email Nov 4 2017 Goff King
Mr. Eric King
City Manager, Bend
Mr. King,
Mr. Goff’s email of 2 November 2017 (attached) fails to consider and address the facts of a City Code violation submitted to you in my email of 22 June 2017 (attached). An analysis and decision regarding the violation cannot be made in this case solely by a physical inspection of the properties to simply observe and visually identify a violation. It also requires an examination of documented facts of land use intent and purpose related to what is observed. Perhaps that is something for higher administrative level review?
The purpose of this email is to extract the pertinent facts from my initial email for your examination and request an official City decision in reply. I may cite that decision in any future public statement relating what I see as a clear violation of City Code, the remedy to resolve it and other associated matters of relevance.
Facts extracted from my attached original email to you:
Fact 1: Bend City Code:
Bend Development Code BDC Title 2.0 Chapter 2.1, 2.1.200: Farm Use, Agriculture is a Not-Permitted land use under "Miscellaneous Use " in all Residential Use zoned areas except SR 2-1/2 and UGM.
BDC Title 1, Chapter 1.2 defines "“Farming or Farming Use” as follows:
"Farming or farm use means the utilization of land for the purpose of raising, harvesting or selling crops, or for the feeding, breeding, management and sale of or the produce of livestock, poultry, fur-bearing animals, or honeybees, or for dairying and the sale of dairy products, or for any other agricultural or horticultural use, animal husbandry, timber agricultural or any combination thereof, including the preparation or processing and storage of products raised on such land, but not including the construction or use of dwellings and other building customarily provided in conjunction therewith.”
Fact 2: The property owners "Application For Land Designated As Forestland" documented as approved and existing in Deschutes County Assessor records addresses purpose:
“The following information on the subject property is required by law (OORS 321.358 or 321.839) and will be used by the county the assessor to determine if your property is properly classifiable as forestland…..
…..(2) Is the predominant purpose of this land to grow and harvest trees of a marketable species? Yes, No.”
If the applicant answers “No” then the application is not approved. Each owner of the cited approved properties stated the following in their application approved by the County Assessor:
"I declare under the penalties of false swearing (ORS 305.990(4) that I have examined this application (and any accompanying documents), and to the best of my knowledge, it is true, correct, and complete.” That statement covers declaring the truth of "the predominant purpose of this land to grow and harvest trees of a marketable species? Yes”
Note that "Fact 2" has a direct relationship to extensive higher level State ORS and OAR regarding and regulating timber industry private land use in Oregon. It would seem to be difficult to dispute and prove that owners of properties I have cited are not participating in a highly defined and state regulated “timber agriculture” land use operation for market profit. Despite their small acreage they are exactly and officially in the same land use timber business governed by the same State ORS and OAR land use laws and rules as the vast acreage private Forestland property holdings in the county beyond city limits. Fact 2 is explicitly cited as proof of true owner intent as well as actual conduct of observable “timber agricultural” land use and operations in a residential zone.
Forestland as a land use is defined by Oregon Revised Statute https://www.oregonlaws.org/ors/321.005
"5) "Forestland" means any land producing forest products.
(6) "Forest products" means products from harvested timber, but does not include products from short rotation fiber grown under agricultural conditions as described in ORS 321.267 (Lands not eligible for special assessment) (3) or 321.824 (Lands not eligible for special assessment) (3), western juniper or products from harvested western juniper.
(7) "Harvest" means the point at which timber that has been cut, severed, or removed for purposes of sale or use is first measured in the ordinary course of business as determined by reference to common practice in the timber industry."
You previously stated: "the City does not connect how a property may be taxed through the County assessor with the land use or code enforcement process.” I don’t either. This is strictly only an issue confined entirely to the narrow scope of City Code and non-permitted land use violation. There are absolutely no tax issues or matters within the scope of examining this specific probable land use violation of City Code. The only extent to which the Deschutes County Assessor is involved is that proof of owner expressed intent and actual “timber agriculture” land use in violation of City Code coincidently finds a documented source of proof in County Assessor records.
Your follow-on statement; " We are unable to use a property tax assessment classification to perform this work and must instead rely on actual use of the property as observed.” is pertinent. What is to be observed is stated by BDC Title 1, Chapter 1.2 definition "“Farming or Farming Use”: "Farming or farm use means the utilization of land for the purpose of raising, harvesting or selling crops, or………management and sale of….any other agricultural or horticultural use, animal husbandry, timber agricultural or any combination thereof….”
The crop to be observed is trees growing for timber market harvest. Management is a difficult thing to observe in action but is evidenced by a required official “Forest Management Plan” on record. Applying the plan to land use for the stated purpose is evidenced by observing the fact that trees were planted as required by a Management Plan. Sale is difficult to observe due to growth to maturity but is evidenced by an official property owner declaration on record that "the predominant purpose of this land to grow and harvest trees of a marketable species”. Proof of trees growing coupled with a documented Management Plan to grow them and a documented declaration to grow them for the purpose of market sale as timber provide a reasonable basis for actual “timber agriculture” non-permitted land use as observed on the ground and in official records.
I conclude and contend that "Fact 1” prohibition of “timber agriculture” in a Residential Use Zone and "Fact 2” documented proof of land use for “timber agriculture” establish a violation of City Code by owners of properties that I have cited.
Mr. Goff found no violation of City Code. Therefore the current conclusion is that owners of property in question are not involved in “timber agriculture”.
Is it the official and final finding of the City that there is no “timber agriculture” violation of City Code regarding land use in a residential zoned area of properties I have cited?
I welcome your review and response.
Tim Lester
2098 NW Trenton Ave.
Bend
Attached emails:
On Nov 2, 2017, at 9:25 AM, James Goff <jgoff@bendoregon.gov> wrote:
PUBLIC RECORDS LAW DISCLOSURE: Emails are generally public records and therefore subject to public disclosure unless exempt from disclosure under Oregon Public Records Law. Emails can be sent inadvertently to unintended recipients and contain confidential or privileged information. If you are not the intended recipient (or authorized to receive for the recipient), please advise by return email and delete immediately without reading or forwarding to others. Thank you.Mr. Lester,In mid-August I inspected all properties in question as instructed by our City Manager and CDD Director for violations of our municipal code. No violations were observed on any of the properties. A few may need some additional fuel reduction between now and spring of 2018, which I will have my staff inspect in late May.Take care,JamesFrom: Timothy Lester [mailto:timlester@me.com]
Sent: Monday, October 30, 2017 1:23 PM
To: James Goff <jgoff@bendoregon.gov>
Subject: Re: City Code Not-Permitted Use Violation: Designated Forestland in a Residential ZoneMr. Goff,Please update me on your progress.Tim Lester
On Jul 18, 2017, at 10:01 AM, James Goff <jgoff@bendoregon.gov> wrote:Mr. Lester,City Manager Eric King has asked me to look into yours concerns you stated in a June 22, 2017 email. Unfortunately, due to current workloads I will not be able to start investigating this matter until August. We have a high volume of fire, life, and safety violations that we are currently addressing. If you have not heard from me by August 15, 2017 please feel free to call or email me directly for an update.Thanks,James
Sent: Monday, July 17, 2017 8:59 AM
To: Eric King <eking@bendoregon.gov>; Russell Grayson <rgrayson@bendoregon.gov>
Subject: FW: City Code Not-Permitted Use Violation: Designated Forestland in a Residential ZoneFrom: CityManagerShared
Sent: Monday, July 17, 2017 8:22 AM
To: Robyn Christie <rchristie@bendoregon.gov>
Cc: Ian Leitheiser <ileitheiser@bendoregon.gov>
Subject: FW: City Code Not-Permitted Use Violation: Designated Forestland in a Residential Zone
Office Specialist II
City HallO: 541-388-5505 F: 541-385-6676
Sent: Saturday, July 15, 2017 7:33 AM
To: CityManagerShared <citymanager@bendoregon.gov>
Subject: Fwd: City Code Not-Permitted Use Violation: Designated Forestland in a Residential ZoneMr. Eric KingCity Manager, Bend OregonDo you intend to reply to my email of 22 June?Tim LesterBegin forwarded message:Subject: City Code Not-Permitted Use Violation: Designated Forestland in a Residential ZoneDate: June 22, 2017 at 8:42:15 PM PDTCc: Scot Langton <Scot.Langton@deschutes.org>, babernethy@bendoregon.gov, bcampbell@bendoregon.gov, Frison Matthew R * Dor <matthew.r.frison@oregon.gov>22 June 2017Mr. Eric KingCity Manager, BendMr. King;The purpose of this email is to report multiple instances of serious violations of Bend residential zoning permitted land use that are specifically Not-Permitted. I request that they be investigated and Bend Development Code be enforced. I ask to remain informed of the progress of city departmental investigations and actions in response to this request. I would like to discuss with you measures to prevent these types of violations in the future.Bend Development Code BDC Title 2.0 Chapter 2.1, 2.1.200: Farm Use, Agriculture is a Not-Permitted land use under "Miscellaneous Use " in all Residential Use zoned areas except SR 2-1/2 and UGM.BDC Title 1, Chapter 1.2 defines "“Farming or Farming Use” as follows:"Farming or farm use means the utilization of land for the purpose of raising, harvesting or selling crops, or for the feeding, breeding, management and sale of or the produce of livestock, poultry, fur-bearing animals, or honeybees, or for dairying and the sale of dairy products, or for any other agricultural or horticultural use, animal husbandry, timber agricultural or any combination thereof, including the preparation or processing and storage of products raised on such land, but not including the construction or use of dwellings and other building customarily provided in conjunction therewith.”The following residential zoned properties within the city limits of Bend are in violation of Bend Residential Zoned RL And RS permitted use and are specifically a Not-Permitted use. Owners are utilizing land for the purpose of raising and intending to harvest timber for commercial sale.Tax Lot Properties with Forestland Designation Forestland Residence
Acres Acres Click On The Highlighted Map Property Or Nearby Properties To See Account Informationhttps://dial.deschutes.org/Real/Index/117545 2.12 None Overview Map Picture
https://dial.deschutes.org/Real/Index/241568 3.23 None Overview Map PictureTotal 91 acres(https://weblink.deschutes.org/public/DocView.aspx?dbid=0&id=89754&page=1&cr=1) identifies county code area 1001 (city of Bend) as having 107 acres of Designated Forestland located within the city. All of these properties are in violation of city code for residential zoned permitted land use, BDC Title 2 Chapter 2.1.200 under the “Miscellaneous Uses” category “Farm Use Agriculture". The above listed properties totaling 91 acres of Designated Forestland are only those that I have discovered. The Deschutes County Assessor should be requested to identify additional Forestland Designated properties within the city of Bend for city zoning enforcement action.Forestland Designation of these properties as “Designated Forestland” was initially officially obtained through a Deschutes County Assessor approval of an owner application for "Forestland Designation" to be found at this link. In their “Application for Designation of Land as Forestland" the applicant declares to the County Assessor under penalties of false swearing that : “the predominant purpose of this land to grow and harvest trees of a marketable species”. They sign this application statement: "As owner of the above described land, I indicate by my signature that I am aware of the potential tax liability involved when the land ceases to be designated as Forestland. I declare under the penalties of false swearing (ORS 305.990(4) that I have examined this application (and any accompanying documents), and to the best of my knowledge, it is true, correct, and complete.”The above application for Designated Forestland establishes the commercial intent of the owner to grow and harvest trees for market sale. That land use intent is clearly a city Not-Permitted residential zoned land use.The remedy for Not-Permitted residential zoning land use requires city notification to the owner. The Deschutes County Assessor must also be notified of the violation in order for remedial action (ORS 321.842) to disqualify the Designated Forestland classification of all 16 listed properties and therefore remove the land use violation of city zoning rules. Five years roll back of deferred tax liability at a much higher property assessment value than $74.88 per acre per year is then taxed by the assessor.The "Not-Permitted" zoning violation is a land use matter. While the County Assessor's authority grants a tax classification assessment it also has an association with a land use and management plan within the county. That Designated Forestland land use conflicts with and violates BDC residential zoning permitted use which appears to be the dominant ruling authority. Therefore there should be no property within the city of Bend that has a Designated Forestland assessment classification.This is a city zoning land use issue. However, I would like to point out the magnitude of tax implications and receipts to the city that are related. All Designated Forestland in Eastern Oregon is assessed at a 2016-17 flat rate of $74.88 per acre (77.07 in 2017) regardless of land being located in a residential zoned area of Bend, the UGB doorstep of Bend, or the most remote private forestland in Eastern Oregon. Within Bend the same property would probably be be assessed at a rough estimate of as much as $100,000.00 per acre and taxed accordingly if it was not Designated Forestland.For Example: The following bare land Designated Forestland properties totaling 8.2 acres are in violation of residential zoning regulations and held by a single owner. They are the first three properties extracted for the list above. Tax Payment History for each of these 3 properties shows an annual tax of about $20.00 per year each since 2004-5Real Market Value: (all three properties 2016-17) $2,308,200.00Assessed Value: $615.00 ($74.88 per acre Designated Forestland)Total 2016/17 tax: $65.00Est. Assessed Value w/o Forestland Designation: $1,000,000.00 ( reasonable guess for example purposes)Est. 2016/17 Tax w/o Forestland Designation: $15,000.00 (Reasonable guess for example purposes)Prior to the 2004 and 2005 tax year the tax on each of these 3 properties was about $4,000.00 per year as shown at this link: https://dial.deschutes.org/Real/TaxInformation/241568After that time the properties were Designated Forestland and the tax on each property dropped to about $20 per year.The period of time that these 3 properties have been zoned residential within the city of Bend is unknown but should be available in city records. The period of time they have been classified Designated Forestland by the County Assessor began in 2004 and 2005. Beyond the 5 year roll back tax liability due on a Designated Forestland disqualification based on a city zoning violation an estimated $15,000.00 per year in tax revenue was lost for 8 years totaling perhaps more than $100,000.00 dollars. Once the deferred tax liability period of 5 years is passed there is a substantial rolling tax avoidance benefit derived from the violation of residential zoning restrictions every year. The Deschutes County Assessor could provide a more accurate estimate of tax lost to the county and consequently the city for the period of time that the property was taxed at the Designated Forestland rate as well as comment on the validity of data rules and regulations and approximate accuracy of the analysis I have provided in this example. I am not an expert, he is, although I believe that I am substantially correct.Most of the small acreage properties have residences on them. This example: https://dial.deschutes.org/Real/Improvements/117550 shows Land Characteristics division of the same tax lot property to a Residence portion and a portion to Designated Forestland for tax purposes. The residence and its 1.09 acre lot are taxed at normal rates and 6.9 acres Designated Forestland are taxed on a 2016-17 assessed value of $74.88 per acre. The tax advantage of the Designated Forestland use portion of the property is not as readily evident as in the previous bare land example above because the taxes due on each portion of the property are combined for a total tax due. Otherwise the extreme relative disparity between RMV, assessed value and tax are the same as the bare land example on the Designated Forestland portion of this residential property example.Small acreage residential zoned properties, mostly clustered in one area, have received the low tax assessment on Designated Forestland of approximately $74.00 per acre for longer than 5 years (unknown length of time). This property example: https://dial.deschutes.org/Real/Index/117550 requires tax computation analysis to discover the amount of taxes that should have been paid beyond the 5 year tax liability roll back if it were not Designated Forestland. The Deschutes County Assessor could certainly provide that hypothetical amount upon request given the date it became zoned residential and was within city limits. Roll back of tax liability due was evidently collected in 2001/2002 and Forestland Designation was evidently granted or carried over with the land and has obviously been applicable since 2003 as displayed by this link: https://dial.deschutes.org/Real/TaxInformation/117550.The large 32.1 acre Designated Forestland property is in violation of permitted residential zoning use rules as much as all the other properties. It is a special case for separate analysis that relates more to properties coming into city zoning from the UGB and when they trigger Designated Forestland tax deferral to paid. Existing city residential Not-Permitted rules terminating Forestland Designation may preempt or at least conflict with County Assessor platting or plotting rules related to Designated Forestland.The fundamental violation is to common sense. A city is not intended to be a place to grow and harvest trees for commercial purpose sale on a minimum of two acres or more and provide the owner with outrageous tax reduction incentives to do so. I contacted someone who does this harvesting and he said that the owners would probably have to pay him to harvest the trees from such small lots even if the trees were numerous and mature. They aren’t. Maybe in 50 years or more. Looking at the "Overview Property Map Picture" links in the list of 16 properties shows there are few trees to harvest on most of the properties. Removing trees in the city is essentially contrary to the intent of city rules to preserve trees in residential areas.What is being harvested annually is an enormous property tax reduction for owners in addition to their enjoyment of a generally sparse, larger forested acreage setting of choice commensurate with the value of their homes in the city. For owners of bare land properties it is an extremely low cost to hold advantage contributing to greater returns on the sale of residential property rapidly rising in value. What a very few have gained by substantial property tax reduction associated with a Not-Permitted land use is at a cost to all city property owner tax payers.Thank you for your attention to this matter. I am more than pleased as well as anxious to discuss it with you, or whomever you delegate to act on this matter, at any time.Tim Lester2098 NW Trenton AveBend, Oregon 97703PUBLIC RECORDS LAW DISCLOSURE: Emails are generally public records and therefore subject to public disclosure unless exempt from disclosure under Oregon Public Records Law. Emails can be sent inadvertently to unintended recipients and contain confidential or privileged information. If you are not the intended recipient (or authorized to receive for the recipient), please advise by return email and delete immediately without reading or forwarding to others. Thank you.
Comments
Post a Comment