MARION COUNTY BOARD OF COMMISSIONERS  MBw  OREGON Board Session Agenda Review Form  Meeting date: June 26, 2024 Department: Public Works  Title:  Public hearing to consider appeal ofH Hearings Officer's decision on Administrative Review Case 23-033/Bodunov  Management Update/Work Session Date: N/A  Audio/Visual aids Phone: 503-566-4174  Time Required: 15 min  Contact: Austin Barnes  Requested Action: Receive testimony on appeal and approve or deny Administrative Review Case 23-033/Bodunov.  &Background: Issue, Description  AR23-033 was a case to determine the number of legal lots within twot tax lots that comprise 26.65 acres located ini the 21000 block of Abiqua Rdl NE, Scotts Mills, OR (T7S; ;R1E; Section 13; On November 17, 2023 the Planning Director determined that there was one legal lot. On November 27, 20231 the decision was appealed to the Hearings Officer. On. January 4, 2024 the Hearings Officer held a duly noticed hearing. On February 8, 20241 the Hearings Officer issued a decision determining that both tax lots constituted one legal lot. On February 22, 20241 the decision was appealed toi the Board of Commissioners with a statement and appropriate filing fee.  Tax Lots 300 & 500).  Financial Impacts:  None  Impacts to Department None &E External Agencies:  List of attachments: Appeal, Planning Directors Decision, Hearing Officer's Decision  Presenter: Department Head Signature:  Austin Barnes  Buwe    BEFORE THE. MARION COUNTY BOARD OF COMMISSIONERS  BODUNOV, PROHAR & EVODKIA,  Plaintiff,  Case No. AR23-033 CLERKS FILENO.  3  33 N3   o 3 T  This matter comes before the Board of Commissioners as an appeal from the B Hearings Officer's amended order in this case (a copy of which is attached hereto as Exhibit The applicants are the owners ofTax Lot 300 and Tax Lot 500 located in the 21000  "A").  block of Abiqua Rd NE (T7S, RIE, Section 13D), Silverton, OR.  HISTORY  Mr. & Mrs. Bodunov purchased these lots in 2021 with the intent that each lot would be al building site for their two sons. It was their understanding at that time that they were separate buildable lots. Only recently did they discover that there was an issue as to whether  or not Marion County would consider them separate lots.  LAW  MCC17.110.315 defines a lot as a unit ofl land created by deed or land sale contract prior to September 1, 1977. MCC 17.110.360 defines al lot ofrecord as al lot or parcel described by metes and bounds which has been recorded ini the office oft the county recorder and which complied with all applicable laws at the time ofi its recording. MCC 17.110.427 defines a legal parcel as a unit ofl land created by deed or land sale contract prior to September 1, 1977. Int this case, without question, the April 27, 1964 deed which was recorded in Volume 585, Page 269 oft the Marion County Real Property Records separated Tax Lot 300 from Tax Lot 500 although other Tax Lots were attached. Subsequently, those other Tax Lots were sold off leaving only Tax Lot 300 and Tax Lot 500 which were legally,  then, separate legal lots of record.  APPEAL  The staff decision, as upheld by the Marion County Hearings Officer recognizes the above history, but then creates ai new policy for Marion County. The Marion County code  Bodimo2220l-Apealde    does not currently include aj provision that requires the combination oft two legal lots merely because a scribe used a single description at some point after thel lots were separated. While the Board of Commissioners has the legal ability and authority to define when two legal lots ofrecord would be combined, it has not done so. The staff, as affirmed by the Hearings Officer, decided arbitrarily tol look to the deed closest in time to but prior to September 1, 1977 to determine legal lot of record status. There is no legal basis for that policy unless iti is  adopted by the Board of Commissioners.  Mr. & Mrs. Bodunov had the: right to rely on the county code as written in making their real property decisions. If the county is to adopt aj policy by which property owners could inadvertently destroy the separate nature of their legal lots ofi record, the county should affirmatively do sO, but Mr. & Mrs. Bodunov should not lose their rights unless such a  decision is affirmatively made by the Board.  CONCLUSION  Tax Lots 300 and 500 meet the test set out in Marion County's Code. They were separately described by metes and bounds prior to September 7, 1977. Mr. and Mrs. Bodunov request that the Board of Commissioners accept this appeal, hold al hearing and reverse the  Hearing Officer's decision.  Respectfully submitted this 22nd day of February, 2024.  KELLEY * KELLEY By: PenalRly DONALDI M. KELLEY, OSB#741703 OfAttorneys for Mr. & Mrs. Bodunov Email: dielly@kelyatomoyscon  Botumov2220l-Apaldoe    BEFORE THE MARION COUNTY HEARINGS OFFICER  AMENDED  In thel Matter oft the. Application of: Prohar and Evdokia Bodunov  ) )  Case No. AR23-033 ADMINISTRATIVE REVIEW  ORDER  INature oft the. Application  This matter came before the Marion County Hearings Officer on the Application of Prohar and Evdokia Bodunov for an administrative review to determine the number of legal lots on a tract of approximately 26.65-acres in an TC (Timber Conservation) zone located in the  21000 block of Abiqua Rd NE (T7S; R1E; Section 13D, Tax lots 300 & 500).  II. Relevant Criteria  The standards and criteria relevant to this application are found in the Marion County  Code, Chapter 17, particularly MCC 17.110 and MCC17.115.  II. Hearing  A public hearing was held on the application on January 4, 2024. At the hearing the Planning Division file was made a part of the record. The following persons appeared and  provided testimony: 1.  Nicole Inman 2. Donald E. Kelley 3. Austin Barnes  Marion County Planning Division Attorney for Applicants Marion County Planning Division.  No objections were raised to notice, jurisdiction, conflict ofinterest, exhibits, evidence or testimony presented at the hearing. Additional submissions were included in the record and  marked as Exhibit 1:  Exhibit 1: Index of Deeds and Copies of Deeds. The deeds submitted as Exhibit 1 are already in the record, but the copies oft the deeds presented as Exhibit 1 are more. legible than  the copies oft the deeds included in the Planning file.  IV. Executive Summary  Applicants request administrative review to determine the number of legal lots on a tract of approximately 26.65-acres in a Timber Conservation zone located in the 21000 block of  Abiqua Rd. NE.  Exhibit_ A Page_Lof2  AR: 23-033 - ORDER Bodunoy Page 1  Rescueel 36/24 6R Scennod 216/z4 6R    The Applicants state that the two parcels (Tax Lots 300 and 500) were considered separate lots of record in a 1964 Deed. The two parcels were described in metes and bounds and were recorded. On this basis, Applicants argues that Tax Lot 300 and 500 are separate lots of  record.  Marion County Planning states that a 1975 Deed combined the two previous lots into a consolidated parcel. The 1975 deed referenced a recorded Contract of Sale for its legal description. The metes and bounds legal description in both a 1972 deed and a 1975 deed match the current legal description in the current vesting deed. Marion County's position is that there cannot be multiple lots ofrecord, and only the one consolidated lot ofi record has been used and  recorded since land use regulations.  Applicants respond that the fact that the two parcels have been recorded as a single lot of record in 1974 does not strip the parcels of their status as lots of record. Marion County responds that the Applicants' interpretation would result in the existence of multiple lots of  record.  Because Tax Lot 300 and Tax Lot 500 have been described in metes and bounds as a single parcel and the single parcel has been recorded in contracts, assignments, and deeds, it is  determined that Tax Lots 300 and 500 constitute a single legal lot ofrecord.  V. Findings ofl Fact  The Hearings Officer, after careful consideration of the testimony and evidence in the 1. The subject property is designated Forest in the Marion County Comprehensive Plan and isc correspondingly zoned TC (Timber Conservation). The primary intent of both this designation and zone is to conserve forest lands by maintaining the forest land base and 2. The subject property includes Tax Lots 300 and and Tax Lot 500 and is located approximately 1.25 miles south from the intersection of Abiqua Spring Ln NE and Both Tax Lot 300 and Tax Lot 500 are both bare land and have not been the subject of Surrounding properties are also zoned TC with the majority being medium to large sized, undeveloped parcels. There are a few small parcels to the south/southeast and several Marion County Planning stated that although Tax Lots 300 and 500 may have been individual parcels in a 1964 deed, property owners took actions through contracts, assignments, and deeds to combine the parcels into one. legal lot that has been used as the  record, issues the following findings of: fact:  toj protect the forest economy.  Abiqua RdNE. Abiqua Rdl NE: runs through the parcels.  3. 4.  any land use actions.  homesites throughout the area.  5.  legal description for' Tax Lots 300 and 500 as a single legal lot.  AR23-033 - ORDER Bodunov Page 2  Exhibit A Page 2of0    6.  Donald Kelley, attorney for Prohar and Evdokia Bodenov, presented the Applicants' position. Mr. Kelley stated that the parcels were split and were two separate lots in 1964 (lots that also included additional real property). Mr. Kelley argues on behalf of the Applicants that a "lot ofrecord" cannot lose its status as a legal lot by being combined in a deed or land sale contract absent a clear intention to vacate the status of the lots. Applicants' argue that their position is supported by state law which provides that a lawfully created lot orj parcel remains a discrete lot or parcel unless the lot or parcel lines are vacated or the lot or parcel is further divided as provided by law. ORS92.017(1). 7. The Planning Division posits that there cannot be multiple lots of record, and in this case,  only one. has been used since land use: regulations.  8.  The Planning Division requested comments from various governmental agencies. All contacted agencies either failed to comment or stated no concern with/objection to the  proposal.  VI. Additional Finding of] Fact and Conclusions ofLaw  1.  Applicants have the burden of proving by aj ponderance oft the evidence that all applicable standards and criteria are met as explained in Riley Hill General Contractor, Inc. V. Preponderance of the evidence" means the greater weight of evidence. It is such evidence that when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If, upon any question in the case, the evidence appears tol be equally balanced, or ifyou cannot say upon which side it weighs heavier, you must resolve that question against the party upon whom the burden of proof rests. (Citation Applicants must prove, by substantial evidence in the record, it is more likely than not that each criterion is met. If the evidence for any criterion is equal or less, Applicants have not met their burden and the application must be denied. If the evidence for every criterion there's a hair or breath in Applicants' favor the burden of proof is met and the Pursuant to MCC 17.115.010. the Planning Director is authorized to issue determinations or administrative reviews regarding conformance of existing or proposed uses on a particular lot or parcel within the requirements of this title, including determinations or administrative review relating to non-conforming uses as provided in Chapter 17.110 An administrative review is a written determination that requires an interpretation or the exercise of factual, policy, or legal judgment, and is considered a land use decision and is  Tandy Corporation, 3030:390.3943954987.  omitted).  application is approved.  2.  MCC, subject to the: requirements oft this chapter.  3.  issued as a land use decision.  AR23-033 - ORDER Bodunov 3 Page  Exhibit_ A Page3fb    4.  The Applicants seek a determination of how many legal lots exist within the bounds of tax lots 300 and 500. Per Marion County Code 17.115, a proposed use, structure, or the legality of a lot or parcel may be reviewed as an administrative review when it requires an interpretation or the exercise of factual, policy, or legal judgment. This decision is  issued as al land use decision.  5. MCC 17.115.110 provides that when a determination about a proposed use, structure or the legality of a parcel cannot be made without interpretation or the exercise of factual, policy or legal judgment, the proposes use, structure, or the legality ofa lot or parcel may be reviewed as an administrative review subject to submitted of an application as  provided in MCC17.119.020 and 17.119.025. MCC: - 17.115.110 (A) states:  6.  "The decision shall be made on the basis of the comprehensive plan and applicable standards and criteria in this title. The director or designee may attach any conditions of approval deemed necessary to ensure conformance of the use, structure, lot or parcel or to the standards or criteria. Administrative review applications may bej filed and. shall be signed as required in MCC 17.119.020 and. 17.119.025. Notwithstanding any other provisions of this title, the director or designee may. forward any land use permit or application to the planning commission o7 hearings officer for a public hearing and 7. Ini its Notice of Decision issued on November 17, 2023, the Director determined that Tax  initial decision. "  Lots 300 and 500 constitute a single legal lot.  8.  MCC 17.115.110(C) allows an application to file a request for hearing to the planning 9. On November 27, 2023, within 15 days of the date the decision wàs received, submitted an. Appeal oft the Planning Division decision. The Applicants' appeal is timely. 10. On request for a hearing, the hearings officer shall hold a hearing on the matter in accordance with MCC 17.111. The hearings officer may hold a hearing and issue a  division within 15 days oft the date the decision was received.  determination on this matter.  Lot,] LotofRecord. and Parcel  11. MCC 17.110.315 defines a "Lot" as a unit of land created by a subdivision as defined in ORS 92.010 in compliance with all applicable zoning and subdivision ordinances; or created by deed or land sale contract prior to September 1, 1977, exclusive of units of  land created solely to establish a separate tax account.  AR23-033 - ORDER Bodunov Page 4  Exhibit. A Page_4ofD.    12. MCC 17.110.360 defines a "lot ofrecord" as a lot which is part of a subdivision or a lot or parcel described by metes and bounds which has been recorded in the office of the county recorder and which complied with all applicable laws at the time ofits recording. 13. MCC17.114.040 defines a "nonconforming lot ofrecord" as any lot created by deed, plat or subdivision prior to September 1, 1977, is considered legally created for the purposes  ofapplying the land use code.  14. Marion County Code 17.110.427 defines a legal parcel as:  "Parcel" means a unit of land created by a partitioning as defined in ORS92.0101 in compliance with all applicable zoning and partitioning code provisions contained in Chapter 17.172. MCC, or created by deed or land sales contract prior to September 1, 1977, excluding units ofland created. solely to establish a separate tax account. 15. Based upon MCC 17.110.427, Marion County Planning looks to the deed closest in time, but prior to September 1, 1977. Planning reviews the legal description in the deed that is closest to but prior to September 1, 1977 to determine the original legal lot. Planning then reviews for any changes that occurred between the date of the deed and present day (by deed or land use action). Based upon this information, Marion County Planning 16. Applicants state that MCC 17.110.360 defines a lot of record and that Tax Lot 300 and Tax Lot 500 satisfy that definition because Tax Lots 300 and 500 were described in metes and bounds, which were recorded in the office of the county recorder, and complied with the applicable laws at the time of recording. Applicants argues that the mere: fact that ai recorded contract later described the Tax Lot 300 and' Tax Lot 500 with a single legal description does not alter their status as a "lot of record." Applicants argue that state law allows a lawfully created lot to remain a discrete lot or parcel unless the lot or parcel lines are vacated or the lot or parcel is further divided as provided by law. ORS 92.017(1) provides that a lawfully created lot or parcel remains a discrete lot or parcel unless the lot or parcel lines are vacated or the lot or parcel is further divided as provided by law. Marion County Code does not include an analogous provision.  ascertains the current legal lots.  17. Applicants provided historical and: recent deeds and contracts for review with the  Application. Exhibit 1 also includes the deeds and contracts with more. legible copies of April 27, 1964 Deed: Warranty Deed recorded at Volume 585, Page 269: The legal description in the warranty deed included Parcel 1 and Parcel 2 with separate and individual metes and bounds. Parcel 1 included Tax Lot 200,300, and aj portion of Tax Lot 400. Parcel 2: included Tax Lots 500, 600, 700, and 800. The "save and except"  the documents. The documents considered are:  AR23-033 -ORDER Bodunov Page 5  Exhibit A Page5ofD    for Parcel 2 incorrectly describes aj portion ofTax Lot 400 and should have been attached The 1964 Warranty Deed does describe Tax Lots 300 and 500 as portions of separate  tol Parcel 1. legal lots.  Tax Lots 300 and 500 were considered separate legal lots in 1964.  November 3, 1967 Contract: Land Sale Contract recorded at Volume 638, Page 731: The legal description for the property conveyed pursuant to thel Land Sale Contract included single metes and bounds encompassing Tax Lots 200, 700, and 800. June 13, 1972 Contract: Land Sale Contract recorded at Volume 728, Page 450: Thel legal description for the property being conveyed included single metes and bounds encompassing Tax Lots 300, 500, 600, and aj portion ofTax Lot 400, save and except a August 15, 1972: Assignment of Contract references Volume 728, Page 450: The assignment assigned the land sale contract for Tax Lots 300, 500, and 600. October 2, 1973: Contract for the Sale of] Property recorded at Volume 762, Page 113: The legal description for the property was a single metes and bounds description for Tax Lot 600. Tax Lot 600 was conveyed by the contract for sale, and therefore, Tax Lot 300 and Tax Lot 500 are the remnant parcel. Tax Lot 600 was conveyed out of thel larger parcel, separately described, and Tax Lots 300 and 500 were one parcel. This contract sale was for tax lot 600. Therefore, Tax Lots 300 and 500 are the remnant parcel, as tax lot 600 was conveyed out oft the larger parcel and described separately prior  portion of Tax Lot 400.  tol Reel 10 Page 694 being recorded.  June 20, 1974: Land Sale Contract recorded at Volume 780, Page 741: Thel legal description for the property conveyed pursuant to the Land Sale Contract included a single mete and bounds description that included Tax Lots 300, 500, and 600, and aj portion ofTax Lot4 400, save and except aj portion ofTax Lot 400 and save and The 1974 Land Sale Contract created a unit ofl land by land sale contract prior to March 11,1975: Assignment of Contract recorded at. Reel 10, Page 694: The assignment assigned the Land Sale Contract for Tax Lots 300 and 500. Reel 10 Page 694, recorded March 11, 1975, was the deed that Staff found closest, but prior to, September 1, 1977. Iti references al legal description used in a contract sale from Vol. 728 Page 450. This legal description was of one parcel that encompassed Tax Lots 300 and  except' Tax Lot 600. September 1, 1977.  500. AR23-033 - ORDER Bodunov Page 6  Exhibit A Page_laof    August 24,2021: Warranty Deed: recorded at Reel 4530, Page 473:  The Warranty Deed conveyed Tax Lots 300 and 500 with a legal description consisting ofas single mete and bounds description that included Tax Lot 300 and Tax Lot 500, along with' Tax Lot 600 and aj portion ofTax Lot 400, and save and except Taxl Lot 600 This legal description is the same as the legal description provided in the Contract Sale The last legal description in ai recorded document prior to September 1, 1977 describes Tax Lot 300 and Tax Lot 500 as a single legal lot. The most recent recording also describes Tax Lot 300 and Tax Lot 500 as a single legal lot. Since land use regulation in Marion County, the two tax lots have been conveyed as one. lot. Pursuant to Marion County Code 17.110.427, Tax Lots 300 and 500 are a single legal lot because it was defined as such by deed and land sales contract prior to September 1, 1977, and remains 18. Marion County Code does not include aj provision that requires a lot or parcel line be affirmatively vacated to remain a discrete lot or parcel as ORS 92.017(1): requires. 19. In Thomas V. Wasco County (LUBA 2008-206), the Board considered a Wasco County Zoning Ordinance that consolidated certain nonconforming contiguous legal lots and parcels for development purposes. The Board referenced that in Kishpaugh V. Clackamas County (24 LUBA 164 (1992), the Board held that a county land use regulation that for development purposes required combination of substandard lots under the same ownership was. not inconsistent with ORS 92.017. In Kishpaugh, the Board concluded that nothing in either the text ofORS 92.017 or its legislative history suggests that all lawfully created lots and parcels must be recognized by local governments as being separately developable. ORS 92.017 isi intended to preserve discrete lots and prevent local governments from refusing to recognize lawful divisions ofl land such that lots and parcels could not be sold to third parties. The. Board also referenced Campbell V. Multnomah County, 25LUBA 479 (1993) which held that ORS 92.017 does not preclude al local government: from imposing zoning or other restrictions with directly or indirectly require that two or more. lawfully created lots be combined for purposes of development. 20. Int this case, a land sale contract and subsequent deeds treat thet two tax lots as one. legal parcel. The last legal description for the subject property in ai recorded document prior to September 1, 1977 describes Tax Lot 300 and Taxi Lot 500 as a single legal lot. The: most recent recording also describes Tax Lot 300 and' Tax Lot 500 as a single legal lot. Since land use regulation in] Marion County, the two tax lots have been conveyed as one. lot. 21. Pursuant to Marion County Code 17.110.427, Tax Lots 300 and 500 are a single legal lot because it was defined as such by deed and land sales contract prior to September 1, 1977, and remains as a single lot through the last recorded deed in 2021. No changes have been made to thej parcel since. Reel 10 Page 694. Nothing in ORS 92.017 prohibits the lots from being consolidated by Deed under the Marion County Code.  and the portion ofTax) Lot 400.  recorded on June 20, 1974 at Volume 780, Page 741.  as as single lot through thel last recorded deed: in 2021.  AR: 23-033 -( ORDER Bodunov Page 7  Exhibit A Pageoflb    VII. Order  Because Tax Lot 300 and Tax Lot 500 have been described in metes and bounds as a single parcel and the single parcel has been recorded in contracts, assignments, and deeds, itis,  determined that Tax Lots 300 and 500 constitute a single legal lot ofi record.  Iti isl hereby determined that Tax Lots 300 and 500 represent one parcel of land that was  lawfully established in Marion County.  VII. Appeal Rights  An appeal of this decision may be taken by anyone aggrieved or affected by this Order. An appeal must be filed with the Marion County Clerk (555 Court St. NE, Suite 2130, Salem, Oregon by 5:00 p.m. on the Z3Pday of February, 2024 (15 days after the date oft the Order). The appeal must be in writing, must be filed in duplicate, must be accompanied by aj payment of $500, and must state wherein this order fails to conform to the provisions of the applicable ordinance. Ift the Board denies the appeal, $300 oft the appeal fee will bei returned. DATED at Salem, Oregon this gHh day of February, 2024.  guffets Marion County Hearings Officer  JiKF.F Foster  AR23-033- ORDER Bodunov Page 8  Exhibit A PageofD    CERTIFICATE OF MAILING  Ihereby certify that I served the foregoing order on the following persons:  Prohar Bodunov 29865 S. Jackson Rd. Canby, OR97013 Don Kelley 110N2nd Street Silverton, OR97381 Area Advisory Committee #7: Dawn Olson 15056 Quall Rd Silverton, OR 97381 James Sinn (via email) sinn@gmail.com Roger Kaye Friends ofl Marion County P.O. Box 3274 Salem, OR97302 10001 Friends of Oregon POI Box 40367 Portland, OR97240 (via email)  Surveyor's Office (via email) KImman@comarionorus Fire District:  Silverton Fire District (via email) llmis@slivetonfirecon Planning Division (via email) breich@comarion.orus hames@comaronarus ANajera5anchez@ceZQco.marion.or.us Building Inspection (via email) Molemecomarenors Kaldrieh@comationorus Abamme@romaronons CTateQco.maronorus Building Inspection Septic (via email: homme@eanerionoau, (via email: M4erenocomeronorus, Public Works LDEP Section (via email) nsmsen@commoners melep@co.maronorus Shamahn@co.maronorus School District: Silver Falls (via email) Nielsen eeCiveraIsk2ors Code Enforcement (via email) CGofin@comaronorus syor@comaronenus ahalero@comarcnors  Pudding River Watershed Council anna@puddingriverwatersned.org cleampuddingriver@gmal.com County Agencies Notified: Assessor's Office (via email) sessor@comaronarus Tax Collector (via email) wesmer@comaronors NMeVeyQcomarionorus ADalon@comtronorus  Page 1 - Certificate ofMailing (AR23-033)  Exhibit A PageofD    State Agencies Notified: DLCD (via email) hlanyfoote@stateor.us  By mailing to them copies thereof. I further certify that said copies were placed in sealed envelopes addressed as noted above, that said copies were deposited in the United States Post  Office at Salem, Oregon, on the B4h  day of February, 2024 and that the postage thereon  was prepaid.  Admpistrative. Assistant to the AR Hearings Officer  Page 2 - Certificate ofMailing (AR 23-033)  Exhibit A Page_DofD        Attention Property Owner: A land use proposal has been submitted for property near where youl live or near property you own elsewhere. State law requires that the county notify property owners within a certain distance from this property. Thej proposal and address oft the property is described: in the' "Application" section below. The decision in this case does not directly affect the: zoning or use ofy your property. Ifyou object to the decision, refer to the' "Appeal" section. Ifyoul have questions, contact the staff person listed  att the end oft this report.  NOTICE OF DECISION  ADMINISIRATIVE REVIEW CASE. NO. 23-033  APPLICATION: Application of Prohar and Evdokia Bodunov for an: administrative review to determine the number of legal lots on: at tract ofa approximately 26.65-acres in an' TC (Timber Conservation) zone located in the 21000 block of DECISION: The Planning Director for Marion County has determined that tax lots 300 and 500 comprise one single WARNING:/ A decision approving the proposal is for land use purposes only. Due to septic, well and drainfield replacement areas, this parcel may not be able to support the proposal. To be sure the subject property can accommodate the proposed use the applicant should contact the Building Inspection Division, (503)588-5147.  Abiqua Rd NE (T7S; RIE; Section 13D, Tax lots 300 & 500).  legal lot.  This decision does noti include approval ofal building permit.  OTHER PERMITS, FEES AND RESTRICTIONS: This approval does not: remove or affect covenants or restrictions imposed on the subject property by deed or other instrument. The proposed use may require permits and/or fees from other local, State or Federal agencies. This decision does not take the place of, or relieve the responsibility for, obtaining APPEAL PROCEDURE: The Marion County Zone Code provides that certain applications be considered first by the County Planning Director. Iftherei is any doubt that the application conforms with adopted land use policies and regula- tions thel Director must condition or deny the application. Anyone who disagrees with the Director's decision may appeal the decision to al Marion County hearings officer. The applicant may also request reconsideration (one time only and a $200.00 fee) on the basis ofnew information subject to signing an extension of the 150-day time limit for review of Aj public hearing is held on appeals subject to the appellant paying a $250.00: fee. Appeals must be in writing (form available from thel Planning Division) and received in thel Marion County Planning Division, 5155 Silverton Rd. NE, Salem by 5:00 p.m. on December 4, 2023. Ifyoul have questions about this decision, contact the Planning Division at (503): 588-5038 or at the office. This decision is effective December 5,2023, unless appealed. FINDINGS AND CONCLUSIONS: Findings and conclusions on which the decision was based are noted below. The subject property is designated Forest int the Marion County Comprehensive Plan and is correspondingly zoned' TC (Timber Conservation). Thej primary intent ofboth this designation and: zone is to conserve forest lands Tax lots 300 and 500 are located approximately 1.25 miles south from the intersection of Abiqua Spring Lnl NE Surrounding properties are also zoned' TC with the majority being medium to large sized, undeveloped parcels. There are a few small parcels to the south/southeast and al handful ofhomesites throughout the area. The applicant is requesting ai review to determine how many legal lots exist within the bounds of tax lots 300 and 500. Per] Marion County Code 17.115, aj proposed use, structure, or the legality ofa lot or parcel may be reviewed as an administrative review when it requires an interpretation or the exercise of factual, policy, or legal "The decision shall bei made on the basis oft the comprehensive, plan and applicable. standards and criteria in this title. The director or designee may attach any conditions ofapproval deemednecessary to ensure conformance of  other permits or satisfying restrictions or conditions thereon.  zoning applications.  1. 2. 3. 4.  by maintaining the forest land base and to protect the forest economy.  and Abiqua Rd NE. Abiqua Rdl NE runs through them, and they are both bare land.  judgement. Section 17.115.110(A): states:    the use, structure, lot or parcel or to the. standards or criteria. Administrative: review applications may bej filed and: shall be signed as required in MCCI 17.119.020and. 17.119.025.. Notwithstanding any other provisions oft this title, the director or designee may forward any land use permit or application to the planning commission or  hearings officerf forap public hearing and initial decision. " Marion County Code 17.110.427 defines al legal parcel as:  5.  "Parcel" means a unit ofl land created by a partitioning as defined in ORS 92.010 in compliance with all applicable zoning and! partitioning code provisions contained in Chapter 17.172 MCC, or created by deed or land sales contract prior to September. 1, 1977, excluding units of land created solely to establish a separate tax Various agencies were contacted about the proposal and given an opportunity to comment. All contacted agencies either failed to comment or stated no concern with/objection to thej proposal. The applicant provided recent and historical deeds. Based on MCC17.110.427 Staff looks for the deed closest, but prior to, September 1, 1977. Thel legal description in this deed determines the original legal lot(s). Stafft then checks for any changes that may have happened between then and the present day. Ifthere were any alterations in the legal lot(s) Staff will research to discover how and when the changes were: made. Based on this information Reel 10 Page 694, recorded! March 11, 1975, was the deed that Staff found closest, but prior to, September 1, 1977. Iti references al legal description used in a contract sale from Vol. 728 Page 450. This legal description was Vol. 762 Page 113, recorded on October 2, 1973, was reviewed next. This contract sale was for tax lot 600. Therefore, tax lots 300 and 500 are the remnant parcel, as tax lot 600 was conveyed out oft the larger parcel and Court of Appeals of Oregon case Lovinger V. Lane County, 138 P.3d 51 (Or. Ct.. App. 2006) affirmed LUBA case No. 2005-098 in determining when a road divides land creating separate legal lots, and when they do not. Abiqua Rd) NE (County Road' 779) was established prior to 19661 based on recorded surveys and aerial imagery. To the best of Staff's knowledge, it was not created via fee-title conveyance. Based on this, the road did not divide the No changes have been made to the parcel since Reel 101 Page 694, therefore, tax lots 300 and 5001 represent one Based on the above: findings, it has been determined that tax lots 300 and 500 constitute as single LEGAL: lot.  account.  6. 7.  Staff will ascertain the current legal lots. Using this process Staff found the following:  of one parcel that encompassed tax lots 300, 500.  described separately prior to Reel 10 Page 6941 being recorded.  legal lot established in Reel 101 Page 694. parcel ofl land that was lawfully established.  8. Brandon Reich  Date: November 17, 2023  Planning Director/Zoning Administrator  Ifyou have any questions regarding this decision, contact Nicole Inman at (503),588-5038.  Notice to Mortgagee, Lienholder, Vendor or Seller: ORS Chapter 2151 requires that ify your receive this Notice, it must  promptly bei forwarded tot thej purchaser.    BEFORE THEI MARION COUNTY HEARINGS OFFICER  In the Matter oft the Application of: Prohar and Evdokia Bodunov  ) )  Case No. AR: 23-033 ADMINISTRATIVE REVIEW  ORDER  I. Nature of the Application  This matter came before the Marion County Hearings Officer on the Application of Prohar and Evdokia Bodunov for an administrative review to determine the number of legal lots on a tract of approximately 26.65-acres in an TC (Timber Conservation) zone located in the  21000 block of Abiqua Rdi NE (T7S; RIE; Section 13D, Tax lots 300 & 500).  II. Relevant Criteria  The standards and criteria relevant to this application are found in the Marion County  Code, Chapter 17, particularly MCC 17.110 and MCC 17.115.  III. Hearing  A public hearing was held on the application on January 4, 2024. At the hearing the Planning Division file was made a part of the record. The following persons appeared and  provided testimony: 1. 2. 3.  Nicole Inman Donald E. Kelley Austin Barnes  Marion County Planning Division Attorney for Applicants Marion County Planning Division.  No objections were raised to notice, jurisdiction. conflict ofinterest, exhibits, evidence or testimony presented at the hearing. Additional submissions were included in the record and  marked as Exhibit 1:  Exhibit 1: Index of Deeds and Copies of Deeds. The deeds submitted as Exhibit 1 are already in the record, but the copies of the decds presented as Exhibit 1 are more legible than  the copies oft the deeds included in the Planning file.  IV. Executive Summary  Applicants request administrative review to determine the number of legal lots on a tract of approximately 26.65-acres in a Timber Conservation zone located in the 21000 block of  Abiqua Rd. NE.  AR 23-033 - ORDER Bodunov Page 1  Strnned 278/24 6R    The Applicants state that the two parcels (Tax Lots 300 and 500) were considered separate lots ofr record in a 1964 Deed. The two parcels were described in metes and bounds and were recorded. On this basis, Applicants argues that Tax Lot 300 and 500 are separate lots of  record.  Marion County Planning states that a 1975 Deed combined the two previous lots into a consolidated parcel. The 1975 deed referenced a recorded Contract of Sale for its legal description. The metes and bounds legal description in both a 1972 deed and a 1975 deed match the current legal description in the current vesting deed. Marion County's position is that there cannot be multiple lots of record, and only the one consolidated lot of record has been used and  recorded since land use regulations.  Applicants respond that the fact that the two parcels have been recorded as a single lot of record in 1974 does not strip the parcels of their status as lots of record. Marion County responds that the Applicants' interpretation would result in the existence of multiple lots of  record.  Because Tax Lot 300 and Tax Lot 500 have been described in metes and bounds as a single parcel and the single parcel has been recorded in contracts, assignments, and deeds, it is  determined that Tax Lots 300 and 500 constitute a single legal lot ofrecord.  V. Findings of Fact  The Hearings Officer, after careful consideration of the testimony and evidence in the 1. The subject property is designated Forest in the Marion County Comprehensive Plan and is correspondingly zoned TC (Timber Conservation). The primary intent of both this designation and zone is to conserve forest lands by maintaining the forest land base and The subject property includes Tax Lots 300 and and Tax Lot 500 and is located approximately 1.25 miles south from the intersection of Abiqua Spring Ln NE and Both Tax Lot 300 and Tax Lot 500 are both bare land and have not been the subject of Surrounding properties are also zoned TC with the majority being medium to large sized, undeveloped parcels. There are a few small parcels to the south/southeast and several Marion County Planning stated that although Tax Lots 300 and 500 may have been individual parcels in a 1964 deed, property owners took actions through contracts, assignments, and deeds to combine the parcels into one legal lot that has been used as the  record, issues the following findings of fact:  to protect the forest economy.  2.  Abiqua Rd NE. Abiqua Rd NE runs through the parcels.  3. 4.  any land use actions.  homesites throughout the area.  5.  legal description for Tax Lots 300 and 500 as a single legal lot.  AR 23-033- -( ORDER Bodunov Page 2    6. Donald Kelley, attorney for Prohar and Evdokia Bodenov, presented the Applicants' position. Mr. Kelley stated that the parcels were split and were two separate lots in 1964 (lots that also included additional real property). Mr. Kelley argues on behalf of the Applicants that a "lot ofrecord" cannot lose its status as a legal lot by being combined in a deed or land sale contract absent a clear intention to vacate the status of the lots. Applicants' argue that their position is supported by state law which provides that a lawfully created lot or parcel remains a discrete lot or parcel unless the lot or parcel lines are vacated or the lot or parcel is further divided as provided by law. ORS92.017(1). 7. The Planning Division posits that there cannot be multiple lots of record, and in this case, 8. The Planning Division requested comments from various governmental agencies. All contacted agencies either failed to comment or stated no concern with/objection to the  only one has been used since land use regulations.  proposal.  VI. Additional Finding of Fact and Conclusions ofLaw  1. Applicants have the burden of proving by aj ponderance of the evidence that all applicable standards and criteria are met as explained in Riley Hill General Contractor, Inc. V. Preponderance of the evidence" means the greater weight of evidence. It is such evidence that when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If, upon any question in the case, the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that question against the party upon whom the burden of proof rests. (Citation Applicants must prove, by substantial evidence in the record, it is more likely than not that each criterion is met. If the evidence for any criterion is equal or less, Applicants have not met their burden and the application must be denied. If the evidence for every criterion there's a hair or breath in Applicants' favor the burden of proof is met and the Pursuant to MCC 17.115.010. the Planning Director is authorized to issue determinations or administrative reviews regarding conformance of existing or proposed uses on a particular lot or parcel within the requirements of this title, including determinations or administrative review relating to non-conforming uses as provided in Chapter 17.110 An administrative review is a written determination that requires an interpretation or the exercise of factual, policy, or legal judgment, and is considered a land use decision and is  Tandy Corporation, 3030:390394.3950987.  omitted).  application is approved.  2.  MCC, subject to the requirements oft this chapter.  3.  issued as a land use decision.  AR 23-033. - ORDER Bodunov Page 3    4. The Applicants seek a determination of how many legal lots exist within the bounds of tax lots 300 and 500. Per Marion County Code 17.115, a proposed use, structure, or the legality of a lot or parcel may be reviewed as an administrative review when it requires an interpretation or the exercise of factual, policy, or legal judgment. This decision is MCC 17.115.110 provides that when a determination about a proposed use, structure or the legality of a parcel cannot be made without interpretation or the exercise of factual, policy or legal judgment, the proposes use, structure, or the legality ofal lot or parcel may be reviewed as an administrative review subject to submitted of an application as  issued as al land use decision.  5.  provided in MCC17.119.020 and 17.119.025.  6. MCC17.115.110 (A) states:  "The decision shall be made on the basis of the comprehensive plan and applicable standards and criteria in this title. The director or designee may attach any conditions of approval deemed necessary 10 ensure conformance of the use, structure, lot or parcel or to the standards or criteria. Administrative review applications may be filed and shall be signed as required in MCC17.119.020 andi 17.119.025. Notwithstanding any other provisions of this title, the director or designee may. forward any land use permit or application to the planning commission or hearings officer for a public hearing and 7. In its Notice of Decision issued on November 17, 2023, the Director determined that Tax  initial decision. "  Lots 300 and 500 constitute a single legal lot.  8. 9.  MCC 17.115.110(C) allows an application to file a request for hearing to the planning On November 27, 2023, within 15 days of the date the decision was received, submitted an Appeal oft the Planning Division decision. The Applicants' appeal is timely. 10. On request for a hearing, the hearings officer shall hold a hearing on the matter in accordance with MCC 17.111. The hearings officer may hold a hearing and issue a  division within 15 days of the date the decision was received.  determination on this matter.  Lot, LotofRecord, and Parcel  11. MCC 17.110.315 defines a "Lot" as a unit of land created by a subdivision as defined in ORS 92.010 in compliance with all applicable zoning and subdivision ordinances; or created by deed or land sale contract prior to September 1, 1977, exclusive of units of  land created solely to establish a separate tax account.  AR: 23-033. -ORDER Bodunov Page 4    12. MCC 17.110.360 defines a "lot of record" as a lot which is part of a subdivision or a lot or parcel described by metes and bounds which has been recorded in the office of the county recorder and which complied with all applicable laws at the time ofits recording. 13. MCC 17.114.040 defines a "nonconforming lot of record" as any lot created by deed, plat or subdivision prior to September 1, 1977, is considered legally created for the purposes  ofapplying the land use code.  14. Marion County Code 17.110.427 defines al legal parcel as:  "Parcel" means a unil of land created by a partitioning as defined in ORS92.010 I in compliance with all applicable zoning and partitioning code provisions contained in Chapter 17.172. MCC, or created by deed or land sales contract prior 10 September 1, 1977, excluding units of land crealed. solely 10 establish a separate tax account. 15. Based upon MCC 17.110.427, Marion County Planning looks to the deed closest in time, but prior to September 1, 1977. Planning reviews the legal description in the deed that is closest to but prior to September 1, 1977 to determine the original legal lot. Planning then reviews for any changes that occurred between the date of the deed and present day (by deed or land use action). Based upon this information, Marion County Planning 16. Applicants state that MCC 17.110.360 defines a lot of record and that Tax Lot 300 and Tax Lot 500 satisfy that definition because Tax Lots 300 and 500 were described in metes and bounds, which were recorded in the office of the county recorder, and complied with the applicable laws at the time of recording. Applicants argues that the mere fact that a recorded contract later described the Tax Lot 300 and Tax Lot 500 with a single legal description does not alter their status as a "lot of record." Applicants argue that state law allows a lawfully created lot to remain a discrete lot or parcel unless the lot or parcel lines are vacated or the lot or parcel is further divided as provided by law. ORS 92.017(1) provides that a lawfully created lot or parcel remains a discrete lot or parcel unless the lot or parcel lines are vacated or the lot or parcel is further divided as provided by law. Marion County Code does not include an analogous provision.  ascertains the current legal lots.  17. Applicants provided historical and recent deeds and contracts for review with the  Application. Exhibit 1 also includes the deeds and contracts with more legible copies of April 27,1964 Deed: Warranty Deed recorded at Volume 585, Page 269: The legal description in the warranty deed included Parcel 1 and Parcel 2 with separate and individual metes and bounds. Parcel 1 included Tax Lot 200, 300, and aj portion of Tax Lot 400. Parcel 2 included Tax Lots 500, 600, 700, and 800. The "save and except"  the documents. The documents considered are:  AR: 23-033 - ORDER Bodunov Page 5    for Parcel 2 incorrectly describes aj portion ofTax Lot 400 and should have been attached The 1964 Warranty Deed does describe Tax Lots 300 and 500 as portions of separate  tol Parcel 1. legal lots.  Tax Lots 300 and 500 were considered separate legal lots in 1964.  November 3. 1967 Contract: Land Sale Contract recorded at Volume 638, Page 731: The legal description for the property conveyed pursuant to the Land Sale Contract included single metes and bounds encompassing Tax Lots 200, 700, and 800. June 13.1972 Contract: Land Sale Contract recorded at Volume 728, Page 450: The legal description for the property being conveyed included single metes and bounds encompassing Tax Lots 300, 500, 600, and aj portion ofTax Lot 400, save and except a August 15.1972: Assignment of Contract references Volume 728, Page 450: The assignment assigned the land sale contract for Tax Lots 300, 500, and 600. October 2. 1973: Contract for the Sale of Property recorded at Volume 762, Page 113: The legal description for the property was a single metes and bounds description for Tax Lot 600. Tax Lot 600 was conveyed by the contract for sale, and therefore, Tax Lot 300 and Tax Lot 500 are the remnant parcel. Tax Lot 600 was conveyed out oft the larger parcel, separately described, and Tax Lots 300 and 500 were one parcel. This contract sale was for tax lot 600. Therefore, Tax Lots 300 and 500 are the remnant parcel, as tax lot 600 was conveyed out of the larger parcel and described separately prior  portion ofTax Lot 400.  tol Reel 10 Page 694 being recorded.  June 20. 1974: Land Sale Contract recorded at Volume 780, Page 741: Thel legal description for the property conveyed pursuant to the Land Sale Contract included a single mete and bounds description that included Tax Lots 300, 500, and 600, and a portion ofTax Lot 400, save and except a portion ofTax Lot 400 and save and The 1974. Land Sale Contract created a unit ofl land by land sale contract prior to March 11.1975: Assignment of Contract recorded at Reel 10, Page 694: The assignment assigned the Land Sale Contract for Tax Lots 300 and 500. Reel 10 Page 694, recorded March 11, 1975, was the deed that Staff found closest, but prior to, September 1, 1977. Itreferences a legal description used in a contract sale from Vol. 728 Page 450. This legal description was ofo one parcel that encompassed Tax Lots 300 and  except Tax Lot 600. September 1,1 1977.  500. AR: 23-033 - ORDER Bodunov Page 6    August 24, 2021: Warranty Deed recorded at Reel 4530, Page 473:  The Warranty Deed conveyed Tax Lots 300 and 500 with a legal description consisting ofas single mete and bounds description that included Tax Lot 300 and Tax Lot 500, along with Tax Lot 600 and aj portion ofTax Lot 400, and save and except Tax Lot 600 This legal description is the same as the legal description provided in the Contract Sale The last legal description in a recorded document prior to September 1, 1977 describes Tax Lot 300 and' Tax Lot 500 as a single legal lot. The most reçent recording also describes Tax Lot 300 and Tax Lot 500 as a single legal lot. Since land use regulation in Marion County, the two tax lots havel been conveyed as one lot. Pursuant to Marion County Code 17.110.427, Tax Lots 300 and 500 are a single legal lot because it was defined as suchl by deed and land sales contract prior to September 1, 1977, and remains 18. Marion County Code does not include a provision that requires a lot or parcel line be affirmatively vacated to remain a discrete lot or parcel as ORS 92.017(1) requires. 19. In Thomas V. Wasco County (LUBA 2008-206), the Board considered a Wasco County Zoning Ordinance that consolidated certain nonconforming contiguous legal lots and parcels for development purposes. The Board referenced that in Kishpaugh V. Clackamas County (24 LUBA 164 (1992), the Board held that a county land use regulation that for development purposes required combination ofs substandard lots under the same ownership was not inconsistent with ORS 92.017. In Kishpaugh, the Board concluded that nothing in either the text of ORS 92.017 or its legislative history suggests that all lawfully created lots and parcels must be recognized by local governments as being separately developable. ORS 92.017 is intended to preserve discrete lots and prevent local governments from refusing to recognize lawful divisions ofland such that lots and parcels could not be sold to third parties. The Board also referenced Campbell V. Multnomah County, 251 LUBA 479 (1993) which held that ORS 92.017 does not preclude alocal government from imposing zoning or other restrictions with directly ori indirectly require that two or more lawfully created lots be combined for purposes of development. 20. In this case, a land sale contract and subsequent deeds treat the two tax lots as one legal parcel. The last legal description for the subject property in ai recorded document prior to September 1, 1977 describes Tax Lot 300 and Tax Lot 500 as a single legal lot. The most recent recording also describes Tax Lot: 300 and Tax Lot 500 as a single legal lot. Since land use regulation in Marion County, the two tax lots have been conveyed as one lot. 21. Pursuant to Marion County Code 17.110.427, Tax Lots 300 and 500 are a single legal lot because it was defined as such by deed and land sales contract prior to September 1, 1977, and remains as a single lot through the last recorded deed in 2021. No changes have been made to the parcel since Reel 10 Page 694. Nothing in ORS 92.017 prohibits the lots from being consolidated by Deed under the Marion County Code.  and the portion ofTax Lot 400.  recorded on June 20, 1974 at Volume 780, Page 741.  as a single lot through the last recorded deed in 2021.  AR 23-033- - ORDER Bodunov Page 7    VII. Order  Because Tax Lot 300 and Tax Lot 500 have been described in metes and bounds as a single parcel and the single parcel has been recorded in contracts, assignments, and deeds, iti is  determined that Tax Lots 300 and 500 constitute a single legal lot ofr record.  Iti isl hereby determined that Tax Lots 300 and 500 represent one parcel ofl land that was  lawfully established inl Marion County.  VIII. Appeal Rights  An appeal of this decision may be taken by anyone aggrieved or affected by this Order. An appeal must be filed with the Marion County Clerk (555 Court St. NE, Suite 2130, Salem, The appeal must be in writing, must be filed in duplicate, must be accompanied by a payment of $500, and must state wherein this order fails to conform to the provisions of the applicable ordinance. Ifthe Board denies the appeal, $300 ofthe appeal fee will be returned. DATED at Salem, Oregon this 8hh day ofF February, 2024.  Oregon by 5:00 p.m. on the  day of February, 2024 (15 days after the date of the Order).  guffets) Marion County Hearings Officer  JiVF. Foster  AR 23-033 -( ORDER Bodunov Page 8    CERTIFICATE OF MAILING  Ihereby certify that Is served the foregoing order on the following persons:  Prohar Bodunov 29865 S. Jackson Rd. Canby, OR97013 Don Kelley 110N2 2nd Street Silverton, OR 97381 Area Advisory Committee #7: Dawn Olson 15056 Quall Rd Silverton, OR 97381 James Sinn (via email) lisinn@gmail.com Roger Kaye Friends ofMarion County P.O. Box 3274 Salem, ORS 97302 10001 Friends of Oregon PO Box 40367 Portland, OR 97240 (via email)  Surveyor's Office (via email) KIman@eomarionorus Fire District:  Silverton Fire District (via email) bilmleslveronfr-con Planning Division (via email) breichcomarion.orus hames@comarionorus ANajera5anchezceZQco.marionor.us Building Inspection (via email) pwolterman@co.marion.or.us kadich@co.maronors Abamme@co.maronors CTateco.marionor.us Building Inspection Septic (via email: AmEpcAerORcAt, (via email: Kdreh2comerbnorw, Public Works LDEP Section (via email) namseecomaronors melep@co.maronorus Shamehanero.maronors School District: Silver Falls (via email) Nielsen v@slveralkki2orus Code Enforcement (via email) cotin@comaronorus Haylor@comaronorus saballeoomarionors  Pudding River Watershed Council anna@puddingriverwatershed.org cleanpuddingriver@gmail.com County Agencies Notified: Assessor's Office (via email) sessor@comaronorus Tax Collector (via email) Ewcsmer@comaronorus MMeleyQcomariononus ADhalon@comaronoris  Page 1- Certificate of Mailing (AR 23-033)    State Agencies Notified: DLCD (via email) hlar.looie@staleorus  By mailing to them copies thereof. I further certify that said copies were placed in sealed envelopes addressed as noted above, that said copies were deposited in the United States Post  Office at Salem, Oregon, on the B4h  day ofFebruary, 2024 and that the postage thereon  was prepaid.  KML A Administrative Assistant to the Hearings Officer  Page 2- Certificate of Mailing (AR: 23-033)