Bill Text: OR HB3386 | 2011 | Regular Session | Engrossed

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Bill Title: Relating to transfer of property noted on plat.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB3386 Detail]

Download: Oregon-2011-HB3386-Engrossed.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 2930

                           A-Engrossed

                         House Bill 3386
                  Ordered by the House March 29
            Including House Amendments dated March 29

Sponsored by Representative KENNEMER (at the request of Oregon
  Association of County Engineers and Surveyors)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.

  Modifies provisions authorizing dedication, conveyance or grant
of property in subdivision or partition process.

                        A BILL FOR AN ACT
Relating to transfer of property noted on plat; amending ORS
  92.010, 92.012, 92.014, 92.050, 92.070, 92.075, 92.150, 92.190,
  92.192, 215.010, 223.317 and 545.101.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 92.010 is amended to read:
  92.010. As used in ORS 92.010 to 92.192, unless the context
requires otherwise:
  (1) 'Declarant' means the person who files a declaration under
ORS 92.075.
  (2) 'Declaration' means the instrument described in ORS 92.075
by which the subdivision or partition plat was created.
  (3)(a) 'Lawfully established unit of land' means:
  (A) A lot or parcel created pursuant to ORS 92.010 to 92.192;
or
  (B) Another unit of land created:
  (i) In compliance with all applicable planning, zoning and
subdivision or partition ordinances and regulations; or
  (ii) By deed or land sales contract, if there were no
applicable planning, zoning or subdivision or partition
ordinances or regulations.
  (b) 'Lawfully established unit of land' does not mean a unit of
land created solely to establish a separate tax account.
  (4) 'Lot' means a single unit of land that is created by a
subdivision of land.
  (5) 'Negotiate' means any activity preliminary to the execution
of a binding agreement for the sale of land in a subdivision or
partition, including but not limited to advertising, solicitation
and promotion of the sale of such land.
  (6) 'Parcel' means a single unit of land that is created by a
partition of land.
  (7) 'Partition' means either an act of partitioning land or an
area   { - or tract - }  of land partitioned.

  (8) 'Partition plat' includes a final map and other writing
containing all the descriptions, locations, specifications,
provisions and information concerning a partition.
  (9) 'Partitioning land' means dividing land to create not more
than three parcels of land within a calendar year, but does not
include:
  (a) Dividing land as a result of a lien foreclosure,
foreclosure of a recorded contract for the sale of real property
or the creation of cemetery lots;
  (b) Adjusting a property line as property line adjustment is
defined in this section;
  (c) Dividing land as a result of the recording of a subdivision
or condominium plat;
  (d) Selling or granting by a person to a public agency or
public body of property for state highway, county road, city
street or other right of way purposes if the 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
sold or granted for state highway, county road, city street or
other right of way purposes shall continue to be considered a
single unit of land until the property is further subdivided or
partitioned; or
  (e) Selling or granting by a public agency or public body of
excess property resulting from the acquisition of land by the
state, a political subdivision or special district for highways,
county roads, city streets or other right of way purposes when
the sale or grant is part of a property line adjustment
incorporating the excess right of way into adjacent property. The
property line adjustment shall be approved or disapproved by the
applicable local government. If the property line adjustment is
approved, it shall be recorded in the deed records of the county
where the property is located.
  (10) 'Plat' includes a final subdivision plat, replat or
partition plat.
  (11) 'Property line' means the division line between two units
of land.
  (12) 'Property line adjustment' means a relocation or
elimination of all or a portion of the common property line
between abutting properties that does not create an additional
lot or parcel.
  (13) 'Replat' means the act of platting the lots, parcels and
easements in a recorded 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.
  (14) '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  { - , - }   { + or + } areas   { - or tracts - }
of land, excluding a private way that is created to provide
ingress or egress to such land in conjunction with the use of
such land for forestry, mining or agricultural purposes.
  (15) 'Sale' or 'sell' includes every disposition or transfer of
land or an interest or estate therein.
  (16) 'Subdivide land' means to divide land to create four or
more lots within a calendar year.
  (17) 'Subdivision' means either an act of subdividing land or
an area   { - or a tract - }  of land subdivided.
  (18) 'Subdivision plat' includes a final map and other writing
containing all the descriptions, locations, specifications,
dedications, provisions and information concerning a subdivision.
   { +  (19) 'Tract' means a unit of land, created by
subdivision, partition or submission of land to the condominium
form of ownership, that:
  (a) May be used for purposes such as open spaces, wetlands,
private roads, utility infrastructure, recreational facilities or
other shared public or private uses; and

  (b) May not be used for purposes such as residential dwellings
or commercial buildings. + }
    { - (19) - }   { + (20) + } 'Utility easement' means an
easement noted on a subdivision plat or partition plat for the
purpose of installing or maintaining public or private utility
infrastructure for the provision of water, power, heat or
telecommunications to the public.
  SECTION 2. ORS 92.012 is amended to read:
  92.012.  { + (1) + }   { - No - }  Land may  { + not + } be
subdivided or partitioned except in accordance with ORS 92.010 to
92.192.
   { +  (2) In addition to creating lots by subdivision and
parcels by partition, a city or county may create one or more
tracts when subdividing or partitioning land. + }
  SECTION 3. ORS 92.050 is amended to read:
  92.050. (1) A person   { - shall - }   { + may + } not submit a
plat of a subdivision or partition for record  { - , - }  until
all the requirements of ORS 209.250 and the plat requirements of
the subdivision or partition have been met.
  (2) The survey for the plat of the subdivision or partition
shall be done in a manner to achieve sufficient accuracy that
measurements may be taken between monuments within one-tenth of a
foot or one ten-thousandth of the distance shown on the
subdivision or partition plat, whichever is greater.
  (3) The survey and plat of the subdivision or partition shall
be made by a registered professional land surveyor.
  (4) The plat of the subdivision or partition shall be of
sufficient scale and lettering size, approved by the county
surveyor, so that:
  (a) The survey and mathematical information and all other
details are clearly and legibly shown on the plat.
  (b) Each lot or parcel is numbered consecutively.
  (c) The lengths and courses of the boundaries of each lot or
parcel are shown on the plat.
  (d) Each street is named and shown on the plat.
  (5) The locations and descriptions of all monuments found or
set must be carefully recorded upon all plats and the proper
courses and distances of all boundary lines, conforming to the
surveyor's certificate, must be shown.
  (6) The location, dimensions and purpose of all recorded and
proposed public and private easements must be shown on the
subdivision or partition plat   { - along with the county clerk's
recording reference if the easement has been recorded by the
county clerk. Private - }  { + . If the easement has been
recorded, the recording index numbers and the date of recording
must be noted on the final plat. + } Easements become effective
upon the recording of the plat.
  (7) The area of each lot or parcel must be shown on the
subdivision or partition plat.
  (8) In addition to showing bearings in degrees, minutes and
seconds and distances in feet and hundredths of a foot, the
following curve information must be shown on the subdivision or
partition plat either on the face of the map or in a separate
table:
  (a) Arc length;
  (b) Chord length;
  (c) Chord bearing;
  (d) Radius; and
  (e) Central angle.
  (9) A city or county may not require that a final subdivision,
condominium or partition plat show graphically or by notation on
the final plat any information or requirement that is or may be
subject to administrative change or variance by a city or county
or any other information unless authorized by the county
surveyor.
  SECTION 4. ORS 92.075 is amended to read:
  92.075. (1) In order to subdivide or partition any property,
the declarant shall include on the face of the subdivision or
partition plat  { - , if a partition plat is required, - }  a
declaration, taken before a notary public or other person
authorized by law to administer oaths, stating that the declarant
has caused the subdivision or partition plat to be prepared and
the property  { + to be + } subdivided or partitioned   { - in
accordance with the provisions of this chapter. Any dedication of
land to public purposes or any public or private easements
created, or any other restriction made, shall be stated in the
declaration. - }  { +  as provided in this chapter.
  (2) A dedication of land to a public purpose must be stated in
the declaration. A declaration may:
  (a) Grant public or private easements shown on the plat under
ORS 92.050.
  (b) Impose restrictions.
  (3) A dedication of land for a public purpose or a public
easement:
  (a) If conveyed or granted to the city or county with
jurisdiction over the division of land, may be accomplished by
notation on the plat; or
  (b) If conveyed or granted to another public body or a private
party, must be accomplished by a separate deed. The deed must be
recorded simultaneously with the plat and the plat must contain
the recording index number of the separate deed. + }
    { - (2) - }   { + (4) + } If the declarant is not the fee
owner of the property, the fee owner and the vendor under any
instrument of sale shall also execute the declaration for the
purpose of consenting to the   { - property being subdivided or
partitioned - }  { +  subdivision or partition of the property
and to a dedication, grant or conveyance of the property in the
declaration + }.
    { - (3) - }   { + (5) + } If the subdivision or partition
plat contains any dedication or donation of land   { - to public
purposes - }  { +  for the purpose of a public right of way and
the fee owner of the property has granted a security interest in
the property + }, the holder of any mortgage or trust deed shall
also execute the declaration for the purpose of consenting to the
 { + subdivision or partition of the + } property   { - being
submitted to the provisions of this chapter - } .
    { - (4) - }   { + (6) + } Notwithstanding the provisions of
subsections (1) to   { - (3) - }   { + (5) + } of this section,
the fee owner, vendor or   { - the - } mortgage or trust deed
holder may record an affidavit consenting to the  { + subdivision
or partition of the property under the + } declaration   { - of
property being subdivided or partitioned and to any dedication or
donation of property to public purposes. The affidavit must
indicate the recorded document by which the interest in the
property was acquired and all information required by ORS 93.410
to 93.530 and must be recorded in deed records at the same time
as the subdivision or partition plat. - }   { + and to a
dedication, grant or conveyance of the property in the
declaration. + } The county clerk shall note the recording
information of the affidavit on the original and any exact copies
of the subdivision or partition plat. { +  The affidavit must:
  (a) Indicate the recorded document, including the recording
index numbers and the date of recording, by which the interest in
the property was acquired by the fee owner, the vendor or the
holder of the mortgage or trust deed;
  (b) Comply with ORS 93.410 to 93.530; and
  (c) Be recorded in deed records at the same time as the
subdivision or partition plat. + }
  SECTION 5. ORS 92.150 is amended to read:
  92.150.   { - Every donation or grant to the public, including
streets and alleys, or to any individual, religious society,
corporation or body politic, marked or noted as such on the
subdivision or partition plat wherein the donation or grant was
made, shall be considered a general warranty to the donee or
grantee for the use of the donee or grantee for the purposes
intended by the donor or grantor. - }   { + Every dedication,
conveyance or grant for a public purpose that is marked or noted
on a subdivision or partition plat and made to the city or county
with jurisdiction over the division of land is deemed to provide
a general warranty of the property to the city or county. + }
  SECTION 6. ORS 92.014 is amended to read:
  92.014. (1) A person may not create a street or road for the
purpose of subdividing or 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
subdivided or partitioned.
  (2) Notwithstanding ORS 92.175, an instrument dedicating land
to public use may not be accepted for recording in this state
unless the instrument bears the approval of the city or county
authorized by law to accept the dedication.
  SECTION 7. ORS 92.070 is amended to read:
  92.070. (1) Except as otherwise provided in this section, a
subdivision or partition plat designating the location of land in
a county in the State of Oregon, offered for record, must include
on the face of the plat a surveyor's certificate, together with
the seal and signature of the surveyor having surveyed the land
represented on the plat, to the effect that the surveyor has
correctly surveyed and marked with proper monuments the lands as
represented and has placed a proper monument as provided in ORS
92.060 indicating the initial point of the plat and its location
in accordance with ORS 92.060 (1) and accurately describing by
metes or bounds, or other description as approved by the county
surveyor, the   { - tract of - }  land upon which the lots and
blocks or parcels are laid out.
  (2) If the person subdividing any land has complied with ORS
92.065 (1), the surveyor may prepare the plat of the subdivision
for recording with only the exterior monuments referenced on the
subdivision plat as submitted for recording. The subdivision plat
shall include a certification of the surveyor that the remaining
corners for the subdivision will be monumented on or before a
specified date in accordance with ORS 92.060, noting those
monuments to be set on or before said specified date on the
subdivision plat as approved by the city or county.
  (3) After the remaining corners for a subdivision have been
monumented as provided in the certificate submitted under
subsection (2) of this section, the surveyor performing the work
shall:
  (a) Within five days after completion of the work, notify the
person subdividing the land involved and the county surveyor by
whom the subdivision was approved; and
  (b) Upon approval of the work under ORS 92.100 by the county
surveyor, submit an affidavit for recording stating that the
subdivision plat has been correctly surveyed and marked with
proper monuments at the remaining corners of the subdivisions as
noted on the original subdivision plat. Any monument that cannot
be set shall be separately noted and a reference monument shall
be set. The affidavit shall be approved by the county surveyor
before recording. The surveyor who prepared the affidavit shall
cause the affidavit to be recorded in the office of the county
recorder where the subdivision plat is recorded. The county clerk
shall promptly provide a recorded copy of the affidavit to the
county surveyor. The county surveyor shall note the monuments set
and the recorder's information on the county surveyor's copy of
the subdivision plat and any exact copies filed in accordance
with ORS 92.120 (3). The original plat may not be corrected or
changed after it is recorded with the county clerk.
  (4) The county surveyor approving the work pursuant to
subsection (3) of this section shall reference the approval upon
the subdivision plat and tracings previously recorded. A city
surveyor approving the work under ORS 92.100 (1) shall reference
that surveyor's approval on the affidavit required under this
section prior to approval by the county surveyor.
  (5) Notwithstanding ORS 209.250, the surveyor who prepared the
subdivision or partition plat may reestablish plat monuments
within two years of plat recordation without filing a map of the
survey as required under ORS 209.250. The surveyor reestablishing
any plat monuments shall prepare an affidavit stating that the
reestablished corners of the subdivision or partition plat have
been correctly surveyed and marked with proper monuments as
required under ORS 92.060. The affidavit shall be approved by the
county surveyor prior to recordation of the affidavit with the
county clerk. The surveyor who prepared the affidavit shall file
the affidavit with the county clerk for the county where the
subdivision or partition plat is recorded. The county clerk shall
promptly provide a certified copy of the recorded affidavit to
the surveyor. The county surveyor shall indicate the
reestablished monuments on the county surveyor's copy of the plat
of the subdivision or partition and any copies of the plat filed
under ORS 92.120 (3). The original plat may not be corrected or
changed after it is recorded with the county clerk. The county
shall charge a fee for recording the affidavit in the county
clerk's office and the county surveyor's office. The fee shall be
established by the governing body of the county and shall be paid
to the county surveyor.
  SECTION 8. ORS 92.190 is amended to read:
  92.190. (1) The replat of a portion of a recorded plat shall
not act to vacate any recorded covenants or restrictions.
  (2) Nothing in ORS 92.180 to 92.190 is intended to prevent the
operation of vacation actions by statutes in ORS chapter 271 or
368.
  (3) The governing body of a city or county may use procedures
other than replatting procedures in ORS 92.180 and 92.185 to
  { - adjust property lines as described in ORS 92.010 (12), as
long as those procedures include - }   { + make a property line
adjustment if the procedures require + } the recording, with the
county clerk, of conveyances conforming to the approved property
line adjustment as surveyed in accordance with ORS 92.060 (7).
  (4) A property line adjustment deed shall contain the names of
the parties, the description of the adjusted line, references to
original recorded documents and signatures of all parties with
proper acknowledgment.
  SECTION 9. ORS 92.192 is amended to read:
  92.192. (1) Except as provided in this section, a unit of land
that is reduced in size by a property line adjustment approved by
a city or county must comply with applicable zoning ordinances
after the adjustment.
  (2) Subject to subsection (3) of this section, for properties
located entirely outside the corporate limits of a city, a county
may approve a property line adjustment in which:
  (a) One or both of the abutting properties are smaller than the
minimum lot or parcel size for the applicable zone before the
property line adjustment and, after the adjustment, one is as
large as or larger than the minimum lot or parcel size for the
applicable zone; or
  (b) Both abutting properties are smaller than the minimum lot
or parcel size for the applicable zone before and after the
property line adjustment.
  (3) On land zoned for exclusive farm use, forest use or mixed
farm and forest use, a property line adjustment under subsection
(2) of this section may not be used to:
  (a) Decrease the size of a lot or parcel that, before the
relocation or elimination of the common property line, is smaller
than the minimum lot or parcel size for the applicable zone and
contains an existing dwelling or is approved for the construction
of a dwelling, if the abutting vacant   { - tract - }   { + lot
or parcel + } would be increased to a size as large as or larger
than the minimum
  { - tract - }   { + lot or parcel + } size required to qualify
the vacant   { - tract - }  { + lot or parcel + } for a dwelling;
  (b) Decrease the size of a lot or parcel that contains an
existing dwelling or is approved for construction of a dwelling
to a size smaller than the minimum lot or parcel size, if the
abutting vacant   { - tract - }   { + lot or parcel + } would be
increased to a size as large as or larger than the minimum
 { - tract - }   { + lot or parcel + } size required to qualify
the vacant   { - tract - }   { + lot or parcel + } for a
dwelling; or
  (c) Allow an area of land used to qualify a   { - tract - }
 { + lot or parcel + } for a dwelling based on an acreage
standard to be used to qualify another   { - tract - }   { + lot
or parcel + } for a dwelling if the land use approval would be
based on an acreage standard.
  SECTION 10. ORS 215.010 is amended to read:
  215.010. As used in this chapter:
  (1) The terms defined in ORS 92.010 shall have the meanings
given therein, except that   { -  ' parcel' - } :
  (a) { + (A) 'Parcel' + } includes a unit of land created:
    { - (A) - }   { + (i) + } By partitioning land as defined in
ORS 92.010;
    { - (B) - }   { + (ii) + } In compliance with all applicable
planning, zoning and partitioning ordinances and regulations; or
    { - (C) - }   { + (iii) + } By deed or land sales contract,
if there were no applicable planning, zoning or partitioning
ordinances or regulations.
    { - (b) - }   { + (B) 'Parcel' + } does not include a unit of
land created solely to establish a separate tax account.
    { - (2) - }   { + (b) + } 'Tract' means one or more
contiguous lots or parcels under the same ownership.
    { - (3) - }   { + (2) + } The terms defined in ORS chapter
197 shall have the meanings given therein.
    { - (4) - }   { + (3) + } 'Farm use' has the meaning given
that term in ORS 215.203.
    { - (5) - }   { + (4)  + } ' The Willamette Valley' is
Clackamas, Linn, Marion, Multnomah, Polk, Washington and Yamhill
Counties and the portion of Benton and Lane Counties lying east
of the summit of the Coast Range.
  SECTION 11. ORS 223.317 is amended to read:
  223.317. (1) Notwithstanding any other law, a local government
may apportion a final assessment levied by it against a single
 { - tract or parcel of real property - }   { + lot, parcel or
other lawfully established unit of land, as those terms are
defined in ORS 92.010, + } among all the parcels formed from a
subsequent partition or other division of that   { - tract or
parcel - }  { +  lot, parcel or other lawfully established unit
of land + }, if the subsequent partition or division is in
accordance with ORS 92.010 to 92.192 and is consistent with all
applicable comprehensive plans as acknowledged by the Land
Conservation and Development Commission under ORS 197.251. The
proportionate distribution of a final assessment authorized under
this subsection may be made whenever the final assessment remains
wholly or partially unpaid, and full payment or an installment
payment is not due.
  (2) A local government shall apportion a final assessment under
this section when requested to do so by any owner, mortgagee or
lienholder of a parcel   { - of real property - }  that was
formed from the partition or other division of the larger
 { - tract of real property - }   { + area of land + } against
which the final assessment was originally levied. When the deed,
mortgage or other instrument evidencing the applicant's ownership
or other interest in the parcel has not been recorded by the
county clerk of the county in which the parcel is situated, the
local government shall not apportion the final assessment unless
the applicant files a true copy of that deed, mortgage or
instrument with the local government.
  (3) Apportionment of a final assessment under this section
shall be done in accordance with an order or resolution of the
governing body of the local government. The order or resolution
shall describe each parcel   { - of real property - }  affected
by the apportionment, the amount of the final assessment levied
against each parcel, the owner of each parcel and such additional
information as is required to keep a permanent and complete
record of the final assessments and the payments thereon. A copy
of the order or resolution shall be filed with the recorder
required to maintain the lien docket for the local government,
who shall make any necessary changes or entries in the lien
docket for the local government.
  SECTION 12. ORS 545.101 is amended to read:
  545.101. (1) When a subdivision is platted after September 13,
1975, under ORS 92.010 to 92.192, if the subdivision has three or
more   { - tracts - }   { + lots + } on each acre of land within
the subdivision, the subdivision shall be excluded and taken from
the district pursuant to ORS 545.097 to 545.126 at the time that
the plat is approved by the appropriate governing body.
  (2) The exclusion provided in subsection (1) of this section
shall not apply to a district which:
  (a) Also supplies domestic water approved by the Oregon Health
Authority to the subdivision; or
  (b) Agrees to supply water to the subdivision. A district may
require as a condition of any agreement that:
  (A) The subdivider install underground pipe from the district's
designated point of delivery to each lot or parcel in the
subdivision as shown on the plat approved by the appropriate
governing body;
  (B) The subdivider install a meter or other adequate measuring
device at the delivery point to the subdivision and for each lot
or parcel;
  (C) The subdivider provide adequate easements for the delivery
system and make provision for the maintenance and repair of the
delivery system; and
  (D) The subdivider provide any other measures that the district
considers necessary for the proper and efficient delivery of
water to the subdivision and for the efficient administration of
such delivery.
  (3) Nothing in subsection (2)(b) of this section requires a
district to agree to deliver water to a subdivision.
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