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HomeMy WebLinkAboutDoc 629 - Russell Appeal DecisionDeschutes 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 November 2, 2011 Please see directions for completing this document on the next page. DATE: October 27,2011 FROM: Cynthia Smidt Community Development Department 317-3150 TITLE OF AGENDA ITEM: Consideration of adoption of Document 2011-629 approving a Lot of Record Verification. (Applicant: John W. Russell; File No. A-II-3 (A-ll-1 and LR-1O-8). PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: On September 26,2011, the Board held a de novo public hearing regarding an appeal (A-II-3) filed by the applicant, John W. Russell, and who was represented by attorneys, Robert Lovlien and Steven Pfeiffer. The appeal is in response to the Hearings Officer's decision, file nos. A-ll-l and LR-08-11, denying the applicants' request for a Lot of Record Verification. The Board conducted a hearing on September 26, 2011 and deliberated on the matter, rendering an oral approval of the application. The document is staff's recommendation for the written Board decision. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: Motion: Approval of Document No. 2011-629. ATTENDANCE: Cynthia Smidt DISTRIBUTION OF DOCUMENTS: Cynthia Smidt, Planning Division Page 1 of 5 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in LR-10-8 (Russell) – Deschutes County Document No. 2011-629 For Recording Stamp Only DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS FILE NUMBERS: A-11-3 / A-11-1/ LR-10-8 APPELLANT/ PROPERTY OWNER: John W. Russell 200 Market Building, Suite 1720 Portland, OR 97201 APPELLANT REPRESENTATIVES: Steven Pfeiffer Perkins Coie LLP 1120 NW Couch Street, Tenth Floor Portland, Oregon 97209-4128 Robert Lovlien Bryant, Lovlien & Jarvis, PC PO Box 880 Bend, OR 97702 REQUEST: The applicant is requesting a lot of record determination for 5.10 acres of property located on Deschutes County Assessor's Map 15- 11-19A, tax lot 100. I. APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, Deschutes County Zoning Ordinance Chapter 18.04.030 Definitions -"Lot of Record." 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; REVIEWED ______________ LEGAL COUNSEL Page 2 of 5 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in LR-10-8 (Russell) – Deschutes County Document No. 2011-629 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. 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. ORS Chapter 92 II. FINDINGS OF FACT: A. LOCATION: The property is located at 17590 Forked Horn Drive, Sisters, Oregon and is further identified on Deschutes County Assessor's Map 15-11-19A as Tax Lot 100. B. ZONING: The property is zoned Multiple Use Agricultural (MUA). C. SITE DESCRIPTION : The subject property is an approximately 5.10 acre parcel located in a rural residential area outside of Sisters, Oregon. D. SURROUNDING LAND USES: The subject property is surrounded by rural residential lots, the majority of which are less than 10 acres in size, and zoned MUA. E. PROPOSAL: The appellant appealed the Hearings Officer's decision denying verification of appellant's property as a legal Lot of Record and requested that the Hearings Officer's decision be reversed. F. PROCEDURAL HISTORY: The lot of record verification application was first filed on November 2, 2010 in LR-10-8. The Planning Division reviewed the application and issued a preliminary decision on December 7, 2010 finding that the subject property does not meet the county code definition of a lot of record. The Planning Division gave the applicant until December 22, 2010 to submit any additional information in support of its position. In response, the applicant's attorney, Robert Lovlien, submitted a letter dated December 21, 2010 containing further evidence and argument. On January 21, 2011, the Planning Division issued its Final Decision determining that the subject property was not Page 3 of 5 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in LR-10-8 (Russell) – Deschutes County Document No. 2011-629 a legal lot of record. On February 1, 2011, the applicant appealed the Planning Division's decision in A-11-1. A hearing on the appeal was held before the Hearings Officer on March 15, 2011, and the record was closed on April 5, 2011. On May 27, 2011, the Hearings Officer issued his Final Decision affirming the administrative decision denying verification of the subject property as a lot of record. On June 8, 2011, the applicant appealed the Hearings Officer's decision in A-11-3. On July 27, 2011, the Board of County Commissioners ("Board") adopted Order No. 2011-019 accepting de novo review of such appeal. On September 26, 2011, the Board held a duly noticed de novo public hearing and granted the appeal. The 150-day deadline in ORS 215.427 is not applicable to this decision. III. CONCLUSIONS OF LAW: Tax Lot 100 History The subject property (Tax Lot 100) was conveyed in a recorded Warranty Deed on December 1, 1969, together with another area of land (Tax Lot 200). The 1969 Warranty Deed specifically describes the property subject to the Deed as "Two parcels of land" and provides a separate legal description for each parcel. Each legal description is separated into its own paragraph and has different points of beginning. At the time of the 1969 conveyance, no applicable subdivision or partition ordinance, and no applicable zoning code, existed in Deschutes County. In 1969, Oregon Revised Statute (ORS) 92 did require subdivisions with lots less than 5 acres each to be approved by the local governing body. A survey of a subdivision containing the subject property was filed with Deschutes County in 1965 (survey no. CS00688). However, the survey does not contain signatures by the County Commissioners at the time, which would indicate the lack of a formally approved subdivision by the local governing body. Lot of Record Analysis Applicant applied for verification of lot of record under DCC 18.040.030(A)(3). Therefore, the Board will review this application for compliance with the lot of record definition of: 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: * * * * * * 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 Page 4 of 5 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in LR-10-8 (Russell) – Deschutes County Document No. 2011-629 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; In the present case, the Board finds that the Hearings Officer erred in failing to consider the express language of the subject deed. Here, the express language of the 1969 deed conveying Tax Lot 100 and Tax Lot 200 clearly defined the conveyance of two completely separate and distinct lots. Specifically, the subject deed describes the property subject to the deed as "Two parcels of land" and provides a separate metes and bounds description for each parcel. Moreover, each legal description is separated into its own paragraph and has different points of beginning. Together with the above finding, the Board believes the property owner/developer at the time intended to establish an orderly subdivision with lots greater than 5 acres each. The 1969 version of ORS 92.010 defines ‘subdivision’ as an act of ‘subdividing land’. Furthermore, ‘subdividing land’ meant dividing “land into four or more parcels of less than five acres….” The Board acknowledges that, in 1969, based on ORS 92.040, it was necessary for a developer to make application for approval to the local county governing body before recording the subdivision plan. However, based on the state’s 1969 definitions addressed above, the Board finds the developer only needed to make application for approval by the local governing body if the subdivision lots were less than 5 acres each. The Board notes that the subject property was included in a 26-lot subdivision with lots at least 5 acres in size each, a survey of which was filed with the County in 1965. The Board finds that the filed survey represents the functional equivalent of a recorded subdivision thus meeting the state law in place at the time. Therefore, the Board finds that Tax Lot 100 meets the definition of 'Lot of Record' in DCC 18.04.030 and is hereby validated as a 'Lot of Record.' / / / Page 5 of 5 - DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS in LR-10-8 (Russell) – Deschutes County Document No. 2011-629 IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Deschutes County Board of Commissioners hereby APPROVES the applicant’s request for “lot of record” status for the subject property. Dated this _______ of ___________, 2011 BOARD OF COUNTY COMMISSIONERS ______________________________________ TAMMY BANEY, CHAIR ______________________________________ TONY DEBONE, COMMISSIONER ATTEST: ______________________________________ Recording Secretary ______________________________________ ALAN UNGER, COMMISSIONER Mailed this ____day of ______________, 2011. THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL.