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2017-273-Minutes for Meeting April 05,2017 Recorded 5/25/2017Recorded in Deschutes County CJ2017-273 Nancy Blankenship, County Clerk Commissioners' Journal 05/25/2017 10:53:03 AM For Recording Stamp Only Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS Wednesday, April 5, 2017 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were Tom Anderson, County Administrator (present at 10:35 a.m); Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Ross, Board Executive Secretary. Several citizens were present and no representatives of the media were in attendance. CALL TO ORDER: Chair Baney called the meeting to order at 10:02 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: None was offered. CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. Commissioner Henderson requested to pull Items 6, 8, and 11 for further review. Henderson: Move approval of Consent Agenda, minus items 6, 8, and 11. DeBone: Second. VOTE: HENDERSON: Yes. DEBONE: Yes. BANEY: Chair votes yes. Motion Carried Minutes of Board of Commissioners' Business Meeting April 5, 2017 Page 1 of 8 Consent Agenda Items: 1. Consideration of Board Signature of Document No. 2017-094, Printing Services Agreement with Press Pros 2. Consideration of Board Signature of Document No. 2017-118, Approval of Lease/Purchase Option Between Deschutes County and Mineral Creek Logging 3. Consideration of Board Signature of Document No. 2017-176, Appointment of Successor Trustee and Reconveyance Deed — Zigler and Blatnik 4. Consideration of Board Signature of Document No. 2017-083, Quitclaim Deed for Sonnie L. Grossman 5. Approval of Minutes of the March 6, 2017 Business Meeting 6. Approval of Minutes of the March 6, 2017 Work Session 7. Approval of Minutes of the March 8, 2017 Work Session 8. Approval of Minutes of the March 20, 2017 Work Session 9. Approval of Minutes of the March 22, 2017 Business Meeting 10. Approval of Minutes of the March 22, 2017 Work Session 11. Approval of Minutes of the March 24, 2017 Special Meeting 12. Approval of Minutes of the March 29, 2017 Business Meeting ACTION ITEMS: 13. The Reading of Proclamation for National County Government Month: Whitney Hale presented the proclamation for consideration noting since 1991 the National Association of Counties has recognized April as the month to promote the programs and services provided by counties. Ms. Hale commented on the Commissioner of the Day program on the AOC website available to students as well as the Deschutes County College program that is available to Deschutes County residents each Fall. Commissioner DeBone read the proclamation into the record. HENDERSON: Move approval of Proclamation. BANEY: Second. VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion carried 14. Consideration of Signature of Document No. 2017-139, Intent to Award Contract for Yard Debris and Wood Waste Management Services Timm Schmike, Director of Solid Waste Operations presented the Intent to Award for consideration. This agreement is for grinding and transportation of wood waste and yard debris including materials collected from the Fire Free program. Two bids were received Minutes of Board of Commissioners' Business Meeting April 5, 2017 Page 2 of 8 and the recommended award is for T2 Inc as they provided the low qualified bid. Commissioner Henderson commented on the change in requirements for wood waste not allowing wood with paint and hoped there would be a system change for the future. Mr. Schinike noted the requirement is a DEQ regulation for environmental protection and wasn't a rule made by the County. DEBONE: Move approval HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion carried 15. Consideration of Signature of Document No. 2017-181, Third Party Administrator Intent to Award Kathleen Hinman, Human Resources Director presented for consideration an intent to award for third party administrator for County health benefits. Deschutes County has used EBMS for the third party administrative services since 2006 which is the last time a request for proposal has been done for this service. Ms. Hinman noted a consulting service drafted and advertised the RFP and conducted the initial review of the 11 responses received. The Third Party Administrator Selection Committee determined the recommendation for PacificSource Health Plans. Discussion held on the items considered during the review process. The contract with PacificSource includes a three year rate guarantee. DEBONE: Move approval HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion carried 16. Consideration of Chair Signature of Document No. 2017-163, Pauline Lake Road Chip Seal — Memorandum Agreement with Western Federal Lands Highway Division Chris Doty, Road Department Director presented the Federal Lands Access Program chip seal agreement for the Pauline Lake Road project for consideration. Mr. Doty noted the agreement outlines the rules and responsibilities of each agency. The Pauline Lake Road project covers 19 miles of road. This agreement covers a 50% match between the Minutes of Board of Commissioners' Business Meeting April 5, 2017 Page 3 of 8 Western Federal Lands Highway Division and Deschutes County. Mr. Doty explained the road improvement projects are tracked on a pavement management program schedule and this project route was applied for two years ago. Commissioner Henderson inquired on the amount of the required match for this program. The minimum funding match is 10.27% but this application was applied for at 50% to allow for assurance of the project. Commissioner Henderson expressed his concern of maintaining and funding road systems within federal lands and his hopes for increased federal funding options in the future. HENDERSON: Move approval DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes BANEY: Chair votes yes. Motion carried 17. Consideration of Chair Signature of Document No. 2017-164 , South Century Drive Chip Seal — Memorandum of Agreement with Western Federal Lands Highway Division Chris Doty, Road Department Director noted this project is also covered by the Federal Lands Access Program chip seal agreement for project route South Century Drive / Forest Highway Route 42 covering a 10.8 mile section of South Century Drive from Maxwell Bridge to Burgess Road. This agreement also covers a 50% match between the Western Federal Lands Highway Division and Deschutes County. HENDERSON: Move approval DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes BANEY: Chair votes yes. Motion carried 18. Consideration of Board Signature of Document No. 2017-180, Intergovernmental Agreement between ODOT and Deschutes County — Oversize and Overweight Permit Program. Chris Doty, Road Department Director explained the Oregon Department of Transportation administers a continuous operation variance permit program to authorize oversized and overweight vehicles on state highways, county roads, and city streets. The program authorizes travel in multiple jurisdictions for the convenience of the permit Minutes of Board of Commissioners' Business Meeting April 5, 2017 Page 4 of 8 holder. The IGA process allows for the state to issue the permits and distribute a portion of the fee revenue to the County. HENDERSON: Move approval DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes BANEY: Chair votes yes. Motion carried 19. Public Hearing: Consideration of Hearing's Officer Decision in File Nos. 247-16- 000408 (247-17-000027A) Will Groves, Senior Planner presented the report of the appeal filed by Larry Kine in response to the hearing officer decision on January 6, 2017 that the applicant has not met burden of demonstrating the lot of record status of the subject property. Mr. Groves noted this is a continued hearing from March 8, 2017 where the prehearing announcements were made. Mr. Groves reviewed the staff report, gave the background on Widgi Creek, and information regarding lot of record. Board action options are to continue the public hearing, close the oral record and keep the written record open, or close public hearing and begin deliberations. At this time, Chair Baney called for public testimony. Larry Kine, applicant. Mr. Kine presented a handout to the Board and gave background on the property. He noted the property at Widgi Creek was received as a part of a land exchange and stated the BLM did the land surveys creating a plat. Mr. Kine commented on legal descriptions, deeds, and plats for property location. Commissioner Henderson inquired on the plans for the development. Mr. Kine noted there would be an application for development but doesn't want to disclose it at this setting. Commissioner DeBone inquired on the six or seven sections and what is the justification of this not being one parcel. Mr. Kine responded on the use of common sense in considering number of lots. Michael McGean, representing Widgi Creek homeowners association, Alki Woods homeowners association, and Alki Woods fractional homeowners association. These are the three communities clustered around the subject property. Mr. McGean commented this is the first time having heard the purpose of Mr. Kine's application. Mr. McGean spoke on prior applications by Mr. Kine. Mr. McGean stated the question is whether or not the pieces and subparts will meet the County's definition of lot of record and that the hearing's officer identified the parcels did not. Mr. McGean spoke on burden of conforming to local regulations and of the BLM survey. He feels the federal government intent is to not preempt local regulation. He feels the hearings officer's decision was correct and that the 11 parcels do not fit into County Code. Mr. McGean explained Mr. Kine stated he had created a subdivision plat and was recorded by the Clerk but has there been testimony from the County Surveyor the plat has not has been filed. Mr. McGean urges the Board to affirm the decision of the hearing's officer and hold applicant to his Minutes of Board of Commissioners' Business Meeting April 5, 2017 Page 5 of 8 burden and asks permission to submit written response to the applicant's documents that were submitted. Commissioner Baney inquired if Mr. McGean's testimony would change if the survey and deed had been recorded and filed. Mr. McGean said it may fall into one of the County's category but it wasn't. Commissioner Henderson asked for clarification of number of lots. Mr. McGean commented they are incidental pieces of property and not lots of record. Liz Fancher, representing Belveron Real Estate Partners LLC. Ms. Fancher gave history on the Thompson decision of 2008. She commented based on that decision, the County staff adopted the position that lots created by federal patent or deed after 1977 were not lots of record because they did not receive County land use approval prior to their transfer to a private property. She is here today to provide input and ask the Board doesn't include findings that undo the Thompson decision. Ms. Fancher believes the definition in County Code on lot of record does apply here. She spoke on the right of the federal government to control its property. Ms. Fancher asks the Board follow the reasoning of Hearings Officer Ken Helm in the Pine Forest decision in 2008 and support that determination. Ms. Fancher listed public projects on land conveyed by the federal government by patent or deed after 1977 that would not have been allowed to occur if the County had interpreted the tern lot of record to exclude parcels created by federal patents. Commissioner Henderson inquired on transfers of federal lands. Ms. Fancher noted in her opinion it wasn't necessary for the federal government to obtain County approval to create the lots and suggested changing County Code to include that lot creation as a legal action. Larry Kine provided response and noted the timing of the four parcels created prior to the patent and was lawfully recorded by the federal govermnent and wasn't required to be recorded with the County. Mr. Kine reiterated the time of creation where the federal government legally and lawfully created the plat. He noted this is his position and in his opinion meets the County Code. Commissioner Henderson asked for clarification of definition at time of the transfer and Mr. Kine noted it was a plat recorded in the BLM records and was done as part of the land exchange process. Mr. Groves presented staff questions needing clarification from both parties on the difference of lawfully established unites of land and lots of record. Mr. Groves also pointed out receiving testimony from Land Watch during the hearing and will make available in the record. Another issue to address is what happens when not a lot of record and reviewed example of lot of record and lawfully established units of land. Examples were given considering federal conveyance and developments, partition requirements, and conveyance by survey reference. Mr. Groves is looking for clarity for Land Use Board of Appeals (LUBA). Discussion held on the creation of the lots and questions needing to be clarified. Commissioner Baney noted the amount of material and closed the oral portion of the testimony. Discussion held on the calendar providing adequate time for the open written Minutes of Board of Commissioners' Business Meeting April 5, 2017 Page 6 of 8 record. All parties gave input and two weeks for review would be beneficial. Mr. Groves noted open written record period of 14 -days to 5:00 p.m. on April 19t1', the second 14 -day period for rebuttal would end at 5:00 p.m. on May 3'd, and applicant's final argument would be due 5:00 p.m. on May 10th. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 12. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District, in the Amount of $327,402.72 DEBONE: Move approval, subject to review HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion Carried CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 13. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District, in the Amount of $859.76 DEBONE: Move approval, subject to review HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion Carried RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 14. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County, in the Amount of $154,266.79 DEBONE: Move approval, subject to review HENDERSON: Second Minutes of Board of Commissioners' Business Meeting April 5, 2017 Page 7 of 8 County Administrator Anderson noted expenses for the 911 radio and computer aided dispatch system. VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion Carried OTHER ITEMS: • Commissioner DeBone provided for consideration a Letter of Support to the Senate Committee on Environment and Natural Resources and will travel to Salem today to show support of Senate Bill 634 which adds woody biomass to the list of green energy generating technology to be included in constructing, reconstructing, or renovating public buildings. HENDERSON: Move approval DEBONE: Second VOTE:HENDERSON: Yes DEBONE: Yes BANEY: Chair votes yes. Motion carried ADJOURN: Being no further items to come before the Board, the meeting was adjourned at 12:24 p.m. DATED this / Day of County Board of Commissioners. ATTEST: Recording Secre ary Minutes of Board of Commissioners' Business Meeting 2017 for the Deschutes 7-"\tc Tamm aney, Cha Anthony DeBone, Vice Chair derson, Commissioner April 5, 2017 Page 8 of 8 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 AM, WEDNESDAY, APRIL 5, 2017 Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — 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. CALL TO ORDER PLEDGE OF ALLEGIANCE 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. CONSENT AGENDA 1. Consideration of Board Signature of Document No. 2017-094, Printing Services Agreement with Press Pros 2. Consideration of Board Signature of Document No. 2017-118, Approval of Lease/Purchase Option Between Deschutes County and Mineral Creek Logging 3. Consideration of Board Signature of Document No. 2017-176 Appointment of Sucessor Trustee and Reconveyance Deed-Zigler and Blatnik Board of Commissioners Business Meeting Agenda Wednesday, April 5, 2017 Page 1 of 4 4. Consideration of Board Signature of Document No. 2017-183, Quitclaim Deed for Sonnie L. Grossman 5. Approval of Minutes of the March 6, 2017 Business Meeting 6. Approval of Minutes of the March 6, 2017 Work Session 7. Approval of Minutes of the March 8, 2017 Work Session 8. Approval of Minutes of the March 20, 2017 Work Session 9. Approval of Minutes of the March 22, 2017 Business Meeting 10. Approval of Minutes of the March 22, 2017 Work Session 11.Approval of Minutes of the March 24, 2017 Special Meeting 12. Approval of Minutes of the March 29, 2017 Business Meeting ACTION ITEMS 13. The Reading of Proclamation for National County Government Month - Whitney Hale, Public Information Officer 14. Consideration of Signature of Document No. 2017-139, Intent to Award Contract for Yard Debris and Wood Waste Management Services - Timm Schimke, Director of Solid Waste 15. Consideration of Signature of Document No. 2017-181, Third Party Administrator Intent to Award - Kathleen Hinman, Human Resources Director 16. Consideration of Chair Signature of Document No. 2017-163, Paulina Lake Road Chip Seal - Memorandum Agreement with Western Federal Lands Highway Division - Chris Doty, Public Works Director 17. Consideration of Chair Signature of Document No. 2017-164, South Century Drive Chip Seal - Memorandum of Agreement with Western Federal Lands Highway Division - Chris Doty, Public Works Director 18. Consideration of Board Signature of Document No. 2017-180, IGA Between ODOT and Deschutes County - Oversize and Overweight Permit Program - Chris Doty, Public Works Director 19. PUBLIC HEARING: Consideration of Hearing's Officer's Decision in File Nos. 247 -16- 000408 -LR (247-17-000027-A) - William Groves, Senior Planner Board of Commissioners Business Meeting Agenda Wednesday, April 5, 2017 Page 2 of 4 CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 20. Consideration of Approval of Weekly Accounts Payable Vouchers CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 21. Consideration of Approval of Weekly Accounts Payable Vouchers RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 22. Consideration of Approval of Weekly Accounts Payable Vouchers 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. ADJOURN To watch this meeting on line, go to: www.deschutes.ora/meetings 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. Board of Commissioners Business Meeting Agenda Wednesday, April 5, 2017 Page 3 of 4 ®®Deschutes County encourages persons with disabilities to participate in all programs and Liactivities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.ora/meetinacalendar (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 call 388-6572.) Board of Commissioners Business Meeting Agenda Wednesday, April 5, 2017 Page 4 of 4 -TES Deschutes County Board of Commissioners 1300 NW WaII St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of April 5. 2017 DATE: March 29, 2017 FROM: William Groves, Community Development, 541-388-6518 TITLE OF AGENDA ITEM: PUBLIC HEARING: Consideration of Hearing's Officer's Decision in File Nos. 247 -16 -000408 - LR (247-17-000027-A) PUBLIC HEARING ON THIS DATE?: Yes Before the Board of County Commissioners (BOCC) is an appeal filed by Larry Kine. The appeal is submitted in response to a January 6, 2017 Deschutes County Hearings Officer's decision that the applicant has not met his burden of demonstrating the lot of record status of the subject property. The Board agreed to hear this matter de novo under Order 2017-003. PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS • The applicants have the burden of proving that they are entitled to the approval requested. • Testimony and evidence at this hearing must be directed toward the approval criteria, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. • Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. • The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. • The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant presents testimony and evidence. 3. Proponents and opponents testify and present evidence. 4. The applicant presents rebuttal testimony. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. Staff will be afforded an opportunity to make any closing comments. • The Board may limit the time period for presentations. • If anyone wishes to ask a question of a witness, the person may direct the question to the Chair. The Chair is free to decide whether or not to ask such questions of the witness. • The grant of a continuance or record extension shall be at the discretion of the Board. Page 1 of 2 - PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS • If the Board grants a continuance, it shall continue the public hearing to a date certain. • If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the record shall be left open to a date certain for submittal of new written evidence or testimony. • If the hearing is continued or the record left open, the applicant shall also be allowed a period to a date certain after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. • Commissioners must disclose any ex -parte contacts, prior hearing observations, biases or conflicts of interest. Does any commissioner have anything to disclose and, if so, please state the nature and extent? • Does any party wish to challenge any Commissioner based on ex -parte contacts, biases or conflicts of interest? Page 2 of 2 - PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS Community Development Department Planning Division Budding Safety Division Environmental Sods Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (541) 385-1764 http://4roaaw.deschutes.org/cd MEMORANDUM DATE: March 1, 2017 TO: Board of County Commissioners FROM: Will Groves, Senior Planner RE: Board hearing on the Kine appeal of a Hearings Officer's decision. File No. 247 -16 -000408 -LR Before the Board of County Commissioners (BOCC) is an appeal filed by Larry Kine. The appeal is submitted in response to a January 6, 2017 Deschutes County Hearings Officer's decision that the applicant has not met his burden of demonstrating the lot of record status of the subject property. The Board agreed to hear this matter de novo under Order 2017-003. Staff notes that this memo is a supplemented version of the memo the Board received when choosing whether to hear this matter. New text below is underlined in Section I and the remaining Sections are wholly new material. I. BACKGROUND The applicant, Larry Kine, requested Lot of Record Verification for ten (10) areas located within the property identified on Assessor's map 18-11 Tax Lot 2001, within the Widgi Creek Resort Community. A Lot of Record Verification is an application that seeks to demonstrate that the configuration of identified lots or parcels was the result of lawful actions. This requires an analysis of the deed history of a property. The subject property was conveyed from the Bureau of Land Management into private ownership in 1984. This conveyance referred to a BLM document entitled "Dependent Resurvey, Subdivision of Sections 22 and 23 and Survey" ("Dependent Resurvey") dated January 12, 1984. The Dependent Resurvey mapped Parcels A, B, C, and D and these "parcels" are used to describe the land subject to the 1984 Federal conveyance. In order to find that these "parcels" were Lots of Record', the Hearings Officer would need to find that they met the DCC 18.04.030 requirements that the "parcels" "...conformed to all 1 Section 18.04.030 of the County Zoning Ordinance defines a "lot of record" as: A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means: Quality Services Perjorrned with Pride zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created... ", and that they were created by one of the means identified in the Lot of Record definition sections (A)(1-5). The Hearings Officer found that the Federal Land Policy and Management Act of 1976 (FLPMA) allows the BLM to create and convey lots that "a subsequent owner could use and convey". However, FLPMA does not preempt local requirements and, specifically, Section 718 of the FLPMA "places the burden of compliance" with state and local land use regulations on the grantee. Next, the Hearings Officer found: I concur with the Hearings Officer in Thompson, and with the applicant, that the BLM has the authority to create units of land and convey them without regard to the Oregon Revised Statutes and the Deschutes County Code. Those units of land are lawful; they can be used and conveyed by the grantee. But that only sets the stage for deciding whether those units of land are "lots of record" that the Deschutes County Code recognizes as developable. The applicant argued that the "parcels" were created in accordance with Lot of Record section (A)(2), "By a subdivision plat, as defined in ORS 92, filed with the Deschutes County Surveyor and recorded with the Deschutes County Clerk". The Hearings Officer found that the "Dependent resurvey" was not a filed with the Deschutes County Surveyor nor was it recorded with the Deschutes County Clerk. Staff notes that the applicant has since recorded the BLM Dependent Resurvey with the Clerk. Next, the Hearings Officer found that the "parcels" did not conform "...to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created... ". The Hearings Officer explained: In 1984 the parcel was zoned FU3 under PL -15 with a minimum lot area of 20 acres. At least one "parcel" — 'A' is less than 20 acres; thus the division into four 1. By partitioning land as defined in ORS 92; 2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County Surveyor and recorded with the Deschutes County Clerk; 3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parcel, and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description, only one lot of record shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat; 4. By a town plat filed with the Deschutes County Clerk and recorded in the Deschutes County Record of Plats; or 5. By the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot or parcel. B. Notwithstanding subsection (A), a lot or parcel validated pursuant to ORS 92.176 shall be recognized as a lot of record. C. The following shall not be deemed to be a lot of record: 1. A lot or parcel created solely by a tax lot segregation because of an assessor's roll change or for the convenience of the assessor. 2. A lot or parcel created by an intervening section or township line or right of way. 3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was conveyed subject to DCC 18.04.030(B). 4. A parcel created by the foreclosure of a security interest. parcels did not meet the zoning standards at the time. Further, as staff notes, PL - 14 the Subdivision/Partition Ordinance adopted in 1981 required: 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 subdivision or partition in accordance with the requirements and procedures established by this ordinance. The Dependent Resurvey was not applied for or approved in accordance with the requirements and procedures established by PL -14, and thus did not conform to all "subdivision or partition requirements, if any, in effect on the date the lot or parcel was created". (Bold in original) The applicant argues that the four parcels were subsequently left as 10 "remainder" parcels as the result of subdivision of the Widgi Creek Resort community. However, since the four "parcels" are not Lots of Record, the Hearings Officer found that later subdivision of adjacent land does not leave "remainder" lots from the "parcels". The Hearings Officer concluded: ...the applicant has not met its burden of demonstrating the prerequisite to lot of record status: conformance with all zoning and subdivision and partitioning requirements had been met given that the County had such provisions in effect at the time of the BLM dependent survey, the survey did not conform to those requirements, and at least one of the parcels may be below the minimum lot size at the time. Staff notes that since the Hearing's Officer decision, the applicant and staff have aareed that the applicant's analysis (if confirmed by the Board) would result in 11, not 10, Lots of Record. An area in the south east of BLM Parcel C was previously overlooked. Staff also notes that the original staff report and Hearinas Office's decision misidentified the historic zoning of the property as FU -3. Staff believes this is the correct chronoloay: January 12. 1984 — Date of BLM Dependent Resurvey Property is zoned Forest Use (F2) and some Surface Mine Reserve (SMR) February 29, 1984- Property is wholly zoned F2 under ordinance 84-016. Minimum lot size is 40 acres in this zone. October 9, 1984 — Date of BLM patent convening Parcels A, B. C, and D Parcels A and B are less than 40 acres. To the extent the Board finds that the zonina of the property at the time of parcel creation is a relevant consideration, a finding that the Dependent Resurvey created the lot(s), rather than the Patent. will result in a different zonina analysis. II. KEY BOARD DECISION POINTS 1) Lawfully Established Unit of Land State statute recognizes "lawfully established unit of land" rather than lot of record [See ORS 92.010 (3)(a)]. Staff presumes that lot of record is generally an elaboration and further restriction of the State's lawfully established unit of land, but this is not explicit in local code. It is unclear if the history of the subject property would recommend a finding that the property contains the proposed 11 lawfully established units of land. It is also unclear if this answer would be different from the result of the lot of record analysis. This issue was raised before the Hearings Officer, was not determinatively resolved, and is likely to be of interest to LUBA if the Board's decision is appealed. Staff anticipates the Board will receive briefings on this issue and may want to make findings on this question. 2) Lot of Record The Hearings Officer relied heavily in on a prior Hearing Officer's decision (Thompson) in findings that a federal conveyance did not create a County lot of record, as described above. Since the hearing, staff has taken notice of and included in the record several historic lot of record cases that may influence the Board's thinking about this matter. In Pine Forest the Hearing Officer revisits Thompson and reaches a different conclusion based on a difference on the facts of the respective cases. Staff recommends the Board receive testimony on the salient difference between these cases. In an older Board decision, O'Neill, the Board recognized one lot from a federal conveyance but not multiple contiguous lots described in the federal conveyance. It appears to staff that any finding that the BLM conveyance resulted in the creation of lot(s) of record will rely in part on federal preemption of state and/or local regulations, potentially under the Federal Land Policy and Management Act of 1976 (FLPMA). Staff recommends the Board request additional testimony on any pertinent federal case law on this question. Staff understands the applicant to argue that the 11 proposed lots of record result from modern subdivisions splitting the four BLM parcels into discontiguous remainders [See "Lot of Record" definition, section (A)(5)]. Because the Hearings Officer denied the four BLM parcels lot of record status, no detailed analysis of the effect of subsequent subdivisions was provided. If the Board finds on appeal that the BLM conveyance created lot(s) of record, the effect of subsequent subdivisions will need to be reviewed. In particular, subsequent subdivisions describe the subject golf course area as "not in plat" or do not describe the golf course at all. Regarding the subsequent subdivisions creating discontiguous remainders, the Hearings Officer notes: It is not clear how the Golf Village subdivision could create lots that explicitly are marked. "Not In Plat". Subdivision lots are created by inclusion in a plat. The plat does not label them as "lots" or "parcels" and shows their "boundaries" only by dashed section lines. There appears to be no reference to the BLM parcels on the plat. See DCC 18.04.030 B. 2 (section or township lines do not create lot of record.) It is at least as likely that this means that listing these as one "not in plat" area effectively consolidated those lawful parcels into one. See e.g. Weyerhauser Real Estate Dev Co v Polk County, LUBA No. 2011-022 (2011) Staff recommends the Board receive additional testimony on this issue. 3) Effect of Prior Decisions The applicant's notice of appeal inquires about the effect of prior lot of record determinations on the subject property. On quick search, staff has identified the following decisions as making lot of record findings on portions of the subject property: Pool/Fairway subdivisions (14-391-TP/14-395-TP), Golf Restrooms (SP -97-52), Clubhouse Expansion (Sp -96-72), Maintenance Building/Expansions (SP-09-15,SP-96- 5, SP -05-34), Lot of Record findings (LR -05-48, LR -03-26), Entrance Sign (LM -05-110) Most of these prior decisions were not included in the record before the Hearings Officer. Staff recommends the Board receive additional testimony on this issue. Attachments: 1. Hearing Officer's decision 2. Notice of Intent to Appeal Record Materials available at P:\CDD\Kine Lot Of Record Appeal\Record HEARING PROCEDURE The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. e The hearing will be conducted in the following order. 1. Staff will provide a brief report. 2. The applicant will present its testimony and evidence. 3. Opponents and proponents will testify and present evidence. 4. Other interested persons will then present testimony or evidence. 5. The applicant presents rebuttal testimony. 6. Staff will be afforded an opportunity to make any closing comments. 2 Staff Report Background Proposal HO Decision Analysis and Issues Alternative Courses Action Questions Background — Widgi Creek 1983: Widgi Creek created as a 237 -acre expansion to Seventh Mountain Resort Land Conveyed by BLM to Seventh Mountain Sales Corporation in 1984 by patent identifying Parcels A, B, C, D, as shown in a "survey of the said land". TOWNSHIP IS SOUTH, RANGE II EAST, OF THE WILLAMETTE MERIDIAN, OREGON. DEPENDENT RESURVEY, SUBDIVISION OF SECTIONS 22 AND 23, AND SURVEY 10841. 0 P041.16.„ 4A A I•ocA, A, 5 Ar a A A 361 .5 01, ,16111' •.• • .1 10814 8 PAACEL 6 I f/ou di 1 0.=01, 469525.5, :353, Ai 3 59,1'N AP 44 9 5 ,Lik, Iint? If API -i4N" .'" A / i 088, 05, '4 (.? " 4, Sen tec. 20 Background — Widgi Creek SHEET 2 Or 6406.1 0 . 11001C 11.1 0011.0.1 11 1410 60601k61,1 •0101111 11. 1664 atrtc•If tnrfer,3, 1,0 zPVc. 1.5 and 1.1.[ V.,3 lait "Seventh Mountain Golf Village" platted on this land in 1990 Elkai subdivisions follow later. TOWNSHIP IS SOUTH, RANGE II EAST, OF THE WILLAMETTE MERIDIAN, OREGON, DEPENDENT RESURVEY, SUBDIVISION OF SECTIONS 22 AND 23, AND SURVEY (AM, 4 f ARISE, P rFAAA Ar t er, s5en ?ea < r 24840 8 PAoCEI, E s.00 aN rs it I,r St 5 601 11 ....a S999 .sx „e6. 23 I. AO 0 At 11 11 1,11.10 n )eU' t At 19 SHEET 2 OP Ir. Ar 24.1 .w u 6'9 042 4900 1 670 80SI 200 3 I. KO:2GL 2 AtUu ^ J t • , e6 64, ie a.i2'1GE 4.49 4P6 sP A•.3 v2•six. iia 1,4 o•a4a a re vla>sa'w 9.07'+e�c 1(F 77 76 4N1 Y.. ttaYt: 3* 9'F'rtt n' 04 0,7 liT[rIW 39616M.:f 1.410 tn(A)L,!vl KO. earc,,603 I. 64 1&.1 and t/t e1.let �La: ,tr. I11.5 .1eeJ, •539+1 Background — Widgi Creek "Seventh Mountain Golf Village" plat shows golf course areas as "not in plat". • What is the legal status of the golf course area? e Is the golf course comprised of one lot or many legal lots? • Applicant argues there are io (ii). • Hearings Officer: "The applicant has not met its burden of establishing that the area at issue constitutes a lot of record, or multiple lots of record as defined by the Deschutes County Code." N TOWNSHIP 18 SOUTH, RANGE 11 EAST, OF THE WILLAMETTE MERIDIAN, OREGON. DEPENDENT RESURVEY, SUBDIVISION OF SEGTION$ 22 AND 23, AND SURVEY SA0LL 4; 2402k, P .144 sr Ai SfUin 3E4 AP aia 4+41r.'>t Ai Al 0401E 9 VAHCEL F Ai at, el I Aic A2 2 144.323, fi, IPA Ai 3 3 593442i 405 +P o Sec. 15 , 4.114 /err ue3 ia Sec 23 SHEET 2 Of 1ApiC C FenLC( L I A'C v99'LJt 2C."/ 1.A 640 e ..1(,.l AP 14410 U V700(EL 3 ON iC FPJ usaa.V. esti aSiltatika e.JS' S55 any e.OF �9 iP6 ..Ji 50eC5 t Ary Al ti 44, ilaS 4..3 Apia ir it 4442 At 5 Y 559 WO O'Pt N xr to 6 y1Je11"'x 50] .P:6 1R API/ 7 033E 0111'x.. 1)alk!ttvPR'S1[n, P '1 ATSAIC0 913.1. N LAID InitAlt nilyl (04 xter-.:l.la 54 0004 a'JSnat� e .�.3 +.r56 enc.. Sl.c .ryai r.m+ll. 1.73., anti .r ,S.t:> .4 St..v 3,e4”. I9 SsiIr Background — Lawfully established unit of land ORS 92.oio (3) (a) "Lawfully established unit of land" means: • (A) A lot or parcel created pursuant to ORS 92.010 to 92.192; or ® (B) Another unit of land created: • (i) In compliance with all applicable planning, zoning and subdivision or partition ordinances and regulations; or • (ii) By deed or land sales contract, if there were no applicable planning, zoning or subdivision or partition ordinances or regulations. • (b) "Lawfully established unit of land" does not mean a unit of land created solely to establish a separate tax account. Background — Lawfully established unit of land ORS 92.017 When lawfully created lot or parcel remains discrete lot or parcel. ® A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law. • "Once a lot always a lot" unless formally eliminated by an "overwriting" plat or formal consolidation approval. Background — Lawfully established unit of land Question #i: Does the 1984 BLM conveyance and subsequent County annrovals create one or many "Lawfully established unit(s) of land"? • Created pursuant to ORS 92.010 to 92.192; or • Federal Preemption from applicable planning, zoning and subdivision or partition ordinances and regulations in 1984. Hearing Officer: Maybe Background — Lot of Record "Lot of Record" - County restriction limiting development to certain lawfully established unit(s) of land. Background — Lot of Record ® Question #2: Does the 198a BLM conveyance create one or many "Lot(s) of Record"? Created pursuant to Lot of Record definition; or Federal Preemption from Lot of Record definition. Background — Lot of Record 6 A "two-pronged" test. • 1) "Lot of Record" means: ® A. A lot or parcel at least 5,000 square feet in area and at least 5o feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means:... HO: PL -14 was in effect in 1984 requiring County application for division of land. No such application was made. • Zoning F2 in 1984 (F3 wrong in decision). 4o -Acre Minimum (Parcels A and B smaller). However, entire conveyance over 40. 6 Federal Preemption or denial required Background — Lot of Record . By partitioning land as defined in ORS 92; • No argument that a partition occurred. 2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County Surveyor and recorded with the Deschutes County Clerk; • HO: 1984 BLM survey is an ORS 92 subdivision plat, but was not filed. Has since been recorded. Background — Lot of Record 3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parcel, and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description, only one lot of record shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat; ® HO: BLM patent (vs. survey) would make one lot under this provision. (Multiple descriptions) (Ok if a "recorded subdivision" is found to exist) Background — Lot of Record e 4. By a town plat filed with the Deschutes County Clerk and recorded in the Deschutes County Record of Plats; or No argument that a town plat was filed. 5. By the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot or parcel. Applicant argues that plats filed after the BLM survey/patent split the 4 BLM parcels into 10 (11) remainders. HO did not review this analysis in detail. Background — Lot of Record • Prior Approvals • Question #2: What effect do prior approvals recognizing areas within Widgi as Lot(s) record have? Pool/Fairway (14-391-TP/14-395-TP), Golf Restrooms (SP -97-52), Clubhouse Expansion (Sp -96-72), Maintenance Building/Expansions (SP-o9-15,SP-96-5, SP -o5-34), Lot of Record findings (LR -o5-48, LR - o3 -26), Entrance Sign (LM -o5 -no) ALTERNATIVE COURSES OF BOARD ACTION • After conducting the public hearing and receiving testimony, the Board's options include the following: • Continue the public hearing to a date and time certain: — To the next BOCC hearing/meeting date or a subsequent BOCC hearing/meeting date. -= - ALTERNATIVE COURSES OF BOARD ACTION • Close the oral record and keep the written record open to a date and time certain. • Close the public hearing (oral and written records), and begin deliberations Subject: Name Address Phone #s BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK ,L) 22 Oa- C 1,, ( Date: -T � Army 01.0 '.s -o Al u) frauai fifes ©a V>i'AA A r) IZ ci-7-76"7 Sys- (Q17—/G6/9 + E-mail address ,Aru2. y C i n i-' ( AAA 1 E Gzvvi In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed No BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: i t t ,t,b I c(. (.Kre 1 Date: 1- • Name L i 2 00-1 C.-,av- u� 1k 40PXS Address 0,0 ?D'oa-d Cl a -C1 �- 1 �71Z-. vs r Phone #s E-mail address tit i�C-Lt 0�-1 In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Subject: Name Address BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK ).)1 Z4-' mi Ck'g . 1 "t G cLek ►., flifz eQw 'l( 5� . I t7?0? Phone #s V (5^10) "3 / ? -/ o E-mail address 144 r'- @d-44c;s Z,eA s eu . c o cy-, In Favor Date: Opposed No 45-7/ Neutral/Undecided [Opposed Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. No LIZ FANCHEI2, ATTORNEY Liz Fancher Sue Stinson, Paralegal April 5, 2017 BOARD OF COUNTY COMMISSIONERS DESCHUTES COUNTY PO BOX 6005 BEND, OR 97708-6005 Re: Appeal of File No. 247-16-000408-LR/247-17-000027-A Applicant/Appellant: Larry Kine I am writing on behalf of Belveron Real Estate Partners, LLC ("Belveron"). Belveron owns property at 17705 Vandevert Road, Bend, Oregon that it purchased from the USA in 2008. Its property is zoned F-2 and it exceeds the minimum lot size of the F-2 zone. It asks that the County Board make a decision in the Kine appeal that will not preclude it from developing its property. Specifically, Belveron asks that the Board follow the reasoning of Hearings Officer Ken Helm in the Pine Forest decision (247 -15 -000464 -CU). Mr. Helm held that a lot lawfully created by the federal government is a legal lot of record if it meets one of the five conditions set out in the lot of record definition. In that case, the parcel was created by a quitclaim deed from the federal government. BACKGROUND All land in Deschutes County was created, at one point in time, by a land conveyance from the federal government. Prior to 2008, the County recognized federal patents granted after the adoption of the County's partition ordinance in 1977 as creating lots of record. This practice allowed for federal lands to be transferred to governmental entities and to private property owners. In 2008, the Thompson decision was issued by Hearings Officer Ken Helm. Based on that decision, County staff adopted the position that lots created by federal patent or deed after 1977 were not lots of record because they did not receive County land use approval prior to their transfer to a private party. By and large, after 2008, the county staff has refused to allow any development or division of lands conveyed by the federal government.' Mr. ' The County has, however, approved a partition of land for the City of Sisters of property the county found was not a legal lot of record because it was conveyed by a federal patent. 644 NW BROADWAY STREET • BEND, OREGON • 97701 PHONE: 541-385-3067 • FAX: 541-385-3076 - 2 - April 5, 2017 Helm's Pine Forest decision, however, made it clear that this was not the meaning of his Thompson decision when he found that a federal quitclaim deed creates a parcel that qualifies as a "lot of record." PUBLIC NEED FOR FEDERAL LAND CONVEYANCES Many public projects on land conveyed by the federal government by patent or deed after 1977 would not have been allowed to occur if the County had interpreted the term "lot of record" to exclude parcels created by federal patents. A list of these properties and their current development status is attached. The list includes the following projects that were made possible by federal land conveyances: 1. Sisters High School and Middle School 2. La Pine Public Schools 3. Ponderosa Elementary School (Bend) 4. Future school site in Redmond 5. Bend Pine Nursery Park 6. City of LaPine sewage treatment facilities 7. City of Bend sewage treatment facilities 8. City of Sisters sewage treatment facilities 9. Oregon Water Wonderland sewage treatment facilities 10. Sunriver Environmental LLC sewage treatment facilities 11. Sisters -Camp Sherman fire training facilities 12. City of LaPine library and park 13. City of Redmond's Juniper Golf Course 14. Juniper Ridge Development Area 15. Deschutes County's Newberry Neighborhood 16. Midstate Electric power substation 17. Rodeo Grounds for La Pine LEGAL ANALYSIS All County hearings officers who have considered the issue of whether federal patents or deeds create lots of record have determined that the creation of parcels by the federal government by deed is lawful. In 1992, the Board of Commissioners determined that lots created by federal patents (deeds) would be recognized as legal lots of record as "[t]o fail to recognize such land units would impede the federal government in its ability to dispose of its public lands, and the county in all likelihood be found to be preempted if it were to require the federal government to sever its lands from the public lands by going through the county land division process." O'Neill/LR-92-47. The county's subdivision laws do not apply to the federal government by virtue of various provisions of the US Constitution and constitutional law, including: a. The intergovernmental immunity doctrine first enunciated in McCulloch v. Maryland, 17 US 316 (1819) which, as relevant here, prevents states from - 3 - April 5, 2017 regulating the functions of the federal government. The right to transfer and regulate its property is a basic right of the federal government. b. Article VI, Clause 2 of the US Constitution (Supremacy Clause) states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The federal government has acted to dictate the manner in which federal lands will be severed from the public domain so its law, rather than local land division law, controls. c. Article I of the U.S. Constitution that states: "Congress shall have power... to make all laws which shall be necessary and proper for carrying into execution the ... powers vested by this Constitution in the government of the United States." The power to control federal lands is granted to the federal government by Section 3, Clause 2 of the Constitution. d. Section 3, Clause 2 of the US Constitution states: "The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State." This clause, commonly known as the Property or Territorial Clause, grants Congress the constitutional authority for the management and control of all territories or other property owned by the United States. The federal government has adopted laws, referred to as "FLPMA," to regulate land sales and transfers. 43 USC 1701-1784. The law prescribes patents or other documents of conveyance (deeds) as the method of conveyance of federal lands to private parties. 43 USC 1718. The processes outlined in FLPMA require 60 days prior notice to local governments so they can "change or amend existing zoning or other regulations concerning the use of such lands prior to such conveyance." 43 USC 1720. It prohibits the federal government from including provisions in conveyances that would constitute a violation of State or local land use laws. 43 USC 1718. FLPMA does not, however, require that the federal government obtain State subdivision approval before it conveys land from the public domain. In fact, FLPMA specifically provides that certain lands may be conveyed without a survey, an integral part of a local subdivision process, unless the survey is paid for by the state or local government. Given this scheme of regulation, the County's hearings officers and staff have, since Thompson, consistently found that a federal patent deed or quitclaim deed legally creates a new parcel. The public domain is, in many cases, a vast area of land that spans many counties and states. It cannot, as a practical matter, be partitioned by an ORS Chapter 92 partition plat as it would be impossible to survey and map the location of the parent parcel and to obtain approval of the division from every county and state where federal lands are located. Additionally, the federal system of surveying is, according to BLM managers who met - 4 - April 5, 2017 with County officials and Belveron's attorney to discuss the impacts of the Thompson decision, incompatible with Oregon's system of surveying and platting land divisions. Furthermore, the Oregon partition process would result in State regulation of lands retained in federal ownership because it would require the platting of lands retained by the federal government contrary to the doctrine of intergovernmental immunity. In essence, the State of Oregon has no right to require the federal government to create parcels of its retained land in order to create new parcels for sale to private parties. Federal regulations for lands received in an exchange of land with a private party, say the "use or development" of the land is subject to local land use regulation. 36 CFR Section 254.3(h). This means that the County may impose development restrictions to uses but it does not authorize the County to treat the federal conveyance as an unlawful means of creating new units of land from the federal domain. The County's hearings officer in Kine correctly determined that the conveyance of land to Seventh Mountain Sales Corporation in 1984 was lawful and that the property may be used and conveyed. He held, however, that to qualify for development the property must be a "lot of record" as defined by DCC 18.04.030, Lot of Record. That law provides: Lot of Record" means: A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means: Response: Both the entire area conveyed by the 1984 deed and each parcel described on the deed is at least 5,000 square feet in area and at least 50 feet wide. It was not subject to local zoning, subdivision or partition requirements when it was created. After it was created, its use was controlled by local land use laws. The County may reasonably find that its laws were not "in effect" for federal lands on the date the parcels were created as its law has no effect on federal lands until the land has been transferred to private ownership. 1. By partitioning land as defined in ORS 92; 2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County Surveyor and recorded with the Deschutes County Clerk; 3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parcel, and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description, only one lot of record shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat; 4. By a town plat filed with the Deschutes County Clerk and recorded in the Deschutes County Record of Plats; or — 5 — Aril 5, 2017 5. By the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot or parcel. Response: Typically, federal conveyances occur by patent or quitclaim deed. As a result, most conveyances will qualify for development as a "lot of record" because they were conveyed by a deed. This was the case in the Pine Forest decision by Hearings Officer Helm in 2015 (Case 247 -15 -000464 -CU). There, a quitclaim deed was found to fit "at least one of the County's lot of record criteria." In this case, the applicant is claiming that a subdivision plat created four lots and that these lots are lots of record because they are remainder lots. The four lots meet the definition of a lot of record because the federal plat meets the definition of a subdivision plat as the term is defined by ORS Chapter 92 and the plat has, since the hearings officer's decision, been recorded with the Deschutes County Clerk. We also believe that federal conveyances of land create "lawfully established units of land" as the term is defined by ORS 92.010(3)(a). This definition, however, is only relevant in a future County review of a property line adjustment application. This is the case because the term is limited in application by ORS 92.010 to ORS 92.010 to 92.192 and is only applicable to property line and lot legalization applications under Title 17. It has no bearing on the County's determination whether lots are lots of record eligible for development under Title 18. CONCLUSION Belveron asks that you apply the same analysis applied by Hearings Officer Ken Helm in the 2015 Pine Forest decision and find that deeds and patents from the federal government create lots of record of the land conveyed. Mr. Helm's Pine Forest decision correctly reiterates his determination in Thompson that the creation of parcels by patents or deeds by federal government is lawful and clarifies that it does not prevent a property from qualifying as a lot of record if created in one of the ways enumerated in the County's lot of record ordinance. Since J Liz Fancher Cc: W Groves client file Belveron List of Former Federal Lands Case 247-16-000408-LR/247-17-000027-A nonnn ti 0 0 °•+, 0 (1 CD CD Cd Cd a a puag 3o' iD LaPine Special Sewer District C7 t7n>7dMI tdH-3(i) c4C7 C7 C7 C7O''J, cl n• ,i• 5 a a cn n i n VI K c -- a�'- w. 4 r ` 5. o, 0 .4. 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