HomeMy WebLinkAboutCOID Appeal HearingCommunity 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 29, 2009
TO: Board of County Commissioners
FROM: Cynthia Smidt, Associate Planner
RE: Appeal (file no. 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
(COID), and represented by attorney, Ms. Elizabeth Dickson. 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 700 (Assessor's tax map 16-12-34) in its entirety, is
approximately 33.83 acres, located at 64555 Highway 97 and lies between the city of Bend
and Deschutes Junction area. The property is owned by Oregon State Parks and Recreation
Department (OSPRD or OPRD). 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 request to determine if the 10.66 acres that lies southeast of Highway 97 is a
separate legal lot of record. A preliminary decision by Planning Division staff was issued on
April 25, 2008 finding that the 10.66 -acre portion was not a separate legal lot. 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.
According to the record, the creation of Highway 97 occurred in the early 1930's but without
any deeds to the State specifically for highway purposes for that portion of the highway that
runs through the subject property. In 1945, several properties were transferred for a final
time from the United States government to the State of Oregon. Between 1945 and 1991,
the subject property was under control of Oregon State Highway Commission and Oregon
Parks and Recreation Department with no direct title records indicating any title transfers for
the highway. In 1991, a 40 -foot strip of land on both sides of Highway 97 were conveyed
from OPRD to Oregon Department of Transportation (ODOT) to expand the highway right-of-
way. The Oregon Legislature adopted changes to Oregon Revised Statute (ORS) 92 within
Quality Services Performed with Pride
the same year the 40 -foot strip of land was transferred. These changes to ORS 92 together
with the Oregon Court of Appeals case, Lovinger v. Lane County in 2006 (206 Ore. App.
557) were reviewed by the applicant and the Hearings Officer and applied to the analysis of
this application.
The Hearings Officer examined four (4) issues relevant to the decision:
• Definition of Lot of Record as defined in Deschutes County Code Chapter 18.04
• ORS Chapter 92 as amended by Oregon Legislature in 1991, as applicable to this
case.
• Oregon Court of Appeals case, Lovinger v. Lane Count, as applicable to this case.
• The history of conveyances of the subject property.
Staff believes the Hearings Officer's decision was 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 Commission seek legal counsel for guidance.
Staff will attend the Board Work Session on the afternoon of Wednesday, May 6, 2009 to
answer questions. Background information on the record to date is available for inspection
at the Planning Division.
Attachments
1. Hearings Officer decision on file no. LR -08-11
2. Notice of Intent to Appeal
3. Staff Preliminary Decision on file no. LR -08-11
4. Miscellaneous Information from the record
File No.: A092 (LR0811) Page 2 of 2
DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER: LR -08-11
APPLICANT: Central Oregon Irrigation District
1055 SW Lake Court
Redmond, Oregon 97756
REQUEST: The applicant is requesting a lot of record determination for
property identified on Deschutes County Assessor's Map 16-12-34,
tax lot 700.
STAFF REVIEWER: Cynthia Smidt, Associate Planner
HEARING DATE: February 24, 2009
RECORD CLOSED: February 24, 2009
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;
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.
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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 fmding 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.
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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.
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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,
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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.
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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 fmd 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.
Kenneth D. Helm, Hearings Officer
Dated this day of March.. 2009
Mailed this g 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
-1i
w
Community Development Department
Planning Division
117 NW Lafayette Avenue, Bend, OR 97701-1925
(541) 388.6575 - Fax (541) 385-1764
http://www.deschutes.org/edd
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 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 render an appeal invalid. Any additional comments should be included on the Notice of Appeal.
Appellant's Name (print): Central Oregon Irrigation District Phone: (541) 548-6047
Mailing Address: 1055 SW Lake Court City/State/Zip: Redmond OR 97756
Land Use Application Being Appealed: 1.R--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:
Eli.,.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) *SANADc
0 _ 2 �tAR 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 find 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 THE 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
HI. 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.
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SECTIOR 34 T.16S. R.12E. W.W.
DESCHUTES COUNTY
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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
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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. 1 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,
Defmition 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
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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 tohave 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
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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.
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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
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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
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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
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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?
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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
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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, Pll 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
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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 1—
STEVE
—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:
LaCY1-4*
LII'DA TIEKAMP
Date: March 23, 2009
PAGE 11 — TRANSCRIPT OF HEARING FOR LR -08-11
FEBRUARY 24, 2009
TES
Community Development Department
"-‹ Planning Division Building Safety Division Environmental Health Division
April 25, 2008
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
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 Tots does not mean that it constitutes legal Tots 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 Tots 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 government body for the construction
of a road, the conveyance of that land then creates separate legal Tots. 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 government 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,
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 lots 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 Tacks a retroactivity clause or any other explicit
language suggesting the legislature intended it to apply retroactively, nor does its
legislative history shed Tight 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 lots 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 Tots. 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,
‘11 i
)1°.°°. 144 ca....fig
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
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SECTION 34 T.16S. R.12E. W.M.
DESCHUTES COUNTY
HURLEY
RE, P.C.
ATTORNEYS Ar LAW
747 SW Mill View Way
Bend OR 97702
Phone 541.317.5505
Fax 541.317.5507
www.hurley-re.com
January 28, 2009
Laurie Craghead
Deschutes County Assistant Legal Counsel
1300 NW Wall Street
Bend OR 97701
Daniel C. Re
Christopher D. Hatfield
Elizabeth A. Dickson
Gary R Johnson
Brian J. MacRitcbie
Ryan P. Correa
Alison G. Hohengarten
Roger W. Perry
Mariel M. Ettinger
James V. Hurley
Retired
William E. Flinn
Of Counsel (Retired)
Via Email and First Class Mail
Re: Lot of Record Status of 10.66 Acre Parcel Belonging to OPRD
Deschutes County Assessor's Map 1612 34, Tax Lot 700
File No. LR 08-11
Dear Laurie:
RECEIVED
ED
FEB 03 20 :9
Deschutes County CDD
On behalf of Central Oregon Irrigation Distict, this letter is written confirmation of our request that the
above -referenced matter be taken out of "hold" status and placed into "active" status. Attached is a
letter explaining our reasoning supporting our request for the lot of record approval. We appreciate your
consideration in this matter, and look forward to working with the County on this project.
Sincerely,
Elizabeth A. Dickson
EAD/lt
c: Client
Q:\Data\Liz\CLIENT FILES\C\Coid\HYDRO - OS&C TA - SMALL HYDRO 102.371\L -Laurie Craighead 1.28.09.dotx
HURLEY
RE, P.C.
ATTORNEYS AT LAW
747 SW Mill View Way
Bend OR 97702
Phone 541.317.5505
Fax 541.317.5507
www.hurley-re.com
January 9, 2009
Laurie Craghead
Deschutes County Assistant Legal Counsel
1300 NW Wall St.
Bend Oregon, 97701
Daniel C. Re
Christopher D. Hatfield
Elizabeth A. Dickson
Gary R Johnson
Brian J. MacRitchie
Ryan P. Correa
on G. Hohengarten
Roger W. Perry
Mariel M. Ettinger
James V. Hurley
Retired
r:\ Yt "
3mi 2
g 2009 \
hL ccose_
LEu�
L
William E. Flinn
Of Counsel (Retired)
Via first class mail and email
Re: Lot of Record Status Determination of 10.66 acre parcel belonging to OPRD
Deschutes County. Assessor's Map 16-12-34. Tax Lot 700
File No. LR -08-11
Dear Laurie:
I am writing to follow up on the above referenced matter. As you may recall, Central
Oregon Irrigation District has concluded negotiations with the Oregon Parks and Recreation
Department ("OPRD") to purchase 10.66 acres east of Highway 97 north of Bend to locate a small
hydroelectric plant in the Pilot Butte Canal. OPRD favors this transaction because it follows
Governor Kulongoski's directive to promote sustainable energy development in Oregon.
Earlier last year, we filed a lot of record determination application with the County to
confirm that the 10.66 acre parcel ("subject property") was legally separate for transfer purposes.
Cynthia Smidt, Associate Planner, wrote a preliminary decision on April 25, 2008, attached for ease
of reference, which suggested that the subject property is legally part of a string of real properties
connected by diagonal comer point, bordering the highway. The map depicting this theory is also
attached, as part of the preliminary decision.
We appreciate the County's willingness to table this matter pending resolution of the Text
Amendment application. Now that the Text Amendment needed to building the hydro plant is
approved, we would like to continue our discussions in an effort to allow COM to purchase the
10.66 acre property east of Highway 97 that OPRD wants to sell to the District. We have
extensively researched the historical facts and related case rationale pertaining to the matter and
request that you consider the reasoning below in response to Ms. Smidt's preliminary decision.
Hurley Re, P. C.
January 9, 2009
Page 2
Our conclusions are based on the unique nature of state ownership of the subject parcel. The
legislation that created OPRD separated it from the State Highway Department and separated
ODOT at the same time. However, lands allocated to the respective agencies were not required to
be deeded separately, as well. Rather, if they were considered at all, they were assigned internally
without an official deed or date of transfer.'
At issue is whether the eastern 10.66 acre subject property, a remnant part of tax lot 700
after division by Highway 97's construction, is legally part of, or separate from, the western part of
tax lot 700. (Ms. Smidt's preliminary opinion suggests tax lot 700 in its entirety may also be
connected to tax lots south and west of this lot. This issue does not appear to be material to the key
question, and so we shall not address it here.) The subject property is located in Deschutes
County's Open Space and Conservation (OS&C) zone. The zone minimum lot size is 80 acres.
The smaller lot size is not allowed under the County's Code unless there are extenuating
circumstances.
The divisive effect of Highway 97 through Tax Lot 700 effectively separates the parcel into
three separate properties: TL 700 east of the highway, the highway itself, and TL 700 west of the
highway. The two side remnant parcels cannot be connected by tunnel or bridge to be used as one
parcel. The nearest crossing over Highway 97 is Deschutes Junction, approximately 1.25 miles
north of the subject property. Thus, if a single use on Tax Lot 700 were split between the east and
west sides of Highway 97, one would be required to drive at least 2.5 miles to travel from one side
of the property to the other. Historically, such division has been held to separate otherwise
undividable parcels into separate legal lots of record.
' January 1, 1990, OPRD and ODOT were officially created and separated from the Oregon
Highway Commission through the 1989 legislation (1989 Ore. ALS 904, "the Act"). This legislation also
officially transferred all real property that OPRD had under its jurisdiction to OPRD. Section 43 of that 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:
(1) The supplies, materials, equipment, records, books, papers and facilities of the
Department of Transportation now under the jurisdiction and control of the Parks
and Recreation Division.
(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. (Emphasis
added).
Hurley Re, F.C.
January 9, 2009
Page 3
Lovinger v. Lane County, 206 Or. App. 557 (2006), allows for legal partition in such cases.
The case is complicated, however, by the Oregon Legislature's enactment of ORS 92.010(7)(d) on
August 5, 1991. The statute has the effect of blocking future partition of lots or parcels by road
construction after the effective date of the statute, approximately November 1, 1991. 2(Oregon's
legislature determined that such divisions could have the effect of undermining Oregon's land use
model by creating many small lots along roads and increasing densities otherwise determined to be
undesirable.) Thus, Lovinger only applies to parcels or lots divided by roadways prior to
approximately November 1, 1991.
Ms. Smidt's preliminary decision suggests that this division did not occur until after
November 1, 1991. The highway was designed in the 1930's. Land was transferred to the state by
the federal government in 1945 in anticipation of the general path of the highway to be constructed.
It was built in the 1940's. Her conclusion seems illogical, but has a logical basis in the minutia of
Lovinger. The Court of Appeals in that case sought a bright line test to determine when a road
division actually occurred. It found that test in the transfer of the land for construction of the road,
as the first instance in time when the division could be evidenced. Specifically, Lovinger held that
if a strip of land is transferred in fee to a government body for the construction of a road prior to
ORS 92.010(7)(d), then that transfer created separate legal lots of record.
Thus, it is understandable how the preliminary decision finds that since the current deed
holder, Oregon Parks and Recreation Department, never transferred the strip of land to ODOT by
deed for the original construction of Highway 97, it is reasonable to conclude that OPRD did not do
so before the effective date of ORS 92.010(7)(d), and so is not entitled to the historic exception of
the road dividing the lot under Lovinger.
We suggest that such interpretation, while a reasonable beginning, is not a reasonable end.
It is clear that Lovinger allows lands divided by roads before November 1, 1991 to be considered
separate legal lots of record. There is no dispute that Highway 97 divided TL 700 long before 1991.
As noted in the preliminary decision, the State of Oregon received hundreds of acres from the
federal government for the construction of Highway 97. Once the highway was built, the state
transferred remainder parcels between departments for almost 50 years, never seeing a legal need to
deed transfers because of common ownership under the State of Oregon. Thus, it is unreasonable to
expect a strip of land to be transferred in fee from one department of the state to another during that
time. It was already in government hands.
In the spirit of Lovinger, the proper test under these facts would be a different bright line
test: When did the road actually sever the parcel or lot, and did that severance occur prior to the
statute? Here it is not necessary to look to transfer of land as the first instance of severance. The
constriction of the road itself serves as evidence of such division, since the federal government
transferred large tracts of land in anticipation of the general route of the highway in lieu of a
Lovinger held that ORS 92.010(7)(d) does not apply retroactively since "the test of ORS
__ __ _ __9.2.0-10_ contains no mention of retroactivity." See State ex rel Juv. Dept. v. Nicholls, and Boone v.
Wright, 314 Or 135, 138, (1992).
Hurley Re, P. C.
January 9, 2009
Page 4
specific strip. And that occurred long before the legislature's enactment of the statute changing the
rule of law.
Alternatively, if the Lovinger test, as stated in the case, is determined to be uniquely
applicable here, transfer of TL 700 from the State Highway Commission to the present owner,
Oregon Parks and Recreation Department should be determined to be a definitive transfer. This is
reasonable because the Highway Commission administered highways and OPRD administered
recreational and landscape corridor lands beyond highway strips. The assignment of TL 700 from
the Oregon Highway Commission to OPRD occurred sometime prior to February 25, 1991, since
that is the date of the deed recorded at Vol. 230, Page 2209 in Deschutes County Clerk's Records
that reconveyed additional land back to the State's highway department, now Oregon Department of
Transportation, for purposes of corridor expansion. ORS 92.010(7)(d) was not enacted until August
5, 1991, and did not take effect for 90 days, approximately November 1, 1991. Thus, it is
reasonable to conclude that since OPRD "owned" the remains of TL 700 on both sides of the
highway in February, while the law precluding lot of record status did not take effect until the
following November, OPRD is properly entitled to benefit from the historic lot or parcel division
designation in effect prior to the new statute.
On behalf of the District and OPRD, we appreciate the County's efforts in considering this
unusual situation and request. We remain committed to concluding this transaction shortly,
constructing the piping of the canal starting next fall, and appreciate any assistance the County may
provide to that end.
Sincerely,
Elizabeth Dickson
Enclosure: Preliminary Decision LR -08-11
Q:1Data1Liz1CLIENT FILES1C1Coid1HYDRO SITE STATE PARKS 102.2981L - Laurie Craghead 1 09 09.docx
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app (Nal daf�°.
Chap. 763 OREGON LAWS 1991.
[(2) 'Major partition" means
includes the creation of a road or
[(3) "Min
not include t
(4) "Neg.
to the execul
of land in a
not limited t
of the sale o
(5) "Parc
by a partitio
(6) "Part
ing land or
a partition which
street.]
I that does
]
reliminary
r the sale
uding but
promotion
is created
partition-
one
d
(7) "Partition iana-. means to aiviae and into
two or three parcels of land within a calendar year,
but does not include:
fore-
closure,(a) A division
of foreclosure of land ecor ed from a lien
contract forthe
sale of real property or the creation of cemetery lots;
relo-
cation(b) of An
oumrnon oundustment of a aryp wherty
e by
unit of land is not created and where the existing
unit of land reduced in size by the adjustment com-
plies with any applicable zoning ordinance; or
(c) 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 pro-
vided that such road or right of way complies with
the applicable comprehensive plan and ORS 215.213
(2)(q) to (s) and 215.283 (2)(p) to (r). 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 parti-
tioned.
(8) "Partition plat" includes a final map and
other writing containing all the descriptions, lo-
cations, specifications, provisions and information
concerning a [major or minor] partition.
(9) "Plat" includes a final subdivision plat, replat
or partition plat.
(10) "Property line" means the division line
between two units of land.
(11) "Property line adjustment" means the
relocation of a common property line between
two abutting properties.
[(10)] (12) "Replat" [includes a final map of the
reconfiguration of lots and easements of a recorded
subdivision or partition plat and other writings con-
taining all the descriptions, location, specifications,
dedications and provisions and information concern-
ing a recorded subdivision] means the act of
platting the lots, parcels and easements in a re-
corded subdivision or partition plat to achieve a
reconfiguration of the existing subdivision or
partition plat or to increase or decrease the
number of lots in the subdivision.
[(11)] (13) "Road" or "street" means a public or
private way that is created to provide ingress or
egress for persons to one or more lots, parcels, areas
or tracts of land, excluding a private way that is
1564
created to provide ingress or egress to such
conjunction with the use of such land for
mining or agricultural purposes.
[(12)] (14) "Sale" or "sell" includes ever'.'
sition or transfer of land in a subdivision c ;.
tion or an interest or estate therein.
[(13)] (15) "Subdivide land" means to divi;
into four or more lots within a calendar yefirk
[(14)] (16) "Subdivision" means either ark'Y
subdividing land or an area or a tract of lan
vided.
[(15)] (17) "Subdivision plat" includes a fit ''_%`'
and other writing containing all the desc .=LL
locations, specifications, dedications, provisicr`4¢;'==
information concerning a subdivision.
SECTION 2. Section 3 of this Act is ad
and made a part of ORS chapter 92.
SECTION 3. (1) In order to subdivide o rr
tion any property, the declarant shall include
face of the subdivision or partition plat a d ,l
tion, taken before a notary public or other
authorized by law to administer oaths, statin 4`
the declarant has caused the subdivision or pa gY
plat to be prepared and the property subdivid-
partitioned in accordance with the provisions o
chapter. Any dedication of land to public pa f
or any public or private easements created, cr
other restriction made, shall be stated in the
ration.
(2) If the declarant is not the fee owner rx[s'
property, the fee owner and the vendor under;:;
instrument of sale shall also execute the declar
for the purpose of consenting to the property
subdivided or partitioned.
(3) If the subdivision or partition plat core :t
any dedication or donation of land to public
poses, the holder of any mortgage or trust deed.
also execute the declaration for the purpose of
senting to the property being submitted to th
visions of this chapter.
(4) Notwithstanding the provisions of subse.r
(1) to (3) of this section, the fee owner, vendor ots
mortgage or trust deed holder may record an
vit consenting to the declaration of property
subdivided or partitioned and to any dedicatio:
donation of property to public purposes. Such
vit shall indicate the recorded document by �a
the interest in the property was acquired and a).<
formation required by ORS 93.410 to 93.530 and
be recorded in deed records at the same time air ,
subdivision or partition plat. The county clerk
note the recording information of the affidavit;
the original and any exact copies of the subdi':.;j
or partition plat.
SECTION 4. ORS 92.014 is amended to rea
92.014. (1) No person shall create a stree v:
road for the purpose of partitioning an area or
of land without the approval of the city or co
having jurisdiction over the area or tract of lan
be partitioned_ _-._
OREGON LAWS 1991
lation or ordinance. The statement may be attached
as an exhibit to the amendment.
(3) The amended plat required under subsection
(2) of this section shall:
(a) Comply with ORS 92.050, 92.060 (1), (2) and
(4), 92.080, 92.120, 100.115 (4) d r(6) andt ts erequirement for an exact copyupon
speci-
fied in ORS 100.115 (1) with respect to an amended
plat;
(eInclude desribed on the ent of eamendedplat is removed
property
from the condominium and that the condominium
exists as described and depicted on the
the endi amended
plat. Such statement shall
the made
e a by
and ac -
person and secretary for in the manner provided
acknowledgment of deeds;
(c) Include a surveyor's [affidavit] certificate
complying with ORS 92.070; and approval as may
(d) Includedy such
ordinance or regulation.
be required by taxing unit having
(4) The tax collector for any
a lien for taxes or assessments shall have authority
to consent to such a transfer of any tax or assess-
ment lien under subsection (1) of this se or
the
ub-
se
removal
ion(2)of this lf section. the property under
governing body. The county clerk
y the county
hall also collect a fee set by the county governing
ody to be paid to the county surveyor for services
provided under this section.
(6) Except iasn otherwisefre amendment to rovided. in subsection
(7) of this section,
exist-
ing plat or floor plans may be recorded, it must be
:approved by the county assessor and must be ac-
companied by an amendment to the declaration au-
thorizing the amendment to the plat or floor plans.
If the amendment changeshe exterior
Xte surveyor radarof
the property, the citycounty be recorded.musThe
ap-
prove the amendment before it may
amendment to the declaration shall also be approved
and be recorded in accordance
with
ORSame100.135.
The county assessor shall approve aif the
to
floor plans recorded before thhetrequirements sof this
amendment complies
floor plans in effect at the time
section relating
the floor plans were initially recorded. The county
assessor and, if required by thiseCe an ctnendthe e city or
county surveyor shall app
a
plat if the am owingnmay be amendedlies with tbysan affidavit
(7) The following
of correction in accordance with ORS 92.170:
(a) A plat, whenever recorded.
(b) Floor plans recorded prior to October 15,
1983.
SECTION 29. ORS 100.600 is amended to read:
100.600. (1) Subject to ORS 100.605, the condo-
minium may be terminated if all of the unit owners
remove the p P, Y
ro ert from the provisions of this
chapter by executing and recording an instrument to
that effect and the holders of all liens affecting the
units consent thereto or agree, in either case by in-
struments duly recorded, that their liens be trans-
ferredhep to the undividinterest of ed the
hThe lt owner in
instrument
he property
shall state the interest of each unit owner and
lienholder as determined under ORS 100.610. be removed
(2) A portion of the property mayeoremo ed
from the provisions of this chapter by
co amend-
multaneously with the recording off
an
anent to the declaration and an amended plat
approved as required under ORS 100.115 (4) and (6)
and 100.135 (1)(b). The amendment to the declaration
(a) Include a metes and bounds legal description
shall:
of the property being removed;
(b) Include a metes and bounds legal description
if the resulting boundaries of the condominium after
the removal;
(c) State the interest of
re each and
``lienholder in the property being
(d) State the interest of each unit owner and
lienholder theand executed byafter the all ownersland
(e) Be approved
lienholders and acknowledged of is;the
manner pro-
vided for acknowledgmentbody
or
(1) A statement by the local governing
appropriate department thereof that the remingov Tell
not violate any applicable planning
Chap. 764
SECTION 30. ORS 92.122 is amended to a ad:
92.122. Within 10 days after receivingcopy of
an approved plat of a subdivision or partitionatb-
mitted as required under ORS 92.120 [(5)),
theResources Department shall send to the personasuab_
mitting the subdivision or partition plat
knowledgment confirming receipt of the subdivision
or partition plat.
Approved by the Governor August 5, 1991
Filed in the office of Secretary of State August 5, 1991
CHAPTER 764
AN ACT SB 915
Relating to phosphate; creating new provisions;
amending ORS 468.140 and 4 .9f90; r dateg
ORS 468.760; and prescribing
Be It Enacted by the People of the State of
Oregon:
SECTION 1. Sections2 to 5
of thisr Act are
added to and made a part of ORS
cha8.
SECTION 2. (1) The Legislative Assembly of the
State of Oregon finds that: of the waters the
(a) Phosphorous loading ofthe affectingofwthe
state is a serious pollution problem
quality in some river basins in the state. cant
(b) Phosphate detergtents
treated wute asteswa er re -
phosphorous loading
leased to the sn phosphorous a loadince waters of g becomes a serious
pollution olemfederal and state water quality
1577
Page 1
LEXSEE 206 OR APP 557
NENA LOVINGER, Petitioner, and JAMES JUST, Petitioner below, v. LANE
COUNTY, Respondent, and MICHAEL LEGAULT, Intervenor -Respondent below.
A131200
COURT OF APPEALS OF OREGON
206 Ore. App. 557; 138 P.3d 51; 2006 Ore. App. LEXIS 888
March 20, 2006, Argued and Submitted
June 28, 2006, Filed
SUBSEQUENT HISTORY: Review denied by Lovin-
ger v. Lane County, 342 Ore. 254, 149 P.3d 1213, 2006
Ore. LEXIS 1405 (Or., Dec. 27, 2006)
PRIOR HISTORY: [***1] 2005-098. Judicial
Review from Land Use Board of Appeals.
DISPOSITION: Affirmed.
CASE SUMMARY:
PROCEDURAL POSTURE: Petitioner neighbor chal-
lenged a decision from the Oregon Land Use Board of
Appeals (LUBA), which affirmed respondent county's
decision to allow the construction of a dwelling on cer-
tain property.
OVERVIEW: The neighbor objected to an application
to build a dwelling on certain property. She contended
that the property was part of a larger tract of land. The
county approved the application due an intervening road,
and LUBA affirmed. The neighbor then appealed. In
affirming, the appellate court determined that the neigh-
bor's reliance on Or. Rev. Stat. § 92.010(7)(d) was mis-
placed because it was not enacted until 30 years after the
creation of the road that divided the parcel into two
pieces. The appellate court rejected the argument that the
statute merely codified the law as it existed in 1959 when
the property that eventually became the road was deeded
to the county. Neither Cabler nor Emmich supported the
assertion that the transfer of title to the county did not
partition the parcel in this case. Both cases suggested that
intervening land in separate ownership did have the ef-
fect of "disconnecting" or partitioning the land. As such,
the transfer in question created three separate parcels:
two tax lots and the land containing the road. Finally, the
appellate -court-rejected - the -argument -that § 92.010(_7)(d)_
had retroactive application.
OUTCOME: The decision was affirmed.
LexisNexis(R) Headnotes
Real Property Law > Subdivisions > Local Regulation
Real Property Law > Subdivisions > State Regulation
[IiN1] Only one "forest template dwelling" may be lo-
cated in a given "tract" of land. Lane County, Or., Code
§ 16.211(5). A "tract" is one or more contiguous lots or
parcels under the same ownership. Or. Rev. Stat. §
215.010(2). A "parcel," in turn, is a unit of land that is
created by legally partitioning a larger piece of land or, if
there are no applicable partitioning procedures, by deed
or land sales contract. Or. Rev. Stat. § 215.010(1).
Governments > Legislation > Interpretation
[HIN2] Courts attempt to determine what the enacting
legislature intended a statute to mean, beginning with the
text of the statute in context and, if necessary, consulting
the legislative history and other aids to construction.
Real Property Law > Subdivisions > State Regulation
[HN3] See Or. Rev. Stat. § 92.010(7)(d).
Real Property Law > Subdivisions > General Overview
[BN4] The court in Cabler concluded that parcels that-
are
hatare separated by "intervening land" are noncontiguous.
Real Property Law > Subdivisions > General Overview
[HNS] A parcel of land does not lose its unitary character
becauseof_the .happenstance _of_ anintersectingboundary
line, street or dedicated road.
•
EXHIBIT �' PAGE
206 Ore. App. 557, *; 138 P.3d 51, **;
2006 Ore. App. LEXIS 888, ***
Real Property Law > Subdivisions > General Overview
[HNT6] Emmich suggests that intervening land in separate
ownership does have the effect of "disconnecting" --and
hence partitioning --land.
Real Property Law > Subdivisions > State Regulation
[HN7] See Or. Rev. Stat. § 92.014.
Evidence > Inferences & Presumptions > Presumptions
Real Property Law > Subdivisions > State Regulation
[HN8] Or. Rev. Stat. § 92.014 presumes that a person
can create a street or road for the purpose of subdividing
or partitioning a tract of land, so long as the city or
county having jurisdiction over it approves.
Governments > Legislation > Interpretation
[HN9] In construing a statute, a court is responsible for
identifying the correct interpretation, whether or not as-
serted by the parties.
Governments > Legislation > Effect & Operation >
Retrospective Operation
Governments > Legislation > Interpretation
[iftsT10] Whether a statute applies prospectively or re-
troactively is a question of legislative intent, determined
by applying the usual principles of statutory construc-
tion.
Governments > Legislation > Effect & Operation >
Retrospective Operation
[HN11] In examining the text of a statute to determine if
it is retroactive, a court looks first for the presence of an
explicit retroactivity clause. Although certainly not con-
clusive, the absence of such a clause is evidence that the
legislature did not intend for the statute to apply retroac-
tively. The phrasing of substantive provisions of the sta-
tute sometimes may provide clues as to the legislature's
intention with respect to retroactivity.
Evidence > Inferences & Presumptions > Presumptions
Governments > Legislation > Effect & Operation >
Prospective Operation
Governments > Legislation > Effect & Operation >
Retrospective Operation
[11N12] In the absence of any direct evidence of a legis-
-iature's intentions thecourtspresume- that statutes -that
are "substantive" in nature are to apply prospectively. In
Page 2
the context of retroactivity analysis, a statute is "substan-
tive" if it modifies a substantive right or duty.
Governments > Legislation > Effect & Operation >
Prospective Operation
Governments > Legislation > Effect & Operation >
Retrospective Operation
Real Property Law > Subdivisions > State Regulation
[HN13] Or. Rev. Stat. § 92.010(7)(d) is a substantive law
that lacks a retroactivity clause or any other explicit lan-
guage suggesting the legislature intended it to apply re-
troactively, nor does its legislative history shed light on
the issue. Under those circumstances, the Court of Ap-
peals of Oregon concludes that the law was not intended
to apply retroactively.
COUNSEL: Jannett Wilson argued the cause for peti-
tioner. With her on the brief was Goal One Coalition.
Stephen L. Vorhes, Lane County Office of Legal Coun-
sel, argued the cause for respondent.
JUDGES: Before Landau, Presiding Judge, and Brewer,
Chief Judge, and Schuman, Judge. '
* Schuman, J., vice Richardson, S. J.
OPINION BY: LANDAU
OPINION
[**52] [*559] LANDAU, P. J.
The owner of a 1.2 -acre piece of rural property ap-
plied to Lane County to build a dwelling on the property.
Petitioner, a neighboring land owner, objected to the
construction of a dwelling on the ground that the 1.2 -acre
piece of property is part of a larger tract of land on which
a dwelling already exists. According to petitioner, appli-
cable zoning restrictions limit the number of dwellings to
one per tract, and the 1.2 -acre piece of land is part of a
single parcel of land that has never been partitioned and,
therefore, [**53] comprises a single tract. The county
approved the application on the ground that the original
parcel had been partitioned into two separate parcels
when the prior owner deeded to the county a strip of
property on which the county constructed [***2] a road.
that divided the parcel into two pieces. Petitioner ap-
pealed to LUBA, but LUBA affirmed the county's deci-
sion. Petitioner now seeks judicial review of LUBA's
decision, arguing that, as a matter of law, the creation of
a road through the original parcel of property did not
create two separate parcels on which dwellings may now
beconstructed.We-affirm—.-..._..__.
206 Ore. App. 557, *; 138 P.3d 51, **;
2006 Ore. App. LEXIS 888, ***
The relevant facts are not in dispute. Before 1959,
there existed a single piece of property identified as tax
lot 200. The property was bordered on the south by Little
Fall Creek. In 1959, the owner of tax lot 200 executed a
warranty deed transferring title to the county in a narrow
strip of property running east and west, which bisected
the lot. To the north of the narrow strip of property was a
larger, 6.35 -acre lot, eventually designated tax lot 203.
To the south of the narrow strip was a smaller, 1.2 -acre
lot that bordered the creek, eventually designated tax lot
200. The narrow strip itself became Little Fall Creek
Road.
The county's comprehensive plan designates tax lots
200 and 203 "F2, Impacted Forest." [MC] Only one
"forest template dwelling" may be located in a given
"tract" of land. Lane Code (LC) § 16.211(5). [***3] A
"tract" is "one or more contiguous lots or parcels under
the same ownership." ORS 215.010(2). A "parcel," in
turn, is a unit of land that is created by legally pardoning
a larger piece of land or, if there are no applicable parti-
tioning procedures, by deed or land sales contract. ORS
215.010(1).
[*560] In 2003, the county approved an applica-
tion for the construction of a forest template dwelling on
tax lot 203, that is, the larger lot located north of the Lit-
tle Fall Creek Road. A house has been built on that site.
Some time after that, the owner of tax lots 200 and 203
sold tax lot 200, the smaller lot located south of the road
and on the creek.
In 2004, the owner of tax lot 200 applied for ap-
proval of a forest template dwelling on that lot. Petitioner
objected to the application on the ground that tax lots
200 and 203 had never been lawfully partitioned and, as
a result, still comprised a single "parcel" and, conse-
quently, a single "tract." Petitioner argued that, because
the two tax lots comprised a single tract, and because a
forest template dwelling already had been constructed on
that tract, the county was precluded [***4] from ap-
proving the application for a forest template dwelling on
tax lot 200. With modifications not pertinent to the issues
now before us, the county approved the application on
the ground that the transfer of a fee interest in the narrow
strip of land that later became the Little Fall Creek Road
effectively partitioned the original tax lot 200 into two
separate parcels, which are now in separate ownership
and thus two separate tracts.
Petitioner appealed the county's decision to LUBA,
arguing that, as a matter of law, the creation of a road
does not divide a single parcel of land into two separate
parcels. LUBA rejected the argument, concluding that,
while the creation of a road by mere easement or dedica-
tion might not partition a parcel of land, the transfer of
fee title in property does. According to LUBA, the fact
Page 3
that the county later used that narrow strip of property
for a road does not alter the fact that the strip was deeded
outright to the county, which had the effect of creating
not just two, but three, separate parcels of land.
On judicial review, petitioner argues that LUBA
erred because ORS 92.010(7)(d) expressly provides that
property [***5] divided by the sale or grant of land for
a road shall continue to be regarded as a single parcel
unless further subdivided or partitioned.
The county responds that petitioner's reliance on
ORS 92.010(7)(4) is rnisplaced, as the legislature did not
[*561] enact the statute until 30 years after the road in
this case was created. What is more, the county argues,
there is nothing in the statute that suggests that the legis-
lature intended it to apply retroactively.
Petitioner replies that the fact that the statute was not
enacted until 30 years after the creation of the road is of
no moment for two reasons. First, she argues, the statute
[**54] merely codified the law that had been reflected
in the appellate decisions of this state for many years.
Second, she argues, in any event, the legislature must
have intended the statute to apply retroactively.
The issue thus framed is one of statutory construc-
tion, resolved by reference to the interpretive principles
set out in PGE v. Bureau of Labor and Industries, 317
Ore. 606, 610-12, 859 P.2d 1143 (1993). [HN2] We at-
tempt to determine what the enacting legislature intended
the statute to mean, beginning [***6] with the text of
the statute in context and, if necessary, consulting the
Legislative history and other aids to construction. Id
Petitioner argues that tax lot 200 remains part of the
same parcel of land as tax lot 203 because it was not le-
gally partitioned in 1959. According to petitioner, the
construction of the road did not have the effect of parti-
tioning the single parcel that then existed, because ORS
92.010(7)(d) provides that creation of roads does not
have the effect of partitioning the parcels on which they
are located.
ORS 92.010(7)(d) provides that [11N3] "any property
divided by the sale or grant of property for state high-
way, county road, city street or other right of way pur-
poses shall continue to be considered a single unit of
land until such time as the property is further subdivided
or partitioned." That portion of the statute was enacted in
1991, long after the creation of the Little Fall Creek
Road in 1959. As we have noted, petitioner argues that
the fact that the statute was not enacted until decades
after the creation of the road is of no significance, be-
cause the statute merely reflects the law as it [***7] had
existed well before the creation of the road. In advancing
that argument, petitioner relies on Gabler v. -Alexander -et
206 Ore. App. 557, *; 138 P.3d 51, **;
2006 Ore. App. LEXIS 888, ***
al., 111 Ore. 257, 224 P 1076 (1924), and State v. Em-
mich, 34 Ore. App. 945, 580 P.2d 570 (1978).
[*562] There is no question but that the legislature
sometimes has enacted statutes not to effect a change in
the law, but to codify existing law. See, e.g., ORS
174.040 (codifying judicially created rule regarding the
severability of statutes); State v. Jackson, 224 Ore. 337,
343, 356 P.2d 495 (1960) ("ORS 174.040 does no more
than to codify what has long been the common law rule
of construction in this state."). Moreover, it is entirely
appropriate to consider the preexisting state of the law as
context for the statute that the legislature has enacted.
See, e.g., Weber and Weber, 337 Ore. 55, 67, 91 P.3d
706 (2004) ("[T]his court presumes that the legislature
enacts statutes in light of existing judicial decisions that
have a direct bearing upon those statutes.") .
That said, we are not persuaded that the two cases
on which petitioner [***8] relies establish that the
preexisting law was as she contends.
Cabler concerned whether a homestead exemption
applied to noncontiguous property that was separated
from the landowner's property by an intervening owner-
ship. The Supreme Court determined that earlier case law
had established the general proposition that,
"where the physical separation of tracts
or lots of land occurs merely from the in-
terposition of streets and alleys, as in the
case of different lots in the same block, or
merely separated by a street, this is not
such an isolation of particular tracts as
will prevent a homestead claimant from
having the homestead right, irrespective
of the interposition of such easements."
111 Ore. at 262 (emphasis added). The court concluded
that the legislature had not intended to give a homestead
right in "noncontiguous parcels," adding that,
"[b]y the words 'noncontiguous parcels'
we do not mean separated merely by sur-
veyor's lines, as lots in a block, or sepa-
rated by streets or alleys, but parcels ab-
solutely disconnected by intervening land,
which is this case."
111 Ore. at 271 (emphasis added).
[***9] We cited Cabler half a century later, in
Emmich. Emmich involved a defendant who owned
property on both sides of a road and who was convicted
-- of unlawfully dividing [*563] his property on one -side
of the road into three parts, and his property on the other
Page 4
into two parts, in violation of the applicable subdivision
laws. The defendant argued that the subdivision laws
applied when a landowner divided a single unit of land
into four or [**55] more parts, but that, in his case, the
road had already partitioned his property into two dis-
tinct parcels, and thus he had divided each parcel into
less than four parts. We rejected the argument. Citing
Cabler, we explained:
"The law has held in other land -use
contexts that a parcel of land does not lose
its unitary character simply by the hap-
penstance of an intersecting boundary
line, street or dedicated road. We are not
directed to any case where land was held
to be noncontiguous due to separation by
anything short of an intervening geo-
graphical barrier or parcel of land in sep-
arate ownership."
34 Ore. App. at 949 (citations omitted).
Neither Cabler nor Emmich supports defendant's
assertion [***10] that the 1959 transfer of title did not
partition the parcel in this case. As for Cabler--putting
aside the facts that its conclusion about the effect of in-
tervening roads was dictum (the case did not involve an
intervening road at all) and that it dealt with a homestead
exemption and not partitioning --its conclusion about
"streets or alleys" pertains to roads that exist as "ease-
ments," not to roads created when ownership in fee to the
underlying land has changed hands. In fact, [HN4] the
court in Cabler concluded that parcels that are separated
by "intervening land" are noncontiguous. If anything,
then, Cabler seems to cut against petitioner's position: In
1959, when the owner of what was then tax lot 200
transferred the strip of land in fee to the state, the effect
was, indisputably, to separate the parcel north of the road
from the parcel south of the road by "intervening land"
held in different ownership.
Further, Emmich does not advance petitioner's cause.
Like Cabler, Emmich does not explicitly distinguish be-
tween roads that consist of land that has been transferred
in fee and those that are merely dedicated. Nevertheless,
it is apparent that we considered [***11] the effect of
only the roads of the latter sort. We explicitly stated that
[HN5] a parcel of land "does not lose its unitary charac-
ter because of the happenstance of an [*564] inter-
secting boundary line, street or dedicated road." 34 Ore.
App. at 949 (emphasis added). Unlike the road in this
case, the county road that was at issue in Emmich was a
dedicated road. Indeed, the state had specifically argued
in. Emmich _that...
206 Ore. App. 557, *; 138 P.3d 51, **;
2006 Ore. App. LEXIS 888, ***
"[t]he county road does not constitute
intervening land disconnecting this prop-
erty. It is not a parcel of property but
more in the nature of an encumberance on
the title to the tract. If the road were va-
cated title would vest in the owner of the
tract through which the road ran."
Moreover, in reaching our conclusion, we specifically
noted that we were unaware of cases in which land was
"held to be noncontiguous due to separation by anything
short of an intervening geographical barrier or parcel of
land in separate ownership." Id (emphasis added). Thus,
much like Cabler, if anything, [HN6] Emmich seems to
cut against petitioner's position, by suggesting that in-
tervening land in separate ownership does have the effect
of [***12] "disconnecting" --and hence partition-
ing --land.
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 author-
ity to the contrary, either in the cases or in contempora-
neous statutes, we conclude that, under the law as it ex-
isted in 1959, transfer of title to the strip of land contain-
ing the road effectively created three separate parcels:
tax lot 200, tax lot 203, and the land containing the road.
Our reading of the foregoing cases is borne out by
reference to other statutes that existed at the time. ORS
92.014, for example, provides that "[a] [I-IN7] person
may not create a street or road for the purpose of subdi-
viding or partitioning an area or tract of land without the
approval of the city or county having jurisdiction over
the area or tract." (Emphasis added.) That statute dates
back to 1955. [TTNB] It presumes that a person can create
a street or road for the purpose of subdividing or parti-
tioning a tract of land, so long as the [***13] city or
county [*565] having jurisdiction over it approves.
The statute thus contradicts petitioner's main contention,
which is that, in [**56] 1959 no road of any sort could
subdivide or partition a tract of land.
There remains petitioner's alternative argument that,
even if the case law did not preclude partitioning a parcel
by creation of a road, ORS 92.010(7)(d) retroactively
does so. According to petitioner, the legislature could not
possibly have intended there to be one rule governing the
effect of roads created before the enactment of the statute
and another governing the effect of roads created after
enactment. In support of that conclusion, petitioner ar-
gues that "the use of the word 'continue' in ORS
92.010(7)(dj implies that the statute was merely codify-
ing and clarifying what was already the law."
Page 5
Petitioner's argument is circular. It assumes that the
law that the legislature was "merely codifying and clari-
fying" was that the creation of a road could not, under
any circumstances, partition a tract of land. As we have
noted, that assumption is misplaced.
Nevertheless, we have an obligation to determine the
proper meaning [***14] of statutes, regardless of the
correctness of the parties' arguments. Stull v. Hoke, 326
Ore. 72, 77, 948 P.2d 722 (1997) [1.IN9] ("In construing
a statute, this court is responsible for identifying the cor-
rect interpretation, whether or not asserted by the par-
ties."). We therefore turn to the question whether ORS
92.010(7)(d) was intended to apply retroactively to parti-
tions that occurred 30 years before enactment of the sta-
tute.
[11N10] Whether a statute applies prospectively or
retroactively is a question of legislative intent, deter-
mined by applying the usual principles of statutory con-
struction. Whipple v. Howser, 291 Ore. 475, 479-81, 632
P.2d 782 (1981) (noting that the role of the court in de-
termining whether a statute applies retroactively is to
"discern and declare the intent of the legislature"); State
v. Lanig, 154 Ore. App. 665, 670, 963 P.2d 58 (1998)
(applying PGE method to retroactivity analysis).
The text of ORS 92.010 contains no mention of re-
troactivity. See State ex rel Juv. Dept. v. Nicholls, 192
Ore. App. 604, 609, 87 P.3d 680 (2004) (noting [***15]
that, [HN11] in examining the [*566] text, the court
looks first for the presence of an explicit retroactivity
clause). Although certainly not conclusive, the absence
of such a clause is evidence that the legislature did not
intend for the statute to apply retroactively. Boone v.
Wright, 314 Ore. 135, 138, 836 P.2d 727 (1992); see
also Lanig, 154 Ore. App. at 670 (noting that the absence
of a retroactivity clause is telling because such clauses
are easily added and are commonly employed by the
legislature).
The phrasing of substantive provisions of the statute
sometimes may provide clues as to the legislature's in-
tention with respect to retroactivity. See, e.g., Newell v.
Weston, 150 Ore. App. 562, 569-70, 946 P.2d 691 (1997)
(using language "cues" such as verb tenses in an effort to
determine whether legislature intended a statute to apply
retroactively). In this case, however, the statute provides
little evidence one way or the other of legislative intent
with respect to retroactivity.
The statute does provide, as petitioner asserts, that
property divided by the sale of land for a road "shall con-
tinue to be considered a single [***16] unit of land."
(Emphasis added.) In context, however, the reference to
continuity clearly refers to the fact that a single tract of
-land before the creation of a road remains a single tract
after the creation of the road until further partition or
206 Ore. App. 557, *; 138 P.3d 51, **;
2006 Ore. App. LEXIS 888, ***
subdivision takes place. Nothing in the statute generally,
or the reference to continuity in particular, suggests that
its focus is on the status of the single tract of land before
and after enactment of the statute itself
Even assuming for the sake of argument that peti-
tioner's reading of the statute were plausible, that as-
sumption does not disprove the plausibility of the alter-
nate reading that we have suggested. Thus, at best, peti-
tioner's argument would lead to analysis of the legislative
history and, if necessary, resort to other aids to construc-
tion.
As is often the case with statutes in which the legis-
lature did not explicitly express its intentions regarding
retroactivity, the legislative history. of ORS 92.010(7)(d)
sheds no light on what those intentions, if any, might
have been. See Nicholls, 192 Ore. App. at 609 ("[W]hen
a statute lacks an [**57] express retroactivity clause,
the [***17] legislative record is typically silent and of
no assistance.").
[*567] We turn, then, to the canons of statutory
construction. In particular, we turn to the rule that,
[HNI2] in the absence of any direct evidence of the leg-
islature's intentions, the courts presume that statutes that
are "substantive" in nature are to apply prospectively. Id.
at 610. In the context of retroactivity analysis, a statute is
"substantive" if it "'modifl.ies] a substantive right or du-
ty."' Vloedman v. Cornell, 161 Ore. App. 396, 401, 984
Page 6
P.2d 906 (1999) (quoting Perkins v. Willamette Indus-
tries, 273 Ore. 566, 571 n 1, 542 P.2d 473 (1975)).
ORS 92.010(7)(d) defines the legal effect of a road
with regard to partitioning and is thus plainly "substan-
tive." What it codifies is not a procedural requirement
but rather a substantive right. As this case aptly demon-
strates, whether a road effectively partitions a parcel can
have significant substantive legal consequences with
respect to the rights of the owner of that parcel in regard
to the development or sale of the property.
[11N13] ORS 92.010(7)(d) is, in summary, [***18]
a substantive law that lacks a retroactivity clause or any
other explicit language suggesting the legislature in-
tended it to apply retroactively, nor does its legislative
history shed light on the issue. Under those circums-
tances, we conclude that the law was not intended to
apply retroactively.
We therefore conclude that LUBA did not err in de-
termining that the deeding of the strip of land to the
county in 1959 effectively partitioned what was then tax
lot 200 into two separate parcels and that, as a result, the
county was not precluded from approving an application
for the construction of a forest template dwelling on each
of the two resulting tracts.
Affirmed.
1 BEFORE THE LAND USE BOARD OF APPEALS
2 OF THE STATE OF OREGON
3
4 NENA LOVINGER and JAMES JUST,
5 Petitioners,
6
7 vs.
8
9 . LANE COUNTY,
10 Respondent,
11
12 and
13
14. MICHAEL LEGAULT,
15 Intervenor -Respondent.
16
17 LUBA No. 2005-098
18-
19 FINAL OPINION
20 AND ORDER
21
22 Appeal from Lane County.
23
24 Nena Lovinger, Fall Creek, and James Just, Lebanon, filed the petition for review. James
25 Just argued on his own behalf.
26
27 Stephen L. Vorhes, Assistant County Counsel, Eugene, filed a response brief and argued on
28 behalf of respondent.
29
30 Michael Legault, Fall Creek, filed a response brief and argued on his own behalf.
31
32 DAVIES, Board Chair; BASSHAM, Board Member; HOLSTUN, Board Member,
33 participated in the decision.
34
35 AFFIRMED 01/12/2006
36
37 You are entitled to judicial review of this Order. Judicial review is governed by the
38 provisions of ORS 197.850.
Page
1 Opinion by Davies.
2 NATURE OF THE DECISION
3 Petitioner appeals the county's approval of a forest template dwelling and of a request for a
4 riparian setback modification.
5 MOTION TO INTERVENE
6. Michael Legault, the applicant below, moves to intervene on the side of respondent. There
7 is no opposition, and it is allowed.
8 FACTS
9 The subject property is a 1.2 -acre piece of land located on the south side of Little Fall
10 Creek Road. It is designated Forest Land in the Lane County Rural Comprehensive Plan (RCP)
11 and is zoned Impacted Forest Lands (F-2/RCP). The property is located within the 100 -year flood
12 hazard area and is within the Floodplain Combining Zone (/FP). The property is currently vacant,
13 and is bordered by Little Fall Creek along the southem property line.
14 Prior to 1959, the property that was then identified as tax lot 200 included the subject
15 property and a 6.35 -acre area of land located north of what is now Little Fall Creek Road. In
16 1959, the then -owner of tax lot 200 executed a warranty deed transfeiiing fee title in a strip of land
17 through the middle of tax lot 200 to the county for a right-of-way, now Little Fall Creek Road. At
18 some point after 1959, the assessor identified the 6.35 -acre area of land remaining north of Little
19 Fall Creek Road as tax lot 203. The subject property, the portion to the south of Little Fall Creek
20 Road, is identified as tax lot 200. In 2003, while intervenor owned both tax lot 200 and tax lot
21 203, he obtained approval from the county for a forest template dwelling on tax lot 203. As part of
22 that approval, the county confirmed that tax lot 203 is a separate legal lot. Intervenor has since sold
23 tax lot 203.
24 On June 28, 2004, intervenor applied for approval of a forest template dwelling on tax lot
25 200. The planning director granted approval of the forest template dwelling. Because the proposed
26 dwelling would be located within the riparian setback area, intervenor sought and the county
Page.2
1 approved a modification to the riparian s tback requirements. Both the forest template dwelling
2 approval and the approval of the riparian setback modification were appealed to a county hearings
3 officer, who affirmed the planning director's decision on May 9, 2005. In response to objections
4 from staff regarding the riparian modification decision, the hearings officer revised his decision on
5 May 12, 2005. That decision was appealed, and the hearings officer declined to reconsider it on
6 May 26, 2005. On appeal, the board of commissioners declined to hear the appeal, and affirmed
7 the hearings officer's decision on June 8, 2005.
8 This appeal followed.
9 FIRST ASSIGNMENT OF ERROR
10 ORS 215.750(1), OAR 660-006-0027(1)(f) and LC 16.211(5) authorize approval of
11 forest template dwellings.' A forest template dwelling may not be approved if the "trace' on which
12 the dwelling will be sited already includes a dwelling. OAR 660-006-0027(1)(i); see also ORS
13 215.750(4)(d) and LC 6.211(5)(a).2 Where a county approves a forest template dwelling, the
14 remaining portions of the tract upon which the dwelling is sited must be consolidated into a single lot
15 or parcel. ORS 215.705(1)(g). LC 16.211(5)(b) and ORS 215.705(1) also require that the lot or
16 parcel upon which the dwelling will be sited was lawfully created.
17 A. "Tract" Already Contains a Dwelling
18 Petitioners argue that the county misconstrued and violated applicable law in finding that the
19 subject property is not part of a tract that already contains a dwelling.3 Petitioners' argument is
Although the statute and administrative rule do not use the term "template dwelling," the Lane Code does.
LC 16.211(5). That label is used because this particular approval of a dwelling in a forest zone depends, in part,
on the number of lots or parcels and dwellings that fall within a 160 -acre square area, the template, centered on
the center of the subject tract.
2 The statutes, administrative rules and local code uniformly define the term "tract" as "one or more
contiguous lots or parcels in the same ownership." ORS 215.010(2); LC 16.211(5)(a); OAR 660-006-0027(5).
3 The discussion under this subsection addresses only whether tax lots 200 and 203 are contiguous and,
thus, a single tract. The discussion of whether tax lot 200 qualifies as a lawfully created "parcel" is addressed in
subsection B. below.
1 based upon the premise that tax lot 200 and tax lot 203 constitute only one unit of land because the
2 creation of Little Fall Creek Road in 1959 did not operate to divide then tax lot 200 into two
3 separate noncontiguous units of land. The existence of a forest template dwelling on the tract of
4 which tax lot 200 is a part, petitioners argue, precludes the approval of a forest template dwelling on
5 tax lot 200 now.
6 The hearings officer adopted findings addressing this issue raised by petitioners during the
7 local proceedings and concluded that tax lots 200 and 203 are not contiguous.4 While the hearings
4 The findings state, in relevant part:
"A template dwelling is a dwelling or manufactured dwelling that is allowed on forest land
subject to meeting certain requirements. Lane Code 16.211(5)(a) provides that one of those
requirements is that the tract upon which the dwelling will be located has no other dwellings or
manufactured dwellings on it. Subsection (5)(a) further defines `tract' to mean one or more
contiguous lots or parcels in the same ownership.
"The appellants' argument is as follows: Tax lots 200 and 203 constitute a single tract as they
are currently under the ownership of the applicant and are contiguous to one another. Tax lot
200 is occupied with a dwelling and therefore cannot meet the first requirement for the
.placement of a template forest dwelling.
"The County counters with the argument that Little Fall Creek Road, which bisects the two tax
lots, negates the contiguity between those parcels and, in effect, creates two legal lots.
Specifically, the County relies upon two theories.
"The County's first theory is that the legal lot status of the two parcels was determined
through Planning Action (PA) 03-5878. This was an administrative decision where the County
approved a template dwelling for tax lot 203 based upon a legal lot determination that affected
both the northern and southern portions of tax lot 200. Notice of this template dwelling
approval was given to adjacent property owners and no appeal was made. The flaw with this
theory is that the legal lot determination associated with this planning action only provided
notice as to the template dwelling approval for tax lot. 203. It did not provide legally sufficient
notice of a legal lot determination for the remainder parcel (the subject property) nor arguably
did it provide standing for anyone to challenge the applicability of that legal lot determination
in regard to the remainder parcel. For these reasons, Planning Action 03-5878 did not serve as
a final decision in regard to the legal lot status of the subject property.
"The County's second theory is that the intervention of Little Fall Creek Road acted to divide
tax lot [200] into two legal lots. First, it points to the definition of `contiguous' found in Lane
Code 16.090: 'Having at least one common boundary line greater than eight feet in length.
Tracts of land under the same ownership and which are intervened by a street (local access,
public, County, State or Federal street) shall not be considered contiguous.' Under this
definition, the two tax Lots are not contiguous. The County further points out that the Little
Fall Creek Road right-of-way, as it is adjacent to the two lots, was created by a Warranty Deed
that transferred fee ownership to the County. Thus, there is not merely an intervening
easement but an intervening ownership between the two lots.
P -age. -4
1 officer's findings address numerous theories, embedded in the hearings officer's decision are two
2 sentences that dispose of this issue:
3 'The County further points out that the Little Fall Creek Road right-of-way, as it is
4 adjacent to the two lots, was created by a Warranty Deed that transferred fee
5 ownership to the County. Thus, there is not merely an intervening easement but an
6 intervening ownership between the two lots." Record 91.
7 The simple, straight -forward question presented is whether the transfer of a fee interest in a strip of
8 land to the county in 1959 served to divide the property remaining on either side of that strip of
9 land.
10 Petitioners do not dispute that the 1959 warranty deed transferred to the county a fee
11 interest in the strip of land described.' However, they argue that the creation of a road does not,
"The County has held that the bisection of property by a road acts to legally divide that road
since 1975. In September of 1983, through the adoption of Ordinance 16-83, the County
amended its definition of `contiguous' in its land division regulations to provide that tracts of
land that are intervened by a street or road were not to be considered contiguous. This
definition was reaffirmed in February of 1984 with the adoption of Ordinance 1-84, which
established Lane Code Chapter 16, the zoning provisions that apply outside urban growth
boundaries. The definition was again preserved in 1986 changes to Chapters 13 and 16 of the
Lane Code.
"In 1989 and again in 1991, the Oregon Legislature revised the definition of `partition land' in
ORS 92.010(7)(d) to exclude from the definition of `partition' `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 * * *.' It has been the County's position that the statute does not have retroactive
effect and therefore land divisions caused by the intersection of roads that occurred prior to
1989 serve as valid land divisions.
"* *
**
"I must agree with the Planning Director's assessment that there is no evidence that the
amendments to ORS 92.010(7) were intended to be retroactive and there is some evidence of
legislative intent that that was not the case. While the County's interpretation of ORS
92.010(7) will not be given deference during judicial review, it is a reasonable interpretation that
must stand until reversed by an appellate body.
"The Planning Director's determination that the subject property is a legal lot is affirmed."
Record 90-92 (emphasis in original).
5 The deed provides, in pertinent part:
"The parcel of land to which this description applies contains 1.48 acres, of which 1.45 acres lie
within the existing right of way, title to which hereby is acknowledged to be in the public, and
0.05 acres lie outside the existing right of way." Record 217.
1 and never did, serve to partition land. Therefore, tax lots 200 and 203 remain part of the same
2 "tract," and the county erred in approving a second dwelling on that tract. However, as explained
3 below, petitioners and the sources upon which they rely fail to distinguish between roads that are
4 created as mere easements or by dedications that do not transfer the underlying fee, and roads
5 where fee title is transferred to a private owner or a public entity.
6 The first case petitioners cite in support of their contention that the "Oregon courts have
7 long held that the construction or existence of a road is not sufficient in itself to partition a parcel of
8 land" is Cabler v. Alexander et al., 111 Or 257, 224 P 1076 (1924). Petition for Review 15. In
9 that case, the issue presented was the extent of the property subject to a homestead exemption.
10 The question in that case was not whether a roadway served to legally partition a property; it was,
11 rather, whether a homestead exemption could be claimed for only the land on which the home
12 stood, or whether it also could be claimed for land that was separated from the land on which the
13 house stood by an intervening ownership. The Court discussed the scope of the homestead
14 exemption with regard to land that falls on the other side of a street or alley from the house.
15 However, in that case, the property in question was separated by an intervening ownership, and on
16 that basis, the Court determined that property that was separated from the house by an intervening
17 ownership was not part of the homestead.° The Court held:
18 "[WJe are satisfied that it never was the intention of our Legislature to give a
19 homestead right in separate, noncontiguous parcels of land. By the words
20 `noncontiguous parcels' we do not mean separated merely by surveyor's lines, as
21 lots in a block, or separated by streets or alleys, but parcels absolutely
22 disconnected by intervening land, which is this case." Id. at 271.
23 The Court of Appeals cited Cabler in another case that petitioners rely upon in support of
24 their assertion that Oregon caselaw has long held that roads do not serve to divide land --State v.
25 Emmich, 34 Or App 945, 580 P2d 570 (1978). In Emmich, the defendant was convicted of a
6 The party claiming the homestead exemption owned three parcels of land: one that contained the
residence, another that was used and farmed with the property containing the residence, and a third property
that was separated from the first two by property in a different ownership.
Page..6 -
1 violation of the subdivision law, which prohibited selling subdivided Iands without having complied
2 with the subdivision law. The Court outlined the pertinent facts as follows:
3 "Defendant purchased the 2,280 acres in question in 1973 as one parcel of land
4 intersected by a road. Defendant has divided the land on one side of the road into
5 three parts and the land on the other side of the road into two parts." Emmich, 34
6 Or App at 948.
7 On appeal, the defendant argued that his division did not constitute a subdivision because there was
8 not a division into at least four parts, as required by subdivision law then in effect. His argument,
9 although not clearly stated in the opinion, was premised on his assertion that the roadway served to
10 divide the property and that the divisions that he made did not divide one parcel into four parts, and
11 thus did not constitute a "subdivision." Rather, his transfers divided one existing parcel into three
12 separate parcels, and another existing parcel into two separate parcels.
13 The entirety of the Court's analysis provides:
14 "The land was purchased as one unit. It was dealt with as a unity by the defendant.
15 The law has held in other land -use contexts that a parcel of land does not lose its
16 unitary character simply by the happenstance of an intersecting boundary line, street
17 or dedicated road. Cabler v. Alexander et al., 111 Or '257, 262, 271, 224 P
18 1976 (1924); City of Lake Oswego v. Grimm's Fuel Co., 34 Or App 67, 577
19 P2d 1360 (1978). We are not directed to any case where land was held to be
20 noncontiguous due to separation by anything short of an intervening geographical
21 barrier or parcel of land in separate ownership. Accordingly, we hold that a parcel
22 of land is subject to the Oregon Subdivision Control Law even though intersected
23 by a road * * *." Id. at 949.
24 Although the pertinent facts in Emmich are not completely clear, it seems obvious from the context
25 of the opinion that the roadway in Emmich was merely an easement, or at least that the Court
26 assumed that it was. The Court explicitly distinguished the situation that it considered to be before
27 it i.e., where land is bisected by a "street or dedicated road," from the situation where land is
28 separated by a "parcel of land in separate ownership."' AccordingIy, petitioners cannot rely on
' The terms "dedicated" and "dedication" are often used loosely. Black's Law Dictionary defines the term
"dedication" as follows:
Page--7-
1 these cases to support the proposition that property can never be divided by a street or road, no
2 matter how the ownership interest in that strip of land is held.8
3 The transfer to the county in 1959 created three separate parcels of land :-the strip of land
4 owned in fee by the county and two parcels of land lying on either side of the roadway, the
5 properties that are now identified as tax lots 200 and 203. Since 1959, tax lots 200 and 203 have
6 been separated by an intervening ownership, are not "contiguous lots or parcels in the same
7 ownership," and are therefore not part of the same "tract." Accordingly, the county did not err in
8 approving the dwelling on tax lot 200, although tax lot 203 already contains a dwelling.
9 B. Lawfully Created "Lot" or "Parcel"
10 Petitioners argue that the lot or parcel on which the forest template dwelling is to be sited
11 must have been lawfully created. ORS 215.705(1)(a); LC 16.211(5)(b). They assert that a forest
12 template dwelling may only be allowed on a "lot" or "parcel," pursuant to ORS 197.705(1), and
13 that the subject property is not a "parcel" as defined by ORS 215.010(1).9 For purposes of ORS
14 chapter 215, the term "parcel" includes a unit of land created in any of the following ways:
15 "(A) By partitioning land as defined in ORS 92.010;
"The donation of land or creation of an easement for public use." Black's Law Dictionary,
Eighth Ed., 442.
An owner of property may dedicate property. for use by the public as a right of way. In dedicating the
property for that use, the property owner may transfer the fee title to the public. The property owner
may also choose, instead, to retain ownership of the property, subject to the dedicated right of way. In
the former case, the property owner retains no right or interest in the property. In the latter case, the
property owner retains whatever ownership interest he or she has in the property that is compatible
with the dedicated public use. It appears that the Court in Emmich used the term "dedicated road" to
indicate an easement or a dedication without transfer of fee ownership.
8 Neither Smith v. Clackamas County, 313 Or 519, 836 P2d 716 (1992), nor City of Lake Oswego v. Grimm's
Fuel Co., 34 O- App 67, 577 P2d 1360 (1978), both cited by petitioners, recognizes the distinction between
roadways that are dedicated in fee simple and those in which the grantor merely dedicates to the public an
easement.
9 Although not relevant here, ORS 92.010 defines "lot" as "a single unit of land that is created by a
subdivision of land."
.Page 8
1 "(B) In compliance with all applicable planning, zoning and partitioning
2 ordinances and regulations; or
3 "(C) By deed or land sales contract, if there were no applicable planning, zoning
4 or partitioning ordinances or regulations." ORS 215.010(1)(a).
5 The county relies on subsection (C), arguing that the 1959 warranty deed created the subject
6 property at a time when "there were no applicable planning, zoning or partitioning ordinances or
7 regulations," and that the subject property is therefore a "parcel."
8 Petitioners cite, first, to ORS 92.017, enacted in 1985, which provides:
9 "A lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot
10 or parcel lines are vacated or the lot or parcel is further divided, as provided by
11 law."
12 That statute does not assist petitioners. Fust, the original parent parcel was divided, if at all, in
13 1959. It was the statutes and ordinances in effect at that time that govem whether the subject
14 property is a "parcel" as defined in ORS 215.010(1)(a)(C).10 Second, the 1985 statute begs the
15 question whether the parent parcel was "further divided, as provided by law."
16 Petitioners then cite to a 1955 statute that provided:
17 "No person shall create a street or way for the purpose of partitioning a parcel of
18 Iand without the approval of the agency or body authorized to give approval of
19 plans for subdivision under ORS 92.040 with respect to the area in which the parcel
20 is situated." ORS 92.014 (1955).''
21 We understand petitioners to argue that .the creation of Little Fall Creek Road violated this statutory
22 provision and was an illegal land division when it occurred in 1959 because there is no county
1° The parties cite to 1989 and 1991 amendments to ORS 92.010(7)(d), defining "partition land." As
the hearings officer notes, that statute now excludes from the definition of "partition" "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 * * *." We fail to see, however, how those amendments have any bearing on the
legality of a division that allegedly occurred in 1959.
11 The current version of ORS 92.014(1) provides:
Page 9
"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."
1 approval authorizing the creation of the road, and the resulting units of land, now tax lots 200 and
2 203, were not lawfully created. Accordingly, petitioners argue, approval of the challenged forest
3 template dwelling violates the requirement that the template dwelling be placed only on a lawfully
4 created parcel of land.
5 The county responds:
6 "The strip of land on which the road exists was acquired by Lane County through a
7 Warranty Deed executed on December 7, 1959. Record 217-218. At that time,
8 the conveyance acknowledged the prior establishment of the existing road right -of -
9 way. Record 217. The deed indicates the conveyance resulted from the relocation
10 of Little Fall Creek road and that title to most of the described area conveyed to
11 Lane County was already held by the public. The action that divided property to
12 the north of the roadway from property to the south of the roadway had already
13 been taken by the property owner at the time of the acquisition of that strip of land
14 by Lane County in 1959." Response Brief 13.
15 We do not agree with the county that title to most of the strip of land was already held by the public
16 when the 1959 deed was executed. The language of the deed does not support that position. See
17 n 5. Rather, it indicates that it is the deed itself that transferred the title to the county. The right of
18 way now identified as Little Fall Creek Road may have been dedicated to the public prior to 1959,
19 as the county asserts. However, nothing supports the county's position that any previous dedication
20 transferred a fee title interest. As is clearly stated in the cases discussed above, the dedication of a
21 mere easement or right to use the strip of land for roadway purposes is not sufficient to divide land.
22 We agree with petitioners, at least on that point. It was the execution of the warranty deed in 1959
23 that created the land division that petitioners allege violated ORS 92.014 (1955).
24 The county also argues:
25 "Nothing in the record indicates the road was initially created or relocated for the
26 purpose of partitioning a parcel of land or that the establishment of the road or
27 relocation was done without the approval of Lane County, the jurisdiction with
28 authority over partition approvals under ORS 92.040 in 1959." Response Brief 13
29 n 9.
30 The county's assertion that the record does not contain evidence that Little Fall Creek Road was
31 created without the required approval of the county does not assist its position. It is the applicant's,
page a
1 not petitioners', burden to establish compliance with all applicable criteria, including the requirement
2 that the lot or parcel on which the forest template dwelling is sited was lawfully created. Strawn v.
3 City of Albany, 20 Or LUBA 344, 350 (1990). If the record lacks evidence of the county's
4 approval, where such approval is required, the applicant fails to carry its burden of proof.
5 With regard to the county's argument that "[n]othing in the record indicates the road was
6 initially created or relocated for the purpose of partitioning a parcel of land," the parties do not offer
7 much assistance on the meaning of the 1955 statute. However, we tend to agree with the county.
8 There can be many reasons for creating a road; e.g., for the purpose of accessing an adjoining
9 property. In this case, the record reflects that the roadway in question already existed in 1959. The
10 deed was likely only to clarify the ownership or maintenance obligations of that existing roadway. In
11 any event, we do not see that petitioners have pointed to anything in the record that demonstrates
. 12 that the transfer that was accomplished by the 1959 deed was create a road for purposes of
13 partitioning then tax. lot 200, thus triggering ORS 92.014 (1955). Petitioners do not demonstrate
14 any other approval that was required but not obtained.12 Accordingly, we agree with the county that
15 the 1955 statute did not apply to the deed.
16 Finally, even if the statute did apply, we understand the county to assert that in 1959 the
17 county had no applicable partition regulations. Although not argued by the county, we do not see
18 why, absent applicable partition regulations, the county's acceptance of the deed would not be
19 adequate "approval," pursuant to ORS 92.014 (1955).
20 Petitioners therefore fail to demonstrate any way in which the county's conclusion that tax
21 lot 200 is a lawfully created parcel is in error. This assignment of error is denied.l3
12 The parties appear to agree that there were no county regulations that would have applied to the 1959
division. If there were any, we have not been cited to them.
13 We offer no opinion on the county's interpretation of the term "contiguous" in its local code, or the
possible effect of an intersecting road that is not owned in fee simple or where the division occurred at a
different point in time.
Page 1-1
1 SECOND ASSIGNMENT OF ERROR
2 Petitioners argue that the county failed to adopt findings addressing LC 16.244, which
3 establishes standards and criteria for the Floodplain Combining Zone for the purpose of minimizing
4 loss due to flood conditions. Essentially, petitioners are arguing that the county was required to
5 demonstrate compliance with those criteria as part of its approval of the challenged approval of
6 intervenor's template dwelling application.
7 The planning director's findings provide:
8 'The subject property is located within the 100 -year flood hazard area per
9 Community -FIRM map number 415591-41039C1685F effective June 2, 1999.
10 As a condition of approval, a Floodplain Development Permit will be required prior
11 to land use sign -off of a building permit." Record 151.
12 The county concedes that the subject property, which falls within the 100 -year floodplain, is subject
13 to the criteria found in LC 16.244. However, it argues that the proper time for determining
14 compliance with LC 16.244 is at the building permit stage, and that petitioners have cited to nothing
15 that requires a demonstration of compliance with those criteria at this point in the proceedings; i.e.,
16 during consideration of the request for approval of the forest template dwelling. Accordingly, the
17 county was not required to adopt findings of compliance with LC 16.244, and their failure to do so
18 does not provide a basis for reversal or remand.
19 We agree with the county. The provisions of LC 16.244 regulate the actual construction
20 and placement of structures within the Floodplain Combining Zone. It would not be possible to
21 determine compliance with most if not all of those standards until the building permit was applied
22 for. Petitioners do not explain why the county was required to address compliance with LC 16.244
23 in the context of approval of a forest template dwelling, and we do not see that it was.
24 Petitioners' second assignment of error is denied.
_P_age=12:
1 THIRD ASSIGNMENT OF ERROR
2 Petitioners argue that the county misconstrued applicable law and made inadequate findings
3 not supported by substantial evidence in the record in approving intervenor's request for a riparian
4 setback modification.
5 The county's siting standards for dwellings and other structures in the F-2 zone provide:
6 "Siting Standards for Dwellings, Structures and Other Uses. The following siting
7 standards shall apply to all new dwellings, manufactured dwellings and structures,
8 and other uses as specified above in LC 16.211(2)(h) and (j), and in LC 16.211(3)
9 through (7) above. These standards are designed to make such uses compatible
10 with forest operations and agriculture, to minimize wildfire hazards and risks and to
11 conserve values found on forest lands. The standards in LC 16.211(8)(a) through
12 (b) below shall be weighed together with the requirements in LC 16.211(8)(c) and
13 (e) below to identify the building site.
14 "(a) Setbacks. Residences, dwellings or manufactured dwellings and structures
15 shall be sited as follows:
16
17 "(iv) * * * the riparian setback area shall be the area between a line 100
18 feet above and parallel to the ordinary high water of a Class I stream
19 designated for riparian vegetation protection in the Rural Comprehensive
20 Plan. No structure other than a. fence shall be located closer than 100
21 feet from ordinary high water of a Class 1 stream designated for
22 riparian vegetation protection by the Rural Comprehensive Plan. A
23 modification to the riparian setback standard for a structure may be allowed
24 provided the requirements of LC 16.253(3) or LC 16.253(6), as
25 applicable, are met[.)" LC 16.211(8) (emphasis added).
26 A. First Sub -Assignment of Error
27 Petitioners contend that identification of the riparian setback area necessary in order to
28 determine siting location of a dwelling pursuant to the above quoted siting standards. Identification
29 of the riparian setback area, in tum, requires a determination of the "ordinary high water" line. LC
30 16.090 defines the "ordinary high water" line as follows:
31 "Ordinary High Water. The high water level is defined as that high level of a river
32 which is attained during mean annual flood. It does not include levels attained
33 during exceptional or catastrophic floods. It is often identifiable by physical
Page _-13
1 characteristics such as a clear natural line impressed on the bank, shelving, changes
2 in character in the soil, destruction or absence of vegetation not adapted for life in
3 saturated soils or the presence of flotsam and debris. In the absence of identifying
4 physical characteristics, ordinary high water may be determined by Step Backwater
5 analysis upon a two-year frequency flood as determined by the US Army Corps of
6 Engineers."
7 County staff conducted a "riparian setback examination" to determine the location of the high water
8 line. The planning director concluded that almost all of tax lot 200 falls within the riparian setback
9 area established by LC 16.211(8)(a)(iv). Petition for Review 23 (citing Record 64). On February
10 9, 2005, the hearings officer conducted a site visit to determine whether the planning director's
11 assessment of the high water line was accurate. Record 65. The hearing officer considered the
12 factors in the definition of the ordinary high water line, reviewed the planning director's
13 determination, and agreed with the planning director's determination of the location of that line.14
14
The findings of the hearing officer provide:
"The location of an ordinary high water line is not always a clear process and it certainly
wasn't in regard to the subject property. The Planning Director's determination was based
upon the location of a debris line located on the subject property's bank along Little Fall
Creek. While the line was relatively distinct, logs located on other portions of the bank and at
elevations higher than the debris line gave rise to reasonable speculation that the mean annual
flood might be higher. Adding to this confusion was the low precipitation conditions of the
last two years and the presence of dense blackberries that might obscure a higher debris line.
"The debris line was the factor that most clearly defined the Planning Director's determination.
In the area where it was apparent, there was evidence of vegetation alteration, textural changes
in the soil and little evidence of patterns of loose debris above or below the line. It would
seem that if the mean annual flood was higher, there would be more evidence of older debris
and scour lines at higher elevations. Also, the location of large logs seem to argue as heavily
for their being deposited through an exceptional flood event as through the occurrence of
annual flooding.
"In the final analysis, it is impossible to say conclusively that the debris line identified by the
Planning Director demonstrates an ordinary high water line representative of Little Fall Creek.
This is especially true based upon the lack of precise data regarding flooding of the creek over
the past few years. Its possible to conclude, however, that the Planning Director has
reasonably applied the descriptive factors of the Lane Code 16.090 definition of ordinary high
water to the subject property. Based upon the site view and the arguments of the parties it is
not possible to say that this determination is clearly wrong. Therefore, I must conclude that
the Planning Director's determination of the ordinary high water line should prevail." Record
69-70.
Page 14
1 Petitioners first argue that the record does not reflect that the line depicted on the map
2 accurately reflects the observations that were made on the ground. Although the county does not
3 directly address this issue, we do not see that the county's failure to identify specific elevations on
4 the property that are then transferred to a map provides a basis for reversal or remand. The
5 county's decision and its conclusions must be supported by substantial evidence in the record, and
6 the inquiry here is whether the county's determination of the location of the ordinary high water level
7 is supported by substantial evidence.
8 The applicant submitted a map indicating the location where he believed the ordinary high
9 water mark to be. The planning staff, and then the hearings officer, conducted site visits to confine
10 that the applicant's map was accurate. We do not see that the county was required to provide
11 elevations in order to confirm that the map accurately reflects on -the -ground observations. The
12 accuracy of the map indicating the location of the ordinary high water mark was subsequently
13 confirmed by staff and the hearings officer, and the map constitutes substantial evidence supporting
14 the challenged decision.
15 Petitioners also point to the following findings, arguing that the county impermissibly shifted
16 the burden of proof to petitioners:
17 "It is possible to conclude, however, that the Planning Director has reasonably
18 applied the descriptive factors of the Lane Code 16.090 definition of ordinary high
19 water to the subject property. Based upon the site view and the arguments of the
20 parties it is not possible to say that this determination is clearly wrong. Therefore, I
21 must conclude that the Planning Director's determination of the ordinary high water
22 line should prevail." Record 70 (emphasis added).
23 Petitioners are correct that the applicant bears the burden of proof throughout the local appeal
24 process. Strawn v. City of Albany, 20 Or LUBA 344, 350 (1990); see also LC 14.200(2).15
15 LC 14.200(2) provides:
"Burden of Proof The burden of proof in a hearing shall be as allocated by law. In general, the
burden shall be upon the proponent of the application, except that for an appeal on the record,
the burden of proof shall be upon the appellant."
-Pap -.1-5----
1 However, we do not agree with petitioners that the county did, in fact, shift the burden of proof.
2 While the applicant bears the burden of proof to demonstrate that the criteria are satisfied, in a local
3 appeal, it is the local appellant's burden to demonstrate that the initial decision maker erred. See
4 LC 14.515(3)(d).16 We have explained this distribution of burdens as follows:,
5 `In a local appeal of the initial decision maker's decision, the applicant retains the
6 burden of proof. Although local government procedural rules may impose certain
7 obligations on appellants opposing an initial decision granting land use approval, the
8 burden of proof imposed on the applicant under the above cited decisions remains
9 with the applicant throughout the local proceedings. The opponents of the initial
10 decision maker's decision also have a burden before the local appellate decision
11 maker in the sense that the appellate decision maker may find the initial decision
12 maker's decision to be well reasoned and supported by the evidentiary record.
13 Unless the opponents of the initial decision are able to convince the appellate
14 decision maker that the decision is erroneous in some way, the appellate decision
15 maker may adopt that initial decision as -its own. The processing of local appeals in
16 this manner does not impermissibly shift the burden of proof assigned to applicants
17 in land use proceedings in this state." Coonse v. Crook County, 22 Or LUBA
18 138, 142-43 (1991) (footnote omitted.)
19 While the language the hearings officer used casts some doubt on the standard that he
20 employed, it does not indicate that he impermissibly shifted the burden of proof to petitioners. The
The appeal to the hearings officer in this case was de novo, not on the record. Record 253.
16 LC 14.515(3)(d), for instance, requires a local appellant to specify one or more assignments of error,
demonstrating how the initial decision maker erred:
"(i) The Approval Authority exceeded his or her juris diction;
"(ii) The Approval Authority failed to follow the procedure applicable to the matter;
"(iii) The Approval Authority rendered a decision that is unconstitutional;
"(iv) The Approval Authority misinterpreted the Lane Code or Manual, State Law
(statutory or case law) or other applicable criteria; [or]
"(v) The Approval Authority rendered a decision that violates a Statewide Planning Goal
(until acknowledgment of the Lane County Comprehensive Plan, or any applicable
portion thereof has been acknowledged to be in compliance with the Statewide
Planning Goals by the Land Conservation and Development Commission);
Page 16 _.
1 hearings officer's conclusion that the planning director's determination of the ordinary high water line
2 was not "clearly wrong" was merely another way of stating that the local appellant had not
3 demonstrated that the planning director erred in any of the ways listed in LC 14.515(3)(d) that
4 would justify reversing or modifying his decision.
5 Petitioners' first sub -assignment of error to their third assignment of error is denied.
6 B. Second Sub -Assignment of Error
7 In this sub -assignment of error, petitioners argue that the county's findings that the proposal
8 complies with LC 16.253(2) and (3) misconstrue applicable law, and that the findings are
9 inadequate and unsupported by substantial evidence.17 LC 16.253(2) establishes standards for
17 LC 16.253(2) provides, in relevant part:
"Removal of Vegetation Within the Riparian Setback Area. The following standards shall
apply to the maintenance, removal, destruction and replacement of indigenous vegetation
within the riparian setback area along Class 1 streams designated for riparian vegetation
protection by the Rural Comprehensive Plan. * * *
"(a) A minimum of seventy-five percent (75%) of the total area within the riparian setback
area of any legal lot shall remain in an unaltered, indigenous state except as provided
in LC 16.253(2)(b)(i) and LC 16.253(5)(6) below; and
"(b) Removal of existing vegetation from within the riparian setback area of any legal lot
shall not exceed the shoreline linear frontage and square footage limitations
calculated as follows:
"(iii) The maximum allowable removal for any legal lot having frontage 400 feet or
greater in length along a Class I stream shall not exceed 100 linear feet along
the shoreline of the Class I stream and an area not greater than 5,000 square
feet within the riparian setback area of a Nonresource Zone, or 10,000 square
feet within the riparian setback area of a Resource Zone. * * *."
LC 16.253(3) provides:
"Modifications. A modification to the applicable riparian setback standard for a structure may
be allowed provided the Oregon Department of Fish and Wildlife (hereafter ODF&W) is
consulted by the Planning Director at least 10 working days prior to the initial permit decision
and an application for a modification to the setback standard has been submitted pursuant to
LC 14.050 and approved by the Planning Director pursuant to the requirements of LC 14.100
with findings of compliance addressing the following criteria:
-Page 17
1 removal of vegetation within the riparian setback area. Petitioners outline the requirements of LC
2 16.253(2) and (3) as follows:
3 "LC 16.253(2)(a) requires, with certain exceptions, that a minimum of 75% of the
4 total area within the riparian setback area of any legal lot remain in an unaltered,
5 indigenous state, except as allowed under LC 16.253(2)(b), which establishes
6 maximum allowable removal standards along shorelines and within the riparian
7 setback zone depending on stream frontage. LC 16.253(3) allows for modification
8 to the applicable riparian setback standard for a structure, subject to ODFW
9 comment and compliance with the criteria of LC 16.253(3)[.]
10 "*****
11 "Thus a structure can be sited within the riparian setback area if LC 16.253(2)
12 standards are met and the riparian vegetation does not actually exist at the proposed
13 building site, or if LC 16.253(2) standards are met and compliance would place an
14 `unduly restrictive burden' on the property owner. The county found that the
15 standards of LC 16.253(2) were met, and that the proposal complied with LC
16 16.253(3)(a) and (c)." Petition for Review 27.
17 Petitioners' description of the code is not contested by the county, and we adopt it as an accurate
18 summary of the code's requirements.
19 1. Ordinary High Water Determination
20. First, petitioners argue that the county's determination that the proposal complies with LC
21 16.253(2) and (3)(a) is inadequate because it relies upon the county's determination of the location
22 of the ordinary high water level, which petitioners assert is inadequate. We have already concluded
"(a) The location of a structure within the riparian setback area shall not result in the
removal or the alteration of vegetation within the riparian setback area in excess of the
standards of LC 16.253(2) above. For purposes of LC 16.253, altered means to
eliminate, significantly reduce or interrupt the natural growth cycle of indigenous
vegetation by removal or destruction of the vegetation caused by a person; and
"(b) The riparian vegetation does not actually extend all the way into the riparian setback
area to the location of the proposed structure. This determination shall include
consideration of any evidence of riparian vegetation existing prior to any removal of
indigenous vegetation before or during the application review period; or
"(c) It can be demonstrated that an unduly restrictive burden would be placed on the
property owner if the structure was not allowed to be located within the riparian
setback area."
Page 18
1 that the county's ordinary high water level determination was adequate. See discussion of first sub -
2 assignment of error to petitioners' third assignment of error above. Accordingly, we will not
3 address this sub -assignment of error further.
4 2. Secondary Fuel Break
5 Petitioners next argue that the county erred in failing to consider or require a secondary fuel
6 break, pursuant to LC 16.211(8)(c). LC 16.211(8)(c) requires fuel.breaks around new dwellings
7 in the F-2 zone. It establishes a primary safety zone of 30 feet in all directions from the dwelling and
8 a secondary fuel break extending 100 feet in all directions from the dwelling. t s
9 Pursuant to LC 16.253(2)(a), a riparian setback modification may only be approved if 75%
10 of the total area within the riparian setback area remains in an unaltered, indigenous state. See n 17.
11 Stated another way, it requires that only 25% of the area within the riparian setback area may be
12 disturbed. The county determined that the entire riparian setback area on the subject property
13 covers 35,900 square feet. It concluded that the driveway, dwelling, on-site sanitary system and
14 primary safety zone required per LC 16.211(8)(c) would require removal of vegetation covering
18 LC 16.211(8)(c) provides, in pertinent part:
"Fire Siting Standards. The following fire -siting standards or their equivalent shall apply to
new residences, dwellings, manufactured dwellings or structures:
"(i) Fuel -Free Breaks. The owners of dwellings, manufactured dwellings and structures
shall maintain a primary safety zone sunounding alt structures and clear and maintain
a secondary fuel break on land surrounding the dwelling or manufactured dwelling
that is owned or controlled by the owner in compliance with these requirements.
"(aa) Primary Safety Zone. The primary safety zone is a fire break extending a
minimum of 30 feet in all directions around dwellings, manufactured dwellings and
structures. * * *
"(bb) Secondary Fuel Break. The secondary fuel break is a fuel break extending a
minimum of 100 feet in all directions around the primary safety zone. The goal of the
secondary fuel break is to reduce fuels so that the overall intensity of any wildfire
would be lessened and the likelihood of crown fires and crowning is reduced.
Vegetation within the secondary fuel break shall be pruned and spaced so that fire
will not spread between crowns of trees. Small trees and brush growing underneath
Larger trees shall be removed to prevent spread of fire up into the crowns of the larger
trees. Dead fuels shall be removed."
1 only 8,800 square feet, just less than 25% of the total riparian setback area, and that LC
2 16.253(2)(a) is therefore satisfied.19 In its determination of the area to be disturbed, the county did
3 not consider the area required for a secondary fuel break because it concluded that a secondary fuel
4 break is not required in the riparian setback area.
5 Petitioners argue that the county's conclusion that only 8,800 square feet will be disturbed is
6 erroneous because the county failed to consider the area included in the secondary fuel break
7 "required by LC 16.211(8)(c).20. They contend that nothing in the county's code supports the
8 county's position that secondary fuel breaks are not required within the riparian setback area. They
9 argue that if the required secondary fuel break is considered, as it mist, then the proposal would
19 The findings provide, in pertinent part:
"The subject property is zoned Impacted Forest Land, a Resource Zone, and contains 35,900
square feet of riparian vegetation. The applicant's proposed dwelling is 28' x 40' and thus will
displace 1,120 square feet. The primary safety zone required by Lane Code 16.211(8) is 30 feet
in all directions around the dwelling. (No secondary fuel break is required within a riparian
setback area.) This would require an area of 4,060 square feet to be removed for the dwelling
and primary setback and 100 feet of linear shoreline. An additional 4,740 square feet of riparian
vegetation is anticipated to be removed with the construction of a driveway, 360 square foot
sand filter and drainfield. The total area of riparian setback vegetation to be removed, 8,800
square feet, is less than 25 percent of the total riparian setback area of the subject property.
"The proposal is consistent with the requirement of Lane Code 1 6.253(2)(a), in that it retains
75+ percent of the total area within the riparian setback area to remain in an unaltered,
indigenous, state, consistent with Lane Code 16.253(2)(a) and because it results in less than
10,000 square feet of riparian area being removed, consistent with part of Lane Code
16.253(2)(b)(iii). However, the applicant's site plan shows that the length of the proposed
dwelling (40 feet), the primary fuel break (60 feet total); and sand filter (10-15 feet?) would
result in the removal of more than 100 linear feet of riparian setback area, inconsistent with a
portion of Lane Code 1 6.253(2)(b)(iii). However, as a condition of approval, the sand filter and
other components of the subsurface disposal system can be placed within the primary setback
area thus bringing the proposal into conformance with Lane Code 16.253(3)(a)." Record 67.
20 Petitioners also cite to OAR 660-006-0035(3), which requires secondary fuel breaks only on "land
surrounding the dwelling that is owned or controlled by the owner[.]" Petitioners assert that the findings fail to
identify a local code provision implementing that administrative rule and fail to explain how LC 16.253(2)(a) is
complied with if the secondary fuel breaks are only required on land owned and controlled by the applicant.
Petition for Review 30.
First, LC 16.211(8)(c)(i) parallels OAR 660-006-0035(3). ("The owners of dwellings * * * shall * * * maintain
a secondary fuel break on land surrounding the dwelling * * * that is owned or controlled by the owner * * *.").
More importantly, the county's findings did not address this issue because it concluded that secondary fuel
breaks were not required in the riparian setback area.
Page 20._
1 require removal of significantly more vegetation than estimated by the county, and the 75%
2 requirement would not be satisfied.
3 The county responds that the riparian regulations were adopted to comply, at least in part,
4 with Statewide Planning Goal 4 (Forest Land), and that the Goal 4 findings adopted when the
5 county adopted the riparian regulations acknowledge that "the streams and riparian vegetation
6 provide a sufficient natural barrier against the spread of fire and preservation of the vegetation is
7 consistent with the Goal 4 and related policies of the [Rural Comprehensive Plan.]" Response Brief
8 32.21 It asserts that it was understood at that time that "the secondary fuel break required around
9 dwellings would not include riparian setback areas so that riparian vegetation could be preserved."
10 Id. at 33.
11. We acknowledge the apparent conflict between the policy of protecting riparian vegetation
12 and the policy of requiring removal of vegetation in order to protect dwellings from possible fire
13 hazards. The goal findings adopted during adoption of the riparian regulations would not, in
14 themselves, suffice to support the county's conclusion that secondary fuel breaks are not required
15 within the riparian setback area, if the code unequivocally requires secondary fuel breaks within a
16 riparian setback area. However, the code does not unequivocally require secondary fuel breaks.
17 The county cites to the introductory language of LC 16.211(8)(c), which provides that "the fire -
18 siting standards or their equivalent shall apply to new residences * * *." The county argues that
21 The findings that were adopted in support of the ordinance adopting the riparian vegetation setback
regulations provide, in pertinent part:
"In order to balance the need to comply with OAR 660-06-025(1)(b) and to provide adequate fire
protection for dwellings located in or near riparian setback areas, standards for the removal of
riparian vegetation have been established. Pursuant to OAR 660-06-035(3), only a minimal amount
of riparian vegetation can be removed which would consist of a primary fuel break of 30 feet around
the dwelling. (The amount of vegetation removal for the primary fuel break would be included in
the amount of vegetation authorized for removal within the riparian setback area.)
"An additional, secondary fuel break is required around the dwelling except within the riparian
setback area, which preserves the riparian vegetation consistent with OAR 660-06-025(1)(6).
Lane County recognizes the Class I Stream as a secondary fuel break because such streams impede
the spread of fire and provide a moister environment as a natural barrier against the spread of fire."
Record 134 (emphasis added).
Page-21-
1 the use of the term "or their equivalent" supports its conclusion that secondary fuel breaks are not
2 required in the riparian setback area.
3 We agree with the county that that language in LC 16.211(8)(c) provides an alternative to
4 the secondary fuel break. As the goal findings adopted in support of the riparian setback
5 regulations explain, the riparian setback area provides an equivalent means of protecting dwellings
6 from fire hazards so that, in certain circumstances, the secondary fuel break provided for in LC
7 16.211(8)(c) is not required. See n 18. Accordingly, the county did not err in failing to require a
8 secondary fuel break in this case and in failing to consider the vegetation that would have been
9 disturbed as a result of that secondary fuel break for purposes of calculating the percentage of
10 undisturbed vegetation. Consequently, the county did not en in concluding that LC 16.253(2)(a)
11 was satisfied.
12 3. Unduly Restrictive Burden
13 Finally, petitioners argue that the county erred in determining that prohibiting the proposed
14 dwelling from being sited within the riparian setback area places an unduly restrictive burden on the
15 property owner pursuant to LC 16.253(3)(c). See n 17. They argue that the county failed to "offer
16 any explanation of why the inability to site a dwelling on the subject property would constitute an
17 `unduly restrictive burden on the property owner."' Petition for Review 31.
18 Petitioners' argument appears to be based entirely on their assertion that the subject
19 property remains part of tax lot 203, which already contains a dwelling, and that intervenor is not
20 entitled to site two dwellings on one legal lot in any event. According to petitioners, denial of a
21 second template dwelling on one tract does not constitute an unduly restrictive burden. As we
22 explained m our discussion of petitioners' first assignment of error, the subject property is a lawfully
23 created "parcel," separate and distinct fom tax lot 203. Accordingly, to the extent petitioners'
24 argument relies on its contention that tax lots 200 and 203 are one parcel or tract, it fails.
Page.:22
1 The challenged findings conclude that the dimensions of the subject property preclude the
2 siting of a dwelling that does not fall within the riparian setback area 22 Although petitioners allege,
3 in general, that those findings are inadequate and not supported by substantial evidence in the
4 record, they offer no argument other than the one rejected above. Accordingly, petitioners'
5 challenge to the county's conclusion that an unduly restrictive burden would be placed on the
6 property owner if the structure was not allowed to be sited within the riparian setback area does not
7 provide a basis for reversal or remand.
8 Petitioners' second sub -assignment of error to their third assignment of error is denied.
9 The county's decision is affirmed.
22 The findings provide, in pertinent part:
"Since this decision assumes that the subject property is a legal lot, the question remains
whether the applicant would suffer an unduly restrictive burden if the proposed dwelling was
not allowed to be located within the riparian setback area. An examination of the applicant's
plot plan reveals that the subject property is wedge-shaped, being 130 feet wide at its eastern
end and tapering to 45 to 35 feet in width at its western end. Applying a rough scale, it
appears that the eastern portion of the subject property tapers to 100 feet in width, measuring
between the right-of-way of Little Fall Creek Road to the bank of Little Fall Creek, about 90 feet
from its eastern perimeter. Thus, there appears to be a small triangle of land, 90 feet long with a
30 -foot wide base that represents the portion of the subject property that does not lie within
the 100 -foot riparian setback area. Assuming this figure is approximately a `right triangle' its
area would be somewhere around 1350 square feet. [footnote and reference to figure omitted]
As seen above, the applicant's `modest' house is 1,120 square feet in size without accounting
for the subsurface disposal system, a driveway, or the primary fuel break. Locating a dwelling
in this area would put the proposed structure within the County's right-of-way for Little Fall
Creek, which extends 50 feet on either side of its centerline. This location would violate Lane
Code 15.083 and Lane Code 16.211(8)(a)(v)(aa). Finally, if the dwelling was sited 30 feet from
all other property lines consistent with Lane Code 16.211(8)(a(v)(bb) this situation would be
further aggravated.
"The dimensions of the subject property preclude any practicable way that the applicant could
site a dwelling with a primary fuel break without severely encroaching on the 100 -foot setback
from Little Fall Creek. The plot plan appears to be a reasonable compromise given the slope
constraints of the subject property, the required setbacks from Little Fall Creek Road, and the
distance from the ordinary high water line of Little Fall Creek." Record 68-69.
Page 23___