2017-882-Minutes for Meeting October 25,2017 Recorded 12/21/2017Recorded in Deschutes County CJ2017-882
Nancy Blankenship, County Clerk
commissioners' Journal 12/21/2017 11;01;06 AM
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2017-882
For Recording Stamp Only
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97703-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
Allen Conference Room
Wednesday, October 25, 2017
Present were Commissioners Anthony DeBone and Phil Henderson. Commissioner Tammy
Baney and County Administrator Tom Anderson were absent. Also present were Erik Kropp,
Deputy County Administrator; David Doyle, County Counsel; Christopher Ogren, Administrative
Intern; and Sharon Ross, Board Executive Secretary. Two representatives of the media were in
attendance as well as several citizens.
CALL TO ORDER: Vice -Chair DeBone opened the meeting at 1:33 p.m.
ACTION ITEMS
1. Eclipse Event Lessons Learned:
Nathan Garibay, Emergency Services Manager presented this item. In 2017, Sgt.
Garibay attended 80 planning meetings prior to the event, gave 12 presentations, and
coordinated with public information officers around the region. Estimating the impact
of the event was difficult. The eclipse occurred during peak tourism season as well as
peak fire season. Wildfire preparedness level 4 to level 5 stayed in effect until
September 21. There were 90 people staffing the MAC from staff, volunteers, agencies,
Minutes of Board of Commissioners' Work Session October 25, 2017 Page 1 of 3
and neighboring counties. Sgt. Garibay reviewed the emergencies experienced during
that timeframe. From a coordination standpoint it was a great model to show how
different agencies come together to support an overall coordination to provide the
community the best service. Public announcements were beneficial to local citizens. In
reviewing the event, improvements were developed for future planning.
Commissioner Henderson said it was his opinion that we may have over warned on the
event and there was less business than there might have been and local people may not
have enjoyed it as much as expected.
2. Code Enforcement & Land Use Discussion:
Peter Russell, Community Development Department and Adam Smith, Assistant Legal
Counsel presented the item for discussion. At a prior Work Session, the Board asked
staff to reconvene the 2015 stakeholders committee to review the code that dealt with
code enforcement and land use applications. Members of the stakeholders committee
were also present. Mr. Russell reviewed the staff report and the concern of code
enforcement violations within land use applications. Mr. Smith addressed the
procedural issues. Discussion held on whether to initiate a text amendment. Further
review will be made by the stakeholders group and this item will be brought back to a
future Work Session comparing the existing language with the recommended changes.
3. Widgi Creek, Consideration of Re -Opening the Public Hearing for the Submittal of
Written Materials:
This portion of the meeting was audio recorded. Will Groves, Community Development
Department, presented an Order for consideration to re -open a public hearing relating
to the Seventh Mountain Golf Village subdivision. This is a request to reopen the record
for two weeks with a rebuttal period. Staff identified errors in the application and
recommend reopening the hearing. The applicant has been notified of the errors and
no objection was received. County Legal Counsel is supportive of staff recommendation
to open the record.
HENDERSON: Move approval of Order No. 2017-044, reopening the public hearing for
the submittal of written materials in the de novo hearing on file numbers 247 -16-
000408 -LR and 247-17-000027-A
DEBONE: Second
Minutes of Board of Commissioners' Work Session October 25, 2017 Page 2 of 3
VOTE: HENDERSON: Yes
BAN EY: Absent, excused
DEBONE: Vice chair votes yes. Motion Carried
OTHER ITEMS
EXECUTIVE SESSION:
At 2:37 p.m., the Board went into Executive Session under ORS 192.660 (2) (h) Litigation. The
Board came out of Executive Session at 2:55 p.m.
ADJOURN: Being no further discussion, the meeting adjourned at 2:59 p.m.
DATED this__13 Day of 2017 for the Deschutes County
Board of Commissioners.
ATTEST:
Rec rding Secretary
Tammy Ban -6y, Cha(r")
Anthony DeBone, Vice Chair
Philip G. a derson, Commissioner
Minutes of Board of Commissioners' Work Session October 25, 2017 Page 3 of 3
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
DESCHUTES COUNTY BOARD OF COMMISSIONERS
1:30 PM, WEDNESDAY, OCTOBER 25, 2017
Allen Conference Room - Deschutes Services Building, 2ND Floor — 1300 NW Wall Street — Bend
Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed 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.
Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed,
although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or
have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work
Sessions are not normally video or audio recorded, but written minutes are taken for the record.
CALL TO ORDER
ACTION ITEMS
1. Eclipse Event Lessons Learned - Nathan Garibay, Emergency Services Manager
2. Code Enforcement & Land Use Discussion - Peter Russell, Senior Planner
3. Widgi Creek, Consideration of Re -Opening the Public Hearing for the Submittal of
Written Materials - William Groves, Senior Planner
EXECUTIVE SESSION
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.
Board of Commissioners Work Session Agenda Wednesday, October 25, 2017 Page 1 of 2
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.
ADJOURN
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.oLg/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 Work Session Agenda Wednesday, October 25, 2017 Page 2 of 2
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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 Work Session of October 25, 2017
DATE: October 16, 2017
FROM: Peter Russell, Community Development, 541-383-6718
TITLE OF AGENDA ITEM:
Code Enforcement & Land Use Discussion
RECOMMENDATION & ACTION REQUESTED:
Receive Board direction on whether to initiate a text amendment to Deschutes County Code
(DCC) 1.16.010, 1.17.030, and 22.20.015.
ATTENDANCE: Peter Russell, CDD, Adam Smith, Legal
SUMMARY: The Board requested Planning Division reconvene the 2015 stakeholders group
on amending Deschutes County Code regarding code enforcement and land use applications.
The request stemmed from an application for a marijuana retail dispensary at Deschutes
Junction where code enforcement violations played a key role in the hearing officer's decision
to deny. The stakeholders group met on Oct. 3 with Planning and Legal staff to discuss the
differing processes for code enforcement and land use applications; the intent of the 2015 text
amendments to DCC 1. 16.010 (Violations) and 22.20.015 (Code Enforcement and Land Use);
and a general discussion of the interplay between code violations and land use applications
with respect to the Deschutes Junction marijuana retail dispensary (Files 247-16-000751-
SP/752-CU). The stakeholders unanimously recommended keeping the current language, but
did provide potential language to modify the code.
Staff will summarize the comments the stakeholders group provided before and during the Oct.
3 meeting and potential revisions to DCC 1.16.010, 1.17.030, and 22.20.015 should the Board
choose to direct staff to initiate a text amendment.
TO: Board of County Commissioners
FROM: Peter Russell, Senior Transportation Planner
RE: Work session recapping Oct. 3 meeting of code enforcement stakeholders group
regarding potentially amending Deschutes County Code (DCC) 1.16.010
(Violations) and 22.20.015 (Code Enforcement and Land Use)
The Board is weighing whether to amend Deschutes County code as it relates to the
intertwining of code enforcement and land use applications. The Community Development
Department (CDD) followed the Board's direction to reconvene the stakeholders' group from the
2015 text amendments to DCC 1.16.010 and 22.20.015. The stakeholders committee met with
Planning and Legal staff on Oct. 3. Attendees included private citizens and representatives
from Central Oregon Land Watch (COLW). The representative from Central Oregon Realtors
Association (CORA) was unable to attend to a last-minute conflict and the representative from
Central Oregon Builders Association (COBA) did not respond to the invite.
BACKGROUND
Prior to the Oct. 3 meeting staff distributed copies of text adopted in 2015; suggested revisions
to DCC 1.16.010 and 22.20.015 prepared by a stakeholder committee member; revisions to the
same chapters prepared by County legal staff; and a Sept. 28, 2017, memo from COLW
opposing amending the chapters.
Stakeholder comments received prior to the Oct. 3 meeting unanimously opposed amending
DCC 1. 16.010 and 22.20.015; questioned the need for any amendments; and inquired why the
topic has been raised.
ISSUES DISCUSSED AT OCT. 3 STAKEHOLDERS COMMITTEE MEETING
County staff and committee members had a very fruitful discussion about the challenges of
processing a code enforcement violation within a land use application. Staff recounted how this
dynamic occurred within a recent land use application for a marijuana retail dispensary at
Deschutes Junction (Files 247-16-000751-SP/752-CU). The hearings officer recommended
denial based on pre-existing code violations and additional violations raised and documented
during the public comment period. The land use would not cure these pre-existing and alleged
violations; the agent withdrew the land use application before the hearings officer issued her
decision.
Quality c't'zJices I'efiornted ,with Pride
The group discussion focused on several key topics, which are presented in no particular order
of importance.
• The land use system has a 150 -day clock and even with tolling, a local land use decision
must be issued within a year; code enforcement cases have no timeline and their
complexity can mean the violations take more than a year to resolve
• The appeal process for a land use application is set as hearings officer (in case of
administrative decision), then Board, then Land Use Board of Appeals whereas a code
enforcement case goes to a hearings officer then Circuit Court
• If remedying a code violation is made a condition of approval and the applicant appeals,
does that appeal follow the land use process or the code enforcement process
• The previous text amendment has only been in existence for 18 months, can the County
allow more time to lapse to assess how well the 2015 changes to DCC 1. 16.010 and
22.20.015 are working
• The Deschutes Junction marijuana retail dispensary was or was not an example of the
process working as intended
• Does having code enforcement in the land use process result in a net gain of efficiency
for the applicant and the public
STEPS TAKEN AFTER OCT. 3 MEETING
Assistant Legal Counsel Adam Smith, based on the group's discussion, revised the code
language. Staff distributed the 10/14/17 draft language to the stakeholders committee as both
Judge (ret.) Paul Lipscomb and Rory Isbel (COLW) expressed interest in providing comments.
The goal was to tweak DCC 22.20.015 regarding setting conditions of approval to cure a code
violation. The violation could be pre-existing or one identified during the land use process.
NEXT STEPS
Staff will discuss this memo and seek direction from the Board whether to initiate a text
amendment to DCC 1. 16.010 and 22.20.015. Legal staff correctly pointed out DCC 1.17 may
need some revisions as well to be consistent with any changes to DCC 22.20.015.
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 Work Session of October 25, 2017
DATE: October 19, 2017
FROM: William Groves, Community Development, 541-388-6518
TITLE OF AGENDA ITEM:
Consideration and Signature of Order No. 2017-044, Re -Opening the Public Hearing for the
Submittal of Written Materials in the De Novo Hearing on File Numbers of 247 -16 -000408 -LR
and 247-17-000027-A
RECOMMENDATION & ACTION REQUESTED:
The Board could choose to sign or decline to sign this order at a work session. Alternatively,
the Board could direct staff to schedule deliberations based on the existing record.
ATTENDANCE: Will Groves, Legal
SUMMARY: Staff believes the record needs to be reopened for additional information. At minimum,
the effects of post -1990 plats and lot adjustments need to be considered to avoid producing a lot of
record decision that does not address the current configuration of the property.
Several other issues, identified below, would also benefit from additional briefing by the parties. Staff
recommends that the record be reopened for two weeks to any written materials, one week for rebuttal
to the open record materials, and one week for final argument by the applicant. A draft order to this
effect is included for the Board's consideration.
Question 1:
How many units of land existed prior to the 1990 Seventh Mountain Golf Village subdivision?
See Page 2.
STAFF REPORT
DATE: October 9, 2017
TO: Board of County Commissioners
FROM: Will Groves, Senior Planner
RE: Deliberations on an appeal of Hearings Officer's Decision in File Nos. 247 -16-
000408 -LR (247-17-000027-A).
Background
Before the Board of County Commissioners (Board) are deliberations in an appeal filed by Larry
Kine. The appeal was submitted in response to a January 6, 2017 Deschutes County Hearings
Officer's decision that the applicant has not met his burden of demonstrating the lot of record
status of the subject property.
At a work session with the Board on August 23, staff presented a potential decision path which
minimized the necessity for Board interpretation on the breadth of issues raised in the matter.
Instead, the Board directed staff to provide a full summary of the complexity of this case and
staff provides this issue summary, analysis, and decision matrix.
II. Executive Summary
Staff believes the record needs to be reopened for additional information. At minimum, the
effects of post -1990 plats and lot adjustments need to be considered to avoid producing a lot of
record decision that does not address the current configuration of the property.
Several other issues, identified below, would also benefit from additional briefing by the parties.
Staff recommends that the record be reopened for two weeks to any written materials, one week
for rebuttal to the open record materials, and one week for final argument by the applicant. A
draft order to this effect is included for the Board's consideration.
The key issues to resolve at this point are:
How many units of land existed prior to the 1990 Seventh Mountain Golf Village
subdivision?
Did the 1990 subdivision vacate property lines between the 4 original units of land?
Are remainder units of land required to meet dimension and size standards to be Lots of
Record?
Do discontiguous remainder units of land create separate Lots of Record?
The effect of each of these decisions is summarized on the attached flow chart.
Based on the existing record, staff is working under the following assumptions:
• The minimum size for new lots in the F2 zone in 1990 was 40 acres.
• Remainders can be generated from any "remaindered" unit of land, not only lots of
record.
• A single plat can generate multiple remainders.
• The platted road tracts do not create discontiguous lots, under "lot of Record" (C)(2).
• The present application will supersede all prior lot of record applications for the property.
Given the existing materials in the record and the assumptions listed above, staff has provided a
chart (attached) of the consequences of some likely conclusions on the four questions listed
above. The chart refers back to page numbers in this Staff Report.
The detailed record summary below is intended to provide the Board with a sense of the
number and types of issues raised by the parties. Staff does not anticipate the Board will want
to engage substantively with these issues prior to closing of a new open record period.
However, staff is prepared to discuss these issues in detail at a work session in the event the
Board wishes to proceed without reopening the record.
Key Issues / Questions
The Board needs to respond to four keys issues. Issues 1, 3 and 4 contain follow-up questions.'
After each question, there are responses from staff, the prior Hearings Officer, applicant,
opponents, and Liz Fancher, a participant in the proceedings.
Issue #1 How many units of land existed prior to the 1990 Seventh Mountain Golf
Village subdivision?
Background
The subject property, which ultimately became Widgi Creek resort, was conveyed from the
Bureau of Land Management into private ownership in 1984. This conveyance referred to a
BLM document entitled "Dependent Resurvey, Subdivision of Sections 22 and 23 and Survey"
("Dependent Resurvey") dated January 12, 1984. The Dependent Resurvey mapped Parcels A,
B, C, and D and these "parcels"2 are used to describe the land subject to the 1984 Federal
conveyance.
These "parcels" were divided into residential lots by the 1990 Seventh Mountain Golf Village
subdivision. The subdivision plat identified the future golf course area as "not in plat". The
I This deliberation summary of party positions is largely composed of direct quotes. Some quotes have been edited
for brevity, clarity, or issue focus.
2 The BLM survey describes the four units of land as "parcels", although state statue and county code would classify
them as lots or units of land.
-2-
Board will need to interpret the County Code to determine if the golf course constitutes one,
zero, or many Lots of Record.
Staff notes that Questions 1 B and 1 C may or may not be relevant. However, the parties briefed
a lot of these issues and thereby they are included. However, Staff favors acknowledging that
there were 4 "units of land" prior to the 1990 plat.
Question 1A. Are the BLM "parcels" one or four "units of land"?
Staff Response
Staff concurs with the applicant and recommends that the Board find that it is unnecessary to
determine the Lot of Record status of the BLM "parcels". This is because any remainders of the
BLM "parcels" need only be "adjacent or surrounding land", under (A)(5) of the Lot of Record
definition and are not required to be Lots of Record prior to becoming remainders.
Therefore, it only remains to be determined if the BLM conveyance included one or four "units of
land". Strong arguments are made by each party and staff recommends the Board reopen the
record on this issue, given how strongly this decision effects the remaining choices to be made
in this matter.
Hearinas Officer
I concur with the Hearings Officer in Thompson, and with the applicant, that the BLM has the
authority to create units of land and convey them without regard to the Oregon Revised Statutes
and the Deschutes County Code. Those units of land are lawful; they can be used and
conveyed by the grantee. But that only sets the stage for deciding whether those units of land
are "lots of record" that the Deschutes County Code recognizes as developable.
Applicant
Parcels A, B, C, and D did not have to qualify as lots of record from the eleven (11) parcels
involved in the current application to qualify as lots of record under DCC 18.04.030A.5. A lot of
record can be a parcel created by subdividing or partitioning adjacent or surrounding lands
leaving a remainder lot or parcel. There is no express requirement that the underlying parcels
qualify as lots of record. The hearings officer acknowledged Parcels A, B, C, and D were lawful
parcels when conveyed by the United States, they had legal boundary lines, regardless of
whether they qualify as lots of record.
Opponents
The applicant has still failed to provide any evidence or support for the premise that the 1984
Resurvey had any intent to create four separate new lots of record, whatever its hypothetical
preemptive effect. There is no evidence why the BLM would have intended or cared to have
subdivided four separate "parcels" as lots of record prior to transfer. Further, the Patent did not
even convey all of the four "parcels," having excepting a portion of "Parcel C" in the southeast
quarter of Section 22. The more likely conclusion is that the patent described the property in
four parts based on the surveyor's practice, not because it intended to accomplish a
"subdivision" for purposes of the county code.
-3-
Question 1B. Did the BLM conveyance create Lots of Record, in accordance with the
County Lot of Record definition?
Background
The lot of record definition is a 3 -part test. Section (A) of the definition requires compliance
with zoning and subdivision requirements in effect at the time of parcel/lot creation. Section
(A)(1-5) and (B) specify a number ways a lot of record may be created. Section (C) describes
units of land that are not lots of record. Staff assumes, for the purposes of Question 1 a that the
federal supremacy and preemption doctrine plays no role, which is discussed under Question
1b. Staff presents the parties' arguments on the effect of each part of the Lot of Record
definition under the relevant code language below. Staff omits sections (A)(1, 4, and 5) as well
as (B) and (C) of the lot of record definition, which are not a subject of debate in the record, with
regard to the BLM "parcels".
"Lot of Record" means:
A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide,
which conformed to all zoning and subdivision or partition requirements, if any, in
effect on the date the lot or parcel was created, and which was created by any of
the following means:
Staff Response
Staff recommends the Board find that any lot of record meets the following requirements:
at least 5, 000 square feet in area and at least 50 feet wide
3 "Lot of Record" means:
A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and
subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was
created by any of the following means:
1. By partitioning land as defined in ORS 92;
2. By a subdivision plat, as defined in ORS 92, filed with the Deschutes County Surveyor and recorded with the
Deschutes County Clerk;
3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description
of the lot or parcel, and recorded in Deschutes County if recording of the instrument was required on the date
of the conveyance. If such instrument contains more than one legal description, only one lot of record shall be
recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat;
4. By a town plat filed with the Deschutes County Clerk and recorded in the Deschutes County Record of Plats; or
5. By the subdividing or partitioning of adjacent or surrounding land, leaving a remainder lot or parcel.
B. Notwithstanding subsection (A), a lot or parcel validated pursuant to ORS 92.176 shall be recognized as a lot of
record.
C. The following shall not be deemed to be a lot of record:
1. A lot or parcel created solely by a tax lot segregation because of an assessor's roll change or for the
convenience of the assessor.
2. A lot or parcel created by an intervening section or township line or right of way.
3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was conveyed subject to DCC
18.04.030(B).
4. A parcel created by the foreclosure of a security interest.
For the purposes of DCC Title 18, "lot" or "parcel" means a lot of record as defined DCC 18.04.030.
-4-
Staff believes the Applicant misinterprets the "at least 5,000 square feet in area and at least 50
feet wide" requirement. This separate, and not superfluous, requirement is to prevent units of
land (predominantly created prior to zoning) as access drive parcels (less than 50 feet wide)
and plainly undevelopable units of land (less than 5,000 square feet in area) as being
recognized as separately developable Lots of Record. Staff is uncertain what "conformed to all
zoning... requirements" would mean under the applicant's interpretation.
ORS 174.010 provides: "In the construction of a statute, the office of the judge is simply to
ascertain and declare what is, in terms or in substance, contained therein, not to insert what has
been omitted, or to omit what has been inserted; and where there are several provisions or
particulars such construction is, if possible, to be adopted as will give effect to all."
As such, Staff believes that the 4 BLM parcels comply with these minimum area and width
requirements. The next portion of subsection (A) of the lot of record definition reads:
...which conformed to all zoning and subdivision or partition requirements, if any, in
effect on the date the lot or parcel was created...
PL -14 was in effect in 1984 requiring County approval for divisions of land. The question,
thereby, is if PL -14 applied to the creation of the 4 BLM parcels. It is clear that no application
was made by the BLM pursuant to PL -14. If PL -14 did apply, the zoning in effect was Forest F2
in 1984 with a 40 -Acre minimum. BLM Parcels A and B were smaller. To the extent the Board
determines this inquiry is relevant, staff believes that the federal survey and patent did not
comply with all zoning or subdivision requirements in effect.
An alternative analysis in the record takes the position that no "zoning and subdivision or
partition requirements" applied to the federal creation of the BLM "parcels" by survey and/or
patent. The remaining portion of subsection (A) concludes:
...which was created by any of the following means
If exempted from the requirement to comply with "all zoning and subdivision or partition
requirements", the applicant will need to also demonstrate that the lots of record were created
by one of the listed means, discussed in detail below.
Hearinas Officer
...staff notes the Lot of Record definition, at the outset, requires that the lot or parcel conform to
"all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel
was created". In 1984 the parcel was zoned FU3 under PL -15 with a minimum lot area of 20
acres. At least one "parcel" - 'A' is less than 20 acres; thus the division into four parcels did not
meet the zoning standards at the time."
The Dependent Resurvey was not applied for or approved in accordance with the requirements
and procedures established by PL -14, and thus did not conform to all "subdivision or partition
requirements, if any, in effect on the date the lot or parcel was created".
(Staff notes that this analysis is based on an assumption that the minimum lot size at the time
was 20 acres. It was 40.)
-5-
Applicant
DCC 18.04.030A states that a parcel must be at least 5,000 square feet. The Applicant submits
that the hearings officer's conclusion cannot be accepted. In general, lot of record provisions are
designed to allow development on lots that do not meet all of the substantive standards for lots.
DCC 18.04.030A establishes the only size requirement for lots of record. They must be at least
5,000 square feet regardless of what zone they are in. If the hearings officer's rationale is
accepted, DCC 18.04.030A is superfluous. If parcels had to be at least 5,000 square feet and
also meet the minimum size for lots in the underlying zone, there would be no reason to have
the 5,000 square -foot requirement. It would be enough to state that to qualify as a lot of record,
parcels must meet the minimum size for lots within the applicable zone."
Opponents
Staff understands the Opponents to concur with the hearings Officer analysis.
Fancher
Both the entire area conveyed by the 1984 deed and each parcel described on the deed is at
least 5,000 square feet in area and at least 50 feet wide. It was not subject to local zoning,
subdivision or partition requirements when it was created. After it was created, its use was
controlled by local land use laws. The County may reasonably find that its laws were not "in
effect" for federal lands on the date the parcels were created as its law has no effect on federal
lands until the land has been transferred to private ownership.
(A)(2) By a subdivision plat, as defined in ORS 92, filed with the Deschutes
County Surveyor and recorded with the Deschutes County Clerk•
Staff Response
To the extent the Board determines this inquiry is relevant, staff concurs with the Applicant, the
BLM "Dependent Resurvey" meets the definition of subdivision plat, as defined in ORS 92. Staff
believes the record demonstrates that the BLM "Dependent Resurvey" was filed with the
surveyor, who stated:
They are not filed in our standard surveys and plats records, the "CS" (for
"County Surveyor") records, but they are filed in our GLO/BLM collection.
Additionally, staff believes the BLM "Dependent Resurvey" was recorded with the Deschutes
County Clerk in conformance with this requirement on February 17, 2017. However, the Board
will need to evaluate the Opponent's argument that, while the required filings have been
completed recently, these criteria focus on the point at which the parcel "was created". Staff
identifies at least two possible conclusions:
1) The timing of the required recordings does not matter. The BLM "parcels" were created
by the Dependent Resurvey and this document is now recorded, or
2) The timing matters and the subsequent recording of this document can not cure this
deficiency after the parcels have been further divided.
Hearings Officer
M
I agree with the applicant that the Dependent Survey constitutes a subdivision under this
definition, or perhaps recognition of a prior subdivision. It describes what the BLM calls "parcels"
and "lots"... Nevertheless, to create lots of record, the subdivision must have been recorded
with the surveyor and clerk. This was not done. As discussed in Thompson, this is not an issue
of federal preemption. The FLPMA extends only to the creation of lots or parcels for conveyance
and use. It does not address and certainly does not purport to require that local governments
deem those lots developable or grant them any special status under local development codes.
Applicant
The plat meets the definition of a subdivision plat in ORS Chapter 92. According to ORS
92.010(18), a "subdivision plat" includes a "final map and other writing containing all the
descriptions, locations, specifications, dedications, provisions and information concerning a
subdivision." A "subdivision" is "either an act of subdividing land or an area or a tract of land
subdivided." ORS 92.010(17). To "subdivide" is to "divide land to create four or more lots within
a calendar year." A "lot" is "a single unit of land that is created by a subdivision of land." ORS
92.010(4). Nothing in the law defines a subdivision as a plat approved under the authority of
local subdivision law rather than federal law.
Since the issuance of the hearings officer's decision, the federal subdivision plat has been
recorded with Deschutes County as Instrument 2017-06640. A copy of that Instrument is
included with this letter. DCC 18 .03. 040A.2 does not require that a subdivision plat be
recorded at any specific time. The Board can recognize the federal survey plat on a subdivision
recorded with the County.
Opponents
Whether Federal law preempts a State statute or regulatory scheme depends on the federal
congressional intent. Draper v. Chiapuzio, 9 F3d 1391, 1393 (91h Cir 1993). When the text of
the legislation clearly provides a reliable indication of congressional intent with regard to State
authority, there is no need to infer congressional intent. Cipollone v. Liggett Group, Inc., 505 US
504, 516, 112 SC 2608, 2618 (1992). A statute -will not be construed to preempt state law
unless that is "the clear and manifest purpose of congress." Oregon Rev. Dept. v. ACF
Industries, 510 US 332, 345, 114 SC 843 (1994). Under these authorities the BLM resurvey is
not preemptive of State or local law regarding subdivisions and partitions. The congressional
intent to the contrary is clear from 43 U.S.C. § 1718. The applicant has therefore failed to
demonstrate that the BLM resurvey acted as a valid "subdivision plat" under DCC
18.04.030(A)(2) because of the operation of any federal law.
First, the lots were not created under (2) by a subdivision plat, as defined in ORS 92, that was
both filed with the surveyor and recorded with the clerk. Even assuming that the BLM resurvey
constitutes a "subdivision plat" under ORS 92, it was not recorded with the clerk at any time
before the Seventh Mountain Golf Village initial 107 lots were platted. Mr. Kine only recently
"recorded" a series of BLM documents after the Hearings Officer decision had already been
reached. Further, it was not filed with the County Surveyor's records. There is no exception
under the ordinance. Since the resurvey was not timely recorded with the clerk or filed with the
surveyor, it did not "create" the four separate parcels and falls outside of the ordinance. As the
Hearings Officer found, the federal FLPMA statute does not require the County to grant the lots
created in that survey any special status under local development codes such as DCC
18.04.030. Thus, the lots do not fall within subsection (2).
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Fancher
Typically, federal conveyances occur by patent or quitclaim deed. As a result, most
conveyances will qualify for development as a "lot of record" because they were conveyed by a
deed. This was the case in the Pine Forest decision by Hearings Officer Helm in 2015 (Case
247 -15 -000464 -CU). There, a quitclaim deed was found to fit "at least one of the County's lot of
record criteria." In this case, the applicant is claiming that a subdivision plat created four lots and
that these lots are lots of record because they are remainder lots. The four lots meet the
definition of a lot of record because the federal plat meets the definition of a subdivision plat as
the term is defined by ORS Chapter 92 and the plat has, since the hearings officer's decision,
been recorded with the Deschutes County Clerk.
(A)(3) By deed or contract, dated and signed by the parties to the transaction,
containing a separate legal description of the lot or parcel, and recorded in
Deschutes County if recording of the instrument was required on the date of the
conveyance. If such instrument contains more than one legal description, only
one lot of record shall be recognized unless the legal descriptions describe lots
subject to a recorded subdivision or town plat;
Staff Response
To the extent the Board determines this inquiry is relevant, staff believes that there are at least
three possible conclusions that could be drawn from this requirement:
• The BLM "Dependent Resurvey" was a "subdivision" that created the parcels and the
subsequent patent had no effect on parcel creation,
• The Federal patent created the 4 BLM "parcels" independent of the "Dependent
Resurvey" but, under this requirement, only one lot of record would be recognized.
The Federal patent created the 4 BLM "parcels" independent of the "Dependent
Resurvey" but, under Thomas v. Wasco County, the County is precluded from
consolidating these "parcels" under this criterion.
The Applicant argues that Thomas precludes consolidating prior units of land under this
criterion. In Thomas, LUBA found:
In sum, the county's apparent objective in encouraging the consolidation of
substandard size lots for development purposes almost certainly serves a
legitimate planning objective. There are a number of methods that the county can
adopt to further that objective that are not based on deeds or the specific
language of deeds. A relatively straightforward way would be to adopt code
language that simply prohibits development of substandard size lots or parcels,
with whatever exceptions the county deems appropriate. However, if the county
continues to base its approach for consolidation of substandard size properties
on the examination of deeds, the county must identify some legal basis for the
distinctions it draws, such that future development rights do not hinge on
apparently arbitrary differences in the wording or form of deeds.
It is unclear to staff if the Deschutes County Code (DCC) makes the same error by allowing only
one Lot of Record to be created per deed. Unlike Wasco County Code, the DCC does not force
consolidation of properties previously separately conveyed upon later joint conveyance by a
single deed. The DCC does not require an evaluation of the language of a deed, but recognizes
the creation of a single lot of record per deed, without regard to the deed language.
From the record it appears the only reason the BLM described four "parcels" separately is
because the four parts of the conveyance each fall in a different sections. Although it is
tempting to infer grantor's intent from the patent, LUBA cautions in Thomas:
Further, the grantor's intent in transferring property by deed is a question of fact
in any particular case, that can be finally resolved only by a judicial court. In most
cases, the grantor's actual intent, if any, in transferring multiple contiguous
properties regarding whether or not those properties should be "consolidated" for
development purposes will not be evident from the face of the deed, and judicial
interpretation would be necessary to reach a final determination regarding intent.
Assuming Thomas does prevent the County from only recognizing a single Lot of Record per
deed, staff is unsure if Thomas would force the County to recognize four or zero Lots of Record
from the BLM patent. Staff notes that ORS 92.017 specifies "when lawfully created lot or parcel
remains discrete lot or parcel" but this requirement is not explicit or implicit in the County's Lot of
Record definition.
Hearings Officer
The land patent conveys the property by separate reference to each of the four parcels. There is
an issue as to whether the land patent "created" any parcels. As staff notes, the Dependent
Resurvey only explicitly references the "subdivision" of land in relation to Sections 22 and 23. If
that is the extent of the BLM subdivision, then presumably the areas in Sections 14 and 15 were
created by the patent. But the applicant, other than a brief mention, in its application narrative,
does not further assert that this standard is relevant, perhaps because it would appear to
recognize at most one lot of record since the subdivision was not recorded as provided in DCC
18.04 A(3). Accordingly, I find that the applicant has failed to meet its burden under this
standard.
Applicant
If one takes the position that the 1983 survey plat was not a subdivision plat that created
Parcels A, B, C, and D, the federal patent in 1984 is the equivalent of a deed and it was also
recorded at the County. Thomas holds that the County cannot consolidate those parcels under
DCC 18.04.030.A.3.
DCC 18.04.030A.3 contains the following text: "If such instrument contains more than one legal
description, only one lot of record shall be recognized unless the legal descriptions describe lots
subject to a recorded subdivision or town plat." In light of the decision in Thomas v. Wasco
County, LUBA No. 2008-206, the Applicant submits that the County cannot apply that text to
recognize only one lot of record. Thomas involved a county code provision which required
consolidation of parcels for development purposes if multiple parcels were described in a single
deed without separate headings. In application, the provision operated to ignore boundary lines
of parcels created by deeds.
In this matter, it is impossible to come up with any legitimate purpose for requiring Parcels A, B,
C, and D to be consolidated. They each were surveyed as separate parcels. The hearings
officer acknowledged that they were described in a manner that allowed them to be conveyed to
one or more persons. If the parcels had been deeded to different grantees, they each would
qualify as a lot of record under DCC 18.04.030A.3. If they has been conveyed to the same
person using four patents or deeds they would not be consolidated for any purpose and would
each be recognized as lots of record under DCC 18.04.030A.3. The only apparent purpose
served by DCC 18.04.030A.3 in this matter would be to require separate patents and additional
recording fees for the County. That is not a legitimate planning purpose.
Opponents
The lots also fail to fall within subsection (3) because even if the patent qualifies as a "deed or
contract," that subsection makes clear that if one instrument contains more than one legal
description, only one lot of record is created thereby.
Question 1C. Did the BLM conveyance regarding Lots of Record depend in whole or
part on the doctrine of federal supremacy and preemption; or
Background
Parties disagree on the number of lots of record resulting from the BLM "Dependent Resurvey"
and conveyance of the BLM "parcels". Unlike the argumentation under Question la,
argumentation in Question 1 b focuses on the notion that the federal government is not required
to adhere to state and local subdivision rules when creating units of land and that the County
either should or must recognize these federally created/conveyed units of land as fully
developable lot of records. However, to reiterate, staff does not believe this inquiry is truly
relevant or necessary to determine if the current unit(s) of land meet the lot of record definition
because the subsequent 1990 plat clearly occurred. If the unit(s) of land that predated the 1990
plat needed to be lots of record for the unit(s) of land created by the 1990 plat to likewise be lots
of record, then the lot of record status for all of the lands acted on by the 1990 plat would
presently be in jeopardy. Although the specific number of unit(s) of land that the 1990 plat acted
against is relevant, staff does not believe the lot of record status of those unit(s) of land prior to
1990 matters.
Staff Response
To the extent the Board determines this inquire is relevant, staff notes that prior Boards and
Hearings Officers have taken a variety of approaches to this question in a variety of case -
specific contexts. Staff believes a lot of record determination is simply a determination if unit(s)
of land meets the lot of record definition. Lot of record is a County created concept and no
explicit deference is provided to federal lot creation/conveyance in the county code.
Staff believes the County should not be in the position of frustrating land swaps between the
federal government and private entities by rendering the conveyed property undevelopable.
However, that has not happened in this case. Widgi Creek resort was successfully developed.
Hearings Officer
I concur with the Hearings Officer in Thompson, and with the applicant, that the BLM has the
authority to create units of land and convey them without regard to the Oregon Revised Statutes
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and the Deschutes County Code. Those units of land are lawful; they can be used and
conveyed by the grantee. But that only sets the stage for deciding whether those units of land
are "lots of record" that the Deschutes County Code recognizes as developable. Because I do
not clearly understand where exactly the applicant ended up on each standard, I will address
each.
Nevertheless, to create lots of record, the subdivision must have been recorded with the
surveyor and clerk. This was not done. As discussed in Thompson, this is not an issue of
federal preemption. The FLPMA extends only to the creation of lots or parcels for conveyance
and use. It does not address and certainly does not purport to require that local governments
deem those lots developable or grant them any special status under local development codes.
Applicant
In 2006, the Board made a similar decision involving property from the United States. In ZC-06-
3 (Pine Forest), the United States conveyed a parcel to private ownership. Pine Forest applied
to rezone the property. In its decision on the rezoning request, the Board determined that the
parcel conveyed was a lot of record reasoning:
Lot of Record: The subject property is a legal lot of record created by a federal deed
dated November 14, 2006 issued by the U.S. Department of Agriculture. This deed is a
legal means of establishing a new lot of record as the U.S. Government is exempt from
State and local land use laws by virtue of the Supremacy Clause of the U.S.
Constitution.
In 2015, the hearings officer confirmed that the parcel involved in the 2006 deed, was a lot of
record thereby affirming that the United States is exempt from State and local land use laws. He
expressly recited that the parcel, "as a federally owned parcel it was not subject to any state or
county subdivision requirements." The only conclusion one can reach from that decision is that
the United States can create lots of record by subdividing its property using surveys, and other
subdivision documents without filing those documents with the County.
Again, if the United States is exempt from State and local land use laws, including County
subdivision requirements, one must conclude that it is not required to record its official survey
plats with the County in order to create parcels it can convey that qualify as lots of record. To
conclude that the United States cannot create lots of record using an official federal survey plat,
but must record a subdivision plat with the County, is directly contrary to federal law that does
not contain any such requirement.
[See applicant's April 5, 2017 submittal for the complete argument.]
Opponents
There is no blanket or field preemption of local or state law when it comes to federal land.
"Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its
territory, but Congress equally surely retains the power to enact legislation respecting those
lands pursuant to the Property Clause [of the U.S. Constitution]. And when Congress so acts,
the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause."
California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 580, 107 S. Ct. 1419 (1987), int.
citations omitted (state mining permit requirements not preempted by Federal Land Policy
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Management Act). Federal law preempts state and local regulation of land only where there is a
conflict. Id.
There is no such conflict here. As in California Coastal Commission, the Federal Land Policy
Management Act is clearly not intended to be per se preemptive of state and local land use law.
Although the Secretary of the Interior has primary authority to manage land use on federal land
under the statute, those "Land use plans of the Secretary under this section shall be consistent
with State and local plans to the maximum extent he finds consistent with Federal law and the
purposes of this Act." 43 U.S.C. §1712. As noted previously, 43 U.S.C. §1718 makes it clear
that a grantee like applicant's predecessor takes title subject to local land use regulations, and
that the Secretary of the Interior "shall not" make conveyances that "would, at the time of the
conveyance, constitute a violation of any law or regulation pursuant to State and local land use
plans, or programs." Applicant's theory would create a violation under that statute, because it
would have conveyed four "parcels" as separate units that were not in fact lots of record for the
grantee under local law.
Fancher
All County hearings officers who have considered the issue of whether federal patents or deeds
create lots of record have determined that the creation of parcels by the federal government by
deed is lawful. In 1992, the Board of Commissioners determined that lots created by federal
patents (deeds) would be recognized as legal lots of record as "[t]o fail to recognize such land
units would impede the federal government in its ability to dispose of its public lands, and the
county in all likelihood be found to be preempted if it were to require the federal government to
sever its lands from the public lands by going through the county land division process." O'Neill -
LR -92-41.
[See Ms. Fancher's April 5, 2017 submittal for her complete argument.]
Issue #2 Did the 1990 subdivision vacate property lines between the 4 original units of
land?
Background
Issue #2, is only relevant if the Board finds that there were 4 units of land (or lots of record)
under Issue #1. The 1990 Seventh Mountain Golf Village plat identified the golf course as "not
in plat". There is significant debate in the record if this plat had the effect of
consolidating/vacating the four BLM units of land. These debates fall under three theories of
consolidation: 1) That consolidation occurred as an effect of the plat under Weyerhaeuser, 2)
That consolidation is precluded under ORS 92.107, and 3) That the Lot of Record definition
(A)(5) specifies that a subdivision can leave "a remainder", not multiple remainders.
Staff Response
Weyerhaeuser. Staff concurs with the applicant and Ms. Fancher that Weyerhaeuser found that
historic lots within a new plat may be consolidated by that plat. In this case, the golf course is
expressly "not in plat" and the plat could not cause a consolidation.
ORS 92.017: Staff believes ORS 92.017 likely precludes the County from consolidating the
BLM "parcels", but does not read this statute to require the County to recognize the remainder
of each "parcel" as Lots of Record.
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Lot of Record (A)(5): This code section describes remainder lots of record created as
follows:
5. By the subdividing or partitioning of adjacent or surrounding land, leaving a
remainder lot or parcel.
Certainly, the 1990 Seventh Mountain Golf Village plat subdivided adjacent land. Staff is
uncertain if the Seventh Mountain Golf Village plat separated the BLM "parcels" into multiple
discontiguous remainders, which are not consolidated under (A)(5). (See Questions 3c, 3d, and
4).
Hearings Officer
Weyerhaeuser: It is not clear how the Golf Village subdivision could create lots that explicitly are
marked. "Not In Plat". Subdivision lots are created by inclusion in a plat. The plat does not label
them as "lots" or "parcels" and shows their "boundaries" only by dashed section lines. There
appears to be no reference to the BLM parcels on the plat. See DCC 18.04.030 B. 2 (section or
township lines do not create lot of record.) It is at least as likely that this means that listing these
as one "not in plat" area effectively consolidated those lawful parcels into one. See e.g.
Weyerhauser Real Estate Dev Co v Polk County, LUBA No. 2011-022 (2011)
ORS 92.017: The Hearings officer did not address this statute.
Lot of Record (A)(5): As regards DCC 18.04.030(A)(5), note that it is written in the singular,
"leaving 'a' remainder lot or parcel." So at most, it would recognize only one lot of record
consisting of all of the "not in plat" areas. The only guidance I found on this provision is in
Decision 247-15- 000633-A (2016) at page 6, in which the Board of Commissioners seems to
state that this provision recognizes only remainders created prior to "modern day" subdivisions.
This is consistent with my understanding of "modern" subdivision provisions, only those portions
in the plat become lots.
Applicant
Weyerhaeuser: The HOA opponents argue that under Weyerhaeuser Real Estate Development
Co. v. Polk County, 63 Or LUBA 393, affirmed 246 Or App 548 (2011), Parcels A, B, C, and D
were consolidated by the 1990 plat. That is another inaccurate point. In Weyerhaeuser, the
petitioner was trying to get the County to recognize old boundary lines that ran through lots that
were subsequently created by a partition process. Petitioner argued that the only way the old
lines could be eliminated was through a process that vacated the old plat. LUBA disagreed and
concluded that under ORS 92.017 there are other formal processes, such as a partition
process, that can vacate previously existing boundary lines.
ORS 92.017: The Applicant is not maintaining that ORS 92.017 itself requires the County to
recognize any lots of record. Rather, ORS 92.017 mandates that the County recognize the
boundary lines of Parcels A, B, C, and D that were not vacated by the 1990 plat. The remainder
parcels qualify as lots of record under the County code, not under ORS 92.017. It is the County
code that provides the basis for the Applicant's position that he has eleven (11) lots of record.
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Under ORS 92.017, Thomas v. Wasco County and the Board's decision in the Tumalo Irrigation
matter, the original boundary lines of Parcels A, B, C, and D, which were not vacated on the
1990 plat cannot be disregarded.
Lot of Record (A)(5): Lastly, the HOA opponents argue that under DCC 18.04.030.A.5, the
Applicant can only have a single lot of record verified. The text of that provision, in context,
informs that it can be applied to any parcel that is created by subdividing adjacent or
surrounding property. The text refers to "a remainder" because the provision must be applied to
each remainder parcel in question. The HOA opponents' argument, if accepted, would lead to
the inefficient and wasteful process where an owner would have to file multiple applications for
each remainder parcel. Furthermore, the Board has previously confirmed that multiple
remainder parcels can be verified as lots of record under DCC 18.04.030.A.5. Board's Decision
in Tumalo Irrigation, p. 6.
HOA Opponents
Weyerhaeuser.- As the Hearings Officer property pointed out, Oregon courts have recognized
that a land owner or land use proceeding can consolidate lawful parcels into one, where a plat
or partition map "does not indicate the continued existence of the lots that were [previously]
partitioned." Weyerhauser Real Estate Development Co. v. Polk County, 63 Or LUBA 393,
affirm., 246 Or App 548 (2011 ). In this case, the Widgi Creek developer created 107 residential
lots surrounding the golf course under MC -90-14 and the 1990 Seventh Mountain Golf Village
plat. (Exhibit 3). The plat showed the parent property as being either in the plat, or outside it
("not in plat"). It made no reference to the "parcels" listed in the unrecorded and unfiled BLM
resurvey and did not indicate that any such parcels would continue to exist. Although the plat
shows dashed lines intersecting the property, it is only because they are intersecting section
lines, not in relation to the BLM resurvey. The plat created 107 residential lots, and 1 single
remainder area, designated "not in plat."
ORS 92.017: Staff is unable to locate testimony specific to this issue.
Lot of Record (A)(5): As the Hearings Officer pointed out, the ordinance provides for only one
single remainder lot or parcel ("a remainder lot or parcel'), not multiples. As the Board of
Commissioners found in its Decision in 247-15-000633-A (Tumalo Irrigation District), the intent
of subsection (5) was to recognize only those remainders that resulted from older subdivisions,
and that in "modern day" subdivisions "only those portions in the plat become lots."
COLW Opponents
Weyerhaeuser., The Golf Village subdivision could not have created lots that are explicitly
marked "not in plat." We agree with the Hearings Officer's conclusion that lots were not created
thereby, but could have been consolidated. See Weyerhaeuser Real Estate Development Co. v.
Polk County, 63 Or LUBA 393, aff'd 246 Or App 548 (2011).
ORS 92.017: ORS 92.017 does not apply to parcels created by deed. The legislative history of
ORS 92.017 in LUBA's Kishpaugh decision specifically states that ORS 92.017 does not apply
to lots of record, and so is inapplicable to this case. Kishpaugh v. Clackamas County, 24 Or.
LUBA 164,172 (1992).
Lot of Record (A)(5): Staff is unable to locate testimony specific to this issue.
Fancher
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Weyerhaeuser.- The Weyerhaeuser case cited by Mr. McGean stands for the proposition that
subdivision lots located within the boundaries of platted partition parcels are eliminated by the
partition plat. The legal effect of the plat is to eliminate old parcels where new ones are created.
Where, as here, the plat specifically states that certain land is not a part of the plat, no new lots
are created to eliminate lawfully established property lines.
ORS 92.017: Beleveron disagrees with Mr. McGean's argument that the plat of the Seventh
Mountain Golf Village eliminated lawfully created lots. If the Board agrees with Mr. Kine's
position and finds that the BLM subdivision created four lots, the boundaries of those lots are
protected by ORS 92.017. The lots meet the definition of a "lot" provided by ORS 92.010 and
the County's codes. The materials I am filing with this letter (listed above) set out a similar
argument for parcels created by deed.
Lot of Record (A)(5): The Seventh Mountain Golf Village subdivision, on its face, excluded a
part of the parent parcel or parcels from the land platted and this area is a remainder lot of
record or multiple lots of record.
Issue #3 Are remainder units of land required to meet dimension and size standards
to be Lots of Record?
Background
The lot of record definition begins with:
"Lot of Record" means:
A. A lot or parcel at least 5, 000 square feet in area and at least 50 feet wide, which
conformed to all zoning and subdivision or partition requirements, if any, in effect
on the date the lot or parcel was created, and which was created by any of the
following means:
This threshold section can be summarized with a three -prong test:
1. Is the lot or parcel at least 5,000 square feet in area and at least 50 feet wide,
2. Did it conform to all zoning and subdivision or partition requirements, if any, in effect
on the date the lot or parcel was created, and
3. Was the lot or parcel created by one of the means identified in (A)(1, 2, 3, 4, or 5)?
Staff notes that the parties have not provided the acreages of proposed lots of record. The
record will need to be reopened to for the parties to establish the lot sizes of the proposed lots
of record.
Staff Response
Staff believes that there is no debate that any remainders created in the golf course comply with
the stated area and width requirements. Here, the Board will need to interpret the second part
of Section A, specifically, required compliance with zoning standards.
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The zoning in effect was Forest F2 in 1990 with a 40 -acre minimum. Staff believes that that any
remainders created under (A)(5) should only be recognized as Lots of Record provided they
meet this zoning requirement.
Staff believes the Applicant misinterprets the "at least 5,000 square feet in area and at least 50
feet wide" requirement. This separate, and not superfluous, requirement is to prevent units of
land (predominantly created prior to zoning) as access drive parcels (less than 50 feet wide)
and plainly undevelopable units of land (less than 5,000 square feet in area) as being
recognized as separately developable Lots of Record. Staff is uncertain what "conformed to all
zoning... requirements" would mean under the applicant's interpretation.
Although the applicant did not provide the acreages of the 11 proposed lots of record, staff
believes that only proposed Lot of Record #10 exceeded 40 acres at its time of creation in 1990
and appears to continue to exceed 40 acres today.
Hearinas Officer
Finally, before turning to (5), as staff notes the Lot of Record definition, at the outset, requires
that the lot or parcel conform to "all zoning and subdivision or partition requirements, if any, in
effect on the date the lot or parcel was created". In 1984 the parcel was zoned FU3 under PL -15
with a minimum lot area of 20 acres. At least one "parcel" - 'A' is less than 20 acres; thus the
division into four parcels did not meet the zoning standards at the time.
[Staff notes that the Staff Report before the Hearings Officer misidentified the zoning of the
property as F3, with the different minimum parcel size.]
Applicant
DCC 18.04.030A states that a parcel must be at least 5,000 square feet. The Applicant submits
that the hearings officer's conclusion cannot be accepted. In general, lot of record provisions are
designed to allow development on lots that do not meet all of the substantive standards for lots.
DCC 18.04.030A establishes the only size requirement for lots of record. They must be at least
5,000 square feet regardless of what zone they are in. If the hearings officer's rationale is
accepted, DCC 18.04.030A is superfluous. If parcels had to be at least 5,000 square feet and
also meet the minimum size for lots in the underlying zone, there would be no reason to have
the 5,000 square -foot requirement. It would be enough to state that to qualify as a lot of record,
parcels must meet the minimum size for lots within the applicable zone.
Opponents
The opponents concur with the Hearings Officer that minimum acreages from the zoning
ordinance apply to remainders.
Question 3A. What were the standards that applied in 1990 for lots?
Background
The record is limited at this point to a staff assertion that the minimum lot size in 1990 was 40
acres.
Staff Response
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Staff recommends reopening the record to allow additional evidence and argument on the effect
of the zoning standards in effect in 1990.
Question 313. What were the standards in effect when post -1990 plats acted on parts
of the golf course?
Background
The parties provided analysis of the Lot of Record status of the golf course only to 1990.
Remainder #10, however, was further reduced by the Elkai Woods 1 (1997), II (1997), III (1999),
IV (2000), V (2003), and VI (2005) subdivisions; lot line adjustments to accommodate the Points
West subdivision and Milepost 1 subdivision; Inn of the Seventh Mountain subdivisions, and tax
lots 181122DC06500, 181122C001701, and 181122C001700. No party has provided analysis
of the effect of the on the Lot of Record status on remainder #10 of these subsequent actions.
Does the Board want to issue a decision that does not complete the Lot of Record analysis for
the area the Applicant identifies as remainder #10? Alternatively, does the Board want to
reopen the record?
Staff Response
Staff recommends reopening the record to allow additional evidence and argument on the effect
of post -1990 land use actions on the lot of record status of the golf course.
Question 3C. Can remainders come from any surrounding "units of land", or do they
need to come out of prior Lots of Record?
Background
Question 3c is addressed as part of Questions 1 and 2, but merits careful consideration
because of the policy implications for other Lot of Record decisions. For example:
The Board decided in TO that a land division by deed (prior to land division ordinances)
could leave remainders. In that decision, it was assumed that the parent parcel would
be a pre-existing lot of record. If this is in fact not a requirement, how is the parent
parcel identified in the case of tract' ownership?
This question need not be answered at this point, but the Board's decision in this matter is likely
to be determinative in such a case and could reverse longstanding policy.
Staff Response
Staff has long assumed that a parent parcel needs to be a lot of record in order to leave
remainders that are recognized as lots of record under this section. Staff notes that this
requirement is not explicit in this criterion. Staff recommends that the Board reopen the record
for parties to brief on this issue.
4 DCC 18.04.030 - "Tract" as used in DCC 18.16, 18.36 and 18.40, means one or more contiguous lots or parcels in
the same ownership. A tract shall not be considered to consist of less than the required acreage because it is
crossed by a public road or waterway.
-17-
Question 3D. When Lot of Record section (A)(5) says "a remainder", does it mean one
per land division?
Background
Questions 3d is addressed as part of Question 2, but merits careful consideration because of
the policy implications for other Lot of Record decisions. In a typical remainder scenario, a
single pre-existing lot of record (the "parent parcel") is divided and the portion of the parent
parcel that is not identified as part of the new lots/parcels is the remainder. It is likely the
drafters of this section did not contemplate scenarios where the parent parcel is comprised of
several lots of record or units of land.
The Board's interpretation of this question will likely be determinative in a variety of Lot of
Record determinations where the divided land separate non-contiguous reminders of the parent
parcel.
Staff Response
Staff recommends that the Board reopen the record for parties to brief on this policy question
and issue.
Issue #4 Do discontiguous remainder units of land create separate Lots of Record?
Background
As documented in the Board decision in O'Neil, the County has long assumed that a Lot of
Record could not be composed of non-contiguous areas. Unfortunately, how to regard a non-
contiguous area that would otherwise be regarded as a single lot of record is not addressed in
the Lot of Record definition.
Staff Response
Staff recommends that the Board reopen the record for parties to brief on this policy question
and issue.
Question 4A. Do the "road tracts" create discontiguity?
Background
The Lot of Record definition specifies:
C. The following shall not be deemed to be a lot of record.-
2.
ecord:
2. A lot or parcel created by an intervening section or township line or right of way.
Title 18 defines "right-of-way" and "road or street" as:
"Right of way" means the area between the boundary lines of a street, road or other
public easement.
-18-
"Road or street" means a public or private way created to provide ingress or egress to
one or more lots, parcels, areas or tracts of land.
Staff Response
Staff believes Tract A and B in Seventh Mountain Golf Village plat (see plat note) are plainly
private ways, created to provide ingress or egress to the Seventh Mountain Golf Village lots.
Therefore, Track A and B fall under the definition of "road or street". Since they constitute "road
or street", the area between their boundaries is "right-of-way". Therefore, Tract A and B, by
themselves, cannot divide a property into multiple Lots of Record.
The parties did not specifically brief on this issue. The applicant's theory of Lot of Record
depends implicitly on a theory that Tract A and B are not "right-of-way".
Staff recommends that the Board reopen the record for parties to brief on this issue.
Question 4113. What is the effect of prior Lot of Record determination on the same
property?
Background
Prior land use approvals have found that the golf course, or portions thereof constitute Lots of
Record. Reapplication to revisit Lot of Record determinations are expressly allowed under Title
22:
22.28.040. Reapplication Limited.
A. If a specific application is denied on its merits, reapplication for substantially the
same proposal may be made at any time after the date of the final decision denying
the initial application.
B. Notwithstanding DCC 22.28.040(A), a final decision bars any reapplication for a
nonconforming use verification or for a determination on whether an approval has
been initiated. A lot of record determination shall be subject to reapplication under
DCC 22.28.040(A) only if the applicant presents new factual evidence not submitted
with the prior application.
The applicant has presented new factual evidence not submitted with prior applications in the
form of deeds and surveys.
Staff Response
Staff is uncertain if the applicant has "reapplied" under DCC 22.28.040 for a lot of record
determination for the subject property. As such, staff believes that the Board's determination in
this matter would be final and would supersede any prior determinations on the Lot of Record
status for the golf course. Staff believes other parties did not brief on this issue. Staff
recommends that the Board reopen the record for parties to brief on this issue.
Applicant
Similarly, prior applications cannot be used to preclude the current request under notions of
claim or issue preclusion. In a later proceeding in the Lawrence matter, the court of appeals
explained that in land use matters, applicants have the right to file successive applications even
for the same development. Lawrence v. Clackamas County, 180 Or App 495, 503, 43 Pad 1192
(2002). DCC 22.28.040 expressly authorizes an applicant to reapply for lot of record verification
if the applicant presents new factual evidence not submitted with the prior application. No one
can dispute the fact that the Applicant presented significant evidence never before presented in
a lot of record verification application related to the subject property.
Question 4C. It not is necessary to determine if the subject property is one, zero, or
many "lawfully established unit of land" under ORS 92?
Background
ORS 92 includes a "lawfully established unit of land" definition that has many similarities to the
County's "lot of record". Staff notes that this issue was not the subject of the initial application
and no detailed analysis was provided by the parties. Moreover, a Count Lot of Record
determination is not dependent on the property's "lawfully established unit of land" status under
ORS 92.
Staff Response
The Board has determined that this question, of a separate state statute, is not properly before
them.
Record
The record materials are available as text -searchable PDF files at:
P:\CDD\Kine Lot Of Record Appeal\Record
-20-
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