HomeMy WebLinkAboutDesh Jct Decision Docs - Declaratory Ruling
ADMINISTRATIVE DECISION
FILE NUMBER: DR-10-3
APPLICANT: Deschutes County
PROPERTY OWNERS: Harry and Beverly Fagen
21208 Tumalo Road
Bend, OR 97701
REQUEST: The applicant is requesting a declaratory ruling that the structure
on the northwest quadrant of the Deschutes Junction interchange
is a permanent residence and thus complies with Oregon
Administrative Rule 660-022, Unincorporated Communities,
specifically Rural Service Center.
STAFF REVIEWER: Peter Russell, Senior Transportation Planner
I. APPLICABLE STANDARDS & CRITERIA:
Title 22 of the Deschutes County Code, the Deschutes County Zoning Ordinance
Chapter 22.40, Declaratory Ruling
Section 22.40.010, Availability of Declaratory Ruling
Section 22.40.020, Persons Who May Apply
Section 22.40.030, Procedures
Section 22.40.040, Effect of Declaratory Ruling
Section 22.40.050, Interpretation
Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
Chapter 18.74, Rural Commercial
Section 18.74.010, Purpose
Section18.74.020, Uses Permitted – Deschutes Junction and
Deschutes River Woods Store
Oregon Administrative Rule, Chapter 660, Division 22, Unincorporated Communities
Section 660-022-0010, Definitions
II. FINDINGS OF FACT:
A. Location: The 29.24-acre subject property is located at 21280 Tumalo Place, Bend, and
is further identified as Tax Lot 500 on Deschutes County Assessor's Map 16-12-26B.
B. Zoning and Plan Designation: The 1.77-acre portion of the subject property that abuts
the northwest quadrant of the Deschutes Junction interchange and Tumalo Place is
zoned Rural Commercial (RC), with the remaining 27.47 acres zoned Multiple Use
Agricultural, 10-acre minimum (MUA-10). A portion of the property is also zoned
Landscape Management Combing Zone (LM) due to its proximity to US 97. The
Comprehensive Plan designation is Rural Commercial (RC) for the 1.77 acres and Rural
Residential Exception Area (RREA) for the remaining 27.47 acres.
C. Site Description: The subject property is irregular in shape and currently has a home
on the west side of the property and a vacant pink two-story building sits near the
northwest corner of the US 97/Tumalo Road-Deschutes Market Road interchange. That
building is the subject of this declaratory ruling. An irrigation lateral meanders through
the MUA-10 portion of the property.
D. Surrounding Zoning and Land Uses: To the north are two commercial businesses on
land zoned Exclusive Farm Use-Tumalo/Redmond/Bend (EFU-TRB). To the east is US
97 and farther east across US 97 is The Funny Farm, a commercial business with
eclectic wares and novel landscaping. Directly south across Tumalo Place, which is the
southbound off-ramp from US 97 that ends at Tumalo Road, is a parcel zoned EFU-TRB
and engaged in hay sales. Farther south across Tumalo Road is the Seventh Day
Adventist School. Westward are vacant parcels zoned EFU and MUA-10 and the
Whispering Pines residential subdivision on land zoned MUA-10.
E. History of Property: The corner of the site that abuts the northwest quadrant of the
Deschutes Junction interchange where the vacant pink building now stands has had a
long history of land uses and interpretations by staff of state rules and the Deschutes
County planning policies and zoning ordinances. Summarized below are County land
use decisions on 16-12-26B, Tax Lot 500 and any Assessor’s information or permits
associated with the site.
The RC Zone on this property has ranged in size in various land use decisions from 0.67
acres to 0.83 acres to 1.77 acres. This was due to a combination of interpreting size of
site plans when scaled against Mylar sheets, sale of land to the Oregon Department of
Transportation (ODOT) for highway improvements, and changes to the property related
to the Deschutes Junction interchange and access issues. County staff is not disputing
the current 1.77-acre size of the RC zoning.
Z-77-53
Approved a rezone of two-thirds of the 0.83-acre parcel changing it from A-1, Exclusive
Agriculture, to A-S, Rural Service Center. The 1977 rezoning was done so the parcel
could be developed as a grocery store, but what ultimately was developed was Buffet
Flat, a flea market and secondhand store. The zoning and development of the 0.67-acre
area committed the land to commercial service center use. (Sometime between 1977
and 1993, the area zoned RSC increased from 0.67 acres to 0.83 acres. Additionally,
the remainder of the property was rezoned from A-1 to MUA-10.) The staff report
described the buildings on the site as being vacant.
SP-78-18
A site plan that approved a welding repair shop and ill-defined retail uses. The applicant
broadly described the intended retail use as possibly being a secondhand store, a
grocery store, or other form of retail. The applicant described the existing buildings as
abandoned in the submitted burden of proof. See permits B2777 and B 2798.
DR-10-3
(Board Document 2011-041) 2
1979 Deschutes County Comprehensive Plan
The 1979 Comprehensive Plan recognized the historical use of this area for small-scale
commercial and industrial activities, designating a portion of the Fagen property as Rural
Service Center (RSC). Unlike most of the other RSC’s designated in the
Comprehensive Plan, there were no Comprehensive Plan policies specific to Deschutes
Junction. Rural Development Policy #13 identified Deschutes Junction as an RSC (see
Exhibit #1) and Policy #14 provided policy language for development in all RSC’s.
Rural Development Policy #14 stated:
Each Rural Service Center shall have a compact commercial area to
serve the convenience-commercial, agricultural and repair services needs
of the surrounding rural lands. In addition, larger Rural Service Centers
along major highways, where public facilities such as schools already
exist, shall have a residential area designated (see individual RSC maps
and policies). The size and uses of rural service centers shall be such as
to maintain the rural character of the area.
SP-82-22
Approved a site plan to construct a 5,040-square-foot addition on the north end of the
building and open Buffet Flat Flea Market, a secondhand store specializing in antique
furniture and collectibles. The staff report references a house on site among other
buildings. (With the impending construction of the Deschutes Junction interchange in
the late 1990s, the owners of Buffet Flat moved their wares to the northeast side of the
highway circa 1992 and established what is now known as The Funny Farm.) The
building permit for the addition, B 9903, appears to not have been used.
PA-92-8 and ZC-92-3
This land use application attempted to change the zoning from MUA-10 to RSC for 4.15
acres on 16-12-26B, Tax Lot 500 and add a gas station and mini-mart to the parcel. In
1992 it was determined that 0.83 acres of the 29.71-acre parcel was zoned RSC.
Applicants had also sold 0.23 acres of the RSC land to ODOT for a then-future grade-
separated interchange at Deschutes Junction. The Hearings Officer recommended
denial of PA-92-8 and ZC-92-3 as the Comprehensive Plan did not allow for RSC zoning
on the property, the required Goal 14 exception was not submitted by the applicant, and
the proposed uses were already provided on nearby lands inside an Urban Growth
Boundary (UGB). The Board accepted the Hearing Officer’s recommendation to deny
the plan amendment and zone change.
Oregon Administrative Rule 660-022, Unincorporated Communities
In 1994, the Department of Land Conservation and Development (DLCD) crafted OAR
660-022, Unincorporated Communities, to have local governments address the anomaly
of land uses of a type and/or intensity that were more urban in nature, but occurring on
rural lands.
DR-10-3
(Board Document 2011-041) 3
Deschutes County examined all of the RSC’s designated at the time, culminating in the
report “Unincorporated Rural Communities Land Use Inventory” dated Oct. 26, 1994, for
Periodic Review Work Task #7. Pages 10-13 dealt with Deschutes Junction. The
County’s report concluded Deschutes Junction did not meet any of the OAR criteria for
an Unincorporated Community. The report found Deschutes Junction had four tax lots,
with three zoned for industrial and one zoned for commercial (Fagen property). The
Assessor’s date for those four lots listed three as industrial and one as exempt (Fagen
property). The exempt lot was listed as vacant as were two of the four industrial lots.
The industrial lots are on the east side of US 97.
The report summarized the land use pattern at Deschutes Junction as “…industrial uses,
which include United Pipe and Supply and Cascade Pumice, and retail businesses
including a gas/service station and café. (Fagen property)” The Oct. 26, 1994, report did
not identify any residential uses at Deschutes Junction.
After receiving input from local governments, including Deschutes County, DLCD
published on January 30, 1997, "Survey of Oregon's Unincorporated Communities.”
Deschutes Junction was not on this list as the then-Planning Director and DLCD’s field
representative had discussed and determined in the October 1994 report cited in the
previous page that the two-story pink building on the Fagen property was not a
permanent residence. Thus, Deschutes Junction did not meet the multiple permanent
residential dwellings criteria of OAR 660-022-0010 for an RSC.
PA-99-2 and TA-99-2
While under Periodic Review, the County began to apply OAR 660-022 to the RSC’s
listed in the Comprehensive Plan. During this process, the County again determined the
vacant building on the Fagen property was not a permanent residence and thus
Deschutes Junction did not qualify as an RSC. The County held public hearings on
these land uses and their implementing ordinances, 2002-018 and 2002-019. These
ordinances removed the RSC designation from Deschutes Junction, replacing it with
Rural Commercial (RC) on the Fagen property and Rural Industrial (RI) for other
properties on the east side of the interchange (Willamette Graystone, United Pipe, and
Cascade Pumice, for example).
Also during this land use process, the County took into consideration the effects on the
Fagen property of the Deschutes Junction interchange, which opened for traffic in
November 1998. The Fagen property no longer had direct access to US 97. PA-99-2
amended the RC boundaries from a narrow north-south alignment into a more east-west
alignment with access from Tumalo Place. (See Exhibits 2 and 3, which are Exhibits C
and D from Ord. 2002-018). PA-99-2 kept the RC designation at 1.77 acres, which is the
same size as the previous RSC designation.
(Staff has not found in the record when the size of the RSC went from 0.83 acres to 1.77
acres. Staff is not disputing the increased size, staff just cannot explain it at this time. As
the RC zoning does not parallel lot lines but rather is an amorphous designation within
the larger MUA-10 zoning, staff assumes the inconsistent size relates to scrivener
interpretations over the years.)
SP-05-28
Approved a business for the retail and wholesale sale of potting soils, compost, fertilizer,
and other soil amendments with the vacant building becoming an office. Products would
be stored in large outdoor bins.
Septic Permit S—748 (1978)
Remodel of a building classified as Commercial. S-748 was issued 4/14/78.
Building Permit 2777 (1978)
Remodel of a building classified as Commercial. B2777 was issued 1/24/78 and
finalized 2/8/78. B2777 was for a welding shop approved under SP-78-18.
Building Permit 2798 (1978)
DR-10-3
(Board Document 2011-041) 4
Remodel of a building classified as Commercial. B2798 was issued 1/24/78 and
finalized 4/6/78. B2798 was for a secondhand store approved under SP-78-18.
Building Permit 9903
New construction for an addition to a Commercial building. B9903 was issued 6/9/82
and finalized on 8/22/83. B9903 was for a flea market approved under SP-82-22 and its
status is listed as expired.
Septic Permit S54654 (2005) is the only County building or septic permit associated with
this change of use detailed in SP-05-28. The septic permit classifies the vacant two-
story building as “commercial landscape business/office with bath.”
The Deschutes County Assessor’s Office lists the building as a General Purpose
building, not as a residence.
F. Proposal: The applicants are requesting a declaratory ruling to determine whether the
vacant pink building can be considered a permanent residence. The status of the
building is the fundamental question on whether Deschutes Junction could potentially be
designated a Rural Service Center (RSC) under the State’s administrative rules for
Unincorporated Communities.
G. Public/Private Agency Comments: Notice was mailed on December 2, 2010 to
Deschutes County Assessor’s Office; Building Division; Code Enforcement; Oregon
Department of Transportation (ODOT), and Department of Land Conservation and
Development (DLCD).
Dave Pederson, Deschutes County Building Official on December 15, 2010
submitted the comment “Peter, based on our observations of the referenced structure
and the existing permitting record we find this structure is and has been in use as a
Commercial Occupancy.”
Jon Jinings, DLCD, on December 15, 2010, submitted the comment “It is our
understanding that the purpose of these proceedings is to make a local determination
regarding the status of a structure located at the northwest quadrant of the Deschutes
Junction intersection. More specifically, it is our understanding that the County intends to
establish whether said structure should be considered a "permanent residence."
“Our observations suggest that this structure probably is not a permanent residence. It
doesn't appear to be lived in or to be cared for as a home, nor is it designed or decorated in
the manner of an ordinary home. We trust that staff's review of the property's land use and
building history will be helpful in making a decision one way or another.”
“What may be more important to recognize is that even if the County finds the structure
to be a permanent residence, the area is still likely to fall short of qualifying as an
unincorporated community under OAR Chapter 660, Division 22. Deschutes County
completed its planning for unincorporated communities several years ago. We believe
the County did a good job, as evidenced by LCDC's acknowledgment. There have been
no substantial changes to the area that would suggest to us that the original decision
was mistaken or is no longer applicable.”
“Please enter these comments into the record. Feel free to contact me if you have any
questions.”
DR-10-3
(Board Document 2011-041) 5
H. Public Notice and Comments: Notice was mailed on Dec. 2, 2010, to all property
owners within 250 feet of the subject property as required by Deschutes County Code
for public notification involving MUA-10 lands. Additionally, an email was sent
December 1, 2010, to all members of the Deschutes Junction stakeholders group, which
is a collection of residents, property owners, and business owners who have been
involved for approximately the last three years in the development of draft transportation
and land use policies for the area as part of the comprehensive plan update.
The Country received responses from Tony Aceti, Jack Holt, Hal Keesling, John
Lysaught, and Marian Woodall. Those responses and their attachments are identified
and incorporated herein by reference.
Mr. Aceti entered into the record a March 26, 2009, letter from Eugene Carsey, in which
Mr. Carsey wrote, “From 1980 to 1997 my partner and I lived in the two-story residence
located at 65005 N. Hwy 97 (the northwest corner of Hwy 97 and Tumalo Road). [Staff
notes this is the pink building that is the subject of this land use. The mailing address of
the site was changed after construction of the Deschutes Junction interchange, Phase I.]
From 1977 to 1980, we lived in the small house (since razed) which was located just north
of the two-story residence. There has been a home located on the property since at least
1947.” Photos of the site, copied from Deschutes County Assessors Office, showing the
buildings described by Mr. Carsey were included. Also included were diagrams and
assessments for the site copied from Deschutes County Assessor’s Office.
Finally, Mr. Aceti also entered into the record two transmittals to the Deschutes County
Planning Commission. One is an email from Jack Holt dated February 26, 2010, in
which Mr. Holt summarizes how past land use and transportation changes make
commercial development at Deschutes Junction inevitable (the email does not address
the residential status of the pink building). The second is a letter from Bruce Barrett
dated December 12, 2009 where Mr. Barrett recounted his personal experience with
commercial development at Deschutes Junction beginning in the 1950s and expansion
of approximately 4,000 people who now live near Deschutes Junction (the letter does
not address the residential status of the pink building).
Mr. Jack Holt submitted an email dated December 9, 2010 observing the complexity of
the applicable rules and process (this email does not address the residential status of
the pink building).
Mr. Hal Keesling submitted an email dated December 10, 2010 referencing all of his
previous comments on the Deschutes Junction Transportation Plan (there has never been
such a document; staff believes Mr. Keesling is referring to the draft transportation and
land use policies for Deschutes Junction proposed for addition to the Deschutes County
Comprehensive Plan in TA-10-6), 19th Street, and the Deschutes County Comprehensive
Plan Update. While Mr. Keesling did not enter any copies of his comments on those
topics into the record, he did state “...those comments address the need and want of the
public to maintain the current rural character of the area.” His email also stated that he
has not seen any residential use of the property for the last five years.
Mr. John Lysaught submitted a December 14, 2010, email stating for the last 12 years
he had lived in the Boones Borough area that the pink building was not a residence but
was briefly a commercial landscaping operation.
Ms. Marian Woodall submitted a letter December 13, 2010, stating that in the 12.5 years
she has lived in the Boones Borough neighborhood, she and her husband have not seen
anyone living in the building, but there was a commercial landscaping business for a while.
DR-10-3
(Board Document 2011-041) 6
I. Lot of Record: The County considers the subject property to be a legal lot of record on
the basis of previous development permits (see B2777 and B2798).
III. CONCLUSIONS OF LAW:
A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.40, Declaratory Ruling
a. Section 22.40.010, Availability of Declaratory Ruling
A. Subject to the other provisions of this section, there shall be
available for the County’s comprehensive plans, zoning
ordinances, the subdivision and partition ordinance and this
title a process for:
1. Interpreting a provisions of a comprehensive plan or
ordinance (and other documents incorporated by
reference) in which there is doubt or a dispute as to its
meaning or application; . . .
FINDINGS: The County originally designated the property Rural Service Center in the 1979
Comprehensive Plan, a designation removed in 2002 and replaced with Rural Commercial (RC)
for portions of this property and Rural Industrial (RI) for property on the east side of US 97. The
removal of the RSC designation was based on the interpretation of the number of permanent
residences required for the revised traits set for a RSC in 1994 by the State’s administrative
rules for Unincorporated Communities. The question at hand is the status of the pink building
and whether it qualifies as permanent residence under OAR 660-022.
B. A declaratory ruling shall be available only in instances
involving a fact-specific controversy and to resolve and
determine the particular rights and obligations of particular
parties to the controversy. Declaratory proceedings shall not
be used as a substitute for seeking an amendment of general
applicability to a legislative enactment.
FINDINGS: The fact-specific controversy is what is meant by the term “permanent residential
dwellings” in OAR 660-022-0010(5) and “some residential dwellings” at OAR 660-022-0010(8)
and how those definitions apply to the vacant pink building at Deschutes Junction.
b. Section 22.40.020, Persons Who May Apply
A. Section 22.08.010(B) notwithstanding, the following persons
may initiate a declaratory ruling under this chapter:
1. The owner of a property requesting a declaratory
ruling relating to the use of the owner’s property.
2. In cases where the request is to interpret a previously
issued quasi-judicial plan amendment, zone change or
land use permit, the holder of the permit; or
3. In all cases arising under DCC 22.40.010, the Planning
Director.
No other person shall be entitled to initiate a declaratory
ruling.
DR-10-3
(Board Document 2011-041) 7
FINDINGS: At the August 26, 2010, public hearing before the Planning Commission (PC) on
TA-10-6 (proposed transportation and land use policies for Deschutes Junction), the PC had a
discussion about the 2002 decision to replace the RSC designation with RC and RI. The PC
directed staff to seek direction from the Board of County Commissioners (Board) on whether a
declaratory ruling on the residential status of the vacant pink building should be initiated by the
property owner or staff. The Board at a September 29, 2010 work session directed the Planning
Director and staff to initiate a declaratory ruling on the residential status of the vacant pink
building on the Fagen property.
B. A request for a declaratory ruling shall be initiated by filing an
application with the Planning Division and, except for
applications initiated by the Planning Director, shall be
accompanied by such fees as have been set by the Planning
Division. Each application for a declaratory ruling shall
include the precise question on which a ruling is sought. The
application shall set forth whatever facts are relevant and
necessary for making the determination and such other
information as may be required by the Planning Director.
FINDINGS: The Planning Director, through staff, filed an application for a declaratory ruling on
December 1, 2010. The question is the residential status of the two-story, vacant pink building
on the land zoned RC.
c. Section 22.40.030, Procedures
Except as set forth in DCC 22.40 or in applicable provisions of a
zoning ordinance, the procedures for making declaratory rulings
shall be the same as set forth in DCC Title 22 for land use actions.
Where the Planning Division is the applicant, the Planning Division
shall bear the same burden that applicants generally bear in pursing
a land use action.
FINDINGS: This administrative decision and its referenced materials and exhibits constitute the
Burden of Proof. The procedures set forth in this Title will be used in making the ruling.
d. Section 22.40.040, Effect of Declaratory Ruling
A. A declaratory ruling shall be conclusive on the subject of the
ruling and bind the parties thereto as to the determination
made.
B. DCC 22.28.040 notwithstanding, and except as specifically
allowed therein, parties to a declaratory ruling shall not be
entitled to reapply for a declaratory ruling on the same
question.
C. Except when a declaratory ruling is made by the Board of
County Commissioners, the ruling shall not constitute a
policy of Deschutes County.
FINDINGS: The intent of the declaratory ruling is to determine the meaning of the term
“permanent residential dwelling” as it applies to the vacant pink building. If the declaratory
DR-10-3
(Board Document 2011-041) 8
ruling determines the vacant pink house is not a permanent residential dwelling, then the
County’s 2002 application of OAR 660-022 to Deschutes Junction was correct and continues to
stand. If the declaratory ruling determines the vacant pink building does meet the definition of
the permanent residential dwelling, the County has the discretion, but not the obligation, to
revisit whether Deschutes Junction meets the RSC criteria of OAR 660-022.
e. Section 22.40.050, Interpretation
Interpretations made under DCC 22.40 shall not have the effect of
amending the interpreted language. Interpretation shall be made
only of language that is ambiguous either on its face or in its
application. Any interpretation of a provision of the comprehensive
plan or other land use ordinances shall consider applicable
provisions of the comprehensive plan and the purpose and intent of
the ordinance as applied to the particular section in question.
FINDINGS: The interpretation is for the language at OAR 660-022-0010(5) and underlined for
clarity: “ ’Permanent residential dwellings’ includes manufactured homes, but does not include
dwellings primarily intended for a caretaker of an industrial use, commercial use, recreational
vehicle park or campground.” OAR 660-022-0010(8) Rural Service Center is defined as an
“…unincorporated community which consists primarily of permanent residential dwellings but
also has at least two other land uses that provide commercial, industrial, or public use…” The
language subject to interpretation is again underlined for emphasis.
When applying OAR 660-022 to Deschutes Junction in 1997 and again in 2002, the County
determined there were not multiple permanent residential dwellings on the site. Thus,
Deschutes Junction did not comply with RSC criteria set by OAR 660-022. The findings for PA-
99-2 and TA-99-2 lack an explanation as to why the County decided there were not multiple
permanent residences. Staff can only assume it was due to the building’s mix of previous uses
and continuing vacancy. Note that according to the March 26, 2009 letter submitted by
Mr. Aceti, Mr. Carsey and his partner had quit living in the building in 1997. The pink building
was definitely vacant when the County applied OAR 660-022 to Deschutes Junction. Finally,
the County’s 2002 land use decision was not appealed and therefore stands. The Fagens were
mailed notice of the proposed removal of the RSC designation and the application of the
replacement RC designation.
Deschutes County Code (DCC) at 18.04.030 defines residential as "…any dwelling unit or group
of units built or used for human occupancy.” DCC 18.04.030 defines dwelling unit as “…one or
more rooms in a building designed for occupancy by one family and having not more than one
cooking area or kitchen.” DCC 18.04.030 defines dwelling, single family, as “a detached building
containing one dwelling unit and designed for occupancy by one family only, not including
temporary structures such as tents, teepees, travel trailers and other similar structures.”
The Code implies residential is a stand-alone use, not a mixed use where commercial activity is
taking place on the ground floor and the business owners are living above. Where there is a
mix of economic and residential activity in a dwelling, the County has a Code section for Home
Occupations. Even in Home Occupations, the economic activity within the dwelling is
secondary to the residential use. Clearly, the vacant pink building for much of its existence has
been a commercial building, not a residential dwelling.
The County Code has no definition in DCC 18.04.030 for the term ”permanent.” This is crucial,
as OAR 660-022 requires multiple permanent residential dwellings. Yet, as recounted in the
DR-10-3
(Board Document 2011-041) 9
procedural history above, the vacant pink building has seen a multitude of active and proposed
uses with the vast plurality of those uses being non-residential in nature.
The American Heritage College Dictionary defines “permanent” as “1) lasting or remaining
without essential change” and “2) not expected to change in status, condition, or place.”1
Webster’s II New College Dictionary defines permanent as “1) lasting or meant to last
indefinitely: enduring” and “2) not expected to change in status, condition, or place.”2 The
Oxford English Dictionary defines permanent as “1) lasting or intended to last or remain
unchained indefinitely” and “2) lasting or continuing without interruption.”3
The vacant pink building has not been the site of a continuously occupied residence. Based on
research cited above, apparently the last time the building had a residential component was
when Buffet Flat existed; even then, the building’s primary use was commercial. Not only has
the building been unoccupied since 1997, the site has been the subject of several land use
applications for commercial and/or industrial uses. The latter is an equally critical component in
the interpretation of “permanent residence.” The building has not been merely vacant, the
building has been the subject of several land use actions whose intent was to conduct non-
residential uses in the building. Indeed, in a letter dated September 9, 2010 from the property
owner, the Fagens themselves state, “The pink building has been used as both commercial and
residential (sic) through the years.”
Given the history of non-residential uses in the pink building, both historical and intended, as
well as well as the time the structure has spent being unoccupied by either residential or non-
residential uses, the vacant pink building is not a permanent residential dwelling as the term
permanent is defined by dictionaries or understood by the reasonable persons test.
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.74, Rural Commercial
a. Section 18.74.010, Purpose
The purpose of this chapter is to establish standards and
review procedures for development in the Rural Commercial
Zone. The Rural Commercial (RC) zone provisions implement
the comprehensive plan policies for rural commercial
development and associated uses outside of unincorporated
communities and urban growth boundaries.
FINDINGS: There is no development tied to this land use application nor are there any policy
changes proposed.
b. Section 18.74.020. Uses Permitted – Deschutes Junction and
Deschutes River Woods Store
A. Uses Permitted Outright. The following uses and their
accessory uses are permitted outright and do not require site
plan review:
1 The American Heritage College Dictionary, Third Edition; Houghton Mifflin Company, 1997; page 1,018.
2 Webster’s II New College Dictionary; Houghton Mifflin Company, 1999; page 819.
DR-10-3
(Board Document 2011-041) 10
3 Oxford Dictionaries On-Line,” Oxford Universities Press, 2010.
1. Single-family dwelling.
2. Manufactured home subject to DCC 18.116.070.
3. Two-family dwelling.
4. Type 1 Home Occupation, subject to DCC 18.116.280…
5. Agricultural uses.
6. Class I and II road or street project subject to approval
as part of a land partition or subdivision, or subject to
the standards and criteria established in DCC
18.116.230.
7. Class III road or street project.
8. A lawfully established use existing as of 11/05/02, the
date this chapter was adopted, not otherwise permitted
by this chapter.
FINDING: A residential use, both single-family and multi-family, is an outright permitted land use
in the RC zone. Thus, from a regulatory standpoint there is no procedural barrier for the vacant
pink building being used for residential purposes. The fact that no one has lived there for
approximately 1.5 decades again indicates this is not a permanent residential dwelling.
Mr. Carsey had written he and his partner had not lived in the structure since 1997. When staff
prepared the findings for Ordinances 2002-018 to change the designation at Deschutes Junction
from RSC to RC, there was no evidence provided or testimony given that the pink building was
being used as a residence.
C. Oregon Administrative Rule, Chapter 660, Division 22, Unincorporated Communities
a. Section 660-022-0010, Definitions
For purposes of this division, the definitions contained in ORS
197.015 and the statewide planning goals (OAR Chapter 660,
Division 15) apply. In addition, the following definitions apply:
(1) "Commercial Use" means the use of land primarily for the retail
sale of products or services, including offices. It does not include
factories, warehouses, freight terminals, or wholesale distribution
centers.
(2) "Community Sewer System" means a sewage disposal system
that has service connections to at least 15 permanent dwelling units,
including manufactured homes, within the unincorporated
community.
(3) "Community Water System" means a system that distributes
potable water through pipes to at least 15 permanent dwelling units,
including manufactured homes within the unincorporated
community.
(4) "Industrial Use" means the use of land primarily for the
manufacture, processing, storage, or wholesale distribution of
products, goods, or materials. It does not include commercial uses.
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(5) "Permanent residential dwellings" includes manufactured
homes, but does not include dwellings primarily intended for a
caretaker of an industrial use, commercial use, recreational vehicle
park or campground.
(6) "Resort Community" is an unincorporated community that was
established primarily for and continues to be used primarily for
recreation or resort purposes: and
(a) Includes residential and commercial uses; and
(b) Provides for both temporary and permanent residential
occupancy, including overnight lodging and accommodations.
(7) "Rural Community" is an unincorporated community which
consists primarily of permanent residential dwellings but also has at
least two other land uses that provide commercial, industrial, or
public uses (including but not limited to schools, churches, grange
halls, post offices) to the community, the surrounding rural area, or
to persons traveling through the area.
(8) "Rural Service Center" is an unincorporated community
consisting primarily of commercial or industrial uses providing
goods and services to the surrounding rural area or to persons
traveling through the area, but which also includes some permanent
residential dwellings.
(9) "Urban Unincorporated Community" is an unincorporated
community that has the following characteristics:
(a) Include at least 150 permanent residential dwellings units;
(b) Contains a mixture of land uses, including three or more
public, commercial or industrial land uses;
(c) Includes areas served by a community sewer system; and
(d) Includes areas served by a community water system.
(10) "Unincorporated Community" means a settlement with all of the
following characteristics:
(a) It is made up primarily of lands subject to an exception to
Statewide Planning Goal 3, Goal 4 or both;
(b) It was either identified in a county's acknowledged
comprehensive plan as a "rural community," "service
center," "rural center," "resort community," or similar term
before this division was adopted (October 28, 1994), or it is
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listed in the Department of Land Conservation and
Development's January 30, 1997 "Survey of Oregon's
Unincorporated Communities";
(c) It lies outside the urban growth boundary of any city;
(d) It is not incorporated as a city; and
(e) It met the definition of one of the four types of
unincorporated communities in sections (6) through (9) of this
rule, and included the uses described in those definitions,
prior to the adoption of this division (October 28, 1994).
FINDINGS: OAR 660-022 requires at 660-022-0010(8) some residential dwellings for a site to
be an Unincorporated Community (UC). At 660-022-0018(5), the OAR does not fully define
permanent residential dwellings, but again indicates more than one is needed for the UC
designation.
While OAR 660-022-0010 provides definitions of types of unincorporated communities and their
land use characteristics, it does not provide an elemental definition of permanent as used to
modify residential dwelling. The County internally in 1997 and again in a series of public
hearings in 2002 determined Deschutes Junction was not a Rural Service Center based on the
lack of multiple permanent residential dwellings.
The vacant building on the Fagen property was judged by the County to not be a permanent
residential dwelling due to the non-residential activities cited above and the building’s chronic
vacancy and/or disuse. Given that determination, it followed there was not more than one
permanent residential dwelling in the area previously designated the Deschutes Junction RSC.
With the changing State definition of a RSC, the County applied OAR 660-022 and found
Deschutes Junction was no longer an RSC. Instead, the County designated RC and RI on
various parcels to reconcile the pre-existing and in some instances continuing land uses.
IV. DECISION:
Based on the foregoing Findings of Facts and Conclusions of Law, the two-story vacant
pink building on the Fagen property is not a permanent residential dwelling unit.
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.
Dated this 6th day of January 2011. Mailed this 6th day of January 2011.
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