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HomeMy WebLinkAboutHear Appeal - COICTES o/ A 7.ter'"_ Deschutes 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 April 20, 2009 Please see directions for completing this document on the next page. DATE: April 14, 2009 FROM: Cynthia Smidt Community Development Department 317 -3150 TITLE OF AGENDA ITEM: Consideration of whether to hear an appeal of the Hearings Officer's decision denying a request for a Lot of Record Verification. (Applicant: Central Oregon Irrigation District) File No.: A -09 -2 (LR- 08 -11) PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: Before the Board is an appeal filed by the applicant, Central Oregon Irrigation District, for the lot of record verification. The appeal is submitted in response to the Hearings Officer's decision denying the applicant's verification of a legal Lot of Record. The applicant appeals the denial of the Lot of Record to request the Board to reconsider the request based on three (3) arguments. The applicant believes the Hearings Officer "improperly construed applicable law" and "exceeded its jurisdiction" in the decision as well as making the decision "not supported by substantial evidence in the whole record." The applicants request a de novo review. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: The action requested of the Board is to decide whether to hear the appeal and if so, whether to hear the appeal de novo review, on the record, or at the Board's discretion, limit the issues on appeal to one or more specific issues raised on appeal. Additional background information is attached. ATTENDANCE: Cynthia Smidt DISTRIBUTION OF DOCUMENTS: Cynthia Smidt Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701 -1925 (541)388 -6575 FAX (541)385 -1764 http : / /www.co.deschutes.or.us /cdd/ MEMORANDUM DATE: April 14, 2009 TO: Board of County Commissioners FROM: Cynthia Smidt, Associate Planner RE: Appeal (A -09 -2) by Central Oregon Irrigation District of Hearings Officer decision denying a request for a Lot of Record Verification (file no. LR- 08 -11). Before the Board is an appeal filed by the applicant, Central Oregon Irrigation District, for the lot of record verification. Elizabeth Dickson represents the applicant. The appeal is submitted in response to the Hearings Officer's decision denying the applicant's verification of a legal Lot of Record. The applicant appeals the denial of the Lot of Record and requests the Board hear the appeal based on three (3) arguments. The applicant believes the Hearings Officer "improperly construed applicable law" and "exceeded its jurisdiction" in the decision. Further, the Hearings Officer made a decision "not supported by substantial evidence in the whole record." BACKGROUND The subject property is approximately 33.83 acres and is located at 64555 Highway 97, between the cities of Bend and Redmond, and is further identified on County Assessor tax map 16 -12 -34 as tax lot 700. It is owned by Oregon State Parks and Recreation Department. Highway 97 bisects the subject property separating the southeast portion of the property from the northwest portion. The applicant filed for a Lot of Record to determine if the 10.66 acres that lies southeast of Highway 97 is a separate legal lot of record. On April 25, 2008, Planning Division staff issued a preliminary decision on the request. Because of differing interpretations of an Oregon Court of Appeals case coupled with changes to Oregon Revised Statute (ORS) 92 and how they related to the subject property, the application was referred to the Hearings Officer who held a public hearing on February 24, 2009. The Hearings Officer issued a decision denying the applicant's Lot of Record verification request on March 12, 2009. On March 24, 2009, the applicant filed a notice of appeal of the Hearings Officer's decision and requested a de novo review. Pursuant to Title 22 (22.20.040(D)(3)), Deschutes County Code exempts Lot of record determinations from the 150 -day time limit. Based on the filed notice of appeal, the applicant requests that the Board re- evaluate the Hearings Officer's decision based on three arguments. A majority of the Hearings Officer's decision uses Oregon Court of Appeals case, Lovinger v. Lane County in 2006 (206 Ore. App. 557) and ORS 92 in its review. The appellant believes that the Hearings Officer "improperly Quality Services Performed with Pride construed applicable law" as detailed in the Lovinger case. Furthermore, the appellant argues that the Hearings Officer did not use the appropriate date of creation of the roadway. As indicated previously, the appellant argues in the Notice of Appeal that the decision made by the Hearings Officer was "not supported by substantial evidence in the whole record." Lastly, the appellant argues the Hearings Officer decision "exceeds its jurisdiction" because the analysis is inconsistent with the Lovinger case. APPEAL The notice of appeal describes relevant background facts and the reasons for appeal. As detailed in DCC 22.32.020(A), the Board should review the notice of appeal to determine that it is sufficiently specific so that the Board is able to respond to and resolve each issue in dispute. If the Board decides to hear the appeal, the review shall be on the record unless the Board, under its own motion, decides to hear the appeal de novo (DCC 22.32.027(B)(1) and (3)). As noted above, the appellants have requested a de novo hearing. Per DCC 22.32.027(B)(4), the Board, may, at its discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal, or to one or more specific issues from among those listed on the notice of appeal. DECLINING REVIEW If the Board of County Commissioners decides that the Hearings Officer's decision shall be the final decision of the County, then the Board shall not hear the appeal and the party appealing may continue the appeal as provided by law. The decision on the land use application becomes final upon the mailing of the Board's decision to decline review. As indicated in DCC 22.32.035(B) and (D), in determining whether to hear an appeal, the Board may consider only: 1) The record developed before the Hearings Officer; 2) The notice of appeal; and 3) Recommendations of staff. STAFF RECOMMENDATION Staff recommends the Board not hear this appeal because staff believes that the applicant/appellant was able to present all relevant evidence at the hearing before the Hearings Officer. In essence, the applicant received a full and fair hearing in front of the Hearings Officer. Staff agrees with the Hearings Officer's analysis and decision. In addition, staff does not believe the Hearings Officer decision presents any policy issue. SCHEDULE This item is scheduled for the Board's regular meeting on April 20, 2008. Please feel free to contact me at your convenience with any questions or concerns. Attachments: Hearings Officer decision on file no. LR -08 -11 Notice of Intent to Appeal Staff Preliminary Decision on file no. LR -08 -11 File No.: A092 (LR0811) Page 2 of 2 -CE { Community Development Department Planning Division 117 NW Lafayette Avenue, Bend, OR 97701 -1925 (541) 3886575 - Fax (541) 385 -1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. It is the responsibility of the Appellant to complete a Notice of Appeal as set forth in Chapter 2232 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Appellants Name (print): Central Oregon Irrigation District Phone: (5.41) 548 -6047 Mailing Address: 1055 SW .Lake Court City/State /Zip: Redmond OR 97756 Land Use Application Being Appealed: ILR- -08 -11 Lot of Record Determination (10.66 acre separate denied) Property Description: Tow. .p 16 Range 12 Section 34 Tax Lot 700 (10.66 + /- SE. portion) Appellant's Signature: li.eth A. Dickson General Counsel for Central Oregon Irrigation District EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON- THE - RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) SCAM+° ©i -2_ MAR 2 4 2009 1/07 Page 1 Appeal LR -08 -11 Central Oregon Irrigation District Appeal of Lot of Record Determination Decision FILE NUMBER: APPLICANT: REQUEST: STAFF REVIEWER: HEARINGS OFFICER: HEARING DATE: DECISION MAILED: APPEAL REQUESTED: NOTICE OF APPEAL LR -08 -11 Central Oregon Irrigation District Lot of Record Determination 16 -12 -34 TL 700 10.66 acre SE Portion Cynthia Smidt, Associate Planner Kenneth D. Helm February 24,2009 March 12, 2009 March 24, 2009 I. STATEMENT OF SPECIFIC REASONS FOR APPEAL A. The Hearings Officer's Decision Improperly Construed Applicable Law 1. The Decision Erroneously Asserts that Division by Road under Lovinger Must Still Comply with Local Partition Rules in Place at Time of Division Hearings Officer Helm properly identifies Ch. 18.04.030 as guiding in the determination of what constitutes a Legal Lot of Record pursuant to Deschutes County Code. He acknowledges that the legal issue rests on the last condition of compliance, which reads: "[A]nd which was created by any of the following means: 1. By partitioning land as defined in ORS 92." ORS Ch. 92 is thus incorporated into the County's requirements to fmd that a legal lot of record exists. If an applicant complies with the other requirements and ORS Ch. 92, legal lot of record is properly found. Ordinarily, ORS 92.014(2) requires county approval to create a new lot within the county. Further, ORS 92.014(1) specifically prohibits creating a street or road to divide land without county approval. This statutory provision regarding streets or roads was adopted in 1991 as C. 763, Section 4. However, the Oregon Court of Appeals reviewed the case of Lovinger v. Lane County in 2006 (206 Ore. App. 557), which held that if land was divided by a road before the "lot creation by street or road" law took effect, the land was effectively partitioned into two separate parcels. Hearings Officer Helm reads the Lovinger case to hold that local land use partition rules also applied whenever the road division took place. This is a logically inconsistent conclusion. The case law holds that if the creation of the road divided the parcel before Nov. 1, 1991, it does not need to comply with other rules regulating the subdivision as well, because it complies with Ch. 92. (See HO Decision, pp.4 -5, split paragraph). Page 2 Appeal LR 08 -11 Central Oregon Irrigation District Appeal of Lot of Record Determination Decision 2. The Decision Implies Unreasonable Date of Creation (Measuring Date under Lovinger) Hearings Officer Helm implies that the 1991 deed of land from Oregon State Parks and Recreation Department (OSPRD) to Oregon Department of Transportation (ODOT) is the Date of Creation of Hwy 97. However, applicable law (Lovinger) focuses on the creation of the road itself. Evidence in the Record shows that the road existed prior to 1960, and staff's report acknowledges that the road was planned and built in the 1930's and 1940's. Thus the Date of Creation, under applicable law, should be found to be long before any land use laws in Deschutes County. B. The Hearings Officer's Decision Made a Decision Not Supported by Substantial Evidence in the Whole Record 1. The Decision Claims that Lovinger Divisions Require Local Partition Rule Compliance The Decision, as rendered, asserts failure to find a legal lot of record for the 10.66 acre parcel southeast of the highway, based on reasoning that the portion was "not partitioned with the county code and ORS Chapter 92 at the time." (Page 6, middle paragraph). Evidence in the record supports that the portion was created sometime prior to 1960, likely in the 1930's or 1940's. .Pursuant to Lovinger, that satisfies ORS Ch. 92. There is no evidence in the Record that holds that the county code must still be satisfied if a Lovinger creation of lot by road division is found prior to Nov. 1, 1991, the effective date of the new statute. 2. The Decision Claims Intent to Create Distinct Parcels is Required The Decision, as rendered, claims that because OSPRD and ODOT did not confer with Deschutes County before correcting the line between highway and landscape management areas by deed on February 25, 1991, they did not intend to create a separate lot, and therefore the lot was not partitioned. Hearings Officer Helm cites to the Lovinger case regarding the county's purposeful acquisition of a strip of land for a road. He concludes that intent to acquire is the same as intent to create a lot division. Respectfully, appellant finds no such rule in Lovinger or elsewhere in applicable law. Such rule is not in the Record, so may not properly be imposed in the subject Decision. C. The Hearings Officer's Decision Exceeded Its Jurisdiction 1. The Oregon Court of Appeals' Judgment under Lovinger is Not Followed by Decision As noted above for a number of separate reasons, the Helm Decision does not follow law as stated by the Oregon Court of Appeals. As such, it exceeds its authority by inconsistently interpreting law of a superior court. Page 3 Appeal LR -08 -11 Central Oregon Irrigation District Appeal of Lot of Record Determination Decision II. REQUEST FOR REVIEW BY 'iii BOARD OF COMMISSIONERS Specific Reasons for Appeal (stated below) justify review, such that justice would not be served by allowing the Hearings Officer's decision to stand, and injustice would result. A. The Hearings Officer's Decision Improperly Construed Applicable Law B. The Hearings Officer's Decision Made a Decision Not Supported by Substantial Evidence in the Whole Record C. The Hearings Officer's Decision Exceeded Its Jurisdiction III. REQUEST FOR DE NOVO REVIEW, PURSUANT TO TITLE 22, SEC. 22.32.027 A. The Hearings Officer's Decision Raises New Issues Not Argued by Parties, so New Argument is Required to Address these Issues B. The Hearings Officer's Decision Misconstrues the Validity of the State Deed Recorded in 1991, so Further Substantiation is Required IV. SPECIAL CIRCUMSTANCES OF APPLICATION FOR CONSIDERATION COID's efforts to build and operate a small hydroelectric power plant on the subject property are moving forward to meet the start construction deadline of October 15, 2009. To that end, COID has advertised for bids for construction of the necessary pipes and turbines through the Juniper Ridge area and this parcel of land, which is the planned turbine site. COID needs to grant the public contract in April, 2009, and would greatly benefit from timely determination of this appeal to allow the construction process to proceed on schedule. At present, OSPRD owns the 10.66 acres southeast of the highway, and is willing to sell it separately to COID to allow construction of this sustainable energy project. A map is attached for ease of reference. raison mrnnw 1'o. ar`G1-1) SECTION 34 T.16S. R.12E. W.Y. DESCHUTES COUNTY r•ror 1 2. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 KEN HELM: Good evening. My name is Ken Helm. I'm the hearings officer that's been assigned to this case and now is the time set for hearing LR- 08 -11, a Lot of Record Determination. I'll be taking your testimony tonight and anybody else that might show up to provide testimony of any sort, and I'll be issuing a written decision. Hearings Officers are required to disclose any ex parte contacts, any bias, potential for bias, or any conflicts of interests. I've had no ex parte contacts on this issue. I have not been to the site. As far as bias goes, I've talked to nobody about this case. I have no reason to believe that I'd be biased in any way. I feel perfectly capable of issuing an objective opinion on it. Conflicts of interest — I've no other clients in the county. I own no property in the county. My parents own property here in Bend but that's the only property that they own so I don't see any conflicts of interest being a problem. There's a couple of things I need to remind you of. To the extent that we have criteria that are related to this application, they are in the Staff Report and those are the criteria that I'll be using in addition to evidence to resolve this matter, so please direct me to anything you think is critical in terms of criteria. Remember to raise all issues that you want to raise tonight to preserve those arguments, evidence or issues for future proceedings if necessary. Tonight the structure of our hearing, we will have the Staff Report first and then your presentation as Applicants. There are no other persons in the room right now so I don't anticipate testimony from proponents or opponents, but if new folks arrive we'll ask them if they would like to speak, then we'll go back to staff and see if there's any details that staff need to bring up after your testimony, and then we'll have a final rebuttal from the applicants. Please sign in if you haven't already and please state your names for the record before you start and we'll go ahead and have the Staff Report now. CYNTHIA SMIDT: For the record, my name is Cynthia Smidt and I'm an Associate Planner with the Deschutes County Planning Division. The Applicant requests a Lot of Record Verification for the subject property. In particular the 10.66 acres that lies to the southeast of Highway 97. The land use file number in this is, as the hearings officer has indicated, is LR 08 -11. Planning Staff issued a Preliminary Decision for this request on April 25, 2008. In this case the Preliminary Decision is the Staff Report. Property owner is the State of Oregon Parks and Rec Department. Applicant in this matter is Central Oregon Irrigation District, also referred to as COID. The Applicant's attorney is Elizabeth Dickson. Subject property has an assigned address of 6455 Highway 97 and is further identified on the Assessor's Map as 161234 Tax Lot 700. Subject property consists of approximately 33.83 acres and is zoned Open Space and Conservation Zone, and it is within the Landscape Management Combining Zone. I did, the map that came with the Preliminary Decision, I blew it up. If we got it here, I didn't put it up but we can, just wanted to let you know that if we need a visual aid. Staff notes that per Title 22 of the Deschutes County Code exempts Lot of Record determinations from the 150 day time limit. Notice of tonight's hearing was mailed to the surrounding property owners within 250 feet of the subject property and to public agencies. I did not receive any additional comments, just so you know, from that notice. Just a brief review of the Preliminary Decision, the Planning Division evaluated the submitted application materials as well as County Assessor's records and Surveyor's records, Building and PAGE 1 — TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Land Use permit records. Overall the Planning Division did not find the subject property to be a separate legal lot nor did we find the eastern 10.66 acres a separate legal lot. As indicated in the Preliminary Decision, the Planning Division determined that the subject property, together with two other properties to the south and west, constitutes one legal lot of record. And, let's see, Oregon Department of Transportation personnel determined that the Highway 97 was created in the area in the early 1930s. In 1991 there was a series of conveyances, a roll change and deed regarding the reconstruction of the highway. The 1991 changes to Oregon Revised Statutes, Oregon Revised Statute 92, were also included in this review based on its reference in the Lovinger v Lane County case. I will defer to the Applicant's attorney to present any additional arguments as addressed in her January 9, 2009 letter that was submitted to the Record and any other information she has to submit. As indicated in the Preliminary Decision, staff concludes the subject property is not a separate legal lot of record. This concludes my very simple presentation. I'm available if you have any questions. KEN HELM: Okay. Thank you. We'll go to the Applicants now. Shall we put the map up? I think we should — it would help me cuz I remember seeing it in the Staff Report that I received. CYNTHIA SMIDT: This is the acreage 10.66 acres that they are talking about. (Points to map) ELIZABETH DICKSON: Cynthia, will you be marking the exhibits for the Record? Do I just give them to you to put in, or will you be marking? KEN HELM: You can bring them to me in total. CYNTHIA SMIDT: He's got all the stamps and everything. ELIZABETH: Alright — sounds good. My name is Elizabeth Dickson. I am general legal counsel for Central Oregon Irrigation District and an attorney with the law firm Hurley Re, here in Bend. We bring this matter before you tonight in the interest in determining whether the 10.66 acre portion of the subject property is a separate legal Lot of Record. The reason that we believe that it should properly be determined to be a legal Lot of Record is because the overall parcel is divided by Highway 97, and Highway 97 serves to partition the property by its division. This is the case based on the Deschutes County Code's layout of what is a legal Lot of Record, and so I will start with the Deschutes County Code 18.040.030, Definition of the Lot of Record as stipulated in the Deschutes County Code, also specified in Cynthia's Staff Report. It defines "Lot of Record" as "a lot or parcel (parcel meaning a unit of land created by the partitioning of land pursuant to the Deschutes County Code) at least 5,000 square feet in area, at least 50 feet wide, which conforms 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 ..." and it includes in the listing: "1. By partitioning the land as defined in ORS Chapter 92." This property is approximately 10.66 acres, 43,560 feet x 10.66 acres is 464,349.6 feet which is greater than the 5,000 square feet required by the Code provision. This property is a triangle, as noted in the map on the bulletin board, which is a triangle that measures at PAGE 2 — TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 least 600 feet in width at the widest point, which is greater than 50 feet, complying with the second requirement. The date of creation that is referenced in the Deschutes County Code is undefined as is the word "creation date" and we could find nothing in the Deschutes County Code that specified what they meant when they said "which conforms to all zoning and subdivision or partition requirement, if any, in effect on the date the lot or parcel was created," so we are going to have to do some interpretation tonight. I would argue that it was the intent of the drafters that if a parcel was not created with an official partition or subdivision, then you look to other sources for possible creation types, and in this case the Lovinger case will help us with that as I will show you later in the presentation. The date the property was divided is ambiguous and the reason for that is because the highway was designed in the 1930s, as noted in Ms. Smidt's Staff Report and we agree on that. The highway was built in the 1940s which is also noted in Ms. Smidt's Staff Report. We agree on that as well. It's clear that it was in place prior to the drop dead date of the Oregon Statute that we will be talking about tonight, which took effect on November 1, 1991: I'd like to submit into the Record an Oregon State Engineer's map dated 1960, which is the earliest conclusive map we've been able to find, that shows exactly that the highway was in place, that it was on this parcel, and that it was next to the COID main canal in 1960, and I'll submit that into the Record. KEN HELM: Okay. ELIZABETH DICKSON: Highlighted on that map is the approximately 40 acre quarter quarter which references the location. You will note that in comparison to Ms. Smidt's map, it shows the highway in a slightly different location. It looks like it's a little bit to the west. In the map that we have, it looks like the highway is a little bit to the east. This is not uncommon. The old maps of Highway 97 show a significant amount of variation, but I think it's safe to say that the quarter quarter was divided by the highway as early as 1960, though its actual location may not have been correctly depicted in that map. KEN HELM: It's the same tax lot as far as we can tell? ELIZABETH DICKSON: Uh huh. So I think the definition of the Deschutes County Code's Lot of Record gets us part way through the process. We can determine that it is the approximate size that it needs to be but the date of creation is undefined and so that's where we have to look, I think, to some ulterior methods of logic in order to determine when did this parcel actually get created. The next thing that we need to talk about in order to understand this process is ORS Chapter 92. ORS Chapter 92 is the subdivision statute, it's referenced in Deschutes County's Code, and quoted verbatim in some sections. ORS 92 did not have a specific provision in it for how a partition was created by a highway and so that was modified by case law. The last case to discuss the issue is the case of Nena Lovinger and James Just v. Lane County and Michael Legault. That is a Court of Appeals case 206 Oregon Appellate 557 which was argued and submitted on March 20, 2006 and filed on June 28, 2006, and I would like to submit that into the Record. The Lovinger case is the last case in a strand of cases that discusses the issue of what constitutes a division of a lot pursuant to ORS Chapter 92 if you don't have a subdivision or a partition. In the case of Lovinger a private person owned a parcel of land and a piece had to be dedicated through the middle of it in order for a PAGE 3 — TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 state road to be built. The Court of Appeals wrestled long and hard with the issue of how to define when is the date to figure out when they intended the property to have been divided, and the decision here was that three separate parcels were created by the conveyance of the property from the private ownership to the state because they needed to do that before they could build the road. So as the Court looked for ways that they could go about determining when did the property get divided by a road, the date that they chose in Lovinger as the earliest possible date that they could determine it occurred was the date that the property was deeded from private ownership into public ownership for the strip across the middle that would become the road. The case we have here is one that is slightly different because in this case, even though it is clear that the parcel of land was divided by a road, it was divided in such a way that there was no need for conveyance. Because the federal government owned all the land in the area, they conveyed it in a large block to the Oregon Highway Department. The Oregon Highway Department held the land until such time as the road was designed and then built, and then after the Oregon Highway Department completed the construction of the land, they then looked to the possibility of determining what portions of it they actually didn't need, and those portions they held within the Highway Department. This occurred — this stayed in this way until the Oregon Legislature required the State Highway Division to be divided into Oregon Parks and Recreation Department and Oregon Department of Transportation, and this was done through 1989 legislation at 1989 Oregon ALS 904, which is referenced as the Act in my letter of January 9, 2009, which is in the Record. The legislation also officially transferred all real property that OPRD had under its jurisdiction to OPRD. Section 43 of the Act states, in pertinent part: SECTION 43: With respect to the duties, functions and powers transferred under this Act there are transferred to the State Parks and Recreation Department: (2) That real and personal property held in the name of the Parks and Recreation Division or in the name of the Transportation Commission, Highway Commission, Oregon Department of Transportation or Highway Department that was under the jurisdiction or management of the. Parks and Recreation Division. So, the January 1, 1990 Act took the Highway Division and divided it up and put part of the land in Oregon Parks and Recreation Department and part of the land in Oregon Department of Transportation. Prior to that date, there was no division and there was no need for any division. After that date it appears that there was still no transfer back and forth until such time as a document was done on February 25, 1991, recorded at Volume 230, Page 2209, which conveyed a part of the land back from ODOT to Parks and Rec. What that tells us is there was transfer going back and forth before that time but it wasn't documented because it was all in agency. However, the key thing to remember is that on February 25, 1991 there was transfer back occurring, which lets us know that there was some form of division between the highway strip and the Parks and Recreation's ownership as February 25, 1991. PAGE 4 — TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Why is this date so important? This date is so important because of Lovinger. What Lovinger said was that any land that was divided by a road prior to the effective date of ORS 92.010(7)(d), if it was divided prior to the effective date of that new statute, that effective date being November 1, 1991, then it fell under the Lovinger test and could be divided under Lovinger. Any property that was divided by a road after the date of 11 /1 of 1991 would not be allowed to be divided into two separate legal Lots of Record because the Oregon Revised Statute as adopted changed the rule from the Lovinger common law rule to a statutory rule which expressly said that it no longer divided it. So in this case this parcel of land was clearly divided by the road long before the effective date of the statute of November 1, 1991. The question becomes whether that division satisfies the test under the Deschutes County Code for what constitutes a Lot of Record. There's one other argument that's been raised as we've gone through this process, and I must say that working with the County on this matter has been very cooperative and we've appreciated what they've done for us. The last issue they are concerned about, however, is the issue of the impact of this decision and its precedent, and for obvious reasons the County is not interested in having little tiny parcels of land be allowed to occur all along Highway 97 because of this division. I would argue that in this case the reason that this case is different is because this property was owned by a public entity so there were no private deed transfers that could be pointed to as a key date as there were in Lovinger, and so in this case you would only be looking at its impact on public lands that wouldn't have had such a deed, and the reality is that most of the public land that's along the strip is owned by the Oregon Parks and Recreation Department, and they have no intention of conveying this property out for any reason other than something that directly relates to what they want to accomplish. I'd like to submit into the Record an Affidavit that was prepared by Cliff Houck, and I'm sorry I don't have the original but I have the fax cover sheet. I've submitted into the Record the Affidavit of Cliff Houck. [Affidavit Submitted] It is an Affidavit that he provides in his capacity as the Manager, Property and Resource Management Division, Oregon Parks and Recreation Department. In essence, what Cliff says in his affidavit is that we don't do this very often. He knows of two times in the 24 years he's worked with the State of Oregon that Parks and Rec has been willing to sell off any portion of its land. First of all, it must be cleared excess and must truly be excess and secondly, it has to be for a purpose that is in direct conformity with what Oregon Parks and Recreation is trying to accomplish. In this case, because COID is using this land to build a small hydro generating facility, this is a green power project, the state supports it strongly, the Governor's office has supported it strongly, the Legislature's actions has supported it and Parks and Rec believes that this is something they want to help with, and that's why for the third time in 24 years they have allowed this sale to occur. The other two times that it happened is when they sold a parcel PAGE 5 — TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 of land inside the Redmond Urban Growth Boundary to the City of Redmond for the purposes of a municipal improvement, and when they sold a parcel of land between Bend and Redmond to Deschutes County for access improvement. That's the only reason they sell this land. So while it's not part of the legal argument that's before us today, I think it's part of the public policy question by ruling in such a way, would this Lot of Record Verification allow a flood of others to occur? I think the answer is no. So long as the decision is made based on the fact that this is a public transfer of land, that the Highway Division moved it to OPRD and to ODOT, and they were the ones that made the determination when it was time to divide the land. In this case I think it's appropriate to allow the division to occur because most importantly it is obvious that the Highway did make a division and it did occur prior to November 1, 1991, and we are available to answer whatever questions you have. KEN HELM: Let's go back to the transfer from ODOT to Parks and Rec's, the February 25, 1991. Explain to me again please what form that took. What kind of, you know, legal memorial do we have there that — you know — obviously I'm looking for some sort of substitute for transfer of title, something that we can grab onto. ELIZABETH DICKSON: It's a deed. KEN HELM: It's a deed. ELIZABETH DICKSON: Some would argue that it's a wild deed because there's nothing in the record that shows that they ever owned it in the first place so that it was theirs to convey, because what we have is we have a federal patent that conveys the land to the state. We have the state essentially moving it to the Highway Division. We have the Highway Division working with it for approximately 50 to 60 years. KEN HELM: Let me stop you just for a second. To back up before I forget. Moving it between state agencies in terms of control, do you think that effects a legal transfer or just an organization of duties among state agencies? ELIZABETH DICKSON: I don't think it matters. I think what matters is in the case of Lovinger, they were looking for a date they could hang their hats on. What's the earliest date that this parcel of land got divided by this road, and they figured that if you had a private entity, the earliest date that you could point your finger at a date, it would be the date that the private entity actually conveyed the land to the public so that they could build the road, and that's the date they used in Lovinger. In this case, we don't have a date like that because there was no need to transfer property between entities. It was held in one entity and I think what matters here is when was the property divided? We don't have to look back to the date of the conveyance of the strip. We can look at the date the road was actually built and still be well within the parameters of PAGE 6 — TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 what we are trying to accomplish, which is when was the property divided, and did that division occur before November 1, 1991? KEN HELM: I'm going to obviously have to read Lovinger and the other cases that you cited to get a fuller understanding there. Do you think that the intent of the federal government has anything to do with how these parcels should be disposed of now? In other words, when they put the road through there, they probably wanted to get Point A to Point B built, and I wonder if they had any intent about how the remainder parcels of land would be treated? Do you think their intent matters? Do you think they had intent? Do you think they cared? From a legal point of view, would it matter? I know those are a lot of questions. ELIZABETH DICKSON: No, actually we've dealt with this issue in other circumstances recently with COI because COI happens to be an entity that was created by federal grant and land was given to the state and then given to COI, and there's a question about what you do about that. When we've researched that, cuz I haven't researched on this question, but when we researched the question of properties that were segregated off by the federal government for purposes of irrigation districts, what they did in that case was they essentially transferred the land to the state, and from what we can tell, never asked to have it conveyed back. We've never found a situation where there was a check back, where the federal government said all right, we gave you these 5,000 acres, now how many of them actually got used, send us some sort of accounting, and send us back what you didn't use. We're not showing any record of that in this related case. Now in this case, I don't know, and I question would it really pertains to the issue that is in front of us, which is was this parcel of land divided by this road prior to November 1, 1991? It would have been easy, if as is in the case of Lovinger, there was actually physical deed conveyance that said State Highway Division is going to keep the middle and keep the strips on both sides to OPRD. They sort of did that, and they sort of did that in the February deed that I reference, and I think it's also in Cynthia's Staff Report. But the actual bright line deed that was in Lovinger, I, they didn't do it, I wish they had. They were moving land around within the Department itself. KEN HELM: And we just don't have any other information about that 1991 wild, potentially wild deed, to give us any idea of why they thought they needed to do that? ELIZABETH DICKSON: I spoke at length to the Department of Justice at the state level and asked them administratively how they handled these matters in the past, and they said they didn't keep track of it. There was no need to convey. I talked to two title companies and said "do you have old conveyances showing that there were, you know, conveyances between departments" and they said "we don't look for them, we don't see them" and I said "would you consider this where we have this February 1991 deed from ODOT back to OPRD, does that deed give you pause" and they said "no, because we don't look for deeds between departments" and they didn't start doing them until after this Act that the state passed where they . divided the Highway Division into OPRD and ODOT, and I've cited to the Act in my January 9th letter which I believe is in the Record, isn't it, Cynthia? The PAGE 7 — TRANSCRIPT OF BEARING FOR LR -08 -11 FEBRUARY 24, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 January 9, 2009 letter, that's in the Record? There's a footnote there that lays out exactly what they did and how they did it and why they did it, and so what I'm hearing from everyone is that no one would have expected there to be transfers between various agencies of the state because the state owned it and that's the way they did it. They started changing that practice after the effective date of January 1, 1990, which is why you see that deed on 2/25 of 1991 recorded in the Deschutes County Land Records after that date. KEN HELM: Is there any other — I haven't seen the deed and I know it's in the Record — any other idea why they decided to do it? I mean could it have been perhaps, you've got that provision of ORS 92 coming up at the end of the year, I don't know if that was a legislative year or not (ELIZABETH DICKSON: 1991 was). Could they have been looking ahead and attempted to memorialize this in some way before knowing that a change in the law might be coming? ELIZABETH DICKSON: That's certainly possible but I wouldn't feel comfortable placing their intent in the Records, but the 92.010(7)(d) which cut Lovinger off, was passed on 8/5 of 1991. I don't remember what the time period was in the 1991 legislature as far as when bills had to be in and when they started doing work. It - I think it probably had something to do with the fact that the 1990 date was the date when OPRD and ODOT separated, and what I have been told by staff is that after that time they started having to keep track of who was in charge of what. So it sounds as though the Oregon Department of Transportation had the surrounding lands, or had the belt, and OPRD had the surrounding lands prior to 2/25 of 1991 or they couldn't have conveyed some back. So whether you want to look at this from the perspective of kinda big picture 30,000 feet, when was the land divided by the road? That occurred in the 1940s. If you want to look at when was there an actual deed that memorializes the conveyance, if you took Lovinger really really literally, that would still be before the date because that would be 2/25 of 1991 when the statute passed on 8/5 of 1991 and took effect on 11 /1 of 1991. So I think that either way you look at it, it clearly was a legal Lot of Record prior to the date that the statute was passed that would have stopped that method of making that determination under ORS Chapter 92. KEN HELM: I guess I need to assume that you haven't run across similar deeds in researching this case on different parcels, and there's not necessarily a reason that you would, but I guess my question is did they start in — was this a practice between ODOT and Parks? ELIZABETH DICKSON: What I was told — KEN HELMS — and Recreation to help them understand and segregate these lands and keep track, this was just their mechanism of doing so? PAGE 8 — TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 ELIZABETH DICKSON: What I was told by the Department of Justice, after they did the usual caveats, that this was 18 years ago and we don't remember anything. They recognized the fact that because the state started dividing up funds, they were looking at who was responsible for what lands and what had to be maintained, and the highway land itself was maintained by ODOT using their methods and the Landscape Management quarter, although they weren't calling it that at the time, but that the belts on either side of the highway were given to Parks because Parks was going to be responsible for making the margins alongside of the highway aesthetically pleasing, and there were going to be different costs associated with each kind of land, and so that's when they started having to pay attention to them for financial reasons because Parks and Rec realized they needed a list of all the land they were responsible for, they came up with a factor that said this is how much it's going to cost us to maintain each acre and they were using that for budgetary purposes. So, and I think is usual with governmental entities, it ended up being about the money, and that's the way they described it to me, but I couldn't find anybody who was there in 1990 or 1991 that started doing that. I tried and we couldn't find anyone, otherwise I would have provided you with an affidavit from them as well because I know it would be helpful. So I guess what I'm offering you is hearsay. KEN HELM: It's sometimes surprising how sloppy the state and federal governments can be about this stuff. ELIZABETH DICKSON: I think we would all agree that in this case we were really surprised. KEN HELM: Okay, I can't think of anymore at the moment. Do you have any further testimony? Nope, okay. CYNTHIA SMIDT: I just wanted to make sure - -- laugh by Ken Helm - -- you're sitting over there. Your trip got cancelled. STEVE JOHNSON: Yeah, I'm also sitting next to Liz, Steve Johnson, Manager, Central Oregon Irrigation District. KEN HELM: So go back to staff for any comments. CYNTHIA SMIDT: You know I don't know if I have any comments. I think the staff, their Preliminary Decision Staff Report, kinda lays it out a bit. Plus Liz's January 9 and other submitted information. I was trying to remember if I looked at any other properties where the highway went through to see if there was any other deeds or anything recorded and I don't recall doing that extensively. I think I was overwhelmed with just this particular one but it probably would have been helpful to see if we had any other deeds. I would assume that the deed from February 25, 1991, I think that included other parcels on it, but, you know, I didn't look any deeper then, I know, I didn't look any deeper on other parcels up PAGE 9 — TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 and down the highway, so just to help answer questions. I don't have anything else on this. Sounds like a nice sticky legal. KEN HELM: Is the — in the file is the transfer — do we have transfer from the federal government to the state? CYNTHIA SMIDT: I believe I included the patent, yeah, and any other deeds or anything that I felt helpful or I referred to. I think I even included some of the old ORS language from our own legal office, so. KEN HELM: And then this could be a question for anybody. Do you recall any particular conditions that were attached to the patent? The transfer from the federal government to the state, was it just general purpose for the purpose of allowing a highway to be built. ELIZABETH DICKSON: This is Liz Dickson and I think it was for highway purposes, but I haven't looked at that in almost a year. CYNTHIA SMIDT: It's been, this is — we're knocking the dust off this file. ELIZABETH DICKSON: Yeah, we've, we actually had to rewrite a portion of the County Code in order to get the hydro built on this site, so we set this portion of the issue aside. We wrote the County Code, did the Text Amendment, and then came back to this, so that's why the delay. KEN HELM: Okay. Alright. Well, I'll look through it myself since I enjoy doing that. Laugh. Okay, unless the Applicants have anything further to say? ELIZABETH DICKSON: No, in closing, I guess all we would do is ask that you, that if you have any further questions about this, we'd be happy to help you with additional questions that you'd like us to research, or if you'd like a Supplemental Memoranda on this because there may be legal issues that you've identified that we haven't identified, since this tends to be one of those peel the onion kind of arguments. If there are additional things that you are concerned about that you'd like us to research we'd be happy to do that. KEN HELM: Okay, if that occurs, I'll run that through staff and we'll get the questions to you that way and since this is a Lot of Record determination, we're not — I don't think we're constrained in the way that we would usually be under a quasi-judicial land use decision parameter. Okay, with that I'll close this hearing. Thank you. CYNTHIA SMIDT: Is that the close of the written and oral Record? KEN HELM: I, it, uh, I don't think it matters. PAGE 10 — TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 ELIZABETH DICKSON: You can leave it open if you want to if you need a judicial memoranda in the Record. KEN HELM: Let's just leave it open since we don't have a time line on this. CYNTHIA SMIDT: Just want to make notes? KEN HELM: Right. So this is the close of the oral portion of this hearing with the understanding that we'll leave the written Record open. CYNTHIA SMIDT: How long do you think? ELIZABETH DICKSON: Two. weeks? KEN HELM: Let's leave it open a month, if you don't mind, because it may take me that long to get to this, for me to get around to writing the opinion, so. ELIZABETH DICKSON: Is that okay with you? KEN HELM: Do you — ELIZABETH DICKSON: We are going to bond on this project shortly, so I'm a little bit — KEN HELM: How shortly so that I — STEVE JOHSON: Um — our fees go out tomorrow, selection is for the 2nd of April, and financing with the Oregon Department of Energy loan program is at the beginning of April. KEN HELM: Okay. I'll take that into consideration and the, my, uh, the concept of leaving the Record open for a month is just that isn't that I would take that long necessarily, but I wanted to leave it open until I get to the opinion writing so that I may not have a question in the next week or two, but I may in the second two weeks from now. It's not an indication of when I intend to get this done. ELIZABETH DICKSON: We appreciate your consideration. KEN HELM: Okay, alright, then we'll close the oral part of the hearing tonight. That's all. CYNTHIA SMIDT: Thank you. Q:\Data\Liz \CLIENT FILES \C \Coid\HYDRO SITE STATE PARKS 102.298\Pleading Form Transcript of 2.24.09 Hearing.dot TRANSCRIBED BY: L A TIEKAMP Date: March 23, 2009 PAGE 11 — TRANSCRIPT OF HEARING FOR LR -08 -11 FEBRUARY 24, 2009 TES April 25, 2008 =1 Community Development Department Planning Division Building Safety Division Environmental Health Division Central Oregon Irrigation District 1055 SW Lake Court Redmond, Oregon 97756 117 NW Lafayette Avenue Bend Oregon 97701 -1925 (541)388 -6575 FAX (541)385 -1764 http : / /www.co.deschutes.or.us /cdd/ Re: Lot of Record Determination for Property Identified on Deschutes County Assessor's Map 16- 12 -34, Tax Lot 700; File No. LR- 08 -11, PRELIMINARY DECISION. Dear Applicant: You submitted an application for a lot of record determination for the above referenced tax lot hereinafter referred to as the "subject property." Moreover, you requested a lot of record determination for the 10.66 acres of the subject property that lies southeast of Highway 97. The Planning Division has reviewed the information you submitted with the application along with County Assessor's records, County Surveyor records, and County building and land use permit information. Based on a review of this information, we have preliminarily determined the subject property is deemed to be joined at its southwest corner to tax lot 800 of the same tax map (16- 12 -34) which in turn is joined to tax lot 800 of tax map 17- 12 -03. Including these additional properties, the lands described below constitute one legal lot of record: Description: NW ' SE ' and the SE '/ SW % in Section 34, Township 16 South, Range 12 East of the Willamette Meridian. Together with Lot 3 and the S %2 NW '/ of Section 3, Township 17 South, Range 12 East of the Willamette Meridian. Section 18.04.030 of the County Zoning Ordinance defines a "lot of record" as: A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means: 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 Quality Services Performed with Pride 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. The general purpose of the lot of record provision is to prevent recognition of land tracts that were created outside the applicable land division and zoning ordinances. The provision is an explanation of policy that only lots that were legally created according to applicable county zoning and land division ordinances should be recognized by the County for land use planning purposes. The fact that tracts exist in the County Assessor's records as separate tax lots does not mean that it constitutes legal lots of record under the lot of record provision. Property Transfer History In the early twentieth century, the subject property, along with several other parcels of land, was conveyed back and forth between the United States government and the State of Oregon. The final transfer to the State of Oregon was through a U.S. land grant (Patent Number 1119957) dated August 7, 1945, and later recorded in Volume 69, Page 275 at the Deschutes County Clerk's Office. The original conveyance in the land grant included several parcels but those parcels involved here included two 40 acre parcels (present day tax lots 700 and 800 of tax map 16- 12 -34) and one 120 acre parcel (present day tax lot 800 of tax map 17- 12 -03). The 40 acre parcels are contiguous at one point (southwest and northeast corners, respectively, of lots 700 and 800) which, in turn, abut the 120 acre parcel to the south. Thus, the referenced patent described a single legal lot of record consisting of tax lots 700 and 800 (map 16- 12 -34) and tax lot 800 (map 17- 12 -03) for a total of 200 acres. On November 28, 1945, the Oregon State Lands Board conveyed the properties to the Oregon State Highway Commission in a deed recorded with the Deschutes County Clerk's Office (Volume 71, Page 47). (Emphasis added.) Further, in 1991, there were a series of transactions (filing a tax Roll Change and recording deeds) for the reconstruction of Highway 97. In a deed dated February 25, 1991, and recorded in Volume 230, Page 2209 at the County Clerk's Office, the Oregon State Parks and Recreation Department (OPRD) conveyed to the Oregon State Department of Transportation (ODOT) a strip of land on both sides of the existing highway. (Emphasis added.) The deed indicates an additional 40 feet on both sides of the highway for the length of the highway in that section LR -08 -11 Page 2 and applies to the lands "outside of the existing right of way."1 Then, on April 16, 1991, a tax Roll Change (file no. 91 -167) was filed with the County Assessor's Office accounting for the existing center 100 feet of road right -of -way through various parcels, including the subject property (tax lot 700) and the associated parcels noted in this report. Tax lot 800 of map 16 -12 -34 and tax lot 800 of map 17- 12 -03, were conveyed from the State of Oregon to Deschutes County on January 25, 1999 (Volume 1999, Page 8648). Conclusionary Findings The proposed Lot of Record Verification request is to determine if the 10.66 acre portion of the subject property that lies to the east of Highway 97 is a separate legal lot of record. The applicant argues that the "partitioning of this property occurred in 1933 when Highway 97 was built." The applicant defends their argument referencing a recent Oregon Court of Appeals case (Lovinger v. Lane County, 206 Or App 557, 138 P.3d 51(2006)), in which it was held that if a parcel of land has been deeded to a govemment body for the construction of a road, the conveyance of that land then creates separate legal lots. Staff will address the following two issues below: (1) does the dissection of the property by Highway 97 create a separate legal lot of record of the eastern 10.66 acres, and (2) does the subject property, in its entirety as tax lot 700, constitute a legal lot of record. Highway 97 Dissection According to Jules Wetzel, ODOT Region 4 Surveyor, ODOT's historical records show the current center 100 feet highway alignment in this area on a map dated October 1931 and then on another map dated 1933. Ms. Wetzel concludes that the creation of the highway in this area occurred in the early 1930's. Based on the property transaction history indicated above, the State Highway Commission first obtained title to the subject property in 1945. In 1991, however, OPRD conveyed to the State Transportation Department additional land for highway construction. The County Clerk's records do not illustrate a conveyance occurring between the years of 1945 and 1991 that may indicate a transfer of ownership from the State Highway Commission to the OPRD. Because of the lack of conveyance between 1945 and 1991 coupled with the 1999 deed listed above that conveyed land from the State of Oregon (no division of the state govemment was defined in the deed) to Deschutes County, staff is unclear as to what division of state government the subject property belonged and whether this is necessary to determine. Furthermore, staff is unclear as to whether conveyance to separate state departments creates an actual transfer of title when they were all agencies of the state and all part of the Executive Department of the State per ORS 174.112(1). Placing ownership aside, staff reviewed the date of when a portion of the highway was conveyed in a deed in 1991. In Lovinger, referring to ORS 92.010(7)(d),2 the Court quotes the statute, "any property divided by the sale or grant of property for state highway, county road, city street or other right of way purposes shall continue to be considered a single unit of land until such time as the property is further subdivided or partitioned." Further, 1 Two Correction Deeds were recorded in 1992 and are recorded in Volume 258, Page 2226 and Volume 271, Page 2042 at the County Clerk's Office. After review of the correction deeds, the language under "Parcel 9" (tax lot 700) and "Parcel 10" (both tax Tots 800 identified in the report) does not vary from the original deed. 2 In the 2007 Edition of ORS 92, the reference goes as follows ORS 92.010(8)(d). LR -08 -11 Page 3 the Court indicates the enactment of this portion of statute occurred in 1991. In particular, the enactment became effective 90 days after the August 5, 1991 approval by the Governor of Oregon. This portion of ORS 92.010 became effective approximately 8.5 months after the recording of the 1991 deed transferring a portion of Highway 97 to the Transportation Department. Moreover, in Lovinger, the Court found that "ORS 92.010(7)(d) is...a substantive law that lacks a retroactivity clause or any other explicit language suggesting the legislature intended it to apply retroactively, nor does its legislative history shed light on the issue." The Lovinger case, however, is not dispositive of this issue. First, the road parcel must have been conveyed in order to have created a separate parcel. Yet, there is no evidence in the record that the original highway was ever conveyed prior to 1991. Second, the deed conveying the two 40 -foot strips of land for road right -of -way was recorded in 1991 (Volume 230, Page 2209) and, therefore, occurred prior to the 1991 effective date of ORS 92.010(7)(d) that added the language requiring a parcel divided by a road to remain a single parcel. Thus, that deed might have created a separate parcel. On the other hand, the statutory language that says that a partition does not include any grant of a parcel for road purposes was included in the statute in 1989 and that portion required the deed for road purposes to comply with any applicable comprehensive plan. No evidence in the record exists that the deeds received approval from the County as complying with the County's comprehensive plan. Third, at the time of the February 25, 1991, deed being recorded, however, Title 17, the County Subdivision and Partition Ordinance, regulated land divisions. Yet, the record does not include any application for approval for a partition of the property in order to provide In addition, PL -15, County Zoning Ordinance, regulated zoning and minimum lot sizes.3 Therefore, because the record has no evidence of a deed conveying title to the State for Highway 97 issued prior to the effective date of the County's comprehensive plan and partition application requirements, we have preliminarily determined that the dissection of the property by Highway 97 did not create a separate legal lot of record of the eastern 10.66 acres. Lot of Record for Tax Lot 700 As stated above, tax lot 700 (map 16- 12 -34), together with present day tax lot 800 (map 16- 12 -34) and tax lot 800 (map 17- 12 -03), was conveyed in a United States land grant (Patent Number 1119957). The 40 acre parcels are contiguous at one point (southwest and northeast corners, respectively, of Tots 700 and 800), which abut a 120 acre parcel (tax lot 800 of map 17- 12 -03) along the south boundary. At the time of the 1945 deed, there existed one legal lot of record that is now identified as three tax lots. It was not until January 25, 1999 that the State of Oregon conveyed the southern 160 acres (tax lot 800 on map 16 -12 -34 and tax lot 800 on map 17- 12 -03) to Deschutes County in a deed recorded in Volume 1999, Page 8648 at the County Clerk's office. At the time of the. 1999 deed, Title 17, the County Subdivision and Partition Ordinance, regulated land divisions and Title 18, County Zoning Ordinance, regulated zoning and minimum lot sizes. Based 3 Title 18, Zoning Ordinance, became effective on May 29, 1991. LR -08 -11 Page 4 on these findings, we have preliminarily determined that tax lot 700 (map 16- 12 -34), together with tax lot 800 (map 16- 12 -34) and tax lot 800 (map 17- 12 -03), as one legal lot of record. Therefore, tax lot 700 is not recognized as a separate legal lot of record. The subject property, together with tax lot 16 -12- 34-800 and 17 -12 -03 -800, is zoned Open Space and Conservation (OS &C). Any development of this property is subject to the requirements of Title 18, the Deschutes County Zoning code and the requirements of the County Building and Environmental Health Divisions. This is a preliminary decision. The Planning Division intends to make a final decision regarding this application on or about May 1, 2008. Please submit any information that you believe would change this preliminary decision by May 9, 2008. Sincerely, Cynthia Smidt, Associate Planner c: Elizabeth A. Dickson Deschutes County Assessor Susan Ross, County Property & Facilities Dir. Cliff Houck, Oregon State Parks & Recreation LR -08 -11 Page 5 KVIsm: 01126mes SECTION 34 T.16S. R.12E. W.M. • DESCHUTES COUNTY DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: APPLICANT: REQUEST: STAFF REVIEWER: HEARING DATE: RECORD CLOSED: LR -08 -1 l Central Oregon Irrigation District 1055 SW Lake Court Redmond, Oregon 97756 The applicant is requesting a lot of record determination for property identified on Deschutes County Assessor's Map 16- 12 -34, tax lot 700. Cynthia Smidt, Associate Planner February 24, 2009 February 24, 2009 L 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; 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. 1 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 identified on Deschutes County Assessor map 16- 12 -34, tax lot 700. B. ZONING: The property is zoned Open Space and Conservation (OS & C). C. SITE DESCRIPTION: The subject property is approximately 10.66 acres in size. It is part of a larger parcel which is traversed by Highway 97. It is currently owned by the Oregon State Parks and Recreation Department ( "OSPRD "). The subject property is currently vacant. D. SURROUNDING LAND USES: The subject property is surrounded on three sides by land zoned EFU -TRB. E. PROPOSAL: The applicant proposes that the subject property be found to be a "lot of record" by virtue of having Highway 97 in effect partitioning the 10.66 acre section from the larger tax lot. F. PROCEDURAL HISTORY: The lot of record verification application was first filed on February 5, 2008. The Planning Division reviewed the application and issued a preliminary decision on April 25, 2008 finding that the subject property does not meet the county code definition of a lot of record. At some point thereafter, at the request of the applicant the lot of record determination was placed on hold. On January 28, 2009, the applicant requested that the application be placed back into active status. The matter was then scheduled and noticed for a public hearing on February 24, 2009. On February 24, 2009 a public hearing was held. The applicant was the only party present at the hearing. No other comments were received at the hearing or into the record other than an Affidavit of Cliff Houck dated February 24, 2009 which is identified as hearing Exhibit 3. The record was left open for one month after the hearing for the sole purpose of allowing the Hearings Officer, through staff, to request additional information from the applicant. After reviewing the cases file, I find that I have no further questions for the applicant. 2 III. CONCLUSIONS OF LAW: Tax Lot 700 History The staff and the applicant do not appear to be in disagreement about the history of the subject property. Although the title history is less clear than one would desire, the record is sufficient to allow for a determination. The record shows that on August 7, 1945, tax lot 700 along with other nearby tax lots were transferred from the federal government to the State of Oregon. At that time, Highway 97 was already in existence having been constructed through tax lot 700 such that the 10.66 subject property was southeast of the highway and the balance of the property remained to the west. Between 1945 and 1991, tax lot 700 was variously under the control of the State Highway Commission and the OSPRD. There are no title records indicating fee title transfer to OSPRD during that time, but rather the record indicates that the state placed tax lot 700 under the control of OSPRD at some point without effecting a title transfer. Whether or not the state had the authority to do so is not dispositive in this matter, but I assume that the state does possess such authority. The critical transfer of fee title related to tax lot 700 occurred on February 25, 1991. The record contains a deed dated February 25, 1991 conveying a 40 foot strip on both sides of Highway 97 from OSPRD to the Oregon Department of Transportation ( "ODOT "). The conveyance was done along with other conveyances in one deed. Volume 230, Page 2214 contains the conveyance language for tax lot 700 described as "Parcel 9." Significantly, the deed does not convey the entirety of tax lot 700 to ODOT, but only the amount of land needed to increase the right of way of Highway 97. The deed states, "[t]he parcel of land to which this description applies contains 2.75 acres, more or less, outside the existing right of way." The deed does not include a separate legal description for the pieces of tax lot 700 that remained in OSPRD's possession after the transfer. The deed also contains boilerplate language stating that the deed does not purport to allow uses of the described properties in violation of applicable land use laws. Both the staff and applicant expressed some concern about validity of the deed. The question is whether the deed was really necessary when the transfer was between two state agencies where the underlying land is already owned by the state. I have reviewed the deed and find that it appears to meet all the requirements for properly conveying land between two entities. The deed not only shows a desire to transfer control of certain parcels of land, but also that the state had assigned some value to those lands for budgetary purposes because the deed shows real consideration of $75,300.00 for the transfers. There is no evidence in the record that suggests that the deed is not valid, and therefore, I find that for the purposes of this opinion the deed is legally sufficient and accomplishes the fee title transfers as stated. 3 Lot of Record Analysis Initially, it is important to understand which provision of the definition of lot of record in DCC 18.040.030 the applicant is applying under. The lot of record verification application states that the subject property has already been partitioned by the construction of Highway 97. The applicant's January 9, 2009, letter refines that argument by asserting that the subject property qualifies as an exception to the requirements of ORS, Chapter 92 under the Court of Appeal's decision in Lovinger v. Lane County, 206 Or App 557 (2006). Based on these arguments I 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: 1. By partitioning land as defined in ORS 92; I do not view the application as attempting to show compliance with the other definitions of lot of record contained in DCC 18.040.030. The facts in Lovinger are as follows: In 1959, the property owner conveyed to Lane County by warranty deed a strip of land through the property which bisected the lot. Later, the county constructed a road through the property on that strip of land. Several decades later in 2003, the county approved a dwelling on the strip of land to the north of the county road. The owner sold the strip of land south of the road and the purchaser applied in 2004 for a dwelling on that lot. Neighbors objected to that application arguing that regardless of the existence of the county road, the property was still one legal lot and only one dwelling was allowed on the entire property. The neighbors argued that ORS 92.010(7)(d) forbid the partitioning of properties by the sale or grant of land through a property for the purposes of a state or county road. Lane County responded that ORS 92.010(7)(d) was not applicable because in 1959 when the strip was transferred to the county, state and county regulations treated the conveyance as creating three separate parcels. The Court of Appeals agreed with the county holding: In short, the case law on which petitioner relies does not support her position that, in 1959, the state of the law was that a road could never partition a parcel, even where the land underlying the road has been transferred in fee to a different owner. In the absence of any authority to the contrary, either in the cases or in contemporaneous statutes, we conclude that, under the law as it existed in 1959, transfer of title to the strip of land containing the road effectively created three separate parcels: tax lot 200, tax lot 203, and the land containing the road. Id at 564. This holding contains two important conclusions. First, that fee transfers for the purposes of allowing public roads can result in a legal partition of land. Second, 4 whether the partition was legal, and therefore valid without respect to ORS, Chapter 92, depends on the applicable law at the time of transfer. The applicants argue that Lovinger stands for the proposition that de facto partitioning by the imposition of a road was allowed in the state until November 1, 1991. As of that date, amendments to ORS 92.010(7)(d) became law. The language added by the 1991 Oregon Legislature is as follows: A sale or grant by a person to a public agency or public body for state highway, county road, city street or other right of way purposes provided that such road or right of way complies with the applicable comprehensive plan and ORS 215.213 (2)(p) to (r) and 215.283 (2)(q) to (s). However, any property divided by the sale or grant of property for state highway, county road, city street or other right of way purposes shall continue to be considered a single unit of land until such time as the property is further subdivided or partitioned The language in bold is the same language that the Court of Appeals found inapplicable in Lovinger. Clearly the amended language forbids the creation of new parcels by the sale or grant of property for the purposes of building a state or county road. The applicants impute that because the Legislature had to forbid such partitioning in 1991, that it was allowed prior to that date. I disagree. The critical holding of the court in Lovinger is that the local government must look to state and local law at the time of the sale or grant of property used for the road in question. In Lovinger, the court looked to state and local law as of 1959, not 1991 when the law was amended. In this case, the record shows that Highway 97 was constructed through tax lot 700 in the early 1930's when the land was still in federal ownership. The grant from the federal government to the State of Oregon in 1945 transferred all of tax lot 700 to the state. Although responsibility for tax lot 700 may have bounced around between state agencies between 1945 and 1991, there is no evidence that the land upon which Highway 97 was constructed came into separate fee title until February 25, 1991.1 On February 25, 1991, the county subdivision and partitioning provisions were still based on the county's 1981 Subdivision and Partition ordinance as amended in 1990. The applicable provisions are Ordinance 81 -043, Section 5.020(1)(A) which states that an application for partition must be "in compliance with ORS Chapter 92, the Comprehensive Plan and applicable zoning." In 1990, the same provision was renumbered but the substance remained the same. The essential ` while it is debatable whether the transaction between OSPRD and ODOT was necessary in order for the state to widen a road on its own land, as noted above, the deed accomplishing the transfer appears valid, and in any case, the 2.75 acres under Highway 97 is presently in separate ownership with ODOT. 5 requirement that a partition conform to ORS Chapter 92 remains in the current version of Title 17. On February 25, 1991, the 1989 version of ORS Chapter 92 applied to tax lot 700. The dispositive provision is ORS 92.014(1) which in 1989 read: (1) No person shall create a street or road for the purpose of partitioning an area or tract of land without the approval of the city or county having jurisdiction over the area or tract of land to be partitioned.2 The Court in Lovinger identified a former version of this statute (1955), and because the county in that case had purposefully acquired the strip of land needed for the future county road, the Court found that the partition adhered to that provision. Here there is no evidence in the record that the OSPRD or ODOT conferred with Deschutes County at all prior to the February 25, 1991 transaction. Indeed, the transaction itself demonstrates that there was no intent to create distinct parcels to the east and west by deeding over the 2.75 acres to ODOT. The state and local laws applicable to the February 25, 1991 transfer from OSPRD to ODOT would not have permitted the transaction to create three distinct parcels of land. To that extent, I find that the Court's analysis in Lovinger is applicable, but that it demands a finding that tax lot 700 was not partitioned consistent with the county code and ORS Chapter 92 at the time. For these reasons I find that the application cannot comply with the lot of record definition in DCC 18.040.030. IV. DECISION Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DENIES the applicant's request for "lot of record" status for the subject property. /(-6,,,,,e& x9. 77(_,. Kenneth D. Helm, Hearings Officer Dated this 9 day of March, 2009 Mailed this g-6- day of March, 2009 2 It is not former ORS 92.010(7)(c) quoted above, that applied to the transaction between OSPRD and ODOT in 1991. The provisions of that subsection simply make exceptions to the general rule that all partitions must be accomplished according to ORS Chapter 92. The actions identified in ORS 92.010(7) are not actions that result in partitioned land — they are exclusions from that result. 6