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32-152-Order Recorded 8/23/1979r w OL IN THE BOARD OF COUNTY COMMISSIONERS OF THE STATE OF OREGON FOR DESCHUTES COUNTY In the Matter of SP-79-7, ) Starwood Mobile Home Park, ) FINDINGS OF FACT, Tom Pickett, Applicant ) CONCLUSIONS OF LAW AND ORDER fir) piss. 152 The Board of Commissioners reviewed the record of SP-79-6 and Conditional Use 77-66, including all marked exhibits indicated for review in those files. It presented questions about the legality of the proposed site plan which were dis- cussed between County Counsel and the attorney for the applicant at the meeting of the Board July 23, 1979. The authority for the review of the site plan is County Procedural-Ordinance PL-9, Section 13.000. Ayres v. City of Cannon Beach, 310 Or. App. 1337 (1977). FINDINGS OF FACT 1. The Board adopts the findings of fact of the Planning Staff in SP-79-6 (Exhibit 4), and makes the following additional findings. 2. It is not clear from the record what drawing of the site plan was before the Planning Commission, since the transcript refers to red lines indicating land- scaping and there are none on any map in the record. Accordingly, there can be no certainty that a mobile home park was part of the conditional use on which the site plan is based, CU-77-66, although there is no doubt from the transcript of the Planning Commission meeting of April 25, 1979, that a mobile home park was approved in an A-1 Zone, albeit on the possibly mistaken assumptions that the Planning Commission had approved that use in connection with CU-77-66 on May 10, 1978, and that they were bound to approve the site plan even if they believed hat the mobile home park was an unlawful use in the A-1 Zone. 3. Although it is too late for the Board to conduct review of CU-77-66 by authority of Section 13.000 of PL-9, in reviewing SP-79-6 it is incumbent on the Board to find whether the mobile home park on SP-79-6 is authorized by a lawful conditional use. A lawful conditional use must be supported by adopted findings PAGE -1- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER VO YW of fact. None were signed by the Chairman of the Planning Commission as required by PL-9, Section 14.020. The minutes of the Planning Commission meeting of May 10, 1978, and barely audible tapes, show only Chairman Bodtker's statement that the findings of fact have been met. Assuming that the proposed Findings of Fact (Exhibit 13, CU-77-66) were adopted by the Planning Commission, the question is whether they show a rational basis for granting the conditional use. The Board finds that CU-77-66 was applied for as a conditional use for a "Planned Development--Mobile Home Subdivision." 4. It should be noted that the Board has never approved CU-77-66 on the merits. The appeal to the prior term of the Board was disposed of by a finding that the appellant lacked standing to appeal. 5. Searching the record, we find that there are no findings of fact supporting the approval by the Planning Commission of a planned development (a conditional use in the A-1 Zone) for the following reasons: a. No plan for grading and drainage is in the record. b. No plan for maintenance of common areas and facilities is in the record. C. There is no finding that the development can be completed within a reasonable time. d. There are no basic facts supporting the conclusion in these proposed findings of fact, which applicant's attorney states in his affidavit were adopted by the Planning Commission to support approval of CU-77-66, relevant to the load on adjacent streets and utilities. e. There were no basic facts establishing a public need for a planned development zone (PD) at this location as opposed to alternative locations closer to shopping, junior and senior high schools, police stations and employers. PAGE -2- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER va ac Fa 5 6. Findings of fact are also lacking in the record to show that a mobile home subdivision should be approved containing a mobile home park. The afore- mentioned proposed findings of fact for the conditional use mention a mobile home park only as follows: "...the area is generally recognized as having a shortage of mobile home parks and subdivisions and the proposal would alleviate the shortage." (CU-77-66, Exhibit 13). Also incorporated by reference into the findings are "the site plan and application." The affidavit of Mr. Fancher, applicant and his agent, Allen Grant (Exhibit 29), refer to the drawing Exhibit A as the one that was before the Planning Commission, but this map was not contained in the Planning Department file, but was introduced by applicant after this pro- ceeding began. The drawing shows an area for mobile home park. The "agreement" of the Planning Commission (Exhibit 30) says that the map is "very similar or the same" as that on display at the hearings on both CU-77-66 and SP-79-6. These references to "mobile home park" are insufficient in our opinion to state basic facts supporting the conclusion that such use should be established in an A-1 Zone rather than in the R-2, C-1, C-2 and A-S Zones where they are conditionally permitted. This is especially true in that no notice of a proposed exception to LCDC Goal 3 was sent out for the meeting on the conditional use (CU-77-66, Exhibit 12). The proposed findings (CU-77-66, Exhibit 13) neither state whether the conditional use was sought on Class I through VI soils, nor whether an exception to Goal 3 was required. It merely is stated that truly agricultural land would be maintained in agricultural use. If this were a planned unit development, the agricultural land in the site would be needed for common area usable by all residents for recreation, a non-agricultural use. This dilemma was not explained. Accordingly, we find that insufficient findings, if any, were made on Goal 3. Discussions of Goals 10 and 14 in the proposed findings failed to show why the housing goal should be applied to non-urbanizable land, outside any adopted or proposed urban growth boundary. All that can be discerned is that the PAGE -3- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER 32 mq = applicant seeks to put this urban use in seven miles from Bend and nine miles from Redmond because of "the difficulty of establishing such programs in other urban (sic) areas." This appears to mean that the location was chosen to avoid neighborhood opposition. As to Goal 11, Public Facilities, there is only the conclusion that "public facilities are available," or the expression of hope that 11with the allowance of the plan, more likely to become available..." (CU-77-66, Exhibit 13). This does not state why the Planning Commission did not agree with the staff report treatment of Goal 11 (CU77-66, Exhibit 3). The Deschutes County impact Statement required as a condition of site plan review was perhaps meant to overcome this deficiency. Exhibit 6 in SP-79-6 indicates that the Junior High School which would serve the mobile home park could not handle the increased enrollment, and that the applicant did not provide sufficient information on water supply for fire fighting. The only basic fact is that applicant expected Avion Water Co. to supply the mobile home park. This does not show sufficient planning for public facilities to indicate that the mobile home park will be other than an urban level load on the public facilities of Bend and Redmond far beyond their adopted and proposed urban growth boundaries, contrary to the County Comprehensive Plan. (Part II, pages 38-39, Policies 1 and 2). The finding on Goal 13, Energy Conservation, is not supported in the record. It is not shown how the area would become "relatively self supporting" through the anticipated commercial development, in that it was not shown what employer would provide jobs for the residents, what entity would provide schools, police and fire protection within the development. In fact, the record (SP-79-6, Exhibit 6) shows that the area would be initially dependent on the City of Bend, and there is nothing in the record but expressed hopes on how this might change if the area ever develops to urban density. This is an approach typical of leap-frog develop- ment, and does not answer the contention in the staff report regarding Goal 13 (CU-77-66, Exhibit 3). In addition to the above problems, the permit granted (CU-77-66, Exhibit 25) PAGE -4- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER VOL r` PAS 156 was for a 220-acre site, while the findings (CU-77-66, Exhibit 13) are for a 300-acre site. This casts doubt on whether the Planning Commission read the findings it adopted or whether Exhibit 13 was in fact adopted. Accordingly, we conclude that the conditional use on which this site plan application is based is not supported by findings of fact as required for the validity of the permit. Heilman v. City of Roseburg, 39 Or. App. 71 (1979). CONCLUSIONS OF LAW It was agreed by the applicant at the meeting of July 23, 1979, that if a planned unit development were being sought, a zone change would have to be sought. The applicant has not done this. Accordingly, three legal questions must be answered: 1. IS THE SITE PLAN FOR A MOBILE HOME PARK PERMITTED AT ALL IN THE A-1 ZONE? 2. IF NOT, WOULD THE MOBILE HOME PARK BE ALLOWED AS AN INCIDENT TO A PLANNED DEVELOPMENT IF THE APPLICANT WERE ABLE TO MEET THE BURDEN OF PROOF? 3. IF NOT, DOES THE BOARD HAVE THE RIGHT TO DISAPPROVE THE SITE PLAN ON THE GROUND, AMONG OTHERS, THAT A MOBILE HOME PARK IS NOT A CONDITIONAL OR PERMITTED USE IN AN A-1 ZONE, EVEN IF THE PLANNING COMMISSION INCORPORATED IN ITS FINDINGS OF FACT A MAP SHOWING A MOBILE HOME PARK WHEN IT APPROVED A CONDITIONAL USE FOR A PLANNED DEVELOPMENT MOBILE HOME SUBDIVSION? 1. Is the site plan for a mobile home park permitted at all in the A-1 Zone? County Zoning Ordinance PL-5 prohibits mobile home parks in the A-1 Zone. Section 2.010 of PL-5 states that "a lot may be used and a structure or part of a structure constructed...or used only as this ordinance permits." This implies that uses not listed under a zone as "uses permitted outright" or as "conditional uses permitted" are prohibited. Mobile home park is defined in the Ordinance and listed as conditional use in A-S, R-2, C-1 and C-2 Zones, but not in any other zone. Accordingly, it is prohibited in the A-1 Zone. Applicant contends that a mobile home park should be permitted in the A-1 Zone because in the 1971 PAGE -5- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER VOL 3 v15 7 version of PL-5, "uses permitted in the R-1 Zone" is included in the list of "uses permitted outright" in the A-1 Zone. Uses permitted in the R-1 Zone are:. .agriculture, not including the raising of livestock" and "single family dwelling." Anderson v. Peden, 284 Or. 313 (1978) established that a mobile home is not a single family dwelling under PL-5. Accordingly, mobile homes are not permitted outright in the R-1 Zone. However, the 1971 version of PL-5 includes "mobile home subdivision pursuant to Section 3.025 of this Ordinance and pursuant to the County Mobile Home Placement Standard" as a conditional use in the R-1 Zone. Applicant argues that conditional uses in the R-1 Zone are conditional in the A-1 Zone as well, due to the listing permitted outright" in the A-1 Zone. He McCann, Esq. (CU-77-66, Exhibit 22). We reasons stated below. a. Exactly the same language of "uses permitted in the R-1 Zone" among "uses bases this on the letter of Bill do not agree with this letter for the is listed under "uses permitted 'outright" in the AR-1 UBC (Uniform Building Code) Zone. The purpose of that zone is to create an agricultural zone within which all structures comply with the Uniform Building Code. It thereby prohibits mobile homes. If mobile home subdivisions were included as conditional uses by this reference, the purpose of the zone would be defeated, and we decline so to interpret PL-5. b. Including all R-1 uses in the A-1 Zone would mean that A-1 would be less restrictive than R-1, and this would be inconsistent with the purpose of A-1 as an exclusive agricultural zone, and LCDC Goal 3. c. The inclusion would mean that the only time urban density 7000 sq. ft. lot sizes would be allowed in A-1 would be in mobile home subdivisions. Subdivisions of conventional single-family dwellings, on the other hand, would be subject to the five-acre minimum. There is no rational basis for such a result, and we do not believe that it was intended by the drafters of the Ordinance. PAGE -6- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER VOL AW 158 d. There would be no purpose for having the following uses listed in A-1 as conditional, since they are duplicated in R-1: public use, semi-public use, keeping of livestock (which is conditional in R-1 and permitted outright in A-1), plant nursery and limited retail sale of incidental supplies basic to the propagation of plant materials, planned development subdivision as provided in Section 4.010 of this Ordinance, and pursuant to County Mobile Home Placement Standards. On the other hand, if R-1 permitted uses were construed as permitted outright in A-1, and R-1 conditional uses were considered as not incorporated in the list of A-1 conditional uses, then the meaning of Section 3.210-2 would be that single family residences other than mobile homes would be permitted in A-1 even if they were not constructed in conjunction with farming. This is a more logical construction of reading the two sections together. e. Since there is so much duplication between A-1 and R-1, the intent of the drafter was to state the conditional uses separately rather than to incorporate the conditional uses of the R-1 section in the A-1 section by reference. If the intent was to.incorporate them rather than pick and choose among them, there would have been no need to duplicate them in the drafting. f. A mobile home park is defined in PL-5 as "any place where two or more mobile homes (also defined by PL-5) are parked within 500 feet of one another on a lot,tract or parcel of land under the same ownership the primary purpose of which is to rent space or keep space for rent to any person for a charge or fee paid or to be paid for the rental or use of the facilities or to offer space free in connection with securing trade or patronage of such person." Mobile home subdivision is not defined, but the term is used in sections where mobile home park is not. For instance, "travel trailer park or mobile home park" is a conditional use in the Tourist Commercial C-1 Zone, and Rural Service Center Zone A- S. "Mobile home park" is a conditional use in the General Commercial PAGE -7- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER C-2 Zone, and the Urban Residential Multi-Family Zone R-2. "Mobile home subdivision pursuant to Section 3.025 and subject to County mobile home placement standards" is a conditional use in R-1, R-2 and SR-1 Zones (Section 3.025 sets the R-1 Urban Residential Single Family Zone lot size). The fact that mobile home subdivisions are separately stated conditional uses in R-2, and do not appear in all the zones in which mobile home parks are conditional uses indicates the intention to treat mobile home parks and mobile home subdivisions differently in the County Zoning Ordinance. Accordingly, we conclude that a mobile home subdivision by virtue of being a conditional use in R-l, is not a conditional use in an A-1 Zone. 2. Would the mobile home park be allowed as an incident to a planned unit development if applicant were able to meet the burden of proof? On July 23, 1979, the Board of Commissioners held a hearing at which applicant's attorney answered written questions posed by the Board about the legality of a mobile home park in an A-1 Zone. He stated, in effect, that he did not rely on the fact that a "planned development pursuant to Section 4.010 of this Ordinance and pursuant to the County Mobile Home Placement Standards" is also a conditional use in an R-1 Zone, and that Planned Development Sub- division is a conditional use in the A-1 Zone. However, the original application under which site plan SP-79-6 was submitted was for a "Planned Development Mobile Home Subdivision." Since Bienz v. City of Dayton, 29 Or. App. 761, 566 P. 2d 904 (1977), indicated that labels were not controlling, we consider here whether a mobile home park would be allowed if the applicant applied for a planned development. Section 4.010 provides that "a use permitted or conditional use in an R-1 Zone, R-2 Zone, or C-1 Zone...is permitted in the PD Planned Development Zone." Section 4.030 goes on to set out the procedures for applying for PD Zone change. As stated in the findings of fact, the burden of proof has not been met on the record for a PD Zone. PAGE -8- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER vo. Jr. PAU160 if the burden of proof had been met for a zone change to PD, we interpret the Planned Development subdivision pursuant to PL-2 conditionally allowed in the A-1 Zone as excluding mobile homes. This is because R-1 contains special conditional uses for mobile home planned developments. See Section 3.015-5. This same classification occurs in R-2 and SR-l. By singling out mobile home planned developments, the drafter's intent was to distinguish them from Planned Developments pursuant to PL-2, and accordingly, we conclude that where Planned Developments are not made subject to County placement standards by the description of the use, they are prohibited by Section 2.010, and a mobile home park would not be allowed outright or conditionally in the A-1 zone as an incident to a planned development subdivision pursuant to Ordinance PL-2. 3. Does the Board have the right to disapprove the site plan on the ground, among others, that a mobile home park is not a conditional or permitted use in the A-1 Zone, even if the Planning Commission approved a conditional use for it and the action was not reviewed pursuant to Section 13.000 of PL-9? Although there is authority to the contrary (20 CJS Counties, Section 93), Oregon has adopted these general principles: a. Since the Board of Commissioners is the governing body, it is not subservient to the judgments of the Planning Commission. See Pohrman v. Klamath County Commissioners, 25 Or. App. 613, 550 P. 2d 1236 (1976), holding that the governing body need not approve a zone change although the Planning Commission had previously approved a consistent plan amendment. b. Each Board of Commissioners is entitled to its own evaluation of a proposed use and is not bound by the actions of a previous term thereof, nor is it required to perpetuate the errors of its predecessors. Archdiocese of Portland v. Washington County, 254 Or. 77, 458 P. 2d 682 (1969). C. The failure of administrative officers or of a governing body to enforce zoning laws and regulations does not estop it from beginning to PAGE -9- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER 11 ORDER Based on the foregoing findings of fact and conclusions of law, the record VGL X ACE 161 enforce them and to assert their validity. CJS Zoning, Section 44. This has been held to apply where the County has issued unlawful permits. Clackamas County v. Emmert, 14 Or. App. 493, 513 P. 2d 532 (1973). In view of the importance of this third legal question, because the Board desires a clear judicial mandate defining its powers in this matter, and because applicant has made claims that Commissioner Paulson is prejudiced against the application, it would be best for all concerned to refer this last question and the validity of the conditional use to Circuit Court, as set forth in the order below, although we believe that the above cases support our authority to treat an unlawfully granted conditional use permit as a nullity. herein and the arguments of counsel heard at public hearings in this matter, IT IS HEREBY ORDERED that: 1. County Counsel shall promptly initiate proceedings seeking a declaratory judgment as to the power of the Board to treat CU-77-66 as a nullity and deny SP-79-6 on that basis; further, he shall seek a judicial determination of whether a mobile home park incident to an application for a planned development mobile home subdivision is a lawful use in the A-1 Zone. 2. The Board takes the position that if it is judicially determined that it has the power so to do, it will revoke Conditional Use CU-77-66 and deny Site Plan SP-79-6. Commissioner Young dissents, and would dismiss the proceedings. 14 DATED this 2 3 day of August, 1979. Distribution: County Counsel Hearings Officer Planning Director Brad Fancher, Esq. Tom Pickett PAGE -10- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER BOARD OF COUN COMMISSIONERS 4::f ~F~ CLAY ARD, Chairman Y 10 ALBERT A. YOUNG, Commissioner 10L- C , za , Q ROBERT C. PAULSON, JR., Commissioner~t