HomeMy WebLinkAboutOutward Bound AppealDeschutes 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 November 22, 2010
Please see directions for completing this document on the next page.
DATE: November 8, 2010
FROM: Paul Blikstad Department CDD Phone # 6554
TITLE OF AGENDA ITEM:
Public hearing on an appeal of the County Hearings Officer's decision on NCU-10-3/SP-10-7, for a
Nonconforming Use Alteration and Site Plan for wooden cabins to replace canvas tents on existing
platforms at the Outward Bound facility on a 46.59 -acre parcel in the Exclusive Farm Use Zone..
PUBLIC HEARING ON THIS DATE? Yes
BACKGROUND AND POLICY IMPLICATIONS:
The County Hearings Officer approved the replacement cabins on the portion of the property outside of
the Sensitive Bird and Mammal Habitat (SBMH) Combining Zone, and denied the replacement cabins
that are located within the SBMH combining zone. The applicant has appealed the denial and the
Board has accepted review of the appeal.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
The Board allowed a de novo review of the application. The Board will hold a de novo hearing with all
parties receiving notice of the hearing.
ATTENDANCE: Paul Blikstad, CDD; and Laurie Craghead, Legal Counsel
DISTRIBUTION OF DOCUMENTS:
Planning staff will mail out the Board's written decision on this matter.
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
DATE: October 13, 2010
TO: Board of County Commissioners
FROM: Paul Blikstad, Senior Planner
RE: Appeal of Hearings Officer's decision on NCU-10-3/SP/10-7
BACKGROUND
Outward Bound submitted applications for a nonconforming use alteration to allow the Outward
Bound (OB) facility to replace canvas tents placed on platforms with wooden cabins (on the
same platforms), and a site plan for the cabins. The tents/cabins are used for sleeping and
storage of personal belongings for Outward Bound instructors, when they are not out in the Field
teaching courses.
A public hearing on the applications was scheduled before the County Hearings Officer on July
6, 2010. The written record was left open until August 24, 2010 for additional written testimony.
The Hearings Officer issued her written decision on September 29, 2010, approving the site
plan in part, and denying the cabin replacements for that portion of the OB property that lies
within the Sensitive Bird and Mammal Habitat (SBMH) Combining Zone associated with a
Golden Eagle nesting site located north of the OB property. The applicant appealed the
decision within the 12 -day appeal period.
The County Code and State law also require a maximum 150 -day review period for land use
proceedings with the County. The Hearings Officer found that the 150 -day review period will
end on December 27, 2010. There appears to be adequate time to hear the appeal.
DECISION
The Hearings Officer approved that portion of the site plan for the cabins that lie outside of the
SBMH zone. She denied that part of the application for the cabins within the SBMH zone,
based on her findings that the ESEE analysis for this Golden Eagle site prohibited additional
structural development within the sensitive habitat area on the OB property. The findings for
this are on pages 23-28 of her decision. The interpretation of this policy in the ESEE analysis is
paramount to the decision.
Additionally, the Hearings Officer determined that the proposed change from canvas tents to
wooden cabins did not constitute an alteration of a nonconforming use, because she
Quality Services Performed with Pride
I
determined that this change did not constitute a change in the nature or extent of the use of the
property. The cabins are to be used for the same purpose as the tents were — to provide
sleeping quarters and storage of personal items for OB instructors. The Hearings Officer went
on to find that even if the proposed change from canvas tents to cabins did constitute an
alteration of a nonconforming use, the criteria for that alteration were met (i.e. no greater
adverse impact on the neighborhood, provided the cabins were stained a earth tone color).
APPEAL
The applicant appealed the decision and has requested de novo review of the decision. The
notice of appeal lists the reasons for the appeal, which are summarized as:
/ The Hearings Officer's Interpretation of the ESEE is incorrect as a matter of law.
✓ The Hearings Officer's interpretation of the ESEE violates the Equal Protection
Clause of the Fourteenth Amendment.
/ The applicant appeals the wording of Conditions of Approval nos. 5 and 11.
/ Economic hardship, Unequal treatment.
I am submitting for your review the following:
• The applicant's notice of appeal
• Hearings Officer's decision
■ Colored map showing the location of the Eagle's nest and the OB site, as well as the
map from the ESEE analysis
All of the materials in the file are available for review, including the letters of opposition and
photographs from neighbors, in LAVA. The tax account number for the OB site is 14-12-22D,
500, should you wish to review them.
Please contact me at your convenience if you have any questions. I have scheduled a
discussion on this appeal for Wednesday, November 3, 2010, for the Board to decide whether
to hear the appeal, at the Board's work session.
0-r ES
I�,, a Community Development Department
-( Planning Division
117 NW Lafayette Avenue, Bend, OR 97701-1925
(541) 388-6575 - Fax (541) 385-1764
http://www.deschutes.org/cdd
APPEAL APPLICATION
FEE:
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating the color
areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code.
The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the
above may render an appeal Invalid. Any additional comments should be Included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant Is eligible to file an appeal (DCC Section 22.32.010)
or whether an appeal is valid. Appellants should `seeeek their own legal advice concerning those issues.
Appellant's Name (print):((())
v * Phone: ( )
Mailing Address C/O i ii✓7 Ak he l &400 1..w g J� ¶ City/State/Zip: R t 09- 11-11 Sb
Land Use Application Being Appealed: 59— �C7^ T
Property Description: Township12. ,Se
lLI Range lction Z?--_ Tax Lot —�1 S�
Appellant's Signature: . �� —�'; � a��! �Q 1 .,l :R./AAA—
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNE11C TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(over)
7/09
1. Statement of Reasons on Appeal
A. Hearings Officer's Interpretation is Incorrect as a Matter of Law
The Hearings Officer's decision is in error in three fundamental ways. First, the
Hearings Officer erroneously concluded that the "no additional structural development"
restriction set forth in Section 5(1) of the ESEE Findings and Decision – Site DE0009-00
("ESEE") applies to structures other than single family dwellings. The plain language of Section
5(1) of the ESEE applies only to single family dwellings and prohibits any new residential
development on the subject property. As further detailed in the Applicant's submittals to the
Hearings Officer, the adopted interpretation violates the interpretive framework of PGE v.
Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993).
Second, the Hearings Officer's interpretation that the ESEE prohibits additions to
structures on the Applicant's property ignores the plain language of the ESEE which expressly
contemplates "activities for expansion, maintenance [and] replacement of existing structures" on
all lots within the sensitive habitat area. The Hearings Officer's interpretation prohibits any
alteration of the existing structures on the Applicant's property, but would allow the other 20
property owners within the sensitive habitat area to expand, maintain and replace existing
structures. In other words, the Hearings Officer's interpretation imposes a strict ban only on the
Applicant, and leaves the door wide open for the remaining property owners—even those in
closer proximity to the eagle nest—to build and expand the structures on their property.
Third, the Hearings Officer's interpretation that the no "additional structural
development" restriction prohibits both new structures and expansion of existing structures
ignores the plain language of the ESEE and will lead to an absurd result that is inconsistent with
both the policy and express language of the ESEE, in violation of State v. Vaquez -Rubio, 323 Or
275, 917 P2d 494 (1996). One primary tenant of statutory construction is that a body
interpreting a statute will attempt to avoid absurd results. Under Oregon law, in construing two
or more plausible meanings, the reviewing body is required to refuse to adopt the meaning that
would lead to an absurd result. Adoption of the Hearings Officer's interpretation will lead to an
absurd result.
In total, there are 20 separate properties subject to the ESEE, with 13 of these
properties being subject to setback restrictions. Of these 13 properties, six properties to the north
of, and across the river from, the subject property are permitted to build residential structures,
garages and accessory structures in closer proximity to the eagle nest than the closest structure
on the Applicant's property. Under the ESEE, as long as these property owners adhere to the
building setback, they may build, expand, modify, tear down or rebuild any structure on their
property. Under the Hearings Officer's decision, however, only the Applicant is prohibited from
undertaking any of these actions. The Hearings Officer concluded that the addition of any
structural component to the structures on the Applicant's property would result in additional
"structural development." Consequently, the Applicant would be required to maintain the exact
tent platforms and tent frames on each platform in perpetuity. The Applicant could not add
additional support beams, could not add a railing, could not add anything that resulted in a new
structural component. In essence, the Applicant is locked in perpetuity to the existing structures
on the property. The absurd result in the adoption of this interpretation is simply the fact that the
1 ::ODMA\PCDOCS\PORTLAND\730721\1
Applicant can do nothing, while neighbors—including those closer to the eagle nest can do as
they please. It simply makes no sense that an owner with a house closer to the nest can demolish
a house and double its size, while the Applicant can do nothing but maintain tent structures.
The proper interpretation, and one that does not lead to an absurd result, is to treat
all the property owners within the sensitive habitat area the same. If a property owner in closer
proximity to the nest can double the size of its house, build a new garage and accessory
structures, at a bare minimum, the Applicant should be permitted to replace tent structures with
modest sheds on existing platforms.
B. Hearings Officer's Interpretation Violates Equal Protection Clause
The Hearings Officer's interpretation results in a violation of the equal protection
clause of the Fourteenth Amendment. As discussed above, under the Hearings Officer's
decision, property owners with homes and accessory structures in closer proximity to the eagle
nest site than the structures at issue, are permitted to build, modify, expand any residential or
accessory structure, provided that such structures observe the setback limits set forth in the
ESEE. At least six property owners are able to build residential and accessory structures in areas
closer to the eagle nest than the structures at issue. These include properties to the north of and
across the river from, the structures at issue. These owners can modify, alter, expand, rebuild,
and build new structures all in areas in closer proximity than the structures at issue. On the other
hand, under the Hearings Officer's interpretation, the Applicant is limited to maintaining, in
perpetuity, the same canvas tent structures. There is simply no rational relationship between this
restriction and a legitimate state interest. There is nothing in the record to suggest that the
Applicant's property is in any way different from and other property in the area, and therefore
subject to greater development restrictions.
As a matter of common sense, it makes no sense whatsoever to permit a neighbor
to build a 5,000 square foot house, garage and accessory structures, and to allow the neighbor to
alter, modify and expand those structures, and at the same time requiring the Applicant to
maintain the existing structures in their exact structural form in perpetuity.
C. Appeal of Conditions of Approval
(1) Site Plan
Condition 5 requires the Applicant to submit a site plan prepared by a registered
land surveyor showing the exact locations of the cabins and the boundary of the SBMH zone. To
the extent that the Board of County Commissioners elects to adopt the Hearings Officer's
decision, the Applicant requests that this condition be modified to allow the Applicant to work
with staff to determine which cabins are located within the SBMH zone. The Applicant is a non-
profit organization and the costs associated with a licensed surveyor are cost prohibitive. There
is no basis in the development code for the Hearings Officer to impose this costly condition on
the Applicant.
2 ::ODMA\PCDOCS\PORTLAND\730721\1
(2) Fire Department Comments
Condition 11 requires the Applicant to comply with all requirements of the
Redmond Fire Department's conditions as set forth in a comment letter dated May 24, 2010. The
Applicant appeals the imposition of this condition because the requirements set forth in the
department's letter are not applicable to the project. The requirements set forth in the letter are
boilerplate, general conditions which simply do not reflect the nature of the proposal. Indeed,
the comment letter expressly states that the department is "Unable to provide accurate comments,
not enough information provided." Notwithstanding the fact that the comments are inaccurate,
the Hearings Officer imposed a condition mandating the Applicant to comply with the
comments. The Applicant requests that this condition be modified to require the Applicant to
consult with the department regarding the project and adhere to the requirements of the
department after such consultation.
2. Reasons the Board of County Commissioners Should Review Decision
In addition to the reasons set forth above, the Applicant requests that the Board of
County Commissioners review the decision for two practical reasons.
A. Economic Hardship
The total spent to date on materials for this project is approximately $17,200, with
an additional $3,000 to $4000 anticipated to be spent to complete all 13 sheds to look similar to
all the other existing structures on the site. The estimated total cost for materials for the project
is approximately $21,000. This cost does not include the thousands of dollars attributable to the
survey required by condition 5. To date, all labor has been supplied by volunteers.
Assuming that only 5 of the sheds need to be removed, and the Board does not
overturn the Hearings Officer's decision, the out of pocket cost of removing those 5 sheds, plus
the cost of acquiring the materials to build the new superstructure required to support the
replaced wall tents will be substantial. The "wasted" cost of the materials already purchased and
then thrown away would be approximately $6600.
To date, the Applicant has spent $9695 on permit fees. This is comprised of $750
for Site Plan Review, $1545 for an Amendment to non conforming use application (an amount
which should be refunded given that the Hearings Officer determined that the proposal did not
constitute an alteration of a non -conforming use), $5400 for the costs of the hearing officer, and
$2400 for the appeal of the hearing officer's decision. These fees do not include the future costs
for building permits which were originally estimated by the Building Permit department to be
$350 per shed, or a total of $4550. The county has the option of doubling the fees because the
matter is an enforcement matter.
To date, the amount that Applicant has spent on permit fees is 56% of what it has
spent out of pocket on materials. If the original estimate of Building Permit fees holds (and
doesn't include the penalty doubling that is allowed) total permit fees will be $14,245 for a
project that will cost approximately $21,000 in material costs. Permit costs will represent 68%
of the cost of materials, or 40% of the total cost (materials and permits) of the project. Imposing
3 ::ODMA\PCDOCS\PORTLAND\730721\1
additional costs for new materials, site plan review, and removal of the existing sheds will
impose a significant hardship on a non-profit organization.
B. Unequal Treatment
The Applicant requests that the Board of County Commissioners accept review of
this appeal so that the Board, rather than the Hearings Officer, can adopt its own interpretation of
the ESEE. As it stands under the Hearings Officer's decision, the Applicant will be treated
differently than all other 20 property owners within the habitat area. While the Applicant's
neighbors will be allowed to expand, modify, alter, rebuild and construct new structures within
the habitat area, many in areas in closer proximity to the eagle nest than the subject property, the
Applicant will be required to maintain the exact structures on its property in perpetuity. If the
Board believes that this is the proper interpretation—that the Applicant be treated differently
than all its neighbors—the Applicant believes that the Board should affirmatively make that
decision. This is a policy decision that should not be left to the Hearings Officer.
3. Request for De Novo Review
The Applicant requests that the Board of County Commissioners accept this
appeal as a de novo appeal. While the Applicant does not anticipate the need to submit any new
evidence to the record, the Applicant believes it is necessary to make arguments on appeal
directly to the Board. Because the Hearings Officer's interpretation was adopted in the decision,
to fully respond to the Hearings Officer's interpretation, the Applicant will need the ability to
address the Board directly. Under the DCC, the decision to accept or reject a request for a de
novo hearing is based on consideration of a number of factors, each of which is addressed below.
a. Whether hearing the application de novo could cause the 150 -day time
limit to be exceeded; and
To the extent that the 150 -day period is an issue, the Applicant would agree to toll
the 150 -day period for a period of time necessary to hear the appeal.
b. If the magnetic tape of the hearing below, or a portion thereof is unavailable
due to a malfunctioning of the recording device during that hearing, whether review on the
record would be hampered by the absence of a transcript of all or a portion of the hearing
below; or
This factor is not applicable to the present request.
c. Whether the substantial rights of the parties would be significantly
prejudiced without de novo review and it does not appear that the request is necessitated by
failure of the appellant to present evidence that was available at the time of the previous review;
or
In general, a parties' substantial rights are significantly prejudiced if they are not
afforded a full opportunity to present their case. Here, where the Hearings Officer adopted an
interpretation in the course of her decision, to adequately argue on appeal, the Applicant will be
required to have the ability to make arguments to Board in response to the interpretation. As
4 ::ODMA\PCDOCS\PORTLAND\730721\I
mentioned above, the Applicant does not anticipate the need to submit additional evidence to the
record, only to make arguments to the Board. Without the ability to argue its case to the Board,
the Applicant's substantial rights will be prejudiced.
d. Whether in its sole judgment a de novo hearing is necessary to fully and
properly evaluate a significant policy issue relevant to the proposed land use action.
The core issue at appeal is one of interpretation of the County Code. Proper
application of the code, an in particular the ESEE, is a significant issue and one in which the
Board should fully participate. Absent the ability of the Applicant to fully engage with the
Board in a public hearing, it is doubtful that the implications of the underlying policy and
Hearings Officer interpretation can be fully understood. The Applicant believes that it is
imperative that it have the ability to describe the implications of the Hearings Officer's decision
to the Board.
For the above reasons, the Applicant requests that the Board accept this appeal in
a de novo hearing.
5 ::ODMA\PCDOCS\PORTLAND\730721\1
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: NCU-10-3, SP -10-7
APPLICANT:
Outward Bound West
c/o Henry Morse
6400 N.W. 83`d Street
Redmond, Oregon 97756
PROPERTY OWNER: Pacific Crest Outward Bound School
18048 S. Skyland Circle
Lake Oswego, Oregon 97034
APPLICANT'S
ATTORNEY:
REQUEST:
STAFF REVIEWER:
HEARING DATE:
RECORD CLOSED:
Steven P. Hultberg
Ball Janik LLP
15 S.W. Colorado Avenue, Suite 3
Bend, Oregon 97702
SEP 2010
MAILED
DE OUS
COUNTY
The applicant requests approval to replace canvas wall tents on
elevated tent platforms with wood cabins on the applicant's
training facility on property zoned EFU-TE, LM and SBMH, and
located on the west side of the Deschutes River north of Redmond.
Paul Blikstad, Senior Planner
July 6, 2010
August 24, 2010
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.04, Title, Purpose and Definitions
* Section 18.04.030, Definitions
2. Chapter 18.16, Exclusive Farm Use Zone (EFU)
* Section 18.16.020, Uses Permitted Outright
* Section 18.16.025, Uses Permitted Subject to the Special Provisions Under
DCC Section 18.16.038 and a Review Under DCC Chapter 18.124 Where
Applicable
* Section 18.16.030, Conditional Uses Permitted — High Value and Nonhigh
Value Farmland
Outward Bound
NCU-10-3/SP-10-7
Page 1 of 36
* Section 18.16.060, Dimensional Standards
* Section 18.16.070, Yards
* Section 18.16.080, Stream Setbacks
* Section 18.16.090, Rim rock Setback
3. Chapter 18.84, Landscape Management Combining Zone
* Section 18.84.020, Application of Provisions
* Section 18.84.030, Uses Permitted Outright
* Section 18.84.080, Design Review Standards
* Section 18.84.090, Setbacks
4. Chapter 18.90, Sensitive Bird and Mammal Habitat Combining Zone
* Section 18.90.030, Limitations and Uses Permitted
* Section 18.90.040, Applicability
* Section 18.90.050, Site Plan Review Requirement
* Section 18.90.060, Site Plan Review Criteria
5. Chapter 18.116, Supplementary Provisions
* Section 18.116.020, Clear Vision Areas
* Section 18.116.030, Off-street Parking and Loading
* Section 18.116.031, Bicycle Parking
6. Chapter 18.120, Exceptions
* Section 18.120.010, Nonconforming Uses
7. Chapter 18.124, Site Plan Review
* Section 18.124.030, Approval Required
* Section 18.124.060, Approval Criteria
* Section 18.124.070, Required Mining Standards
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances or Record Extensions
C. Oregon Revised Statutes (ORS)
1. Chapter 215, County Planning
* ORS 215.283, Uses Permitted in Exclusive Farm Use Zones in Nonmarginal
Outward Bound
NCU-1 0-3/SP-1 0-7
Page 2 of 36
Land Counties; Rules
II. FINDINGS OF FACT:
A. Location: The subject property has an assigned address of 6400 N.W. 83`d Street,
Redmond, and is further identified as Tax Lot 500 on Deschutes County Assessor's Map
14-12-22D.
B. Zoning and Plan Designation: The subject property is zoned Exclusive Farm Use—
Terrebonne Subzone (EFU-TE). Most of the property also is within the Landscape
Management (LM) Combining Zone because of its proximity to the Deschutes River. A
small portion of the property immediately adjacent to the river is zoned Flood Plain. And
the northeast quadrant of the property is located within a Sensitive Bird and Mammal
Habitat (SBMH) Combining Zone because it is within one-quarter mile of a golden eagle
nest. The subject property is designated Agriculture and LM on the Deschutes County
Comprehensive Plan map.
C. Surrounding Zoning and Land Uses: The subject property is located in an area of rural
residential development, including Lower Bridge Estates Subdivision to the north and
Odin Falls Ranch and River Springs Estates Subdivisions to the east across the Deschutes
River, zoned Rural Residential (RR -10) and Multiple Use Agriculture (MUA-10). The
golden eagle nest is located approximately 600 feet north of the subject property's
northern boundary on a cliff on the west side of the river. To the south on the west side of
the river is land zoned EFU-TE, some of which is engaged in farm use. Further to the
south and west is dry range land zoned EFU and owned and managed by the U.S. Bureau
of Land Management.
D. Site Description: The subject property is approximately 46 acres in size and roughly
square in shape. It is bordered on the east by the Deschutes River. The property is
developed with the existing Outward Bound training facility and base camp with
structures including a lodge building, storage building, kitchen building, dining hall,
restroom facilities, a few small storage sheds, driveways and parking areas, and the
cabins at issue in this application. The record indicates the most northerly six cabins are
located within the SBMH Zone. The property has a vegetative cover of juniper trees and
native brush and grasses. Access to the property is from a driveway at the northern
terminus of N.W. 83`d Street. The property slopes uphill from the river to the western
property boundary and includes some rock outcrops. The property is not on farm deferral.
E. Procedural History: The subject property has received several land use approvals.
1987. In August of 1987 the county granted conditional use and site plan approval for
Pacific Crest Outward Bound to establish a training facility and base camp for Outward
Bound instructors. The approved facility included a 4,000 -square -foot administration
building, a 5,700 -square -foot storage and shop building for the storage of field
equipment, and "overnight facilities" for instructors consisting of twelve 15' by 15' tent
platforms that would be used during the spring, summer and fall (CU -87-58, SP -87-32).
Outward Bound
NCU-10-3/SP-10-7
Page 3 of 36
The decision stated the applicant planned a "future bunkhouse" for staff, but did not
approve such a facility or identify its future location. 1
1989. In 1989 the county extended the 1987 conditional use and site plan approvals for
two years (E-89-8). In December of 1989, the county approved a revision to the original
site plan for slightly different building locations and deleting the requirement for tree
planting (SP -89-73). In September of 1989, the county issued a temporary use permit
(TU -89-45) for construction of the approved structures prior to final site plan approval.
1990. In February of 1990 the county approved a variance to the development and
maintenance standards for off-street parking and access imposed through the 1989
approval of the revised site plan to allow a cinder surface for the parking area (V-90-3).
1995. In March of 1995, the county approved a site plan for an office addition to an
existing shop/storage building on the property (SP -95-11).
2004. In September of 2004 the county granted site plan approval to construct a new
1,300 -square -foot dining hall (SP -04-32, LM -04-156).
2010. In the spring of 2010, the applicant began constructing wood cabins on the existing
elevated tent platforms. On April 12, 2010, a neighboring property owner filed a county
code enforcement complaint concerning the new cabins. A code enforcement proceeding
was initiated for construction of the cabins without land use approval (C-10-49). In
response to the code enforcement complaint, on May 11, 2010 the applicant submitted
the subject nonconforming use alteration and site plan applications (NCU-10-3, SP -10-7).
These applications were accepted by the county as complete on June 10, 2010. Therefore,
the 150 -day period for issuance of a final local land use decision under ORS 215.427
would have expired on November 8, 2010.
A public hearing on the applications was scheduled for July 6, 2010. On June 29, 2010
the Hearings Officer conducted a site visit to the subject property and vicinity
accompanied by Senior Planner Paul Blikstad. At the public hearing, the Hearings Officer
disclosed her observations and impressions from the site visit, received testimony and
evidence, left the written evidentiary record open through August 17, 2010, and allowed
the applicant through August 24, 2010 to submit final argument pursuant to ORS
197.763. The record closed on August 24, 2010. Because the applicant agreed to extend
the written record from July 6 through August 24, 2010, under Section 22.24.140 of the
county's land use procedures ordinance the 150 -day period was tolled for 49 days and
now expires on December 27, 2010. As of the date of this decision there remain 59 days
in the extended 150 -day period.
F. Proposal: The applicant requests approval to convert canvas wall tents on 13 existing
elevated tent platforms to wood cabins constructed on the platforms. The applicant
The record does not explain the discrepancy between the 1987 approval of 12 tent platforms and the fact
that there are 13 tent platforms and cabins on the subject property.
Outward Bound
NCU-10-3/SP-10-7
Page 4 of 36
proposes to use the cabins in the same manner as the canvas tents were used — i.e., as
covered storage for storage of Outward Bound instructors' equipment and personal
belongings, and as sleeping quarters for instructors when they are not in the field teaching
courses. The cabins would be used from March through September and would not be
available for public use. The cabins are approximately 12 feet by 14 feet. The tent
platforms are elevated approximately 2 feet off the ground, and the cabins measure 11
feet tall from the top of the platform to the roof peak for an overall height of 13 feet
above the ground. The applicant does not propose to install utilities in any of the cabins,
although the record indicates two of the cabins have been provided with electrical
connections. The cabins have framed wood walls, roofs, windows and doors, as well as
screens on the windows and canvas coverings for the windows and doors. Initially the
applicant proposed that the wood cabin exteriors weather naturally over time, but
subsequently proposed to paint or stain the cabins earth -toned colors to better blend with
the surroundings.
G. Public/Private Agency Comments: The Planning Division sent written notice of the
applicant's proposal to a number of public and private agencies and received responses
from: the Deschutes County Assessor, Building Division (building division),
Environmental Health Division, Road Department, and Senior Transportation Planner;
the Redmond Fire Department; the State of Oregon Departments of Parks and Recreation
and Fish and Wildlife (ODFW); and PacifiCorp. These comments are set forth verbatim
at pages 2-3 of the staff report and are included in the record. The following agencies did
not respond to the county's request for comments: Redmond Parks and Recreation; the
BLM; and Central Electric Cooperative.
H. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicant's proposal and the public hearing to the owners of record of all property
located within 750 feet of the subject property. In addition, notice of the public hearing
was published in the Bend "Bulletin" newspaper, and the subject property was posted
with a notice of proposed land use action sign. As of the date the record in this matter
closed, the county had received eight letters in response to these notices.2 In addition,
seven members of the public testified at the public hearing. Public comments are
addressed in the findings below.
I. Lot of Record: The staff report states the county recognizes the subject property as a
legal lot of record based upon the prior issuance of land use approvals.
III. SUMMARY
The Hearings Officer has found the applicant's proposal to convert canvas wall tents to wood
cabins constructed on existing tent platforms does not constitute an alteration to a
nonconforming use because there will be no change to the nature or extent of the use — i.e.,
seasonal sleeping quarters and personal equipment storage for Outward Bound instructors. I also
2 A ninth letter, from Ted and Judy Moore, was received by the county on September 7, 2010, after the
written record closed, and therefore the Hearings Officer cannot consider it.
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have found that even if the cabins are an alteration to a nonconforming use, they will have no
greater adverse impact on the surrounding neighborhood as long as the cabins are painted or
stained in muted earth -toned colors. I also have found this camouflaging will assure the cabins
satisfy the LM site plan review criteria. However, I have found construction of the cabins located
within the SBMH Zone does not satisfy the requirements of that zone because it violates the site-
specific ESEE analysis for the nearby golden eagles' nest that prohibits additional structural
development within the sensitive habitat area. Therefore, I have found that only those cabins
located outside the SBMH Zone can be approved.
IV. CONCLUSIONS OF LAW:
PRELIMINARY ISSUES
1. Code Enforcement/Stop Work Order
FINDINGS: Opponents argue the Hearings Officer should not approve the applicant's proposal
because the cabins were built without necessary land use and building permits. I find it difficult
to understand why the applicant did not at least inquire whether land use approval was necessary
for the cabins before initiating construction in light of the number of previous land use
proceedings involving the subject property, set forth in the Findings of Fact above. Nevertheless,
I find the applicant's failure to obtain prior land use approval is not a basis to deny the subject
applications. There is no dispute the applicant continued construction of the cabins following the
county's issuance of a stop work order. However, it is not clear from this record whether and to
what extent such construction was authorized by the building division. In any case, I find
violation of a stop work order also is not a basis for denying the subject applications.
EFU ZONE STANDARDS
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.16, Exclusive Farm Use Zone (EFU)
a. Section 18.16.020, Uses Permitted Outright
b. Section 18.16.025, Uses Permitted Subject to the Special Provisions
under DCC Section 18.16.038 and a Review Under DCC Chapter
18.124 where applicable
c. Section 18.16.030, Conditional Uses Permitted — High Value and
Nonhigh Value Farmland
FINDINGS: In 1987 when the county issued its original conditional use and site plan approval
for the applicant's facility, the subject property was zoned EFU-40. Both former ORS 215.283
and former Section 18.16.030 of the zoning ordinance, the provisions governing uses on EFU-
zoned land, listed public and private schools as permitted uses. The 1987 decision characterized
the applicant's facility as a "school and base camp."
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In 2001 the Land Use Board of Appeals (LUBA) issued its decision in Warburton v. Harney
County, 39 Or LUBA 398 (2001), holding a proposed training facility for hunting and horse -
packing guides did not constitute a "public or private school" within the meaning of ORS
215.283 in effect at that time. Specifically, LUBA held:
"* * * [W]e conclude that the text and context of ORS 215.283(1)(a) indicate a
legislative intent to provide only for public and private elementary and secondary
schools under that provision."
LUBA's decision was affirmed by the Court of Appeals in Warburton v. Harney County, 174 Or
App 322, 25 P3d 978 (2001).
The staff report states that following Warburton the county would have considered the
applicant's facility to be a nonconforming use. Nevertheless, as discussed in the Findings of Fact
above, in 2004 the county granted site plan approval for a new dining hall on the subject property
without treating the request as one to alter a nonconforming use (SP -04-32, LM -04-156).
The applicant's attorney Steven Hultberg argued in his August 10, 2010 submission that the
applicant's facility did not become a nonconforming use as a result of Warburton because the
circumstances presented there are distinguishable from the applicant's -- the case involved a
different type of school and interpreted the provisions of ORS 215.283 that were in effect in
2001. The Hearings Officer disagrees. I find LUBA's and the Court of Appeals' holdings that the
term "school" in former ORS 215.283 included only public and private elementary and
secondary schools was applicable to Deschutes County in 2001 and rendered the Outward Bound
facility a nonconforming use at that time.3 Therefore, I find the applicant's proposal to construct
wood cabins on the existing tent platforms involves the potential alteration of a nonconforming
use and therefore must be reviewed under the nonconforming use standards in Chapter 18.120 of
the Deschutes County Code and addressed in the findings below.4
d. Section 18.16.060, Dimensional Standards
* * *
E. Building height. No building or structure shall be erected or
enlarged to exceed 30 feet in height, except as allowed under
DCC 18.120.040.
FINDINGS: The cabins have an overall height of 13 feet, therefore satisfying this standard.
e. Section 18.16.070, Yards
3 Mr. Hultberg notes the 2009 Oregon Legislative Assembly amended ORS 215.283(2) to make public
and private K-12 schools a conditional use in the EFU Zone, and the county amended Sections 18.16.025
and 18.16.030(DD) of the zoning ordinance to conform to the statutory changes.
4 The Hearings Officer makes no finding as to whether the dining hall approved on the subject property in
2004 constitutes part of the lawful nonconforming use.
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A. The front yard shall be a minimum of: 40 feet from a property
line fronting on a local street, 60 feet from a property line
fronting on a collector street, and 100 feet from a property line
fronting on an arterial street.
B. Each side yard shall be a minimum of 25 feet, except that for a
nonfarm dwelling proposed on property with side yards
adjacent to property currently employed in farm use, and
receiving special assessment for farm use, the side yard shall be
a minimum of 100 feet.
C. Rear yards shall be a minimum of 25 feet, except that for a
nonfarm dwelling proposed on property with a rear yard
adjacent to property currently employed in farm use, and
receiving special assessment for farm use, the rear yard shall
be a minimum of 100 feet.
D. In addition to the setbacks set forth herein, any greater
setbacks required by applicable building or structural codes
adopted by the State of Oregon and/or the County under DCC
15.04 shall be met.
FINDINGS: The cabins were constructed on the existing tent platforms approved in 1987. The
record indicates the platforms — and therefore the cabins -- satisfy the minimum setbacks
established in this section, as no cabin is closer than 150 feet from any property line.
f. Section 18.16.080, Stream Setbacks
To permit better light, air, vision, stream pollution control, protection
of fish and wildlife areas and preservation of natural scenic amenities
and vistas along streams and lakes, the following setbacks shall apply:
A. All sewage disposal installations, such as septic tanks and
septic drainfields, shall be set back from the ordinary high
water mark along all streams or lakes a minimum of 100 feet,
measured at right angles to the ordinary high water mark. In
those cases where practical difficulties preclude the location of
the facilities at a distance of 100 feet and the County Sanitarian
finds that a closer location will not endanger health, the
Planning Director or Hearings Body may permit the location
of these facilities closer to the stream or lake, but in no case
closer than 25 feet.
B. All structures, buildings or similar permanent fixtures shall be
set back from the ordinary high water mark along all streams
or lakes a minimum of 100 feet measured at right angles to the
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ordinary high water mark.
FINDINGS: The subject property has existing septic facilities used by Outward Bound staff and
no additional septic facilities are required or proposed for the cabins. The submitted site plan
shows the cabins are located beyond the 100 -foot setback from the ordinary high water mark of
the Deschutes River. Therefore, the Hearings Officer finds the applicant's proposal satisfies the
standards in this section.
g•
Section 18.16.090, Rimrock Setback
Notwithstanding the provisions of DCC 18.16.070, setbacks from
rimrock shall be as provided in DCC 18.116.160 or 18.84.090,
whichever is applicable.
FINDINGS: The record indicates the cabins satisfy the 50 -foot rimrock setback.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies all
applicable standards in the EFU Zone.
LM ZONE STANDARDS
1. Chapter 18.84, Landscape Management Combining Zone
a. Section 18.84.020, Application of Provisions
The provisions of DCC 18.84 shall apply to all areas within one-fourth
mile of roads identified as landscape management corridors in the
Comprehensive Plan and County Zoning Map. The provisions of
DCC 18.84 shall also apply to all areas within the boundaries of a
State scenic waterway or Federal wild and scenic river corridor and
all areas within 660 feet of rivers and streams otherwise identified as
landscape management corridors in the comprehensive plan and the
County Zoning Map. The distance specified above shall be measured
horizontally from the centerline of the designated landscape
management roadways or from the nearest ordinary high water mark
of a designated landscape management river or stream. The
limitations in DCC 18.84.020 shall not unduly restrict accepted
agricultural practices.
FINDINGS: Most of the subject property is located within one-quarter mile of the ordinary high
water mark of the Deschutes River, which the record indicates is a state scenic waterway, and all
cabins are located within 660 feet of the ordinary high water mark of the river. Therefore, the
Hearings Officer finds the provisions of the LM Zone apply to the applicant's proposal.
b. Section 18.84.030, Uses permitted outright and 18.84.040, Uses
Permitted Conditionally.
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FINDINGS: The Hearings Officer has found the applicant's facility is not a use permitted
outright or conditionally in the EFU Zone. Some or all of the facility constitutes a
nonconforming use in the EFU Zone and therefore also in the LM Zone.
c. Section 18.84.050, Use Limitations
A. Any new structure or substantial alteration of a structure
requiring a building permit, or an agricultural structure,
within an LM Zone shall obtain site plan approval in
accordance with DCC 18.84 prior to construction. As used in
DCC 18.84 substantial alteration consists of an alteration
which exceeds 25 percent in the size or 25 percent of the
assessed value of the structure. (Emphasis added.)
FINDINGS: The staff report suggests this criterion is not applicable to the cabins because they
were constructed atop the existing tent platforms and constitute "semi-permanent" structures.
The Hearings Officer disagrees. The record indicates the cabins are permanent structures. No
building permits were obtained prior to construction of the cabins. The record includes
correspondence between the applicant and county staff concerning the proper occupancy
classification for the cabins for purposes of the building code. This correspondence indicates that
initially Dave Pedersen of the building division considered the cabins to be "utility sheds" not
requiring building plan review or permits. However, after Mr. Pedersen learned the cabins also
would be used as overnight accommodations for Outward Bound instructors, he stated the cabins
would have a residential (R-2) occupancy classification as "sleeping cabins," may be subject to
building code provisions governing residential structures, and depending on plan review may
require building permits under the building code. Moreover, as discussed in detail in the findings
below concerning compliance with the SBMH Zone, I have found the cabins constitute "new
structural development" because they include new structural components — i.e., framed solid
walls and roofs as well as doors and windows. For these reasons, I find the cabins also constitute
"new structures" for purposes of Section 18.84.050. Therefore, I find the cabins require LM site
plan review and approval.5
B. Structures which are not visible from the designated roadway,
river or stream and which are assured of remaining not visible
because of vegetation , topography or existing development are
exempt from the provisions of DCC 18.84.080 (Design Review
Standards) and DCC 18.84.090 (Setbacks). An applicant for
site plan review in the LM Zone shall conform with the
provisions of DCC 18.84, or may submit evidence that the
proposed structure will not be visible from the designated
road, river or stream. Structures not visible from the
5 In his August 17, 2010 submission, Mr. Hultberg argued the cabins' building code occupancy
classification is irrelevant. The Hearings Officer disagrees. Inasmuch as both the LM site plan approval
criteria in Chapter 18.84 and the general site plan approval criteria in Chapter 124 apply to, among other
things, structures that require building permits, I find it is necessary to determine whether the cabins may
require building permits.
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designated road, river or stream must meet setback standards
of the underlying zone.
FINDINGS: The record does not indicate whether the cabins are visible from the Deschutes
River. However, the applicant applied for site plan review for the cabins, and compliance with
the site plan approval criteria is addressed in the findings below. And as discussed in the findings
above, the cabins satisfy all applicable setbacks in the EFU Zone.
d. Section 18.84.080, Design Review Standards
A. Except as necessary for construction of access roads, building
pads, septic drainfields, public utility easements, parking
areas, etc., the existing tree and shrub cover screening the
development from the designated road, river or stream shall be
retained. This provision does not prohibit maintenance of
existing lawns, removal of dead, diseased or hazardous
vegetation; the commercial harvest of forest products in
accordance with the Oregon Forest Practices Act or
agricultural use of the land.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
does not propose to remove any ground cover or trees to accommodate the cabins.
B. It is recommended that new structures and additions to
existing structures be finished in muted earth tones that blend
with and reduce contrast with the surrounding vegetation and
landscape of the building site.
FINDINGS: The underscored language of this section suggests it does not establish a mandatory
LM site plan approval criteria. Nevertheless, the applicant proposed to paint or stain the cabins in
earth -toned colors rather than letting the wood siding naturally weather over time. As discussed
below, the Hearings Officer has found the applicant will be required as a condition of approval to
paint or stain the approved cabins in muted earth tones that blend with the surrounding
vegetation and landscape.
C. No large areas, including roofs, shall be finished with white,
bright or reflective materials. Metal roofing material is
permitted if it is in non -reflective and of a color which blends
with the surrounding vegetation and landscape.
FINDINGS: The record indicates the cabin roofs are constructed of non -reflective man-made
materials other than metal and in earth -toned colors that blend with the surroundings. As
discussed above, the applicant will be required as a condition of approval to paint or stain the
approved cabins in muted earth tones to blend with the surrounding vegetation and landscape.
D. Subject to applicable rimrock setback requirements or
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rimrock setback exception standards in Section 18.84.090, all
structures shall be sited to take advantage of existing
vegetation, trees and topographic features in order to reduce
visual impact as seen from the designated road, river or
stream.
FINDINGS: The cabins were constructed on existing elevated tent platforms that satisfy the
rimrock setback standards in the EFU and LM Zones. The Hearings Officer has found the
applicant will be required as a condition of approval to paint or stain the approved cabins in
muted earth -tone colors to blend with the surrounding vegetation and landscape. The staff report
states, and I agree, that this requirement also will reduce the visual impact of any of the cabins
that can be seen from the river.
E. Structures shall not exceed 30 feet in height measured from the
natural grade on the side(s) facing the road, river or stream.
Within the LM zone along a state scenic waterway or federal
wild and scenic river, the height of a structure shall include
chimneys, antennas, flag poles or other projections from the
roof of the structure. This section shall not apply to
agricultural structures located at least 50 feet from a rimrock.
FINDINGS: The cabins have an overall height of approximately 13 feet above the ground,
therefore satisfying this standard.
F. New residential or commercial driveway access to designated
landscape management roads shall be consolidated wherever
possible.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is not accessed from a new driveway access.
G. New residential exterior lighting, including security lighting,
shall be sited and shielded so that it is directed downward and
is not directly visible from the designated road, river or
stream.
FINDINGS: The applicant does not propose any new exterior lighting. If such lighting is
installed for the cabins approved by this decision, the Hearings Officer finds the applicant will be
required as a condition of approval to site and shield such exterior lighting so it is directed
downward and is not directly visible from the river, and so it satisfies all applicable standards of
the outdoor lighting ordinance in Chapter 15.10 of the county code.
H. The Planning Director or Hearings Body may require the
establishment of introduced landscape material to screen the
development, assure compatibility with existing vegetation,
reduce glare, direct automobile and pedestrian circulation or
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enhance the overall appearance of the development while not
interfering with the views of oncoming traffic at access points
or views of mountains, forests and other open and scenic areas
as seen from the designated landscape management road, river
or stream. Use of native species shall be encouraged.
FINDINGS: The cabins were constructed on existing tent platforms and no vegetation has been
or is proposed to be removed. The Hearings Officer has found the applicant will be required as a
condition of approval to paint or stain the approved cabins in muted earth -toned colors to blend
with the surrounding vegetation and landscape.
No signs or other forms of outdoor advertising that are visible
from a designated landscape management river or stream shall
be permitted. Property protection signs (no trespassing, no
hunting, etc.) are permitted.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
does not propose any signs.
J. A conservation easement as defined in Section 18.04.030,
"Conservation Easement" and specified in Section 18.116.220,
shall be required as a condition of approval for all landscape
management site plans involving property adjacent to the
Deschutes River, Crooked River, Fall River, Little Deschutes
River, Spring River, Squaw Creek and Tumalo Creek.
Conservation easements required as a condition of landscape
management site plans shall not require public access.
FINDINGS: The record indicates that in 1989 the applicant executed and recorded a
conservation easement in conjunction with the original site plan approval (Volume 193, Page
121). Therefore, the Hearings Officer finds no additional conservation easement is required.
e. Section 18.84.090, Setbacks
A. Except as provided in DCC 18.84.090, minimum setbacks shall
be those established in the underlying zone with which the LM
Zone is combined.
* * *
C. River and Stream Setbacks. All new structures or additions to
existing structures shall be set back 100 feet from the ordinary
high water mark of designated streams and rivers or obtain a
setback exception in accordance with DCC 18.120.030. For the
purpose of DCC 18.84.090. decks are considered part of a
structure and must conform with the setback requirement.
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The placement of on-site sewage disposal systems shall be
subject to joint review by the Planning Director or Hearings
Body and the Deschutes County Environmental Health
Division. The placement of such systems shall minimize the
impact on the vegetation along the river and shall allow a
dwelling to be constructed on the site as farm from the stream
or lake as possible. Sand filter systems may be required as
replacement systems when this will allow a dwelling to be
located further from the stream or to meet the 100 -foot setback
requirement.
D. Rimrock Setback. New structures (including decks or
additions to existing structures) shall be set back 50 feet from
the rimrock in an LM Zone. An exception to this setback may
be granted pursuant to the provisions of DCC 18.84.090(E).
FINDINGS: The Hearings Officer has found the cabins satisfy both the 100 -foot river setback
and the 50 -foot rimrock setback. No new on-site sewage disposal systems are proposed.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies, or with
the condition of approval discussed above will satisfy, all applicable standards in the LM Zone
including those for LM site plan review and approval.
NONCONFORMING USE STANDARDS
3. Chapter 18.120, Exceptions
a. Section 18.120.010, Nonconforming Uses
Except as otherwise provided in DCC Title 18, the lawful use of a
building, structure or land existing on the effective date of DCC Title
18, any amendment thereto or any ordinance codified therein may be
continued although such use or structure does not conform with the
standards for new development specified in DCC Title 18. A
nonconforming use or structure may be altered, restored or replaced
subject to DCC 18.120.010. No nonconforming use or structure may
be resumed after a one-year period of interruption or abandonment
unless the resumed use conforms with the provisions of DCC Title 18
in effect at the time of the proposed resumption.
FINDINGS: The Hearings Officer has found the applicant's facility as it existed in 2001 became
a nonconforming following the Warburton decisions. That is because it is not a public or private
elementary or secondary school and it did not fall within any other uses permitted outright or
conditionally in the EFU-40 Zone in effect in 2001. Therefore, the applicant's proposal is subject
to the nonconforming use provisions in this section. I find the threshold questions before me are:
(1) whether the cabins constitute an alteration of a nonconforming use; and (2) if so, whether
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they satisfy all applicable approval criteria for such alteration in Section 18.120.010.
1. Nonconforming Use. In order to determine whether the cabins constitute an alteration of a
lawful nonconforming use, the Hearings Officer must first determine the nature of the
nonconforming use. Section 18.04.030 defines "use" as "the purpose for which land or a
structure is designed, arranged, intended, or for which it is occupied or maintained." In other
words, the "use" is not the land or structure itself, but rather the use is that for which the land or
structure is designed and/or occupied.
The 1987 decision granting conditional use approval for the Outward Bound facility described
the approved use in relevant part as follows:
"The applicant is proposing to locate a school administration facility for part-
time training instructors only, a year round storage and shop facility for their
field equipment, which includes rafts, tents, etc., and a lodging area for the part-
time overnight stay of instructors. The proposed school administration building is
approximately 4,000 square feet in size, and the storage shop building is
approximately 5,700 square feet in size. A future bunkhouse is proposed to be
located on the subject parcel for the lodging of instructors.
The overnight facilities for the instructors will initially consist of three groups of
four tent platforms, each approximately 15' by 15' in size. According to the
applicant, the future bunkhouse would not increase the total number of overnight
users, but would allow flexibility in the type of lodging provided.
* * *
The activity on the site will be limited to six months out of the year (primarily late
spring, summer, and early fall)."
Based on this description, the Hearings Officer finds the approved nonconforming use includes
overnight lodging for Outward Bound instructors from late spring through early fall in tents
placed on tent platforms.
2. Alteration of Nonconforming Use. Section 18.120.010(E)(3) describes "alteration of a
nonconforming use" as "any change in the use of the property that would constitute a change in
the nature or extent of the use of the property" (emphasis added).
The applicant's proposal consists of replacing the canvas wall tents with wood cabins
constructed on the existing tent platforms. According to the applicant's burden of proof
statement and written and oral testimony, the purposes of the cabins would be to provide storage
for the instructors' equipment and personal belongings, and to provide sleeping quarters for two
instructors per cabin from March through September when they are not in the field. The Hearings
Officer finds the proposed use of the cabins is essentially the same as the use of the tents and
platforms approved in 1987 — i.e., overnight lodging for instructors from March through
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September.6 Therefore, I find the conversion of canvas tents to wood cabins constructed on the
tent platforms would not change either the nature or extent of the use. Accordingly, I find the
applicant's proposal does not constitute an alteration of a nonconforming use.
The Hearings Officer anticipates this decision may be appealed to the Deschutes County Board
of Commissioners (hereafter "board"), and application of the nonconforming use provisions may
be an issue in that appeal. In addition, planning staff and the parties addressed the approval
criteria for alteration of a nonconforming use. Therefore, to assist staff and the board in the event
if an appeal, I include the following findings concerning alterations of nonconforming uses.
3. Nonconforming Use Alteration Approval Criteria. Assuming for purposes of discussion
that converting the canvas tents to wood cabins does constitute an alteration to a nonconforming
use, the proposed alteration must satisfy the approval criteria found in Section 18.120.010(E).
E. Alteration of a nonconforming use:
1. The alteration of a nonconforming use shall be
permitted to comply with any lawful requirement.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant did
not construct the cabins for the purpose of complying with any lawful requirement.
2. Any other alteration to a nonconforming use may be
permitted subject to all applicable provisions of DCC
Title 18, including site plan review and upon a finding
that the alteration will have no greater adverse impact
on the neighborhood. (Emphasis added.)
FINDINGS: The Hearings Officer finds the above -underscored language requires me to find
that the proposed alteration: (a) satisfies all applicable provisions of the zoning ordinance
including site plan review; and (b) will have no greater adverse impact on the neighborhood.
Each of these requirements is address separately in the findings below.
a. Site Plan Review. In this Hearings Officer's decision in CEC (A-03-4/NCU-03-1/MC-04-16),
I held that when read in the context of Section 18.120.010 as a whole, the meaning of language
"all applicable provisions of DCC Title 18, including site plan review" in Paragraph (E)(2) of
this section is ambiguous. My reasoning was that the provisions of Section 18.120.010 appear to
be the exclusive zoning ordinance requirements applicable to uses for which approval is sought
through a nonconforming use verification, expansion, replacement or alteration. I therefore held
that an applicant for approval of an alteration to a nonconforming use need not also file an
application for site plan review based on the language in Section 18.120.010(E)(2). I adhere to
that holding here. However, as discussed in findings elsewhere in this decision, I have found the
applicant's proposal is subject to site plan review and approval because the cabins constitute new
6 Although it appears the facility approved in 1987 contemplated storage of field equipment in a separate
storage building, the Hearings Officer finds it reasonable to consider the incidental storage of instructors'
equipment and personal gear in the tents to fall within the use of the tents for sleeping quarters.
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structures and structural development in the LM and SBMH Zones.
2. No Greater Adverse Impact on the Neighborhood. In the Hearings Officer's CEC decision,
I found that before evaluating the impact of the proposed nonconforming use alteration I must
first determine what constitutes the "neighborhood." Title 18 does not define "neighborhood."
However, in CEC I found other "impact analysis" provisions in Title 18 provide guidance in
interpreting that term. For example, the conditional use "compatibility" criteria in Section
18.128.015 require an impact analysis on "surrounding properties." The standards for siting
nonfarm dwellings in the EFU Zone in Section 18.16.050(G) require an analysis of impacts from
the dwelling on "nearby lands." In previous decisions I have interpreted these ordinance terms to
refer to lands on which impacts from the proposed use reasonably can be expected to occur. I
adhere to my holding in CEC and find the area for analysis in this case includes adjacent and
surrounding land from which the cabins and their associated activities can be seen. Based on
photographs in the record, testimony from neighboring property owners, and my site visit
observations, I find the cabins and their associated activities are visible from most of the
residential lots and dwellings on the east side of the Deschutes River, and also may be visible
from the river and from property on the west side of the river north of the subject property,
including portions of the parcel on which the golden eagle's nest is located.
Having determined the impact analysis area, the Hearings Officer finds the remaining question
before me is the meaning and application of the phrase "no greater adverse impact." In my CEC
decision, I held that in the context of the alteration of a nonconforming use this phrase means I
cannot approve an alteration that creates greater adverse impacts on the neighborhood than are
created by the existing nonconforming use. I adhere to that holding here.
Opponents who own lots to the east across the river from the subject property argue the cabins
will have greater adverse impact on the neighborhood for four reasons: (a) they will be more
visible than the tents because of their size, color, and permanence; (b) their year-round presence
means they will be available for year-round use and therefore will generate activity year-round;
(c) the cabins will devalue properties from which they are visible; and (d) the cabins will disturb
nesting activities at the nearby eagle's nest. Each of these impacts is addressed separately in the
fmdings below.
a. Visual Impacts. The cabins were constructed on the existing tent platforms. Included in the
record are photographs of the canvas wall tents (Hearings Exhibits 1 and 2) and the wood cabins
(Hearing Exhibits 3 and 4). The applicant's representative Henry Morse testified at the public
hearing that the overall size and mass of the cabins is comparable to that of the canvas wall tents.
Based on the photographs in the record the Hearings Officer agrees. The applicant also argues
that because the canvas tents were white, the wood cabins will be less visible than the tents
because they will blend better with the surroundings after the wood exteriors have been stained
or painted in earth -tone colors. Again, I agree.
Both the applicant and opponents testified the canvas tents were temporary installations, put up
in the spring and taken down and removed in the fall. In contrast, the cabins are permanent, and
for that reason opponents argue they will have greater visual impacts. The applicant responded
that since the 1987 decision approving the Outward Bound facility did not require that the tents
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be removed in the fall, they also should be considered "permanent." The Hearings Officer
disagrees. Although the 1987 decision is silent as to whether the tents would be taken down each
year, it clearly states the Outward Bound facility would be used only from March through
September. And there is no question the tents have in fact been removed in the fall of every year.
Therefore, I find the cabins will be visible for a longer period of time than were the tents.
Although the cabins would be visible all year, the Hearings Officer finds that once they are
painted or stained in earth -toned colors to blend with the surrounding vegetation and landscape
the cabins will be substantially camouflaged and therefore much less visible than the white tents.
The question, then, is whether the permanent camouflaged wood cabins will have a greater visual
impact than the seasonal white canvas wall tents. Based on my site visit observations I am
persuaded the earth -toned cabins will blend well enough with the surrounding environment that
their visual impacts will be equivalent to or less than those of the tents, and therefore will have
no greater adverse visual impact than the tents.
b. Year Round Use. Opponents fear permanent cabins will facilitate year-round use by Outward
Bound and/or members of the public. Henry Morse testified the cabins will not be available for
use by the public, and because they will not have heat, electricity or plumbing they would not be
suitable for year-round use. Moreover, as discussed in the findings above, the 1987 decision
approving the applicant's facility expressly stated it would be used from March through
September. Therefore, the Hearings Officer finds the cabins cannot and will not be occupied by
people on a year-round basis.
c. Property Value. The Hearings Officer finds claims that a particular use will devalue nearby
property are frequently made but rarely documented by the opinions of professional appraisers
and/or by objective market analyses. Opponents acknowledged they were aware of the Outward
Bound facility and the tents and tent platforms when they purchased their lots and/or built their
dwellings. Although opponents did not contemplate that the sleeping quarters would become
permanent structures, I find that because the cabins are located on the tent platforms, will be
painted or stained to blend with their surroundings, and will be used for the same purposes and
during the same time frame the tents were used, there is no basis to find conversion of the wall
tents to cabins will devalue neighboring properties.
d. Golden Eagle's Nest. The northeast quadrant of the subject property is within the SBMH
Zone protecting the golden eagle's nest located north of the subject property on the west side of
the Deschutes River. The record indicates this nest has been used more or less continuously since
the early 1970's, and that the eagles' nesting season generally is from February 1st through
August 1st. The aerial photograph/SBMH Zone map included in the record as Hearing Exhibit 6
indicates at least 6 of the 13 cabins are located within the SBMH Zone adopted in the county's
comprehensive plan.
Opponents argue converting the canvas tents to cabins will disturb the nesting eagles because the
cabins are permanent structures. The applicant responds that the cabins will be used by Outward
Bound staff in the same manner and during the same tine period the tents were used — i.e., March
through September. The applicant also notes that because the cabins are permanent, there will no
longer be any activity associated with putting the tents up in the spring during nesting season.
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The staff report states the comments of Steven George, ODFW Deschutes District Wildlife
Biologist, concerning the cabins did not identify any greater adverse impact on the eagles'
nesting activity specifically attributable to converting the tents to cabins. While that was true of
Mr. George's initial comments submitted before the staff report was written, in a letter dated July
7, 2010 Mr. George stated in pertinent part:
"A cabin is a structure that will house people. Cabins are permanent structures
that will allow people year around use. Outward Bound may not be the owner
forever. As long as there is a structure present that will promote human activity
there will be a disturbance to the nest site. There is no guarantee that these cabins
will only be used outside of the sensitive nesting time period (February — August).
Tents tend to be temporary structures that are used on a seasonal basis that
would also have a negative impact on golden eagle use but not to the level that a
permanent structure does. Eventually human impact reaches a point, that is
unknown, where habitat use is eliminated. Cabins will do nothing but promote
increased use thus increasing human disturbance. "(Emphasis added.)
It appears from these comments that Mr. George assumes the cabins will be occupied on a year-
round basis, and that their use could be expanded in the future if the applicant sells the subject
property. However, the Hearings Officer has found the 1987 decision approving the applicant's
facility allowed its use only from March through September. That limitation runs with the land
and would be binding on any future owner of the subject property. Moreover, the nature and
extent of cabin use will be the same as tent use — i.e., overnight sleeping accommodations and
storage of personal belongings for up to two staff from March through September when they are
not in the field.
The Hearings Officer finds from the evidence in this record that permanent cabins will not have
any greater effect on the eagles' nesting activities than seasonal canvas tents, and in fact may
have less effect than the tents because of the lack of activity associated with putting up and
taking down the tents. Nevertheless, as discussed in the findings below, I have found the cabins
located within the SBMH Zone cannot be approved and must be removed because their
construction violates the comprehensive plan provisions established to protect the eagles' nest.
For the foregoing reasons, the Hearings Officer finds the cabins will have no greater adverse
impact on the neighborhood than the canvas tents that are part of the existing nonconforming use.
F. Procedure
1. Any application for verification of a nonconforming use
or to expand, alter, restore or replace a nonconforming
use shall be processed in conformance with the
applicable procedures set forth in this section and the
applicable procedures of Title 22, the Deschutes County
Uniform Development Procedures Ordinance.
FINDINGS: The Hearings Officer finds this application has been processed in accordance with
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the applicable provisions of Title 22.
2. Notwithstanding section 22.20.010 of the Deschutes
County Code, the initial decision on an application for an
alteration of a nonconforming use shall be made
administratively, without a public hearing. The Planning
Director may give prior notice of the pending application
pursuant to section 22.20.020 of the Deschutes County
Code.
FINDINGS: The initial decision on this nonconforming use application will be made by the
Hearings Officer rather than administratively by planning staff. The staff report states the
application was referred to a public hearing, rather than considered through an administrative
proceeding without a hearing, because it involves development in an SBMH Zone and requires
application and interpretation of the provisions of the county's comprehensive plan Goal 5
element relating to the eagles' nest. The applicant did not argue I lack authority to consider this
application. Therefore, I find the matter is properly before me.
5. An approval of a verification, replacement or restoration
of a nonconforming use verification shall not be
conditioned; an approval shall be sufficiently detailed to
describe the allowed parameters of the verified use.
However, an approval of an alteration of a
nonconforming use may be conditioned in a manner
calculated to ensure mitigation of adverse impacts so that
the change has no greater adverse impact to the
neighborhood. (Emphasis added.)
FINDINGS: The Hearings Officer has imposed conditions of approval intended to assure
compliance with the applicable approval criteria, and to require mitigation of adverse impacts to
assure the cabins have no greater adverse impact on the neighborhood.
For the foregoing reasons, the Hearings Officer finds that to the extent the applicant's proposal
constitutes an alteration of a nonconforming use, the proposal satisfies, or with imposition of the
condition of approval discussed above will satisfy, all applicable nonconforming use alteration
approval criteria.
SBMH ZONE STANDARDS
4. Chapter 18.90, Sensitive Bird and Mammal Habitat Combining Zone
a. Section 18.90.030, Limitations and Uses Permitted
A. Uses permitted in the underlying zone(s) are permitted or
conditionally permitted in the Sensitive Bird and Mammal
Combining Zone subject to additional procedure and
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requirements of DCC 18.90.040 and the provisions of the
ESEE decision. The Sensitive Bird and Mammal Habitat
Combining Zone does not regulate or prohibit forest practices
subject to ORS 527.610 to 527.770 and the rules adopted
pursuant thereto; or to farm practices as defined by ORS
30.930(2).
B. When there is a conflict between the site specific ESEE analysis
and the provisions of DCC Title 18, the site-specific ESEE
analysis shall control. (Emphasis added.)
FINDINGS: The Hearings Officer has found the applicant's facility as it existed in 2001 is a
nonconforming use. Compliance with the applicable nonconforming use provisions is discussed
in the findings above. The subject property is not engaged in, nor is the applicant proposing, any
forest or farm practices. Interpretation and application of the site-specific Goal 5 ESEE
(Economic, Social, Environmental and Energy) analysis for the golden eagles' nest is discussed
in the findings below.
b. Section 18.90.040, Applicability
Review under DCC 18.90 shall be triggered by the following proposals
occurring within a sensitive habitat area, as defined in DCC
18.90.020:
A. An application for a building permit for a new structure or
addition to an existing structure.
B. Land divisions creating new lots or parcels within the sensitive
habitat area;
C. An application for a conditional use permit; or
D. An application for site plan approval. (Emphasis added.)
FINDINGS: The Hearings Officer finds the applicant's proposal is subject to the provisions of
the SBMH Zone because it requires LM site plan review. In addition, as discussed in the findings
above, I have found the cabins likely require plan review and building permits under the building
code because they will be used for instructor sleeping quarters which constitutes a residential
occupancy classification under the building code.
c. Section 18.90.050, Site Plan Review Requirement
A. For those proposals identified in section 18.90.040 to be sited
within an inventoried sensitive habitat area, as defined under
section 18.90.020, a site plan shall be prepared in accordance
with the requirements of this section. The site plan shall be
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approved prior to issuance of a building permit, land division,
conditional use permit, or site plan identified in section
18.90.040.
FINDINGS: The site-specific ESEE analysis for the eagles' nest — Site DE -0009-00 on the
county's Goal 5 inventory of sensitive habitats -- describes its characteristics in part as follows:
There are two rimrock cliffs on the west [sic] side of the river. The nest is on the
lower cliff. There is evidence that the eagles use the upper cliff as a roosting site.
At the outset, both staff and the applicant questioned the location of the SBMH Zone established
to protect the eagles' nest because the record indicates the nest may have been moved from the
lower cliff to the upper cliff referred to in the ESEE analysis.
The SBMH Zone boundary consists of all property located within one-quarter mile of the
identified sensitive habitat — i.e., the nest site in this case. The aforementioned aerial
photograph/SBMH Zone map included in the record as Hearing Exhibit 6 includes a yellow dot
signifying the eagles' nest site identified in the county's comprehensive plan on the lower cliff,
and an orange dot signifying the nest site identified in this record on the upper cliff. Each dot is
surrounded by a corresponding colored circle depicting the quarter -mile -radius around the nest
site. The exhibit appears to show at least 6 tents within the yellow circle and one that appears to
be located directly under the circle, and at least 5 tents within the alternate zone boundary.
The Hearings Officer is aware raptor nest site locations can change from time to time.
Nevertheless, I find the controlling SBMH Zone for the eagles' nest at issue in this case is the
one adopted by the board in the comprehensive plan. Any change to the adopted SBMH Zone
boundary must be made through a plan amendment and zone change. But I also find it is not
entirely clear exactly how many cabins are located within the SBMH Zone. Because I have
found the cabins within the SBMH Zone violate the site-specific ESEE analysis and therefore
cannot be approved and must be removed, it is essential to determine precisely where the
adopted SBMH Zone boundary is located. Therefore, I find that as a condition of approval the
applicant will be required to submit to the Planning Division a surveyed site plan, prepared by a
registered land surveyor, showing the surveyed location of the adopted SBMH Zone boundary on
the subject property and the exact locations of the cabins within the zone.
B. The site plan application shall provide the following information:
1. A plot plan showing the location of all development
including existing and proposed roads, driveways and
structures;
2. Description of operating characteristics of the proposed
use including times when activity within the sensitive
habitat area would generate noise, dust, vibration,
lights, traffic or be visible from the nest, lek, rookery or
hibernation site.
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3. Timing of construction activities including grading or
filling land, hauling materials and building.
4. Description of existing vegetation and vegetation to be
removed for the proposed development.
FINDINGS: The applicant submitted a site plan showing the location of the cabins on the
existing tent platforms and existing driveways. The applicant's burden of proof states the cabins
will have the same uses and operating characteristics as did the canvas tents, and that no
additional activities and traffic are anticipated to result from conversion of the canvas tents to
cabins. The applicant has not removed, and does not propose to remove, any vegetation in
conjunction with construction of the cabins. The applicant has acknowledged the cabins were
constructed during the eagles' nesting season. However, the applicant notes the permanent cabins
will eliminate the activities associated with putting up the tents during nesting season each year.
The staff report states, and based on the Hearings Officer's site visit observations I agree, that
because of topography and vegetation the cabins do not appear to be visible from the nest site.
C. The county shall submit a copy of the site plan to the Oregon
Department of Fish and Wildlife for comment. ODFW shall
have 20 days from the date the site plan is mailed to submit
written comments to the county.
FINDINGS: Planning staff sent a copy of the applicant's proposed site plan to ODFW. The
record includes several comments from Steven George of ODFW, addressed in detail elsewhere
in this decision.
D. Based upon the record, and evaluation of the proposal based
on the criteria in section 18.90.060, and conformance with the
ESEE analysis for the site contained in the Resource Element
of the Comprehensive Plan, the county shall approve or reject
the site plan. In lieu of rejection of the site plan, the county
may allow the applicant to revise the site plan if the applicant
has not met the standards for approval. Applicant shall waive
the 150 -day time limit if it chooses to revise the site plan.
(Emphasis added.)
FINDINGS: The Goal 5 ESEE analysis for Site DE -0009-00 in the comprehensive plan
provides in relevant part:
2. Site Characteristics.
* * *
Except for the Outward Bound parcel, the parcels in the sensitive habitat area are
undeveloped and therefore provide solitude, roosting and foraging areas for the
birds. The Outward Bound property is used as a base camp and training center.
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During the nesting period there is considerable activity on the Outward Bound
property.
* * *
3. Conflicts Identification.
Potentially Conflicting Uses With Habitat Site
* * *
The significant conflicting use would be residential development of the RR -10 and
MUA-10 zoned parcels which would reduce the solitude and foraging area for the
birds. Even if the residential development I restricted in the sensitive habitat area, if
the Lower Bridge Estates and Odin Falls Ranch subdivisions are built -out, the
density of development may alter the foraging area and solitude of the birds
sufficiently to cause abandonment of the site. The pair of birds using this site are
accustomed to an environment with little disturbance because, except for the use of
the Outward Bound property, there is little human activity within the sensitive
habitat or nearby.
Development on lots on the east [sic} side of the river which are opposite of the nest
would be a conflict with the nest because the elevation of the bench is near the
elevation of the nest and the homes and residential activities would be visible and
audible from the nest.
* * *
Increased recreational use of the river during nesting season could also be a
significant conflict. This recreational use is unlikely with the present ownership
pattern because there is no public access to the river. However, intensification of
recreational or training activities on the Outward Bound property during the
nesting period could cause significant conflict with the birds.
* * *
5. Program to Meet Goal 5.
The Board of County Commissioners finds that, based on the ESEE consequences,
both the resource site and the conflicting uses are important relative to each other
and that the ESEE consequences should be balanced to allow conflicting uses in a
limited way (OAR [Oregon Administrative Rules] 660-16-010(3)).
1. In order to protect both the nest site and sensitive habitat area and allow
limited conflicting uses, single family dwellings within the sensitive habitat
area shall be allowed if they meet the special setbacks established below and
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mapped on "Attachment B"
Map and Lot # Special Setback
14 -12 -22 -DO -100 50 feet from upper rimrock
* * *
14-12-22D-500 no additional structural development within sensitive
habitat area
* * *
14 -12 -23 -CO -099 common area — no structural development in sensitive
habitat area
2. On the following lots native vegetation must be maintained 011 the side(s) of
the house or accessory structures facing the nest to provide screening
between the development and the nest site. * * *
* * *
3. Conditional uses listed in Title 18.60.030 (RR -10) or Title 18.32.030 (MUA-
10) shall not be permitted within the sensitive habitat area.
4. For all lots within the sensitive habitat area, construction activities for
expansion, maintenance, replacement of existing structures or construction
of new structures requiring a building permit from the Deschutes County
Community Development Department or septic installation requiring a
permit from the Environmental Health Division shall be prohibited during
the nesting season from February 1 through August 1. * * *.
5. Nonfarm partitions to create a parcel for a nonfarm dwelling shall be
prohibited within the sensitive habitat on 14 -12 -22 -DO -500. (Emphasis
added.)
In summary, the ESEE analysis determined:
• conflicting uses include residential development on the RR -10 and MUA-10 zoned
parcels, development of lots on the east side of the river across from the nest site, and
intensification of recreational or training activities on the Outward Bound site during
nesting season;
• in order to balance the nest site and conflicting uses, both of which are important, single-
family dwellings shall be allowed within the sensitive habitat only outside certain
described minimum setbacks;
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• "no additional structural development" shall be allowed within the sensitive habitat on
the Outward Bound site; and
• "no structural development" shall be allowed within the sensitive habitat on the Odin
Falls Subdivision common area across the river from the nest site (Tax Lot 99 on map 14-
12 -23 -CO).
The above -underscored ESEE language presents the question of whether converting the canvas
tents to wood cabins within the SBMH Zone on the subject property conflicts with the
prohibition on "additional structural development" in the site-specific ESEE analysis. The parties
disagree on the meaning and effect of this prohibition. Opponents and Steven George of ODFW
interpret the ESEE language to prohibit construction of the cabins altogether. In contrast, in his
August 17, 2010 submission Mr. Hultberg argued the prohibition does not apply to the cabins
because: (1) it applies only to new single-family dwellings since it is included in the section of
the plan to meet the goal addressing such dwellings; and (2) the cabins do not constitute
"additional structural development" but rather expansions of the existing tent platform structures
that under the ESEE are subject only to restrictions on the timing of construction. Based on these
arguments, the Hearings Officer finds the phrase "additional structural development" is
ambiguous.
When an ordinance or comprehensive plan provision is ambiguous, the Hearings Officer must
ascertain the intent of the drafters. The Oregon Supreme Court's decision in PGE v. Bureau of
Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), sets forth a three-step analysis for such
a determination. The first step is to examine the text and context of the provision in question. If
the drafters' intent is not obvious from the text and context, then the analysis turns to an
examination of any submitted legislative history. If the intent is still not clear from the legislative
history, general rules of statutory construction can be considered. In State v. Gaines, 346 Or 160,
206 P3d 1042 (2009), the Supreme Court revised the PGE analysis in light of amendments to
ORS 174.020 that allow consideration of proffered legislative history regardless of whether the
text and context of the provision at issue are ambiguous. However, because no legislative history
concerning the ESEE analysis for Site DE -0009-00 was submitted into this record, I find nothing
in State v. Gaines changes the nature of the required analysis here.
Turning first to the text, the phrase "additional structural development" is not defined. Section
18.04.030 defines "structure" as "something constructed or built having a fixed base on, or fixed
connection to, the ground or another structure." The ordinary definitions of the terms "structural"
and "development" are, respectively:
• "of, having, or characterized by structure, or formation; * * * used in construction or
building;" and
7 Mr. George also argued the existing tent platforms within the SBMH Zone should be removed. The
Hearings Officer agrees with the applicant that since the tent platforms were in place in 1992 when the
site-specific ESEE analysis was adopted, they are part of the lawful nonconforming use and there is no
legal basis for their removal.
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• "a developing or being developed * * *; a step or stage in growth, advancement, etc.; a
thing that is developed; result of development." Webster's New World Dictionary,
College Edition.
The applicant argues the phrase "structural development" means new structures, and because the
cabins were constructed on existing elevated tent platforms they were not new structures. The
applicant acknowledges the cabins have new "structural components" — i.e., framed walls, roofs,
doors and windows the canvas tents did not have, but asserts these are merely "alterations" to the
existing tent platform structure. The Hearings Officer finds this interpretation is not the most
reasonable reading of the ordinance language. I find the definition of "structure" in Section
18.04.030 would apply to the walls and roofs added to the tent platforms because they are built
and framed, and are "something constructed or built having * * * a fixed connection to * * *
another structure" — i.e., the tent platforms that have a fixed base on or are attached to the
ground. Similarly, I find the ordinary definitions of "structural" and "development" also would
encompass structural components added to an existing structure to enhance its function.
The Hearings Officer finds the context of the phrase "additional structural development" consists
of the entire ESEE analysis for Site DE -0009-00. The analysis clearly describes conflicting uses
with the nest site as: (a) residential development on the surrounding parcels zoned RR -10 and
MUA-10; (b) development on the lots directly across the river from the nest site; and (c)
intensification of recreational and training activities on the subject property. The ESEE also
clearly states the plan to meet the goal is to balance these conflicting uses with the nest site
resource by allowing the identified conflicting uses in a limited way.
However, ESEE analysis "plan to meet the goal" is not as clear. Paragraph (1) of the plan lumps
the three categories of conflicting uses together although the paragraph's narrative states it
addresses only limitations on the siting of single-family dwellings through the establishment of
"special setbacks." The list of parcels subject to this paragraph includes not only all RR -10 and
MUA-10 zoned parcels on which single-family dwellings would be permitted subject to special
setbacks, it also includes the EFU-zoned subject property developed with the Outward Bound
facility, and the Odin Falls Subdivision common area parcel. Neither of these two parcels is
identified in the ESEE as presently eligible for development with single-family dwellings within
the sensitive habitat area, and neither parcel is subject to "special setbacks." Rather, they both are
subject to prohibitions on "structural development."
In contrast to the conflation of conflicting uses in Paragraph (1), the language in Paragraphs (2)
and (5) of the plan to meet the goal distinguishes between these three categories. Paragraph (2)
requires that native vegetation be maintained on the sides of "the house or accessory structure,"
but does not list either the subject property or the Odin Falls Subdivision common area as subject
to this requirement. Similarly, Paragraph (5) singles out the subject property for a prohibition on
the future creation of a nonfarm parcel for a nonfarm dwelling within the sensitive habitat area,
also indicating the subject property was not considered to be eligible for development with a
single-family dwelling in the sensitive habitat area.
While this context is not the picture of clarity, the Hearings Officer nevertheless finds from the
language in the plan to meet the goal that the ESEE drafters did not intent the prohibition on
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"additional structural development" on the subject property to be limited to single-family
dwellings as argued by the applicant. Rather, in this context, I find inclusion of the subject
property and the Odin Falls Subdivision common area along with the residential lots in the list of
parcels subject to "special setbacks" in Paragraph (1) of the plan to meet the goal was simply
careless drafting.
The applicant also argues "additional structural development" was not intended to apply to
conversion of the canvas wall tents to wood cabins on existing tent platforms because the ESEE
analysis identifies the conflicting use on the Outward Bound property as intensification of
recreational and training activity in the sensitive habitat area. The record indicates that when
ESEE analysis was adopted the sensitive habitat area on the subject property already was
developed with a few tent platforms and seasonal canvas tents. The applicant argues this factual
context strongly suggests the ESEE drafters intended only to prohibit future development that
could result in increased human activity during the nesting season. Therefore, because the nature
and extent of the cabins' use will be the same as that of the tents, and the cabins occupy the same
footprint and have essentially the same mass as the canvas tents, conversion of the tents to cabins
will not increase human activity.
The Hearings Officer finds this argument is not without merit. Nevertheless, I don't believe it
adequately addresses use of the phrase "additional structural development" in describing the
ESEE prohibition. One of the maxims of statutory construction — relevant under the PGE
analysis if the term or phrase at issue remains ambiguous after considering its text and context —
is that the drafters are presumed to have chosen ordinance terms knowingly and purposefully. In
light of the definition of "structure" in Title 18, of which the drafters are presumed to have been
aware, it seems unlikely they would have considered the canvas tents to be "structures," whereas
the platforms clearly were. In light of the definition of "structure," I find it more reasonable to
conclude the drafters' use of the phrase "additional structural development" signifies their intent
to prohibit both new structures, and additions to existing structures such as tent platforms, within
the sensitive habitat area, including wood cabins constructed on the tent platforms.
The Hearings Officer finds that considering the text, context, and rules of statutory construction
discussed above, the most reasonable reading of the phrase "additional structural development"
is that it prohibits the cabins within the SBMH Zone because they are new structures or
expansions to existing structures, and the cabins did not exist in the sensitive habitat area at the
time the ESEE analysis was adopted. For these reasons, I find the cabins within the SBMH
Zone do not conform to the site-specific ESEE analysis for Site DE -0009-00, and therefore
they cannot be approved and must be removed from the tent platforms.
d. Section 18.90.060, Site Plan Review Criteria
Approval of the site plan shall be based on the following criteria:
A. The site plan shall consider the biology of the identified
sensitive species, nesting trees, critical nesting periods, roosting
sites and buffer areas. Based on the biology of the species and
the characteristics of the site, the site plan shall provide
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protection that will prevent destruction of the subject nesting
site, lek, hibernation site or rookery and will, to a reasonable
certainty, avoid causing the site to be abandoned.
FINDINGS: The identified sensitive species is a pair of golden eagles whose nest site is located
on a cliff on the west side of the Deschutes River north of the subject property. In his comments
on the applicant's proposal, Steven George of ODFW stated that at some point human activity on
the Outward Bound site will reach a point causing the eagles to abandon their nest site.
Nevertheless, the Hearings Officer has found that because the nature and extent of the use of the
cabins will be essentially the same as use of the tents, they will not create additional human
activity on the subject property. For this reason, I find there is not a sufficient factual basis in this
record to conclude the cabins would cause the abandonment or destruction of the nest site. But as
discussed above I have found the cabins within the SBMH Zone cannot be approved and must be
removed because their construction does not conform to the site-specific ESEE analysis.
B. Development activities, including grading and fill, mining,
construction, or activities generating noise or dust within the
sensitive habitat area shall be prohibited during the nesting,
strutting or hibernation season identified in the site specific
ESEE analysis and decision for each habitat site. An exception
to this standard may be made if the Oregon Department of
Fish and Wildlife determines in writing that the nest, lek or
rookery is not active and will not become active during the
proposed construction period of if the sensitive birds have
fledged. Construction activities within an enclosed structure
may be conducted during the nesting, strutting or hibernation
season. Construction activities necessary to repair an existing
septic system or to replace or repair a structure destroyed or
damaged by fire or other natural causes may be conducted
during the nesting, strutting or hibernation season.
FINDINGS: The staff report correctly notes that removal of the cabins within the SBMH Zone
must take place outside of the eagles' nesting season as described in the site-specific ESEE.
C. New roads, driveways or public trails shall be located at the
greatest distance possible from the nest, lek, rookery or
hibernation site unless topographic or vegetation or structural
features will provide greater visual and/or noise buffer from
the nest, lek, rookery or hibernation site.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
does not proposed any new roads, driveways or public trails.
D. Existing vegetation or other landscape features which are
located on the subject property and which obscure the view of
the nest, rookery, lek or hibernation site from the proposed
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development, shall be preserved and maintained. A restrictive
covenant to preserve and maintain vegetation shall be required
when specified in the ESEE for the site.
FINDINGS: The applicant does not propose to remove any existing vegetation.
E. No partitions or subdivisions shall be permitted which would
force location of a dwelling or other structure, not otherwise
permitted by the site specific ESEE, within the designated
sensitive habitat area.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant
does not propose to divide the subject property.
F. All exterior lighting, including security lighting shall be sited
and shielded so that the light is directed downward and does
not shine on the subject nest, rookery, lek or hibernation site.
FINDINGS: The applicant does not propose any new exterior lighting. However, the Hearings
Officer has found that as a condition of approval for the approved cabins the applicant will be
required to install any exterior lighting in accordance with the county's outdoor lighting
ordinance and so it is shielded to direct light downward and away from adjacent parcels and the
river.
G. The site plan shall conform with the requirements of the ESEE
decision for the subject sensitive bird or mammal site
contained in the Resource Element of the Deschutes County
Comprehensive Plan.
FINDINGS: As discussed above, the Hearings Officer has found the applicant's proposal does
not conform to the site-specific ESEE for the golden eagles' nest.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal does not satisfy all
applicable approval criteria in the SBMH Zone because it does not conform to the site-specific
ESEE analysis for Site DE -0009-00.
SITE PLAN APPROVAL STANDARDS
5. Chapter 18.124, Site Plan Review
a. Section 18.124.030, Approval Required
A. No building, grading, parking, land use, sign or other required
permit shall be issued for a use subject to DCC 18.124.030, nor
shall such a use be commenced, enlarged, altered or changed
until a final site plan is approved according to DCC Title 22,
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the Uniform Development Procedures Ordinance.
FINDINGS: The Hearings Officer has found the cabins may be subject to building plan review
and require building permits to assure compliance with code provisions relating to residential
occupancy. Therefore I find the proposal is subject to site plan review under this chapter.
B. The provisions of DCC 18.124.030 shall apply to the following:
1. All conditional use permits where a site plan is a
condition of approval;
2. Multiple -family dwellings with more than three units;
3. All commercial uses that require parking facilities;
4. All industrial uses;
5. All other uses that serve the general public or that
otherwise require parking facilities, including, but not
limited to, landfills, schools, utility facilities, churches,
community buildings, cemeteries, mausoleums,
crematories, airports, parks and recreation facilities
and livestock sales yards; and
6. As specified for Flood Plain Zones (FP) and Surface
Mining Impact Area Combining Zones (SMIA).
C. The provisions of DCC 18.124.030 shall not apply to uses
involving the stabling and training of equine in the EFU zone,
noncommercial stables and horse events not requiring a
conditional use permit.
D. Noncompliance with a final approved site plan shall be a
zoning ordnance violation.
E. As a condition of approval of any action not included in DCC
18.124.030(B), the Planning Director or Hearings Body may
require site plan approval prior to the issuance of any permits.
FINDINGS: The staff report states the applicant's proposal is subject to site plan review because
it requires parking. The Hearings Officer disagrees inasmuch as use of the cabins would not
result in additional staff or vehicles being on the subject property. As discussed in the findings
above under Section 18.124.030, I have found the proposal is subject to site plan review because
the cabins are likely to require building plan review and permits. However, because I have found
the cabins within the SBMH Zone cannot be approved, the site plan approval criteria under
Chapter 18.124 apply only to the cabins located outside the SBMH Zone.
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b. Section 18.124.060, Site Plan Approval Criteria
Approval of a site plan shall be based on the following criteria:
A. The proposed development shall relate harmoniously to the
natural environment and existing development, minimizing
visual impacts and preserving natural features including views
and topographical features.
FINDINGS: The applicant requests approval to replace white canvas wall tents with wood
cabins constructed on the existing tent platforms. The Hearings Officer has found the applicant
will be required as a condition of approval for the approved cabins to stain or paint them in
muted earth -toned colors in order to blend with the surrounding vegetation and landscape. I find
this requirement also will assure the approved cabins relate harmoniously with the natural
environment and minimize visual impacts from the cabins, therefore satisfying this criterion.
B. The landscape and existing topography shall be preserved to
the greatest extent possible, considering development
constraints and suitability of the landscape and topography.
Preserved trees and shrubs shall be protected.
FINDINGS: The applicant proposes no changes to the existing landscape or topography for the
cabins, therefore satisfying this criterion.
C. The site plan shall be designed to provide a safe environment,
while offering appropriate opportunities for privacy and
transition from public to private spaces.
FINDINGS: The applicant proposes to convert the canvas wall tents to wood cabins in part to
provide more privacy for Outward Bound instructors and to provide more secure storage for
instructors' equipment and personal belongings. The cabins will have access from a driveway off
N.W. 83rd Street. Therefore, the Hearings Officer finds the applicant's proposal satisfies this
criterion.
D. When appropriate, the site plan shall provide for the special
needs of handicapped persons, such as ramps for wheelchairs
and Braille signs.
FINDINGS: The Hearings Officer findsbuilding division plan review of the approved cabins
will determine whether and to what extent the cabins must comply with handicap access
requirements.
E. The location and number of points of access to the site, interior
circulation patterns, separations between pedestrians and
moving and parked vehicles, and the arrangement of parking
areas in relation to buildings and structures shall be
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harmonious with proposed and neighboring buildings and
structures.
FINDINGS: Vehicular access to the subject property and the cabins is from a driveway off
N.W. 83rd Street. No changes to the existing access are proposed. The staff report states, and the
Hearings Officer agrees, that the existing site layout provides ease of access, allows persons to
enter the site in a safe manner, and will be harmonious with the existing buildings, therefore
satisfying this criterion.
F. Surface drainage systems shall be designed to prevent adverse
impacts 011 neighboring properties, streets or surface and
subsurface water quality.
FINDINGS: The record indicates surface water run-off on the subject property is accommodated
on-site through retention in soil and landscaped areas. This method appears to prevent adverse
impacts to neighboring properties, streets, and the Deschutes River, therefore satisfying this
criterion.
G. Areas, structures and facilities for storage, machinery and
equipment services (mail, refuse, utility wires, and the like),
loading and parking and similar accessory structures shall be
designed, located and buffered or screened to minimize
adverse impacts on the site and neighboring properties.
FINDINGS: The applicant does not propose any changes to the site for storage, machinery or
equipment services. The Hearings Officer has found the applicant will be required as a condition
of approval to paint or stain the approved cabins in muted earth -toned colors to blend with
surrounding vegetation and landscape. I find this requirement also will minimize adverse visual
impacts from the cabins on neighboring properties, therefore satisfying this criterion.
H. All aboveground utility installations shall be located to
minimize adverse visual impacts on the site and neighboring
properties.
FINDINGS: The applicant does not propose any utility installations for the cabins.
I. Specific criteria are outlined for each zone and shall be a
required part of the site plan (e.g. lot setbacks, etc.)
FINDINGS: Compliance with the standards in the EFU, LM and SBMH Zones is addressed in
the findings above.
J. All exterior lighting shall be shielded so that direct light does
not project off-site.
FINDINGS: The Hearings Officer has found the if any exterior lighting is installed in
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conjunction with the approved cabins, the applicant will be required as a condition of approval to
install any such lighting in compliance with the outdoor lighting ordinance in Chapter 15.10 of
the county code.
c. Section 18,124.070, Required Minimum Standards.
* * *
B. Required Landscape Areas.
1. The following landscape requirements are established
for multi -family, commercial and industrial
developments, subject to site plan approval:
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant's
existing facility and the cabins do not constitute a commercial use.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies, or with
imposition of the condition of approval described above will satisfy, all applicable site plan
approval criteria for the approved cabins.
SUPPLEMENTARY PROVISIONS
6. Chapter 18.116, Supplementary Provisions
a. Section 18.116.020, Clear Vision Areas
A. In all zones, a clear vision area shall be maintained on the
corners of all property at the intersection of two streets or a
street and a railroad. A clear vision area shall contain no
planting, fence, wall, structure, or temporary or permanent
obstruction exceeding three and one-half feet in height,
measured from the top of the curb, or, where no curb exists,
from the established street centerline grade, except that trees
exceeding this height may be located in this area provided all
branches and foliage are removed to a height of eight feet
above the grade.
FINDINGS: No new driveways are proposed in conjunction with conversion of the canvas tents
to wood cabins. As a result of previous land use approvals affecting the subject property, the
applicant is required to comply with the clear vision areas established in this section at the
intersection of entry the driveway and 83`d Street.
b. Section 18.116.030, Off Street Parking and Loading
* * *
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D. Number of spaces required. Off-street parking shall be
provided as follows:
FINDINGS: The Hearings Officer finds that because each cabin will accommodate up to two
persons as did each canvas tent, no additional persons or vehicles will be on the subject property
as a result of conversion of the tents to cabins, and therefore no additional parking is required.
c. Section 18.116.031, Bicycle Parking
FINDINGS: The Hearings Officer finds that because no new vehicle parking spaces are required
no new bicycle parking spaces are required.
V. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the applicant's proposal in part, SUBJECT TO THE FOLLOWING
LIMITATIONS AND CONDITIONS OF APPROVAL:
1. This approval is based on the applicant's submitted burden of proof statement and
attachments, site plan, and written and oral testimony. Any substantial change to the
approved use will require a new land use application and approval.
NATURE AND EXTENT OF APPROVED USE:
2. This decision approves use of the exiting wood cabins located outside the SBMH Zone
on the subject property (hereafter "approved cabins") for storage of Outward Bound
instructors' equipment and personal belongings, and overnight sleeping accommodations
for up to two Outward Bound instructors per cabin, while the Outward Bound training
facility and base camp are in use from March through September.
3. This decision does not approve the cabins located within the SBMH Zone on the subject
property or their use.
4. This decision does not relieve the applicant/owner of the requirement to comply with all
limitations and conditions of approval imposed through previous land use decisions.
WITHIN 30 DAYS OF THE DATE THIS DECISION BECOMES FINAL:
5. The applicant/owner shall submit to the Planning Division a site plan, prepared by a
registered land surveyor, showing the surveyed location of the SBMH Zone boundary on
the subject property and the exact locations of the cabins within and outside the SBMH
Zone boundaries.
6. The applicant/owner shall apply for any and all necessary plan review and permits for the
approved cabins from the Deschutes County Building Division.
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WITHIN 90 DAYS OF THE DATE THIS DECISION BECOMES FINAL:
7. The applicant/owner shall obtain any and all necessary plan review and permits for the
approved cabins from the Deschutes County Building Division.
8. The applicant/owner shall paint or stain the approved cabins in muted earth tones selected
in consultation with the Planning Division. If due to weather conditions the painting
and/or staining of the approved cabins cannot be completed within 90 days of the date
this decision becomes final, the applicant/owner shall paint and/or stain the cabins as
soon as practicable thereafter considering weather conditions.
9. The applicant/owner shall remove all cabins located inside the boundaries of the SBMH
Zone.
AT ALL TIMES:
10. Any exterior lighting installed in conjunction with the approved cabins shall be shielded
so it is directed downward and does not shine on adjacent parcels or the Deschutes River,
and shall comply with the outdoor lighting ordinance in Chapter 15.10 of the Deschutes
County Code.
11. The applicant/owner shall comply with all requirements of the Redmond Fire Department
set forth it the department's May 24, 2010 comments included in the record.
12. The applicant/owner shall comply with all requirements of the Deschutes County
Building Division for the approved cabins and for demolition and/or removal of the
cabins located inside the boundaries of the SBMH Zone.
Dated this ag9/g day of September, 2010.
Mailed this% y of September, 2010.
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.
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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/
CERTIFICATE OF MAILING
FILE NUMBERS: NCU-10-3, SP -10-7
DOCUMENT(S) MAILED: Hearings Officer's Decision
TAX LOT NUMBER(S): 14-12-22D, 500
I certify that on the 29th day of September, 2010, the attached Hearings Officer's
Decision, dated September 29, 2010, was mailed by first class mail, postage prepaid, to the
person(s) and address(es) set forth on the attached list.
Dated this 29th day of September, 2010.
COMMUNITY DEVELOPMENT DEPARTMENT
By: Sher Buckner
Outward Bound West
c/o Henry Morse
6400 NW 83rd Street
Redmond, OR 97756
Pacific Crest Outward Bound School
18048 S. Skyland Circle
Lake Oswego, OR 97034
Steven George
Oregon Department of Fish and Wildlife
61374 Parrell Road
Bend, OR 97702
Ron and Wendy Calkins
P.O. Box 2315
Terrebonne, OR 97760
Suzanne Michaels and Karen Petit
8000 NW Grubstake Way
Redmond, OR 97756
; :;
Spencer Krueger and Mary Lefevre
7940 NW Grubstake Way
Redmond, OR 97756
Jon and Elly Gustafson
7980 NW Grubstake Way
Redmond, OR 97756
Erhardt Wachs
8020 NW Grubstake Way
Redmond, OR 97756
Larry and Dawn Kruckenberg
8010 NW Grubstake Way
Redmond, OR 97756
Linda M. Glidden -Pickering
7950 NW Grubstake Way
Redmond, OR 97756
Steven P. Hultberg
Ball Janik, LLP
15 S.W. Colorado Avenue, Suite 3
Bend, OR 97702
Joe and Cindi Farmer
7985 NW Grubstake Way
Redmond, OR 97756
Ted and Judy Moore
397 Goshawk Ct.
Redmond, OR 97756
Quality Services Performed with Pride
SBMH Combining Zone
Applicant Proposed Golden Eagle Nest Site - 1,320' Buffer
ODFW Golden Eagle Nest Site - 1,320' Buffer
Applicant Proposed Golden Eagle Nest Site
ODFW Golden Eagle Nest Site DE -009-00
July 12, 2010
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