Loading...
HomeMy WebLinkAboutOrder 061 - Whether to Hear Appeals - Dowell-KuhnO I.1 1 .s..7-< Deschutes 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 Preferred Meeting Date Please see directions for completing this document on the next page. DATE: September 29, 2009 FROM: Will Groves CDD 388 -6518 TITLE OF AGENDA ITEM: A decision on whether to hear an appeal of a Hearings Officer decision reversing the Planning Division's decision to issue a LUCS and building permit to remodel the Dowells' existing dwelling on the subject property (A- 07 -9). (Files Nos. A -09 -4, A -09 -5) PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: Staff presented this issue to the Board in a work session on September 16, 2009. For general background on this matter, please refer to the memo and other supporting materials from that meeting. At the work session on September 16, 2009, the Board indicated a preference for consolidating these appeals and hearing them limited de novo. The Board indicated the two types of additional written materials could be submitted: 1)Written records, identified and marked as exhibits as having been submitted in Kuhn v. Dowell (Deschutes County Circuit Court Case No. 01CV0233MA, 2001) and 2)Written evidence demonstrating the setbacks of the Kuhn residence and the Dowell residence from Sisemore Road The Board had requested written records from Kuhn v. Dowell because both LUBA and Hearings Officer had identified these records as potentially important evidence not presently included in the record for the case now before the Board (A -07 -9, A -09 -4, A- 09 -5). STAFF DISCUSSION Transcripts from the Circuit Court proceeding. Staff requests direction from the Board regarding what materials from Kuhn v. Dowell may be submitted. Ms. Hardy (the Kuhns' attorney) has suggested that a certified transcript could be considered a document and should therefore be received, while Mr. Lovlein (the Dowells' attorney) has indicated the opposite. Staff has included these arguments in the Board's packet for this item. Staff has submitted alternative orders to the Board in this packet with the principal difference bein;; either to allow or not allow oral transcriptions of Kuhn v. Dowell. Duration of Evidence, Rebuttal, and Argument Periods As noted above, Staff has submitted alternative orders to the Board in this packet. In the alternate order allowing written transcripts, Staff has provided a somewhat longer timeframe for submittal of "documents" and therefore written arguments. Ms. Hardy has requested an extended time for submittal of evidence, rebuttal, and argument, while Mr. Lovlein has indicated a preference for an expedited schedule. Staff requests direction from the Board regarding the time allowed for evidence, rebuttal, and argument. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: Decide whether or not to hear the appeal, how to hear the appeal, and what materials from the 2002 Circuit Court proceeding (Deschutes County Circuit Court Case No. 01CV0233MA, 2001) may be submitted. ATTENDANCE: Will Groves DISTRIBUTION OF DOCUMENTS: Legal Community Development Department Planning Division Building Safety Division Environmental Health Division October 1, 2009 117 NW Lafayette Avenue Bend Oregon 97701 -1925 (541)388 -6575 FAX (541)385 -1764 http : / /www.co.deschutes.or.us /cdd/ MEMORANDUM To: Deschutes Board of County Commissioners From: Will Groves, Senior Planner Subject: Board consideration to hear or not hear appeals (A -09 -4, A -09 -5) of a Hearings Officer decision reversing the Planning Division's decision to issue a LUCS and building permit to remodel the DowelIs' existing dwelling on the subject property (A- 07 -9). BACKGROUND Staff presented this issue to the Board in a work session on September 16, 2009. For general background on this matter, please refer to the memo and other supporting materials from that meeting. At the work session on September 16, 2009, the Board indicated a preference for consolidating these appeals and hearing them limited de novo. The Board indicated the two types of additional written materials could be submitted: 1) Written records, identified and marked as exhibits as having been submitted in Kuhn v. Dowell (Deschutes County Circuit Court Case No. 01 CV0233MA, 2001) and 2) Written evidence demonstrating the setbacks of the Kuhn residence and the Dowell residence from Sisemore Road The Board had requested written records from Kuhn v. Dowell because both LUBA and Hearings Officer had identified these records as potentially important evidence not presently included in the record for the case now before the Board (A -07 -9, A -09 -4, A- 09-5). STAFF DISCUSSION Transcripts from the Circuit Court proceeding. Quality Services Performed with Pride Staff requests direction from the Board regarding what materials from Kuhn v. Dowell' may be submitted. Ms. Hardy (the Kuhns' attorney) has suggested that a certified transcript could be considered a document and should therefore be received, while Mr. Lovlein (the Dowells' attorney) has indicated the opposite. Staff has included these arguments in the Board's packet for this item. Staff has submitted alternative orders to the Board in this packet with the principal difference being either to allow or not allow oral transcriptions of Kuhn v. Dowell. Duration of Evidence, Rebuttal, and Argument Periods As noted above, Staff has submitted alternative orders to the Board in this packet. In the alternate order allowing written transcripts, Staff has provided a somewhat longer timeframe for submittal of "documents" and therefore written arguments. Ms. Hardy has requested an extended time for submittal of evidence, rebuttal, and argument, while Mr. Lovlein has indicated a preference for an expedited schedule. Staff requests direction from the Board regarding the time allowed for evidence, rebuttal, and argument. DOCUMENTATION A copy of the Hearings Officer decision and relevant previous documents are attached for your review. SCHEDULE This item is scheduled for the Board's regular meeting on October 5th, 2009 in order for the Board to decide whether or not to hear the appeal. Please feel free to contact me with any questions or concerns. 1 In 2001, the Kuhns filed a civil complaint in Deschutes County Circuit Court (Case No. 01CV0233MA) requesting, among other things, a declaratory judgment that the Dowells' dwelling on the subject property was unlawful because it was built more than 400 feet from Sisemore Road. On August 2, 2002 Deschutes County Circuit Judge A. Michael Adler issued a decision and judgment in the Kuhns' civil suit against the Dowells that included the following relevant findings: Plaintiffs have not established that the Defendants' [Dowells'] property is in violation of the Deschutes County Code as alleged. Plaintiffs [Kuhns) have not established that the location of the existing building on Defendants' property is in violation of a requirement that the building be entirely within 400 feet of Sisemore Road measured perpendicularly from the front (east end) property line. On Plaintiffs' First Claim, judgment is for the Defendants." The circuit court's decision was affirmed without opinion by the Oregon Court of Appeals in Kuhn v. Dowell, 196 Or App 787, 106 P3d 699 (2004). REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Accepting Review of Hearings Officer's * Decision in File no. A -07 -09 (A -09 -4 and A -09 -5) * ORDER NO. 2009-061 WHEREAS, Appellant, Jeff and Pat Dowell, appealed the Hearings Officer's decision in application number A -07 -09 (Dowell appeal or A- 09 -4); and WHEREAS, Appellant, William and Leigh Kuhn, also appealed the Hearings Officer's decision in application number A -07 -09 (Kuhn appeal or A- 09 -5); and WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County Commissioners (Board) discretion on whether and in what manner to hear appeals of Hearings Officer's decisions; and WHEREAS, the Board has given due consideration as to whether to review the appeal of the application; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The Board will conduct a single hearing to consider the Dowell appeal and the Kuhn appeal for application number A -07 -09 pursuant to Title 22 and other applicable provisions of the Deschutes County Code. Section 2. The hearing on these appeals shall be limited de novo. In addition to materials presently in the record of County Files numbers A- 07 -09, A -09 -4 and A -09 -5, the Board will receive from any party to tl is proceeding and consider written records, identified and marked as exhibits as having been submitted in Kuhn v. Dowell (Deschutes County Circuit Court Case No. 01CV0233MA, 2001); written evidence demonstrating the setbacks of the Kuhn residence and the Dowell residence from Sisemore Road and relevant portions of oral testimony in the form of certified transcripts from Kuhn v Dowell. Section 3. Except as otherwise provided in Section 2, no other oral or written evidence will be received. Written evidence will be received no later than October 16, 2009. Section 4. Evidence offered in rebuttal to written evidence will be received no later than October 23, 2009. Section 5. Written legal arguments will be received from the Kuhn's and the Dowell's no later th n November 6, 2009. Oral argument and rebuttal argument will not be allowed. PAGE 1 OF 2 - ORDER No. 2009 -061 (10/05/09) Section 6. Staff shall cause notice of this order to be given to persons or parties entitled to notice pursuant to DCC 22.24.030 and 22.32.030. Dated this ATTEST: , 2009 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TAMMY BANEY, Chair DENNIS R. LUKE, Vice Chair Recording Secretary ALAN UNGER, Commissioner PAGE 2 OF 2 - ORDER NO. 2009-061 (10/05/09) REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Accepting Review of Hearings Officer's Decision in File no. A -07 -09 (A -09 -4 and A -09 -5) * ORDER NO. 2009-061 WHEREAS, Appellant, Jeff and Pat Dowell, appealed the Hearings Officer's decision in application number A -07 -09 (Dowell appeal or A- 09 -4); and WHEREAS, Appellant, William and Leigh Kuhn, also appealed the Hearings Officer's decision in application number A -07 -09 (Kuhn appeal or A- 09 -5); and WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County Commissioners (Board) discretion on whether and in what manner to hear appeals of Hearings Officer's decisions; and WHEREAS, the Board has given due consideration as to whether to review the appeal of the application; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREIN ORDERS as follows: Section 1. The Board will conduct a single hearing to consider the Dowell appeal and the Kuhn appeal for application number A -07 -09 pursuant to Title 22 and other applicable provisions of the Deschutes Coui qty Code. Section 2. The hearing on these appeals shall be limited de novo. In addition to materials presently in the record of County Files numbers A- 07 -09, A -09 -4 and A -09 -5, the Board will receive from any party to this proceeding and consider written records, identified and marked as exhibits as having been submitted in Kuhn v. Dowell (Deschutes County Circuit Court Case No. 01CV0233MA, 2001); and written evidence demonstrating the setbacks of the Kuhn residence and the Dowell residence from Sisemore Road. No oral testimony in the form of certified transcripts or otherwise from Kuhn v Dowell will be received. Section 3. Except as otherwise provided in Section 2, no other oral or written evidence will be received. Written evidence will be received no later than October 16, 2009. Section 4. Evidence offered in rebuttal to written evidence will be received no later than October 3, 2009. Section 5. Written legal arguments will be received from the Kuhn's and the Dowell's no later th in November 6, 2009. Oral argument and rebuttal argument will not be allowed. PAGE 1 OF 2 - ORDER No. 2009 -061 (10/05/09) Section 6. Staff shall cause notice of this order to be given to persons or parties entitled to notice pursuant to DCC 22.24.030 and 22.32.030. Dated this of , 2009 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TAMMY BANEY, Chair DENNIS R. LUKE, Vice Chair ATTEST: Recording Secretary ALAN UNGER, Commissioner PAGE 2 OF 2 - ORDER No. 2009 -061 (10/05/09) BRYANT LC_)VLIEN JARVIS, PC Al R)ItNI' ' Ni _ l.nr t vri_caii i rn; Neil R. Bryant Robert S. Lovlien John A. Berge Sharon R. Smith John D. Sorlie Mark G. Reinecke Melissa P. Lande Kitri C. Ford Paul J. Taylor Kyle D. Wuepper Jeremy M. Green Helen L. Eastwood Peter A. Christoff Melinda Thomas 591 S.W. Mill View Way Mail: P.O. Box 880 Bend, Oregon 97709 Phone: (541) 382 -4331 Fax: (541) 389 -3386 WWW.BLJLAINYERS.COM V SEP 2 4 2009 September 23, 2009 C r,in t CD ms's ti' `� arm' William Groves Deschutes County Community Development Dept. 117 NW Lafayette Ave. Bend, OR 97701 Re: Kuhn and Dowell Appeal Nos. A 09 -4 and A 09 -5 Dear Mr. Groves: In recognition of all parties' desire to obtain closure in this matter, I suggest closing the record for additional documents on October 7, 2009 and allowing legal arguments until October 14, 2009. The hearing can then be set for the third week in October. I understand Ms. Hardy has requested additional time, but two weeks should be more than sufficient to review the record and submit any additional documents. It is clear from the direction of the County Commission that they will only allow documents that were submitted as part of the record and not any references to the oral transcript of the trial. This is not an opportunity for either side to retry the civil court case. Therefore, we object to Ms. Hardy's request to allow anything other than documents submitted during the trial. Enclosed is the only additional document the Dowells wish to submit from the 2002 Circuit Court trial. The document submitted at the trial on July 10, 2002, as Defendant's Exhibit 163, shows the alternative ways it is possible to measure the setback of the Dowells' dwelling from Sisemore Road. Please let us know if the Deschutes County Commissioners have any other questions or direction to the parties. We . look forward to a hearing date in mid - October. Very truly yours, / LIZ- ROBERT S. LOVLIEN RSL /alk Encl. cc: Pamela Hardy Mark Pilliod Mr. and Mrs. Jeff Dowell 9187 -010 118.doc SECIKW LINE ti N8971'4PW 901.63' DOWELL 4.3 ACRES +/— COMMON 34.5 ACRES- 49811' 451,% • g005 . N2J36"02'W 56.67' Lit t& T VI N+i N8971 4711V 306.60' 18117 SECTION 79 X20 CORNER KUHN 4.3 ACRES t/— N8971'4 ?1W J25.26' e• 5AT LLl7F 01511£5 LOCATED DN COMMON PROPERTY BUILDING LOCATION ON PARCEL /1 OF MP— 79 -232 LOCATED IN THE NE 1/4 OF SECTION 19, T 155, R.11E., W.M. DESCHUTES COUNTY, OREGON SURVEYED FOR.' JEFF DOWELL 448.24' 946.35' 500'87'23'W 58.72' N86V727 "W R. 13802' L- 115.83' l =9J 45'10" R- 194.18' L- 174154• I =5079'16' R =23388' L- 114.47 I =28V2 32 R= 15.180' L.2546' I =10:7604 R- 15380' L — 77.4J' 1.2850'44- .543'33'17"W 717.24' DATE 07/12/00 SCALE: 1' =200" REGISTERED PROFESSIONAL. LAND SURVEYOR OREGON VEBRU/.RY 14 1915 GEORGE W. COLVIN, JR 1020 EXP. 12/J1/O1 GEORGE COL VIN LANE) SURVEYOR 19045 PUMICE BUTTE AO BEND, OREGON 97702 PHONE: (511)382 —2039 William Groves From: Pam Hardy [pam @pamhardy.com] Sent: Tuesday, September 22, 2009 3:38 PM To: William Groves; 'Bob Lovlien': 'Helen Eastwood' Subject: RE: Kuhn and Dowell appeals - direction from the Board Hi Will, Thank you for the advance notice. I am working with my client to get a copy of the record in that proceeding. As you may know, Bryant, Lovlien and Jarvis represented the DowelIs in that appeal, but I did not represent the Kuhns at that time. As a result, I will need more time than they would to review that record, and determine which documents are relevent. As of yet, I have not even seen a copy of that record. I expect that 21 days from the date I receive it should be sufficient. In other words, I expect that 28 days from today would be adequate. After that I expect that I can produce a substantive brief in 21 additional days. I would prefer to set any oral arguments within 14 days of the completion of the briefing. Seven days would not be too short. In 1(a) below, does "documents" include transcriptions of oral testimony? If not, it seems that it should. As my client recalls the situation, much of the relevent information conveyed to the Court - especially by the County - was only in the form of live testimony. As such, reviewing only the written submissions could give the Board of Commissioners an incomplete picture. Further, if my client's recollections are correct, it would unduly prejudice this matter by causing the Board to overlook relevent evidence. I am sensitive to the concern the Board may have about being snowed under by a massive record That would be a valid reason to resist inclusion of all oral testimony as well. However, if that testimony is the only place in which certain statements and allegations were made, it would be prejudicial to exclude it. Accordingly, the longer the Board is able to provide for submission of the record, the more concise I can make my excerpts of that record. On the other hand, if the Board would like to see the complete record for its own reasons, or would like the record submitted sooner, rather than later, I will feel compelled to submit a more complete set of documents in order to ensure that nothing is missed. Please feel free to call if you have any questions. Best Regards, Pam ************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** Pam Hardy Attorney at Law 1629 NW Fresno Ave Bend OR 97701 (541) 550 -7968 IMPORTANT: This email and its attachments are intended for the above named recipient only anc may be privileged or confidential. If they have come to you in error, please return them by email to the sender, delete them from your computer and do not make any copies or records of them. Receipt of this email by anyone not already a client does not create an attorney client relationship. 1 Original Message From: William Groves [mailto:William _Groves @co.deschutes.or.us] Sent: Monday, September 21, 2009 11:35 AM To: Pam Hardy; Bob Lovlien; Helen Eastwood Subject: FW: Kuhn and Dowell appeals - direction from the Board All, The Board has agreed to hear this matter limited de novo, as described below. While Laurie is av‘ay, I will be working with Mark Pilliod to draft an order for the Board to hear this matter. I would like your input on the time you'd like for 4 and 5 below. Thanks, Will Groves Senior Planner Deschutes County Community Development Department (541) 388 -6518 The conditions of the de novo hearing are: 1. Limited to a. documents submitted at the 2003 trial, clearly marked as to which day they were submitted to the Circuit Court; and b. written evidence of where the Kuhn's house is in relationship to the 400' maximum building line as measured along all relative points on Sizemore Road. 2. The latter can be submitted by either party or by staff. 3. No other new evidence will be allowed and the order should also declare that the prior record is officially submitted to the Board. 4. The parties will have a couple of weeks to submit the documents. 5. Then, the parties will have a few weeks to submit their written legal arguments based on the submitted documents. 6. No rebuttal argument time for either party because this is to be legal arguments only. 2 DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW LAFAYETTE BEND, OREGON 97701 (541) 388 -6575 * * RECEIPT * RECEIPT * RECEIPT * RECEIPT * RECEIPT * RECEIPT * RECEIPT * * RECEIPT# 445059 BATCH 5662 INIT ETP TRANSIT# A095 Taxmap# 16 -11 -1900 100 Serial# 163466 Situs: 65595 SISEMORE RD,BE DESCRIPTION FEE PLANNING FEE 2420.00 NAME 11:04:32 31 AUG 2009 Page 1 CREDIT AMOUNT 2420.00 VISA Willianm J Kuhn TOTAL AMOUNT RECEIVED 2420.00 This is a receipt and does NOT constitute a permit or license DESCHUTES COUNTY PLANNING DIVISION * * LAND USE APPLICATION * * A095 Taxmap 16 -11 -1900 100 SERIAL 163466 Request appeal for HO Decision A -07 -9 WILLIAM JOHN & MARTHA LEIGH KUHN Location 65595 SISEMORE RD,BE Zone WA F2 LM Other affected property NONE 11:04:38 31 AUG 2009 Submitted date 08/31/09 Accepted date Assigned Planner NONE Expiration date 120th day Counter Person ETP Applicant WILLIAM JOHN & MARTHA LEIGH KUHN Owner DOWELL,PAT Address PO Box 5996 Phone (541) 389 -3676 City Bend, OR 97709 Receipts 445059 Amount Paid 2420.00 Status P Status date 08/31/09 Other Permit's 13 Permits TN Due to staff Due in mail Mailed Notice Due to staff Due in mail Mailed Admn decision due Due Plan Dir Admn dec Admn decision mailed Admin decision appealed HO Hearing date HO decision Staff rpt due Staff rpt mailed HO Decision mailed Appealed BOC hearing BOC decision BOC decision mailed BOC decision appealed COMMENTS: Initials ETP Date 08/31/09 APPLICATION SUBMITTED BY BILL KUHN OTHER LAND USE APPLICATIONS ON THIS PROPERTY LUA ID ACCPT DATE REQUEST A094 08/31/09 APPEAL OF HEARINGS OFFICER DECISON ON A -07 -9 A086 04/14/08 APPEAL OF HEARINGS OFFICER DECISION FOR A -07 -9 A079 08/13/07 APPEAL OF B65731. A027 05/28/02 APPEAL OF HEARINGS OFFICER'S DECISION ON DR -02 -2 DR022 02/04/02 DECLARATORY RULING FOR APPLICABLE SIDE YARD SETBACK A0119 10 /01 /01 APPEAL OF HEARINGS OFFICER'S DECISION ON DR -01 -5 DR015 05/07/01 RULING ON APPROPRIATE SETBACK AUTHORIZED UNDER CU8022 E9268 12/30/92 EXTENSION OF LM92 -9 LM929 02/10/92 LM FOR SISEMORE ROAD BY CGt/` AUG 3 1 2009 DELIvE tt Community ,Qevelo ent Department Planning 117 NW Lafayette Avenue, Bend, OR 97701 -19� 5 (541) 388 -6575 - Fax (541) 385 -17E4 http://www.deschutes.orgiald APPEAL APPLICATION is a Precautionary Appeal of the HO decision A -07 -9. If the Dowells do not appeal we will withdraw this appeal. EVERY NOTICE OF APPEAL SHALL INCLUDE: FEE:1(242d • O(, 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 addidonal 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 seek their own legal advice concerning those issues. Appellant's Name (print): William John & Martha Leigh Kuhn Phone: ( 541) 389 3676 Mailing Address: Post Office Box 5998 City/State/Zip: Bend OR 97708 -5998 Land Use Application Being Appealed: A-07 -9 on Remand from LUBA Property Description: Township 16 Range 11 Section 19 Tax Lot 100 O ' ',Y - 4i Appellant's Signature: EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC 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 DNISION 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 R CORDS. / - /� ea-eel 57 g F4 `/ -44 (over) 71(9 NOTICE OF APPEAL See Attached Notice of Appeal of File No. A -07 -9 (oneRemand from LUBA) (This page may be photocopied if additional space is needed,): BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS NOTICE OF APPEAL DESCHUTES COUNTY A -07 -9 File No.: APPELLANTS: APPELLANT'S ATTORNEY: William & Leigh Kuhn P.O. Box 5996 Bend, OR 97708 Pamela Hardy 1629 NW Fresno Ave Bend, OR 97701 (541) 550-7968 SUBJECT PROPERTY: 65595 Sisemore Rd., Bend Tax Lot 100 at Township 16, Range 11, Section 19 Parcel 1 of the partition MP -79 -232 PROPERY OWNERS & APPLICANT: PROPERY OWNERS' ATTORNEY: NATURE OF THE APPEAL: Jeff & Pat Dowell 321 High School Road. # D -136 Bainbridge Island, WA 98110 Robert Lovlien & Helen Eastwood Bryant, Lovlien & Jarvis P.O. Box 880 Bend, OR 97709 This is a cross appeal by the party that largely prevailed in the Hearings Officer's decision below. The Kuhns would not have appealed had the applicant not appealed. The Kuhns are satisfied with most aspects of the decision except one. The Hearings Officer should have found that the lack of a homeowners' agreement was an alternative basis on which the County should conclude that the Dowells' structure was not lawfully established. The Kuhns request an on- the - record review. This appeal should be consolidated with the Dowells' appeal in the same matter. Page 2 of 6 August 31, 2009 APPICABLE CRITERIA: DCC 22.32.020. Notice of Appeal. Every notice of appeal shall include: A. A statement raising any issue relied upon for appeal with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and resolve each issue in dispute. B. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons why the Board should review the lower Hearings Body's derision. C. 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 why the Board should provide de novo review as provided in DCC 22.32.030. Each shall be addressed in detail below. A. REASONS FOR APPEAL The Kuhns are dissatisfied with the opinion for only one reason: The conclusion regarding the Homeowners' Agreement. The Kuhns and the Dowells both own lots in a "cluster development" originally developed to protect the integrity of the Tumalo Deer Winter Range. Mr. John Barton originally owned the 43 -acre parcel that was subdivided into three lots. Two lots were 4.3 -acre building sites, and one was a 34 -acre common parcel that was to have no dwellings developed on it. The Kuhns and the Dowells each own the 4.3 -acre building sites, and jointly own the 34 -acre common parcel. The original conditional use permit had a condition requiring: 2. Prior to the sale of any lot a written agreement shall be recorded which establishes an acceptable homeowners association or agreement assuring the maintenance of common property in the partition. It is undisputed that no such homeowners' agreement has been executed to date. In order to issue a building permit for the alteration of a dwelling, the County must make a finding that the dwelling was "lawfully established." DCC 18.40.020(M). The Hearings Officer concluded that the lack of a homeowners' agreement does not render the Dowells' dwelling unlawful. Her reasoning was that the condition was only precedent to the sale of the lots, not to the establishment of dwellings. Page 3 of 6 August 31, 2009 The error is that Deschutes County code declares that being out of compliance with any conditions of approval is grounds for denying a building permit. The specific provisions of the code state: DCC 15.04.150 No building permit ... shall be issued if the parcel of land upon which the building ... is to be erected ... would be in violation of ... DCC Title 18, the zoning title. DCC 18.144.050 The ... maintenance, repair, alteration or use of a building or structure ... in violation of ... any permit, land use approval or status determination issued or made under DCC Title 18 is a Class A violation. Because the homeowners' agreement has never been executed, the Dowells' property is in violation of its original conditional use permit and land use approval. Hence, no building permit should have been issued. For these reasons the Board should conclude that the lack of a homeowners' agreement was an alternative basis for reversing the Planning Department's decision. B. WHY THE BOARD SHOULD HEAR THE APPEAL The matter at issue here is of vital importance to a resident of Deschutes County. As it exists today two parties are co- owners of a single parcel, and do not have any formal agreement about the rights and obligations each has to enjoy, maintain, and insure the property. Such a situation could lead to substantial legal liability as well as endless disputes about maintenance responsibilities. This is not merely a disagreement about the aesthetic values associated with the dwelling. This is a continuing source of practical difficulty. The County's original decision provides that there should be a homeowners' agreement to address these issues. County code requires enforcement of those conditions. The Board should hear this matter and determine that compliance with the conditions is necessary in order to clearly convey that its laws, and its permits will be enforced for the good of the people affected. Page 4 of 6 August 31, 2009 C. DE NOVO HEARING IS NOT REQUIRED DCC 22.32.027. Scope of Review. A. Before Hearings Officer or Planning Commission. The review on appeal before the Hearings Officer or Planning Commission shall be de novo. B. Before the Board. 1. Review before the Board, if accepted, shall be on the record except as otherwise provided for in DCC 22.32.027. 2. The Board may grant an appellant's request for a de novo review at its discretion after consideration of the following factors: a. Whether hearing the application de novo could cause the 150 - day time limit to be exceeded; and 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 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 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 Kuhns believe that the record has been adequately developed, and believe that a review on the record is sufficient. The Dowells propose that a de novo review is required. However, the Dowells present no reasons why additional evidence should be allowed. Under this criteria, they only make arguments about interpretations of law. The Kuhns are eager to avoid unnecessary legal costs, and see no reason to add to a 1000 + page record at this stage. The Kuhns concur that there is a policy question at issue in this matter, however, it is not the issue raised by the Dowells, and it does not require de novo review. The policy question is the extent to which the County will faithfully enforce the conditions of its conditional use permits, especially where they are being willfully violated to the substantial and practical detriment of the legal beneficiaries of that condition. Here, the same Circuit Court that the Dowells quote also found that the Dowells were required to enter into an acceptable homeowners' agreement with the Kuhns. However, that is not the reason why the County should conclude that such an agreement is required. The County should conclude that the homeowners' agreement is required before additional land use or building permits are issued for three reasons. First, the homeowners' agreement was a condition of the original conditional use permit. Second, County code prohibits issuing a building permit on buildings that are out of compliance with any Page 5 of 6 August 31, 2009 land use permits. DCC 15.04.150. Third, there are substantial injuries flowing from the fact that this condition has not been met. Maintenance is required on the third parcel to reduce fire danger, and the Kuhns have been bearing 100% of that cost, despite the fact it should be shared. Further, there should be agreements as to liability in the case that someone is injured on the property.' Neither of these issues is adequately addressed by the deed restrictions. The issue that the Dowells raise as a policy question — "whether a Hearings Officer may overturn the decision of the Deschutes County Circuit Court" (Dowells Notice of Appeal at 8) — is both misleading and not a policy question. It is misleading in that the Hearings Officer did not overturn anything. There was no conclusion by the Circuit Court that the Dowells' dwelling was lawfully established. The Circuit Court only concluded that there was nothing it could do to enforce the maximum build line, which it acknowledged existed. The Court never concluded that the line could never have legal significance in another forum or situation. Further, this is a question of law, not a policy question because it involves application of judicial principles of issue preclusion which the County is not at liberty to alter. The other issue that the Dowells raise as a policy question — "whether a Hearings Officer may overturn ... previous land use decisions of the County" (Dowells Notice of Appeal at 8) — is also both misleading and In the year just after this permit was issued the State legislature passed a law, ORS 94.550 et seq., which required that any "planned community" have "declaration" recorded with the County which would satisfy the same legal and practical requirements of the homeowners agreement in the present case. The legislature's statement of policy describes the situation here: "(1) In the State of Oregon there are hundreds of homeowners associations to which the Oregon Condominium Law (ORS chapter 100) does not apply. "(2) These homeowners associations have established a pattern of ownership in which ownership of a single unit makes the owner automatically a member of a homeowners association with responsibilities for management and maintenance. "(3) Many of these homeowners associations as associations and their members as individuals have experienced problems from the lack of statutory provisions. These problems which have arisen are usually the result of inexperience with this kind of ownership. This inexperience often leads to difficulties for the association when it assumes responsibility for the administration of the planned development because usually neither the developer who drafted the documents nor the local jurisdiction which may have reviewed them has realized the long term management Implications of the restrictions Imposed by the documents." Specific agreements regarding liability and insurance of commonly held properties are a major emphasis of the provisions required In the declarations. See ORS 94.580 (2) enumerating the twenty specific elements required in a declaration for a planned community. However, since the law was passed the year after this development was approved, and for other reasons, it does not apply here. Nonetheless, it appears that the County was attempting to address at least some of the same Issues by requiring a homeowners agreement. Page 6 of 6 August 31, 2009 not a policy question. It is misleading in that the Hearings Officer never overturned any previous land use decision. She merely concluded that where an applicant constructed a building that did not comply with its building permit, and the County erroneously signed off on it, that the error should not be compounded. She did not reverse the decision and say that the building had to be torn down. She only said it could not be expanded upon. There is a long body of case law supporting the proposition that applicants may not rely on County staff to determine the legality of their actions. See Walker v. Josephine County, 46 Or LUBA 777 (2004), Bruce v. City of Hillsboro, 34 Or LUBA 820 (1998), New v. Clackamas County, 30 Or LUBA 453 (1995), and City of Grants Pass v. Josephine County, 25 Or LUBA 722 (1993). However, those arguments will not be expanded upon unless the Board decides to hear this appeal. As a result, this issue is also not a policy issue either, it is a legal issue. A third issue that the Dowells raise as a policy issue is whether the County should reverse its position after participating in the defense of the Dowells. Dowells' Notice of Appeal at 4. It is perfectly appropriate for the County to reverse its position when faced with a new legal interpretation from the Land Use Board of Appeals. Faced with that new decision the Hearings Officer correctly concluded that the Dowells' building was not lawfully established. D. CONCLUSION There are numerous other inaccurate statements and arguments in the Dowells' appeal. However, a notice of appeal is not meant to be a response brief. The arguments above have been limited to those that will help the County decide whether or not to hear the appeal, and whether it should be de novo. If the Board decides to hear this matter, the Kuhns will be submitting further legal argument as to why the Hearings Officer's decision should be upheld. Best Regards Pam •y Attorney for William and Leigh Kuhn BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW ESTABLISHED 1915 Neil R. Bryant Robert S. Lovlien John A. Berge Sharon R. Smith John D. Sorlie Mark G. Reinecke Melissa P. Lande Kitri C. Ford Paul J. Taylor Kyle D. Wuepper Jeremy M. Green Helen L. Eastwood Peter A. Christoff Melinda Thomas 591 S.W. Mill View Way Mail: P.O. Box 880 Bend, Oregon 97709 Phone: (541) 3824331 Fax: (541) 389 -3386 WWW.BLJLAWYERS.COM August 28 2009 Hand Delivered WILL GROVES DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPT. 117 NW LAFAYETTE AVE. BEND, OR 97701 Re: Kuhn vs. Deschutes County and Dowell LUBA Case No.: 2008 -080 Deschutes County Building Permit Appeal/File No.: A -07 -9 Dear Will: Enclosed please find our Appeal Application form and Notice of Appeal that we are submitting to the County Commission in connection with the above matter. Also enclosed is our check in the sum of $2,420.00 as payment of the filing fee. Please advise us as soon as possible if the County Commissioners will hear this appeal. Please also call me if you have any questions. Very truly yours, ROBERT S. LOVLIEN RSL /alk cc: Mr. and Mrs. Jeff Dowell 9187 -010 117.doc 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: $2,420.00 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 seek their own legal advice concerning those issues. Appellant's Name (print): Jeff and Pat Dowell Phone: (360) 798 -7118 Mailing Address: 321 High School Rd. #D3 -136 City /State /Zip: Bainbridge Island, Land Use Application Being Appealed: A -07 -9 Property Description: Township 16 Range 11 Seectionll99 Tax Lot 100, Parcel 1 of MP 79 -232 Appellant's Signature: By: �/// K Robert S. Lovlien, attorney for appellants EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC 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. WA 913110 (over) 7/09 NOTICE OF APPEAL See attached Notice of Appeal (This page may be photocopied if additional space is needed.) EVERY NOM Community Development Department Manning O,.,sirm. 17 APPEAL APPLICATION. OF APPEAL SHALL INCLUDE Ibmg thesoamrro reasons for the appeal my Cammissioners is the Beatings Body, arequest for rovfew bythe Board staling, the reaaoif0 the Board should review the lower deoisfon. 11 the Board of t.ount' Commiss,oners is the Hearings: Body and de nova review is desired. a request' for de novor ?yien ny the Board, stating the reasons the. Board should provide the de novo reviewers provided In Sedan 22 32;527 or Tala 22: atayeire Averwe,.. Bend.OF197701.1925' .15411388+575 = -Fax 1 541) -385 1784 l vmw.deschute &;trip /cda FEE: 4 31 COW esetbits are submitted, black: areas shalt also be provided... to copies.%vial captions or shading delineating the odor Noy at the appellant to cornptetea Notice of Appeal as set forth'. In Chapter 22:32 of the County Code. l on the reverse side of this town must include the hams Hated above. Failure to complete all nrthe r an appeal invalid Any additional comments should be included on the Notice of Appeal: se a potential appellant as to whether the appellant Is eligible to Ole an appeal (DCC Section 22.32.010) peal Is valid. Appellants should seek their auto legal advice concerning those Issues;. Appellant 's Name {print?' S f a` rei t r .. 00(Nrc LC : Phone r di '1 i rJ' -I 1) Ma3IIng Addre aa 3 t hibl SCiSOCL. {t,�} o5 —LS(, Cnylstate77ap Mt &Rkr &E S..4 MQ {th4 EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE I5 A 55.00 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 DNTHE•RECORDAPPEALS, THE DATE SET FOR RECEIPT OF WRI 11 tN RECORDS,. BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS NOTICE OF APPEAL APPELLANTS: JEFF AND PAT DOWELL (Applicants) 321 HIGH SCHOOL RD. #D -136 BAINBRIDGE ISLAND, WA 98110 ATTORNEY: ROBERT S. LOVLIEN HELEN L. EASTWOOD BRYANT, LOVLIEN & JARVIS, P.C. P.O. BOX 880 BEND, OR 97702 PROPERTY: Tax Map 16- 11- 19 Tax Lot 100; Parcel 1 of MP 79 -232 CASE NO.: A -07 -9 REQUEST: Applicant requests a de novo review of the August 17, 2009 Hearings Officer Decision reversing Deschutes County's approval of a Land Use Compatibility Statement and building permit to remodel an existing dwelling I. APPLICABLE CRITERIA: Deschutes County Code: 22.32.072 De Novo Review II. EXHIBITS: The Applicant submits the following in support of this application: 1. Hearings Officer Decision A -07 -9. 2. Circuit Court Decision 01CV0233MA and Court of Appeals Decision 196 Or. App. 787 (2004). 3. Landscape Management Plan Drawing (Record 533). III. HISTORY OF APPEAL The history of this case is complex and is outlined in the 2009 Decision by Hearings Officer Karen Green. A summary is provided here. - 1 — 9187 -010 307.doc BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709 -0880 (541) 3824331 fax (541) 389 -3386 W W W.BLJLAWYERS.COM Applicants purchased property partitioned by the original developer. Applicants received building and land use landscape management review approval to construct a dwelling. Applicants constructed the dwelling. It was inspected and received final approval in 1997. There was no appeal of this building permit or the land use approvals required with this building permit. Nonetheless, beginning in approximately 2000, the neighbors began challenging the existing dwelling through letters to Deschutes County and code violation complaints. In 2001, the neighbors filed a suit in Deschutes County alleging that the dwelling was illegal and that the Applicants violated County Code. The Deschutes County Civil Circuit Court ruled in favor of the Applicants with regard to the location of the dwelling and the code violations. "Plaintiffs have not established any of the alleged code violations. ... Plaintiffs have not established that the location of the building (more than 400 feet west of the east boundary of the property along Sisemore Road) is in violation of any enforceable requirements. Plaintiffs have not established that the location of the building has caused a substantial and unreasonable interference with the use and enjoyment of the Plaintiffs property." Deschutes County Circuit Court Decision 01CV0233MA, Record at 117. (emphasis added) The Civil Circuit Court case was appealed to the Oregon Court of Appeals. The Oregon Court of Appeals affirmed the lower court's decision without opinion. Kuhn v. Dowell, 196 Or. App. 787 (2004). Subsequently in July 2007, the applicants applied for and received County approval for an interior remodel. Despite the Civil Court ruling, the neighbors appealed the interior remodel permit alleging that the dwelling was illegal and therefore could not be modified. The Hearings Officer initially held that the land use compatibility statement and building permit were not a land use decision and that the Civil Circuit Court case precluded her review of the neighbor's appeal. This decision was appealed to the Land Use Board of Appeals. The Land Use Board of Appeals did not consider or address the issue preclusion arguments raised by the Applicants but remanded the case for a decision on whether the dwelling was lawfully established. Kuhn v. Deschutes County, LUBA No. 2008 -080 (March 2009). On remand the Hearings Officer reversed her prior determination that the Civil Circuit Court case precluded her review and concluded that the County improperly granted a land use compatibility statement and that the internal remodel of an existing approved dwelling was not permitted. Decision at 25. The Hearings Officer also held that the requirement in the original partition and conditional use approval that there be deed restrictions regarding the maintenance and payment of taxes on an adjacent common area was not relevant to whether or not the dwelling was lawfully constructed. Decision at 22- 23. Applicants appeal this Hearings Officer Decision on three grounds: - 2 — 9187 -010 307.doc BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709 -0880 (541) 382-4331 fax (541) 389 -3386 W W W.BLJLAWYERS.COM 1) a County Hearings Officer may not overturn a decision of the Deschutes County Circuit Court that was upheld by the Oregon Court of Appeals; 2) the reliance on a document that is inconsistent on its face fails to prove show that the Applicant or the County thought that the dwelling would be constructed within 400 feet of Sisemore Road; and 3) case law supports the proposition that a County cannot grant an approval of a dwelling and later revoke the approval without cause. The Applicants request a determination that the dwelling was lawfully constructed and approved and that it may therefore be modified at its existing location. IV. PROPOSED FINDINGS, BURDEN OF PROOF: 1. Statement Describing the Specific Reasons for the Appeal. A County Hearings Officer cannot overturn the determination of the Deschutes County Circuit Court. In Kuhn v. Dowell, Deschutes County Circuit Court Case No. 01CV0233MA, established that the location of the dwelling is not in violation of any enforceable requirements. The Hearings Officer now finds that the dwelling is in violation of an enforceable requirement and therefore cannot be modified. This decision is contrary to both law and policy. a) As a matter of law, the decision in Kuhn v. Dowell Deschutes County Civil Case No. 01 CV0233MA cannot be reversed by a Hearings Officer. The land use system cannot be used to circumvent the decision of the Deschutes County Circuit Court. Specifically, claim preclusion prevents cases with identical claims from being re- litigated in different venues. The types of claims barred by issue preclusion are discussed in the five prong issue preclusion test in Nelson v. Emerald People's Utility Dist. 318 OR 99 (1993): 1) the issues in the two proceedings are identical; 2) the issues were actually litigated and were determined on the merits; 3) the party to be precluded had a full and fair opportunity to be heard on the issues; 4) the party to be precluded was a party to the prior proceeding; and, 5) the prior proceeding was the type to which courts grant preclusive effect. Petitioners previously conceded to the fourth and fifth prong so these are not discussed further. The issues raised by Petitioners in the Circuit Court Case Kuhn v. Dowell, Deschutes County No.: 01CV0233MA, are identical to the issues raised by Petitioners in this case. Rec. at 117 and Petition for Review 10, 11. Petitioners argued that the dwelling is illegal because it does not meet a 400 -foot maximum setback described on a partition plat that was not recorded and that the dwelling does not comply with conditions of approval. In this case they made the same arguments. These issues were actually litigated and determined on their merits in Deschutes County 01CV0233MA where the Court held that - 3 — 9187 -010 307.doc BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709 -0880 (541) 382 -4331 fax (541) 389 -3386 W W W.BLJLAWYERS.COM there were no enforceable setbacks. "Plaintiffs have not established that the location of the building (more than 400 feet west of the east boundary of the property along Sisemore Road) is in violation of any enforceable requirements" Record at 117. (emphasis added). The Hearings Officer erred when she accepted Petitioners statement that the issues have changed simply because a partition plat that shows a 400 foot setback was recorded in 2004. Decision at 15. The recording of the plat has no impact on the enforceability of the alleged 400 foot setback at the time the dwelling was constructed. Therefore, this is not a situation where a new fact arises that would change the outcome of the case. The Kuhn's speculation that the Circuit Court's conclusion that there was no enforceable requirement was due to the lack of a recorded partition plat is unfounded. Several alternative reasons exist that support the Court's finding that the 400 -foot setback was not enforceable, including differences in opinion regarding the appropriate way to measure the setback' (Rec. at 234), and a lack of conditions of approval requiring a 400 foot setback. There is nothing to suggest that the recording of the plat would change the outcome of the decision and requires affording the Petitioners another bite of the apple. Furthermore, though the Hearings Officer finds that the recording of the plat is a new fact, she herself does not rely on this new fact in her findings or decision. The Circuit Court decision is clear and unambiguous, the Plaintiffs failed to prove the location of the dwelling violates any enforceable requirements.2 Without facts that would actually change the outcome of the decision, issue preclusion prevents the Hearings Officer from overturning the Circuit Court decision. Furthermore, the Hearings Officer erred when she claimed that she "cannot determine whether the test under the Nelson case for establishing issue or claim preclusion has been met with respect to the lawfulness of the location of the dwelling on the Dowell's parcel." Decision at 15. The Circuit Court decision that there were no enforceable setbacks results in the conclusion that the dwelling is not unlawful if it is cited outside of the alleged enforceable setbacks. For the reasons described above the test under the Nelson case have been met and the Deschutes County Civil Court Case precludes the Hearings Officer's determination that there is an enforceable setback. b) As a policy matter it is not appropriate to reverse the County's position when the County has consistently participated in the defense of the Applicants since the original approval of the dwelling in 1997. The Hearings Officer decision reverses her original holding in part based on her misunderstanding of the County's role in the Deschutes County Circuit Court case. She states: ' Sisemore Road curves at the Applicants' property. The dwelling is only 294 feet measured from Sisemore Road in one location but is over 400 feet frome Sisemore Road measured at the driveway. 2 The Applicants address below the single document relied on by the Hearings Officer to find an enforceable requirement. - 4 — 9187 -010 307.doc BRYANr, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709 -0880 (541) 382 -4331 fax (541) 389 -3386 VVWW.BLJLAWYEBS.COM "The Hearings Officer finds I am not bound by the circuit court's decision concerning the effect of the 400 -foot road setback because the county was not a party to the circuit court proceedings ..." Hearings Officer Decision Page 24 -25. Even if Deschutes County was not a named party, Deschutes County did participate in Kuhn v. Dowell. Specifically, Deschutes County staff participated as witnesses for the Applicant providing evidence regarding the reasons that there is no enforceable 400 foot setback on the subject property. First, there is no condition of approval requiring a 400 foot setback. Second, there is no applicable 400 foot setback under the code at the time the dwelling was approved. Third, the plat with the alleged 400 foot setback was never recorded. Furthermore, Deschutes County Legal Counsel articulated its position regarding the 400 foot setback in a letter from Rick Isham to Mr. Kuhn's legal counsel in 2000. "I believe that there is a valid question as to whether the lot line adjustment had the effect of relieving the Kuhn residence from the requirement of being more than 400 feet from the portion of Sizemore Road abutting the lot as initially configured. A drawing in the record shows that the Kuhn residence is more than 400 feet from the original portion of Sizemore Road used for the purpose of showing the 400 foot setback. I did not find any evidence in the record that the setback requirement in CU -80 -22 was modified by reason of the lot line adjustment. Conversely, if the lot line adjustment allows the Kuhn residence to recalculate set[backs] from a new portion of Sizemore Road, it would appear that the same portion of Sizemore Road would be used for any of the uses allowed by the cluster development. ... My advice to the Board of County Commissioners is to take no further action with respect to the issues raised by your client. Rec. at 234. It is not appropriate now, nine years after the County's determination that there was no required setback, for a Hearings Officer to find that there is a required setback and that the dwelling cannot be modified. Allowing this decision to stand would encourage continued litigation and forum shopping by neighbors who are not satisfied with a County Court's conclusion and try to circumvent the decisions of the County Court by litigating building permit approvals through the land use system. This will result in a time and money drain on County resources. The Hearings Officer's reliance on a single statement on a site plan document submitted by the Applicants in connection with a landscape management plan is misplaced when the site plan itself is inconsistent on its face. The Hearings Officer relies on a single piece of paper submitted with the landscape management plan to reach her conclusion that the dwelling is not legally constructed. The Hearings Officer decision concludes that a condition of approval is not necessary if the condition is shown on an applicant's submitted site plan. - 5 — 9187 -010 307.doc BRYANT, LOVLIEN & JARVIS, PC ATIORMEYS AT LAW, FSrABLSHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709 -0880 (541) 382-4331 fax (541) 389 -3386 W WW.BW LAWYERS.COM "[I]n 1992 the Dowells submitted an LM site plan containing a notation that the dwelling would not be built beyond the 400 -foot road setback in order to obtain site plan approval for their dwelling, having been advised by Mr. Blikstad that the county considered the 400 -foot setback from the road to be binding on them. The Hearings Officer finds the circumstances presented here are equivalent to those in the Wilson Park Perry and Friends of the Metolius cases in which the applicants' submitted plans and representations were found to be binding notwithstanding the lack of conditions of approval requiring compliance with those plans. And I find there is no question the Dowells had notice, and were aware, of the 400 -foot maximum building setback from Sisemore Road at the time they submitted their LM site plan for approval." Decision at 24 -25. The Hearings Officer goes on to assume that the Circuit Court did not analyze land use case law simply because the Circuit Court did not provide an analysis of all of the case law presented in the case, and instead provided a short and clear holding: There is no enforceable 400 -foot setback. There are two problems with the Hearings Officer's findings. First, the document that the Hearings Officer relies on is inconsistent on its face. The site plan in question states in the lower right hand corner that the dwelling is not to scale and will not be more than 400 feet from Sizemore Road The drawing itself contradicts the statement because it shows the length of the driveway before it reached the house to be approximately 744 feet. Moreover, the land use decision approving the landscape management plan states "the proposed dwelling will be within 1 /8th mile of Sisemore Road." Rec. at 174. One eighth of a mile is greater than 400 feet. It is almost 660 feet. Since the drawing submitted is inconsistent and as noted above the distance of the dwelling from Sisemore Road depends on where the measurement is made, the Hearings Officer's conclusion that the dwelling is unlawfully constructed cannot be supported. Second, as discussed above, the Hearings Officer is precluded from reaching an alternative conclusion in this case because the same issues were resolved by the Deschutes County Circuit Court. A County Hearings Officer cannot determine that a dwelling is unlawful when the dwelling was inspected and approved by the County. The Hearings Officer erred in concluding that Church v. Grant County, 37 OR LUBA 636, 652 (2000), is not relevant. Decision Page 21 and 25. The Hearings Officer states: "I also find the Dowell's analogy to lot -of- record determinations is not persuasive." Id. First, Church v. Grant County is not about lot of record determinations. In Church v. Grant County, 37 OR LUBA 636, 652 (2000), a County mistakenly approved a partition allowing 5 acre lots in an area zoned for 10 acre lots. However no appeals were filed. A year later the County adopted a new ordinance to try to fix its mistake. LUBA held that ORS 92.285 "prohibits the county from retroactively revoking otherwise fmal and unreviewable partition approvals, even if the county does not apply new standards or criteria in doing so." Id. (emphasis added). The Court's reasoning was that the parties who were granted the partition relied on the fact that they owned five acre buildable lots and the county could not later conclude that the lots were not buildable. Id. Likewise, - 6 — 9187 -010 307.doc BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709 -0880 (541) 3824331 fax (541) 389 -3386 WWW.BWLAWYERS.COM here, the County cannot retroactively determine that a dwelling that was approved by the County in1997 cannot be modified. The Hearings Officer also errs in concluding that the prevention of future permits is not the same as revoking an original permit. The prevention of future building permits has the same impact as retroactively revoking the partition approval in Church. In Church, the effect was to make previously buildable lots, not buildable. Here, the impact is to make a dwelling that was approved by the County such that it can never be modified. 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. FINDING: The Board of County Commissioners is the appropriate hearings body for an appeal of a decision by the Hearings Officer. The Applicant is an appropriate party because its Application was denied. Additionally, the Applicant has specific policy concerns regarding the Hearings Officer's ability to reverse a decision of the Deschutes County Circuit Court. DCC 22.32.027. Scope of review. B. Before the Board. 1. Review before the Board, if accepted, shall be on the record except as otherwise provided for in DCC 22.32.027. 2. The Board may grant an appellant's request for a de novo review at its discretion after consideration of the following factors: a. Whether hearing the application de novo could cause the 150- day time limit to be exceeded; and FINDING: The Applicant agrees to restart the 150 -day time limit to allow the Board of County Commissioners to consider Applicant's request for a de novo review of the Application. 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 FINDING: The CD of the hearing below is available and will be transcribed and provided before the hearing as required. 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 - 7 — 9187 -010 307.doc BRYANT, LOVLIEN & JARVIS, PC ATIORNEYS AT LAW, FSTABUSHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709 -0880 (541) 3824331 fax (541) 389 -3386 W WW.BWLAWYERS.COM necessitated by failure of the appellant to present evidence that was available at the time of the previous review; or FINDING: The substantial rights of the Applicant would be significantly prejudiced without de novo review because the Hearings Officer reached conclusions that were not supported by the evidence. It is patently unjust and unfair to allow a Hearings officer to overrule a Circuit Court judgment and prior County land use decisions that the Applicants have relied upon for over 12 years. These decisions should not be allowed to be re- litigated after all these years, and only the Board of County Commissioners can bring this matter to an end once and for all. 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. FINDING: There significant policy question that must be addressed by the Board of Commissioners is whether a Hearings Officer may overturn the decision of the Deschutes County Circuit Court and previous land use decisions of the County. Respectfully submitted this 28th day of August, 2009. BRYANT, LOVLIEN & JARVIS, P.C. By: - 8 — 9187 -010 307.doc ROBERT S. LOVLIEN, OSB #74197 Of Attorneys for Appellants BRYANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW. ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709 -0880 (541) 382 -4331 fax (541) 389 -3386 W W W.BLJLAWVERS.COM DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: A -07 -9 $011,11/18 to Aug 2009 t' DE�l1ED S' Fe, CouJIAS X402 APPELLANTS: William and Martha Leigh Kuhn P.O. Box 5996 Bend, Oregon 97708 APPLICANTS/ PROPERTY OWNERS: Jeff and Pat Dowell 10705 N.E. 38th Ave Vancouver, Washington 98686 APPLICANTS' ATTORNEYS: APPELLANTS' ATTORNEY: REQUEST: STAFF REVIEWER: HEARING DATES: RECORD CLOSED: Robert Lovlien Helen Eastwood Bryant Lovlien & Jarvis P.O. Box 880 Bend, Oregon 97709 Pamela Hardy 1629 N.W. Fresno Avenue Bend, Oregon 97701 Appellants appeal from the issuance of a land use compatibility statement and building permit for an interior remodel of an existing dwelling on property zoned F -2 and WA and located on Sisemore Road northwest of Bend. Will Groves, Senior Planner September 24, 2007 and May 21, 2009 December 12, 2007 and June 18, 2009 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 15 of the Deschutes County Code, Buildings and Construction 1. Chapter 15.04, Buildings and Construction Codes and Regulations * Section 15.04.150, Building or Mobile Home Placement Permit Issuance- Zoning and Subdivision Conformance B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance Kuhn Remand A -07 -9 Page 1 of 25 1. Chapter 18.08, Basic Provisions * Section 18.08.010, Compliance 2. Chapter 18.40, Forest Use Zone (F -2) * Section 18.40.020, Uses Permitted Outright Chapter 18.84, Landscape Management Combining Zone * Section 18.84.030, Uses Permitted Outright 4. Chapter 18.88, Wildlife Area Combining Zone (WA) * Section 18.88.030, Uses Permitted Outright 5. Chapter 18.144, General Provisions * Section 18.144.050, Violation C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.04, Introduction and Definitions * Section 22.04.020, Definitions 2. Chapter 22.16, Development Action Procedures * Section 22.16.010, Review of Development Action Applications * Section 22.16.030, Review of Development Action 3. Chapter 22.24. Land Use Action Hearings * Section 22.24.030, Notice of Hearing or Administrative Action 4. Chapter 22.32, Appeals * Section 22.32.010, Who May Appeal * Section 22.32.015, Filing Appeals * Section 22.32.020, Notice of Appeal * Section 22.32.050, Development Action Appeals 5. Chapter 22.34, Proceedings on Remand Kuhn Remand A -07 -9 Page 2 of 25 * Section 22.34.020, Hearings Body * Section 2334.030, Notice and Hearmgs Requirements * Section 22.34.040, Scope of Proceeding r FINDINGS OF FACT: A. Location: The subject property is located at 65595 Sisemore Road, Bend, and is further identified as Tax Lot 100 on Deschutes County Assessor's Map 16 -11 -19 and as Parcel 1 of a 1979 partition (MP -79 -232). B. Zoning—and Plan - Designation: _The subject property is zoned Forest Use - (F -2), Landscape Management Combining Zone (LM) because of its proximity to Sisemore Road, and Wildlife Area Combining Zone (WA) because of its location in the Tumalo Deer Winter Range. The subject property is designated Forest on the Deschutes County Comprehensive Plan map. C. Site Description: The subject property is 4.3 acres in size, slopes downward to the west from its eastern boundary on Sisemore Road, and has a vegetative cover of ponderosa pine and juniper trees and native brush and grasses. The property is developed with a single- family dwelling owned by the applicants /property owners (Dowells). D. Surrounding Zoning and Land Uses: The property is surrounded by land zoned F -2. The abutting parcel on the south (Tax Lot 200 on Assessor's Map 16- 11 -19) is a 4.3 -acre parcel created by the same partition that created the subject property, and is developed with a single- family dwelling owned by appellants (Kuhns). The abutting parcel on the west (Tax Lot 300 on Map 16- 11 -19) is a 34.5 -acre common area parcel created as part of the partition that created the parcels owned by the Kuhns and the Dowells. E. Procedural History: Because of the lengthy and complex history of the subject property and the adjacent Tax Lots 200 and 300, the Hearings Officer sets forth that history chronologically by year. 1979: The subject property is part of a 43 -acre parcel subject to a partition application (MP- 79 -69) submitted in March 1979 by the Dowells' and Kuhns' predecessor John Barton and that was zoned F -3 in 1979.' This partition would have created two parcels, one 22 acres in size and one 20 acres in size. The county denied this partition by an administrative decision dated May 9, 1979 on the basis of what was referred to as an "interim agreement" between the county and the Oregon Department of Fish and Wildlife (ODFW) to maintain a 40 -acre minimum lot size for parcels developed within the proposed -- but at that time not yet adopted -- Tumalo Deer Winter Range. The record indicates this partition denial was not appealed. In November 1979 the county adopted an updated zoning ordinance -- PL -15 — that included a new WA Zone that among other things established a 40 -acre minimum lot size except for cluster developments that could be allowed as conditional uses with smaller residential parcels and large open space parcels. The new WA Zone did not establish any particular dwelling setbacks from roads. On December 11, 1979 Mr: Barton submitted another partition application that again proposed to create two parcels, one 20 acres in size and one 23.1 acres in size (MP -79 -232). This application also was denied because of ' The F -3 Zone no longer exists. Kuhn Remand A -07 -9 Page 3 of 25 the newly adopted WA Zone 40 -acre minimum lot size. The record indicates Mr. Barton then modified his proposed partition to create a cluster development with two 4.3 -acre residential parcels and a 34.5 -acre common area parcel. This proposed partition was put on hold pending Mr. Barton's submission of a conditional use application for a cluster development. 1980: On May 13, 1980 the county granted conditional use approval for Mr. Barton's proposed cluster development/tentative partition plan subject to six conditions (CU -80- 22/MP -79 -232). One of those conditions required Mr. Barton to obtain final partition approval and another condition required the recording of certain deed restrictions. Neither the decision's text nor its conditions of approval referred to or established dwelling setbacks from Sisemore Road. The final partition plat was approved on November 12, 1980 and filed with the Planning Division. The plat included a building setback line on both residential parcels 400 feet west of Sisemore Road measured perpendicular to the road, as well as a notation stating "Max. Bldg. Setback 400' From Sisemore Rd." The record indicates the final partition plat was not recorded with Deschutes County Clerk until October 5, 2004, long after the Dowells acquired the subject property in 1984 and constructed the existing dwelling between 1994 and 1997. 1987: The Kuhns acquired their property — Tax Lot 200 on Assessor's Map 16 -11 -19 — by a deed dated July 22, 1987. On June 19, 1987 the county approved a lot line adjustment requested by the Kuhns (LL- 87 -23) that reconfigured their lot relative to the open space parcel in order to allow provide the Kuhns with a buildable lot meeting all required setbacks. According to the Kuhns, this lot line adjustment reconfigured their parcel so it is located entirely within 400 feet of Sisemore Road. This lot line adjustment approval was subject to a condition requiring that prior to issuance of a building permit for a dwelling on the Kuhns' property, the deed restrictions required by the 1980 cluster development conditional use approval had to be recorded with the Deschutes County Clerk. 1989: The Dowelis acquired the subject property — Tax Lot 100 -- through a land sale contract dated August 3, 1989. 1992: On February 7, 1992 the Dowelis submitted an application for LM site plan approval for a dwelling on the subject property. By a letter dated February 10, 1992, then- Associate Planner Paul Blikstad advised the Dowelis that the previous conditional use and partition approvals affecting the subject property (CU -80 -22 and MP -79 -232, respectively) established a 400 -foot maximum dwelling setback from Sisemore Road. The letter went on to state: "1 am sending you a copy of the official partition . drawing which established this restriction. Frank Cibelli has submitted a Landscape Management Plan application on your behalf which changed the location of the dwelling site to meet this 400 foot restriction. The intent of this restriction was for preservation and protection of wildlife in the area." On March 10, 1992 the county granted LM site plan approval for the Dowells authorizing Kuhn Remand A -07 -9 Page4of25 them to construct a 1,568- square -foot single - family dwelling on the subject property (LM- 92 -9). The LM decision states in the "site description" section: "These [conditional use and partition] approvals established the two parcels for building sites which required a maximum 400' setback from Sisemore Road retaining approximately 33 acres for the protection and preservation of wildlife in the area." However, the conditions of approval did not include or refer to the 400 -foot maximum setback. The Dowells' LM site plan showed- the - dwelling -set back from_Sisemore.Road 744 feet. However,_the site plan also had a notation stating: "This drawing is not to scale, the house site will not be more than 400 ft from Sisemore Road." On August 5, 1992, the county adopted amendments to Title 18, the county's zoning ordinance, to establish in the WA Zone a 300 foot maximum setback for dwellings from roads existing as of the date of the amendment. On December 21, 1992 the Dowells applied for a one -year exception to the 1994 LM site plan approval (E- 92 -68). 1993: In March 1993; the county granted the Dowells' requested extension of the Dowells' LM approval. On March 18, 1993 the Dowells submitted an application for a building permit for the previously- approved dwelling on the subject property. 1994: The original building permit for the Dowells' dwelling (B34821) was issued on July 22, 1994. 1995: According to Assessor's data in the record, in February 1995 the Planning Division reviewed building permit B34821 for land use compatibility. The data state the "entire residence" was approved, but that the Dowells would be building "Phase I" of the dwelling which would consist of a 1,000 - square -foot structure, including a 424- square- foot apartment/guest room and a 576 - square -foot garage, and that when the rest of the dwelling was constructed the kitchen in the guest room had to be removed. 1996: The Dowells requested and received an extension of several construction permits for their dwelling. 1997: The Dowells completed a portion of their dwelling and received final inspection and approval from the Building Division on February 11, 1997. The record indicates the dwelling was constructed more than 400 feet from Sisemore Road but still on the Dowells' parcel. A diagram included in the record as Hearing Exhibit 7 shows the Dowells' dwelling located between 400 and 500 feet from Sisemore Road. 2001: On May 3, 2001, the Dowells requested a county declaratory ruling to determine the approved side yard setbacks for their existing dwelling (DR- 01 -5). On September 17, 2001 this Hearings Officer issued a decision declaring that the cluster, development approval in CU -80 -22 approved side yard setbacks on the subject property of less than 100 feet, but did not approve side yard setbacks of not less than 25 feet. The Dowells appealed the Hearings Officer's decision to the Deschutes County Board of Commissioners (board) (A- 01 -19). The board agreed to hear the appeal, but because the Kuhn Remand A -07 -9 Page 5 of 25 required transcript of the hearing before the Hearings Officer was not submitted within five days of the appeal hearing, the hearing did not occur. By a letter dated December 12, 2001 the Dowells formally withdrew their appeal. In 2001, the Kuhns filed a civil complaint in Deschutes County Circuit Court (Case No. 01CV0233MA) requesting, among other things, a declaratory judgment that the Dowells' dwelling on the subject property was unlawful because it was built more than 400 feet from Sisemore Road. 2002: On January 21, 2002, the Dowells submitted another land use application for a declaratory ruling concerning the required minimum side yard setbacks on the subject property (DR- 02 -2). On May 7, 2002 this Hearings Officer issued a decision denying this request on the ground that the question presented was the same as that addressed in the Dowells' previous declaratory ruling application, and the county's land use procedures ordinance prohibited the Dowells from applying for another declaratory ruling on the same question. The Dowells appealed that decision to the board (A- 02 -2). The board agreed to hear the appeal. In a decision dated August 11, 2002, the board found the record for the subject property included at least one site plan map showing a side yard setback of 40 feet, and therefore held the side yard setbacks for the subject property are 40 feet. The board's decision did not address the setback from Sisemore Road. On August 2, 2002 Deschutes County Circuit Judge A. Michael Adler issued a decision and judgment in the Kuhns' civil suit against the Dowells that included the following relevant findings: "(DECLARATORY RELIEF) _ .. ._ Plaintiffs have not established that the. Defendants' [Dowells'] property is in violation of the Deschutes County Code as alleged. - Plaintiffs [Kuhns] have not established that the location of the existing building on Defendants ' property is in violation of a requirement that the building be entirely within 900 feet of Sisemore Road measured perpendicularly from the front (east end) property line. * * * On Plaints' First Claim, judgment is for the Defendants." The circuit court's decision was affirmed without opinion by the Oregon Court of Appeals in Kuhn v. Dowell, 196 Or App 787, 106 P3d 699 (2004). 2006: In November 2006 the Dowells filed state and county Measure 37 claims asserting their_ property would be- devalued by application of the 300 -foot maximum road setback in the WA Zone- established in- August -1- 992 - because. compliance with_thatsetback would prevent them from completing the second phase of their existing dwelling. Kuhn Remand A -07 -9 Page 6 of 25 2007: On May 4, 2007 the Kuhns filed three county code enforcement complaints alleging, among other things, that the Dowells' existing dwelling is "illegal" because it was constructed outside the 400 -foot maximum setback shown on the partition plat. On. May 25, 2007 the Kuhns received an electronic mail message from Dennis Perkins, the county's Building Safety Director, stating that the county's code enforcement staff did not intend to pursue the May 2007 code violation. complaints. By an electronic mail - - message dated May 30, 2007 the Kuhns advised Mr. Perkins. that they wanted to appeal the county's decision not to prosecute their code violation complaints. On July 23, 2007 the Dowells applied for a building permit to remodel the existing dwelling on the subject property in order to convert the garage into residential space. The Planning Division issued a Land Use Compliance Statement (LUCS), and a building permit for the interior remodel was issued by the Building Division on July 24, 2007 (B65731). By an electronic mail message dated August 3, 2007 to Dennis Perkins and to Tom Anderson, the county's Community Development Department Director, the Kuhns stated they were appealing the county's issuance of building permit B65731 on the ground that the existing dwelling is illegal, and referred to the Kuhns' May 4, 2007 code violation complaints. -On August 8, 2007 the Kuhns filed with the Planning Division a land use appeal application form and paid the $250 appeal fee. The application stated the appeal was from `B65731 as a land use decision." On August 9, 2007 the Kuhns filed with the Building Division a "Request for Appeal" form concerning issuance of the building permit. As of the date the original record in this matter closed, this Building Division appeal was pending. A hearing on the appeal filed with the Planning Division was scheduled for September 24, 2007. The Dowells' attorney requested that the public hearing be continued because he could not be present at the hearing. The Hearings Officer continued the hearing to November 14, 2007. On October 10, 2007 the Department of Land Conservation and Development (DLCD) issued a Draft Order in Claim No. M131207 recommending approval of the Dowells' state Measure 37 claim, and recommending that in lieu of compensation, application of the applicable provisions of Goal 5 and OAR 660, Division 23 enacted or adopted after September 20, 1987 be waived.2 On October 22, 2007, the board signed Order No. 2007- 080 approving the Dowells' county Measure 37 claim, and waiving application of nonexempt county land use regulations back to September 20, 1989, the date the Dowells acquired the subject property. At the November 14, 2007 continued public hearing on the Kuhns appeal, neither the Dowells nor their attorney appeared. The Hearings Officer received testimony, evidence and argument from planning staff and the Kuhns, left the written evidentiary record open through December 5, 2007, and allowed the submission of final argument through December 12, 2007. By an electronic mail message dated November 15, 2007 the Hearings Officer °requested - that planning staff advise the parties that because Dowells 2 The Hearings Officer understands DLCD did not issue a final Measure 37 waiver order because of the intervening adoption of Measure 49 which modified the scope of Measure 37 waivers. Kuhn Remand A -07 -9 Page 7 of 25 were the applicants for the building permit subject to the Kuhns' appeal, the Hearings Officer would allow both the Dowells and the Kuhns to submit final argument. On November 26, 2007 the Kuhns submitted to the county another code violation complaint alleging the Dowells' existing dwelling and the county's issuance of the building permit to remodel the dwelling violate the Dowells' LM approval (LM -92 -9) because the dwelling is located more than 400 feet from Sisemore Road. The record does not indicate the status of this code violation complaint. On December 12, 2007 the Kuhns submitted their final argument in their appeal. By an electronic mail message dated December 13, 2007 to Senior Planner Will Groves, the Kuhns inquired whether Mr. Groves had received a notebook of documents submitted to the county on December 5, 2007. By an electronic mail message dated December 14, 2007, Mr. Groves informed the Kuhns that he had not received the notebook although it had been received by the Community Development Department and inadvertently misplaced. Because the evidentiary record had closed, Mr. Groves suggested the Kuhns request that the Hearings Officer reopen and extend the written record to receive a duplicate set of the missing documents. By an electronic mail message dated December 14, 2007 Mr. Groves advised the Hearings Officer that the Kuhns might request that the record be reopened. By an electronic mail message dated December 14, 2007 the Hearings Officer requested that planning staff advise the parties that if the Dowells did not receive notice that they were entitled to submit final argument the Hearings. Officer would reopen and extend the written record for submission of final argument. By an order dated December 18, 2007, the Hearings Officer reopened and extended the written evidentiary record through January 2, 2008 for the purpose of receiving the Kuhns' misplaced documents. 2008: The record in the Kuhns' appeal closed on January 2, 2008. On March 26, 2008, the Hearings Officer issued a decision dismissing the Kuhns' appeal on the grounds that the appeal was barred by the previous circuit court judgment, and that the Kuhns are not authorized to appeal the 2007 LUCS and building permit issuance under either state law or the county's land use procedures ordinance. I also found that the LUCS and building permit were not land use decisions, and therefore the provisions of ORS 215.427 establishing a 150 -day period for the issuance of a final local land use decision did not apply. The Kuhns appealed this decision to the board which declined to hear the appeal. On May 29, 2008, the Kuhns appealed the Hearings Officer's decision to the Land Use Board of Appeals (LUBA). 2009: On March 11, 2009 LUBA issued a decision remanding the Hearings Officer's decision dismissing the Kuhns' appeal for further county proceedings. LUBA concluded the LUCS and building permit at issue in the Kuhns' appeal constituted a land use decision from which the Kuhns had the right to appeal. ORS 215.435(1) provides that the county has 90 days from the date of LUBA's final order on remand to issue a final local decision on the land use matter subject to the remand. However, ORS 215.435(2)(a) states the 90 -day period does not begin until the Kuhn Remand A -07 -9 Page 8 of 25 applicant requests in writing that the county proceed with the application on remand .3 By a letter dated March 26, 2009, 2009 the Dowelis requested that the remand proceedings be initiated. Therefore, the 90 -day period for issuance of a final local use decision on remand commenced on March 26, 2009 and would have expired on June 24, 2009. A public hearing on the LUBA remand was held on May 21, 2009. At the hearing, the Hearings Officer received testimony and evidence, left the written evidentiary record open through- June -11, 2009, and allowed both the Kuhns and the Dowelis to submit final argument through June 18, 2009. The record on remand closed on June 18, 2009. Because the Dowelis agreed to extend the written record from May 21 through June 18, 2009, under ORS 215.435(2),b) the 90 -day period was extended for a period of 29 days and expired on July 23, 2009. F. Proposal: The Kuhns appeal from the county's issuance of a LUCS and building permit (B65731) authorizing an interior remodel of the Dowelis' existing dwelling on the subject property. G. Public/Private Agency Comments: The record indicates the Planning Division did not provide notice of the Kuhns' appeal or these remand proceedings to public and private agencies. H Public Notice and Comments: The Planning Division mailed individual notice of the original hearing to the owners of record of all property located within 250 feet of the subject property. Notice of the remand proceedings were provided only to the Kuhns and the Dowelis pursuant to Section 22.34.030 of the county's land use procedures ordinance. I. Lot of Record: The subject property is a legal lot of record, having been created as Parcel 1 of MP -79 -232. III. CONCLUSIONS OF LAW: ORIGINAL HEARINGS OFFICER DECISION FINDINGS: The Kuhns' notice of appeal described the decision being appealed as `B65731 as a land use decision." The Kuhns also submitted to the county's Building Division a separate "Request for Appeal" of the building permit issuance. In the Hearings Officer's decision remanded by LUBA, I made the following findings concerning the nature of the decision appealed: "The Planning. Division's LUCS for B65731 was issued pursuant to Section 3 The Dowelis are the applicants in this proceeding because they requested the building permit at issue. " After the record closed, and in response to a letter dated July 27, 2009 from the Hearings Officer to the parties' attorneys advising them that issuance of the decision m t is matter would e delayed, the Dowelis' attorney submitted a letter dated July 31, 2009 stating the Dowelis agreed to further extend the 90 -day period through August 30, 2009. It is not clear whether an applicant can extend the 90 -day period under ORS 215.435(2)9b) after it has expired. Kuhn Remand A -07 -9 Page9of25 15.04.150 of the county code, which provides: No building permit or mobile home placement permit shall be issued if the parcel of land upon which the building or mobile home is to be erected or located on, or is located on, would be in violation of DCC Title 17, the subdivision title or DCC Title 18, the zoning title. A subdivision shall be deemed to be in violation of the zoning ordinance for the purpose of issuing building permits so long as roads and other improvements remain uncompleted in accordance with the applicable subdivision provisions. This requirement, found in Chapter 15.04 of the county code — "Building and Construction" -- was adopted to comply with the state agency coordination requirements of ORS 197.180 and OAR Chapter 660, Divisions 30 and 31. These requirements are applicable to the state Building Codes Division which, among other things, enforces the state 's building safety and construction codes primarily through local government building departments. The Hearings Officer understands the Building Division does two things before issuing a building permit for a proposed structure. It reviews the construction drawings and plot plans for the proposed structure for compliance with building safety and construction codes. And it implements Section 15.04.150 by asking the Planning Division to review the proposed structure for compliance with both the applicable county land use regulations and any prior land use decisions -- and conditions and limitations therein -- applicable to the structure and/or the property on which it is located. The Building Division's review under the construction codes clearly is not the same as the Planning Division's review under the county's land use regulations. Nevertheless, as discussed in detail in the findings below, the Land Use Board of Appeals (LUBA) and the courts have concluded that under some circumstances the issuance of a building permit can constitute a land use decision which can be appealed as such. The Hearings Officer finds the Kuhns' appeal before me is from both the Planning Division's issuance of a LUCS and the Building Division's issuance of a building permit on the basis of that LUCS, but does not concern compliance with construction codes which will be addressed through the Kuhns' appeal to the Building Division. "(Bold emphasis in original; underscored emphasis added.) After discussing the nature of the appealed decision under state statutes, county code provisions and the 2002 circuit court decision discussed in the Findings of Fact above, the Hearings Officer concluded the Kuhns' appeal was barred by the previous circuit court judgment, and also that the Kuhns were not authorized to appeal the 2007 LUCS and building permit issuance under either state law or the county's code. Based on these conclusions, I dismissed the Kuhns' appeal and did not address either the merits of the appeal or any other procedural issues presented by the appeal. I do -so -in this decision. Kuhn Remand A -07 -9 Page 10 of 25 LUBA DECISION LUBA concluded the Hearings Officer erred in dismissing the Kuhns' appeal based on the following reasoning: "1. The Building Permit and LUCS are a Land Use Action First, while we recognize that the parties and the county have very different views regarding whether the existing dwelling was 'lawfully established,' there can simply be no doubt that the exercise of discretion was required to determine that the existing dwelling was lawfully established. There are no findings supporting the building permit and LUCS —at least no party has pointed them out to us. [Footnote omitted.] So we do not know why the Building and .Planning Divisions determined that the existing dwelling was lawfully established. There does not appear to be any dispute that the dwelling on intervenors' property is more than 400 feet from Sisemore Road, notwithstanding the note on the 1980 final plat and the language in the 1992 site plan application and approval. The dispute appears to be whether siting the house more than 400 feet from Sisemore Road when it was constructed between 1994 and 1997 results in a dwelling that was not 'lawfully established,' within the meaning of DCC 18.40.020(M). The county and perhaps the circuit court appear to rely heavily on the undisputed fact that when the dwelling was approved and built between 1994 and 1997 the final plat had not been recorded Intervenors also appear to rely in part on an unappealed 1997 final approval of the building permit for the dwelling that expressly recognized that the dwelling was more than 400 feet from Sisemore- Road and -- nevertheless -- granted. final approval. Petitioners appear to rely heavily on the fact that the final partition plat was recorded in 2004, after the circuit court rendered its decision in 2002, and that the county's and circuit court's apparent reasoning that the 400-foot maximum setback was not enforceable at the time the dwelling was approved may no longer be a sufficient basis for concluding-that the was-lawfully established. - - - -- - We agree with the hearings officer that a decision about whether the dwelling is set back more than 400 from Sisemore Road probably does not call for the exercise of much judgment: But as our attempt to understand and characterize some of the parties' arguments above shows, determining whether the construction of intervenors' dwelling more than 400 feet from Sisemore Road means that dwelling was not lawfully established requires the exercise of considerable legal and factual analysis and judgment. Finally, as petitioners correctly point out, the hearings officer's decision does not expressly address the possible significance of condition of approval 2 in the 1980 conditional use approval. While the county may consider that condition to have been satisfied by deed restrictions that apparently were recorded before 1997, the building - -permit decision does not -address- that question or -the potential significance of the c:rcutt court's 2002 decision t at a-clers intervenors to enter into the homeoWners ° association or agreement that was required by that condition of approval. Even if condition of approval number two has never been satisfied, that may simply mean Kuhn Remand A -07 -9 Page 11 of 25 sale of the parcels to petitioners and intervenors was inconsistent with that condition. Condition number 2 may have no bearing on the legality of the dwellings that have been constructed on those parcels. Regardless of the county's ultimate conclusion about the legal import of condition of approval 2, we agree with petitioners that significant discretion will be required to determine the existing dwelling was 'lawfully established,' within the meaning of DCC 18.40.020(M), notwithstanding petitioners' contention that the homeowners association or agreement required by condition number 2 of the 1980 conditional use approval has never been recorded. Because we conclude that the July 24, 2007 building permit and LUCS were land use actions, petitioners had a right to seek an appeal of those decisions under DCC 22.32.010(A)(2). Although we do not decide the question here, petitioners appear to have standing to appeal under DCC 22.32.010(A)(2) as 'adversely affected or aggrieved' persons. It follows that the countv's decision must be remanded so that the hearings ofcer can issue a decision on the merits if she concludes that petitioners have standing to pursue the appeal under DCC 22.32.01001)(2) as adversely affected or aggrieved persons. 2. DCC22.16.010. The second reason why we believe the hearings officer erred in dismissing petitioners' local appeal is based on DCC Chapter 22.16, which sets out procedures for development actions. DCC 22.16.010 authorizes the planning director to decide that an application for a development action will be treated as a land use action. [Footnote omitted.] On August 8, 2007 the planning department sent petitioners the following e -mail message: '(TJhe issuance of this permit required land use sign off. You, can appeal that sign -off (which is a land use decision), under an administrative appeal. That will bring the matter before the Hearings Officer and you will have your opportunity to present your perspective on the greater land use issues. My understanding is that really is where your concern lies. There is a $250 fee to bring this appeal, which you can apply for in our Bend Office. .1 believe your e- mail below will satisfy any time limit on bringing the appeal that may exist.' Record 649. The county counsel's office also sent an e-mail message on August 8, 2007, taking the position that, contrary to the planning department's e-mail message, petitioners' earlier e-mail message was not sufficient to 'preserve any appeal rights ' Record 648. The county counsel's office took no position regarding whether the building permit constituted a land use action and advised petitioners to 'seek * * * legal counsel for the appropriate appeal process.' Id After petitioners' appeal was filed on August 8, 2007, the county scheduled a hearing on the appeal for September 24, 2007. That public hearing was continued to November 14, 2007.. The record closed, subsequently was reopened by the hearings officer, and then closed a second time on January 2, 2008. The hearings officer issued her decision dismissing petitioners' appeal on March 26, 2008, concluding the Kuhn Remand A -07 -9 Page 12 of 25 challenged decision is a development action that petitioners have no right to appeal. The hearings officer specifically noted in her decision that she was not bound by the planning department's 'interpretation or opinion of the nature of the county's LUCS and building permit issuance.' Record 75 n 6. We agree with the hearings officer that she is not bound by the planning departments view about whether the July- 24,1007 building permit and LUCS gualify as a land use action rather than a development action. However, under DCC 22.16.010(B) the planning department is authorized to treat development actions as land use actions. We conclude that the planning department's August 8, 2007 e-mail message to petitioners was effective to constitute a de facto exercise of the authority granted by DCC 22.16.010(B). Petitioners simply took advantage of the appeal that the planning division told them was available. Therefore, even if the July 24, 2007 building permit and LUCS are correctly characterized as a development action, the planning department's August 8, 2007 e-mail message constituted a decision on behalf of the planning director to treat the building permit and LUCS as a land use action for purposes of appeal. Because the planning director is authorized to treat development actions as land use actions, petitioners did not err by exhausting the appeal that the county made available to petitioners, rather than attempting to appeal the July 24, 2007 building permit and LUCS directly to LUBA or to circuit court. See Tarjoto v. Lane County, 137 Or App 305, 904 P2d 641 (1995) (where county voluntarily provides a local appeal in circumstances where there might not have been a right to a local appeal; that local appeal must be exhausted before appealing to LUBA). "5(Emphasis added.) TIMELINESS OF KUHNS' APPEAL FINDINGS: Section 22.32.015(B) states in relevant part: Unless a request for reconsideration has been filed, the notice of appeal and appeal fee must be received at the _ offices -of the Deschutes County Community Development Department no later than 5:00 p.m. on the twelfth day following mailing of the decision. (Emphasis added.). Section 22.32.020 provides that a notice of appeal must include a statement raising issues relied on for the appeal. As discussed in the Findings of Fact above, the Planning Division signed a LUCS and the Building Division issued a building permit for the interior remodel of the Dowells' dwelling on July 24, 2007. The record does not indicate if when or to whom notice of the signing of the LUCS or the issuance of Building Permit B65731 was mailed. However, by an electronic mail message dated August 3, 2007 to Dennis Perkins and to Tom Anderson, the county's Community Development Department Director, the Kuhns stated they were appealing the county's issuance of building- permit- B65731 on the ground that the existing dwelling is illegal. The Hearings Officer- finds -this- communication. indicates the Kuhns were aware of the issuance of the building 5 The record indicates the decision to treat the LUCS and building permit as a land use action from which the Kuhns could appeal was in fact made by the county's Community Development Director and not by the Planning Director. However, neither party raised this issue before LUBA. Kuhn Remand A -07 -9 Page 13 of 25 permit on or before August 3, 2007. On August 8, 2007 the Kuhns filed with the Planning Division a county land use appeal application form and paid the $250 appeal fee. The application stated the appeal was from `B65731 as a land use decision." On August 9, 2007 the Kuhns filed with the Building Division a "Request for Appeal" form concerning the building permit. The Kuhns' August 3, 2007 electronic mail message was sent and received within twelve days of July 24, 2007, the date the LUCS statement and building permit were issued. Although the filing f-the two countyappeal forms fell outside that 12 -day- period, the-Hearings-Officer that given the differences of opinion concerning the nature and appealability of the LUCS and building permit, the Kuhns' August 3, 2007 electronic mail message, which identified the appealed decision and the basis for that appeal, constituted a sufficient "notice of appeal." Therefore, I find this appeal was timely filed. KUHNS' STANDING TO APPEAL FINDINGS: Section 22.32.010 provides in pertinent part: A. The following may file an appeal: 1. A party; 2. In the case of an appeal of an administrative decision without prior notice, a person entitled to notice, a person adversely affected or aggrieved by the administrative decision, or any other person who has filed comments on the application with the Planning Division; and 3. A person entitled to notice and to whom no notice was mailed. A person who, after such notices were mailed, purchases property to be burdened by a solar access permit shall be considered a person to whom notice was to have been mailed; * * *. (Emphasis added.) In her June 4, 2009 submission, the Kuhns' attorney Pamela Hardy argued the Hearings Officer need not determine whether the Kuhns have standing to appeal because LUBA concluded the Kuhns were entitled to appeal in light of the Community Development Director's aforementioned communication advising the Kuhns they could appeal the LUCS and building permit. The Hearings Officer finds this argument has merit. Nevertheless, because LUBA's decision suggests a standing determination must be made on remand, I will address the standing question. The Dowells argue the Kuhns do not have standing to appeal for two reasons. First, they assert the Kuhns were not entitled to notice of the county's issuance of the LUCS and building permit B65731. The Hearings Officer disagrees. LUBA concluded the county's issuance of the LUCS and building permit constituted a land use decision. Under Section 22.24.030(A)(1)(b) the Kuhns were entitled to notice of the land use decision because they own property within 100 feet of the Dowells'- property. Therefore, I find the Kuhns have standing to appeal as persons entitled to notice. Kuhn Remand A -07 -9 Page 14 of 25 Since the Hearings Officer has concluded the Kuhns have standing to appeal as persons entitled to notice, I need not address whether the Kuhns have standing as "aggrieved" persons. Nevertheless, I find the Kuhns were "aggrieved by issuance of the LUCS and building permit because they own one of the two residential parcels in three - parcel cluster development that also includes the Dowells' residential parcel, and they have a keen interest in how the cluster development is developed in general, and in particular whether and how any development prerequisites and/or conditions of approval — such as the 400 -foot maximum setback from Sisemore Road -- are enforced. CLAIM PRECLUSION The Hearings Officer's remanded decision included a lengthy analysis concerning whether the Kuhns'.. appeal was barred by issue or claim preclusion because of the circuit court's 2002 decision. Claim preclusion bars relitigating claims that were previously decided or could have been decided in a prior proceeding' involving the same parties. Drews v. EBI Companies, 310 Or 134, 140 -41, 795 P2d 531 (1990). Issue preclusion bars relitigating an issue in subsequent proceedings when the issue has been decided by a valid and final determination in a prior proceeding. Nelson v. Emerald People's Utility Dist., 318 Or 99, 862 P2d 1293 (1993). LUBA's decision did not address the claim preclusion question. In these remand proceedings, the Kuhns argue that claim preclusion does not apply here because there has been a material change of facts since the circuit court's decision - i.e., the recording of the partition plat in 2004. The Hearings Officer finds merit to that argument. Nevertheless, upon further consideration in these remand proceedings, I find that because the record of the circuit court proceedings is not before me for review, I cannot determine whether the test under the Nelson case for establishing issue or claim preclusion has been met with respect to the lawfulness of the location of the dwelling on the Dowells' 'parcel. Therefore, I find the Kuhns were not precluded from filing this appeal because of the 2002 circuit court decision: PROCEDINGS ON REMAND A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.34, Proceedings on Remand a. Section 22.34.020, Hearings Body The Hearings Body for a remanded or withdrawn decision shall be the Hearings Body from which the appeal to LUBA was taken, except that in voluntary or stipulated remands, the Board may decide that it will hear the case on remand. If the remand is to the Hearings Officer, the Hearing's Officer's decision may be appealed under DCC Title 22 to the Board, subject to the limitations set forth herein. FINDINGS: This Hearings Officer was the hearings body from which the appeal to LUBA was taken by the Kuhns. Kuhn Remand A -07 -9 Page 15 of 25 b. Section 22.34.030, Notice and Hearings Requirements A. The County shall conduct a hearing on any remanded or withdrawn decision, the scope of which shall be determined in accordance with the applicable provisions of DCC 22.34 and state law. Unless state law requires otherwise, only those persons who were parties to the proceedings before the County shall be entitled to notice and be entitled to participate in any hearing on remand. B. The hearing procedures shall comply with the minimum requirements of state law and due process for hearings on remand and need comply with the requirements of DCC 22.24 only to the extent that such procedures are applicable to remand proceedings under state law. C. A final decision shall be made within 90 days of the date the remand order becomes effective. FINDINGS: These proceedings on remand are being conducted pursuant to the provisions of Chapter 22.34 as well as the provisions governing land use action hearings under Chapter 22.24. As discussed in the Findings of Fact above, the 90 -day period for issuance of a final local decision on remand expired prior to the date of this decision. c. Section 22.34.040, Scope of Proceeding A. On remand, the Hearings Body shall review those issues that LUBA or the Court of Appeals required to be addressed. In addition, the Board shall have the discretion to reopen the record in instances in which it deems it to be appropriate. * * * C. If additional testimony is required to comply with the remand, parties may raise new, unresolved issues that relate to new evidence directed toward the issues on remand. Other issues that were resolved by the LUBA appeal or that were not appealed shall be deemed to be waived and may not be reopened. FINDINGS: LUBA's decision remanded this matter for the Hearings Officer to consider the merits of the Kuhns' appeal. The record before me includes the record created in the original appeal proceedings, the entire LUBA record, and evidence and argument submitted by the parties and planning staff at the hearing on the remand. No new issues were raised on remand. Kuhn Remand A -07 -9 Page 16 of 25 MERITS OF APPEAL B. Title 15 of the Deschutes County Code, Building and Construction 1. Chapter 15.04, Building and Construction Codes and Regulations a. Section 15.04.150, Building or Mobile Home Placement Permit — Zoning and Subdivision Conformance No building permit or mobile home placement permit shall be issued if the parcel of land upon which the building or mobile home is to be erected or located on, or is located on, would be in violation of DCC Title 17, the subdivision title or DCC Title 18, the zoning title. A subdivision shall be deemed in violation of the zoning ordinance for the purpose of issuing building permits so long as roads and other improvements remain uncompleted in accordance with the applicable subdivision provisions. (Emphasis added.) FINDINGS: In the Hearings Officer's remanded decision, I concluded the LUCS and building permit subject to this appeal were issued pursuant to this section, which was adopted by the county to comply with the state agency coordination requirements of ORS 197:180 and OAR Chapter 660, Divisions 30 and 31. I noted these state law requirements are applicable to the state Building Codes Division which, among other things, enforces the state's building safety and construction codes primarily through local government building departments. I also noted that it was my understanding the Building Division implements state law and Section 15.04.150 by asking the Planning Division to review a proposed structure or alteration thereof for compliance with both the applicable county land use regulations and any prior land use decisions -- and conditions and limitations therein -- applicable to the structure and/or the property on which it is located. The above - underscored language in Section 15.04.150 states the review required by this "code section is directed at deterrnining the lawfulness of the parcel on which the building is to be located. The Kuhns do not appear to dispute the lawfulness of the Dowells' parcel. Rather, the Kuhns contend the Dowells' dwelling is not lawful. Both the Kuhn and Dowell parcels were created by a partition that received both preliminary and final approval from the county. The record indicates that at the time the final partition plat was approved it was required to be recorded with the Deschutes County Clerk under the provisions of PL -14, an earlier subdivision/partition ordinance. However, the record also indicates the county considered the final partition plat to be effective despite that fact that it had not been recorded inasmuch as the Dowells' and Kuhns' dwellings could not have received land use approval if the county had concluded the partition parcels did not lawfully exist 6 In addition, as discussed in the Findings of Fact above, in 1987 the Kuhns received approval for a lot line adjustment of their parcel. -- For the foregoing - reasons,- the - -Hearings - Officer- finds:_ the_LUCS._review . and issuance by the Planning Division was based on Section 15.04.150, and the county apparently concluded that the Dowells' parcel was lawfully created. However, as discussed in the findings below, the county's 6 ORS 92.025 prohibits the sale of partition parcels prior to recording the final plat. Kuhn Remand A -07 -9 Page 17 of 25 LUCS review also was required to consider compliance with the provisions governing dwellings in the F -2 Zone, discussed in the findings below. C. Title 18 of the Deschutes County Code, the County Zoning Ordinance 1. Chapter 18.08, Basic Provisions Section 18.08.010, Compliance A. A lot may be used and a structure or part of a structure may be constructed, reconstructed, altered, occupied or used only as DCC Title 18 permits. No new structure shall be constructed on any lot of less area than the minimum for the zone in which it is located, except as provided by DCC Title 18 and ORS 21.203 et. seq. 2. Chapter 18.40, Forest Use Zone — F -2 a. Section 18.40.020, Uses Permitted Outright * * * M. Alteration, restoration or replacement of a lawfully established dwelling that: 1. Has intact exterior walls and roof structure; 2. Has indoor plumbing consisting of a kitchen sink, toilet and bathing facilities connected to a sanitary waste disposal system; 3. Has interior wiring for interior lights; 4. Has a heating system; and 5. In the case of replacement, is removed, demolished or converted to an allowable use within three months of completion of the replacement dwelling. 3. Chapter 18.144, General Provisions a. Section 18.144.050, Violation The location, erection, construction, maintenance, repair, alteration or use of building or structure or the subdivision, partitioning or other use of land in violation of this title or of any permit, land use approval or status determination issued or made under DCC Title 18 Kuhn Remand A -07 -9 Page 18 of 25 is a Class A violation. FINDINGS: The Dowells requested a building permit for an interior remodel of their existing dwelling on the subject property. Although the term "alteration" is not defined in Title 18, the Hearings Officer finds an interior remodel clearly falls within the ordinary definition of the term "alter" which is "to change, make different, modify." Webster's New World Dictionary, College Edition. - For an alteration of a- dwelling - in the F -2 -Zone. to be permitted, it must meet two requirements: (1) it must have been "lawfully established;" and (2) it must have all of the physical elements described in this section. There is no dispute the Dowells' existing dwelling has all of these physical elements. The question is whether the dwelling was "lawfully established." Section 18.40.020(M) implements, and is identical to, the provisions of ORS 215.755(1) and Oregon Administrative Rules (OAR) 660- 06- 025(3)(p). Neither the statute nor the administrative rules define the term "lawfully established." The ordinary definition of "lawful" is "in conformity with the principles of the law; permitted by law; recognized by law." The ordinary definition of "establish" is "to set up." Webster's New World Dictionary, College Edition. Applying these definitions to the language of Section 18.40.020(M), the Hearings Officer finds it means a dwelling that is sited and built as authorized by law. I find this interpretation is consistent with the analysis employed by LUBA and the Oregon courts to determine whether a lot or parcel was "lawfully created." E.g., Maxwell v. Lane County, 178 Or App 210, 35 P3d 1128 (2001), adhered to as modified 179 Or App 409, 40 P3d 532 (2002). The parties fundamentally disagree about how to interpret and apply the term "lawfully established " -in -the circumstances in this case. Their arguments and the Hearings Officer's analysis are set forth in the findings below. 1. Dowells' Arguments. The Dowells argue a "lawfully established" dwelling is one for which the county has issued permit(s) and/or approval(s) — regardless of whether those permits or approvals were lawfully issued. In other words, the mere issuance of permits or approvals renders the dwelling "lawfully established" and the county need not and should not look behind those permits /approvals to determine if they were properly issued. At the public hearing on the remand, the Dowells' attorney Robert Lovlien argued the situation is analogous to the county's recognition of a lot or parcel as a legal lot -of- record based solely on the county's issuance of development permits, without considering whether or not those permits should have been issued. The Dowells assert their dwelling was authorized by the county's 1980 approval of the partition and cluster development in which their parcel is located, the county's 1992 approval of their LM site plan, the county's 1993 approval of an extension of the LM approval, and the county's 1994 issuance of a building permit for the existing dwelling. The Dowells also argue that the permits and approvals issued for their dwelling were lawfully issued. In support of that argument, they note the following: • Although the partition plat showed a line denoting a 400 -foot maximum dwelling setback from Sisemore Road, the plat was not recorded until 2004, long after the Dowells constructed their dwelling and long after PL -14, the county's partition ordinance effective in 1979, required final plats to be recorded with the county clerk. Kuhn Remand A -07 -9 Page 19 of 25 • The 1992 LM site plan approval for the Dowells' dwelling (LM -92 -9) did not include conditions establishing or requiring compliance with the 400 -foot maximum setback. • No county code provision established a 400 -foot maximum setback from Sisemore Road. The setback was proposed by the Dowells' and Kuhns' predecessor to address concerns raised by the ODFW. The Dowells' county Measure 37 waiver order waived application of the 300 -foot maximum road setback established later in the WA Zone. • In a letter dated September 6, 2000, the county's legal counsel Richard Isham advised the Kuhns' then- attorney Gerald Martin that the county concluded there was no basis for code enforcement proceedings inasmuch as the land use decisions affecting the Dowells' and Kuhns' property "do not make the 400 -foot setback a condition of approval," and the partition plat showing the 400 -foot building line was not recorded. • The 2002 circuit court decision in the civil litigation between the Dowells and the Kuhns found that the Kuhns had not established that the location of the Dowells' dwelling more than 400 feet from Sisemore Road was in violation of the county code or of any requirement that the building be entirely within 400 feet of Sisemore Road. The Dowells argue this appeal is simply the Kuhns' effort to relitigate the issues resolved in the circuit court's decision. • The cluster development condition of approval requiring the recording of a written homeowners' agreement was expressly made a prerequisite for the sale of the two residential parcels and not for their development with dwellings. In any case, the Kuhns acknowledged that the county considered the recording of deed restrictions for the parcels within the cluster development to satisfy the requirement for the creation of a homeowners' association to assure maintenance of the open space. It does not appear that the. Kuhns objected to or appealed the county's determination of the effect of the deed restrictions in satisfying the cluster development conditions of approval. And if the Dowells' dwelling is illegal or was sold illegally because of the lack of a recorded homeowners' agreement, then the Kuhns' dwelling also would be illegal. • No appeal was filed from the county's 1994 issuance of a building permit for the Dowells' dwelling, from the 1996 permit extension granted by the county, or from the 1997 final building permit sign -off, and therefore the Kuhns waited too long to challenge the location of the Dowells' dwelling.8 7 Attached to the Dowells' burden of proof for the remand is a letter dated May 26, 2009 from the Kuhns to Kevin Harrison, Principal Planner, stating that the deed restrictions "met your definition of the necessary joint homeowners maintenance agreement," but that the Kuhns wished to submit a new agreement with different wording that "would hopefully clarify the old agreement (not change the intent or be less restrictive than the recorded deed restrictions /maintenance agreement) and add the taxes provisions." 8 The 1997 final building permit sign -off may well have been an appealable land use decision. Applying LUBA's reasoning in its remand decision, a determination of the proper location of the Dowells' dwelling at the time of final building inspection in 1997 would have required the same exercise of discretion — and Kuhn Remand A -07 -9 Page 20 of 25 • The siting of the Dowells' dwelling further than 400 feet from Sisemore Road does not and will not adversely affect the Tumalo Deer Winter Range because the dwelling is not located on the open space parcel created as part of the cluster development to protect the winter range. In addition, the Dowells argue that even if the county's issuance of the original building permit for -their dwelling - was - improper -,- the - -county - cannot take any action that would amount to retroactively revoking the building permit, relying on Church v. Grant County, 37 Or LUBA 636 (2000). In that case, the county approved a partition with 5 -acre lots in an area zoned for a 10- acre minimum lot size. No appeal from the partition approval was filed. Subsequently the county adopted an ordinance for the purpose of setting aside the substandafd lot sizes: LUBA held ORS 92.285 prohibited the county from retroactively revoking an otherwise final and unreviewable partition approval .9 2. Kuhns' Arguments. The Kuhns respond that a "lawfully established" dwelling is one for which any permits and/or land use approvals were properly issued - i.e., consistent with the county code and with any prior land use approvals and conditions or limitations therein. The Kuhns state the Dowells' original building permit was properly issued, because the building permit application indicated the dwelling would . be located within the maximum 400 -foot setback from Sisemore Road. However, they argue the county's sign -off on the original building permit following final - inspection of the dwelling was unlawful because the dwelling was constructed outside the 400 -foot setback. The Kuhns assert they could not appeal the final building' permit sign -off, and in any case the proper location of the dwelling may not actually have been verified during the final inspection. The Kuhns argue the LUCS and building permit for the remodel were not lawfully issued because: • The partition plat included a building line 400 feet from Sisemore Road with a notation that it was a maximum road setback. • The Dowells' submitted LM site plan included a notation stating the dwelling would not be sited more than 400 feet from Sisemore Road. • The Dowells and the Kuhns were required to execute and record a homeowners' agreement by both the cluster development approval and the circuit court's decision and no such agreement has been recorded. • The purpose of the 400 -foot maximum building setback from Sisemore Road was to protect the Tumalo Deer Winter Range, and allowing the Dowells' dwelling more than 400 feet from the road will adversely affect the integrity of the winter range. would have raised the same factual and legal issues under previous -land- use -decisions -and the county code - as is the case in these proceedings. 9 ORS 92.285 provides "No retroactive ordinances shall be adopted under" provisions of ORS Chapters 92 and 215. Kuhn Remand A -07 -9 Page 21 of 25 The Kuhns' attorney argued at the remand hearing that the Dowells' lot -of- record analogy is inapposite where, as here, the Dowells' dwelling had not yet been built when the building permit was issued in 1994, and therefore issuance of the building permit alone should not be a basis for estopping the county from denying a LUCS and building permit for the dwelling's alteration. The Kuhns also argue that even though the partition plat was not recorded when they and the Dowells purchased their parcels, nevertheless the unrecorded plat and its notations should be considered a part of the Kuhns' and Dowells' deeds which bound them and upon which they were entitled to rely, They- cite- in_support of this argument the Court of Appeals' decision in Bloomfield v. Weakland, 224 Or App 443, 199 P3d 318 (2008). The issue there was whether a private way indicated on a subdivision plat, but not included in a deed conveying the lot burdened by the private way, was binding on the purchaser of the burdened lot. Citing a 1928 case, the court held that the plat and deed should be read together to create an express easement. 3. Analysis. a. What Constitutes a "Lawfully Established" Dwelling. The Hearings Officer is not persuaded by the Dowells' argument that the mere issuance of permit(s) and/or land use approval(s) renders a dwelling "lawfully established." The ordinary definitions of the terms "lawful" and "establish," discussed above, make clear a lawful dwelling is one that is authorized by and complies with the applicable law. Moreover, the context of Section 18.04.020(M) — i.e., the rest of Title 18 -- supports a broader interpretation than the one suggested by the Dowells. The provisions of Sections 18.08:010 and 18.144.150, set forth above, require that development of a parcel be consistent with Title 18. Where, as here, the county's records evidenced a dispute concerning the status of the Dowells' existing,dwelling, I find that in determining whether an alteration to that dwelling could be permitted, the county needed to evaluate not only whether the Dowells' parcel was lawful (pursuant to Section 15.04.150). It also needed to determine under Section 18.40.020(M) whether the existing dwelling received all required permits and approvals and is in compliance with them, and whether those permits and approvals were themselves in compliance with Title 18. The caselaw makes clear that not every LUCS and building permit issuance requires the level of review the Hearings Officer has determined was necessary for the Dowells' LUCS and building permit issuance. The particular circumstances of, and code provisions applicable to, each case will determine the level of review required, and in turn whether or not the result of that review constitutes a land use decision. It is not my intention to suggest anything to the contrary in this decision. Rather, my analysis and conclusions here are limited to the circumstances of this case and the requirements of Section 18.40.020(M) for alterations to dwellings in the F -2 Zone. b. Homeowners' Agreement The Hearings Officer finds the failure of the parties to execute and record a homeowners' agreement as required by Condition 2 of the 1980 cluster development approval and by the circuit court's 2002 decision does not render the Dowells' existing dwelling unlawful. That is because, by its express terms, Condition 2 made the homeowners' agreement a condition precedent to the sale of the cluster development parcels, not to their development with dwellings. In addition, as discussed above, the Kuhns advised the Planning Division that they understood the county had determined the homeowners' association requirement to have been met with the recording of deed restrictions, and the Kuhns did not object to or appeal from that Kuhn Remand A -07 -9 Page 22 of 25 determination. Finally, the circuit court's injunction is not enforceable through county land use proceedings. c. Effect of 400 foot Maximum Building Setback. There is no question that at the time Mr. Barton's partition and cluster development were approved, the county believed the approval created an enforceable building line at 400 feet from Sisemore Road, notwithstanding the fact that no specific conditions of approval for the partition or cluster development required compliance with that building setback. It is equally clear that when the county approved the Dowells' LM site plan, it understood the Dowel's' dwelling would be built within 400 feet of Sisemore Road, notwithstanding the fact that there was no specific site plan condition requiring compliance with that building setback. It is apparent from Paul Blikstad's February 1992 letter to the Dowells that the county believed a dwelling on the Dowells' parcel must be sited within 400 feet of Sisemore Road because of the written representations made by Mr. Barton on the partition plat (the building line and adjacent notation) and by the Dowells on their LM site plan (the notation that the dwelling would be constructed no further than 400 feet from Sisemore Road). The LM site plan approval included a condition stating the approval was based on the submitted site plan.'o In Central Oregon Lkndwatch v. Deschutes County, 53 LUBA 290 (2007), LUBA was asked to determine if the hearings officer erred in not imposing conditions of approval implementing all recommendations of a consultant's forest plan presented by an applicant in support of' his forest dwelling application. In concluding there was no error, LUBA made the following findings concerning the relationship between an applicant's representations and conditions of approval: "Intervenor. cites Wilson Park Neigh. Assoc. -v. City of Portland, 27 Or LUBA 106, 12324, rev'd on other grounds, 129 Or App 33,`877 P2d 1205 0994), Perry v. Yamhill County, 26 Or LUBA 73, 87, affd 125 Or App 588, 865 P2d 1314 0993), and Friends of the Metolius v. Jefferson County, 25 Or LUBA 411, 421, aff d 123 Or App 256, 860 P2d 278, on recon 125 Or App 122, 866 P2d 463 (1993), for the proposition that, where the application represents that certain actions will be taken to ensure compliance with approval criteria, such actions are part of the approved development and need not be imposed as conditions of approval. In Wilson Park, we rejected arguments that compliance with submitted elevation and site plans must be imposed as conditions of approval of a housing development. Similarly, in Perry' we held that compliance with a submitted drainage plan need not be imposed as a'condition of approval of a subdivision application. In Friends of the Metolius, we held that compliance with submitted site, landscaping and building design plans need not be imposed as conditions of 10 It appears that it was only after the Kuhns began to question the lawfulness of the Dowells' dwelling that the county took the position (M correspondence and in the 2002 circuit court proceedings) that the 400 -foot maximum setback was neither binding nor enforceable aglinsf the Dowells. The county's later position apparently was based on the fact that the partition plat had not been recorded, as well as the lack of specific conditions of approval for the partition, cluster development or LM site plan that required compliance with the setback. Kuhn Remand A -07 -9 Page 23 of 25 approval In all three decisions, we distinguished our holding in Neste Resins Corp. v. City of Eugene,23 Or LUBA 55, 67 (1992) (non- binding promises by the applicant are not a substitute for conditions of approval). Intervenor argues in the present case that Wilson Park, Perry and Friends of the Metolius are controlling, and that Neste Resins Corp. is distinguishable because it involved a zone change rather than a specific quasi-judicial development, as here. We disagree. As we understand Wilson Park, Perry and Friends of the Metolius, the salient point in those cases was that the applicant submitted specific site plans or similar documents depicting characteristics of the proposed development, and the local government approved those plans or documents. In that circumstance, there is no need for an explicit condition of approval requiring compliance with such site plans or documents. In the present case, the forest plan is a general forest management plan for the entire property. Its submission is not required to obtain a large tract dwelling permit, the forest plan was not submitted for approval, and the hearings officer did not purport to approve it. The forest plan is not a site plan or similar plan for the approved development, as in Wilson Park, Perry and Friends of the Metolius. Accordingly, we do not believe the principle described in Wilson Park, Perry and Friends of the Metolius controls the present case. (Bold emphasis italicized in original; underscored emphasis added.) Although there was no code provision in 1980 that established a maximum road setback on the subject property, the record indicates Mr. Barton proposed a 400 -foot maximum building setback from Sisemore Road in order to address ODFW's concerns about protecting the Tumalo Deer Winter Range that was about to be designated on the county's comprehensive plan and protected through adoption of the WA Zone (as well as by what later became a 300 -foot maximum building setback from roads). Clearly, Mr. Barton proposed the road setback, and showed it on the partition plat, in order to secure the county's approval of the partition and cluster development. Similarly, in 1992 the Dowells submitted an LM site plan containing a notation that the dwelling would not be built beyond the 400 -foot road setback in order to obtain site plan approval for their dwelling, having been advised by Mr. Blikstad that the county considered the 400 -foot setback from the road to be binding on them. The Hearings Officer finds the circumstances presented here are equivalent to those in the Wilson Park Perry and Friends of the Metolius cases in which the applicants' submitted plans and representations were found to be binding notwithstanding the lack of conditions of approval requiring compliance with those plans. And I find there is no question the Dowells had notice, and were aware, of the 400 -foot maximum building setback from Sisemore Road at the time they submitted their LM site plan for approval: 1 The Hearings Officer finds I am not bound by the circuit court's decision concerning the effect of the 400 -foot road setback because the county was not a party to the circuit court proceedings, and because I cannot determine from the court's judgment included in this record whether the " The Hearings Officer need not speculate as to the reason the Dowells elected to construct their dwelling in a location outside the approved setback. However, the Dowells' county Measure 37 claim, included in this record, states they chose their homesite for the views. Kuhn Remand A -07 -9 Page 24 of 25 court was made aware of the above -cited caselaw concerning the effect of an applicants' representations. I also find the Dowells' analogy to lot -of- record determinations is not persuasive. While I understand the county follows an unwritten policy of recognizing the creation of legal lots based on (possibly unlawful) permit issuance, I find that policy is in the nature of an equitable estoppel that is not appropriate to apply in these circumstances.12 That is because, notwithstanding the Dowells' claim to the contrary, I find the county is not being asked here to effectively revoke the previously- issued building permits for the Dowells' dwelling. Rather, the Kuhns are requesting that the county not issue any further permits for the dwelling. For the foregoing reasons, the Hearings Officer finds the Dowells' dwelling was subject to the 400 -foot maximum setback from Sisemore Road identified on the partition plat and on the Dowells' 1992 LM site plan. There is no dispute the dwelling was constructed outside that setback. Therefore, I find the Dowells' dwelling was not "lawfully established" for purposes of obtaining approval for an alteration of the dwelling under Section 18.40.020(M). Accordingly, I find the county erred in issuing a LUCS and building permit for an interior remodel of the Dowells' dwelling. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer in this appeal hereby REVERSES the Planning Division's decision to issue a LUCS and building permit to remodel the Dowells' existing dwelling on the subject property. Dated this 4/6/... day of August, 2009. Mailed this I 7 day of August, 2009. Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. 12 The county's definition of a lot -of- record in Section 18.04.030 does not include lots or parcels on which permits have been issued. Kuhn Remand A -07 -9 Page 25 of 25 AUG -02 -U2 RI 14:06 FRANCIS MARTIN FAX N0. 5413827068 STEPHEN N. TIKTIN, Presiding Judge MICHAEL C. SULLIVAN, Judge EDWARD L. PERKINS, Judge July 31, 2002 Gerald Martin Attorney at Law 1199 NW Wall Street Bend, OR. 97701 -1934 Mark Reinecke Attorney at Law PO Box 1151 Bend, OR. 97709 CIRCUIT COURT OF OREGON ELEVENTH JUDICIAL DISTRICT DESCHUTES TrwNTT JUSTICE BUILDING BEND, OREGON 97701 (541) 388 -5300 (Voice & TOD) Re: Kuhn v. Dowell Deschutes County Case No. OICV0233MA Counsel: The following is the Court's decision in this case. PLAINTIFF'S FIRST CLAIM (DECLARATORY RELIEF) P. 02 ALTA J. BRADY, Judge A. MICHAEL ADLER, Judge BARBARA A. HASLINGER, Judge pk)G 6 00°.7:1 Plaintiffs have not established that the Defendants' property is in violation of the Deschutes County Code as alleged. Plaintiffs have not established that the location of the existing building on Defendants' property is in violation of a requirement that the building be entirely within 400 feet of Sisemore Road measured perpendicularly from the front (east end) property line. The size, design, current color, and materials were approved by Deschutes County and did not violate any requirements of the Deschutes County Code. Plaintiffs have failed to establish that the rooting material on Defendants' building is in violation of the Deschutes County Code. On Plaintiffs' First Claim, judgment is for the Defendants. 000116 HOC-U2 -U2 FRI 14:07 FRANCIS MARTIN Page 2 Re: Kuhn v. Dowell Deschutes County Case No. 01 CV0233MA FAX N0, 5413827068 PLAINTIFFS' SECOND CLAIM (ABATEMENT) On Plaintiffs' Second Claim, judgment is for the Defendants. PLAINTIFFS' THIRD CLAIM (INJUNCTION) On Plaintiffs' Third Claim, judgment is for Defendants. PLAINTIFFS' FOURTH CLAIM (CODE ENFORCEMENT) Plaintiffs have not established any of the alleged code violations. On Plaintiffs' Fourth Claim, judgment is for the Defendants. PLAINTIFFS' FIFTH CLAIM (NUISANCE) LOCATION OF BUILDING Plaintiffs have not established that the location of the building (more than 400 feet west of the east boundary of the property along Sisemore Road) is in violation of any enforceable requirements. Plaintiffs have not established that the location of the building has caused a substantial and unreasonable interference with the use and enjoyment of Plaintiffs property. LIGHTING Plaintiffs have not established that the design and placement of the lighting or the type of lighting used violates the Deschutes County Code. However, the Plaintiffs have established by a preponderance of the evidence that the Defendants' use of this lighting, specifically the practice of leaving all of the exterior lights on all night, every night, since the dispute over the removal of the survey markers occurred, is unreasonable and causes a substantial and unreasonable interference with the use and enjoyment of Plaintiffs' property. P,03 000117 0 • 0 i iRUU -U2 -02 FRI 14:08 FRANCIS MARTIN FAX NO 5413827068 P. 04 Page 3 Re: Kuhn v. Dowell Deschutes County Case No. OICV0233MA Leaving all of' these .exterior lights on all night, every night, in this rural wildlife area, has caused unreasonable and substantial interference with Plaintiffs' use and enjoyment of their land, This exterior lighting has caused Plaintiffs to no longer use their bedroom for sleeping and has interfered with the ability of Plaintiffs to enjoy significant portions_of their property at night due to the highly visible exterior lighting on Defendants' building. The Court finds it to be significant that the Defendants began their practice of leaving these lights on all night immediately after the dispute arose with the Plaintiffs with respect to the Plaintiffs' removal of certain survey markers from Defendants' property. The Court finds that Defendants have deliberately left these lights on all night specifically to harass and annoy the Plaintiffs. The Court finds that the Defendants expressed reasons for leaving the lights on all night not to be credible. The Court finds that leaving these lights on all nights, every night, has caused Plaintiffs to suffer significant mental anguish. The Court awards Plaintiffs noneconomic damages in the amount of$5,000, PLAINTIFFS' SIXTH CLAIM (MANDATORY INJUNCTION) Defendants are ordered to enter into the required "home owners association or agreement assuring the maintenance of common property" as set forth in the conditions required with respect to the conditional use permit. At a minimum, this agreement shall provide that any property taxes and any maintenance costs with regard to the common property be shared equally, DEFENDANTS' COUNTERCLAIMS DEFENDANTS' FIRST COUNTERCLAIM (ATTORNEY FEES) This claim was withdrawn. DEFENDANTS' SECOND COUNTERCLAIM (INTERFERENCE WITH PERSPECTIVE BUSINESS RELATIONS) On Defendants' Second Counterclaim, judgment is for the Plaintiffs. IIUU -U2 -02 FRI 14:09 FRANCIS MARTIN Page 4 Re: Kuhn v. Dowell Deschutes County Case No. OICVO233MA FAX NO. 5413827068 DEFENDANTS' THIRD COUNTERCLAIM (TRESPASS) On Defendants' Third Counterclaim, judgment is for the Plaintiffs. DEFENDANTS' FOURTH COUNTERCLAIM (DECLARATORY RELIEF) On Defendants' Fourth Counterclaim, judgment is for the Plaintiffs. DEFENDANTS' FIFTH COUNTERCLAIM On Defendants' Fifth Counterclaim; judgment is for the Plaintiffs. DEFENDANTS' SIXTH COUNTERCLAIM (PARTITION) On Defendants' Sixth Counterclaim, the Defendants have not presented sufficient evidence for the Court to order a partition of this property. DEFENDANTS' SEVENTH COUNTERCLAIM (ABUSE OF CIVIL PROCESS) On Defendants' Seventh Counterclaim, judgment is for the Plaintiffs. DEFENDANTS' EIGHTH COUNTERCLAIM (DECLARATORY RELIEF) This claim was withdrawn. P. 05 000119 1 1 1 4UG -02 -02 FRI 14:09 FRANCIS MARTIN FAX N0. 5413827068 Page 5 Re: Kuhn v. Dowel] Deschutes County Case No. 01 CV0233MA DEFENDANTS' NINTH COUNTERCLAIM (INJUNCTION) This claim was withdrawn. Mr. Martin shall submit ajudgment. Sincerely, AUL A. Michael Adler Circuit Court Judge AMA /hmb P. 06 000120 http:// web2. westlaw. com/ print'printstream.aspx ?vr= 2.0 &mt=West1... West law 106 P.3d 699 (Table) 196 Or.App. 787, 106 P.3d 699 (Table) (Cite as: 196 Or.App. 787) (The Court's decision is referenced in a Pacific Reporter table captioned "Oregon Court ofAppeals. ") Court of Appeals of Oregon William John Kuhn, Martha Leigh Kuhn v. Jeff Dowell, Patty Dowell; Jeff Dowell, Patty Dowell v. William John Kuhn, Martha Leigh Kuhn NO. A119591 AFFIRMED WITHOUT OPINION. Or.App. 2004. Kuhn v. Dowell 196 Or.App. 787, 106 P.3d 699 (Table) END OF DOCUMENT 1 of 1 December 29, 2004 © 2009 Thomson Reuters. No Claim to Orig. US Gov: Works. 8/27/2009 3:32 PM O ,yo,e rf/ CG - se./. /a , i''a,..yc ./, set .,,. ,, 1 •i✓ .Gf+" /pa ® a/' ^'/ /ef s 2 is yaaa«s e4sr (.4-3_yp<rem/4r r's4cs I' 33.a9asCg w c4�x •-'i �ssc see • F'c ovEe../na ) oyP G �4 of rMe'' A./..,,4E^o 'S,,s r...y Dae...:..w� 1 Q N.ei/, /5 ,..,o/c .raro / ! G /P// X.2.4.115 .PKE 44/0 /c.a.re0 . ® F./ da.ao/>oSe'n D2'cede& 5 4€ /v .4/Leo ® P..Car..5E0 %, & S./ le i5 49, O.c.97 O 0 ,arn/,tE •-Ron fo.e /ases /iouSE S„%F ,4 PRC`'l F./y LLVES fl /4Ie /C.➢ 7Pa ®, D/.CFC react, C� 5 %nPf /5 /✓o ee.. E 6Y e:"o:a eau.¢ 2,,,PS [wtr re'''''', s/ese) e P.:woeco56 P„ss -or o.e..,ra y (2) 9.vo Tu o./eE- . «/..•=/ ®. Q P ^e z ... 1.1a."44/ L.0 i a.c.: Ct o 0 A "do. as- ® Le7 "".Zec iw /Ler -aeo rn'il OS'cr:4 4EI 1 BEFORE THE LAND USE BOARD OF APPEALS 2 OF THE STATE OF OREGON 3 4 WILLIAM KUHN and MARTHA LEIGH KUHN, 5 Petitioners, 6 7 vs. 8 9 DESCHUTES COUNTY, 10 Respondent, 11 12 and 13 14 JEFF DOWELL and PAT DOWELL, 15 Intervenors - Respondents. 16 17 LUBA No. 2008 -080 18 19 FINAL OPINION 20 AND ORDER 21 22 Appeal from Deschutes County. 23 24 Pamela Hardy, Bend, filed the petition for review and argued on behalf of petitioners. 25 26 Laurie E. Craghead, County Legal Counsel, Bend, filed a joint response brief and 27 argued on behalf of respondent. With her on the brief were Robert S. Lovlien, Helen L. 28 Eastwood and Bryant, Lovlien & Jarvis, P.C. 29 30 Robert S. Lovlien and Helen L. Eastwood, Bend, filed a joint response brief and 31 Helen L. Eastwood argued on behalf of intervenors - respondents. With them on the brief 32 were Bryant, Lovlien & Jarvis, P.C. and Laurie E. Craghead. 33 34 HOLSTUN, Board Member; BASSHAM, Board Chair; RYAN, Board Member, 35 participated in the decision. 36 37 REMANDED 03/11/2009 38 39 You are entitled to judicial review of this Order. Judicial review is governed by the 40 provisions of ORS 197.850. Page 1 1 Opinion by Holstun. 2 NATURE OF THE DECISION 3 Petitioners appeal a county land use hearings officer decision that dismisses their 4 local appeal of a land use compatibility statement and a building permit that authorizes 5 intervenors to remodel the interior of their dwelling. 6 FACTS 7 Petitioners and intervenors live in houses on adjoining 4.3 -acre parcels bordering 8 Sisemore Road. They have had a number of disputes over the years. One of those disputes 9 concerns the location of intervenors' house on their parcel. A complete recitation of the facts 10 in this case, and the parties' different views regarding those facts, is unnecessary. We 11 include an abbreviated discussion of the facts below that is necessary to understand our 12 resolution of intervenors' jurisdictional challenge and our resolution of petitioners' third 13 assignment of error. 14 A. 1980 Conditional Use Approval 15 The subject property is zoned F -2 (Forest Use Zone) and is subject to two combining 16 or overlay zones, the WA (Wildlife Area Combining Zone) and the LM (Landscape 17 Management Combining Zone). Petitioners' and intervenors' predecessor -in- interest John 18 Barton (Barton) requested conditional use approval for a cluster development. In a February 19 18, 1980 letter to the county, Barton explained: 20 "* * * The two home sites on the 4.3 acre parcels must be kept within 400 ft. 21 of Sisemore Road. This restriction assures the plot plan will be effective in 22 maintaining the desired cluster effect. * * *" Record 582. Page 2 1 Barton was granted conditional use approval for the cluster development on April 3, 1980. 2 That conditional use approval did not mention a 400 -foot setback, � but it did include the 3 following conditions of approval: 4 "1. The applicant shall receive an approved partition for two residential 5 lots, with the remaining lot to be held in joint ownership prior to the 6 sale of any lots. 7 "2. Prior to the sale of any lot a written agreement shall be recorded which 8 establishes an acceptable homeowners association or agreement 9 assuring the maintenance of common property in the partition. 10 " * * * ** 11 "4. Any buildings shall conform to section 4.180 concerning the 12 Landscape Management Combining Zone of PL -15 13 " * * * ** 14 "5. All necessary permits shall be received prior to the construction of any 15 buildings. 16 "* * * * *." Record 113. 17 Condition number 2 above requires establishment of a "homeowners association or 18 agreement" before any lots are sold. Petitioners contend there is no such homeowners 19 association or agreement. Intervenors contend that condition number 2 has been satisfied.2 20 B. 1980 Partition Approval 21 In 1980 Barton requested county approval to partition the 43 -acre subject property 22 into two 4.3 -acre parcels and an undevelopable remainder parcel that was to be jointly owned 23 by the owners of the two 4.3 -acre parcels. Barton was granted tentative partition plat To be clear, as we explain later in this opinion, the 400 foot maximum setback reflected on the partition plat that created intervenors' parcel is a requirement that buildings be set back no more than 400 feet from Sisemore Road. 2 Intervenors take the position that a January 29, 1997 letter from petitioners to the county demonstrates that petitioners are aware that the county had by that time determined that previously recorded deed restrictions satisfied condition number 2. Supplemental Record 756. Page 3 1 approval on May 13, 1980 and final plat approval on November 12, 1980. The approved 2 final plat includes the following notation: 3 "MAX. BLDG. SETBACK 400' FROM SISEMORE RD." Record 591. 4 Although the final plat was approved on November 12, 1980 it was not recorded at 5 that time. The final plat was not recorded until October 5, 2004, almost 24 years later. 6 C. 1987 Development of Petitioners' Parcel 7 Petitioners acquired their parcel in 1987, secured approval of a property line 8 adjustment and built a house on their parcel. According to the hearings officer's decision, 9 the property line adjustment decision included a condition that required that "deed 10 restrictions required by the 1980 cluster development conditional use approval be recorded 11 with the Deschutes County Clerk" before a building permit could be issued for petitioners' 12 property. Record 64.3 The development of the house on petitioners' property is not at issue 13 in this appeal. 14 D. 1989 -1997 Acquisition and Development of Intervenors' Parcel 15 Intervenors acquired their parcel in 1989. In 1992, intervenors filed an application 16 for approval of a landscape management site plan, which was necessary to construct a house 17 on their parcel. A note on the site plan states that "[t]he house site will not be more than 400 18 ft. from Sisemore Road." Record 533 (underlining in original). In a February 10, 1992 letter 19 from the Community Development Department to intervenor Jeff Dowell, the county takes 20 the position that the conditional use and partition approvals "establish a maximum setback 21 from Sisemore Road of 400 feet." Record 565. The findings supporting the county's 22 approval of the site plan include the following discussion under a "SITE DESCRIPTION" 23 heading: 3 Although we cannot be sure, we suspect the referenced "deed restrictions" are what intervenors believe had the effect of satisfying condition number 2 of the 1980 conditional use approval. See n 2. Page 4 1 "The subject parcel was created by a Conditional Use Permit * * * and Minor 2 Partition * * * for two nonforest dwelling sites on the 43.1 acre total parcel. 3 These approvals established the two parcels for building sites which required 4 a maximum 400' setback from Sisemore Road retaining approximately 33 5 acres for the protection and preservation of wildlife in the area." Record 174. 6 Although the county and intervenors appear to have had a shared understanding that 7 intervenors' proposed dwelling was to be sited no further than 400 feet from Sisemore Road, 8 the county's March 10, 1992 decision granting approval of the landscape management site 9 plan does not include a condition of approval to that effect. Record 176. 10 The building permit that authorized construction of intervenors' house was issued on 11 July 22, 1994. According to the hearings officer's decision, intervenors' "dwelling received 12 final inspection and approval from the Building Division on February 11, 1997 [and the] 13 record indicates the dwelling was constructed more than 400 feet from Sisemore Road." 14 Record 65 (footnote omitted). 15 E. Petitioners' 2002 Civil Action Against Intervenors 16 In 2001 petitioners filed a civil action against intervenors. Among other things, 17 petitioners sought a declaratory ruling that intervenors' "dwelling on the subject property 18 was unlawful because it was built more than 400 feet from Sisemore Road." Record 65. 19 Petitioners also sought an injunction requiring that defendants enter into the homeowners 20 association or agreement mentioned in the 1980 conditional use approval. In its 2002 21 decision, the circuit court ruled in part: 22 "Plaintiffs have not established that the Defendants' property is in violation of 23 the Deschutes County Code as alleged. 24 "Plaintiffs have not established that the location of the existing building on 25 Defendants' property is in violation of a requirement that the building be 26 entirely within 400 feet of Sisemore Road measured perpendicularly from the 27 front (east end) property line. 28 " * * * ** 29 "Defendants are ordered to enter into the required `homeowners association or 30 agreement assuring the maintenance of common property' as set forth in the Page 5 1 conditions required with respect to the conditional use permit. At a 2 minimum, this agreement shall provide that any property taxes and any 3 maintenance costs with regard to the common property be shared equally." 4 Record 116 -18. 5 On appeal, the circuit court's decision was affirmed without opinion. Kuhn v. Dowell, 196 6 Or App 787, 106 P3d 699 (2004). 7 F. Intervenors' 2007 Building Permit Application 8 On July 23, 2007, intervenors sought county approval of a building permit to allow 9 them to remodel the existing dwelling on their property. The county approved the building 10 permit on July 24, 2007. According to the hearings officer, on August 8, 2007, petitioners 11 filed an appeal with the county "Planning Division" challenging the July 24, 2007 building 12 permit and a land use compatibility statement (LUCS) that was issued in conjunction with 13 that building permit. Record 67. It is that appeal that led to the hearings officer decision that 14 is before LLTBA in the current appeal. 15 One day later, on August 9, 2007, petitioners filed a separate appeal with the 16 "Building Division." Id. The hearings officer explains in her decision that petitioners will 17 be allowed to advance any arguments they have regarding alleged violations of the building 18 codes in the county appeal that was filed with the Building Division. Record 69. The 19 hearings officer found that the only potentially cognizable issues in the appeal that was filed 20 with the Planning Division concern county land use regulations. Id. 21 G. The Hearings Officer's Decision 22 As potentially relevant in this appeal, the hearings officer first found that the 2002 23 circuit court decision described above bars petitioners "from relitigating the issue of the 24 lawfulness of the [intervenors'] dwelling location[.]" Record 72. The hearings officer then 25 concluded that the building permit and LUCS do not qualify as a "land use decision," as that 26 term is defined by ORS 197.015(10). Finally, the hearings officer determined that the July 27 24, 2008 building permit and LUCS constituted a "development action," rather than a "land Page 6 1 use action," as the Deschutes County Code defines those terms. The hearings officer 2 ultimately concluded that because the July 24, 2007 building permit and LUCS constitute a 3 development action and because under the Deschutes County Code only applicants have 4 standing to appeal such development actions, petitioners' August 8, 2007 appeal to the 5 Planning Division must be dismissed. The hearings officer dismissed the appeal on March 6 26, 2008, and this appeal followed. 7 JURISDICTION 8 As relevant here, LUBA's jurisdiction is limited to land use decisions. ORS 9 197.825(1).4 Petitioners argue that the disputed building permit and LUCS fall within the 10 ORS 197.015(10)(a) definition of "land use decision," because the county was required to 11 apply its land use regulations in approving the building permit and LUCS. Petitioners 12 contend the exceptions to the statutory definition of land use decision set out in ORS 13 197.015(10)(b) do not apply to the disputed building permit and LUCS.5 Intervenors 4 ORS 197.825(1) provides: "Except as provided in ORS 197.320 and subsections (2) and (3) of this section, the Land Use Board of Appeals shall have exclusive jurisdiction to review any land use decision or limited land use decision of a local government, special district or a state agency in the manner provided in ORS 197.830 to 197.845." 5 As potentially relevant here, the statutory definition of the term "land use decision" at ORS 197.015(10) provides: "`Land use decision': "(a) Includes: "(A) A final decision or determination made by a local government or special district that concerns the adoption, amendment or application of: "(i) The goals; "(ii) A comprehensive plan provision; "(iii) A land use regulation; or "(iv) A new land use regulation; Page 7 1 contend that in approving the disputed building permit and LUCS the county was only 2 required to apply "land use standards that do not require interpretation or the exercise of 3 policy or legal judgment" or "clear and objective land use standards," so that the building 4 permit and LUCS fall within the exceptions set out at ORS 197.015(10)(b)(A) and (B) and 5 therefore do not qualify as a land use decision reviewable by LUBA. 6 Petitioners and intervenors both fail to recognize that the decision that is before 7 LUBA in this appeal is the hearings officer's decision to dismiss petitioners' local appeal, 8 not the July 24, 2007 building permit and LUCS that petitioners sought to appeal to the 9 hearings officer. In dismissing petitioners' local appeal of the July 24, 2007 building permit 10 and LUCS, the hearings officer applied Titles 18 and 22 of the Deschutes County Code. 11 Record 74 -77. Title 18 is the county's zoning code. Title 22 sets out the county's 12 development procedures. If the hearings officer had resolved petitioners' appeal on the 13 merits, she almost certainly would have had to apply Deschutes County Code Title 17, which 14 is the county's subdivision and partition ordinance. Titles 17, 18 and 22 are clearly "land use 15 regulations," as ORS 197.015(11) defines that term, and we do not understand any party to 16 argue otherwise.6 We also do not understand any party to argue that the provisions of Titles 17 17, 18 and 22 that the hearings officer applied or should have applied are "land use standards "(b) Does not include a decision of a local government: "(A) That is made under land use standards that do not require interpretation or the exercise of policy or legal judgment; "(B) That approves or denies a building permit issued under clear and objective land use standards[.]" 6 ORS 197.015(11) provides: "`Land use regulation' means any local government zoning ordinance, land division ordinance adopted under ORS 92.044 or 92.046 or similar general ordinance establishing standards for implementing a comprehensive plan." Page 8 1 that do not require interpretation or the exercise of policy or legal judgment" or are "clear 2 and objective land use standards," within the meaning of ORS 197.015(10)(b)(A) and (B). 3 To the extent intervenors take that position, we reject it. 4 The hearings officer's decision in this matter is a land use decision, and LUBA has 5 jurisdiction to review that decision. 6 THIRD ASSIGNMENT OF ERROR 7 In one of their subassignments of error under the third assignment of error, petitioners 8 argue the hearings officer erred by dismissing their local appeal. If we sustain that 9 subassignment of error, the hearings officer's decision will have to be remanded so that the 10 hearings officer can issue a decision on the merits of that local appeal. We therefore turn to 11 that subassignment of error first. 12 Deschutes County Code (DCC) 22.04.020 distinguishes between "land use actions" 13 and "development actions." We briefly discuss each of those concepts below before turning 14 to the hearings officer's decision in this matter. 15 A. Land Use Actions 16 The DCC 22.04.020 definition of "land use action" is set out below: 17 'Land use action' includes any consideration for approval of a quasi-judicial 18 plan amendment or zone change, any consideration for approval of a land use 19 permit, and any consideration of a request for a declaratory ruling (including 20 resolution of any procedural questions raised in any of these actions)." 21 Under the above definition, a decision on a "land use permit" is a "land use action." DCC 22 22.04.020 provides the following definition of "land use permit:" 23 'Land use permit' includes any approval of a proposed development of land 24 under the standards in the County zoning ordinances or subdivision or 25 partition ordinances involving the exercise of significant discretion in 26 applying those standards. 27 "By way of illustration, `land use permit' includes review of conditional use 28 permits, landscape management plans, farm or nonfarm dwellings, forest 29 management plans, partition, master plan, river setback exception, riverfront 30 design review, site plan, site plan change of use, modification of approval, Page 9 1 2 3 solar access, solar shade exception, subdivision, and subdivision variance and variance." DCC Chapter 22.32 sets out rights of local appeal. As potentially relevant in this 4 appeal, DCC 22.32.010(A)(2) provides the following persons a right to appeal land use 5 actions: 6 "In the case of an appeal of an administrative decision without prior notice, a 7 person entitled to notice, a person adversely affected or aggrieved by the 8 administrative decision, or any other person who has filed comments on the 9 application with the Planning Division[.]" 10 B. Development Actions 11 DCC 22.04.020 provides the following definition of "development action:" 12 "`Development action' means the review of any permit, authorization or 13 determination that the Deschutes County Community Development 14 Department is requested to issue, give or make that either: 15 "A. Involves the application of a County zoning ordinance or the County 16 subdivision and partition ordinance and is not a land use action as 17 defined [in DCC 22.04.020]; or 18 "B. Involves the application of standards other than those referred to in 19 [paragraph A], such as the sign ordinance. 20 "For illustrative purposes, the term `development action' includes review of 21 any condominium plat, permit extension, road name change, sidewalk permit, 22 sign permit, setback determination, and lot coverage determination." 23 For development actions, the right of local appeal is much more limited. DCC 22.32.050 24 provides: 25 "Notice of the hearing date set for appeal shall be sent only to the applicant. 26 Only the applicant, his or her representatives, and his or her witnesses shall 27 be entitled to participate. Continuances shall be at the discretion of the 28 Hearings Body, and the record shall close at the end of the hearing." 29 (Emphasis added.) 30 C. Petitioners' Argument 31 Since both a "land use action" and a "development action" can require the county to 32 apply its land use regulations, the primary difference between the two kinds of actions Page 10 1 appears to be that a land use action requires the "exercise of significant discretion in applying 2 those [land use regulation] standards" and a development action does not require the 3 "exercise of significant discretion." One significant consequence of that classification is that 4 persons who are "adversely affected or aggrieved" by land use actions can appeal under DCC 5 22.32.010(A)(2), whereas under DCC 22.32.050 only the applicant is "entitled to participate" 6 in an appeal of a development action. 7 According to petitioners, intervenors sought the disputed building permit under DCC 8 18.40.020, which allows alterations of lawfully established dwellings if certain criteria are 9 met.7 Petitioners concede that applying the five criteria set out in DCC 18.40.020(M)(1) 10 through (5) in this case does not require the exercise of significant discretion. But petitioners 11 contend the county was required to exercise significant discretion to determine, as it 12 presumably did, that the existing dwelling qualifies as a "lawfully established" dwelling. 13 Petitioners contend that because intervenors' dwelling is located more than 400 feet from 14 Sisemore Road and because intervenors' parcel was sold and the dwelling was built before 15 the homeowners association or agreement required by condition number 2 in the 1980 DCC 18.40.020 lists a number of uses that are permitted outright in the F -2 zone, including the following: "M. Alteration, restoration or replacement of a lawfully established dwelling that: "1. Has intact exterior walls and roof structure; Has indoor plumbing consisting of a kitchen sink, toilet and bathing facilities connected to a sanitary waste disposal system; Has interior wiring for interior lights; "4. Has a heating system; and In the case of replacement, is removed, demolished or converted to an allowable use within three months of completion of the replacement dwelling." (Emphasis added.) Page 11 1 conditional use approval was recorded, the existing dwelling was not "lawfully established, 2 within the meaning of DCC 18.40.020(M). "8 3 D. The Hearings Officer's Decision 4 As relevant here, the hearings officer provided the following explanation for her 5 decision that the challenged building permit and LUCS do not constitute a land use action: 6 "The staff report argues, and the Hearings Officer concurs, that the county's 7 2007 issuance of the LUCS and building permit for an interior remodel of the 8 Dowells' existing dwelling was not a `land use action.' For the reasons 9 discussed [earlier, the LUCS and building permit] did not involve a quasi - 10 judicial plan amendment, zone change or declaratory ruling. And it did not 11 involve a `land use permit' because it did not require the exercise of 12 significant discretion in applying standards. Alterations to existing dwellings 13 are permitted outright in the F -2 Zone under Section 18.40.020(M) based on 14 clear and objective standards (i.e., the presence of intact exterior walls and 15 roof structure, and certain indoor plumbing, wiring and heating systems), and 16 are permitted outright in the LM Zone under Section 18.84.030 and in the WA 17 Zone under Section 18.88.030 if permitted outright in the underlying (F -2) 18 Zone. The conditional use and LM site plan approval decisions did not 19 include any conditions of approval establishing a maximum dwelling setback 20 from Sisemore Road. And the partition plat included a building line 400 feet 21 from Sisemore Road, so review under that partition also was under clear and 22 objective standards." Record 75 (emphasis in original, footnote omitted). 23 Based on her conclusion that the building permit and LUCS are not a land use action 24 and her conclusion that petitioners therefore were not entitled to appeal the building permit 25 and LUCS under DCC 22.32.010(A)(2), the hearings officer dismissed petitioners' appeal. 8 Petitioners also contend that similar determinations are required by DCC 15.04.150 and DCC 18.128.420. DCC 15.04.150 provides as follows: "No building permit or mobile home placement permit shall be issued if the parcel of land upon which the building or mobile home is to be erected or located on, or is located on, would be in violation of DCC Title 17, the subdivision title or DCC Title 18, the zoning title. * * *,, DCC 18.128.420 provides as follows: "Building permits for all or any portion of a conditional use shall be issued only on the basis of the plan as approved by the Planning Director or Hearings Body. Any substantial change in the approved plan shall be submitted to the Planning Director or the Hearings Officer as a new application for a conditional use." Page 12 1 E. Conclusion 2 We conclude that the hearings officer erred by dismissing petitioners' appeal, for two 3 reasons. 4 1. The Building Permit and LUCS are a Land Use Action 5 First, while we recognize that the parties and the county have very different views 6 regarding whether the existing dwelling was "lawfully established," there can simply be no 7 doubt that the exercise of significant discretion was required to determine that the existing 8 dwelling was lawfully established. There are no findings supporting the building permit and 9 LUCS —at least no party has pointed them out to us.9 So we do not know why the Building 10 and Planning Divisions determined that the existing dwelling was lawfully established. 11 There does not appear to be any dispute that the dwelling on intervenors' property is 12 more than 400 feet from Sisemore Road, notwithstanding the note on the 1980 final plat and 13 the language in the 1992 site plan application and approval. The dispute appears to be 14 whether siting the house more than 400 feet from Sisemore Road when it was constructed 15 between 1994 and 1997 results in a dwelling that was not "lawfully established," within the 16 meaning of DCC 18.40.020(M). The county and perhaps the circuit court appear to rely 17 heavily on the undisputed fact that when the dwelling was approved and built between 1994 18 and 1997 the final plat had not been recorded. Intervenors also appear to rely in part on an 19 unappealed 1997 final approval of the building permit for the dwelling that expressly 20 recognized that the dwelling was more than 400 feet from Sisemore Road and nevertheless 21 granted final approval. Petitioners appear to rely heavily on the fact that the final partition 22 plat was recorded in 2004, after the circuit court rendered its decision in 2002, and that the 23 county's and circuit court's apparent reasoning that the 400 -foot maximum setback was not 9 In fact, as far as we can tell, neither the building permit nor the LUCS are included in the record that the county transmitted to LUBA in this appeal. Page 13 1 enforceable at the time the dwelling was approved may no longer be a sufficient basis for 2 concluding that the dwelling was lawfully established. 3 We agree with the hearings officer that a decision about whether the dwelling is set 4 back more than 400 feet from Sisemore Road probably does not call for the exercise of much 5 judgment. But as our attempt to understand and characterize some of the parties' arguments 6 above shows, determining whether the construction of intervenors' dwelling more than 400 7 feet from Sisemore Road means that dwelling was not lawfully established requires the 8 exercise of considerable legal and factual analysis and judgment. 9 Finally, as petitioners correctly point out, the hearings officer's decision does not 10 expressly address the possible significance of condition of approval 2 in the 1980 conditional 11 use approval. While the county may consider that condition to have been satisfied by deed 12 restrictions that apparently were recorded before 1997, the building permit decision does not 13 address that question or the potential significance of the circuit court's 2002 decision that 14 orders intervenors to enter into the homeowners association or agreement that was required 15 by that condition of approval. Even if condition of approval number two has never been 16 satisfied, that may simply mean sale of the parcels to petitioners and intervenors was 17 inconsistent with that condition. Condition number 2 may have no bearing on the legality of 18 the dwellings that have been constructed on those parcels. Regardless of the county's 19 ultimate conclusion about the legal import of condition of approval 2, we agree with 20 petitioners that significant discretion will be required to determine the existing dwelling was 21 "lawfully established," within the meaning of DCC 18.40.020(M), notwithstanding 22 petitioners' contention that the homeowners association or agreement required by condition 23 number 2 of the 1980 conditional use approval has never been recorded. 24 Because we conclude that the July 24, 2007 building permit and LUCS were land use 25 actions, petitioners had a right to seek an appeal of those decisions under DCC 26 22.32.010(A)(2). Although we do not decide the question here, petitioners appear to have Page 14 1 standing to appeal under DCC 22.32.010(A)(2) as "adversely affected or aggrieved" persons. 2 It follows that the county's decision must be remanded so that the hearings officer can issue a 3 decision on the merits if she concludes that petitioners have standing to pursue the appeal 4 under DCC 22.32.010(A)(2) as adversely affected or aggrieved persons. 5 2. DCC 22.16.010. 6 The second reason why we believe the hearings officer erred in dismissing 7 petitioners' local appeal is based on DCC Chapter 22.16, which sets out procedures for 8 development actions. DCC 22.16.010 authorizes the planning director to decide that an 9 application for a development action will be treated as a land use action.10 On August 8, 10 2007 the planning department sent petitioners the following e-mail message: 11 "[T]he issuance of this permit required land use sign off. You can appeal that 12 sign -off (which is a land use decision), under an administrative appeal. That 13 will bring the matter before the Hearings Officer and you will have your 14 opportunity to present your perspective on the greater land use issues. My 15 understanding is that really is where your concern lies. There is a $250 fee to 16 bring this appeal, which you can apply for in our Bend Office. I believe your 17 e -mail below will satisfy any time limit on bringing the appeal that may 18 exist." Record 649. 19 The county counsel's office also sent an e-mail message on August 8, 2007, taking the 20 position that, contrary to the planning department's e-mail message, petitioners' earlier e- 21 mail message was not sufficient to "preserve any appeal rights." Record 648. The county 22 counsel's office took no position regarding whether the building permit constituted a land 23 use action and advised petitioners to "seek * * * legal counsel for the appropriate appeal 24 process." Id. 25 After petitioners appeal was filed on August 8, 2007, the county scheduled a hearing 26 on the appeal for September 24, 2007. That public hearing was continued to November 14, 10 DCC 22.16.010(B) provides: "The Planning Director has the discretion to determine that for the purposes of DCC Title 22 a development action application should be treated as if it were a land use action application." Page 15 1 2007. The record closed, subsequently was reopened by the hearings officer, and then closed 2 a second time on January 2, 2008. The hearings officer issued her decision dismissing 3 petitioners' appeal on March 26, 2008, concluding the challenged decision is a development 4 action that petitioners have no right to appeal. The hearings officer specifically noted in her 5 decision that she was not bound by the planning department's "interpretation or opinion of 6 the nature of the county's LUCS and building permit issuance." Record 75 n 6. 7 We agree with the hearings officer that she is not bound by the planning department's 8 view about whether the July 24, 2007 building permit and LUCS qualify as a land use action 9 rather than a development action. However, under DCC 22.16.010(B) the planning 10 department is authorized to treat development actions as land use actions. We conclude that 11 the planning department's August 8, 2007 e -mail message to petitioners was effective to 12 constitute a de facto exercise of the authority granted by DCC 22.16.010(B). Petitioners 13 simply took advantage of the appeal that the planning division told them was available. 14 Therefore, even if the July 24, 2007 building permit and LUCS are correctly characterized as 15 a development action, the planning department's August 8, 2007 e -mail message constituted 16 a decision on behalf of the planning director to treat the building permit and LUCS as a land 17 use action for purposes of appeal. Because the planning director is authorized to treat 18 development actions as land use actions, petitioners did not err by exhausting the appeal that 19 the county made available to petitioners, rather than attempting to appeal the July 24, 2007 20 building permit and LUCS directly to LUBA or to circuit court. See Tarjoto v. Lane County, 21 137 Or App 305, 904 P2d 641 (1995) (where county voluntarily provides a local appeal in 22 circumstances where there might not have been a right to a local appeal, that local appeal 23 must be exhausted before appealing to LUBA). Page 16 1 Petitioners' third assignment of error is sustained in part. 1 2 The county's decision is remanded. 11 Because we sustain petitioners' subassignment of error challenging the hearings officer's decision that petitioners had no right of local appeal, we need not and do not consider petitioners' remaining arguments under the third assignment of error or petitioners' other assignments of error. Page 17