HomeMy WebLinkAboutDowell Decision DocumentsDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of January 25, 2010
DATE: January 5, 2010
FROM: Will Groves
Community Development Department 388-6518
TITLE OF AGENDA ITEM:
Board deliberation and decision on appeals (A-09-4, A-09-5) of a Hearings Officer decision reversing
the Planning Division's decision to issue a LUCS and building permit to remodel the Dowells' existing
dwelling on the subject property (A-07-9).
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
On August 17, 2009, the Hearings Officer issued a decision on remand reversing the Planning
Division's decision to issue a LUCS and building permit to remodel the Dowells' existing dwelling on
the subject property. The Hearings Officer found that the Dowells' dwelling was subject to a 400-fi►ot
maximum setback from Sisemore Road identified on the original partition plat and on the Dowells'
1992 Landscape Management site plan. There is no dispute the dwelling was constructed outside th it
setback. Therefore, the Hearings Officer found that the Dowells' dwelling was not "lawfully
established" for purposes of obtaining approval for an alteration of the dwelling under Section
18.40.020(M). Accordingly, the Hearings Officer found that the county erred in issuing a LUCS and
building permit for an interior remodel of the Dowells' dwelling.
In Order 2009-061 the Board agreed to hear appeals (A-09-4, A-09-5) of a Hearings Officer decision
reversing the Planning Division's decision to issue a LUCS and building permit to remodel the
Dowells' existing dwelling on the subject property (A-07-9). In that order, the Board specified that the
appeals would be heard limited de novo and that certain written evidence could be submitted by
specified dates. These dates have passed and Staff has assembled the submitted written materials.
A number of key issues have been raised in these appeals.
• •Is the County bound by the Kuhn v. Dowell circuit court case?
• •Is the Dowell dwelling lawfully established by issuance, inspection, and finalization of a County
building permit, even though the dwelling is not in the location approved in the building permit and
land use decision?
• •Is the Dowell dwelling unlawfully established because of the lack of a homeowner's agreement,
required in the original conditional use approval for a dwelling on the property?
• •Is the Dowell dwelling unlawfully established because it is not placed in accordance with the
Landscape Management site plan approval for the dwelling (LM -92-9)?
For each of these issues the Board may decide to uphold the Hearings Officer's decision, reverse tl tat
decision, or amend that decision.
FISCAL IMPLICATIONS:
Whichever way the Board decides in this case, the decision is likely to be appealed. Thus, the County
may incur costs to defend its decision on appeal.
RECOMMENDATION & ACTION REQUESTED:
Staff attached a decision matrix outlining the key issues and the positions of the Hearings Officer,
Applicant, Opponent, and Staff on these issues. In this matrix, Staff has also suggestion possible
options to resolve these issues.
ATTENDANCE: Will Groves
DISTRIBUTION OF DOCUMENTS:
Will Groves
January 5, 2010
Community Development Department
Planning Division Building safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
To: Deschutes Board of County Commissioners
From: Will Groves, Senior Planner
Subject: Board deliberation and decision on appeals (A-09-4, A-09-5) of a
Hearings Officer decision reversing the Planning Division's decision to
issue a LUCS and building permit to remodel the Dowells' existing
dwelling on the subject property (A-07-9).
BACKGROUND
On August 17, 2009, the Hearings Officer issued a decision on remand reversing the
Planning Division's decision to issue a LUCS and building permit to remodel the Dowells'
existing dwelling on the subject property. The Hearings Officer found that the Dowells'
dwelling was subject to a 400 -foot maximum setback from Sisemore Road identified on
the original partition plat and on the Dowells' 1992 Landscape Management site plan.
There is no dispute the dwelling was constructed outside that setback. Therefore, the
Hearings Officer found that the Dowells' dwelling was not "lawfully established" for
purposes of obtaining approval for an alteration of the dwelling under Section
18.40.020(M). Accordingly, the Hearings Officer found that the county erred in issuing a
LUCS and building permit for an interior remodel of the Dowells' dwelling.
In Order 2009-061 the Board agreed to hear appeals (A-09-4, A-09-5) of a Hearings
Officer decision reversing the Planning Division's decision to issue a LUCS and building
permit to remodel the DowelIs' existing dwelling on the subject property (A-07-9). In that
order the Board specified that the appeals would be heard limited de novo and that
certain written evidence could be submitted by specified dates. These dates have
passed and Staff has assembled the submitted written materials.
[}unlitu Servieec Performed with Pride
A number of key issues have been raised in these appeals.
• Is the County bound by the Kuhn v. Dowell circuit court case?
• Is the Dowell dwelling lawfully established by issuance, inspection, and
finalization of a County building permit, even though the dwelling is not in the
location approved in the building permit and land use decision?
• Is the Dowell dwelling unlawfully established because of the lack of a
homeowner's agreement, required in the original conditional use approval for a
dwelling on the property?
• Is the Dowell dwelling unlawfully established because it is not placed in
accordance with the Landscape Management site plan approval for the dwelling
(LM -92-9)?
For each of these issues the Board may decide to uphold the Hearings Officer's
decision, reverse that decision, or amend that decision.
STAFF DISCUSSION
Staff has attached a decision matrix outlining the key issues and the positions of the
Hearings Officer, Applicant, Opponent, and Staff on these issues. In this matrix, Staff
has also suggestion possible options to resolve these issues. Staff has also attached
final arguments from the Applicant and Opponent as well as a memo from Staff
providing a deeper discussion of these issues.
ORS 215.435(1) provides that the county has 90 days from the date of LUBA's final
order on remand to issue a final local decision on the land use matter subject to the
remand. Because the Dowells agreed to extend the written record from May 21 through
June 18, 2009, under ORS 215.435(2)(b) the 90 -day period was extended for a period of
29 days and expired on July 23, 2009. The Dowells have since agreed to extend the
decision period to January 31, 2009.
DOCUMENTATION
Staff has previously provided complete record materials to the Board. Staff has attached
key documents, including final arguments from the Applicant and Opponent as well as a
memo and decision matrix from Staff to this agenda request.
SCHEDULE
This item is scheduled for a work session on January 20, 2010 and a Deliberation and
Decision on January 25, 2010. Please feel free to contact me with any questions of
concerns.
DOWELL/KUHN ISSUE MATRIX
Staff Discussion
The County is not bound by the Circuit Court case
because it was not a party. No issues are precluded.
Concurs with Hearings Officer that building permit does
not, by itself, create a lawfully established dwelling. As to
whether or not it is lawful, see other issues below.
Opponent's Argument
Recording of the plat in 2004
makes this case different and
no issues are precluded. The
Circuit court only found that the
400' building line was not
enforceable because the plat
was not recorded at that time
and the original partition did not
include a condition of approval
requiring the 400' building line.
Unlawful. Concurs with
Hearings Officer.
Applicant's
Argument
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The Hearings Officer did not
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However, the County is not
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Is the Dowell dwelling
lawfully established by
issuance, inspection, and
finalization of a County
building permit, even though
the dwelling is not in the
location approved in the
building permit and land use
decision?
Staff Discussion
The Circuit Court case is not binding on the County
because the County was not a party to the case. The staff
agrees with the Hearings Officer that the agreement was a
condition to be completed prior to sale. Both parties
bought the property without any agreement in place. The
deed restrictions, however, are very limited and do not
offer the open space parcel much protection.
Option 1: Agree with Hearings Officer that a
homeowner's agreement is not necessary to make a
finding that dwelling was lawfully established.
Option 2: Disagree with Hearings Officer and find that the
agreement is still required and that sale did not end the
requirement for the agreement. Thus, without the
agreement, the dwelling was not lawfully established.
Opponent's Argument
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PAMELA HARDY
Attorney at Law
1629 NW Fresno Ave.
Bend, OR 97701
(541) 550-7968
pam@pamhardy.com
November 6, 2009
Will Groves
Deschutes County
Community Development Department
117 NW Lafayette Ave
Bend, OR 97701
HAND DELIVERED
Re: Kuhn v. Dowell, Appeal Nos. A 09-4 and A09-5
Dear Will,
Enclosed is the Kuhns final argument to the Board of Commissioners regarding the above
referenced appeal. Please enter a copy of this into the record, and make sure that a copy of it is
presented to the Board before their deliberations.
Also enclosed is a letter from Mr. Kuhn directly to the County staff.
Please feel free to call if there are any questions.
CC: Bob Lovlien (by email)
Bill Kuhn (by email)
Best Regard
•
P. Hardy
couS
SCANNED
NOV 10.2009
RECEIVED
BY:
NOV 0 6 2009
PQM
BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
DESCHUTES COUNTY A-07-9
File No.:
APPELLANTS:
KUHN APPEAL BRIEF
William & Leigh Kuhn
P.O. Box 5996
Bend, OR 97708
APPELLANT'S Pamela Hardy
ATTORNEY: 1629 NW Fresno Ave
Bend, OR 97701
(541) 550-7968
SUBJECT PROPERTY: 65595 Sisemore Rd., Bend
Tax Lot 100 at Township 16, Range 11, Section 19
Parcel 1 of the partition MP -79-232
PROPERY OWNERS &
APPLICANT:
PROPERY OWNERS'
ATTORNEY:
NATURE OF THE
APPEAL:
Jeff & Pat Dowell
321 High School Road. # D-136
Bainbridge Island, WA 98110
Robert Lovlien & Helen Eastwood
Bryant, Lovlien & Jarvis
P.O. Box 880
Bend, OR 97709
This is a cross appeal by the party that largely prevailed in the
Hearings Officer's decision below. The Kuhns would not have
appealed had the applicant not appealed. The Kuhns are
satisfied with most aspects of the decision except one. The
Hearings Officer should have found that the lack of a
homeowners' agreement was an alternative basis on which the
County should conclude that the Dowells structure was not
lawfully established.
Page 2 of 17
August 31, 2009
TABLE OF CONTENTS
Introduction 3
A. The Location of the Kuhn Residence is Irrelevant to this Matter. 5
B. The Hearings Officer was correct in determining that the Dowell Structure was not
"Lawfully Established" because it was Built Beyond the 400' Maximum Build Line7
1. The Dowell's structure was not lawfully established because it was not built in
conformance with its building permit. 8
a. The Hearings Officer correctly concluded that "lawfully established" means in
actual compliance with the law, and not simply approved by the County. 8
b. The 400' Line is enforceable despite the fact that it was not a condition of
approval 8
2. The Dowell's structure was not lawfully established because it is not in
conformance with more broadly applicable state law that is independent of
County approvals. 9
C. The Hearings Officer Erred in concluding that the Lack of a Homeowners'
Agreement did not make the Building Unlawfully Established. 10
1. Deschutes County requires that no building permit shall be issued if the
parcel of land upon which the building is to be erected would be in violation
of DCC Title 18. 10
2. The Deed Restrictions are not an adequate substitute. 11
3. The Kuhns acknowledgement that they understood the County to believe that
the deed restrictions were an adequate substitute for a homeowners'
agreement did not foreclose the Kuhn's ability to challenge that legal
conclusion. 13
D. Direct Responses to the Dowells' Stated Reasons for Appeal 13
1. The Hearings Officer did not overturn the Circuit Court decision. The County
is bound to adhere to the 400' maximum build line despite the 2003 Circuit
Court Decision 13
2. The Dowell's site plan is not inconsistent on its face. 14
3. The County is not being asked to revoke a previously issued approval 16
4. As a policy matter it is appropriate for the County to follow the law wherever
it leads 16
Conclusion 16
Page 3 of 17
August 31, 2009
INTRODUCTION
In November of 1979 Mr. John Barton, predecessor in interest to both the Kuhns and the
Dowells, owned a 43 acre parcel in the Tumalo Winter Deer Range. In order to protect the open
space the minimum lot size was 40 acres. Nonetheless Mr. John Barton applied for a partition of
his property into two 20+ acre parcels. Not surprisingly, the application was denied. However,
he persisted in his efforts to get two buildable lots out of his 43 acre parcel. Finally the Oregon
Department of Fish & Wildlife ("ODFW") agreed that two buildable parcels could be created
while still meeting the needs of the Tumalo Winter Deer Range if the building envelope for both
houses was confined to being within 400' of the road, and a third jointly owned and non -
buildable parcel was created that would encompass the majority of the property. See Record at
582-83 (Handwritten letter from Mr. John Barton explaining the purpose of the cluster and the
400' setback) attached here. Mr. Barton submitted a plan which included a plat of the three
parcels depicting the 400' maximum setback line.
In 1987 Bill and Leigh Kuhn learned that one of the two buildable lots was for sale. Due
diligence revealed that side setbacks may be as much as 100' and both lots required that
buildings be constructed within 400' of the road in order to ensure the integrity of the open
space. Being wildlife enthusiasts, they were even more interested. However, being
pragmatists, they made their offer conditional on first receiving a lot line adjustment from the
County which would guarantee the building envelope that they wanted. See Record at 605-08
(Kuhn application for a lot line adjustment explaining that the purpose is to increase the
building envelope so that the house may be placed at the top of the hill for better solar
exposure.) attached here. They proposed a lot that was entirely within 400' of the road in order
to maintain the original purpose of the restrictions on the newly shaped lot. The County, and
their neighbors and co-owners of the 3rd parcel agreed.
In 1989 the Dowells purchased the other buildable lot, but asked for no lot line adjustment or
any relief from the 400' maximum build line. When they applied for a building permit the
County notified them of the 400' line. The Dowells submitted plans specifically stating that the
structure would be within 400' of the road. See Record at 527-35 (Dowell Landscape
Management Application).1 Nonetheless, they actually built the entire structure on the wrong
1 The Dowells attorney has suggested that there is only one page in the record that supports the finding
that the Dowells were aware of the 400' maximum build line before they built. This is in error. The site
plan referenced at Record 533 (and attached here) is clearly the most significant evidence that the
Dowells were aware of the 400' line, however it is not the only evidence. Similar evidence may be
found at the following locations:
Page 4 of 17
August 31, 2009
side of that line. Apparently at the final sign off the County failed to make appropriate
measurements, and approved the building.
Now the Dowells would like to modify that building. Deschutes County Code 18.40.020
provides that no building permits for alterations may be issued unless the dwelling was
"lawfully established."
The Hearings Officer found. that the Dowell's structure was not lawfully established because it
was constructed beyond the 400' maximum build line required by the partition plat that created
the Dowell's lot. The essential legal principle was that "lawfully established" means more than
simply approved by the County. It means actually in accord with law. The Kuhns also contend
that it was also not lawfully constructed because it was constructed without the existence of a
homeowner's agreement which was a condition of approval in the original land use approval,
however, the Hearings Officer did not agree with that point.
Both the Kuhns and the Dowells appealed.
- Record at 532. Record at pages 527 — 35 contain the entirety of Mr. Dowell's original Landscape
Management Plan Application. On the page immediately prior to the site plan at 533 is a hand drawn
map labeled "Acreage Overview". That map shows the Dowell property in the larger context of the
entire cluster development. It also shows the "400' maximum building line". It is unclear whether Mr.
Dowell himself or an agent drew this map, but there is no evidence in the record that any agents were
submitting plans for Mr. Dowell at this time.
- Record at 561. Letter from Jeff Dowell to Catherine Morrow, discussing how much time the Dowells
spent out on the property actually making measurements in order to decide where to locate the house in
relationship to the 400' maximum build line. The letter also asks whether the septic field must be within
400' of the road.
- Record at 565. Letter from Paul Blickstad to Jeff Dowell notifying him of the 400' line before the
Landscape Management Plan Application was turned in.
- Record at 174. Findings and Decision on Dowell's Landscape Management Pian Application
discussing 400' maximum build line.
Finally it is rather incredible to believe that the Dowells purchased this property without ever looking at
the original plat map that delineated the boundaries._ This should have been a part of any basic due
diligence. That plat map — the one that the Supreme Court says should be read with the deed — is the
one that contains the 400' maximum build line. Significantly, the Dowells have never asserted that they
did not see this plat map when they purchased their property.
Page 5 of 17
August 31, 2009
This Board agreed to hear the appeal, and opened the record for submissions of documents and
oral testimony from the 2003 Kuhn v. Dowell trial, and for submission of evidence regarding the
location of the Kuhn's house.
Preliminarily this brief will examine why the location of the Kuhn residence is inapplicable in
this matter. Then it will summarize why the Hearings Officer was correct in her conclusion that
the Dowell's structure was not lawfully established. Finally it will address why the Hearings
Officer should have also concluded that a Joint Homeowners' Agreement is a necessary
precondition to the issuance of any further permits. Finally it directly addresses the Dowell's
bases for appeal.
A. THE LOCATION OF THE KUHN RESIDENCE IS IRRELEVANT TO THIS MATTER.
Preliminarily, it is procedural error to include arguments about the location of the Kuhn's house
in this matter. The question at issue here is not whether the Kuhn house was lawfully
established, but whether the Dowell structure was lawfully established. If the Kuhn dwelling
was unlawfully established, that should be dealt with in another matter.
Further, the Kuhn property has a different legal history that makes comparisons inapplicable.
Before the Kuhns bought their property they applied for and obtained a lot line adjustment
that had the effect of changing the location of the 400' setback line. The original 400' maximum
build line on the Kuhn property was drawn in relationship to the original shape of the lot. The
new lot did not include a maximum build line because the new lot shape maintained or even
improved upon the original purpose of the cluster development by placing the Kuhn's entire lot
within 400' of the road. Most significantly, both the County and Mark Burchett, who owned the
Dowell lot at the time, understood the purpose and effect of the lot line adjustment and agreed
to and signed off on the change. They both knew that the purpose of the lot line adjustment
was to expand the building envelope so the that house could be placed higher up on the hill for
better solar access, and to conform to the required 100' side yard setbacks. Mr. Burchett's
signature on the lot line adjustment application released the Kuhns from any rights he may
have had in the location of the Kuhn's house in relation to the original 400 line. See Record at
606 (Kuhn Lot Line Adjustment application, showing purpose of adjustment and Mr. Burchett's
signature) attached here.
In contrast, the Dowells never applied for any change to that line. Further, they acknowledged
that it existed and was enforceable, then built the structure on the wrong side of it anyway.
Essentially the Kuhns made every good faith effort to change the lot configuration, and legally
Page 6 of 17
August 31, 2009
place their home. The Dowells made no such effort, secured no approvals of a change to the
400' line and placed their structure in violation of it with full knowledge that such a location
was probably illegal. This different legal history makes comparisons of the location of the Kuhn
dwelling legally inappropriate.
It is likely that the Dowells will argue that if the County could legally adjust the 400' line in the
Kuhn's lot line adjustment, then it should also be able to do so on the Dowell property now.
There are two reasons why that shouldn't happen in this proceeding.
First, the Dowells have not asked for a lot line adjustment, or any approval which would
change the original plat. They have only asked for a building permit for an alteration to an
existing structure within the scope of the original plat and conditional use permits. That is the
only decision on the table in this matter.
Second, any lot line adjustment will require a new land use decision subject to additional
criteria that have not yet been addressed, and the agreement of any neighboring property
owners that will be affected.
Further, the County cannot make such an adjustment without the approval of the Kuhns
because the Kuhns have easement rights in the location of the 400' line. According to the
Oregon Court of Appeals, "the deed and the plat are to be read together ... and whatever
appears upon the plat is to be considered a part of the deed." Bloomfield, v. Weakland, 224
Or.App. 433, 446, 199 P.3d 318 (2008) citing Menstell et al. v. Johnson et al., 125 Or. 150, 178, 183-
84, 262 P. 853, reh'g den.,125 Or. 150, 266 P. 891 (1928). In Bloomfield the question was whether a
delineation on a plat map that said "Private Walk Way" but had no other accompanying text or
deed references, was an express easement in favor of neighboring owners. The Court of
Appeals looked to long established Supreme Court case law and determined that
when the owner of land lays out a town on a plan or map, and sells lots with
reference to that plan or map, "the purchasers of lots in said town acquire as
appurtenant thereto every easement, privilege and advantage which the plan or
map represents as part of the town." A plat need not expressly grant an easement
or dedicate a way for public use. It is sufficient if the plat, interpreted as a whole,
reflects an intention to benefit the subdivision owners.
Id, citing Carter v. City of Portland, 4 Or. 339, 346 (1873). Ultimately the Court of Appeals
determined that there was an express easement in favor of the other subdivision owners along
the "Private Walk Way".
Page 7 of 17
August 31, 2009
Here, the 400 foot maximum build line was clearly a part of the plan or map referred to when
the Kuhns and the Dowells lots were created and sold. Hence, the Kuhns took their property
with "every ... privilege and advantage which the plan or map represents." In this case one of
those advantages was the open space that would be created on the adjacent property because of
the 400' maximum build line. The maximum build line was effectively a deed restriction, or the
functional equivalent of a conservation easement on the adjacent property that guaranteed open
space. The Kuhns very purpose in moving to this location was precisely the open space and
wildlife habitat. As a result, the County cannot now unilaterally declare the 400' line irrelevant
in this proceeding.
In summary, the location of the Kuhn's house should be considered irrelevant to the matter at
hand because of the substantially different legal history involved. The Kuhns obtained a lot line
adjustment with the approval of the County and.their neighbors who gave up any rights in the
original 400' maximum build line on the Kuhn property. The Dowells, by contrast, have
obtained no such approval, and simply ask that they not be bound by the existing plat. Further,
the County cannot now change the 400' line as drawn because that would require a new land
use decision, and the approval of the Kuhns, an approval that has not been granted.
Hence, the question of whether the Dowells' structure was lawfully established is related only
to the location of the Dowell's structure, and the original plat map and conditional use permit
which allowed it.
B. THE HEARINGS OFFICER WAS CORRECT IN DETERMINING THAT THE DOWELL
STRUCTURE WAS NOT "LAWFULLY ESTABLISHED" BECAUSE IT WAS BUILT BEYOND THE
400' MAXIMUM BUILD LINE.
There are two primary reasons why the Dowell's structure was not "lawfully established".
First, it was not constructed in accord with its building permit. Second, it was not constructed
in accord with the plat map which has legal effect for reasons above and beyond any County
approval process. Each reason will be addressed below.
Page 8 of 17
August 31, 2009
1. The Dowell's structure was not lawfully established because it was not built in
conformance with its building permit.
a. The Hearings Officer correctly concluded that "lawfully established" means in
actual compliance with the law, and not simply approved by the County.
The Hearings Officer determined that in order for a structure to be "lawfully established" the
County must determine that "the existing dwelling received all required permits and approvals
and is in compliance with them, and whether those permits and approvals were themselves in
compliance with Title 18." HO decision at 22 (emphasis in the original). Here, the County
properly issued the building permit because the proposed location of the dwelling was in
compliance with the 400' maximum build line. However, the applicant did not build the
structure where his site plan said he would. Despite a notation on the site plan itself stating that
"This drawing is NOT to scale. The house site will NOT be more than 400 ft from the road."
(underlining and capitalization in the original), Record at 533, the applicant placed the building
more than 400' from the road. Hence, the building was not lawfully established because it was
not built in compliance with its building permit. The fact that the County did not catch this
error in its final sign off did not make the illegally placed structure "lawfully established."
The Hearings Officer properly concluded "lawfully established" means more than simply not
caught by the County. "Lawfully established" means actually in compliance with the law. Just
as it is not legal to run a red light whether or not you are caught by a traffic officer, it is not legal
to place a building outside the maximum build line whether or not you are caught by the
building inspector. The Hearings Officer properly concluded that where a County approval
was given in error, that error alone does not create a lawfully established structure.
Such a conclusion does not mean that the County must go back through every permit issued
every time an applicant applies for a building permit to alter a structure. The County can make
a reasonable presumption that past building permits were issued lawfully. However, where
there is evidence of a past mistake the County cannot rely on such a presumption. Where there
is a past mistake the County must make findings about whether the building was lawfully
established. If it was not, the County must refuse to issue the permit.
b. The 400' Line is enforceable despite the fact that it was not a condition of approval.
In a variety of places the argument is made that the 400' line is legally irrelevant because it was
not made a condition of approval. As the Hearings Officer correctly pointed out, the decision
need not reiterate every detail of the proposed land use in its conditions of approval in order to
make the proposed plan enforceable. The Hearings Officer quoted a recent LUBA decision,
Page 9 of 17
August 31, 2009
Central Oregon LandWatch v. Deschutes County, 53 Or LUBA 290 (2007), as support for her legal
opinion:
"As we understand Wilson Park, 27 Or LUBA 106, Perry, 26 Or LUBA 73, aff'd 125
Or App 588, Friends of the Metolius, 25 Or LUBA 411, 421, aff'd 123 Or App 256,
on recon 125 Or App 122, the salient point in those cases was that the applicant
submitted specific site plans or similar documents depicting characteristics of
the proposed development, and the local government approved those plans or
documents. In that circumstance there is no need for an explicit condition of
approval requiring compliance with such site plans or documents."
The Hearings Officer was correct in concluding that the 400' line did not need to be in the
conditions of approval to be legally relevant. Her legal opinion was clearly supported by recent
case law.
2. The Dowell's structure was not lawfully established because it is not in conformance with
more broadly applicable state law that is independent of County approvals.
The term "lawfully established" is broader than "approved by the County." The location of a
building may be lawful or unlawful for reasons beyond whether it was approved by the
County. Here the Dowell structure was not lawfully established because it was not built in
compliance with the 400' setback on the plat map.
The Kuhns, when they purchased their property, had a right to rely on the setbacks in the plat
map to protect the wildlife values on the property. "The deed and the plat are to be read
together ... and whatever appears upon the plat is to be considered a part of the deed."
Bloomfield, v. Weakland, 224 Or.App. 433, 446, 199 P.3d 318 (2008) citing Menstell et al. v. Johnson et
al., 125 Or. 150, 178, 183-84, 262 P. 853, reh'g den.,125 Or. 150, 266 P. 891 (1928). In Bloomfield the
question was whether a delineation on a plat map that said "Private Walk Way" but had no
other accompanying text or deed references, was an express easement in favor of neighboring
owners. The Court of Appeals looked to long established Supreme Court case law and
determined that
when the owner of land lays out a town on a plan or map, and sells lots with
reference to that plan or map, "the purchasers of lots in said town acquire as
appurtenant thereto every easement, privilege and advantage which the plan or
map represents as part of the town." A plat need not expressly grant an easement
or dedicate a way for public use. It is sufficient if the plat, interpreted as a whole,
reflects an intention to benefit the subdivision owners.
Page 10 of 17
August 31, 2009
Id, citing Carter v. City of Portland, 4 Or. 339, 346 (1873). Ultimately the Court of Appeals
determined that there was an express easement in favor of the other subdivision owners along
the "Private Walk Way".
Here, the 400 foot maximum build line was clearly a part of the plan or map referred to when
the Kuhns' and the Dowells' lots were created and sold. Hence, the Kuhns took their property
with "every ... privilege and advantage which the plan or map represents." In this case one of
those advantages was the knowledge that the majority of the adjacent property would be left
undeveloped because of the 400 foot maximum build line. This was effectively a deed
restriction, or the functional equivalent of a conservation easement on the adjacent property that
guaranteed open space. The Kuhns very purpose in moving to this location was precisely the
open space and wildlife habitat.
Because the 400 foot maximum build line was on the plan or the map that created the parcel at
issue, it should be read as a part of the deed, with the advantages of that setback flowing to
every other subdivision owner. Because the dwelling was constructed beyond the 400 foot
maximum build line, it was not lawfully established in accord with the subdivision plat that
originally established the parcels. Hence it was not lawfully established pursuant to state
property law. As a result it cannot now be modified according to DCC 18.40.020(M).
C. THE HEARINGS OFFICER ERRED IN CONCLUDING THAT THE LACK OF A HOMEOWNERS'
AGREEMENT DID NOT MAKE THE BUILDING UNLAWFULLY ESTABLISHED.
1. Deschutes County requires that no building permit shall be issued if the parcel of land
upon which the building is to be erected would be in violation of DCC Title 18.
Deschutes County Code 15.04.150 states that
No building permit ... shall be issued if the parcel of land upon which the
building ... is to be erected ... would be in violation of ... DCC Title 18, the
zoning title.
DCC 18.144.050 declares that
The ... maintenance, repair, alteration or use of a building or structure ... in
violation of ... any permit, land use approval or status determination issued or
made under DCC Title 18 is a Class A violation.
Page 11 of 17
August 31, 2009
The original conditional use permit had six conditions of approval. Record at 113, App G.
Condition No. 2 was:
2. Prior to the sale of any lot a written agreement shall be recorded which
establishes an acceptable homeowners association or agreement assuring the
maintenance of common property in the partition.
No such agreement has been executed, and has certainly not been recorded. Hence, this
property is in violation of its original land use approval.
Additionally The Circuit Court found that
Defendants are ordered to enter into the required "home owners association or
agreement assuring the maintenance of the common property" as set forth in the
conditions required with respect to the conditional use permit. At a minimum,
this agreement shall provide that any property taxes and any maintenance costs
with regard to the common property be shared equally.
Kuhn v. Dowell, Deschutes County Circuit Court Case No. 01CV0233MA, July 31, 2002. To this
day, there is no such agreement. As a result, this property is not in conformance with its
original land use permit, and hence, no new building permit may now be issued.
The Hearings Officer concluded that the lack of a Homeowners' Agreement did not make the
dwelling unlawfully established because the condition required a homeowners' agreement
prior to the sale of the parcels, and not prior to their development with buildings. This
conclusion is in error because Deschutes County Code 15.04.150 (quoted above) states that "No
building permit ... shall be issued if the parcel of land upon which the building ... is to be
erected ... would be in violation of ... DCC Title 18 ..." In other words the code requires that
the parcel, not just the building, be in compliance with County Code for a building to be
lawfully established. Here, the parcel of land was in violation of its conditional use permit at
the time the building was built because it was sold without a homeowners' agreement. Hence,
it was not lawfully established. Because there is still no homeowners' agreement it is still in
violation of that permit. As a result, the lack of a homeowners' agreement, makes the Dowell's
structure unlawfully established.
2. The Deed Restrictions are not an adequate substitute.
The County has argued in the past that the existing deed restrictions are an adequate substitute
for a homeowners' agreement. Although deed restrictions are helpful, they leave significant
legal issues unaddressed. Several agreements need to be made between the property owners
that are simply not covered in the deed restrictions. The two most significant are fire
Page 12 of 17
August 31, 2009
maintenance, and liability insurance. Maintenance is required on the third parcel to reduce fire
danger, and the Kuhns have been bearing 100% of that cost, despite the fact it should be shared.
There should be agreements as to liability in the case that someone is injured on the property.
Neither of these issues is adequately addressed by the deed restrictions.
State law has recognized the wisdom of adequate homeowners' agreements in situations just
like this. In the year just after Mr. Barton received approval for his cluster development the
State legislature passed a law, ORS 94.550 et seq., which required that any "planned
community" have "declaration" recorded with the County which would satisfy the same legal
and practical requirements of the homeowners' agreement in the present case. The legislature's
statement of policy describes the situation here:
"(1) In the State of Oregon there are hundreds of homeowners' associations to
which the Oregon Condominium Law (ORS chapter 100) does not apply.
"(2) These homeowners' associations have established a pattern of ownership in
which ownership of a single unit makes the owner automatically a member
of a homeowners association with responsibilities for management and
maintenance.
"(3) Many of these homeowners' associations as associations and their members
as individuals have experienced problems from the lack of statutory
provisions. These problems which have arisen are usually the result of
inexperience with this kind of ownership. This inexperience often leads to
difficulties for the association when it assumes responsibility for the
administration of the planned development because usually neither the
developer who drafted the documents nor the local jurisdiction which may
have reviewed them has realized the long term management implications of
the restrictions imposed by the documents."
The law goes on to require that new homeowners' associations have declarations - the
functional equivalent of the homeowner's agreement here - that address no less than 20 specific
issues. Prominent among those are provisions requiring agreement on insurance and
maintenance. See ORS 94.580 (2). Unfortunately, since the law was passed the year after this
cluster development was approved, and for other reasons, it does not apply here.
However, the County's own law at the time did apply. In the 1979 Deschutes County Code PL
15 8.050.16(C)(c) required "a written agreement establishing an acceptable homeowners
association assuring the maintenance of the common property in the development." Although
the County's law was significantly less detailed that the State's law, the policy remains
Page 13 of 17
'August 31, 2009
fundamentally sound, and should be adhered to. A homeowners' agreement should be
required before any future building permits are issued.
3. The Kuhns acknowledgement that they understood the County to believe that the deed
restrictions were an adequate substitute for a homeowners' agreement did not foreclose
the Kuhn's ability to challenge that legal conclusion.
It has been argued in a variety of places that because the Kuhns acknowledged that they
understood the County's position on deed restrictions, that the Kuhns forfeited their right to
challenge that legal conclusion. This argument is in error. The County held that position, but it
was not made any part of a land use decision with binding effect until now. (And depending
on how the decision is written, it may not even be a part of this decision). Until such a point is
made a part of an appealable final decision, it can't be conclusively decided.
The mere fact that the Kuhns acknowledged that they understood the County's position did not
eliminate the Kuhn's right to disagree with that position. The Kuhns never said they agreed
with the position. They only said they understood what it was.
D. DIRECT RESPONSES TO THE DOWELLS' STATED REASONS FOR APPEAL
1. The Hearings Officer did not overturn the Circuit Court decision. The County is bound to
adhere to the 400' maximum build line despite the 2003 Circuit Court Decision.
The Dowells argue that "a County Hearings Officer may not overturn a decision of the
Deschutes County Circuit Court ..." However, the Hearings Officer's decision does no such
thing. In 2003 the Kuhns brought an enforcement action in Deschutes County Circuit Court
when the County declined to enforce the law itself. The Deschutes County Court held that at
the time it could not enforce the 400' maximum build line. In other words it concluded that it
could not require the removal of the structure - which was the remedy requested. Notably, the
decision did not say that the Dowell structure was lawfully established where it was, or that the
400' maximum build line should be declared ineffective. Just because correction of a violation is
not enforceable in one context does not mean the action is legal in all contexts.
As a result that decision left open the possibility that the 400' line could be significant in another
context. This is that context. The Kuhns are not requesting here that an enforcement action be
taken. They are not requesting that the structure be torn down. Neither are they asking the
County to revoke a previously issued permit. The Kuhns are merely asking that that the j.
Page 14 of 17
August 31, 2009
County not compound the existing error by granting a further building permit to a building that
was not lawfully established.
Further, issue preclusion only applies in situations where the same facts exist. Nelson v. Emerald
People's Utility Dist., 318 Or 99, 862 P2d 1293 (1993). Here, a significant fact has changed since
that decision was made: the plat was recorded. Although the County was not a party to the
action, two County employees were heard as expert witnesses on whether the 400' line was
enforceable. Both emphasized that one of the reasons the County did not believe that the map
was enforceable was that it was not recorded. George Read, then County Community
Development Director stated that a "a partition plat such as this that was not a condition of
County approval and was not on a recorded plat was not something subject to County zoning
authority." G. Read Testimony at 9. He also stated that "The map — partition map is not
recorded so the County is taking the position that they don't have the legal basis to enforce it."
G. Read Testimony at 26. Similarly, Rick Isham, then County Counsel, stated
Basically, it is my understanding that the map that was filed for the minor
partition showed a line that appeared to be approximately 400 feet from the front
property line or the easterly property line abutting Sisemore Road. And -- but
there is no evidence in -- that it was a condition of approval. And so for the
County to initiate a code violation, the County would have had to determine that
they had violated the terms of their land use approval.
Now in order ,to have a condition in the land use approval there has to be
ordinance authority for the imposition of that. I didn't find either. So from my
interpretation as a County Officer, what we had here was a line on the map that
was placed there, since it wasn't a condition of approval and it was not recorded.
R. Isham Testimony at 74. Of course, it is impossible to determine exactly what testimony the
judge in that matter relied upon in making his decision. The opinion itself is unfortunately
short on reasoning. However, it is clear that whether or not the plat was recorded was a
significant fact in the trial, and that fact has changed. •
As a result, the County will not be overturning any Circuit Court decision by concluding that in
this context, under these facts, that the 400' maximum build line has legal significance.
2. The Dowell's site plan is not inconsistent on its face.
The Dowells argue that the site plan they submitted actually allowed the building to be greater
than 400' from the road, and that the site plan is ambiguous because it is inconsistent on it's
face.
Page 15 of 17
August 31, 2009
Preliminarily, this argument should be struck from the record because it was not made below.
This is the first time that the Dowells have argued that the County actually approved a building
permit for a structure greater than 400' from the road.
On the merits, the argument is disingenuous. The relevant map is in the Record at 533 and is
attached here. It is a part of a six page application submitted by Jeff Dowell for a Landscape
Management Plan approval. On the page immediately prior to 533 is a hand drawn map that
also depicts the "400' maximum building line". It appears that map was hand drawn by Mr.
Dowell himself. Other items in the record that discuss the 400' maximum building line include
the following:
• Record at 565. Letter from Paul Blickstad to Jeff Dowell notifying him of the 400' line
before the Landscape Management Plan Application was turned in.
• Record at 561. Letter from Jeff Dowell to Catherine Morrow, discussing how much time
the Dowells spent out on the property actually making measurements in order to decide
where to locate the house in relationship to the 400' maximum build line. The letter also
asks whether the septic field must be within 400' of the road.
• Record at 174. Findings and Decision on Dowell's Landscape Management Plan
Application discussing 400' maximum build line, and the fact that it was a part of the
application.
Finally it is rather incredible to believe that the Dowells purchased this property without ever
looking at the original plat map that delineated the boundaries. This should have been a part of
any basic due diligence. That plat map - the one that the Supreme Court says should be read
with the deed - is the one that contains the 400' maximum build line. Significantly, the Dowells fr
have never asserted that they did not see this plat map when they purchased their property.
Given -this context the site plan at 533 is not ambiguous. It is clear that what happened was that
the original plan was to place the building 744' from the road. The map was then modified with
a prominent notation stating "This drawing is NOT to scale. The house site will NOT be
more than 400 ft from the road." (underlining and capitalization in the original. Boldness
substitutes for highlighting.) Given the fact that the Dowells and the County had had extensive
discussions regarding the 400' line it is simply not credible to suggest that the County viewed
this site plan as ambiguous, and didn't really.know if it intended to approve a site more than
400' from the road. There is not substantial evidence in the record to support the notion that the
County may have approved a location of the structure beyond the 400' maximum build line.
Page 16 of 17
August 31, 2009
3. The County is not being asked to revoke a previously issued approval.
If the County was being asked to revoke a previous approval, the Kuhns would also be asking
that the County require the removal of the structure. The Kuhns are simply asking that the
County not take any additional illegal steps. The County should never have signed off on the
building located more than 400' from the road. Clearly that was a past error.
The Kuhns are only asking that the County refrain from taking any additional unlawful steps.
The decision to issue a new building permit requires a new determination that past actions were
lawful. They were not. Both the County and the Dowells have some responsibility for the past
errors. The County should not have issued a final sign off on the building, but the Dowells
should have built the building where they were permitted to build the building. The result of
this double error is that the structure was not lawfully established, and no additional building
permits may be issued.
4. As a policy matter it is appropriate for the County to follow the law wherever it leads.
The Dowells argue that it would be inappropriate for the County to reverse course and support
the Kuhns interpretation of the law since the County has been defending the Dowells' position
since 1997.
A wise person once said that no matter how far you've gone down the wrong path, when you
find out that it is the wrong path, you should turn around. To cling to old positions just
because you took them before is simply to be bullheaded. It is not a way to rim a government
in a dynamic culture. The County should follow the law wherever it leads. If that means
admitting a past mistake, it is better to make that admission now, and attempt to rectify it than
to stubbornly cling to the past.
CONCLUSION
For these reasons the Kuhns request that the Board uphold the Hearings Officers conclusion
that the Dowells' structure was not lawfully established. The Kuhns did the appropriate due
diligence before they purchased the property. They looked at the plat maps and the zoning
laws, and discovered the 400' maximum build line with relatively little effort. They determined
that they needed a lot line adjustment in order to build their home where they wanted. They
applied for and received that approval. If the Dowells failed to perform the same due diligence,
it was their own error. The Dowells were informed of the restrictions on the property, then
chose to disregard them. Now they ask that the County do the same. However, the County
Page 17of17
August 31, 2009
cannot do that. The 400' maximum build line is legally relevant in this context. A structure
built on the other side of it is not lawfully established.
The Kuhns further request that the Board modify the Hearings Officer's decision to also
conclude that the structure was not lawfully established because the parcel that it is on is in
violation of the original conditional use permit requiring a homeowners' agreement.
This is not an independent request that the County now "enforce" the 400' maximum build line
by requiring that the Dowells' structure be declared a nuisance and abated. This is merely a
request that the County refrain from issuing additional building permits to a building that was
not lawfully established in the first place.
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WILLIAM JOHN KUHN & MARTHA LEIGH KUHN
Post Office Box 5996 Bend, Oregon 97708-5996 (503) 389-3676 389-5983
4 June 1987
Denyse McGriff - CDD - Planning Division
Jeb Barton - Owner and Seller
Mark Burchett - Neighboring Affected Owner
Bend OR 97701
Dear Denyse McGriff, Jeb Barton, and Mark Burchett,
(503) 388-6575
(503) 388-1854
(503) 382-5893
We are asking for a lot line adjustment prior to the purchase of Jeb's
Sisemore Rd property.
We desire to purchase a buildable lot and do not wish to buy anything that will
prohibit the placement of a home at the top of the hill just to the west of the
cid test pit. We are asking the CDD department to deny the application if this
is not the case.
We wish to have a southern exposure for a solar designed home, since the
original site was mostly a ridge facing north west. We also wanted less impact
on the Tumalo Winter Deer Range, by moving hte building site closer to the road
we cause less impact on their natural habitat. Bringing the back part of the
property up closer to the road we can also deal with the side lot problems
mentioned by Denyse and Karen. It also allows us to have the septic system near
the house rather than down in the valley below.
Once we have your approval we will then be able to have Mr. Colvin proceed with
his survey.
We appreciate your consideration on all this.
Sincerely,
William Johh Kuhn
Martha Leigh Kuhn
CDD8706.ws4
APPLICATION FOR LOT LINE ADJUSTMENT
APPLICANT: William John Kuhn & Martha Leigh Kuhn PHONE: (503) 389-3676
SITE ADDRESS: Sisemore Road.
PROPERTY OWNER: John Barton
(if different)
SITE ADDRESS: 17671 Snow Creek Road Bend
PROPERTY DESCRIPTION: T 16 R 11 S14
ZIP CODE: 97701
PHONE: (503) 358-1854
ZIP CODE: 97701
Tax Lot: 200
ADJOINING PROPERTY INVOLVED IN THE LOT LINE ADJUSTMENT
PROPERTY OWNER: Mark Burchett PHONE: (403) 382-5893
SITE ADDRESS: Sisemore Road ZIP CODE: 97701
PROPERTY DESCRIPTION: T 16 R 11 S19 Tax Lot: 300
GENERAL LOCATION : West side of Sisemore Road about 14 Miles North of Tumalo Dam.
REASON FOR ADJUSTMENT: sinceVori southern
eewwaas exposure for a ridge acin8g�nnno howes
we also wanted less impact on the Tumalo Winter Deer Rangey , bydmoving the building
site closer to the road we cause less impact on their natural habitat.
'—`-PRESENT ZONE OF APPLICANT'S PROPERTY: F-3 (WA)Lm
PRESENT ZONE OF ADJOINING PROPERTY: F-3 (WA)`"
PRESENT AREA OF APPLICANT'S PROPERTY: appx 4.3 Acres
AREA OF APPLICANT'S PROPERTY AFTER ADJUSTMENT: appx 4.3 Acres
PRESENT AREA OF ADJOINING PROPERTY: appx 34.6 Acres
AREA OF ADJOINING PROPERTY AFTER ADJUSTMENT: appx 34.6 Acres
PLEASE ATTACH A MAP DRAWN TO SCALE
********************************** NOTE *********************************
The proper form, signed by a representative of the County Assessor's
Office, shall be attached, certifying:
I) All taxes for parcels are paid in full;
2) The deeds are in the same name for all parcels to be adjusted or
consolidated;
3) Accurate legal descriptions have been prepared for all adjustments.
INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED
**************************************************************************
Ap
p scant s Si
roperty Iwner s l'natur
5 June 1987
Date
D 5te June 19`37
•a
THIS APPLICATION MUST BE PROCESSED WITHIN THE 120 -DAY DEADLINE
FILE NUMBER:
OFFICE USE ONLY
t'NAPPROVED/DENIED
Planner
Date
DATE SUBMITTED:
RECEIVED BY:
FEE PAID: RECEIPT #:
OO 0`,
o,,� s Community Development Department
RECORD OF CONVERSATION
Courthouse Annex / Bend, Oregon 97701
(503338B-6575
SUBJECT: l �%Xf top./(t�V"-n ,LAr~79'z3 ,�
OR' PERMIT #: 44787-2/
APPLICATION
OP /calm DATE: Vnin)f9 7 TIME: 4:00/Yrka OY.
PERSON: 3j X P /cal COMPANY: PRONE: 359-36%
ACCOUNT # : T / 9 R // S /9 TAX LOT 200
ADDRESS: 5&eiYiOW
as c =acct cam a c aa..s a a h
COMMENTS : l9CIthelliOdiaKILUMVW /(2/M7 / Miei "%f/Ye CO c 0-2Z)
400 in . a2t4_I cie /on, lox
LV/0.5
1. 1 1 ), 4i<I/A I_ "1. A.1%. / L. !. I,I. 11 /i i,
?I 1/X...1,979 oV - STAFF PERSON: �/,�`,(
Pit/
Community Development Department
June 18, 1884
Mr. and Mrs. William Kuhn
80780 River Bend drive
Bend, Oregon
RE: Lot Line Adjustment LL -87••2:
Dear Mr. and Mrs. Nuhn:
Administration Bldg. / Bend, Oregon 97701
(503) 388-6575
Planning Division
Building Safety Division
Environmental Health Division
We have approved your lot line adjustment application subject to
the following condition.:
i. Prior to the issuance of a building permit, the deed
restrictions to the Cluster Development on CU -80=22 shall be
recorded with the Descutes County Clerk to run with parcels
:,2, & 3 of that land use application.
We were not able to find that these restrictions were recorded
with the parcels. This was a condition of approval on the
conditional use permit.
If you have any concerns or questions, please contact this
off i c:p .
Sincerely,
DESCHUTES COUNTY PLANNING DIVISION
Craig J. Smith, Director
444- Mark D. Shipm n
Assistant Planner
MDS/cd
CP3-22
cc: John Barton
Nark Aurchett
Denyse McGri ff
anty os
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Dakar Kt.- Dowel -1$
The propert. you own adooant to Sisemor* Road, deori.bctd as
titX lat 100, wiLU orvated by a CondiLiunat
(CU -4)0-.221 _And Hiner Partition (11P-79-232) for two non-rhrost
dwtalln,7 titst on the 43.1...acre total name.. ThrIkek land 1.mt
approvais ettabtiched the two parcels ior bnilding njTes, and
oohaeouontly ft new conditional use perat will not be
raquired.
The apprevalz did however, ostablieb a MaXimut setback from
isemore. Road of 400 feet, 1. am sending yoU a eOpy oaf the
partition arftwirt9 which atirtaLliaed this 17strlotioe.
rranX Cibeill has snbutitted a Lahlscaph Menagemant Plan
app,lioation on your rmirlear IdtliCh changed tho location of the
dwelling Bite to meet thin 400 -foot reetriotien, Tho intent
at this restriotion was for pratervation and proto.7.tion Cif
wildlife in tie area.
Ie you Obeli:14 neve ally giAhetions, foal frau 'LA> contaot ov at
tBin cffice,
Dinoartly,
Orscrforrs
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coUNTY 111.7kramfG ravxsiow
Rubd, Plannin9 DicocCor
Planrier
CADocs\prop655751DowelKodeViolationsBuilding\A-07-9_Appeal Of Building Permit Land Use.docpaee 10 08/14/2007 2:02:56 PM
cl s
'
r t
FAX
From the Desk
Ili. er-ad Inc.. 52 Marwa:y Circle, Roches
ml Ms. Catherine Morrow
Deschutes County. Building Dept.
1130 Harriman St
Bend OR 9770.1
L•,. at ' ori
KotL.s0 P 1tV L L
i? Boo sit 19f 247 7860
td cGy e.MI.,e.w...
8/30/92,
46 /Zoo 54 /�
8tS3 PM
I'm wrung to thank you for taking the t:,re to mee, with -ry wife. anta myself reoarding our Sersmore Rd.
property as well to tit you that we Fiery ^,uch appreciate the persona' interest you've taxon in our
situation. I also wanted' to :et you Know what the outcome of our visit(s) to our Sets, ,ore site were.
First of ail. please accept my apologies for not getting back to you while we were it town. as we d
ongi,na:iy pianned to do. !t turned cut that once we get out to the property and discovered where the
bt.t'iding site had to be located to meet the 400 ft. Sersmore =rd offset restriction. we ,cun7 ourselves
faced with a much greater task at hard tnet we anticipated Thus. we soent ali day every day from
the time we met on Tues. AM t.ntii the time we left Thursday eve :o fly home staking cut the property.
wartime: witr: different house plan options and tacking with the contractor about the fe8sibility and
'mpi:cal;ons of our ideas etc in the end. we came up with.the following:
• Tr•e ;louse plan v4ii retrain almost exactly as it was submitted wiG two minor modifications (the side by side
coos tArill oe 1200 sci. ft Instead o, 600 sci 'ft each. and there ;telt be a 500 sq ft garage tne.t wll b i,oed off
the noortherni most pod)
• Tr'. cortractocr ,!=rank Cibeili) is going to begin work en the septic approval orccess now (once mat approval is
obtained we wilt likely have him clear the dr.veway ane the budding site itseili
A couple of questions did come up that t wanted to pose to you.
h �} What do we need to do. to scan the application process for an extension tnai would allow us to ex;er
Current deadline from March of 93 to March of 94. ? i kncw there Is a fee of roughly ;SSC. but do d.e
to submit the request on any type of 'tonna!' apolicatron form or document?
112 Relating to that same sub!ec;. assuming an extension is granteC. aces that mean. a Nouse needs 10 be
completed by March of 94' or simply spited? If only started. how Icing do we have to compete the
structure (ie. how on :s a building permit goon 'or?)
t+"?° Dces the septic drainage as well as the rouse hate to oe within 400 feet of the road. or is it simply tie
house Itself? We've laic' things out wlin the assumption that the restriction applies to the house structure
Itself, and not the *front lawn./seot[c arai:tage' area. Please le; us know immediately if such is not t- e
case.
That's about all I can think cf for now. Please give me a call at 300 800 7800 anytime Tuesday or
later of this week and let me know where we.stand and what we need to do next.
Again. thank you for your help and consideration. 1 look forward to hearing from you.
9zon0
4*.
s
PL-15_8.050.16.C.c_CU_Cluster_ Requires
Written Agreement Establishing Assoclation.gif
VOL 33 PAGE 182
C13) Elementary and secondary sohools shall provide a
basic site area consistent with atate standards for
the predicted ultimate enrollment,
fC) Secondary schools shall proVide a. basic site area of
10 acres plus one additional acre far each 100 pupils
of predicted ultimate enrollment.
16) Residential Vs as Only) .
(A) SuOn Uses may be authorized as a conditional use
only after consideration •of the following factor -s;
(a} Need or residential uses In the immediate area
of the proposed development.
Oa) Environmental, social and economic impacts likely
to result from the development, including impacts
OD public faci/ities such as schools and roads.
(o) Effect of bhe •develoHment on the rural character
of the area.
(d) Effect of the development on agricultural, forestry
o:t other natural resource us,e,i in trj.e
area.
(B) The comditional use shall not ba grantees unless the
following findings are. made;.
(n) ineyr,a f4,4A.r21 pr.r.p-onr11- nf 44inirwill .%r2s t;t414:,
for the development and &5 percent will he k• ept in
open space uses.
{h) A.12 subdivisionrequirements contained L County'
ordinance PL -14 shall be met.
ic) The total number oz! units does not exceed. the over--
all density estaibished by the minim= lot size
of the zone in which the development is proposed-
fd) The rttral character of the area shall not be ad-
versely affected.
(C) All applications shall be accompanied by a plan with
the.-lollowing information:
A plat nap meeting all the subdivision requirementt
of the County ordinance PL -14.
(b) The area to be proorveth tor open space clearly
aesignated,on the plan and adequate deed restric-
tions to maintain the lard in open space provided.
(1-;) A writtet ag-reement establishing an acceptable
homeOwner$ associatioD a4i4ring the maintenance of
common property in the development.
CD) Dimensional Standards:
(a) setbao.):s and height limitations shall be as pre-
scribed in the zone In which the development is
proposed unless adeauate justiEication for rednctir
PL-15_8.050.16.C.c_CU_Cluster_ Requires 136 -
Written Agreement Establishing Association.gif
Sohn Kuhn
artha Legh Kuhn
PO Box 5996 Bend, Oregon 97708-5996 Phone: (541) 389-3676
Friday 6 November 2009
To: Deschutes County
Tom Anderson, CDD Director
Nick Lelack, AICP, Planning Director
Kevin Harrison, Principal Planner Current
Will Groves, Senior Planner, and
Laurie Craghead, Assistant Legal Council
Cover Letter to Deschutes County Staff.
Because we are not permitted to address the County Commissiondirectly we would
appreciate your cooperation in supplying your knowledge and experience on the issues
we have had to deal with for so long.
It is not our expectation that this cover letter be made part of the record, but that is your
decision to make.
A. Kuhn appeal A-09-5
Our appeal A-09-5 of that portion of Hearings Officer Karen Green's decision revolves
around the absolute lack of a homeowners' agreement and association. After reading the
minutes of the 16 September BoCC work session regarding our appeal it was more than
apparent that there is complete misconception on the part of Commissioner Dennis Luke
of what is involved. He seems to believe that we are asking the County to enforce our
deed restrictions. As you are aware this is absolutely not the case.
We have repeatedly shown the County PL -15 Article 8 Section 050 Specific Use
Standards (16) Cluster Development (C) (c) "A written agreement establishing an
acceptable homeowners association assuring the maintenance of common property
in the development." As you can see, public law in 1980 did not include the words
"prior to the sale".
You are all aware that as late as August and September 2004 the County was still
refusing to record our final plat map. We spent those two months developing and proving
our case that the final plat was REQUIRED to have been recorded by the County
Planning Director. We had to show the County ORS 92.025 and finally had to revert to
the threat that we were not going to pay our taxes until the map was recorded. ;� D
consider the County's actions and attitude to our plight to be pathetic and reprehensi . e
The legal department reversed its decision. NOV 10 2009
C:\Docs\prop65575\DoweIN.egals & Decisions Court & County\2009 LUBA 2008 Remand \20091106 CoverLetter to County Staff doc page 1
Our first request:
Please show the Commissioners, and especially Commissioner Luke, LUBA
record page number 114 - PL -15 8.050.16.C.c
B. Dowell appeal A-09-4
Regarding the Dowells' appeal A-09-4 of that portion of Hearings Officer Karen Green's
decision:
Many mistakes were made during the time our cluster development was being created in
1979 and 1980. As Paul Blikstad said during one hearing, "the county land use system
was in its infancy back then." We recognize this and understand, but that does not mean
that those old mistakes should be ignored or swept under the rug. We can easily give you
a list of 35 specific mistakes and oversights.
In January 1997 we asked for help from the county in order to deal with an unpleasant
situation regarding the "no dog" provision in our deed restrictions. That unpleasant
situation over the years turned into refusal to communicate with us, false testimony given
in civil court, threats to burn us out, harassment, assault, and further harassment. All we
ever did was to try to take the high road. We never did anything illegal or unethical.
As a result of our filing code violation complaints in March 2000 certain county
employees, in our opinion, defrauded us of our right of enforcement of our final plat map.
One county commissioner and two "respected" county department heads in an attempt to
ignore the maximum build line said that the 400' line would be measured across our
property. This is of course is a perversion of the truth. Please see LUBA record page
number 679 oversize & color pages.
PL-14_1.070_Def 09_BuildingLine.gif
saetion 1.070.. DEFINITION , As used in 'ie or inamer
the fonowing word and pita es...sna3l_ mean;
(9 ) BuiIding Line, A line on a plat indicating the
Lft:t e ich buildings or structures may not
be areoted, If no line is shown or the plat, the
building line shall be that set forth in the County
Zoning Ordinance,
As a result of a recent renters obsession with fire, where he would bring truck loads of
waste to the property, including tree trimmings, demolition waste, and old mattresses, set
huge bon -fires and receiving no help from the owners of the property, the local fire chief,
or CDD we decided to take a Zero Tolerance approach with the other land owners AND
with the County. We asked Commissioner Mike Daly for his help. He gave us some
insight and we followed it. Please see LUBA record pages numbered 136, 137-138, 222,
684-687, and oversize & color pages.
C:\Docs\prop65575\Dowell\Legals & Decisions Court & County\2009 LUBA 2008 Remand \20091106 CoverLetter to County Staff.doc
page 2 - ....11/6/2009
Our second request:
We are asking you to please prevent the past mistakes from being covered
up. We are asking you to support Hearings Officer Karen Green's decision
of the 400' line.
The Dowells, by placing their structure where they did, without regard to the numerous
warnings and admonitions from the County, are clearly in the wrong. To ignore these
issues puts the County at jeopardy. It has clearly put us in harms way. The County needs
to admit they made a mistake by not inspecting properly. The County needs to correct
this situation.
As you are also well aware, even if every decision were to be in our favor, we will still
have our hands full as we try to move forward with the Dowells. We still have many
years ahead of us dealing with people who would give false testimony in civil court.
Thank you for our consideration of our requests.
William John Kuhn
Martha Leigh Kuhn
C:\Docs\prop65575\Dowell\Legals.& Decisions Court & County \2009 LUBA 2008 Remand \20091106 CoverLetter to County Staffdoc
page 3 11/6/2009
BRYANT,
LOVLIEN &
JARVIS, PC
ATTORNEYS Ar LAW
ESTABLISH ED 1915
Neil R. Bryant
Robert S. Lovlien
John A. Berge
Sharon R. Smith
John D. Sorlie
Mark G. Reinecke
Melissa 1'. Lande
Kitri C. Ford
Paul J. Taylor
Kyle D. Wuepper
Jeremy M. Green
Helen L. Eastwood
Peter A. Christoff
Melinda Thomas
591 S.W. Mill View Way
Mail: P.O. Box 880
Bend, Oregon 97709
Phone: (541) 382-4331
Fax: (541) 389-3386
W W W.BLJI.AWYERS.COM
November 5, 2009
Via Regular Mail and E-mail
Will Groves
Deschutes County Comm.
Development Dept.
117 NW Lafayette Ave.
Bend, OR 97701
Re: Kuhn and Dowell/Appeal Nos. A 09-4 and A 09-5
FINAL ARGUMENT
Dear Mr. Groves:
This letter is the Dowells' final written legal argument permitted by the Deschutes
County Commissioners in their Order No. 2009-061.
I. Preliminary Issue
The transcripts of oral testimony from the Deschutes County Circuit Court Case 01 -
CV -0233 -MA are irrelevant and should not be considered. The transcripts submitted
by the Kuhns' attorney of the oral testimony are only part of a much larger record
where a Circuit Court Judge held that the 400 -foot setback was not an enforceable
requirement. That decision was upheld by the Oregon Court of Appeals in an
approval without an opinion. Kuhn v. Dowell, 196 Or. App. 787 (2004). The
transcripts are irrelevant to the issues in this case regarding whether or not a
Hearings Officer may overturn the Circuit Court's decision. It is not possible to look
at a portion of the oral transcripts from the trial and attempt to discern the reasoning
of the Circuit Court.
Petitioners argue that the oral testimony is relevant because it shows when
documents were entered into the record. However, when documents were entered
into the record is irrelevant to this land use action, which was a separate hearing and
has a separate record.
Petitioners also argue that "it appears that the judge's decision was based, at least in
part, on the oral assertions of the County employees Mr. George Read, and Mr. Rick
Isham", Letter to Commissioners dated October 1, 2009. However, the argument
that the Trial Court outcome was based primarily on the testimony of, AN
NO 10 2009
Will Groves
November 5, 2009
Page 2 of 7
employees is mere speculation. It is not supported by the record. The record shows the Trial
Court simply held that the Kuhn's:
"have not established any of the alleged code violations. . . . Plaintiffs have not
established that the location of the building (more than 400 feet west of the east boundary
of the property along Sisemore Road) is in violation of any enforceable requirements.
Plaintiffs have not established that the location of the building has caused a substantial
and unreasonable interference with the use and enjoyment of the Plaintiffs property."
Deschutes County Circuit Court Decision 01 -CV -0233 -MA; Record at 117 (emphasis
added).
It is impossible to determine which of the three or more reasons presented in oral testimony and
final legal argument that the 400 -foot setback does not apply was the determining factor in the
Court's opinion. Furthermore, there were many other people who testified at trial and it is
equally plausible that the Court did not find Petitioners' arguments suggesting that the 400 -foot
setback was enforceable persuasive.
This land use action is a separate and distinct case regarding the permissibility of a building
permit on a dwelling that was constructed between 1992 and 1995, and approved by Deschutes
County in 1995 after a final review of the dwelling. By entering the entire testimony of Mr.
Isham and Mr. Read, the Kuhns simply add to an already long and complicated record without
any selectivity. Petitioners stated that the reason additional time was necessary was to
"determine which small sections are actually relevant to the matter at hand", Letter from Kuhn's
attorney to County Commissioners of October 1, 2009. However, Kuhns' attorney enters
approximately 100 pages into the record without any direction as to which portions are relevant.
This is a waste of the County Commissioners' time and is not respectful to the need to narrow
the issues upon review.
Although the Kuhns deny it, they are clearly attempting to retry the Circuit Court case where the
Court found that the 400 -foot setback was not enforceable. The Deschutes County
Commissioners do not have the authority to retry the Circuit Court case that was upheld by the
Court of Appeals. The issues in this case are different and do not require reevaluation of the
testimony by Mr. Isham and Mr. Read. For the above reasons, the Dowells respectfully request
that the County Commissioners make a finding that the portions of the oral transcripts submitted
be found irrelevant and ignored for the purpose of making a determination in this appeal.
Nonetheless, in the event that the Deschutes County Commissioners find the transcripts relevant,
the transcripts support the Dowells' position below and not the position advocated by the Kuhns.
The Dowells argued below and at LUBA that the recording of the plat after the construction of
the dwelling is not a "new fact" which would allow new litigation of a case otherwise prohibited
by issue preclusion. The testimony supports this reasoning. Specifically, at Page 92 of the
transcript submitted, Mr. Reinecke, attorney for Mr. and Mrs. Dowell, stated, "If it [the plat] was
recorded, then the county still couldn't have enforced it because it wasn't a condition of
approval." Mr. Isham responded, "It [the plat] would both be recorded and [the not more than
Will Groves
November 5, 2009
Page 3 of 7
400 foot setback] would be a condition of approval. And in order to be a condition of approval it
would have to meet a criteria set forth in the zoning ordinance or whatever planning ordinance
was being applied" (emphasis added). These statements in the transcript support the argument
that the latter recording of the plat so emphasized by the Kuhn's is not relevant. The County
would not have enforced the recorded plat unless there had been a separate condition of approval
requiring a not more than 400 -foot setback from Sisemore Road. There was no such condition of
approval or criteria in the zoning ordinance. Therefore, the recording of the plat would be
irrelevant to the analysis because the land use decisions approving the Dowells' dwelling never
required the dwelling to be no more than 400 feet from the road.
II. Issues on Appeal
The issues relevant to this appeal include the following:
1) Whether the Hearings Officer may overturn a Circuit Court decision and earlier County
approvals of a dwelling;
2) Whether the Hearings Officer's reliance on a single statement located on a facially
inconsistent document should be overturned;
3) Whether the Hearings Officer erred by failing to consider LUBA precedent in Church v.
Grant County, 37 Or LUBA 636, 652 (2000); and
4) Whether the County requirement for a homeowner's association makes the constructed
dwelling illegal.
This letter addresses each of these "assignments of error" regarding the Hearings Officer
Decision below.
1) Dowells' First Assignment of Error:
The Hearings Officer Decision effectively overturning the Circuit Court and Court of Appeals
Decision holding there is no enforceable 400 foot setback was clearly wrong and must be
reversed as a matter of law and a matter of Deschutes County policy.
The land use system cannot be used to circumvent the ruling of the Deschutes County Circuit
Court. Specifically, claim preclusion prevents cases with identical claims from being re -litigated
in different venues. The types of claims barred by issue preclusion are discussed in the five
prong issue preclusion test in Nelson v. Emerald People 's Utility Dist., 318 Or 99 (1993): 1) the
issues in the two proceedings are identical; 2) the issues were actually litigated and were
determined on the merits; 3) the party to be precluded had a full and fair opportunity to be heard
on the issues; 4) the party to be precluded was a party to the prior proceeding; and, 5) the prior
proceeding was the type to which courts grant preclusive effect. Petitioners previously conceded
to the fourth and fifth prong so these are not discussed further.
Will Groves
November 5, 2009
Page 4 of 7
The issues raised by Petitioners in the Circuit Court Case Kuhn v. Dowell, Deschutes County
Circuit Court Case No.: 01 -CV -0233 -MA, are identical to the issues raised by Petitioners in this
case, Rec. at 117 and Petition for Review 10, 11. The Circuit Court held:
"Plaintiffs have not established any of the alleged code violations.... Plaintiffs have not
established that the location of the building (more than 400 feet west of the east boundary
of the property along Sisemore Road) is in violation of any enforceable requirements.
Plaintiffs have not established that the location of the building has caused a substantial
and unreasonable interference with the use and enjoyment of the Plaintiffs property."
Deschutes County Circuit Court Decision 01 -CV -0233 -MA; Record at 117. (emphasis
added)
Petitioners argue that the decision left open some possibility that the location of the building
could be challenged at a later date. The decision leaves no such opening. Furthermore,
Petitioners continue to allege that the 400 -foot setback is an enforceable requirement and that if
the dwelling does not comply, the dwelling is illegal. This is contrary to the plain language of
the decision. The exact issue - whether or not the dwelling violated an alleged 400 -foot setback -
was resolved in the Circuit Court case and cannot be raised again here.
The Hearings Officer erred when she claimed that she "cannot determine whether the test under
the Nelson case for establishing issue or claim preclusion has been met with respect to the
lawfulness of the location of the dwelling on the Dowell's parcel." Decision at 15. The Dowells
provided sufficient evidence in their briefs to the Hearings Officer to allow her to make an
appropriate determination as to whether or not the case met the Nelson criteria. (See original
burden of proof to Hearings Officer a copy of which is attached).
The Hearings Officer erred when she accepted Petitioners' statement that the issues have
changed and therefore Nelson did not apply simply because a partition plat that shows a 400 -foot
setback was recorded in 2004, Decision at 15. The recording of the plat has no impact on the
enforceability of the alleged 400 -foot setback or whether or not the dwelling was lawful. As
explained above, the Kuhns' speculation that the Circuit Court's conclusion that there was no
enforceable requirement was due to the lack of a recorded partition plat is unfounded. In fact, it
is contradicted by the testimony of Mr. Read on Page 92 of the transcript excerpt. Several
alternative reasons exist that support the Court's finding that the 400 -foot setback was not
enforceable, including differences in opinion regarding the appropriate way to measure the
setback. Previously in this matter, the Dowells provided Defendant's Exhibit No. 163. The
Exhibit provided during trial shows that the Dowells' residence is within the 400 -foot setback
using a variety of measurement alternatives from Sisemore Road. Additionally, the letter by
Rick Isham (Rec. 235) was used at trial to show that the Kuhns' waived any right to rely on the
partition plat when they constructed their dwelling in the former common area after adjusting the
lot line.
Issue preclusion is appropriate here because there has not been a change in circumstance that
would allow a new trial. The speculation provided by the Kuhn's is not supported by the record.
Will Groves
November 5, 2009
Page 5 of 7
The Hearings Officer's decision is clearly wrong and must be overturned. It is inappropriate to
allow Hearings Officers in a quasi-judicial setting to overturn Circuit Court decisions that have
been approved by the Oregon Court of Appeals.
2) Dowell's Second Assignment of Error:
The reliance of the Hearings Officer on a single piece of paper in the record to conclude that the
Dowells knew about the 400 foot setback and therefore the 400 foot setback is an enforceable
requirement is clearly wrong.
The Hearings Officer's reliance on the "LM site plan" is elaborated below.
"[I]n 1992 the Dowells submitted an LM site plan containing a notation that the dwelling
would not be built beyond the 400 -foot road setback in order to obtain site plan approval
for their dwelling, having been advised by Mr. Blikstad that the county considered the
400 -foot setback from the road to be binding on them. The Hearings Officer finds the
circumstances presented here are equivalent to those in the Wilson Park Perry and
Friends of the Metolius cases in which the applicants' submitted plans and
representations were found to be binding, notwithstanding the lack of conditions of
approval requiring compliance with those plans. And I find there is no question the
Dowells had notice, and were aware, of the 400 -foot maximum building setback from
Sisemore Road at the time they submitted their LM site plan for approval." Decision at
24-25 (emphasis added)
The Hearings Officer goes on to assume that the Circuit Court did not analyze land use case law
simply because the Circuit Court did not provide an analysis of all of the case law presented in
the case, and instead provided a short and clear holding. As noted above, the Circuit Court, in its
decision which was upheld by the Court of Appeals (196 Or. App. 787 (2004)) ruled that the
400 -foot setback was not enforceable regardless of whether or not the Dowells knew about the
400 -foot setback. The trial court's concise ruling cannot be interpreted to mean the judge
ignored land use cases.
Furthermore, the LM site plan document is facially inconsistent. The site plan states in the lower
right-hand corner that the dwelling is not to scale and will not be more than 400 feet from
Sisemore Road. However, the drawing itself shows the length of the driveway before it reached
the house to be approximately 744 feet. Moreover, the land use decision approving the
landscape management plan states "the proposed dwelling will be within 1/8th mile of Sisemore
Road", Rec. at 174. One eighth of a mile is almost 660 feet. These inconsistencies were not
considered by the Hearings Officer and the decision is incomplete without an analysis of these
other factors. Therefore, the Hearings Officer decision based on the single LM site plan
document must be overturned.
Will Groves
November 5, 2009
Page 6 of 7
3) Dowell's Third Assignment of Error:
The Hearings Officer 's Decision was wrong to dismiss relevant case law regarding a County's
ability to retroactively determine that a dwelling was illegal after final approvals were granted
by Deschutes County.
The Hearings Officer erred in concluding that Church v. Grant County, 37 Or LUBA 636, 652
(2000), is not relevant, Decision at Pages 21 and 25. The Hearings Officer states: "I also find the
Dowelis' analogy as to lot -of -record determinations is not persuasive." Id First, Church v.
Grant County is not about lot of record determinations. In Church v. Grant County, 37 Or
LUBA 636, 652 (2000), a County mistakenly approved a partition allowing five -acre lots in an
area zoned for 10 -acre lots. However no appeals were filed. A year later, the County adopted a
new ordinance to try to fix its mistake. LUBA held that ORS 92.285 "prohibits the county from
retroactively revoking otherwise final and unreviewable partition approvals, even if the county
does not apply new standards or criteria in doing so." Id. (emphasis added). The Court's
reasoning was that the parties who were granted the partition relied on the fact that they owned
five -acre, buildable lots and the county could not later conclude that the lots were not buildable.
Id. Likewise, here, the County cannot retroactively determine that a dwelling that was approved
by the County in1997 cannot be modified.
The Hearings Officer also errs in concluding that the prevention of future permits is not the same
as revoking an original permit. The prevention of future building permits has the same impact as
retroactively revoking the partition approval in Church. In Church, the effect was to make
previously buildable lots not buildable. Here, the impact is to make a dwelling that was
approved by the County such that it can never be modified.
4) Response to Kuhn 's First Assignment ofError:
The Hearings Officer Decision that the lack of a homeowner 's association does not make a
dwelling illegal for the purposes of additional construction permits is supported by law.
Although the Circuit Court determined that Jeff and Patty Dowell must sign a homeowner's
agreement, it did not conclude, as alleged by Petitioners, that the lack of a homeowner's
agreement makes the existence of the Kuhn and Dowell dwellings illegal. As noted by the
Hearings Officer:
"That is because, by its express terms, Condition 2 made the homeowner's agreement a
condition precedent to the sale of the cluster development parcels, not to their
development with dwellings. In addition, as discussed above, the Kuhns advised the
Planning Department that they understood the county had determined the homeowner's
association requirement to have been met with the recording of deed restrictions, and the
Kuhns did not object to or appeal from that determination. Finally, the circuit court's
injunction is not enforceable in these land use proceedings", Hearings Officer Decision
on Remand at Pages 22-23 (emphasis in original).
Will Groves
November 5, 2009
Page 7 of 7
Both of the cluster development parcels sold. The Kuhns purchased one parcel and the Dowells
the other. The fact that the Homeowner's Agreement required by the Circuit Court case has not
been recorded is not relevant to the legality of the existing dwelling on the Dowells' property.
Perhaps it made the original sale of the dwellings illegal, but not the construction of the
dwellings. If the Dowells' dwelling is illegal under this theory, than so is the Kuhns' dwelling.
III. Conclusion.
The Hearings Officer Decision is clearly wrong and portions of the Decision should be
overturned for both legal and Deschutes County policy reasons. The Hearings Officer Decision
finding the dwelling illegal based on the location of the dwelling must be overturned because
both the Circuit Court and the Court of Appeals held that there was no requirement for the
dwelling to be sited elsewhere. The Hearings Officer's Decision cannot rely on the LM plan
submitted by the Dowells to determine that the dwelling is illegal when there is substantial
additional evidence that was ignored. The Hearings Officer's dismissal of the Church v. Grant
County case was based on faulty assumptions and must be overturned. The Dowells' dwelling is
lawfully established and must be allowed to continue to have both internal and exterior
modifications to the dwelling as permitted by DCC 15.04.130.
The Hearings Officer Decision that the establishment of a homeowner's association is irrelevant
to the legality of the Dowells' dwelling is correct and must be upheld. It is based on substantial
evidence in the record including a Condition of Approval.
Sincerely,
ll�
HELEN L. EASTWOOD
RSL/HLE/alk
Encl.
cc: Laurie Craghead (e-mail only)
Mr. and Mrs. Jeff Dowell (e-mail only)
9187-010 121.doc
BURDEN OF PROOF ON REMAND LUBA NO 2008-080
APPLICANT: Pat and Jeff Dowell
65595 Sisemore Road
Bend, OR 97701
ATTORNEY: Robert S. Lovlien
Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, OR 97709
REQUEST: Applicants request approval of Applicant's dwelling as a lawfully
established dwelling and determination that the condition of approval requiring a
homeowners agreement does not impact this building permit approval or future building
permit approvals.
CRITERIA:
Title 22 of the Deschutes County Code, County Zoning
Chapter 22.04 Introduction and Definitions
Chapter 22.16 Development Action Procedures
Chapter 22.32 Appeals
Chapter 18.40, Forest Use Zone — F.2
Chapter 22.34 Procedures on Remand
HISTORY: The history for this case is complex and is outlined in the 2008 decision by
Hearings Officer Karen Green. A summary is provided here. Applicants purchased
property that had been partitioned by the original developer. Applicants received
building approval and constructed a dwelling on the property that was inspected and
received final approval in 1995. There was no appeal of the building permit in 1995.
Because there was no appeal of the original building permit approval in1995, the time
period for the appeal has lapsed.
Nonetheless beginning in approximately 2000 the neighbors began challenging the
existing dwelling through letters to the County and code violation complaints. In
response, the Applicants filed a Declaratory Ruling in 2004 (DR -02-2) where the County
Commissioners determined that the Applicants had a buildable lot and that the side yard
setbacks were 40 feet. In 2001, the neighbors filed a civil court suit alleging that the
dwelling was illegal and that the Applicants had violated the County Code. The Civil
Circuit Court ruled in favor of the Applicants with regard to the location of the dwelling
and the code violations.
"Plaintiffs have not established any of the alleged code violations. ... Plaintiffs
have not established that the location of the building (more than 400 feet west of
the east boundary of the property along Sisemore Road) is in violation of any
BRYANT, LOVLIEN & JARVIS, PC
ATTORNEYS AT LAW, ESTABLISHED 1915
591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 W W W.BLJLAWYERS.COM
enforceable requirements. Plaintiffs have not established that the location of the
building has caused a substantial and unreasonable interference 'with the use and
enjoyment of the Plaintiffs property." Record at 117. (emphasis added)
Despite the Civil Court ruling, after the Applicants applied for and received County
approval for an interior remodel, the neighbors appealed the interior remodel permit
alleging that the dwelling was not lawfully permitted. Hearings Officer Green held that
the building permit was not a land use decision and that the Civil Case precluded
rehearing the issue of whether the dwelling was legal. The neighbors appealed to LUBA
and LUBA remanded to the County stating that
"The hearings officer decision in this matter is a land use decision.... It follows
that the county's decision must be remanded so that the hearings officer can issue
a decision on the merits if she concludes that petitioner have standing to pursue
the appeal under DCC 22.32.010(A)(2) as adversely affected or aggrieved
persons. . . . "the planning department's August 8, 2007 e-mail message
constituted a decision on behalf of the planning director to treat the building
permit and LUCS as a land use action for purposes of appeal." LUBA 2008-080
The issues on remand include: 1) whether the Petitioners are adversely affected or
aggrieved persons, 2) whether the dwelling is lawfully established and 3) whether the
condition of approval and court case requiring a homeowners agreement impact the
determination of whether the dwelling is lawful.
The Applicants address the specific criteria relevant to the remand below.
FINDINGS:
22.32.010. Who may appeal.
A. The following may file an appeal:
2. In the case of an appeal of an administrative decision without prior
notice, a person entitled to notice, a person adversely affected or
aggrieved by the administrative decision, or any other person who has
filed comments on the application with the Planning Division; and
FINDING: Petitioners were not entitled to notice of the interior remodel of their
neighbors' dwelling. Nor were they adversely affected or aggrieved by the interior
remodel of their neighbors dwelling. The remodel did not impact any of the exterior of
the existing and approved dwelling and therefore the Petitioners were not adversely
affected or aggrieved by the building permit approved. Nonetheless, the Applicants want
to resolve Petitioners arguments once and for all and therefore address the other issues
that were remanded.
BRYANT, LOVLIEN & JARVIS, PC
ATTORNEYS AT LAW. ESTABLISHED 1915
591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3336 WWW.BWLAWYERS.COM
15.04.130. Building Permit Issuance Zoning Conformance Planning Department
Approval.
No building permit shall be issued for the construction, reconstruction, remodeling,
enlargement, alteration, repair or conversion of any dwelling unit containing two or
more dwelling units, commercial or industrial structure, or public use structure
until plans therefor, including plot plan, are submitted to the Planning Department
and approved by it as conforming to the zoning ordinances of the County.
FINDING: The issue in this case is whether the Planning Department inappropriately
determined that the existing dwelling conformed to the zoning ordinances of the County.
In fact, the County Building Department failed to submit the building permit to the
County Planning Department for approval and therefore there was no signed land use
compatibility statement prior to the issuance of the building permit. However, since this
issue is being resolved in this LUBA remand that fact is irrelevant and Applicants request
that the Hearings Officer now determine that the existing dwelling is lawfully established
and conforms to the zoning ordinances of the County.
Lawfully Established Dwelling
Here, an appropriate review of county zoning ordinances shows that the Applicant's
dwelling met the zoning code requirements at the time that it was constructed. None of
the conditions of approval for LM 92-9 required compliance with a 400 foot setback. In
fact, the decision itself states that the Applicant plans to build a "1468 square foot
dwelling residence within 1/8 of a mile of the designated scenic road, Sisemore Road."
One eighth of a mile is 660 feet. The dwelling is constructed within one eighth of a mile
from Sisemore Road. The applicant met the conditions of approval for its dwelling by
obtaining a building permit, obtaining approval for sewage disposal, constructing the
dwelling where noted on the landscape management application, and constructing the
addition within a year of the approval. The dwelling received final sign off from the
building department in 1995 and this final sign off approved of the dwelling where it was
constructed. This decision was never appealed and it was not until 2000 that the
Petitioners began challenging the location of the dwelling.
In September 2000 in response to Petitioners' attorney, Deschutes County Legal Counsel
wrote a letter regarding the alleged failure to comply with a 400 foot setback as a
condition of approval stating that
"The land use decisions do not make the 400 foot setback a condition of approval.
The only suggestion of a 400 foot setback was made by the developer as a means
of addressing issues raised by the Oregon Department of Fish and Wildlife. Since
the 400 -foot setback is not a condition of approval, it is not a basis of initiating a
code violation proceeding. . . . Alternatively , if there was some basis for
imposing the 400 -foot setback on the lots, I believe that there is a valid question
as to whether the lot line adjustment had the effect of relieving the Kuhn
residence from the requirement of being more than 400 feet from the portion of
Sizemore Road abutting the lot as initially configured. A drawing in the record
BRYANT, LOVLIEN & JARVIS, PC
ATTORNEYS AT LAW, ESTABLISHED 1915
591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWWBULAWYERS.COM
shows that the Kuhn residence is more than 400 feet from the original portion of
Sizemore Road used for the purpose of showing the 400 -foot setback. I did not
find any evidence in the record that the setback requirement in Cu 80-22 was
modified by reason of the lot line adjustment. Conversely, if the lot line
adjustment allows the Kuhn residence to recalculated set from a new portion of
Sizemore Road, it would appear that the same portion of Sizemore Road would be
used for any of the uses allowed by the cluster development." (emphasis added)
Record at 234.
Despite this letter, the Petitioners continued to request that the County take some action
against the Applicants and filed numerous code violation complaints. Finally, Petitioners
in another attempt to get the County to require the building to be tom down filed a civil
action. However, the Judge held in favor of the Applicants stating
"Plaintiffs (Petitioners) have not established that the location of the building
(more than 400 feet west of the east boundary of the property along Sisemore
Road) is in violation of any enforceable requirements. Plaintiffs have not
established that the location of the building has caused a substantial and
unreasonable interference with the use and enjoyment of Plaintiffs property."
Record at 117.
There are no Deschutes County Code provisions that require the building to be setback
400 feet. Therefore, the dwelling that was constructed and approved in 1995 is lawfully
constructed. Given that the dwelling is lawfully permitted and constructed modifications
to the dwelling are permissible.
In Church v. Grant County, 37 OR LUBA 636, 652 (2000), a County mistakenly
approved a partition allowing 5 acre lots in an area zoned for 10 acre lots. However no
appeals were filed. A year later the County adopted a new ordinance to try to fix its
mistake. LUBA held that ORS 92.285 "prohibits the county. from retroactively revoking
otherwise final and unreviewable partition approvals, even if the county does not apply
new standards or criteria in doing so." Likewise, here, the County cannot retroactively
revoke its final 1995 approval of the dwelling despite Petitioners attempt to force them to
do so. There were no appeals of the original building permit final decision. Therefore,
the original building permit final decision allowing the dwelling must stand.
Impact of Civil Court Case requiring joint homeowner's agreement
Petitioners' allegations that the Applicants failed to complete the requirements of the
original partition because it failed to record a homeowner's agreement is a red herring. In
fact, the Petitioners conceded that the County understood in 1997 that the joint
homeowner's maintenance agreement requirement (DCC 18.128) was met by the existing
deed restrictions of record. Rec. at 756. Petitioner stated, "the deed restrictions of record
met your definition of the necessary joint homeowners maintenance agreement." Rec. at
756. Although Petitioners continue to be concerned that the deed restrictions of record
BRYANT, LOVLIEN & JARVIS, PC
ATTORNEYS AT LAW, ESTABLISHED 1915
591 SW Mill View Way PO Box 880 Bend, Oregon.97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM
were not sufficient, nothing in Deschutes County Code requires anything more than the
deed restrictions of record. DCC 18.128.200 (7) states:
"The open space of the proposed development shall be platted as a separate parcel
or in common ownership of some or all of the clustered lots or parcels. For any
open space or common area provided as a part of the cluster development, the
owner shall submit proof of deed restrictions recorded in the County records. The
deed restrictions shall preclude all future rights to construct a residential dwelling
on the lot, parcel or tract designated as open space or common area for as long as
the lot, parcel or tract remains outside an urban growth boundary. The deed shall
also assure that the use of the open space shall be continued in the use allowed by
the approved cluster development plan, unless the whole development is brought
inside an urban growth boundary. If open space is to be owned by a homeowner's
association or if private roads are approved, a homeowner's association must be
formed to manage the open space and/or road areas. The bylaws of the
association must be recorded prior to or concurrent with the filing of the final plat.
If the open space is located within the Wildlife Area Combining Zone, the
management plan for the open space must be recorded with the deed restrictions
or bylaws of the homeowner's association." (emphasis added)
Therefore, the County is correct that it has no regulatory authority to require any
additional agreement between the parties. Rec. at 576. Nothing in that code provision
requires an agreement other than deed restrictions or requires a homeowners association
unless the open space is going to be deeded to the homeowners association. Here, the
open space is simply in common ownership between the two neighbors. Additionally,
there is no evidence in the record that the Applicants have in any way violated the deed
restrictions for the common property.
Finally, given that Deschutes County was not a party to the Circuit Court case and given
that the Court required more than is required by County Code, Deschutes County is under
no obligation to enforce the Circuit Court order to enter into a homeowner's agreement.
The Circuit Court's decision may be enforced through the Circuit Court but it cannot be
used to prohibit further construction on an approved dwelling. The signing and recording
of the homeowner's agreement has no bearing on the legality of the Applicants' dwelling.
Conclusion:
Applicants have provided substantial evidence for the hearings officer to find that the
dwelling is lawfully established and that the homeowner's agreement is a separate issue
that does not impact the legality of the existing approved and lawfully constructed
dwelling. Therefore, the Petitioners' appeal of the building permit allowing
modifications to the dwelling must be dismissed.
BRYANT, LOVLIEN & JARVIS, PC
ATTORNEYS AT LAW, ESTABLISHED 1915
591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 3824331 fax (541) 389-3386 WWW.BLJLAWYERS.COM
Respectfully submitted this 21st day of May, 2009.
BRYANT, LOVLIEN & JARVIS, P.C.
By: /8/ ROBERT S. LOTLIE1
ROBERT S. LOVLIEN, OSB #74197
Of Attorneys for Claimants
BRYANT, LOVLIEN & JARVIS, PC
ATTORNEYS AT LAW, ESTABLISHED 1915
591 SW Mill View Way PO Box 880. Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLLAWYERS.COM
•
Wiliam John Kuhn
Martha Leigh -Kuhn.
PO Box 5996 Bend, Oregon 97708-5996 " Phone: (541) 389-3676
Wednesday January 1997
E�.�... .
Kevin Harrison, Principal PIanner kevinh@deschutes.org
Dennis Perkins, Building Safety Director denisp@deschutes.org
Deschutes County Community Development Department w 541 388 6576
Administration Bldg.
Bend, Oregon 97701
Regarding 16 I1 19 Tax Lots 100, 200, & 300 at 65575 & 65595 Sisemore Road part of a cluster
development on Sisemore Road within the Tumalo Winter Deer Range
DearDennis and Kevin,
Thank you for meeting with us yesterday afternoon to answer our questions regarding our
neighbors tax lot #100, our tax lot #200 and our joint half interest in lot #300. We appreciate your
time, candor, and most of all, we respect the delicacy ofyour positions.
Regarding the joint homeowners maintenance agreement (DCC Chapter 18.128, Conditional Use,
Section P, Cluster development #3 b and c) we are stdl left with a major problem. Thu deed :M
restrictions of record met your definition of the necessary joint homeowners maintenance
agreement. Unfortunately the wording on this accepted document is so vague on certain points of
the restrictions (#1 and #6) that it becomes extremely difficult and expensive for the parties ofthe
agreement to enforce compliance. The other problem, from our perspective, is that this
maintenance agreement does not include crucial agreements as to who will pay taxes and when on
the joint property. We think it's pretty basic to "maintenance" to have this. (In order to have the .
right to mow the lawn you must have the owners authority to mow it, If the owners don't pay
Their taxes they won't be able to maintain it in any other way. Defining who pays the taxes to us is
the first and most basic definition of maintenance.)
We would Like to be able to submit a new agreement signed by the current owners which would
hopefully clarify the old agreement (ggt change the intent or be less restrictive than the recorded
deed restrictions/maintenance agreement) and add the taxes provisions. We have no certainty this
can be accomplished, but we are convinced it is necessary.
We formally request that the County decide, based on our concerns expressed at the meeting
Tuesday and this letter, that the current joint homeowners agreement does not sufficiently meet
DCC Chapter 18.128 requirements and a new one is required which will not abrogate any
restriction or intent ofthe old one, but add to it and clarify the original restrictions. We also
request that until such new agreement is submitted and accepted by the County, any further
permit application not be approved.
c V sitdir_sr t atka
Pep b all a
'_•PAGE o�� 14:16
F.XHfBiT - TO -MD 0500210
LUBA #2008-080
000756
We would like our letter of request to be made part of the permanent file of Tax Lot 4100 at
65595 Sisemore Road. We feel that any further permit application process regarding this address
should at least consider that we have filed this formal request. We feel that to be considered a
joint homeowners maintenance agreement, it must include reference as to who will pay the taxes
on the joint property. We further wish to reserve our rights to object to any farther permit or
building, ctivity on this property until such a document is signed and included la the peermanent
address file of Tax Lot #100 at 65595 Sisemore Road.
We also protest any "Phase JT building activity beginning without having a new agreement in
place that references who pays the taxes and clarifies the language of the deed -
restriction/maintenance agreement.
We hope you consider our request and perhaps consider a refining of the County's interpretation
of the code. If there was a template with some guidelines written out for what is necessary for
cluster development's homeowners' or management plan, situations like ours could perhaps be
prevented.
Sincerely,
/%
William John ' & Martha Leigh Kuhn
WJK/k
This letter is being both e-mailed and sent by snail -mail.
ovasnsV,y►.tsaaa.
Pt2a2 .it Oat 39 tr22
EXHIBIT ALPAGE rc-MD 050021C
LUBA #2008-080
000757
William John Kuhn
Martha Leigh Kuhn
PO Box5996 Bend., Oregon 97708-5996 Phone: (541) 389-3676
Friday 6 November 2009
To: Deschutes County
Tom Anderson, CDD Director
Nick Lelack, AICP, Planning Director
Kevin Harrison, Principal Planner Current
Will Groves, Senior Planner, and
Laurie Craghead, Assistant Legal Council
Cover Letter to Deschutes County Staff.
Because we are not permitted to address the County Commission directly we would
appreciate your cooperation in supplying your knowledge and experience on the issues
we have had to deal with for so long.
Itis not our expectation that this cover letter be made part of the record, but that is your
decision to make.
A. Kuhn appeal A-09-5
Our appeal A-09-5 of that portion of Hearings Officer Karen Green's decision revolves
around the absolute lack of a homeowners' agreement and association. After reading the
minutes of the 16 September BoCC work session regarding our appeal it was more than
apparent that there is complete misconception on the part of Commissioner Dennis Luke
of what is involved. He seems to believe that we are asking the County to enforce our
deed restrictions. As you are aware this is absolutely not the case.
We have repeatedly shown the County PL -15 Article 8 Section 050 Specific Use
Standards (16) Cluster Development (C) (c) "A written agreement establishing an
acceptable homeowners association assuring the maintenance of common property
in the development." As you can see, public law in 1980 did not include the words
"prior to the sale".
You are all aware that as late as August and September 2004 the County was still
refusing to record our final plat map. We spent those two months developing and proving
our case that the final plat was REQUIRED to have been recorded by the County
Planning Director. We had to show the County ORS 92.025 and finally had to revert to
the threat that we were not going to pay our taxes until the map was recorded. We reall CANNED
consider the County's actions and attitude to our plight to be pathetic and reprehensible.
The legal department reversed its decision. NO V 1 0 2009
C:\Docs\prop65575\Dowell\Legals & Decisions Court & County\2009 LUBA 2008 Remand \20091106 CoverLetter to County Staff.doc page 1 11/6/2009
Our first request:
Please show the Commissioners, and especially Commissioner Luke, LUBA
record page number 114 - PL -15 8.050.16.C.c
B. Dowell appeal A-09-4
Regarding the Dowells' appeal A-09-4 of that portion of Hearings Officer Karen Green's
decision:
Many mistakes were made during the time our cluster development was being created in
1979 and 1980. As Paul Blikstad said during one hearing, "the county land use system
was in its infancy back then." We recognize this and understand, but that does not mean
that those old mistakes should be ignored or swept under the rug. We can easily give you
a list of 35 specific mistakes and oversights.
In January 1997 we asked for help from the county in order to deal with an unpleasant
situation regarding the "no dog" provision in our deed restrictions. That unpleasant
situation over the years turned into refusal to communicate with us, false testimony given
in civil court, threats to burn us out, harassment, assault, and further harassment. All we
ever did was to try to take the high road. We never did anything illegal or unethical.
As a result of our filing code violation complaints in March 2000 certain county
employees, in our opinion, defrauded us of our right of enforcement of our final plat map.
One county commissioner and two "respected" county department heads in an attempt to
ignore the maximum build line said that the 400' line would be measured across our
property. This is of course is a perversion of the truth. Please see LUBA record page
number 679 oversize & color pages.
PL-14_1.070_Def 09_BuildingLine.gif
erection 1.070. DEF NITIDN , Aa usadin this ordinance,
the following Sold and Pliras+ '_.-Sria ' mean;
(9) Su.ildine Line. A line on a plat ind.lca,ting the
TIEN-E;i6R-Tihich buildings or structures may not
be rested. IZ no line is shown ao the plat, the
building line shall be that set forth in the County
Zoning Ordinance.
As a result of a recent renters obsession with fire, where he would bring truck loads of
waste to the property, including tree trimmings, demolition waste, and old mattresses, set
huge bon -fires and receiving no help from the owners of the property, the local fire chief,
or CDD we decided to take a No Tolerance approach with the other land owners AND
with the County. We asked Commissioner Mike Daly for his help. He gave us some
insight and we followed it. Please see LUBA record pages numbered 136, 137-138, 222,
684-687, and oversize & color pages.
C:\Docs\prop65575\Dowell\Legals & Decisions Court & County\2009 LUBA 2008 Remand\20091106 CoverLetter to County Staff doc
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Our second request:
We are asking you to please prevent the past mistakes from being covered
up. We are asking you to support Hearings Officer Karen Green's decision
of the 400' line.
The Dowells, by placing their structure where they did, without regard to the numerous
warnings and admonitions from the County, are clearly in the wrong. To ignore these
issues puts the County at jeopardy. It has clearly put us in harms way. The County needs
to admit they made a mistake by not inspecting properly. The County needs to correct
this situation.
As you are also well aware, even if every decision were to be in our favor, we will still
have our hands full as we try to move forward with the Dowells. We still have many
years ahead of us dealing with people who would give false testimony in civil court.
Thank you for our consideration of our requests.
1/14)64 Xi'L
Ler
William John Kuhn
Martha Leigh Kuhn
C:\Docs\prop65575\Dowell\Legals & Decisions Court & County\2009 LUBA 2008 Remand\2009I 106 CoverLetter to County Staff.doc
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0-E5
October 15, 2009
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
To: Deschutes Board of County Commissioners
From: Will Groves, Senior Planner
Subject: Board consideration to hear or not hear appeals (A-09-4, A-09-5) of a
Hearings Officer decision reversing the Planning Division's decision to
issue a Land Use Compatibility Statement (LUCS) and building permit to
remodel the Dowelis' existing dwelling on the subject property (A-07-9).
BACKGROUND
In Order 2009-061 the Board agreed to hear appeals (A-09-4, A-09-5) of a Hearings
Officer decision reversing the Planning Division's decision to issue a LUCS and building
permit to remodel the Dowells' existing dwelling on the subject property (A-07-9). In that
Order the Board specified that:
Section 2. The hearing on these appeals shall be limited de novo. In
addition to materials presently in the record of County Files numbers A-
07-09, A-09-4 and A-09-5, the Board will receive from any party to this
proceeding and consider written records, identified and marked as
exhibits as having been submitted in Kuhn v. Dowell (Deschutes County
Circuit Court Case No. 01 CV0233MA, 2001); written evidence
demonstrating the setbacks of the Kuhn residence and the Dowell
residence from Sisemore Road and relevant portions of oral testimony in
the form of certified transcripts from Kuhn v Dowell.
Section 3. Except as otherwise provided in Section 2, no other oral orsc-1�EI
written evidence will be received. Written evidence will be received no
later than October 16, 2009. NOV 1 0 2009
Quality Services Performed with Pride
Staff has generated a composite illustration, attached to this memo, to clearly show
setbacks of the Kuhn residence and the Dowell residence from Sisemore Road. This
figure was created from the Colvin survey (presently in the LUBA record on page 233),
Partition Plat 2004-80 (presently in the LUBA record on page 537), and Septic Permit
approval number S26383. The figure includes setback tables for each residence. The
Kuhn residence setbacks are as stated on Septic Permit approval number S26383. The
Dowell setbacks are scaled measurements from the Colvin survey.
Staff has included the platted 400 -foot setback line from Sisemore Road. The 400 -foot
setback line is a maximum building setback from Sisemore Road. Neither residence
falls wholly within the platted 400 -foot setback line. Staff notes the platted setback line
ends in the middle of the Kuhn residence. This is because the platted setback line pre-
dated lot line adjustment LL -87-21 on the Kuhn property. To see the historical
configuration of the Kuhn property, please refer to Partition Plat 2004-80 (presently in
the LUBA record on page 537).
Staff has also included a 400 -foot setback line buffered from Sisemore Road. This is a
scaled measurement made by Staff, based on the Colvin Survey that delimits all areas
on the subject properties within 400 feet of Sisemore Road. This buffered measurement
method, rather than relying simply on the platted setback line, was used for the approval
of the Kuhn residence (LM -88-7, B26266). Staff notes that under this measurement
method, both dwellings fall wholly within 400 feet of Sisemore Road.
• •' • • • 400' Setback Line, As Platted
Dowell Residence
Kuhn Residence
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