HomeMy WebLinkAboutDoc 2010-128 Dowell DecisionA-09-4, A-09-5, and A-07-9 Document No. 2010-128
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For Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBER: A-09-4, A-09-5, A-07-9
APPELLANTS: William and Martha Leigh Kuhn
P.O. Box 5996
Bend, Oregon 97708
APPLICANTS/
PROPERTY OWNERS: Jeff and Pat Dowell
10705 N.E. 38th Ave
Vancouver, Washington 98686
APPLICANTS’
ATTORNEYS: Robert Lovlien
Helen Eastwood
Bryant Lovlien & Jarvis
P.O. Box 880
Bend, Oregon 97709
APPELLANTS’
ATTORNEY: Pamela Hardy
1629 N.W. Fresno Avenue
Bend, Oregon 97701
REQUEST: Appellants appeal 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).
STAFF REVIEWER: Will Groves, Senior Planner
RECORD CLOSED: November 6, 2009
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 15 of the Deschutes County Code, Buildings and Construction
1. Chapter 15.04, Buildings and Construction Codes and Regulations
* Section 15.04.150, Building or Mobile Home Placement Permit Issuance-
Zoning and Subdivision Conformance
REVIEWED
______________
LEGAL COUNSEL
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B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.08, Basic Provisions
* Section 18.08.010, Compliance
2. Chapter 18.40, Forest Use Zone (F-2)
* Section 18.40.020, Uses Permitted Outright
3. Chapter 18.84, Landscape Management Combining Zone (LM)
* Section 18.84.030, Uses Permitted Outright
4. Chapter 18.88, Wildlife Area Combining Zone (WA)
* Section 18.88.030, Uses Permitted Outright
5. Chapter 18.144, General Provisions
* Section 18.144.050, Violation
C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.04, Introduction and Definitions
* Section 22.04.020, Definitions
2. Chapter 22.16, Development Action Procedures
* Section 22.16.010, Review of Development Action Applications
* Section 22.16.030, Review of Development Action
3. Chapter 22.24. Land Use Action Hearings
* Section 22.24.030, Notice of Hearing or Administrative Action
4. Chapter 22.32, Appeals
* Section 22.32.010, Who May Appeal
* Section 22.32.015, Filing Appeals
* Section 22.32.020, Notice of Appeal
* Section 22.32.050, Development Action Appeals
5. Chapter 22.34, Proceedings on Remand
* Section 22.34.020, Hearings Body
* Section 22.34.030, Notice and Hearings Requirements
* Section 22.34.040, Scope of Proceeding
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II. FINDINGS OF FACT:
The Board of County Commissioners (“Board”) adopts and incorporates herein by reference the
findings of fact proposed by the Hearings Officer in the August 17, 2009, decision, as revised and
supplemented herein.
A. Procedural History: Procedural history prior to August 17th, 2009 is documented in the
Hearings Officer’s decision and is incorporated herein by reference. In a decision dated
August 17th, 2009, the Hearings Officer reversed the Planning Division’s decision to issue a
LUCS and building permit to remodel Jeff and Patricia Dowells’ existing dwelling on the
subject property. A timely appeal was filed by the Dowells (A-09-4) on August 28, 2009 and
by William and Leigh Kuhn (A-09-5) on August 31, 2009. In Order 2009-061, dated October
5, 2009 and incorporated herein by reference, the Board agreed to hear both appeals limited
de novo, limited to the specific type of new evidence listed in the order. Pursuant to DCC
22.32.025, the appeals were consolidated and noticed and heard as one proceeding. As
specified in Order 2009-061, the written record closed on November 6, 2009. On January
25, 2010, the Board deliberated and rendered a decision that is documented in this findings
and decision document.
III. CONCLUSIONS OF LAW:
A. Adoption of Hearings Officer’s Conclusions of Law
FINDINGS: The Board adopts and incorporates herein by reference the conclusions of law adopted
by the Hearings Officer in the August 17, 2009, decision, as revised and supplemented herein.
MERITS OF APPEAL
B. Title 15 of the Deschutes County Code, Building and Construction
1. Chapter 15.04, Building and Construction Codes and Regulations
a. Section 15.04.150, Building or Mobile Home Placement Permit –
Zoning and Subdivision Conformance
No building permit or mobile home placement permit shall be issued
if the parcel of land upon which the building or mobile home is to be
erected or located on, or is located on, would be in violation of DCC
Title 17, the subdivision title or DCC Title 18, the zoning title. A
subdivision shall be deemed in violation of the zoning ordinance for
the purpose of issuing building permits so long as roads and other
improvements remain uncompleted in accordance with the
applicable subdivision provisions. (Emphasis added.)
FINDINGS: The Land Use Compatibility Statement (LUCS) and building permit subject to this
appeal were issued pursuant to this section, which was adopted by the county to comply with the
state agency coordination requirements of ORS 197.180 and OAR Chapter 660, Divisions 30 and
31. The above-underscored language in Section 15.04.150 states the review required by this
code section is directed at determining the lawfulness of the parcel on which the building is to be
located.
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The subject parcel was created as part of a cluster development and partition (CU-80-22/MP-79-
232). The conditional use approval for the cluster development, CU-80-2, included a condition of
approval that required:
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.
Initially, the Board finds that PL-15 was the operative zoning ordinance when CU-80-2 was
approved. PL-15 was later codified as Title 18. Thus, the Board finds that DCC 15.04.150(a)
applies to the conditions of approval detailed in CU-80-2.
The Board finds that, while the property has been sold, no such homeowners association or
agreement assuring the maintenance of common property in the partition has been recorded.
The recorded deed restrictions, dated July 20, 1987, do not include provisions to assure the
maintenance of common property in the partition nor do they create a homeowners association.
Although the condition was to be fulfilled prior to the sale of the property, the Board cannot ignore
such a condition merely because the property was sold without fulfilling that condition. Many
other land use decisions have included prior to sale conditions. To find that no violation occurred
if they are not fulfilled prior to sale would render such conditions useless and superfluous. No
applicant would take seriously any prior to sale condition knowing that the County will not enforce
it if they ignore it.
The Dowells’ requested building permit for an interior remodel of their existing dwelling is an
alteration of a building in violation of a permit, specifically condition #2 of CU-80, which permitted
both the creation of the subject parcel and the development of a dwelling on the subject parcel.
The County’s issuance of a building permit for the dwelling without that homeowner’s agreement
in place does not, however, automatically excuse the fulfillment of that condition. At the time, no
official governing body decision on the matter had occurred and staff issued that sign-off using the
best information they had at the time. The County is not obligated, however, to compound its
previous mistakes in issuing a land use compatibility sign-off for the remodeling permit.
Therefore, the Board finds that the parcel violates DCC Title 18 because of the lack of the
existence acceptable homeowner’s association regulations or agreement between both property
owners for the maintenance of the open space parcel. Because the parcel violates DCC Title 18,
the issuance of the remodeling permit was also in error. Moreover, the Board finds that any
existing building permits within the partition were issued unlawfully.
The Board finds that it must also determine the meaning of “acceptable.” In this case,
“acceptable” means acceptable to the County. That is not to say that the County will enforce the
agreement. The County will review the agreement to determine that it “assures the maintenance
of the common property.”
C. Title 18 of the Deschutes County Code, the County Zoning Ordinance
1. Chapter 18.08, Basic Provisions
a. Section 18.08.010, Compliance
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A. A lot may be used and a structure or part of a structure may
be constructed, reconstructed, altered, occupied or used only
as DCC Title 18 permits. No new structure shall be
constructed on any lot of less area than the minimum for the
zone in which it is located, except as provided by DCC Title
18 and ORS 21.203 et. seq.
2. Chapter 18.40, Forest Use Zone – F-2
a. Section 18.40.020, Uses Permitted Outright
* * *
M. Alteration, restoration or replacement of a lawfully
established dwelling that:
1. Has intact exterior walls and roof structure;
2. Has indoor plumbing consisting of a kitchen sink,
toilet and bathing facilities connected to a sanitary
waste disposal system;
3. Has interior wiring for interior lights;
4. Has a heating system; and
5. In the case of replacement, is removed, demolished or
converted to an allowable use within three months of
completion of the replacement dwelling.
3. Chapter 18.144, General Provisions
a. Section 18.144.050, Violation
The location, erection, construction, maintenance, repair, alteration
or use of a building or structure or the subdivision, partitioning or
other use of land in violation of this title or of any permit, land use
approval or status determination issued or made under DCC Title 18
is a Class A violation.
FINDINGS: The subject parcel was created as part of a cluster development and partition (CU-
80-22/MP-79-232). The Board found above that the parcel is in violation of DCC Title 18.
For this reason, the Board also finds that dwellings within the subject partition are not lawfully
established until a written agreement is recorded that establishes an acceptable homeowners
association or agreement assuring the maintenance of common property in the partition.
As for the issue raised by the Kuhns of the maximum setback from Sisemore Road for building
the dwelling, no code provision existed in 1980 that established a maximum setback on the
subject property.
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The record indicates, however, that Mr. Barton proposed a 400-foot maximum building setback
from Sisemore Road in order to address the Oregon Department of Fish and Wildlife’s (ODFW)
concerns about protecting the Tumalo Deer Winter Range that was about to be, but had not yet
been, designated on the county’s comprehensive plan and protected through adoption of the
WA Zone (which later included a 300-foot maximum building setback from roads). It is
uncertain whether or not Mr. Barton proposed the maximum setback from the road, and showed
it on the partition plat, in order to secure the county’s approval of the partition and cluster
development or merely as a gesture to ODFW.
Thus, it is doubtful that the 400-foot designation on the 1980 plat, by itself, would have been
enforceable by the County. The Dowells, however, are now bound by that maximum setback
because, in 1992, the Dowells submitted a Landscape Management (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. Additionally, in that LM site plan approval decision,
Deschutes County planner, Paul Blikstad found that the 400-foot designation was applicable to
the property and that decision was not appealed...
The record, however, includes a number of theories regarding which portions of the subject
property fall within this 400-foot maximum setback:
1) The area between the line shown in Partition Plat 2004-80 labeled “Max. Bldg.
Setback 400’ from Sisemore Rd.” and Sisemore Road.
2) All areas on the subject property within 400 feet of Sisemore Road, as measured
from the subject property’s frontage along Sisemore Road.
3) All areas on the subject property within 400 feet of Sisemore Road, as measured
from all points on Sisemore Road, regardless of frontage.
The Board finds that the establishment of the Kuhn dwelling under County File No. LM-88-7 and
Building Permit B26266 within the subject partition set a clear precedent for using
measurements other than the line shown in Partition Plat 2004-80 as a basis of complying with
the 400-foot maximum setback. The Board also notes that the purpose of a maximum road
setback within a Wildlife Area is to minimize wildlife habitat fragmentation by keeping new
residential development adjacent to existing roads. The Board finds that this goal is not
advanced by arbitrarily tying the measurement of the 400-foot maximum setback to a specific
segment of road frontage. Therefore, the Board finds that the 400-foot maximum setback
includes all areas on the subject property within 400 feet of Sisemore Road, as measured from
all points on Sisemore Road, regardless of frontage.
The record indicates that the Dowell dwelling falls within 400 feet of Sisemore Road, as
measured from all points on Sisemore Road. Therefore, the Board finds that the Dowell
dwelling complies with the 400-foot maximum setback.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Board affirms the
Hearings Officer’s August 17, 2009decisionto REVERSE the Planning Division’s decision to
issue a LUCS and building permit to remodel the Dowells’ existing dwelling on the subject
property but on different grounds as stated above.
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Dated this _______ of ___________, 2010 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
______________________________________
DENNIS R. LUKE, Chair
______________________________________
ALAN UNGER, Vice Chair
ATTEST:
______________________________________
Recording Secretary
______________________________________
TAMMY BANEY, Commissioner