 Decision on Site Plan. f. Private and shared outdoor recrea- A. The Planning Director or Hearings don spaces- Body may deny the site plan or approve it g. Pedestrian circulation. with such modifications and conditions as may h. Public play areas. be consistent with the Comprehensive Plan or i. Service areas for uses such as mail the criteria and standards listed in this title. delivery,trash disposaf,above-ground utilities, B. The Planning Director or Hearings loading and delivery. Body as a condition of approval may require j. Areas to be landscaped. that the applicant file with the county a per- k. Exterior lighting. formance bond or other security approved by I. Special provisions for handicapped the governing body to assure full and faithful persons. performance of any required improvements. m. Existing topography of the site at The bond shall be for the dollar amount plus intervals appropriate to the site, but in no 10% of the estimated cost of the improve- case having a contour interval greater than 10 ments, feet. C. Planning Director or Hearings Body n. Signs. review shall be subject to Deschutes County o. Public improvements. Code Title 22, the Uniform Development p. Drainhetd locations. Procedures Ordinance. (Ord. 91-020 § 1, q. Other site elements and information 1991; Ord. 86-032 § 1, 1986) which will assist in the evaluation of site development. 18.124.060 Approval Criteria. E. The landscape plan shall indicate: Approval of a site plan shalt be based on a. The size, species and approximate the following criteria: locations of existing natural plant materials A. The elements of the site plan shall proposed to be retained and new plant mate- relate harmoniously to the natural environ- rials proposed to be placed on site. ment and existing buildings and structures b. Proposed site contouring. having a visual relationship with the site. c. An explanation of how drainage and B. Each element of the site plan shall soil erosion is to be dealt with during and effectively and efficiently serve its function. after construction. The elements shall be on a human scale, F Residential and agricultural buildings interrelated and shall provide spatial variety located within the Landscape Management and order. Zone shall be required to furnish only the C. The landscape and existing topo- following information: graphy shall be preserved to the greatest a. Locations and dimensions of build- extent possible,considering development zon- ings and property lines. straints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. (Ord. 91-020 § 1, 1991) 119 (Deschutes County iG7,1} MD-150093D Doti Zg Pg# V1 119920129LM-92-9_Com plete.pdf D. The site plan shall be designed to 18.124.070 Required Minimum Standards. provide a safe environment. while offering A. Private or shared outdoor recreation appropriate opportunities for privacy and areas in residential developments. transition from public to private spaces. a. Private Areas. Each ground-level E When appropriate, the site plan shall living unit in a residential development sub- provide for the special needs of handicapped ject to site plan approval shall have an acces- persons, such as ramps for wheelchairs and sibte outdoor private space of not less than 48 Braille signs. square feet in area. The area shall be F. In the Landscape Management Zone, enclosed, screened or otherwise designed to emphasis shall be placed on maintaining the provide privacy for unit residents and their existing landscape close to travel routes as guests, well as any view of distant vistas. b. Shared Areas. Usable outdoor G. The location and number of points of recreation space shall be provided for the access to the site,interior circulation patterns, shared use of residents and their guests in any separations between pedestrians and moving apartment residential development,as follows: and parked vehicles, and the arrangement of 1. Units with one or two bedrooms: 200 parking areas in relation to buildings and sq. ft. per unit. structures shall be harmonious with proposed 2. Units with three or more bedrooms: and neighboring buildings and structures. 300 sq. ft. per unit. H. Surface drainage systems shall be c. Storage. rn residential developments, designed to prevent adverse impacts on neigh- convenient areas shall be provided for the boring properties, streets, or surface and storage of articles such as bicycles,barbecues, subsurface water quality. (Ord. 91-020 § 1, luggage, outdoor furniture, etc. These areas 1991) shall be entirely enclosed. I. Areas, structures and facilities for B. Required Landscaped Areas. storage, machinery and equipment, services a. The following landscape requirements (mail, refuse, utility wires, and the like), are established for multi-family, commercial loading and parking and similar accessory and industrial developments, subject to site areas and structures shall be designed,located plan approval: and buffered or screened to minimize adverse 1. A minimum of 15% of the lot area impacts on the site and neighboring proper- shall be landscaped. ties. 2. All areas subject to the final site plan J. All above-ground utility installations and not otherwise improved shall be land- shall be located to minimize adverse visual scaped. impacts on the site and neighboring proper- b. In addition to the requirement of ties. subsection (B)(a)(1) of this section, the K. The location,texture,lighting,move- following landscape requirements shall apply meat and materials of all exterior sips, to parking and loading areas: graphics or other information or directional 1. A parking or loading area shall be features shall be compatible with the other required to be improved with defined land- elements of the site plan and surrounding soaped areas totaling no less than 25 sq. ft. properties, per parking space. (Ord. 91-020 § 1, 1991) L Specific criteria are outlined for each 2. In addition to the landscaping zone and shall be a required part of the site required by subsection 03)(b)(1) of this plan (e.g. lot setbacks, etc.). (Ord. 91-038 § section, a parking or loading area shall be 1, 1991) separated from any lot line adjacent to a roadway by a landscaped strip at least 10 feet 120 (Uachutes County Mt) MD-150093D Ex# 2.4 Pg#Z`3 19920129_LM-92-9_Complete.pdf • in width, and front any other lot tine by a landscaped strip at least five feet in width. 3. A landscaped strip separating a parking or loading area from a. street shall contain: i. Trees spaced as appropriate to the species, not to exceed 35 feet apart on the average. (Ord. 91-020 § 1, 1991) ii. Low shrubs not to reach a height greater than 3'0,"spaced no more than 8 feet apart on the average. iii, Vegetative ground cover. c. Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area_ d. The landscaping in a parking area shall have a width of not less than five feet. e. Provision shall be made for watering planting areas where such care is required. Required landscaping shall be contin- uously maintained and kept alive and attrac- tive. g. Maximum height of tree species shall be considered when planting under overhead utility lines. 121 (Deschutes County 5/92) MD-150093D ENV ?1 Pg# 2 19920129_LM-92-9_Complete.pdf ' Chapter 22.28 thority to make a decision,the Board of County Commissioners shall, in the absence of an LAND USE ACTION DECISIONS appeal or review initiated by the Board, adopt the Hearings Officer's decision. No argument Sections: or further testimony will be taken by the Board. 22.28.010 Decision. 3. Plan amendments requiring an etcep- 22_28.020 Notice of decision. tion to the goals or concerning lands designated 22.28.030 Decision on plan amendments for forest or agricultural use shall be heard de and zone changes. novo before the Board of County Commis- 22.28.0 40 Reapplication limited. signers without the necessity of filing an appeal, 22.28.00 Review by planning regardless of the determination of the Hearings commission and board. Body below. Such hearing before the Board 22.28.060 Proposed order. shall otherwise be subject to the same 22.28.070 Compliance with ORS 215.418. procedures as an appeal to the Board under this title. 2178.010 Decision. 4. Notwithstanding subsection(3) of this 1. Approval or denial of a land use action section, when a plan amendment subject to a shall be based upon and accompanied by a brief subsection (3) hearing before the Board of statement that explains the criteria and star- County Carninlcaoners has been consolidated dards considered relevant to the decision,states for hearin g before the Hearings Officer with a the facts relied upon in rendering the decision zone change or other application not requiring and explains the justification for the decision a hearing before the Board any party wishing to based upon the criteria,standards,and facts set obtain review of the Hearings Officer's decision forth. on any of those other applications shall file an 2, Any portion of an application not appeal. The plan amendment shall be heard by addressed in a Hearings Body's decision shall the Board consolidated with the appeal of those be deemed to have been denied. other applications. 2228.020 Notice of decision. 22.28.040 Reapplication limited. A Hearings Body's derision shall be in writing if a specific application is denied, no and mailed to all parties; however, one person reapplication for substantially the may be designated by the Hearings Body to be same proposal may be made for sir(6) months the recipient of the decision for a group, following the date of the final decision., organization, group of petitioners or similar collection of individual participants. 22.28.050 Review by planning commission and board. 22.28.030 Decision one plan 1. Review of an administrative action or amendments and zone a Hearings Body's decision may be initiated by changes. not less than two members of either the L Except as set forth herein, the Planning Commission. or the Board of County Hearings Officer shall have authority to make Commissioners. decisions on all quasi-judicial zone changes and 2. The review shall be initiated in writing plan amendments. Prior to becoming effective, within ten (1.0) days of the date of the mail ng all quasi-judicial plan amendments and zone of the final written decision of the Planning changes shall be adopted by the Board of Director or lower Hearings Body. County Commissioners. 3. Review shall be conducted in the same 2. In considering all quasi-judicial zone mariner provided for in appeals, except that an changes and those quasi-judicial plan amend- appeal fee and transcript shall not be required ments on which the Hearings Officer has au- 13 MD-150093D Ex# z4 Pg# \TES . 19920129 LM-92-9_Complete.pdf El Wr,6440111ph Community Development Department Administration BEdg.f Q 1 b 1V F1 man/Bend,Oregon 97701 1 (503)388-6575 1jtP- 5 Planning Division ©SS Building Safety Division March 10, 1992 COV , Environmental Health Division Subject: Approval of Landscape Management Permit for Jeff Dowell; File AM-92-9. Dear Property Owner: The Deschutes County Planning Division has approved a Landscape Management Permit which allows the applicant to construct a single family dwelling on property zoned F3/LM/WA. The subject property has not been assigned an address to date, however it is located approximately 1/2 mile south of the intersection of Kohfield Road and Sisemore Road, and is identified on Deschutes county Assessor's Map /16--11-19 as tax lot 100. The application was reviewed for compliance against criteria contained in Sections 18.44, 18.84, 18.88, and 18.124, the Deschutes County zoning Ordinance, as well as .against the procedural requirements of Title 22 of the Deschutes county Code. Staff found that the application satisfied all applicable criteria, and approval has been granted subject to the following conditions: 1. Approval is based upon the submitted plan. Any substantial change in the plan will require a new application. 2. The applicant shall obtain a building permit from the County Building Official prior to commencing construction on the structures. 3. The applicant shall install a method of sewage disposal that meets the approval of the County Environmental Health Division prior to construction. Property Owner LM-92-9 March 10, 1992 Page 1 MD-150093D Exii 24 Pei 3) q?0310.- , 19920129LM-92-9_Complete.pdf 4. If a building permit for the proposed structure has not been issued within one (1) year from the date r this decision is mailed, this permit shall be void. This decision becomes final ten (10) days after the date mailed, unless appealed by a party of interest. To appeal, it is necessary to submit a Notice of Appeal, the appeal fee of $290.00 and a statement raising any issue relied upon for appeal with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and resolve each issue. A copy of the application, all documents and evidence relevant to this decision are available for inspection at no cost. Copies can be purchased for a reasonable cost. For further information, contact Brian Harrington at 388-6575. Sincerely, DESCHUTES COUNTY PLANNING DIVISION George J. Read, Planning Director Bhattrrington, A sistant Planner BJH:mic NOTICE. TO. : ,MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER'21.5 .'REMOXE :•,TEAT IF YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER. • Property Owner LM-92-9 March 10, 1992 MD-150093D Ex# 2 # �- Page 2 19920129_LM-92-9_Camplete.pdf LOOKUPS • • » N U M B E R: � '"' A P P L I C A N T: .."•161 U . - TAX KAP TAE LOT CODE SIAM t i s 1 0 0 ll t l�l �� 7 tr,► G i�_....r[ 27 c' l6 546.7 Kaiqxf fret Iftrifif A Akt Alm. 05111 4 1 CrO it 1.4919 1( •31te;:a Ik11, (6 It 1s . - //a,. , NI? 1992 �'\ ?, cau�;�S ti MD-15009Gri 2C ._Pgli 33 LOOKUPS 9/90 • gZ0311 r..w........-� .. -...-. ...._:_� - - -. .... ..•_, 1 19920129_LM-92-9_Complete.pdf •F:.. • 8/13/92, 1:43 PM EDT Ms. Catherine Morrow Administration Building Deschutes Cnty. Planning Commission 1130 Harriman St. Bend,. OR 07701 Dear Catherine, We spoke yesterday about the property immediately adjacent to that of Thommy Barton out on Seismore Rd. and I wanted to forward these • documents on to you for your review. What I understood you to say over the phone sounded too good to he true and I just wanted to make sure such was really the case. If I'm hearing you correctly, we can get an extension of 642 months no problem, and further, could even extend the time we actually had to build something out much further than that by simply putting a small trailer cat zt on the property in a appropriate spot. Yet, when I read througL the letters of approval we've been granted, I think it specifically mentions something about no extensions, no structures for building except the 1800 sq It plans we submitted with the application, etc. Could you please take a moment to look this all over and then give me a caul and let me know where we stand. I would normally be able to wait until we are out in Bend in a couple of weeks, but the prefabricated house builder/designer is having a price increase effective end of this month and if I am going to have to build, I want to get in with him at the lower price. z. !' Thank you for your time and consideration. You can call me anytime this afternoon or tomorrow at our toll free number of 800 800 7860. .Res ectfull P 3' MD-150093D Dx# i4 • El Jeff T Dowell qzoS 13 w'- • 1199201 29_LM 92 9_Complete.pdf + FAX - ... From the Desk ( - WELL I tee` ail 2 ROf tm[ Pais Q Inter-ad Inc.. 52 Merway Circle. Roches' if? 804 { t 247 7860 ke4A5t /44 . eaM.r�..x...r To: Ms. Catherine Morrow "" 8/30/92, 8:53 PM Deschutes County. Building Dept. 46 /Zoo S 1130 Harriman St // Bend OR 97701 % Stl • I n writing to thank you for taking the t'ne to meet with Ty wife and myseif regarding our Seismore Rd. property as well to tel: you that we very rr•LCh appreciate the persona! interest you've taxen in our situation. I also wanted to :et you Know what the outcome of our visit(s) to our Seismore site were. First of al!. please accept my apologies for not getting back to you while we were in town. as wed ortgina;iy planned to do. !t turned cut that once we yot out to the property and discovered where the bu'ldtr:g site had to be located to mee_ the 400 ft. Se;smo,a 'id offset restriction. we ;ound ourselves faced with a much greater task at hand that we a anticipated Thus. the spent all aay every day from the time we met on Tues. AM until the time we left Thursday eve to fly home staking cut the property. worklnc with different house plan ootons and talking with the contractor about the feasibility and 'mpiit;at!ons our ideas. etc In the and. we came up with the following: • The rouse plan will rerrair almost exactly as it was submitted with two minor modifications (the side by side Does will be 12G0 sq. ft instead of £00 sq ft each. and there vv!!l be a 500 sq ft garage that Will b toed oft o; the northern most par;) • The ccntrattor Frank Cibeili) is Co:ng to begin work on the septic approval process now (once trtat approval Is obtained. we will Iike!y have him clear the driveway ana the buiidino site itself) A couple of questions did come up that ; wanted to pose to you. #1) What do we need to do to stan the application process for an extension that would allow us to extery current deadline from March of 93 to March of 94• ? t know there is a fee of roughly $80. but do woe ••: . to submit the request on any type of 'formal' application form or document? #2 Relating to that same subject. assuming art extension is granted. aces that mean a house needs to Gs completed by March of 94 or simply slatted? If only started. how long do we have to complete the structure (ie. how on :s a building permit good for?) iY? `aces the septic drainage as vve.tl as the mouse hate. to be within 400 feet of the road, or i3 it smply the house Itself? We've laic' things out Marl the assumption that the restriction applies to the house'stzucture • itself, and not the 'front laver/septic drainage' area. Please let us Know immediately if such is not the case. • That's about all I can think of for now. Please give me a calf at 000 800 7860 anytime Tuesday or later of this week and let me know where we.stand and what we need to do next. Again.-thank you for your help and consideration. I look forward to hearing from you. 920.9s0 . -J. 4i 1111 -�Es � t 19920129_LM-92-9_Com p lete.pdf Community Development Department Administration Bldg. • 1130 N.W. Harriman • Bend. Oregon • 97701 _ (503) 388--6575 September 1, 1992 Planning Division Building Safety Division Environmental Health Division Jeff Dowell Inter-ad Inc. 52 Marway Circle Rochester NY 14624 Dear Jeff Dowell: I received your letter dated 8/30/92 regarding your property at 65595 Siesemore Road (16-11-19-100) . I will include it in the file for your property. In your letter you asked three questions which I will answer below. 1. I am enclosing the application for an extension. The fee is $80.00. As we discussed you may submit the application now, but it might be more appropriate to submit it closer to the actual date your permit expires. 2. If an extension is granted, you must purchase a building permit a building permit prior to the expiration date of the extension. The house does not need to be completed. Once a building permit is issued you must commence the structure within 6 months and have an inspection. Within every 6 months you must complete enough work to require an inspection in order to prove progress on the job. The building permit remains active as long as progress is being made and inspections are completed every 6 months. 3. The requirement to be within the 400 feet applies to the residence and not to the septic drain field. The purpose of the condition requiring the house to be located within 400 feet of Siesemore Road is to protect the deer winter range habitat. The septic drain field does not need to be within 400 feet of the road because it is underground and will not infringe on the openspace habitat. I hope this answers your questions. Please call if you need L.DOWELL.9/1/92 r 01 SEP 1992 MD455 3D E 4 # 31 Page 1 gaogo! further clarification. 19920129_LM-92-9_Compiete.pdf Sincerely, .` " ; DESCHUTES COUNTY PLANNING DIVISION / 4?€2.v� Catherine Morrow, Associate Planner cc: File 65595 Siesemore Rd, LM-92-09 �1. L.DOWELL.9/1/92 01 -SEP. 1992 Page a ;=`�•�� MIS 153D F #31 s1 ' n.- RECEIVED 01- Sc DEC 211992 Cji V' 7(, 119920129_LM-92-9_Complete.pdf • ,� Community Development Department I _< a.. ...- 'i - is_ ..".;:p .r. �. r - Administration Bldg./Bend,Oregon 97701 (503)388-6575 • Planning Division Building Safety Division • Environmental Health Division APPLICATION FOR AN EXTENSION OF A LAND USE PERMIT ************************************************************************* APPLICANT'S NAME: p 7 Doc ' 6(� ADDRESS: 114 ad.. 1(AC AC/a PR Lf e 1+i�ZIP Nr 1"IPHONE1 7/I 3ia -al 1 PROPERTY DESCRIPTION: T / 65. R It a.W s to TAX LOT: 1 013 NATURE OF APPLICATION: LCtyi tt) U c . e aja 1 (7° .1(r-i w ,o,V . DESCHUTES COUNTY APPLICATION NUMBER: 4-Al- 9;1..-- 9 DATE OF APPROVAL: ftl*1 C-II 0 , 19e a. PERMIT EXPIRATION DATE: 3/<</93 PRESENT ZONE: F-.3f 14/(Q/LM ZONING WHEN APPLICATION WAS APPROVED F-3 W4fLm . On a separate sheet of paper, please address the following: 1. Describe any action that has been taken to fulfill any or all conditions of approval. • 2. The reason for requesting the extension. INCOMPLETE APPLICATIONS WILL NOT BE ,ACCEPTED: •DATE: (aft t1 q 02• APPLICANT: ,,,0 0111Wk. . '. signature) AGENT: (signature) *** ********************************************************************** Office Use Only " DATE FILED: RECEIVED BY: FEE PAID: FILE NO. : _ • RECEIPT NO. : • MD-150093D : BO 2,4 Pg# M. THIS APPLICATION MUST BE PROCESSED WITHIN THE 120 DAY DEADLINE quiz ig • 19920129LM-92-9_Complete.pdf Addendum to: Avplicatio for and Extension of a Land Use Permit , Our original intention in purchasing this property three years ago was to simply hold it for a number of years and then slowly begin to put together the pieces for our retirement home. Having been born and raised in Bend and lived there for 21 years, I've always known that someday I would return to live there permanently. When the opportunity to get this lot came up, my wife and I jumped at it, even though it was a bit premature. Everything was working out great until we got a phone call 11 months ago informing us that we had to begin construction on the property within a year or forfeit our building rights forever! Since then, it's obviously been a mad scramble to try to put all the necessary pieces together (securing funding, hiring a contractor, determining house plans, filing for the required permits, etc. ) l) Actions taken to fulfi11_cpnd tions of the atr roval. • On October 17, we entered into a formal agreement with Frankansons Construction to begin work on the above referenced property on our behalf. • On November 1st we had had test holes dug for a sewage disposal system evaluation, had the proposed building site and lot lines staked off, and also staked off the proposed driveway leading from Seismore Rd. to the proposed building site. ,J92 /1 0 J • On November 17th, we received notification. from Tom Sloan of the Sanitary Department, that the drainage field site adjacent to the proposed building site was not acceptable and that if the building site was to remain the same, the sewage would have to be pumped uphill some 300 feet to an 'approveable' drainage area. • On December 8th, we requested a site evaluation for the proposed building site in order to confirm that it was not going to have to be changed as well. 2) Out reasons for reouestina the extension: • We are in the process of gathering supporting data and formulating our case to request a variance through the Dept. of Environmental Quality in order to get reconsideration on the denial ruling for our sewer drainage. We anticipate that the data gathering and case formulation will take another 10 days. Once our request for variance is suhnitted to the DEQ's, it's our understanding that their hearing process will take an additional 2-4 weeks before a ruling (for or against) is issued. • We have also begun the process of having the proposed building site confirmed before proceeding. Though the proposed site was approved for the Land Use permit, we feel it's necessary to confirm the proposed site once again, particularly with the basis for the denial of the sewer drainage being potential water run-off considerations. We fear the proposed house site could meet with similar concerns and want to make sure.that will not be the case before proceeding further. The contractor has informed us that the process of getting the proposed house site. confirmed will likely take 3-4 weeks to complete. The circumstances detailed above likely necessitate another trip to Bend in mid to late February to tie all of these loose ends down. Such being the case, we find ourselves with little or no margin for error or alternate strategies. Not a good situation, as I'm sure you can understand. As stated on the front page of this . application, our LM permit expires on March 11, 1993. 9iii9 3g. _ . ,e_ czz -7. en _ • Jeff Dowell-Power Bock Tr 716 247 3629 26193 Ca9:55AM 1i1 19920129_LM-92-9_Complete.pdf r - ,. i . Fax l I f Document :--� From: Jeff Dowell I . ten ss ...,dik :,:c..„.a. .:,, iiga,F,::,:v.:47,0.„!,_,.4.:•:;,,,,r,:::.,,,•::::.,,..:;,:.,,,:,....,,,,„:. •: •.:... :. :.:.,::: ,,,:::.:,..,:.:::.::,,,,.:,„:„.,,e,:.:_f,... .:.,.., 1 1 I:you have problems receiving this document. 52 Marwav Circle please L.1111716 247 7$60. Thank you. Roc hester`Y 14024 To: Catherine Morrow, Deschutes Cty Planning Dept. Catherine. • Any word/feedback on the extension filing for our Seismore Rd. property? I spoke with Thommy Barton (who file within a few days of me) and he received his approval some time ago. Are there problems with our application or is it simply going through the paper mill? Pease advise by either faxing me at 716 247 3629 or calling me at 800 800 7860. Thanks. Jeff DoWel1 0 . e/)---(---'-01/1-1_,,,- ifC,,,,--___Je___— CGe----/—, A...".7Z7 . _„--4:C:51r-- • . .,91/z.e. . "/.2.,,,..„.././6",..c.clejZe__e_v_t____, . - ' Mb450003b DO 7 Pg# 1'd , � 19920129_LM-92-9_Complete.pdf 1- old Community Development Department Administration Bldg. • 1130 N.W. Hamimari • Bend, Oregon • 97701 (503) 388-6575 February 1, 1993 Planning Division Budding Safety Division Environmental Health Division Jeff Dowell 422 Lake Shore Drive Hilton, New York 14468 RE: Extension of File ILK-92-9 (E-92-68) Dear Mr. Dowell: The Planning Division has reviewed your request for an extension of the Landscape Management Permit, File #LM--92-9, and hereby approves the extension based on the following findings: 1. The original conditions of approval are still applicable. 2. Progress in the development of the property is being made. This extension is valid for one year from the expiraton date of File #`LM-92-9 (March 21, 1993) . Be advised that you are not eligible for any more extensions for the completion of your Landscape Management Permit. Therefore, you must submit an application for a building permit by }larch 21, 1994 in order to utilize your Landscape Management Permit. You should also be advised that a building permit is valid for six months. If progress is made towards the completion of the residence, the permit is automatically extended. If your building permit expires, your land use permit expires with it. If you have any questions regarding this matter, please feel free to call this office. sincerely, DESCHUTES COUNTY PLANNING DIVISION George J. Read, Planning Director Bria�ri Harrington, sistant Planner g BJH:mi.c • - MD-150093D x# Pg# L, 1 qi3.,rat , •--,./-o--eL..!..:-.-_.,...//.. •-, ,./e._s xert.-;;;•.=..--.r /V - ; ! 1 1 '../e?, _ ...5-6-'73— - ;•,5 er472674-',---- ...-774 7.•.i%.-,.4 .r'•,—e., (3..z-.,!,•-0•,c1'= ,e"l;1-e;! i2., 7! 1/! 1 !1 !i i• : or- 61 ; •-. ;, .,': ■1!. ..e,. .•••-k--..,-.zyr I; .. ;.`,.--,e,•0E-e./2•40%s-e/vz 61,-..4,4z.rx',,,,- 7.---,e.. -; ,_ .• ; : ' ; _ i ! 19920129 LM-92-9_Complete.pdf • . . ; i i '• ', , i . •. , . . , '-., : ! I - i • .1 : ' - i , ; •- • . . I. ..,,,.;... .:•-•-,4 I ..-.. ..1, . • ' 1 ' . '. 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C'l t) Z. 1 • 1 . / I . . •I ; Z • C'' l'r.", . _ • r-- x 1 1 49i I ' ii ' l I • 1 `1 In .i... .1 . !,9 ei, ! I • ! i ; : . I , R Gs • . ;90 1 I ; - ) L1 -1 . I 1::% ; • . . .1 ! ' I I : I .. . -- . I. --1 ! ' oar • _ . 62/ . i i. . ____.•L.:. I I . , • • 4 . . , : 1 i 1 I I . ' till Ei. ).1093bl . i.li 51.2..... . N;7. g R E..k7% -. • .0 "enr I ! &-r-o .'3. -. ' -i 1 - - • I . 1 , i . • .71 . . ... .........4.- ....! , ...6 ■ . /2 5 '-i t, ' I ! '.' I — . : /II:"M 1,°° -51.41 ° 61 : i • • I • -:"=■ cl i.4° •' Mt i .. ci,„.,,,.4.„:,;......d.,.., i'l 411111iiinitP/i'— -- - ,-.. .01 ' 1> if\Ce 0 2 -I MY.HEALTH DATE,,,H , ' i ' ' • . ! -: LP tuait441Tt --- . 4 . ' : 1 i W . I ■ i 1 i-• ■1 . . 19920129 LM-92-9 Complete.pdf . . . . `REM UNE INFOR ATION SERE( \ x' CDD - 1130 NW HARRIMAN ST. - BEND, OR. 97701 1503) 388-6575 Property Address: (0 675--,g te` S. ,A..9.--e ..24..1? '7 e,.,, Owner's Names ,mot` .,, ‘...-// ,Owner's Phone ,#: 7/G 1 -7,27/ Mailing Address: 4Z 5„..4.1 G ,e;,,4y, Contractor: , ,_e/e- Sor,1/ s .sf44' / 4.' /yy Contact Person: 1:47e4.2,4.< ,ea r. Phone #: ,60 3 -- . #--G 4.5- _ Mailing Address: • of', ---/ ,4 `F-...2c' WHEN APPLYING FOR A BUILDING PERMIT, PLEASE PROVIDE THE FOLLOWING INFORMATION: Energy Path: .' ��' I. Electrical Contracting Firm: .`Z,-, �-a 1t Odatittatriki Is this residence for sale, rent or lease? ,c/j Square footage of residence: ,7,.:2/ Square footage of attached garage: (i-5 Detached Garage services 100-200 amps 201-400 amps How many circuit breakers to be installed? (1 to 42) # 1 REMOMEG: - Number of circuits: (1 to 42) # Or are you installing anew service or sub-panel? # amps TI. Mechanical (Heating) Contracting Firm: rs�7'25e.e p- What will be your heat source? Gas Electric .-Both other If gas, list all gas appliances: Type of heat source: Forced Air: • .. More that: 100,000 BTU: °f Bless than 1 0,000 BTU: L--- Heat Pump: . More than •100,.000 BTU: • less than 100,000 BTU: i Baseboard/Electric Wall He No ' Woodstove/Pellet ero Clearance Firenlace: aw many? r - . : `' What will be the heat source in your remodel? Will this be an extension of your existing system or a new installation? Will you be add n� g a Woodstove, Pellet, Gas Fireplace or Zero clearance Fireplace? • Will you be adding any gas connections? to what appliances? I _ I III. Plumbing Contracting Firm: ,77,2..' 4�.4-1d-1 Is your septic/sewer connection more than 100' from source? !f° Is you water connection more than 100' from source? (\I 0 Number of bathrooms? ,5 - ' ti 199 0 IS•q REMODEL: Number of each: - - . Kitchen Sink Bath Sink ' Disposal Laundry Sink Tub & Shower Dishwasher Bar Sink Toilet Shower. (separa e Washing Machine Water Heater 'Other -- Specify: ,; -r1G:a Ltd b 1.-a... (1 Pero trau v. e . • - - _ =s-_.-�-�--r.� -`-cam�7.'�� es =:=-�s�amaasx�s== ca�-.zam=sas=mss.-.�= =t OFFIcE USE ONLY Plans Examiner: Permit x+e{:h: .. Building-Permit No..' ".. -/t%a.1 Environmental Health Y-,, 2.. -� Electrical; Mechanical: 3D E E� • # J Fund Code:#_ 1 f Fund Code:# 0 1 Fund co t, # # 1 . - permit # 0Permit 1771";77 + 744'4 • # # " #J� 1ak # AO ti"/. . ' 1irA G- �� f _. Sub Total d Sub Total Aaa " Sub Total 5% 5% " ' 5% Total $ Total $ Total $ • Additional Notes: ' RECEIVED [19920129_LM-92-9_Complete.pdf 1 APR 4 1924 3/25!94 COMM.DEV.DEPT. Mr. Damian Symrk Community Development Department Deschutes County 1130 NW Harriman Bend OR 97701 Dear Mr. Symrk, The purpose of this letter is to confirm with you in writing our house building methodology on our property for which a building permit was recently filed. Other pertinent information regarding this correspondence Is: Owners of Record: Jeff and Pat Dowell 422 Lakeshore Drive Hilton NY 14468 Residence Mailing Address: 65595 Seismore Rd Bend OR 97701 Contractor: Frankansons Construction Receipt#: 139803 Transit#: B 34821 My wife and I are the owners of the property and have initially designed the house to have two kitchen facilities for the simple reason that we intend to build the`guest house' portion of the place first, and live there, while we're working on completing the larger portion of the house. Once the full kitchen and residence are in place, the kitchen part of the guest house will be removed and replaced with cupboards-and storage space. if you have any additional questions and/or concerns, please feel free to contact me directly at: (W) 716 247 7860 (H) 716 392 7271 Respectfully, 14416 1 Jeff T. Dowell MD-150093D Ex# 2.Lk Pg# 1.44 . i RECEIVED 12/12/94 19920129 LM-92-9,�Complete.pdf DEC Mr. Brian Harrington Y":... . . _ ,COMM.Q I IKPT Deschutes County Planning Dept. ;. J ,�� ;:' • • - 1.130 Harriman St Bend, OR 97701 p � • )w C. Dear Brian, I'm writing to follow-up on our meetings of last week and to summarize my understanding of what we agreed to: 1; We are are to begin construction immediately and call for our first inspection as soon as possible in order to avoid the expiration of our building permit on 1/20/95. 2) The guest house and garage portion of the structure will be completed as soon as the weather allows, with the County granting 'partial' inspections throughout that phase of the construction. 3) The county will not impose any restrictions on us being able to complete the remaining part of the structure at some point in the future under our current building permit. With the County's written confirmation of the above, we would have the guest house and garage.facilities to live in while doing much of the remaining construction work ourselves. Additionally, we would also have the opportunity to live on the property for while and get a first hand feel for such things as sun angles, lot layout, access, etc., prior to finishing the structure. • Above all else, what we're obviously try+ino to avoid here is any situation which will invalidate or cause to expire, our current building permit. As a native of Bend, I place a very high priority on being able to come back here and live at some point in the future. We've tried very hard to work with the County from day one to conform to the latest round of land use management restrictions, and frankly, it's required a significant investment of capital which was not anticipated, and certainly not desired at this point ;n our lives. With that in mind, we're asking for your understanding and acceptance of the parameters on our building permit, as outlined above. With the ability to build the guest house and garage now, with partial inspections as the work is being done, and then complete the rest of the work on the house at the first feasible point in our(financial) future, we could accomplish our goals, and comply with with county's land use management goals-thus creatin g a 'win - win' scenario. I anxiously await your reply as we need to have the County's written assurances that we can proceed as outlined above before any work starts. • Let me close my saying that I very much appreciate all the time you've spent working on this project with us. I hope all of our efforts don't end up being in vain. Thank you. i MD-150093D E # 2-1/ # 01-ES Q G ./7/c, 19920129 _M-92-9_Complete.pdf � . � . . tit,: �f- ❑ Community Development Department 'r:?:r.:. ,..c;..:;Y1�8kzy c.�,,.:.0 •. - v:..�.;'�.3C.Y:..<�,•k.....:.ro's�.t`a':3Y+�v.'�.:...., �c^s-.>1f.f ':�a', ... ,. ..... Administration Bldg.. 1130 N.W.Harriman,Bend,Oregon 97701 (503)389-5575 Planning Division February 3, 1995 Building Safety Division t" �rA l IA Environmental Health Division Jeff Dowell '6rq-e-e66UUU 2_ Balui-4L42, 422 Lakeshore Drive Hilton, NY 14468 RE: Building Permit status, File #LM-92-9. Dear Mr. Dowell: ,t1, �- wJ2 tIM at.e ' 0 P You have requested by letter, dated/ �� December 15, 1994 regarding the status of your building permit on the subject property located at 65595 Sisemore Road. In review of County records, you received Landscape Management permit approval via File #LM-92-9, and by extension via File #E-92-68. The conditions of approval required you to submit a building permit for the residence by March 21, 1994. A building permit (#B-34821) was applied for on March 18, 1994 in a timely manner. Enclosed is a copy of notations with respect to the status of your building permit. Staff has noted that the residence will be built in phases with the garage portion and living space as phase I, considered to be the residence at this time for land use purposes. Please be advised that timely progress must be made with respect to your building permit (#B-34821) . If for any reason this building permit expires, your land use permit will be void. If there are substantial alterations to the submitted plans, a new land use application may be required. Please keep in contact with the Deschutes County Building Division for the necessary requirements to ensure your building permit remains active. If you should have any further questions, please call me at 388-6575. Sincerely, 3as DESCHUTES COUNTY PLANNING DIVISION r�'�f"s2 s'&, n Ta • �. f, 4r�', . , FEB . an J. arrin•' o , Assistant Planner cesillas a BJH:slr '-� , v 4a AN.= cc: Dennis Perkins, Building Official txozeive Quality Services Performed with Pride 95©za3 k : -96 22:@9 503241B466 MLLTIMEDIA RESU.RCFS PAGE 82 41/1,99S. 13:28 541324 TM DWELL { 'PAGE >@2 19920129 LM-92-9 Complete.pdf DSSCAOTLS coon CITF osviLMppagrz repARTirthe ADMINISTRATION BUILDING, 1130 11N SARRImAW ST gyp, OR GO'!1 !7701 t'�3Z3 33$-4576 • pled,! 00Mplete this farm if you Would like to apply for a 1e0 day extension for the permits• listed on the attached letter. • a t n OGv et-c- _._.... .. . .-- •• • • • Address: 4 w w sy- Phone 1; - ♦ .r „ 03 1±t 931s P r o p e r t y address: 6 S SR S S 1SLma1 .e P.D - 6G)11-19 Psrsit R7r ctFm0.vr 62144.211t6/1466 W wa& s sk t// In the apace below, please lust the reason(s) for this extension request (i.e. financial, weather, etc*) ; FiltOtiV 1A-t— 0!Pe C tit 7160 k tfl f fl t cr A-5 .T i v4- /1 v( �t/o LtI L c If you have made progress and ready for a progress ids/motion, please call the inspection reset line at (S03) 355-6575. Please return to: • DssohStne County Community Development Department • Attn: Lori Lasslsy 1130 11W Harriman St send, Oregon 97701 • 1gg4c. ? MD-150093D E 2c/ Pg# L 7 1.DO 22:00 ,r,03241U4Ct rU..TI?' DId4 01 (4^ ? 19920129_ LM-92-9_Complete df 4airrem. 111111 � >• Renee, Ina. '" 1631 S.W.Coturnbia, Portland OR.97201 P C1O$.241.9315 Fa=50$.94I.8499 1ittrneL'jtdearnresources,a2m �. I�ttp;//www.mrruresvtarac�es.oam 4/15/98 9;59 AM Tlx: Lori Lassley C Desch. Cty Comm Devi RE' One Time Extension Request Lori. Per the attached paperwork, please accept this filing for a one-time extension on our currently active building permit PLEASE CALL ME as soon as possible to confirm the arrival of this fax and to let me know that the extension has been granted.. • Thanks • MD-150093D Emst Tlk Pg# '� (lg.)% DESCHUTES COUNTY,COMMUNITY DEVELOPMENT DEPARTMENT I', ^ • ADMINISTRATION BUILDING, 1130 NW HARRIMAN ST BEND, OREGON 97701 (5411 388-6575 :;^t' ;< r > ° .• 'r= • r 119920129_LM-92-9_Camplete.pdf 04/16/96 DOWELL,JEFF & PAM 422 LAKESHORE DR HILTON, NY 14468 Dear Permit Holder: In response to your request, we are extending the expiration date for permit number 834821 at 65595 siSEMORR RD,BEND. This extension gives you 180 days to show progress on this project. To prevent this permit from expiring, you will need to schedule an inspection before 10/13/96. Please feel free to contact me if you have any additional questions or concerns. I can be reached weekdays from 8:00 AM to 5:00 PM (Wednesdays from 9:00 AM to 5:00 PM) at (541) 388--6575. • Sincerely, Lori Lassley Lead Permit Technician LEL:sys • • • • MD-150093D Exii P # ( • DESCHUTES COUNTY COMMUNITY DEVELOPMENT .b.dPARTMENT • ADMINISTRATION BUILDING, 1130 NW HARRIMAN ST BEND, OREGON 97701 (541) 388-6575 19920129_LM-92-9_Complete.pdf 09/16/96 DOWELL,JEFF 139 NW ST HELENS PLACE BEND, OR 97701 RE: EXPIRATION OF PERMITS County records indicate you are the owner of property at 65595 SISEMORE RD, BEND, serial. # 163466. The following permit(s) are nearing an expiration date: B34821, 04/16/96; E27821, 07/22/94; E37820, 07/22/94; M9309, 07/22/94; P8445, 06/15/95 Oregon State Building Code requires that progress shall be made during each 180 day period. If notable progress has not been made and recorded, permits will expire and become null and void. Once expired, permits must be renewed prior to any further work or inspections being accomplished. Permits may be renewed for half of the permit fee provided that renewal is accomplished within one year and no change is made to the original permit. our records indicate that the last recorded progress was on 04/16/96. To insure that the permits remain active, please call our inspection line at 317-3174 and request a progress check for the permit(s) referenced in this letter to be completed prior to 10/13/96. Failure to have an inspection and to have made progress by 10/13/96 will cause all the permit(s) to automatically expire. A one-time 180 day extension can be applied for by completing the enclosed form and returning. PLEASE NOTE: This letter does not refer to any permits for on-site sewage disposal systems. Septic permits are valid for one year from date of issuance. If you have any questions regarding the septic permit please contact Environmental Health at 388-6575_ Sincerely, Lori Lassley Lead Permit Technician kx: MD-150093D E # 7.4 Pg# /J • ` \\ \ ` Kuhr \ \ \\ \ \` D c t s County Assessor Sic\ot � a on \\\\ \w,, \ w,,''''' V� AS \ �A V A 0, \ \MV 1500 3"' EX#';',',225 \2� - � , \ \ hot` `.:.,,, ,.,:',,,,,,:,-, ,,,,,,,,,t',2,, ‘,,,s,.\, ,),,,,:.',,s, -‘,4tt ‘,,,,,‘:',,,,,,\,1,2'''''' ,` v 'o v` A 7 yv v` , ` \\\ \\\\6 ' of a er Pipe bombe p osion \ \\\ �'� � 2008 the fire bug or was 4� � pro e ; �C �� \\ \ \ :,;\ may+ \\ 2 �\\\��\ J �i, ,o),,,,„:', :,' \- 3,,,;Nova \\\ , ,\\er e\ 5 \\\\, \ \\ \ \\\\\\,,, , , „ , ‘," , , 2 ,„,,,,,, ,, ,,, , ,, ,,, ,,,, , „ ,,,,,,„ ,, \ ,,, ,,, ,,,,,,,,,,,,,,,,,,, ,, ", , ,,,,,' ,,,,„,,,,,,„„ , , ' , '‘v,,,, ,,.,,,, ,,,, „\,, ' ' ,''' ,,,,,,,, ,, ,,,,,,,,,,,,,, ,,, ,,',,,i,,,, '',,,,',,,,,,,,,,,, ,,, „\,, ',,,'',,',' ' , ',' ,yA , v� ,', VVvvy�, vv \\ \ v\ v„wv\vv v "v I � i 1 I 1 i 'Is i • ea .r Q • t 2 I is S t • ; • • "11111111111H. 4.4 S ilk 1A r ,,t _f*t I 1 . . is t • z ( ' ? it • ; • • .1 44 '41. 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Cl f i 1-1, '71,-41.41 1µ.• Y v if .it'' .. tY"• = �� TOO, -,.• .w y l r a rl r 11■11 WPM ea fr x• �` .4Y 1 i . *> °, ka , Maximum •; k,Build Line on •r:, . . Recorded : • bi Plat Map . ??his `' . <,• " , . w •�Y,� ,�"•Fp- �- ". �'� •�ta fir• - .. t' .. o .:Y ,�*^r 1t tc- I. 140-1500930 E921 P91. 4' 'uhn vs Deschutes Co my Assessor Scot Langton MD-15009 • D Ex# 22-24 ^'Pgs# D I well 1992 LM-92-9 22 19920204_Dra t- _L - porting Doc with map Dowell to Cibelli with notes added .p 23 19920210 Blikstad to Dow ll with MP map and Sight map attached 24 19920129_LM-92-9_Co plete.pdf Does not include the discovery docu ents 2 - 3 November 2015 C:Wu.\CIImYVLYVMATrorrW ppe.�14 IS�_Bddbh Lsbda Por Dammau ebwitioddeex pW is Aoi.ii.11 Kuhn vs Deschutes County Assessor Scot Langton MD-150093D Ex# 28 ~P s# 28 Criminal Conspiracy Cibelli Assault Light harassment tenants being told to leave lights on 28a 20001022__IncidentReport-Cibelli Assault Leighs Statement ORC.pdf 1 28b 20001202_emailCibelliToAsh with notes and color.pdf 1 28c 20001219_ChitwoodLightsLetter.pdf Jeff Dowell told her to keep them on. 10 28d 19880325_IncidentReport-Cibelli Sent to and met with DA Mike Dugan 1 28e 20010101 Kuhn to DA-Doty Anna re Cibelli following stalking via truck&Nails in driveway 1 28f 20010101 Dowell signs contract with Cibelli as property manager 1 28g 20010104_email Dowell To Barton Re Moonshine-Discovery FUD INTENT .pdf 1 28h 20010109_emailEx Dowell&Barton Re Moonshine-Discovery Color Notes OCR INTENT .pdf 2 28i 20010409 and 0410 Dowell communication with Thom Barton_and Frank Cibelli_INTENT .pdf 2 28j 19830825 Cibelli Pot Seized Illegally 6 2 - 3 November 2015 \Do.Chwteg(W&M PreprlyhaAppal1101417 exaaua Labeh Demure.whadsultdoet vse 20 101541-01 Wiz. __ 20001022_IncidentReport-Cibelli Assault Leighs Statement ORC.pdf On October 22, 2000 about 9:10 am someone pounded or kicked on our front door. Bill apparently opened the door. Someone was shouting "where are my stakes" repeatedly. Bill called my name several times. When i came around to the entryway, Frank Cibelli was inside the door a few inches from Bill who was standing with one hand on the inside doomob of the open front door. Bill was looking at me, saying "Leigh, call the sheriff, call 911," several times. Cibelli shouted at me, "yeah, call the sheriff, I already called the—sheriff." Cibelli shouted this at me several times while Bill repeated, "Leigh call the sheriff." Without looking at Cibelli or responding to him. I said, "what's going on?" and continued to walk toward them. Cibelli yelled at me, "where are my stakes." I said, "what stakes?" Cibelli started shouting abusive things at me. I said, "get out of my house." He refused to leave. I shouted over his invective, "get out of my house, now." He still didn't leave. I grabbed the edge of the door with one hand shoving him toward the doorway with the other hand. tried to close the door He shoved his foot up against the bottom of the door on the outside sill while still facing me and Bill and yelling at us. I pushed the door until it closed then tried to lock it. Cibelli who was still facing the door, shoved his fist through the middle stained glass panel on the door. Bill said, "I'm going to take his picture." and grabbed the camera by the door. Cibelli walked away from the door after he smashed the stained glass. Bill followed him out, camera up to his face, taking Cibelli's picture. Cibelli turned and either hit or shoved Bill. There was a second of scuffling while Bill tried to keep his balance and continued to take pictures. Then Cibelli struck Bill in the face with his fist, Bill went off the side of the deck headfirst into the ground on his back with his feet and lower legs over the top of the deck. I ran out to where they were, yelling "stop it, stop it." Cibelli, bending over Bill, continued to hit him. I got partially between Cibelli and Bill who was still on the ground in the same position as he had gone down in after Cibelli hit him. I yelled again, "stop it" and "get off our property." Cibelli continued to ignore me while trying to hit Bill some more. One of the blows glanced off my arm. I kept yelling at Cibelli and began smacking him with my open palms about his head. After a few seconds, he faced me with his fist back. I said, "go ahead and hit me in the face." He did riot. He tried to get around me to get back to Bill, who was starting to get up. I kept shoving at Cibelli repeating "get off our property, now." He started backing up as I shoved at him. He finally turned his back on me, walking down toward the property below us where Jeff Dowell was standing. 20001022_IncidentReport-Cibelli Assault Leighs Statement ORC.pdf 2000 1 02.2 .1 C:DocALE'ITERS1CibelliusauttOct222000_doc MD-150093D Ex#208 41T,Y#k . Page 1of1 20001202_emailCibelliToAsh with notes and color.pdf (igg Brothels&Ash From "Frank Cibelli" • To Seam Ash"¢brasasn@hwy97.net? Sent: Saturday, December 02,2000 4:58 PM 1 had time to go over that report with Jeff. The most outstanding and concerning thing is that Bill Kuhn's hand written log was very accurate and that conversation took place inside Jeff's home and was a quite and personal conversation. We for the life of us can not figure out how anyone could have overheard that conversation. A little disturbing to say the least. Second, I wanted you to know what did not come out in the report is that Leah Kuhn was not only beating me up but pleading with me to hit her during the whole ordeal. Just thought you should know i Thanks Frank Mr. Cibelli is referring to the log of a conversation between Jeff Dowell and Frank Cibelli on 21 June 2000, while and after they were hitting golf balls off the roof onto parcel 3 • and onto BLM property. Mr. Dowell said, "One match and that place up there would go in a second." This log was given to the Sheriff after Cibelli was arrested for coming onto our property and assaulting us on 22 October 2000. MD-150093D Ex#,u 'Pg# I 12/4/04 128c 20001219 ChitwoodLightsLetter.pdf William Jahn Kuhn Pa Bo,5996 Bend, Oregon 97708-5996 Phone: (541) 389-3676 Tuesday 19 December 2000 on Monday 11 December 2000 We phone Renter/ Tenant Lisa Chitwood asking her to turn the lights off. Lisa Chitwood She said that Jeff Dowell told her to keep them on. 541 318 0690 65595 Sisemore Road We follow up by sending this letter certified to her via Bend OR 97701 John E Barton, her employer. Dear Lisa, I have enclosed with this letter a couple of newspaper articles that have appeared during the past few weeks regarding the power shortage and concerns for energy conservation. The governors of Washington, Oregon and California have all asked citizens of their states to conserve energy wherever possible. All uses of electricity such as outdoor lighting and even Christmas lights are included in the request. Also enclosed is a brochure from Deschutes County regarding the outdoor lighting ordinance that took effect in September. The brochure clearly shows that the outdoor lights on the Dowells' structure do not comply with the ordinance. The land use restrictions associated with these properties, which apply to all people living here, now have the force of the court behind them, meaning that a person can be held in contempt of court if they are not followed. Number 6 of these land use restrictions asks us to demonstrate sensitivity to living within the boundaries of the Tumalo Winter Deer Range, and urges us to adjust our life style accordingly. In talking to you last Monday(11 December), I kindly asked if you needed the outdoor lights on all night long. I was disheartened to hear that although you do not wish to have the lights on, you were not going to turn them off because Jeff Dowell told you to keep them on. The Dowells have apparently asked you to participate with them in harassing us by keeping the lights on all night long. And you have apparently chosen to do so. The Dowells do not have the right to make you to do something that is against the law. I am formally requesting that you turn off or adequately shield the illegal lights, and that you not be part of the harassment against us by the Dowells and Frank Cibelli. If the lights remain on and unshielded, we will be asking the County to take proper enforcement actions. Sincerely, William John Kuhn MD-150093D Ex# 28c Pg# cAdocsrprop65575\dowell\isa_0011_1igh s.doc Page 1 of 1 � 0012 19 12:47 . , 128c 20001219 ChitwoodLightsLetter.pdf , 1 • . U.S. Postal Service 1 : IED MAIL RECEIPT (C'vie s+ic!IINI OPP,'No Insurance ,Overag - •' .-. --.—-- ---.— 1:7— r m .. . .. potag4 ing. 8A, . rm ru C • rn ertified Fee MEM 0 Fi .,,t.re* r... Return Fteeelpt.Fee c (Endorsement Re 1 a s-quired) 0 VP N • lg (11::0,5tricterne%euziyu,F4 ,..-7 5— ci Total postage&Fees $ .5.S 5 . 1 in - m /Ira Nromopdontgearotbeitairmed 7 malt)1 1910, iv Street,Apt No.;Of Pa aox No. - 0— 1741 1 511°41)cirS_Z Cray—State,ZIP+4 r- 'W EA) Ca. ql 7 0 i L. PS i-crm 30,February 2000 . _e le.,25.=f or In IRIT,1011., 1- : . • - - .. SENDER; COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY . : • Complete Items 1,2,and 3.Also complete A. Received by(Please Print Clearly) B i te of II:livery Item 4 if Restricted Delivery Is desired. 1 2 i (n: • Print your name-and address on the reverse Cre \ . so that we can return the card to you. . Si•natu . Attach this card to the back of the mallpiece,„' . • 11/14 ___ El Agent .. or on the front if space permits. • ......,' , ..! Addressee 1. Article Addressed to: " D. Is delivery;min = -different from item il Yes 0,71, If YES,on ir elivery address below: D No 1, 0 eg//51) WOO Ds 561' .7.1t•rar.7 ...-—....— , ' -:virm....i...,..m..-1.1..-vv....v'Ali II 211.11170• ----.—...-------.----- ..--- 3. Service Type .,,b4 Certified Mall gigatoren:7010igivesarst, 0 MAPie S 7:1P)_ yri4 a es 2 Registered i l&7, SNOW e•gegt- Rq Insured Mall ip C.O.D. 0 g 971°) 4. Restricted Delivery?(Extra Fee) ...iik'. Yes 2. Article Number(Copy from service label)7 099 300 (x317 3214 4:36)0 Ps Form 381),jiilli.4900 1; 1; ;:111Ainiesii6 Return Receipt 102595-00-M-0952 . . .. . . , . ' . MD-150093D Exr,. 28c Pg# 2. 3 28c 20001219 ChitwoodLightsLetter.pdf . • How cold will it get? No one knows By Christina Kelly The Bulletin Central Oregon won't be Energy supplies are lagging feeling minus 20 degrees like those that chilled the region in 1972 and 1990,but weather ex By Beth Britton but we should be able to pens are predicting some pret- and Jeff Nielson squeak by," said Rich ty low temperatures tonight The Bulletin Ns clauses? director of the through midweek, with the forecasts calIirig for west wer Poolhe mercury sliding down to single near-zero temperatures in agencNorthy coordinates digit numbers, the next few days aren't operations for Po utilities .T in power the The problem is state and na- tional causing chills, paying the Northwest and western weather forecast models natural gas bills for heating Canada. aren't agreeing with each oth- a home or business ties win .We're on the ragged er,making the prediction.diffi ter might, edge"of a shortage,"said Ed cult, said George Taylor, the And while electricity rates Mosey,a spokesman for the state climatologist affiliated haven't yet risen significant- Bonneville Power Adminis- with Oregon State University. ly—a situation that is sure tration.The BPA distributes "Our weather models are all to change—energy experts power from hydroelectric makes it pretty over the place,"Taylor Bare.edic ct t say supply could be a poten- dams on the Columbia and tough to pr tial problem for the region. Snake rivers. what will happen."pen." See Cold/A9 "It will be extremely tight, See Energy/A9 1 „` }y' w. told or tropical regions. Oregon.on. outages. The c blast roared through Taylor said forecasters don't In August,Taylor predu Central, Oregon in December know how much the cold front average fall and winter w and average amounts of F. Forecasters say it's • 1972,s and the region see new reaches Oregon.d by the time it and av average ge slightly amounts minus g hard to tell what will record lows every day from Dec. "This doesn't happen often— the mountains. 6 to Dec. 14,said Joe Solomon. we usually see temperatures dip Nationally,the United happen this week forecaster for the National like this on average of every 10 experiencing and return tc Weather Service. The northern years,"Taylor said. temperatures Continued from Al air struck again in 1990 with lows foSome Central ngen Oregon aon law wing cipitation past hate year Earlier last week,the National at minus 24 degrees. public safety warnings for people winters. Weather dv sorry issued a cold The last ago sub-zero weather was P g change,giber 2000 up as the weather advisory to warn of pas- two years 3end sank to nlitna.5 12 de- of a Chri the in search November 2000 reflet Celt temperatures Oregon. below zero k- ture i from the winter Anyone driving on rural roads coldest November in tat end, Central Oregon.weBy re this week-f stor of a 91 cry end,forecasters were backing a snow Cenral Oregon the the location and taker notify cording 106 Na tion le to slightly predicting from sublowo temp lures, s Tus lows of 5 to 15 around minu s 25 degreestii�'ci hovered sherphone. ff rJm 1-iensleytsaid, Extra Service.If the weather does tui degrees Tuesday and Wednes- State weather models indicate clothing,food and water should and se o P hover close Taylor said the confusion the approaching northern arctic also be in the car. stems from a rare flow of air from air Midwest, hen°d ft to the to onslaughthof frigid weather,esid- blankets, coats, sleepi northern Canada.Normally,Ore- ea their and tents for distribution.are on is dominated by air flow sliding into Montana and north- hereto tats bound to the house, Contact the Salutiot team the Pacific.smild,That air keeps ern oho. signal last o act with an ware Solomon r ance has enough strength are concerned the power drain in Paul Society the St. air from of aneapple,Express,warm to disturbance air from the Pineapple Express, t0 push into northern and eastern the Northwest could cause some have such items to clone 128c 20001219 ChitwoodLightsLetter.pdf 1 percent is taken directly Energy Electricity pries pipelines,he added. Electricity and natural Average wholesale peak price on the Natural gas paces The American Gas Assoc 'r open market in the Northwest/North has estimated that ther ern Rockies region are very sensitive about 2.5 trillion cubic feet ga5 prices are soaring in storage.That reserve at p (in dollars per megawatt hour) 7 on open markets �°°"' '"" '"' $75D to weather however,is about 11 percer t er than it was one year ago. Tel • ....._........ forecasts." In September,there wer Continued from Al t 400 drilling operations i California officials this past � --Maury Galbraith, United States, and the week ordered unprecedented $55a -' P11C analyst soared, Mansell said. 7 emergency measures such as 5.1 ' there are 810 drilling operas idling huge pumps that send wa „ ■� "The supply is there— v I have to drill for it,"he said. ter from the Sacramento sari 404 ,�3 Public Utilities Commission a Electricity is a different n Joaquin River Delta east of San I �-e , p ' Francisco to central and southern ; proved a 7 percent rate increase Because there isn't some 30O`' ? for the company, and another new supply that can be to regions of the state. i P Y• PP Y In the Northwest,energy offi- 2.i + . :.':!' PUC-approved 27-percent rate and prices are soaring fortl _- hike took effect in October 2000. ural gas that feeds tur clots met Friday to talk about j • emergency plans but decided i : I ' ` ��. That means that a customer pay- wholesale electric rates al. `°0' $72 .I... . in about $100..per month last on a steep upward curve. against any immediate action. �2S $3i $ii(t g P P 1? What's going on? Why are o' . J winter can expect to pay more Customers in Central 0 prices for natural gas skyrocket- 12-1 21 41 61 el tat t21 Us than$130 this year. aren't feeling the pinch ye ing,while energy providers from 1949 a. :21304,.,,.;-• Although wholesale prices na- ther Redmond-based C coast to coast are warning of pos- Source:Energy Market Report, tionwide continue to rise, Cas- Electric Cooperative nor sible energy shortages? Economic Insight,Inc. cade Natural Gas customers will state Electric Cooperative In many ways, it's a classic Cross The Bullet see no further rate increases this Pine has raised rates. economic lesson of supply and winter, Galbraith said. Natural The region's largest p demand,experts say. than quadrupled nationally since gas companies purchased their electricity provider,Pacific Demand for energy has risen, 1998,when the price on the open gas for this winter many months er,has been granted rate in thanks to a booming economy market was about$2 per million ago,so the current high whole- es totaling 5.33 percent in th that has kept factories open British thermal units(Btu).In late sale prices won't immediately af- year by the Oregon Public longer hours and caused a spike September,the price was about fect them,he said. Commission. in housing construction. $4.40 nationally. The company will not be eligi- But watch out for next But supply has lagged.Several The specter of a frigid winter, ble to apply for a purchase gas The Bonneville Power Adi states have toyed with deregula- however,has caused the price to adjustment until next year, he tration,which provides 10 tion of the energy industry,which almost double again in just over said.A purchase gas adjustment cent of power to Midstat was supposed to lead to greater two months.This past week,the is an annual process that allows a about 70 percent to Central competition and lower prices for cost per Btu on the open market company to collect from its cus- trio,has filed for a 15 percei consumers.California,for exam- nationally was$8.37. Some sup- tomers what it is paying for gas increase effective Oct. 1,201 pie, in 1996 ordered investor- plies coming from Canada are at on the wholesale market. Pacific Power,meanwhil owned monopoly utilities to sell an all-time high price of up to$30 Recent rate increases are the asked the PUC that it be al their power-generating assets per Btu. result of skyrocketing wholesale to recover $63 million i and buy electricity on the open The price spike is caused in prices for natural gas,said Frank creased generation costs market. part by predictions of a bitterly Mansell, Cascade's public rela- Jan. 1 through Dec. 31, Something unexpected hap- cold winter. tions director. That's on top of another ra pened, however. Many compa- "Natural gas prices are very "It'll affect their wallets more justment,sure to be up,th nies still in the production busi- sensitive to weather forecasts,es- than last year," Mansell said of cific Power regularly files' ness,waiting to see how deregu- pecially at this time of the year," the increase."And the colder the fective Oct. 1 each year.Det lation played out, held back on said Oregon Public Utilities Corn- weather, the more gas they'll that rate case still are building expensive new electric mission analyst Maury Galbraith. use." worked out,said Jack Bret power plants.Moreover,a major- Customers of Cascade Natural Despite soaring demand this analyst with the PUC's el ity of all the new electricity-gels Cias,which supplies natural gas winter,Mansell said there is plen- rates and planning division. crating facilities are run by natur- to more than 15.000 residential ty of gas to meet the need. "It's safe to say that 1 al gas-fired turbines. customers in I')eschutes County "Our storage levels are ade- costs on wholesale marke The result:both electricity and alone, have seen their monthly quate right now nationally," he significantly higher."Breen natural gas prices are soaring on bills increase dramatically this said.Cascade takes only about 18 ---- , open markets. year. percent of its gas from under- The Associated Press c Natural gas prices have more In December 1999,the Oregon ground storage facilities,while 82 tributed to this report. MD-150093D Ex# 28c Fg# 4 128c 20001219 ChitwoodLightsLetter.pdf Y C8 Friday, December 8, 2000 • THE BULLETIN T i i 1.', Olifomias ower woes worsen ...... . electrical blackouts are possible 1 ___ ___. . ....._. By John Howard , Among the companies already California can't import e1eG TheAssoctatedPress .' affected was computer chip man- ity because"all the surrounc SACBAT ENTO,Calif.—Cali- ufacturer Intel,which has 6,500 states are in a similar pred forma edged toward an unprece- employees working on research meat, especially the Northw • dented energy crisis today as and development in Folsom. The imported power isn't av hundreds of companies were or- The campus will first cut the able," said ISO spokeswon dered to cut back on electricity , lights by half,said Bill Mueller, Stephanie McCorkle, use and officials warned of im- • director of communications for if inspectors found that pia pending blackouts... . • Intel. The state, caught in a power "If that's not enough,we'll take were abutting to boost prices, the lights down 100 percent and about it.what G the Gray Davis' p crvx�Ch�even before winter has g p about it.Gov.Gray Di ' pr begtiii,'oriThursday ordered ma- work in the dark,"he said.The secretary,Steven Maviglio,cal jot commercial users to cut back campus,which operates around the state's legal authority"a g on electricity. . the clock,hasn't had to complete- area." The crunch has been blamed IY turn off the lights yet,he said. The phased in deregul viol- on cold weather in the North- In response to the crunch,in- west,the shutdown of some pow- spectors launched surprise in California's$20 billion electri er plants for repairs,and the ef- spections this week of power power industry was supposes fects of electrical deregulation in plants that have closed for re- lower prices by creating grey California.. pairs to see whether the shut- competition. Companies and individual con- downs were deliberate attempts But demand for electricity I sumers who had previously to drive up costs by limiting sup- outstripped supply because c agreed to reduce or shut down ply. growing population, a boom] their power in emergencies were Power plant owners said the high-tech economy, and 1l ordered to do so early Thursday shutdowns were legitimate. power available from neigh!) when officials declared a Stage "We have worked very dili ing states that haven't deregul Two emergency.It was the fourth gently to go the extra mile to keep ed. such declaration in as many days our units up and running,"said and the eighth in three weeks. Richard Wheatley,a spokesman The crisis could elevate to a for Reliant Energy of Houston Stage Three later in the after- which has five California plants,, noons, which would lead to Shutdowns were part of the rolling blackouts,officials said. reason that a quarter of the sys- "We are really hurting. The tern's capacity was down on state is scrambling to find ever- Wednesday by 11,000 gyp•-- ,3'said. Pat Dorinson, megawatts,enough to supply 11 SCib testniefor the California In- million homes. deltettdet,1-System Operator. Of that amount,state officials .it�_Stilge Two'emergency is de- elated'wh :power reserves fall said,4,000 megawatts were from --�..;rir are expected to fall---below plant breakdowns-Another 4,500 �apercent�:, ornia never has • were from scheduled mainte. h:ad.a statewide Stage Three Hance and 2,500 were from plants emergency, which indicates re- closed because they had reached serves have fallen below 1.5 per- the state's annual limit forpollu Cent_ per- ton. • A Stage Three alert would probably come in the early after- noon,said ISO spokeswoman Lo- tie O'Donley, MD-150093D Exti 28c P # • I28c 20001219 ChitwoodLightsLetter.pdf Cold .f ront prompts plea or-energy conservation a By Linda Ashton The Associated Press YAKIMA,Wash.—Faced with the possibility of an Arctic cold • front that could drop tempera- tures.dramatically next week, Washington Gov. Gary.Locke and Oregon Gov.John Kitzhaber on Friday asked citizens to con- . serve•energy while regional pow-_ er coordinators prepared to take • emergency steps to meet de- mand. • With low temperatures in the • teens forecast for western Wash- ington•and in single digits for parts of eastern Washington at the beginning of next week, Locke urged people to turn off lights,turn down heat and other- wise minimize energy use. The warnings came a day after California encountered'an un- precedented power crunch,with electricity-supplies for the state's 34 million people so low that blackouts were only narrowly avoided.The situation is exacer- bated in California and the Northwest because few areas of the West have power to share. "If all these forecasts turn out to be true,the Northwest is going to be challenged to meet(power • demand)without taking extraor- dinary action," said Richard Adams, director of the Pacific Northwest Utilities Conference Committee, an organization of public and private utilities and MD-150093D Ex# 28c Pg# Co some large industries. In addition to promoting ener- gy conservation, Adams said it • tricity shortages. Demand at interruptions,he said. might be necessary next week to times exceeds supply as the re- Locke joined Oregon Gov. reduce the voltage at which pow- gion continues to grow without John Kitzhaber in asking citizens er is delivered, shift electricity • new sources of power generation and businesses to immediately use to off-peak hours,,and inter- being built. conserve as much electricity and rapt power to customers who The expected cold snap comes natural gas as possible. have agreed to that by contract. at a particularly bad time in this "If we act quickly together,we See Cold/A9 hydropower-dependent region. can hopefully avoid disturbances Typically,during cold,dry,win- and brownouts next week," Continued from AI ter weather,the region buys extra Locke said. 'The whole idea of issuing the power from California. People can conserve energy by warning is we've got two or three Locke told a news conference turning off lights,computers and days to prepare for it...to man- that he spoke Friday with the appliances when possible,illumi- age our way through the fore- governors of Oregon,Wyoming nating Christmas lights between cast"-Adams said. and Idaho, and with California 8 p.m. and midnight only, and The-Northwest Power Plan- Gov. Gray Davis' chief of staff. turning heaters down to 66 de- ning Council has warned for a Ail agreed each state has to con- grees and wearing sweaters in- [28c 20001219 ChitwoodLightsLetter.pdf LOCAL , EWS 'NE SODttC£ do • 04 14.g rvi Cons n � e Darkness The Implications of Deschutes County's Outdoor Lighting Code . Josh Beddingfield MD-150093D Ex# 2 '7 After a major earthquake in Los Angeles a few_ I security light hanging of a nearby horse barn.It years back, calls started trickling in to police shines brightly through the junipers and destroys departments and news agencies about a curious the flavor of the area,by making it feel like a phenomenon. The night after the big quake, a paranoid suburb where the owner is worried misty band appeared in the sky and with it a about security to the exclusion of concern for number of new stars.The callers were worried his neighbors. that the events were related in sonic way to the As more and more city people relocate to the shaking of the earth.The biblically minded must . remaining:rural pockets of Deschutes County, many bring with them these annoying lights.As I have wondered whether Armageddon was around the corner as God rearranged the beau- with many issues related to rapid growth, the ens. proliferation of nuisance lighting destroys some The culprit,in this case,was not an old testa- f� of the very qualities that newcomers come to merit Jehovah parting the skies, rather it was a I enjoy,in this case,clear night skies and friendly power outage that had taken out the thousands of neighborhood relations. Look .out over the outdoor lights that obscured the Milky Way and . .county from, say the summit of South Sister at the constellations of the night sky.Astronomers, midnight,and the situation is all too clear. and others concerned with the declining oppor- , . To address the problem, Deschutes County tunities afforded to sky gazers,are fond of telling commissioners approved an outdoor lighting such anecdotes when they argue for changes to . ordinance in 1994. It doesn't demand that pea- outdoor lighting codes that would stem the tide pie with concerns for their security take down of a phenomenon they call"light pollution?' , their lights.Rather,it asks them to simply shade Ted Sake;an amateur astronomer puts it this their existing light so that it doesn't spill off their way on his webpage devoted to the subject, property and on to others'.As it turns out, that "How would you like it if your neighbor played not only drastically reduces the amount of light heavy metal music at 120 decibels and directed it reflected into the night sky and onto disgruntled towards your house on a constant basis? Light neighbors eyeballs, it makes for a more secure pollution is equivalent to being subjected to loud and efficient light. noise on a continual basis." According to George Read, Director of the Additionally, loss of nighttime darkness has i. Deschutes County Development Department . many'implications .for wildlife habitat and the . (CDD), "We had long term residents come in quality of National Parks and Wilderness Areas. ' and say the lighting Was bothering them,panic- On the east coast, beachfront lighting is corn- ularly in the rural areas. I was surprised at the manly blamed for an increase in sea turtle mor- amount of support it had."Read also admits to . talky as hatchlings are confused by unnatural being surprised at the broad political spectrum Iightizig.The National Park Service reports that ' that brought the code to pass, recalling, "I was nearly two-thirds of the parks that permit 'absolutely amazed that some of the most pm- overnight camping are plagued by light pollution • property rights folks came and testified in favor problems. In Ontario, Canada, a unique park, of the ordinance." believed to be the world's first, was established 'Hc attributes the consensus to the perception solely for the purpose of providing unpolluted that bad outdoor lighting is not a property rights night sky within reach of heavy populated areas. ! issue so much as a nuisance issue,"It's sort of like Behind the rhetoric about pollution is a noise:some of the same people who would say growing movement that seeks to change the way ' don't tell me what I can do with my land would • people think about nighttime darkness.Instead.of support the idea that you can't make lots of noise being a rural quality that is inevitably diminished at the wrong hours.The same is true oflighting;' by urbanization or security lighting, the move- • The code, which applies only to rural areas meat seeks,through common sense and cooper- outside of the Urban Growth Boundaries of ation, to define light pollution as an avoidable Bend,Redmond,and Sisters,has been in effect nuisance that diminishes a common, right.The ' for new development since the ordinance's pas- as-f. • [28c 20001219 ChitwoodLightsLetter.pdf MD-150093D E. 28c Pg# e The movement for night sky preservation through lighting codes is part of a growing trend in public policy that seeks to broaden protections for scenic and aesthetic qualities. (unshielded lighting).Directed light,motion sen- about being able to view the night sky.But there son or lights that you can turn off and on,there are broader public policy implications that are some studies we've seen that show that that's should be of interest to all Central Oregonians. • actually safer;'Motion sensor lights,which only The movement for night sky preservation • tuin on when activated by movement,are corn- through lighting codes, and even in Ontario, . pliant with the lighting code. Canada a protected night sky park, is part of a According to the International Dark Sky growing trend in public policy that seeks to Association (IDA), an Arizona based advocacy broaden protections for scenic and aesthetic group, directed lighting could also substantially qualities. reduce the amount of energy wasted by most The concept behind the Deschutes County unshielded fixtures.They estimate that the aver- lighting ordinance, as well as others enacted in • age mercury vapor light,the most common kind Tuscan, Arizona, Seattle, Washington and the of high power fixture,wastes 30% of its light by entire state of New Mexico,is to define access to sending it upward or outward instead of down- dark night skies as a public commodity that is ward, Additionally, mercury vapor; shielded or destroyed by careless private actions. Backers of not,is an inherently wasteful lighting source.The the Ncw Mexico law,for instance,speak of that IDA estimates that, simply replacing mercury state's famous skies as a natural resource which vapor lights with an alternative, low pressure produce economic benefits such as astronomical sodium,would save over$500 million nationally. observatories,tourism,and quality of life ameni- Although the Deschutes County ordinance ties that are damaged by bad outdoor lighting. ' has been in effect for new construction for near- Imagine this approach applied to other hot ly six years,there have been some problems.The button scenic issues in Deschutes County.When departure of County Commissioner Barry asked whether he sees the nuisance concept Slaughter,arl ordinance supporter,made it tough '; being applied to other issues, George Read for CDD to acquire resources for ertfoi•Cement replies,"Look at the furor over the driving range and public education ,about the measure. or the cell towers that are being proposed.We are Enforcement of the code, as it relates to new one of the only counties in Oregon that has view building, was not carried out until three years protection corridors along our highways.There ago-and the'compliance deadline for existing hasn't traditionally been a lot of support for that lighting had to be pushed back from 1999 to ? sort of stuff,but now we are seeing more support 2000 to give CDD more time to get the word '.• for it,and more support for protecting views." out. • Several effects of this change are apparent "To thir"aay there are not a lot of compliant ! already. CDD is in the process of reviewing its fixtures in the stores," says.George Read,"We !. building code exemption for agricultural out- didn't do the job to get to people and let them buildings;due in part to the flap over an enor- know about this ordinance."A quick trip to the mous, agriculturally dubious, barn built on local big box hardware store,Home Depot,bares Tumalo Rim Drive that neighbors complained this out. Of the available outdoor security fix- ruined their mountain views.Opposition to pro- tures,most don't comply with the county light- posed cell phone towers is galvanizing around ing ordinance and no options are available,such the fact that the towers are just plain ugly. as retrofit shields,for cheap fixes to existing light- The twist to these issues is that the nuisances ing. In the parking lot, however, the hooded potentially impact property values and, in a street lamps do,meet the code,though rate only region largely dependent on tourism,recreation, marginal by the standards of the IDA because of and urban refugee immigration, the natural their protruding lenses. amenities that our economy is largely based Part of the problem is that bad lighting is still upon.Aside from.being visually disturbing, the • allowable within the Urban Growth Boundaries destruction of these amenities makes little long of Bend, Redmond, and Sisters. Read recalls, term economic sense. however, initial interest on the part of former Imagine,for instance,if the debate over Bend's aR�___ ._r n--- r n t ti. • • • .mow. �.� --�- --n--._ -• r 128c 20001219 ChitwoodLightsLetter.pdf 1 Q art 1 I >I r.,...., . �y _ ' Nkio,. .,..,, �J fir .� _. = •.. 2 8 — _ 0 a .4.0 15 IMF CO i- ift 1:,11-61 iirri _ ,..ma a vi i ---____ _____..........._______ -= co 0 2 z —• 0 0 0 tzT) ce to z t... Q) .. 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'a "1 6, L* "" a W_ 0 O m ` • .• p = CL 7' a = n Al .d ,Oti a. = r'-0 = } QQ y '... is• o, ro f `� ,. 0 AI m C r9 t° ct -c p' ,n QQ y m co 0 -� a �[• ... w no I rro' — 119880325 IncidentReport-Cibelli.pdf INVEST/O - Rsg • Ck Inv 413SI"tmet t Ad'vj 4,,- 80780 River Bend Drive Bend, Oregon 97702 (50$) 389-3678 389-5483 Out ?itdt1.E1 Friday 25 March 1988 734 ie-s./ . O td. - .0E44fit LO District Attorney A/G. (503) 388-6520 Deschutes County LOA/6- TM/ AV) . 164 NW Bond St Bend, OR 97701 • • To whom it may concern: ..- _ About two weeks ago, we went out to our property and saw a Frank Ruegg Realtors sign attached to a juniper tree on our property on Sisemore Rd. The sign mentioned that a "custom house" was for sale. We called the realty company to find out what property or house the sign referred to and why it was posted on our property. We were informed that the sign referred to Frank Cibelli's house and property which is located to the west of our property, and that Frank Cibelli had placed the sign where it was supposedly because he didn't want people roaming across his property to look at the house without an appointment. The sign was located right at our building site, probably causing confusion, trespassing and possible hazard as we plan to be building a custom home there shortly, We requested that the realty company move the sign away from our flagged building site, and that we would not object to having it posted elsewhere along our property in the interest of good neighborliness, even though we were not consulted prior to the posting. This morning we received a phone call from Prank Cibelli saying in effect that he would move the sign, but he would make our lives "fucking miserable" until he moves. Re then hung up without giving an opportunity to respond. Because he has been verbally abusive and hostile in our few past meetings, we are taking this as a serious threat against our persons and property. Sincerely, William John Kuhn Martha Leigh Kuhn � DA.66632S.ws4 MO-1500930 E V Pg Page 1 of 1 1 20010101 Kuhn to DA Doty Anna re Cibelli following stalking via truck & Nails in driveway 1 Main Identity From: William John Kuhn <WilliamcRiskFactor.com> To: DesCo DA- Doty Anna<AnnaD©Deschutes.org> Sent: Monday 01 January 2001 12:19 PM Subject: Cibelli Happy New Year Ms. Doty, I am realizing how difficult your job must be to receive these kinds of communications. The ugliness of what humans do to humans(we I guess I should say to all other beings)seems unrelenting. This mornings update and questions: On Saturday at 10:45am I drove past Frank Cibelli's house on my way to town to pick up mail and go to the library. Mr. Cibelli's truck was in his driveway parked in front of his garage. I proceeded on Couch Market Road heading east to Rt.20 going the speed limit(45MPH)_Within a minute(I was in front of blue roof house on North side of road)Mr. Cibelli was in back of me,driving his pickup truck with the Pueblo license plate. He was close enough that I could see him through my rear view mirrors. He continued to follow me onto Rt 20 heading to Bend. I continued going exactly the speed limit all the way to the post office. Ever lane change I made, he made also.At the Mountain View Mali main entrance I entered the intersection as the light turned red. I continued through the red light expecting Mr. Cibelli to stop. He did not. He ran the red light in order to continue to follow me.When I turned off of 97 to go to the PO Mr. Cibelli continued south. I returned home from the library around 3pm. My wife Leigh was out with our cat.We do not let her out without supervision for fear of her hunting birds and chipmunks. Shortly after that she brought the cat inside, Leigh went back outside to rake the gravel at the bend in the road back Into the road. This morning, Monday 1 January 2001,we were going out to take a walk when at the top of our driveway we saw some one hundred or so 1-3/8"dry-wall nails that had been purposely thrown onto our drive where it meets the road. This was not more than a few feet from where she had raked 40 hours earlier. What I am trying to make clear here is that she would have seen the nails If they had been there when she was raking. We called the Sheriffs office and Cpl. Wayne Morgan came out and wrote up a report sometime around 10am this morning. Questions: What should we do with the nails? Does Assistant DA Kelly Walsh need to see or talk to us before the pleading next Monday morning at 8:30am? Thank you for taking our communication. William Kuhn 541 389 3676 Cpl. Wayne Morgan later indicated he had gone to Cibelli's regarding the nails and a guest said Cibelli was there the whole time. Later in preparing for Civil Court we received via discovery document process that Mr. Cibelli and Mr. Dowell signed a contract on 1 January 2001. It doesn't take much to put 2 and 2 together to figure out that the witness for Mr. Cibelli was Mr. Dowell. MD-1501:93D E Z qe Pg# 01/05/2001 20010101 Dowell signs contract with Cibelli as property manager To: Frank Cibelli Pueblo Builders 18281 Couch Market Rd. Bend,OR.97701 From: Jeff Dowell $ 65595 Sisemore Rd Bend,OR 97701 10705 NE 384 Ave Vancouver WA, 98686 Frank, Please let this letter serve as a formal agreement between us for you (and/or your designees)to act as property manager for my property on Siscmorc Rd. As discussed, your responsibilities include,but are not limited to: - The screening and securing of potential renters - Handling any landscaping or construction issues that anise • - Performing troubleshooting and repair work as necessary - Being'on-call'to the renter to handle any emergency or security issues Compensation for these services will be handled on an hourly fee basis, with immediate payments from me based on submission of your monthly invoices for services rendered. Agreed to this 1"day of January,2(101: Jeff It • N Frank Cibelli Property Owner Pueblo Builders • • • MD-150093D Ex#281 Pg# Jeff Dowell From: Jeff Dowell Sent: Thursday,January 04,2001 9:02 AM What Is the INTENT? To: 'thbartonieaoi.corn' Cc: 'puebio(Dbendnet.corn' Subject: The Moonshine Ridge Road"Gate" Internet5ldng,coM defines "FUD" Importance: High cis "Fear, Uncertainty, and (,ontacts: Mr. Thomspon Barton Doubt" Tommy, Things appear to have finally taken a turn for the better on the Kuhn/Cibelli/District Attorney situation, as Franks;attorney got a call'y from the DA saying"We screwed up In Frank We'+ PIM hounded by the Kuhns every day sin this after on tom place and we now realize they're the ones at fa here,,r llfi W1 're li oking for a grateful w ll g. , uw ay out. +.r�bibg'�.drop�. Charges s rsfllat l=rank,wil yt2 with "�" � h�attorney is WOO t+`►work a deal. w�i rd up having to pay us for the$2,100 in sunil tli 00400 that the Nifiti41 which started the whore third, so we're' ttfie*fliole sjtuetiori la changing for us from the trslve to the Win . Should know something more in the next few days as to outcome of that. Regarding the gate on your road to your property. It's my opinion that continuing to give Bill Kuhn""control"of that gate)as is currently the case, by virtue of him saying that anyone who wants to use it must simply come to him for a key)is the wrong position to be in. I'd like to ask you> favor in that you# ' Mill 001104 Orne telling him you have asked me to n the kO*W that you and I end Frank itaelli will be the 000 With a key from now on. If he nails to have some aessiespforegmearegis reason, he'll need to come to Frank 01 ba gel e isr,y. With that gate and a portion of the road clearly on the Dowell/Kuhns joint property,the more you assert your ownership and control over it,the better.And the sooner the better. Every month that goes by that you let him be the gatekeeper to that road, is getting him one month closer to being to assert at some point in the future"I've been stewarding that property for the last X years,with Thom Bartons blessing, and therefore I've got the right to(blah blah blah-whatever)when it comes to that road."Yes,you sending such an email may escalate an altercation between the two of you but believe me, if what you say,about him already trying to get that road'closed down'is true you're headed for an altercation with him anyway. The sooner you'take back that road an assert your ownership and control of it,the better. Clearly, g i r. , by virtue of it being n place in the.mid 7Q's and in common use by you since then, and further, because Dowell/Kuhns have never challenged the location of the road being on our property, you hold the high ground here. I 't Stitt, ts and the Stye of limitations a Vi° s you both*i rights forever. Howl er, Billy boy won it w and I believe he will make every play possible for'control Of that road the moment you stand up and de: " �It'e y and not his. In my opinion,the i�you m t1 s�ment,the better,for your own pr�ction 1 I ,and my�of creating continued Ft in Kuhrfs life, the tfrnming,and who you're giving el the toed lb Monk and I),couldn't be more helpful. I'm still very interested In trying to get a deal cut that let's me buy your place, so I'rn trying to get my property and the house into condition as quickly as possible.One the most important factors in increasing my value is to diminish. as much as posstbito t "Kuhn factor."Your telling Bill to"bad'when tt comeititOiStrapOng to have a key to your road w l t r nforce his toss of influence/control r his immediate s, I believe that will benefit us all in the obviously you and I need to talk more about the terms under which you might sell me your place, but we can do that at Bandon. l r.aliSe this all msy sound pretty blown out of proportion, but if you doubt the degree to which Kuhn will go to exercise what he believes is his''stewardships'of the Tumalo Writer Deer range,just pick up the phone and call me(or Frank Cibelil,or Jim Watts, or Laura Alenbaugh, or George Colvin,or Mark Burchette, or the Fowlers... we've all had serious run-ins with the guy-and up until now, he's pretty much gotten his way). I'm going down to Bend next week and would like nothing more than to go up and change the lock while I'm there. Please let me know as soon as you can if this is a direction you're wilting to go. —- Thanks, Jeff dowel) MD-150093D E=x#28 q Pg# INTENT 20010104 email bowel)To Barton Ps Mooiwhi s-Wocovary FUb.,lpg.pdf What i the IIMNT of This owhool0 Jeff Dowell From: Jeff Dowell Sent: Tuesday,January 09,2001 7:51 PM To: TB.artonCaoloom' Subject: RE:The Moonshine Ridge Road"Gate" thommy, i have two answers to your questiee(s) , one is short and to the point, and the ether is longer and filled with details. my short answer is: battle lines have been drawn. frank and i (and others in the moonshine ridge area) are on one side, and kuhns are on the other. i'm asking you to join me because need your help. if you have read my original email in full., and then read through the additional details below, and you still are not interested in getting involved, god bless and good luck to Vote it won't be necessary to communicate further. my more detailed answer is: ,already have a key to your lock, you gave me one ten years ago. a have one and kuhns has one. kuhns makes it very clear to anyone he can that he 'controls' your gate and that everyone has to come to him for a key: as i explained in my first email, z believe that puts bill in a position of power and authority over something that's yours, and i'm telling from a great deal of person experience, with bill kuhn, that is a very dangerous thing to do. it absolutely 15 about making a statement to kuhns, a power and control statement, and with the recent attacks he's launched against Pat and I, the timing of your support is important to me. this guy has filed 28 code violation complaints against me since October of last year, only one of which had merit (i had to paint the house a different color), and defending myself against those complaints has cost me thousands of dollars in legal fees. he is clearly trying to exercise his (self appointed) control and power .over The Tumalo Winter Deer Range, and i'm asking for your help is showing him that his immediate neighbors don't like or appreciate his actions/attitude. this idiot has driven Lisa out (my renter) by 'haunting her' with all sorts of bizarre actions over the past two months (like stretching string across our driveway so Bill can document her coming and going by virtue of the string being broken when she drives through it, like hiding behind trees and following Lisa around the property when she'ee simply out taking a walk (as a means to make her uncomfortable and 'stalked') . unfortunately the sheriff cannot do anything about it because Kuhns has technically not broken any laws even though the sheriff says openly that the guy is certifiably nuts and they would love to nail him. he is also consumed with the outright manufacture of false 'evidence' against frank cibelli. multiple reports to the sheriff about frank trying to run he and leigh off the road when they pass each other on couch market or sisemore, a e4 04. *Ares the w 4 .�n. ' d.Pe* 004.g 4 s .d�r4v "xg :444011 o t04 night (tvitek , m r: id to in. oh they night the LOok 'p +N�). yes, damn right, this is all about control and power, and all about putting a stop to sill continuing to exercise his over other peoples spaces- if my initial letter to you didn't make it clear why i'm asking you to do this for me and what it represents, then i failed to communicate clearly. unless i misunderstood you at Bandon, you are already being attacked by kuhns by virtue of his continued attempts to get your property closed off from access via your existing driveway. i would think would be upsetting as hell to you, but maybe i'm missing something. it's clear that he's hell-bent on stopping me or Jim watts (or anyone else) from becoming a neighbor- who appointed him god? i would be happy to talk with you on the phone more about this if it's necessary, but i don't know how much clearer i can be. there is a lot it stake for me, and I'm asking you t MD-150093D Ex#2 Pg# to help me out by Simply letting me: change the look on the gate and having a short email come from you to bill that says: "bill, i've had Jeff Dowell change the lock on the my gate- he and frank cibelli have a key if you ever need one. best regards. thommy" if he asks you why and you feel a need to saying anything more than "because it's my gate and i 20010409 and 20010410 Dowell communication with Thom Barton and Frank Cibelli Mr.Dowell continued his harassment in April 2001 by convincing adjacent land owner Thom Barton to send us another email. Historical Notes: Prior to our purchase,Mr.Barton had constructed an access drive to his property.Mr.Barton was given the opportunity to construct this drive within an 80 foot wide easement.Please note the runway for a Boeing 747 does not need to be 80 feet wide.Unfortunately Mr. Barton was not able to stay within the easement,wandering as much as 75 feet from the centerline of the easement onto the joint property. This was confirmed by Deschutes County Road Department in —2003. Mr.Dowell had forgotten that we had installed the chain/gate with lock and key in the early 1990s. We had given keys to Mr.Barton,Mr. Cibelli,and the Dowells because we believed this access road was on the 80 foot road easement. We therefore felt it was only just to make sure all of these parties ought to have access. In January 2001 after Dowell and Cibelli assaulted us,Mr. Dowell removed the lock and put his own lock on the gate to keep us out and then sent the key to Mr. Barton so Mr.Dowell would have deniability. Mr.Barton blind copied Mr.Dowell the following which was sent to us: First: Original Message---- From: <ThBarton @aolcom To: <William @RiskFactor.com Sent: Monday,April 09,2001 10:22 PM Subject:Moonshine Bill,I have asked Jeff to remove the lock on the gate and he is willing. I want some people(mostly realtors)to take a look at my land. They will be dropping by unscheduled, so I want them to have easy access. To which these emails followed: Original Message From: Jeff @Home<jtdowell @home.com To:<ThBarton @aol.com Sent:Tuesday,April 10,2001 9:51 AM Subject:Re:Moonshine TB. This is perfect.Particularly the piece about the realtors. That will worry the shit out of Bill day and night. MD-150093D Ex#A6 L Pg# C:1Docalprop655751Dowel1Lego1s&Deciaiona Coon&County l_INTENTUNTENT 20010409 and 04101)owoll commomcelion with Thum Dorm(and Frank C edi).doo page 1 11/10/2013 I'm sure this will bring back a typical Bill hate mail response,but it's better to get this on the table now vs.waiting. I won't be surprised if he threatens all sorts of things,but just let him vent and please feel free to lean on me if you need some help dealing with it. There's little doubt in my mind he will come back and tell you that because you've "turned on him"he's going to try [to] exercise his "right to close the road" and he'll cite a thousand reasons why he's able to do it. If and when it comes to that,don't respond,just send me the correspondence and let me look it over. I'll get back to you after talking with my attorney about what the next steps should be. Lastly,out of concern,I would check back with your friend who commented that your property was now'unbuildable'and ask for more details. I don't know anything that's changed,but if he does, I'd certainly want to know about it sooner vs. later. Let me know what you hear back from him. Onward,jtd Second Last Original Message----- From: "Frank Cibelli" <pueblo @bendnet.com To: "Jeff @Home" <jtdowell @home.com Sent:Tuesday,April 10,2001 1:34 PM Subject:Re:Moonshine place's lace is unbuildable? What's up with that? fc Last A friend of his(Debbie, lives in Sisters,married,with kids,you know her,Lawrence knows her)her husband mentioned to him last time they were together that he(this womans husband)thought some zoning ordinance or something had changed and TB's place was not buildable even now. I told him I'd not heard of such a change,but I thought he should try to find out more just to be safe. 1 can't imagine there's anything to it,but you hey,you never know. Better safe than sorry. 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I am cc'ing Administrative Manager Lori Furlong so she may inform her staff. Thank you. Nick Lelack,AICP,Director Deschutes County Community Development Department PO Box 6005 117 NW Lafayette Bend,OR 97708-6005 Office:541.385.1708/Cell:541.639.5585/Fax:541.385.1764 www.deschutes.org/cdd If County can issue a permit for public health and safety issues, surely it can issue the other party a permit to remove the illegally built bedroom in the garage. �'ii E '.�i.i. 'F•7,i'.I I n in, /)eschufes C,ounl y Property I n/iwinution p). I',I i r2 Dial Warninpsilotalions f Print Its port j f Print Page • Warnings'/Notations for account#163466 War nines:Nutdlwns • Account Information • MaMna Nano:DOWELL,JEFF&PAT Map end Taxlot 1 6111 900001 00 • Account 163466 Altus Address,65595 SISEMORE RD,BEND,OR 97701 Tax Sealus:Assessable DsvolopMrtt Natutons, The DescnutesCOUn.,tY Common ltyDevelopment DepartmentIsresponsibleforlanduseandpermitsforproper tiesintheCountyit . ,.,...._..._..............._... jurisdiction.Contact this department If you need additional information Or if you have questions. 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O F (b f I� .,may ' �U ^�.�_� I �k� r�;,�aa moo./ /��y ,�,/y X611 To T"i1f IJ -,1 i r r��:,•, kI MJ.G /hR,,L.tc. rfa EDT _ � -41 m y cuss• r ^� `1 141:1$ SkiczNi T" 1 j To 3e_ /., t i it Tz Fe t,70, ,„-'i'‘r• a _ ,-,,; .. emu. k 6PrR,AGE. 4 41 FG'. ti' 1 1 ^P'" 1. pEPENDAtVT• EXHIBIT`^ MD-150093D Ext1 213 P .# 2 C:\Docs\Clients\KW&M\PropertyTax&Appeal\2014-15\to BoPTA\DesCo and safety permits one granted one not.doc page 2 2/22/2015 14F .,....; j-L A - 7 The left side elevation below shows two of the four windows labeled by Dowell as being .B.for bedroom and 'G for garage. J o e ! • , 11 11 H I ff r7( 'i r rill i 1 , i 1 I ' ' llild ill ' )11 .. 1 , ,-4 . EA , h. 1),----t—r-- iv I Ma.* - . ! ! e- il ) .., 010.1t 4 nil 11:, I 11...-- . irr -4-4 II; I t_i=,7T J. -- —---ff I.: L .! .11W . ! ff: 'c.. F gl- "' '" -o 1 i .1 1 } 'Li I;! it 0 ---. '-' ..., il . ..-„, 1 J. jii i., !..7,,,,, .4,:-.- 1, - .... . 1 ,-,..,,,75., ,.:4 • .*:;.i : ., :-ta"" lao Li I. .1 tr. 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' •_..,.. .".4...h.p • 6 _ 2__ I I 11 VW.F.PRA/1 •11 ? • ot . 1 T3 ; I . t --1' I ..., I; ...7 f Ft g lile'v 1% , 111 0 2 1 .... . \ ,, ledli Jr TV & t'l,4.--11 1 -f' • ' - .-_. 1 : :i.L.-,yr..:N tl L Ors'?r. a:,..r.,-z.1■,1,-''.- ----=.4 ---- ...."-,-,.-1.:‘,40 .4 ,. . _., _rn_ DEPENDANT'S i i 91 •- MD-150093D E Z9 Pg# 3 . , . c moes\chents\KwezmwropertyTax&Appeah2014-15\to BoPTA Mese°and safety permits one granted one not.doe page 3 2/22/2015 Kuhn vs Deschutes County Assessor Scot Langton MD-150093D Ex# 30 ' Pgs# 6 30 19990729_Djp_99h1_Lovlien with redactions 6 2 - 3 November 2015 C:Mom\CUnp.Y CWadt hnpwgTW#ppc4201417�_6ddbkL.bal.Pw Noumea.w • 19990729_0jp_99h1_Lovlien with redactions .pdf William John Kuhn 119990729_Djp_99h1_Lovlien.pdf ( Martha Leigh Kuhn PO Box 5996 Bend, Oregon 97708-5996 Phone: (541) 389-3676 Thursday 29 July 1999 at 1:45:38 PM NOTE: Lawyer Client privilege portions have been redacted. Robert S. Lovlien w 541 382 4331 Bryant Lovlien& Jarvis 40 Greenwood fax 541 389 3386 Bend OR 97701 We have a longstanding situation with our non-resident neighbors. They own parcel#100 and %2 interest with us in parcel #300 in this cluster development. (The cluster is only three parcels: 100, 200, and 300.) See enclosed map. There is no homeowner's maintenance agreement and there is no homeowner's association to help deal with issues of conflict. In 1980 a conditional use was granted for this cluster development based on six land use/ lifestyle restrictions. ODF&W withdrew their objections to the CU after these restrictions were drawn up. These six restrictions were filed subsequently as deed restrictions#87-14178 book/page 148-1792. See enclosed restrictions as filed. We purchased our lot#200 and 1/2 interest in lot#300 in 1987. In 1989 the Dowell's purchased lot#100 and 1/2 interest in lot#300. They refused to pay any share of the costs of bringing in utilities although they have since tapped in to the lines. In 1990 they asked us to sign their purchase contract. We did so although we received no compensation of any kind because we didn't understand we were selling anything. We signed to be "good neighbors". The purchase contract includes in its wording all of the deed restrictions with the exception of#1, which refers to "no new dogs". See enclosed purchase contract. Beginning in 1993 through 1996 they began construction of a garage/studio apartment on lot #100. Their construction did not comply with the setback restrictions. Several other code violations also occurred. During this time we found out they intended to bring dogs to this cluster development and have dogs when they move here. Our whole intent and interest in living here ourselves was to be here with as little human impact to the environment and wildlife as possible. We reminded them of the deed restrictions. They claimed their purchase contract that we signed negated the pertinent deed restriction. In early 1997 we had a lawyer write them a letter indicating the deed restrictions were not superseded by their purchase contract and that the contract didn't mean much because we received no compensation. See enclosed letter. MD-150093D ENV 30 Pg# 1 ... c:\does\prop65575\dowell\djp_99h1_lovlien.doc Page 1 of 6 '1P 99 07 29 13:45 19990729_Djp_99h1_Lovlien with redactions.pdf We were able to get the Dowells to begin mediation in April 1997. For 2'/2 years we have tried to reach some accord or mediated agreement. This has been unsuccessful. During these efforts other things have occurred to clearly demonstrate they have no interest in our concerns and we would be foolish to trust them. After all this they still contend the"no-new-dog" deed restriction does not apply to them because of the purchase contract. They have recently informed us they do not wish further discussion on dogs and they will apply to partition lot#300 presumably under the misguided impression we can no longer claim the "no-new-dog" deed restriction can apply to their property. We are opposed to partitioning because of winter deer range minimum acreage issues we wish to support and because it would raise our taxes. We believe we again need legal advice on how to deal with this situation. Can you help? Some of our questions include: 1. How can we convince the Dowells they can not bring dogs here? 2. Can we prevent the joint parcel from being partitioned? 3. What are the estimated costs for your suggested options? We have also been trying to get the County to respond to issues regarding homeowner's associations and maintenance agreements. The purchase contract and deed restrictions have confused the situation. (Note: we want a homeowner's association because this cluster has deed restrictions that cover all parcels.) Sincerely, Y William John Kuhn WJK/k MD-150093D Em6i 36 Pg# 2 c:\dots\prop65575\dowell\djp_99h1_lovlien.doc Page 2 of 6 « 99 07 29 13:45 19990729_Djp_99hI_Lovlien with redactions.pdf The Dowells keep hitting us over the head with the Contract dated 900711 saying there is no mention of the "no-new-dog"provision and the contract takes precedence over the earlier deed restrictions. We have asked for a Homeowners Maintenance Agreement and Homeowners Association that will stipulate how to deal with deed restriction problems, other possible difficulties, paying taxes on the joint lot, preservation, care, maintenance, and activity restrictions on the joint property. There has been no movement in a positive direction. We have been frustrated with how the Dowells repeated refusal to pay any share of the costs of bringing in the utility line extensions to the cluster even though they are using these lines. We have been frustrated with how the Dowells have systematically undermined the integrity and the principals mentioned in the deed restrictions and in their own purchase contract. Specifically: "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."We have also been frustrated by the Dowell's lack of respect for county ordinances and building codes. In several communications to us the Dowells have frequently said that, "We're worlds apart in both opinion and perspective". MD-150093D ENV 30 Pg# 3 c:\dots\prop65575\dowell\djp_99h1_lovlien.doc Page 3 of 6 ��l• 99 07 29 13:45 19990729_Djp_99hI_Lovlien with redactions.pdf j We contend: The Dowells are in violation of their own purchase contract by not demonstrating sensitivity to living within the boundaries of the Tumalo Winter Deer Range, and have not adjusted their lifestyle accordingly. 1. Obtained new dog after purchasing their property with the stated intent of bringing the dog to the property & continue to acquire new dogs after moving here. They have written that they will move in with dogs. 2. Placed footprint of homesite outside the 400-foot limit from road. 3. Maintained property in violation of LM-92-9 by cutting large old trees that were not in the construction zone. 4. Maintained property in violation of LM-92-9 by not painting or staining the white-gray walls making the structure a standout eyesore. 5. Established two residences in a single family zone. 6. Attached second septic line to septic system. 7. Offered to rent to an owner of dog(s). 8. Dumped refuse in a dangerous and an unsightly manner. NOTE: Lawyer Client privilege portions have been redacted. - NOTE: Lawyer Client privilege portions have been redacted. Can we place a lien against their property? If so, how do we do it? • MD-150093D ER# 36 Pg# 4 c:\does\prop65575\dowell\djp 99h1 jovlien.doc Page 4 of 6 99 07 29 13:45 19990729_Djp_99hI_Lovlien with redactions.pdf Regarding our attorney—and what attorney needs to do. NOTE: Lawyer Client privilege portions have been redacted. contract. 1. Get copy of Original Dowell-Burchett contract filing 193/75 on 890928.4. The two contracts are exactly the same except for the listing of sellers. Both the Kuhns have been added to the 900711 contract. 2. Show difference between the two contracts. A) The title of the 890928 contract says "Contract—Deed",the title of the 900711 contract says "Contract". B) Paragraph one of the 89 contract reads "This agreement made and entered into this 3rd day of August 1989, by and between MARK BURCHETT, hereinafter"seller" and JEFF and PATTI DOWELL, hereinafter"purchaser",witnesseth that:". Paragraph one of the 90 contract reads"This agreement made and entered into this 3rd day of g y August 1989, by and between MARK BURCHETT, MARTHA LEIGH KUHN, WILLIAM JOHN KUHN, hereinafter"seller" and JEFF and PATTI DOWELL, hereinafter"purchaser", witnesseth that:". C) Paragraph two-labeled(I) and paragraph three seem to describe the joint ownership parcel. Because of our lot line adjustment we assume the second contract corrects the description of this jointly owned lot. (Please note that I have not verified that this assumption is correct.) Otherwise it appears that there is no difference except that Both the Kuhns are listed as sellers in the second contract. 3. Determine if the second contract dated 900711 makes the first contract dated 890928 null and void. Therefore, only the second contract is valid. 4. NOTE: Lawyer Client privilege portions have been redacted. NOTE: Lawyer Client privilege portions have been redacted. 5. 6. Is there any way to inform prospective buyers of the Dowell's property,prior to the sale, of the hornets nest that the Dowells have created? MD-150093D Dori 30 Pg# c c:\dots\prop65575\dowell\djp_99h1_lovlien.doc Page 5 of 6 ti1' 99 07 29 13:45 19990729_Djp_99h1_Lovlien with redactions.pdf ( We want the Dowells to respect the deed restrictions with the force of law behind it 1. We want to get to the point that if the Dowells bring a dog to this cluster then they run the risk of going to jail for violating a court order. 2. NOTE: Lawyer Client privilege portions have been redacted. We will settle with the Dowells IF AND ONLY IF 1 NOTE: Lawyer Client privilege portions have been redacted. - o 2. There is a Homeowners Maintenance Agreement and a Homeowners Association established (to the Kuhn's satisfaction)that deals with problems that develop between neighbors (especially dogs). 3. NOTE: Lawyer Client privilege portions have been redacted. 4. We require ownership of the third parcel is turned over to the Kuhns . 5. The Dowells pay one half of the cost plus interest(at 9%2%) of the utility extension lines that they are enjoying. 6. NOTE: Lawyer Client privilege portions have been redacted. Or MD-150093D Ex# $o Pg# fo . c:\dots\prop65575\dowell\djp_99h1_lovlien.doc Page 6 of 6 �0 99 07 29 13:45 r Kuhn vs Deschutes County Assessor Scot Langton MD-150093D Ex# 31 ~Pgs# 41 DCPC Kuhn Text Amendment 2003 20030703_PC Memo Kuhn Proposal.pdf 20030710PlanningCommMinutesWithAdds.pdf 20030717__TranscriptRequest.pdf 2 - 3 November 2015 C:woo.\Che.vcW&4Propo T aAppw'3ONs1$\_Exaduu Ube/.f rpoo m zobmgtledd.x wea 21 aou.rlA1 120030703 PC Memo Kuhn Proposal.pdf MD-150093D Exii 35 Pg# 41 els 0„/, r, c Community Development Department 0 Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM TO: Deschutes County Planning Commission FROM: Damian Syrnyk, Senior Planner CC: George Read, Director; Catherine Morrow, Principal Planner; Laurie Craghead, Assistant Legal Counsel DATE: July 3, 2003 SUBJECT: William John and Martha Leigh Kuhn Request for Code Amendment Purpose. William John and Martha Leigh Kuhn presented a request to the Planning Commission to amend the County Code regarding conditions of land use approvals at the Commission's June 12, 2003 regular meeting. The Kuhns submitted a letter to the Commission (attached)that proposed the following language: All prior preconditions of any prior commitments of development must be complete before any land use process may continue or be processed further. Any precondition of development found to be incomplete shall result in the denial of any current application process. Staff has researched this matter and has prepared this memorandum to provide the Commission with background information on the current policies and procedures for code enforcement in the County. Code Enforcement Policy and Procedures. In the latter part of 1995,the Board of County Commissioners adopted a Code Enforcement Policy and Procedures Manual (manual). The policy and manual became effective on January 1, 1996 and apply to code enforcement actions, building, environmental health, and land use permits and approvals applied for and issued on or after this date. The Board adopted this policy and document after more than a year of work performed by a code enforcement committee and Staff of the Community Development Department, Legal Counsel, and Sheriff's Office. Staff has provided a copy of this manual, amended last in 1998, to each Planning Commissioner. MD-150093D Ex# 3( Pg# j Quality Services Performed with Pride 20030703_PC Memo Kuhn Proposal.pdf The policy and procedures manual (manual)addresses procedures and goals for obtaining compliance with the county codes. This manual applies to code enforcement of all areas under the Community Development Department's purview: building, environmental health, and land compliance with com the manual is in use. One of the land use compliance issues addressed in p conditions of land use permits. The manual includes the following policies that are related to this issue: J. Restricting Issuance of Development Permits. In some cases, persons apply for land use, construction and/or environmental health permits to develop property upon which there already exist uncorrected county code violations. In addition, in some cases,persons apply for permits for "accessory" structures, such as garages and other outbuildings, that are later converted to non-permitted "primary" uses, such as a residences. In such cases, the only effective way to correct or prevent code violations may be to restrict the application for and/or issuance of such development permits. (Note: Additional county code and/or statutory authority may be needed to allow refusal to accept permit or approval applications or to refuse to issue permits or approvals due to pending code violations.) It is the county's policy, to the extent authorized by law, not to issue permits or approvals, nor to renew or extend permits and approvals, for development on any property on which there already exist uncorrected code violations. The restriction should continue until such violations are corrected. It is also the county's policy not to issue permits or approvals, nor to renew or extend permits or approvals, for "accessory" structures, such as garages and outbuildings, on vacant property, on property on which there does not already exist a permitted primary residential or commercial use, and on property for which a permit or approval for a "primary" use is not sought simultaneously with the "accessory" use permit or approval. The restriction should continue until the primary permitted use is established or a permit for it is sought.' With respect to the first policy cited, this practice occurs at this time through one of several ways. Staff reviews compliance with conditions of approval of a land use permit(e.g. site plan review) before issuance of a building permit. Verification of compliance with conditions of approval may also occur prior to the approval of final occupancy of a building. The above-cited language also identified potential changes to the County Code that may be needed to address this issue of whether to accept or issue permit applications due to pending code violations. The question of"pending code violations" is broad and can include building, environmental health, and/or land use violations, including unsatisfied conditions of a land use permit that may or may not be related. In addition, one of the more complex issues in enforcing land use permit conditions is how to deal with unsatisfied conditions of prior approvals. This issue can arise in situations when property owners acquire property with existing land use approvals and discover during a subsequent land use permitting process that conditions from a prior land use permit issued for their property(e.g. conditional use permit) had conditions of the approval that were not satisfied by the former property owners. In addition, additional code changes beyond those proposed by the Kuhns as well as statutory changes may be required to Deschutes County Code Enforcement Manual (1996)revised 1998 July 3, 2003 Memorandum to Planning Commission Page 2 of 4 MD-150093D Exr# 3 t Pg# 2 20030703_PC Memo Kuhn Proposal.pdf provide counties the authority to enforce conditions on land use permits issued using criteria no long in effect or that have changed. With respect to the second policy cited, the manual provides an exception for applications for land use permit applications submitted to correct an existing code violation. For example, a conditional use permit for fill and removal would be allowed to be submitted to correct a violation of conducting fill and removal in a flood plain. A second conditional use permit would not be submitted for the same property for a new use until the fill and removal matter had been resolved. Title 18, County Zoning Ordinance. Two common forms of land use permit used for administering the zoning ordinance are site plan review and conditional use permits. As a practice, the Planning Division verifies conditions of approval are satisfied prior to the issuance of a building permit that has been sought to construct a building under an approved conditional use permit and/or site plan review. The following sections of the Zoning Ordinance further address enforcement and compliance: 1. Site Plan Review. DCC 18.124.030(D) "Noncompliance with a final approved site plan shall be a zoning ordinance violation." As part of an application review process, Staff can verify if prior conditions of a land use permit have been satisfied. In some cases, unresolved matters (e.g. landscaping) can be addressed and resolved during the review process. An example can include requiring landscaping to be completed prior to final occupancy approval of a building expansion. This is not always the case and varies on a case by case basis. l Use Permits. DCC 18.128.400, Occupancy Permit, and DCC 18.128.42D 2. Conditional p y 18.128.420, Building permit for an approved conditional use. The first section cited allows the Planning Director or a Hearings Body(e.g. Hearings Officer)to require an occupancy permit prior to initiation of the conditional use. The purpose of requiring such a permit can include verifying conditions of the permit have been satisfied prior to issuance of the occupancy permit. The second section cited provides the Planning Director the authority to issue a building permit for an approved conditional use only on the basis of the plan approved by the Director or a hearings body. You will find copies of the above-cited sections enclosed with this memorandum. The current practice in the Current Planning Section regarding conditions of approval is two-fold: 1)draft conditions related to the approval criteria that the applicant can complete, and; 2) ensure these conditions are met prior to the issuance of a subsequent permit or approval. It was the practice of the staff to include conditions requested by other agencies (e.g. Road Department) and to rely on such departments to enforce their own conditions. The practice has changed so that only conditions that are within the power of the applicant to complete are imposed. The imposition and enforcement of such conditions can ensure the applicant's proposal ultimately complies with an approval criterion. These conditions are often enforced prior to some future action taking place. Such actions can include, for example, issuance of a building permit and/or final occupancy approval of a building. July 3, 2003 Memorandum to Planning Commission Page 3 of 4 MD-150093D Ex# 3 ) Pg# 3 20030703_PC Memo Kuhn Proposal.pdf Title 17, Subdivision and Partition Ordinance In addition to land use permits involving development, the Planning Division also administers Title 17 of the County Code, which is the County Subdivision and Partition Ordinance. Chapter 17.24, Final Plat Review, outlines the final requirements for obtaining approval of either a partition or a subdivision plat before it can be recorded with the Deschutes County Clerk. The Planning Division Staff use a "final plat revieve process to review final plats, to ensure that all conditions of a tentative approval have been met, and to obtain final signatures on a plat before the applicant records the plat with the Clerk. You will find enclosed a handout sheet on the steps for final plat review used today. Conclusions Staff has attempted through this memorandum to show that the Kuhns' have raised a legitimate issue related to improving code enforcement in the county. The County has adopted a code enforcement policy and procedures manual, and uses existing language in the county code, to enforcement conditions of land use permits. Additional work by legal counsel and potential County Code and state statute amendments may be required provide the County the legal authority to enforce conditions as proposed by the Kuhns. The Planning Commission has several options on how to proceed with this proposal: 1. Take no action. 2. Direct staff to add the project to the list of Non-Committed projects. This project could be part of a master list of uncommitted projects considered next year when the Commission reviews the Division's work program for FY 2004-05. 3. Propose to the Kuhns the submittal of their own application for an ordinance text amendment. /DPS Enclosures 1. June 12, 2003 letter from William John and Martha Leigh Kuhn 2. May 30, 2003 letter from Laurie Craghead 3. Copy of Section 18.124.030(D) of DCC 4. Copy of Sections 18.128.400 and 420 of DCC 5. Final plat review checklist July 3,2003 Memorandum to Planning Commission . L Page 4 of 4 MD-150093D E t�3 ) `[ 120030703_PC Memo Kuhn Proposal.pdf William John Kuhn Martha Leigh Kuhn PO Box 5996 Bend,Oregon 97708.5996 Phone:(541)389-3676 Thursday 12 June 2003 Deschutes County Planning Commission Bend,OR 97701 RE: Suggestion for Ordinance Dear Planning Commission, My wife and I would like to suggest an ordinance that to us seems logical and certainly might help deal with the type of developer who gives a bad name to development All prior preconditions of any prior commitments of development must be complete ` before any land use process may continue or be processed further.Any precondition of development found to be incomplete shall result in denial of any current application or process. The County has numerous codes that on the surface seem adequate to produce a desired affect yet in actuality fall flat on their face because they are not always enforced or implemented properly. Take for example the developer of a cluster development who is required by ordinance to have a homeowners'association and a joint owners' agreement in place before the sale of the first parcel.The developer fails to implement the association and neglects the agreement A sale goes through because no one at the County actually looks over the shoulder of the developer.Later a dispute arises between homeowners and there is no agreement outlining a procedure to follow to remedy the difficulty,or what happens when all joint landowners do not pay their share of taxes in joint property,etc. For your information,when we suggested a version of this ordinance to Laurie Craghead,County Legal Council,she suggested that the 150-day deadlines in ORS 215.427(1)and Deschutes County Code("DCC")22.20.040(A),must be dealt with. She also suggested that the Provisions in ORS 197.522,215.110(6)and ORS 215.427(3)requiring the County to approve applications under the regulations in effect at the time of the application and overcome the prohibition against retroactive legislation in ORS 215.110 need to be considered. We believe it is worthwhile considering that applications cannot and should not even be considered until all provisions of previous conditions have been met.We do not understand why the County would not want their requirements be honored as the ordinances now stand,but this is not happening. c:ldonlpop6 S51.51protec[tons[-&-10011030612_toc lanningcommiadanreonlideadoc Page 10 03 0611 14:18 MD-150093D Deli 3 5 Pg# c 200307032C Memo Kuhn Proposal.pdf Please consider our request as an effort to assure that law-abiding residents'rights are respected in the land use process. Thank you for your consideration, 0.40,xia etc4- William John Kuhn Martha Leigh Kuhn • codocsvn,p65575 pmte tfarw-&-100A5030612_todescopianningcommissionreord ldeadoc Page 2 45 03 061 Z 14 MD-150093D 3D Ex# 3 t Ftgft JUN-02-03 MON Ifl:28 FRANCIS MARTIN FAX N0. 541382706$ P.01 -t-Es C I20030703_PC Memo Kuhn Proposal.pdf 4l ? Legal/`lErLI�/L� "•. Counsel Aammilimmommum . 9770-1. _._.._ .._ FACSIMILE 2501-083-0496 Post-it°Fax Note 7671 Date(a/x,/Q3�p �,► Richard lsham X541-388.6625 lb /3/LL „, 4,/e. d]� Mark P.Artlberg 18'541-330-4645 IU ur1eE.-Craghead SI'541-388-6593 ColDept Co. Phone R Phone• Fel_50/0 PLEASE REFER TO Fax ft g. S4 Fax p FILE tJO.:4-193 May 30,2003 Mr. Gerald Martin �'” " le Francis&Martin 1199 NW Wall Street Bend,OR 97701 The purposes of this letter are to follow-up of our discussion when you, William Kuhn and Leigh Kuhn met with me at 10:00 a.m. on Friday, April 25, 2003. I apologize for the delay in this response but have been out of the office several days since our meeting. The following is my understanding after reviewing my notes from our meeting; 1. Mr. and Mrs. Kuhn requested that Deschutes County enforce the court's order in Kahn v. Dowell, Circuit Court Case No. 01 CV0233MA, which ordered the Dowells 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."Unless you can provide us with the appropriate legal authority for doing sn, because the County was not a party to the case, the County cannot enforce that court order. 2. The Kuhns requested that the County enact an ordinance with retroactive application that requires an applicant to complete all previous land use processes before the County will take action on a subsequent land use or other permit application.Because anyone can file an application for an ordinance, the Kuhns are free to propose such legislation. The County is not likely, however, to initiate such legislation unless you can provide us with a legal analysis of how we can overcome the 150-day deadlines in ORS 215.427(1) and Deschutes County Code ("DCC") 22.20.040(A), overcome the provisions in ORS 197.522, 215.110(6) and ORS 215.427(3) requiring the County to approve applications under the regulations in effect at the time of the application and overcome the prohibition against retroactive legislation in ORS 215.110. 3. Kuhns requested the County initiate an ordinance requiring home owners associations ("HOAs") "with a self-governing set of procedures." Again, the Kuhns may file an application for such and ordinance. Given, however, the rural nature of the lots in the County and that subdivision (four or more lots), other than in destination resorts, are rare,the County is not likely to initiate such an ordinance. 4. The Kuhns asked if they-could file for a declaratory ruling from the County as to whether the Dowel's must comply with previous land use approval conditions before receiving any subsequent land use approvals on the subject property in light of DCC Quality Services Performed with Pride MD-150093D Ela 3 ) Pg# JUN--02--03 NON 10:29 FRANCIS ITT I N FAX NO, 5413827068 P.02 120030703 PC Memo Kuhn Proposal.pdf Mr.Gerald Martin May 30, 2003 Page Two 22.40.010(A). Pursuant to DCC 22.40.020 only owners of property wanting rulings regarding the uses on their own property,permit holders wanting interpretations of their approvals and the Planning Director may apply for declaratory rulings. 5_ The Kuhns requested a more cordial reception"by the Board of County Commissioners and the County staff. Please see attached email. 6. The Kuhns requested that County staff cease telling the Dowells that approval of their plans to expand their existing dwelling was guaranteed. County staff and the Dowells' legal counsel have assured me that County staff has not given the Dowells such assurances. 7. The Kuhns want to engage in one more effort at arriving at a settlement of both the County land use matter and the Court of Appeals case. To this end, the proposal given by you was to not engage the services of Mary Forst or any other mediator but to have all the parties and their legal representatives meet to discuss possibilities. I have discussed this matter with the Board of County Commissioners and they are agreeable to this approach. 8. The Kuhns request a method of being able to present their above listed concerns to the Board of County Commissioners and not violate the ex-parte contact prohibition for the quasi-judicial matter currently before them. At this time, l am unable to devise such a method other than the email I provided in answer to Item 5 above. If you feel anything stated above has been misstated or misunderstood, feel free to provide written comments. Additionally, if your client still desires to meet with the parties for settlement discussions let me know and I can arrange for a conference room. For your information, I am available June 3,5, 10(except for 11:45 a.m. to 1:15 p.m.), 12.(after 10:00 a.m.), 13 and 20. Sincerely, 6,09,,Lad, Laurie E. Craghead Deschutes County Assistant Legal Counsel /ljk Enclosure MD-150093D E Pg# 20030703_PC Memo Kuhn Proposal.pdf Chapter 18.124. SITE PLAN REVIEW 2. Multiple-family dwellings with more than three units; 18.124.010.Purpose. 3. All commercial uses that require parking 18.124.020.Elements of site plan. facilities; 18.124.030.Approval required. 4. All industrial uses; 18.124.040.Contents and procedure. 5. All other uses that serve the general 18.124.050.Decision on site plan. public or that otherwise require parking 18.124.060.Approval criteria, facilities, including, but not limited to, 18.124.070.Required minimum standards. landfills, schools, utility facilities, 18.124.080.Other conditions. churches, community buildings, 1.8.124.090.Right of way improvement cemeteries, mausoleums, crematories, standards. airports, parks and recreation facilities and livestock sales yards;and 6. As specified for Landscape Management 18.124.010.Purpose. Combining Zones (LM), Flood Plain DCC 18.124.010 provides for administrative Zones (FP) and Surface Mining Impact review of the design of certain developments and Area Combining Zones(SMIA). improvements in order to promote functional C. The provisions of DCC 18.124.030 shall not safe, innovative and attractive site development compatible with the natural and man-made apply to uses involving the stabling and environment. training of equine in the EFU zone, environment. 91-020 men . § 1, 199]) noncommercial stables and horse events not requiring a conditional use permit. 18.124.020-Elements of site plan. D. Noncompliance with a final approved site The elements of a site plan are: The layout and plan shall be a zoning ordinance violation. design of all existing and proposed E. As a condition of approval of any action not improvements, including, but not limited to, included in DCC 18.124.030(B), the buildings, structures, parking, circulation areas, Planning Director or Hearings Body may outdoor storage areas,bicycle parking,landscape require site plan approval prior to the areas, service and delivery areas, outdoor issuance of any permits. recreation areas, retaining walls, signs and (Ord. 94-008 § 14, 1994;Ord.91-038§ 1, 1991; graphics, cut and fill actions, accessways, Ord. 91-020§ 1, 1991; Ord.86-032§ 1, 1986) pedestrian walkways, buffering and screening measures and street furniture. 18.124.040.Contents and procedure. (Ord. 93-043 § 22D, 1993; Ord. 93-005 § 6, 1993) A. Any site plan shall be filed on a form provided by the Planning Department and 18.124.030.Approval required. shall be accompanied by such drawings, g,parking, land use,sign sketches and descriptions necessary to A. No building,gr adin arkin describe the proposed development. A plan or other required permit shall be issued for a shall not be deemed complete unless all use subject to DCC 18.124.030, nor shall information requested is provided. such a use be commenced, enlarged, altered or changed until a final site plan is approved B. Prior to filing a site plan, the applicant shall according to DCC Title 22, the Uniform confer with the Planning Director or his Development Procedures Ordinance, representative concerning the requirements B. The provisions of DCC 18.124.030 shall for formal application. apply to the following: C. After the pre-application conference, the 1. All conditional use permits where a site applicant shall submit a site development plan is a condition of approval; plan, an inventory of existing plant materials Chapter 18.124 1 (09/2002) Mr -150093D Ei# 3 1 Pg# 9 20030703_PC Memo Kuhn Proposal.pdf 18.128.380.Procedure for taking action on 1.8.]28.420.Building permit for an approved conditional use application. conditional use. The procedure for taking action on a conditional Building permits for all or any portion of a use application shall be as follows: conditional use shall be issued only on the basis of the plan as approved by the Planning Director A. A property owner may initiate a request for a or Hearings Body. Any substantial change in the conditional use by filing an application on approved plan shall be submitted to the Planning forms provided by the Planning Department. Director or the Hearings Officer as a new B. Review of the application shall be conducted application for a conditional use. according to the terms of DCC Title 22, the (Ord. 91-038 § 3, 1991; Ord. 91-020§ 1, 1991; Uniform Development Procedures Ord.89-004§3, 1989) Ordinance. (Ord. 86-032 § 1, 1986) 18.128.390.Time limit on a permit for a conditional use. Duration of permits issued under DCC 18.128 shall be as set forth in DCC 22.36. (Ord.95-018 §4, 1995;Ord.91-020§ 1, 1991) 18.128.400.Occupancy permit. The Planning Director or Hearings Body may require an occupancy permit for any conditional use permitted and approved pursuant to the provisions of DCC Title 18. The Planning Director or Hearings Body shall consider such a requirement for any use authorized by a conditional use permit for which the ordinance requires on-site or off-site improvements or where such conditions have been established by the Planning Director or Hearings Body upon approval of such use. The requirement of an occupancy permit shall be for the intent of insuring permit compliance and said permit shall not be issued except as set forth by the Planning Director or Hearings Body. The authority to issue an occupancy permit upon compliance with the requirements and conditions of a conditional use permit may be delegated to the Planning Director or the building inspector by the Hearings Body at the time of approval of a specific conditional use permit. (Ord. 91-020§ 1, 1991) 18.128.410. Time-share milt. (Repealed by Ord. 2000- 033,2000) Chapter 18.128 29 (12/2001) MD-150093D Ex# 31 Pg# `a 20030703_PC Memo Kuhn Proposal.pdf 1 FINAL PLAT REQUIREMENTS FOR A PARTITION OR SUBDIVISION To complete a final plat for a Partition or Subdivision,the following steps are necessary. 1. The final plat must be prepared in accordance with all requirements of Chapter 17.24 of the County Code. Copies of these requirements may be obtained from the Planning Division. 2. All conditions of approval specified in the findings and decision must be completed. 3. The applicant shall circulate the plat for signature of all owners who must sign it. Fees and bonds or security agreements must be paid prior to signature of the plat by department heads. Examples include: plat checking and filing by the County Surveyor, calculation and payment of taxes by the Assessor's and Treasurer's Offices (a copy of the plat is necessary for this purpose); and road improvement agreements and inspections and access permits by the Public Works Department. Deeds for road dedications must be delivered to the Public Works Department with the plat prior to Public Works approval. The plat is to be returned to the Community Development Department for the signature of the Environmental Health and Planning Director. Fees for various plat related costs are attached. 4. Final plats are subject to a final plat review process and fee. This requires an application and fee at the time of leaving the final plat with the Planning Division. This application may be made at the Planning counter or by appointment with the planner who was the staff contact of the original application. A Final Plat application may also be turned in by attaching the appropriate fee and leaving the Plat at the reception window. 5. After submittal of the Final Plat to the Planning Division, it is reviewed for conformance with all conditions of approval. This may require a site visit and review by legal counsel. In most cases this can be completed within two weeks. When the plat is signed by all necessary parties, the Planning Division will take the Plat to the Chairperson or Vice Chairperson of the Board of County Commissioners for his or her signature. 6. After the Chairperson or Vice Chairperson of the Board has signed the final plat, it must be picked up by the applicant for duplication. Two mylar copies(which must be certified as true and exact copies of the originals) and 15 blue line copies are required. When the blue line copies are prepared, they must be returned to the Planning Division. Final Plat Requirements 04/2000 Page 1 MD-150093D Ex# 3( Pg# C 1 20030703_PC Memo Kuhn Proposal.pdf 7. The final step is recording the plat with the County Clerk. No plat may be recorded unless it is accompanied by a signed statement of water rights unless the plat displays approval of an irrigation district. A recording fee is required at the Clerk's Office. Signature in the space below by a planner will allow issuance of a plat number and recording by the County Clerk's Office. The County Code prohibits the Clerk's Office from recording plats without final Planning Division approval. File# is complete and the plat may be recorded by the County Clerk. Planning Division Date File# has been recorded in Volume, and Page Plat Cabinet Partition Plat No. County Clerk's Office Date Final Plat Requirements 04/2000 Page 2 MD-150093D Ex# 31 Pg# 120030717_TranscriptRequest.pdf Pg# William John Kuhn MD-150093D Ex# Martha Leigh Kuhn PO Box 5996 Bend, Oregon 97708-5996 Phone: (541) 389-3676 Thursday 17 July 2003 Bonnie Burkhart 541 317 5505 Hurley Lynch&Re, Attorneys 747 SW Mill View Drive Bend, Oregon 97702 Regarding the Deschutes County Planning Commission meeting of 10 July 2003 Dear Ms.Burkhart, The enclosed tape is about 35 minutes long and covers agenda items 1) approve minutes of previous meeting; 2)public input—there was none; and 3)a discussion of the proposed ordinance put forth by William John and Martha Leigh Kuhn. (This is all that needs transcription.) The Planning Commission Board Members that were present were: Everett Turner, Chair Tammy Sailors, Vice-Chair Peter Gramlich, Commissioner Brenda Pace, Commissioner The County Staff that were present were: George Read,Head of Community Development Department Damian Syrnyk,Planner Laurie Craghead, Legal Council We would like an electronic version in Word format. You may contact us at William @RiskFactor.com. Sincerely, William John Kuhn WJK/k MD-150093D Ex# 31. Pg# 13 c:\dots\prop65575\protectforest-&-100ft\030717_transcriptrequest.doc Page 1 of 1 4P% 03 07 17 22:11 1200307102lanningCommMinutesWithAdds.pdf MD 150093D Ex# Fg# — DESCHUTES COUNTY PLANNING COMMISSION Board of Commissioners Hearings Room Minuutes -July 10, 2003 —5:30 p.m. Everett Turner: Today is June 10,2003. Commissioner on my left is Peter Gramlich,Tammy Sailors on my right,Brenda Pace. I'm Everett Turner, Chairman. Present from the County is Catherine Tilton and Damian Syrnyk, George Read. Laurie Craghead: Assistant legal counsel. Everett Turner: So,the first item is the approval of the minutes. And believe it or not,we're going to— George Read: You said June. Everett Turner: Hmmm? George Read: You said June. You said June is the date. Everett Turner: July 10th. George Read: Happy July. Everett Turner: Thanks a lot. Do you have a motion? Tammy Sailors: I move that the minutes for June 12th be approved. Unidentified: Second. Everett Turner: Motion seconded. All in favor? Everett Turner: Brenda? Yeah. Gary? Everett Turner: Okay, Item No. II—Public Comments and Concerns: Anything from the audience? Staff? Okay, moving right on. Item No. III—The Request from John and Martha Leigh Kuhn. Is this fading in or out? Unidentified Fem: Yes, it is. C:\DOCS\prop65575\ProtectForest-&-100ft\030710 PlanningCommMinutes.doc page 1 07/30/03 10:34 AM MD-150093D EYR 3 1 Pg# i'1 ........... . Minutes—July 10, 2003 Deschutes County Planning Commission Page 2 20030710_PlanningCammMinutesWithAdds.pdf Everett Turner: Just so I'm not. Catherine was going to handle that. Are you going to handle g g y g g that, Damian? Damian Syrnyk: Inaudible. Everett Turner: Oh, are you? Damian Syrnyk: Am I picking up now? Unidentified Fern: You are. Damian Syrnyk: Okay. Thank you. For the record I am Damian Syrnyk with the Planning Division. Joining me in this presentation this evening is George Read, our Director of the Community Development Department, and Laurie Craghead, Deputy Assistant Legal Counsel. Laurie Craghead: No, it's just assistant. Damian Syrnyk: Assistant legal counsel. At your last meeting on June 12th we received a request from William and Martha Leigh Kuhn on a code amendment dealing with the enforcement of land use conditions. Since that time we've gone back and put together a memorandum that was sent out to you with your packet talking about our Code Enforcement Program, our Policy and Procedures Manual, and our current efforts in how we enforce land use conditions related to permit approvals. I will be talking about that more tonight as we consider their requests in getting a direction on how to proceed. Before I go any further though, I wanted to let you know, and I believe Mary's got copies there of two letters we've received. One was a copy of the Multnomah County Code that Mr. Kuhn e-mailed to me this afternoon, and I've provided copies to everybody that deals with this issue. The pertinent section that you'll see is Section 37.0560, and it's titled Code Compliance of Applications. The other document you'll get a copy of is a July 10, 2002 MD-150093D E # l P' # !r C:\DOCS\prop65575\ProtectForest-&-100ft\030710jPIanningCommMinutes.doe page 2 07/30/03 10:34 AM Minutes—July 10, 2003 Deschutes County Planning Commission Page 3 20030710_PlanningCammMinutesWithAdds.pdf letter from Kate Kimball. She is a local representative with 1000 Friends of Oregon,giving her views on looking at this issue of code enforcement in the County. I'm not going to go through my memorandum line by line, but before proceeding, I wanted to see if anybody had any questions before I started. Brenda Pace: Yeah, I think I'll reserve questions until after you do it because I was confused. Damian Syrnyk: Okay. Shall I go ahead and proceed? Everett Turner: Unhuh. Damian Syrnyk: Okay. As I mentioned in the memorandum, back in January 1, 1996,the County's current Code Enforcement Policy and Manual took effect. This was something that had been in the works for over a year. There was a committee that had worked on this with staff from the Community Development Department,Assessor's Office, Legal Counsel; and it was designed to create a uniform procedure for code enforcement for all aspects of code enforcement that are under the purview of the Community Development Department,Building, Land Use and Environmental Health. It's a menu I will return to when we start looking at receiving complaints, enforcing land use conditions, dealing with situations where we're possibly going to be considering a permanent application on a property that's already got some kind of a pending code violation, for example. One of the issues that this Code Manual addresses is this issue of compliance with conditions of approval. The section on page 2 of the memorandum is something I had cut and paste into the memo so you could see the language for yourself. That was a language from the version of the Manual that was amended in 1998. It MD-150093D Ex# 31 Pg# J t. C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 3 07/30/03 10:34 AM Minutes--July 10,2003 Deschutes County Planning Commission Page 4 20030710_PlanningCommMinutesWithAdds.pdf was reviewed back at that time. And there's a couple of times that—I shouldn't say a couple of times—but I'm going to go into some areas where we deal with the enforcement of land use condition—land use approval conditions. What I'm referring to—what I think the Kuhns are referring to are conditions that are placed on a permit that are designed to be adhered to. In some cases they're placed on a permit to ensure that criteria is met. Some time ago we used to throw a lot of conditions into our approvals to make sure that people would,for example,dedicate right of way, build new permits, get an access permit, sometimes get a permit from another state agency. And I will touch on our current practices here in a little bit when I get to there. Damian Syrnyk: So when I start-- submit it first and talk about where we kind of deal with this issue and impose conditions on a permit. And this could be something like a conditional use permit or site plan review that I've mentioned in the memo. There is usually some kind of a trigger that we'll use to make sure that this condition is met or done before an applicant is allowed to take another step. And I have mentioned a couple of examples. One was the issuance of a building permit. In cases where we're working on an application for site plan review, we might include certain conditions on landscaping,paving a parking area, striping, storm drainage, make sure certain things are done or showing up on the building plans that are submitted to the Building Department before the Planning Division signs off on a building permit. The second time period or situation where this comes up as a trigger is when we're about to approve what's called the final occupancy for a building. If you remember back when we were working on the Home Occupation MD-150093D Emq 31 Pg# 17 C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 4 07/30/03 10:34 AM Minutes—July 10, 2003 Deschutes County Planni ng Commission Page 5 20030710_PlanningCommMinutesWithAdds.pdf Ordinance,we had talked about the occupancy rating that the Building Division of the County will assign a building. They have to figure out for their purposes of reviewing for fire and life safety structural code requirements whether its residential, industrial, something like that. And that's usually the last thing that somebody gets from the County before they actually get to move into the building. In some cases, a land use permit will impose certain conditions that have to be fulfilled before the Planning Department will approve—give their approval—of final occupancy. That can include like final paving of a parking lot, fire hydrants—making sure they are put in—landscaping. Those are some of the common things that you might see. The Kuhns raise a good issue with the way we used to impose land use permits in the past, and that practice has changed over time. As I mentioned kind of in the beginning when the County was first starting to get into the area of planning and zoning, a lot of things were thrown in for good measure. Some were easily enforceable; some weren't enforced at all. And so we've changed our practice over time to make sure that we're doing several things. One is to mention that we tie a condition to a criterion on the code. If some things are required but it's not really practical to do before you get your permit, we can tie it to a condition to make sure that criterion is met, say, before a building permit is issued. We also make sure that we're not including conditions that are beyond the control of the property owner. A few years ago we had some trouble with the permitting of the Walmart in Bend because the applicant was given approval for their building, but a condition was included that required them to go get a right-of-way dedicated MD-150093D Exr,i 31 Pg# J' C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 5 07/30/03 10:34 AM Minutes—July 10,2003 Deschutes County Planning Commission Page 6 20030710 PlanningComrMinutesWithAdds.pdf for land that they did not own. That was a hard lesson to learn in terms of what conditions an applicant has within their control and what conditions they don't. Finally, one thing I wanted to point out in terms of change in practices that we've had. There was a bill passed in the Legislature I think back in 1999 that limited our ability to impose conditions in a couple of ways. One,they could only be tied to criteria in our code. Two, if I remember correctly,we had to give an applicant the opportunity to raise any kind of issues they had with these conditions at a hearing, for example, if they were going to a hearing. I don't recall the bill number, but I believe it was sometime around 1999. I want to kind of discuss it early so you understand what we do now days when we're looking at land use permits. You know,we try to make sure that we're imposing conditions that are within the power of the applicant that can be enforced. We don't throw in conditions that are tied anymore to making somebody go get a permit from another agency unless it is tied to a criterion. We used to have a standard practice of throwing in conditions from our Road Department, maybe other agencies, and saying`By the way, before you get your permit, go do this and this and this." We've tried to narrow that down to no longer imposing those kinds of conditions on a permit but trying to do a better job of communicating with an applicant about what other permits or approvals they might need. For example, instead of getting their septic permit from the Environmental Health Division, going to the DEQ. Going back to the Code Manual for a minute, I identified a couple of ways where we deal with this issue of permit approvals and conditions and enforcement. Right now I mentioned that our code has a provision in there MD-150093D Ex4 ( Pgit 117 C:\ROCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 6 07/30/03 10:34 AM Minutes—July 10,2003 Deschutes County Planning Commission Page 7 120030710_PlanningCommMinutesWithAdds.pdf ' for making sure we can, in some cases,not issue a permit or accept an application if there's a pending code violation. One of the examples I've cited in my memo is that we have an exception as well where if somebody has a pending code violation of their property-- say,they've done some illegal fill and removal on the bed or banks of a river--we'll allow them to go ahead and apply for whatever permits they need from us to go ahead and rectify that situation, like a conditional use permit. I also cited some examples in our Titles 18 and 17 where had some language that deal with this issue. (Inaudible) and I talked about our conditions for site find review and conditional use permits,and I think at our last meeting I also touched on enforcing conditions with respect to land divisions,which is a little bit more —seems a little bit more straightforward to approach it from my experience in current planning because there's only certain actions that people need to take before they can create their survey of the new lots,their Mylar, and there's multiple checks built in and making sure that people have fulfilled requirements in the Road Department, if there's dedication and improvements,paid their taxes, up to date the assessor,made sure they've talked to the fire department about their addressing and streets and so on. So I wanted to begin the presentation this evening by kind of giving you that background about where we have language in our Procedures Manual for code enforcement on how we do conditions now a days. That's all. I will turn it over to Laurie or George to see if they have anything to add before we talk about how to proceed in looking at what the Kuhns have proposed. George Read: Yeah, I think Damian asked me to come tonight and talk a little bit about the history. In 1996 we were— 1995—we went through a pretty extensive MD-150093D Emfi 31 1 # 2e-t C:\17OCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 7 07/30/03 10:34 AM Minutes—July 10, 2003 Deschutes County Planning Commission Page 8 20030710_PlanningCommMinutesWithAdds.pdf revamp of our Code Enforcement Program. We were receiving over 400 or 500 cases and solving about 150, and it was hard. We had people carrying signs protesting our Code Enforcement Program, and it was basically some people were harassing our Code Enforcement Officers. We made a pretty radical change and developed a Code Enforcement Procedures Manual where we play good cop/bad cop. That is,we try to get people to comply. CUD's goal is to gain compliance. We do not have any punishment. We do not intend to punish. Before, some of us were viewed as being a punishment organization, and we do not try to punish. Our whole goal is to gain compliance. So, we play that role. Then if we cannot gain compliance and we've determined it is worth pursuing and there's a whole matrix for determining whether something's good for our suing because there's a whole array of things that we get complaints on, some of which are easier and some of which are much more difficult to enforce. But anyway, if we determine it's worth pursuing based on a matrix,we turn it over to the Sheriff's Office. Our compliance rates from that are_well,we've received—we're down to I think 245 last year cases. We resolved 250. So, I guess the—I'll go back to the Code Enforcement Manual. It was written at a time, and it says we should make,to the extent we are allowed by law, make people comply with the law before they file other applications; but the times have changed, number one. Number two,the reason we haven't really implemented that, even though it says we do that, in the case of building permits,yes. If there's a land use violation,you can withhold the building permit. It says so right in the statute. If it's related to the building permit. Environmental health says the same thing. You can't get a DEQ permit,which basically we contract MD-150931 Ex# 3 l Pg# Z 1 C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doe page 8 07/30/03 10:34 AM Minutes--July 10, 2003 Deschutes County Planning Commission Page 9 20030710_PlanningCommMinutesWithAdds.pdf with DEQ to issue septic permits,unless you comply with zoning. But for zoning,we did not find any statutory authority that gave us any greater authority to punish. So back when we did this, we put this little authority-- "additional county code or statutory authority may be needed to allow us to do this." And we left it at that because we were told by legal counsel we couldn't do it. So I kind of went through where we're at now. It's a lot different than when we wrote this, and I guess then there's this question "Should we do that-- should we withhold permits?" And I guess there's a couple of issues. I mean, I actually was the proponent that wrote that in there so I think maybe I've kind of changed over time for a couple of reasons. Damian mentioned some of the legal reasons,but we do have now 150 days to process applications. If we hold somebody up,basically an application is incomplete. Even if we said it's not complete unless you've solved your violations, an application by law is automatically deemed complete 30 days after they submit it. So,then we'd have to deny the application. So you'd actually be in a situation where you would be denying an application. The request by the Kuhns was to not accept—my understanding was not to accept applications until they'd solved their code cases. Well, I don't think we can do that under the state statute. Brenda Pace: May I ask a question? George Read: Sure. Brenda Pace: You mean, if you notify them that it is not complete,they simply don't have to respond to you and it's deemed complete? George Read: That's right. Brenda Pace: So anybody can do anything they want? I mean, are you really saying that? MD-150093D Emr# 3 l Pgii 2z C:\DOCS\prop65575\ProtectForest-&-100ft\030710WPlanningCommMinutes.doc page 9 07/30/03 1034 AM Minutes—July 10,2003 Deschutes County Planning Commission Page 10 20030710_PlanningCommMinutesWithAdds.pdf George Read: We have to accept any application is what it amounts to. Brenda Pace: I mean, if it's written with a piece of paper I want to build that house,that's all I have to do? George Read: No,no. You know,we have a procedure, and we can require them to fill out the application form and pay the fee. But beyond that,we have to deem it complete and review it. Brenda Pace: Well, I mean if you review it and you send it to them—well, these are the things that we need. George Read: On the 30th day, if they don't respond, it's deemed complete. Laurie Craghead: And may I clarify"deemed complete"does not mean approved. Brenda Pace: I understand that,but then that's when the 150 days starts running,right? George Read: Right. Laurie Craghead: Under current law, but there is a bill in the Legislature right now to change some of that. George Read: Yeah,we're working to change it, but I mean the law right now says we've got to accept it anyway, so— Brenda Pace: But then you cannot— George Read: --the law that says you won't accept it, doesn't work. I mean, first of all, that's the first one. The second one—the second part—would be if you got, if you did say, okay,well, I think you have the Multnomah County one which says basically you can't approve one or you won't approve it until it resolves. So now you've accepted it as complete, but you won't approve it. Okay? And that's a criteria. There's some other issues that might go along with that. Number one,this might be punishment that's beyond our authority. We have a $1,000 maximum fine. There's no authority in the statute that says we can MD-150093D E # 3 I Pg# 23 C:\DOC3\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 10 07/30/03 10:34 AM Minutes—July 10,2003 Deschutes County Planning Commission Page 11 1 20030710_PlanningCommMinutesWithAdds.pdf have any other kind of punishment. There is a case right now actually in Polk County, my understanding, on this very issue because they do have language authorizing withholding permits; and I think they're going to go through that process. Laurie can talk a little bit about that. Actually Laurie worked in Multnomah County where the ordinance that was submitted came from. Another issue that's a little bit difficult is when is a violation a violation? You know,the only violation that—you know, I mean is a violation an alleged violation if we say it's is not done. Is it a violation or not? Are we right? What's the process for determining if we're right? And that's a different—you know,you'd have a different code enforcement process as part of the land use process we had this determination of violations as part of the determination. So, my theory is you'd probably have to have an adjudicated violation. You'd have to have one where somebody was found guilty by the judge. Okay? And if you had one that was,well,those might be ones where we could say"Yes,there's violation." All the other ones, it would be an alleged violation. Now, of the 250 or so cases we closed last year, I think there were about 23 that went to the judge. So, I mean, I'm not sure that we're going to get as far as we would like to get with that kind of language. Then,there's this other issue—what if—they're totally unrelated. I use an example because I know of one. I think Sunriver Properties did a fill and removal for their boat dock ten years ago. It's a violation. They basically made peace and didn't get a permit, but it's still there but that's a violation. They didn't comply. Therefore,when they want to build a clubhouse on the MD-150093D Ex# 31 F ## z 0 C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 11 07/30/03 10:34 AM Minutes—July 10, 2003 Deschutes County Planning Commission Page 12 120030710_PlanningCommMinutesWithAdds.pdf I golf course two miles away, do we withhold the permit. I mean, so whatever you did,you'd have to draft some language to either make it related or not make it related, and then you'd have this criteria to help you determine what was related. Laurie Craghead: And also another point for clarification. That's s based on the Dolan case. You have to have a reasonable nexus— Brenda Pace: Well,that's true of any condition. That true if any conditions are issued, and that's why it's part of our code -- Laurie Craghead: Right. Brenda Pace: --that's why you're linking these conditions to the code. So that's already covered—the fact that it's linked to the code. George Read: Well,that's true except the application for the golf cart house,or whatever, has nothing at all to do with the fill-and-removal violation that happened ten years ago. I mean they are not related, and yet we would be withholding that permit until they resolved the violation. If you didn't,then you would need to define how it related to the two things—how they were related. I mean, we could do that. I'm just saying,but just to have the language that was proposed, it would be any violation,whether related or not, and I don't think that would pass muster. The other one I guess I brought it up. There's timing. You know,when's the time,how long,what violation? I think Damian kind of outlined there's different times in our history, and the detail that was looked at in applications. So a violation of ten years ago,twenty years ago. Brenda Pace: No,we're talking about a current violation. I think we're talking about a current violation. MD-150093D Ex# ;1 P #2 " C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 12 07/30/03 10:34 AM Minutes—July 10,2003 Deschutes County Planning Commission Page 13 120030710_PlanningCommMinutesWithAdds.pdf George Read: I don't know what that means. Brenda Pace: I don't think we're talking about something that happened ten years ago. If you go on the property, and the violation exists on the property now,that's the criteria. George Read: Okay, but what if it occurred 20 years ago? Laurie Craghead: But it's still a— Brenda Pace: If it's still a violation on the books that hasn't been resolved,and you can see this violation on the ground,then it currently exists. George Read: Well,that would be one way of doing it, but I think there's some difficulty in proving it. As a matter of fact,the statute says that if you get away with it 20 years, it's illegal. It's a nonconforming use. So,I mean,there's this whole thing of when did it happen and was it a violation at that time, and whose job it is to prove that, and is that part of the land use process before you can apply for an application? That's what I'm getting at. There's a difficulty there. So, I'm not saying you can't do it. As a matter of fact, I'm not saying I don't it's a good idea. I just think it's a very difficult subject with a lot of details to have to fill in. I think, like I said,that once we had a little discussion with the County Planning Directors at our last meeting over this Polk County case. I think everyone—there are several counties who have this provision, and none of them enforce it anymore because they're afraid of it. So, I can maybe turn it over to Laurie to give you some legal background. If we did it, it's a pretty large project, and I think it's an interesting one. I guess my suggestion—and I think Damian, Kenneth,and Ellen have the option to do nothing. I think there's an option to put it on a Work Plan because we don't have time for it this year unless we get money to follow up MD-150093D Em# 3 ) Pg# Zg. C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 13 07/30/03 10:34 AM Minutes—July 10, 2003 Deschutes County Planning Commission Page 14 20030710_PlanningCommMinutesWithAdds.pdf on it because our Work Plan is full as adopted. But there's probably another one, and that is,you know,we probably could explore ways to better link those things. I think that's the one that's kind of a little bit in between. For example, I totally believe that they're directly related. That you can impose them as a condition of approval. In other words,you can say you've got to solve this problem because it relates to this other issue. I think we can do that today. I think that-- Brenda Pace: Do we? George Read: I believe we do. But I then we could probably look at that link. I think that's a good one that when they are clearly related, that—I believe we do. You would have to hear examples of where we didn't, but I think that's one we could look at a little more. The biggest one we use all of the time is the building code,which is already in there. You can't get a building permit until you get a land use permit. It's that simple. Brenda Pace: Right. But you know, some of our conditions of approval are not things that get done and then they're finished. Some of them in the landscape maintenance zone, for instance, are things that go on for a long time. And that's different. I mean,the only time that you really have to come up--to resolve that problem that's very easy-- is when somebody comes in for to enlarge the house and one of those happens—you know—down at the river. I think they've taken out their landscaping. They got approval to add a room onto their house without anything. So, about the only time you can get to those long-term conditions of approval—not the ones that just end with the MD-150093D E # Pg# 21 C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doe page 14 07/30/03 10:34 AM Minutes—July 10,2003 Deschutes County Planning Commission Page 15 20030710_PIanningCommMinutesWithAdds.pdf building permit or the ones that just end at the site plan approval, but the ones that go on for a long time, are when they come back in. George Read: I believe you're right. I believe those are the ones I'm talking about because those are the ones that are related. For example, instead of allowing them to just sign the agreement they were going to do them,which we do. We record a conservation easement in most of those cases between the house and the river and says it will be maintained in perpetuity, and they will carry out their site plan. So those are third-party enforceable,but let's say that they did come in for another thing— Brenda Pace: Just permitting of approval,yeah. George Read: Yeah. The second time they could be required to put it in or bond it before they get the permit. I think those—I think we've had a lot better luck with those kind of connected conditions than the more obtuse ones. I think that's where you start getting foul of some legal issues. But this whole thing of not allowing somebody to apply or not allowing approval until something is fixed, I think it's a little bit of a difficult alternative to allow people— Laurie Craghead: Basically he said most of everything I was going to say. I think it would be great if we could do this because, like you said,that's where we can get a hook, as long as someone can come in. But again,there would have to be some more research done on how we can get around the Dolan issues, which I actually was quoting Nolan,which sound alike. Dolan is actually the rough proportionality. So—and also how we can get around the ORS 215.416 provision,which is you have to apply what was—what is—in the laws at the time of their other application. We also have to get around the 197.522, which is that you have to prove it. If you can provide conditions of approval, MD-150093D ET# 3 Fig# Za C:\ROCS\prop65575\ProtectForest-&-1 00ft\030710_PlanningCommMinutes.doc page 15 07/30/03 10:34 AM Minutes--July 10,2003 Deschutes County Planning Commission Page 16 120030710_PlanningCommMinutesWithAdds.pdf I that will get them there and again get around the 150 days. And I think it's worth exploring. Kate Kimball has offered to help, and she's a fine lawyer. And so that if at some time in the future when there is time on the Work Plan to be able to put it in, it would probably be worth time exploring, but it's a matter of when there would be time to be able to get all of the research done on how we could possibly get around all of these others. But like George says, I do think that there is ways to tie it in now in terms of, like you said, adding onto a house if it's related to they didn't really put the house—they didn't finish something on the house that they were supposed to before. Well,then they don't have a legal house in the first place so,therefore, how can they do an expansion? So there might be able to be ways to, you know, tie it in like that. So, depending on—I would have to look at the criteria and see if that,you know, is one of the criteria that in order to be able to expand something,you have to be legal in the first place. The same thing with the extension of a non-conforming use. This has to be a legal nonconforming use which they haven't complied. But then again, like George said, if we let them get away with not putting their windows in for 20 years or whatever, then we can't go back further than that. Everett Turner: This bill that's in the Legislature— Laurie Craghead: It's actually—I was mistaken. It's for cities only right now. They were working on doing it for the 2004 legislature for counties. Everett Turner: I see. Okay. Tammy Sailors: Can you give some of those code section numbers? Laurie Craghead: The statutes? Tammy Sailors: Yeah. MD-150093D ENV 3 ) Pg# Z`i C:\DOCS\prop65575\ProtectForest-&-100ft\030710 PlanningComrnMinutes.doc page 16 07/30/03 10:34 AM Minutes—July 10,2003 Deschutes County Planning Commission Page 17 120030710_PlanningCommMinutesWithAdds.pdf Laura Craghead: 197.522, 215.416. Tammy Sailors: And what is the one for the cities that is going through? Do you know that? Laurie Craghead: Its Senate Bill 94 right now. What it does, it says that once you send an incomplete notice to the applicant,right now they have 180 days to respond. Then the clock starts back at the 30 days if they do respond anytime in there. So they could respond or pass the 150 days. But now it says that if they don't respond,then the application is void. So it gives a cutoff. Tammy Sailors: That's not nice. Laurie Craghead: Yeah. And the counties are planning on putting that in for counties in the year 2004. Everett Turner: All right. Do you have a question? Brenda Pace: Well. Everett Turner: You have three choices today. Brenda Pace: Pick one. Everett Turner: On page four(inaudible). Brenda Pace: Well,rather than ' let it sort of sink under the rug, I'd like to keep i g, p t on the agenda somehow and on the list of noncommitted projects, at least that. And if Kate can come up with something and you can talk to her— Everett Turner: And this option,too. Brenda Pace: --and some of these other things happen and maybe we will get there. Peter Gramlich: I can appreciate that it would take some time to put it on the Work Plan as you were saying, but I was wondering if there isn't something you could do tonight to insert the simple language in the building permits division? I mean,there was some language I had suggested. You know,just simply all prior preconditions have been met. That's when we issue a building permit. MD-150093D Ex# 31 P" # 3° C:\DOCS\prop65575\ProtectForest-&-100ft1030710_PlanningeomntMinutes.doc page 17 07/30/03 10:34 AM Minutes—July 10, 2003 Deschutes County Planning Commission Page 18 20030710_PlanningCommMinutesWithAdds.pdf Tammy Sailors: We have that now? George Read: We have that now. Peter Gramlich: Well,there was a simple solution that he said was something we could do tonight. George Read: Brenda has an example. Actually, I have seen some pictures that Brenda took of some— Peter Gramlich: On the river? George Read: --the specially landscaped management combining zones violations along the river. Well, if you're in a landscape management zone and you apply for a new permit, it's clearly related to meet the original conditions of approval because we can require the same conditions over again because it's the same criteria. And I think we could do a better job on those of making sure that we look at those. I mean,those are in effect right now. Brenda Pace: How about that? How about if we simply say that in the review there would be notice of any conditions that had not been fulfilled and those would be evaluated for their linkage? George Read: You know, I think that you can make that motion tonight, and that would be a direction for the planners. And I think that we should be more careful. I think,the Olympics(??), as I saw it, and those were the ones we did permits on. Brenda Pace: Yeah, and I don't know that either. George Read: Yeah, they look like they could be older; but if they are, that could be a real problem. I mean, it's get the approval and cut down the trees along the river. You know,we do have a problem with that. Peter Gramlich: So an individual evaluation of each case? MD-150093D! E # 5 Pg# 311 C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doe page 18 07/30/03 10:34 AM Minutes—July 10, 2003 Deschutes County Planning Commission Page 19 20030710_PlanningCommMinutesWithAdds.pdf Brenda Pace: Yeah,to say in the review whether there are conditions of approval that have not been met and whether or not there's any linkage to the current application. Laurie Craghead: Well, it's really about an ongoing obligation because in the beginning they may have met it. So, in that box the condition that they've met is checked; but somehow there needs to be a way to link ongoing conditions somehow so that when they come into the Building Department for a building permit,that those are available because otherwise it's not going to kick it into consideration. Brenda Pace: Well,I mean something like an addition to your house goes through the Planning Department as well. George Read: It would be the Planning Department that would review those, but that's a reasonable request,especially when we have a land use permit and they're related. I don't know how good a job we are doing on that. You know, I keep seeing these river photos. I have been down there. I know there's— every time I get down I see a lot of violations or potential violations. So we actually have a B-list project to go down and inventory them, and we have an old aerial flight with a helicopter that went down the river about five years ago. We need to compare those things. So that's a project that we would be competing with in doing this. Brenda Pace: Right,right, right. George Read: You know, we go enforce the laws we have or do we do it perspectively? So those are the kinds of things we need to look at. Brenda Pace: Well, okay. Everett Turner: Do you want to make a motion? MD-150093D Ex `- 31 Pig# 3? C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 19 07/30/03 10:34 AM Minutes—July 10,2003 Deschutes County Planning Commission Page 20 20030710_PlanningCommMinutesWithAdds.pdf Brenda Pace: This is a public hearing, is it not? Laurie Craghead: No. Just a clarification that this just be direction to staff at this point-- Brenda Pace: Exactly. Laurie Craghead: -- as opposed to any kind of wording in an ordinance since we still need to work on that. George Read: No. The point I am making is that you receive—one of your jobs prescribed is you usually receive our decisions, and you are our sounding board for how we're doing on our decisions. An issue is raised, and we may not be doing a good enough job at looking at those past conditions and making findings in our decisions to make sure that we're enforcing those. That's really what I'm saying you could probably do right now because that's something that—that is a role you have that doesn't require an ordinance change. And I think that's something we could carry back to the planners and say"Yeah,that's a good idea. Do that." Damian Syrnyk: But I also thought I heard that you wanted to also wanted to do two things. One was what George just described but also added to the noncommitted projects list? George Read: We can sort priorities later. I mean, it will be another year. We just adopted our list. Everett Turner: Sure, sure. Damian Syrnyk: It sounded to me like you had short-term goals right now that we could take back to the planning staff plus a longer term goal of making sure we don't forget this by adding it to our list. Brenda Pace: Yep,yep. Tammy Sailors: Could we try to state clearly what it is that you want the staff to do. MD-150093D E # 3 i Pg# 33 C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 20 07/30/03 10:34 AM Minutes—July 10,2003 Deschutes County Planning Commission Page 21 20030710_PlanningCommMinutesWithAdds.pdf Brenda Pace: Well that may be too big a—but I'll try. I'll try. Brenda Pace: I move that we request staff to evaluate any conditions of approval that were previously issued whenever they review a current application and evaluate in that application whether or not there's sufficient nexus with this application for it to require a denial—for it to be an additional condition of approval,I guess. Sorry I got messed up. George Read: Yeah,that'll work. Brenda Pace: Okay. Unidentified Fem: Are we going to put it all in one motion or how about putting it on the Work Plan? Everett Turner: And put it on the to do for the Work Plan. Brenda Pace: And put it on the Work Plan. All right. Everett Turner: Any discussion? George Read: To the list of noncommitted projects? Everett Turner: Yeah,right. George Read: I think that was well stated. Everett Turner: Is that a second? George Read: I second it. Everett Turner: Okay. All in favor? "Ayes." Everett Turner: Carried. Brenda Pace: Thank you. Everett Turner: Thank you. Martha Leigh Kuhn: Mr. Turner, I do have a request. I realize it's part of the report and not public input, and so could you please address my question as we have received more MD-150093D Er# 3 s Pg# 3 4 C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doe page 21 07/30/03 10:34 AM Minutes—July 10,2003 Deschutes County Planning Commission Page 22 20030710_PlanningCommMinutesWithAdds.pdf information to submit in the future, and this would be a proper time for us to add on to what we've just found out to the Commission so that they have more information. Everett Turner: Just give it to staff. Martha Leigh Kuhn: Just give it to staff? Everett Turner: Unhuh. Martha Leigh Kuhn: Thank you. Laurie Craghead: And just for the record, since she was not at a microphone,that was Martha Leigh Kuhn. I hope you don't mind me to put it on the microphone for you. Martha Leigh Kuhn: That's fine. Laurie Craghead: That she was going to submit some information regarding this request. Everett Turner: Great. Thanks, . Everett Turner: Okay. Item No. IV—Work Session on Update of Bend Airport Master Plan. TRANSCRIPTION STOPPED AT THIS POINT. MD-150093D E0 Pg# f C:\DOCS\prop65575\ProtectForest-&-100ft\030710_PlanningCommMinutes.doc page 22 07/30/03 10:34 AM Page 1 of 2 120030710_PIanningCommMinutesWithAdds.pdf William From: "Liz Fancher"<Iiz @lizfancher.com> To: "William John Kuhn"<William@RiskFactorcom> Cc: "GERALD MARTIN"<franmarjerry@yahoo.com> Sent: Wednesday 16 July 2003 2:06 PM Subject: Re: Deliberations re Dowell Matter Bill, In my role as Multnomah County hearings officer, I recently decided a case where the code compliance requirement was enforced. The property owner was the City of Portland. As a condition of approval, I required the City to clean up an old landfill that exists on the property they plan to develop as a small fire station(for Forest Park and the surrounding area). If the County did not have their code enforcement provision,the landfill might well have remained on the property forever,in an area with steep slopes,fragile soils and stream drainage areas! Requiring compliance at the time of land use approvals is really the easiest way to address code enforcement! Too bad that George Read does not see it the same way. I am glad you spoke with Derrick Tokos. He is a excellent planner with a super high IQ--lots of funs to work with! Liz Original Message From:William John Kuhn To: Liz Fancher Cc: Martin FranMarJerry Sent: Wednesday, July 16, 2003 6:59 AM Subject: Re: Deliberations re Dowell Matter Liz, Thank you for the information. I was about to ask you to get written confirmation of the status from CDD. I guess this satisfies. FYI -George Read shot done the code enforcement proposal saying that he didn't think the County could enforce it. That he didn't want to enforce unrelated past bad acts. It looks like 1000 Friends is going to look into CDD's and Read's actions and inactions. I have ordered a tape copy of the proceedings so it can be transcribed to show his unwillingness to do his job. Please consider this as another example of the County not doing its job. Catherine Morrow and Damian Syrnyk were supposed to represent CDD at the meeting. Instead George Read and Laurie Craghead showed up. It felt like each of the four board members were"talked to" before the meeting by Read. (Peter Gramlich, Tamie Sailors, Brenda Pace, and Everett Turner, the chair) For your information, I had spoken to a Dereck Tokus(sp?) in the Multnomah County Planning Division before the meeting. He said they had re-written their entire code in January 2001 and moved their Code compliance provision up to near the top of their priorities. That they had had no problems with enforcement, the 150 clock rule, or retroactivity. We have been communicating closely with DesCo Sheriff's Office and getting respect. Bill MD-150093D E # 3 ? Pg#�L 07/16/2003 20030710_PlanningCommMinutesWithAdds.pdf 37.0540 . Commissioners. The Board of Commission- MCC 37.0640. If the Planning Commission ers decision is the County's final decision and , recommends approval of the application,that is appealable to LUBA within 21 days of the recommendation is forwarded to the Board of signed Board order. Commissioners. The Board's decision is the County's final decision on a Type IV applica- (E) PC review's are legislative actions which in- tion and is appealable to the Land Use Board valve the adoption or amendment of the of Appeals. • . County's land use regulations, comprehensive plan, map inventories and other policy docu- (E)PC Actions. The Planning Commission shall ments that affect the entire County, large ar- review all PC actions. If the Planning Corn- eas,or multiple properties.These applications mission adopts by majority vote of the entire involve the greatest amount of discretion and Planning Commission a resolution to recom- evaluation of subjective approval criteria,and mend an action,the Planning Commission re- must be referred by majority vote of the en- -fers the resolution to the Board for final ac- tire Planning Commission onto the Board for tion. The Board's decision is the County's fi- final action prior to adoption by the County. nal decision on a PC application and is ap- . . The Board of Commissioner's decision is the pealable to the Land Use Board,of Appeals. County's final decision and is•appealable to , LUBA within.21 .days of the signed Board 37.0550 • .Initiation of action. . . , • order or ordinance as applicable. ', •• icr , , r f Except as provided in MCC 37.0760, Type I - IV 37.0540 •Assignment of decision makers. applications,may only be initiated by written,consent .:• .of the owner of record or contract purchaser. PC The following County entity or official shall decide (legislative).actions may •only,be,initiated by the . the following types of applications; Board of Commissioners, Planning Commission, or Planning Director. (A)Type I Decisions.The Planning Director shall • . render all Type I decisions.The Planning Di- 37.0560 Code compliance and applications. rector's decision is the County's final decision on a Type I application. The County shall not approve any application for a permit or other approval, including building permit (13)Type II Decisions. The Planning Director • applications,for any property that is not in full corn- shall render the initial decision on all Type II pliance with all applicable provisions of the Mutt- permit applications. The Planning Director's nomah County Land Use Code and/or any permit decision is the County's final decision unless approvals previously issued by the County. A permit appealed to the Hearings Officer. The Hear- or other approval,including building permit applica- .' ing Officer decision on such an appeal is the Lions, May be authorized if it results in the parcel County's final decision on a Type U applica- coming into full compliance with all applicable pro- tion and is appealable to the Land Use Board visions of the Multnomah County Code. of Appeals. . • • 37,0570 Pre-application conference meeting. (C)Type III Decisions. The Hearings Officer shall render all Type III decisions. The (A)Prior to submitting an application for a Type Hearings Officer decision is the County's fi- II,Type III or Type IV application, the appli- nal decision on a Type III application and is cant shall 'schedule and attend a pre- appealable to the Land Use Board of Appeals. application conference with County staff to discuss the proposal.The pre-application con- (D)Type IV Decisions. The Planning Commis- ference shall follow the procedure set forth by sion shall render the initial decision on all the Planning Director and may include a fil- Type IV permit applications. If the Planning ing fee, notice to neighbors, neighborhood Commission denies the Type IV application, organizations, and other organizations and that decision is final unless.appealed to the agencies. Board of Commissioners in accordance with • LUP Admin&Procedures . 4 MD-150093D E # 31 Pg# 31 20030710_PlanningCommMinutesWithAdds.pdf July 10, 2003 Deschutes County Planning Commission 117 NW Lafayette Bend, OR 97701 Re: Enforcement Code Amendment Request Dear Commissioners: On behalf of 1000 Friends of Oregon, I offer the following comments on the request for a code amendment by William and Leigh Kuhn. I have reviewed their request and the memorandum prepared by Damian Syrnyk. As you know, enforcement is essential to assuring fairness and effectiveness of Oregon's unique land use system. The proposal by the Kuhn's embraces an important enforcement element:the county should issue no new land use approvals or permits without first making sure the applicant is in compliance with existing requirements. The Deschutes County Code Enforcement Manual cited in the memorandum clarifies that the county has the authority to implement this policy. I strongly agree with the staff conclusion that"the Kuhns' have raised a legitimate issue related to improving code enforcement in the county"and hope that you will support continued action on this issue. If there is any way in which I can be of assistance in this endeavor,I would be pleased to do so. Thank you for your consideration of these views. Sincerely, Kate Kimball MD-150093D E # 31 Pg# 34g Page 1 of 3 20030710_PlanningCommMinutesWithAdds.pdf 1 William From: "Kate Kimball"<kate @friends.org> To: "William John Kuhn"<William©riskfactor.com> Cc: "Phil Philiben"<philphil @bendcable.com>; "Ron Caramella"<rcaramel @redmond.k12.or.us>; "Bill Boyer"<wboyer @dsicomputers.com>; "FoDeCo-Boyer Jeff'<localfays @bendcable.com> Sent: Monday 14 July 2003 12:12 PM Subject: Re: George Read shoots down code enforcement Bill: I spoke with Jeff this morning and called George Read today to get a better sense of where he is coming from. I wanted to share this before tomorrow's meeting at 11:30 at COEC so we're all working from the same information base: George says that he supports the concept you and Leigh put forward. He has some concerns about specific impacts, but agrees that it is a good idea. He said that the Planning Commission did put the item on their discretionary list for this year as staff recommended. Their fiscal year starts July 1, so they just adopted their work plan. The Planning Commission did not vote to replace an existing 3A2 list item with your idea, but did put it on their 362 list, so it's still alive. His concerns, as I understood them, are as listed below. FYI, I agree that these are legitimate concerns. I also think there are solutions to all of them. My guess is Read would agree that there are solutions, but that it takes time to develop them--which is why this is a work task and not just a quick adoption of your proposal. --The county needs be sure there is a legitimate violation. They would need a code enforcement case. I like this because I'd want assurance that they wouldn't harass some people by refusing to take their application, claiming there's an enforcement issue. --Read had concerns about not accepting an application because under law it's deemed complete for them in 30 days, which starts the 150 day clock. As you know, if they don't finish up in 150 days, the applicant gets a mandamus action which is pretty much an automatic approval from the Circuit Court. --Laurie Craighead used to work for Multnomah county and said there are questions there about whether the county has the authority to enforce unrelated compliance issues on a pending application. (This might be the Nolan nexus requirement?) --He wants to retain some enforcement discretion so that he's not forced to make bad law. An example is Greenacres, which is permitted as a campsite but morphed into an RV park. The Circuit Court said this non-conforming use was legal, so the county lost and now has a bad decision on the books for this land. Enforcement discretion is not at risk here in my opinion, and think the county should have it this kind of discretion is what smart enforcement is about. Read did agree that they could be doing a better job of compliance and asked the Planning Commission to direct the planning staff to look at compliance issues when writing decisions. The Planning Commission did so direct the planning staff last week. After speaking with Jeff briefly, I agree with his suggestion (forgive me MD-150093D Ex# 3' Pg#3g 07/14/2003 Page 2 of 3 20030710_PlanningCommMinutesWithAdds.pdf Jeff if I distort what you said)that FODC decide on its enforcement priorities and then talk to Read. For example, I would like to know what the county's enforcement priorities are,whether those those priorities are being reflected in enforcement actions, whether/how those priorities match FODC's and, if there is a difference, how the county can make FODC's enforcement priorities their own. I'd also like some history on county enforcement ask the county to generate some numbers, which I bet they can. To start the ball on priorities, here are some suggestions: 1. Protect deer winter range. Protection means looking at this area as a whole: how many land divisions, how many non-resource dwellings, etc. have occurred over the last 5, 10, and 20 years? 2. Protect resource areas (irrigated EFU or forest lands)that have larger parcel sizes from further land divisions. 3. Prevent rural sprawl by spreading of rural residential patterns or zones. 4.Ask the county for data: Track parcel sizes in forest and EFU zones over time, number of parcels and number of dwellings in these zones. (Maybe ask the-county to generate this data?) Maybe a general question is: does the county have any priority areas that it chooses to protect? For example, in Crook County,their EFU-1 is the area that they protect above others. In Jefferson County, it's their EFU-Al. In both cases it's their most valuable agricultural land. Deschutes County may assume that federal land is their protection and not have such a priority. Kate Kate Kimball Central Oregon Planning Advocate 1000 Friends of Oregon P.O. Box 8813 Bend, OR 97708 Ph. 541-382-7557 Fax 541-382-7552 Be a Friend: Join 1000 Friends of Oregon online at:www.friends.org/support Confidentiality Notice: This e-mail message may contain confidential and privileged information. If you have received this message by mistake, please notify us immediately by replying to this message or telephoning us, and do not review, disclose, copy, or distribute it. Thank you. On 7/11/03 8:50 AM, "William John Kuhn"<William@RiskPactorcom>wrote: > Kate, >At the Planning Commission meeting last night George Read shot down the code >enforcement proposal saying that he didn't think the County could enforce it. That he didn't want to enforce unrelated past bad acts. a I have ordered a tape copy of the proceedings so it can be transcribed to show > his unwillingness to do his job. > Please consider this as another example of the County not protecting wildlife. MD-1503D Ex# 3 ( Pg# '46. 07/14/2003 Page 3 of 3 20030710_PlanningCommMinutesWithAdds.pdf >Catherine Morrow and Damian Syrnyk were supposed to represent CDD at the > meeting. Instead George Read showed up.This man needs to be told to do his >job. What ideas do you have to force the issue? It felt like each of the four > board members were"talked to" before the meeting by Read. (Peter Gramlich, >Tamie Sailors, Brenda Pace, and Everett Turner, the chair) > Is it possible to get from 1000 Friends a listing of names, addresses, > position titles, and email addresses of all heads of community development >departments from each county in Oregon?We would like to take a pole of all >counties to see if they have such an ordinance, if they do, have they had any >difficulty enforcing it, and what has been the general results of the > ordinance. > For your information, I had spoken to a Dereck Tokus(sp?) in the Multnomah >County Planning Division yesterday. He said they had re-written their entire >code in January 2001 and moved their Code compliance provision up to near the >top of their priorities. That they had had no problems with enforcement, the > 150 clock rule, or retroactivity. > Leigh and I hope that you and FoDesCo understand the significance of the >George Read impediment to good and fair land use enforcement in Deschutes >County. > Bill > 389 3676 MD-150093D Exri 3 ( Pg# t j 07/14/2003 Kuhn vs Deschutes County Assessor Scot Langton MD-150093D Ex# 32 ~Pgs# 9 19970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf 2 - 3 November 2015 C Duos\Clie.KW&M\P ..,..fEg1413_Elta,r„u.hfor Doelmads ubleiddo. e2Ie2/199'/ 14s e8 541282,24 TM DOWELL PAGE 5i 119970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf FAX . DOCUMENT 2/3/g7 12 TO: Bill and Leigh Kuhn 4 pages Fes: Jeff and Pat Dowell Sill and Leigh, As promised, we're getting back to you with our feedback and thoughts regarding your proposed 3oint Property Maine Agreement. Let me preface our response by stlePly stating the„404510,066-r' Pre.: f on .am �,� � W' Z � � � �, � •Y 4 { S tat p t Y t p� .. r..+ ` d art c°'�� ..,• that, TPo MJ h. ✓,x 1�.: e ;n : \ �,1�,��,,..» �6 e ham ..Y fling saR4 I'm n tryi to start things off on a negative note at all, but rather, just raise the question. Pat and I have talked at great length asout our feelings on your proposed Agreement. To a large extent we agree with almost all of them. For the purposes of clarification, I'll respond to each of the points you propose. It's proposed that the agreement apply to all 3 lots (ilk, 2g go ), unless otherwise noted. Unless I misread • things, the .Joint Property Maintenance Agreement tolled for in CU- 8B-Z2 is to apply only to the . r vY rwXdt%C�ap" tyb�e^,y l F $ d ; , held in com$ ,a o n n ot th^ e o.� Thins :.0 1 ^ 11 Description of parcels needs to only refer to tot ja1. Mows 'saw of the lots'" and substitute the jointly held property*. Delete 2nd sentence. MD-150093D Exit 32 P8# . vb , 4f 82183114117 14:G® 541 2924 TM DOwa.L Pry 82_. ... 19970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf 1 . OK 10, OK OK al Please add to end of sentence "and must be agreed to in writing by both .parties" Z„0, If fence is vegetation, we feel, only upper 42" limitation is necessary OK OK Zia OK We feel we need additional clarification here, as we have no direct experience with the shared property and would wont to ensure that we would crave acceptable access to explore the majority of the joint property while at the sane time adhering to agreed upon `trails' guidelines. 3121 Our proposed rewrite of 3b and 3b1 is: '"We will demonstrate reasonable sensitivity to the needs of the wildlife, soil and plants present on the joint property, and adjust our activities accordingly. Things such as horseback riding across the joint property and walking across the joint property from [insert date di to insert dated unless necessary, as specifically prohibited. aria OK 3 OK We feel one warning is appropriate, then the tenant faces eviction. OK A, There are two ports to this answer: One) "This is not applicable to the Wit, 04 there are no uti l ities costs associated with the joint heVII property. Tee) We have talked with Don Dimon of Central Electric Co-Op and verified that we are not in default of ony agreement that requires us to share tits MD-150093D Eat# 32 Pg# 2 P19/101/1917 14:8e 54128251124 N DOpELL PAS 83 119970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf extension costs, per your contention. He confirmed that he had never heard of any such cluster development requirement, though he did say we should confirm his partition with the County Planning Deportment. We then met with an individual at the County Planning rtment and asked for any related documentation or guidelines/requirements for cluster developments as it related to shared line extensions or basic utility costs. Nothing was found on file that they felt could be interpreted in that manner. We were also given a copy of the current cluster development guidelines and were shown that there was nothing in them that applied to this situation as well. 7 & 8) Are this missing from our document? You from *b to p jump 09. Please advise. We don't understand the need to put the sentence you have just before item #9: "All parties shall abide by all county ordinances", as it is already stated in la above. In that same paragraph, we agree that the cost of 'finalization' of this document shall be borne by both parties equally, but we want to add that a firm quote from a mutually agreed to attorney must first be obtained and approved. Does not apply as this agreement is for the joint property only. 10) We believe this is something that does need to be addressed relative to the joint property, but the wording is going to be very challenging to come up with. As o possible alternative, (albeit a long shot) of having to deal with any of this stuff in the future would be to propose (for discussion purposes only) that Kuhn and Dowell approach the County with a plan to divide the property into 2 equal 20 acre parcels, thus doing away with the whole issue a joint property vaaue ay reement. Generally speaking, our thoughts would be to keep the existing 4.3 acre private pools as currently defined in terms of tot lines, with the resultine 'split' of the 34,4 being designated as having similar restrictions as we are all proposing above, ht»tly, have not idea if this can even be done, or you'd want to, but it MD-150093D E # 32 1 #1 3 1 9970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf 12/12/1427 14:12 14171129924 TM IOWELL PAM Si it was done with the Barton/Ctbellt 48 acre parcel immediately to our West some years ago, so it must not be impossible. The only paragraph that matters is this one - Dowells want dogs •w ** Please note that the Joint Owners Property Maintenance Agreement will be signed by us only when Kuhns and Dowells have agreed on the interpretations surrounding current land use restrictions on the private 4.3 acre parcels. Specifically, that Dowells will agree not to allow cry future grants of their PrPfw to a 09p Its 0 . • a +k Bill and Leigh, we will call you tonight to talk with about our positions and see where we go from here. Our. apologies for not being able to come out an sit down in person to go over tris, but our meetings this morning took much longer than anticipated and r (Jeff) have to get back to Portland for a 4:00pm `meting. I hope we've made some major progress in our negotiations with our. concessions on the renters with dogs situation and the dual residency on the property issue. Hopefully that lays the groundwork for future discussions which will eliminate our differences and concerns. I look forward to speaking with you this evening. } Jeff Dowell MD-150093D Ex# 32 Pg# • . •t„AIV 4 ' ' Jit, 13' 00: 21 t Home-o hers Maintenance Agreement .irdwaq .IVA044AM Regatiling 1611 19 - Lots,k411,4K-sind Joint lot 300.between: Jail/clam Dowell Wiliam John&Martha Leigh Kuhn owners of 65595 Minnow Road building site owners of 65515 Marlboro Road home site 10705 NE 3$th Amen Post Office Box 5996 Val,WA 911686 mod.Oregon 1 -5996 h 360 574 711E h 541 3*9 3676 wj 503 241 9315 w 541 389 3676 19970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf Description of Bach individual parcel is here. Lot 0100 shell refer to the Dowel's bullring site.Lot 0200 shall refer to the K 's batting site. Lot$300 shall refer to the joint common property(estimated to be 34.4 acres)owned Vi interest by the ms's and owned'it least by the Kuhn's. This Home-owners Maintenance Agreement shall refer ► t w noted. 700 1) To promo and enhance the open space we egree that: a) Neither pray shall place or snow the p of any structure or impnwement upon any of tl kb that allowable under appropriate Deschutes County agog no structure or naprovement add be allowed unless it is weed ton is writing by bah does. ✓b) Any Racing( broken wood fence on the Samoa Road property line)either around the petiphety boundary or the boundary w have to roam=to. item 2)c)below and prior to any construdion must be wad upon in writing by both parties with expenses to be negotisted. le) Any introduced ponds,streams, or forestation of the joint property must be agreed upon by both peas prior to implementation and expenses to be 2) To preserve and protect existing wildlife: qaa., 1's der ct!Sri 'aw wp a) Owners,tenants,faunally members,and guests may not operate"dirt bikes",ATVs,or other motorized vehicles on the property(exclutfing Moonshine Ridge )' 7 r 4 "b) AH tetephane,electrical,,and any timbre as yet unknown or undetermined"ray"fines • c) Al firming must be of wood or simuisted wood made of creed plastic or ether manaval 0 matetial and net awed.The top nil may Rot be Barr than 42"and miry net be , ..,) lower dee 1$".Na barbed wire or straight wire may be used kr fencing. Of keen*is of vegaation would the 1g"minimum 142"manimonappW!) Helm feu f',1 •;- L}N. •• ,f./•.— 'f'. ' tr. tlif r.rr NIP I MOM eal:k MID 150093D Ex# 32 Pg# _..__. Mica;i apt®% • [19970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf Home-owners Mainttnanee Agreement mama aalMrany.Pinar/1.gr)934 MA 4, d) Owners, tenants,family members, and guests may not take"target" practice with rifle or gun on property, or hunt with any device. e) Owners, tenants,family members,and guests may not allow dogs on the joint property. 1) Owners tenants, family members,and guests may not use the joint property for livestock purposes(e.grazing).Livestock is defined here as: horses, cattle, llamas,sheep,emus, ostriches,pigs,chickens,"game"birds. c•:. • f r'' - 3) To maintain all species at optimum levels to prevent serious depletion of indigenous species and to preserve bio-diversity we agree that: e1 "a4 i) No new trails will be established by owners, family members,and guests on Lot 1300 the v joint property.. b) We will demonstrate sensitivity to the needs of the wildlife, soil,and plants present or using Lot 1300 the joint property, and adjusting our activities accordingly. b)is too weak or too ) This would include avoiding riding on horseback(except on Moonshine Ridge Road) vague as is. across the property,avoiding walking across property during early sprang into mid s oP. Summer unless necessary,walking on existing animal trails when possible on Lot 1300 the joint-property:(Note:There arc many trails and roadways going in all'sections nearby—it is not necessary to cross the joint acres to go anywhere.) -} c) There will be nomaplrlg of any waste material on Lot#300 the joint property. i d) No pesticides of/erasers will be applied unless both parties agree in writing pier to station on Lot 1300 the joint property. 4) Tenants will not acc ess.the joint property unless both owners agree in writing and said tenant 4 understands all restrictions and signs an agreement to abide by all restrictions. If tenant does not adhere to all restrictions this would be probable cause for eviction by owner. 5) To insure that annual property taxes are paid on the joint property,Lot 300:Both panics are responsible for and shell pay their portion of taxes on the jointly owned lot.No taxes shaN be f considered paid on the individually owned building lot until that party's y4 portion of th e jointly owned Lot 300 is paid is Mil.(This needs to include a statement about the amount the county gives if paid by the 10.) 6 tat w * tat s sc+.t MAX ,I ,! rding improvtarr e►te s that benefit both parties: Any and all expenses fohimprovemcnts, • i negotiated tljti such electriwer betcal p and telephone line extensions,that bent both parties be 1+parksroince the Dom:1r a are already benefiting from she electrical Pf' ind-phone has extensions that were paid for in their entirety by the Knurl's,the DawwrM's Ongroe to pray the Kult a's 122.223.51(as of 970131)which is their portion or the emersion oft. p 4114.44t Leg 4 4 AA' 44PAC e,.g ire wr wt 76044" 04.6100111111111116fieskpenrAdips Aglaia ROO 49.14 MD-150093D Ei 32 Pg# - • aJ Home-owners Maintenenee Agreement wake OM Aw J ` sal abide by all county ordinances. it is agreed that the l expenses regarding this ' document shall be equally shared by both parties. X1,/15 0444eaM 9) Since according to Deschutes County Ordinance#92-040,Exhibit"A"under Policies: 02 "The county slag enforce an animal control ordinance which prohibits slogs to be at Urge or A + Q not under the complete control of a capable person"and since one would be unable to y a a that would contain a dog given the fencing restrictions contained in the construct ket�1 t vv�r vg h deed restrictions, the"dog dooi"on the Dowell's garage will be removed. 'f t 10)Establish some means of dealing with disputes such as iNhat we have j t experienced. Signatures here JDowell(Owner lot#100) Date • Patti Dowell(Owner lot#100) Date • Martha Leigh Kuhn(Owner lot 0200) Date William Min Kuhn(Owner lot 1200) Date . 119970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf j ), /9 1 •/3 a . w + 1a 55 0 • -13D E 32 Pg# rwAill. twpyetl MOO 0)1 119970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf FAX DOCUMENT 2/3/97 12:Opm TO; Pill and Leigh Kuhn 4 pages FROM: Neff and Pot Powell Bill and Leigh, As promised, we're getting back to you with our feedback and thoughts regarding your proposed Joint Property Maintenance Agreement. Let me preface our response by simply stating the 'disclaimer' that though we are providing feedback vn them 1 mo uesti the'' e4 for � iv en the 0b e e of any fu age ° r +g the history f 'the &al,*K of Ow properties. Having said that, I'm not trying to start things off on a negative note at all, but rather, just raise the question. Pat and I have talked at great length about our feelings on your proposed Agreement. To a large extent we agree with almost all of them. For the purposes of clarification, I'll respond to each of the points you propose. Megaigg It's proposed that the agreement apply to all 3 lots (1801 28O, MO), unless otherwise noted. Unless I misread things, the 3otnt Property Maintenance Agreement called for in CU-$$-2Z is to apply to the property held in common not t rtva ly owned lots. Thus . a ng refiect Obi I*u Description of parcels needs to only refer to lot #3N Remove "oily of the lots" and substitute "the jointly held property". Delete 2nd sentence. OK j OK Zgl OK ahl Please add to end of sentence "and must be agreed to in writing by both parties" Zcl If fence is vegetation, we feel only upper 42" limitation is necessary ZeOK ok lol We feel we need additional clarification here, as we have no direct experience with the shared property and would want to ensure that we would have acceptable access to explore the majority, of the joint property while at the some time adhering to agreed upon 'trails' guidelines. Au Our proposed rewrite of 3b and 3bi is "We will demonstrate reasonable sensitivity to the needs of the wildlife, soil end plants present on the joint property, and adjust our activities accordingly. Things such as horseback riding across the joint property end walking across the joint property from (insert date #1 to insert datei2) winless necessary, as specifically prohibited. MD-150093D Exit 32 Pg# ,'o Zb3 [19970203 Dowell response to Kuhns 19970119 Homeowners Association Agreement Proposal .pdf as they do not access the joint property and are not allowed to roam. Bill and Leigh, we will call you tonight to talk with about our positions and see where we go from here. Our apologies for not being able to come out an sit down in person to go over this, but our meetings this morning took much longer than anticipated and I (Jeff) have to get back to Portland for a 4:Bepm meeting. Y hope we've made some major progress in our negotiations with our concessions on the renters with dogs situation and the dual residency on the property issue. Hopefully that lays the groundwork for future discussions which will eliminate our differences and concerns. X look forward to speaking with you this evening. Jeff Dowell -150093D ENV 32 Pg# • Kuhn vs Deschutes County Assessor Scot Langton MD-150093D Ex# 33 ~Pgs# 3 19990426 Kuhn to Dowell two additional proposals highlight 2 - 3 November 2015 CA Doo∎cu.m\KW&MPrwats+rwanwVm14-1s_ LAMY bar Dearaonta ffl.eum.aa owe 25 ao •tim 119990426 Kuhn to Dowell two additional proposals highlight.pdf Main Identity MD-150093D DO 33 Pg# From: "William John Kuhn" <William @RiskFactor.com> To: "Dowell Pat" <pjd @transport.com>; "Dowell Jeff' <jeffdowell @transport.com> Sent: Monday, April 26, 1999 7:20 AM Subject: two additional proposals It's partly cloudy and heavy frost this morning. The enclosed is a copy of my letter mailed yesterday outlining two additional proposals to put on the table for discussion. Bill Sunday 25 April 1999 Pat and Jeff Dowell h 360-574-7118 10705 NE 38th Av Vancouver, WA 98686 Dear Pat and Jeff, Please forgive my tardy response from November to your request for dialog regarding the Codes Covenants and Restrictions relative to dog ownership. I admit to being swamped every yearend through tax day, but this year I kept running over in my head different scenarios that might work for all of us. We have appreciated your communications and articles regarding Ben, and basically respect your desire for an inside animal that doesn't run wild, but what if your desires change in the future? We understand that you detest a yapping uncontrolled mutt. But how do we protect our rights if in fact that isn't the way it turns out? The barrier I kept running into is how there can be dogs here while at the same time respect our rights to enjoy the various wild animals that we signed a deed restriction to protect. The proposal suggested by you in November would seem like a reasonable solution if combined with a more restrictive signed agreement stating that no other owner, or renter, etc., ever be able to have a dog on any of these deed restricted acres. That if anyone other than Jeff or Pat Dowell, the current owners, were to bring or have a dog there would be severe automatic cash penalty. However, when dealing with the 'what ifs' of such an agreement would it put Leigh and me back in the position of being the ugly neighbor? Were we to agree to such a solution we would have to have some kind of iron clad agreement how to deal with all of the various possibilities that might arise. For example, What if a dog got loose? Who is responsible for getting the dog back? What are the penalties for a dog getting loose? What happens when Ben dies? What if we didn't like the dog(s) that replaced him? What if it was a yappy dog(s)? Would we have a say in the kind of dog(s) that would replace Ben? 19990426 Kuhn to Dowell two additional proposals highlight.pdf MD-150093D Emit 33.11/2# What if you were out walking with one of your dogs and it got loose? What if it got loose more than once, repeatedly chasing various animals? How many dogs would we be agreeing to? What if you were to build a kennel and kept the dog(s) outdoors? What if your dog marks etc. on our property? What if you boarded dogs? What if you use the dog door and the dog is unrestrained and unmonitored? How do we enforce our rights? We don't want to be put in the position of having to be the enforcer, nor do we have any desire to monitor your dog's activities. Do you still have a desire to pursue this proposal? Even now we are being cast in an unfair light. Lisa Chitwood and a friend attended a performance that Adam, one of my employees, was performing in a couple of months ago. Adam recognized Lisa and said hi to her. When Lisa introduced Adam to her friend she introduced Adam as an employee of her neighbors' saying, "You know, the neighbors that hate dogs." I have since relayed to Lisa some of our stories of saving dogs that were destined for the gas chamber. How we have spent money and time searching, sometimes for months, to find good loving homes for dogs that were abandoned, passing up our desire to keep them as companions. Your November communication mentioned, This is not the environment we dreamed of coming to, as we see it running contrary to the very essence of freedom and openness that the area represents to us." I appreciate your desire for freedom and openness, at the same time you chose to buy your property with the full knowledge of the deed restrictions, and the reasons for them, that we so carefully and meticulously pointed out before you bought. Where do our rights fit in the picture you have drawn of the area? Where do the needs (re: Oregon Fish and Wildlife) of the Tumalo Wildlife area you want to live in fit in the picture you have drawn of the area? I will be out of town a good part of mid-May. In the meantime I would like to suggest two counter proposals to be discussed. Our first proposal references point number one of the Covenants and Restrictions of the Land Use Restrictions (a.k.a. deed restrictions) which says: "Owners or family members may not acquire additional dogs other than the dog(s) they may own when they purchase the property." We propose that it would include any dog(s) that you currently own as of this date (Sunday 25 April 1999). No additional, subsequent, substitute, or replacement dog(s) would be permitted under this proposal. When Ben dies (and if there is another dog that has not been mentioned that you currently own) that would be it. Even if there is agreement with this proposal,we still need to work out some of the 'what ifs' mentioned earlier in this letter. We would like to discuss and include some flexibility with situations that may occur such as visitors and family members that may want or need to live with either of our households that have dogs as companions before the day they move in or visit. Our Second proposal: You consider selling us your property. A couple of people we have talked to about our situation and even a few of my clients have offered to buy your property. They are willing to live with the deed restrictions and honor them as they were intended. One is even willing to restore the property to its wild state and deed the property as a wildlife refuge. 119990426 Kuhn to Dowell two additional proposals highlight.pdf 1 MI-1-1 it-1MM Fes` 3,3_l a# IT IS our desire to move our discussion forward. At the same time I would like for you to consider the following: Assume for a moment that you had bought first. We were interested in buying the second parcel. You told us about the deed restrictions and we looked at them and saw that although they did restrict `dirt-bikes', they did not restrict all terrain vehicles (ATV's). When we show up with ATV's and start running them on our property and on the road, how would you feel about the noise, the pollution, and the destruction they caused? How would you deal with us? Would you compromise? Sincerely, William John Kuhn 19990426 Kuhn to Dowell two additional proposals highlight.pdfl MD-150093D E 33 PA# 3 Kuhn vs Deschutes County Assessor Scot Langton MD-150093D Ex# 34 ~P s# $ i 19990627 Dowells Will Not Pursue Further INTENT 2 - 3 November 2015 CAM., .WW&IIRnw mreAppwl2o1a1s1_aAlenwboh for Dumu.+ aaacx vwa26 2015.11W 19990627_Dowells Will Not Pursue Further INTENT.pdf Main identity, MD-150393D E t 34 Pg 1 From: "Pat Dowell'cpj rarnail.trancsport.com> To: cwilliamOriskfactar.c orn> Sent: Monday,June 28, 1999 9:15 AM Subject: Dowell response Bill, Leigh, We believe we have presented you with a very reasonable plan for going forward. A plan which gives us all the best likelihood for peaceful co- existence. g P existence. You obviously feel that our "best efforts" will simply not be enough to satisfy you, and have created a long list of"what ifs" in support of your position. After reading and rereading your response to us, we came away with the feeling that you (unfortunately) appear to be looking for problems rather than solutions. You have your perspectives on the world, and we have ours - and they are obviously very different. But this situation all comes down to something • very simple: No piece of paper, from a signed agreement all the way to a court order, is going to protect either party from the havoc the other could 9 9 P P rtY wreak, if so desired. We're offering you our best efforts, which, if respected and reciprocated, is the optimal situation you could possibly ask for from a neighbor (be it us, or anyone else) - and it's more "protection" than any piece of paper could give either of us. We've given this situation a lot of thought, and quite honestly, based on the positions you've taken and the perspectives you've presented, we don't feel there is anything to be gained by pursuing this matter further. Jeff and Pat Over the next several years the Dowels made good on their threat of wreaking havoc by refusing to join us in pursuing a joint DR, giving false testimony in civil court, verbal threats "one match and...", allowing their general contractor/property manager to break into our home and assault us,putting flashing Christmas trees lights on their roof, directing their renter/tenant to leave the eight outdoor flood lights on 24/7 for over 2 years,threatening to sell their property to the general contractor who assaulted us, allowing other renter/tenants to bring dogs to the cluster, ignoring simple maintenance such as removing weeds, allowing a renter/tenant to bring mattresses, yard waste, and building demolition to the property and then setting huge bon-fires ablaze without adequate means to put the fires out, and allowing transients to use their structure. MD-150393D Ex# 34Pg# 1 19990627_Dowells Will Not Pursue Further page 1 of I 1999 06 27