HomeMy WebLinkAboutCOID Lot of Record Verification 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 June 1, 2009
Please see directions for completing this document on the next page.
DATE: May 20, 2009
FROM: Cynthia Smidt Community Development Department 317 -3150
TITLE OF AGENDA ITEM:
Consideration of adoption of Document 2009 -265 approving a Lot of Record Verification. (Applic int:
Central Oregon Irrigation District; File No.: A -09 -2 (LR- 08 -11)).
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
On May 13, 2009, the Board held a de novo public hearing regarding an appeal (A -09 -2) filed by the
applicant, Central Oregon Irrigation District, and who are represented by attorney, Ms. Elizabeth
Dickson . The appeal is in response to the Hearings Officer's decision, file no. LR- 08 -11, denying the
applicants' request for a Lot of Record Verification. The Board conducted a hearing on May 13, 2009
and deliberated on the matter, rendering an oral approval of the application.
The document is staffs recommendation for the written Board decision.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
The Board needs to make a decision to adopt Document 2009 -265 as written, or amend it as neede I.
ATTENDANCE: Cynthia Smidt
DISTRIBUTION OF DOCUMENTS:
Cynthia Smidt, Planning Division
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF DESCHUTES COUNTY
BOARD OF COUNTY COMMISSIONERS
FILE NUMBER: A -09 -2 / LR -08 -11
APPLICANT: Central Oregon Irrigation District
1055 SW Lake Court
Redmond, Oregon 97756
PROPERTY OWNER: Oregon State Parks & Recreation
1115 Commercial NE
Salem, OR 97310
APPLICANT
REPRESENTATIVE: Elizabeth Dickson
Hurley Re, P.C.
747 SW Mill View Way
Bend, OR 97702
REQUEST:
The applicant is requesting a lot of record determination for 10.66 +/-
acres of property identified as a portion of real property located on
Deschutes County Assessor's Map 16- 12 -34, tax lot 700, that portion
being southeast of Highway 97.
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;
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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 a 10.66 +/- acre portion southeast of Highway 97,
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 divided by Highway 97. It is currently owned by the
Oregon State Parks and Recreation Department ( "OSPRD "), except for the strip upon
which the highway is located, which is owned by /under the jurisdiction of Oregon
Department of Transportation ( "ODOT "). The subject property is currently vacant.
The staff preliminary decision found that the parcel owned by OSPRD is a legal lot in
conjunction with Tax Lot 800 on map 16 -12 -34 and Tax Lot 800 on map 17- 12 -03, both
currently owned by Deschutes County. The Board finds that issue not necessary to
resolve in this decision and, therefore, declines do to so. Thus, the staff decision on that
issue is overruled until such time as an application for a lot of record verification or a use
is submitted for either Tax Lot 800 or the remainder of Tax Lot 700.
E. SURROUNDING LAND USES: The subject property is surrounded on two sides by
land zoned EFU -TRB (north and west) and two sides by EFU -AL (south and east).
F. PROPOSAL: : The applicant proposes that the subject property be found to be a "lot of
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record" by virtue of having been divided by Highway 97 prior to November 1, 1991, in
effect partitioning the 10.66 acre section from the larger lot north and west of the
highway and the highway itself.
G. 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. An Affidavit of Cliff Houck on behalf
of Oregon State Parks and Recreation Department, dated February 24, 2009, which is
identified as hearing Exhibit 3, was received. 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. None was requested. On March 12,
2009, the Hearings Officer issued a decision denying the application request for lot of
record verification.
The decision was timely appealed by the applicant on March 24, 2009. Appellant
Applicant requested and received approval of de novo review of the matter before the
Board. On May 13, 2009, the Board held a duly noticed de novo public hearing and
approved the application.
The 150 -day deadline in ORS 215.427 is not applicable to this decision.
III. CONCLUSIONS OF LAW:
Tax Lot 700 History
The staff and the applicant agree about the history of the subject property. The record shows
that, although the parcel was owned by the United States, State Highway 97 was constructed
through tax lot 700 in the early 1930's. No deed or land patent, however, was recorded at
that time to grant that property to the State of Oregon. On August 7, 1945, the entire tax lot
700 was transferred from the federal government to the State of Oregon in a large block
exchange.
In 1989, the Oregon State Legislature divided the Oregon Highway Department, which had
control over Tax Lot 700, into the Oregon State Highway Department ( "OHD ") and ODOT.
1989 Oregon ALS 904. Section 43 of that Act states:
With respect to the duties, functions and powers transferred under this Act
there are transferred to the State Parks and Recreation Depaitment:
(2) That real and personal property held in the name of the Parks and Recreation Division or
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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.
Transfer of fee title to a portion of 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 ODOT. The conveyance was made along with other conveyances in one
deed. Volume 230, Page 2214 contains the conveyance language for tax lot 700 described as
"Parcel 9." The deed does not convey the entirety of tax lot 700 to ODOT, but does
reference the amount of land needed to increase the right of way width 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."
Lot of Record Analysis
Applicant is applying for verification of lot of record under DCC 18.040.030(A)(1). The lot
of record verification application states that the subject property has already been effectively
partitioned by the construction of Highway 97 through tax lot 700. This reasoning is
explained in the applicant's January 9, 2009, letter. The letter reasons that the subject
property qualifies as an exception to the requirements of ORS, Chapter 92 under the same
reasoning used by the Court of Appeal's decision in Lovinger v. Lane County, 206 Or App
557 (2006). Though that land was private in Lovinger, and this land is public, the effect of
the road as a partition should be the same under both classes of ownership. Based on this
reasoning, 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:
1. By partitioning land as defined in ORS 92;
The court in Lovinger held that a private parcel divided by a strip of land for a public road
effectively partitioned the parcel, if it was deeded prior to the effective date of the 1991 state
legislative change to ORS 92.010 described below. That qualified as "partitioning land as
defined in ORS 92" according to the Court of Appeals.
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 for a road, 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 remainder parcel 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.
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The neighbors argued that ORS 92.010(7) (d) forbade 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 for road purposes, 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 [appealing neighbor] 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.
[brackets added for clarification of context].
The court in Lovinger distinguished between the versions of ORS 92.010(7)(d) before and
after the Oregon Legislature amended it in 1991, effective 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 in bold:
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. (Emphasis added).
The language in bold, effective November 1, 1991, is the same language that the Court of
Appeals found inapplicable in Lovinger because the division by roadway was made in 1959,
before the law was passed or effective. Clearly, the amended language forbids the creation
of new parcels solely by the sale or grant of property for the purposes of building a state or
county road after November 1, 1991.
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. There
was no deed history from one state agency to another that separated the ownership of the
road from the surrounding land at the time the road was built in the 1930's; nor was there
deed history in 1945 after the property was deeded to the State. The Board finds, however,
that the deed from OSPRD to ODOT recorded on February 25, 1991 is the requisite deed
recorded prior to the effective date of the 1991 legislation amending the ORS 92.010(7)
definition of "partition."
IV. DECISION:
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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 , 2009 BOARD OF COUNTY COMMISSIONERS
ATTEST:
TAMMY BANEY, CHAIR
DENNIS R. LUKE, VICE -CHAIR
Recording Secretary ALAN UNGER, COMMISSIONER
Mailed this day of , 2009.
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.
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