HomeMy WebLinkAboutRelease-Replacement of TDC Restrictive CovenantDeschutes 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 21, 2008
Please see directions for completing this document on the next page.
DATE: April 4, 2008
FROM: Catherine Morrow Community Development Dept.
385-1708
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Documents 2006-148 and 2008-149, "Release of TDC restrictive
covenant and grant of Replacement TDC Covenant".
PUBLIC HEARING ON THIS DATE? NO.
BACKGROUND AND POLICY IMPLICATIONS:
The County sold at auction Lot 5 and Lot 6 in Block 88 of Deschutes River Recreation Homesites
to Robert and Margaret Dryden. The properties were sold with restrictive Transferable
Development Credit (TDC) covenants to prohibit the placement of onsite sewage treatment system
on the lots. The Drydens own the adjacent Lots 3 and 4, which have no TDC covenants. The
Drydens wish to consolidate Lot 5 with Lot 6 and Lot 3 with Lot 4 and replace the existing TDC
covenants held by the County with new covenants that will allow only one septic system on each o f
the consolidated lots. This redistribution TDC covenants to the consolidated lots will accomplish
the same purpose of the original covenants and the TDC program by not increasing the number of
septic systems allowed on the original four lots. The lot line adjustment applications, which
consolidate the lots, have been approved the Planning Division (LL -07-86 and LL -08-13). New
deeds for the consolidated lots will be recorded at the same time as the replacement covenants,
which will satisfy the conditions of the lot line adjustment decisions. Legal and planning staffs
have worked with the Dryden's attorney Bruce White to develop the replacement covenants. Staff
agrees that the replacement covenants will achieve the intent of the original covenants and the
purposes of the Transferable Development Credit program.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Signature of two TDC restrictive covenants — Document Number 2008-149 (TDC #56) and Document
Number 2008 -148 (TDC #57)
ATTENDANCE: Catherine Morrow
DISTRIBUTION OF DOCUMENTS:
Original to Bruce White P.O. Box 1298 Bend OR 97709
Copy to Catherine Morrow Planning Director
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
After recording, return to:
Deschutes County
Community Development Department
117 NW Lafayette
Bend, OR 97701
Release of TDC Restrictive Covenant and
Grant of Replacement TDC Restrictive Covenant #57
(Conservation Easement)
This grant and release of TDC restrictive covenants by and between Robert and Margaret Dryden
(Drydens) and Deschutes County ( County) with respect to Lot 5, Block 88, Deschutes River
Recreation Homesites Unit 8, Part 1 and consolidated Lots 3 and 4, Block 88, Deschutes River
Recreation Homesites Unit 8, Part 1 (the Property).
The consideration is $0 and the mutual promises contained herein.
1. RECITALS
County has adopted a system of transferable development rights wherein the
development of certain otherwise developable lots in certain areas of Deschutes County
(TDC sending areas) are removed and credited toward development in other areas of
Deschutes County (TDC receiving areas) to reduce septic system loading in certain
environmentally sensitive areas of Deschutes County and to promote development in
other, less environmentally sensitive areas in order to protect groundwater resources in
the County.
1.2. Drydens acquired from County two separate subdivision lots described as Lot 5 and Lot
6, Block 88, Deschutes River Recreation Homesites, Unit 8, Part 1, platted in Deschutes
County, Oregon, in a TDC sending area subject to separate restrictive covenant interest
retained by County and recorded at 2006-40127 and 2006-40128, intended to effectuate
TDC #57 and TDC #56 respectively, which were intended to prevent Lot 5 and Lot 6
from each having a septic system and to place certain other restrictions on each
property, as set forth in those restrictions (TDC restrictive covenants).
1.3. Drydens own the adjacent undeveloped Lots 3 and 4 of DRRH Unit 8, Part 1, which
have no similar restrictions and which Drydens believe to be buildable lots.
Page 1 of 1- Dryden Release of TDC Restrictive Covenant and Grant of Replacement TDC Restrictive Covenant
(Conservation Easement) - Deschutes County Document No. 2008-148
1.4. Drydens wish to consolidate Lot 5 with Lot 6 and Lot 3 with Lot 4 and to redistribute
the TDC restrictive covenants held by County so that the TDC restrictive covenants
apply to allow only one septic system each on the consolidated Lot 5 and 6 and the
consolidated Lot 3 and 4.
1.5. Because the end result of such a consolidation can serve the purpose of the County's
transferable development rights program by not increasing the number of septic systems
in the TDC sending area, County is willing to allow for proposed lot consolidations and
to release the TDC restrictive covenants from Lots 5 and 6, but only if County can be
assured, consistent with the overall intent of the TDC restrictive covenants, that the
released TDC restrictive covenants will attach to currently unrestricted replacement
property so that the replacement TDC restrictive covenants will serve the same purpose,
i.e., to trade the restriction on one property with a like restriction on other property.
1.6. Drydens have obtained approval from the Deschutes County Planning Division for a lot
consolidation of Lots 5 and 6 into one single lot of record (LL -07-86) and Lots 3 and 4
into another single lot of record (LL -08-13).
1.7. To effectuate the transfer of TDC #56 and TDC #57 and their associated TDC
restrictive covenants from Lot 5 (TDC #57) and Lot 6 (TDC #56) to the newly
consolidated Lot 3 and 4 and Lot 5 and 6, respectively, Drydens and County have
agreed to releases and TDC restrictive covenants for each released lot and each
replacement lot recorded on the same day in accordance with the conditions below.
1.8. Accordingly, this Release and Grant shall be recorded contemporaneously with a like
Release and Grant regarding TDC #56 for the consolidated lot described as Lot 5 and 6,
as consolidated pursuant to LL -07-86, by the Deed recorded contemporaneously at
Volume , Page in the Deschutes County Deed Records
2. RELEASE OF TDC RESTRICTIVE COVENANTS.
2.1 County hereby releases the TDC restrictive covenant #57 recorded against Lot 5, Block.
88, DESCHUTES RIVER RECREATION HOMESITE UNIT 8, PART 1, Deschutes
County, in Exhibit A of that certain deed recorded in Deschutes County Deed Records
at 2006-40127 in exchange for Drydens's grant to County of the building and use
restrictions for TDC #57 granted herein against Lots 3 and 4, as consolidated by that
certain deed recorded contemporaneously in the Deschutes County Deed records at
Volume , Page
2.2. The consideration for County's release of the TDC Restrictive Covenants #56 and #57,
described in Recital Paragraph 1.2 above, is:
2.2.1 The recording of the Replacement TDC Restrictive Covenant set forth in
Section 3 herein and the contemporaneous recording of a deed consolidating
Lots 3 and 4, Block 88 Deschutes River Recreational Homesites Unit 8, Part 1,
Deschutes County to create one consolidated lot, and
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(Conservation Easement) - Deschutes County Document No. 2008-148
2.2.2 The recording of a Replacement TDC Restrictive Covenant for TDC #56 and the
contemporaneous recording of a deed consolidating Lots 5 and 6, Block 88
Deschutes River Recreational Homesites Unit 8, Part 1, Deschutes County to
also create one consolidated lot.
3. GRANT OF RESTRICTIVE COVENANT AGAINST CONSOLIDATED
LOTS 3 AND 4.
Drydens hereby grant to County and to County's assigns and successors in interest a perpetual
development and use restriction for consolidated Lots 3 and 4, Block 88, DESCHUTES RIVER
RECREATION HOMESITES UNIT 8, PART 1, Deschutes County Records, as consolidated (the
Property), subject to the terms included herein and subject to all matters of record.
3.1 Development and Use Restriction. To perpetuate the intent of the released TDC #57
restrictive covenant to limit the number of septic systems on properties within the TDC
sending area, Drydens's use of the Property shall be restricted as follows:
3.1.1 Drydens shall not further divide the consolidated Lots 3 and 4, as consolidated
pursuant to LL -08-13 by the Deed recorded contemporaneously at Volume
, Page in the Deschutes County Deed Records.
3.1.2 Only one septic system and one house shall be allowed on the tract of land
described as Lots 3 and 4, as consolidated by the Deed recorded at Volume
Page contemporaneously with this Replacement TDC Restrictive
Covenant in the Deschutes County Deed Records.
3.1.3 No commercial dog kennel shall be permitted on the Property.
3.1.4 The use of the Property shall otherwise be unrestricted, except as restricted as a
matter of law.
3.2 Transfer of TDC Credits. The TDC Credits assigned to this restriction, listed in the
Deschutes County Community Development Records as TDC # 57 are hereby
transferred to the Property in the same amount as set forth in TDC # 57 as it previously
attached to Lot 5, Block 88, DESCHUTES RIVER RECREATION HOMESITES
UNIT 8, PART 1, Deschutes County, Oregon.
3.3. No Access. This building and use restriction shall not allow County access to the
Property.
3.4. Consideration. The consideration for this grant is the County's release of the TDC
Restrictive Covenants #56 and #57, described in Recital Paragraph 1.2 above.
3.5. Restriction Runs with Land. This grant of a TDC development and use restriction
shall run with the Property to benefit the County and its successors in interest and to
burden the Drydens and their successors in interest.
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(Conservation Easement) - Deschutes County Document No. 2008-148
3.6. Administration and Enforcement.
3.6.1 Nothing herein shall be construed as creating any affirmative obligations on the
part of County.
3.6.2 Enforcement Generally:
3.6.2.1 The restrictions set forth in this covenant are enforceable by County.
3.6.2.2 If County determines that Drydens are in violation of the terms of this
covenant or that such a violation is threatened, then County shall give
written notice to Drydens of such violation and demand corrective action
to cure the violation and to restore the portion of the Property injured
where the violation involves and alteration of the Property resulting from
a use or activity inconsistent with the purpose of this covenant.
3.6.2.3 If Dryden fail to cure the violation within 30 days after receipt of notice
thereof or under circumstances where the violation cannot reasonably be
cured within a 30 -day time period, fails to begin curing such violations
within a 30 -day period, or, at any time, fails to diligently begin curing
such violation, County may bring an action at law or in equity in a court
of competent jurisdiction to enforce the terms of this covenant, to enjoin
the violation ex -parte as necessary, by temporary or permanent
injunction, and to abate any condition created on the Property in
violation of this covenant.
3.6.2.4 Nothing in Paragraph 3.6.2.3 shall limit County's remedies to enforce
the terms of this Release and Grant.
3.6.2.5 No delay or omission by County in the exercise of any right or remedy
upon any breach by Drydens shall impair such right or remedy or be
construed as a waiver.
3.6.2.6 Enforcement actions under this covenant may be taken only against an
Owner having fee title to the Property, any person having a possessory
right under an Owner, any agent, operator or contractor acting under the
authority of such owner or holder of such possessory rights.
3.6.2.7 A mortgagee shall be subject to enforcement actions only when
mortgagee takes ownership of the property by foreclosure or otherwise.
3.6.2.8 In addition to any other remedies set forth herein or otherwise available
under law, County may treat any violation of this covenant as a nuisance
under the current Deschutes County Code (DCC) Section 18.144.040 or
any comparable successor provision of the Deschutes County Code) and
a violation under the current DCC Section 18.144.050 (or any
comparable successor provision of the Deschutes County Code).
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(Conservation Easement) - Deschutes County Document No. 2008-148
3.7 Extinguishment. This covenant shall be extinguished only in the event the Property is
located within the established boundary, recognized by Deschutes County and the State
of Oregon, of an incorporated city, urban growth boundary or unincorporated
community, and will be served by a municipal sewer system.
3.8 Recitals. The recitals stated herein are hereby incorporated into this Development and
Use Restriction as if stated herein.
4. ASSENT BY COUNTY
By the signature of its Board of County Commissioners, County agrees to the Release of TDC
Restrictive Covenant and Grant of Replacement TDC Restrictive Covenant, County as set forth in
Paragraph 2.1 and pursuant to ORS 93.808 accepts Dryden's grant of the replacement TDC Restrictive
Covenant as set forth in Paragraph 3 and 3.1 through 3.8 herein.
Dated this 5/ day of March, 2008.
State of Oregon
) ss.
County of Deschutes )
On this 3/ day of March 2008 personally appeared before me the above named ROBERT and
MARGARET DRYDEN and acknowledged the foregoing instrument to be their voluntary act and
deed.
arg et E. Dryden
OFFICIAL SEAL
GLORIA J KANGAS
NOTARY PUBLIC -OREGON
COMMISSION NO. 398965
MY COMMISSION °F..: '.c,r=S NOV. 17, 2009
e0.7,6 c, -
Notary blic for Oregon
My Commission expires:
it, "
DESCHUTES COUNTY SIGNATURES TO FOLLOW ON NEXT PAGE
Page 5 of 5- Dryden Release of TDC Restrictive Covenant and Grant of Replacement TDC Restrictive Covenant
(Conservation Easement) - Deschutes County Document No. 2008-148
Dated this of , 2008 BOARD OF COUNTY COMMISSIONERS
ATTEST:
Recording Secretary
STATE OF OREGON )
) ss.
County of Deschutes )
DENNIS R. LUKE, CHAIR
TAMMY (BANEY) MELTON, VICE -CHAIR
MICHAEL M. DALY, COMMISSIONER
Before me, a Notary Public, personally appeared DENNIS R. LUKE, TAMMY (BANEY) MELTON,
and MICHAEL M. DALY and the above-named Board of County Commissioners of Deschutes
County, Oregon and acknowledged the foregoing instrument on behalf of Deschutes County, Oregon.
DATED this day of , 2008.
Notary Public for Oregon
My Commission Expires:
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(Conservation Easement) - Deschutes County Document No. 2008-148