1988-26587-Minutes for Meeting October 12,1988 Recorded 11/3/198888-26587 Qo i 1
PHELPS PUBLIC HEARING cS''r
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DESCHUTES COUNTY BOARD OF COMMISSIONERS
October 12, 1988
Chairman Maudlin called the meeting to order at 11:04 a.m. Board
members in attendance were Dick Maudlin, Lois Bristow Prante, and
Tom Throop. Also present were Rick Isham, Legal Counsel; Mark
Shipman, Assistant Planner; Craig Smith, Planning Director.
Public Hearing for a Stipulation of Remand on Richard Phelps
Smith Rock Mobile Estates Appeal AP-88-3 on conditional Use
88-12.
Due to the complex nature of statements by legal representatives
of both Deschutes County and the Appellant their remarks in
these minutes are verbatim
RICH ISHAM, Deschutes County Legal counsel, outlined the
procedural perspective of the hearing: "This application was
denied by the Board of County Commissioners by letter dated July
15, 1988. The application was for the expansion of a
nonconforming use to add two additional mobile home spaces to an
existing nonconforming use which is a mobile home park. The
applicant, through his attorney, requested that the Board
reconsider the denial of the application on the grounds that one
of the criteria upon which the application was denied was not
contained within the notice nor, in his opinion, applicable to
the decision to be made by the Board. The Board's discussion
regarding whether or not to review this upon application of the
applicant determined that the procedural ordinance in this County
did not provide for reconsideration of the decision and an appeal
was filed with LUBA within the 21 days. Subsequent to being
filed with LUBA, the applicant again met with the Board and
reiterated, in essence, his previous position, and Roger can
correct me if I've got this wrong, and the Board agreed to enter
into a stipulation for a remand whereby LUBA would not go to the
merits of the case. And it's based on that remand that the case
is back before the Board. On a remand, our procedural ordinance
would provide that this would be in essence a de novo hearing.
However, the Board may accept into the record the prior
proceedings and so, therefore, any evidence that was developed
previously would be before the Board for making a decision. So
in essence what the Board is making is a completely new decision
as if this had come to the Board for the first time. And I guess
I would request you to accept into the record the prior
proceedings and record that was developed prior to this date at
this time."
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"I think possibly I can clarify the issues before the Board
today. On July 12, I wrote a memo to the Board of County
Commissioners which set forth the standards and criteria in ORS
215.130 Sections 5-9 and ORS 215.130 Subsection 5. In Subsection
9 there are two things that can occur with respect to a
nonconforming use and they provide as follows: that the use can
have a change in use of no greater adverse impact to the
neighborhood, and (b) a change in the structure or physical
improvement of no greater adverse impact to the neighborhood."
Commissioner Prante asked that he repeat the second one. "A
change in structure or physical improvement, so you can add onto
a building or you can change the physical layout of an existing
nonconforming use provided that it has no greater adverse impact
to the neighborhood. Now ORS 215.130 sub 5 provides, this is in
part provides, alteration of any such use may be permitted to
reasonably continue the use. And this was the area which the
applicant raised with respect to his request for reconsideration
and then additionally with his request for remand in that that
was not clearly stated in the notice of the hearing."
PRANTE: "If I remember correctly, as we understood it before, it
had to have both no significant impact and"
ISHAM: "reasonably necessary to continue the use. Right, so
it's a two part requirement. Now, earlier this year, the Land
Use Board of Appeals, in addition to the Jessel case that we
discussed at the original appeal hearing, decided a case entitled
the City of Corvallis v. Benton County. And there is one section
that clearly relates to the situation here before the Board, and
with the Board's permission, I would just read this short
paragraph. It says, 'It is apparent from a comparison of
paragraphs (a) and (b) of ORS 215.130(9) that the alteration of a
nonconforming use allowed under the statute includes changes in
the nature of the use as well as changes in structures and
improvements. The alteration of a nonconforming use which is a
change in the nature of use is limited by two requirements. It
must have no greater adverse impact to the neighborhood and it
must reasonably continue the use.' The requirement that an
alteration reasonably continue the use is not found in the
applicable provisions of the Benton County zoning ordinance,
however, in the Deschutes County ordinance, we have carried
forward that requirement that it be reasonably necessary to
continue the use. And so the questions before the Board today
are still the two questions that we discussed earlier, and I
think to a great extent the issue today will be whether it is
necessary to continue the use because there was quite a bit of
evidence, I think, before on the issue of impact although no
decision was ever reached by the Board relating to that evidence
that was developed."
MAUDLIN: "I would at this time accept a motion to accept into
the record the prior proceedings."
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THROOP: "I'll move to accept into the record the prior
proceeding."
PRANTE: "Second."
VOTE: PRANTE: YES
THROOP: YES
MAUDLIN: YES
ROGER ELLINGSON, Counsel for the applicants (Richard and Sharon
Phelps of Smith Rocks Mobile Home Estates): "Thank you very much
for stipulating to the remand of this matter. I'm going to rely
entirely upon the record in regard to the adverse impact on the
surrounding neighborhood. We believe that we have met the burden
and we do, however, want to reserve the right to respond to the
objectors testimony today with regard to the effect on the
surrounding neighborhood. I think it needs to be emphasized here
very strongly that the applicant and this attorney do not agree
with your County Counsel's interpretation of Jessel. Jessel is
the 1986 Land Use Board of Appeals case which stated in DICTA
that in certain cases if the continuation of the use, expansion
or enlargement of the use, has to be reasonably necessary, and I
underline the word necessary. As you pointed out, the Oregon
Revised Statute does not contain that word and I'll elaborate on
that more, but I think at the very outset you need to understand
that we disagree on this. There is room for disagreement. My
presentation today is going to cover two points. One is that the
Jessel rule, the rule that requires any expansion has to be
necessary for the continuation of the use, does not apply in this
case. And the second is, even if it does apply, we can meet that
burden of proof, clearly. Now I know you are not lawyers, but
because we've been forced into this, I have and my clients have
no alternative but to present it to you--a legal argument. And
you are going to have to rule on a legal issue. But I think you
need to understand the import of this issue. It will completely
change your nonconforming use conditional use process. It's
going to make the burden substantially, substantially more
difficult to meet, much more difficult. And with regard to that,
I wouldn't waste time on it because I think we can meet the
standard anyway. But it's such an important public policy issue,
I think you need to be made aware of exactly what you are doing.
You're going to be instructing your planning staff to require an
entirely and much higher standard of proof for any applicant to
come in and expand or alter an existing nonconforming use. In
some cases you may be required to show that it's either a lawful
requirement that they do these changes or that they are going to
go out of business otherwise. Now my clients have been very,
very hesitant to reveal any of their financial background
information on this and, as you know, it's a very confidential
form of information. You don't want people to know how you are
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doing financially; but because of this standard that's been
imposed on us. We think in order to be adequately prepared
today, we had to get this information in front of you. It's
going to be embarrassing to my clients, so we are going to try to
limit the amount of information. But I have told them that in
order to get this approval, they are going to have to respond
candidly to your questions.
"Now Jessel, the 1986 Land Use Board of Appeals case, was not a
ruling. There is an important word that you need to become
familiar with. DICTA is language that the author of an opinion
in any legal case, they throw that in even though it doesn't
apply to the case at hand. The Jessel case involved a Lincoln
County ordinance regarding nonconforming uses and their ordinance
contained this language. And I've blown this up at the expense
of my clients. I would have gotten it blown up bigger so that
you could read it from where you are sitting, and I'm hoping you
can anyway, but it just would have increased the expense to my
clients and made it so big it was burdensome. The Lincoln County
ordinance in that case read 'alteration of a nonconforming use
may be permitted to the extent such alteration is necessary in
order to continue the use.' It contained the exact language
which your ordinance does not contain. ORS 215.130, the overall
state statute that governs these proceedings states this,
alteration (and this was supposed to be in bold print but when
it's blown up the bold doesn't appear so bold) of any such use
may be permitted to reasonably continue the use. I took the
liberty of looking up the word 'to', to continue the use, to
reasonably continue the use. The only appropriate definition I
could find was, for the purpose of. Alteration of any such use
may be permitted for the purpose of reasonably, reasonably
continuing the use. That doesn't mean it has to be necessary.
There is no language, no dictionary that I could find that said
'to' meant necessary, none whatsoever. Now with regard to
Deschutes County's Ordinance, I'm going to show you an excerpt
and Mr. Craig Smith is here to rebut this if it needs to be
rebutted, from his findings and decisions report on this
application. A memo of November 17, 1981, from Richard Isham to
John Anderson, County Planning Director at the time, established
a policy of alternating nonconforming uses. This policy states
that ORS 215.130 (the statute that I just read to you) overrules
the County's nonconforming use standards. You don't have a
standard in your County ordinance anymore, according to that
memorandum. You're relying entirely upon ORS 215.130 for your
standards. Now Craig, correct me if I'm wrong, is that an
excerpt from your memo or not?"
SMITH: "I guess, I can't read it from here."
ELLINGSON: "He'll be allowed to respond, and I hope he can
clarify if I'm mistaken. I have a copy of the entire memorandum
if I need it. Because we're talking about two different factual
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situations between the Jessel case and the case at hand, an
additional different fact was that in the Jessel case, they
weren't trying to expand an existing use, they were going to add
a new use--I believe it was a wrecking yard to something that was
not currently a wrecking yard. In other words they were going to
add another use to it. So it's factually distinct and
distinguishable from the case at hand. The Jessel rule does not
apply. In Corvallis v. Benton County, the 1988 case, they
specifically call the language they use in Jessel, a statement of
the law. A statement in legal terminology is not a ruling. A
ruling is something that they base a factual determination of the
issues on. They did not rule in Jessel that the ordinance has
the word or should be interpreted to mean necessary. As a matter
of fact in Corvallis v. Benton County, they were asked
specifically to rule on that issue and they side stepped it.
They said we don't need to rule on that issue, we can get to it
through another fact pattern here that doesn't force us to rule
on it. And so that indicates and that means to all of the people
that watch these things, that they have not made a ruling on that
issue. You do not have to impose that standard, is what I'm
arguing, on any future nonconforming uses that want to alter or
expand their use. You already have a very good conditional use
process that allows all of the objecting neighbors to come in and
say, wait a minute, that's going to impact me. The standard is
you can't adversely impact them. It doesn't say, a lot of
impact, it says impact period. You've got a tough standard,
there's no reason to make this standard tougher unless you
absolutely have to, and you do not have to because LUBA, and LUBA
isn't even a court of appeals. It's not a court, they don't have
judges, they have referees. And it's considered by the Court of
Appeals and the Oregon Supreme Court to only be the last
administrative level of review, not judicial. LUBA doesn't even
have the standing of a Court of Appeals. Those decisions are not
in our county Law Library. You cannot find those decisions by
looking under the statute number, unless you happen to belong to
a very small group of lawyers who get the decisions by the Land
Use Board of Appeals sent to them. All lawyers don't, judges
don't. It's a very small ruling with regard to importance. The
Court of Appeals will make the final decision and the Court of
Appeals is reviewable again by the Oregon Supreme Court. Those
are the kinds of opinion you need to say, sorry folks but the
decision is in. I mean you owe it to your constituents, you owe
it to them, you represent them to do what is in the best
interests of the County and in what is in their best interest,
which hopefully in most cases are going to be the same. So a
higher standard only needs to be imposed if you think it's right
and if it's required when you even don't think it's right. Now
it should not be on, if you believe that the Phelps are entitled
to this conditional use because there is no adverse impact on the
neighborhood, it should not be on the Phelps' shoulders to carry
the burden of proof to show that the Land Use Board of Appeals
first, hasn't ruled and if they have ruled, that it's wrong. It
PHELPS PUBLIC HEARING - PAGE 5
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should be on any objectors
standard is different because
imposed on counties today.
to force them to say, look the
there is no standard that has been
"Now, I'm going to move onto the second issue. So I hope you'll
as me questions now if you have any regarding this case. This is
an important case, it's a very important policy decision. You're
making a policy decision out here, not just a single decision on
one conditional use. Your planning staff is going to be forced
to go back and start advising every member of the public who
comes in for a permit to say, sorry but we've got a new, much
higher standard here. I don't care if it doesn't affect your
neighbors, you've got to show it's necessary. I'm going to move
on now to show, because the issue has been raised.
MAUDLIN: You're saying that our ordinance or our opinion, coming
out of this thing, says that any conditional use must be shown to
be necessary to continue the operation?
ELLINGSON: "That's what you're ruling. If you say, if you agree
with Mr. Isham that that standard applies in Deschutes County,
that's exactly what you're going to do. You're going to raise
the standard, you're going to change the whole rules of the game.
"Now I've shown you in my past letters that this memorandum,
here, as well as the other indications in the other staff
reports, I mean this was not the only one, there were three or
four that my client received through my office from the Planning
Department. And I think Mark, who dealt directly with me and Mr.
Smith, will testify if allowed the opportunity, that that
standard is brand new to them. They had not heard that standard
and so you are creating a new, tougher burden here. If you rule
on this case, you're going to create a tougher burden for
everybody who follows. And it's just not there. The case law is
not there. As a matter of fact, when you look closely at the
existing Deschutes County ordinance, because I anticipate that
possibly planning staff or County Counsel is going to say, wait a
minute, it may be overruled by the statute but it hasn't been
thrown out the window. Your statute only allows, excuse me, your
ordinance allows only when necessary to comply with a lawful
requirement. It doesn't say anything about necessary. This
standard if it hasn't been thrown out, it's even tougher than the
Jessel standard which I don't think applies but if it is applied,
this is even a tougher standard. Because that's going to say, if
you impose these two rules together, that the only way Deschutes
County is going to allow a nonconforming use to expand or alter
its structure or its use is only when they can show a lawful
requirement that it's meeting. Never mind they're going to go
out of business."
PRANTE: Clarify that last statement, if they must show the
necessity to continue the operation, wouldn't going out of
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operation be that necessity?
ELLINGSON: "Absolutely, but if your legal counsel and you agree
that your existing nonconforming use ordinance applies and hasn't
been overruled by this statute, your nonconforming use ordinance
is even tougher. It doesn't allow if it's necessary, it has to
be required by a lawful requirement. If they're going out of
business, that's too bad, that doesn't meet this burden. That
is the only provision you have, you don't have a reasonably
necessary provision in your County ordinance, at least in the one
I'm looking at here.
"Let's assume that you do apply the higher standard of Jessel,
even though I strongly encourage you not to. Let me switch back,
I want to read to you the Black's Law Dictionary definition of
DICTA, and I hope this will help you understand why I'm harping
so hard on the Jessel decision not relating to this case. DICTA
is defined, opinions of a judge which do not embody the
resolution or determination of the court. You see what I'm
arguing in Jessel is that because of the Lincoln County ordinance
language, I mean they've already incorporated this reasonably
necessary language into it. The court was free to say fine. If
you're going to comply with the Lincoln County ordinance, then
you can't do it unless it's reasonably necessary, and that's what
they held in that case, and that was their ruling in that case.
But then they went beyond that and said that this statute means
the same thing. Well, this part of the determination of the
decision was fine but when they got down to the statute, they
went beyond what they needed to. So this is DICTA, it wasn't
necessary for the determination of the issue and it adds which
goes beyond the facts before the court and, therefore, are
individual views of the author of the opinion and not binding in
subsequent cases.
"Now, I've given to you a statement by the accountant of Mr. and
Mrs. Phelps, and he has done their income taxes for the past six
years. Now he also does accounting work for other mobile home
parks. He was supposed to come today, but unfortunately, I saw
him about two days before he received that letter. In the
meantime he had forgotten about today's testimony. To tell you
the truth, I think he may have done it intentionally. He really
does not like to speak in front of groups, and when I called this
morning to remind him of his commitment, he said, I'm sorry but I
have already scheduled over that time, I'm sorry but I can't make
it. What this financial statement says is it may not seem like
much money if they are allowed to add these two mobile home
sites, but it does mean the difference between at least breaking
even. They are currently not able to support the operation of
this park based on the cash flow before you without Mr. Phelps
working outside the mobile home park. Now according to Mrs.
Phelps, she has personal knowledge that virtually all mobile park
owners in their area have to work outside the park in order to
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sustain themselves. At least if they are allowed to add these
two mobile home parks, they are going to be able to break even
and possible make some money. Now, of course, they are going to
try to increase that because they're hoping that when Mr. Phelps
retires, that they can use that as a way to retire. Now of
course Mrs. Phelps is the only person there during the day and so
has to do most of the work. When Mr. Phelps is there, they think
they can hopefully cut down on some of their overhead and make it
a viable operation. The second issue here is, why can't they
raise their rates. You have before you a petition signed by 21
and there would have been 22 occupants of these spaces, I mean 21
space occupants in most cases two people signed for each space,
indicating that they're on fixed incomes. Most, virtually all
of their clientele are senior citizens on social security, social
security disability, these types of fixed incomes. They just
raised their rates and that letter from Mr. Sundet reflects that
rate increase from $100 per space to $110 per space. They can't
continue to raise them to a point where they're going to drive
out business, because if they drive out business, which is
indicated by those signed petition, they are going to be in a
much worse revenue generating situation. Now one of the things
they could do is they could say, fine, we can't continue to
operate as an adults only park because we've been trying to give
these people a break. I'm sorry but finances being finances we
can't do it, fine. They're going to switch to the other option
which is a family park. A family park, most families have two
cars, they have children, there's a lot more traffic, there's a
lot more noise, there's more garbage, you name it. You think the
impact on the surrounding neighborhood is even noticeable now,
it's going to create a use, and they can do that as I understand
it, without a conditional use, that is going to impact the
neighbors a lot heavier than the existing use is at this stage,
or will with the two additional sites. Now I've suggested to
them that they should probably try to increase the rates for the
two sites because they are going to be such prime site and they
are entertaining that idea. They haven't made a commitment yet.
Do you have a question at this point?"
PRANTE: Is 100% occupancy the norm?
Mrs. PHELPS: It is.
ELLINGSON: "As you know and I've mentioned in the past hearings,
there is a tremendous shortage in the northern part of the County
for mobile home spaces. Now one of the things Mrs. Phelps also
conveyed to me was the fact that she's heard this from other
tenants that when they move, there are now mobile home parks that
don't take older mobile homes. She's actually heard of one
mobile home park that doesn't take any mobile homes over three
years old, so it's going to be a tremendous burden on the people
living in the park to be forced to move if they go to a family
park. And the feedback that the Phelps' are giving me, and
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you're free to question them yourselves, is that these people
want a quiet mobile home park. I think it's in the interests of
the neighbors as well to want a quiet mobile home park, and it's
in the interest of the zoning ordinances to allow a use to
continue which interferes the least with the surrounding
conforming zones, those zones that are in conformance with the
comp plan. Now are there any questions either of myself or of
the Phelps with regard to any of the information before you."
MAUDLIN: I have a question here regarding the petition you have
presented, and I'm assuming this is a new one, one that just came
out, is that correct?
ELLINGSON: Yes
MAUDLIN: Does this petition apply to the fact that the rent has
just gone up to $110 or is that for an additional raise that may
be contemplated.
ELLINGSON: "As I understand, it was only with regard to
additional raises which would make it a financially viable
operation. That was signed within the last two weeks, which was
after the last rate increase, so it would be meaningless if we
had had them sign it before and then raised the rent and they're
still there."
MAUDLIN: What are the average rental space costs in the
surrounding area.
MRS.PHELPS: $115 to $127.50 including family parks.
PRANTE: Are the others primarily senior citizens or are there
other family parks?
MR. PHELPS: There are more adult parks in the northern part of
the county than family parks.
ELLINGSON: "In summary then, I think we've shown you that
without the allowance or the granting of this conditional use for
the addition of these two mobile home spaces, the Phelps' are
going to be forced into either selling the park, and we don't
know whether it's going to be maintained but we certainly can
expect that it won't be maintained at a high level by the future
owners because this park stands out by itself in the high, I
think if you look back on the pictures, the high degree of
maintenance that they perform on this park. Even the objectors
to this conditional use have indicated that they believe this
place is well, well maintained. The financial burden is there,
they need this, it is necessary for their continued operation.
If they are not granted this conditional use, they are in serious
financial trouble and just throwing money down a hole basically.
I will reserve the rest of my comments until after rebuttal, and
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I would ask that the commissioners get a response from County
Counsel before the hearing is over, and also that if there is a
memorandum requested of County Counsel that the parties, not only
myself, but also the objectors be granted an opportunity to
respond to the same."
MAUDLIN: We will now have the opponents to the remand. Before
you begin Marla if I may, as you understand we have accepted into
the record previous testimony so we would prefer that your
testimony now address the new issues, so we don't have to go back
and rehash, thank you.
MARLA GIBSON: 9990 NE Crooked River Drive. Her property borders
the trailer park. She doesn't feel that this hearing should
bring up issues that had not been presented to any of the parties
prior to the hearing. Also she takes exception to
Mr. Ellingson's statement that it has been shown that the
additional spaces would not adversely affect the neighborhood
when in fact the Commissioners stated in their letter that they
don't feel that he has adequately shown there would be no adverse
impact.
PRANTE: She felt that they had not decided the case on the
impact issue. However, they did agreed with the hearings
officer's decision which indicated it had not been adequately
shown there would be no adverse impact.
GIBSON: She didn't feel that the money issue should be taken
into consideration, and that the Phelps' are making changes at
the park which are not necessary but cost money. She'd like to
see other reasons besides financial for why it is necessary to
add two sites. The original owners said that they didn't expand
into the proposed site area because there were cracks on that
land. Subsequent land owners filled in the cracks. Ms. Gibson
read from a written statement from another neighbor, Mr. Jim Rax,
who is a geologist and is concerned about the safety of those who
would inhabit the proposed addition since it is on the edge of a
200 foot cliff which could break away. He indicated that
throughout the length of the gorge there were spots with
crevasses from 10-60 feet back from the edge of the gorge. He
indicated that on his property there was a landfill on some of
the cracks near the edge of the gorge which have since dropped.
She feels that the adverse impact was established in the last
hearing so did not bring up those issues again.
PRANTE: Asked staff if this hearings process is the place to
address the safety issue.
ISHAM: Stated he would research and get back to the
Commissioners.
PRANTE: Her recollection was that she did not make the decision
PHELPS PUBLIC HEARING - PAGE 10
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based upon adverse impact but on the fact that the applicant
failed to meet the applicant's burden of proof that the proposed
alterations of the nonconforming use were necessary to continue
that use.
THROOP: He stated that the commissioners did uphold the
hearings officer's decision which indicated concern over adverse
impact in the neighborhood and the safety issue.
GIBSON: They had understood that it was denied under both
issues. Also there are areas zoned in Redmond available for
mobile home parks to be built, and there is a large mobile home
estates site in the final stages of approval that will be capable
of handling any excess needs in the area.
ISHAM: "I think to give you a little bit of history, the 1981 or
182 memo did describe a process where reasonably necessary was
not a criterion, so Roger's characterization of that memo is
correct. That memo was not intended to say that the Deschutes
County Ordinance had no role and I don't think the memo says
that, but our ordinance was more restrictive than what was
allowed under state law and in the context of our ordinance you
have to realize that a nonconforming use is an exception to the
land use process. In other words, by its very nature it doesn't
comply with the zoning ordinance or the comprehensive plan and so
the rights of an owner of a nonconforming use are predominantly
rights the arise under the state statute. The purpose of our
ordinance is to provide a means by which a person can continue
their use of the property whether it be a business. A business
would not, by reason of our ordinance, be required to shut down
because our ordinance is an attempt to recognize that use. And
so to the extent that our ordinance is more restrictive than
state law, my memorandum said that we should apply the state law
so as not to take away a right that was granted by the state
legislature. So that's the status from 1981 up to until late
1986 or early 1987, actually is was 1987 when we became aware of
the Jessel case. After the Jessel case and in the context of
this particular hearing, I think what I stated in my memorandum
of July 12 is that the 1981 memorandum has to be looked at with
the new wrinkle and that new wrinkle is the necessary to
continue. So, although I agree with Roger's analysis of the 181
memo to some extent, it misses the point in that LUBA has
instructed us in the words DICTA, and I'm going to respond to
that word DICTA here in a second, that we need to look at some
other issues. Now LUBA is not a court but LUBA is a state agency
who has as its members the experts in land use law in the State
of Oregon. Each of the referees is a highly qualified lawyer who
hears the majority of land use appeals and has at this point
made, I think, the major interpretations of the nonconforming use
statute as adopted by the legislature. Now LUBA has an unusual
role in that the state legislature said to LUBA that you are not
entitled to merely dispose of cases, and I'm going to make a
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distinction here. A court of appeals, once it disposes of a
case, stops. It doesn't make any statements or if it does, they
are called DICTA, and Roger read you a definition of DICTA; and
lots of times what DICTA is, is it's telegraphing to the legal
world what's coming. Now LUBA doesn't have that luxury because
the state law requires LUBA to rule on every issue presented to
it. So what we have with LUBA is a mandate to issue what are
called advisory opinions. An advisory opinion is where they're
issuing a ruling on an issue that is not necessary to the
decision. Now in a court of appeals, they will not issue
advisory opinions and there is a long history of reasons why they
don't. They require that there actually be cases and
controversies before them. I think it's a little bit misleading
to say that the DICTA in a LUBA case is merely the author's
opinion. That's not the case (1) in terms of the LUBA decision
because they are required by law to rule on those issues and so
when the Jessel opinion, which Roger is urging you to not apply
in this situation, goes on to talk about reasonably necessary, I
think that language has authority in that the Land Use Board of
Appeals is required, in fact, to issue opinions on that issue and
have done so. I don't think there is any question what Jessel
says. Roger is urging you to distinguish Jessel as not being
applicable in this case. That's a decision for this body to make
but if Jessel does apply, it certainly applies to the extent that
the use has to be deemed necessary for the continuation of the
nonconforming use.
"Just a comment on the issue of safety that occurred to me after
I responded by saying I can't respond. The issue of safety, if
that is an issue and we'll have to respond to you in memorandum
as to whether or not that is an issue, but the safety issue
really goes to whether it's relevant or not so that if it's not
an issue before you even though it may be important, it may not
be relevant to the decision; and I think once Craig and I can sit
down, I think we can inform the Board whether or not it is
appropriate at this stage of the proceeding to try to deal with
that issue. But what you would end up doing is that you would
decide whether or not it was relevant, and if it is relevant,
then obviously the applicant would have to present some evidence
with respect with that. I think in terms of what the chairman
has indicated at the opening of the hearing was that this was
going to be continued and that may be one of the things the
Board would wish to continue. Additionally, I guess I would like
to know whether or not the Board desires any additional analysis
on the issue reasonably necessary with respect to what Roger
raised today. Obviously I didn't have any memorandum or
forewarning of how Roger was going to approach that so there
might be some confusion in the mind of the Board, and maybe I
could respond to that and allow Roger a response."
MAUDLIN: "It's my feeling that how Roger responded goes directly
back to the fact that we made a decision based on something he
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uu9 O 83
never heard of until the day we made the decision. That is why
in the first place I wanted you to give us what you were going to
do so we could get this thing talked out, so that we wouldn't
have to continue and continue. I understand your reluctance to
do so, but we are still going to have to address it. Quite
frankly I'm confused enough at the moment so I don't know what
question to ask. I'm not prepared to make a decision now."
THROOP: "I'd like Rick to write a memo to the Board given the
additional information that was presented today. And it may be a
repetition of what we received before, but I'd like his legal
recommendation after hearing the presentation today. And then
Roger would have an opportunity to respond, and then we'd have
those presentations before us in writing."
PRANTE: "It would appear from the financial statement that the
major motive for the addition of the two spaces was the economic
viability of the mobile home site, would that be an accurate
assumption?"
MR. PHELPS: Yes, ma'am
GIBSON: Questioned why that issue was not brought up until
today and not from the very beginning.
MAUDLIN: It was brought up now because they have to show
according to these ordinances why it's necessary to operate.
THROOP: And at the last hearing he didn't know he had to bring
this up.
PRANTE: My understanding was that they had to prove that this
addition was necessary to continuing the operation and that is
why I believe that the information was presented.
THROOP: The staff report recommended that the application be
denied because they felt there would be adverse impact on the
surrounding area and in the hearings officer's decision, he also
denied in part because the location of the mobile home was so
close to the rim. Is there any place where you could locate
those mobile homes besides the rim and closer to the other mobile
homes?
ELLINGSON: "Any relocation of those mobile homes from where they
are proposed today would actually adversely affect property
owners who are presently in support of this proposal. Those
property owners said they would not support the proposal if the
sites were put in the vacant field. There is no room between the
existing mobile homes and the current site that would not be
highly visible and more of an impact to the neighborhood."
MR. PHELPS: "The reason I can't add to the end of the existing
PHELPS PUBLIC HEARING - PAGE 13
rows is because my drain field is right there. This is the only
place that I feel I could put more mobiles on my property."
MAUDLIN: Would these two units connect with the existing drain
field?
MR. PHELPS: "Yes."
THROOP: "I will admit that it is a nagging concern for me that
those two new mobiles will be 50 feet from that rim. Your
testimony is that there is just no other location to put two
additional mobiles on your property unless you put them within 50
feet of the Crooked River rim."
ELLINGSON: He indicated it would be 50-70 feet from the rim
depending upon the size of the mobile unit put there. "We would
be happy to comply with any conditions you impose on us with
regard to the setback, but I think it needs to be pointed out, as
I hope you read in the record, that the Deschutes County
ordinance regarding set back from gorges, which specifically
includes this gorge, is I believe only 20 feet.
THROOP: The setback is only 20 feet but there is an additional
consideration there and that is adverse impact on a nonconforming
use that is looking for an expansion.
ELLINGSON: "At the last hearing we specifically said we would
provide vegetative screening. Mr. Fitches main concern was not
adverse impact on surrounding neighbors but rather the impact on
the gorge and the property across the river which is why we
brought in a letter at the last hearing, a letter from the Bureau
of Land management who owns the property across the gorge without
any objections to the proposed development. They feel that it is
very appropriate. There was also previous testimony that from
down in the gorge you would not be able to see the mobile homes.
"With regard to Mr. Isham's comment, he's stated that the Oregon
Statue requires that the Land Use Board of Appeals make a
decision or ruling on every issue before them. I want to read to
you language from the 1988 case which raised this issue. The
issue on page 8 is reasonable continuation of the use. The
exact same issue that we are talking about today. On page 11
starting at line 12, we need not decide in this case whether the
statutory requirement that a change in the nonconforming use
'reasonably continue the use' requires that any necessity for the
change in order to continue be shown. We conclude that the
change in use approved by the County in this case does not
continue the nonconforming use of the property. They didn't
decide that issue. They don't have to decide that issue."
ISHAM: "They decided the issue on different grounds."
PHELPS PUBLIC HEARING - PAGE 14
J85
ELLINGSON: "Exactly and they could have decided Jessel which
they did on different grounds. In response to the objectors, the
objectors moved to a site where they knew there was an existing
mobile home park. In regard to the geological safety, my clients
would be crazy to build on any fault line that is about ready to
break of into the gorge. We would be glad to provide
documentation to the County Commissioners showing by some
appropriate expert that this is a safe proposal and you could
make that a condition of this approval. We hope that the hearing
process won't continue to a point where it's not going to make
any financial sense for them to continue pursuing it. It's
already very close to that point right now. There may be other
areas for mobile homes to be built, as the objector has
indicated, but whether it's financially viable is another
question. Since most of the people that run these parks have to
work at outside jobs, I doubt than anything but a mobile estate
type of park which is where they allow single family residents to
purchase the lot as well as the mobile home they are living in.
I doubt that many of those are going in, you could probably get
an idea from your planning staff about this.
"In your consideration of the legal issue here today, I think
because of the policy issue considerations here, that you need to
find out from your legal counsel if there is any room for
disagreement. If there is any room for disagreement, then I
encourage you strongly for public policy reasons to take that
exit out of the situation because if you follow the advise of
your legal counsel, you may be closing the door to many, many
more conditional use applications for nonconforming uses. And I
think that public policy needs to be given top priority in this
matter.
"With regard to the findings of fact that the County
Commissioners approved and signed. I think in most planning
staffs, and before I was a lawyer I worked in six different
counties in cooperation with planning staff, what they do is
normally your legal staff will throw in as many findings of fact
and as many reasons for denial as possible for safety reasons.
It makes it less appealable, and I suggest that that's a distinct
possibility in this case. With regard to Mr. Fitches finding
that there were adverse impacts on the neighborhood, his
statement to use during the hearing was it was purely and simply
a matter of the affect on the land opposite the gorge, and we
think we have adequately addressed that. I encourage you to get
a copy of the 1981 memo from Mr. Isham because it talks about
vested rights. Vested rights refer to those rights of people who
have invested time, money and effort into the nonconforming use,
and that is true here. The courts are very defensive when it
comes to imposing on those vested rights, and that's why I don't
believe that the County has been enforcing or even apply the
nonconforming use ordinance, the County's own ordinance, in any
cases that I've been aware of in front of the hearings officer or
PHELPS PUBLIC HEARING - PAGE 15
00: 4 0 CVs
with the planning staff, and I just had one last year and this
Jessel standard was not raised, it was approved. In addition,
Mr. Isham needs to address, what if in fact you do go back to
your Deschutes County ordinance on nonconforming uses, if you do,
I challenge him to show me where you have a reasonably necessary
standards. Your standard is lawful requirement that even kicks
it even further out. You're going to find even fewer people that
will qualify and I encourage you to ask him to address that
issue. And finally I would like to apologize to Mr. Isham for
challenging his advise to the County Commissioners. I feel very
uncomfortable doing this. I know it's his job to give you sound
legal advice, and the last thing you want to do it say, wait a
minute, we agree with someone from outside. He's in-house and I
feel very uncomfortable doing it and I apologize Mr. Isham."
ISHAM: "Does this mean you're withdrawing your argument?"
ELLINGSON: "My apology is not stronger than my commitment to my
clients."
MAUDLIN: Any questions? (none) I am going to be gone, would
you people like to make the decision?
PRANTE: No, we would like you to come back and help us make the
decision.
ISHAM: "If I could suggest something to the Board, possibly
there are some important and technical issue to be addressed, and
I perceive that the Board wishes they be addressed during the
continuation of this hearing, possibly to maybe set a date 10
days hence whereby the issue of the proper standard could be
briefed and presented to the Board by myself and the safety issue
with Craig's assistance. And then an additional 10 days after
that where Roger can review that and respond and hold the hearing
open and also the opponent would be given an opportunity then to
also respond to both of those. Then close the hearing say within
30 days and then issue an opinion at that time."
MAUDLIN: I was thinking along the terms of 20 days if possible.
ISHAM: "I think the opponents should have an opportunity to
rebut anything that Roger would develop so maybe we can make it
7, 7 and 7."
PRANTE: I concur with Rick, we should have opportunity for
everybody to rebut.
MAUDLIN: I just don't want to go beyond 20-21 days which would
be a satisfactory time frame. Let's just get on with it. So
Rick would be able to respond in 7 days, Roger gets to respond
back in 7 days and then the opponents also have that 7-day
period of time.
PHELPS PUBLIC HEARING - PAGE 16
0094 Ri , 87
ISHAM: "Your record will be closed in 21 days from today."
MAUDLIN: So we will continue the hearing until Wednesday,
November 2.
Adjourned at 12:30 p.m.
DESCHUTES COUNTY BOARD OF COMMISSIONERS
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Lois'i tow Prante, Commissioner
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To Waudplin, Commissioner
Dick Chairman
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PHELPS PUBLIC HEARING - PAGE 17