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2009-48-Minutes for Meeting February 16,2006 Recorded 2/11/2009DESCHUTES COUNTY OFFICIAL RECORDS CJ 2049'48 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 0211112009 10;11;41 AM IIIIIIIII IIIIIIIIIIIIIIII III 2009-48 Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page 4u -A C Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF PUBLIC HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS THURSDAY, FEBRUARY 16, 2006 Commissioners' Hearing Room - Administration Building 1300 NW Wall St.., Bend Present were Commissioners Dennis R. Luke, Bev Clarno, and Michael M. Daly Also present were Laurie Craghead, Legal Counsel; Paul Blikstad, Community Development Department; media representatives Barney Lerten of News Channel 21 and Chris Barker of The Bulletin; and approximately six other citizens. The purpose of the meeting was to conduct a public hearing for the Board's discussion and consideration of whether to hear appeals of the Hearings Officer's decision on CU-05-71, a conditional use permit for a Type 3 home occupation in the EFU zone (Lundgren). Chair Dennis Luke opened the meeting at 9: 00 a. m. Commissioner Luke read the opening statement. Regarding bias, conflicts of interest, personal interest or prejudgment on this issue, Commissioners Luke, Daly, and Clarno had no disclosures to make. There were no challenges as to Commissioner bias, personal interest, conflicts of interest or prejudgment from the public. COMMISSIONER LUKE: I have one question for County Counsel. Is the appellant on Hamby Road? LAURIE CRAGHEAD: Couch Market Road. LUKE: Is that a legal organization or just a name they chose? Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 1 of 52 CRAGHEAD: I have not checked into that. That is something that their representative Paul Dewey could answer when he testifies. By the way, Laurie Craghead, Assistant Legal Counsel, for the record. They can testify whether or not that is a separate legal entity recognizable as an entity. LUKE: My question is, at future proceedings, if it is not a legal entity, do they have the right to appeal as that entity? That is my question. CRAGHEAD: It is possible that particularly after the LUBA appeal or even at LUBA, I don't' know, unless they are registered as an entity of some sort. LUKE: We will get that written into the testimony today. CRAGHEAD: Yes. COMMISSIONER DALY: You are talking about Coyote Properties, is that the one you are talking about. CRAGHEAD: No, a different group. Coyote Properties is a legal entity, it is an LLC, and that is the adjacent neighboring property. There is another group called the Friends of Couch Market Road. DALY: Oh, that is the one, okay. COMMISSIONER CLARNO: Yes, and they joined. CRAGHEAD: Thanks to staff for pointing out the name. LUKE: Okay, thank you. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 2 of 52 PAUL BLIKSTAD: For the record, Paul Blikstad, Deschutes County Planning. LUKE: There were some things put up here before the Board. Were the pictures put up here too? BLIKSTAD: Yes, I was going to allude to that at the beginning. LUKE: Okay. BLIKSTAD: Since you brought it up I will go ahead and start with that. I just want to make you aware of a submittal that the applicants submitted right after the Hearings Officer's decision came out. It is not dated; I guess it is dated December 8, 2005. They provided additional detail as to the square footage used in the home occupation business. I had actually forgotten about this submittal because it was actually a request for reconsideration of the Hearings Officer's decision but under the terms of the County Procedures Ordinance this wouldn't be an appropriate reconsideration request but it is part of the record. DALY: It wouldn't be, you said? BLIKSTAD: No, not under the terms of the code. There is a provision in our Procedures Ordinance that you can request (you pay a fee and do an application) the Hearings Officer to reconsider her decision. This does not fit under the parameters under that provision because it is actually new evidence. The provisions of the reconsideration are not intended to allow an applicant to submit additional evidence. But it is part of the record so I did want to give you a copy of it today. It is important because it lists the square footage involved in this use. I also want to state for the record, it is my understanding that you did get a copy from Larry Erwin this submission of Coyote Properties LLC, a fairly thick packet. We also did receive a transcript of the hearing. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 3 of 52 I asked Tim Berg with GIS to put together a map specifically with an air photo to show the area. The subject property is outlined in blue (referring to maps), if you can see it. The subject property is outlined in blue; it is actually two legal parcels created by partition. You have a smaller 2.77 acre parcel right here. This is a July 2005 photo and I do not know if they started their house in July. I know the permit was pulled, I believe, in June. It does kind of show a faint outline of what could be the house. If it was started in June I don't know how far along it was. The remainder farm parcel, you can see that has irrigated ground. This map is just a little off because the blue line on this map goes right through the shop and I know that they did not build their shop over the line. I think it is just a mapping error. I did want to state for the record that I visited the site again this last week and it appears after talking with Windy that they are actually living in the house. I had an envelope to deliver so I just looked in the window. LUKE: Did you look to see if there was a final inspection done on the house? BLIKSTAD: No, I did not but it was definitely inhabited because you could just tell. I don't know if this shows it but there are two separate driveways. There is one here that goes to the house and another here that goes back to the shop building. So, I wanted to give you a perspective of the area. As you have indicated, Dennis, this is a conditional use permit for a Type 3 home occupation. This matter was heard before the Deschutes County Hearings Officer. Miss Briggs issued her decision; it was mailed out on November 29, 2005. We did receive two appeals up for decision, one from the applicants and one from the opponents, the Friends of Couch Market Road. You did agree, after discussion with staff, that you would hear these appeals. That was through Order #2006-022. So, that is the reason we are here before you today. In the Hearings Officer's decision, which you have a copy of; she addressed what we believe were all the relevant criteria for the conditional use request. My reading of her decision is she based her denial solely on the criterion under 18.116.280, sub B-3-c which deals with the percentage limitation allowed for home occupations. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 4 of 52 It is a percentage of the square footage of the building used in conjunction with the home occupation. In this case it would be the dwelling. We do not believe that based on the language and the code that the shop can be considered as square footage for the home occupation because that shop was approved as an agricultural building. The code specifically prohibits home occupations from being conducted within structures associated with resource use. So, it is our opinion that the square footage looked at in this instance has to be strictly the house. You will hear testimony from the opponents today that you can't consider the house because it is not on the same lot as the actual trucks and other equipment that is used in the business. That is a decision that the Board will have to make. Do we consider these separate parcels, which they are, but are the uses on those parcels separate. In other words, can they conduct the home occupation on both? think that is an important issue before you today and you will hear testimony to that effect. LUKE: I need to ask a question on the agricultural building. If a building is truly an agricultural building, you don't have to get a building permit for that. But, that means you can't put your motor home in it, you can't put your RV in it, you can't do anything but agricultural. But if you get a building permit for your agricultural building you can do some different things in there. Does this one have a building permit? BLIKSTAD: They have applied for one; it is currently on hold pending the outcome of this application. LUKE: It was built as an agricultural building without a permit? BLIKSTAD: I believe it was also built without an AG permit because you are required to get an Agricultural Exemption permit. LUKE: Okay, alright. The applicant will address that when they come up? Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 5 of 52 BLIKSTAD: I am assuming so. The Hearings Officer found, and this is an important consideration before the Board today, that the area used for the parking of vehicles, and I submitted those photos so you could get an idea of what I am talking about, does have to be considered or calculated into the 35% square footage limitation for home occupation. I personally was not privy to the hearings before the Planning Commission or the Board on this home occupation update that we did last year or 2004. Damian Syrnyk was the planner on that so I am not sure what was intended with... LUKE: Two of the Commissioners were though. BLIKSTAD: Yeah, perhaps you have a recollection of what was intended with that restriction. LUKE: Right. BLIKSTAD: You could read it either way, that you do have to include the outside parking area in the limitation, or you don't. That is an important distinction before the Board today, although, if you look at the applicants December 8th letter, they state that only 1,000 feet of area/ground is needed for the storage of their vehicles and within the dwelling there is only 162 square feet used for the "home occupation office." That is a total of 1,162 square feet. The house with the attached garage is 3,577 square feet so 1,162 square feet is just under 33% of that size. Conceivable, the Board could find that the 35% limitation is met. LUKE: If the outside parking was considered by the Board as part of the space? BLIKSTAD: That is correct. DALY: On a Type 3, the outside storage has to be part of it. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 6 of 52 BLIKSTAD: The question is, are all these uses like this, and does that parking area... We know that we are going to get more applications like this so we are asking the Board to make that determination as to what the Code actually means. LUKE: You thought this was going to be an easy job. CLARNO: Therefore, you would be setting precedence for you other... BLIKSTAD: For future... LUKE: No, you would be setting the policy. CLARNO: Yes. BLIKSTAD: I am not going to address the issues raised by the opponents; I will let them raise those. There may have to be findings made on those issues depending on the outcome of the Board's decision. I did also want to state for the record, as you requested in your deliberations on the Order as to whether to hear this, the applicant did submit a letter into the record extending the 150 days for 60 additional days. The 150 days would have ended February 3rd; this bumps it out to April 5th. The Board has time to make a decision. Did you have any questions of staff? LUKE: Any questions? CLARNO: No. LUKE: Okay, does the applicant wish to testify? These mikes are not sensitive but if you need to talk you need to bring them up close to you. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 7 of 52 DAN LUNDGREN: I am Dan Lundgren; address is 19000 Couch Market Road. WINDY LUNDGREN: I am Windy Lundgren, same address. First of all, we want to thank you for hearing our appeal today. We started into this whole project without the advice of legal counsel and we have come this far and muddled through and figured we would just kind of precede this way so help we will make this as clear as we can for you. Paul... LUKE: Land use laws were designed originally so people would know what they could do with their land and not have to deal with legal counsel but that has changed over the years. MS. LUNDGREN: I honestly, going into this, did not think it was such a big issue. Obviously, it is now. Paul has pretty much covered everything I had on my first page here. I made a copy for each of you. LUKE: We will make these available to staff so you can get them into the record. DALY: I think I have that, don't I? MS. LUNDGREN: This I just did this morning. DALY: Maybe not, okay. MS. LUNDGREN: So, I will skip over what Paul has already kind of recapped. We just wanted to basically address a few of the issues that the Friends have. The Friends of Couch Market and this is starting on the bottom of the first page. DALY: I need you to talk closer to the microphone because I can't hear you. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 8 of 52 MS. LUNDGREN: Okay. LUKE: Part of the problem, I might have to put this in; the heating system is running because it is cold outside so we are getting a lot of feedback. Hang on just a second. Okay. MS. LUNDGREN: Basically, I started off, I recapped the events of last year and kind of what brought us here today. Paul just covered the issue with the percentage allowed and what we came up with. The points that we would like to make in addition are some concerns that the Friends had as far as vegetation planted along the fence line to help block the view and the noise created by the trucks parked out at the shop. We do have every intention of planting vegetation along that fence. We just got contacted by Tumalo Irrigation and we are going down within the next day or two to pay our fee and sign for the transfer of water rights. There is a section between the shop and the house that was basically scrubby, rocky, and not much good for anything so we have water transferred onto that and we are going to be planting that into pasture this spring. We bought the two tax lots as one parcel and one of their concerns was that it would possible be divided at some future point. We have no possible plans of dividing it and selling it as one parcel again and which I understand the CUP would not get transferred if we were to sell it. We contacted Gary Everett, who is a developer and realtor with Steve Scott and Company, with regards to the possibility of purchasing industrial land with which to park our truck s on and he informed us that there were only two or possible three lots within the urban growth boundary at this point that are available. At $12.50 to $15.00 per square foot that puts them somewhere between $300,000 and $950,000 dollars for an industrial lot. We are just two of us with one employee and it is just not affordable for us. It would also make no sense to lease an industrial building for our business as we do not need shop space. We do not use the one that we have for business purposes. All of our work is conducted off site. We do subcontract work for Jack Robinson and 4R Equipment. So, basically, the trucks come home at night and they are parked there and then leave in the morning. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 9 of 52 With regards to section 18.16.030, also part of Paul's letter, where it states that Type II or III home occupation... Home occupations are not allowed in structures accessory to resource use. The Home Occupations shall not unreasonable interfere with other uses permitted in the EFU Zone. We believe that we do not interfere unreasonably with anything in the area. We do have some noise for about 20 minutes in the morning when the trucks are being started up and then they are gone for the whole day. They come home in the evening and in about 5 minutes they are shut off again. We maintain that the shop building was built with the intention of using it for farm related practices. Although, it has been in all honesty a temporary living and office space. We were not able to start out house last fall due to some financial problems. One of the things that was brought up as far as the shop goes is that it...staff's finding it was...I do not know what the date was on this ...The staff report before the hearing; subject property includes a structure that was permitted as a shop building under a building permitting permit B55956. It was a permitted building, it was not an AG building, and we wanted to put windows in it, electricity. I understand there is certain criteria aside from an AG building permit you are not allowed. LUKE: The main difference, you can put electrical and windows on an AG, the difference is what you can put in the building as personal property. MS. LUNDGREN: Storing it, yeah. Pretty much everything, our whole life, has been in there this last year, year and a half now because we did not have a place to set up an office or anything else. We have moved into the house, we got our final inspection about two weeks ago and that passed. DALY: One question. Did I just hear you say that the shop building does have a building permit? MS. LUNDGREN: It does. DALY: And always did have. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 10 of 52 MS. LUNDGREN: Um hum. DALY: And Paul was mistaken or what? LUKE: Why was it in code enforcement? Ms. LUNDGREN: Why was, I am sorry... LUKE: I understand that the shop was in code enforcement. BLIKSTAD: I will have to double check that because it was my understanding that ...I have a building permit in my box but me had to put it on hold pending the outcome of this. LUKE: The reason I asked is because these are called Code Enforcement photos and in your original Hearings Officer statement I think you talked about working with Code Enforcement. Was the permit issued before you started the building? MS.. LUNDGREN: Oh, yes. LUKE: Then why did you have to deal with Code Enforcement? MS. LUNDGREN: In March of 2005, I kind of recapped this on the very first page, the County Tax Assessor came out; I actually was getting home from work the day he was there. pulled up in front of the shop and he asked if the shop was being used as a truck shop for our business. I told him, in all honestly, at the time we are parking our equipment and we are living there temporarily. He did not say much more and then a month later we got a letter from Laurie Furlong... Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 11 of 52 LUKE: Because you were living there... MS. LUNDGREN: Alleged violation and that we were doing business out of it. So it took several months of visiting the planning department and finally meeting with Paul and that is kind of where we... LUKE: It was in Code Enforcement because of the use, not having a building permit? MS. LUNDGREN: Correct, yes. We would just like to ask the Board to consider the uniqueness of our situation with regard to the two tax lots. We chose the area in front of the shop to park the trucks primarily because it was kind of just scrubby land. We have actually extended the graveled area mostly for dust control and weed control. Also, we figured it might be the spot least visible to the road and surrounding properties instead of parking closer to the house on the non farm parcel where it would be basically right next to these people's driveway's. We don't believe that it will interfere with any other uses permitted in the EFU Zone and it is our intention to be respectful of the neighbors regarding the trucks and the equipment. We have kind of undertaken a project that is basically taken us a year and a half to get this far and probably will take another six months before we can get all of our irrigation completed and landscaping done around the house. The equipment is going to be visible out there for a period of time yet anyway. We bring it home after work at night and on the weekends. That is about the only time we have to do anything. We are just asking for a little more time to complete our improvements. We believe in all honesty that the friends won't have much to complain about once it is completed. LUKE: How much equipment do you have there? How much equipment do you expect to store there? What types of equipment, what pieces? Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 12 of 52 MS. LUNDGREN: Nightly... I feel like I have not told the truth but I have. I drive a dump truck, it comes home every night. We have one employee and he drives a semi with an end dump. It has been parked at the shop more often than not lately because he lives on the side of a hill where he can't get up in the winter time. During the busy summer months he will be taking that truck home with him. So it may be there occasionally, probably not for the most part. Aside from that we have one excavator and one mini excavator, a bob cat, and a back hoe. For the most part those are on Jack Robinson's construction sites. We bring something home occasionally to do work on the property. We are building a rock wall right now and we have work to do out at the barn still and stuff like that. LUKE: What are your plans for screening the equipment? MS. LUNDGREN: My exhibit 2, I think it is shows a little bit of an overview of our property and we are planning on putting trees along the fence line that borders Couch Market Road as well as along the fence, kind of makes a little S curve that goes around the shop area. LUKE: What is Exhibit 2? Is it a picture or inside your testimony? MS. LUNDGREN: I am sorry; I think it is the last page here. I made some little green dots there... LUKE: Exhibit 2 is the plot plan? MS. LUNDGREN: Yes, that is correct. I made some green dots on yours that show where we plan to put, not threes that loose their leaves every year, something that would definitely block... LUKE: Evergreens of some type? MS. LUNDGREN: Um hum. I had a chance to be home the other day, on a Friday I believe... Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 13 of 52 LUKE: Where is this pond located on here? Ms. LUNDGREN: The pond isn't exactly to scale. It is probably 2/3 or 3/4 on the non farm parcel and a little bit of it comes over. LUKE: Oh, I see, the pond is on the lot. MS. LUNDGREN: Yeah, right out in front of the house. LUKE: It looks like the pond is right outside the shop. MS. LUNDGREN: Oh no, that is the gravel parking area. LUKE: This area here is actually the shop (referring to Ms. Lundgren's map in her testimony labeled Exhibit 2.) MS. LUNDGREN: That is actually taken from the Coyote Properties property from the west. CLARNO: That is not your photos. MR. LUNDGREN: No. CLARNO: That is the confusion, these are their photos, these are Coyote... LUKE: Somebody else's, alright. So the pond is...Can someone tell me what this is? BLIKSTAD: Larry will speak to those. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 14 of 52 LUKE: Those are separate, okay. Is there anything in the record that talks about the exact square footage of the house? I know that on the plot plan it shows 3577. You have a copy of the building permit or anything like that that shows the size of the house or do we have blueprints. Does that include a double car garage; is there a triple car garage, what is in the record? BLIKSTAD: I checked that this morning on the scanned documents and the floor plans for the dwelling are listed in the scanned documents and the 3577 is exactly what was shown in those records. So, I want to check that. I found... LUKE: Repeat her question for the record, please. BLIKSTAD: What I found was the dwelling with the attached garage is 3577 square feet based on our scanned records. LUKE: How big is the garage? BLIKSTAD: That is with the garage. It is like 780 - 784 square feet. LUKE: Is the garage separate or addition? BLIKSTAD: It is attached. LUKE: The garage part of the 35 or is the garage additional? BLIKSTAD: It is part of it. MS. LUNDGREN: That is correct. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 15 of 52 LUKE: The house is 3,577 including the garage. How big is the garage? Is it 20 by 24, triple car garage, what is it? MS. LUNDGREN: It is a double car garage. Somewhere around 800 square feet or just under, I think. We brought a set of blueprints but we left them in the truck. LUKE: Is there a problem if we allow them to bring that in? CRAGHEAD: They could bring it in at the time the opponents are testifying or if they have more to testify one of them can go out and get it. LUKE: Is there a reason those blueprints would have to stay in the record because the County has a copy at the building department for anybody who wants to come and look at them. CRAGHEAD: Because we have to compile the whole record if this ever gets appealed, yes they would have to stay in the record. LUKE: Is that a problem? MS. LUNDGREN: No. DALY: I thought Paul said you've got it don't you? In your scanned records? BLIKSTAD: We have the floor plans in our scanned records I don't know if.. . LUKE: You have a blueprint. The County keeps blueprints for awhile. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 16 of 52 BLIKSTAD: Yeah, I am not sure... DALY: Is there any difference between yours and what they are going to bring in? BLIKSTAD: I would not think so. DALY: Then why would we need it? LUKE: For the record I would like to have it verified but actually keeping their blueprint, I guarantee we have one sitting in the office over there. CRAGHEAD: If there is a set sitting in the office that is actually part of this record and in the same box as these other documents and it is the same one they are bringing in then we don't need it today. If it is submitted as what is kept at the building permit office, that's not in the record. LUKE: I would point out to you this is being a builder, the set they are bringing in should be the stamped set from the County that you should keep forever and forever with the house to go to new owners and everything. So you have the stamped set. DALY: If they agree the record Paul has is correct, why do we need the stamped set? LUKE: You don't, we really don't it would just be nice to see how this lays out. BLIKSTAD: I specifically checked that this morning because I found her letter of December Stn and not that I did not trust Windy, it is just... LUKE: I would expect you to check it. That is your job. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 17 of 52 CRAGHEAD: One other issue about if these are the stamped copies, it may be that these are copyrighted by the contractor and they should not be copied. LUKE: No, there is a stamp. Did you build your own house? MR. Lundgren: Yes. LUKE: They are the contractor. MR. LUNDGREN: We did not bring the stamped set with us today it is a spare set. LUKE: I am okay if you are comfortable that you verified it. Okay, 3577 minus what is the garage approximately? CLARNO: She said about 800 feet. MS. LUNDGREN: I think Paul had it right, 780 something or right around 800. BLIKSTAD: I think it was 784. MS. LUNDGREN: That sounds correct. LUKE: That is a triple car garage. BLIKSTAD: I had two doors. When I visited the site it was a double car. LUKE: Twenty by twenty is only four hundred square feet. That puts you pretty close to twenty by forty or thirty by thirty would be 900 square feet. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 18 of 52 MR. LUNDGREN: I think it might be twenty-eight by twenty-eight. It is an oversize two car. LUKE: I would think so. BLIKSTAD: I would love to have it. LUKE: That is a personal opinion by a County Planner; I would like to point that out for the record. Any questions? Do you have anything else? MS. LUNDGREN: Not at this time, thank you. LUKE: Questions of Commissioners? CLARNO: Laurie mentioned something about this 3577 was including the gravel area. It does not include the gravel area? LUKE: That is the house and the garage. BLIKSTAD: The 3577 is the house and the garage. The gavel area, the Board needs to determine whether we calculate that into the 35% limitation. CLARNO: Okay, I understand. LUKE: What we get is if somebody as we were going through the original hearing, we took almost a year, didn't we Mike, on occupation. DALY: Yes, we did. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 19 of 52 LUKE: After the Planning Commission did some stuff. We were concerned that somebody wouldn't just buy a house and turn the whole thing into a business and so we went through the process and determined that it could only be a certain percentage of the house and garage. That is why we did this, so somebody would not just buy a house and turn it into a business. DALY: I have a question. The construction equipment that you mentioned, dump trucks, backhoe, many excavators, are you planning on using any of it on your farm? MR. LUNDGREN: They will be used occasionally for maintenance and while we finish our improvements throughout this year, we still have a lot of trenching for irrigation main lines and landscape and that sort of thing. Ongoing we will use if somewhat limited for dragging pastures possible or moving manure piles and things like that. DALY: The reason I asked the question, for the record, is I was an excavator too and I still own a backhoe. I have a five acre little mini farm and that thing is sitting there and I use it everyday. So, the idea that construction equipment is you have dump trucks, backhoes, and stuff like that could be considered farm equipment also. There are certain things like cleaning ditches in the fall or spring and basically, moving dirt from one side. I do that at my place everyday with the equipment that I still have left over from my business. So, it could conceivably, in my opinion, a lot of that equipment can be used on the farm and be considered farm equipment. LUKE: The non farm parcel, as I read in the record, this was broken up by previous owner. MR. LUNDGREN: That is correct. LUKE: The non farm parcel under our Code Paul, they were allowed to do that. Was this after we changed the rules, or the State changed the rules? We adopted those changes where you could break off a small piece and leave two bigger pieces but you could build your house on the small one and you farm the rest. So, the non farm parcel was determined by Hearings Officer or by Staff or whatever to be a piece that was not farm ground or ? Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 20 of 52 BLIKSTAD: Right, yes. They actually had a soil study done by Wort and Associates when they applied for that conditional use to create the 2.77 acre parcel. LUKE: Do we... Has it been your experience, do we have a fair number of pieces, or a few pieces, or whatever, where you have more than one tax lot in the same ownership that are next to each other? BLIKSTAD: There are probably several instances out there. I don't know that we have had a request that I am aware of that I have worked on a conditional use where you have two parcels involved in the application. LUKE: One of the reasons I asked is my father-in-law owned property at Deschutes Junction since 1948 and I think that farm, I think because of how they acquired it, were three or four different tax lots. Although they were not legal lots, they were tax lots. I know that there are others around it I have run into. BLIKSTAD: There are probably several out there of people that owned multiple tax lots under one farm, so to speak. LUKE: Any questions of Staff? Nothing else you want to bring up? MR. LUNDGREN: Our biggest point is that with our type of business we do not conduct ...The only business that we actually conduct from our property is generating our billing invoices and faxing them to our customers which, as my wife had stated, we work strictly for Jack Robinson and their trucking company. All the rest of our work is done on their job sites, away from our home, away from out parcels so our business is kind of a unique situation in that our business is not physically conducted from our dwelling or any part of our property. Basically, we are just asking to be allowed to park our trucks there at night when they are not in use. LUKE: One of the arguments that was brought up is there are two driveways on this? Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 21 of 52 MR. LUNDGREN: That is correct. The driveway that goes to the shop was already in place when we bought the property and there was not a driveway to access the non farm parcel so we added that driveway. There was a driveway application approved by the County for that second driveway. LUKE: From the Road Department. It was not actually a driveway application it was an access permit for the road. MR. LUNDGREN: Yes. LUKE: I had a question of staff. Forgot what it was. Okay, anything else, any questions? As this works as you read, the opponents will have an opportunity to testify and you will have an opportunity to rebut that. That is why I am asking if you want to add to the record, because you can't bring new evidence in. We will have to make a decision on whether you want to bring new evidence in. Pretty much, you have an opportunity to rebut, that is why I have asked you a couple or three times. MR. LUNDGREN: I think that is it. LUKE: Paul, I would appreciate it if you would get a copy of the final inspection for the record and if we leave the record open I would like to be able to have that there. BLIKSTAD: For the dwelling? LUKE: Yes. Evidently, was there a final inspection on the shop? MR. LUNDGREN: Yes there was. LUKE: That probably should be added to the record if it is not. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 22 of 52 BLIKSTAD: Did you originally get an AG permit for that shop? MR. LUNDGREN: No. LUKE: That was their testimony that they did not get an AG permit because they wanted to put windows and electricity in it. That was part of this testimony. DALY: You read the building permit number in the record. MR. LUNDGREN: Did you get that Paul? MR. LUNDGREN: It is B... BLIKSTAD: I can find that real easy. MR. LUNDGREN: Okay. DALY: Okay, but you said there was another one that you held up. What was that one? BLIKSTAD: Maybe I am getting old. I will have to go look at the record again. LUKE: Weren't you the one yesterday who said that you actually had an applicant die before you finished the process and they suggested that you get on it quicker next time? BLIKSTAD: Yes. (Laughter from audience) Larry just handed me an applicant for AG permit exemption. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 23 of 52 MR. LUNDGREN: We did get an AG permit for a barn, it is not the shop. BLIKSTAD: You just never build it? MR. LUNDGREN: This year we built a barn for hay storage. BLIKSTAD: That is what this AG permit is for? MR. LUNDGREN: Apparently, I don't have it in front of me but I would assume... LUKE: Where is that on your plot plan. DALY: It shows a barn. MS. LUNDGREN: Yes. LUKE: Oh, way out there, okay. DALY: So, that is probably for the barn, not the shop? MR. LUNDGREN: Yes, the AG permit was for the barn and had nothing to do with the shop whatsoever. LUKE: Laurie, is that a problem for him to get that in after this hearing is over? CRAGHEAD: Not if you leave the record open for new evidence. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 24 of 52 LUKE: I think that those need to be in the record. CRAGHEAD: Okay. DAILY: I do too. LUKE: Okay, Staff do you have any questions of anybody else? Are you done? MR. LUNDGREN: Yes, thanks. MS. LUNDGREN; Yes, thank you. LUKE: Is there anyone else in favor of this application who would like to testify? Seeing none. Is there anyone opposed to this application who would like to testify? Come on up Paul. First thing I would like to have you address is the Friends of Couch Market. PAUL DEWEY: Thank you Commissioners. For the record, Paul Dewey representing the Friends of Couch Market Road. This is not an organization that has been organized under the State Corporation rules. It is just an association of neighbors and as I explained to the Hearings Officer all of these neighbors had written in letters already. I should go ahead an identify them. LUKE: Is it identified in your record anyplace? DEWEY: All the letters from these folks like Julie Sterling, Ned Hayes, and other s. This would come up if ever this case goes to the Court of Appeals where its standing would become an issue at least for LUBA if you appear before a local body, that is good enough. If we went to the Court of Appeals we would have to establish proximity or impacts or significant affects to get standing. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 25 of 52 LUKE: How many different families are there, do you know? DEWEY: There are the Sterlings, like Julie Sterling, Bill and John. Ned Hayes and Peter Hayes, the Metafees, the Rickles and they all are to the south of the property. DALY: What is closest neighbor, how far away? DEWEY: Larry Irwin is representing the closest neighbor to the west. That is directly adjoining. There are other folks who could not be here today, the Smiths, and I am not representing them but they gave me a letter that I will submit to you. Those two are probably the closest and my folks are right next to the Smiths, to the south. LUKE: Okay. DEWEY: I wanted to give you a map and also a memorandum. The first subject I would like to address on the map here... When the Lucas' did a partition, I think in 2003, they created three separate lots what are not tax lots 524 the Lucas property, 525, the larger irrigation parcel owned by the applicants, and then the non farm dwelling or parcel is tax lot 526. I just want to emphasize, these are not just tax lots, and these are legal lots of record. What is unique about this case if they are proposing a Home Occupation where the primary use is not located on the same parcel that the home is located on. We cited ORS 215.448 then also the County's own Code definition of accessory uses and structures which referred to the use being on the same property, on the same lot. The Home Occupation use being on the same lot or the same parcel. We don't believe that where a non farm dwelling or parcel has been created that it is appropriate to have a Home Occupation primarily on a resource parcel. It is a separate parcel and these can be sold separately, I confirmed that with Kevin Harrison. Any time.... LUKE: So is it your contention that if they park the equipment on the non farm parcel you would not have a problem? Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 26 of 52 DEWEY: No, we still have a problem because it is less than 10 acres in size and as we interpret your code... LUKE: You can't have a Type 3 on less than 10 acres. DEWEY: Yeah, that has to be enclosed and that is the main problem here. You all did do revisions to the Code a number to years ago or maybe just a year ago. The changes you made were primarily with regard to whether or not you can have employees and then you created this three tier structure but the fundamental rules that the home occupation needed to be within a dwelling or within a residential accessory structure and needed to be secondary to the residential use. All that has stayed the same. I believe it was an Aiken decision that Karen Green decided a couple of years ago where she considered something quite similar to this where the outside parking, maintenance, and cleaning of the equipment really overshadowed what minimal residential use like a small office. LUKE: Is that before the adoption of our Home Occupation Code? DEWEY: Yes, that was before the change but I did not see that part of the analysis that has to be secondary to the primary use had been changed. The other significant issue here is that of impacts. Because this is an EFU zone, all those tests about compatibility, suitability for the site, where or not there are going to be significant impacts on surrounding area farm uses, the need to do a study area, being located on the least suitable lands, all those things need to be done. There is not, in fact, any study area analysis. You all usually require a one mile radius or diameter study area that would identify the property ownerships and what activities are going on and then considering the impacts. That is really standard analysis in these kinds of conditional use applications not only under the code but under ORS 215.296 requires that. That has not been done here and the importance of this is that there are going to be significant impacts. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 27 of 52 The Smith's, who could not be here today asked me to... It is because of the cold weather and half (unintelligible word) horses that they take care of. They have reported a couple of times when apparently, when Lundgren's were cleaning their equipment or significant sounds or banging of trucks that startled their horses. But there are significant impacts due to the noise. As far a residential use because there are not only impacts on farm uses it is also other existing uses. Is the equipment noise affecting residential use in the area. If I could, I will bring up these letters. LUKE: Do they live on two separate pieces also, they have two different addresses there. DEWEY: They have two parcels there and where their barn, house and horses are is on one parcel. I do not think the developed the other parcel. I don't represent them so I can't ...I just know that they are both on the south side or south of the applicant. On this 35% rule, there are actually many different acreages that are mentioned here. The applicants mention using 100 square feet, that is what they are using of the parking space. The Hearings Officer came up with 1800 square feet and on the map that the Lundgrens submitted as their exhibit 5 to one of their letters, they identified it as .4 acres. I do not know what the difference here is but I do not believe the evidence is adequate to establish that it is only 1000. Maybe if you park all the equipment tight all together it might be 1000 square feet but if you are calculating the area of moving the equipment around it is going to be a larger area. As to alternatives for the Lundgrens, I don't believe it is up to the opponents to find an alternative and I understand that prices are high out there. One alternative that was mentioned at the hearing before the Hearings Officer was parking this equipment at Jack Robinson and sons because that is who they are working for. There is an alternative out there for them. If you have any questions, I would be glad to answer them. DALY: Paul, what about the idea that all of this equipment can be considered farm equipment? It can be used on the farm and in fact, in a lot of cases, it can be used everyday on a farm. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 28 of 52 DEWEY: I don't think, particularly the larger stuff, could be. Maybe that small bobcat you were talking about could be but the heavy dump truck and the trailers and all, the testimony has been that that's part of their excavation business. Any time that bigger equipment would be used would be for a leveling project or something like that, that would be a one time. It is just that the evidence in the record is that this is part of their excavation business, not farming. DALY: I do not dispute that at all but I know a lot of farmers and there is a lot of farmers that own backhoes, that own dump trucks, that stay right on their farm because they are always hauling rocks off their field or doing something. All of this construction related equipment can be considered farm equipment too. Everywhere you look there's large farms, smaller farms, that have this equipment available and on the farm. DEWEY: I think the test would be is primarily where this is used. If it was just sitting there and then used on the farm periodically, maybe that would be the case but where it is engaged in an ongoing business then the test of is this really farm equipment or is this really excavation business equipment. I would think the assessment would be that it would be the later. LUKE: I remember a lot of the discussion as we were going through the Home Occupation Code. There are a lot of contractors, builders in this area and part of the discussion was is a contractor driving his pickup to use primarily to use in his construction business with lumber racks on it and an equipment trailer behind him, is that legal to park at your home if you do most of your work off site. We had a lot of discussion on that. The next question is, if you are an excavation contractor and how you get back and forth to home is your dump truck, is having a dump truck parked at your house a legal use because that is your commuting rig. We had a lot of discussion on that and I am going to have to go back and review my notes some. Is that a problem with that? CRAGHEAD: If you are looking through your personal notes, those would have to be put into the record for review. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 29 of 52 LUKE: I won't look at my personal notes I was just trying to recollect. I will do my best. As part of the work session, maybe we can have some of that discussion too. DALY: Did you sit through any of that (to Paul Dewey)? DEWEY: No, I was not involved in any of that at all. DALY: Dennis, if you remember correctly, you and I were both involved in that year long discussion... LUKE: If I remember, it was your idea to stew on it. DALY: It was and the excavation business was one of the things that we discussed that should be allowed on larger parcels. I remember the discussion and I was even in favor of going down as small as 5 acres as long as it had adequate screening and everything. The ultimate decision was to make it a minimum of 10 acres, with adequate screening. So, I thought this was all resolved. I thought this was something that was an allowable use. CRAGHEAD: The issue is that is being brought up by the opponents is that these are two separate parcels. Where the equipment is being parked in not on the same parcel where the house is. So, the house is not the 10 acre parcel where the equipment is being parked. Under the State Statute, in order to have a home occupation on EFU land, it needs to be primarily within a structure. LUKE: Yes, but under our Code, and what we adopted is that you can't build the house on the farm parcel. That was the whole point, to have a non farm parcel where you could build the house. CRAGHEAD: However, if you have a non farm parcel and you are going to do a Type 3 Occupation, you have to have a large enough parcel for equipment if you are going to have that kind of equipment on there. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 30 of 52 DALY: Alright, I guess the question is whether we define these two separate parcels for this purpose as one unit or two. I don't think we even thought about that issue when we were doing this ordinance. LUKE: No, we did not have enough lawyers in the room. (laughter) No offense at all! CRAGHEAD: Also, just to point out, if you are going to have a discussion about what happened during the Home Occupation time, you would need to have that discussion now and not just at the Work Session because that would be new evidence that would be coming in. LUKE: I appreciate that. DALY: Do you remember the discussion on this issue? LUKE: I remember there was a year of discussions. DALY: The excavation business was one of the things that we talked about, the dump trucks, the different pieces of equipment and whether or not it could be an allowable use on parcel of... we ultimately came up with 10 acres or more with adequate screening, etc, etc. LUKE: With how many employee's could be coming in and whether you could have 10 employee's coming to pick up equipment, there was a lot of discussion on that. CRAGHEAD: I believe the discussion for the 10 acre parcel was also, was the parcel large enough to have a house and park the equipment. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 31 of 52 LUKE: The other discussion of course was building contractors and driving their own truck to their house and if they had an equipment trailer or a flat bed trailer. Is that an allowed use and I know we had a lot of discussion on it. DALY: And the discussion also came up about whether or not some of this construction equipment is farm equipment because you use it on both sides like I said. I use my backhoe everyday. My wife climbs on it and moves hay and grain to the different pastures, we clean the barn yard, and we clean the different pastures with that backhoe. It is a piece of construction equipment no doubt, but it is also very handy on the farm. CRAGHEAD: So, it would be an interpretation for the Board to have to make in terms of, due you want to make an interpretation of whether or not what the equipment is primarily used for. What is the principle use of the equipment? Does that enter into your definition of whether or not it is farm equipment or whether or not it is part of the Home Occupation? LUKE: Let's say that this conditional use is approved by the Commissioners. This is only for the applicant. If they sold one or more of these pieces, the new owners would have to come back in and apply all over again. This conditional use is strictly to the current owners. CRAGHEAD: Because it is for that Home Occupation, yes. LUKE: Right, it is not transferable. Paul any comment on the discussion we have had? DEWEY: No. LUKE: Any other questions of Paul? Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 32 of 52 CRAGHEAD: One other thing is under a Type 3 they have to come back in every year, it has to be inspected every year. LUKE: It has to be reviewed, yes, I appreciate that. Any more questions? DALY: I do have a question of Legal Counsel. The issue of, assuming that we determine that the equipment these folks have could be consider farm equipment as well as construction equipment, which they are both. They are used in construction and also used on the farm. The issue of the shop, where you are saying that it can't be used for other uses other than... It is a resource right? It is a farm shop. Are you saying...? CRAGHEAD: It's not...what the code talks about is the buildings accessory to the dwelling, not what is used for the AG use. You are not allowed to have, as Paul pointed out...would you point out that word about the resources. BLIKSTAD: Yes, the EFU zone prevents or prohibits Home Occupations in structures associated with resource use. LUKE: Yes, but, one of the reasons we established the permit for AG buildings, as a matter of fact, we encourage people to get permits for AG buildings because people were building buildings with AG exemptions and wanting to park their motor home, their boat, pickup, car, or something in the barn. Under the Code it was illegal because it was supposed to be... for the exemption, you could not put personal non farm stuff in there. One of the reasons we encourage people to get the permits is because under permit you can park your car, your boat in there or something. Plus, it is nice to get an inspection on a building so it does not fall down. But that was...they got a permit for this building so they could park their boat their or their motor home they just can't put their construction equipment in there unless it is deemed for use on the farm. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 33 of 52 CRAGHEAD: And it is an accessory to the dwelling. Then therefore, that accessory issue is they may use the shop, if you find that it is accessory to the dwelling and you find that the shop will be used as part of the square footage calculation to determine the 35%. LUKE: That would be difficult because it is an AG building. CRAGHEAD: They testified that the shop is not an AG building. LUKE: But it is on resource land. CRAGHEAD: The shop itself is on the same property as the house, is that correct. LUKE: No, it is on the resource land. CRAGHEAD: It is on the resource land, right. LUKE: So, are you going to change your opinion? CRAGHEAD: Yes. DALY: But it was built as an AG building, is that correct? Oh, it was not. They got a regular building permit and built the shop on the resource land. LUKE: But it is an AG building that you can put personal property in but you can not put business property in that is not related to the farm. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 34 of 52 CRAGHEAD: And that is something that Paul will check since you are going to leave the record open. After this hearing Paul will verify what type of permit it was. DALY: Okay, but if you determine that some of this construction equipment is resource equipment or can be used on the farm, my question is can they then put that in the shop if they want to? CRAGHEAD: I would think if the Board declares that the shop is an AG use then yes. DALY: Of course, right? DEWEY: Paul Dewey again, for the record. The shop is a problem here. Originally we thought the application was coming in because the equipment was going to be associated with the shop, which at first was described as accessory to the home. But you can't have an accessory structure on a separate lot that the house. Then the description changed that no this is really for farm use. The building permit and it is already in the record, I have included the building permit in the record and it refers to residential building. It does not refer to farm building. That is another question we have for staff is how did this get approved? Where is the land use approval for this kind of structure? There is not any land use approval in the record. It was just built with a building permit. The tax assessor came out and apparently cited them, not only because of the equipment being stored there but the applicant had installed plumbing without a permit. Because, I think, they were living there. There was also reference that they were using an office there. So this is a shop that has been used for all these different purposes and it has been really difficult for us to sort out the different rationales that have been given for this is an accessory structure, this is a farm structure, and I go into this in some detail in one of the footnotes in the memorandum I gave. This could easily be an illegal structure, aside from the plumbing problems. LUKE: I would like to point out; I pushed really hard for this County to require building permits for AG buildings for a couple of reasons. We have riding areas that are used for public events and were built without building permits. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 35 of 52 We have buildings that have come close to falling down because the people who went out and built them under an AG exemption should not have. They should not even be licensed to build. Just because an AG building has a building permit, to me, does not mean it is not an AG building. It has to fit all the criteria to for and agricultural building to be used for some farm use, hay storage, equipment storage or something like that that deals with the farm. I don't consider having a building permit making it an non AG building. DEWEY: The problem here is widespread, I think, in the County. People are coming in and getting building permits to build structures, saying this is going to be used for farm use, when there is no evidence in the record as to what farm use it is going to be. Then you have got this other beast out there called an AG exempt building process that you actually do apply for an AG exemption. These are two different procedures being used and there is no evident, at least situations like this, where it is not really clear what the purpose and use is going to be. It ends up being for every use and every purpose. LUKE: I used to tell my fellow legislators in the valley that they build on better farm ground than we have. Are you done Paul? DEWEY: Yes. LUKE: Any questions of Paul. Is there anyone else who would like to testify against this on the opposition? LAWRENCE IRWIN; Good morning, my name is Lawrence Irwin, I represent Coyote Properties LLC owned by William McCormick and that is the property immediately adjacent to and west of the applicant's property LUKE: Would you take the mike over and show us on the map. IRWIN: Sure, let me get this out. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 36 of 52 LUKE: It is in blue right there, the property is in blue? IRWIN: Right. My client's property would be right here to the west. LUKE: The whole green piece there? IRWIN: Yes. LUKE: Their house is located... IRWIN: You can see that here, over on the easterly edge. DALY: Is that all pasture. IRWIN: Uh, yeah, with maybe the exception of maybe just at the entry way, but yes. DALY: It is all grass seeded into permanent grass pasture? IRWIN: Yes. Mr. McCormick, presently, is in fact our ambassador to New Zealand. So, he is not there all the time and does not have a lot of livestock activity but he does intend to retire there. So, he will probably have some animal use there we just don't know at this point. I want to address, first, the photographs I took on Monday the 13th. There are three of them. LUKE: Are yours the ones on paper or the ones on the photo paper? Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 37 of 52 IRWIN: I had two sets on photo paper. Commissioner Clarno has the ones with the writing one it and I have asked that those be made part of the record. I did not have time to label the others but let me give you a view of where they are taken from which is from the southwest corner of the applicants property or the southeast corner of my clients property. It is a view across the irrigation pond over to the shed or shop or whatever you want to call it. LUKE: Whose pond is this? This is your client's pond? IRWIN: That is correct. One of the photographs, I don't want it to be misleading, I did zoom in a little and it shows you a picture across the pond to the shed and you can see part of a trailer there. The other one, I put a wide angle lens on and you can see the applicants shed and then their new house which is off to the east or the right side of the photograph. DALY: This one here? IRWIN: Yes, sir. The third one was taken from Couch Market Road straight down the driveway of the applicant's property showing the truck and the trailer that was there. I don't know if Commissioner Daly uses that kind of equipment in his farm regularly but it is certainly something that we would prefer to be screened. LUKE: So what does your client do about the mosquitoes their pond generates that fly over to the Lundgrens property? West Nile Virus, are we worried about that? IRWIN; It was frozen when I was out there, so no mosquito problems. DALY: I bet it is. You just said that you prefer it be screened. Is that your concern? IRWIN: Well, it is more than that. The neighbor over here to the south... Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 38 of 52 LUKE: That you do not represent? IRWIN: That is correct. Smith has reported that she has had trouble with her horses from loud noises. If we are having equipment being repaired there, if we are having equipment being washed there, if we are having diesels, I am a city dweller, but we had an excavator next to my house who started his rig up for whatever reason at 5 o'clock in the morning and let it idle for an hour before he would come out, finish his breakfast, and then take off. The noise and the dust and the driveway access, incidentally, is right on my clients... on that side next to my client's property. It does not go anywhere midstream of the applicants property. I think it is a concern for us and it is Mr. McCormick's concern that this use because, you can't have County Code Enforcement out there everyday and that this use can expand from time to time. Mr. Lundgren's business hopefully will become yet more successful, he will have more and more equipment, and it just gets to be an ongoing problem. Certainly you should be allowed to have farm equipment on your farm, I don't dispute that. But let me just briefly address two other little historical items. One is, this Commission has allowed in rural commercial or rural industrial zones, specifically, excavation businesses. This is an EFU zone, a resource zone that does specifically allow it. I know that this Commission received a questionnaire from, I think, your County Counsel back in April of 2003. Commissioner Clarno was not here then but you gentlemen were. LUKE: Are these the worksheets, one of the many worksheets, we have for the Home Occupation. IRWIN: Actually a Home Occupation questionnaire that went out with several questions to the Commissioners about what are we doing and what kind of problems are we creating and that sort of thing. Commissioner Daly at that time, in response to whether we should limit property size had picked up on the Type 3 thing and stated "I think Type 3 is an attempt to address businesses conducted off site, like well drillers or contractors. This is not a Home Occupation in my opinion." That is what we have here and that is what the applicants have told you. All they do is bring their books home or do some billing out of their home at night and that would be it. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 39 of 52 DALY: Can I see that? IRWIN: Yes. LUKE: Paul, you will have to make a copy of that and put it in the record. IRWIN: Maybe that was preliminary discussion and you... LUKE: Staff got these to fill out. IRWIN: What did not change is Deschutes County Code 1804030 which provides that accessory uses or structures must be incidental and subordinate to the main use and also that under 1816030N, Home Occupations are not allowed in structures accessory to a resource use. In this case, I do not know if you are going to start taking applications where I own a lot across Couch Market Road but my farm parcel is over here, can we license these as conditional uses for properties that are not actually together or not. I can just see a myriad of problems there but what is clear is this parcel where they want to park the vehicles does not have a home on it. There is nothing that prevents them from selling off one of the other. DALY: For the record, I just looked at this document and this is a typed document taken from some hand written notes that I said. I am not so sure that it was transcribed exactly the way I wrote it if I did write it. Where did you get this? IRWIN: I found it in the scanned documents. DALY: I know but where did staff, did we have a had written thing you actually took this off of? LUKE: Staff actually sent it to us by email and we filled them out. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 40 of 52 DALY: I know but we filled them out by hand right? LUKE: Some of us could have and some of us could have filled them out on line also. CRAGHEAD: Paul and I were discussing this. It is possible that that statement at the time was Commissioner Daly's comment feeling that these were not home occupations so therefore they should be allowed on the property in terms of they are not going to be there. DALY: I think you are right. I think probably during the discussion it felt the whole time ...in fact I really believe that this is one of the reasons that we brought this up. Because I felt all along that some of these types of occupations should be allowed on open parcel. BLIKSTAD: Without conditional use. DALY: That is right and that is exactly why...I don't know what that statement actually means. I will give this back to you. IRWIN: Alright. CRAGHEAD: That is in the record now. IRWIN: I know this is kind of a thorny area for you and maybe this is a precedent setting case but in this case on the specific... LUKE: Could you stay closer to the mic? Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 41 of 52 IRWIN: Yes, sir. The applicant again, has the burden of proving that they meet all of the criteria for a Type 3 Home Occupation. The evidence here is just not sufficient to substantiate that. The Hearings Officer's decision ...I do not mean to be overly critical but, says things like "applicants propose to operate their business five days a week" but does not limit it to that so we are not limited to hours or that kind of thing. The applicant proposes to put up some shrubs but they do not say what kind, are they mature, are they not, what type of screening, it is just a total lack of any sort of specificity here of what the applicants are proposing to do. LUKE: But the Hearings Officer would probably do that knowing that the Hearings Officer had already found. Because as I read, the Hearings Officer found that the application was not complete or they had not met their burden of proof. They went ahead and did the findings on the other things anyway because they were there. They want to help us sometimes if it is going to be appealed and we appreciate that very much. Again, knowing that the Hearings Officer knew that it was going to be turned down, the Hearings Officer would not go into that kind of specifics, I would think, leaving it to the people that it was going to be appealed to. IRWIN: It may not have been appealed at all. I do not know how you know that. It would seem to me Commissioner Luke if... LUKE: But there is no reason to go into specifics if it is going to be turned down. The Hearing s Officer very clearly in the beginning of the Hearings Officer statement was going to turn it down because of the square footage. So there is no reason from my standpoint for the Hearings Officer to go into specifics about what kind of trees need to be there and what the hours of operation are. IRWIN: But what I am saying is that it is the applicant's burden to have presented that to the Hearings Officer and that was not done. LUKE: We just approved Thornburgh and they did not do a lot of that stuff either and it was done on conditions of approval. If the Board of County Commissioners chooses to approve this conditional use, I am sure there will be conditions of approval written into it. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 42 of 52 IRWIN: It is my understanding, hypothetically, if Mr. Dewey was representing the applicants he would say these trees are going to be 14 feet tall, they are going to evergreen, whatever it is, that sort of thing and that just is not here. I do not think that it is up to the Commission or your staff to say "we will pick out what kind of tree you are going to have." I think it is up the to applicant to prove that here is what we are going to do and this meets your code. LUKE: From my standpoint, and I appreciate your argument, I really do... IRWIN: We want to know because this is our chance to object. LUKE: I appreciate that. IRWIN: We don't know what it is going to be if it is just open to you later to tell us what it might be later. LUKE: The applicant came forward without council which is difficult to do in any land use issue any more. It is my personal belief, and one of the reasons we have a help desk, two or three help desks over at CDD, is for people who want to try to go through this on their own. I appreciate... I think our land use laws are way too complicated. It is nice... I think people who try to navigate it on their own; I think the County has an obligation not to do their work for them but to at least provide them different assistance than people who are represented by legal counsel. IRWIN: Thank you, Commissioners. Luke: Do we have anyone else who is opposed to this who would like to testify? Would the applicant like to do any rebuttal at all? No new evidence, okay. DALY: They can rebut the evidence that this attorney... okay. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 43 of 52 LUKE: For the record, again please your name. WINDY LUNDGREN: For the record, Windy Lundgren DAN LUNDGREN: For the record, Dan Lundgren. MR. LUNDGREN: It is kind of hard to keep all this straight with out any time to think it through and plan but one pointy... LUKE: Would you like a 5 minute break? MR. LUNDGREN: Would that be okay? LUKE: Let's take a 5 minute break. LUKE: We are back and in the witness stands again. WINDY LUNDGREN: For the record, Windy Lundgren. DAN LUNDGREN: And Dan Lundgren. MS. LUNDGREN: This may not need a question that we need an answer for but wondered from the very beginning if a CUP is in fact necessary for what we are asking for. It obviously does not seem to meet a lot of the criteria but staff report and Hearings Officers findings seem to be for the most part in our favor as far as what we can tell. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 44 of 52 LUKE: Let's ask legal counsel to respond. CUP. is part of their occupational ordinance, isn't it? CRAGHEAD: If they are applying for the Type 3 Home Occupation. LUKE: So it is a conditional use permit. There is a Type 1, we do not even require a permit because you are working out of your internet out of your home and you do not even know it is there and there is a Type 2, is that conditional? CRAGHEAD: Yes, it is conditional use. You can only have it on a half acre; it is carried within the dwelling, no more than 25% of the combined floor area. LUKE: Type 3 includes employees, and sign, and different things that you want, so it is a conditional use. CRAGHEAD: It has business trips and does not use materials or mechanical equipment which may be detrimental to the residential use. It was a lesser intensive use. The following uses that are not allowed on a Type 2 are repair, towing, or motorized vehicle equipment or business that store or use a gross vehicle weight greater than 15,000. That is why it would not fit in. MS. LUNDGREN: In order to, I guess meet some of the criteria, would it be an option to do a lot line adjustment and do away with the non farm parcel and have simply the house included in the farm parcel with a conditional use permit for the house? LUKE: County Counsel. CRAGHEAD: I do not believe so because then you would have to get a permit for having the house on the farm parcel, I believe that is the reason why it was separated off. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 45 of 52 LUKE: Unless you made the where the shop is a non farm parcel. You can't do that though. It would be easier for you to move your barn. CRAGHEAD: Also, if you are doing a lot ling adjustment and you are trying to make the farm parcel smaller then it would be a matter if it still meets the minimum parcel size for that zone. MR. LUNDGREN: The... LUKE: We are getting a little carried away. MR.: LUNDGREN: They have just brought up the points that they are two separate parcels and we can't do what we are doing so... LUKE: You are actually bringing up comments that could generate response from the opponent. What you are supposed to be doing now is responding to the opponent's arguments. If we can stay with that, we would appreciate that. MS. LUNDGREN: As far as where the equipment is parked, they came up with approximately .4 acres of graveled area. We maintain that the area that we park the equipment on is approximately 1000 square feet. The entire area may be that but it is also used in conjunction with farming equipment. The separate driveway that leads to the shop has been used for the people doing the custom haying, the people doing the spraying of the fields, and people coming to pick up hay. They do not go through the driveway that leads to our house. It is used for that as well. Our shop use, as we stated before, we have been staying in it and using it for an office but that is done with. Primarily it is going to be used for our 4 wheelers, our lawn tractors, gardening supplies, tools, tack room, gun room, and future farm equipment storage. The main reason we built such a big one is we built two shops in the past and always found that they were never quite big enough. We had planned originally to be here long after we get out of the excavation business and as Mr. Daly said we may still keep a dump truck or a back hoe for farm use. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 46 of 52 That was our original intention when we built the shop, for that purpose. The barn is used primarily for shelter for the horses and a place to store the hay. There is not anything else out there. In response to Mr. Dewey with regard to the Smiths, property directly to the south of us, they have sold their horse property there and are now building on their other parcel. Apparently it was one of her complaints as far as the noise goes. They have had an excavator going and fence building and other things going on, I do not know if it is a shop or barn that they are building but they are under construction now too. If there is equipment and noises going on now that is scaring their horses it is just as likely that it is theirs as opposed to being ours. We are also, as I said, under construction with our house. We are building a rock wall, we are screening rock to be able to use the dirt and it is a noisy process. Any body that has done any kind of landscape or building would agree with that. We are only a small company and we intend to remain so and we have definite plans. We are willing to be inspected and to live with any conditions of approval that may be set out for us. LUKE: I do not think that you want to be that general. MS. LUNDGREN: Well, reasonable conditions. LUKE: There you go. MS. LUNDGREN: Well, we can only make money so quickly so some of this just takes a little bit longer for us just being a small company. We have every intention of providing barriers, providing noise and dust control and improving the value of the property as far as the neighbors are concerned. Thank you. DALY: You said you made some effort to look at other parcels zoned for this type of use. Were you able to find anything within the County? Outside the City limits? MR. LUNDGREN: That I don't know. Maybe I did not know that there was such a thing available. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 47 of 52 DALY: I do not believe there is, that is why I asked the question. LUKE: The only place that would be in is what is considered rural communities which is Terrebonne, Alfalfa, and La pine. MR. LUNDGREN: Unfortunately with our type of business, we can't afford to run the trucks that far back and forth several times a day, in and out. The fuel, the mileage, taxes, and everything else. Our realtor did say that there were only two parcels available in the Bend area. Other than that he said it would be like Prineville or very far away areas that are not feasible for us. LUKE: Any other questions? Okay, I do not believe there was any new evidence. Okay, no, the attorney's are saying no. Thank you. MR. LUNDGREN: Thank you. MS. LUNDGREN: Thank you. LUKE: Laurie, since you mentioned that the adoption of the home occupation, any remembrances need to be done now, I can not remember even considering the area outside, the parking area, as any square footage. I do not remember that in any of the discussions. I know we talked about parking equipment, I know we talked about different types of heavy equipment, contractors with pick ups. We talked about gross weight and I remember some extensive discussions about gross weight because some dual wheeled pick ups weigh more than flatbeds. There is all kinds of equipment out there. We even had staff research how much trucks weighed and what types of trucks weighed what. Mike, I can't remember taking about square footage of parking area. DALY: I can't either. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 48 of 52 LUKE: I know we talked about screening. CRAGHEAD: So, what you are saying is that you do not remember there being a discussion that you had to include the parking area when determining whether or not the home occupation takes up 35%. LUKE: I remember extensive conservations of whether the square footage should include the house and garage if the garage is attached because sometimes people convert half of their garage to their office space. I remember those conversations about whether the garage should be included in the square footage or not but I can not remember any discussions about parking area. DALY: A Type 3 is not, I know we talked about having your office in your home, but a Type 3 that... We talked about being able to park the equipment on the property do not know that we talked about where. CRAGHEAD: If you want further discussion, I believe Catherine Morrow was a part of all those discussions at that time. If you want her to enter something into the record during this next open record period that you are wanting, Paul could get some more information into the record. One possible thing is to leave it open so that you can get some written comment from Catherine Morrow as to if she has any recollection of any discussion or it, and or Kevin. LUKE: Most of it was the previous planner, Damien. We were both there and I was joking earlier, my memory is not all that bad. I remember extensive discussions about garage, about truck weight, and that is how we got to the gross weight of the trucks. I remember staff had to go out and figure out how much trucks weighed and we had public testimony talking about a lot of these things. I can not remember any body bringing up the fact that the parking area is part of the square footage. BLIKSTAD: I think that is probably a good indication that there was none. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 49 of 52 LUKE: I am not saying that there should not have been a discussion; I am just saying that there was not a discussion. DALY: How would that affect... I mean if there was none. CRAGHEAD: It depends upon how you want to interpret it now. BLIKSTAD: Exactly. LUKE: Even if there was, it is still how we want to interpret it now. DALY: I do not think we entered discussion for an excavation business. I don't think there was...there was certainly no limit on how many vehicles you could have there as long as it was screened, right? CRAGHEAD: Right, the code does not limit the number of vehicles. It says you may have outside storage of equipment and materials so long as the subject property is 10 acres or more and if there is adequate setbacks, screening, and or buffering. DALY: So, the biggest issue that the opponents have brought up is the fact that we have two separate parcels here. Even though it is all together and it is being treated as one parcel in their operation, farming, and whatever. The mere fact that it is a separate tax lot, is that going to be a controlling factor? LUKE: There are two lots of record. CRAGHEAD: It is not just separate tax lots because a tax lot... The assessor has different criteria for creating tax lots than what are created as far to create legal lots of record. They do not necessarily go by the same. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 50 of 52 A person who owns two adjacent properties can come into the assessor's office and ask for a single tax lot if they want to or some single legal lots are divided into several different tax lots because of leases or some other thing. So, a tax lot is not indicative of a legal lot. The issue is whether or not you want to include two separate legal lots and if so, do you want to put any parameters on that in terms of do they have to be adjacent. As Mr. Irwin testified, do you want to include properties that are across the street from each other or properties that skip a property even though they are operating as one farm operation or do you want to include allowing the home occupation on the property that does not have the house. If you are going to include two separate lots, you need to determine those kinds of limitations, whether or not you want any of those kinds of limitations. DALY: So we are basically we are setting a precedent or adding to our code by the decision we make on some of these. CRAGHEAD: You will be interpreting the code. DALY: Interpreting the code. Did I understand you to say that there is some State law that is involved here too? CRAGHEAD: Yes. The State law that is involved was brought up by Mr. Dewey is in ORS 215,448 which is Home Occupations in EFU zones, or actually not just EFU zones. It does have specific requirements for what you can do in the resource zones. It does talk about that it has to be operated substantially in a dwelling or other buildings normally associated with uses permitted in the zone in which the property is located and not unreasonably interfere with other uses permitted in the zone in which the property is located. As Paul has pointed out that means generally, you also do not have a home occupation in a building used for agricultural purposes. DALY: It does not talk about separate records. Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 51 of 52 LUKE: It is a building permit in the records. They will want to see a copy of the building permit for the shop and house and a final inspection of both. CRAGHEAD: You would have to leave the record open for new evidence to come in. The ag exemption permit application is already in the record. LUKE: I would like to leave the record open for seven days so the applicant and opponent have an opportunity to submit new testimony; after that, seven days for rebuttal. CRAGHEAD: Seven days for new evidence; seven days for rebuttal only, no new evidence from either party; and seven days for rebuttal for the applicant. At the end of fourteen days, the applicant is to provide the final rebuttal. This would allow time for a decision. LUKE: The hearing is closed, with the written record left open as discussed. Being no further discussion, the meeting was closed at 11: 00 a.m. DATED this 16th Day of February 2006 for the Deschutes County Board of Commissioners. -z. 1-11 Dennis R. Luke,`" hair y, Vi ATTEST: / . ~4'4'zzkt' Bev Clarno, Commissioner Recording Secretary Public Hearing - Home Occupation - Lundgren February 16, 2006 Page 52 of 52