Loading...
1995-04614-Minutes for Meeting July 18,1994 Recorded 1/26/19959504614 MINUTES Fraley Public Hearing , T- DESCHUTES COUNTY BOARD OF COMMISSIONERS " ` "57 July 18, 1994 - Chair Schlangen called the meeting to order @ 5:30 p.m. Commissioners in attendance were Nancy Pope Schlangen, Tom Throop, and Barry H. Slaughter. Others present were Sue Brewster, Assistant Legal Counsel; Bruce White, Assistant Legal Counsel; Damian Syrnyk, Planner; and Anita Mutchie, Recording Secretary. APPEAL ON DESCHUTES COUNTY HEARINGS OFFICERS FINDINGS AND RECOMMENDATIONS ON NUB 94-2. Chair Schlangen made the following statements: The applicant requested a verification of nonconforming use for a commercial truck repair and welding shop in a multiple use agriculture zone. These applications were previously considered by the hearings officer after a public hearing held on April 19, 1994. Evidence and testimony were received at that hearing. The hearings officer denied the applicant's request. The applicant has the burden of proving that he is entitled to the land use approval sought. The standards applicable to the application before the Board were as follows: Chapter 18.120 of Title 18 of the County Zoning Ordinance and subsection 18.120.010b a through bc. The procedures applicable to the hearing provided that the Board of Commissioners would hear testimony, receive evidence, and consider the testimony, evidence and information submitted into the record on appeal as well as the evidence which constituted the record before the hearings officer. The record developed to this point was available for public review at this hearing. Testimony and evidence at the hearing was to be directed toward the criteria set forth in the notice of the hearing and testimony could be directed to any other criteria in the comprehensive land use plan of the county or land use regulations when persons believed such applied to the decision. Failure to raise issues with sufficient specificity to afford the Board of Commissioners and parties to the proceeding an opportunity to respond to the issues precluded appeal to the Land Use Board of Appeals on the issue. Chair Schlangen asked if there had been any prehearing contacts with members of the Board of County Commissioners. Commissioner Throop stated he had a call from one of the members of the Fraley family and he immediately explained that he could not talk with them at which time the conversation was terminated. The staff offered a report on the prior proceedings and issues raised by application on appeal. Damian Syrnyk indicated that he had incorporated the record of the land use hearing into the present hearing for the purpose of KEY 141CKOF1iMED t'B- 51995 f'irtrt 1199ti 0138-01'72 review. He referred to a packet of information given the Board. On page one he read the legal description of the property; tax lot 701, Township 17, South Range 12 East, Section 8b which is located at the intersection of O.B. Riley Road and the Old Bend Redmond Highway. On page two he indicated the applicable criteria from chapter 18.120 of the county zoning ordinance which was highlighted. On page three was a copy from the Oregon revised statues regarding nonconforming uses also highlighted in yellow. On page four was a copy of standards from exclusive agricultural Al zone adopted by Deschutes County in 1972 with out right permitted uses and conditional. He said those standards were in effect between February 13, 1973 and November of 1979 when PL5 zoning ordinance was in effect. He then discussed the final pages of the packet i.e. the multiple use agriculture zone, photocopies of the multiple use agricultural zone current version from Title 18 of the County Code with uses permitted out right and uses permitted as conditional. He then gave a brief background. He said the County had two addresses for the subject property, 63810 O.B. Riley Road, Bend, Oregon as the street address but some of the land use and property records referred to the property as 63820. He said James Fraley applied for the verification of nonconforming use in February 1994 pursuant to code enforcement action taken by the County. He said the action went before the land use hearings officer on April 19, 1994, and that staff reviewed application materials, prepared a staff report and recommendation of denial to the hearings officer dated April 12, 1994. He said the hearings record had closed April 29, 1994, and a decision of denial was rendered by the hearings officer dated June 8, 1994. He said the decision was appealed June 17, 1994. Damian then discussed the applicable criteria of the application. He said to approve the request the hearings officer had to find the applicant had satisfied the criteria and that there were three questions that had to be satisfied. The first question was whether the use was lawful on the effective date of the zoning provisions prohibiting the use. The second criteria was if the use actually existed on the effective date of the zoning provisions prohibiting the use. The third criteria was if the use had continued to this date without being interrupted or abandoned. He said after the hearings officer's review, she found evidence that the use had been changed at some points and interrupted as well for a period of approximately two years when the use had been abandoned. He said that nonconforming uses were such because they are not permitted outright or permitted as conditional uses. In said in a multiple use agricultural zone the purpose was to provide an area where people could have a residence or engage in a use that could be allowed conditionally. He said the use they were looking at included welding as an activity as part of that use. He said there was confusion in the MINUTES PAGE 2 JULY 18, 1994 0138-0113 original hearing as to whether two uses or one use encompassing both activities was being looked at. Rich Isham asked if there was "no question in the record that from April of 1969 until 1973 the property was being used for some purpose and as a result of the zoning ordinance that purpose became a nonconforming use on the date that ordinance was effective." Damian stated that was correct. Rick then asked about the use from that particular date. Damian said the hearings officer determined the record was not entirely clear and information in the record indicated some type of a commercial operation was going on that involved the repair and work on vehicles but the hearings officer found that the information did not clearly indicate what type of a use was being looked at and its characteristics. He said one of the important details the hearings officer did not find was date, month, or year things actually started at the site. He said the applicant was raising the issue that there was information in the record to establish that the use existed. He said the applicant would also present information that the record itself would demonstrate the nonconforming use was never abandoned or interrupted for more than a period of one year. Bruce White commented on whether the uses were favored under the law. He said it was clear whether these uses were favored under the law. He felt it was clear they were not favored under the law. He said "the law states that you construe against finding the continuation on a nonconforming use and that you construe favorably any provisions that would restrict continuation or expansion of the use." Since these were not favored under the law, he felt it was the burden of the proponent of the nonconforming use to prove to the Board that all of the elements were in position at the time it became nonconforming. He indicated the exhibit on the board had been prepared by the applicants. He also said it was not enough to say that a use or activity was occurring at the time, but the level of the activity, scope, and nature of the activity at the time it became nonconforming governs what was the use at the time. He said if it were true that there were truck towing and repair on February 13, 1973, it was important for the Board to know how many trucks, how often, what times of the day were the trucks being worked on, and were they being worked on inside or outside. Commissioner Throop asked if the reason was that a nonconforming use could not be altered or expanded. Bruce stated that in our case the ordinances have said they cannot be expanded. He said it was permissible under state law but not under County ordinances. He said the other reason was that they were not favored under the law and that they existed at variance to our ordinance. He said, "in applying the criteria, you construe against their continuance because they are continuing in the face of a policy choice by the local government to not allow for those kinds of uses in the zone." MINUTES PAGE 3 JULY 18, 1994 0138-01"4 Rick Isham questioned if there was a benefit of the doubt if it would go to the applicant. Bruce White agreed that was correct and said it was just a matter of law. Commissioner Throop questioned if the applicant met the criteria whether it was a valid nonconforming use. Bruce answered yes and that it would mean the operation in place February 13, 1973, could continue. Commissioner Throop stated the operation could not be expanded or changed but that as long as the same kind of operation was continued it would be valid. Bruce White stated that to simply put up a number of uses or activities and say that those could be continued on at any level was not a permissible reading of the state law. He used as one of the closest examples found in the case law, a truck repair business in Prineville where for a number of years the main truck repair business was shifted to another site. He said there was some incidental truck repair business going on for a period of years and then the owners tried to bring back the main operation back to the same site. He said LUBA did not allow this since the business had been continued on at a lower level. They were not allowed to bring it back to the increased level but were allowed to continue at the level of use that was characterized by their minimal use of the property in the meantime. He said a nonconforming use did not operate the same as a zoning ordinance operated. He said this was not a use categorized in the zoning ordinance and that it was necessary to look to the provisions of nonconforming use law. Chair Schlangen asked if code enforcement had any reflection on this hearing. Bruce stated that he had participated as an advocate in the code enforcement hearing in prosecuting what he believed, in his role as a prosecutor, to be a use not allowed by the zone and that had a nonconforming use defense that he did not believe to be valid. Sue Brewster said this began as a code enforcement case last June and that Bruce covered that case. When it was time for the trial the parties agreed to use the form of nonconforming use permit. In November it was noticed that nothing had been done so another permit was issued and in February there was a hearing before District Court where they were asking to dismiss the case on double jeopardy grounds. Sue stated this was denied by the court. A motion had also been filed in circuit court asking that circuit court make a ruling on the 1977 variance. She said that circuit court took the county position which was that they did not have any jurisdiction as this was a land use matter. Sue stated that it was agreed in district court to wait until the hearings officer heard the case and another trial was set for the end of August 1994 thus this case was still a pending code complaint case. MINUTES PAGE 4 JULY 18, 1994 0138-0175 Larry Erwin, attorney representing the owners of the property, came forward and offered further history. He said that after Mr. Fraley had been operating his business for a few years, a neighbor complained to the county that there were problems with the operation of the business. A citation was issued for operating a business in a MUA zone for which Mr. Fraley was not zoned. He said there was no dispute about the MUA zone and that there was a commercial repair facility and storage area present. He said that Mr. Fraley went to trial and during the trial the judge said to Bruce White and Mr. Erwin that they were getting nowhere, that violation hearings could go on "all day," but what was needed was to resolve the issue. He said Bruce White took the position that he had to go through the violation process first in order to exhaust his legal remedies in order to get into circuit court and that he had a "theory that we had an adequate remedy at law which was the violation process and so he felt he had to do that." He said he agreed with the judge and Mr. White that handing Mr. Fraley citations would not solve the problem. He said a Fraley Ordinance was passed whereby they could apply for verification of nonconforming use. He said that Mr. White had told him this was in place but Mr. Erwin could not find one in place. Therefore, one was passed. He said at that point it was also discovered that a variance was granted in 1977 and a partition in 1979 and that was discussed with Mr. White. Another citation was given to them, and ultimately Mr. Erwin filed the application. He said the other violations were still pending. Chair Schlangen questioned the minor partition. Mr. Erwin responded that Mr. Bill Lee was the first person in the "chain of title of significance" that owned the property and he had a home and business in one area. He said that business consisted of welding repairs, commercial tow trucks which hauled diesel, had rigs and semi -rigs, and stored materials. Mr. Erwin said this was important because he felt the time to look at what use was permitted was in 1977 or 1979 and that in 1972 Mr. Lee built the building. At that time the operation consisted of vehicle repair, welding, truck repairs, diesel, truck/tractor repairs, heavy equipment repairs, mobile home repairs, trailer repairs, repairs on all types of construction equipment; the business was very intense with many vehicles and equipment parked on the property and shop. He said during that time vehicles were also brought in and out at various times of the day and night. He said in 1977 Mr. Lee wanted to get an Oregon Department of Veterans Affairs loan and in order to do that it would need to be residential. Because his residence and business were combined, he applied for a variance and ultimately a minor partition and asked the county to allow him to split off the subject property, limit the commercial activity to that approximate one -acre portion, and leave the other 7-8 acres as the residential portion. MINUTES PAGE 5 JULY 18, 1994 0138-0176 Mr. Erwin said that in order to grant a variance and minor partition the use must be lawful at that time. Rick Isham asked for a code section. Mr. ????? said it was 9.010 of the Code in effect in 1977 and that the information could be found in the blue notebook before the Board. Rick Isham said a nonconforming use was not an unlawful use. Mr. Erwin said that was correct. Mr. Isham asked if 9.010 would not apply to a valid nonconforming use. Mr. Erwin said if it were not a valid nonconforming use it was an illegal use and a variance could not be granted nor would a partition be granted. Mr. Isham asked if the use of the property was recognized indirectly by the granting of the variance. Mr. Erwin responded, "certainly." Mr. Erwin said from 1973 forward when the ordinance was passed, Mr. Lee's activities did not change and he was doing the same sorts of things and that the record reflected that. Mr. Erwin said it was a valid nonconforming use in 1973, 1977, and 1979. He said one of the letters found in the county files was asking Mr. Lee the uses of the property during the last five years and that Mr. Lee listed the things that were done there. Mr. Erwin said the record reflected that Mr. Lee was involved in storage of materials, construction equipment, repairs, etc. At the time of Mr. Lee's divorce, other people started operating the business. He then referred to a chronology list before the Board. He said the building had been in the same condition since 1972, that it was metal, had a hydraulic hoist for vehicle repairs, and this had not changed. He said the hearings officer had attempted to make distinction as to times when it had been a mobile home repair and truck repair and since they were different it was abandonment. He said that was not a valid distinction and that this was a commercial repair shop. He referred to the LUBA Crook County truck repair case. He said the LUBA court stated the changes in the volume or intensity generally do not constitute an impermissible change in a nonconforming use provided such changes are attributable to growth or fluctuations in business conditions and are not accompanied by alterations in the nature of or physical structures employed by the nonconforming use. He said that was exactly what was present and that the structure and use had not been altered. He said the denial of a verification of the nonconforming use would be to condemn this business. He referred to a case v.s. Clackamas County where a repair facility had been used as such in the past as well as currently. He said that in the Hangdon case the court stated LUBA was wrong when it talked about the nature of the business to be the decisive inquiry. He said this was what the hearings officer had done. He said in that past issue the court had stated the more relevant question was whether there was a common use that the various operations shared. He said in terms of abandonment, the hearings officer made a statement that there was MINUTES PAGE 6 JULY 18, 1994 0138-01"17 a two year period where an interruption or abandonment was present. He said this was not supported by the record. He said it was still being used as a repair facility when A-1 Mobile Home Repair used it. Mr. Erwin stated there had not been an abandonment, although there may have been some differences in intensity but a nonconforming use could be approved on that basis. He stated if there was a nuisance problem, that could be taken care of by nuisance ordinances. The Fraley's could be authorized to operate during certain hours. He stated they have been examined by the Department of Environmental Quality and they have a clean bill of health. The underground storage tanks which had previously been used on this site had been removed. He felt the applicant had more than met the burden of proof and the non -conforming use should be approved as a repair and storage facility. Myer Avedovech, attorney, testified on behalf of the proponent of the appeal. He stated he had read the transcripts from the previous testimony and felt that most of the complaints regarding this use were about hours of operation, noise, etc. He felt it was important that the Board take the time to review the transcripts. He felt the Hearings Officer seemed to hold the applicant to a very high standard of proof. He stated Mr. Fraley was doing structural repair to recreational vehicles, trailers, semi -trucks, but his primary function was working on diesel engines which was not different from what A-1 Mobile Home was doing in repair. He stated the use has been there and was still going there and Mr. Fraley should be allowed to continue. He stated the uses have been defined in the transcript and felt the use should be allowed to continued. Jim Fraley, applicant, stated he has known of this building since 1973. He stated this was a family run business and it would devastate his family if they were denied the use of this building. He stated his business had been labeled as strictly heavy diesel repair but they were not. He stated the do structural repair and all kinds of repairs. Commissioner Schlangen requested that Mr. Fraley describe what kind of activity takes place at this site each day. Mr. Fraley stated it was an acre in size and their primary business was trucks but they also work on a lot of cars, utility pick ups, motor homes and they do some fabricating and welding. He stated they try to keep the site clean and do not have trash laying around such as engines and transmissions. Mr. Fraley stated that when he moved onto that site, he removed two semi -truck loads of trash from the property. Bill Prewitt testified that he had been involved with land use issues since 1973. He stated this particular property was owned by Bill Lee. He stated he had been involved in this property since 1973 at its inception. He stated this property had been used for MINUTES PAGE 7 JULY 18, 1994 0138-01'78 commercial industrial use since 1973. He stated there has been a use there all the time since then but was not sure whether the level of use had gone up and down. He stated this was clearly a commercial industrial use under a non -conforming use. Bill Prewitt stated the question was whether this was a legal non -conforming use or not. He felt the documents since 1973 indicated that it had been used for a commercial industrial use. He stated that if a use causes excessive noise, smoke, etc. these things could be controlled. A conditional use permit could be issued for these problems which stated works hours would be 8 a.m. to 5 p.m., no night time hours, no excessive lights, no loud equipment which produces smoke, etc. He testified that the property values in this area have not decreased. Jeannie Fraley testified in support of this appeal. She stated she had lived here since 1969. She stated as long as she could remember there had been equipment on this property. She stated that if the neighbor had a problem, she felt they should have come to talk to them. She felt this issue had stemmed from a personal problem with Mr. Suydam. She submitted written testimony as to the happenings regarding Mr. Suydam. Lloyd Suydam testified in opposition to this non -conforming use variance. He stated he lived immediately adjacent to the property in question. He stated he passes by this property several times everyday. He has lived there since 1985. He stated that two or three years ago he had a petition signed by the entire neighborhood in order to get the county to act on this matter. At that time the County thought that the place had a variance to operate. The variance that was referred to was a variance to split property and had nothing to do with operating a diesel truck repair business. He stated that in order for him to get any action taken on this issue he had to write to the governor. He stated there were several complaints from the neighbors over the years but nothing was done until this point. He stated A-1 Mobile Home Repair was strictly travel trailers and mobile home repairs which were strictly structural. It was a one man operation and he was very quiet and low key. He felt the Fraley's use had totally changed the use. He stated this was a very noisy, dirty, smokey use. He stated he lived down wind from this use and was not able to open his windows during the summer time because of the dust and diesel smoke. He stated the road condition had deteriorated with all the truck traffic. He stated that there were school bus stops along the road and it was not safe to have that many trucks on the road with the school bus stops. He stated the twenty-four hour operations was a problem due to air brakes being tested or a horn honking at 2 a.m. in the morning. He stated that this property had not been cleaned up until the last hearing was held. He felt the applicant had another place to which to move his business. He felt this business was devaluing their property due to the noise and close proximity of the truck repair business. He stated there was MINUTES PAGE 8 JULY 18, 1994 13 08-01"9 a lot of evidence that shows that this business had not always been there as it was at the present time. Commissioner Slaughter requested Mr. Suydam show him where his property was located on the map. Mr. Suydam did so. Robin Pfeifher stated she lived across the street from the Fraley's business. She stated the scope and intensity were the issues and that the issues of pollution and noise and working twenty-four hours a day were in fact a direct consequence of the increase in scope and intensity. If this business had not grown larger and changed, they would not be here today. She questioned that if people had lived here for 10 years, why this had not been brought up before. She stated that in the short time that she has lived there, she has been awakened early in the morning on Sundays. She stated things have changed. She felt she should not have to get up at 2 a.m. to ask someone to not be noisy. She stated there was a possibly to put restrictions on this business, but she felt that every time they did not meet those restrictions she would have to call and make a complaint. Bruce Ronning testified in opposition to this non -conforming use. He stated he was not available for the earlier hearings on this issue. He stated he had concerns regarding noise, pollution, air quality, visual pollution, and odd working hours. He stated he was concerned that if this use was approved, how would the County enforce compliance. He stated industrial uses were grouped together in order that they can be monitored, but this was separate from other industrial uses which would make it difficult to monitor. Jim Fraley felt he was taking a "bum wrap" for traffic and tearing up the road. He stated all kinds of trucks travel that road including trucks from Bend Aggregate. He stated that they normally do not park down below, except for four times during the last year. Occasionally that has happened, but he cannot work on that many trucks at one time. He stated he usually started work at about 8 a.m. and finished up at 6-6:30 p.m. He stated they cannot work twenty-four hours per day. He stated there have been times when trucks have pulled up into their yard. Commissioner Schlangen asked Mr. Fraley if he had other industrial property where he worked on engines. Mr. Fraley stated that he did not. Mr. Erwin stated that the County could restrictions on non- conforming uses. The County could say this use has existed since 1973; however this business shall only operate during normal business hours and include other restrictions. Commissioner Throop requested that Mr. Erwin describe the reasons that the Hearings Officer denied this issue. Mr. Erwin stated that MINUTES PAGE 9 JULY 18, 1994 0138-0180 Ms. Fancher felt she had no choice as it was an all or nothing issue. She took a very strict approach and put a burden on the applicant that was nearly impossible to meet. He stated they had submitted statements from neighbors and everyone along that road near that property. He felt Ms. Fancher did not want to determine the exact level of use, the normal business fluctuation, and the normal business cycle over twenty-two years. He felt the hearings officer got caught too tied up in the minutia to look at the big picture. Chair Schlangen questioned if the use was not stopped from 1984. Mr. Erwin responded no and that the hearings officer said there was no use for two years except for the repair of motor homes and mobile homes. He referred to Mr. Grogan's letter and statement that he was repairing motor homes, mobile homes, and travel trailers. Myer Avedovech said he had four pictures that he wanted to introduce into evidence for clarification. One was Mr. Suydam's property with the shop, a photo of the neighbor Pfeiffer property, Robinson & Son business on O.B. Riley Road, and the State yard of O.B. Riley Road. Chair Schlangen asked for rebuttal. Lloyd Suydam said the highway was further from the residential zone than the business and was not a problem. He said the level of use had increased considerably. He said it was never a truck repair shop and it was not a diesel tractor repair business. He said Ralph's A-1 Motor Homes was a motor home repair business involving structural repairs but no engine work. He said this information was documented in the papers before the Board. He said it was not a level of use but a change of use and that level of use could not be regulated by saying they could have one truck or two trucks a day. This would not change the noise and pollution problems or that their properties were being devalued by its presence. He said it did not belong and that Liz Fancher was correct when she stated it was an all or nothing thing. Mr. Suydam stated that this was not commercial property but a residential, MUA-10, neighborhood. He referred to the pictures handed out by Myer Avedovech and said the businesses illustrated were about three miles away. He said the people within 500 feet of the property were the pertinent people. He said that in 1992 he took a petition of every resident within 500 feet and stating they did not want the business present. Chair Schlangen asked Mr. Suydam if he had a business in his residence. He said no, he had a metal shed on his property about 20' x 20' for storage purposes only. Chair Schlangen asked about the access to his property. Mr. Suydam said he had a driveway off Highway 20 which was "impossible to use due to traffic" as well as a deeded access from the Old Bend -Redmond Highway. MINUTES PAGE 10 JULY 18, 1994 0138-0181 Commissioner Throop asked when the property was purchased. Mr. Suydam said October 1984 or 85. Commissioner Throop asked why he would purchase the property knowing the category of uses occurring on the Fraley property. He said at the time he was working for a security company and that Mr. Fraley's business had nothing in it. He had been hired to check the vandalism problems related to the Lee's divorce case on the property he now owns. He said in doing so, he had to pass by the building doing diesel service and there was nothing in that building. He said when "Ralph came in it was very quite." He said it was in receivership from 1984 until purchased by "Sophie" in 1987 or 1988. He said he had no concerns about purchasing his property because he knew "the grandfather clause had expired." Commissioner Throop asked why he thought the grandfather clause had expired. Mr. Suydam said it was because the uses had changed as well as ceased. He said the building was totally vacant and not used at all in approximately 1983 and 1984. He submitted aerial photographs showing the area in question all grown over with weeds and brush. He said the photographs were dated 6/23/79, 5/5/85, and 7/28/90. He said there was only one vehicle in all the photographs. Chair Schlangen asked if there were requests to leave the record open. No requests were offered. Therefore, the record was closed, the public hearing was closed, and Chair Schlangen stated a decision would be made on Wednesday, August 3, 1994, at the 10 a.m. Board of Commissioners meeting. DATED this /8 f1l day of , 1994, by the Board of Commissioners of De#chute Co ty,pregon. AT Recording Secr tart' Sc, langen, Tom Throop, Commissioner x"Vh��✓ Barry H. Slaughter, Commissioner MINUTES PAGE 11 JULY 18, 1994