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HomeMy WebLinkAboutDecision - AcetiDECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER DECISION ON RECONSIDERATION FILE NUMBER: APPLICANT/ OWNER: REQUEST: RC 07-3 (MC -07-5) Anthony Aceti 21235 Tumalo Road Bend, Oregon 97701 /C FEB 2008 j y D SCNUTES 6�Zd/ r `1 3456 _,\ COUNTY The applicant requests reconsideration of the Hearings Officer's decision to approve a modification of a conditional use permit STAFF REVIEWER: Paul Blikstad, Senior Planner DATE OF ORIGINAL DECISION: December 5, 2007 DATE OF RECONSIDERATION REQUEST: December 17, 2007 DEADLINE FOR PUBLIC COMMENT ON RECONSIDERATION REQUEST: January 14, 2008 I. APPLICABLE STANDARDS AND CRITERIA: Title 22, the Deschutes County Land Use Procedures Ordinance. -Chapter 22.30 Reconsideration II. BASIC FINDINGS: A. LOCATION: The subject property has an assigned address of 21235 Tumalo Road, Bend, and is identified on County Assessor's map 16-12-26C as tax lot 201. B. ZONING: The subject property is zoned Exclusive Farm Use — Tumalo/ Redmond/Bend subzone (EFU-TRB). It is also within the Landscape Management (LM) combining zone. The property is designated agriculture and landscape management by the Deschutes County Comprehensive Plan. C. DESCRIPTION OF EXISTING USES ON THE PROPERTY: The applicant operates the Hay Depot from the site. The Hay Depot is a regional hay broker, baler, and specialty equipment developer. At the subject property, the applicant has developed a customized hay squeezer operation that packages hay in containers for foreign markets. Hay is also stored on the site for clients, either as a precursor to transport to other locations, or as a holding area for small scale farmers in the region. The business includes off-site activities, such as harvesting and baling hay in the field. R 07-3 (MC 07-5) Hearings Officer Decision (1/31/2008) Page 1 of 8 III. REQUEST FOR RECONSIDERATION Background: As stated above, the applicant requests reconsideration of the hearings officer's decision. According to the applicant, the December 5, 2007 decision is flawed in several respects and, consequently, the December 5, 2007 decision must be modified. In general, the applicant objects to the decisional format, arguing that he cannot tell from the decision what evidence was considered and relied upon because the decision does not include a chronology of the case and an exhibits list. The applicant also wishes to clarify that the agricultural activity on the property includes pasture, hay and field crops, and that the commercial activity is intended to serve a broader range of agricultural clientele. With respect to the conditions of approval imposed by the hearings officer, the applicant wishes to add a condition to clarify the location of the proposed commercial activity. He also requests that four of the seven conditions be modified: 1. To allow the sale/rental or maintenance of vehicles and equipment designed or modified to facilitate the production, harvesting and marketing of hay, pasture and field crops. The original condition limited vehicle sales to vehicles and equipment relating to the production and harvesting of hay. 2. To allow more than hay to be planted and harvested on the south side of the property. 3. To modify or delete the condition that limits the number of shipping containers that may be placed on the property at any given time, and where on the property those containers can be stored. The applicant asserts that at a minimum 80 shipping containers (as opposed to the 20 allowed in the December 5, 2007 decision) should be permitted. The applicant also requests that he be allowed to store the containers on the north portion of the property in general, rather than be required to maintain the storage containers on a smaller portion of the northern portion. 4. To delete a condition of approval requiring the installation of a fence along the property's frontage with Highway 97. IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW A. DCC 22.30.020 Procedure for Reconsideration provides: "A. A request for reconsideration shall be filed with the Planning Director within 10 days of the date the decision was mailed. The request shall identify the alleged error in the Hearings Officer's decision and shall specify how the applicant would be adversely affected if the alleged error were to remain uncorrected. "B. Upon receipt of a request for reconsideration, the Planning Director shall forward the request for reconsideration to the Hearings Officer and notify the other parties to the proceeding of the request and allow for a 10 -day comment period on the request. At the end of the comment period, the Hearings Officer R 07-3 (MC 07-5) Hearings Officer Decision on Reconsideration (1/31/2008) Page 2 of 8 shall determine whether the request for reconsideration has merit." FINDING: The Hearings Officer's decision was rendered on December 5, 2007, and was mailed to the parties no later than December 7, 2007. The request for reconsideration was filed with Deschutes County on December 17, 2007, within 10 days of the date the Hearings Officer's decision was mailed to the parties. The request for reconsideration sets out the errors the applicant believes was made in the decision, and explains why the applicant believes he will be adversely affected if the error is not corrected. DCC 22.30.020(A) is met. Notice of the request for reconsideration was mailed to the parties to the decision, and parties were given until January 14, 2008 to comment on the request for reconsideration. No comments were received within that time period. DCC 22.30.020(B) is satisfied. B. DCC 22.30.010(B) permits reconsideration of a decision where "an alleged error substantially affects the rights of the applicant:" 1. Correction of an error in a condition established by the Hearings Officer where the condition is not supported by the record or is not supported by law; FINDING: As noted above, the applicant requests that several conditions of approval be revised. They are addressed as follows: a. Modification of Condition 1 to clarify the location of the commercial activity in conjunction with farm use. The applicant proposes the following condition: "Applicant is allowed to conduct commercial activity in conjunction with agriculture within the area of the parcel that is located north of the overpass right-of-way and bounded by the on/off ramps of Tumalo Road." The hearings officer imposed a condition of approval permitting commercial activity in conjunction with farm use in the area depicted on the applicant's site plan (Condition No. 1.) However, because the applicant revised his application, it may be that there is some confusion regarding the location of the permitted activity. Therefore, Condition No. 1 is revised as follows: "1. The application is approved as revised by the applicant, subject to the conditions and modifications adopted in this decision. The applicant shall be permitted to conduct his commercial activities on the northern portion of the site, within the building and development setbacks provided by the code. Structures and activities shall be generally located as depicted on the applicant's revised site plan. Any changes to the proposal must be presented to County Planning for review and approval." b. Modification of Condition 2 to allow sales/rental/maintenance of vehicles and equipment modified to serve the general agricultural market. In his initial application, and in subsequent submittals, the applicant requested approval to sell vehicles and equipment that had been modified to serve his clientele. While he and his supporters testified for a general need for an agricultural sales/rental/repair yard, I did not understand Mr. Aceti to request more than an expanded permit for hay related vehicles and equipment. Accordingly, in the December 5, 2007 decision, I noted that the applicant had been granted permission to do so in a prior R 07-3 (MC 07-5) Hearings Officer Decision on Reconsideration (1/31/2008) Page 3 of 8 decision, concluding that that prior permit was sufficient to accommodate Mr. Aceti's expanded proposal. However, I now understand Mr. Aceti to request a far greater range of products to be sold, rented and/or maintained on the site. I understood that the applicant proposed to sell/rent farm vehicles and equipment from the site. I did not understand from his proposal that he intended to "maintain" the vehicles and equipment on the site, and the applicant has not identified evidence that supports his assertion that maintenance was part of his proposal.' Because maintenance was not requested, I do not address it as part of this modification. With respect to the applicant's request to expand his operations to allow more than hay -related commercial activities, this condition of approval provides the necessary limited scope to assure that the commercial uses proposed by the applicant fall within the purview of "commercial uses in conjunction with farm use." As I noted in my reference to LUBA's decision in City of Sandy v. Clackamas County, 28 Or LUBA 316 (1994), retail sales of vehicles and equipment that serve a larger market are not permitted, while sales that are tailored to a particular agricultural sector may be permitted if properly conditioned. Here, I conclude that the evidence supports the approval of vehicle and equipment sales and rentals if the inventory is tailored to a specific agricultural market --the hay market. Condition 2 assures that the use is so limited. I considered Mr. Aceti's request to expand the potential agricultural market, but concluded that I could not allow such an expansion in such a way as to avoid impermissibly expanding the market beyond an agricultural niche. The condition I adopted is supported by law and fact. A modification to the condition is not warranted. c. Modification of Condition 4 to allow a range of cultivated crops and farm uses on the southern portion of the property. The applicant argues that the southern portion of the property is suitable for a range of agricultural crops, and objects to conditions of approval that limit the range of crops that could be planted. He proposes the following modified condition: "The 8.8 -acre portion of the subject property Tying south of the Highway 97 overpass right-of-way shall be cultivated for hay, pasture or field crops. The agricultural products shall be stored, processed, or sold on-site. The applicant's southern field (8.8 acres) is permitted to lie fallow for no more than one year in any four-year period, unless a longer time period supports good husbandry." The applicant is correct that a wide variety of farm activities can occur on the southern portion of the property. This condition was intended to link the commercial uses of the property with the farm uses that are also occurring on the site. In that respect, if the applicant seeks to operate a commercial activity in conjunction with his hay production, the crop that is grown on the property is limited to hay. Here, the evidence showed that while the southern portion of the property had been cultivated for a number of crops, and used as pasture for sheep and cattle, the primary farm crop is and has been hay, and the commercial activities on the property are related to that crop. I also agree with the applicant that the 1997 CUP permitted the sales of hay and field crops. 1 In this instance, I understand "maintain" to include equipment repair. There is no dispute that the applicant has intended to retain an inventory of storage containers on the property, and maintain his own equipment on the site. R 07-3 (MC 07-5) Hearings Officer Decision on Reconsideration (1/31/2008) Page 4 of 8 I do not agree with the applicant regarding the acreage included in the southern portion of the property. Exhibit 42, which is appended to the applicant's request for reconsideration, includes a map of the subject property. The map depicts the Highway 97 overpass (identified as Deschutes Market Road on the map), and sets out the component acreage for portions of the property. Exhibit 42 provides substantial evidence to support a finding that the southern portion of the property includes only 7.28 acres. However, because the size of the southern portion of the property is not critical to its description, I choose to omit it from the revised condition. Accordingly, Condition No. 4 is modified to read as follows: "The portion of the subject property lying south of the Highway 97 overpass right-of-way shall be cultivated for hay, pasture or field crops. The agricultural products shall be stored, processed, or sold on-site. The applicant's southern field is permitted to lie fallow for no more than one year in any four-year period, unless a longer time period supports good husbandry." d. Modification of Condition 5 to increase the number of shipping containers that may be placed on the property, and where those containers may be placed. The applicant objects to the imposition of a numerical limit on the number of containers that can be stored on the site at any one time. According to the applicant, such a numerical limit is not supported by the record, and is not consistent with the applicant's need to have a large enough inventory to accommodate the fluctuating market. If a numerical limit is imposed, the applicant asserts that the record supports a finding that 90 storage containers have been placed on the property and that at least 80 storage containers should be permitted under this modification request. In addition, Mr. Aceti requests that the condition should be clarified to show the entire northern portion of the site can be used to accommodate the storage containers. Conditions of approval may be imposed to assure that applicable approval standards are met. DCC 18.128.015(C). Those standards include a demonstration that the site is suitable for the proposed use and the use is compatible with existing and projected uses on surrounding areas. I concluded that it is necessary to limit the number of storage container units to assure the use is limited to the storage of hay, and that the northern portion of the site, as approved, is large enough to accommodate the storage containers if they are single -stacked. However, I concede that the record does not clearly support a condition of approval limiting the number of units to no more than 20. With this concession, the hearings official agrees with the applicant that it is appropriate to modify the condition to allow up to 80 storage containers to be located on the property at one time. With respect to the location of those containers on the site, the hearings officer understood from the record that the applicant seeks to store the containers in rows on the northern portion of the property, east and south of the existing structure, and approximately 100 feet west of Highway 97.2 Therefore, Condition 5 is modified as follows: 2 The applicant's request for reconsideration included a discussion of "single stacking," "double -stacking" and "triple stacking" of storage containers. The applicant argues that he has never proposed to "double stack" the containers, and that the condition of approval that prohibits stacking is not necessary. The . hearings officer accepts that the shipping industry, like most other businesses, includes terms of art. The condition of approval is intended to prohibit anything other than single -stacking, and should be so read. R 07-3 (MC 07-5) Hearings Officer Decision on Reconsideration (1/31/2008) Page 5 of 8 "5. The applicant is permitted to place no more than 80 storage containers on the property at any one time. The storage containers shall be located on the northern portion of the property, east and south of the existing bard. No storage containers shall be located west of the existing barn or within 100 feet of a road right-of-way. The storage containers shall be single -stacked only." e. Deletion of Condition No. 6, which requires the installation of a sight obscuring fence. During the initial evidentiary proceedings, the applicant objected to staffs recommendation that a fence be located along the Highway 97 frontage. He argued that a fence is expensive, undermines his desire to provide better exposure for his business, and is not needed to assure compatibility with the neighborhood. He noted that there are other industrial, commercial and agricultural activities in the area that have similar visual impacts, and argued that his business is no more or less visually obtrusive than those other activities. In the December 5, 2007 decision, I considered those arguments, but concluded that a condition of approval requiring the installation of a fence was appropriate. In his reconsideration request, Mr. Aceti reiterates his objection to the fence requirement, arguing that there is no legal or evidentiary basis to support a condition that requires the installation of a fence. He notes that the proposal is not subject to the landscape management standards, which apply only to structures. He also argues that the fence places an undue financial burden on an agricultural business, will be difficult to maintain, and conflicts with prior conditions of approval that permitted the use of the northeastern portion of the site as a sales display area. He argues that a fence will only attract vandals and that his activities will be adequately screened by existing vegetation and will be attractive because the storage containers that will be placed on the eastern portion of the site will be painted neutral colors. The hearings officer disagrees with the applicant that Condition No. 6 is unsupported in fact or law. DCC 18.128.015(1)(A)(1) requires a showing that the "site under consideration [is] suitable for the proposed use based on * * * the [s]ite, design and character of the use." I found that if the site is designed to downplay its location on a major access corridor, the site is large enough to accommodate the vehicles, equipment and storage units associated with the use and is generally located within the center of the applicant's market area. The evidence showed that one option to minimize the view of the use from the Highway 97 corridor --sight obscuring vegetation—is not particularly feasible or effective. Therefore, I chose the other option --a fence that would minimize the view of rows of container storage units from the road. The applicant's assertions that the fence is an expensive burden, and will attract vandals are acknowledged. However, the hearings officer concludes that overall, the fence will provide a degree of protection for the storage containers, which themselves are often subject to graffiti vandalism, and will screen the use from Highway 97. In addition, the condition does not undermine the 1997 CUP approval, which allowed the use of the northeastern portion of the site to be used as an equipment display area. That area is visible from the off -ramp from Highway 97, and does not interfere with the view of the site from the overpass. Condition No. 6 is based in law, and supported by substantial evidence. Deletion is not warranted. In conclusion, the hearings officer finds that some of the applicant's objections to the conditions of approval have merit. The conditions of approval are modified accordingly. R 07-3 (MC 07-5) Hearings Officer Decision on Reconsideration (1/31/2008) Page 6 of 8 2. "Correction of errors that are technical or clerical in nature." FINDING: The applicant identifies specific findings that he believes should be revised or deleted. The applicant also argues that the decision should clearly identify each piece of evidence relied upon to reach the conclusion that the approval standards had been satisfied and support the conditions imposed. The standards for findings are set out in statute and case law. ORS 215.416(9) provides: "Approval or denial of a permit * * * shall be based upon and accompanied by a brief statement that explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explains the justification for the decision based on the criteria, standards and facts set forth." Findings are adequate and supported by substantial evidence when the decision maker assembles evidence, identifies the relevant code standard, sets out the evidence found to be persuasive and explains how that evidence led to the decision. Mountain Gate Homeowners v. Washington County, 34 Or LUBA 169 (1998). Here, each applicable criterion was followed by findings summarizing the applicant's request, identifying the facts relied upon, and explaining why I believed that the standard had been met or could be met through the imposition of conditions. This aspect of the request for reconsideration is well founded if the applicant demonstrates that the error substantially affected the applicant's rights. The applicant's objections to the findings include disagreements with the inferences the hearings officer drew from the record, as well as recommendations to clarify affirmative findings. The hearings officer has considered these objections, and concludes that none of the alleged errors substantially affected the applicant's rights. Therefore, the applicant's request to reconsider the hearings officer's findings and add an exhibits list and chronology of events is denied. V. DECISION The December 5, 2007 decision approving MC 07-5, with conditions, is modified as follows: 1. The application is approved as revised by the applicant, subject to the conditions and modifications adopted in this decision. The applicant shall be permitted to conduct his commercial activities on the northern portion of the site, within the building and development setbacks provided by the code. Structures and activities shall be generally located as depicted on the applicant's revised site plan. Any changes to the proposal must be presented to County Planning for review and approval. 2. This application is to modify existing uses of the property. It does not permit the storage of container units or the sales of agricultural vehicles and equipment independent of the hay cultivation, storage and processing occurring on the property. Only vehicles and equipment that have been modified to facilitate hay production and harvesting may be sold/rented/leased from the property. Fabrication of the modified equipment must be done off-site. 3. Operating hours for the sales/rental/lease of vehicles and equipment is limited to the following hours seven days a week: April through September, 6:00 a.m. to 9:00 p.m., October through March, 7 a.m. to 5:00 p.m. R 07-3 (MC 07-5) Hearings Officer Decision on Reconsideration (1/31/2008) Page 7 of 8 4. The portion of the subject property lying south of the Highway 97 overpass right-of-way shall be cultivated for hay, pasture or field crops. The agricultural products shall be stored, processed, or sold on-site. The applicant's southern field is permitted to lie fallow for no more than one year in any four-year period, unless a longer time period supports good husbandry. 5. The applicant is permitted to place no more than 80 storage containers on the property at any one time. The storage containers shall be located on the northern portion of the property, east and south of the existing bard. No storage containers shall be located west of the existing barn or within 100 feet of a road right-of-way. The storage containers shall be single -stacked only. 6. The applicant shall install a 6 -foot tall sight obscuring fence along Highway 97, from the south edge of Highway 97 off -ramp to Tumalo Road to the north edge of the Tumalo Road right- of-way. The fence shall be located outside of the clear vision area. 7. All other conditions of approval set out in the 1997 CUP continue to apply. Except as modified above, all other provisions of the December 5, 2007 decision are retained. Dated this 31st day of January, 2008. Mailed this 4 day ofMrj, 2008. A Corcoran Briggs, Hearings Officer THIS DECISION BECOMES FINAL IF NOT APPEALED WITHIN 12 DAYS OF THE DATE OF THIS DECISION. DCC 22.30.020(E). R 07-3 (MC 07-5) Hearings Officer Decision on Reconsideration (1/31/2008) Page 8 of 8 DECISION OF THE DESCHUTES COUNTY HEARINGS 0 FILE NUMBER: MC -07-5 APPLICANT/ Anthony Aceti PROPERTY OWNER: 21235 Tumalo Road Bend, OR 97701 REQUEST: DEC 2007 MAILED �:. DESCHUTES COUNTY An application for a Modification of Con. ow sales and rentals of containers and forklifts as accessories to farm use, and to expand a container staging and loading area, as part of commercial activities in conjunction with farm use, originally approved under file nos. CU-97-72/SP- 97-49, as also modified under file no. MC -99-1, on a 20 - acre parcel in an Exclusive Farm Use zone. STAFF CONTACT: Paul Blikstad, Senior Planner HEARING HELD: September 18, 2007 RECORD CLOSED: October 29, 2007 DECISION ISSUED: December 5, 2007 L STANDARDS AND APPLICABLE CRITERIA: Title 18, the Deschutes County Zoning Ordinance, of the Deschutes County Code. Chapter 18.04, Title, Purpose and Definitions Definition — Farm use. Chapter 18.16, Exclusive Farm Use zone 18.16.030, Conditional uses permitted — High value and nonhigh value farmland 18.16.040, Limitations on conditional uses 18.16.070, Yards II. BASIC FINDINGS: A. LOCATION: The subject property has an assigned address of 21235 Tumalo Road, Bend, and is identified on County Assessor's map 16-12-26C as tax lot 201. B. ZONING: The subject property is zoned Exclusive Farm Use — Tumalo/ Redmond/Bend subzone (EFU-TRB). It is also within the Landscape Management (LM) combining zone. The property is designated agriculture and landscape management by the Deschutes County Comprehensive Plan. C. DESCRIPTION OF EXISTING USES ON THE PROPERTY: The applicant operates the Hay Depot from the site. The Hay Depot is a regional hay broker, baler, and specialty equipment developer. At the subject property, the applicant has developed a customized hay squeezer operation that packages hay in containers for foreign markets. Hay is also stored on the site for clients, either as a precursor to transport to other locations, or as a holding area for small scale farmers in the region. The business includes off-site activities, such as harvesting and baling hay in the field. D. PROPOSAL: In order to understand the scope of the applicant's current request, it is useful to provide some history of prior land use actions related to the site. This application is the latest in a series of land use applications submitted by the applicant to either legalize uses that were found to violate County zoning and development regulations, or to clarify the scope of the uses allowed under the code pursuant to land use permits issued for uses on the property. At the time the applicant acquired the subject property, the property was bounded on the north by Tumalo Road, and on the east by Highway 97. The 23 - acre parcel was planted in alfalfa and hay, and a portion of the property was used for hay storage for hay harvested on site and at other locations within Deschutes County and in neighboring counties. The applicant's hay and equipment sales and storage yard was first permitted in a decision issued by the Deschutes County Hearings Officer (hearings officer) in CU-97-72/SP-97-40)(the 1997 CUP). The 1997 CUP described the permitted uses as: --sales of hay and field crops grown on the subject property and/or on property in adjoining counties; --sales and rental of specialized hay equipment, including hay squeezes and specialized hay trailers designed by the applicant (but fabricated elsewhere);' and --storage and display for sale of hay and specialized hay equipment. (1997 CUP decision, page 16). The 1997 CUP permitted the applicant: (1) to improve the northwest portion of the property for use as a hay storage and processing facility within a 20,000 square foot structure; (2) use graveled roads and parking areas located near by storage structure for parking by employees and customers; and (3) install a 40 foot by 100 foot "hay and equipment storage and display area" in the northeastern portion of the property. The 1997 CUP also imposed conditions of approval setting out hours of operation, limiting the location of the proposed uses to the areas depicted on the approved site plan and requiring compliance with building, septic and fire codes. In 1999, the 1997 CUP was modified to allow the applicant to use a specially crafted hay squeeze that could bale hay into containers for overseas shipments. The 1999 modification also permitted the applicant to operate the squeeze 24 1 It is not entirely clear whether the applicant seeks to clarify the types of vehicles and equipment that were allowed to be sold or rented from the site, or whether the applicant seeks to expand the inventory to include a broader range of products that can be sold to more than the agricultural market. To the extent it is the latter, state statutes and county code clearly prohibit the establishment of "commercial uses" that are unrelated to the agricultural uses occurring on the property. MC 07-5 Aceti Page 2 of 13 Hearings Officer Decision hours a day/seven days a week, so long as the operations occurred within the 20,000 square foot structure. Activities on the site also changed after 1998-1999, when the County and ODOT improved the Tumalo Road/Highway 97 intersection with an overpass and on/off ramps. The new intersection bisected the property into a roughly four -acre north parcel and a 16 -acre south parcel. Approximately three acres of the property were included in the rights-of-way for Tumalo Road and the Highway 97 off -ramp to Tumalo Road. After 1999, the applicant could access the two portions of the subject property via a 17 -foot wide underpass constructed beneath Tumalo Roador via an access drive located west of the ramp that elevates Tumalo Road over Highway 97. According to the applicant, road construction introduced noxious weeds onto his property and made it difficult to efficiently irrigate the north portion. The applicant unsuccessfully sought to change the zoning of his property to reflect its diminished value as agricultural lands. Those efforts have not been successful. In 2003, the applicant was cited for selling agricultural items from the property (e.g., Christmas trees) without a permit. The applicant applied for a permit for those uses, but it was denied. The applicant is proposing an amendment to a 1997 conditional use approval (File Nos. CU-97-72/SP-97-49) for commercial activities in conjunction with farm use. This amendment involves the expansion of the hay storage and sales business to include specialty hay storage unit rental and sales, and the sale/lease/rental of heavy equipment that has been modified to better suit hay planting, harvesting and storage. This application requests a modification to allow uses related to the Hay Depot business on a larger portion of the north part of the property. The applicant has submitted a burden of proof statement, a site plan drawing, and color photographs as part of the application. E. SITE DESCRIPTION: The Assessor's records indicate the subject property is 20.26 acres in size. The property is developed with a hay storage and processing building, gravel parking areas, driveways, as well as irrigated areas that are not in current farm use. The property is accessed from a driveway off of Tumalo Road. There appear to be large metal containers on the property stored adjacent to the storage/processing building. F. PUBLIC AGENCY COMMENTS: The Planning Division sent notice of the land use applications to several public agencies. The responses are summarized in the September 6, 2007 staff report and are not reiterated here. To the extent those comments pertain to applicable approval criteria, they are addressed in the findings. G. PUBLIC COMMENTS: The Planning Division sent notice of the proposed land use application and public hearing to all property owners within 750 feet of the subject property. At the hearing, Mr. Aceti and several colleagues and clients testified on his behalf. MC 07-5 Aceti Page 3 of 13 Hearings Officer Decision H. REVIEW PERIOD: This application was accepted and deemed complete on July 30, 2007. In a letter dated September 10, 2007, the applicant waived his right to a decision within 150 days, as allowed by statute and county code. I. LOT OF RECORD: The subject property was recognized as a legal lot of record pursuant to issuance of development permits for the property. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW: A. Preliminary Matter Immediately prior to the hearing, and at the hearing, the applicant modified his application to request "flexibility" in the layout of the northern portion of the property identified as the area that will accommodate the commercial activities, and to allow the applicant to place the container units along the applicant's Highway 97 frontage. The applicant also requested some flexibility in the number and types of vehicles and equipment that could be sold from the site. Staff objected to the proposed amendments to the application, arguing that modifications to an application after the application is deemed complete is unfair to the public (who are not placed on notice of the change), and to staff, who do not have an adequate opportunity to evaluate the amendments. I conclude that there is nothing in state law or county code that prohibits the submittal of amendments to a pending application. In fact, DCC 22.20.055(A) expressly permit it. As a side note, to the extent there is confusion between the permissive provisions of DCC 22.20.055(A) and (B), it is fairly clear from the context that DCC 22.20.055(B) pertains to modifications of approved applications rather than to pending applications. Accordingly I conclude that I may review the application as amended by the applicant prior to the close of the record. B. Chapter 18.16, Exclusive Farm Use (EFU) zone. 1. Section 18.16.030, Conditional uses permitted — High value and nonhiqh value farmland. H. Commercial activities that are in conjunction with farm use, but not including the processing of farm crops as described in DCC 18.16.025. Farm Use is defined under section 18.04.030, Definitions, as follows: "Farm use" means the current employment of the land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or * * * any other agricultural or horticultural use or animal husbandry or any combination thereof. "Farm use" includes the preparation, storage and disposal by marketing or otherwise of the products or by-products raised on such land for human or animal use. * * * "Farm use" includes on-site construction and maintenance of equipment and facilities used for the activities described above. * * * Current MC 07-5 Aceti Page 4 of 13 Hearings Officer Decision employment of the land for farm use also includes those uses listed under ORS 215.203(2)(b).2 FINDING: As noted above, the 1997 CUP approved the following commercial activities in conjunction with farm uses on the site: 1. Sales of hay and field crops grown on the subject property and/or property in adjoining counties. Sales and rental of specialized hay equipment, including hay squeezes and specialized hay trailers designed by the applicant. 3. Storage and display for sale of hay and specialized hay equipment. The 1999 modification (MC -99-1) added "processing" to "Sales of hay and field crops" to allow the applicant to install and operate the specialized hay squeeze. Additionally, the 1999 modification added to the conditions of approval to allow " "* * * The processing of the hay and field crops grown on the subject property or on property in adjoining counties involving hay squeezing and hay pressing shall be allowed 24 hours per day, 7 days a week. All hay squeezing and hay processing operations shall be conducted indoors." In the 1997 CUP decision, the hearings officer adopted the following findings: "The phrase "commercial activity that is in conjunction with farm use" is not defined in Title 18, ORS Chapter 215 or in the Land Conservation and Development Commission's (LCDC's) implementing administrative rules in Oregon Administrative Rules (OAR) 660- 33. However, the Hearings Officer finds this phrase has been interpreted by the Land Use Board of Appeals (LUBA). In City of Sandy v. Clackamas County, 28 Or LUBA 316 (1994), LUBA held this phrase must be interpreted in the context of the exclusive farm use statutory scheme which favors preservation of agricultural land for agricultural purposes and strictly limits nonfarm uses. LUBA held the phrase cannot be interpreted to allow uses that are not authorized by statutory EFU zoning provisions in ORS Chapter 215. The Hearings Officer finds LUBA's holding in the City of Sandy case requires [an analysis of] each of the applicant's proposed uses to determine whether it constitutes a use permitted in the EFU zone.... With respect to the other uses proposed by the applicant — sales of hay and field crops, and sales, rental and storage of farm equipment — the Hearings Officer finds these activities clearly are "commercial" in nature. The remaining question is whether they are commercial activity that is "in conjunction with farm use." In interpreting this phrase in the City of Sandy case, LUBA noted that in previous cases, the Oregon Supreme Court, the Court of Appeals and LCDC held, respectively, that a winery, a hop warehouse and a farm implement and irrigation equipment dealership qualified as a commercial activities "in conjunction with farm use." LUBA concluded that these cases "stand for the relatively straightforward proposition that a commercial activity in conjunction with farm 2 ORS 215.203(2)(b) sets out the statutory definition of "farm use." For the most part, the county definition parallels the statutory definition. Under ORS 215.203(2)(b)(B), "farm use" also includes "[I]and lying fallow for one year as a normal and regular requirement of good husbandry." MC 07-5 Aceti Page 5 of 13 Hearings Officer Decision use must be either exclusively or primarily a customer or supplier of farm uses." 28 Or LUBA at 321 (Emphasis added.) Turning to the case before it, LUBA held the applicant's proposal to sell trucks, as well as to operate a grocery store, gas station and mail box/fax/UPS service, did not qualify as commercial activities in conjunction with farm use because they lacked a relationship with "the essential practice of agriculture"— i.e., there was no proof these products and services would be used primarily by farmers or could not be obtained on nearby commercial -zoned properties." I agree with staff that City of Sandy provides the pertinent analysis and that each of the proposed uses need to be independently evaluated to determine if they qualify as "commercial activities in conjunction with farm use." Farm Use of the Property Staff observed that there is no crop, grass or pasture on the property, and there is no evidence that the Swalley Irrigation District supplied water to the property in 2007.3 The applicant concedes that the property is not currently in farm use, but argues that it has been left fallow for one year. In the alternative, the applicant argues that his property is no longer suitable for agricultural uses, and rural commercial uses should be allowed. The hearings officer agrees with the applicant that land lying fallow for one year can, in some cases, be a "farm use." The evidence shows that the property has been planted in hay, and that the applicant retains water rights that will allow him to again use the southern portion of the property for hay production. A condition of approval can be imposed to require the applicant to plant the south portion of the property in hay, and to require that the hay harvested from the site be processed for shipment at the Hay Depot. Sales/Rentals/Leases of Equipment and Vehicles In his initial application and in his oral testimony at the September 18, 2007 hearing, the applicant explained that he would like the flexibility to sell a variety of vehicles and equipment from the site. His witnesses testified that they would consider buying trucks and construction equipment (such as backhoes, cats, and forklifts) from the applicant for use on their agricultural properties. Staff concluded that these activities exceeded the scope of "commercial activity that is in conjunction with farm use." In post -hearing submittals, the applicant clarified that he intends to sell/rent/lease vehicles and equipment that have been modified to suit the special needs of hay farming. He testified that that he has developed specialized equipment that can be installed on trucks that address some of the unique hazards in ranching communities (such as reinforced front grilles), and forklifts to make haying easier. He argues that while some of those features can be installed at the clients' properties, it would be easier to have a central location to display those products. 3 As of the date the application was submitted, the site had 20 acres of water rights. Three of those acres are located north of Tumalo Road. According to information in the record, the water rights for the portion of the property located within the Tumalo Road right-of-way have never been cancelled. The applicant is working with the Swalley Irrigation District to address that issue. The applicant also testified that he has temporarily conveyed his water rights to in -stream uses. MC 07-5 Aceti Page 6 of 13 Hearings Officer Decision The applicant also argues that his location is uniquely suited for commercial activities that serve agricultural customers because it is located on a state highway and a county road, with access for farmers and ranchers who might travel to the property in agricultural vehicles that cannot easily navigate urban streets. He notes that the site, especially the north portion, is not suitable for agricultural activities, as the agricultural soils have been removed to accommodate a stock pond (that was not successful), and the soils used to construct the road bed included noxious weeds that spread to his property. While the hearings officer understands the applicant's arguments regarding the suitability of the site for agricultural activities, those arguments are outside the scope of this application. Its suitability is presumed based on its EFU-TRB zoning. The applicant's assertions that he and the county would be better served by rezoning the property is outside the purview of this decision. Turning to the applicant's assertions that the proposed activities fall within the scope of "commercial activities in conjunction with farm use," as noted in footnote 2, it is not entirely clear how the proposed vehicle and equipment sales differ from the sales/rental permitted under the 1997 CUP. To the extent the applicant does propose new or different vehicle and equipment sales/rentals, leases, those uses are best addressed by the analysis supplied in City of Sandy v. Clackamas County, summarized above. In City of Sandy, LUBA reviewed the relevant case law, concluding that three characteristics define a "commercial activity in conjunction with farm use:" 1. Does the commercial activity enhance the farming enterprises on the property and the local agricultural community? For example, do the commercial activities increase both the intensity and value of agricultural products coming from the same property and from similar properties in the area? 2. Does the agricultural community comprise (exclusively or primarily) the customer base? 3. Are the commercial products essential to the practice of agriculture in the community? The vehicles and equipment described by the applicant enhance farming enterprises on the property and in the local community by providing a range of equipment to suit different farming conditions. The equipment also will make haying easier. Therefore, I conclude that the first factor has been satisfied. The applicant and his witnesses testified that the proposed vehicle and equipment sales would attract a client base from the agricultural community, although the applicant conceded that he hoped to expand that market to include others in the community who might need the vehicles and equipment he may stock. In City of Sandy, LUBA concluded that the applicant's proposal to sell 3/ -ton trucks and horse trailers were not sufficiently linked to agricultural activities in the area. LUBA noted that while the applicant showed that the local agricultural community would provide a market for those products, there was no evidence that those products were so specialized that only the agricultural community would purchase them. However, LUBA MC 07-5 Aceti Page 7 of 13 Hearings Officer Decision "left open the possibility that conditions might be imposed" to make the operation sufficiently like a farm implement and irrigation equipment business that would be a "commercial activity in conjunction with farm use." The facts presented here fall between irrigation equipment and farm implement sales and the general vehicle dealership at issue in City of Sandy. I conclude that if the equipment and vehicle sales/leases/rentals at the Hay Depot are limited to vehicles and equipment that have been modified to serve the applicant's agricultural clients, the proposed equipment and vehicle sales/rentals/leases may be permitted because they are specialized products that are not likely to attract a non-agricultural clientele. The second factor can be satisfied through the imposition of conditions of approval. With respect to the third factor, the applicant testified that his business provides the only large scale hay storage and processing facility in Central Oregon, and that he is one of the few operators specializing in serving the hay sector of the agricultural economy. While that evidence does not demonstrate that the proposed sale/rental/lease of specialized vehicles and equipment are essential to the practice of agriculture in the same way as the hay storage and processing, the hearings officer concludes that, as proposed, the applicant has demonstrated that the proposed vehicle and equipment sales/rentals/leases will help to provide one-stop services to his agricultural clients, and that no other business in the area serves the same niche. Based on this evidence, I conclude that this factor is satisfied as well. Container Storage and Rentals/Sales of Container Units A portion of the applicant's business includes the processing and packaging of hay for transport to markets in western Oregon and overseas. For overseas markets, hay transported to the facility is re -baled into container storage units and then transported by truck to container ships. The containers used by the applicant are very similar to other containers used in the shipping industry, although the applicant explains that his container units have been modified to provide ventilation for hay. The applicant concedes that the modifications do not prevent the containers from being used for the storage and transport of other items, but argues that when they are on his property, they will be limited to the storage of hay and farm implements. While the question is a close one, I conclude that the applicant has demonstrated that a condition of approval can be imposed to limit the number and use of the container units to those necessary to accommodate hay storage. With respect to storage of agricultural equipment, the applicant has not demonstrated that such storage units are needed to augment agricultural activities on the property, or are so unique that they cannot be provided on other sites where storage is permitted outright. Therefore, that aspect of the proposal is not a "commercial activity in conjunction within farm use." In summary, for the most part, if conditioned, the applicant's proposed modifications constitute "commercial activities in conjunction with farm use" and may be permitted. Conditions of approval include: • A requirement that the southern portion of the property be cultivated for hay, and that the area lie fallow no more than one year in any four year period, unless the applicant demonstrates that shorter intervals constitute "good husbandry." MC 07-5 Aceti Page 8 of 13 Hearings Officer Decision • A requirement that only equipment and vehicles that have been modified to accommodate haying activities be sold/rented/leased from the property. • A requirement that no more than 20 container units may be stored on the property at any one time, and that storage be limited to hay only. 2. Section 18.16.040, Limitations on conditional uses. A. Conditional uses permitted by DCC 18.16.030(H) through (DD) may be established subject to applicable provisions in DCC 18.128 and upon a finding by the Planning Director or Hearings Body that the proposed use: 1. Will not force a significant change in accepted farm or forest practices as defined in ORS 215.203(2)(c) on adjacent lands devoted to farm or forest uses; and 2. Will not significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use; and 3. That the actual site on which the use is to be located is the least suitable for the production of farm crops or livestock. FINDING: Abutting uses include the "Funny Farm" to the northeast, a landscape supply business to the north, the Willamette Graystone and Cascade Pumice sites to the east and southeast (across Highway 97), the Seventh Day Adventists school site to the west, and a small 4.15 -acre dry parcel to the south. The only farming in the area is small- scale hobby farming, where individual properties have less than 10 acres of water rights. Based on the testimony and evidence in the record, the proposed modifications, which will involve the parking and moving of forklifts and the storage and moving of the containers, will not change farm use on adjacent lands that are devoted to farm uses or significantly increase the costs of those activities. With respect to DCC 18.16.040(A)(3), the applicant provided evidence that the northern portion of the site is difficult to irrigate, and has been altered by the applicant's attempt to dig a stock pond. Also, the applicant provided evidence that the northern portion of the site has very shallow soils overlaying volcanic rock. The evidence shows that the northern portion of the property has marginal value as an agricultural site, and that the southern portion of the site is much more suitable for crop production. I conclude that the applicant has demonstrated that the proposed activities will be located on the portion of the property that is least suitable for the production of farm crops or livestock. This criterion is satisfied. B. A commercial activity allowed under DCC 18.16.030(H) shall be associated with a farm use occurring on the parcel where the commercial use is proposed. The commercial activity may use, process, store or market farm products produced in Deschutes County or an adjoining county. MC 07-5 Aceti Page 9 of 13 Hearings Officer Decision FINDING: The property currently is not being cultivated or used for pasture. The applicant concedes that the northern portion of the property has not been in farm use for some time, but argues that the south part has been left fallow as part of good stewardship of the land. Land left fallow for one year as part of good husbandry is a farm use. See footnote 2, setting out the pertinent excerpt from ORS 215.203(2)(b). A condition of approval is warranted to require that the southern portion of the property be cultivated for hay. C. Chapter 18.84, Landscape Management Combining Zone FINDING: DCC 18.84 applies to structures proposed to be located within 1/4 mile of identified landscape corridors within Deschutes County. Highway 97 is identified as a landscape corridor, and the subject property lies within 1/4 mile of Highway 97. However, the applicant is not proposing any new structures on the property for the requested use. Therefore, DCC Chapter 18.84 does not apply to the proposal. D. Chapter 18.128, Conditional Use 1. Section 18.128.015, General standards governing conditional uses. * * *(C]onditional uses shall comply with the following standards in addition to the standards of the zone in which the conditional use is located and any other applicable standards of the chapter: A. The site under consideration shall be determined to be suitable for the proposed use based on the following factors: 1. Site, design and operating characteristics of the use; FINDING: The site for the proposed modification to the commercial activity in conjunction with a farm use is a 20.26 -acre parcel developed with a hay storage and processing building. The property is generally level and is accessed from existing driveways off of Tumalo Road and an access road to Highway 97 extending from Tumalo Road. The applicant proposes to use existing driveways for access to the site, and to maintain the existing circulation patterns. Highway 97 abuts the property to the east, but the property has no direct access to the highway. The design of the use will change only in the area added for the containers, equipment display area and truck loading. The applicant proposes to expand the container and loading area on the northern portion of the site to accommodate more hay storage within the containers (and not just in the existing storage building), and to advertise that aspect of the applicant's business. The applicant proposes to stack units on top of one another to take advantage of space on the site, and to provide more visibility of the units from Highway 97 and Tumalo Road. No other design changes for the site are proposed. The operating characteristics for the use are not changing, other than the addition of a container storage area and loading area. The applicant has not indicated any hours of operation changes. The site will be used primarily for the processing, storage and distribution of hay. It is staff's opinion that storage containers already located on the property create a visual blight to the area, along a designated scenic corridor in the County. Staff believes that the site, design and operating characteristics of the proposed use will allow it to be suitable for the use only if the additional container storage and loading areas are MC 07-5 Aceti Page 10 of 13 Hearings Officer Decision buffered from the highway by trees or a sight -obscuring fence. Staff asserts that the required buffering should be trees that are at least 8 feet in height at the time of planting, and be placed between the proposed container location and the highway. The trees should be of a number that help screen the use from view of the highway. Staff believes that an alternative would be to require a sight -obscuring fence that is at least 8 feet high. The applicant disputes staff's assertion that the proposed site design will create visual blight. He notes that other businesses in the vicinity, including the Funny Farm, the rock sales, and other container storage sales businesses already impinge on the viewshed. He argues that even if the proposed storage containers are "blights," the proposed mitigation will not be successful. In the first place, the applicant asserts that the soils in the area proposed for trees is lava rock overlaid by five inches of poor, unirrigated soil. The applicant argues that it is unlikely that he will be able to dig a hole deep enough and large enough to plant the rootballs of eight -foot tall trees, and after they are planted, it is unlikely that the trees will survive. With respect to staff's fencing alternative, the applicant argues that the storage containers will be taller than the fences, especially if they are stacked two -high as proposed. The applicant also argues that the fences will undermine his goal of advertising the location of his business. The applicant testified that he is willing to minimize the visual impact of the storage containers by using only "neutral" colored containers. As staff notes, the site's size and topography is suitable for the proposed uses. The site has no significant features that need to be accommodated or protected. Similarly, the proposed uses are confined to the north portion of the site, the area least suited for crop cultivation or livestock grazing. With respect to buffering, 1 agree with the applicant that it is unlikely that trees will survive if planted as a buffer. However, I disagree with the applicant that it is appropriate to take advantage of the applicant's location to use the stacked storage units as an advertisement for the business. If the business is targeted to a niche market --buyers, sellers and transporters of hay --then it is unlikely that drive-by advertising will be successful. Consequently, because the applicant will be limited to storing hay in container units on the property and to the sales of vehicles and equipment related to hay production, it is appropriate to require a privacy fence along the frontage of Highway 97, both to secure the equipment and vehicles, and to obscure them from passersby. A condition of approval is warranted to ensure that this criterion is satisfied. 2. Adequacy of transportation access to the site; and FINDING: The public roads in the area include: Highway 97 — two lanes both directions; Tumalo Road — improved intersection with highway; Deschutes Market Road — also part of the improved intersection with the highway. These public roads are in good condition. The applicant proposes to use existing access approaches on Tumalo Road. Neither the County Road Department nor the Oregon Department of Transportation has expressed concerns regarding the proposed use of the road or access approaches. This criterion is satisfied. MC 07-5 Aceti Page 11 of 13 Hearings Officer Decision 3. The natural and physical features of the site, including but not limited to, general topography, natural hazards and natural resource values. FINDING: The natural and physical features of the site include the few existing trees and the irrigated land on the south side of the property. The site is generally level and does not appear to have any natural hazards associated with it. The natural resource values include the trees and grass hay farm operation, and the open space that the property at just over 20 acres provides. The southern portion of the property will continue to be cultivated, preserving approximately 16 acres of open space. This criterion is satisfied. B. The proposed use shall be compatible with existing and projected uses on surrounding properties based on the factors listed in (A) above. C. These standards and any other standards of DCC 18.128 may be met by the imposition of conditions calculated to insure that the standard will be met. FINDING: Zoning in the area surrounding the subject property includes: Exclusive Farm Use — Tumalo/Redmond/Bend subzone (EFU-TRB), Multiple Use Agricultural (MUA-10), Rural Residential (RR -10), and Rural Industrial (RI), as well as the Landscape Management (LM) combining zone associated with Highway 97. The area can generally be described as being rural residential and includes hobby farms scattered throughout the area. It also has some commercial and industrial uses such as the Funny Farm, landscape supply business, United Pipe and Supply, Willamette Graystone and Cascade Pumice businesses. The Seventh Day Adventists school site is directly west. Staff believes that there will be little change in the area with respect to existing uses, as there do not appear to be any "vacant" parcels. Based on the testimony and evidence, and as conditioned, I conclude that the existing and projected uses in the area will not be affected by the proposed modification to the site. E. Chapter 18.116, Supplementary Provisions 1. Section 18.116.020, Clear vision areas. A. In all zones, a clear vision area shall be maintained on the corners of all property at the intersection of two streets or a street and a railroad. A clear vision area shall contain no planting, fence, wall, structure, or temporary or permanent obstruction exceeding three and one-half feet in height, measured from the top of the curb or, where not curb exists, from the established street centerline grade, except that trees exceeding this height may be located in this area provided all branches and foliage are removed to a height of eight feet above the grade. FINDING: The applicant is proposing no changes to the existing access to the site. The fence to be installed along Highway 97 must be placed out of the clear vision area. MC 07-5 Aceti Page 12 of 13 Hearings Officer Decision IV. DECISION: For the foregoing reasons, the applicant has demonstrated that the proposed modification has satisfied all applicable approval standards or that the standards can be satisfied through the imposition of conditions of approval. Accordingly, MC 070-5 is approved, subject to the following conditions: 1. This application is approved as submitted. Any changes to the proposal must be presented to County Planning for review and approval. 2. This application is to modify existing uses of the property. It does not permit the storage of container units or the sales of agricultural vehicles and equipment independent of the hay cultivation, storage and processing occurring on the property. Only vehicles and equipment that have been modified to facilitate hay production and harvesting may be sold/rented/leased from the property. Fabrication of the modified equipment must be done off-site. 3. Operating hours for the sales/rental/lease of vehicles and equipment is limited to the following hours seven days a week: April through September, 6:00 a.m. to 9:00 p.m., October through March, 7 a.m. to 5:00 p.m. 4. The portion of the property lying south of the Tumalo Road right-of-way shall be cultivated for hay. The hay shall be stored or processed on site. The applicant is permitted to let the southern field lie fallow no more than one year in any four year period. 5. The applicant is permitted to place no more than 20 storage containers on the property at any one time. The storage containers shall be placed near the storage building. The units may not be stacked. 6. The applicant shall install a 6 -foot tall sight obscuring fence along Highway 97, from the south edge of Highway 97 off -ramp to Tumalo Road to the north edge of the Tumalo Road right-of-way. The fence shall be located outside of the clear vision area. 7. All other conditions of approval set out in the 1997 CUP continue to apply. DATED thisF)h day of December, 2007. MAILED this i 'qday of December, 2007. CA ?) - Anne Corcoran Briggs Hearings Officer THIS DECISION IS FINAL UNLESS APPEALED WITHIN 12 DAYS OF MAILING. MC 07-5 Aceti Hearings Officer Decision Page 13 of 13