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HomeMy WebLinkAboutRussell Appeal DocsCommunity Development Department Planning Division Building Safety Division Environmental Soils 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: July 6, 2011 TO: Board of County Commissioners FROM: Cynthia Smidt, Associate Planner RE: Appeal (file no. A-11-3) by John W. Russell of Hearings Officer decision denying a request for a Lot of Record Verification (file nos. LR -10-8 and A-11-1). Before the Board is an appeal filed by the applicant, John W. Russell, and represented by attorney, Mr. Robert Lovlien. 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's appeal requests the Board re-evaluate the Lot of Record request. BACKGROUND The subject property, tax lot 100 (Assessor's tax map 15-11-19A) in its entirety, is approximately 5.10 acres, located at 17590 Forked Horn Drive east of Sisters. The property is owned by John W. Russell. On November 2, 2010, the applicant filed for a Lot of Record Verification to determine if the 5.10 acres is a separate legal lot of record. Planning Division staff issued a decision on January 21, 2011 finding that the subject property is not a separate legal lot. Staff found the subject property is a legal lot of record together with tax lot 200 abutting the property to the west. The applicant appealed the decision to a Hearings Officer who held a public hearing on March 15, 2011. The Hearings Officer issued a decision denying the applicant's Lot of Record verification and affirming the staff decision on May 27, 2011. Tax lot 100 was originally part of a larger 480 -acre parcel that was divided into numerous parcels of varying sizes. In this case, the subject property, together with 5.47 acres (currently known as tax lot 200) to the west, was conveyed in a Warranty Deed in 1969, which was prior to any County partition regulations. This 1969 Warranty Deed contained two separate legal descriptions allegedly describing two contiguous units of land. However, the areas described were not conveyed in separate documents prior to 2006. Tax lot 100 and 200 were again conveyed together in 1973 with a Land Sale Contract and Warranty Deed although the deed included two separate legal descriptions for what are now separate tax lots. In April 2006, the western 5.47 acres was conveyed separately in a Warranty Deed. This is the first separate conveyance of tax lot 200. The County subdivision and partition ordinance, Title 17, regulated subdivisions and partitions in 2006. In addition, Title 18, the County Zoning Ordinance, Quality Services Performed with Pride regulated zoning and minimum lot sizes. The 2006 separation of tax lots 100 and 200 did not receive partition approval and the tax lots do not meet the minimum lot size for the zone. In summary, the 1969 Warranty deed described two units of land and thus, the question is whether one deed can create more than one legal lot of record. The County Zoning Ordinance includes within the definition of Lot of Record that, if more than one legal description is listed in the deed or contract only one lot of record shall be recognized, unless they are lots in a recorded subdivision or town plat. The subject property and surrounding area is not within a recorded subdivision or town plat. The Planning Division staff found that the subject property was not a legal lot of record by itself. The Hearings Officer explored the issue in more detail and affirmed staff's decision. Staff believes the Planning Division's administrative decision and the Hearings Officer's decision were sufficiently thorough and accurate in the review. The analysis of this request, and the basis for appeal, is inherently legal in nature; thus, staff recommends the Board not hear this appeal as it does not contain a significant policy issue (see DCC 22.32.027(2)). Staff will attend the Board Work Session on the afternoon of Wednesday, July 13, 2011 to answer questions. Attached to this memo is a copy of the Hearings Officer's decision and the Notice of Appeal. The appellant requests a de novo review by the Board. Attachments 1. Staff Decision on file no. LR -10-8 with Figure 1 2. Hearings Officer decision on file no. A-11-1 (LR -10-8) 3. Notice of Intent to Appeal (file no. A-11-3) File Nos.: A-11-3 (A-11-1/ LR0811) Page 2 of 2 January 21, 2011 John W. Russell 200 Market Building, Suite 1720 Portland, Oregon 97201 Community Development Department Planning Division Building Safety Division Environmental Solis Division 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 15-11-19A, Tax Lot 100; File No. LR -10-8, FINAL DECISION Dear Mr. Russell: You submitted an application for a lot of record determination for the above referenced tax lot hereinafter referred to as the "subject property." 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. Planning staff also reviewed the letter submitted on December 21, 2010 by the applicant's attorney, Robert Lovlien of Bryant, Lovlien & Jarvis, P.C. Based on a review of this information, we have determined the subject property is not a legal lot of record in its current configuration. However, it is deemed a legal lot of record in conjunction with tax lot 200 of tax map 15-11-19A (approximately 10.57 acres). 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 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. (Emphasis added) Quality Services Performed with Pride 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(8). 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. This provision is an explanation of policy indicating that only lots that were legally created according to applicable county zoning and land division ordinances should be recognized by the County for development purposes. The fact that tracts exist in the County Assessor's records as separate tax lots does not mean that they constitute legal lots of record under the lot of record provision. On December 7, 2010, the County issued a "preliminary" lot -of -record determination concluding the subject property is not a legal lot of record in its current configuration but rather a legal lot of record with tax lot 200 (on map 15-11-19A) to the west. The "preliminary decision" stated the applicant had until December 21, 2010 to submit any information he/she believed would change the 'preliminary decision." The applicant's attorney, Robert Lovlien responded in a letter dated December 21, 2010. In this correspondence, Mr. Lovlien states that ORS 92.017 takes precedent over the Planning staffs interpretation of the County Code. Staff will address this argument below. However, for reference, Oregon Revised Statute (ORS) 92.017 states the following. A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law. The subject property, tax lot 100, was originally part of a larger 480 -acre parcel conveyed in a 1967 Warranty Deed and recorded in Volume 152, Page 214 at the Deschutes County Clerk's office. The parent parcel was divided into numerous parcels of differing sizes. In this case, on December 1, 1969 tax lot 100, together with current tax lot 200 (map 15-11-19A), was conveyed together in a Warranty Deed and recorded in Volume 168, Page 5 at the Deschutes County Clerk's Office. In this 1969 Deed, two contiguous units of land were listed in the legal description. Tax lot 100 and 200 were again conveyed together in 1973 with a Land Sale Contract (Volume 192, Page 897) and a Warranty Deed (Volume 140, Page 2122). As indicated above in the definition of Lot of Record, if more than one legal description is listed in the deed or contract, only one lot of record shall be recognized unless they are lots in a recorded subdivision or town plat. The subject property and surrounding area is not within a recorded subdivision or town plat. It was not until April 11, 2006 that a Warranty Deed (County Clerk Document Number 2006-25761) conveyed the westerly 5.47 acres (tax lot 200) separately from the eastern 5.10 acres (tax lot 100). The County subdivision and partition ordinance, Title 17, regulated subdivisions and partitions at the time of this 2006 deed being recorded. Additionally, Title 18, the County Zoning Ordinance, regulated zoning and minimum lot sizes. The 2006 separation of tax lots 100 and 200 did not receive partition approval and the tax lots do not meet the minimum lot size for the zone. In the December 21, 2010 letter submitted by attorney Robert Lovlien, he stated his opinion that ORS 92.017 takes precedent over County Code. In particular, Mr. Lovlien's viewpoint is that because the 1969 Deed "clearly sets forth two separately described parcels of land" it follows ORS 92.017. Staff respectfully disagrees with this interpretation. Unlike lot lines found in partition or subdivision plats, lot lines established by conveyance have no existence independent of the LR -10-8, Russell Page 2 description in the deed itself. A legal lot of record can be created with a deed or contract when it contains a legal description for the property. When there is more than one legal description conveyed a deed or contract, the County only recognizes one legal lot of record. What ORS 92.017 supports is that if a lot is created lawfully (by deed, contract, or subdivision or partition plat), and then it is conveyed together with another legal lot using one deed, then the conveyance does not necessarily combine the separate legal lots that are being conveyed. In this case, tax lot 100 was never originally conveyed separately (without tax lot 200) and therefore, it cannot be supported by ORS 92.017. Staff finds the County Code does not violate ORS 92 or any precedent established by the County. Based on these findings, Deschutes County does not recognize tax lot 100 as a separate legal lot of record. However, based on previous deed history in 1969, the subject property is deemed a legal lot of record together with tax lot 200 of tax map 15-11-19A (see attached Figure 1). The subject property, together with tax lot 200 of map 15-11-19A, is zoned Multiple Use Agricultural (MUA). 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 Soils Divisions. This decision becomes final twelve (12) days from the date this decision is mailed unless appealed by a party of interest. Sincerely, DESCHUTES COUNTY PLANNING DIVISION 4 ;// Cynthia Smidt, Associate Planner c: Robert Loviien LR -10-8, Russell Page 3 11 c z rn J 1'L r rr eschutes County File No. LR -10-8 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: A-11-1 (LR -10-8) APPLICANT/OWNER: John W. Russell 200 Market Building, Suite 1720 Portland, Oregon 97201 ATTORNEY: REQUEST: Robert Lovlien Bryant, Lovlien & Jarvis, PC PO Box 880 Bend, Oregon 97201 The applicant appeals the Planning Division's administrative decision denying verification of a legal Lot of Record. STAFF REVIEWER: Cynthia Smidt, Associate Planner HEARING HELD: March 15, 2011 RECORD CLOSED: April 5, 2011 I. APPLICABLE CRITERIA: A. Title 22, Deschutes County Development Procedures Ordinance 1. Chapter 22.32, Appeals *Section 22.23.010, Who May Appeal *Section 22.32.015, Filing Appeals *22.32.020, Notice of Appeal *Section 22.32.027, Scope of Review B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose, and Definitions *Section 18.04.030, Definitions C. Oregon Revised Statutes 1. Chapter 92, Subdivisions and Partitions A-11-1 (LR 10-8) (Russell) Page 1 of 10 * ORS 92.017, When Lawfully Created Lot or Parcel Remains Discrete Lot or Parcel II. BASIC FINDINGS: A. LOCATION: The property is located at 17590 Forked Horn Drive, Sisters, Oregon and is further identified on Deschutes County Assessor's Map 15-11-19A as tax lot 100. B. ZONING: The subject property is zoned Multiple Use Agricultural (MUA). Development of the property is subject to the requirements of Title 18, the Deschutes County Zoning Code. C. SITE DESCRIPTION: The subject property is an approximately 5.10 acre parcel located within an unrecorded rural subdivision outside of Sister's, Oregon. D. SURROUNDING LAND USES: The area surrounding the subject property consists of Multiple Use Agricultural (MUA) and rural residential parcels of varying sizes. The majority, if not all, of parcels within the unrecorded subdivision that includes the subject property are less than 10 acres in size. Many of the parcels in the unrecorded subdivision are also developed with some kind of residential structure. E. PROCEDURAL HISTORY: Applicant submitted an application for verification of a lot of record on November 2, 2010 in LR 10-8. The Planning Division reviewed the application and made a preliminary determination that the subject property was not a legal lot of record on December 7, 2010 and requested the applicant to submit any information the applicant believed would change this preliminary decision by December 22, 2010. In response, the applicant's attorney, Robert Lovlien, submitted a letter on December 21, 2010 containing further information and argument concerning the lot of record issue. On January 21, 2011, the Planning Division issued its Final Decision determining that the subject property was not a legal lot of record in its current configuration. On February 1, 2011, the applicant submitted his Appeal Application form, signed by the Applicant, together with payment of $250.00 for the appeal fee and supporting documents to be included in the record. Hearing was held on March 15, 2011. The record was closed on April 5, 2011. F. PROPOSAL: Appellant appeals from an administrative decision determining that the subject property is not a legal lot of record. G. REVIEW PERIOD: The applicant submitted the subject application on November 2, 2010. Section 22.20.040(D) of Title 22 of the Deschutes County Code specifies that lot of record applications are not subject to the 150 -day review period required under section 22.20.040(A). A-11-1 (LR 10-8) (Russell) Page 2 of 10 11 PUBLIC/PRIVATE AGENCY COMMENTS: The record indicates the Planning Division did not send notice of the applicant's lot of record verification request to any agencies. I PUBLIC COMMENTS: The record indicates the Planning Division did not provide mailed, published or posted notice of the applicant's lot -of -record verification request, as allowed under DCC 22.20.030 (Administrative Decision Without Prior Notice). The record indicates the Planning Division mailed individual written notice of the appeal hearing to appellant and its attorney, and published notice of the hearing in the Bend Bulletin newspaper. No members of the public, other than the applicant and his attorney, submitted written or oral testimony at the public hearing. III. CONCLUSIONS OF LAW: A. Title 22, Deschutes County Development Procedures Ordinance 1. Chapter 22.32, Appeals a. Section 22.32.010. Who may appeal A. The following may file an appeal: 1. App;*** FINDINGS: The appellant is the applicant in this case and therefore is a party entitled to appeal the administrative decision. b. Section 22.32.015. Filing appeals A. To file an appeal, an appellant must file a completed notice of appeal on a form prescribed by the Planning Division and an appeal fee. B. Unless a request for reconsideration has been filed, the notice of appeal and appeal fee must be received at the offices of the Deschutes County Community Development Department no later than 5:00 PM 011 the twelfth day following mailing of the decision.*** FINDINGS: The record indicates the applicant filed his Appeal Application Form and Notice of Appeal, accompanied by the required appeal fee on February 1, 2011, within 12 days from January 21, 2011, the date of mailing of the final administrative decision. Therefore the Hearings Officer finds this appeal was timely filed. c. Section 22.32.020, Notice of Appeal Every notice of appeal shall include: A. A statement raising any issue relied upon for appeal with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and resolve each issue in dispute. A-11-1 (LR 10-8) (Russell) Page 3 of 10 FINDINGS: The applicant filed his notice of appeal on or about February 1, 2011 by filing the Appeal Application and Notice of Appeal on the standard form utilized by the Deschutes County Planning Division for this purpose. The Notice of Appeal is brief and states in its entirety as follows: Applicant is relying upon the information that was submitted to the county on behalf of the applicant. This includes the letter dated November 2, 2010 and the letter dated December 21, 2010 and accompanying exhibits. Copies of those letters are attached hereto. We are also requesting that the entire file be made a part of the record. By letter dated December 21, 2010, in response to the preliminary decision issued by the county on December 2, 2010, the applicant's attorney, Robert Lovlien, that ORS 92.017 takes precedent over DCC Section 18.04.030(a)(3). That letter is specifically referenced in the Notice of Appeal. Because the final administrative decision in this matter issued on January 21,2011 specifically responded to and rejected the applicant's position with regard to ORS 92.017, I find that the applicant has adequately raised the issue of whether ORS 92.017 takes precedence over DCC Section 18.04.030(a)(3) with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and resolve the issue in dispute.' This criterion is satisfied with regard to the issue identified above. B. Title 18, Deschutes County Zoning Ordinance. 1. 18.04.030. Definitions. As used in DCC Title 18, the following words and phrases shall mean as set forth in DCC 18.04.030. "Lot" means a unit of land created by a subdivision of land.... "Lot of Record" means: 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; 1 A subsequent letter from Attorney Steven L. Pfeiffer to John W. Russell and Mary Fellows dated March 8, 2011 and submitted by the applicant at the hearing on appeal held March 15, 2011, succinctly stated that "[T]he only issue on appeal is the legal validity of the underlying County ordinance provision, if any, under the contrary provisions of ORS 92.017." Despite that statement, Attorney Pfeiffer goes on to argue that DCC 18.04.030 is also an impermissible retroactive ordinance, a matter that was not raised at any point below or in the notice of appeal. A-11-1 (LR 10-8) (Russell) Page 4 of 10 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. For the purposes of DCC Title 18, "lot" or "parcel" means a lot of record as defined DCC 18.04.030. "Parcel" means a unit of land created by a partitioning of land. The applicant requested a lot of record determination on November 2, 2010 for an approximately 5 acre parcel located outside of Sisters, Oregon in an area zoned Multiple Use Agricultural with a minimum standard lot size of 10 acres. The underlying facts in this case are not in dispute, although the interpretation of those facts and the applicable controlling laws are certainly at issue. The subject property, hereinafter referred to as tax lot 100, was originally part of a larger 480 -acre parcel conveyed in a 1967 Warranty Deed and recorded in Volume 152, Page 214 at the Deschutes County Clerks office. The parent parcel was divided into numerous parcels of varying sizes. In this case, on December 1, 1969, tax lot 100 together with the aforementioned tax lot 200 (map 15-11-19A), was conveyed together in a warranty deed from Vogt to Blohm and recorded in Volume 169, Page 5 at the Deschutes County Clerk's office. The deed makes reference to two "parcels" and sets out distinct metes and bounds legal descriptions of each parcel.2 Tax lots 100 and 200 were again conveyed together in 2 The metes and bounds descriptions appear to correspond to the aforementioned tax lots 100 and 200 and are deemed to do so for purposes of this decision. Neither the applicant nor staff have questioned the correspondence between these tax lots and the metes and bounds descriptions in the deeds. Therefore, I deem the tax lots to correspond to the metes and bounds descriptions and will refer to them by tax lot numbers throughout this decision for convenience. A-11-1 (LR 10-8) (Russell) Page 5 of 10 1973 to the applicant, John W. Russell, with a Land Sale Contract (Volume 192, Page 897) and Warranty Deed (Volume 140, Page 2122).3 No further conveyance of these parcels occurred until April 11, 2006 when a Warranty Deed from John W. Russell to Erin Janssens dated April 11, 2006 and recorded April 14, 2006 conveyed the westerly 5.47 acres (tax lot 200) separately from the eastern 5.10 acres (tax lot 100). Tax lot 100 was retained by Mr. Russell. At the time of the 1969 conveyance of Tax lots 100 and 200 there was no subdivision ordinance, partition ordinance, or zoning code in Deschutes County. Effectively, property owners could divide property as they chose and convey such divided properties legally. However, as Oregon and Oregon counties adopted land use planning laws, the ability to convey property became subject to substantial regulation.4 Thus, by 2006 when the first deed was recorded conveying one of the two parcels (tax lot 200) separately from the other, the full array of land use laws was in effect and would preclude development absent a determination that the subject property was a "lot of record." Staff issued its final decision on January 21, 2011, determining that the subject property, commonly referred to as tax lot 100, was not a legal lot of record "in its present configuration," but deeming it to be a legal lot of record in conjunction with adjacent property, commonly referred to as tax lot 200. In the view of staff, the subject property failed to qualify as a separate lot of record because the 1969 deed of conveyance contained more than one legal description. The only issue raised on appeal by the applicant is the legal validity of the Deschutes County "lot of record" provision, or the interpretation of that provision by county staff, in light of the provisions of ORS 92.017.5 The Deschutes County Lot of Record provision in DCC 18.04.030 requires that a lot of record be created through one of five specific means. The parties agree, and I concur, that the subject property was created through a deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parcel, and recorded 3 At the public hearing on Mach 15, 2011, both staff and the applicant's attorney noted that there are slight differences between the legal descriptions on the 1969 and 1973 deeds. I find that those differences are of no consequence here. If tax Lot 100 is a "lot of record," it achieves that status by virtue of the 1969 deed. Thus, it is not necessary to further analyze the 1973 conveyance to the applicant for purposes of the decision in this matter. ° In 1970, a subdivision ordinance was adopted by Deschutes County (Deschutes County Code. This was followed by the adoption of a Partition Ordinance in 1977 and a Zoning Ordinance shortly thereafter. And in 1987, Deschutes County added a "lot of record" provision to its Zoning Ordinance, with a provision that where a lot or parcel was created by deed or contract containing more than one legal description then "only one lot of record shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat." 5 See letter from Attorney Steven L. Pfeiffer to John W. Russell and Mary Fellows dated March 8, 2011 and submitted by the applicant at the hearing on appeal, March 15, 2011. A-11-1 (LR 10-8) (Russell) Page 6 of 10 in Deschutes County. This is one of the specified means for creating a lot of record (See DCC 18.04.030(A)(3)).6 However, the ordinance contains a further important limitation on lots of record created by deed or contract by specifying that "[IN such instrument contains more than one legal description, only one lot of record shall be recognized unless the legal description describes lots subject to a recorded subdivision or town plan." The legal description of the subject property makes no reference to a recorded subdivision or town plat, and indeed no such recorded subdivision or town plan exists for this property. The applicant has argued that Oregon Revised Statute 92.017 takes precedence over the county's interpretation of DCC 18.04.030. ORS 92.017 states: "[a] lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law." In sum, the applicant asserts that the 1969 deed containing distinct legal descriptions for two parcels (commonly known as tax lots 100 and 200) created two discrete parcels that could not combined by DCC 14.030(A)(3). In support of its argument, the applicant relies upon two cases, Kishpaugh v. Clackamas County, 24 Or LUBA 164 (1992) and Thomas v. Wasco County, 58 Or LUBA 452 (2009), while distinguishing the current matter from Atkins vs. Deschutes County, 102 Or.App. 208, 793 P.2d 345 (1990).8 6 The other methods specified in DCC 18.04.030(A) do not apply. The property was not partitioned or subdivided under ORS Chapter 92, nor was it created by a "town plat" filed and recorded with Deschutes County. At the public hearing, staff indicated that a review of surrounding properties was performed to determine if the subject property was a legal remainder. Staff concluded that it was not a legal remainder either alone or in conjunction with tax lot 200. No contrary argument or evidence was submitted. Therefore, I find that for purposes of this decision the subject property was not a remainder lot. ' The subject property is located within an unrecorded subdivision. The Deschutes County lot of record provision specifically excluded from the definition of a "lot of record" any lot or parcel created solely by a tax lot segregation or by an unrecorded subdivision. The fact that the subject property corresponds to a tax lot (tax lot 100) and to a specific lot within an unrecorded subdivision is thus irrelevant to a determination of lot of record status. 8 In Atkins (1989), the Board of County Commissioners denied a lot of record determination requested on a five -acre tract. As described in the Board of County Commissioner's decision in a subsequent case (LR —92-47/O'Neill) the property owner in Atkins "had filed a survey with the County Surveyor in 1963 showing a 280 -acre tract divided up into 58 tracts of land of slightly more than 5 acres. The board found that a survey filed with the County Surveyor did not in and of itself create any separate units of land and that since the subject tract had been deeded by the Atkins family after the date of the County's partition ordinance became effective, the Board refused to recognize the lot as a legal lot. The County's position was upheld before the Land Use Board of Appeals (LUBA) and the Court of Appeals. I concur that Atkins is of limited application in the current matter because the fact situation does not involve the conveyance of multiple parcels on a single deed. I will not address it further. A-11-1 (LR 10-8) (Russell) Page 7 of 10 The applicant's reliance on Kishpaugh and Thomas is misplaced. Kishpaugh involved a county land use regulation that for development purposes required combination of substandard lots under the same ownership. The Land Use Board of Appeals determined that the regulation in question was not inconsistent with ORS 92.017. According to the LUBA opinion in Kishpaugh, "[n]othing in either the text of ORS 92.017 or its legislative history suggest that all lawfully created lots and parcels must be recognized by local governments as being separately developable." Id. At 172-173. In the present case, similarly to Kishpaugh, whether tax lots 100 and 200 have been lawfully created is not the issue. Instead, what is at issue is whether two lots/parcels, which at least arguably were created by the 1969 deed, are entitled to treatment as two separate "lots of record" for development purposes. If Kishpaugh were the end of the analysis, then I would find on that basis alone that there is no violation of ORS 92.017. However, the much more recent decision Thomas decision adds another dimension to the resolution of this matter. The issue in Thomas v. Wasco County (LUBA No 208-206) is whether Wasco County Ordinance 123.040 dealing with consolidation of lots for development purposes is consistent with ORS 92.017. The Wasco County Ordinance 123.040(2)(b) provided that one means by which multiple parcels conveyed in a single deed could be considered separate for development purposes, was to very specifically include separate metes and bounds descriptions with a separate heading for each. At the same time, however, the ordinance provided that "a separate metes and bounds description without a separate heading shall result in the properties being considered consolidated for development purposes." While recognizing that a county has a legitimate planning objective in encouraging the consolidation of substandard size lots for development purposes, LUBA remanded on the basis that the Wasco County ordinance distinguishing between deeds for developmental purposes on the basis of whether the deed contained appropriate headings and metes and bounds descriptions appeared to be arbitrary and bear no relation to a legitimate planning objective. Unlike the ordinance at issue in Thomas, I find that the provision of Deschutes County Zoning Ordinance 18.04.030(A)(3) dealing with multiple parcels being described on a single deed is not arbitrary and serves legitimate planning objectives by promoting the practical consolidation of substandard size lots for development purposes and preventing the recognition of land tracts that were created outside the applicable land division and zoning ordinances, where appropriate. Unlike, the Wasco County ordinance, the Deschutes lot of record provision applies equally to all situations in which multiple parcels are described in a single deed, regardless of variations in the form of wording or heading, and regardless of any presumed intent that the grantor may or may not have had.9 Furthermore, I understand 9 I recognize that attorney Steven L. Pfeiffer makes a strong argument in his letter of March 8, 2011 that the Deschutes County lot or record provision creates "an arbitrary, illegitimate and legally impLunissible distinction between those properties recognized as lots of record by deed and those that are no so recognized by deed" based upon the A-11-1 (LR 10-8) (Russell) Page 8 of 10 Deschutes County to have interpreted and applied its interpretation of that provision consistently over a number of cases: It applies only to the development of contiguous parcels in common ownership and only then to parcels originally created at the same time and by the same deed.10 And, as noted above, it applies regardless of any presumed intent that the grantor may or may not have had with regard to the language or form of the deed, a point which LUBA found objectionable in the Thomas case. Each of these distinguishes the Deschutes ordinance from the Wasco County ordinance and supports a different finding in the present matter. For the foregoing reasons, I find that DCC 18.04.030 is not inconsistent with ORS 92.017, and that the provisions of DCC 18.04.030(A)(3) have been properly applied to deny separate lot of record status to tax lot 100, the subject property in this matter. C. Oregon Revised Statutes, Chapter 92, Subdivisions and Partitions. 92.017 When lawfully created lot or parcel remains discrete lot or parcel. A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law. The analysis of whether DCC 18.04.030 is inconsistent with ORS 92.017 has been addressed above. That analysis and findings are incorporated here by reference. I find that DCC 18.04.030 is not inconsistent with ORS 92.017. D. A Note on Retroactivity. As mentioned above (see Footnote Number 1), By Letter from Appellant's attorney dated March 8, 2011, more than a month after the Notice of Appeal was filed, the issue of retroactivity was raised on the basis of ORS 92.285, ORS 215.110(6) and Church v. Grant County, 37 Or LUBA 6 46 (2000). I find that the issue of retroactivity was not raised in the Notice of Appeal as required DCC Section 22.32.020 and therefore is not properly before this Hearings Officer. LUBA decision in Thomas. I do not concur in that argument. It is important to note that in Thomas, LUBA specifically refused to overrule Kishpaugh, despite being requested to do so, and instead reaffirmed its commitment to that earlier decision. Moreover, '° See for example, memorandum from County Legal Counsel Bruce White to Planner Paul Blikstad in the Lewis case, LR 90-91 (Lot line adjustment resulting from characterizing two parcels as a single parcel, resulted in tax lots 900 and 1201 forming one lot of record. However, tax lot 800 separately conveyed on same deed, but previously created by separate deed, was not included in the combined lot of record); See also, O'Neill, LR 93-47. A county's interpretation of its own ordinances is entitled to some deference. "We must defer to a Local government's interpretation of its code so long as the proffered interpretation is not clearly contrary to the enacted language of the ordinance or its apparent purpose or policy." Clark v. Jackson County, 313 Or 508, 514-15 (1992). A-11-1 (LR 10-8) (Russell) Page 9 of 10 However, in the alternative, if the issue of retroactivity was either properly raised as required in the Notice of Appeal or otherwise properly before the Hearings Officer, I also find that DCC 18.04.030(A)(3) is not a retroactive ordinance for the reasons set forth below. Even if ORS 92.285 and 215.110(6) were generally applicable, following the reasoning in Church, as well as Schoonover v. Klamath County, 16 Or LUBA 846 (1988), it is clear that the present situation differs significantly from the kinds of circumstances to which retroactivity under ORS 92.285 and ORS 215.110(6) may be applied to prohibit government action. In Church, LUBA summarizes its ruling in Schoonover as follows: In Schoonover v. Klamath County, 16 Or LUBA 846 (1988), we addressed whether a county ordinance violated ORS92.285 and ORS 215.110(6) in applying zoning that restricted future residential development on forest land that had been subdivided into residential lots prior to adoption of the statewide planning goals. We concluded that "statutory prohibitions against retroactive land use regulations protect uses that exist on the date the regulations are adopted, not uses that could have been, but were not, initiated." Id. At 849. Accordingly, we held that the county's ordinance restricting residential development was not a "retroactive ordinance," because it restricted only future residential development and did not affect existing development or the subdivisions themselves. The facts in Church are unique and do not resemble the situation in the present matter. On the other hand, Schoonover is quite similar to what is at issue in the present matter. specifically, the prospective application of a county land use ordinance restricting develop- ment. It follows that DCC 18.04.030(A)(3) is not a retroactive ordinance and I so find. IV. DECISION: Based on the testimony and written evidence in the record, the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby AFFIRMS on appeal the administrative decision denying lot -of -record verification for the subject property. Gerald G. Watson, Hearings Officer Dated this 27th day of May, 2011. Mailed this 27th day of May, 2011. THIS DECISION IS FINAL UNLESS APPEALED WITHIN 12 DAYS OF MAILING. A-11-1 (LR 10-8) (Russell) Page 10 of 10 BRYANT LOVLIEN %RVIS,Pc ATTORNEYS ,Cr LAW ESTABLISHED 1915 Neil R. Bryant Robert S. Lovlien John A. Berge Sharon R. Smith John 13. Sorlie Mark G. Reinecke Melissa P. Linde Kitri C. Ford Paul J. Taylor Kyle D. Wuepper Jeremy M. Green Peter A. Christoff Melinda Thomas 591 S.W. Mill View Way Bend, Oregon 97702 Phone: (541) 382-4331 Fax; (541) 389-3386 WWW.BLJAWVERS.COM June 8, 2011 HAND DELIVERED DESCHUTES COUNTY COMM. DEVELOPMENT DEPT. ATTN: CYNTHIA SMIDT 117 NW LAFAYETTE AVE. BEND, OR 97701 Re: Appeal Application of John Russell Property at: Map 15-11-19A, Tax Lot 100 File Nos.: LR -10-8/A-11-1 Dear Cynthia: RECEIVED BY: JUN 0 7 2011 DELIVERED BY: Enclosed please find our Appeal Application and Notice of Appeal with attached exhibits. Also enclosed is our client's check in the sum of $2,578.00 as payment of the filing fee for appealing to the Board of Commissioners. Please provide our office with copies of the hearing dates and let me know what the charge is for those tapes. We can then have a transcript prepared before the next hearing. Please call me if you have any questions. Verytruly yours, y / Trip 4— g ///nJ awl) ROBERT S. LOVLIEN RSL/alk Encl. {16060-001-00063860;1) 08/0.3/2011 Fla 11:04 FAX 541 389 3386 Bryant,. Lnyl:ien k :Jarvis fV.002/020 Community Development Department Planolog Division MEWOR 117 NW Lafayette Avenue, Bend, OR 57701-1825 (641) 3686675 - Fax (541) 386-1784 http://www.deschutes.org/cdd APPEAL APPLICATION FEEL $2,578.00 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. 4. If color exhibits are submitted, blackand white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth In Chapter 22.32 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 mndaran appeal invalid. Any additionalcomments should he Included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant Is eligible to file an appeal (DCC Section 22.32:010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those Issues, Appellant's Name (print): John W. Russell Phone:O 22R-2Enn. Mailing Address: 200 Market Bldg. #1720 My/State/Zip: Portland, OR 97201 Land Use Application Being Appealed' LR -10-8 (A-11--1 ). Property Description: Toymshi : 119 Range Section 197 Tax Lot 100 AppellanVs Siggnature EXCEPT AS PRO .WED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF . Y"HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE ISA $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMV11T THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY. FIVE (.5) DAYS PRIOR TO THE DATE SET FOR THE 05 NOVO HEARING OR, FOR ON•THE-RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 7/09 06/03/-2011 PRT 11404 FAX 541 389 3386. Bryant, Lovii..3n 0 Jarvis NOTICE OF APPEAL. See attached Notice of Appeal document. 0003/020 (This page may be photocopied It additional space is needed,) NOTICE OF APPEAL TO I'HE DESCHUTES COUNTY BOARD OF COMMISSIONERS FILE NOS.: APPLICANT/OWNER: ATTORNEY: REQUEST: STAFF REVIEWER: HEARING HELD: RECORD CLOSED: A-11-1 (LR -10-8) JOHN W. RUSSELL 200 MARKET BLDG., SUITE 1720 PORTLAND, OR 97201 ROBERT S. LOVLIEN BRYANT, LOVLIEN & JARVIS, P.C. 591 SW MILL VIEW WAY BEND, OR 97702 Applicant appeals the Decision of the Deschutes County Hearings Officer, dated May 27, 2011 Cynthia Smidt, Associate Planner March 15, 2011 April 5, 2011 Applicant hereby appeals to the Deschutes County Board of Commissioners the Decision of the Deschutes County Hearings Officer, dated May 27, 2011, in File No. A-11-1 (LR -10-8). Said Decision is attached hereto as Exhibit "A" and incorporated herein by reference. Applicant requests review by the Board of County Commissioners, and specifically requests de novo review, because this case represents a significant policy issue for Deschutes County regarding the validity and legitimacy of restricting development on lawfully created lots based on prior deed language. The review period in this case is not at issue because Section 22.20.040(D) of Title 22 of the Deschutes County Code ("DCC") specifies that lot of record applications are not subject to the 150 -day review period required under Section 22.20.040(A). {16060-001-00062180;1} 1 - Notice of Appeal 21046859_I.DOCx 14572-0001/LEGAL21046859.1 The facts in this case are summarized as follows: In 1969, two Lots, which are now described as Tax Lots 100 and 200, Map 15-11-19A, Deschutes County, Oregon, were lawfully created and conveyed together in a deed. In March of 1973, Applicant purchased those same lots. The legal description in the Preliminary Title Report and original Contract of Sale, at the time of purchase, identified "two parcels of land." The property was part of an unrecorded subdivision. At the time that the property was purchased, the County clearly recognized these two parcels as legal lots and would have issued building permits for each lot. In his decision, the Hearings Officer held that the subsequent enactment of subdivision regulations, specifically the adoption of a "Lot of Record" definition, now prevents the recognition of the Applicant's property as two separate, valid, and discrete lots of record, available for development. We submit that the Hearings Officer erred as follows: 1. The Hearings Officer erred in failing to find that DCC 18.04.030, the definition of "lot of record," is inconsistent with the controlling provisions of ORS 92.017. An analysis of such inconsistency is set forth in a letter dated March 8, 2011 from attorney Steven L. Pfeiffer of Portland, Oregon. See attached Exhibit "B," which is incorporated herein by reference. Specifically, the Hearings Officer improperly conflates the issue of whether Tax Lot 100 is a Iawfully created, separate, and discrete lot with the independent issue of whether such lot is capable of being developed under applicable Code or statutory provisions, which is not relevant under ORS 92.017; 2. The Hearings Officer erred in failing to find that DCC 18.04.030, the defmition of "lot of record," creates an arbitrary and illegitimate distinction between those properties that are recognized as lots of record by deed and those that are not so recognized, contrary to established case law; { 16060-OOI-0006218Q1 } 2 — Notice of Appeal 21046859_1.DOCX 14572-0001/LEGAL21046859.1 3. The Hearings Officer erred in relying on the County's past application of DCC 18.04.030 and the "lot of record" provision to other cases, which is irrelevant to the issue of statutory compliance and has no bearing on the Hearings Officer's decision under the particular circumstances of this case; 4. The Hearings Officer erred in finding that the issue of retroactivity was not properly raised below or expressly raised in the Notice of Appeal because DCC 22.32.027 states that the review on appeal before the Hearings Officer is de novo and the issue of retroactivity was timely raised at the hearing. Pursuant to ORS 215.416(11)(a)(E)(ii), the presentation of testimony, arguments and evidence shall not be limited to issues raised in a notice of appeal. Furthermore, requiring review of such issue presents no prejudice to the Hearings Officer since it involves only a question of law; and 5. The Hearings Officer erred as a matter of law in making his alternative finding that DCC 18.04.030, the County's "lot of record" provision, is not an impermissible retroactive ordinance under ORS 92.285 and ORS 215.110(6). The Hearings Officer failed to address how the County's "lot of record" provision, which was adopted in 1987, could apply retroactively to invalidate or restrict development on lots that were lawfully created in 1969, prior to the establishment of any subdivision ordinance or zoning code in the County, based on the language of such historical deed. Applicant's position is that he is being unfairly discriminated against because he had not obtained any other kind of permit prior to the submittal of this lot of record request. It appears that all other parcels within the "unrecorded subdivision" where Mr. Russell owns property, have received building permits. Mr. Russell would essentially be denied the ability to obtain a building permit on the parcel that he has retained. {16060-001-00062180;1) 3 — Notice of Appeal 21046859_1.DOCx 14572-0001/LE0AL21046859.1 In summary, Applicant hereby requests de novo review of this matter by the Deschutes County Board of Commissioners because of the broad and significant policy issues involved. DATED this u day of June, 2011. GRO:1 RT S. LOV BRYANT, LOVLIEN & JARVIS, P.C. {16060-001-00062180;1} 4 — Notice of Appeal21046859_1.Docx 14572-0001 /LEGAL21046859.1 MI5 S414* OSB #74197 Of Attorneys for App1 t