2017-730-Minutes for Meeting September 20,2017 Recorded 10/20/2017Recorded in Deschutes County
Nancy Blankenship, County Clerk
Commissioners' Journal
CJ2017-730
10/20/2017 9:47:04 AM
2017-730iiinumiiuiiuiinu
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, September 20, 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; Erik Kropp, Deputy County Administrator; David
Doyle, County Counsel; and Sharon Ross, Board Executive Secretary. One representative of the
media was in attendance.
CALL TO ORDER: Chair Baney called the meeting to order at 10:00 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: None was offered.
CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent
Agenda.
DEBONE: Move approval, minus Item 1 as pulled for discussion
HENDERSON: Second.
Minutes of Board of Commissioners' Business Meeting September 20, 2017
Page 1 of 5
VOTE: DEBONE: Yes.
HENDERSON: Yes.
BANEY: Chair votes yes. Motion Carried
Consent Agenda Items:
Consideration of Board Signature of Order No. 2017-031, Appointing County Residents
to Two Pools from Which the County Clerk Will Select Members of the Board of
Property Tax Appeals
2. Consideration of Signature of Document No. 2017-623, State of Oregon Department of
Corrections IGA for Measure 57 Grant
ACTION ITEMS
Consent Agenda Item 1 as pulled for discussion. Consideration of Board Signature of Order
No. 2017-031, Appointing County Residents to Two Pools from Which the County Clerk
Will Select Members of the Board of Property Tax Appeals
Nancy Blankenship, County Clerk presented this item for consideration. Prior to October
15th every year, the Board of County Commissioners is to appoint members to the Board
of Property Tax Appeals pools for the upcoming session.
HENDERSON: Move approval
DEBONE: Second
VOTE: HENDERSON: Yes
DEBONE: Yes
BANEY: Chair votes yes. Motion Carried
3. PUBLIC HEARING: Lot of Record Amendment
Peter Gutowsky, Planning Manager, summarized the opening statement. The purpose of
the public hearing is to consider text amendments relating to Deschutes County's lot of
record definition and process. The Commissioners did not declare any conflicts and upon
hearing no challenges, Chair Baney opened the public hearing.
Minutes of Board of Commissioners' Business Meeting September 20, 2017
Page 2 of 5
Mr. Gutowsky explained Deschutes County is no longer using the term "lot of record"
but instead is using "verifying a unit of land," or simply "unit of land." Mr. Gutowsky
reviewed the staff report. Minor revisions are recommended for condominium plats, lot
line adjustments, definitions, and findings.
Written public comment has been received and submitted for the record. On August 24,
the Planning Commission held a public hearing and recommended approval subject to
revisions.
Adam Smith, Assistant Legal Counsel and Nick Lelack, Community Development
Department Director were also present to address any other concerns. An early version
of the text amendment was also sent out to several members of the community to allow
for input on the language.
Chair Baney inquired on if there was any public comment.
Liz Fancher' representing Belveron Real Estate Partners, LLC, approached the Board
with a concern and hopes that her comments during the public hearing of the Planning
Commission could be included in today's record for consideration. Peter Gutowsky,
Planning Manager, responded her testimony was made verbally and was recognized in
the Planning Commissions minutes that have been approved and are a part of the case
file. Ms. Fancher noted her clients interest is they own 180 acres of property created by
the federal government if this ordinance is changed they can proceed with the full parcel
as a legal lot of record. Ms. Fancher supports the adoption of the amendments.
William Kuhn, lives on Sizemore Road in the heart of the Tumalo winter deer range and
wonders what the rush is. He recalled in the years 2000 and 2002 and then in 2003, the
concept of lot line adjustments was brought up by his wife and himself. He doesn't
understand why this would be declared an emergency. Mr. Kuhn is in favor of this
change as he would like to see clear laws. He spoke on Equifax and confidential records
and people at risk. Mr. Kuhn appreciates good government but wonders why this is
being rushed. The other reason why he is here because his property has a legitimate lot
line of record and that can't be said for everybody. Mr. Kuhn appreciates the map was
finally recorded. Mr. Kuhn thanked Mr. Anderson for his work on the matter.
Tyler Neese, on behalf of the Central Oregon Association of Realtors, thanked the Board
on their efforts on this issue. The current system is cumbersome for realtors and property
owners. He noted the draft language is clear.
Commissioner Henderson noted his dislike of the term of "unit of land" and inquired on
the opinion of the realtor community. Mr. Reese commented it doesn't necessary have to
do with the terminology but it matters if the process and education is clear.
Minutes of Board of Commissioners' Business Meeting September 20, 2017
Page 3 of 5
Carol MacBeth, testified on behalf of Central Oregon Landwatch. Her concern is the
amendments go way beyond clarification and no one has talked on behalf of individuals
but instead only for large land owners. This is an unforeseen consequence. Ms. MacBeth
commented it is against policy to do developments that aren't in the comprehensive plan
and the amendments don't talk about zones. Ms. MacBeth presented written comment at
today's meeting.
Commissioner DeBone inquired if she is supportive. Ms. MacBeth noted they are
supportive of the clarification but not the expansion.
Dan Mahoney, approached the Board to express his support in moving ahead. He
commented on his application in the past and it surprised him of the outcome where so
many people were affected by that decision. Mr. Mahoney thinks the clarifications are
workable.
Chair Baney closed the oral portion of the hearing. The written record will be open until
noon on Friday, September 22. Deliberations will be scheduled Monday, September 25.
Commissioner Baney explained the terminology and process of Ordinances declared by
emergency. Commissioner DeBone noted his support of keeping the written record to
Friday at noon. Commissioner Henderson doesn't feel he will have enough time by
Monday to review.
Peter Gutowsky, Planning Manager, feels the department has done a great job with public
outreach. The number of properties that could be affected is impossible to predict.
Adam Smith, Assistant Legal Counsel reviewed the text amendment revisions and the
alignment with state statutes. Additional draft findings could be proposed by Mr. Smith
and Mr. Gutowsky to provide clarification.
At this time, Chair Baney closed the oral portion of the hearing. The written record will
remain open until noon on Friday, September 22 and will table the discussion until the
Business Meeting at 10:00 a.m. on Monday, September 25.
OTHER ITEMS: None were offered.
Minutes of Board of Commissioners' Business Meeting September 20, 2017
Page 4 of 5
1 e 9_
Being no further items to come before the Board, the meeting was adjourned at 11:53 a.m.
DATED this—
Day of 2017 for the Deschutes
W --mi
County Board of Comssioners.
Tammy Baney, Chair
Anthony DeBone, Vice Chair
Aeeording
Philip G�H., e raso ,cCo,
mmissioner
ecry
Minutes of Board of Commissioners' Business Meeting September 20, 2017
Page 5 of 5
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, SEPTEMBER 20, 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 Order 2017-031, Appointing County Residents to
Two Pools from Which the County Clerk Will Select Members of the Board of Property
Tax Appeals.
2. Consideration of Signature of Document No. 2017-623, State of Oregon Department of
Corrections IGA for Measure 57 Grant
Board of Commissioners Business Meeting Agenda Wednesday, September 20, 2017 Page 1
of 2
ACTION ITEMS
3. PUBLIC HEARING: Lot of Record Amendment - Peter Gutowsky, Planning Manager
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.
F_1 oil 101110 i•
To watch this meeting on line, go to: www.deschutes.org/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.
®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.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.orq/meetingcalendar
(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, September 20, 2017 Page 2
of 2
Deschutes County Board of Commissioners
1300 NW Wall 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 September 20, 2017
DATE: September 15, 2017
FROM: Peter Gutowsky, Community Development, 541-385-1709
TITLE OF AGENDA ITEM:
PUBLIC HEARING: Lot of Record Amendment
PUBLIC HEARING ON THIS DATE?: Yes
ATTENDANCE: Peter Gutowsky, AICP< Planning Manager
SUMMARY: The Board is conducting a public hearing on September 20 to consider text
amendments relating to Deschutes County's lot of record definition and process.
RECOMMENDATION & ACTION REQUESTED:
Hold the public hearing.
Motion 1) First and second reading by Title only of Ordinance No. 2017-015 and declaring an
emergency
Motion 2) Adopt Ordinance No. 2017-015
MEMORANDUM
TO: Deschutes County Board of County Commissioners
FROM: Peter Gutowsky, AICP, Planning Manager
DATE: September 15, 2017
SUBJECT: Lot of Record Text Amendments / Hearing
The Board of County Commissioners (Board) is conducting a public hearing on September 20, 2017 to
consider text amendments relating to Deschutes County's lot of record definition and process. The
amendments were provided to the Board during their September 13 work session.'
I. MINOR REVISIONS
Staff is recommending minor revisions to the amendments for the Board's consideration as described
below:
• Condominium plats. The definition of unit of land is refined to acknowledge individual units as
shown on a condominium plat, Deschutes County Code (DCC) 18.04.030; 22.04.040(B)(2)(a); and
22.04.040(C)(3) (Attachments A and B).
• Lot Line Adjustments. Lot line adjustment terminology is refined for Verified Units of Land, DCC
22.04.040(C)(1) and Permit Limitations, DCC 22.04.040(F) (Attachment B).
• Other Edits. The potential adoption date of September 20, 2017 is added to the definition of
the determination of lawful -creation, DCC 22.04.020 and Exceptions, DCC 22.04.040(B)(2)(e). A
reference relating to a single lot partition plat, DCC 22.04.040(E)(2) is also provided. It cites DCC
17.22.010, Approval of Tentative Plans for Partitions, for Permit Limitations (Attachment B).
• Updated findings. Findings reflect the process to date (Attachment C).
II. WRITTEN TESTIMONY
Since the Planning Commission held their public hearing on August 24, staff has received one written
correspondence (Attachment D).
1 https://descliutescountyor.igm2.com/Citizens/FileOpen.aspx?Type=l&ID=1700&Inline=True
Quality Steiwices lltei"ft')Ym ed upith Pride
Attachments
A. Revisions to Exhibit A, DCC 18.04.030, Definitions
B. Revisions to Exhibit B, DCC Chapter 22.04
C. Revisions to Exhibit J, Findings
D. Tunno testimony
-2-
Attachment A
Chapter 18.04. TITLE, PURPOSE AND DEFINITIONS
18.04.030. Definitions.
"Lot" means a unit of land as defined hi DCC 1 8.04.030 and 22.04.02{).-ereate r
bared: If a code provision that uses the term "lot" re wires distingpishing hoar a unit of land was
_........ _._...._..........._......1._............._..._........_................................____..._..__._..__.._.._......._..____.._.........._..__...___.._._......._..........__.._......_........................ �,..............._.
created, "lot" in that corate'xt mcaiis a unit of land created by a subdivision of land. t.Ise of the term
"lot" in an v code provision ;hall not. be inter areted as re . rtirin a determination that the unit of land
______..._._._._.......__....__....._..... _._..__....___.._.._...__.__...._.__....... _.... _._.._..._... _......__....._1...... ........_. __._.._ ........__�1_____._____.__......_.._._____.................�....._...._........_...._.....__...._.._....._...____.___......___.......
was lawfully created.
ttl ,..e. „(.` .,. I4 ... pafeel
`�f �cwnc.9 a(i e 1'
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iti3 ill l x {3i3 H3���i
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l........---By...p-aftitionin ,v-1 ancl...a.s..4efi red -in - G.-
-in-
-in C11 - 2 I+lc cl ovitls-tl c .....1 ;ehratc -(= r=ear rtv..._Sur"v vor-_revel
3..,......_-By4ced...r}r...contraet..._ dated ....arrei_-s.i.geed.....i,r..._thrw....Par-tier;..... to tlr.e....t�strr aw€i�r�;....cr�s�tairri+rg ]a-sel�atx�te
i- rstrrcti'iera$ ztw 3 c'e
tega deer i4 , only onsr t recx l�a&+ee
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c ovd-(A rt;Y Ear
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r=te&
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laareel...area.tech...by.-an-intervening section
-;__x�--lot--or--laar�wel-a:+erateci--Irk__ara--aarar-sar°�lc�l--srakadiv-i�ioar;-aasalr�s*;--the--lcat--4r---Para-cel-=r�za�eo+r-�-��cl
4, by the4ife losu e-€-441-secrrr:i i�atere t:
'or- €lae�rrr>l�oses...o{:..3C—=i[le 1 "1€�t"...f>r tareel rnaas—a 1st#= rccrel s €letiraecl.._.:
X3-0-:
"l-ot of record dwellimg- means a (lwellirrg api)roved pursuant to OIZS 215.705.
"Parcel" means a unit of land as defined ,in DCC _18.04.030 anc122 :t) ,{)2t)W-t rc atecl h - to partit-ionirag
of--Iand-. If a code provision that uses the term "parcel" requires distinf�nuishin� how a emit of land
wytl . c-resiteclmm"} err c c l'" itl_;t:hat cmTtext_i�re rr7s_l tt3tit, ttf ltzitc� _ r ,ated by part�itionigo (if' land. tine of the
term ;`1�4arc c l'_ n__Glit�..._cod�....hroviSron ~hall not _(�c ,,_i_ntc i l?rc tc d a� rc dct�,rin�,. q _deteriiiiiratr_c�r�.._thtat the
un it of land was lawfuliv created.
Page 1 of 2- EXHIBIT A TO ORDINANCE NO. 2017-015
it n
"Unit of land" means contiguous and discrete ]and sin{,char], described b y a leiral instrument such
...............................................................................-.........................................................................................................................................µ...................................................................................................................................................................
as .a.._deec%.._Iai d sale contract, partition, or_su Edi vision.- ,��.._lc legal instrument conveys..m_rflti.ple
units of land shall not b��reted as vacating those property lines betw�ee;n the multiple units of
land unless abidino with ..al?plicable_..law regttl,a ting_....ljrc>.1je1- �,�..._line._._vac;ation at the mmt;ime of the
c,onveti,an e. _The following sliall not be relied on as _desq ibing c)r crc <tttFI.g__mttltiPle, units land:
taxi lot erwise for the convenience of the
assessor interveniti f section {>r townsl�i. lines: intervenin T ri�„)hts «f ��ay. roads or streets: surveys:.
__...__...._.._s......._____. ._____ __�____....__........._..__-_....._..... m.....__..._..1?. _____..._.-_......_........_..._._.__.___..._.g_....._.,_.._............_....w_........._...._._.._._.....__ .___._...._. __..._..._..._........_......�..........
individual units as shown on_.. i cond )miniutla....plat=:...or .unrecorded subdivisions, .__The terms "unit of
land." "lot." and "parcel" shall have the sank n�carzin s utrless the code rovision in �wl��ich dre tcrr�n
is c1sed rec uires distin >uishin , how a unit of land was created. Use of the terms "unit of land"
.............1....-...........................................................................................................................................................................................................................................................................................................................................................................................
versus "lot" versus "`harcel'�xis code _Provision shall not be interpreted asrequiring, a
determination that the unit of" land was lawfully created.
( 7-:.., Ord. 2016-026§ 1, 2016; Ord. 2016-015§ 1, 2016; Ord. 2015-004 § 1,
2015; Ord. 2014-009 §1, 2014; Ord. 2013-008 §1, 2013; Ord. 2012-007 §l, 2012; Ord. 2012-004
§ 1, 2012; Ord. 2011-009 § 1, 2011; Ord. 2010-022 § 1, 2010; Ord. 2010-018 3, 2010, Ord. 2008-
007 § 1, 2008; Ord. 2008-015 § 1, 2008; Ord. 2007-005 § 1, 2007; Ord. 2007- 020 § 1, 2007; Ord.
2007-019 §1, 2007; Ord. 2006-008 §1, 2006; Ord. 2005-041 §1, 2005; Ord. Chapter 18.04 35 (
04/2015) 2004-024 §1, 2004; Ord. 2004-001 §1, 2004; Ord. 2003-028 §1, 2003; Ord. 2001-048
§1, 2001; Ord. 2001-044 §2, 2001; Ord. 2001-037 §1, 2001; Ord. 2001-033 §2, 2001; Ord. 97-
078 §5, 1997; Ord. 97-017 §1, 1997; Ord. 97-003 §1, 1997; Ord. 96-082 §1, 1996; Ord. 96-003
§2, 1996; Ord. 95-077 §2, 1995; Ord. 95-075 § 1, 1975; Ord. 95-007 § 1, 1995; Ord. 95-001 § 1,
1995; Ord. 94-053 §1, 1994; Ord. 94-041 §§2 and 3, 1994; Ord. 94-038 §3, 1994; Ord. 94-008
§§1, 2, 3, 4, 5, 6, 7 and 8, 1994; Ord. 94-001 §§1, 2, and 3, 1994; Ord. 93-043 §§1, lA and 113,
1993; Ord. 93- 038 §1, 1993; Ord. 93-005 §§1 and 2, 1993; Ord. 93-002 §§1, 2 and 3, 1993; Ord.
92-066 § 1, 1992; Ord. 92-065 §§ 1 and 2, 1992; Ord. 92-034 § 1, 1992; Ord. 92-025 § 1, 1992;
Ord. 92-004 1 and 2, 1992; Ord. 91-03 8 § §3 and 4, 1991; Ord. 91-020 § 1, 1991; Ord. 91-005 § 1,
1991; Ord. 91-002 §11, 1991; Ord. 90-014 §2, 1990; Ord. 89-009 §2, 1989; Ord. 89-004 §1,
1989; Ord. 88- 050 §3, 1988; Ord. 88-030 §3, 1988; Ord. 88-009 §1, 1988; Ord. 87-015 §1, 1987;
Ord. 86-056 2, 1986; Ord. 86-054 §1, 1986; Ord. 86-032 §1, 1986; Ord. 86-018 §1, 1986; Ord.
85-002 §2, 1985; Ord. 84-023 § 1, 1984; Ord. 83-037 §2, 1983; Ord. 83-033 § 1, 1983; Ord. 82-
013 §1, 1982)
Page 2 of 2- EXHIBIT A TO ORDINANCE NO. 2017-015
Attachment B
Chapter 22.04. INTRODUCTION AND DEFINITIONS
22.04.010. Introduction and Application.
22.04.020. Definitions
22.04.030. Repealed.
22.04.040. .- ELf _Units of Land.
22.04.010. Introduction and Application.
A. DCC Title 22 is enacted to provide a uniform procedure for the grant or denial and processing
of applications, approvals and determinations by the Planning Division of the Deschutes
County Community Development Department under the applicable County comprehensive
plan, land use regulations, subdivision and partition ordinance, and other ordinances which by
their terms incorporate by reference the procedures in this title. DCC Title 22 shall be known
as the Deschutes County Development Procedures Ordinance.
B ,. xo hi.:as <a< dre sed in '22,04,040, „Tthe provisions of DCC Title 22 do not apply to the
issuance, suspension, or revocation of any on-site sewage disposal, :straic tur<�albuik[h
.
electricala....._m,ecl 'ac;
,n a,1, or plumbing permits except as they relate to Planning Division
consideration of permitted uses.
C. Notwithstanding DCC 22.04.010(A), inside acknowledged urban growth boundaries and where
authorized by an intergovernmental agreement, the functions of the county Planning Director
and county Hearings Bodies identified herein may be exercised by their counterparts in the
respective cities in accordance with the respective intergovernmental agreements.
(C)rd....201_7_-015.5.,__2.01.7; Ord. 99-031 §1, 1999; Ord. 98-068 §1, 1998; Ord. 98-042 §1, 1998; Ord.
90-007 §1, 1990)
22.04.020. Definitions.
The following definitions apply to DCC Title 22.
eter lli€ia-tt on o L awful-Creatsc)al m aan., sa formal dec:isfcan issued h%, di£, Co1u it�i ,or :l lair€, itl__ t
1 lard use action l�alcrt..t � `� .:i t�l��l> a.._�f? f1._I.. plc t"nili��,rt.�= 11-1at <�.._t�llii €f 1 ���{1.met die �� �.l�pli ably;
"lot ofrecord" definit.i€.itl,
ol" in aii a �,tnrt„cel bite€1a d fill; d ail LK �_.__1_� t 4,0 0 an ! `�_. C)4,0,2ft. __ :i, Cone C rovi;,ion 1.1� a
uses til{ term 1€it r olldres disail7 misliif(? [)ow ca unit of kind -�1,,is o r I,tCd It 31. ill iflat_cETI, tem
rlla ti w.E tell_t,t t ................... {i ..atccf l a.<ai..afll ..i;r....
'ball. not he intr rix,et=ed as re luirilw a d t;riaainatioti thatilie uiii-t. €r1;_l�md �,vas kmf€i11v cr ted,
f of €>a l{,€or £iwt,,Ilim” : ala0"lr', �l._dw," 11ar 1> <Ihl.>al« €1 trtir.slln-lt_t£� (�l�`121 j . �:1.�"..:.
I$ it l j.
In Ins �i unit of _l,�ai_icl :bh...£ clr�le € i�� 1 (:�_ . 18,011,030 andcl t? �.(1 Vii_ l%i code llrc�v 2st'�n That
use's tale 1crili -parcel" reoldres { g tiil{�ilisiliala�.„.,Ilo r....unit of land...�,`as created .-parcel” Ill dint:
..._ _.. ....... ....... w, .... ......
Context llllo; ans I linitof., 4ind ct`eat rf bv_I' ittr_tioniil,�€�f, land, tJse o the to i3?_._.1? ucel > in am Code
l rovisjo: rn shat! not be interpr tc;C1,,,, as requiring, <a �tf tQ 1;llitl�atioli th(at....4.�11� iaat,it or land was, .._.la fully
£ t'eFdteL
...................................
t alit: of 1<rtld iiicans cont s>,� ous and discictc Leann �,in atilzarl�._d .ti'b d b .a JeL tl.._instrit a_i_cia sucl:r.
. .
i lat `1.i is rli at c�ai voys„i ulfli alt
,IS �L,`# . € atl{1. `��7.1£, Co€,{liltl�iG,t 7ral"t;lt.i€ail f 1 `sii1.3€ ii t�4{sill ,>r, i[ lil`i 111111£,Il.__ ... .. .1....._....
units of_lail sh'il1_i,ot be interiv It cl_a ._4.1 atin [Imsa_.l roper; kiies bet,,eeil (lieitrtilt,iple units of
lsl£I r_a€ rt1 .... ipp i�,abl lra�� i� {>utalrtiz�>:...._C i�at �it�o Jill�,..._vac at tar; pit „tit tlia�� gat ...:C11k
Page 1 of 3- EXHIBIT E TO ORDINANCE NO. 2017-015
Wll e�_<lrt e .......�I he ic:rll£�'i�, irl t shall lac, relied oil is desc ilsi,at-Y or cre aflrw,_riitiltilrlt tiiiit., € t lurid:
.. ...... ..... ........ ...-. .... ...........
'uix lot C a�it�<l�€£�itrs due 'to all - ss'£ `�'sor0s roll cliarwvc� or otli£,i \. iw for theo di
d t}3s € rii .iii _
tigStsSOi iirtCdC4rrrrif (LtiE)i:r or township lilies, ir:rtLi%eriira€? ii'Ir £,f i s@y tt�a tai 5ti �t iiiL tie.
_. .... ......
ttclrr idll al iiirliS aS �lr£ ilii oil a c,olld£laaiiiliriit) okl o itr;ric,c o rded si bd' � is'o s, The torms tiriit. of
land", and fsauri e l" slmdl have the same i��€� lliriv unless tile cocle orcwisioll iia% ilich the lerril
is used rd:cltair�� dist.iai-ttiShif) �,iic�a,. a tii,l i cit l<raid was created. t se cel the terms unit of Eand'.'
Versus..... loo "....,,Versil ..... parcel ..irr ..gall Code lirrt)visid>aa... shall,.....:not be interpreted......_<Is requiiiila.._£I
d Pt r rllriiCatiori that the unit; of land \, as (£r � t;,r,ll� created.
(Ord. 2017-015§5, 2017; Ord 96-071 § IA, 1996; Ord. 95-045 § 1, 1995; Ord. 90-007 § 1, 1990)
„0 0e i ,�i it£ts off -mud,
A , �'rar°nosscope......._t Concurrent ent �z:ill� or.'.a�ii£ai t<?..th <a,f�lwov al,_o cert aiir l�t�rllllts units of fated shall
lx- �t,ri_ led l�iurs�fialli�_tCi t.l€i ,,Gt@f�sti _ 'Y'.04,040 ToE��cf�z€J(i��17(\- ellsure i ciiti) i ii?Ci With the 1�CiPpFitp3
_ ..€:livision laws r lti c;;t oil t(Vic'. date: the unit ...t::)f land __was created _Not all
........................ i tttr,i,� is £rtrir°r
aarrcl t ail€, _.
y,�Jticafl rr_,_ If' _ra ifil_irecl verif;rc tiioll is a, threshold l issue addressed betbr tie. �r_rilit__jp,,.j b
tr.fshsicpa€tl, (l '9 e,r,tficat,iclr does I -lot `sill)t rS Iiu Or ar_iill,if� Other 17€ rlilaC,i_�£t�larm reit rat,..__I lrts d�c_tion
'2..S. J,940 pro i_ es tlad= ol)tic>rr.._t€i c£}ia�airi€�irtl� ve ik �a unit of landas lialJt of� .vlbrra�r....10 land
tied
,!pits, or to iil f€ id ,piplv icii_<_a_declaratory ruling,
I- 1'tiritrt lZ ami iml ve it attic)ii
1 <.......tjnlc:ss an =' ,ti al1af1les pursilani tC:sub ectinn (13)f') below, verifying t tillit o lan_
...... ... :........ .._.
)rtl t <aiit f4.i....itl_3s + i_r€, :$ s1 i1I_be, required Inioi tc}11_tCe i'"ilaitc €sf rlar, lcsllmy,iiicr peI'�t .i.t..
ts
__. __. _.
�r�Aiiv lean tiifE)rattrtltr)fltinci iiitlid 1:.Aclusitr F<rasrr_ s`_c)iCc>.t1:7t..a i11ltter
.......... £sic >t::_l, mac, Zone �:'._l ,l MCC C it<lt)i,C � ............................... d=>i)a....:1 Forest `s:t...l j ,e Zo i ...1a % (I C's,
I> , IN.Il r,t;tt for1._<a unit of, land titc,ludilm �� t I i cis a shot %rt £iii tear Stat.a:�� idte._:�� ell'ands,,
...
c �_.Airy mr-i_idi_i.'Or a unit ofland Meat to w1ldlif�_habitat special tssessiiicrrr_i
c1. �. land use �)f .aa:tit relocating..l. rol- i.t_t�, linc,,..:that reduces in size sa. unit £)'.kind. 41nd
..... ...
£ A laii£Lsi �rtitci gri1dtlitttiiit, r £l "il S(xvcaF+ di t
xlsaSl m .. .... ,,,,,, .. i ., ... . ..... 1 l
11.1
psiilitt;._ill' the Ernie. {) ,l<and i.>„`n-la:ller thlin The lii4a_t,inillia,f,xird 1__.emlired ill tie apl)lt�, blc
�crrar°.
........................
L._ ttat'i? °`cir_far<lt£)ii,_I<ilI i1_i;}t; 1}d rk_Irira€,£ i#"sr €)f'tlic #-£)l€>� _itttttcftc ia>
a. file olein of hind was created b a Subdivision Oat:,lsartit�ican plat_ct�ndoininium plat term
jt:� Pl ltat <i 3tc.dyi d by th .,i. omaty, �her�her politic a:lSubdivision,,.�)f til `_�tatts� t)f"�3i�,w?i,)11.
1'....... 1 l...'1.. ..,.. ....... _ . _.
or tla<a State of"Ore t,"olt;
h_ The unit. €s,l__ and was Yw viousk, validated bv the (if_sptnd an aoolical-,& wartition plat
.;,i"as sl�requerrt:l-,rccorcied wtliad s wrequired �)WS.9'6(4)0 ..- .
G ill€. inert Cif i ,ird revi usly received it I et,ermin at,Ii2ii,t➢f f. a 1t11 t. it <atr€)ri,
_ 1—_-.._.........,...............,_,.� .�.._.� .u.�,_,..._.�
__.tl_. Theliilit, d).t. land was _I)reviotl,'._l"Y_._verified pur.swint to ` libseutioll,(,C_) siand cY finding ova s
iySa�c tl t€> 11.1 It a f fC C -t iii.,_tl 1 midi ti action eta .fit f l ar<at,�)i i,. £,rilirar or
......
For 1wriltits listed in subsection _03.)f _'_i(_c) onk,", .the unit,€st irlc...1weiou—I received�....ri
_
------
hand use �)i,builsliir?;,,,.11 rifri,€;,._�#ri€}i.__t.°' �cI�tt.iiiPtt�_L..._20 °01, a structural ixermit citt:t:°.r'
Sd.p ipl7c i 10 01 / or a l)0rl-C MC rl11. I'C'v (M Sit£ ,e acid dispo a l 6I iiit_f.t.
... _ ....... ....
C Verified Units of, _i. Land, t. r�r rt .,.111,1: t C yluir v�c r,tfie l;l'o shall alI ollIN; be i v:l.led _tis u rats €�tI ild
Created d ti one ofthe Follov irt!,_vvar s:
IThe unit of, lltai ��Ii1-v d talri h €unt of and"Dratrthe £cltans
..<.... ...:....................................... ......... ....
esttablisshed in CfIZS 9".01 f1:
The ...unit of land %ms b to ated bv..af..lot liras adjus iliac ilt_ralrl�r£)�-ccl 1)� t3rr` County d) Jcirrv> st, tJrr
1)iCee€iiil.: nit.of Ltrt€i cttr,,,I,rfrc_£i....16i taar..��cQtO taa`l....a_csSirls�r,vtitair,..f.l��{�.1....4.)r bt)r,a,(l
liarve been ve if el -I mir.,suant to this subsection
5.,..,. 1 h liit of land v s cratecls �remainder iesultii�frorn i subdivision (tp ri;i)rrlat.
_d._.?__l_, ,
ci7r"Sc €)iliirrrFiila,??lrat townplat" or aliooother lawful division trl_adi ac en! ili tiili,i_tiiailC`itacs land,
Page 2 of 3- EXHIBIT E TO ORDINANCE NO. 2017-015
4,.. la�;.._t nit c)#.'_l<and was 3 ej-e ate by the Linite Slaw.,
of' C '�ft��eric,�Y�I.1.q�c-ior to t; � �ursi�aw t4�..._3.
to the.€ uirel it o ne or the owner's >Y't>ti S52 Si iFS..tt €,, :>3,. €��t
(lig ti��tt f)i� —_
u`� lit#£l was createx] I;)-1 o i�'sultirm trcmn Ii condemnation action, ct threat of
.... ... ......
con lei' n i€ion . or .anv other iledicali€�ti..._o 1rt# ;it{ land for _ia I�iit�isc use it' the _at>Iili£ ble
cis c °iaiiic Iita,1
-en iti fa £,a.pted ifa; ,_c £ tii<iliop,
D I i_tt£lijnf,s:_D lartMOr J�Uliti," ....It is applicant aa� iies foci .a lriii��..Usk, 1 n—l-tt listed tri 'SubsceLio>ta
(13) 1) that, i quires public nolic tla�....c county Shall..:i.t#<Incl€�__on o>f�..tliivc hi.i£f€#i�3S_iat tli�',...land itsc,
action- a i#i cf �i t,ify i# ...t1 <zr file_i�iai � tri#ac �i .�tte in �_��rmflt #ii£_c,.._�� #tl�_..at�t�'lica le
ri#y##1#g, and land division evs �l4sit subsection ( . a ndit£icting that the tait of Iritd
....c#_
.__..._n.._ido not olli lv - iti7tscolion ( ti tn i-tat`€ii€cation wasa....,_,
because the unit. of (crit€t £Iii lifi €1 I'm-all e xc,�I�+Don f�ititsu"i.iit to ,it(�yi i tt£.}ta.{.lt�l2)� Wall applicant
.
ialmlies 'eisheac€ifit listed ill stasc a�i,itf�lt <# iitb it ccc�t r£f4e€ itztyi......
itilim ui-siccant t{a E)C(.. � 11�alat�_i, 21,40 n applicant may also iccaicsi a dec;l�ai�ttor
...... ...... ... ....... .. .
11,1'St€at1t.0 ) C, ClIEtpICr 2, 0 t?i tildT.1.�-�..Ei?�_t#I�2 c)� a_liei alit _If the u,i�tiil la aici'w I CrenIe ;tt
i ;)Ilal)ll alic e v itli applic halt, zond't�}._.�(nd land clivi jotaxi law-, 13t1,rsu acct to sub, € £,{i£'�i#.....( ,). the
... ........ ..
(.,ouUtvdi all issue thedecl a? )E_!)r tt#liil=b' de c;i`Ii1liltia< That ,tel£', _unit €�I£�<1!E€ otlalifies t€)# all
-_ _ .._ ..
aeramts listed itsubsection (13(1 fI dGrh of land doenot conipl with subsection (ithe
...;.t.. .
Coulliv, shall tt£�i._issue._th �1ecl arat€;i.�'...,rulit#€�,.and instead �iatlll..l)i£��,tcl� t i � applicant ii#fo iiicaicm
..
(w_ 1Bcti#tit ,canttata€aa,i _-If a land use action includes , f itidimt:._cle,iet_.�tii#iitss_t,(iciil iaziit >i_1°ii#c� oio(,s
not corn}:%l, with t'bs(,i`�; on (C) 4tnl�'_d tb� _1t��4lia ._1 permits ii a fit' Issued:
.. ....... ... ... ..... ...........
_......... I A l�ermiY £°lit"i[&C#<PI;iI��?�_C €}nin—lc?ice €,it l_%iis"'s abll t mi the ubie � uni o land,,
)emit aitl#ilixdit#£, a ii#= a lot: <iititi£iit ,)lat t€� wilidate tl#a uni€ tot land 3tirsuimt. €t# ORS
1 -._. ' :..rl. _ _l _._
t_ _...
9 1.'76 .lta£f...,I.. milt$ 1)(."'C' ...: 1 "122,101,fl(l:�,t..:th t�ai�3." (. ,
1 , killtl iitic- :ie ai'illt. 1}€ail€'n )e blit rail€2,/o on-site s�l�i<.tg Clio")€°goal `,stent ._Y£�ililitcitic)�\ lw
_.._,__—___ 1 _ _.._.. ..�. __ — .... _...... . _
lot- illo contiiaucd usQ of a Structure ju=catcd oil tiro #iiit cif lGtiacl l?iii 4lEtailt tca �l '� ld,: 1 ){..I.).
........ ....... ....
(Y
€iy c tltci L'ii#s#t that reliitiis khc unit of hind to l configuration t.liiat heti( ud-,s re cived <a
-------
t)(.,.termination of l avd'ul��C i ation, cit was ta:viously verified pursuant to subsection (C)
....... ... ..... ... ..... ........ ... ....... ..... .....
and a,_lii'£fiil<o tura t.`:7ytit €I o that 1 t t,d#a.._a brad u £.,,.action o _dcc laraltit ittlttltf.,
. ...... .... .
F, t,a Line i4diustmen- ..__.� l l ..� _ .._..,-_ _ t _ .. _. _......
It#ii£f _tt}lt t is f tills a s I )l,r l al, 11—lav(i iiatt'I IFIL t£)£ as_ a i ,atti# a_tic w unit Oland for b)tiit)tses
of this_Section '10"040, _1 lir
,_€,-1.,v1he unit of� land cleated the llot..(t#i� F,diu.*1,nl,�,i##_r�lav
lc_ � t#Ito€f__i4'£ tiiil ( iir �mm}ait6i s>ubs(cl�ton (C),
Page 3 of 3- EXHIBIT E TO ORDINANCE NO. 2017-015
Attachment C
FINDINGS
I. APPLICABLE CRITERIA:
Title 22, Deschutes County Development Procedures Ordinance
II. BASIC FINDINGS:
Proposal: The definition of "lot of record" is being amended. The purpose of the
amendment is concurrent with or prior to the approval of certain permits, units of
land shall be verified pursuant to Deschutes County Code Title 22 to reasonably
ensure compliance with the zoning and land division laws in effect on the date
the unit of land was created. Not all permits require verification. If required,
verification is a threshold issue addressed before the permit may be approved,
but does not supersede or nullify other permit requirements. Code provisions
provide an applicant the option to concurrently verify a unit of land as part of
applying for land use permits, or to instead apply for a declaratory ruling.
III. CONCLUSIONARY FINDINGS:
A. CHAPTER 22.12, LEGISLATIVE PROCEDURES
1. Section 22.12.010.
Hearing Required
FINDING: The applicant meets this criterion because a public hearing will be held
before the Planning Commission on August 24, 2017.
2. Section 22.12.020 Notice
Notice
A. Published Notice
1. Notice of a legislative change shall be published in a
newspaper of general circulation in the county at least 10 days
prior to each public hearing.
2. The notice shall state the time and place of the hearing and
contain a statement describing the general subject matter of the
ordinance under consideration.
FINDING: This criterion is met because notice was published in the Bend Bulletin
newspaper on July 30, 2017 describing the proposal.
B. Posted Notice. Notice shall be posted at the discretion of the
Planning Director and where necessary to comply with ORS
203.045.
FINDING: This criterion is met because notice was posted in the bulletin board in the
lobby of the Deschutes County Community Development Department, 117 NW
Lafayette, Bend.
PAGE 1 OF 4 — EXHIBIT J TO ORDINANCE 2017-015
C. Individual notice. Individual notice to property owners, as
defined in DCC 22.08.010(A), shall be provided at the discretion
of the Planning Director, except as required by ORS 215.503.
FINDING: Given the proposed amendment in question does not apply to any specific
property, no individual notices were sent. This criterion has been met.
D. Media notice. Copies of the notice of hearing shall be
transmitted to other newspapers published in Deschutes County.
FINDING: Notice will be provided to the County public information official for wider
media distribution. This criterion has been met.
3. Section 22.12.030 Initiation of Legislative Changes.
A legislative change may be initiated by application of individuals
upon payment of required fees as well as by the Board of County
Commissioners.
FINDING: The application was initiated by the Deschutes County Planning Division,
which received a fee waiver. This criterion has been met.
4. Section 22.12.040. Hearings Body
A. The following shall serve as hearings or review body for
legislative changes in this order.
1. The Planning Commission.
2. The Board of County Commissioners.
FINDING: The Planning Commission initially held a public hearing on August 24, 2017,
followed by the Board of County Commissioners' public hearing on September 20, 2017.
This criterion is met.
B. Any legislative change initiated by the Board of County
Commissioners shall be reviewed by the Planning Commission
prior to action being taken by the Board of Commissioners.
FINDING: The Planning Commission held a public hearing on August 24, 2017. The
Board of County Commission held a hearing on September 20. This criterion is met
5. Section 22.12.050 Final Decision
All legislative changes shall be adopted by ordinance
FINDING: 247 -17 -000596 -TA will be implemented by an ordinance upon approval and
adoption by the Board; this criterion will be met.
IV. PROPOSED TEXT AMENDMENTS:
PAGE 2 OF 4 - EXHIBIT J TO ORDINANCE 2017-015
The proposed text amendment is detailed in the Ordinance 2017-015, Exhibits A through
I, with additional text identified by underline and deleted text by stFikethro gh
V. REVIEW CRITERIA:
FINDING: The definition of "lot of record" is being amended. The purpose of the
amendment is concurrent with or prior to the approval of certain permits, units of land
shall be verified pursuant to Deschutes County Code Title 22 to reasonably ensure
compliance with the zoning and land division laws in effect on the date the unit of land
was created. Not all permits require verification. If required, verification is a threshold
issue addressed before the permit may be approved, but does not supersede or nullify
other permit requirements. Code provisions provide an applicant the option to
concurrently verify a unit of land as part of applying for land use permits, or to instead
apply for a declaratory ruling.
Statewide Planning Goals
FINDING: Only two Statewide Planning Goals apply to this amendment, Goals 1 and 2,
which are discussed below.
Goal 1, Citizen Involvement is met through this adoption process because this
amendment received a work session before the County Planning Commission,
the County's citizen review board for land use matters, and a hearing before the
Board.
Goal 2, Land Use Planning is met because ORS 197.610 allows local
governments to initiate post acknowledgments amendments. An Oregon Land
Conservation and Development Department 35 -day notice was initiated on June
21, 2017.
Comprehensive Plan
The text amendment is consistent with Deschutes County Comprehensive Plan. Section
1.3, Land Use Planning states:
Goal 1 - Maintain an open and public land use process in which decisions are
based on the objective evaluation of facts.
• Policy 1.33 - Involve the public when amending County Code
FINDING: This goal and policy is met because this amendment received a public
hearing with the Planning Commission, the County's citizen review board for land use
matters, and a hearing before the Board. As noted above, the purpose of the
amendment is concurrent with or prior to the approval of certain permits, units of land
shall be verified pursuant to Deschutes County Code Title 22 to reasonably ensure
compliance with the zoning and land division laws in effect on the date the unit of land
was created. Not all permits require verification. If required, verification is a threshold
issue addressed before the permit may be approved, but does not supersede or nullify
other permit requirements. Code provisions provide an applicant the option to
PAGE 3 OF 4 - EXHIBIT J TO ORDINANCE 2017-015
concurrently verify a unit of land as part of applying for land use permits, or to instead
apply for a declaratory ruling.
PAGE 4 OF 4 — EXHIBIT J TO ORDINANCE 2017-015
Attachment D
From: Nick Lelack
To: Peter Gutowsky
Subject: FW: Unit of Land/Lot of Record Amendments
Date: Thursday, September 14, 2017 1:15:36 PM
Attachments: CCF09142.017.pdf
CCF09142Q_:L QQQI_pdf
C FO 142017 0002. df
Nick Lelack, AICP, Director
Deschutes County Community Development Department
117 NW Lafayette, Ave. I P.O. Box 6005 1 Bend, Oregon 97708-6005
Tel: (541) 385-1708 1 Mobile: (541) 639-5585
From: Susan Tunno [mailto:susantunno@gmail.com]
Sent: Thursday, September 14, 2017 12:11 PM
To: Nick Lelack <Nick.Lelack@deschutes.org>
Subject: Unit of Land/Lot of Record Amendments
Director Lelack.
To confirm— testimony, comments and draft proposal language
submissions on this matter
will be taken until the 20th.
I am not satisfied with the language of DCC22.04 040 (C) and studied
ODOT web site and have concluded
the language proposed for our code does not serve the purposes of our
charge— i.e. to establish protocols for qualifying and determining legal
units of land. Part of that process involves researching the creation of the
land unit which involves discovering what has occurred in the past.
I have attached here 3 of the documents lifted from ODOT web site which
illuminate understanding of key word terms which concerned me during
deliberations: Remainder, Condemnation, Taking, Eminent Domain.
Studying these documents provides a clear understanding of what these
word terms mean. They are in summary the required terminology used by
Appraisers for completing a Before and After Appraisal form (RPT.4). The
meaning of these word terms serves only the process by which ODOT
Appraisers must use to calculate monetary compensation.
These terms do no apply to real estate law language. They do not apply
to Deschutes County Development Code language. And they do not serve
the intent of section (C) for verifying units of land.
It is important that our Code reflect the proper respect and
understanding of the rights of the State of Oregon in properties which
border adjacent to ODOT roads : both rights in title and rights of way.
Also, the use of the word Deed is inadequate in the text. The
terminology should utilize the terms Rights in Title expressed in the
documents of Conveyance pertaining to land ownership.
The entire Grimstead issue derives from, I presume, his only proof of
ownership and his assumption of the right to do something on the land
derived from an estoppel deed. And his Estoppel Deed must not have
conveyed the right he needed to do what he wanted to do. Estoppel
Deeds are instruments created for specific purposes served by a specific or
exclusive expression of a 'right in title'. They do not convey the entire
'bundle of rights'.
The goal is ofcourse to not confuse the public and not accidentally include
lingo or colloquial expressions or terminology for the code language we
need.
What I learned from studying the ODOT documents attached has resulted
in my reading of (C) nononsensical.
A Condemnation action does not create a unit of land. A City my use
Condemnation , their right of Condemnation, to destroy a building in the
name of the public health and safety of a toxic structure. The land is not
condemned, only the 'improvement'.
Similarly, ODOT only engages the Condemnation protocols when they have
determined that they need to destroy an Access to their Highway because
it possess an eminent threat to the health and safety of the public.
The use of Condemnation by ODOT is fairly rare, the vast majority of their
work is conducted by right of Eminent Domain.
Again, since this entire matter is triggered by the State of Oregon, it
seems remiss not to mention Oregon in this section of the code.
It is a player in the landscape of units of land and their creation and
alteration.
The term Remainder. The term lot of remainder is not legal to real
estate law language and not defined in our code. As the documents reveal,
it is an appraisers terminology just to describe the 'after' of the unit of
land. They have a definition of terms section to define its meaning for their
purposes. If you want to use it in our code then, since you are ascribing a
determined meaning for that word as a "term" for our purposes and it
therefor must appear in Definitions 22.04.020.
Regards
Susan Tunno
Land Use Specialist
Real Estate Broker
Cell --- 541-815-2426
Realty Pros LLC
1544 SW Obsidian Ave.
Redmond, Oregon 97759
susan innjQ�gnail.com
Licensed in the state of Oregon
Selling Sisters Country Realty since 1999
Guide to Appraising Rea/ Property
V `; tion Eminent Domain Appraising and Access
By law all access rights to a state highway are under Oregon Department of
Transportation's regulatory authority. Access to the highway has no inherent value
outside the scope of Oregon Department of Transportation's regulatory authority if
reasonable access exists. For eminent domain appraisal purposes "reasonable access" is
defined as any access that allows some remaining economic use of the property. This does
not necessarily mean that the "remaining economic use" equals the. existing use or the
existing Highest and Best Use. (Right of Way Manual 4.480, Access Considerations) When
access rights are acquired by Oregon Department of Transportation under eminent domain
for the purpose of access control, any loss of value, that might occur due to the loss of
access is non -compensable as long as reasonable access, as defined, continues to exist.
Closure of accesses through Oregon Department of Transportation's administrative
permitting authority does not constitute the taking of access rights and is not handled
under eminent domain. Any related loss of value is non -compensable and is not a part of
the eminent domain appraisal process. In these situations the department may consider
an administrative remedy process as identified in OAR'734-051-0500 - 0530.
If the loss of access leaves the property with less than "reasonable access" (i.e. land -
locking the property), the loss of value which results is treated as compensable.
There are two additional instances where access loss by eminent domain acquisition is
treated as compensable. These are discussed below.
APPRAISING COMPENSABLE ACCESS RiGHTS
Loss or restriction of access through the acquisition of access rights under eminent
domain is compensable under three scenarios: (1) when the right of access is completely
removed and the property has no reasonable remaining access (land -locked); (2) when
existing access reservations are acquired by the department; (3) when existing grants of
access formerly issued for a property by the department are now acquired. In these
instances, the loss in value to the larger parcel is the measurement that is used for
valuing compensable access restriction damages. (Right of Way Manual 4.480)
This involves a Before and After analysis and should be reported on the Before and After
Appraisal form (RPT. 4). In limited cases, and only with prior concurrence from the Right
of Way Project Administration Unit Manager or the Appraisal Reviewer,. a Taking and
Damages Appraisal format (RPT. 3) may be used.
Value Finding Appraisals (RTP. 2) and. Administrative Determinations of Value (RPT. 1)
may be applicable in certain circumstances where it is obvious that no damages result
from the loss of the reservation or grant of access. Appraisal Review, concurrence is
Guide to Appraising Real Property
► Section 7: Eminent Domain Appraising and Access
Revision Date: January 2008
Page 1 of 5
8� Guide to Appraising Real Property
: i •+ Paragraph Explanations Reports 7-14
In Appraisal Reports 7 - 14, the first page of each report is considered to be a summary
page. The summary allows the reader to get the pertinent parts of the appraisal without
paging through the entire report. Paragraphs 1 - 8 in the boxes below all belong on the
summary page.. These address property location, ownership, type of taking,. access,
applicable land use regulations, highest and best use, utilities, and valuation conclusions.
Each one of these areas should be discussed fully within the body of the report. The
summary statement on page one generally is not accepted as having adequately addressed
the subject.
Throughout the report the appraiser should fill in the blank spaces with an appropriate
response; if something does not apply state why or state "N/A". In this way the reader
will know that the appraiser has considered the subject and not inadvertently overlooked
it. In some cases the reason a subject does not apply should be explained and
documented.
Guide to Appraising Real Property
► Section 2: Paragraph Explanations, Reports 7 to 14
Revision Date: January 2008
Page 1 of 39
File:
The ODOT file number identifies the property being appraised and it can be .found on the
Appraisal Specification form.
Address ft Location of Property:
Provide street addresses whenever possible. If there is no street address, use a landmark
method. e.g. "3rd house on right side of Pacific Highway W., traveling S. from Cipole
Road Interchange." Do not use rural mail route box numbers.
Legal Owner:
Provide the name(s) of the owners of record.
Address, Phone (Legal Owner):
Provide street address or mailing address, city and state, zip code, and telephone
number.
Contract Purchaser:
Provide name(s) on the contract. If there is none, state "NONE"
Address, Phone (Contract Purchaser):
Provide street address or mailing address, city and . state, zip code, and telephone
number.
Section, Highway, County:
These appear on the Appraisal Specifications form.
Eng. Sta.:
The Engineering Station number is to be taken from the right of way map. More than one
Engineer Station number isn't necessary except for widely separated parcels. -
Descript Dtd.:
This is the date of the property legal description that the appraisal is based upon. Be Sure
your appraisal is prepared using the most current legal description, because legal
descriptions can be modified during the course of a project. The Exhibit A, which is
always included in each appraisal report, provides the legal description. The date of the
Legal description always appears on this exhibit in the upper right hand corner next to the
initials of the person who prepared the description. NOTE: The Exhibit A must be part of
each appraisal report.
FAP #:
If this project has federal participation the federal aid project number (FAP #) must be
included on the report. The number will appear on the Appraisal Specifications form if it
is necessary.
Guide to Appraising Real Property
► Section 2: Paragraph Explanations, Reports 7 to 14
Revision Date: January 2008
Page 2 of 39
Appraiser:
Provide your full name here.
Tenant, Address, Phone:
Provide the name and mailing address, if different from that of subject property. (Do not
include tenants in apartment houses or mini -warehouses, but do include those in single
family dwellings as well as all other types of rental properties.) Supply telephone numbers
when possible.
Rent/Lease:
Indicate if the tenant is leasing or renting and ,the term of the rental agreement. (e.g.
Lease, 5 yr.; rent, month to month.)
Rate:
Identify the rental amount per month or year.
Recording Data:
If the lease is recorded provide the date, book and page number in this space. If possible,
obtain a copy of any unrecorded leases.
Partial Taking - Entire Taking:
A determination of whether the acquisition is of the entire property or only a portion of
the property requires the appraiser to know what makes up the "larger parcel". In
eminent domain the entire property under consideration is called the "larger parcel". The
three (3) tests for what constitutes the larger parcel are unity of title, contiguity and
unity of use. (See Right of Way Manual, chapter 4.320, for more details on determining
larger parcel). Consult with the Region Right of Way Project Manager if there is any
uncertainty as to the larger parcel.
Area of Entire Property:
On partial takings, Oregon Department of Transportation Right of Way maps identify the
area of the .remainder property exclusive of all fee parcels being acquired. The
remainder area does, however, include any permanent or temporary easement parcels
that are also being acquired. To determine the area of the entirety, add the area of the
remainder to the areas of all the identified fee parcels being appraised: The appraiser is
required to verify the area stated to be the entire property and document his or her
method of verification under Paragraph 17; however, the Exhibit A is the document which
describes the parcels) to be acquired by the State and the areas stated in the Exhibit A
are to be used in computing the value of the parts taken. IfAhe appraiser's findings do not
Guide to Appraising Real Property
► Section 2: Paragraph Explanations, Reports 7 to 14
Revision Date: January 2008
'Page 3 of 39
agree with the State's Exhibit A and/or Right of Way maps, a determination of the correct
area must be obtained from the Region Right of Way Project Manager. If the Exhibit A is
incorrect a revised description will be needed, which will. change the description date. In
all cases the appraiser is to estimate the fair market value of the part(s) taken as
described in the Exhibit A.
Area of the Remainder:
The remainder area is that portion of the larger parcel considered present after the
boll
project is completed. In Before Et After appraisals, the remainder area is used in the After
.qdsituation. As stated above, the remainder area includes the areas encumbered by
permanent or temporary easements along with the remaining unencumbered areas lying
outside of the Fee taken areas.
Area in Fee Taking:
List that portion of the taking which Oregon Department of Transportation is buying in fee
simple. If there are several parcels to be acquired, list each separately (e.g. P1, P2, etc).
Areas should be listed as they appear on the Exhibit A (i.e. if the Exhibit A shows the area
in square feet rather than acres, use square feet.)
Area in Permanent Easement:
List each parcel separately, showing its area and intended use as specified on the Exhibit
A, (e.g. P3 --1,250 s.f. -for Slopes).
Area in Temporary Easement:
List each parcel separately, showing its area and intended use as specified on the Exhibit
A.
Before Taking:
Indicate the nature, number and location of improved and/or previously reserved points
of access to the subject highway. Summarize only. The full discussion on access in the
Before situation should go in Paragraph 17.
Specify all other means of accessibility such as county .roads, city streets, etc. to the
highway system.
To Remainder:
The project may be the widening of a highway where there still remains direct, access to
IV the property. In this case, state that access is limited to a certain number of designated
points, and state their location using the engineering station numbers as identified in the
appraisal specifications form under Item (5) Access.
Guide to Appraising Real Property
Section 2: Paragraph Explanations, Reports 7 to 14
Revision Date: January 2008
Page 4 of 39
If direct access is completely eliminated and the property owner will use other roads to
gain access to his property, name or identify those other roads.
If the property is landlocked, indicate the situation and discuss it in the description of the
remainder.
Summarize only. The full discussion on access in the After situation should go in Paragraph
37.
Zoning:
Indicate the current zoning code for the subject property.
Comp Plan Designation:
Indicate the current comprehensive plan zoning designation for the property.
Uses Permitted:
Since zoning codes are not uniform throughout the State, indicate the general use for
which the land may be utilized (e.g. residential, commercial, industrial, etc.)
Present Use:
This is not necessarily the highest and best use, but is the actual use to which the
property is presently put. Indicate the use as residential, commercial, etc .-, or if
appropriate, a combination of uses.
Conflicts between present uses, zoning and comprehensive plan designations, chances for
variances, proposed zone changes, etc., are to be included within Paragraph 17 -Detailed
Description of the Property Before the Taking.
Entire Property:
The appraiser's opinion of the entire property's. Highest and Best use is to be summarized
here. The entire property in question is the Larger Parcel determination. Simplify by
using wording such as "residential". "commercial", etc. A full analysis of the Highest and
Best Use of the property is required within paragraph 17 of the appraisal.
Guide to Appraising Real Property
► Section -2: Paragraph Explanations, Reports T to 14
Revision Date: January 2008
Page 5 of 39
7rz
r"rf APPLICATION FOR INDENTURE OF ACCESS
Please read the attached instruction •sheet before completing this application.
Annlicant information
NAME OF PROPERTY OWNER
NAME OF OWNER'S COMPANY
PROPERTY OWNER'S MAILING ADDRESS (IF DIFFERENT THAN PROPERTY ADDRESS)
CITY, STATE, ZIP
NAME OF AGENT FOR PROPERTY OWNER (IF APPLICABLE)
NAME OF AGENT'S COMPANY
AGENT'S MAILING ADDRESS (IF APPLICABLE)
CITY, STATE, ZIP
Prnnarty to hp sprvad by this indpnture of access
STREET ADDRESS OR LOCATION
INTENDED LAND USE
CITY, STATE, ZIP
COUNTY
MAP AND TAX LOT NUMBERS
RESERVATION OF ACCESS TO BE CANCELLED (STATION AND MILE POINT)
LOCATION OF NEW ACCESS (STATION AND MILE POINT)
The applicant requests a change to a use restriction................................................................................. ❑ Yes ❑ No
IF YES, EXPLAIN
Applicant certiricatlon
The applicant declares, certifies, and affirms under penalty of applicable state and federal laws that the information.
provided on this application and attachments is to the best of his or her knowledge true and.complete. The applicant
agrees to pay the fee described above, and understands that the Oregon Department of Transportation is under no
obligation to relinquish access control
SIGNATURE OF PROPERTY OWNER DATE
X
OF APPLICANT (IF DIFFERENT THAN OWNER)
X
Required attachments
• . Copy of completed Application for State
Highway Approach (ODOT form 734-2680) with
tax lot map from the relevant county assessor's
office and any other required attachments
• Current preliminary title report (issued within the
past six months) and copy of vesting deed
• Deposit (see "Processing fee")
Processing fee
Cost incurred by the Department will be documented
and charged to the applicant.
• Indenture of Access -- $200.00
• Make check payable to Oregon Department of
Transportation
Annrnval
734-3792 (04/15) Page 1 of 3
6 9
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734-3792 (04/15) Page 1 of 3
APPLICATION FOR INDENTURE OF ACCESS
Instructions
Please read these instructions before completing the attached application.
An Indenture of Access moves or modifies existing access rights.
Property owners are advised to meet with Oregon Department of Transportation (ODOT) staff when considering an
Indenture of Access. ODOT welcomes the opportunity to answer questions about the application process. Authority for the
control of access to public highways is established in Oregon Revised Statutes, Chapter 374.
Before a Permit to .Construct an Approach or a Permit to Operate, Maintain and Use an Approach can be issued,
the abutting property must have access rights to the public highway.
An application for Indenture of Access must be fully completed and include the required attachments before ODOT can
begin processing the request. The application and attachments are submitted to ODOT's appropriate District Office.
Indenture of Access may be allowed if the applicant meets all the following criteria:
• The abutting property owner applies for the indenture as set forth in Oregon Administrative Rule (OAR) 734-051-
2030, applies for an approach, meets all the requirements for issuing the Construction Permit, and agrees in writing .
to meet all the conditions, if any, placed on the Permit to Construct an Approach and the Permit to Operate,
Maintain and Use an Approach, as set forth in OAR 734-051-1010 through 734- 051-5120, including closure of the
existing approach, if applicable;
• The Region Manager approves the indenture application; and
• If the indenture application is to increase the width of an existing reservation that is specified in the deed record or
to make other changes, the Department as a condition of approval may require combining the. property's existing
reservations of access.
A request to change specified use restrictions imposed on an existing reservation of access may be considered, provided
the owner complies with the provisions listed above and the request to indenture the use restriction does not result in an
expansion of the use. A grant of access and commensurate fair market value is required when a proposed change to. a
use restriction would result in an expansion of the use by adding more trips or different types of traffic to the highway. Any
request to remove farm crossing or farm access restrictions requires a grant of access and must be requested as set forth
in OAR 734-051-2020.
Application procedure for Indenture of Access
(a) An application for an indenture of access to a state highway shall be made on the standard state form, available
at all Department District offices, to the appropriate Region Manager through the appropriate District office.
(b) The processing fee must accompany the application, as set forth in OAR 734-051-2030(4)(x).
(c) The Department or the applicant may request a meeting to discuss the application process for an indenture of
access and/or any additional information required.
(d) The Department may refuse to accept an application when necessary information is missing; and
(e) Since an indenture of access relates to a property right, the Department may refuse to accept an application for
an indenture of access from anyone other than the owner(s) of the abutting property or their agent.
An application for an indenture of access. may not be accepted unless an Application for State Highway Approach and all
required documentation has been submitted to the Region Manager.
Required documentation:
734-3792 (04/15) Page 2 of 3
Applicants for an indenture of access must submit all the materials described in OAR 734-051-2030(4)(a) and OAR 734-
051-3030, and a current preliminary title report or a chain of title from when the state acquired the access rights from the
current owner, including copies of the vesting deeds. The Region Manager shall make the final decision on an application
for an indenture of access and shall notify the applicant.
Legislative background of access control
In 1949, legislation was passed to enable ODOT to modify rights of access. Oregon Revised Statutes specify among
other property. rights, the right of access can bepurchased or cor�,demned as deemed necessary for�the pafety_of the
w. . �
tri aveling„public Since the passage of this legi.slation, access rights have been commonly purchased, from abutting
properties when acquiring right of way for road improvement projects. This acquisition of access rights can usually be
found in the property's chain of title.
Historically, owners of property abutting public roadways have enjoyed a common law abutter's right of access to the
roadway.
Legislation passed in 1951 restricts the common law abutter's right of access by providing that no rights of access accrue
to real property abutting. completely new highway alignments constructed since May, 1951 (ORS 374.405).
The benefit of controlling access
ODOT has acquired the right of access to maintain or improve the safety and operation of state highways. The Oregon
Highway Plan (OHP) states that the implementation of access management strategies, which may include access control
along some highways, is essential to protect the safety, efficiency, and investment of the existing and planned state
highways. The plan recognizes that access management can bring about °a more steady traffic flow, which helps to
reduce congestion, fuel consumption, and air pollution". The OHP and OAR Chapter 734 Division 51 indicate where
access control may be an appropriate strategy to maintain the function of the highway.
734-3792 (04/15) Page 3 of 3
Access Rights. and HighwayApproach Permits
Why are access rights important?
A property owner needs two things in order to
have a legal right to drive a vehicle on to a
highway from property bordering the highway:
I. A special property right known as a right of
access (also called an access right); and
2. A highway approach permit or other written
permission from ODOT.
State law prevents ODOT from issuing a highway
approach permit if a property does not have an
access right. For a property owner to obtain a
highway approach permit the subject property
must have a right of access: Having a right of
access does not guarantee ODOT will be able to
approve an approach permit. The requested
highway approach has to meet the approach
permit standards in OAR 734-051.
It is important to know if a property has an access
right. If a property does not have an access right it
may complicate or delay the approach permit
application process. That is why ODOT begins
the approach permit application process by
researching highway right of way records to
determine the -access rights associated with the
property.
There are two kinds of access rights.
1. A common law right of access.
A common law right of access (also called an
abutter's right) is a specific kind of property right.
It allows owners of property bordering a highway
to drive a vehicle directly onto a highway from the
property. Most property bordering a highway in
Oregon has a common law right of access.
2. An -access right at a Reservation of
Access or a Grant of Access.
When a property borders a highway where the
state owns access control it may not have a
common law right of access. However, it may
have a right of access through a Reservation of
Access or a Grant of Access. These concepts are
explained below.
Access control.
Access control occurs on highways where ODOT
has acquired some or all of the highway access rights.
Important state laws about access control include:
• ORS 374.405 made it so property bordering
any part of a state highway constructed,
reconstructed or relocated on a new highway
right of way after May 12, 1951, does not have
a common law right of access.
ORS 374.407 allows ODOT to reserve access
rights for property bordering a highway
constructed on new right of way after May 12,
1951. It also requires ODOT to specify the
location, width and other conditions for using
the reserved access right.
• ORS 366.340 authorizes ODOT to acquire by
purchase, agreement, donation or eminent
domain some or all of the access rights to
bordering property when it is necessary for
construction and operation of public highways
and for public safety.
1. (Reservation of Access.
When ODOT acquires access rights it is generally
during construction, reconstruction or relocation
of a highway. The department can often reserve a
right of access for property bordering a highway to
preserve economic development value of the
property. A reserved access right is a specific
property right called a Reservation of Access.
If ODOT approves a Reservation of Access, it is
recorded in a property deed. The deed typically
describes a specific location, width and other
conditions for using the Reservation of Access.
2. Grant of Access.
On a highway where the state owns all of the
access rights, properties bordering the highway do
not have highway access rights. Owners of
property wanting to gain a right of access to the
highway may be able to do so by applying to
ODOT for a Grant of Access.
In order for ODOT to approve a Grant of Access
the owner has to demonstrate the new access will
benefit. the highway. ODOT may also be able to
approve a Grant of Access in a location where
access control is no longer needed.
If ODOT approves a Grant of Access, the owner will
need to buy the access rights from the state. State
law requires ODOT to sell access rights at fair
market value. ODOT will, arrange for an appraisal
to determine the market value of the property
with an access right and without an access right.
The property owner must initially deposit from
$2,000 to .$5,000 with ODOT to pay for
processing and appraisal costs. The cost varies
depending on the land use. A property with
highway access may be more valuable than a
property without it. The owner will need to pay
any additional amount equal to the increased value
of the property when it has a right of access.
A Grant of Access is a property right that is
recorded in a property deed. The deed describes a
specific location, width and other conditions for
using the Grant o f Access. The property owner is
responsible for recording the deed and for any
associated costs.
3. Indenture of Access.
-+6
When a property has a right of access through a
Reservation of Access, it does not give the property
owner the right to move or change the access
without permission from ODOT. The owner may
be able to relocate the access to a more desirable
location, widen it, change the use or make other
improvements by applying to ODOT for an
Indenture of Access.
If ODOT approves an Indenture of Access, it changes
the terms for using the access right. Because a
Reservation of Access is a property right, any changes
need to be recorded in a property deed. The
owner is responsible for recording the deed and
for any associated costs.
Continued on page 3.
Access Right Information.
ODOT recommends that property owners and
prospective buyers learn if the property has. an
access right if they intend to apply for a highway
approach permit.
It is not easy to know if a property has an access
right without asking ODOT to research highway
right of way records. ODOT maintains all of the
property deeds for the state highways at the Right
of Way office in Salem. A property owner may
contact the ODOT District office where the
property is located at any time to request
information about the access rights associated with
a property. This research process generally takes
less than two weeks.
Contact Us.
If you have questions or want more information
about the access rights for your property, please
contact the ODOT District office where the
property is located.
Contact Us
ODOT is an equal opportunity, affirmative action employer committed to a diverse workforce. We will provide
accommodations for persons with disabilities. We will provide alternative formats upon request.
N
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BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Subj ect:
Name t -7 _ e i e" (f ( C �
Address �A' O
Phone #s
E-mail address l l i 7:v",
In Favor Neutral/Undecided 1-1 Opposed
IVI
Submitting written documents as part of testimony? r] Yes No
If so, please give a copy to the Recording Secretary for the record.
BOARD OF COMMISSIONERS' MEETING
Subj ect:
REQUEST TO SPEAK
Name trtlil� v jn14_1
Address �Rdx X994,
Phone #s
E-mail address
Date: 2017 dl?Jo . 3
F-1inFavor F Neutral/Undecided Opposed
Submitting written documents as part of testimony? 1-1 Yes No
If so, please give a copy to the Recording Secretary for the record.
OBJ cE
BOARD OF COMMISSIONERS' MEETING
ra -c
REQUEST TO SPEAK
Subject: �"� " ` / ` . Date: l C
Name
Address
X70
Phone #s 6W 3 — 61'0 Z-7
E-mail address
M/In Favor ❑ Neutral/Undecided Opposed
Submitting written documents as part of testimony? 1-1 Yes El—No
If so, please give a copy to the Recording Secretary for the record.
w� 2�
BOARD OF COMMISSIONERS'
MEETING
a -c
/
REQUEST TO SPEAK
2�
Subject:
(�..O�S
rC C a��t
Date:
Name
Address
Phone #s
E-mail address
1-1 In Favor F] Neutral/Undecided Opposed
Submitting writtendocuments as part of testimony? uYes No
If so, please give a copy to the Recording Secretary for the record.
LAN DWATC H
September 20, 2017
hand delivered
Deschutes County Board of Commissioners
117 NW Lafayette Ave.
Bend, OR 97701
re: Lot of Record text amendments
Dear Commissioners,
SO SW Gond Si., Ste. 4 j Bend, OR 97702
Phone. (;;411 647-2930
www.centraloregonlandwatch.org
On behalf of Central Oregon LandWatch, thank you for the opportunity to comment on
the above -referenced amendments to the County's lot of record provision DCC 18.04.030.
LandWatch respectfully urges the Board of Commissioners to reject the proposed amendments
for the reasons outlined below.
1. The proposed amendments provide an insufficient basis for changing the County's code to
eliminate the requirement that to be developable units of land had to be "lawfully
established" under the rules inn effect at the time of creation
The supporting materials such as the September 8, 2017 staff report (SR) provide an
insufficient basis for changing Deschutes County's code to eliminate lots of record. SR 23
("eliminates lot of record definition.") The County's current lot of record provision grants
developable status to those lots or parcels "which conformed to all zoning and subdivision or
partition requirements, if any, in effect on the date the lot or parcel was created." DCC
18.04.030. As stated at SR, 21:
"In Deschutes County, a legal lot of record is a lot or parcel 'lawfully established'
through compliance with any rules in the effect at the time of creation (partition,
subdivision, minimum lot sizes, etc.) Units of land must be verified as 'legal lots of
record' before the issuance of any land use decision, building permit or septic permit."
The proposed amendments are designed to describe "those circumstances when units of
land require verification." Id. However the County's materials do not specify what the units of
land are to be verified for. In Table 4, SR, 25, the text refers to demonstrating a "lawful unit of
ANNE-, ell;gyp.
GON
LAN DWATC H
September 20, 2017
hand delivered
Deschutes County Board of Commissioners
117 NW Lafayette Ave.
Bend, OR 97701
re: Lot of Record text amendments
Dear Commissioners,
SO SW Gond Si., Ste. 4 j Bend, OR 97702
Phone. (;;411 647-2930
www.centraloregonlandwatch.org
On behalf of Central Oregon LandWatch, thank you for the opportunity to comment on
the above -referenced amendments to the County's lot of record provision DCC 18.04.030.
LandWatch respectfully urges the Board of Commissioners to reject the proposed amendments
for the reasons outlined below.
1. The proposed amendments provide an insufficient basis for changing the County's code to
eliminate the requirement that to be developable units of land had to be "lawfully
established" under the rules inn effect at the time of creation
The supporting materials such as the September 8, 2017 staff report (SR) provide an
insufficient basis for changing Deschutes County's code to eliminate lots of record. SR 23
("eliminates lot of record definition.") The County's current lot of record provision grants
developable status to those lots or parcels "which conformed to all zoning and subdivision or
partition requirements, if any, in effect on the date the lot or parcel was created." DCC
18.04.030. As stated at SR, 21:
"In Deschutes County, a legal lot of record is a lot or parcel 'lawfully established'
through compliance with any rules in the effect at the time of creation (partition,
subdivision, minimum lot sizes, etc.) Units of land must be verified as 'legal lots of
record' before the issuance of any land use decision, building permit or septic permit."
The proposed amendments are designed to describe "those circumstances when units of
land require verification." Id. However the County's materials do not specify what the units of
land are to be verified for. In Table 4, SR, 25, the text refers to demonstrating a "lawful unit of
2
land," without providing a definition of that term. Elsewhere the staff report refers to "a verified
unit of land" (SR, 21), and to a "determination of lawful creation" (SR, 23).
The County currently requires that lots or parcels had to be lawfully created before they
could be developed. DCC 18.04.030. As proposed, units of land can be developed in the future
when they have received a "deternZination of lawful creation" whether or not such units of land
were lawfully created. The County lacks the authority to deem a parcel of land that was not
lawfully created as "lawfully created" and thus developable. To do so is contrary to public
policy, as explained below.
Moreover the proposed findings do not indicate how the change from the current law
which requires units of land to be lawfully created is in the public interest, or furls a public
need rather than multiple private needs, such as the need of the private landowner in Gr°irnstad v
Deschutes County. That landowner does not have a lot of record under the current code, but will
have one if these amendments are adopted. Goal 2; Grirnstad v. Deschutes County, 74 Or LUBA
360 (2016). See infira.
The County's findings are inadequate because they do not provide a coherent purpose for
the proposed changes. The materials supporting the amendments are vague and contradictory.
While the findings state that the definition of "lot of record" is being amended at p. 47, elsewhere
the materials state that lots of record are being eliminated. SR, 23. ("Deschutes County is no
longer using the term 'lot of record.' ") The findings are an announcement, not an explanation.
"The definition of "lot of record" is being amended. The purpose of the
amendment is concurrent with or prior to the issuance of certain permits, units of
land shall be verified as developable pursuant to Deschutes County Code Titles
18 and 22 to reasonably ensure compliance with the zoning and land division
laws in effect on the date the unit of land was put in its current configuration." SR, 47.
The "purpose" and "scope" section at proposed DCC 22.04.040(A), "Verifying Units of
Land" is just a string of affirmative statements unrelated to purpose or scope. Id.
"A. Purpose; scope. Concurrent with or prior to the approval of certain permits, units of
land shall be verified pursuant to this section 22.04.040 to reasonably ensure compliance
with the zoning and land division laws in effect on the date the unit of land was created.
Not all permits require verification. If required, verification is a threshold issue addressed
before the permit may be approved, but verification does not supersede or nullify other
permit requirements. This section 22.04.040 provides the option to concurrently verify a
unit of land as part of applying for land use permits, or to instead apply for a declaratory
ruling."
Pro iecling Central Oregon's Natunaf ; nvironmenl And Working For Sustainablu Cormnunifies
3
As the Oregon Supreme Court has repeatedly held, the County is required to clearly and
precisely state what it finds to be the facts about the need to eliminate the lot of record
regulations and why those facts lead it to the amendments it is proposing. There is insufficient
justification for the proposed significant expansion to allow development of lands that are not
developable under the current code- including lands given a permit of some kind, and parcels
created by deed where more than one parcel is described in the deed. Sunnyside Neighborhood
v. Clackamas County Comm., 280 Or 3 21, 569 P2d 1063 (1977).
2. The proposed amendments greatly expand the number of parcels that can be developed,
provisions for the continuation of nonconforming uses are strictly construed against
continuation or expansion of nonconforming uses. Parks v Bd. of County Comm'rs, 11 Or
App 177, 501 A 2 85 (19 72)
A nonconfonning use permitted to continue albeit in violation of zoning requirements
and a unit of land permitted to be developed in a manner that violates zoning requirements are
similar. Parks, 11 Or App at 196. Nonconforming uses are not favored because, by definition,
they detract from the effectiveness of a comprehensive zoning plan. Id. The County should not
adopt the proposed amendments because they greatly expand the number of parcels that can be
developed in a manner that violates zoning requirements, ignoring public policy against the
expansion of nonconforming uses.
The units of land that are permitted to be developed in the County should be limited to
those that ever had the right to be developed. The proposed amendments detract from the
effectiveness of the County's comprehensive plan by allowing parcels that never would have
been developed to be developed now, such as parcels unlawfully created that received permits,
and parcels that existed ephemerally and were never recorded because they were interim
remainders of parcels created by deed. To ensure consistency with the County's comprehensive
plan, any prior developable parcels where the right to develop was discontinued should no longer
be developable. See Id.
There is no way to predict where the greatly increased number of developable parcels
will occur in a manner that violates zoning requirements. Such development will occur in the
EFU, forest, open space, and wildlife zones, destroying neighbors' investment and quality of life
expectations, and in contravention of the county's comprehensive plan. The proposed
amendments greatly expand the number and types of lands that can be developed and will have a
Protecting Conti -c-11 Oregon's NcarurcO Environ.,nenli And Working For Sustainable Cornmundic s
C!
harmful impact on the comprehensive plan that is against public policy. Therefore the proposed
amendments should be rejected and the County should retain its current lot of record provision.
3. The proposed amendments are inadequate because they fail to consider compliance with
all applicable statewide planning goals; proposed amendments do not comply with Goals 2,
3,4and 5
The proposed amendments will increase the amount of development in all zones by
increasing the number of developable parcels, whether the land is zoned for exclusive farm use,
forestland, open space, or wildlife habitat. Therefore the proposed changes implicate Goals 3, 4,
and 5. The proposed amendments are inadequate because they fail to consider the impact of the
increased number of developable parcels on these goals.
Approval of the amendments is counter to Oregon's agricultural land use policy to
preserve a maximum amount of the limited supply of agricultural land in Oregon in large blocks
as expressed in ORS 215. 243. It is also counter to the land use planning goal promulgated by
LCDC to effectuate that policy, "Goal 3," which requires that agricultural lands shall be
preserved and maintained for farm use.
The amendments will result in increased fragmentation of the agricultural land base
contrary to Goal 3, increased fragmentation of the forest land base contrary to Goal 4, and
increased fragmentation of both the County's protected open space and wildlife habitat areas,
contrary to Goal 5. The amendments require an ESEE analysis to consider how wildlife habitat
will be affected by the increased number of parcels that can be developed. For example under the
current code, no matter how many parcels are described in a deed of conveyance, only one lot of
record will result. DCC 18.04.030. The staff report is inadequate for not providing a factual basis
for the proposed dramatic change to allow what may be dozens or hundreds of lots of record per
deed on EFU lands or wildlife habitat or other rural lands. SR, 29 ("A legal instrument that
conveys multiple units of land shall not be interpreted as vacating those property lines between
the multiple units of land unless abiding with applicable law regulating property line vacation at
the time of the conveyance.")
The proposed amendment will allow increased residential development in farmland,
forestland, open space, and wildlife zones in the county not foreseen in the county's
comprehensive plan. Increased development is the unstated objective of the proposed
amendments.
Protecting Centroi C)no,Iorn's Nolurcli And Working For Suslainoble Con,irnunities
The County is explicitly adopting these amendments in response to the decision in
Grimstad. See e.g. July 13, 2017, County Board of Commissioner's Work Session slideshow;
Grimstad v. Deschutes County, 74 Or LUBA 360 (2016). According to the July 13, 2017
slideshow, prior to the Grimstad decision the Community Development Department "utilized
issuance of building, septic, and land permits as a justification for a legal lot of record."
In the Deschutes County Board of Commissioner's work session at 1:30 PM on June 19,
2017, planning staff stated that "the objective is to get back to pre-Grimstad," by adopting "a text
amendment that will allow us to issue lot of record decisions on the basis of a building permit."
LandWatch agrees with the observation of one of the commissioners in the June 19th
work session that by going back to the County's pre-Grimstad practice of granting lots of record
based on building permits, the County would appear to be violating LUBA's decision in
Grimstad. This is true because as LUBA observed in Grimstad, granting a building permit has
nothing to do with the creation of a unit of land.
Because the County has been clear throughout the work sessions that these amendments
concern the situation of the landowner in Grimstad who will obtain a lot of record based on a
building permit if these amendments are adopted, the amendments are at least partially quasi-
judicial in nature. They are being adopted in response to private needs.
As one of the commissioners observed in the June 19th work session, the County "had an
accommodating program for lots of record for many years and that resulted in more taxes
coming in because it was easier to develop." The purpose of the proposed amendments is "to
return to pre-Grimstad" and the County's "accommodating program" for lots of record so that
there will be more development and more tax revenue coming in.
Allowing increased residential development in farmland, forestland, open space, and
wildlife zones in the county not foreseen in the county's comprehensive plan is contrary to
statewide planning goals 3, 4, and 5 and legislative policies protecting resource lands, yet that is
the objective of the proposed amendments. Increased development will result from dropping the
requirement that to be developable properties must have been lawfully created and by dropping
the restriction of lots of record to one lot of record per deed. Therefore we urge the County not to
adopt the proposed amendments.
Protac:ting central Oregon's Naturcyi Environi-ne i And Working For Sustainable Comrnunitivs
4. The proposed amendments misinterpret and misapply ORS 92.176
Permits to validate a unit of land created by application of ORS 92.176 and DCC
17.22.010 require not just that a property have been created prior to January 1, 2007 but also that
a permit must have been issued for a "dwelling or other building." SR, 25. The statute also
requires that there must be a dwelling, and the dwelling must qualify for replacement under ORS
215.755:
ORS 92.176(2) "Notwithstanding subsection (1)(b) of this section, a county or city may
approve an application to validate a unit of land under this section if the county or city
approved a permit ... for the construction or placement of a dwelling or other building on
the unit of land after the sale. If the permit was approved for a dwelling, the county or
city must determine that the dwelling qualifies for replacement under the criteria set forth
in ORS 215.755 (Other forestland dwellings) (1)(a) to (e)."
The amendments should not include an exception for "a unit of land validated in
accordance with ORS 92.176." An unlawfully created parcel cannot become lawfully created by
virtue of the County's saying so in its code. On the other hand, once ORS 92.176 is applied to a
qualifying unlawfully created parcel, that parcel is no longer unlawfully created, and no
exception is required.
The amendments should not include an exception for "prior county permits." ORS 92.176
only refers to units of land that received a permit "for the construction of a dwelling or other
building," and if for a dwelling, to units of land where there is a dwelling and the dwelling
qualifies for replacement. ORS 92.176 does not provide that a unit of land can become lawfully
established on the basis of any other kind of permit. SR, 25, 40.
5. Amendment varies the legal effects of deeds validly executed before the state or county had
adopted regulations affecting conveyancing
We urge the County Board of Commissioners not to adopt the proposed amendment that:
"A legal instrument that conveys multiple units of land shall not be interpreted as
vacating those property lines between the multiple units of land unless abiding with
applicable law regulating property line vacation at the time of the conveyance."
Staff Report ("SR"), 39.
Zoning ordinances, including Deschutes County's ordinances, do not create lots or parcels
of real property. Oregon counties have authority over matters of county concern. ORS
203.035(1). When county or state land use laws regulate whether parcels may be created by
deed, or how many parcels are conveyed in a deed, the number of parcels conveyed by a deed
Fiolecting C< ntral Oregon's Ncjiurol fnvironrneni And Working ForSustainable Comrnuniiies
7
may be a matter of county concern. However the time period when parcels created by deed were
relevant to parcel creation is the time period prior to Deschutes County's adoption of its first
partition ordinance, PL -14, in 1979. Prior to 1979 there were no regulations at the state or
county level regulating whether parcels could be created by deed or how many parcels could be
created by deed. In the relevant time period there was no impediment to a landowner's
combining contiguous tracts by deed if he or she intended to do so. The County lacks the
authority to dictate that parcels, which under Oregon conveyancing law ceased to exist before the
County adopted any laws affecting conveyancing, can be made to exist and be developable now.
Moreover to do so is against public policy against expansion of nonconforming uses, as
explained above.
6. The proposed amendments err by stating that granting of a prior county permit or a
previous verification in a prior land use decision suffice to determine a unit of land can be
developed
The prior granting of a county penmit or verification in a prior land use decision cannot
suffice to determine that a unit of land can be developed. The County cannot compound a prior
error by granting development rights to an unlawfully created parcel based on a prior unlawful
decision. The County cannot adopt regulations that allow unlawfully created parcels to be
developed that do not qualify under the terms the legislature established in ORS 92.176. To
allow more developable uses in the EFU zone than are allowed under state law in particular is
disallowed. A County may regulate nonfarm uses in its EFU zones more stringently than
required by ORS chapter 215, but it may not regulate such nonfarm uses less stringently. Kenagy
v. Benton County, 112 Or App 17, 20 n2 (1992); Von Lubken v. Hood River County, 104 Or App
683, 687 (1990), on recons, 106 Or App 226, rev den 31.1 Or 349 (1991); Kola Tepee, Inc. v
Marion County, 99 Or App 481 (1989), rev den, 309 Or 441 (1990); Brentmar v. Jackson
County, 27 Or LUBA 453, 458 (1994).'
7. The proposed amendments err by allowing development of remainder parcels that were
created by deed
The staff report does not provide a factual basis for increasing the number of developable
parcels in the county by changing the code to include not just remainders resulting from
subdivisions or partitions (simultaneous creation of parcels or lots), as DCC 18.04.030 provides
now, but also remainders resulting from parcels created by deed (sequential creation of parcels.)
I'ro,ecPrng c:eni`rcll C>regon s Nrtt�urai And Working rpr,>us c -finable C. onirrururrc;s
The sequential creation of parcels by deed is fundamentally different from simultaneous
creation. Remainders resulting from sequential creation of parcels by deed are ephemeral. Unlike
remainders created by simultaneous creation, remainders created by deed are unrecorded until
they are subsequently sold. There is no logical basis for allowing development on remainders
created by deed as there is for remainders from a subdivision. As ephemeral shapes in a
sequential process, no one ever settles on such parcels, unless the parcels .are themselves sold, at
which time they become parcels created by deed and so would be lawfully created anyway. By
allowing development of unrecorded, ephemeral parcels on which no-one has ever settled and
which were not contemplated for development, the County is dramatically increasing the number
of developable parcels in the County in places not allowed in the current comprehensive plan,
but without any justifiable purpose or factual basis for doing so.
Conclusion
We urge the Board of Commissioners not to adopt the proposed amendments for the
reasons outlined above. Thank you for your attention to these views. Please consider this a
formal request for written notification of any decision in this matter.
Best regards,
Carol Macbeth
Central Oregon LandWatch
Protacling C'cot,al Oncgon's Notuml Environrn,nt And Working t-ar Suslainable Conirnunities
;t
�Q8 �\
Subject:
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Name mit
Address
Phone #s 641 - C-
E -mail addressJOL I
JI
Date: 2-9
11
In Favor Neutral/Undecided F1 Opposed
Submitting written documents as part of testimony? 1-1 Yes X No
If so, please give a copy to the Recording Secretary for the record.
Pauline Word
From:
Nick Lelack
Sent:
Wednesday, September 20, 2017 10:11 AM
To:
Pauline Word
Subject:
Fwd: PUBLIC HEARING- Lot of Record Sept.20, 2017
I just coordinated with Adam. Please print this email and bring it down to the Board meeting asap.
Thank you.
Nick Lelack, AICP
Deschutes County
Community Development Director
541-639-5585
Sent from my iPhone
Begin forwarded message:
From: "K.J.Phillips" <rrconstdev(a�comcast.net>
Date: September 20, 2017 at 10:00:23 AM PDT
To: "Nick Lelack" <nick.lelackndeschutes.org>
Subject: PUBLIC HEARING- Lot of Record Sept.20, 2017
TO: BOCC (Mtg- 9/20/2017)
CDD (nick Lelack)
RE: Lot of Record- PUBLIC HEARING
The above CDD proposed item has NO 'public' element that should merit any 'Emergency'
status for your action, as,
new proposed text changes need,
1 -better, and, FULL explanation (w/ transparency) as to total impact to each 'LOT' owner in
County,
2-a follow-up Public Hearing (evening) for input from a better informed Public,
3 -reconsideration and re -write of proposal to, not delete, but, align with ALL applicable State
survey & lot -of -record reps, and,
4 -avoid ANY changes to, this, and, all future County code/regs, that are basically a County -
dodge of legal obligations
to fix past County mistakes, the County should have known,...would be benefitting a very
few ... private persons.
This proposed change is totally WRONG .... and appears to just 'legalize' for all future-
discoveries,...of similar mistakes, and,
the few, now known, County'Lot' mistakes. WRONG!
Please consider,... making financial settlements to correct known County mistakes, or, as a
minimum,
refer this item back to Planning Commission for more Public input/Hearing... after proposal is
re -written!
Sincerely,
K.J. Phillips
Corvallis, OR