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HomeMy WebLinkAboutDeschutes Jct Residential StatusDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.onz AGENDA REQUEST & STAFF REPORT For Board Business Meeting of April 18, 2011 Please see directions for completing this document on the next page. DATE: April 11, 2011. FROM: Peter Russell Community Development Dept 383-6718 TITLE OF AGENDA ITEM: Continued Public Hearing on DR -10-3, a declaratory ruling on the permanent residential status of a structure on the northwest quadrant of the Deschutes Junction interchange. PUBLIC HEARING ON THIS DATE? YES. BACKGROUND AND POLICY IMPLICATIONS: The Board held a public hearing on March 28, 2011, on DR -10-3, an administrative decision on the permanent residential status of the structure at 21280 Tumalo Place. The Board continued the public hearing on this declaratory ruling until April 18. Staff has prepared a memo addressing public comments raised at the March 28 hearing. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Open the public hearing and hear testimony. Motion: To either affirm, amend or reverse the staff decision and provide direction to staff as to how to write the findings ATTENDANCE: Peter Russell, Senior Transportation Planner; Laurie Craghead, County Assistant Legal Counsel. DISTRIBUTION OF DOCUMENTS: No documents at this time. Community Development Department Planning Division Building Safety Division Environmental Soils Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ STAFF REPORT TO: Deschutes County Board of County Commissioners FROM: Peter Russell, Senior Transportation Planner WORK SESSION: N/A HEARING: April 18, 2011 (continued from March 28, 2011) SUBJECT: Response to issues raised in public testimony on DR -10-3 (permanent residential status of two-story structure at Deschutes Junction) Background The Board held a public hearing on March 28, 2011, on the declaratory ruling (DR -10-3) that the two-story structure at 21280 Tumalo Place was not a permanent residential dwelling unit.' The Planning Division had made an administrative decision on DR -10-3 that the Board called up for review. The public testimony centered on the following issues: past residential use of the structure; interpretation of Oregon Administrative Rule 660-022, Unincorporated Communities; and how the County Assessor has classified the property. The Board was also concerned about the ability for economic development to occur in the Deschutes Junction area. Past residential use of the structure vs. primary use of the structure Staff does not dispute there have been people who have lived in the structure. What staff does dispute is that the structure's primary use was for residential purposes. Under Deschutes County Code a non-residential use must be incidental and subordinate to the residential use, otherwise it is not a residence, but rather a commercial building. This distinction is most clearly spelled out in the County's code for Home Occupation permits. For example, the intent for a Home Occupation is that the business is indistinguishable from the residence and that the amount of square footage of the home occupation varies from a maximum of 25 to 35 percent of the home's square footage depending on the size of the property in question.2 The Assessor's records have valued the structure as including a 308 -square -foot garage on the ground floor, 1,078 square feet of living space on the ground floor, and 770 square feet of living The Board continued the hearing to April 18, 2010 See DCC at 18.116.280 Quality Services Performed ivith Pride space on the ground floor, for a total of 2,156 square feet. Yet, the former proprietor of Buffet Flat testified the lower floor was used for commercial purposes and the business owners lived upstairs. Clearly, the majority of the structure' square footage (1,386 square feet or 64 percent) was used for non-residential purposes. Staff used the historical records that were available to establish the use of the property and those begin in 1977. Staff notes the property owners have not submitted any materials into the record that indicate the structure was used as a residence — either solely or primarily - from 1934 to 1994. The most recent long-term use of the property was for a second-hand store; a non-residential use that lasted for approximately two decades. Previously, the County in 1994 issued "Unincorporated Rural Communities — Land Use Inventory" and in that document stated "Under the proposed Administrative Rule for Unincorporated Communities, OAR 660, Division 22, Deschutes Junction does not meet any of the definitions for unincorporated communities. The existing development in Deschutes Junction consists of industrial uses, which include United Pipe and Supply and Cascade Pumice and retail businesses including a gas/service station and cafe."3 (emphasis added) The staff report for PA -99-2 and TA -99-2 expressly stated "The 1979 Comprehensive Plan and zoning regulations designate Deschutes Junction, Deschutes River Woods Store, and Spring River as Rural Service Centers. Each of these areas no longer meet the current standards for Rural Service Center and will be rezoned "Rural Commercial..." (emphasis added) If the structure were being used as a residence in 1994, the County would have replaced the RSC zoning with the Multiple Use Agricultural (MUA-10) zoning, which is the zoning for the remainder of the parcel, or a similar rural residential use. Since that did not occur, it is logical to assume PA -99-2 and TA -99-2 instead created a zone that best matched the then -present or historic use of the property, which was commercial. The history of active and proposed commercial uses on the property and the long stints of vacancy all demonstrate the structure has not been used as a permanent residential dwelling. OAR 660-022 Mr. Allen's March 28, 2011, memo concerns three topics which are addressed below: 1. Timing of Declaratory Ruling Application; 2. Proper Application of the Unincorporated Community Rule; 3. Proper Definition of Vague Terms Timing of Declaratory Ruling Application The Board in 2002 had ruled the area did not meet the state's 1994 requirements for a Rural Service Center (RSC), replacing the land use designation with Rural Commercial (RC) in 2002. The Board thus has already decided Deschutes Junction was not an Unincorporated Community. As these land use decisions (PA-99-2/TA-99-2) and the implementing ordinance (2002-018) were not appealed, those decisions are final. The Oregon Court of Appeals in Friends of the Metolius v. Jefferson County, 230 Or. App. 150 (2009), upheld a Land Use Board of Appeals (LUBA) ruling on the need for timely appeal of a 3 Unincorporated Rural Communities — Land Use Inventory, October 25, 1994, page 10. 4 Exhibit I to Ordinance No. 2002-018. Page 2 2 local land use decision regarding the establishment and mapping of an unincorporated community. Essentially, if opponents do not file a timely appeal, they cannot raise the issue after the deadline has passed. The Board directed staff in 2010 to re-examine the determination of the permanent residential status of the vacant building at 21280 Tumalo Place. Staff in DR -10-3 recognized the findings in PA-99-2/TA-99-2 were not especially robust on the topic, but the conclusion remained sound: the building at 21280 Tumalo Place is not a permanent residential dwelling unit. If the Board upholds the administrative decision in DR -10-3 that does not prevent a private applicant from applying to the County to create a RSC at Deschutes Junction, albeit with different boundaries than those that have been used previously in the Comprehensive Plan. Rather than putting the cart before the horse as Mr. Allen's memo suggests, the declaratory ruling would provide certainty as to whether a future RSC application could rely on the structure at 21280 Tumalo Place to meet the OAR 660-022-0010(8) requirement for multiple permanent residential units. The County has previously determined it does not. Proper Application of the Unincorporated Community Rule As the Board's 2002 decision on PA-99-2/TA-99-2 and the implementing ordinance of 2002-018 were not appealed, the County legally made the proper application of OAR 660-022. However, for discussion's sake staff will address the issue. Staff and Mr. Allen agree on items #1-4 of his memo, which basically summarize or restate OAR 660-022-0010(10)(a through d) which list the characteristics of an Unincorporated Community. Staff believes Mr. Allen is mistaken in his interpretation of item #5, which is OAR 660-022-0010(10)(e), which states the site met the definition of an Unincorporated Community prior to October 28, 1994, which is the date of adoption of OAR 660-022. In other words, regarding the required characteristics of an Unincorporated Community staff and Mr. Allen agree on the application of OAR 660-022-0010(10) for sections (a through d); staff and Mr. Allen disagree on the application of (e). This is crucial as an Unincorporated Community must meet all of the requirements of OAR 660-022-0010(10), not just four out of five. Staff bases its disagreement regarding OAR 660-022-0010(10)(e) on the following reasons. First, the County had issued its "Unincorporated Rural Communities" inventory stating Deschutes Junction did not meet OAR 660-022 on Oct. 26, 1994. This was two days before the rule's deadline of October 28, 1994. (See attached document) Second, the definition of RSC is listed at OAR 660-022-0010(8). The full definition is "Rural Service Center' is an unincorporated community consisting primarily of commercial or industrial uses providing goods and services to the surrounding rural area, but which also includes some permanent residential dwellings." (emphasis added) As staff has found in 1994 and 1997 and the Board affirmed in 2002, the structure at 21280 Tumalo Place was not a permanent residential dwelling and thus Deschutes Junction did not meet the requirements of OAR 660- 022-0010(10)(e). Third, OAR 660-022-0010 defines permanent residential dwellings as including "...manufactured homes, but does not include dwellings primarily intended for a caretaker of an industrial use, commercial use, recreational vehicle park or campground." (emphasis added). The testimony of one of the proprietors of Buffet Flat has indicated they lived upstairs 3 of their commercial business. This would argue they were caretakers of a building primarily used for a commercial enterprise. Fourth, the history of land uses proposed for the site is all non-residential in nature. From the first land use application in 1977 to the most recent in 2005, not one has been for a residential use. Even the Dec. 12, 1977, letter from hearing's officer Eugene C. Venn to Eugene Carsey for Z-77-53 states "The present site is two abandoned buildings which are being proposed as a grocery store and some other retail outlet. Both buildings were previously non -conforming uses, and were used for a time as retail outlets but have since abandoned their use." (emphasis added) So even prior to 1977 there was a commercial, not residential, use of the structure. The only land use history staff can find in the County's records from 1977 to the present is for non-residential uses. Staff agrees with Mr. Allen that post -1994 land uses are not used to determine the permanent residential status of the structure, but those post -1994 land use applications often contain information about pre -1994 use of the property. Staff disagrees that all land uses from the building's 1934 construction to the Oct. 28, 1994, implementation of OAR 660-022 must be analyzed. Staff believes the intent of the OAR was to look at land use patterns following the establishment of the Oregon land use planning system in the early 1970s. OAR 660-022-0000(1) and (2) describe the purpose of OAR 660-022 as being to establish statewide policy for planning and zoning and to interpret Goals 11 and 14 outside of Urban Growth Boundaries (UGB's). The clear intent of OAR 660-022 was to address semi -urban uses that were occurring outside UGB's, so the historical lens needs only be turned back to the establishment of statewide planning goals and comprehensive plans and zoning, not the date of original construction. The County's Comprehensive Plan was adopted by the Board on Nov. 1, 1979, and acknowledged by DLCD on April 4, 1981. Therefore, the timespan to look at past uses of the building needs only to be from Nov. 1, 1979, forward to 1994, which staff has done. The primary use of the building during that time was for commercial activity. Fifth, the Oregon Shores case on page 433 says that Tillamook County "had at least two additional chances after 1984 to recognize the Port property on the South Prairie area as some kind of unincorporated community, but did not." That statement indicates that it is appropriate to look at the history of a use just prior to the 1994 OAR 660-022 deadline rather than from the initiation of the use. Proper definition of vague terms Essentially, the difference is whether the term "permanent" applies to construction materials or usage. Mr. Allen's memo makes the case the term "permanent" in OAR 660-022 was meant to refer to construction materials whereas staff interprets the term as meaning the duration of the residential usage. Staff refers to language in OAR 660-022 in general and then specifically the use of language that pertains to the term "permanent residential" to support the staff's position. In OAR 660-022-0010(1) "Commercial Use" is defined as "the use of land primarily for the retail sale of products and services, including offices." In OAR 660-022-0010(4) "Industrial Use" is defined as "the use of land primarily for the manufacture, processing, storage, or wholesale distribution of products, goods, or materials." This shows a pattern of definition based on the usage of the land. The pattern of definition based on usage, not construction materials, continues in OAR 660-022- 0010(5) where "permanent residential dwelling" includes "manufactured homes, but does not 4 include dwellings primarily intended for a caretaker of an industrial use, commercial use, recreational vehicle park, or campground." Again, the preponderance of the definition talks about how the land is used, not what materials were used to construct the dwelling. This pattern of defining a structure by its use is also found in Deschutes County Code for its definition of residential use. Oregon Shores Conservation Coalition v. Tillamook County 48 Or LUBA 423 (2005) Mr. Allen introduced this Land Use Board of Appeals case as it turned on the application of OAR 660-022 and definitions of an Unincorporated Community. The case hinges on insufficient findings when Tillamook County decided an industrial park in the former U.S. Navy blimp base was an unincorporated community, claiming the site was a Service Center. Tillamook County did not list the site in its 1984 Comprehensive Plan as an unincorporated community nor did it appear in the 1997 DLCD Survey. Tillamook County did not list the site as a term similar to rural community or rural service center in the Tillamook County Comprehensive Plan prior to the establishment of OAR 660-022. Yet, this case actually supports the County's determination of PA-99-2/TA-99-2 that the structure at 21280 Tumalo Place is not a permanent residential dwelling unit. This is because the County had supplied adequate findings Deschutes Junction was not a RSC. That 2002 decision was not appealed to LUBA. On page 3 LUBA writes in the Tillamook County case that the "proposed South Prairie community is not on the January 30, 1997 DLCD `Survey of Oregon Unincorporated Communities.' In addition, prior to October 28, 1994, the settlement must have met the definition of one of the four types of unincorporated communities described at OAR 660-022- 0010(6) through (9)." Later on page 3 LUBA writes of the Tillamook County case that "Although the intent of OAR 660-022-0010(10)(b) is not entirely clear to us, the rule appears to embody a policy choice that the universe of `unincorporated communities' is limited to settlements or communities of some kind that the local government has explicitly recognized as such in its comprehensive plan prior to October 28, 1994, or that are listed in the DLCD survey." By contrast, Deschutes County did list Deschutes Junction as a Rural Service Center in its Comprehensive Plan from 1979 to 1994. However, on October 26, 1994, Deschutes County issued its "Unincorporated Community Rural Communities — Land Use Inventory" which explicitly stated Deschutes Junction did not meet any of the definitions of OAR 660-022 for the four types of unincorporated community. The County needs to follow its most recent legal determination of a land use, so the 1994 County inventory trumps the previous 1979 Comprehensive Plan. Ultimately, the County amended the Comprehensive Plan in 2002 to have the land use designation comply with the 1994 County survey and OAR 660-022 and its associated 1997 DLCD Survey of Unincorporated Communities, upon which Deschutes Junction does not appear. The County has a long record of findings that the structure at 21280 Tumalo Place is not a permanent residential dwelling unit as part of the County's determination that Deschutes Junction was not a RSC under OAR 660-022. 5 County Assessor Mr. Aceti entered into the record Assessor's reports for 21280 Tumalo Place and another house at 63649 US 20. As the house off of US 20 is neither the subject of the fact -specific controversy of DR -10-3 nor was that area ever part of the County's past determination of a RSC, staff finds the information for the home at 63649 US 20 is irrelevant. The Assessor's office is reporting on electrical and plumbing permits issued by the Building Division for the structure at 21280 Tumalo Place. Mr. Aceti notes the electrical and plumbing permits were finalized as residential. However, the Building Division in its classification scheme uses two broad categories: residential or commercial. However, that does not necessarily mean the use of the building is residential. For example, the plumbing and wiring for a barn could meet the residential requirements, but that does not mean the barn could be used as a home. Finally, B2777 was for a welding shop and B2798 was for a second-hand stores. Both of these permits were finalized on February 8 and April 6, 1978, respectively. These are not residential uses of the structure. All septic permits for the site are classified as commercial. Conclusion Based on the requirements of OAR 660-022; the uses of the structure from 1977-94; the County's 1994 "Unincorporated Rural Communities Land Use Inventory;" the County's past unappealed decisions of PA -99-2 and TA -99-2 and implementing Ordinance 2002-018; and the reasoning in LUBA's decision in Oregon Shores Conservation Coalition vs. Tillamook County, the structure at 21280 Tumalo Place is not a permanent residential dwelling unit. Attachments: "Unincorporated Rural Communities Land Use Inventory,"Deschutes County Planning Division, October 26, 1994 "Friends of the Metolius v. Jefferson County" 230 Oregon Court of Appeals 150 (2009) 6 UNINCORPORATED RURAL CO 'HES LAND USE INVENTORY Deschutes County Planning Division October 26, 1994 TABLE OF CONTENT Introduction 1 Alfalfa 2-5 Brothers 6-9 Deschutes Junction 10-13 Deschutes River Woods 14-17 Hampton 18-21 La Pine 22-25 Millican 26-29 Spring River 30-33 Terrebonne 34-37 Tumalo 38-41 Whistle Stop 42-45 Wickiup Junction 46-49 Wild Hunt 50-53 Black Butte Ranch 54-55 Eagle Crest 56-57 Inn of the 7th Mountain 58-59 Sunriver 60-61 UNINCORPORATED RURAL COMMUNITIES - LAND USE INVENTORY DESCHUTES JUNCTION: Under the proposed Administrative Rule for Unincorporated Communities, OAR 660, Division 22, Deschutes Junction does not meet any of the definitions for unincorporated communities. The existing development in Deschutes Junction consists of industrial uses, which include United Pipe and Supply and Cascade Pumice, and retail businesses including a gas/service station and cafe. Based on the information contained in the following table (potential new lots, zoning, water and sewer availability), the potential for new development in the Rural Service Center can be construed. Deschutes Junction, as well as the surrounding area, is generally flat. Historically, the native vegetation in the area consisted primarily of grasses, scrub/shrub and mature juniper. Much of the surrounding area is presently used for agricultural purposes and the native vegetation has been removed. Deschutes Junction lies within the Central Oregon Irrigation District. Canals provide irrigation water for the surrounding agricultural uses during the summer months. Land surrounding Deschutes Junction is zoned Exclusive Farm Use (EFU) - Tumalo/Redmond/ Bend Subzone and Multiple Use Agricultural (10 acre minimum lot size). A large area of land zoned Rural Residential (10 acre minimum lot size) lies approximately 1/2 mile northwest of the Rural Service Center. The Comprehensive Plan designations for the surrounding properties are Agriculture and Rural Residential Exception Area. The surrounding development pattern in the EFU zone consists of large lot agricultural use with accessory single family residences. The development pattern in the nearby RR -10 zone consists of single family residential subdivisions with lots that range from approximately 1 to 2 1/2 acres in size. The majority of land use actions or development within the Deschutes Junction Rural Service Center occurred in the late 1970's to mid 1980's. The same is true for the surrounding area. U.S. Highway 97 provides the primary access to Deschutes Junction. Additional roads providing access in the surrounding area are Tumalo Road, Deschutes Market Road, and McGrath Road. U.S. Highway 97 is a four -lane paved highway with the others each being two -lanes and paved. Deschutes County has designated Highway 97 as a Primary Highway, Deschutes Market Road an Arterial and Tumalo and McGrath Roads Collectors. Private drives are used to access individual parcels. The Oregon Trunk Railroad runs along the eastern boundary of the Rural Service Center in the area that is zoned for industrial uses. Deschutes Junction is part of the Bend Fire Protection District. Unincorporated Rural Communities - Land Use Inventory October 25, 1994 Page 10 LAND USE INVENTORY - DECSHDTES JUNCTION Assessors Property Class Total Developed Vacant Industrial 3 2 1 Exempt 1 0 1 Total Tax Lots 4 2 2 Zoning Total Developed Vacant RSC 1 0 1 R -I 3 2 1 # Parcels with multiple base zones: Maximum # Potential new lots: * 3 # Properties with development constraints: ** 4 Sewer available: No Public water system: No Total area: 19 acres Road distance from nearest UGB: 3 miles from Bend UGB and 8 miles from Redmond UGB * Based on the requirements in Title 18 of the Deschutes County Code. ** Properties that have FP, LM and/or SMIA combining zones. Unincorporated Rural Communities - Land Use Inventory October 25, 1994 Page 11 DESCHUTES JUNCTION Rural Service Center Comprehensive Plan Map COM - Commercial IND - Industrial RES - Residential PUB - Public ,,7' Canal Irk/ Railroad Section Line /./ Tax Lot Boundary / Ni, • Rural Service Center Zoning Boundary Mapscale 1 : 7200 1 I I 0 Feet 300 800 Page 12 DESCHUTES JUNCTION Rural Service Center Zoning Map RSC Rural Service Center RI Rural Industrial RSR -M Rural Service Residential -M RSR -5 Rural Service Residential -5 OSC Open Space Conservation Canal Mapscale 1 : 7200 Railroad f I 0 Feet 300 600 Section Line Tax Lot Boundary Rural Service Center Zoning Boundary 1 7 Friends of the Metolius v. Jefferson County, 230 Or.App. 150 (2009) 213 P.3d 1259 213 P.3d 1259 Court of Appeals of Oregon. FRIENDS OF THE METOLIUS and Pete Schay, Petitioners, v. JEFFERSON COUNTY; Dutch Pacific Resources, LLC; Shane Lundgren; Gordon C. Jones; Jeffrey Jones; and Irwin B. IIolzman, Respondents. 2008181, 2008182, A141383.Argued and Submitted May 11, 2009.Decided Aug. 5, 2009. Synopsis Background: County residents appealed decision of Land Use Board of Appeals, determining that rcsidcnts could not raise issue of whether county properly established boundaries of an unincorporated community in its comprehensive land use map, on grounds that residents had conceded the issue in a prior appeal challenging the map. Holding: The Court of Appeals, Wollheim, J., held that residents had conceded the issue in prior appeal and could not raise it in subsequent appeal. Affirmed. Attorneys and Law Firms **1259 Bill Kloos, Eugene, argued the cause for petitioners. With him on the brief was Law Offices of Bill Kloos, PC. Corinne C. Sherton, Portland, argued the cause for respondent Irwin B. Holzman. With her on the brief was Johnson & Sherton PC. David C. Allen argued the cause and tiled the brief for respondent Jefferson County. Christopher P. Koback and Davis Wright Tremaine LLP, Portland, filed the brief for respondents Gordon C. Jones and Jeffrey Jones. No appearance for respondents Dutch Pacific Resources and Shane Lundgren. **1260 Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge. Opinion WOLLHEIM, J. *152 Petitioners seek review of a final opinion and order of the Land Use Board of Appeals (LUBA) upholding Jefferson County's adoption of a comprehensive plan map that designated the Camp Sherman unincorporated community. Petitioners argue that there is a lack of substantial evidence that the adopted map accurately represents what the county has designated as the Camp Sherman unincorporated community. Respondents contend, and LUBA held, that that issue was resolved in earlier stages of this litigation and is not subject to review in this proceeding. We review LUBA's final order to determine whether it was unlawful m substance or procedure, ORS 197.850(9)(a), and affirm. Jefferson County amended its comprehensive plan and zoning ordinance in 2007 and, in so doing, designated the Camp Sherman area as an unincorporated community. At that time, various parties challenged those amendments before LUBA. Petitioners were among those parties and alleged several violations of the administrative rules governing the designation of unincorporated communities pursuant to OAR chapter 660, division 22. Specifically, one of the subarguments was that the comprehensive plan map did not satisfy the requirements of OAR 660-022-0020(2).i LUBA denied three other subarguments, but sustaincd the subassignment of error that the comprehensive plan map was insufficient. Johnson v. Jefferson County, 56 Or. LUBA 25, 51-56, aff'd, 221 Or.App. 190, 189 P.3d 34 (2008). 'NE3stlno.lNext i 201.1 Thorson Resie"... . ! J C'ai Ti ongE"ai U.S. Government \1Vo ks. Friends of the Metolius v. Jefferson County, 230 Or.App. 150 (2009) 213 P.3d 1259 1 OAR 660-022-0020(2) provides: "Counties shall establish boundaries of unincorporated communities in order to distinguish lands within the community from exception areas, resource lands and other rural lands. The boundaries of unincorporated communities shall be shown on the county comprehensive plan map at a scale sufficient to determine accurately which properties are included." LUBA explained its ruling on the comprehensive plan map: "[t is not clear from [petitioners] subassignment of error whether it is arguing that there is no map that shows the boundaries of the Camp Sherman unincorporated community or whether there is such a map but the map is inadequate. The record includes the county's comprehensive plan x153 map as one of the oversize exhibits. Each unincorporated community is shown on the comprehensive plan map in purple. The Camp Sherman unincorporated community is shown on that map. "Although the petition for review could certainly be clearer, we understand [petitioners] to argue that the comprehensive plan map that shows the unincorporated communities is not at a `scale sufficient' to idents the included properties. We agree with [petitioners]. The comprehensive plan map is at a scale of 1:100,000. At that scale, one inch on the map represents over a mile and a half on the ground. Unless the comprehensive plan map delineation of the unincorporated communities operates in concert with other larger scale official maps that more precisely delineate Camp Sherman, it would be impossible to `determine accurately which properties are included' in the boundaries of the Camp Sherman unincorporated community. No party argues that there are larger scale maps that operate with the comprehensive plan map to allow the properties that are included in the county's unincorporated communities to be `accurately' determined, as required by OAR 660-022-0020(2)." Johnson, 56 Or. LUBA at 52-53 (emphasis added; omitted). Although other parties petitioned for judicial review of Johnson regarding issues unrelated to petitioners' arguments, petitioners did not participate in that petition. On remand, the county considered all the issues that LUBA ordered the county to consider. The county amended its zoning ordinance and amended the text and map of its comprehensive plan, which included the adoption of a map at a larger scale. Petitioners acknowledged that "[t]he county's obligation on remand was to provide a map of the unincorporated community of Camp **1261 Sherman that is of sufficient scale to determine accurately what properties are included" and that the county had provided a map of sufficient scale. However, petitioners again appealed to LUBA, now alleging that "the county has not tied that map to any ordinance designating the footprint of an unincorporated community." Respondents argued that the county had addressed the mapping deficiency described in the remand instructions. The county stated that the new larger scale map adopted on remand was *154 generated from its mapping database using the "exact boundary" shown on the smaller scale map. Respondents argued that petitioners' position on appeal was "no longer challenging the adequacy of the * * * map, but rather the source of the Camp Sherman [unincorporated community] designation." (Emphasis in original.) Respondents argued that petitioners had not raised the source designation issue at the earlier LUBA proceeding, had offered no explanation why the source designation issue could not have been raised at that earlier proceeding, and, therefore, were foreclosed from seeking review of the source designation issue on remand. LUBA agreed with respondents. LUBA found that, "in 2007 and again in 2008 the county adopted an amended comprehensive plan map that designated Camp Sherman as an unincorporated community." Friends of the Metolius v. Jefferson County, --- Or. LUBA ----, ---- (LUBA Nos. 2008-181 and 2008-182, Feb. 3, 2009) (slip op. at 9). Accordingly, LUBA affirmed: "lf petitioners believed Camp Sherman does not qualify as a resort unincorporated community * * * or that the county's designation of Camp Sherman included lands that should not have been included or omitted lands that should have been included they could have made those arguments in their appeal of the 2007 ordinance * * *. [P]etitioners' challenge to the larger scale map that the county adopted on remand offers no argument that we can understand that would provide a basis for reversal or remand." --- Or. LUBA at ---- (slip op. at 10-12). On review, petitioners concede that the "adequacy of the map remained the only issue that could be challenged," but argue that the county must show evidence that each of the parcels designated on the map is within the Camp Sherman unincorporated community pursuant to the requirements of OAR chapter 660, division 22. Respondents renew their argument ',Vast aw ex ©2011 Thomsor- Reuters, No Claim original U.S. Government Works. 2 Friends of the Metolius v. Jefferson County, 230 Or.App. 150 (2009) 213 P.3d 1259 that petitioners' failure to raise that issue in the earlier proceeding foreclosed the reviewability of petitioners' argument in this proceeding. For the following reasons, we agree with respondents that petitioners' argument is not within our scope of review at this juncture. *155 We begin by clarifying the issue before us on review. On remand after Johnson, the county found that the 2008 map was "at a larger scale" than the 2007 map and that "[t]hese maps operate in concert with other larger scale official maps that more precisely delineate [the unincorporated community]." Petitioners did not complain to LUBA that those findings were unsupported by substantial evidence. See ORS 197.835(9)(a)(C) (requiring LURA to reverse or remand a decision not supported by substantial evidence in the whole record). On appeal before LUBA in Friends of the Metolius, petitioners argued that the larger scale map approved by the county in 2008 was not tied to a prior ordinance designating Camp Sherman as an unincorporated community. Petitioners did not argue that the boundaries of the 2008 map were not the same as the boundaries on the 2007 map. Accordingly, to the extent that petitioners' argument on review to this court challenges the county's finding that thc 2008 map is a larger scale version of the 2007 map, we do not address it. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court * * *."); Citizens Against Irresponsible Growth v. .Metro, 179 Or.App. 12, 16, 17, 38 P.3d 956 (2002) (refusing to consider an argument on review that the petitioners had failed to argue before LUBA). We understand petitioners' argument on appeal before LUBA in Friends of the Metolius and on review to this court to challenge the county's compliance with the first sentence of OAR 660-022-0020(2). That first **1262 sentence provides that "[c]ounties shall establish boundarics of unincorporated communities in order to distinguish lands within thc community from exception areas, resource lands and other rural lands." The second sentence of OAR 660-022-0020(2) provides that "[t]he boundaries of unincorporated communities shall be shown on the county comprehensive plan map at a scale sufficient to determine accurately which properties are included." Petitioners conceded before LUBA in Friends of the Aletolius that the county had fulfilled its obligations to provide such a sufficiently scaled map. Accordingly, we address only whether any alleged error in applying the first *156 sentence of OAR 660-022-0020(2) is within our scope of review. We conclude that Johnson established that the county had complied with the requirements of the first sentence of OAR 660-022-0020(2). In that decision, LUBA specifically rejected any argument that there was "no map that shows the boundaries of the Camp Sherman unincorporated community." Johnson, 56 Or. LUBA at 52. Instead, LUBA concluded that "[t]he record includes the county's comprehensive plan map" and that "[t]he Camp Sherman unincorporated community is shown on that map." Id. Accordingly, petitioners' current argument that the county did not properly establish boundaries of the unincorporated community as required under the first sentence of OAR 660-022-0020(2) was determined adversely to petitioners in Johnson. Petitioners had an opportunity to request review of that determination by this court at that time. Instead, petitioners decided not to petition for review, and LUBA's determination of that issue is final. The Supreme Court has held that issues that LUBA decided in earlier proceedings, and upon which judicial review was not sought, are not subject to judicial review of a subsequent LUBA order. Beck v. City of Tillamook, 313 Or. 148, 153, 831 P.2d 678 (1992). Thus, when LUBA remands a case for further proceedings, the parties are limited to "new, unresolved issues" relating to those remand instructions and cannot raise any "issues that LUBA affirmed or reversed on their merits." Id. at 153, 831 P.2d 678. Beck controls the outcome here. Consequently, where the issue pertaining to the first sentence of OAR 660-022-0020(2) was resolved in Johnson and, where petitioners concede that the county fulfilled its other obligations under that rule, we conclude that there is no remaining issue that properly falls within our scope of review. Affirmed. Parallel Citations 213 P.3d 1259 End of Document .": 2011 Thomson Rear r. No claim Ick of ioinal ll. S. C overnntent Works. ,'esiis.Next © 2011 Thomson Reuters. Nc c eim c orginal l).f3. Covernme ^. 3