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HomeMy WebLinkAboutWhether to Hear Kuhn Appeal Kuhn/Dowell A-07-9 Page 1 of 17 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: A-07-9 APPELLANTS: William and Martha Leigh Kuhn P.O. Box 5996 Bend, Oregon 97708 PROPERTY OWNERS: Jeff and Pat Dowell 10705 N.E. 38th Ave Vancouver, Washington 98686 PROPERTY OWNERS’ ATTORNEY: Robert Lovlien Bryant Lovlien & Jarvis P.O. Box 880 Bend, Oregon 97709 APPELLANTS’ ATTORNEY: Liz Fancher 644 N.W. Broadway Street Bend, Oregon 97701 REQUEST: Appellants appeal from the issuance of a land use compatibility statement and building permit for an interior remodel of an existing dwelling on the subject property located west of Sisemore Road northwest of Bend. STAFF REVIEWER: Will Groves, Senior Planner HEARING DATE: September 24, 2007 RECORD CLOSED: December 12, 2007 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 15 of the Deschutes County Code, Buildings and Construction Kuhn/Dowell A-07-9 Page 2 of 17 1. Chapter 15.04, Buildings and Construction Codes and Regulations * Section 15.04.150, Building or Mobile Home Placement Permit Issuance- Zoning and Subdivision Conformance B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.40, Forest Use Zone (F-2) * Section 18.40.020, Uses Permitted Outright 2. Chapter 18.84, Landscape Management Combining Zone (LM) * Section 18.84.030, Uses Permitted Outright 3. Chapter 18.88, Wildlife Area Combining Zone (WA) * Section 18.88.030, Uses Permitted Outright C. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.04, Introduction and Definitions * Section 22.04.020, Definitions 2. Chapter 22.16, Development Action Procedures * Section 22.16.010, Review of Development Action Applications * Section 22.16.030, Review of Development Action 3. Chapter 22.32, Appeals * Section 22.32.010, Who May Appeal * Section 22.32.015, Filing Appeals * Section 22.32.020, Notice of Appeal * Section 22.32.050, Development Action Appeals D. Oregon Revised Statutes (ORS) 1. ORS Chapter 197, Comprehensive Land Use Planning Coordination * ORS 197.015, Definitions for ORS Chapters 195, 196 and 197 * ORS 197.180, State Agency Planning Responsibilities E. Oregon Administrative Rules (OAR) Chapter 660 1. Division 30, Review and Approval of State Agency Coordination Programs Kuhn/Dowell A-07-9 Page 3 of 17 2. Division 31, State Permit Compliance and Compatibility II. FINDINGS OF FACT: A. Location: The subject property is located at 65595 Sisemore Road, Bend, and is further identified as Tax Lot 100 on Deschutes County Assessor’s Map 16-11-19 and as Parcel 1 of a partition created in 1979 (MP-79-232). B. Zoning and Plan Designation: The subject property is zoned Forest Use (F-2), Landscape Management Combining Zone (LM) because of its proximity to Sisemore Road, and Wildlife Area Combining Zone (WA) because of its location in the Tumalo Deer Winter Range. The subject property is designated Forest on the Deschutes County Comprehensive Plan map. C. Site Description: The subject property is 4.3 acres in size, slopes downward from its eastern boundary on Sisemore Road to the west, and has a vegetative cover of ponderosa pine and juniper trees and native brush and grasses. The property is developed with a single-family dwelling. D. Surrounding Zoning and Land Uses: The subject property is surrounded by land zoned F-2. The abutting parcel on the south (Tax Lot 200 on Assessor’s Map 16-11-19) is a 4.3- acre parcel developed with a single-family dwelling and owned by appellants (the Kuhns). The abutting parcel on the west (Tax Lot 300 on Map 16-11-19) is 34.5-acre common area parcel owned by the Kuhns and the subject property’s owners (the Dowells). E. Procedural History: Because of the lengthy and complex history of the subject property and the adjacent Tax Lots 200 and 300, the Hearings Officer sets forth that history chronologically by year. 1979: The subject property was included in a partition application (MP-79-69) submitted in March 1979 by the Dowells’ and Kuhns’ predecessor John Barton and covering approximately 43 acres of land zoned F-3 that included what is now Tax Lots 100, 200 and 300 on Map 16-11-19. The proposed partition would have created two parcels, one 22 acres in size and one 20 acres in size. The county denied this partition by an administrative decision dated May 9, 1979 on the basis of what was referred to as an "interim agreement" between the county and the Oregon Department of Fish and Wildlife (ODFW) to maintain a 40-acre minimum lot size for parcels developed within the proposed -- but not yet adopted -- Tumalo Deer Winter Range. The record indicates this decision was not appealed. In November 1979 the county adopted PL-15 which included a new WA Zone with a 40- acre minimum lot size except for cluster developments allowed as conditional uses and which permitted smaller residential parcels with large open space parcels. The new WA Zone did not establish maximum dwelling setbacks from roads. On December 11, 1979 Mr. Barton submitted another partition application that again proposed to create two Kuhn/Dowell A-07-9 Page 4 of 17 parcels, one 20 acres in size and one 23.1 acres in size (MP-79-232). This application also was denied because of the 40-acre minimum lot size established in PL-15. The record indicates Mr. Barton then modified the proposed partition to create a cluster development with two 4.3-acre residential parcels and a 34.5-acre common area parcel. This proposed partition was held pending Mr. Barton’s submission of a conditional use permit application for the cluster development. 1980: On May 13, 1980 the county granted conditional use approval for Mr. Barton’s proposed cluster development subject to six conditions, including one requiring Mr. Barton to obtain final partition approval (CU-80-22). Neither the decision’s text nor its conditions referred to any maximum setback from Sisemore Road. On May 13, 1980 the county granted tentative partition plat approval for a three-parcel cluster development (MP-79-232). The final partition plat was approved on November 12, 1980 and filed with the Planning Division. It included a building line on both residential parcels 400 feet west of Sisemore Road and a notation concerning that building line stating “Max. Bldg. Setback 400’ From Sisemore Rd.” However, the record indicates the final partition plat was not recorded with the Deschutes County Clerk until October 5, 2004, long after the Dowells acquired the subject property and constructed the existing dwelling.1 1987: The Kuhns acquired their property – Tax Lot 200 -- on July 22, 1987. On June 19, 1987 the county approved a lot line adjustment requested by the Kuhns (LL-87-23) subject to a condition of approval requiring that prior to issuance of a building permit for a dwelling on the Kuhns’ property, deed restrictions required by the 1980 cluster development conditional use approval be recorded with the Deschutes County Clerk. 1989: The Dowells acquired the subject property – Tax Lot 100 -- through a land sale contract on August 3, 1989. 1992: On February 7, 1992 the Dowells submitted an application for LM site plan approval for a dwelling on the subject property. By a letter dated February 10, 1992, Associate Planner Paul Blikstad advised the Dowells that the conditional use (CU-80-22) and partition (MP-79-232) approvals established a maximum dwelling setback from Sisemore Road of 400 feet, and further stated: “I am sending you a copy of the official partition drawing which established this restriction. Frank Cibelli has submitted a Landscape Management Plan application on your behalf which changed the location of the dwelling site to meet this 400-foot restriction. The intent of this restriction was for preservation and protection of wildlife in the area.” On March 10, 1992 the county granted LM site plan approval with conditions authorizing 1 The record indicates that at the time the final partition plat was approved it was required to be recorded with the Deschutes County Clerk under the provisions of PL-14, an earlier subdivision/partition ordinance. And clearly the county considered the final plat to be effective in spite of the delay in its recording since dwellings on the Dowells’ and Kuhns’ parcels could not have been approved unless the partition parcels were found to lawfully exist. Kuhn/Dowell A-07-9 Page 5 of 17 the Dowells to construct a 1,568-square-foot single-family dwelling on the subject property (LM-92-9). The LM decision stated in the “site description” section: "These [conditional use and partition] approvals established the two parcels for building sites which required a maximum 400' setback from Sisemore Road retaining approximately 33 acres for the protection and preservation of wildlife in the area." However, the conditions of approval did not include or refer to the 400-foot road setback. The Dowells’ LM site plan showed the dwelling setback from Sisemore Road as 744 feet, but had a notation stating: "This drawing is not to scale, the house site will not be more than 400 ft from Sisemore Road." On August 5, 1992, the county adopted amendments to Title 18, the county’s zoning ordinance, to establish in the WA Zone a 300-foot maximum setback for dwellings from roads existing as of the date of the amendment. 1993: On March 21, 1993, the county granted a one-year extension of LM-92-9 to March 21, 1994 (E-92-68). On March 18, 1993 the Dowells submitted an application for a building permit for the previously-approved dwelling on the subject property. 1994: The original building permit for the Dowells’ dwelling was issued on July 22, 1994 (B34821). 1995: Assessor’s data in the record indicate that in February 1995 the Planning Division reviewed building permit B34821 for land use compatibility. The data state the “entire residence” was approved, but that the Dowells would be building “Phase I” of the dwelling which would consist of a 1,000-square-foot structure including a 424-square- foot apartment/guest room and a 576-square-foot garage, and that when the rest of the dwelling was constructed the kitchen in guest room must be removed. 1997: The Dowells’ dwelling received final inspection and approval from the Building Division on February 11, 1997. The record indicates the dwelling was constructed more than 400 feet from Sisemore Road.2 2001: On May 3, 2001, the Dowells requested a county declaratory ruling to determine the approved side yard setbacks for their dwelling (DR-01-5). On September 17, 2001 this Hearings Officer issued a decision declaring that the cluster development approval in CU-80-22 approved side yard setbacks on the subject property less than 100 feet, but did not approve side yard setbacks of not less than 25 feet. The Dowells appealed the Hearings Officer’s decision to the Deschutes County Board of Commissioners (board) (A-01-19). The board agreed to hear the appeal, but because the required transcript of the hearing before the Hearings Officer was not submitted within five days of the hearing before the board, the appeal hearing did not occur. By a letter dated December 12, 2001 the Dowells formally withdrew their appeal. 2 The Dowells’ county Measure 37 claim, discussed in the findings below, states they constructed their dwelling on its existing location “to take advantage of the views.” Kuhn/Dowell A-07-9 Page 6 of 17 In 2001, the Kuhns filed a civil complaint in Deschutes County Circuit Court (Case No. 01CV0233MA) requesting, among other things, a declaratory judgment that the Dowells’ dwelling on the subject property was unlawful because it was built more than 400 feet from Sisemore Road. 2002: On January 21, 2002, the Dowells submitted another county application for a declaratory ruling concerning the required minimum side yard setbacks on the subject property (DR-02-2). On May 7, 2002 this Hearings Officer issued a decision denying this request on the ground that the question presented was the same as that addressed in the Dowells’ previous declaratory ruling application, and therefore the Dowells were precluded from applying for another declaratory ruling. The Dowells appealed that decision to the board (A-02-2). The board agreed to hear the appeal. In a decision dated August 11, 2002, the board found the record for the subject property included at least one site plan map showing a side yard setback of 40 feet, and therefore, the side yard setbacks for the subject property are 40 feet. The board’s decision did not address the setback from Sisemore Road. On August 2, 2002 Deschutes County Circuit Judge A. Michael Adler issued a decision and judgment in the Kuhns’ civil suit against the Dowells, including the following pertinent findings: “(DECLARATORY RELIEF) Plaintiffs have not established that the Defendants’ [Dowells’] property is in violation of the Deschutes County Code as alleged. Plaintiffs [the Kuhns] have not established that the location of the existing building on Defendants’ property is in violation of a requirement that the building be entirely within 400 feet of Sisemore Road measured perpendicularly from the front (east end) property line. * * * On Plaintiffs’ First Claim, judgment is for the Defendants.” The record indicates the circuit court’s decision was not appealed. 2006: In November 2006 the Dowells filed state and county Measure 37 claims asserting their property was devalued by application of the 300-foot maximum road setback in the WA Zone established in August 1992 for the reason that compliance with that setback would prevent them from completing the second phase of their existing dwelling. 2007: On May 4, 2007 the Kuhns filed three county code enforcement complaints alleging, among other things, that the Dowells’ existing dwelling is “illegal” because it was constructed outside the 400-foot maximum setback shown on the partition plat. On May 25, 2007 the Kuhns received an electronic mail message from Dennis Perkins, the Kuhn/Dowell A-07-9 Page 7 of 17 county’s Building Safety Director, stating that the county’s code enforcement staff did not intend to pursue the May 2007 code violation complaints. By an electronic mail message dated May 30, 2007 the Kuhns advised Mr. Perkins that they wanted to appeal the county’s decision not to prosecute these code enforcement complaints. On July 23, 2007 the Dowells applied for a building permit to remodel the existing dwelling on the subject property in order to convert the garage into residential space. The Planning Division signed a Land Use Compliance Statement (LUCS) and a building permit was issued by the Building Division on July 24, 2007 (B65731). By an electronic mail message dated August 3, 2007 to Dennis Perkins and Tom Anderson, the county’s Community Development Department Director, the Kuhns stated they were appealing the county’s issuance of building permit B65731 on the ground that the existing dwelling is illegal, and referring to the Kuhns’ May 4, 2007 code enforcement complaints. By an electronic mail message dated August 3, 2007 the Kuhns advised both the Planning and Building Divisions that they were appealing the county’s issuance of building permit B65731. On August 8, 2007 the Kuhns filed with the Planning Division a land use appeal application form and paid the $250 land use appeal fee. The appeal application stated the appeal was from “B65731 as a land use decision.” On August 9, 2007 the Kuhns filed with the Building Division a “Request for Appeal” form regarding issuance of the building permit. The record indicates that as of the date the record in this matter closed, this appeal was pending. A hearing on the appeal filed with the Planning Division was scheduled for September 24, 2007. The Dowells’ attorney requested that the public hearing be continued because he could not be present at the hearing. The Hearings Officer continued the hearing to November 14, 2007. On October 10, 2007 the Department of Land Conservation and Development (DLCD) issued a Draft Order in Claim No. M131207 recommending approval of the Dowells’ state Measure 37 claim, and recommending that in lieu of compensation, application of the applicable provisions of Goal 5 and OAR 660, Division 23 enacted or adopted after September 20, 1987 should be waived.3 On October 22, 2007, the board signed Order No. 2007-080 approving the Dowells’ county Measure 37 claim, and waiving application of nonexempt county land use regulations back to September 20, 1989. At the November 14, 2007 continued public hearing on the Kuhns appeal, neither the Dowells nor their attorney appeared. The Hearings Officer received testimony, evidence and argument from planning staff and the Kuhns, left the written evidentiary record open through December 5, 2007, and allowed the submission of final argument through December 12, 2007. By an electronic mail message dated November 15, 2007 the Hearings Officer requested that planning staff advise the parties that because Dowells were the applicants for the building permit subject to the Kuhns’ appeal, the Hearings 3 The Hearings Officer understands DLCD did not issue a final Measure 37 waiver order because of the intervening adoption of Measure 49 which modified the scope of Measure 37 waivers. Kuhn/Dowell A-07-9 Page 8 of 17 Officer would allow both the Dowells and the Kuhns to submit final argument. On November 26, 2007 the Kuhns submitted to the county another code enforcement complaint alleging the Dowells’ existing dwelling and the county’s issuance of the building permit to remodel the dwelling violate the Dowells’ LM approval (LM-92-9) because the dwelling is located more than 400 feet from Sisemore Road. The record does not indicate the status of this code enforcement complaint. On December 12, 2007 the Kuhns submitted their final argument in their appeal. By an electronic mail message dated December 13, 2007 to Senior Planner Will Groves, the Kuhns inquired whether Mr. Groves had received a notebook of documents submitted to the county on December 5, 2007. By an electronic mail message dated December 14, 2007, Mr. Groves informed the Kuhns that he had not received the notebook although it had been received by the Community Development Department and inadvertently misplaced. Because the evidentiary record had closed, Mr. Groves suggested that the Kuhns request that the Hearings Officer reopen and extend the written record to receive a duplicate set of the missing documents. By an electronic mail message dated December 14, 2007 Mr. Groves advised the Hearings Officer that the Kuhns may request that the record be reopened. By an electronic mail message dated December 14, 2007 the Hearings Officer requested that planning staff advise the parties that if the Dowells did not receive notice that they were entitled to submit final argument the Hearings Officer would reopen and extend the written record for submission of final argument. By an order dated December 18, 2007, the Hearings Officer reopened and extended the written evidentiary record through January 2, 2008 for the purpose of receiving the Kuhns’ misplaced documents. The record closed on January 2, 2008.4 Because the Hearings Officer has found the county’s issuance of the LUCS and the building permit at issue in this appeal was not a land use decision, I find the provisions of ORS 215.427 establishing a 150-day period for the issuance of a final local land use decision do not apply to these proceedings. F. Proposal: The Kuhns appeal from the county’s issuance of a LUCS and building permit authorizing an interior remodel of the existing dwelling on the subject property (B65731). G. Public/Private Agency Comments: The record indicates the Planning Division did not provide notice of the Kuhns’ appeal to public and private agencies. H. Public Notice and Comments: The Planning Division mailed individual notice of the hearing on the Kuhns’ appeal to the owners of record of all property located within 250 feet of the subject property. In addition, notice of the public hearing was published in the Bend “Bulletin” newspaper. As of the date the record in this matter closed the county had received no letters in response to these notices. 4 The Dowells did not request that the record be extended to allow them to submit final argument. Nevertheless, their attorney submitted a January 29, 2008 letter that is in the nature of final argument. Because this letter was submitted after the record closed the Hearings Officer cannot consider it. Kuhn/Dowell A-07-9 Page 9 of 17 I. Lot of Record: The subject property is a legal lot of record, having been created as Parcel 1 of MP-79-232. III. CONCLUSIONS OF LAW: NATURE OF DECISION APPEALED FINDINGS: The Kuhns’ notice of appeal describes the decision being appealed as “B65731 as a land use decision.” However, as discussed in the Findings of Fact above, the Kuhns submitted to the Building Division a separate “Request for Appeal” of the building permit issuance, and the record indicates that as of the date the record in this matter closed that appeal was pending. Therefore, the Hearings Officer finds the threshold question in this matter is the nature of the decision from which this appeal was filed. The Planning Division’s LUCS for B65731 was issued pursuant to Section 15.04.150 of the county code, which provides: No building permit or mobile home placement permit shall be issued if the parcel of land upon which the building or mobile home is to be erected or located on, or is located on, would be in violation of DCC Title 17, the subdivision title or DCC Title 18, the zoning title. A subdivision shall be deemed to be in violation of the zoning ordinance for the purpose of issuing building permits so long as roads and other improvements remain uncompleted in accordance with the applicable subdivision provisions. This requirement, found in Chapter 15.04 of the county code – “Building and Construction” -- was adopted to comply with the state agency coordination requirements of ORS 197.180 and OAR Chapter 660, Divisions 30 and 31. These requirements are applicable to the state Building Codes Division which, among other things, enforces the state’s building safety and construction codes primarily through local government building departments. The Hearings Officer understands the Building Division does two things before issuing a building permit for a proposed structure. It reviews the construction drawings and plot plans for the proposed structure for compliance with building safety and construction codes. And it implements Section 15.04.150 by asking the Planning Division to review the proposed structure for compliance with both the applicable county land use regulations and any prior land use decisions -- and conditions and limitations therein -- applicable to the structure and/or the property on which it is located. The Building Division’s review under the construction codes clearly is not the same as the Planning Division’s review under the county’s land use regulations. Nevertheless, as discussed in detail in the findings below, the Land Use Board of Appeals (LUBA) and the courts have concluded that under some circumstances the issuance of a building permit can constitute a land use decision which can be appealed as such. The Hearings Officer finds the Kuhns’ appeal before me is from both the Planning Division’s issuance of a LUCS and the Building Division’s issuance of a building permit on the basis of that LUCS, but does not concern compliance with construction codes which will be addressed through the Kuhns’ appeal to the Building Division. Kuhn/Dowell A-07-9 Page 10 of 17 EFFECT OF MEASURE 37 WAIVERS FINDINGS: As discussed in the Findings of Fact above, the Dowells received a county Measure 37 waiver waiving application of non-exempt county land use regulations back to September 29, 1987 when the Dowells acquired the subject property. The county waiver waived the WA Zone provisions adopted in August 1992 that established a 300-foot maximum setback for dwellings from a road. However, it did not affect any land use regulations or decisions effective prior to September 29, 1987. Therefore, the Hearings Officer finds the county’s Measure 37 waiver is not relevant to the underlying issue in this appeal – i.e., whether the Dowells’ existing dwelling is unlawful because it is located more than 400 feet from Sisemore Road. EFFECT OF PRIOR CIRCUIT COURT DECISION FINDINGS: As discussed in the Findings of Fact above, in 2001 the Kuhns filed a civil action against the Dowells in the circuit court alleging, among other things, that the Dowells’ existing dwelling is unlawful because it was constructed more than 400 feet from Sisemore Road, and seeking declaratory and injunctive relief. In 2002 the circuit court issued a decision and entered a judgment against the Kuhns concerning the lawfulness of the location of the Dowells’ dwelling. The court’s decision finds, in pertinent part, that the Kuhns did not prove the Dowells’ dwelling was in violation of any enforceable county land use requirements. In an August 22, 2007 letter, the Kuhns’ argue the county should not give any weight to this decision because it was based on: “deliberate obfuscation on the part of two County staff in civil court testimony, the fact that the July 2000 survey proving this structure is beyond the maximum building line as indicated on the final plat map was derailed because Rick Isham and George Read testified that the plat map was unenforceable because it was never recorded.” Nevertheless, in a letter dated August 14, 2007 the Kuhns acknowledged that no appeal was filed from the circuit court decision. Therefore, the Hearings Officer finds I must determine whether the Kuhns’ appeal on the issue of the lawfulness of the Dowells’ dwelling location is barred by the circuit court’s 2002 judgment under the doctrines of claim and issue preclusion. Claim preclusion bars relitigation of claims that were previously decided or could have been decided in a prior proceeding. Drews v. EBI Companies, 310 Or 134, 140-41, 795 P2d 531 (1990). Issue preclusion bars relitigation of an issue in subsequent proceedings when the issue has been decided by a valid and final determination in a prior proceeding. Nelson v. Emerald People’s Utility Dist., 318 Or 99, 862 P2d 1293 (1993). In Lawrence v. Clackamas County, 40 Or LUBA 507 (2001), LUBA held that claim preclusion generally does not apply to prior land use decisions because they “do not, and are not intended to, have the preclusive and final effects of judicial and other types of proceedings where claim preclusion is applied” (emphasis added) since each new land use application must be decided on its own merits. With respect to issue preclusion, the Oregon Supreme Court in Nelson established a five-prong requirement for barring relitigation because of a prior determination: Kuhn/Dowell A-07-9 Page 11 of 17 • the issue in the two proceedings must be identical; • the issue must have been actually litigated and essential to a final decision on the merits in the prior proceeding; • the party sought to be precluded had a full and fair opportunity to be heard; • the party sought to be precluded was a party or was in privity with a party in the prior proceeding; and • the prior proceeding was the type of proceeding to which a court will give preclusive effect. The record indicates the Kuhns’ civil complaint alleged, among other claims, that the Dowells’ dwelling location is unlawful because it is further than 400 feet from Sisemore Road -- the same issue raised in this appeal. The circuit court’s decision, a copy of which is included in the record, indicates resolution of this issue was essential to a final decision on the merits, and that the issue was litigated to a final judgment on the merits. The Kuhns were the plaintiffs and the Dowells were the defendants in the civil action, and the record indicates both were represented by legal counsel. Therefore, the Hearings Officer finds the Kuhns had a full and fair opportunity to be heard on this issue. Accordingly, I find the first four prongs of the Nelson issue-preclusion test are met here. With respect to the fifth prong – whether the prior proceeding should have preclusive effect -- the Court of Appeals noted in Lawrence v. Clackamas County, 180 Or App 495 (2002), that, as is the case with claim preclusion, prior land use decisions generally do not support issue preclusion because in most instances local land use regulations allow applicants to file successive applications regardless of the outcome of a prior land use decision(s) on the same application(s). However, the prior proceeding in this case was a judicial proceeding involving the same parties to this appeal. The question, then, is whether this circuit court decision was preclusive as to these parties in a subsequent land use proceeding. In Joines v. Linn County, 24 Or LUBA 456 (1993), LUBA was asked to review a county ordinance determining applicants for conditional use permits for several dwellings had a vested right to residential use of the farm/forest-zoned subject parcels. The ordinance was inconsistent with a previous circuit court judgment sought by the county that declared the applicants not to have a vested right to develop certain of these parcels. After reviewing a number of court cases on claim and issue preclusion, LUBA held the county was precluded from making the vested rights determination established in the appealed ordinance because it was not consistent with the circuit court judgment. LUBA found: “There is no dispute that petitioner Monroe, the county and the applicants were all parties to the circuit court case that resulted in a judgment on February 25, 1991. There also is no dispute that the question of whether the 25 applicants have a vested right to residential use of Tax Lot 1006 constitutes a single claim or ‘aggregate of 27 operative facts which compose a single occasion for * * * Kuhn/Dowell A-07-9 Page 12 of 17 relief.’ [Citation omitted.] Therefore, if the vested right claim was actually determined by the circuit court judgment, the county is precluded from making a new determination on that claim, even if it otherwise would have jurisdiction to do so.4 We agree with petitioners that the issue of the applicants’ alleged vested right to residential use of Tax Lot 1006 was raised and argued by the parties by and in response to petitioner Monroe’s motion for partial summary judgment. * * * The circuit court judgment and decree provides, in relevant part: ‘[T]he court finds it has jurisdiction over the 11 parties to the proceeding, and that a justiciable controversy exists between the parties as to whether Tax Lots 1002, 1003 and 1006 are ‘lawful’ parcels as defined by ORS Chapters 92 and 215 as well as whether the use of [Tax Lots] 1002 and 1006 for residential purposes is lawful.’ * * * * * ‘It is ORDERED, ADJUDGED AND DECREED: 1. [Tax Lot 1006 is] a legal parcel as that term is defined in ORS Chapters 92 and 215, and [the applicants] do not have to obtain an after-the-fact approval of a land division as part of any application made to Linn County. 4We decline the county’s invitation to question in this appeal whether the circuit court had jurisdiction to make a vested right determination concerning Tax Lot 1006 in 1991. But see Forman v. Clatsop County, 297 Or 129, 133, 681 P2d 786 (1984) (noting Court of Appeals’ implication that a circuit court might make a vested right determination if the circuit court proceeding was initiated before local government determined vested right was merely dicta). The time for the county to raise that issue was in an appeal of the circuit court’s February 25, 1991 decision. The county may not collaterally attack the circuit court decision in this proceeding.”(Emphasis added.) The Hearings Officer finds the circumstances presented in this appeal are equivalent to those presented in Joines for the reasons set forth in the findings above. Therefore, I find the Kuhns are barred from relitigating the issue of the lawfulness of the Dowells’ dwelling location in this appeal from the county’s issuance of a LUCS and building permit for an interior remodel of the existing dwelling. Nevertheless, because I anticipate this decision will be appealed to the board, I include the following additional findings and conclusions concerning this appeal to assist the board and planning staff in such appeal.5 NATURE OF 2007 LUCS AND BUILDING PERMIT ISSUANCE UNDER COUNTY LAND USE REGULATIONS FINDINGS: Assuming for purposes of discussion that the Kuhns are not barred from relitigating 5 The Hearings Officer notes that in a subsequent case – DLCD v. Benton County, 27 Or LUBA 49, aff’d 128 Or App 637 (1994) – LUBA held that a circuit court declaratory judgment on a vested rights claim did not bar an appellant from appealing a county decision approving residential development of farm- zoned subdivision lots in part because LUBA concluded the circuit court’s decision was a de facto “land use decision” under ORS 197.015, and inasmuch as the courts do not have authority to issue “land use decisions” there could be no final land use decision which LUBA could review unless and until the county rendered a land use decision on that question. However, this decision did not cite the Joines decision or expressly address the question of whether the circuit court decision created claim or issue preclusion. Kuhn/Dowell A-07-9 Page 13 of 17 the issue of the lawfulness of the location of the Dowells’ dwelling, the Hearings Officer finds the remaining question is whether the Kuhns can appeal the 2007 LUCS and building permit issuance under state law and/or the provisions of Title 22 of the Deschutes County Code. The answer to that question turns on the nature of the LUCS and building permit. State Law ORS 197.015 defines “land use decision” in relevant part as follows: (10) “Land use decision”: (a) Includes: (A) A final determination made by a local government or special district that concerns the adoption, amendment or application of: (i) The goals; (ii) A comprehensive plan provision; (iii) A land use regulation; or (iv) A new land use regulation; * * * (b) Does not include a decision of a local government: (A) That is made under land use standards that do not require interpretation or the exercise of policy or legal judgment; (B) That approves or denies a building permit issued under clear and objective land use standards; * * *. A decision approving a building permit is a “land use decision” if it involves the application of the goals, comprehensive plan or a land use regulation and does not qualify as a ministerial decision under ORS 197.015. Sullivan v. City of Ashland, 27 Or LUBA 411 (1994), Tuality Lands Coalition v. Washington County. Where standards governing the issuance of a building permit are sufficiently ambiguous to require interpretation, they are not “clear and objective” standards under ORS 197.015, and the decision to issue a building permit under those standards constitutes a “land use decision.” Tirumali v. City of Portland, 41 Or LUBA 231, aff’d 169 Or App 241, 7 P3d 761 (2000) (concerning interpretation of the term “finished grade”). And even if a mistake is made during application of a clear and objective standard for issuance of a building permit, such mistake does not render the decision a “land use decision.” Id. Kuhn/Dowell A-07-9 Page 14 of 17 As discussed in the Findings of Fact above, at the time the county approved the cluster development and partition plat in 1980 that created the Dowells’ and Kuhns’ parcels, and approved the Dowells’ LM site plan review for the dwelling in March of 1992, there were no goals, comprehensive plan provisions or county land use regulations establishing maximum dwelling setbacks from roads. The 300-foot maximum dwelling setback from roads in the WA Zone was not adopted until August of 1992. For these reasons, the Hearings Officer finds the Planning Division’s issuance of a LUCS and building permit for the Dowells’ original dwelling did not concern the adoption, amendment or application of the statewide planning goals or the county’s comprehensive plan or land use regulations, and therefore did not constitute a “land use decision” as defined in ORS 197.015(10)(a)(A). For the same reasons, I find the 2007 issuance of a LUCS and building permit for an interior remodel of the existing dwelling was not a “land use decision.” The Hearings Officer also finds the county’s issuance of the 2007 LUCS and building permit falls within the types of ministerial decision excluded from the definition of “land use decision” in ORS 197.105(b). The Planning Division’s review of the Dowells’ 2007 building permit application did not involve interpretation or the exercise of policy or legal judgment, and was based on clear and objective standards. That is because the county had approved the cluster development and the partition plat creating the subject property and had approved the LM site plan for the Dowells’ dwelling on that property. None of these previous land use decisions included a condition establishing a maximum road setback for the dwelling. The final partition plat showed a building line 400 feet from Sisemore Road on the subject property. However, the final plat was not recorded until 2001. Although as noted above the county’s land use regulations required recording of the final partition plat at the time it was approved, it appears the county took the position in the civil litigation that the final plat was not enforceable until it was recorded. Nevertheless, even assuming the final plat was enforceable prior to recording, the Planning Division’s 2007 LUCS review was under clear and objective standards. The only question under the partition plat was whether the dwelling was located inside or outside the 400- foot building line. Finally, even if the Planning Division made a mistake concerning the lawful location of the Dowells’ dwelling when reviewing the 2007 building permit application, such a mistake did not render its judgment a “land use decision.” For the foregoing reasons, the Hearings Officer finds the county’s issuance of the 2007 LUCS and building permit was not a “land use decision,” but rather was the type of ministerial decision excluded from the definition of a “land use decision.” County Ordinance Provisions Title 22 of the Deschutes County Code establishes the county’s land use procedures. Section 22.04.020 includes the following relevant definitions: “Development action" means the review of any permit, authorization or determination that the Deschutes County Community Development Department is requested to issue, give or make that either: Kuhn/Dowell A-07-9 Page 15 of 17 A. Involves the application of a County zoning ordinance or the County subdivision and partition ordinance and is not a land use action as defined below; or B. Involves the application of standards other than those referred to in DCC 22.040.030(A), such as the sign ordinance. For illustrative purposes, the term "development action" includes review of any condominium plat, permit extension, road name change, sidewalk permit, sign permit, setback determination, and lot coverage determination. * * * “Land use action” includes any consideration for approval of a quasi-judicial plan amendment or zone change, any consideration for approval of a land use permit, and any consideration of a request for a declaratory ruling (including resolution of any procedural questions raised in any of these actions). “Land use permit” includes any approval of a proposed development of land under the standards in the County zoning ordinances or subdivision or partition ordinances involving the exercise of significant discretion in applying those standards. By way of illustration, “land use permit” includes review of conditional use permits, landscape management plans, farm or nonfarm dwellings, forest management plans, partition, master plan, river setback exception, riverfront design review, site plan, site plan change of use, modification of approval, solar access, solar shade exception, subdivision, and subdivision variance and variance. The staff report argues, and the Hearings Officer concurs, that the county’s 2007 issuance of the LUCS and building permit for an interior remodel of the Dowells’ existing dwelling was not a “land use action.” For the reasons discussed above under ORS 197.015, it did not involve a quasi-judicial plan amendment, zone change or declaratory ruling. And it did not involve a “land use permit” because it did not require the exercise of significant discretion in applying standards. Alterations to existing dwellings are permitted outright in the F-2 Zone under Section 18.40.020(M) based on clear and objective standards (i.e., the presence of intact exterior walls and roof structure, and certain indoor plumbing, wiring and heating systems), and are permitted outright in the LM Zone under Section 18.84.030 and in the WA Zone under Section 18.88.030 if permitted outright in the underlying (F-2) Zone. The conditional use and LM site plan approval decisions did not include any conditions of approval establishing a maximum dwelling setback from Sisemore Road. And the partition plat included a building line 400 feet from Sisemore Road, so review under that partition also was under clear and objective standards.6 6 The record indicates Tom Anderson sent to the Kuhns an electronic mail message dated August 8, 2007 stating that the county’s issuance of the 2007 building permit was a “land use decision” from which the Kuhns were entitled to appeal. The record also includes an electronic mail message dated August 14, Kuhn/Dowell A-07-9 Page 16 of 17 The staff report also argues, and the Hearings Officer agrees, that the county’s issuance of the 2007 LUCS and building permit for an interior remodel of the Dowells’ dwelling appears to fall within the definition of “development action” – i.e., “the review of any permit, authorization or determination that the Deschutes County Community Development Department is requested to issue” that is not a “land use action,” such as the types of review listed for illustrative purposes in the definition of “development action.” Section 22.16.030 provides: If the authority under which a development action is undertaken provides a means of review or appeal of a decision independent from DCC Title 22, the review or appeal shall be in accordance with the procedures independently provided and not in accordance with DCC Title 22. If the authority under which a development action is reviewed does not provide a means of review or appeal of a decision, then review or appeal shall be in accordance with DCC 22.32. As discussed in the Findings of Fact above, the Kuhns also filed a “Request for Appeal” of the building permit with the Building Division. However, the Hearings Officer has found the Building Division’s review is limited to issues of compliance with the state building safety and construction codes. Therefore, I find such review does not provide a means of review or appeal of the Planning Divisions’ approval of the building permit based on land use compatibility independent of the provisions of Title 22.7 Section 22.32.050 establishes specific procedures and standards for appeals from development actions that differ from those applicable to appeals from “land use actions,” and provides: Notice of the hearing date set for appeal shall be sent only to the applicant. Only the applicant, his or her representatives, and his or her witnesses shall be entitled to participate. Continuances shall be at the discretion of the Hearings Body, and the record shall close at the end of the hearing. (Emphasis added.) The terms “applicant” and “appellant” are not defined in Title 22. However, the Hearings Officer finds each of these nouns is a term of art because each is used in specific contexts in Title 22, and the terms are not used interchangeably. Section 22.08.010 authorizes only the property owner, his/her agent, a person with the property owner’s written authorization, and a public entity with the power of eminent domain to submit a land use application – i.e., to be an 2007 to the Kuhns from the county’s Assistant Legal Counsel Laurie Craghead advising the Kuhns to consult with their own legal counsel concerning any appeal they might wish to file from the building permit. The Hearings Officer finds I am not bound by Mr. Anderson’s interpretation or opinion of the nature of the county’s LUCS and building permit issuance. 7 The circuit court has jurisdiction to issue declaratory or injunctive relief concerning the county’s ministerial decisions that do not constitute “land use decisions” under ORS 197.015. However, because the circuit court is not the “authority under which a development action is undertaken,” the Hearings Officer finds its authority to review the 2007 LUCS and building permit is not relevant under Section 22.16.030. Kuhn/Dowell A-07-9 Page 17 of 17 applicant. The Kuhns do not fall within any of these applicant categories. Chapter 22.32 governing appeals does not use the term “applicant,” but uses the term “appellant” to refer to the person or entity filing and pursuing an appeal. The Kuhns are appellants in this case. But because they are not “applicants,” they were not entitled to appeal the development action consisting of the issuance of a LUCS and building permit for the Dowells’ proposed dwelling remodel. The Hearings Officer is aware the county sent notice of the hearing on the Kuhns’ appeal to the Kuhns, the Dowells, and the owners of all land located within 250 feet of the subject property. In addition, I allowed the Kuhns to participate in the appeal hearing and to submit written testimony. Nevertheless, because upon closer examination and consideration of the provisions of Title 22 I have found the Kuhns were not authorized to appeal the issuance of the 2007 LUCS and building permit under Title 22 for the reasons set forth above, I find affording the Kuhns a local appeal process to which they were not entitled does not change the nature of the county’s 2007 issuance of a LUCS and building permit as a “development action.”8 MERITS FINDINGS: Because the Hearings Officer has concluded that this appeal is barred by the previous circuit court judgment, and that the Kuhns are not authorized to appeal the 2007 LUCS and building permit issuance under either state law or Title 22, I find no purpose would be served by addressing the merits of the Kuhns’ appeal. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DISMISSES this appeal. Dated this ________ day of March, 2008. Mailed this _______ day of March, 2008. ___________________________ Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. 8 In their written testimony, the Kuhns addressed at length their qualifications under Section 22.32.010 to appeal as a “parties” and “persons adversely affected or aggrieved” by the county’s decision. The Hearings Officer finds these provisions are applicable to appeals from “land use actions” and therefore do not apply to this appeal from a “development action.”