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HomeMy WebLinkAboutKulin Appeal DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: V-08-1 APPLICANTS/ PROPERTY OWNERS: Steven and Lorie Kulin 447 S.W. 67th Street Redmond, Or 97756 APPLICANTS’ ATTORNEYS: Lisa D.T. Klemp Michael R. McLane Bryant Emerson & Fitch, LLP P.O. Box 457 Redmond, Oregon 97756-0103 REQUEST: The applicants request approval of a variance from the home occupation standards to increase the number of employees and the amount of usable building space for their business on a five-acre EFU-zoned parcel east of Redmond on Highway 126. STAFF REVIEWER: Will Groves, Senior Planner HEARING DATE: February 26, 2008 RECORD CLOSED: April 11, 2008 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.16, Exclusive Farm Use Zones Kulin V-08-1 Page 2 of 27 * Section 18.16.030, Conditional Uses Permitted – High Value and Nonhigh Value Farmland 3. Chapter 18.84, Landscape Management Combining Zone (LM) * Section 18.84.040, Uses Permitted Conditionally 4. Chapter 18.116, Supplementary Provisions * Section 18.116.280, Home Occupations 5. Chapter 18.132, Variances * Section 18.132.010, Variance Application * Section 18.132.020, Authority of Hearings Body * Section 18.132.030, Hearings Body Action on Variance * Section 18.132.040, Variance Procedure B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.24, Land Use Action Hearings * Section 22.24.140, Continuances and Record Extensions C. Oregon Revised Statutes (ORS) 1. ORS Chapter 215, County Planning * ORS 215.448, Home Occupations D. Americans with Disabilities Act (ADA), 42 U.S.C. Section 12131 II. FINDINGS OF FACT: A. Location: The subject property is located at 447 S.W. 67th Street, Redmond, and is further identified as Tax Lot 601 on Deschutes County Assessor’s Map 15-12-14A. It is located at the northwest corner of the intersection of 67th Street and Highway 126 east of Redmond. B. Zoning and Plan Designation: The subject property is zoned Exclusive Farm Use- Tumalo/Bend/Redmond Subzone (EFU-TRB) and Landscape Management (LM) Combining Zone because of its proximity to Highway 126, a designated LM corridor. The property is designated Agriculture on the comprehensive plan map. C. Site Description: The subject property is 5 acres in size, rectangular in shape and relatively level. It is bounded on the south by Highway 126 and on the east by 67th Street. According to the applicants’ burden of proof statements, the property currently is developed with the following structures: Kulin V-08-1 Page 3 of 27 • a 2,025-square-foot dwelling in which the applicants reside that consists of a 1,991- square-foot manufactured home and a small addition; • a 2,600-square-foot garage that previously included a garage, storage area, and 2- bedroom, 1-bath “mother-in-law” apartment, and subsequently was converted to 624 square feet of office space, 1,076 square feet of business storage, and 900 square feet of personal garage space; • a 4,940-square-foot warehouse, consisting of 2,160 square feet of converted barn space, and 2,780 square feet of newer addition. • A 192-square-foot shed for storage of gardening and landscaping equipment. Assessor’s data in the record show the issuance of numerous building, electrical, mechanical and plumbing permits for structures and additions to structures on the subject property from 1990 through 2006. It is somewhat difficult to determine from these records which permits applied to which structures or additions to structures. Access to the property is from a driveway off 67th Street. Vegetation consists of scattered juniper trees and irrigated pasture grass. The record indicates the subject property is composed predominantly of soils considered high value when irrigated, and the property has one acre of irrigation water rights. D. Surrounding Zoning and Land Uses: The subject property is surrounded by EFU- zoned property as follows: • To the north is Tax Lot 500, a 1.93-acre parcel improved with a dwelling, barn and small pasture. • To the west is Tax Lot 300, a 16.43-acre parcel used primarily for pasture grazing for horses and cattle. • To the south across Highway 126 is Tax Lot 1101, a 3.36-acre parcel improved with a dwelling which the record indicates is being operated as a bed-and- breakfast inn, as well as a large older dairy barn and pasture. Also across Highway 126 is Tax Lot 1200, a 147-acre parcel improved with a dwelling. • To the east across is 67th Street are Tax Lot 500, a 38.21-acre parcel improved with a dwelling, and a fire station. E. Procedural History: The record indicates that in 1990 the applicants’ predecessor Leonard Whitten obtained conditional use approval to establish a nonfarm dwelling on the subject property (CU-90-52), and that he subsequently received approval to place a manufactured home on the property. The record also indicates that in 1992 Mr. Whitten obtained conditional use approval for a home occupation on the subject property (CU-92- Kulin V-08-1 Page 4 of 27 215). The record does not indicate the nature of that home occupation or whether Mr. Whitten ever engaged in it. The record also indicates that in 1996 Mr. Whitten constructed a small barn on the subject property without building permits or land use approval, a code enforcement complaint was filed as a result, and Mr. Whitten eventually obtained an agricultural building exemption (AG-96-21) as well as LM site plan review for the barn (LM-96-59). The record indicates Mr. Whitten received another code enforcement complaint in March of 1998 for advertising and operating a guest house on the subject property without land use approval. This guest house apparently was operated within what the applicants’ burden of proof refers to as the “mother-in-law” apartment in one of the structures on the property. The applicants purchased the subject property from Mr. Whitten in 1998 and commenced operating their business there. They had owned the business since 1984. At the time the applicants purchased the subject property it was developed with the manufactured home, barn and additions to the barn established by Mr. Whitten. Also at the time the applicants purchased the subject property, home occupations required a conditional use permit in the EFU Zones.1 On May 21, 2001, the applicants obtained a building permit to construct a 900-square-foot detached residential garage (B47543). In 2003 the applicants obtained LM site plan approval for a 1,700-square-foot barn/shop building (LM-03-220), and on January 28, 2004 the applicants obtained a building permit to construct this building (B53883). On May 23, 2006 the applicants obtained LM site plan approval for the 4,940- square-foot warehouse building (LM-06-84). On July 20, 2006 the applicants obtained a building permit for this structure (B62767), described in the Deschutes County Assessor’s records as a “storage addition for home occupation.” However, the Planning Division’s records state this building permit was given planning approval as a “storage building,” and included the following notation: “Planner received plans on 7/10/06. Reviewed statement of intended use submitted by property owner for addition which states use as storage. Planner signed off on building permit for storage addition only. If property owner decides to convert to home occupation, land use approval may be necessary and the planning department should be contacted prior to proceeding with any home occupation.” The applicants did not apply for conditional use approval for their home occupation or to convert the warehouse to home occupation use. They assert that notwithstanding the notation in the Planning Division’s official records to the contrary, the planner who made this notation, Paul Blikstad, told them the warehouse building was approved as a part of a home occupation. 1 Former Section 18.16.030(P) in effect in 1998 listed the following conditional use in the EFU Zones: Home occupation carried on by residents as an accessory use within their existing dwelling or other existing residential accessory building. Home occupations are not allowed in structures accessory to resource use. Kulin V-08-1 Page 5 of 27 On December 14, 2006, county staff filed a code enforcement complaint (C-06-244) alleging the applicants were conducting a business on the subject property without the required conditional use approval. The applicants initially responded to the code enforcement complaint by petitioning the Deschutes County Board of Commissioners (board) to amend the home occupation standards in Section 18.116.280 to authorize exceptions to accommodate persons with disabilities. The record indicates Mr. Kulin is legally blind and has other physical impairments.2 The board declined to adopt the applicants’ proposed code amendments. Thereafter, on January 4, 2008 the applicants submitted the subject variance application to authorize their home occupation to operate outside the parameters established in home occupation standards. The county accepted the variance application as complete on February 4, 2008. Therefore, the 150-day period for issuance of a final local land use decision under ORS 215.427 would have expired on July 3, 2008. A public hearing on the variance application was held on February 26, 2008. At the hearing, the Hearings Officer received testimony and evidence, left the written evidentiary record open through March 18, 2008, and allowed the applicants through March 25, 2008 to submit final argument pursuant to ORS 197.763. By an electronic mail message dated March 10, 2008, the applicants’ attorney requested that the written record be extended one week to allow the applicant to submit additional evidence. By an order dated March 12, 2008 the Hearings Officer extended the written record through April 1, 2008. By a letter dated April 2, 2008, the applicants requested that the record be reopened and further extended to allow them to respond to comments submitted by county planning staff and legal counsel. By an order dated April 4, 2008, the Hearings Officer reopened and extended the written record through April 11, 2008. Because the applicant agreed or requested to extend the record from February 26 through April 11, 2008, under Section 22.24.140(E) of the county’s land use procedures ordinance the 150-day period was tolled for 45 days and now expires on August 18, 2008. As of the date of this decision there remain 99 days in the extended 150-day period. F. Proposal: The applicants request approval of a variance from the county’s home occupation standards in Section 18.116.280 to increase the number of employees and the amount of usable building space for their business on the subject property. Specifically, the applicants request a variance to the Type 3 home occupation standards limiting the number of employees to two on EFU-zoned parcels less than 10 acres in size, and limiting to 35-percent the maximum floor area available for the home occupation. The applicants assert they are entitled to the requested variance because it satisfies the applicable variance criteria, and because due to Mr. Kulin’s disabilities the county would violate the ADA if the variance were not granted. The record indicates the applicant’s home occupation consists of a business called UDI Corporation which the applicants have owned since 1984. The company distributes 1,400 small home accessories, sold by 80 independent salespersons for retail sales at 5,200 outlets including hardware, lumber and home improvement stores. The business has five 2 The record indicates Mr. Kulin has retinitis pigmentosa and has very limited vision, and sustained permanent and disabling leg injuries in an automobile accident during his childhood. Kulin V-08-1 Page 6 of 27 employees including Mr. Kulin.3 Merchandise is delivered to the subject property by a large truck every sixty days and is stored in the 4,940-square-foot warehouse. Merchandise is picked up for delivery by UPS on a daily basis. Orders for the merchandise are taken by phone, fax and e-mail, and orders are filled by the applicants’ employees. The applicants’ March 18, 2008 post-hearing submission states their business is conducted on 6,640 square feet of the structures on the subject property as follows: • within the 2,025-square-foot dwelling which has a business phone line, and in which Mr. Kulin does business paperwork after business hours (no particular square footage is identified); • within the 2,600-square-foot garage/storage building, which has 624 square feet of office space and 1,076 square feet of business storage space; and • within the entirety of the 4,940-square-foot warehouse building. G. Public/Private Agency Comments: The record indicates the Planning Division did not send notice of the applicant’s proposal to or request comments on the proposal from public and private agencies. H. Public Notice and Comments: The Planning Division mailed individual written notice of the applicants’ proposal and the public hearing to the owners of record of all property located within 750 feet of the subject property. In addition, notice of the public hearing was published in the Bend “Bulletin” newspaper, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter closed, the county had received two letters from the public in response to these notices. In addition, nine members of the public testified at the public hearing. I. Lot of Record: The staff report states the county recognizes the subject property as a legal lot of record as a result of the county’s previous issuance of land use approvals and building permits. III. CONCLUSIONS OF LAW: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance STANDARDS IN ZONES 1. Chapter 18.16, Exclusive Farm Use Zones a. Section 18.16.030, Conditional Uses Permitted-High Value and Nonhigh Value Farmland 3 Evidence submitted by the applicants and their attorneys states the applicants have 4 or 5 employees. However, the applicants have requested a variance in order to have 5 employees. Kulin V-08-1 Page 7 of 27 * * * N. Type 2 or 3 Home Occupation, subject to DCC 18.116.280. Home occupations are not allowed in structures accessory to resource use. The home occupation shall not unreasonably interfere with other uses permitted in the EFU zone. 2. Chapter 18.84, Landscape Management Combining Zone a. Section 18.84.040, Uses Permitted Conditionally Uses permitted conditionally in the underlying zone with which the LM Zone is combined shall be permitted as conditional uses in the LM Zone, subject to the provisions in DCC 18.84. FINDINGS: The Hearings Officer finds home occupations as defined in Section 18.04.030 are allowed conditionally in the both the EFU and LM Zones, subject to the home occupation standards in Section 18.116.280 discussed in the findings below. The applicants are not proposing any new structures in connection with the proposed variance to the home occupation standards, and therefore I find no LM site plan review is required. HOME OCCUPATION APPROVAL CRITERIA 3. Chapter 18.04, Title, Purpose and Definitions a. Section 18.04.030, Definitions As used in DCC Title 18, the following words and phrases shall mean as set forth in DCC 18.04.030. * * * “Home occupation” means an occupation or profession carried on within a dwelling and/or a residential accessory structure by a resident of the dwelling or employees, depending on type pursuant to DCC 18.116.280 and is secondary to the residential use of the dwelling and/or the residential accessory structure. 4. Chapter 18.116, Supplementary Provisions a. Section 18.116.280, Home Occupations A. Home Occupations Permitted Outright in All Zones 1. Home occupations that operate from within a dwelling, have characteristics that are indistinguishable from the residential use of a dwelling, and meet the criteria in Kulin V-08-1 Page 8 of 27 paragraph (A)(2) shall be considered uses accessory to the residential use of a dwelling. 2. Home occupations under this subsection that meet the following criteria are uses permitted outright under Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance, in all zones: a. Is conducted within a dwelling only by residents of the dwelling. b. Does not serve clients or customers on site. c. Does not occupy more than 25 percent of the floor area of the dwelling. d. Does not produce odor, dust, glare, flashing lights, noise, smoke or vibrations in excess of that created by normal residential use. e. Does not include on-site advertisement, display or sale of stock in trade. B. Types. In addition to the home occupations allowed in Section A above, three types of home occupations may be allowed with limitations on location and intensity of allowed uses. Type 1 allows low intensity uses and Types 2 and 3 allow progressively greater intensity of uses. * * * D. Type 2. A Type 2 home occupation may be allowed as a conditional use with an approved conditional use permit subject to the approval criteria below. A Type 2 home occupation is not subject to the approval criteria for a conditional use permit in DCC Chapter 18.128.015 or a site plan review under DCC Chapter 18.124. Type 2 home occupations are subject to the standards of the zone in which the home occupation will be established. A Type 2 home occupation: 1. Is conducted from a property that is at least one-half (1/2) acre in size. 2. Is conducted within a dwelling and/or an accessory structure by residents of the dwelling and no more than two (2) employees who report to the property for work. Kulin V-08-1 Page 9 of 27 3. May include employees or contractors that work off- site. 4. Does not occupy more than 25 percent, up to a maximum of 1,500 square feet, of the combined floor area of the dwelling, including attached garage and one (1) accessory structure. * * * E. Type 3. Type 3 home occupations may be allowed as conditional uses with an approved conditional use permit. Such uses are subject to the standards of the zone in which the home occupation will be established, in DCC Section 18.128.015, and the following limitations. A Type 3 home occupation: 1. Is conducted from a property that is at least one-half (1/2) acre in size. 2. Is conducted in such a way that it is compatible with the residential character, or resource zones, resource- oriented character of its location. 3. Is conducted within a dwelling and/or an accessory structure by residents of the dwelling and no more than two (2) employees who report to the property for work. May have a maximum of five (5) employees at the home occupation located on property in an EFU, MUA10, or RR10 zone and that is at least 10 acres in size. 4. May include employees or contractors that work off- site. 5. Does not occupy more than 35 percent of the combined floor area of the dwelling, including an attached garage and one (1) accessory structure. * * *. (Emphasis added.) FINDINGS: These home occupation standards are authorized by ORS 215.448, which provides: (1) The governing body of a county or its designate may allow, subject to the approval of the governing body or its designate, the establishment of a home occupation and the parking of vehicles in any zone. However, in an exclusive farm use zone, forest zone, or mixed farm and forest zone that allows residential uses, the following standards apply to the home occupation: Kulin V-08-1 Page 10 of 27 (a) It shall be operated by a resident or employee of a resident of the property on which the business is located; (b) It shall employ on the site no more than five full-time or part-time persons; (c) It shall be operated substantially in: (A) The dwelling; or (B) Other buildings normally associated with uses permitted in the zone in which the property is located; and (d) It shall not unreasonably interfere with other uses permitted in the zone in which the property is located. (2) The governing body of the county or its designate may establish additional reasonable conditions of approval for the establishment of a home occupation under subsection (1) of this section. (3) Nothing in this section authorizes the governing body or its designate to permit construction of any structure that would not otherwise be allowed in the zone in which the home occupation is to be established. (4) The existence of home occupations shall not be used as justification for a zone change. (Emphasis added.) Pursuant to subsection (2) of ORS 215.448, the county adopted additional conditions of approval for home occupations, including: • through the “home occupation” definition in Section 18.04.030, limiting the structures in which the home occupation can be established to the dwelling (including an attached garage) and one residential accessory structure; • limiting the amount of floor area that can be used for Type 2 and 3 home occupations based on a percentage of the total floor area in the dwelling (including attached garage) and accessory structure; and • limiting the number of on-site employees to two, except for parcels zoned EFU, MUA- 10 and RR-10 that are at least 10 acres on which there can be up to five on-site employees. In their February 22, 2008 Supplemental Burden of Proof, the applicants appear to argue these additional conditions of approval related to the number of employees are not “reasonable” under the statute, as follows: “Arguably, pursuant to general principles of statutory construction, the EFU Zone is not Kulin V-08-1 Page 11 of 27 regulated by the 10-acre restriction. Therefore, the applicant submits that a 10-acre minimum in the EFU is not required to permit up to 5 employees. In addition, the state law does not provide such a restriction [footnote omitted], and the county code provides no intent or rationale for such a restriction.” The Hearings Officer finds no merit to this argument. The plain language of Section 18.116.280(E)(3) makes clear the five-employee limitation applies to EFU-zoned parcels less than 10 acres in size. And the applicants have not explained why such a restriction is not “reasonable,” particularly considering the fact – no doubt known to the board when it adopted the revised home occupation standards in 2004 – that there are parcels less than 10 acres in size in the EFU Zones. Indeed, the board just as reasonably could have elected not to permit home occupations on EFU-zoned parcels less than the minimum lot size in the subzone, but instead chose to allow them on some substandard-sized parcels – i.e., those 10 acres or larger which is the minimum lot size in the MUA-10 and RR-10 Zones. The subject property is five acres in size. The applicants’ existing business has five employees including Mr. Kulin, and is conducted on 6,640 square feet of floor area consisting of the entirety of the 4,940-square-foot warehouse building and 1,700 square feet of the barn/shop building.4 The existing dwelling is 2,025 square feet in size. The applicants argue the “accessory structure” for purposes of the home occupation standards is the barn/shop building. The Type 2 and 3 home occupation standards use the term “accessory structure” for purpose of calculating the maximum allowable floor area. However, by definition a “home occupation” is one conducted within a dwelling and “residential” accessory structure. Therefore, I find that in the context of, and to give meaning to, the “home occupation” definition the term “accessory structure” as used in Section 18.116.280 for purposes of calculating maximum floor area must mean “residential accessory structure.” I find the 2,600-square-foot barn/shop is not a “residential accessory structure” because the vast majority of it is utilized for the business and not for residential uses. And even assuming for purposes of discussion that the portion of the barn/shop building utilized for the applicants’ personal garage space could be considered a “residential accessory structure,” only 900 square feet of space is devoted to the garage. Therefore, in either case, the 6,460 square feet of floor area occupied by the applicants’ business far exceeds the 2,925 square feet of floor area in the dwelling and residential garage portion of the barn/shop building. For the foregoing reasons, the Hearings Officer finds the applicants’ business does not fall within the Type 1, 2 or 3 home occupations under Section 18.116.280. In fact, the applicants’ business does not qualify as a “home occupation” at all, because it is not “carried on within a dwelling and/or a residential accessory structure.” And given the size and scope of the business, I find it also is not “secondary to the residential use of the dwelling and/or the residential accessory structure.” The business occupies the majority of the square footage of structures on the property (6,640 out of 9,757 square feet), and occupies the majority of the square footage in the barn/storage building that includes the residential garage (1,700 out of 2,600 square feet). For these reasons, I find the applicants’ business is a commercial enterprise being conducted on an EFU-zoned parcel. Because the only commercial activities permitted in the EFU Zones are those “in conjunction with farm use” and “home occupations,” and the applicants’ business is not 4 As discussed in the findings above, the applicants’ March 18, 2008 submission stated the applicant occasionally makes business phone calls and does business paperwork within the dwelling. Kulin V-08-1 Page 12 of 27 farm-related, the only theory under which the applicants can continue to operate their business on the subject property is that it is a “home occupation” that does not meet the parameters for such a use established in Title 18. The subject application states the applicants are seeking a “variance from Title 18,” and their original burden of proof describes their request as follows: “The applicant is petitioning for a variance pursuant to Deschutes County Code Chapter 18.132, from the Home Occupation Ordinance of Deschutes County. The application is based on the hardship of the literal application of the Home Occupation Ordinance as it pertains to both the area and the use of the subject property, given the significant disability of the applicant.” (Emphasis added.) The applicants’ subsequent supplemental burden of proof statements refined this vague description by requesting relief from the standards governing the number of employees and percentage of usable floor area for Type 3 home occupations. The Hearings Officer finds that because the applicants’ business does not fall within the definition of “home occupation” and does not comply with the county’s home occupation standards, a variance is required to lawfully continue this commercial use on the EFU-zoned subject property. VARIANCE APROVAL CRITERIA FINDINGS: As discussed in the Findings of Fact above, the applicants argue the county is required to grant their requested variance under the ADA because of Mr. Kulin’s disabilities. However, the Hearings Officer finds that before turning to that question it is appropriate for me first to determine whether the applicants’ proposal does or can satisfy the variance approval criteria. 5. Chapter 18.04, Title, Purpose and Definitions a. Section 18.04.030, Definitions As used in DCC Title 18, the following words and phrases shall mean as set forth in DCC 18.04.030. * * * "Variance" means an authorization for the construction or maintenance of a building or structure, or for the establishment or maintenance of a use of land, which is prohibited by a zoning ordinance. A. "Area variance" means a variance which does not concern a prohibited use. Usually granted to construct, alter or use a structure for a permitted use in a manner other than that prescribed by the zoning ordinance. Kulin V-08-1 Page 13 of 27 B. "Use variance" means a variance which permits a use of land other than that prescribed by the zoning or other applicable ordinances. FINDINGS: The Hearings Officer finds the applicants’ request constitutes one for a variance because they are seeking approval for maintenance of a use of land “which is prohibited by the zoning ordinance” – i.e., a commercial enterprise that is not permitted outright or conditionally on EFU-zoned land because it is not farm-related, and it does not meet the code definition of a “home occupation” or satisfy the home occupation standards in Section 18.116.280. The remaining question is whether the requested variance is an “area” variance or a “use” variance. The answer to this question determines which approval criteria under Section 18.116.280 are applicable.5 The applicants argue their business is not a “prohibited use” because home occupations are uses permitted in the EFU Zone, and therefore their requested variance is an "area” variance. The Hearings Officer disagrees. As discussed above, I have found the applicants’ existing business does not constitute a “home occupation.” Therefore it is a prohibited use to which “area” variance does not apply. And in any case, I find the second sentence of the “area” variance definition makes clear it is intended to apply to the use of a structure that does not conform to the zoning ordinance – e.g., that does not meet height, setback, or maximum lot coverage standards. Staff argues, and I agree, that the applicants’ existing business is a use “other than that prescribed by the zoning or other applicable ordinances,” and therefore their variance application must be considered one for a “use” variance, subject to the “use” variance approval criteria in Section 18.116.020(B), discussed in the findings below. 6. Chapter 18.132, Variances a. Section 18.132.010, Variance Application The Planning Director or Hearings Body may authorize area or use variance from the requirements of DCC Title 18. Application for a variance shall be made by petition stating fully the grounds of the application and the facts relied upon by the petitioner. FINDINGS: The Hearings Officer finds the applicants’ submitted application, burden of proof statements and supplemental materials constitute a variance petition meeting the requirements of this criterion. b. Section 18.132.020, Authority of Hearings Body A variance may be granted unqualifiedly or may be granted subject to prescribed conditions, provided that the Planning Director or Hearings Body shall make all of the following findings: 5 In any case, as discussed in the findings below, the approval criteria for a “use” variance include all but one of the approval criteria for an “area” variance. The only “area” variance criterion that does not apply to “use” variances is the “self-created difficulty” criterion. Kulin V-08-1 Page 14 of 27 * * * B. Use variance. 1. That the literal application of the ordinance would result in unnecessary hardship to the applicant. An unnecessary hardship will be found when the site cannot be put to any beneficial use under the terms of the applicable ordinance. (Emphasis added.) FINDINGS: Staff argues the applicants have not demonstrated compliance with this criterion because the subject property can be put to a beneficial use – i.e., residential and farm use – citing Duck Delivery Produce, Inc. v. Deschutes County, 28 Or LUBA 614 (1995). In that case, LUBA upheld the county’s denial of a use variance for a commercial use not permitted on the RR-10 zoned property, consisting of a produce cold storage and delivery business. In upholding the county’s denial, LUBA held in pertinent part: “The county interpreted DCZO [Deschutes County Zoning Ordinance] 18.132.020(B)(a) to mean that so long as some beneficial use could be established on the property, DCZO 18.132.020(B)(a) was not satisfied. The county determined residential use of the property is a beneficial use and that a dwelling could be established on the subject property, as could other permitted uses listed in the RR- 10 Zoning district. The county concluded application of the RR-10 standards to the subject property does not constitute an unnecessary hardship in view of the uses to which the property may be put. We are required to defer to the local governing body’s interpretation of the local code, so long as the interpretation is not contrary to the express words, policy or purpose of the enactment. [Citations omitted.] The board of commissioners’ interpretation of DCZO 18.132.020(B)(a) is not contrary to the express words, policy or purpose of that provision, and we defer to it.2 2 In fact, the county’s interpretation is one we have repeatedly held to be correct, even under the more exacting standard of review applied to local governing body decisions prior to Clark v. Jackson County, supra, and the adoption of ORS 197.829. See Sokol v. City of Lake Oswego, 17 Or LUBA 429 (1989).” In their Supplemental Burden of Proof submitted on February 22, 2008, the applicants argue their application is distinguishable from the one at issue in Duck Delivery for the following reasons: “The applicable ordinance is the home occupation code. Under the code, the applicant is permitted to operation with only 2 employees and only 3,347.75 sq. ft. The evidence shows that scaling back the business to the size restricted by the code prohibits a profit margin in the business, and therefore does not make economical sense to continue the operation. If not used for the business, the 3,292.25 sq.ft. is useless to the applicant. If the applicant must abandon the business due to restrictions that preclude continuance of the operation, then the entire area the business is located in now, 6,640 sq. ft., becomes useless to the applicant. The Kulin V-08-1 Page 15 of 27 applicant cannot farm the property due to the conditions that existing on the property and his disability. Due to his disability he is limited in the uses he can make of the area. The staff report relies on Duck Delivery Produce, Inc. v. Deschutes County, 28 Or LUBA 614 (1995), to support the position that a residential use is available and therefore precludes a finding that the site cannot be put to a beneficial use. However, Duck Delivery is distinguishable from the case at bar. In that case the applicant was seeking to use a non-permitted building for a commercial use in the RR-10 (Rural Residential) zoning. The county determined that there was a residential use of the property available, and therefore a beneficial use existed that precluded the variance. The residential use is an outright permitted use in the RR- 10. However, in the case at bar, the building was permitted by the county for the business use proposed. In addition, the property is in the EFU Zone, and a residential use is not an outright permitted use. Therefore, there is no certainty that a ‘residential use’ of the property exists that would preclude any beneficial use of the property. Moreover, the applicant is disabled, and the property cannot be put to the uses identified as outright permitted uses in the EFU zone, especially without any unnecessary hardship. Therefore, pursuant to the criteria, there is no other beneficial use for which the applicant can use the site based on the personal disabilities, and the uses allowed in the zoning of the property.”(Emphasis added.) The Hearings Officer finds there are several problems with the applicants’ arguments. First, as discussed in the Findings of Fact above, the Planning Division’s records show the building permit issued for the warehouse utilized in the applicants’ business received a determination of land use compatibility because the applicants represented it would be used only for storage and not as part of a home occupation, and because the applicant was advised conditional use approval would be required to convert use of the warehouse to a part of the home occupation. Therefore, the building was not approved for use as part of a home occupation. I find any notations from the Assessor or Building Division concerning their particular classifications of the warehouse do not constitute a land use compatibility determination. Moreover, given the fact that the county had extensively revised its home occupation standards in 2004, including imposing significant restrictions on the floor area available for home occupation use, I find it highly unlikely Mr. Blikstad would have approved the 4,640-square-foot warehouse building for use in a home occupation on the subject property without verifying the existence of conditional use approval for such a use on the property. Second, the record indicates that in 1990 the county granted conditional use approval for a nonfarm dwelling on the subject property, and therefore there is no “uncertainty” as to whether the subject property can be put to residential use. Third, while the subject property is small, the record indicates it does have one acre of irrigation and its soils are considered high value when irrigated. Therefore, under Oregon Administrative Rules (OAR) 660-033-130, at least a portion of the subject property is presumed suitable for the production of farm crops and livestock. Finally, the Hearings Officer finds the applicants’ argument that the warehouse building utilized in their business would be of no use to the applicants without the requested variance is off the mark. The applicants were required to, but never did, obtain conditional use approval to utilize this structure for their business. At the time the applicants purchased the subject property, home occupations required conditional use approval in the EFU Zone. Such approval has been required continuously Kulin V-08-1 Page 16 of 27 since that time. And Exhibit 1 to the applicants’ February 22, 2008 Supplemental Burden of Proof shows that when the current version of the county’s home occupation standards in Section 18.116.280 took effect in 2004, the applicants’ business already had expanded beyond the parameters of either a Type 2 or Type 3 home occupation because it had three employees and was occupying more than 25 or 35 percent of the square footage of the dwelling and residential accessory structure. Under these circumstances, I find the applicants’ inability to use the warehouse for their business cannot be considered an “unnecessary hardship” under this criterion where, as here, they never were authorized to do so. The applicants assert they were not aware home occupations required conditional use approval in the EFU Zone until the code enforcement complaint was filed against them, and that the county never advised them such approval was required. However, the Hearings Officer finds the applicants’ failure to make themselves aware of the county code provisions governing EFU-zoned land when they purchased the subject property for their business, and when they subsequently expanded their business, does not relieve them of their obligation to comply with the code or make such compliance an “unnecessary hardship.” For the foregoing reasons, the Hearings Officer finds the applicants’ proposed use variance does not satisfy this approval criterion. 2. Each of the findings listed in DCC 18.132.020(A)(1), (2) and (4) [“area variance” criteria]. FINDINGS: 1. Section 18.132.020(A)(1). This section provides: That the literal application of the ordinance would create practical difficulties resulting in greater private expense than public benefit. There is no dispute that literal application of the home occupation standards would create practical difficulties for the applicants because it would prevent them from lawfully operating their business at its current size, scale and intensity, and with its current complement of five employees. The applicants’ burden of proof statements detail their estimates of the private expense that would result from this literal application. These include loss of use of the warehouse building which was constructed at a cost of $200,000, a 37.5-percent loss in sales revenue, and a 46-percent loss of annual business income from downsizing the business to two employees. The applicants also argue the cost of relocating the business to a commercial-zoned parcel would be over $1.6 million, including the cost of purchasing a new building, moving the business, and paying higher property taxes. The applicants also assert their existing business creates no negative impacts on surrounding land uses, and support this assertion with letters from many of their neighbors recommending that their proposed variance be approved. This approval criterion requires the Hearings Officer to weigh against the applicants’ private expense the public benefit from literal application of the home occupation standards limiting the Kulin V-08-1 Page 17 of 27 number of employees and the amount of usable floor area. When the county adopted its revised home occupation standards in 2004, Ordinance 2004-002 stated that in support of the revisions the board found it: • has long recognized home occupations as land uses in the county; • has continued the practice of allowing home occupations as conditional uses to ensure that such businesses can operate without impacting adjacent land uses; • finds that some home occupations can and should be allowed outright in unincorporated areas of the county under certain circumstances; • finds that other home occupations can be allowed conditionally; and • finds that adopting new standards for home occupations that are allowed as conditional uses will ensure their compatibility with adjacent land uses. Ordinance 2004-002 amended Title 18 to: • revise the definition of “home occupation” in Section 18.04.030; • allow home occupations outright and conditionally in several zones, including the EFU Zones; • revise Section 18.116.280 to create three categories of home occupations – Type 1 allowed as a permitted use, and Types 2 and 3 allowed as conditional uses – based on their relative size, scale and intensity; and • limit to five the number of employees in a home occupation on parcels less than 10 acres in size zoned EFU, MUA-10 and RR-10. The staff report states, and the Hearings Officer agrees, that the revised home occupation standards were developed to achieve a better balance between the economic benefits of allowing home occupations in the unincorporated areas of the county, and protection of resource and other values in rural areas by precluding or minimizing negative impacts on other rural land uses. Staff argues that with regard to the EFU Zone in particular, the limitation on the number of employees on smaller parcels was intended to assure compatibility with agricultural uses in that zone and to prevent the conversion of farm land into non-farm related business use, and adoption of this new standard conferred a significant public benefit by preventing what would essentially be commercial development on small EFU-zoned parcels. Finally, staff argues the applicants’ proposed variance, if approved, would set a precedent for “circumvention of the balance struck in the creation of the home occupation code.” Granting a variance to a standard does not, in itself, constitute a detriment to the purpose or objective of the standard. Georgeoff v. Curry County, 40 Or LUBA 101 (2001). However, the Hearings Officer finds merit in staff’s concerns about the precedent that could be set by approval of the applicants’ requested variance. This is not a case where the applicants developed a lawful Kulin V-08-1 Page 18 of 27 home occupation which subsequently expanded beyond allowable parameters. Rather, the applicants established their business on the subject property largely, if not entirely, outside any residential structures and without ever obtaining conditional use approval for a home occupation. They then expanded their business several times to the point where it is now the primary use on the subject property, contrary to the very nature and purpose of home occupations. As the applicants’ own evidence shows, it is much more expensive to operate a non-farm related business on commercial- or industrial-zoned land than to do so on EFU-zoned land, making the latter a very attractive option for business owners wishing to reduce their operating costs. The county’s revised home occupation standards reflect its policy choice to limit the types of businesses appropriate for siting on small EFU-zoned parcels to those with no more than two employees and occupying floor space equivalent to more than 35 percent of the square footage of the “residential” structures on the property. In other words, the county concluded it was not appropriate to establish larger businesses on small EFU-zoned parcels rather than on larger EFU- zoned parcels or on land within other zoning districts where businesses are permitted. The Hearings Officer concurs with staff that under the circumstances presented here, approving the applicants’ proposed variance would represent a significant divergence from this policy choice, and therefore could have the effect of encouraging others to seek through variances to establish businesses on small EFU-zoned parcels because it is more affordable to do so there than on parcels in more appropriate zones. While this is a close question, on balance I find the public benefit of maintaining the county’s policy of not permitting larger businesses to be established as home occupations on small EFU-zoned parcels outweighs the private expense the applicants would incur in order to comply with the standards of which the applicants apparently were ignorant. For the foregoing reasons, the Hearings Officer finds the applicants’ proposal does not satisfy this variance criterion. 2. Section 18.132.020(A)(2). This section provides as follows: That the condition creating the difficulty is not general throughout the surrounding area but is unique to the applicant's site. Staff and the applicants disagree as to the nature of the condition creating the difficulty. The applicants argue the condition is Mr. Kulin’s disability. Staff responds that the condition must relate to the characteristics of the subject property and not to Mr. Kulin’s physical condition, citing DeBardelaben v. Tillamook County, 31 Or LUBA 131 (1996). However, as the applicants correctly note, the Court of Appeals reversed LUBA’s decision in DeBardelaban because its analysis was based on general variance law while the issue in the case was whether the proposed variance complied with specific ordinance criteria. For this reason, the applicants argue the Hearings Officer is free to consider Mr. Kulin’s disabilities as the “condition creating the difficulty.” The Hearings Officer disagrees with the applicants’ argument. Although this criterion does not expressly state the condition creating the difficulty must relate to the subject property, in previous variance decisions I have interpreted this criterion to create such a requirement by its use of the terms “surrounding area” and “site.” That is because the ordinary definition of “area” is “a part of Kulin V-08-1 Page 19 of 27 the earth’s surface; region; * * * a location having a specific use or character,” and the ordinary definition of “site” is “a location or scene.” Webster’s New World Dictionary and Thesaurus, Second Edition. Therefore, under this interpretation, I find the conditions creating the difficulty for the applicants are: 1) the 5-acre size of the subject property, which precludes having more than two employees for a home occupation; and 2) the size of the existing dwelling and detached personal garage space on the subject property, which limits the amount of available floor area for a home occupation. 6 The Hearings Officer finds these conditions are not unique to the subject property. While five-acre parcels are below the minimum lot size in the EFU-TRB Zone of 23 irrigated acres, they are by no means unusual, and therefore the size of the subject property is not unique. Similarly, I find the size of the existing dwelling (2,025 square feet) and personal garage space (900 square feet) are not unusually small or unique to the subject property. And as discussed in the Findings of Fact above, the record indicates neither the 2,600-square-foot barn/shop building or the 4,640-square-foot warehouse building in which the applicants conduct their business was permitted or approved for business use. For the foregoing reasons, the Hearings Officer finds the applicants’ proposal does not satisfy this variance approval criterion. 2. Section 18.132.020(A)(4). This section provides as follows: That the variance conforms to the Comprehensive Plan and the intent of the ordinance being varied. As discussed in the findings above, the intent of the 2004 amendments to the home occupation standards was to strike a balance between the economic benefits of allowing home occupations and the protection of resource and other values in rural areas including the EFU Zones by precluding or minimizing potential adverse impacts from home occupations. In particular, the amendments established specific protections for EFU-zoned land by limiting the number of home occupation employees to five on EFU-zoned parcels less than 10 acres in size. These restrictions undoubtedly were crafted to be consistent with the goals, objectives and policies established in Chapter 23.88 of the comprehensive plan to protect and preserve agricultural land for agricultural uses. As discussed in the findings above, the Hearings Officer has found the public benefit of maintaining the county’s policy of not permitting larger businesses to be established as home occupations on small EFU- zoned parcels outweighs the private expense the applicants would incur in order to comply with the applicable home occupation standards. For these same reasons, I also find the proposed variance would not conform to the plan’s policies for preserving agricultural land for agricultural uses. It would permit on the 5-acre subject property a business that exceeds the standards for Type 3 home occupations on EFU-zoned parcels larger than 10 acres because of the size of the floor area 6 As noted in the findings above, the applicants’ personal garage space occupies 900 square feet within the 2,600-square-foot barn/shop building. Because the majority of this structure is utilized in the applicants’ business, I find it is not appropriate to consider the entire building to be a “residential accessory structure,” but only that portion of the building devoted to “residential use” – i.e., the 900- square-foot personal garage space. Kulin V-08-1 Page 20 of 27 occupied by the business relative to the residential structures on the property. The Hearings Officer finds approval of the requested variance also could encourage the proliferation of equivalent or larger businesses on other small EFU-zoned parcels because they are less expensive than land in zoning districts in which commercial uses are permitted outright, potentially to the detriment of agriculture in the surrounding area. The applicants argue, and letters in the record from neighbors bear out, that their existing business does not now and will not in the future have adverse impacts on resource values and other uses on the surrounding EFU-zoned land because customers do not come to the property, and with the exception of truck pickups and deliveries business activities occur entirely within the business structures. While I concur that the operating characteristics of the applicants’ business are compatible with surrounding land uses, I find the size of the business is simply too large to conform to the comprehensive plan and the intent of the home occupation standards. Therefore, I find the applicants’ proposal does not satisfy this variance approval criterion. For the foregoing reasons, the Hearings Officer finds the applicants have not demonstrated their proposed variance satisfies all “use” variance approval criteria in Section 18.132.020. ADA COMPLIANCE FINDINGS: The Hearings Officer has found the applicants’ existing business does not qualify as a “home occupation,” and their proposed variance to the home occupation standards does not satisfy the applicable variance approval criteria. Nevertheless, the applicants argue I must approve the requested variance because to do otherwise would violate the provisions of the ADA, discussed in the findings below. B. Americans with Disabilities Act, Title 42 of the United States Code 1. Chapter 126, Equal Opportunities for Individuals with Disabilities a. Section 12102, Definitions As used in this chapter: * * * (2) Disability The term “disability” means, with respect to an individual - (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment. Kulin V-08-1 Page 21 of 27 FINDINGS: There is no dispute that Mr. Kulin has one or more disabilities as defined in this section. 2. Subchapter II, Public Services, Part A, Prohibition Against Discrimination and Other Generally Applicable Provisions a. Section 12131, Definitions As used in this subchapter: (1) Public entity The term “public entity” means - (A) Any state or local government; * * * (2) Qualified Individual with a Disability The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable modifications to rules, polices, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. b. Section 12132, Discrimination Subject to the provisions of this chapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity. FINDINGS: The parties agree that to prove a government program or service violates Title II of the ADA, Mr. Kulin must show: (1) he is a “qualified individual with a disability;” (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs or activities, or otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. Weinrich v. Los Angeles County Metropolitan Transit Authority, 114 F3d 976, 978 (9th Cir 1997), The parties also agree that local zoning and similar programs are considered government “programs” under the ADA. BAART v. City of Antioch, 179 F3d 725 (9th Cir. 1999), McGary v. City of Portland, 386 F3d (9th Cir. 2004). And there is no dispute that Mr. Kulin is a “qualified individual with a Kulin V-08-1 Page 22 of 27 disability” as defined in Section 12131 because he is disabled and meets the essential eligibility requirements for the participation in county programs and receipt of county services. The parties disagree as to whether denial of the applicants’ proposed variance to the county’s home occupation standards would violate Section 12132. The applicants argue it would because such denial would be based solely on Mr. Kulin’s disability and would result in excluding him from participation in a county “program” – i.e., the “home occupation program” – or denying him county “services” for which he is eligible – i.e., the availability of home occupation approval. In his March 13, 2008 letter, Steven Griffin, Assistant County Counsel, responded that the county operates no “programs” related to the applicants’ business, and therefore Mr. Kulin has not been excluded from any programs. He also argued that even if Mr. Kulin could be considered excluded from a county program, such exclusion was not the result of his disability, but rather due to the nature of his existing business and his personal financial circumstances. The parties have not cited, nor has the Hearings Officer found, any federal or Oregon cases addressing application of the ADA to variances from local zoning ordinance provisions relating to uses other than housing. Therefore, this appears to be a question of first impression. Although it is clear local zoning is considered a “program” for purposes of Section 12132 of the ADA, I am not persuaded by the applicants’ arguments that the county’s home occupation standards constitute the “program.” Rather, I find the “program” is the county’s land use program in general, including its land use regulations and development procedures. Mr. Kulin has fully participated in this “program” through the filing of this variance application and participation in the proceedings by which the application is being reviewed. I find the more appropriate analysis under Section 12132 is whether denial of the applicants’ proposed variance would constitute discrimination against him by reason of his disability. I find the answer to this question turns on the nature of the county’s ordinance and the applicants’ requested variance there from. As discussed in the findings above, the county’s Type 3 home occupation standards limit the number of on-site employees to two on EFU-zoned parcels less than 10 acres in size, and limit the available floor area for the home occupation to 35-percent of the combined floor area of the dwelling and one residential accessory structure. These standards are applied to all persons seeking Type 3 home occupation approval. However, facially neutral policies nevertheless may violate the ADA if they are unduly burden disabled persons, even when such policies are consistently enforced. McGary; Martin v. PGA Tour, Inc., 204 F.3d 994 (9th Cir. 2000). The applicants have alleged application of each of these standards unduly burdens Mr. Kulin. Each standard and the applicants’ ADA-related argument are addressed separately in the findings below. 1. Two-Employee Limitation. The applicants’ February 22, 2008 Supplemental Burden of Proof states in relevant part: “Applicant requires two employees to serve as his personal ‘replacements’ due to his disabilities. He has an assistant that serves as his eyes in the administration of the business, and a warehouse manager that provides the physical replacement in the warehouse. These are not mere desired employees. Without the additional employees he is not able to cover the costs of the 2 ‘replacement’ employees, nor generate a profit to continue the operation. One employee is needed to cover the Kulin V-08-1 Page 23 of 27 ‘costs’ associated with the two he has that serve as his personal ‘replacements.’ Another is needed to make a profit, and a fifth will replace his youngest son once he goes on to college in a year. With only two employees, sales would drop approximately 45%. This will threaten the solvency of his business. Moreover, the loss of employees would result in a loss of an essential part of his adaption in order to work. Kulin stopped working in the warehouse in 2001 due to leg and back issues. That forced him to hire a second worker. Those two workers off load jobs that Kulin can no longer do.” (Emphasis added.) The applicants’ February 26, 2008 Second Supplemental Burden of Proof elaborates on this argument as follows: “Applicant requires three additional employees as a result of his disabilities. Applicant has one employee due to him being blind, and one due to his leg and back condition. * * * Applicant must pay for these two additional employees, so his business must generate enough profit to support Applicant and his family, along with those two employees. This level of business, and the cost of the two employees, require a third employee. By limiting Applicant to two employees, pursuant to DCC 18.116.280(E)(3), Deschutes County is preventing Applicant from enjoying a home-based occupation like those in Deschutes County are otherwise permitted. All those in Deschutes County who are not handicapped like Applicant are permitted to work in a home occupation that employees two persons (that are not family members). The Applicant, however, must have three employees before he is on an even playing field. In other words, before Applicant enjoys the assistance in his business of two employees to help him grow his business, he must have three employees to make up for him being blind and crippled. By limiting him to two employees, Deschutes County has prevented Applicant from having a home occupation altogether. Likewise, as explained in Applicant’s Supplemental Burden of Proof statement, DCC 18.116.280(E)(5) limits Applicant to a business that does not financially support the three employees he requires to have a home occupation.”(Emphasis added.) The Hearings Officer understands the applicants to argue that Mr. Kulin requires two “personal assistants” to perform the components of his job as owner of his business that he cannot perform due to his disabilities, and that the third employee is required to generate sufficient additional business income to pay the salaries and other costs of the two personal assistants. I find from the above-underscored language in the applicants’ burden of proof statements that this argument also is based on general profitability considerations. In other words, Mr. Kulin also needs the assistance of these three employees in order to make the business profitable so that it will generate sufficient income to support his family. These are considerations all business owners face, regardless of whether or not they have disabilities. Therefore, the question is whether denying the applicants’ proposed variance to the two-employee limit for EFU-zoned parcels less Kulin V-08-1 Page 24 of 27 than 10 acres in size would constitute discrimination against Mr. Kulin by reason of his disability. The Hearings Officer finds the applicants have submitted substantial, credible evidence that due to his disability Mr. Kulin needs two additional employees – his personal assistants – to enable him to work in his business. However, I find the third “extra” employee presents a closer question. That is because according to the applicants’ evidence this employee does not directly support Mr. Kulin or perform what ordinarily would be Mr. Kulin’s duties, and the applicants’ burden of proof statements indicate the work generated by this employee is needed in order for the business to be profitable in general. I find this constitutes too tenuous a nexus between Mr. Kulin’s disability and the need for this third employee. If additional profitability were a sufficient nexus, the applicants could just as reasonably argue they must be allowed to conduct retail sales or any other nonconforming business activity on the subject property as part of their business because the additional revenue and profit such sales would generate are necessary in order to pay for Mr. Kulin’s personal assistants. For the foregoing reasons, the Hearings Officer finds the applicants have demonstrated the need for two additional employees of the applicants’ business due to Mr. Kulin’s disability. Therefore, I find that denial of the applicants’ proposed variance to the two-employee limitation for home occupations on EFU-zoned parcels less than 10 acres in size would constitute discrimination against Mr. Kulin on the basis of his disability. Under the federal rules implementing the ADA in 28 C.F.R. Section 35.130, public entities are required to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” McGary; Dunlap v. Ass’n of Bay Area Gov’ts, 996 F. Supp. 962 (N.D. Cal. 1998). Therefore, the county can avoid discriminating against Mr. Kulin on the basis of his disability with a “reasonable accommodation” or modification of its land use regulations to permit the applicants to have up to four on-site employees. The Hearings Officer finds this accommodation is reasonable and would not fundamentally alter the nature of the county’s land use program in general or application of the home occupation standards in particular. 2. Thirty-five Percent Maximum Floor Area. As discussed in the findings above, the applicants’ existing business occupies a total of 6,640 square feet, consisting of the 4,940-square-foot warehouse building and 1,700 feet of floor area in the barn/shop building that also houses the applicants’ personal garage space.7 The existing dwelling is 2,025 square feet in size. As also discussed in the findings above, the Hearings Officer has found the barn/shop building is not a “residential accessory structure” because the majority of its space is devoted to business use. Nevertheless, assuming for the purposes of discussion that the 900-square-foot portion of the barn/shop building devoted to personal garage space could be considered a “residential accessory structure,” the total square footage of the dwelling and residential accessory structure on the subject property is 2,925 square feet, of which 35 percent would be 1,024 square feet. Therefore, the applicants’ business occupies more than six times the amount of floor area permitted for a 7 The applicants’ evidence indicates a very small amount of business activity also is conducted within the dwelling. Kulin V-08-1 Page 25 of 27 Type 3 home occupation. The applicants’ February 22, 2008 Supplemental Burden of Proof states the following as justification for a variance to the 35-percent floor area limitation: “Applicant’s business requires storage of boxed inventory in an organized manner, under cover from the elements, which requires more area than the 35% allowed by the Home Occupation Code. Because applicant cannot construct larger structures on the property to increase the 35% square footage available, and cannot locate the warehouse or business offsite due to his disability, applicant seeks a variance from this provision of the code. * * * UDI would have to drop entire product lines to accommodate the loss in area. This would cause an estimated 37.5% negative impact on sales revenue of the business. * * * The alternative is to relocate the warehouse, or entire business, off site. However, the alternative is impractical and impossible for the applicant because the practical difficulties result in a greater private expense than public benefit as addressed below, due to his disability. * * * * * * the warehouse and business cannot be located elsewhere due to Kulin’s disabilities. * * * * * * His only option is to scale back the business which would no longer make economical sense to continue, and locating the business offsite, or even a portion of the business offsite, is not a feasible alternative as address previously.”(Emphasis added.) In their February 26, 2008 Second Supplemental Burden of Proof, the applicants state in relevant part: “* * * Applicant requires additional square footage of warehouse space in order for his home-based business to be profitable. Applicant has tried to generate profits with other businesses but has failed. The business that he is doing now through UDI Corporation makes a profit and can support Applicant and his family. But the application of DCC 18.116.280(E)(3) and (5) prevents that business from making a profit.” Finally, in their March 18, 2008 post-hearing statement, the applicants stated in relevant part: Kulin V-08-1 Page 26 of 27 “Mr. Kulin is not able to locate the business offsite due to his disability which renders him unable to commute to an offsite location.” As the above-quoted statements show, the applicants’ arguments again mix disability and general profitability considerations. In addition, the applicants’ numerous statements that they cannot relocate their business or any part thereof off-site due to Mr. Kulin’s disabilities simply are not supported by evidence in the record. While Mr. Kulin’s disabilities prevent him from driving from his home to another location, the applicants have not explained why he could not be driven by another person to an off-site business location, or why the applicants’ employees could not travel to and from an off-site business or warehouse location. The applicants submitted letters from three medical professionals who have treated or are treating Mr. Kulin documenting the nature and extent of his disabilities (Exhibits 1, 2 and 3 to the February 26, 2008 Second Supplemental Burden of Proof). Yet none of these professionals stated Mr. Kulin’s disabilities would prevent him from traveling by vehicle to and from an off-site business location, or that his health or safety would be endangered thereby. In the absence of evidence demonstrating a nexus between Mr., Kulin’s disability and the use of 6,460 square feet of floor area on the subject property for his business, the Hearings Officer finds the applicants have not demonstrated application of the 35-percent floor area limitation would discriminate against Mr. Kulin on the basis of his disability. To the contrary, I find the applicants’ evidence merely demonstrates it would be more expensive – and less profitable -- for Mr. Kulin to operate his business and/or store his merchandise on land properly zoned for it than on his EFU-zoned parcel. Therefore, I find the applicants have not demonstrated denial of their proposed variance to the 35-percent floor area limitation would violate the ADA. And even assuming for purposes of discussion that the applicants had carried their burden of demonstrating application of this home occupation standard unduly burdens Mr. Kulin because of his disability, I find the “reasonable accommodation” the applicants request – i.e., to allow the applicants’ non- farm related business to operate on 6,460 square feet of floor area in non-residential structures – would not be “reasonable” because it would fundamentally alter the nature of the county’s land use regulations related to home occupations. As discussed in the findings above, I have found allowing the requested variance to the floor area limitation would be inconsistent with both the purpose of the home occupation standards and the comprehensive plan goals, objectives and policies to preserve and protect EFU-zoned land for agricultural uses. Approval of the proposed variance would open the door for establishment of non-farm related businesses on EFU-zoned parcels in contravention of these policies. For the foregoing reasons, the Hearings Officer finds the applicants have not demonstrated the denial of their requested variance to the 35-percent floor area limitation for Type 3 home occupations violates the ADA. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby: • DENIES the applicants’ proposed variance to the Type 3 home occupation standards in Section 18.116.280 to authorize use of a business floor area greater than 1,024 square Kulin V-08-1 Page 27 of 27 feet (35 percent of the 2,925-square-foot combined floor area of the dwelling and the personal garage space within the 2,600-square-foot barn/shop building); and • APPROVES the applicants’ proposed variance to the Type 3 home occupation standards in Section 18.116.280 to authorize up to four (4) on-site employees of the applicants’ business, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: 1. This approval is based on the applicants’ submitted application, burden of proof statements, supplemental materials and written and oral testimony. 2. This variance is approved as a “reasonable accommodation” of applicant Steven Kulin’s disability to avoid discriminating against him under the provisions of the Americans with Disabilities Act, 42 U.S.C., and is personal to Mr. Kulin. This variance is void if and when Mr. Kulin no longer resides on the subject property and/or no longer operates his business on the subject property. Dated this _______ day of May, 2008. Mailed this _______ day of May, 2008. ___________________________ Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED.