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Home My WebLink AboutDoc No 2014-442 Building Setback ExceptionDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of August 27, 2014 Please see directions for completing this document on the next page. DATE: August 18, 2014 FROM: James Lewis Property and Facilities 541-385-1414 TITLE OF AGENDA ITEM: Consideration of Board signature of document 2014-442, a Restrictive Covenant to allow a Building Setback Exception adjacent to County owned Surface Mine property. PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: Deschutes County received a request from David Nelson to enter into an agreement to allow a reduced building setback from a proposed home sited on his property to the boundary with an adjacent County owned parcel that is zoned Surface Mine (SM). Pursuant to Deschutes County Zoning Code regulations (Section 18.56.070(D), an exception to the 250 foot setback established for noise and dust sensitive uses from an adjacent SM zoned property in the Surface Mine Impact Area (SMIA) Combining Zone is allowed upon an agreement between both property owners. Pursuant to the land use approval of SMA -14-5, the recordation of such an agreement is required prior to issuance of a building permit for the proposed home. The agreement, which is a Restrictive Covenant attached to the properties, states that Mr. Nelson and subsequent property owners agree not to make any claims or protests to mining operations (or the impacts thereof) occurring on the County SM property in exchange for the reduced building setback. By entering into the agreement, Deschutes County is afforded specific protection from any future claims against the impacts of mining operations on the County property from the adjacent parcel owned by Mr. Nelson. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Staff recommends Board signature of document 2014-442. ATTENDANCE: James Lewis DISTRIBUTION OF DOCUMENTS: Original to James Lewis for recording, with copies provided to both parties. Return To: David Nelson 2502 SW Arden Rd. Portland, OR 97201 RESTRICTIVE COVENANT WHEREAS, Deschutes County is the owner (Owner) of that certain parcel of real property described as follows (the Dominant Estate): East one half (1/2) of the Southwest one-quarter (1/4) of Section 31, lying in Township 14 South, Range 11 East, of the Willamette Meridian; Deschutes County Tax Assessor's Map No. 14-11-31C, Tax Lot 100 WHEREAS, the Dominant Estate contains valuable deposits of mineral and aggregate resources on a portion of the Dominant Estate that is zoned Surface Mining (SM) by Deschutes County (see Exhibit A attached hereto), and is further identified as mine site #469 in Deschutes County's Goal 5 inventory of aggregate resources adopted by the Board of County Commissioners on December 6, 1988; and, WHEREAS, David W. Nelson ("Covenanter") is the owner of that real property as described in Exhibit B attached hereto (the Servient Estate); and, WHEREAS, Covenanter wishes to site a dwelling within 250 feet of the portion of the Dominant Estate zoned SM; and, WHEREAS, the Servient Estate is within the Surface Mining Impact Area Combining Zone (SMIA), which requires that new dwellings, which are considered to be noise and dust sensitive uses under the Deschutes County Zoning Ordinance, be set back at least 250 feet from property zoned SM; and, WHEREAS, Section 18.56.070(D) of the Deschutes County Zoning Ordinance allows for an exception to the 250 setback established for noise and dust sensitive uses in the SMIA Combining Zone pursuant to a written agreement between the owner of the Dominant Estate and the Servient Estate; and WHEREAS, Covenanter desires to gain such a setback exception in a manner that avoids any future grievance or disputes over the operation and attendant uses arising out of a surface mine on the Dominant Estate. NOW THEREFORE, in consideration of $ -0- paid, Covenanter, David Nelson and Owner, Deschutes County this date and mutual promises contained herein, the parties agree as follows: SMIA-14-5 / DC Document No. 2014-442 IJC -2014fr442 1. Deschutes County (Owner) agrees to permit and exception to the 250 foot setback in Section 18.56.070(D) of the Deschutes County Zoning Ordinance, to the extent necessary to place a house in accordance with Deschutes County SMIA File # SMA -14- 5. 2. Covenanter shall not make any claim or protest, or file any legal proceedings that he or any successor in interest might otherwise have a right to file, complaining of or seeking any legal or equitable relief against the visual, noise, dust, reclamation, traffic or any other similar impacts from surface mining activities lawfully conducted under and in conformance with Department of Geology and Mineral Industries (DOGAMI) standards on the Dominant Estate. 3. This Restrictive Covenant shall be recorded in the real property records of Deschutes County, Oregon, run with the land, and shall be binding upon Covenanter's heirs, successors and assigns, and on any person acquiring through Covenanter any right or interest in the Servient Estate. 4. This Restrictive Covenant shall be extinguished when all of the following have been completed: a. All extraction and processing activity on the Dominant Estate has been completed. b. All reclamation required by law has been completed. c. The Dominant Estate has been re -zoned to remove the SM designation from any part of the property to the zoning designation appropriate to the subsequent use of the Dominant Estate. Termination shall be evidenced by a statement in recordable form fumished by Deschutes County (Owner) or its successors to the Covenanter or his successors. 5. If any action or proceeding is commenced to enforce any provision of this Restrictive Covenant, or to protect or to establish any or remedy of either party hereunder, the prevailing party in such action or proceeding, as determined by the presiding authority, shall be entitled to recover, in addition to its reasonable costs and expenses, reasonable attorney's fees incurred before and at any hearing or trial, and appeal or petition for review therefrom, in any amount established by the presiding authority thereof. SIGNATURES ON FOLLOWING PAGE SMIA-14-5 / DC Document No. 2014-442 Page 2 DATED this day of , 2014 ATTEST: Recording Secretary STATE OF OREGON County of Deschutes ) ss. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TAMMY BANEY, Chair ANTHONY DEBONE, Vice -Chair ALAN UNGER, Commissioner Before me, a Notary Public, personally appeared TAMMY BANEY, ANTHONY DEBONE and ALAN UNGER, the above-named Board of County Commissioners of Deschutes County, Oregon and acknowledged the foregoing instrument on behalf of Deschutes County, Oregon. DATED this day of , 2014 Notary Public for Oregon Dated this /3 day of 400457-, 2014 STATE OF OREGON County of Deschutes ) ss. } My Commission Expires: ALQ01-._ D W.NELS N OFFICIAL SEAL RAEGENE D ARENDT NOTARY PUBUC - OREGON COMMISSION NO. 460610 MY COMMISSION EXPIRES AUGUST 20, 2015 On this 1.3 day of vt)f- , 2014, before me personally appeared David W. Nelson, known to me to be the individual described in the above document, who acknowledged the foregoing instrument as his free act and deed. Notary Public for Oregon My Commission Expires: ' ` '' c3 ul S SMIA-14-5 / DC Document No. 2014-442 Page 3 M • 41 EXHIBIT "A" iI DI 00t, .ii'$ mE °` N a i E 1 1 1 i 1 . e.y I.. • r.auY AM PIN i (1 {Tnm'.1.41,P11...$1•4•12,1w auaaaaus��a . w . w . w 44••54 Aa••• '•wt• .•... , /w+'•42V: .". irrwelm-z.—'I.w�..RLf•Li ..ir•j •• w•v e.. wir. A...4% •• i . r.` •d., • �M.uf .•w w� .. tir..� a 7 4,..,. j v . ji Y '' 'N f } I r. ri�1 '�y►.. "...OWN."' ..�rrt „ : x y.. vrr- M31A Sb31SIS i+` ,•f / .V' :4 03 11 i.i.. o. V 1 J S ��ii� 1" M .41441= pi iA dow ns 1 1 EXHIBIT "B" The Northerly 10 acres of the Southwest Quarter of the Southwest Quarter (SW 1/4SW l/4) of Section Thirty-one (31), Township Fourteen (14) South, Range Eleven (11), East of the Willamette Meridian Deschutes County, Oregon. AND ALSO a parcel of land situate in a portion of the Southeast Quarter of the Southwest Quarter (SEJ/4SW]/4) of Section Thirty-one (31), Township Fourteen 04) South, Range Eleven (11), Fast dux Willamette Meridian, Deschutes County, Oregon more panicularly described as follows: conunencing at a 5/8" rebar monumenting the Wcst Quaner cornet of Sectio» 31, Township 14 South, Range 11, East of the Willamette Meridian, Deschutes County, Oregon, the initial point; thence South 89°39'12" East along the North line of the Southwest Quarter (SW1/4) of said Section 31, 1194.60 feet to the West line of the Northeast Quarter of said Southwest Quarter (NEI/4SW1/4); thence South 00°16'29" Wcst along said West line, 1328.21 feet to the Northwest corner of the SE1/4SW I/4 and the true point ofbeginning; thence South 00°16'29" West along the West line of said SEI/4SW1/4, 346.23 feet; thence South 89°36'04" East parallel with the North lint of said SIE/4SW1/4, 70.90 feet to a 1/2" pipe; thence North 00°16'29" East parallel with said West line, 346.23 feet to said North line, from which the Southeast corner of Lot Four (4), Block Eight (8), PANORAMIC VIEW ESTATES bears North 00°44'27" East, 2.56 feet; thence North 8963604" West along said North line, 70.90 feet to the point of beginning.