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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 January 28 2008
Please see directions for completing this document on the next page.
DATE: January 16, 2008
FROM: Anthony Raguine Community Development Department
TITLE OF AGENDA ITEM:
Public hearing of an appeal (A-07-21) of a Hearings Officer decision in county file DR -07-3.
PUBLIC HEARING ON THIS DATE? Yes.
617-4739
BACKGROUND AND POLICY IMPLICATIONS:
The 13.2 -acre subject property is located at 65590 Sisemore Road (16-11-20, tax lot 100) and is ovAned
by Ron and Marilyn Peery. Prior to the purchase of the propety by the Peerys, the previous owners
secured land use approvals (CU -02-124, MC -02-17, LM -06-13, MC -06-2) to allow the construction of
a dwelling on the property. Integral to these approvals was the preservation of vegetation on-site. After
purchasing the property, the Peerys removed several trees on-site in preparation for development.
In response to a Code Enforcement complaint regarding removal of the trees, the Planning Division
determined that a substantial violation of certain conditions of approval, related to the preservation of
vegetation, occurred. Per Deschutes County Code (DCC) 18.140.080(A)(4), the Planning Division
initiated revocation proceedings (DR -07-3) to revoke or modify the land use approvals detailed above.
The initial public hearing was held on April 3, 2007, and subsequently continued to June 5, 2007. On
November 26, 2007, the Hearings Officer issued a decision revoking all four land use approvals. The
Peerys filed an appeal of the Hearings Officer decision on December 11, 2007. On January 7, 2008, the
Board, per Order 2008-006, accepted de novo review of the appeal. The public hearing is scheduled for
January 28, 2008.
Per DCC 22.20.040(D)(2), revocation proceedings are exempt from the 150 -day time limit.
FISCAL IMPLICATIONS:
None
RECOMMENDATION & ACTION REQUESTED:
Although staff recommended revocation of the LM permit, with modification of the CU permit, staff
agrees with the Hearings Officer's analysis and decision. Staff recommends revocation of all four and
use approvals.
ATTENDANCE: Anthony Raguine
DISTRIBUTION OF DOCUMENTS:
Ron and Marilyn Peery
3910 Mirror Pond Way
Eugene, OR 97408
Stephanie Hicks
Ball Janik LLP
15 SW Colorado, Suite 3
Bend, OR 97702
Legal Counsel
Anthony Raguine
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
DATE: January 16, 2008
TO: Board of County Commissioners
FROM: Anthony Raguine, Senior Planner
RE: Public Hearing of an appeal (A-07-21) of a Hearings Officer decision revoking
four land use approvals.
BACKGROUND
The 13.2 -acre subject property is located at 65590 Sisemore Road (16-11-20, tax lot 100) and is
owned by Ron and Marilyn Peery. Prior to the purchase of the propety by the Peerys, the previous
owners secured land use approvals (CU -02-124, MC -02-17, LM -06-13, MC -06-2) to allow the
construction of a dwelling on the property. Integral to these approvals was the preservation of
vegetation on-site. After purchasing the property, the Peerys removed several trees on-site in
preparation for development.
In response to a Code Enforcement complaint regarding removal of the trees, the Planning Division
determined that a substantial violation of certain conditions of approval, related to the preservation
of vegetation, occurred. Per Deschutes County Code (DCC) 18.140.080(A)(4), the Planning
Division initiated revocation proceedings (DR -07-3) to revoke or modify the land use approvals
detailed above. The initial public hearing was held on April 3, 2007, and subsequently continued to
June 5, 2007. On November 26, 2007, the Hearings Officer issued a decision revoking all four land
use permits. The Hearings Officer determined that revocation, not modification, of the permits was
appropriate for the following reasons: 1) The conditions of approval associated with CU -2-124 and
LM -06-13 were substantially violated by the intentional removal of vegetation on-site; 2) The
preservation of vegetation was an essential part of both CU and LM approvals; 3) The violations
were serious and could easily have been avoided by the exercise of minimal due diligence; and 4)
The property owners have not convincingly demonstrated that the mitigation plan would be effective
within the three-year time frame proposed to construct the nonfarm dwelling.
The Peerys filed an appeal of the Hearings Officer decision on December 11, 2007. The appellants
argue the revocation of permits was not necessary, and that modification of the permits to require
compliance with the proposed mitigation plan would restore the site and provide the necessary
screening from Sisemore Road. The appellants indicate that they have continued working with tie
Oregon Department of Fish and Wildlife on the proposed mitigation plan, with a meeting schedued
for December 11, 2007.
File No.: DR -07-3, A-07-21 Page 1 of 2
Quality Services Performed with Pride
On January 7, 2008, per Board Order 2008-006, the Board accepted de novo review of the appeal.
A public hearing has been scheduled for January 28, 2008.
Per DCC 22.20.040(D)(2), revocation proceedings are exempt from the 150 -day time limit.
Attached for the Board's review are the Hearings Officer decision, staff report, and survey of the
disturbed area.
STAFF RECOMMENDATION
As noted above, the Hearings Officer's decision revoked all four land use approvals. Although
staff recommended revocation of the LM permit, with modification of the CU permit, staff agrees
with the Hearings Officer's analysis and decision.
Please feel free to contact me with any questions or concerns.
File No.: DR -07-3, A-07-21 Page 2 of 2
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DISTURBED AREA ON TAX LOT 100 AS FLAGGED ON SITE. (0.839 AC.)
- BUILD AREA 2 AS STAKED ON SITE.
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'NMOHS SV O383BW(lN DV7J ON(lOd
FOUND MONUMENT AS PER MP -79-70 (CS01532).
SISEMORE ROAD
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DATE: 02/12/07 ACRD 0706W5
BUILDING
PORTIONS
19 & 20,
TAX LOTS:
AND DISTURBED AREAS
OF PARCELS 1 AND 2 OF MP -79-70 IN SECTIONS
T16S, R11E, W.M., DESCHUTES COUNTY, OREGON
16-11-20-100 & 200
PRECISION LAND SURVEYING, INC.
P.O. BOX 2082 — 738 SW 10TH STREET
REDMOND, OREGON 97758
(541) 548-8092
(541) 548-8137 FAX
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us,'cdd/
STAFF REPORT
The Deschutes County Hearings Officer will hold a Public Hearing on April 3, 2007 at 6:30 p.m.
in the Barnes and Sawyer Room of the Deschutes Services Building located at 1300 NW Wall
Street in Bend, to consider the following request:
FILE NUMBER(S): DR -07-3, A-07-2
APPLICANT (DR -07-3): Deschutes County
117 NW Lafayette Avenue
Bend, OR 97701
APPLICANT (A-07-2): Lance & Irene Olivieri
65580 Sisemore Road
Bend, OR 97701
PROPERTY OWNER: Ron & Marilyn Peery
65590 Sisemore Road
Bend, OR 97701
OWNER'S
REPRESENTATIVE: Stephanie Hicks
Ball Janik LLP
15 S.W. Colorado Ave., Suite 3
Bend, OR 97702
DR -07-3:
A-07-32:
STAFF CONTACT:
DR -07-3, A-07-2
The Deschutes County Planning Division has initiated revocation
proceedings regarding previous land use approvals (CU -02-124,
MC -02-17, MC -06-2, LM -06-13) based upon violation of certain
Conditions of Approval associated with those decisions.
An appeal has been filed on a Deschutes County Planning
Division decision to grant a two-year extension of time (E-07-2) for
previously approved land use permits CU -02-124 and MC -06-2.
(On March 26, 2007, the appellants submitted a letter requesting
withdrawal of the appeal. The letter is incorporated herein by
reference.)
Anthony Raguine, Associate Planner
Quality Services Performed with Pride
Page 1 of 5
I. APPLICABLE CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.140, Administrative Provisions
Section 18.140.080. Revocation.
Title 22, Deschutes County Development Procedures Ordinance
Chapter 22.36, Limitations of Approvals
Section 22.36.060. Revocation of approvals.
Chapter 22.40, Declaratory Ruling
Section 22.40.010. Availability of declaratory ruling.
Section 22.40.020. Persons who may apply.
II. BASIC FINDINGS:
A. LOCATION: The subject property is located at 65590 Sisemore Road, Bend, and is
identified on Deschutes County Assessor map 16-11-20, as tax lot 100.
B. ZONING: The site is zoned Exclusive Farm Use (EFU) — Tumalo/Redmond/Bend
subzone, and is also within Landscape Management and Wildlife Area Combining
Zones.
C. LOT OF RECORD: The subject property is recognized as a legal lot of record as it was
created by partition MP -79-70.
D. SITE DESCRIPTION: The 13.2 -acre site is located on the east side of Sisemore
Road, and is currently vacant. The site has a vegetation cover of juniper and pine
trees, sagebrush, bitterbrush, and native grasses. The topography of the site rises
above the elevation of Sisemore Road to the north and northeast, and includes surface
stones and rock outcrops.
E. SURROUNDING LAND USES: The site abuts land zoned Forest Use 1 (F1) to the
north and east, EFU to the south, and Forest Use 2 (F2) to the west. The F1 -zoned
lands to the north and east are currently undeveloped, and consist of lands maintained
by the United States Bureau of Land Management (BLM). The EFU-zoned lands to the
south consist of 2 lots, one developed with a single-family residence. The F2 -zoned
lands to the west include 2 lots developed with single-family residences, and one lot that
is undeveloped.
F. SUBJECT: The Deschutes County Planning Division has initiated revocation
proceedings (DR -07-3) regarding previous land use approvals (CU -02-124, MC -02-17,
MC -06-2, LM -06-13) based upon violation of certain Conditions of Approval associated
with those decisions. An appeal (A-07-2) has also been filed on a Deschutes County
Planning Division decision to grant a two-year extension of time (E-07-2) for previously
approved land use permits CU -02-124 and MC -06-2. (As noted above, the appellants
have withdrawn the appeal.)
G. PROCEDURAL HISTORY: In 1979, the Planning Division granted approval to partition
the parent property into 3 parcels (MP -79-70), identified on County Assessor's Map 16-
11-20, as tax lots 100, 200, and 300. The partition approval included a designated
building area on each parcel located within approximately 400 feet of Sisemore Road.
DR -07-3, A-07-2 Page 2 of 5
These building areas were established to address concerns expressed by the Oregon
Department of Fish and Wildlife (ODFW) regarding protection of wintering deer.
In July of 2001, the Hearings Officer granted approval for a plan amendment and zone
change from F2 to EFU. On January 3, 2002, the Deschutes County Board of
Commissioners adopted ordinances approving the plan amendment and zone change
(Ordinances 2002-07 and 2002-08, respectively).
In March of 2003, the Hearings Officer granted Conditional Use permit approval (CU -02-
124, CU -02-125, CU -02-126) for a nonfarm dwelling on each of the 3 parcels, and
Modification of Condition approval (MC -02-17) to relocate the approved building areas
on the 3 parcels.
In March of 2006, the Deschutes County Planning Division granted Landscape
Management review approval (LM -06-13) for a proposed dwelling on tax lot 100, and
Modification of Condition approval (MC -06-2) to relocate the approved building area on
tax lot 100.
All of the above -referenced approvals are incorporated herein by reference.
III. CONCLUSIONARY FINDINGS:
A. Chapter 18.140, Administrative Provisions.
1. Section 18.140.080. Revocation.
A. The Hearings Body may revoke or modify any permit granted under
the provisions of DCC title 18 on one or more of the following
grounds:
4. A permit may be revoked or modified on the basis that the
conditions or terms of such permit have been substantially
violated.
FINDING: The Planning Division received a Code Enforcement complaint alleging that the
owners of tax lot 100 (Mr. & Mrs. Peery) violated Condition 6 of the Conditional Use permit (CU -
02 -124) by cutting down trees outside of the approved building envelope. Subsequent to the
filing of the complaint, Planning Staff (Anthony Raguine) met on-site with ODFW Staff (Steven
George and Larry Pecenka), Mr. Lance Olivieri (neighbor; Assessor map 17-12-32AC, tax lot
200), and Mr. William Kuhn (neighbor; Assessor map 16-11-19, tax lot 200).
During this site visit, Planning Staff observed a large area of the site cleared of the majority of
trees and underbrush. ODFW estimates, in their February 9, 2007 letter to Mr. Ron Peery
(included in the record), that 2+ acres of juniper (all age classes) were removed from the site, as
well as severe damage to all shrubs within the same area. On February 26, 2007, the Planning
Division received a survey from the Peery's, prepared on February 12, 2007, indicating that .839
acres of the site was disturbed, with an additional .096 acres of disturbance on the Olivieri's
property (tax lot 200). Of the .935 acres of disturbance, approximately .41 acres (17,800 square
feet) of the disturbance occurred outside of the approved building envelope.
On March 16, 2007, the applicant submitted Evaluation of the Tree Felling Disturbance on the
Peery Property (Ecological Services, Inc., March 15, 2007), a letter from Wade Fagen of Fagen
Trees and Chips (March 12, 2007), and a letter from WinterCreek Restoration (March 14, 2007).
DR -07-3, A-07-2 Page 3 of 5
The Evaluation quantifies the disturbance to trees, ground cover, and soil compaction, and
provides options for mitigation. The Fagen letter details Mr. Fagen's recollection of the pre -work
meeting, his understanding of the intent of the removal, and suggested mitigation. The
WinterCreek Restoration letter concludes that, "...damage outside the one acre parcel approved
for construction was moderate...damage to wildlife habitat was, in my opinion, minimal." The
WinterCreek letter also provides restoration suggestions.
Based upon the information in the record, it appears to Staff that impacts caused by the
vegetation removal can be mitigated. However, it is also apparent that it would take a number
of years to restore the habitat value and screening lost due to the vegetation removal. Staff
notes that the purpose for relocating the building envelope further away from Sisemore Road in
CU -02-124 and MC -02-17 was for the preservation of habitat values and screening for wintering
deer.
For the purposes of determining if conditions of the approved permits have been substantially
violated, Staff believes the following Conditions of Approval are pertinent:
1. Condition of Approval 6(c) in County file CU -02-124, CU -02-125, CU -02-126, MC -02-17
reads,
6(c). At least 80 percent of the parcel shall be managed to maintain or enhance the
natural vegetation occurring on the property. Vegetation may be removed within
the building area only for construction of the dwelling and access to the building
and for fire protection. Within 200 feet of the dwelling light trimming of juniper
trees may occur for the purpose of enhancing scenic views.
2. Condition of Approval 2 and 5 of County file LM -06-13, MC -06-2 reads,
2. All other conditions of approval associated with File CU -02-124, MC -02-17
remain in effect.
5. All existing vegetation not required to be removed for the building pad shall be
preserved.
The owners argue that Condition 5 severely limits the amount of vegetation removal allowed in
Condition 6(c), and creates ambiguity. Staff agrees that Condition 5 could be viewed as limiting
the previously approved vegetation removal allowance detailed in Condition 6(c). However,
Condition 6(c) still provides specific limits on the amount vegetation allowed to be removed.
Based upon the information in the record, Staff believes the owners have substantially violated
Condition of Approval 6(c) referenced above. Staff recommends that CU -02-124, MC -02-17 (for
tax lot 100 only), LM -06-13, and MC -06-2 be revoked.
B. Chapter 22.36, Limitations on Approvals.
1. Section 22.36.060. Revocation of approvals.
B. Revocations shall be processed as a declaratory ruling under DCC
Title 22. DCC 22.20.010 not withstanding, a public hearing shall be
held in all revocation proceedings.
FINDING: The County initiated a Declaratory Ruling on February 6, 2007 and a public hearing
was scheduled for April 3, 2007 in compliance with this criteria. On February 28, 2007, the
owners' attorney submitted a letter requesting continuance of the hearing. A hearing date for
the continuance was scheduled for June 5, 2007.
DR -07-3, A-07-2 Page 4 of 5
C. Chapter 22.40, Declaratory Ruling.
1 Section 22.40.010. Availability of declaratory ruling.
A. Subject to the other provisions of DCC 22.40.010, there shall be
available for the County's comprehensive plans, zoning ordinances,
the subdivision and partition ordinance and DCC Title 22 a process
for:
3. Determining whether an approval has been initiated or
considering the revocation of a previously issued land use
permit, quasi-judicial plan amendment or zone change.
FINDING: As noted above, the County is requesting revocation of previously -issued land use
permits and approvals via a Declaratory Ruling.
2. Section 22.040.020. Persons who may apply.
A. DCC 22.08.010(B) notwithstanding, the following persons may
initiate a declaratory ruling under DCC 22.40:
3. In all cases arising under DCC 22.40.010, the Planning
Director.
FINDING: As noted above, the County believes a condition of a previously approved land use
decision has been substantially violated and has initiated a Declaratory Ruling requesting
revocation in compliance with this criterion.
V. CONCLUSION:
Staff recommends revocation of CU -02-124, MC -02-17, LM -06-13, and MC -06-2.
Should the Hearings Officer decide to modify the existing approvals, Staff requests an
opportunity for ODFW and Planning Staff to submit recommendations.
Dated this 26th day of March, 2007. Mailed this 26th day of March, 2007.
DESCHUTES COUNTY PLANNING DIVISION
1140
Written by: Anthony Raguine, Associate Planner
Reviewed: Kevin M. Harrison, Principal Planner
AJ R/slb
DR -07-3, A-07-2
Page 5 of 5
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS:
APPLICANT:
APPELLANTS:
PROPERTY OWNERS:
PROPERTY OWNERS'
ATTORNEY:
REQUESTS:
STAFF REVIEWER:
HEARING DATES:
RECORD CLOSED:
I.
A.
DR -07-3, A-07-2 (E-07-2)
Deschutes County
117 N.W. Lafayette Avenue
Bend, Oregon 97701
DR -07-3
Lance and Irene Olivieri
65580 Sisemore Road
Bend, Oregon 97701
A-07-2 (E-07-2)
Ron and Marilyn Peery
65590 Sisemore Road
Bend, Oregon 97701
Stephanie Hicks
Ball Janik LLP
15 S.W. Colorado Ave., Suite 3
Bend, Oregon 97702
NOV 2007
MAILED
DESCHUTES
COUNTY
11.0
DR -07-3: Deschutes County initiated proceedings to revoke four
previous land use approvals for the subject property (CU -02-124,
MC -02-17, MC -06-2, and LM -06-13) on the grounds of alleged
violations of conditions of approval in those decisions.
A-07-32: Appellants appealed an administrative decision (E-07-2)
granting a two-year extension of time for previously approved land
use permits CU -02-124 and MC -06-2.1
Anthony Raguine, Senior Planner
April 3, June 5 and August 7, 2007
September 18, 2007
APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.84, Landscape Management Combining Zone
' By a letter dated March 26, 2007 appellants withdrew their appeal.
Peery
DR -07-3, A-07-2 (E-07-2)
Page 1 of 22
* Section 18.84.020, Application of Provisions
* Section 18.84.050, Use Limitations
* Section 18.84.080, Design Review Standards
* Section 18.84.085, Imposition of Conditions
2. Chapter 18.140, Administrative Provisions
* Section 18.140.080, Revocation
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances or Record Extensions
2. Chapter 22.36, Limitations of Approvals
* Section 22.36.060, Revocation of Approvals
3. Chapter 22.40, Declaratory Ruling
* Section 22.40.010, Availability of Declaratory Ruling
* Section 22.40.020, Persons Who May Apply
II. FINDINGS OF FACT:
A. Location: The subject property is located at 65590 Sisemore Road, Bend, and is further
identified as Tax Lot 100 on Deschutes County Assessor's Map 16-11-20.
B. Zoning and Plan Designation: The subject property is designated Agriculture and zoned
Exclusive Farm Use-Tumalo/RedmondBend Subzone (EFU-TRB), Landscape
Management Combining Zone (LM) and Wildlife Area Combining Zone (WA).The
record indicates the subject property is receiving tax deferral on the basis of an adopted
Wildlife Habitat Conservation Management Plan (WHCMP).2
C. Site Description: The subject property is 13.2 acre in size, irregular in shape and
undeveloped. It abuts Sisemore Road on the west. Vegetation consists of scattered
juniper and ponderosa pine trees, sagebrush, bitterbrush, and native grasses. The
property's topography is generally level, rising up from Sisemore Road to a level bench
and sloping down to the east, and includes scattered rock outcrops. An old irrigation
canal ditch runs roughly northeast -southwest along the property's western boundary on
the bench above Sisemore Road.
2 The record indicates the vegetation removal on the subject property that is the subject of this declaratory
ruling proceeding has disqualified the property from enrollment in the WHCMP program.
Peery
DR -07-3, A-07-2 (E-07-2)
Page 2 of 22
D. Surrounding Zoning and Land Uses: The subject property abuts land zoned Forest Use
(F-1) to the north and east, land zoned EFU-TRB to the south, and land zoned F-2 to the
west across Sisemore Road. The F -1 -zoned lands to the north and east are undeveloped
and are owned and managed by the US Bureau of Land Management (BLM). The EFU-
zoned lands to the south consist of two lots, one of which is developed with a single-
family dwelling owned by Lance and Irene Olivieri. The F2 -zoned lands to the west
include three lots, two of which are developed with dwellings.
E. Procedural History: The subject property was created by a 1979 partition (MP -79-70).
The partition approval included approval of a designated building site on each of the
three new parcels located within 400 feet of Sisemore Road. These approved building
sites were established at the request of the Oregon Department of Fish and Wildlife
(ODFW) to protect wintering mule deer. That deer winter range now is protected through
the provisions of the WA Zone.
In July of 2001, this Hearings Officer approved a plan amendment and zone change for
the subject property from F-2 to EFU-TRB. In March of 2003, this Hearings Officer
granted conditional use approval to establish a nonfarm dwelling on each of the three
parcels created by MP -79-70 including the subject property (CU -02-124, CU -02-125,
CU -02-126). The Hearings Officer also approved a modification to relocate the approved
building sites on all three parcels (MC -02-17). In February of 2003, the property owners'
predecessor submitted an application for non-visible LM site plan review for a dwelling
on the subject property along with another request to modify the approved building site
(LM -06-13, MC -06-2). In March of 2003 the Planning Division issued an administrative
decision approving the non-visible LM site plan review and the requested building site
modification. Those approvals were to expire in April 2007. In May of 2006 Ron and
Marilyn Peery, the property owners, purchased the subject property.
On January 26, 2007 the property owners submitted an application requesting approval of
an extension of the dwelling approval granted in LM -06-13 and MC -06-2 for the subject
property (E-07-2). On January 28, 2007 Lance and Irene Olivieri filed a code
enforcement complaint with the county alleging the property owners had removed trees
and other vegetation from the subject property in violation of conditions of approval in
the previous LM and CU approvals for the property. By a letter dated February 2, 2007
Deschutes County Code Enforcement Officer Tim Grundeman advised the property
owners of the code enforcement complaint and asked them to respond. On February 6,
2007 the county issued an administrative decision granting the requested extension. On
February 6, 2007 the county also filed the subject declaratory ruling application to revoke
the previously issued LM and CU approvals based on violation of conditions of approval
(DR -07-3). Therefore, the 150 -day period for issuance of a final local land use decision
under ORS 215.477 would have expired on July 6, 2007.3 By an electronic mail message
dated February 8, 2007, Mr. Grundeman advised the property owners and the Olivieris
that he would not pursue the code enforcement complaint because of the pending
3 The Hearings Officer assumes the 150 -day period applies to an application filed by the county in the
absence of an exception for local government applications in ORS 215.477.
Peery
DR -07-3, A-07-2 (E-07-2)
Page 3 of 22
declaratory ruling application. On February 16, 2007 the Olivieris filed an appeal from
the administrative decision approving the property owners' extension request (A-07-2).
A public hearing on the county's declaratory ruling application and the Olivieris' appeal
was scheduled for April 3, 2007. By a letter dated February 28, 2007 the property owners
requested that the hearing be continued to a date in early June 2007. March 26, 2007, the
Olivieris withdrew their appeal. At the public hearing on April 3, 2007 the Hearings
Officer received testimony and evidence on the county's declaratory ruling request and
continued the public hearing to June 5, 2007 at the property owners' request. Because the
county agreed to this hearing continuance, under Section 22.24.140(E) of the county's
land use procedures ordinance the 150 -day period was tolled for 63 days and would have
expired on September 7, 2007. On April 10, 2007 the Hearings Officer conducted a site
visit to the subject property and vicinity and on April 11, 2007 issued a written site visit.
By a letter dated May 21, 2007 the property owners requested that the continued public
hearing scheduled for June 5, 2007 be continued to a date in August 2007. At the
continued hearing on June 5, 2007, the Hearings Officer again received testimony and
evidence on the declaratory ruling request and at the property owners' request continued
the hearing to August 7, 2007. The 150 -day period therefore was tolled for an additional
63 days and would have expired on November 9, 2007.
At the continued public hearing on August 7, 2007, the Hearings Officer again received
testimony and evidence on the declaratory ruling request, announced her intention to
conduct a second site visit and issue a written site visit report, left the written evidentiary
record open through September 4, 2007, and allowed the county through September 11,
2007 to submit final argument. Therefore, the 150 -day period was tolled for another 35
days and would have expired on December 14, 2007. By an electronic mail message
dated September 10, 2007 the property owners' attorney notified the Planning Division
that the Hearings Officer had not conducted a second site visit before the evidentiary
record closed. On September 10, 2007 the Hearings Officer issued an order reopening
and extending the written record through September 14, 2007 to conduct a second site
visit and to issue a written site visit report, through September 21, 2007 for the parties to
respond to the site visit report, and through September 18, 2007 for the county to submit
final argument. On September 13, 2007 the Hearings Officer conducted a second site
visit to the subject property and vicinity and on September 14, 2007 issued a written site
visit report. The 150 -day period was tolled for another 7 days and now expires on
December 21, 2007. As of the date of this decision there remain 32 days in the extended
150 -day period.
F. Proposal: The county requested a declaratory ruling to determine whether it is
appropriate to revoke the previous dwelling approvals in LM -06-13 and MC -06-2 on the
basis of the property owners' removal of vegetation from the subject property in violation
of conditions of approval in those decisions. As discussed above, the appeal filed by the
Olivieris was withdrawn and therefore is no longer before the Hearings Officer.
G. Public/Private Agency Notice: The record indicates the Planning Division did not send
notice of its declaratory ruling application and the Olivieris' appeal to public and private
Peery
DR -07-3, A-07-2 (E-07-2)
Page 4 of 22
agencies, but did advise ODFW of the code enforcement complaint and declaratory
ruling proceeding.
H. Public Notice and Comment: The Planning Division mailed individual written notice of
the county's declaratory ruling application and the Olivieris' appeal to the owners of
record of all property located within 750 feet of the subject property. The record indicates
this notice was mailed to seven property owners. In addition, notice of the initial public
hearing was published in the Bend "Bulletin" newspaper. As of the date the record in this
matter closed the county had received seven letters from the public in response to these
notices. In addition, appellants, two members of the public, the property owners'
attorney, two representatives of ODFW, and two expert witnesses for the property owners
testified at the public hearings. These comments are addressed in the findings below.
I. Lot of Record: As discussed above, the subject property is a legal lot of record having
been created by a 1979 partition (MP -79-70).
III. CONCLUSIONS OF LAW:
A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.36, Limitations on Approvals
a. Section 22.36.060, Revocation of Approvals
A. Approvals shall be subject to revocation according to
standards set forth in the applicable zoning ordinances.
B. Revocations shall be processed as a declaratory ruling under
DCC Title 22. DCC 22.20.010 notwithstanding, a public
hearing shall be held in all revocation proceedings.
FINDINGS: The county applied for a declaratory ruling to determine whether it is appropriate to
revoke previous CU and LM approvals to establish a dwelling on the subject property because of
the property owners' removal of vegetation from the subject property in violation of conditions
of approval in those decisions. Public hearings were held to consider the declaratory ruling and
permit revocation.
2. Chapter 22.40, Declaratory Ruling
a. Section 22.40.010, Availability of Declaratory Ruling
A. Subject to the other provisions of DCC 22.40.010, there shall
be available for the County's comprehensive plans, zoning
ordinances, the subdivision and partition ordinance and DCC
Title 22 a process for:
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* * *
3. Determining whether an approval has been initiated or
considering the revocation of a previously issued land
use permit, quasi-judicial plan amendment or zone
change.
Such a determination or interpretation shall be known as a
"declaratory ruling" and shall be processed in accordance with
this chapter. In all cases, as part of making a determination or
interpretation the planning director (where appropriate) or
hearings body (where appropriate) shall have the authority to
declare the rights and obligations of persons affected by the
ruling.
B. A declaratory ruling shall be available only in instances
involving fact -specific controversy and to resolve and
determine the particular rights and obligations of particular
parties to the controversy. Declaratory proceedings shall not
be used to grant an advisory opinion. Declaratory proceedings
shall not be used as a substitute for seeking an amendment of
general applicability to a legislative enactment.
FINDINGS: This declaratory ruling proceeding is for the purpose of determining whether the
2003 and 2006 land use approvals to establish a nonfarm dwelling on the subject property should
be revoked on the basis of factual allegations that the property owners' removal of vegetation
from the property in violation of conditions of approval in those decisions. The Hearings Officer
finds this proceeding will determine the rights and obligations of the parties and is not being used
to obtain an advisory opinion or to seek a legislative amendment to the county code.
b. Section 22.040.020, Persons Who May Apply
A. DCC 22.08.010(B) notwithstanding, the following persons may
initiate a declaratory ruling under DCC 22.40:
* * *
3. In all cases arising under DCC 22.40.010, the Nanning
Director.
FINDINGS: This declaratory ruling application was filed by the county's Planning Director.
c. Section 22.40.030, Procedures
Except as set forth in this chapter or in applicable provisions of a
zoning ordinance, the procedures for making declaratory rulings shall
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be the same as set forth in this title for land use actions. Where the
planning division is the applicant, the planning division shall bear the
same burden that applicants generally bear in pursuing a land use
action.
FINDINGS: This declaratory ruling is being handled under the procedures for a land use action.
Because the county initiated this proceeding it has the burden of proof. In other words, the
county must demonstrate by substantial, credible evidence that grounds for revocation of the
aforementioned 2003 and 2006 land use approvals exist and that revocation is justified.
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.140, Administrative Provisions
a. Section 18.140.080, Revocation
A. The Hearings Body may revoke or modify anv permit granted
under the provisions of DCC title 18 on one or more of the
following grounds:
1. A permit may be revoked on the basis of fraud,
concealment, misrepresentation or inaccurate
information supplied on the application or offered by
the applicant or his representative at the public hearing.
2. A permit may be revoked on the basis that the use for
which such permit was granted has ceased to exist or
has been suspended for one year or more.
3. A permit may be revoked or modified on the basis that
the use for which the permit was granted was so
exercised as to be detrimental to the public health,
safety or welfare, or in such a manner as to constitute a
nuisance.
4. A permit may be revoked or modified on the basis that
the conditions or terms of such permit have been
substantially violated.
5. Any permit granted pursuant to DCC Title 18 shall
become null and void if not exercised within the time
period specified in such permit or, if no time period is
specified in the permit, within two years from the date
of approval of said permit.(Emphasis added.)
FINDINGS: This declaratory ruling was filed by the county under Paragraph (4) of this section
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in response to a code enforcement complaint submitted by appellants Lance and Irene Olivieri
who own and live on property abutting the subject property. The basis of the code enforcement
complaint was that the property owners violated one or more conditions established in the 2003
CU and 2006 LM approvals to establish a nonfarm dwelling on the subject property by removing
trees and other native vegetation located both inside and outside the modified building site
approved in LM -06-13 and MC -06-2. There is no dispute that trees, brush and ground cover
were removed from the subject property both inside and outside the approved building envelope,
as well as from a portion of the Olivieris' adjacent property. The record includes a survey of the
subject property dated February 12, 2007 and submitted by the property owners that states .839
acres of the subject property was disturbed along with .096 acres of land on the Olivieris'
property, and that of the .935 acres of disturbed area on the subject property approximately .41
acres (17,800 square feet) were located outside of the previously approved building envelope.4 In
addition, the record includes a document submitted by the property owners entitled "Evaluation
of the Tree Felling Disturbance on the Peery Property," dated March 15, 2007 and prepared by
Ecological Services, Inc. describing and quantifying the removal of trees, shrubs and ground
cover, as well as the compaction of soil resulting from the clearing activity on the subject
property conducted by the property owners' contractor Wade Fagen. This clearing and ground
disturbance were verified during multiple site visits by planning staff, ODFW staff, and the
Hearings Officer.
The original staff report dated March 26, 2007 recommended that both the CU and LM approvals
previously issued for the establishment of a dwelling on the subject property be revoked for the
reasons that these approvals were conditioned on retaining existing vegetation between the
approved building envelope and Sisemore Road that has been removed, both for the preservation
of habitat values and screening for wintering deer and for screening the dwelling from the road.
The staff report notes that although the impacts caused by the property owners' removal of
vegetation can be mitigated through replanting, it will take many years to restore the vegetation
to the point where it will provide both the wintering deer habitat value and visual screening that
was lost due to the clearing. At the public hearing on August 7, 2007 and in a supplemental staff
report dated August 29, 2007, staff recommended the CU approval be modified through this
declaratory ruling proceeding with new and/or modified conditions. However, the supplemental
staff report recommends the LM approval be revoked because a dwelling sited on the approved
building envelope no longer would qualify for a non-visible LM approval.
The property owners respond by acknowledging that clearing was done outside the approved
building envelope and outside the subject property. However, they argue the conditions of
approval concerning vegetation removal and preservation are ambiguous and therefore they were
not violated, and that even if they were violated the violations were not "substantial." Finally, the
property owners argue that in any case permit revocation is too harsh a penalty where, as here,
they are prepared to implement a mitigation plan to replace the removed vegetation. Each of
these arguments is addressed in the findings below.
1. Conditions of Approval and Supporting Findings
4 The record indicates the Olivieris withdrew their appeal as a result of the property owners' agreement to
restore and re -vegetate the portion of the Olivieris' property cleared by the property owners' contractor.
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a. March 2003 Decision (CU -02-124, CU -02-125, CU -02-126, MC -02-17). The Hearings
Officer's March 2003 decision granted conditional use approval for a nonfarm dwelling on the
subject property and a modification to the building site approved through the 1979 partition
creating the subject property. The decision includes the following pertinent findings:
"The subject property is located within the LM Zone because of its proximity to
Sisemore Road. The applicant [the property owners' predecessor James L. Watts]
has not submitted applications for LM site plan review for the proposed nonfarm
dwellings. Since the proposed nonfarm dwellings still will be located within one-
quarter mile of Sisemore Road under the proposed building areas, the Hearings
Officer finds that as a condition of approval the applicant or his successors will
be required to apply for and obtain LM site plan review and approval for the
proposed nonfarm dwellings prior to the issuance of building permits. "(Page 19.)
"* * * the applicant has requested approval to site the nonfarm dwellings
entirely outside the designated building areas in order to move them out of dense
vegetation used by wintering deer for browse and cover, and onto more open, less
vegetated areas. * * *
The applicant proposes to site the nonfarm dwelling on Tax Lot 100 [the subject
property] entirely outside the designated building area and more than 300 feet
from the aforementioned private road. He argues the proposed building area for
Tax Lot 100 also will afford equal or greater protection for habitat values than
the designated building area for Tax Lot 100 because it will move the dwelling
out of the denser vegetation near Sisemore Road that deer use for browse and
cover. In support of his argument, the applicant submitted a letter dated January
21, 2003 from Steve George, ODFW Deschutes District Wildlife Biologist, stating
ODFW agrees with the proposed building area for Tax Lot 100 'with the
applicant's mitigation plan to protect or enhance the wildlife values. ' The record
indicates the applicant's mitigation plan was transmitted to ODFW by a letter
dated January 10, 2003 from the applicant to the county. The applicant's letter
states in pertinent part:
`I propose the following mitigation plan for the purpose of gaining
approval of the alternate building area I am proposing for Tax Lot 100.
* * *
3) With the exception of removal of vegetation for fire prevention or
suppression purposes and with the exception of the area necessary
for the construction of a dwelling and access to the dwelling, at
least 80 percent of the parcel shall be maintained with natural
vegetation in place. The removal of trees shall be limited to those
necessary for the construction of a dwelling and outbuildings, to
gain access and fire prevention purposes. Light trimming for the
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purposes of enhancing views of scenic vistas, aesthetic
enhancement within 200 feet of the dwelling and fire prevention is
allowed.
In his January 21, 2003 letter, Steve George recommended the following
modifications and/or additions to the applicant's proposed mitigation plan:
'* * *
Vegetation
At least 80 percent of the parcel shall be managed to maintain or enhance
the natural vegetation occurring on the property. Vegetation may be
removed within the building envelope only for construction of the building
and for fire protection. Within 200 feet of the dwelling light trimming of
juniper trees may occur for the purpose of enhancing scenic views.
Mr. George 's letter met with considerable disapproval. * * * The applicant
mounted a general assault on Mr. George 's comments. In a letter dated February
10, 2003, the applicant questioned the scientific basis for the WA Zone's 300 foot
building envelope requirement. He challenged ODFW's authority to submit
comments on his mitigation plan or to suggest revisions to it. He argued there is
no statutory or ordinance authority to require mitigation plan. Finally, the
applicant stated lilt certainly was not my desire to submit a mitigation plan or
add more restrictions to my property. ' In light of the applicant's voluntary
submission of a mitigation plan — coupled with his own offer of Mr. George's
January 21, 2003 letter, [footnote omitted] — the Hearings Officer is at a loss to
understand this statement.
As discussed in the findings above, ODFW may participate in these proceedings
as a party and may submit comments on the application. The Hearings Officer
finds that ODFW's expertise can be of particular value where, as here, the
ordinance requires me to apply a subjective siting standard concerning wildlife
habitat — i.e., whether or not habitat will be afforded `equal or greater protection'
with a building envelope located outside the 300 foot road setback. However, I
am not bound by ODFW's recommendations, particularly if I find they are not
supported by substantial evidence in the record "(Pages 21-23.)
"2. Tax Lot 100. * * * The Hearings Officer finds the dispute between the
applicant and Mr. George concerning which building area location on Tax Lot
100 affords better habitat protection presents a close question. The applicant
correctly notes that the WA siting standard requires only that he demonstrate the
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proposed building will afford `equal or greater' habitat protection than the
designated building area. I find he has done that with the proposed building area.
However, considering the purpose of the WA Zone siting standards, moving the
building area closer to the terminus of the existing private road is likely to afford
even greater habitat protection. And the suggested vegetative hedge between the
proposed building area and the prime habitat closer to Sisemore Road will not be
an effective buffer for many years. Considering all of the evidence, I find the
applicant has met his burden of demonstrating the proposed building area will
afford equal or greater protection for wildlife habitat than the designated
building area on Tax Lot 100. .However, I find that since the applicant proposed
to plant the vegetative buffer recommended by Mr. George, he will be required to
do so as a condition of approval.
For the foregoing reasons, the Hearings Officer finds the applicant will be
required as a condition of approval for the proposed modification to site the
nonfarm dwelling on Tax Lot 100 within the proposed building area shown on the
plot plan submitted with the applicant's modification burden of proof subject to
the same mitigation measures applicable to Tax Lots 200 and 300 and subject to
the following additional mitigation measure: * * *. "
Based on the above -quoted findings, the Hearings Officer imposed the following conditions of
approval in 2003:
"2. The applicant/owner shall obtain Landscape Management site plan review
and approval for each of the three nonfarm dwellings approved in this
decision prior to the issuance of a building permit for that dwelling.
* * *
6. The applicant/owner shall site the nonfarm dwellings on Tax Lots 200 and
300 within the approved building areas shown on the plot plan required in
Condition 5 above, subject to the following mitigation measures:
* * *
c) At least 80 percent of the parcel shall be managed to maintain or
enhance the natural vegetation occurring on the property.
Vegetation may be removed within the building area only for
construction of the dwelling and access to the building and for
fire protection. Within 200 feet of the dwelling light trimming of
juniper trees may occur for the purpose of enhancing scenic
views.
7. The applicant/owner shall site the nonfarm dwelling on Tax Lot 100
within the approved building area shown on the plot plat required in
Condition 5 above, subject to the same mitigation measures applicable to
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Tax Lots 200 and 300 set forth in Condition 6 above, and subject to the
following additional mitigation measure:
a) The applicant/owner shall plan and maintain a vegetative buffer of
plants that runs in a generally northeast -southwest line across Tax
Lot 100 between the approved building area and the main draw to
the north of the approved building area. This buffer may be
composed of native or non-native (non -noxious) plants including
trees and bushes that would have an average height of 10 feet at
maturity, with an average spacing of 5 feet. This buffer shall be
planted within 6 months of the date this decision becomes
final. "(Bold emphasis added.)
2. March 2006 Decision (LM -06-13, MC -06-2). The county issued an administrative decision
granting LM site plan approval and a modification to the previously -approved building site for
the subject property. That decision includes the following pertinent findings:
"Sisemore Road is designated as a landscape management corridor within
Deschutes County. The applicant's [the property owners' predecessor Rob
Wesson] site plan indicates the proposed building envelope would be sited an
estimated 181 feet east of Sisemore Road. The subject property is vegetated with
mature trees, brush, and native grasses. The proposed building envelope would be
sited on a portion of the property which is elevated above Sisemore Road. The
rise in elevation and existing vegetation would make the dwelling non-visible
from Sisemore Road To ensure that the proposed dwelling would remain
screened from Sisemore Road, staff has added a Condition of Approval that
requires the applicant to retain the existing tree cover on the property that
screens the proposed dwelling from Sisemore Road " (Page 7; bold emphasis
added.)
"The proposed building envelope would not be located entirely within 300 feet of
Sisemore Road. However, as noted above, ODFW has submitted a letter
determining that relocation of the building envelope would be a better location
for wildlife and habitat protection that the site designated by MC -02-17. "(Page
8.)
Based on these findings, the administrative decision imposed the following conditions of
approval:
"* * *
2. All other conditions of approval associated with File CU -02-124, MC -
02 -17 remain in effect.
* * *
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5. All existing vegetation not required to be removed for the building pad
shall be preserved. "(Page 9; bold emphasis added.)
2. Ambiguity of Conditions
The property owners argue Condition 6(c) in the 2003 decision (CU -02-124, MC -02-17) and
Conditions 2 and 5 in the 2006 decision (LM -06-13, MC -06-2), read together, create an
ambiguity concerning what vegetation they could remove. Specifically, the property owners
argue 2006 Condition 5 could be read to limit the amount of vegetation removal permitted in
Condition 6(c) while 2006 Condition 2 could be read to apply the vegetation provisions in 2003
Condition 6(c).
The Hearings Officer finds 2003 Condition 6(c) imposed separate requirements for vegetation on
three distinct but overlapping areas on the subject property, as follows:
• at least 80 percent of the entire parcel must be managed to maintain or enhance natural
vegetation;
• within the approved building envelope vegetation may be removed only for construction
of the dwelling and access to the building and for fire protection; and
• within 200 feet of the dwelling light trimming of juniper trees may occur to enhance
scenic views.
The record indicates the approved building envelope measures 200 feet by 200 feet. Therefore, a
portion of the area within 200 feet of the dwelling necessarily would be located within the
approved building envelope.
The Hearings Officer finds the plain language of 2006 Condition 5 applies to the entire parcel
because it refers to "all existing vegetation" not required to be removed from the building pad.
Therefore, I find the language of 2006 Condition 5 unambiguously places greater limitations on
the removal of vegetation from the subject property outside the "building pad" than did 2003
Condition 6(c). The remaining question is whether the language of 2006 Condition 2 creates an
ambiguity as to the meaning of 2006 Condition 5 because Condition 2 states all "other conditions
of approval" in the 2003 decision remain in effect. In other words, does Condition 2 mean the
less stringent vegetation preservation/removal requirements in 2003 Condition 6(c) still apply?
The property owners argue that because of this ambiguity I may consider the statements of
Senior Planner Anthony Raguine, author of the 2006 decision, that he did not intend the
conditions of approval in his decision to place greater limitations on vegetation removal than
those imposed by the 2003 CU decision.
The Hearings Officer agrees with the property owner that the language in 2006 Conditions 2 and
5 creates an ambiguity as to whether and to what extent 2003 Condition 6(c) applies. However, I
am not persuaded that as a result of this ambiguity the more stringent requirements of 2006
Condition 5 must be ignored. To the contrary, the context in which Conditions 2 and 5 are found
— a decision approving an LM site plan review for a non-visible dwelling — strongly suggests
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2006 Condition 5 was intended to be more stringent than 2003 Condition 6(c) because Condition
5 was necessary to assure compliance with the approval criteria for such a permit — i.e., that the
dwelling would not be visible from Sisemore Road. As noted above, the 2006 LM decision
expressly found:
"The rise in elevation and existing vegetation would make the dwelling non-
visible from Sisemore Road. To ensure that the proposed dwelling would remain
screened from Sisemore Road, staff has added a Condition of Approval that
requires the applicant to retain the existing tree cover on the property that
screens the proposed dwelling from Sisemore Road."
In other words, in this context — and without 2006 Condition 5 -- the vegetation removal
permitted under 2003 Condition 6(c) could result in loss of the very "existing tree cover" that
screened the dwelling from Sisemore Road and qualified it as a non-visible dwelling under the
LM site plan approval criteria. Consequently, more stringent limitations on vegetation removal
for the LM approval were to be expected. For these reasons, the Hearings Officer finds that
reading 2006 Conditions 2 and 5 in the context of the 2006 LM decision, Condition 5 was
intended to place limitations on the removal of vegetation in addition to those imposed by 2003
Condition 6(c) that were necessary to assure compliance with the non-visible LM site plan
approval criteria.
In any event, the Hearings Officer finds that even if the context of the 2006 LM decision would
permit me to ignore the vegetation removal restriction in 2006 Condition 5 and look only to the
restrictions imposed in 2003 Condition 6(c), the vegetation removed from the subject property
exceeded that permitted under Condition 6(c). The record indicates the vegetation removal
extended beyond the approved building area onto the adjacent parcel. In that regard, it clearly
exceeded what would be required for construction of a dwelling in the building envelope. And
based on the photographs in the record of the clearing on the subject property and my site visit
observations, I find the complete removal of juniper trees and brush from much of the area
between the approved building area and Sisemore Road cannot reasonably be considered "light
trimming" of trees for the purpose of enhancing scenic views.
The property owners and their contractor Wade Fagen also argue the removal of junipers
between the approved building envelope and Sisemore Road was required and justified for fire
protection and therefore was permitted by 2003 Condition 6(c). The Hearings Officer finds this
argument rings hollow inasmuch as the record indicates the only "overstocked" junipers and
brush removed from the subject property for "fire protection" were those taken from the
approved building area and the area between the building area and Sisemore Road where the
scenic views could be enhanced with their removal. Moreover, in his August 31, 2007 letter,
Larry Pacenka from ODFW stated in pertinent part:
"ODFW views that this was not a `Thinning of Juniper, ' but a clearing of juniper
on the Peery property and did not follow the `defendable space' specifications
provided by the Cloverdale Rural Fire Protection District nor the Oregon
Department of Forestry. The pattern of vegetation removal does not reflect
`defendable space' guidelines as a circular perimeter around the homesite, but
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instead some juniper/shrub vegetation was removed far beyond the building
envelope while that same vegetation type still remains within the envelope. * * *
ODFW has to question Mr. Peery's marking and removal of trees over 100 feet
onto the neighboring property (which at the time claimed he thought was on his
property). Why was the vegetation removed such a great distance from the
building envelope, while identical vegetation cover was left standing at the
homesite area?"
Finally, the property owners argue that even if the vegetation removal conducted on the subject
property was in violation of 2003 Condition 6(c) and/or 2006 Condition 5, it was not a
"substantial" violation because these conditions were only two of 14 conditions imposed on the
CU and LM approvals. The Hearings Officer disagrees with finds a numeric formula is not
appropriate in determining substantiality. The term "substantial" is not defined in the county's
code. The ordinary definition of the term includes: "having substance; important; with regard to
essential elements." Webster's New World Dictionary and Thesaurus, Second Edition. The
findings in both the 2003 and 2006 decisions make clear that retaining the existing vegetation
between the approved building envelope and Sisemore Road was an "essential element" of the
case for meeting both the applicable CU and LM approval standards. The CU approval standards
included compliance with the WA Zone provisions, which required that the dwelling be built
either within 300 feet of Sisemore Road or at a location outside the 300 -foot road setback that
would afford "equal or greater protection" for wildlife habitat. Both the property owners'
predecessor and ODFW identified the vegetation between the approved building envelope and
Sisemore Road as critical wintering deer habitat because of the browse and cover it provided.
The preservation of this vegetation represented a significant part of the justification for allowing
the dwelling to be built outside the 300 -foot building setback. And as discussed above, the
retaining the vegetation between the building envelope and Sisemore Road was what qualified
the dwelling as "non-visible" for purposes of the LM approval standards.
For the foregoing reasons, the Hearings Officer finds that while 2006 Condition 2 created an
ambiguity as to whether 2006 Condition 5 or 2003 Condition 6(c) established the requirements
for vegetation preservation and removal, the conditions made clear that the property owners were
not permitted to engage in wholesale removal of vegetation within the approved building area,
on the adjacent Olivieri property, or in the area between the approved building envelope and
Sisemore Road.
3. Appropriate Remedy
Having found the property owners' removal of vegetation from the Olivieris' property and from
the area between the approved building area and Sisemore Road violated both 2003 Condition
6(c) and 2006 Condition 5, the Hearings Officer finds the remaining question is whether
revocation or modification of the CU and LM permits for establishment of a dwelling on the
subject property is the appropriate remedy. The property owners argue revocation is not
appropriate because the violation was not intentional and can be remedied, citing my decision in
Daughs (DR -00-5). In that case, I concluded the owner of a private airstrip at which skydiving
activities occurred and were permitted with a conditional use permit had violated two conditions
of approval by having skydiver landings off the subject property and by storing more aircraft at
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the airstrip than was permitted. I found permit revocation was not an appropriate remedy in that
case because the off-site landings were not "intentional" due to weather conditions and other
factors affecting parachute behavior outside the airstrip operator's control, and because the
airstrip operator easily could correct the aircraft storage violation — which was intentional —
simply by moving one aircraft to another location.
The Hearings Officer finds the circumstances presented here are distinguishable from those in
Daughs in two significant ways. First, there is no question the vegetation removal that occurred
on the subject property was intentional. And there is evidence in the record from which I can find
that the extent of that clearing was not inadvertent, but rather was the direct result of the property
owners' lack of due diligence in determining what was permitted and lack of adequate
supervision of Mr. Fagen who did the clearing at the property owners' direction.
a. Lack of Due Diligence. The record includes correspondence between the property owners and
Mr. Fagen concerning what vegetation to remove from the subject property. The record indicates
Mr. Fagen is a certified arborist. In a letter dated September 11, 2006 from Mr. Peery to Mr.
Fagen following Mr. Fagen's visit to the subject property, Mr., Peery gave Mr. Fagen the
following directions regarding vegetation removal:
"Some select foreground expansive views across the forest below may benefit
from select cutting, limbing, brush removal and the like.
You may refer to the building envelope map enclosed. The black circles are
specific trees. I am assuming, but you will learn direct from Larry Pacenka [from
ODFW], that thee must be left. Jack says he received an inch of material from
Larry. He notes that older Bitterbrush and 8 -inch juniper may be fair game, and I
think we should clear as much as is reasonable.
There may be some differences with what is to be done inside the building
envelope and outside. Of course, the Wildlife Habitat Agreement is to be a
consideration coupled with on the ground issues of aesthetics, etc.
We see some tree removal, some limbing from the ground up, some limbing of
select in tree limbs, brush and root ball removal, etc. " (Emphasis added.)
As discussed in the findings above, the property owners submitted an evaluation of the
vegetation clearing Mr. Fagen performed on the subject property and noted that 38 juniper trees
were removed from outside the approved building envelope and some trees were removed from
the Olivieris' property. In a letter dated March 12, 2007 from Mr. Fagen to Mr. Peery and Larry
Pacenka from ODFW following the filing of the Olivieris' code violation complaint, Mr. Fagen
explained his clearing activity in pertinent part as follows:
"I feel the problem on Ron Peery's Sisemore property is 3 fold. The plan on this
property is a Wildlife Plan and not a Fire Fuel Reduction Plan. Even though I did
a very good job of removing exactly what I was contracted to do, I wish I would
have been better informed to alert Ron of problems that may arise. * * *
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Second Ron seemed so confident of the plan and the property line that I did not
question his knowledge of what was going on.
Third, and finally, the Plan is not that clear or should I say, "Doesn't paint a very
good picture' for somebody like myself who works on these sort of projects let
alone someone like Ron from the City. * * * I requested having a pre -work
meeting which included me being present. The three of us discussed brush
removal, limbing of trees and removing 75% of the trees on the property. At that
time most of the trees on Ron's property had been marked for removal along the
old canal, 2 trees still remain with the old markings. Both Ron and I understood
that most junipers up to 8" DBH (which equate to 10-16" diameter at ground
level) were to be removed, along with some larger trees. The plan also stated that
removal of Junipers would allow for new growth of grass and brush. Which I
thought meant the plan wanted the old brush gone to reduce fire hazard and
promote new growth that the deer like so much more. So I intentionally took out
many of the tops of the brush with the tree removal by pushing the trees along the
ground instead of holding them suspended to preserve the tops of the brush. * *
* It sounded to me like a typical Fire Fuel Reduction Job. But like General
MacArthur once said, 'It is not good enough that instructions are clear, they must
be unmistakable. "(Emphasis added.)
At the August 7, 2007 public hearing, Mr. Fagen testified Mr. Peery showed him the boundaries
of the approved building envelope on the subject property, and he reiterated that he understood
from Mr. Peery that all trees along the canal on the west side of the property were to be removed
based on the fact that they were marked. At the hearing Mr. Peery testified that he was aware of
the vegetation clearing conditions and restrictions in the CU and LM decisions when he
contracted with Mr. Fagen to do the vegetation removal. However, he testified he was wrong
about the layout of the property, fire fuel reduction standards, how many junipers he could
remove from the subject property, and what vegetation could be removed for view enhancement.
In a letter dated August 31, 2007, Larry Pacenka of ODFW stated that Mr. Peery told him he —
Mr. Peery — had in fact marked the trees to be removed, and that Mr. Fagen confirmed to Mr.
Pacenka that Mr. Peery had directed him as to what trees to cut.
The Hearings Officer finds from the written and oral testimony of Mr. Peery and Mr. Fagen that
Mr. Peery's examination of the subject property, and his instructions to Mr. Fagen about what
vegetation should be removed, fell so far short of the minimum stewardship required to assure
compliance with the conditions in the previously -issued land use approvals -- of which Mr. Peery
acknowledges he was aware -- that his failure is tantamount to an intentional violation.
b. Inadequate Means to Correct Violation. Second, the Hearings Officer finds the property
owners have not demonstrated the removal of vegetation can be "corrected" in a manner that
would provide either "equal or better" habitat protection for wintering deer or screening of a
dwelling on the approved building envelope from Sisemore Road such that it would still qualify
for a non-visible LM permit. At the outset, I acknowledge that the property owners have made a
considerable effort to develop a mitigation plan to correct the violations of conditions that
occurred on the subject property. The record includes multiple iterations of a mitigation plan
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developed by Winter Creek Restoration. The record also indicates the property owners and
Winter Creek Restoration have coordinated their mitigation plan efforts with Larry Pacenka of
ODFW in an effort to address the agency's concerns. Nevertheless, I find it is clear from this
record that under the proposed mitigation plan it will take many years for any new vegetation to
reach the size and density that will replicate the habitat and visual screening values that were lost
as a result of the clearing performed by Mr. Fagen at Mr. Peery's direction. And in his comments
on the proposed mitigation plans, Larry Pacenka identified a number of deficiencies in the plan
and recommended that the property owners move their building envelope to a new location that
will protect habitat, or wait to build a dwelling until the removed vegetation is "completely
replaced in habitat structure and function." (Bold emphasis in original.)
The property owners responded to ODFW's concerns by suggesting that their nonfarm dwelling
CU permit be modified to include a condition of approval requiring them to wait for at least 2
years after all mitigation planting has been completed to apply for a building permit, stating that
it would take at least 18 months for a dwelling to be constructed on the subject property.
However, there is no evidence in this record from which I can find that after 3 '/2 years of tree
and vegetation growth the replacement habitat would be adequate to justify approval of a
dwelling outside the 300 -foot road setback on the basis of "equal or better" habitat protection at
the more distant building envelope.
The property owners also argue a modification to their LM site plan approval similar to that
proposed for their CU approval will assure a dwelling constructed on the approved building
envelope would still qualify as "non-visible." In the Hearings Officer's second site visit report, I
made the following observations concerning the visibility of a dwelling on the approved building
envelope from Sisemore Road following the removal of vegetation on the subject property:
"Mr. Raguine and I then located a stake marking the western boundary of a
second modified 150' by 200' homesite located further east than the previously
approved modified 200' by 200' homesite. I could not see any portion of Sisemore
Road from this stake. However, it was my impression that the upper floor and roof
of a two-story dwelling constructed near this western homesite boundary could be
visible from the road. It also was my impression that any dwelling constructed on
the previously approved 200' by 200' modified homesite located further to the
west would be visible from Sisemore Road.
I observed three mature juniper trees near the small clearing where ourvehicle
was parked that I estimated to be approximately 25 feet tall and located within the
second modified homesite boundary. I believed these trees would provide suitable
visual landmarks from which I could determine to what extent a dwelling at or
near this location would be visible from Sisemore Road. Mr. Raguine took a
digital photograph of these trees looking in a south-southeast direction that also
shows the Olivieri dwelling in the background. This photograph is attached to this
site visit report as Exhibit A.
Mr. Raguine and I left the subject property and drove north on Sisemore Road to
Kohlman Road where we turned around and drove south on Sisemore Road. As
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we drove south and got closer to the subject property I was able to observe the
western portion of the property, including the slope up from the road that retains
its native vegetation and the upper level of the property on which vegetation was
cleared. As we approached the subject property it was my impression that the
upper portions of the landmark trees we had photographed were visible from the
road. However, to confirm my observation we stopped at a point near the
driveway of the Kuhn residence and I walked up the slope onto the upper level of
the property to confirm the location of the landmark trees. I found that the trees I
observed from the road were not the landmark trees but rather were trees located
closer to the western property boundary. I located the position of the landmark
trees further to the northeast and returned to the vehicle. We then backed up to
the north on Sisemore Road and proceeded south again until I was able to
observe the upper levels of the landmark trees. We continued driving south on
Sisemore Road to a point south of the Olivieris' driveway. I was able to see the
upper parts of the landmark trees intermittently from Sisemore Road from a point
north of the Kuhn's driveway to a point south of the Olivieris' driveway. Based on
these observations, it was my impression that the upper story and roof of a two-
story dwelling constructed on any of the three homesites (original, first modified
and proposed second modified) also would be visible to some degree from this
segment of Sisemore Road because of the clearing that has taken place on the
proposed homesites. "(Emphasis added.)
In their final argument, the property owners responded to the Hearings Officer's site visit report
as follows:
"It cannot be determined at this point whether a structure that will not even be
proposed until at least 2 years from now will be `visible' from Sisemore Road. A
decision cannot be made until the property owner submits plans with respect to
the structure and site layout. The Site Visit Report indicates that the Hearings
Officer believes a single -story structure would not be visible from Sisemore Road,
under current conditions (without new plantings installed, and without
considering a yearly growth factor). Further, the Hearings Officer stated that she
`could not see any portion of Sisemore Road from [a stake marking the western
boundary of a second modified 150' by 200' homesite located further east than
the previously modified approved modified 200' by 200' homesite]. ' Accordingly,
it would be erroneous to revoke LM -06-13 because the Peerys may build a
single -story home.
As discussed in our August 21, 2007 letter, the mitigation plan includes the
requirement to install twenty-two large trees will be installed [sic] (8-12 feet in
height), which may grow up to 3 feet per year, under ideal conditions. The
Peerys will not be allowed to apply for a building permit for 2 years from the date
the trees are installed. Fourteen medium-sized trees will also be planted (6-8 feet
in height). The installed trees, as well as existing trees and vegetation on site will
increase in height and density over a 2 year period, providing screening beyond
existing conditions. Accordingly, the evidence supports a finding that even a 2 -
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story structure will not be `visible' from Sisemore Road on the first or second
modified building sites, within the meaning of DCC 18.84.050(B), but the time of
building permit application.
In short, the Hearings Officer believes that, under current conditions, the upper
story and roof of a 2 -story dwelling might be visible, 'to some degree' from
Sisemore Road, based on an observation of certain `landmark trees' thought to be
representative of the height of a 2 -story structure on the building site. It should be
noted that such trees were visible only intermittently from Sisemore Road. In
other words, even without new plantings and growth, a 2 -story structure would be
expected to barely be seen from Sisemore Road The Hearings Officer's
observations in this regard do not take into consideration the impact of mitigation
plantings and the growth rate of both new and existing vegetation, which will
further screen from Sisemore Road.
It has not been determined whether the Peerys will construct a 1 or 2 -story
home. Clearly, if a single -story home is constructed, it would be invisible, even if
application was allowed to be submitted at the conclusion of this declaratory
ruling proceeding. The installation of mitigation plantings, growth of such
plantings, along with growth of existing vegetation in the area will provide
additional screening. Thus, even a 2 -story home, if proposed, may not be
`visible' from Sisemore Road within the meaning of DCC 18.84.050(B) two
years from now, given that the Hearings Officer has determined such a structure
would already be largely screened under current conditions. "(Underscored
emphasis in original; bold emphasis added.)
The Hearings Officer finds the property owners' argument is not persuasive. Section
18.84.050(B) provides:
Structures which are not visible from the designated roadway, river or stream and
which are assured of remaining not visible because of vegetation, topography or
existing development are exempt from the provisions of DCC 18.84.080 (Design
Review Standards) and DCC 18.84.090 (Setbacks). An applicant for site plan review
in the LM Zone shall conform with the provisions of DCC 18.84, or may submit
evidence that the proposed structure will not be visible from the designated road,
river or stream. Structures not visible from the designated road, river or stream
must meet setback standards of the underlying zone.
The term "visible" is not defined in Title 18. Therefore, the Hearings Officer finds it is
appropriate to apply the ordinary definition of this term, which is "that can be seen." Webster's
New World Dictionary and Thesaurus, Second Edition. I find there is no basis in this definition
or in the context of Section 18.84.050(B) to conclude a structure that is visible — even if only
intermittently — from a designated road is "not visible." Moreover, for a structure to be exempt
from LM site plan review, it must be "assured of remaining not visible because of vegetation."
The evidence in this record does not provide such assurance. The property owners claim that a 2 -
story dwelling would not be visible in three years is based on an assumption that new screening
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trees will grow at a very high rate — one expected only "in ideal conditions" -- and will have no
mortality on the subject property, a parcel that has never been irrigated and has such poor quality
soils that it qualified for placement of a nonfarm dwelling. If the property owners were applying
for a non-visible LM permit for a dwelling on the approved building envelope under current
conditions, the evidence on which they rely in this record would not meet their burden of proof. I
find it is no more appropriate for me to approve a modification to their existing LM permit under
these circumstances because the property owners have not demonstrated with substantial credible
evidence that their proposed mitigation plan will correct the violations of conditions in the 2006
LM approval.
Section 18.140.080(A)(4) gives the Hearings Officer the discretion to determine whether to
revoke or modify a permit where conditions of the permit have been substantially violated. I find
revocation is the appropriate remedy in this case for the following reasons. As discussed above, I
have found the conditions of both the 2003 CU approval and the 2006 LM approval were
substantially violated by the intentional removal of vegetation from the Olivieris' property and
the subject property. Preservation of vegetation between the approved building envelope and
Sisemore Road was an essential basis for the previous CU and LM approvals for a non-visible
dwelling located outside the 300 -foot road setback. The property owners' violations were serious
and easily could have been avoided by the property owners' exercise of minimal due diligence.
And the property owners have not convincingly demonstrated their proposed corrective measures
will be effective within the three-year time frame they propose for construction of a dwelling on
the approved building envelope. If the re -vegetation and site restoration proposed by the property
owners does in fact provide adequate screening and "equal or better" wildlife habitat in three
years, the property owners can re -apply for CU and LM permits for their dwelling.
V. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
DECLARES the county met its burden of demonstrating:
1. the property owners' removal of vegetation from the subject property and the adjacent
Olivieri property constituted a substantial violation of Condition 6(c) of the 2003 decision
approving a conditional use permit to establish a nonfarm dwelling on the subject
property (CU -02-124, MC -02-17) and Condition 5 of the 2006 decision approving a non-
visible LM site plan review to establish a nonfarm dwelling on the subject property (LM -
06 -13, MC -06-2);
2. the property owners have not demonstrated that their proposed mitigation plan will
provide adequate screening of a 2 -story dwelling on the approved building envelope from
Sisemore Road to make it "non-visible" under their previous LM approval;
3. the property owners have not demonstrated that their proposed mitigation plan will
provide "equal or better" wildlife habitat justifying approval of a dwelling on the
approved building envelope and more than 300 feet from Sisemore Road; and therefore
4. the previously issued CU permit (CU -02-124, MC -02-17) and LM permits (LM -06-13,
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MC -06-2) ARE REVOKED.
Dated this c2/r-day of November, 2007.
Mailed this
6 day of November, 2007.
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.
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