29-879-Order Recorded 2/21/1979v. 29 ? 879
IN THE BOARD OF COMMISSIONERS OF THE STATE OF OREGON
FOR DESCHUTES COUNTY
In the Matter of )
ROBERT L. MARR, )
Applicant. )
FILE NO. LDP 78-180
ORDER
This matter coming before the Board of County Commissioners on February 13, 1979,
pursuant to the Board's Order of January 30, 1979; a hearing was duly held;
JAMES S. DREW, Esq. represented RONALD S. STEVENS and certain other opponents of
the application; HARRY A. ENGLISH, Esq. represented the Applicant's Lessee, SUSAN
WHITE; argument having been heard from both sides; and good cause appearing therefor,
the Board adopted the following findings of fact:
1. The facts stated in the Affidavit of RICHARD KNOLL, dated January 29, 1979,
attached to the Board's Order of January 30, 1979, as Exhibit "A" were uncontroverted.
2. A majority of the persons within the zone of notification had notified the
Planning Department of their opposition to the placement of the mobile home prior
to the application for a location and development permit being granted for
Applicant's single-wide mobile home.
3. The persons indicating their opposition by telephone were not told by
the Planning Department that telephoned responses would not be counted toward giving
them a right to a hearing pursuant to Section 5.090, County Ordinance PL-5.
Furthermore, the notice which was sent to persons within the zone of notification
did not specifically state that telephone calls indicating opposition to the permit
would not be counted. Accordingly, the majority of persons within the zone of
notification did not get a hearing before the Planning Commission on the granting
of the Applicant's permit.
4. The Applicant did not sustain the burden of proving that he had vested
rights to continue the use of the property as a site for a single-wide mobile home
for the following reasons:
A. It was uncontroverted that Lessee had spent only $65.00 in moving the
single-wide mobile home onto the site.
B. It was uncontroverted that the other improvements on the property
were the completion of electrical hook-ups, installation of mobile home
skirting, and clearing of a driveway to the mobile home site. The improvements
on the site would have been equally useful as site preparation for a per-
mitted use, such as a double-wide mobile home or a conventional house.
PAGE -1 ORDER
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C. The Applicant did not act in good faith in making improvements
on the property, in that the placement and dimensions of the mobile home
differ substantially from those for which the permit was granted.
D. HARRY A. ENGLISH, Esq. appeared on behalf of Applicant or
Applicant's Lessee at a meeting of the Board of Commissioners on January 4,
1979. At that meeting, he was informed that the neighbors within the zone
of notification had unanimously opposed the placement of the single-wide
mobile home on the site. From and after that date, Applicant was on notice
that the neighbors had been entitled to a hearing prior to the granting of
the location and development permit.
E. Water service has not yet been installed on the site.
F. No substantial economic waste would result if the single-wide
mobile home were ordered removed within a reasonable period of time.
5. On January 4, 1979, the Board vacated the Stop Work Orders that had been
placed on the site on the mistaken belief that a majority of the persons within
the zone of notification had not expressed opposition to the development permit.
6. The application was for a 14 x 70 foot mobile home: The mobile home
actually installed was 11.75 x 44.25 feet.
7. The application stated that the mobile home would be placed perpendicular
to Knott Road: In fact, the mobile home was placed parallel to Knott Road,
making it substantially more visible to passers-by on Knott Road.
8. The Applicant failed to distinguish Clackamas County v. Emmert,
14 Or. App. 493, 513 P. 2d 532 (1973) from the facts of this case. It is un-
controverted that the case established the rule that the County is not estopped
to enforce zoning ordinances, even if it granted a permit unlawfully to an applicant,
and even if the applicant had constructed improvements on the property in reliance
on the unlawful permit.
law:
As a result of the foregoing, the Board adopted the following conclusions of
1. The majority of persons within the zone of notification have not had
a full and fair evidentiary hearing on the Applicant's location and development
permit, to which they are entitled by Section 5.090, County Ordinance PL-5.
2. The County is not estopped to vacate the location and development permit
granted on November 27, 1978, to Applicant.
3. The Applicant has not established that he has lawfully constructed im-
provements on the property covered by the permit in compliance therewith, and
accordingly, has no vested rights to continue to use the premises for the single-
wide mobile home presently in place thereon.
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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The location and development permit granted to Applicant on November 27,
1978, is hereby VACATED.
2. The Applicant may reapply for a mobile home location and development
permit pursuant to Section 5.090, County Ordinance PL-5, for the mobile home
presently in place on the property within ten (10) days of the date of this decision.
3. The fee for such reapplication shall be waived because of ;the facts stated
in the Affidavit of RICHARD KNOLL dated January 29, 1979.
4. No action will be taken by the County to remove the mobile home presently
in place on Applicant's property, located at Tax Lot 500, Section 22, Township 18
South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, during the
ten (10) days in which Applicant is allowed to reapply, nor during any subsequent
administrative or legal proceedings taken on the application.
5. The County will take no action to force removal of the mobile home unless:
(a) Applicant fails to reapply within ten (10) days of the date of
this decision;
(b) The Planning Commission denies the location and development permit
and the time for appeal expires;
(c) Any final appeal from a final order denying the permit is decided
against the Applicant;
In any of these events, the County may take action to remove the mobile home after
thirty (30) days.
DATED this c T 'day of February, 1979.
DISTRIBUTION:
James S. Drew, Esq.
Harry A. English, Esq.
Donald R. Guiley
Jerry L. Hutchinson
Dale A. Larsen
Robert L. Marr
Leslie R. Unverzagt
Terrill F. Becker
Joseph E. Allyn
David C. Bergren
Beverly D. Parker
Planning Director
County Counsel
! J fr
Commissioner
PAGE -3- ORDER
BOARD OF COMMISSIONERS
DESCHUTES COUNTY, OREGON