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HomeMy WebLinkAboutStaff Report - Vander Zanden File No.: A-08-2 (MP-07-29) Page 1 of 3 MEMORANDUM DATE: October 7, 2008 TO: Board of County Commissioners FROM: Cynthia Smidt, Associate Planner RE: Appeal (A-08-18) by Vander Zanden of Hearings Officer decision approving a Type 3 home occupation for a cabinet manufacturing business. Before the Board is an appeal filed by the applicants, Bruce and Peggy Vander Zanden. The appeal is submitted in response to the Hearings Officer’s decision approving the applicants’ proposed Type 3 home occupation of a cabinet manufacturing business. The applicants appeal the approval of the home occupation requesting the Board reconsider five (5) conditions of approval set forth by the Hearings Officer. The conditions of approval the applicants request reconsideration of include the hours of operation, number of employees, and business-related vehicle trips per day authorized for the home occupation. Furthermore, the conditions of approval requiring landscaping and the potential of an evaluation, paid by the applicants, of the noise and sound pressure levels generated by the home occupation. BACKGROUND The 20-acre subject property is located on 7236 SW McVey Avenue and is further identified on County Assessor tax map 16-12-02C as tax lot 700. It is owned by Bruce and Peggy Vander Zanden. The applicants filed for a conditional use permit, file no. CU-08-11, to request a Type 3 home occupation on the subject property. As a result of submitted comments by neighbors regarding traffic, environment, property values, and commercial impacts and growth to the area, the application was referred to the Hearings Officer and heard on June 10, 2008. The Hearings Officer issued a decision approving the home occupation on September 3, 2008. On September 16, 2008, the applicants filed a notice of appeal of the Hearings Officer’s decision and requested a partial de novo review. Due to the time constraints on the 150-day time line, which expires on October 17, 2008, for processing land use decisions, the appellants will extend the clock for any time necessary for the Board to review the appeal. Based on the filed notice of appeal, the applicants request the Board to reconsider five conditions of approval set forth by the Hearings Officer and include Conditions of Approval 7, 8, 9, 12(c), and 13. The following describes the intent of the Hearings Officer for each condition and the argument by the applicants: File No.: A-08-18 (CU-08-11) Page 2 of 3 Condition of Approval No. 7 : This condition limits the hours of operation to 7:00 a.m. to 5:00 p.m. Monday thru Friday and no more than two (2) Saturdays per month from 9:00 a.m. to 3:00 p.m. The Hearings Officer made this condition to ensure that the home occupation did not unreasonably interfere with other uses in the Exclusive Farm Use (EFU) zone. The basis of this was derived from a former home occupation decision, County file CU-08-2. The applicant argues the restriction on operation is not supported, as they do not see an impact to the uses found in the EFU zone or surrounding area. The applicants request that the hours of operation be approval as Monday through Saturday, 9:00 a.m. to 5:00 pm. Condition of Approval No. 8: This condition of approval restricts the business operation to be the applicant/owner and two additional employees. The Hearings Officer made this condition of approval because, although the applicant requested the right to have an additional three (3) employees, they spoke solely to the business operated by the applicant/owner and two employees. The applicant did not address vehicle trips, adequacy of parking, and the potential of greater impact of the increased intensity of activity. The applicants argue the decision is in error because the analysis includes consideration of factors not relevant to the satisfaction of this criterion. Moreover, the applicants argue that issues regarding business related trips and noise impacts were addressed initially. In the appeal application, the applicant introduces new information to address additional parking space. Condition of Approval No. 9: Condition of Approval no. 9 limits business related trips to five (5) per day. The Hearings Officer made this condition of approval with the understanding that the business will have two employees reporting to work each day and the potential of two deliveries per day and one customer per day. As indicated above, the applicants did not address the impacts of having an additional three employees reporting to work. Further, initial comments from the neighbors expressed concern about the increase in traffic to the area. The applicants argue the County Code permits up to 20 vehicle trips per day. Condition of Approval No. 12(c) : In the third part of Condition of Approval no. 12, 12(c) in this case, of the Hearings Officer decision it states, “… upon any request of the Deschutes County Planning Division to have the actual noise level and sound pressure levels monitored and evaluated under actual full operation conditions by an independent contractor acceptable to the Deschutes County Planning Division and paid for at the sole expense of the applicant.” The applicants agree to restrict the decibel levels emitted from the structure to 50 or less, as allowed in the Decision. However, they would like to see parameters set for this condition. The applicants indicate this is “ripe for abuse by neighboring landowners that oppose” and thus driven by complaints at the expense of the applicants. The applicants also argue such an evaluation can be expensive. Therefore, the applicants propose that if a test were warranted, depending on the test results would determine who would be accountable for the evaluation expense. Condition of Approval No. 13 : This condition requires vegetation to be retained on-site as well as introducing eight (8) additional trees; four trees on each side (north and south) of the detached shop. The Hearings officer made this condition to ensure effective screening of the detached shop and the business. The loading and unloading berths, customer parking, and employee parking are located on the north side of the shop. One business related truck and 18-foot enclosed utility trailer will be parked on the south side of the shop. The applicants agree to plant four trees on the north side of the shop but request the removal of the verbiage, “clustering” of the trees. The applicants indicate that this will provide a more effective screening of the shop. Further, due to layout of the driveway, house, and horse File No.: A-08-18 (CU-08-11) Page 3 of 3 corral, clustering would not work in the area as a tree would be planted in the driveway and corral. The applicants would also like to avoid introducing trees on the south side of the shop. The applicants argue that the screening was intended for the loading and unloading area on the north side of the structure. APPEAL The notice of appeal describes relevant background facts and the reasons for appeal. As detailed in DCC 22.32.020(A), the Board should review the notice of appeal to determine that it’s sufficiently specific so that the Board is able to respond to and resolve each issue in dispute. If the Board decides to hear the appeal, the review shall be on the record unless the Board, under its own motion, decides to hear the appeal de novo (DCC 22.32.027(B)(1) and (3)). As noted above, the appellants have requested a de novo hearing. Per DCC 22.32.027(B)(4), the Board, may, at its discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal, or to one or more specific issues from among those listed on the notice of appeal. DECLINING REVIEW If the Board of County Commissioners decides that the Hearings Officer’s decision shall be the final decision of the County, then the Board shall not hear the appeal and the party appealing may continue the appeal as provided by law. The decision on the land use application becomes final upon the mailing of the Board’s decision to decline review. As indicated in DCC 22.32.035(B) and (D), in determining whether to hear an appeal, the Board may consider only: 1) The record developed before the Hearings Officer; 2) The notice of appeal; and 3) Recommendations of staff. STAFF RECOMMENDATION Staff recommends the Board not hear this appeal because staff believes that the applicant/appellant was able to present all relevant evidence at the hearing before the Hearings Officer. Staff agrees with the Hearings Officer’s analysis and decision. In addition, staff does not believe the Hearings Officer decision presents a policy issue. SCHEDULE This item is scheduled for the Board’s regular meeting on October 8, 2008. Please feel free to contact me at your convenience with any questions or concerns.