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2004-709-Minutes for Meeting February 18,2004 Recorded 4/21/2004DESCH TES COUNTY OFFICIAL UBLANKENSHIP, COUNTY CLERK CJ 1044'149 NANCY COMMISSIONERS' JOURNAL 11111fi11110111104/Z1/2004 04;48;59 PM miunu m oil 2004-709 DESCHUTES COUNTY CLERK CERTIFICATE PAGE L C This page must be included if document is re-recorded. Do Not remove from original document. { Deschutes County Board of Commissioners ' 1130 NW Harriman St., Bend, OR 97701-1947 (541) 388-6570 - Fax (541) 388-4752 - www.deschutes.org MINUTES OF PUBLIC HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, FEBRUARY 18, 2004 Commissioners' Meeting Room - Administration Building - 1130 NW Harriman St., Bend The purpose of the hearing was to take de novo testimony on an appeal of the Deschutes County Hearings Officer's denial of a verification of a non -conforming use that had been applied for by Walter and Joyce Fleming ale #s A-04-3/NUV- 03-1). Present were Commissioners Dennis R. Luke, Tom De Wolf and Michael M. Daly. Also present were Laurie Craghead, Legal Counsel; Kevin Harrison and Catherine Morrow, Community Development; one of the applicants, Joyce Fleming; Attorney Bob Lovlien; and the applicants' neighbors, Joe and Barb Whiddon. No representatives of the media or other citizens were in attendance. The hearing began at 2:35 p.m., at which time Chair Daly read the preliminary statement (a copy of which is attached as Exhibit B). There were no declarations of pre -hearing contacts, biases or conflicts of interest. No challenges were offered. At this time, Catherine Morrow gave the staff report, explained the zoning of the property and referred to an oversized aerial photograph in order to point out the location of the property, the two driveways accessing the property, the location of major roads, and the zoning of adjacent properties. The applicable criteria were posted on a wall at this hearing. Ms. Morrow then explained the history of the use of the property. She also said that the time period ends on June 20. Mr. Lovlien stated that an extension could be granted if necessary. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Fleming Tuesday, April 13, 2004 Page 1 of 10 Pages The Hearings Officer issued her decision on January 27, 2004, and denied the application. The Hearings Officer found that the applicants do not meet the burden of proof that establishes that the use was lawfully established, and that the use was continued uninterrupted and not abandoned, and to the same extent and nature as when it became non -conforming. Those are some of the key findings. Ms. Morrow stated that the Hearings Officer found gaps in the evidence that was presented, and wasn't able to determine whether the gaps went beyond the one-year abandonment period. Secondly, she found the evidence in the record was inadequate to establish whether the use has been continuous in a seamless nature in terms of the extent of the use since it became non -conforming. The third issue was that the evidence in the record strongly suggested that it was not lawfully established. She pointed to several things listed on page 10 of her decision, including that there was no manufactured home placement permit, no building permit for the commercial shop, and no septic permit, along with a few other things as well. The appellants believe that they submitted substantial evidence to show that it has been in continual use since it was non -conforming, and that included the manufactured home as an office. They believe that the Hearings Officer is actually establishing a higher burden of proof than what is set forth in the ordinance, which they believe to be a mere preponderance of evidence. Notice was published as required, and two comments were received from Harry and Leslie Ketrenos, who live a couple of properties away. (Copies of the letters are attached as Exhibit C.) The Commissioners indicated they had read the letters. Attorney Bob Lovlien indicated he had received copies of the letters as well. The Ketrenos are opposed to the non -conforming use verification application for a few reasons. They believe that it will set precedence for commercial use in the MUA-10 zone; that it is unsightly; that there is noise created by trucks idling and air compressors and other noises that drown out the sounds of the nature. They believe that the entryway is a danger in terms of the slow trucks coming out of that location with Highway 20 so close by, with a long curve. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Fleming Tuesday, April 13, 2004 Page 2 of 10 Pages The Ketrenos had submitted comments for the original hearing, but did not show up at the hearing. They said that they moved to their property in 1989 and there was no business operating at the subject site at that time. They submitted an aerial photograph dated November 16, 1990 from Bend Mapping and Blueprint that shows no mobile home, no road maintenance equipment or supplies, and no gravel parking lot. (The Commissioners viewed a small copy of the photograph at this time). They said that when Pavement Protectors left the property after 2001, there was nothing there except for old cars, junk and car parts. Commissioner DeWolf said that there are two photos; one that claims to be July of 1988 and another that claims to be April 1996; one without the mobile home, and one with the mobile. He asked how they could be sure they are actually the dates they say they are. Ms. Morrow stated that they are copies of the Assessor's records. (She reviewed the photos with the Commissioners at this time) Ms. Morrow said that the property started out with a 30 x 30 shop in 1980, and by 1988 the shop went to 1,620 square feet (36 x 45), per records of visits made by the Assessor. The manufactured home was not located on the property when the Assessor went out to the property in July 1988, but was there in 1996. Also, the Assessor's records document changes to the shop. None of these things are documented in the County's building permit process. Commissioner DeWolf asked about the significance of the mobile home being there or not being there, and the significance of the size, in regard to what was there ten years ago. Laurie Craghead said the significance is that as part of the statute and code, the Commissioners have to determine the nature and extent of the business over the past twenty years, and whether there has been a change in the nature and extent of the business over that time. This could relate to changes in the location of the structures, the hours of operation, the types of businesses conducted at the property, and if the use was abandoned or interrupted. Commissioner DeWolf asked if there are issues about no building permits being obtained; and if this occurred over twenty years ago, is there nothing that can be done about it. Ms. Craghead concurred, but if changes had occurred during the past ten years, the applicant must show rebuttable presumption unless there is other evidence that comes in. This would be presumed to be a legal, non -conforming use. However, if there were other evidence in the record that rebuts that, they would have to go back another ten years. Much depends on the nature and extent of use of the property and the individual structures. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Fleming Tuesday, April 13, 2004 Page 3 of 10 Pages Commissioner DeWolf asked that if it were, for example, being used for storage for five years, and now they want to use it commercially, since this is not the same use it would therefore be inappropriate. Ms. Craghead said there are a couple of considerations; did the structure(s) exist over the last twenty years continuously; and what was the use of the structure(s) during that time. At this time, Ms. Morrow distributed a sheet entitled "Timeline", which details the companies that used the property since 1976, and the types of businesses involved. (A copy is attached as Exhibit D.) This information was taken from the Hearings Officer's findings. Bob Lovlien stated that letters #3 and #4 are all that is new in the record. The third letter was received today from the Whiddons, and the fourth letter is from Donald Fowler, who was the last person in possession of the property. Mr. Lovlien explained that the Flemings bought the property in November 1987 from Joe Levesque. JAL Construction had been on the property since 1976, and Mr. Levesque built the shop and had a small mobile home located behind the shop that he used for his office. Letters have been submitted to the file regarding this situation. Shortly after the Flemings bought the property, there was an initial complaint filed for code violations, and at that time Community Development staff made the finding that it was a non -conforming use, and had activity for years with no violations. When Mr. Levesque moved his business off the property, Ms. Fleming testified that they almost immediately leased it to J. C. Compton, who had the construction contract to build Highway 20 from Bend to Horse Ridge. This company was there for at least two years. As soon as that construction job was completed, Pavement Protectors moved onto the property and were there through 2001. Then Dan Fowler took over. The Flemings bought the property partially because there was income from the lease of the shop and mobile home. Mr. Fowler had a backhoe, trailer, dump truck and other equipment located there. The economy didn't do well at that time and he ran into some financial problems. The photos show some cars on the property, because at the time he was liquidating his business, and the Flemings were working with him during this time to help him liquidate items. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Fleming Tuesday, April 13, 2004 Page 4 of 10 Pages Mr. Lovlien pointed out that during those years, all three businesses were very close in the nature of the business they conducted. He said that there was a small mobile home on the property when the Flemings purchased it. Joe Levesque indicated he was using a mobile home on the property for an office, but over the history of the property there were different mobile homes. In May or June of 1991, the older mobile home was replaced by one installed by Pavement Protectors; they brought in the mobile home that is seen there today. They paid personal property tax on that mobile home from June 1, 1992 to May 31, 2002. The location was slightly different, but it was still behind the shop building. It had been moved out so it was somewhat more visible. So, it has been there for more than ten years. The trailer is not hooked up to a sanitary system, and it's a single wide that has been used as an office. It has never been used as a residence. Portable toilets are required. Most of the business is done off-site during the day. Commissioner Luke asked why there was no permit obtained in 1991. Mr. Lovlien said that Pavement Protectors did it. Catherine Morrow stated that the file shows there are comments from the Building Division that a building permit was issued in 1979 for an M-1 occupancy, which is no longer used in the current code. It was replaced with a "U" occupancy designation. The permit was obtained to erect a structure to be used as an accessory building to a single-family dwelling. There is no record of any other structure being placed on the property. Mr. Lovlien said that they did apply for a conditional use permit for the shop next to the house, so there is some confusion in the record about which shop is being referred to. He speculated that Joe Levesque built the shop without a building permit in 1976. No evidence of this can be found. The shop had been there for some time when the Flemings bought the property in 1987. They didn't make any alternations to the building except replacing the door after it was damaged. They have been paying taxes on the mobile home since June 1991, so the County knew about its existence. It's not a manufactured home that is sited on a property for a residence; it replaced the old office structure that had been there for a long time. Commissioner DeWolf asked if a permit would be required if the mobile home isn't being used as a residence. Ms. Morrow stated that is a good point, as this was also brought up in the staff report. The County has never allowed a manufactured home or a mobile home to be used other than for residential purposes. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Fleming Tuesday, April 13, 2004 Page 5 of 10 Pages Kevin Harrison added that it wouldn't be considered a single family dwelling, since there's no septic or kitchen. If the replacement requires permits, this alters the non- conforming use. Commissioner DeWolf pointed out that one of the difficulties is that they are being forced to address something that began 24 years ago. It's possible that the inspector never even measured the building. He added that he's not sure that changing one mobile home for another actually means you've changed the use, if the structure is being used for the same basic use. You may have broken the law of getting a permit for the new one, but it could be that the same function is being done and there is no break in the continuous use. Laurie Craghead stated that by statute and by code, when you alter it, all alternations must comply with code. Bob Lovlien argued that you haven't done an alteration; you merely replaced one trailer with another. Ms. Craghead said that it is still an alteration. Ms. Lovlien stated that even Pavement Protectors referred to it as a trailer, not a manufactured home. Commissioner Daly said that he doesn't recall ever having to get a permit to place a job trailer at a job site, but you do have to have a permit to hook into electricity. Ms. Craghead observed that a job trailer is meant to be temporary, as are portable toilets that are meant to be temporary until a septic system is installed. Mr. Lovlien explained that he wanted to make sure the Board understands the nature of the trailer. They went back in the records and can substantiate what happened; Pavement Protectors replaced the trailer that was there. The trailer has been there for more than ten years. Commissioner DeWolf said that he still doesn't understand the connection between the trailer being replaced and a break in continuous use. Laurie Craghead stated that it would like having a house that is torn down and replaced by another; it is an alternation and must be done under current code. Commissioner DeWolf said that it has always been a house. Ms. Craghead stated that the initial decision would be that it has always been a house, and even though it is no longer allowed in that zone, they can have a house but have to build it according to building codes. Therefore, the trailer would have to have a placement permit. Mr. Lovlien pointed out that the change in the nature of the use hasn't happened; it has been consistent since 1976. Since 1989 there has been no change in the shop building. The trailer has been there for more than ten years, and taxes have been paid on it for ten years. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Fleming Tuesday, April 13, 2004 Page 6 of 10 Pages Commissioner DeWolf stated that the Assessor's Office and Tax Office know that it is there, but Community Development doesn't know it is there. Commissioner Luke pointed out that there were no building codes until the 1970's, and it wasn't as organized as one might have hoped for a few years. Commissioner DeWolf said that it is a pretty good argument that they have been paying personal property taxes on this structure for more than ten years. And a branch of the County acknowledges that it has been there for that long, and took the tax money on that. Ms. Craghead said that it is not uncommon for jurisdictions to tax illegal uses on properties. They do that because they don't want someone to benefit from their illegal use. Mr. Lovlien pointed out that a third branch of the County looked at it in 1988 as a non -conforming use with no violations. The Planning Department wasn't acting in a vacuum, either. These were visible businesses in the community, and for almost twenty years no one objected. Commissioner DeWolf asked if this resulted from a complaint. Ms. Morrow said that a neighbor complained, but she doesn't know who that is. Joe Whiddon, who lives across the street from the property, then spoke. He said he has seen the building for at least sixteen years. There is some noise, but mostly it is from the highway. There has been a mobile there since he can remember, but it was moved on the property at some point. As far as being a safety hazard when pulling out on the street, there's a straight road and there is no traffic issue except for people speeding past there. Commissioner Daly asked that if the trailer wasn't there, is there still a problem with the use? Is the trailer the only issue? Ms. Morrow said the Hearings Officer had a problem making the connection regarding the continuous use for the past twenty years. Mr. Lovlien stated that the use has been continuous with no breaks of a year or more; Barb Whiddon and Ms. Fleming concurred. Ms. Whiddon went on to say that they are the closest neighbors and can vouch that the use has been continuous. She and her husband have always been aware that operations have gone on there continuously, and it hasn't been a problem for them. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Fleming Tuesday, April 13, 2004 Page 7 of 10 Pages Commissioner DeWolf commented that it appears the only reason this is before the Board is that one office trailer was replaced with another office trailer, and there is no permit on record. Ms. Craghead corrected him; she said the reason is the Hearings Officer didn't find evidence of the business itself not being abandoned since it could not be proven that the use was continuous. Ms. Morrow said that the original code enforcement was in regard to violations of using the property for commercial purposes, car sales from the property, and no placement permit for the manufactured home. That was the original violation. There were informal discussions with Mr. Fleming and it was discovered that there was a whole business being operated out there that there was no current information on. It is a commercial use in an area that doesn't allow commercial uses. Commissioner Daly pointed out that there is plenty of evidence the commercial use had been going on for years. The only issue was that there may have been a gap in use, and there is no evidence to dispute that. Ms. Morrow said that copies of receipts or bills, or lease agreements, would help to prove their point. Ms. Lovlien stated that he thought testimony from the neighbors would be the best evidence they could have. They said in their letter that the property has been consistently and continually used in a commercial manner. Ms. Craghead said that the Hearings Officer asked what the nature and extent of that was, such as the hours of operation and how many employees there were. Therefore, the Board would have to decide what the nature and extent of the business, and whether there was a limit to the hours and number of people. If you can show continuous use and it wasn't abandoned, and there is no other evidence to rebut it for ten years, it is presumed; so they would only have to go back for ten years. If there is evidence to rebut it, they would have to go to twenty years. If the Board decides that the businesses were similar enough in nature, it was a continuous use. Commissioner DeWolf pointed out that this appears to be a neighborhood dispute over reported problems with noise, dust and so on. He asked if this is affected by the home occupation ordinance. Ms. Morrow said that it would be helpful to define the hours of operation and the number of employees, and to give it some parameters so that everyone knows what is expected. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Fleming_ Tuesday, April 13, 2004 Page 8 of 10 Pages Ms. Craghead stated that it doesn't fall under the home occupation ordinance because the owners aren't involved in the businesses. Commissioner Daly said that there were lots of employees for some of the businesses. Joyce Fleming said that it is not occupied at this time because of the situation, and didn't want to rent out the property and then possibly have to make someone move. Commissioner Luke stated that he doesn't have a problem with the businesses working out of the property; they are similar. He does have a problem with the mobile changing, and it's probably better if it isn't there. There is also a problem having portable sanitation facilities, which are meant to be temporary. Commissioner DeWolf asked if there could be a permitted use for an office like this. Mr. Lovlien stated that the trailer has been there for more than ten years. Commissioner DeWolf pointed out that the nature and extent of the building has been the same for the whole twenty years, even thought the trailer was changed out. Commissioner Daly asked if the Board finds that the use has been okay and has not changed, can the owners then apply for a mobile home placement permit. Ms. Morrow said that theoretically if there is a valid nonconforming use, there is another application process for an alteration of a valid nonconforming use. The criteria for that is not that extensive. They would have to comply with current code, however, when it comes to the sanitation system. Mr. Lovlien said that the interpretation could be made that there has been no change even though the mobile home was replaced. Pavement Protectors put it in and paid the taxes on it. The shop is the important part. He said he knows about the alteration of the nonconforming use, and if that decision is made, he asked for a reasonable amount of time to make that decision. This has been an expensive process for the Flemings when they didn't think they had a problem. Mr. Lovlien asked that the record be left open for ten days, until April 23; no rebuttal time is necessary. Commissioner Luke said that one option is for the Commissioners to find that the use has been continuous and nonconforming, except for the trailer. It could be allowed to remain long enough for the applicant to make application to establish the trailer as part of the nonconforming use, and to address the sanitation issues. Mr. Lovlien should talk with staff and arrange for sewage disposal. Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Fleming Tuesday, April 13, 2004 Page 9 of 10 Pages Ms. Fleming stated that she doesn't understand why this is so complicated and is taking so long. Mr. Lovlien advised her that the Board is conducting the hearing as a favor, even though it appears to be a long and confusing process. Commissioner Luke added that land use didn't start out to be so complicated, but has become that way over the years. Being no further discussion or testimony offered, the hearing adjourned at 4:15 p. m. DATED this 13th Day of April 2OO4 for the Deschutes County Board of Commissioners. ATTEST: IN, flt�, IfMul- Recording Secretary Mi hael M. Da y, C r /_� Dennis R. Luke, Commissioner Tom DeWolf, Commissioner Attachments Exhibit A: Sign -in sheet (1 page) Exhibit B: Preliminary Statement (3 pages) Exhibit C: Copies of Letters from Harry and Leslie Ketrenos (7 pages) Exhibit D: "Timeline" sheet compiled by Catherine Morrow (1 page) Exhibit E: Copies of documents relating to use of the property (12 pages) Minutes of Public Hearing regarding an Appeal of the Hearings Officer's Decision - Fleming Tuesday, April 13, 2004 Page 10 of 10 Pages q w U N cm .c- 72 U cry Los N H N d `= M T� � � M �+ LL Ri M 0 t Q � o � a J Q12 iv �a a N L L •L � ~ h Z o a 9 E hibi f_t_ f l d 4 P ge q w U N cm .c- 72 U cry Los PRELIMINARY STATEMENT IN APPEALS BEFORE THE BOARD I. INTRODUCTION A. This is a de novo hearing and is on the appeal of the Deschutes County Hearings Officer's denial of a Verification of a Nonconforming Use, File Numbers A-04-3/ NUV-03-1. B. In that application, the applicant requested a Verification of a Nonconforming Use Consisting of a Road Construction and Maintenance Business, and Placement and Use of a Manufactured Home as an office on property zoned MUA-10. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicants have the burden of proving that they are entitled to the land use approval sought. B. The standards applicable to the application before us are on page 1 of the Hearings Officer's decision dated January 27, 2004 and are listed on the wall. C. Testimony and evidence at this hearing must be directed toward the criteria set forth in the notice of this hearing, the Hearings Officer's Decision, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the proposed conditions of approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. Page 1 of 3 -Chair's Opening Statement for Land Use Hearings File: A-04-3/NUV-03-1 Date of Hearing: 04/13/04 Exhibit Page of 111. HEARINGS PROCEDURE A. Evidence to be reviewed by the Board. The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. IV. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the appeal will then be given a chance to testify and present evidence. When all other proponents have testified, opponents to the appeal will then be given a chance to testify and present evidence. 4. After both proponents and opponents have testified, the applicants will be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. B. Cross-examination of witnesses will not be allowed. A witness who wishes, during that witness' testimony, however, to ask a question of a previous witness may direct the question to the Chair. If a person has already testified but wishes to ask a question of a subsequent witness, Page 2 of 3 -Chair's Opening Statement for Land Use Hearings File: A-04-3/NUV-03-1 Date of Hearing: 04/13/04 Exhibit � 3 Page oZ of that person may also direct the question to the Chair after all other witnesses have testified but prior to the proponent's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances The grant of a continuance or record extension shall be at the discretion of the Board. a. If the Board grants a continuance, it shall continue the public hearing to a date certain at least seven days from the date of this hearing or leave the written record open for at least seven days for additional written evidence. b. If at the conclusion of the hearing the Board leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. 4. If the hearing is continued or the record left open, the applicant shall also be allowed at least seven days after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. V. PRE -HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS A. Do any of the Commissioners have any ex -parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state the nature and extent of those. B. Does any party wish to challenge any Commissioner based on ex -parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) Page 3 of 3 -Chair's Opening Statement for Land Use Hearings File: A-04-3/NUV-03-1 Date of Hearing: 04/13/04 Exhibit Page _3 of 3 April 9, 2004 Re: File Number A-04-3 (NUV-03-1) Tom and Joyce Fleming Appeal This in addition to our letter of concern on the land use planning zone change appeal hearing. Enclosed please find an enlarged portion of an aerial photo covering the land where the zone change is being requested. As my letter of concern said in the early 90's there was not a business on this property which the aerial photo shows. There is no mobile home, no road maintenance equipment or supplies, no gravel parking lot or driveway. The photo was taken on 11-16-1990 and is available at Bend Blueprinting. There are newer photos showing the business of Pavement Protectors but this aerial photo shows that there was not one there prior to Pavement Protectors. Again thank you for your time and consideration. Sincerely, Harry and Leslie Ketrenos Exhibit Page l of -7 ill A rPr�- v, ;-\c4e r app" Cit{f ti y Exhibit C - Page of 7 Re: File Number A-04-3 (NUV-03-1) Tom and Joyce Fleming Appeal Again I am unable to make this meeting but want to voice my concern over this appeal. I cannot understand why an appeal has even been allowed with the many violations of land use planning that were disregarded on this property. I also believe the property owners should be providing Deschutes county with rent receipts from the years they claimed the property in question was used as a business to qualify for this land use exclusion. When we moved onto our property in 1989 the lot was not a business. It was several years later that Pavement Protectors moved onto the property and operated a business. Before Pavement Protectors there was not a business there for several years as the documents from the Fleming's claim. I believe aerial photos from 1989 to around 1991 to maybe 1993 of the area would show this to be true. I am not sure what the "business" was after Pavement Protectors but it did not have anything to do with road construction and maintenance as claimed. There were no vehicles at the rented shop area that could be used for such a purpose after Pavement Protector's moved out. Afterwards what occupied the property was older cars and car related items for sale. I have attached a few pictures of some of the vehicles that were on the property after Pavement Protector's vacated. I also talked with the person that rented the shop after Pavement Protectors and he was not into road maintenance but into mechanical work on older cars. My original letter is attached to this one showing my concerns about allowing a new business in this area of small hobby farms. When Pavement Protectors moved onto the property we questioned the Flemings about the use of the land and were told that the portion of the land was zoned commercial. We did not check into it further as we had no reason to believe it wasn't the truth. The noise and eye sore the business, Pavement Protectors, created I felt was always a blight to this area of small hobby farms. After Pavement Protectors moved out the property was not occupied for at least a month or two then the property became even more of an eye sore with junker cars and other junk always piled up for sale. We put up with it thinking we purchased land near an area that was zoned commercial and it was our fault for not checking further. Another thing that I believe the county should consider in this appeal is the position of the property on Powell Butte Highway. The driveway is just coming out of a curve and close to the intersection of Powell Butte Highway and Highway 20. This makes it extremely dangerous for cars turning and coming out of the property. Most drivers know that the road is straight right afterwards and are accelerating immediately as this is one of the few areas that it is "safe" to pass until the Bend Airport. It is dangerous to be suddenly confronted coming out of the turn with a car stopped to turn into the property. This happened with Pavement Protector trucks along with their trucks pulling out heading towards the Bend Airport... Vehicles accelerating to highway speed then come around the corner with a truck that is in the process of entering the roadway in an area of small hobby farms. Even using proper turn signals and distance I have almost been hit numerous times turning into our driveway which is 3/10ths of a mile from the major intersection. It is a dangerous section of road and adding business traffic adds to the danger. Knowing that this land wasn't zoned commercial and the unlawfulness in which the property owners have acted I hope the County Board of Commissioners considers strongly my concerns and rejects this appeal. Thank you for you time and consideration. Sincerely, / ) RECEIVEn/ Harry and Leslie Ketrenos�- 62237 Powell Butte Road � �� 541-383-0130 6 �-, APR - 8 2004 DESCHU�,. UNIi-,Y C0� Exhibit C 'Page 3 of -7 To Who It May Concern: RE: Land Use Planning, MUA 10 Exclusion Tom Fleming File Number NUV-03-1, 62203 Powell Butte Hwy. My name is Harry Ketrenos and I work for the U. S. Forest Service. Due to a forest fire assignment I am unable to attend the hearing for the exclusion from MUA10 on a parcel of land, File Number N V-03-1, 62203 Powell Butte Hwy. near the comer of Hwy 20. I"am a property owner that resides at 62237 Powell Butte Hwy. and I am opposed to the farm land exclusion. Here are my feelings and concerns with allowing an exclusion to said property: 1. There is plenty of commercial land for such businesses. Land that is set aside by land use planning laws for such use. Allowing an exclusion sets a precedent for others in the area that would like to do the same. Another neighbor owns his own business and rents commercial property for it. I'm sure that he would love to save the expense of renting commercial land and conduct business on his own land. There are more such people in the nearby area. It isn't right to allow one and not another, just as it wouldn't be right to deny people the right to a hearing such as this one. 2. MUA is land set aside for agriculture. With the exception of the county road department storage area this is an area of small hobbies farms that are all used for that purpose. When buying our property it was because of the land use zoning law of agriculture use and that such activities as the one proposed was not allowed. We do not care to listen to big trucks idling at all hours, air compressors, and other business noises that drown out the sounds of nature. 3. This parcel of land is in a visual management corridor for Hwy. 20. Piles of asphalt, gravel junk cars, cars for sale and equipment scattered everywhere is not visual pleasing or in character with the zoning of MUA-10. Yes, the comer parcel next to this property is a road maintenance storage area but the county owns the land and may control the appearance. This is a private owned parcel and the county would not be able to control it's appearance. Again we are in this area to enjoy farming, animals, and what rural living naturally brings... We do not care to listen to big trucks and noises of a business or look at the eye sore a business like what is proposed will bring and open a door to more in the future. Thank you for your time. Sincerel , 14, a Harry E. Ketrenos Leslie Ketrenos 62237 Powell Butte Hwy. Bend, Oregon 98701 541-383-0130 Exhibit C_ Page -- /-f of -_ .A 1 j v Ry P r° y Cts 7} s i `` WC RW " A...t apy 4 6 7� y.s §x"...-'�f sW mom mini A t �! T8 ? gas � •`(.- .¢=Pmyfyyr'wu"✓ry4 n. S' k Y -WIN low rx s of hot 1.7 Le YF S 7 I y� x t 6 i�4 Platt F t f es rrx. sir t i i x 4 A 5 �- tv s�� i ef, r't�T'a' = �•' r it r i cpy vow g, ns -owl dad ,�".�43.r��' mom Y �., •s4sv,. ,�^ "iJdd'";r/'3 ',-K:2— nm "'fi �i . Y} `�i• °'. s # q9t Ry �` .. - l t •gc°^ ,4 _ .aa �. s. �` �iR '', tar w � •�"*f'a'r t: ,: ��. sd - .. q it �; �`,Sr�� toy up z `�� .s`� ���, � ,:f,�• ,,; . '4i5 *� 1r`�..:o-.- am r,'"•. t r y ; � € ri�� � � -' �+'�{r'' '� . S 4 f e. `r."y,4 .d i.. i4 C >: fl •r 4 ik £, Aft, : a r , � :,��- "'..4a alk;: i�rh ,a:,. .•, ."S - � - ,ui,6. �" df' f } E � z� tz p .. Y�3� lot t �'i 'f 5 law �j�° ° ��as `AMv mom^} G 2'°"�' .c+ Y �T,d,^t"v'.'°'w✓o'^ irt''Y. 4� S*.: d won It` low AN . d i �i{r} 1 rvi . .•w e4JsAT'4'I"'" "` g .-.aa+m _ < "'"^ j� si' ,+ r. a. ::J��`�,r+1 :,7 4 � t, ,: � ;. ��rxN� •f '�.'F '' ..i�`i'�.. - i v x s� 7 I% y Wea� SM \ ;+ tn. +yt•` 5 r �?- . r^•• IFY'';+'',�£ �•�N.y� n � T�r' l p.� f -Y Y"F j �`,.. 1 `'MX' ` �t at, t 3: TIMELINE DATE WHO WHAT 1976-1988 JAL Logging, excavation, Joe Levesque road construction, dirt and raising cattle. 1989-1990 J.C. Compton Excavation, road John Compton construction. 1991-2001 Pavement Protectors Road construction and Kerry Fuller pavement repair business. 2001 -(Sept. 2003?) Dan Fowler Snowplowing and construction. Exhibit Page l of :15 03 04:17p JOYCE FLEMING 5413170478 9.- r<. oil.'YA +�k; Community Development Department � til w :. - - �''�-,..�3"`""_..;r,'�'�...,,.,�v?+^`.r.;. ..•e..r,�,x,..v�e... • - - - j'• .. yi�•'^ -ter.... sii.•ti +:;... 4::>.:..._:,..:..,cti:_.:r�:az".r=""i�'s:..iiT .uu.a.at.,:•I1�-.-�'.' Administration Bldg. / Bend, Oregon 97701 (503) 388-6575 Planning Division Building Safety Division Environmental Health Division `INITIAL COMPLAINT FORM :'.:CODE.VIOLATIONS CONFIDENTIAL INFORMATION DATE gTAFF MEMBER FILI�';MO. C"�Z—C�D"l� Address o+ suspected violation: Area Zone I Z(1 1 T _ R sal_ TAX 4 -OT OM Individual (s) Involved Property Owners) Name: Type of Viofationz- Zoning Subdivision Solid Waste Liquid Waste (SewaG Other' Initial Investigation SUm:r.ary: D04TE 'FINE (Cornpl ai ntant In•t ormati on on tirac.r ) _6� C Exhibit `-' Page ( of Cz Nov 03 03 01:49p joyce fleming (l 7� 011e ( ye T7E zti.LCLt�" </ 541-318-0478 ,616W p, o e 2 � p.1 .7z? 7�51� �. -4`7j- n(Vis, �o�l A-�ry PA -vim ' A1fiLu / 1C j 5 �o ,u T`.2r C��-LLQ GG Ale 4FpAe,9,lZ-7-- 77� N Wig,. T %L147 -{� S F� a>7A�.cP(�2 iC�r No 41(Oa-2AI 9e 1 w E- is r4� � ��,e�r�- �� ,v�� is � 6f- /, occ�l:pOA IDOe� F �g � � x���y-O)e; ass /Ai's e:S'ru A -i.(© Oohs /uaTp£,7,01n���p 'x''G �1�� ,4T iu s�� ���.✓ P y ao 4`:)-S;7- 4oee� El( ,�,4 I ti y. tkS- ,!PC- ; �,4(� T ; e L�,� ter ll�e�A c�/ /�(T S�GT�o�i l' -S. i9 - O -ON nc U A- L CL & aEa-e- }!� cc�n f " 'o T' �- ✓F,r : L SEs , i ,5 4-o7-1*1y gu�s�o4f a-2ble 71�.CL57- ,�/ �9i2 L'O�1 iYt cC�l.<� ✓nom 6.5/0"'t (7i -L— 4y �VL -i9;� ,411 ,��iD l iii a ®Ar,— �- V1 G %i 9'/ IS 0�0 2 Gc�F ---la4OTH15! r c7- ��i ilr A C' �{ T /1'I �; A(7�.-e;,-lrCF / SSu �S _ % /moi p� S F �ll,A- � `' T� Exhibit Page of l� Joe and Barbara Whiddon 62230 Powell Butte Road Bend, OR 97701 Board Of County Commissioners RE: An appeal of The Heariings Officer's Decision Denying a Verificatin of a Nonconforming Use for property owner by Tom and Joyce Fleming. Dear Sirs, We submitted a letter of support for the aforementioned property owned by the Flemings. We were disappointed to learn of the denial by the Hearings Officer and support the Flemings in their attempt to to appeal that decision. The information we offered previously was as follows: We have lived at 62230 Powell Butte Road, adjacent to the property in question, since 1989. Throughout that period of time to the best of our knowledge, the commercial shop used for road construction and maintenance has been continually and consistently in operation. If the .building was not occupied at any .time, it wouldhave been for only very. short periods of time, as the business operations were always evident to us. I understand that the Hearing's Officer and the Board of Directors are charged with interpreting the intent of the statutes and rules, but I would appeal to them that at very least the history of the nonconforming use of this particular parcel is precarious. It appears to me that if a misuse of the property has occured, it is not the fault of the current property owners but is a consequence of a number of errors on behalf of the County. You have in evidence a statement by an investigator, as well as the county assessors office who have also contributed to the confusion about this property's use. It is my hope that in a situation such as this, the Board of County Commissioners would not choose to impede the activities of property owners, particularly when the continuance of activity does not impact the surrounding neighborhood or it's inhabitants. This process has been time consuming and expensive for the Flemings. They have done an excellent job "making their case" and providing sufficient evidence so the Agency could return with a positive finding. Again, as I've stated previously it is my opinion the property has been continuously used for commercial operation, even when the Flemings were using it for their own business. It seems to me the more efficient question to ask about this property was whether or not it had returned to residential use, i.e., had the trailer/office been used as a single family dwelling for living occupancy. That clearly is a negative answer, therefore the commercial use of the property was consistent and continuous and not interrupted for more than one year. Thank you for taking the time once again to read my testimony. Sincerely, ,r Barbara Whiddon Exhibit 6 Page 3 of 1'2- 7 8Lt►0-8IE-IirS 2u1w9lJ 90ROC d82:�o to 21 idd April 7, 2004 DESCHUTES COUNTY COMMISSIONERS 1130 NW HARRIMAN BEND, OR 97701 Re: Walter and Joyce Fleming/Nonconforming Use Application File No.: NL V-03-1 Appeal No.: A-04-3 Dear Commissioners: I am writing this letter on behalf of Walter and Joyce Fleming and their request for verification of a non -conforming use. In the Decision of the Hearings Officer, she indicated that the evidence concerning my use of the property remained inadequate to establish that the nature and extent of the use was the same as the nature and extent of Pavement Protectors' use of the property. I leased the property almost immediately after the property was vacated by Pavement Protectors. We moved in within just a few weeks after Pavement Protectors had vacated the property. Our business is a road maintenance business and we had various pieces of equipment on the property that we would store there between jobs. We performed maintenance on the equipment, and we used not only the shop but also the manufactured home as our place of business. Our hours of operation were at least five days per week. We would have anywhere from -@-- to b employees during the time that we rented the property. I.- +.,..o ,.f P.,,,;nn,P-nt we had on the property was as follows: �� We were in possession of the property, as a renter, at the time the Flemings receivea the letter regarding the alleged violation of the code. Sincerely, L Exhibit C Page L-(- of I Z -- 1E I'd 8L1,0-8TE-Iir9 2uiwaIj aoRop d8a=�0 fi0 21 .add BEFORE THE DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPARTMENT In the Matter of the Application of- JOYCE f JOYCE FLEMING, Applicant. File No.: N N-03-1 SUPPLEMENTAL BURDEN OF PROOF STATEMENT Applicants Walter and Joyce Fleming request verification of a nonconforming use. This information is being submitted to supplement the Burden of Proof Statement filed by Joyce Fleming in the above -captioned matter. J.Che. r ton, «'as the Owner of the business 'located at 622111 Powell Butte Highway. `,cmp I operated tbusiness out of that location from 1989 to 1990. My business was a excavation business and road contractor. Additionally, my business would have included the following types of contract and projects: se The hours and days of operation of the business would typically be as follows: The number of employees that we had in our business were as follows: The business used the Mobile home located on the property for the following purposes: A /// c, We had [number of] employees using the mobile home. The mobile home was used continually during my operation of the business as described as above. The type of equipment that was stored on site, including the number and type of vehicles atnrPrl nn cite_ were as follows: Exhibit 61 BRYANT, LOVLIEN & JARVIS, PC Page _�'_ of C Z ATTORNMYS AT LAW, ESTABLLSHM 1915 591 SW Mill View Ways PO Box 1151 Bend, Oregon 97709-1151 (541) 382-4331 fax (541) 389-3386 wAwbryantlovlienjarvis.com 24 SW Fifth Street Madras, Oregon 97741 (541) 475-2757 fax (541) 475-2962 The shop building was used for the following purposes: c(' 210.7— Lt . � �CS iYl 1 �, t•� y��c f -- C �. SIT 1' G C G l lj % y ;. /—c e» P7 r Exhibit BRYANT, LOVLIEN & JARVIS, PC Page of l ATTORNEYS AT LAN,, ESTABLISHED 1915 591 SW Mill View Way PO Box 1151 Bend, Oregon 97709-1151 (541)382-4331 fax (541) 389-3386-A-wmbryantlovlienjarvis.com 24 SW Fifth Street Madras, Oregon 97741 (541) 475-2757 fax (541) 475-2962 BEFORE THE DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPARTMENT In the Matter of the Application of: JOYCE FLEMING, Applicant. File No.: NUV-03-1 SUPPLEMENTAL BURDEN OF PROOF STATEMENT Applicants Walter and Joyce Fleming request verification of a nonconforming use. This information is being submitted to supplement the Burden of Proof Statement filed by Joyce Fleming in the above -captioned matter. 1, Joe Levesque, was the owner of the business located at 62211 Powell Butte Highway operated the business out of that location from 1976 to 1988. My business was a excavation business and road contractor. Additionally, my business would have included the following types of contract and projects:;/7 The hours and days of operation of the business would typically be as follows: 7 The number of employees that we had in our business were as follows: `/ — /5 -- The business used the mobile home located on the property for the following purposes: t-�._j Z-4 l �,� `Z�� ,. -rr� jig Fes- �, We had _ [number ofJ employees using the mobile home. The mobile home was used continually during my operation of the business as described as above. The type of equipment that was stored on site, including the number and type of vehicles r stored on site, were as follows: Exhibit BRYANT, LOVLIEN & JARVIS, Pc Page 7 of lL ATTORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 1151 Bend, Oregon 97709-1151 (541) 382-4331 fax (541) 389-3386 v nvmbryantlovlienjarvis.com 24 SW Fifth Street Madras, Oregon 97741 (541) 475-2757 fax (541) 475-2962 = The shop building was used for the following purposes:.,;>�: 'Exhibit BRYANT, LOVLIEN & JARVIS, Pc Page _� of C2 -- ATTORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 1151 Bend, Oregon 97709-1151 (541) 382-4331 fax (541) 389-3386 wWMcbryantlovhenjanhs.com 24 SW Fifth Street Madras, Oregon 97741 (541) 475-2757 fax (541) 475-2962 Pavement Protectors PO Box 7197 Bend, OR 97708 Ph: (541) 389-6444 Fax: (541) 383-9302 March 13, 2003 To whom it may concern: Please be advised that Pavement Protectors was the responsible party for the personal property tax on the Rose Trailer Serial# 189548, Code Area 1-003, Account# 56182 from June 1, 1992 to May 31, 2002. Please feel free to contact us if you have any questions at (541) 389-6444. Sincerely, Pavement •otectors r FL ler dent KF/j c Exhibit € Page _� of / Z Fax: 541-383-9302 E-mail: kfuller(a_;callatg.com December 1.7, 2002 To Whom .It May Concern: Q� � Q � Bend Oregon 375 S. E. L,OGSDEN PO BOX 7197 BEND, OR 97708 Pavement Protectors rented the property @;; 02211 Powell Butte 11wy, Bend, OR., from. lvlay of 199.1 through .M.ay of 2001. The property was used to store and .maintain our fleet of road maintenance and paving equipment. erre Fuller 1 OFFICIAL SEAL J JANICE B. SHERMAN NOTARY PUBLIC -OREGON COMMISSION NO. 359748 MY COMMISSION EXPIRES AUG. 25, 2006 Exhibit E Page Go of GZ JC Compton Contractor Inc, 2506 Portland Road . Newberg, Oregon 971.32 December 24, 2002 Deschutes County Community Development Department To Whom It May Concern: JC Compton Contractor Inc. used the property and shop located @ 62211 Powell Butte Hwy. through the years 1989-1990.The property was used to store and maintain all of the equipment used in rebuilding Hwy. 20 from Bend to Horse Butte at that time. Sincerely, Compton / resident/ Owner Exhibit E Page (( of CZ- 1,2 it OFFICIAL SEAL - JANICE B. SHERMAN NOTARY PUBLIC -OREGON COMMISSION NO. 35974 MY COMMISSION EXPIRES AUG. 25, 2006 I i i i i Exhibit Page of L' Z�