HomeMy WebLinkAbout2008-11-10 Exhibit Vanderzanden AppealBRYANT
EMERSON
& FITCH, LLP
Attorneys at Law
September 16, 2008
Deschutes County Community Development Department
117 NW Lafayette Ave
. Bend, OR 97701
RE: Bruce and Peggy Vanderzanden
CU -08-11
Greetings:
Enclosed please find the following documents for filing:
Notice of Appeal Partial De Novo Review w/Exhibits:
Exhibit A -
Exhibit B -
Exhibit C -
Exhibit D -
Ronald L. Bryant *
Craig P. Emerson
Edward P. Fitch
Steven D. Bryant
Michael R. McLane
Michael W. Flinn
Lisa D.T. Klemp
Alison M. Trimble
Tony E De Alicante *
* Also admitted la Washington
Decision of Deschutes County Hearings Officer
CU -08-11 Tax Map 16 -12 -02 -CO -00700
Richard and Shirley Langston Letter
Response to Deschutes County Planning Division Staff Report and
Neighbor Comments, and Supplemental Information
Also enclosed is my firm's check in the amount of $2185.00 to cover the filing fee.
Please contact me if you need any additional information.
/pbj
Enclosures
cc: clients
Sincerely,
BRYAN ON & FITCH, LLP
A D.
RECEIVED
BY:
SEP 1 0 2008
ERED BY:
G:\Clients\LDK\VanderZanden, Bruce & Peggy\Vanderzanden, Bruce & Peggy LU\Deschutes County Community Development.ltr 09.16.08.wpd
888 S.W. Evergreen Ave. P.O. Box 457 Redmond, OR 97756-0103
(541) 548-2151 Fax (541) 548-1895 E-mail bef@redmond-lawyers.com
u Community Development Department
0 Planning Division
117 NW Lafayette Avenue, Bend, OR 97701-1925
(5411388-6575 - Fax (5411385-1764
http://www.deschutes.org/cdd
APPEAL APPLICATION
FEE: ' 3J .5
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
It is the responsibility of the Appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County
Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete
all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal.
Appellant's Name (print): er vdc A. Vcn/et 2a�zh Phone: (syr ) S+ «777
Mailing Address: 7.23 .6 b'4/ /114VGy �ve. City/State/Zip: RJwtinV s 6i 377SL
Land Use Application Being Appealed: 0.1.A.- D bU" 1
Property Description: Town ip 16 Range ie.. =ection 0g, Tax Lot 100
Appellant's Signature: y '
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(over)
05s. --1W
1/07
BEFORE THE BOARD OF COMMISSIONERS
FOR DESCHUTES COUNTY
In re: Land Use Application of:
BRUCE AND PEGGY VANDERZANDEN DECISION CU -08-11
NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Come now, BRUCE AND PEGGY VANDERZANDEN, and appeal the Hearings
Officer's decision dated September 4, 2008, a copy of which is attached hereto as Exhibit A.
This appeal is timely filed on the date the appeal time runs: September 16, 2008. According to
the decision, the 150 -day period governing this application expires on October 17, 2008. The
Applicants agree to extend the clock as necessary in order to provide the Board of
Commissioners time to hear this appeal.
Applicants appeal the approval of a home occupation use for a cabinet manufacturing
business to request the Board of Commissioners reconsider five of the conditions of approval
which are not required by the County Code, not supported by the facts, and which are ripe for
abuse by neighboring landowners at the sole financial expense of the applicants. The applicants
request partial de novo review to submit a letter from a neighboring landowner which objects to
the requirement that trees be planted along the shared property boundary (Exhibit B), and to
address the traffic impact of only eight vehicle trips per day associated with the home
occupation.
Specifically, Applicants appeal the following conditions of approval:
Page 1 - NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Bruce and Peggy Vanderzanden
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BRYANT, EMERSON & FI'I'CH, LLP
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVER E
P.O. BOX 457
REDMOND, OREGON 97758-C 03
TELEPHONE (541) 548-215
FAX (541) 548-1895
1. Conditions of Approval No. 7:
Hours of operation for this home occupation shall be limited to 7:00 a.m. to 5:00
p.m., Monday through Friday and no more than two (2) Saturday's per month
from 9:00 a.m. to 3:00 p.m.
2. Conditions of Approval No. 8:
The applicant/owner and two (2) additional employees are the only employees
authorized under this decision.
3. Conditions of Approval No. 9:
The home occupation may generate no more than five (5) business-related vehicle
trips per day to the site. This includes trips generated by a maximum of two (2)
employees reporting to the property for work, two deliveries, and one customer.
4. Conditions of Approval No. 12(c): (only subsection (c) is appealed)
The home occupation shall not produce prolonged odor, dust, glare, flashing
lights, noise, smoke, or vibrations in excess of that created by normal residential
use. Additionally, the applicant is required (a) at all times to keep the noise level
of his home occupation operation below 50 decibels at all points beyond the
exterior wall of the accessory structure where the business is operated, (b) at all
times to also keep the sound pressure level below 50 dBLAeq at all points beyond
the exterior wall of the accessory structure where the business is operated, and
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.
[emphasis added]
5. Conditions of Approval No. 13:
Trees and shrubs shall be retained onsite in all areas where they serve to screen
the detached shop and home occupation, except as necessary for construction of
access roads, building pads, septic drain fields and parking areas. (This condition
does not prohibit maintenance of existing lawns, removal of dead, diseased or
hazardous vegetation; the commercial harvest of forest products in accordance
with the Oregon Forest Practices Act or agricultural use of the land.)
Page 2 - NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Bruce and Peggy Vanderzanden
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BRYANT, EMERSON & FITCH,1.12
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE (541) 548-2151
FAX (541) 548-1895
In addition, the applicant shall plant and maintain the following trees within six
(6) months of the change of occupancy [building] permit for the detached shop.
Eight (8) trees shall be introduced to screen the detached shop from SW
McVay Avenue (north) and along the southern side of the structure, with
four trees on each side. The introduced trees shall be clustered together in
a triangular pattern and spaced approximately 10 feet apart from each
other as measured from center of tree. The trees shall be a mixture of
larger native species (for example, Lodgepole pines and Aspen). These
trees shall be a minimum of 5 feet tall at the time of planting.
I. Statement of Appeal
A. Conditions of Approval No. 12(c):
Applicants agree to restrict the decibel levels emitted from the structure to 50 decibels or
less, however, applicant requests that the Board of Commissioners put parameters on the
requirement that "upon any request" for a noise and sound pressure level evaluation, the
applicant bare the sole expense for the evaluation. As written, this requirement is ripe for abuse
by neighboring landowners that oppose the home occupation and without parameters on this
condition it can be abused by frivolous complaints all at the sole expense of the Applicants.
The record includes a chart which shows 50 decibels is equivalent to a low voice or
refrigerator in the home. Agriculture noise is approximately 40 decibels and with an air
conditioner, the average home noise rates at approximately 50 decibels. The property is zoned
EFU, MUA-10, and has an airport combining zone overlay which means it is within the flight
corridor for the airport, and it is near McVey Avenue. Automobile traffic has an average decibel
rating of 100 and small aircraft engines average 120 decibels. (Exhibit D, Pg. 6) Therefore, the
surrounding neighborhood already has these existing decibel levels. In addition, the 50 decibels
that are allowed by the decision would be dissipated across the 20 acre parcel, and deflected by
Page 3 - NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Bruce and Peggy Vanderzanden
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BRYANT, EMERSON & FF CH, up
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENIE
P.O. BOX 457
REDMOND, OREGON 977584 103
TELEPHONE (541) 548-215
FAX (541) 548-1895
existing structures and vegetation. Therefore, it is unlikely much of any noticeable sound
attributed to the home occupation will be realized by the opposing neighbors which are over 900
lineal feet away.
Applicants propose that if a complaint is filed, the County make an inspection of the
situation first, and if upon inspection further testing is deemed warranted, then the County
request evaluation of the operation. If the test results show the noise and sound pressure is
within the range permitted by the approval, then the complainant shall be held accountable for
the evaluation expense - perhaps the County may collect a deposit for the estimated amount of
the evaluation before further investigation is undertaken by the county. If the results exceed the
permitted levels, then the applicant will be responsible for the expense of the evaluation. Since
the only known professional evaluators are in the Portland area the evaluation expense can be
considerable, and this is a reasonable compromise to avoid abuse of this criteria at the sole
expense of the Applicants.
B. Conditions of Approval No. 13:
The Decision requires that there be four trees clustered in a triangular pattern and spaced
approximately ten feet apart from each other as measured from the center of the tree. (Exhibit B)
The Applicants would like to avoid planting trees that the County ultimately will conclude do not
satisfy the conditions of approval, and would like the condition modified to address the
Applicants' concerns.
The Applicants agree to plant additional trees to screen the existing shop from McVey
Avenue, but propose the condition of approval be modified to remove the "clustering"
Page 4 - NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Bruce and Peggy Vanderzanden
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BRYANT, EMERSON & FITCH,LLP
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE (541) 548-2151
FAX (541) 548-1895
requirement and to allow the trees to be planted as illustrated on Exhibit B. The proposed
planting will actually fill in the space between existing trees and provide more effective
screening of the shop from McVey Avenue. Because of the layout of the existing structures and
agricultural operations on the property, the trees cannot be clustered as required by the Decision.
Specifically, the Applicants have an existing corral, isolation stalls, and a large firewood storage
area as indicated on the site plan. Any additional trees planted in the corral area would effect the
use of the agricultural land. The corral area is used as a riding arena, and planting trees in the
arena creates a hazardous condition, and it is likely any new trees would be consumed by the
horses if planted in either the corral or isolation stall. Finally, the required clustering would
impede into the drive and residential parking area and would restrict fire apparatus mobility.
In addition, the Decision requires that there be trees planted along the southern boundary
of the property. The neighbor to the south has submitted a letter to the Board opposing the tree
planting along the shared property boundary. (Exhibit C) In addition to the objection by the
neighbor, the trees on the southern boundary would restrict access to the existing barn illustrated
on Exhibit B. The alleged purpose of the tree planting is to screen the loading and unloading of
the vehicles. The vehicle parking and loading and unloading cannot be seen from the southern
boundary or residential neighbor because of the existing machine shop and barn as illustrated on
Exhibit B and existing trees along the boundary.
C. Conditions of Approval No. 8:
The Home Occupation Code allows a maximum of five employees for the home
occupation because the property is zoned EFU and at least ten acres in size, however, the
Page 5 - NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Bruce and Peggy Vanderzanden
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BRYAN' L EMERSON & FI' 'CH, ur
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVE! JE
P.O. BOX 457
REDMOND, OREGON 977584 103
TELEPHONE (541) 548-21',
FAX (541) 548-1895
decision only allows two (2) employees even though the application satisfies this criteria. The
decision is in error that the Applicants did not satisfy its burden of proof for this condition.
Even the staff report concluded that this criteria was satisfied which entitles the Applicants up to
five employees. However, the analysis in the decision includes consideration of factors not
relevant to the satisfaction of this criteria, and which are specifically addressed in separate
sections of the Code. Moreover, the decision is in error that the applicant did not address any
noise impact with more than two (2) employees.
The analysis of this criteria goes beyond the zoning and size of the parcel and considers
the noise emissions, the parking location, the vehicle trips, and the hours of operation which are
all specifically addressed in the analysis of other applicable criteria. Specifically, a separate
criteria requires analysis of the daily vehicle trips to the property by employees, customers or
clients, and parcel delivery services. In fact, the Applicants did address up to five vehicle trips
per day to the subject property, and established that the Applicant requested approval for up to
five (5) employees with this application, although only expected to employ two (2) employees at
the outset. The applicant established that the proposed vehicle trips are well below the twenty
(20) business related vehicle trips to the site per day allowed by the Code for employees,
customers or clients, and parcel deliveries. (Exhibit D, Pg. 8) Even with five (5) employee trips
per day, there are at most only three (3) additional parcel delivery trips to the property per day,
and no customer or client trips are expected. Therefore, the total of eight (8)vehicle trips with
five (5) employees is well below the twenty (20) vehicle trips allowed by the Code. Applicants
submitted that the minimal traffic generated would not impact the surrounding land uses, and
Page 6 - NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Bruce and Peggy Vanderzanden
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BRYANT, EMERSON & FITCH, us
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE (541) 548-2151
FAX (541) 548-1895
even the staff concluded that any traffic generated by the proposed use would be considered
minimal. (Exhibit D, Pg. 8)
In addition, contrary to the Decision, the Applicants did submit that there is ample space
on the 20 -acre parcel, including around the existing structures, to locate parking. As indicated in
the Decision, there is ample room for more vehicle parking in front of, north of the accessory
structure. (Exhibit A, Pg. 15) Applicants propose that the employee parking would be located
east of the existing machine shop. (Exhibit B) There is over 950 feet to the east property line
from the east side of that building, and there is a row of trees that bound the east side of the
property which provides additional screening for any vehicle parking on that side of the building.
Finally, the Decision assumes that there would be a potentially greater impact of a more
sustained level of noise on surrounding land use that would likely result from the increasing
intensity of activity that presumably would result from having more employees. However, the
analysis in the Burden of Proof and Response Statement submitted by the Applicants addresses a
decibel level of 103 from an OSHA study of the Applicants' previous wood shop which operated
with twelve employees. Applicants used this figure as the worse case scenario for the proposed
use knowing that no more than six (6) people would be operating machinery at any given time.
The structure's Reward Wall System 11" iForm construction reduces any noise emission for a
total decibel level of 38 to 55 from the opposite side of the walls. (Exhibit A, Pg. 14; Exhibit D,
Pg. 5) Again, the original figure used for the calculation derived from a study of noise generated
by 12 employees - obviously fewer employees would generate a lower decibel level of noise.
Therefore, the decision is in error that the impact of the noise level might be greater than what
Page 7 - NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Bruce and Peggy Vanderzanden
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BRYANT, EMERSON & FI7 CH, UP
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENI, E
P.O. BOX 457
REDMOND, OREGON 97756-0 73
TELEPHONE (541)548-215'
FAX (541) 548-1695
was addressed by the Applicants if five employees are permitted.
Again, all of the issues raised as concerns in allowing additional employees are addressed
in response to other criteria, and the noise level is restricted by a condition of approval to 50
dBLaeq regardless of whether there are two or five employees. Finally, the total of eight (8)
vehicle trips per day that might be realized by a full scale operation with five (5) employees is
significantly less than the twenty (20) business related vehicle trips permitted by the Code.
Applicant respectfully requests the Board of Commissioners allow up to five (5) employees.
D. Conditions of Approval No. 9:
The Applicants request that consistent with an approval of five employees that at least
eight (8) vehicle trips per day be approved for the home occupation. A vehicle trip is considered
round trip, and the Code allows for up to twenty (20) vehicle trips per day. The eight (8) trips
include five (5) employee trips, one delivery of accessories per day by van, a delivery of wood
once a week, and UPS deliveries. It is not expected that customers or clients would visit the
property.
E. Conditions of Approval No. 7:
Applicants applied for approval of the hours of operation for Monday through Saturday, 7
a.m. to 5 p.m., but the decision only approves two Saturdays a month from 9 a.m. to 3 p.m.
(Exhibit A, Pg. 5) In considering whether the proposed operation would "unreasonably
interfere" with other uses permitted in the EFU zone, the other uses in the surrounding area were
summarized as either rural residential in nature and small and medium sized farming operations.
(Exhibit A, Pg. 9)
Page 8 - NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Bruce and Peggy Vanderzanden
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BRYANT, EMERSON & FITCH, U2
ATTORNEYS AT LAW
8B8 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE (541) 548-2151
FAX (541) 548-1895
The operations will be conducted entirely within the accessory building constructed of a
concrete wall system which decreases the total decibel levels emitted from the building as
discussed previously, and on-site the building is clustered in and around existing residential and
farm related structures. (See Exhibit B) Staff concluded that the proposed operations would not
even interfere with other permitted uses that may occur on the EFU zone parcel itself. (Exhibit
A, Pg. 8-9) Moreover, the property is 20 acres in size, and the nearest residences are more than
400 feet away from the shop building, and others, including the residences of the opponents, are
even considerably further away. (Exhibit A, Pg. 10) The distance will have the effect of
reducing any effect from noise generated by the proposed home business on surrounding
properties. (Exhibit A, Pg. 10)
Therefore, the restriction on operations for Saturdays is not supported by the Decision.
There was no "unreasonable interference" with other uses permitted in the EFU zone found nor
even any impact on the surrounding property. If the operations Monday through Friday 7:00
a.m. to 5:00 p.m., and every other Saturday do not "unreasonably interfere" or even impact the
surrounding uses, then it would follow that the additional Saturdays and the extra two hours on
those Saturdays, would also not have any `unreasonable interference" as required by this criteria.
Applicants respectfully request that the Board of Commissioners approve hours of
operation for Monday through Saturday, 7:00 a.m. to 5:00 p.m. In the alternative, the Applicants
would request that if restricted hours on Saturdays are deemed necessary by the Board of
Commissioners, that the hours of operation be permitted for each Saturday of the month 9:00
a.m. to 3:00 p.m.
Page 9 - NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Bruce and Peggy Vanderzanden
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BRYANT, EMERSON & FIT( H, Iip
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-01C
TELEPHONE (541) 548-2151
FAX (541) 548.1895
II. CONCLUSION.
Consistent with the foregoing, the Applicants respectfully request the conditions of
approval be modified as requested.
DATED this 16th day of September 2008.
Respectfully submitted,
ATTACHMENTS:
Exhibit A -
Exhibit B -
Exhibit C -
Exhibit D -
BRYANT, EMERSON & FITCH, LLP
EMP, OSB #0 0012
orne, s for Bruce & Pe:gy VanderZanden
888 SW E ergreen Avenue - P.O. Box 457
Redmond, OR 97756
541.548.21 1 - 54 = :.1895 (fax)
Email: lisa@redmond-lawyers.com
Decision of Deschutes County Hearings Officer
CU -08-11 Tax Map 16 -12 -02 -CO -00700
Richard and Shirley Langston Letter
Response to Deschutes County Planning Division Staff Report and Neighbor
Comments, and Supplemental Information
Page 10 - NOTICE OF APPEAL
PARTIAL DE NOVO REVIEW
Bruce and Peggy Vanderzanden
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BRYANT, EMERSON & FITCH, ur
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97758-0103
TELEPHONE (541) 548-2151
FAX (541) 548-1895
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER:
APPLICANT/
PROPERTY OWNER:
APPLICANT'S
REPRESENTATIVE:
REQUEST:
STAFF CONTACT:
HEARING HELD:
RECORD CLOSED:
CU -08-11
r 2nnq
SEF
Bruce and Peggy Vander Zanden
7236 SW McVey Avenue
Redmond, Oregon 97756
Lisa Klemp
Bryant, Emerson & Fitch, LLP
Post Office Box 457
Redmond, Oregon 97756
The applicant is requesting approval of a conditional use permit to
operate a Type 3 home occupation within the Exclusive Farre Use
zone. The home business entails cabinet manufacturing.
Cynthia Srnidt, Associate Planner
June 10, 2008
July 8, 2008
. APPLICABLE CRITERIA:
Title 18, Deschutes County Zoning Ordinance
A. Chapter 18.04, Title Purpose and Definitions
B. Chapter 18.16, Exclusive Farm Use Zone
1. Section 18.16.030, Conditional Uses Permitted — High Value and Nonhigh Value
Farmland
2. Section 18.16.040, Limitations on Conditional Uses
3. Section 18.16.070, Yard and Setback Requirements
C. Chapter 18.32, Multiple Use Agricultural Zone
1. Section 18.32.030, Conditional Uses Permitted
D. Chapter 18.116, Supplementary Provisions
1. Section 18.116.280, Home Occupations
E. Chapter 18.128, Conditional Uses
1. Section 18.128.015, General Standards Governing Conditional Uses
Title 22, Deschutes County Development Procedures Ordinance
EXHIBIT
II. BASIC FINDINGS:
A. LOCATION: The property is located at 7236 SW McVey Avenue, Redmond and is
identified on Deschutes County Assessor's Map 16-12-02C as tax lot 700.
B. LOT OF RECORD: Deschutes County has recognized this subject property as a legal
lot of record because it has multiple land use and development permits issued to the
property (see, for example, LM -97-8,.B-75-870, and B39909).
C. ZONING: The property is zoned Exclusive Farm Use (EFU) — Tumalo/Redmond/Bend
subzone on the western portion of the property and Multiple Use Agricultural (MUA10)
on the east. Theproposed home occupation will occur on the EFU portion of the
property. The property is also within Landscape Management (LM) and Airport Safety
(AS) Combining zones.
D. LAND USE HISTORY: The existing dwelling was originally constructed in 1924. In
1975, the County issued a permit to construct a small shed on the subject property (permit
no. 75-870). On March 16, 1992, through file no. LL -92-25, the County approved a
property line adjustment between the subject property and tax lot 900 to the south.' The
County approved a site plan review (LM -97-8). on June 9, 1997 to construct a detached
machine shop/bam (AG978) and an addition to the existing single-family dwelling
(B39909). In October 1998, the County approved a 2,592 square foot livestock barn in
the southern portion of the property with building permit no. AG9899. An existing 1,025
square foot shop/wood shed was replaced with a larger, 5,040 square foot (3,000 square
foot building footprint) structure in 2007 through building permit no. B65968. Although
the record is somewhat confusing on this point, this newer shop was approved either as
an extension to a 1,872 square foot machine shop/barn established in 1997 or as a stand-
alone building. It is the newer 5,040 square foot replacement shop structure that will
house the proposed home occupation and, based on County records, was built with this
intention. The Building Safety Division's records for permit B65968 was that the
"intended use [of the building was] ... for home occupation." This intention was also
reiterated in the completed Statement of Intended Use and goes as follows:
"Upstairs to be used as [an] unfinished storage area for personal property.
Downstairs: Owner will be filing for a Conditional Use Permit Home
Occupation... for cabinet manufacturing business."
County staff signed off on the permit indicating the shop shall only be used for residential
use and not as a commercial cabinet business without proper land use approval.
E. SITE DESCRIPTION: The subject property is approximately 20 -acres with varying
terrain. The property has an inverse "L" shape and vegetated with juniper trees,
' Prior to the approval of file LL -92-25, the County approved a property boundary adjustment (File No.
LL -91-98) between tax lots 700 and 900 (tax map 16-12-02C) on July 23, 1991. However, County
records indicate that this earlier boundary adjustment was not completed and was superseded by the
1992 boundary adjustment.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 2 of 30
deciduous trees, and introduced pasture grasses. The southern portion of the property is
designated as dry pasture and the northern portion is irrigated pasture. Access to the
property is taken from, but does not abut, McVey Avenue in the northwest corner of the
property. The site is developed with a single-family dwelling, two barns, one large
detached shop, a small accessory structure, and a gravel driveway.
There are. substantial discrepancies between County records and the applicant's
statements, with regard to the actual building sizes for those structures that are relevant to
this application. The initial recommendations by staff on sizes of structures to be used
for calculation purposes reflected this discrepancy and were based on building permit
records. The various figures are not reiterated here because they are set out in detail in
the staff report and are part of the record.
Subsequent to the hearing and during the open record period, staff determined that the
square footage figures specified in the Building Permit for the dwelling did not include
the attached garage. By memorandum to the Hearings Officer dated June 24, 2008, staff
concurred with the applicant's attorney, Lisa Klemp that the appropriate square footage
to use for the dwelling, including the attached garage is 4,158 square feet. That number
will be used throughout this decision.
The shop structure within which the applicant proposed to conduct the cabinet -building
business also caused some confusion with regard to determination of size. This is
becausethe new shop building could be regarded as an extension to a 1,872 square foot
machine shop/barn established in 1997. Staff initially utilized the largercombined
square footage (6,912 square feet) of the new shop and the machine/shop barn in the
analysis of the conditional use application. At thehearing and in materials submitted
subsequent to the hearing, the applicant clarified that the new shop was only connected to
the older machine shop/barn through a common roofline, with the two structures being
approximately one (1) inch apart and having separate load bearing walls. Building plans
were provided to document that position. On that further basis, in its supplemental
memorandum of June 24, 2008, staff recommended that the proposal be reviewed using
only the area of the new shop (5,040 square feet). I concur in that analysis and find that it
is reasonable to regard a shop and a machine shop/barn sharing only a common roofline,
but with separate load bearing walls, to be separate "structures" forpurposes of this
application. It follows, therefore that the relevant accessory. structure (shop) contains
5,040 square feet of floor area. The combined square footage of the dwelling (with
attached garage) and the accessory structure (shop) is 9,198 square feet.
The site also contains a property perimeter fence as well as internal fencing. According
to staff, the Flood Insurance Rate Map (FIRM) for Deschutes County and the National
Wetlands Inventory show the subject property is not situated in the 100 -year flood plain
nor does it contain wetlands. These were verified by a staff site visit on May 16, 2008..
F. SURROUNDING LAND USES: The area surrounding the subject property consists of
rural residential properties and farm parcels. Farm zoned parcels of varying sizes lie to
the north, south, west, and southeast of the subject property. Southwest McVey Avenue
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 3 of 30
borders the property in the northwest corner of the property. To the east and northeast of
the property there are residentially zoned subdivisions including of Nine View Estates,
Chaparral Estates and Thompson Estates (unrecorded subdivision). The properties in
these areas range in size from about L3 to 10 acres. To the west and northwest, across
SW McVey Avenue are small farmed zoned parcels and the Deschutes River. Beyond
the river are large U.S. Bureau of Land Management parcels. Zoning. in the area is a
mixture of Exclusive Farm Use (EFU), Multiple Use Agricultural (MUA10), and Flood
Plain (FP).
G. SOILS: According to Natural Resources Conservation Service (NRCS) maps of the
area, there are two soil units mapped on the subject property. The two soil units are
138A, Stukel sandy loam (0-3% slopes) and 141C, Stukel-Deschutes-Rock Outcrop
complex (0-15% slopes). Approximately 54% of the property is comprised of Unit 138A
and 46% is 141C. The majority of the existing structures are located at the boundary of
the two soils. The dwelling appears to be sited on a dry, unirrigated area of soil unit
138A. The two barns and the detached shop are in the same area but appear to be located
in soil unit 141C. According to the NRCS, the major uses of these soils are livestock
grazing and are not considered high value farmland when irrigated.
H. PROPOSAL: The applicant/property owner is .requesting approval of a .conditional use
permit to establish a home occupation on the subject property. The home occupation
consists of cabinet manufacturing. The cabinet manufacturing business will occupy
3,000 square feet in a detached shop (the entire first floor of the structure).2 The
applicant does not propose to, use space in the existing. dwelling. The entire second story
of the shop building will be designated for personal use. The Supplemental Application
for a Type 2 and Type 3 Home Occupation Conditional Use Permit submitted by
applicant indicated that table saw, dust collector, air compressor, spray booth, shapers
and miscellaneous power tools would be used in the business. At. the hearing, the
applicant indicated that the work to be performed involved cutting 4/8 sheets of plywood,
assembling the cut materials into cabinets and lacquering them. The applicant proposes
the manufacturing work to be done inside the existing shop. One business related truck
and one 18 -foot enclosed utility trailer will be parked outside next to the building. No
outside storageis proposed. The proposed home occupation will include two (2)
employees with the potential to increase to five (5) and will generate approximately three
(3). to five (5) vehicle trips per day.3 The applicant expects few or no customers on-site
2According to the information initially submitted by the applicant, the single-family dwelling with
attached garage and existing shop are 4,320 square feet and 5,000 square feet, respectively, in size.
However, the applicant subsequently submitted information revising those figures slightly, and both staff
and the applicant now agree that the size of the dwelling with attached garage is 4,158 square feet and the
size of the shop building is 5,040 square feet. See the discussion under site description above for more
detailed information.
3 The initial application indicated that the proposed home occupation would include two (2) employees.
In its Burden of Proof the applicant modified and clarified its proposal by indicating that "although the
applicant is proposing two employees at this time, the applicant reserves the right to have additional
employees within the limits of the code if necessary in the future." The initial application also indicated
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 4 of 30
(no more than one per week). The proposed hours of operation will be Monday through
Saturday 7:00 a.m. to 5:00 p.m.
4
I. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several
agencies and received comments from the Deschutes County Assessor; Deschutes County
Building Division, Deschutes County Environmental Health Division, Redmond Fire and
Rescue, Pacific Power and Light, and the Swalley Irrigation District. Those comments
are contained in the record and are either summarized orset forth verbatim in the staff
report. For this reason they are not repeated here. To the extent the comments pertain to
the applicable approval criteria, they are addressed in the findings. The following
agencies did not respond or had no comments: Central Electric Cooperative, Central
Oregon Irrigation District, Deschutes County Property Address Coordinator, Deschutes
County Road Department, Oregon Department of Environmental Quality (DEQ), Qwest,
U.S. Bureau of Land Management (BLM), and Watermaster — District 11.
PUBLIC COMMENTS: The Planning Division sent notice of this proposal to all
property owners within 750 feet of the subject property. A notice of the public hearing
was published in the "Bend Bulletin" newspaper on May 18, 2008. Several written
comments in opposition to the application were received prior to the hearing. In
summary, these comments addressed concerns with traffic, access, environment, property
values, commercial impacts and growth to the area. At the hearing, the applicant, Bruce
Vander Zanden, the applicant's attorney, Lisa Klemp, and a neighbor testified on behalf
of the application. Two people testified in opposition. The applicant and opponents
submitted additional written comments during the period the record was held open.
K. NOTICE REQUIREMENT: The applicant complied with the posted notice
requirements of Section 22.23.030(B) of Deschutes County Code. (DCC) Title 22. The
applicant submitted a Land Use Action. Sign Affidavit, dated March 10, 2008, indicating
the applicant posted notice of the land use action on March 10, 2008.
L. REVIEW PERIOD: The application was submitted to the Planning Division on
February 26, 2008. An incomplete letter was sent on March 24, 2008 and the applicant
responded on April 23, 2008. Therefore, the Planning Division deemed this application
complete and accepted it for review on April 23, 2008. Notification of the public hearing
was posted in the Bend Bulletin Newspaper on May 18, 2008. As of the date of the
public hearing for this matter, June 10, 2008, staff estimated that 102 days remained on
the 150 -day review clock for this land use application. At the public hearing, applicant's
attorney Lisa Klemp requested that the record be held open for two weeks for submission
of additional materials.
that the business would generate 6-10 vehicle trips per day. However, the burden of proof statement
submitted later indicated that the home occupation would generate approximately three (3) to five (5)
vehicle trips per day.
4 The initial application indicated that the proposed home occupation would operate 5-6 days per week.
In its Burden of Proof the applicant modified and clarified its proposal by indicating that thebusiness
would operate Monday through Saturday from 7:00 a.m. to 5:00 p.m.
CU -08-11 (Vander Zanden) Hearings Officer's Decision
Page 5 of 30
Based on the applicant's request, the Hearings officer left the written evidentiary record
open through July 1, 2008 (two weeks for the submission of additional materials and one
week for submission of rebuttal materials in response to the prior submissions as called
for by ORS 197.763), and allowed the applicant through July 8, 2008 to submit final
argument pursuant to ORS 197.763. Because the applicantrequested the extension of the
written record, under Section 22.24.140(E) of the Deschutes County Code, the 150 -day
period was tolled for an additional 28 days, and now expires on October 17, 2008. As of
the date of this decision there remain 44 days in the extended 150 -day period.
III. CONCLUSIONARY FINDINGS:
Title 18 Deschutes County Zoning Ordinance.
A. CHAPTER 18.04. TITLE PURPOSE AND DEFINITIONS
"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 secondaryto the residential use
of the dwelling and/or the residential accessory structure.
FINDING: The applicant is proposing to establish a home occupation on the subject
property to conduct a cabinet manufacturing business as defined in the Proposal section
of this report. The home occupation will be carried out by the residing property owner
who will also employ two people. The entire business operation, office included, will be
inside the existing detached shop on the first floor. The existing dwelling with attached
garage is 4,158 square feet, the accessory structure is 5,040 square feet, and the proposed
business will occupy 3,000 square feet of the accessory structure. By definition, a home
occupation is one conducted within dwelling and/or a "residential" accessory structure.
Furthermore, for . a home occupation to be approved, the accessory structure shall be
accessory to the residence.5 Staff expressed the view that the structure and the business, if
approved, would not be incidental and subordinate to the residential use, citing to several
previous decisions of the Deschutes County Hearings Officer (see file nos. V-01-11 and
V-08-0) that found certain structures or uses not to be "incidental and subordinate" to the
principal use of property. Staff concluded that the accessory structure in the present
matter was not a residential accessory structure because it carried an assigned occupancy
code on the building permit that is exclusively used for commercial buildings, because
the accessory structure was established with the intent of using it for a business, and
apparently also because of the relatively large size of the accessory structure. While
each of these factors is perhaps indicative of whether a use or structure is an "accessory
use or accessory structure," none of them, individually or collectively, are controlling.
This is particularly the case where there is no statutory definition of the key term
5 The Deschutes County Code, Section 18.04.030, defines "Accessory use or accessory structure" as
follows: "Accessory use or accessory structure" means a use or structure incidental and subordinate to
the main use of the property, and located on the same lot as the main use....
CU -08-11 (Vander Zanden) Hearings Officer's Decision Page 6 of 30
"incidental and subordinate," and where there are quantifiable criteria elsewhere in the
county code, notably a square footage ratio, that implicitly address this matter.6
I find that the present matter is distinguishable from prior cases where the Hearings
Officer determined that the accessory structure was not "incidental and subordinate" to
the residential use. In Edwards (V-01-11), the applicant was requesting approval of
variances to make lawful an existing accessory structure previously constructed without
land use approvals. The accessory structure was located only 10-15 feet from property
lines. Abutting lots were all developed with dwellings and the accessory structure was
located a mere 20 feet from a dwelling on one of those adjacent properties. The subject
parcel was less than an acre in size, and the building that was the subject of the variance
was approximately 36 feet by 60 feet (2,160 square feet) in size and approximately 29
feet in height, with metal siding anda metal roof. The Hearings Officer acknowledged
that the use of the accessory structure was residential, but determined that the structure
itself was not "incidental and subordinate" to the residential use of the property on the
basis that the size and scale of the accessory structure, a pole barn, was "not consistent"
with other structures in the area. In reaching that conclusion, the Hearings Officer
referred to the "massive size and scale" of the building noting that it "dominates the
subject property and surrounding area.". The Hearings officer specifically pointed out
that the pole barn was considerably larger than other structures on the subject property,
and "at least twice the size of the next largest structure in the area." In the present case,
the proposed structure is. large, but not dissimilar in size or design from other structures in
the general area. Moreover, it is located on a much larger parcel (approximately 20
acres) and is a considerable distance from any dwelling on adjacent properties. Thus,it
does not dominate the subject property or surrounding area based on its size and scale.
In Acuna (CU -06-15), the applicant sought a conditional use . approval for a home
occupation on a 9.98 acre parcel to make legal .an existing insulation business that
involved a home office, storage of insulation materials in a separate structure (shed),
employee parking and parking for loading and unloading business trucks on the property.
The Hearings Officer concluded that the shed was not a "residential accessory structure"
as required to meet the requirements of a "home occupation:. on two grounds: (1) a
written statement in the county building records for the previously approved shop
building signed by theapplicant indicated that the building "will not be used for any
residential purpose or for any commercial purpose" and (2) because the Hearings Officer
determined that the shed .could not be considered a "residential. accessory structure"
merely because it is located on a parcel on which the applicant resides, where the entire
accessory structure was devoted to storage of insulation materials in connection with the
6 The Hearings Officer also notes that the Statement of Intended Use accompanying the applicant's
building permit application for the accessory structure clearly indicates that a significant portion of the
accessory structure was to be used for storage of personal property, with the balance to be used for the
home occupation of cabinet manufacturing. Moreover; the Building Permit Checklist prepared by staff
contains a specific note stating that the "shop shall only be used for residential purposes," unless the
applicant obtained a conditional use for a home occupation. These materials are consistent with a
determination that the accessory structure is a "residential" accessory structure.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 7 of 30
applicant's insulation business. In the present case, a significant portion of the accessory
structure, more than 2,000 square feet, is to be devoted to personal storage space for the
applicant, which clearly bears a relationship to the property's residential use.
Finally, in Kulin (V-08-1), the applicant requested approval of a variance from home
occupation standards for a five -acre EFU zoned parcel to increase the number of
employees (from 2 to 5) and the amount of usable building space devoted to their existing
business. In that case 6,460 square feet of floor area was occupied by the applicant's
existing business, which was far in excess of the 2,925 square feet of floor area in the.
applicant's dwelling and the residential garage portion of a barn/shop building. It is also
obviously greater than the 35% floor coverage allowed for a type 3 home occupation.
Given the size and scope of the business, the Hearings Officer found that it was also not
"secondary to the residential use of the dwelling and/or the residential accessory
structure," and therefore not a "home occupation," thus requiring the applicant to proceed
with a variance. In the present case, less than half as much square footage (3,000) is to
be devoted to the applicant's cabinet -building business while the amount of clearly
residential square footage is also significantly greater. Perhaps most importantly, the
total floor coverage requested for the conditional use in the present application is less
than the 35% floor coverage allowed for a Type 3 home occupation.
Based on the foregoing facts and analysis, I find that the accessory structure within which
the home occupation will be carried out is a "residential" accessory structure and that the
proposed use is "incidental and subordinate" to the main use of the property. This
criterion is met.
B. CHAPTER 18.16. EXCLUSIVE FARM USE ZONE
'1.. Section 18.16.030. Conditional Uses Permitted -High Value and Nonhigh Value Farmland.
The following uses may be allowed in the Exclusive Farm Use zones on either high value
farmland or nonhigh value farmland subject to applicable provisions of the
Comprehensive Plan, DCC 18.16.040 and 18.16.050, and other applicable sections of DCC
Title 18.
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.
FINDING: The applicant proposes to establish a home occupation on the subject
property consisting of a cabinet manufacturing business. The property is
I also note that the comparable criteria for a Type 2 home occupation includes a similarly worded, but
lower, floor coverage ratio (25%) than is found in the Type 2 category. Interestingly, however, it also
includes a specific overall maximum limit on square footage (1500 square feet) that is noticeably absent
from the Type 3 criteria. See DCC 18.116.280(B)(2). If the County wished to more strictly control the
absolute size of a Type 3 home occupation, it could have done so by adopting a specific overall maximum
limit on square footage, or a variety of other measurable, restrictive mechanisms.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 8 of 30
nonhighvalue farmland, but this portion of the criterion is not applicable, since Type
3 home occupations are allowed in either high value farmland or nonhigh value
farmland in the EFU. zone. The business will be conducted entirely in the existing
detached shop building. The shop building is not a structure accessory to resource.
use.8 Based on the proposal, staff indicated in its staff report that the home occupation
will be clustered in and around existing residential and farm -related structures thus
not interfering with other permitted uses that may occur on the EFU zoned parcel
itself. The issue, however, is .whether it would "unreasonably interfere" with other
uses permitted in the EFU Zone. The surrounding properties are either rural
residential in nature and small and medium sized farming operations. The applicant
indicates the home occupation will occur entirely within the accessory structure and
believes it will not interfere with other permitted used in the surrounding EFU-zoned
properties. Furthermore, the applicant states there will be "no noise, dust, light
pollutions, or such interferences" related to the business that would impact
surrounding properties. However, submitted comments from surrounding property
owners and testimony offered by opponents at the public hearing raise concerns about
environmental impacts (particularly noise and air pollution), and traffic impacts,
among other issues that could unreasonably interfere with other uses permitted in the
EFU zone. The staff report notes concerns expressed by surrounding property owners,
but does not take a position on this matter. To the extent these arguments are relevant
they are addressed below.9
During the open record period, the applicant submitted specific additional
information from the manufacturer about sound transmission tests for the kind of
concrete wall system used in the structure The applicant asserts that the worst case
scenario for the interior decibel level of the wood shop is 102 to 103 decibels and that
the concrete wall system will reduce noise on the other side of the wall by 48 to 65
decibels, putting the net decibel range between 37 to 54 decibels on the other side of a
wall.10 The applicant also provided supplemental information on audibility of loud
8 As stated previously, I regard the shop building as a .separate structure although it is immediately
adjacent to (and shares a commonroofline with) a machine shop/barn that the applicant indicates
continues to be in resource (agricultural) use, According to the staff report, the County Assessor's records
indicate the property is under special assessment for farm use for 18.98 acres, which includes
approximately 10.5 acres of water rights (irrigated pasture located in the northern and northeastern
portion of the property). Based on a staff site visit, photos, and the County records the subject property
appears to be in some sort of farm use.
9 In addition to environmental issues, opponents expressed concerns about increased traffic, access,
aesthetic qualities, the impact on surrounding property values, and the precedential effect of approving
this application. Except for the matter of access, opponents generally did not provide evidence in support
of those concerns. Moreover, those concerns are not germane to the particular criterion at issue here. To
the extent those concerns are relevant to other criteria on which the Hearings Officer must make a
decision, they are addressed elsewhere in this decision.
10 This conclusion is based in part upon an OSHA analysis of interior noise in a wood shop with
approximately 12 employees (applicant's Exhibit 4 accompanying Response to Deschutes County
Planning Division Staff Report submitted June 24, 2008),
CU -08-11 (Vander Zanden).
Hearings Officer's Decision Page 9 of 30
speech on the opposite side of the concrete wall system,11 the level of community
noise generally deemed seriously or moderately annoying at different times of the day
(day or night) and a different locations (bedroom, patio),12 and the "sound power
level" in decibels associated with various activities, including a woodworking shop.
See generally applicant's Exhibits 3 through. 10 accompanying Response to
Deschutes County Planning Division Staff Report submitted June 24, 2008.
During the open record period one opponent provided additional documentation and
arguments concerning noise levels generated by the proposed home occupation. The
opponent argued that the laboratory -based sound lowering projections used by the
applicant are "a poor guideline for construction to contain mechanical equipment
noise." The opponent argued and provided documentationsupporting the view that
sound transmission through a wood -framed ceiling, windows and doors, such as
found in the subject shop, would likely be greater than for a solid concrete wall
measured alone. The opponents did not submit any specific evidence on how much
greater the noise level would be. However, it is acknowledged that the nearest
residences are more than 400 feet away from the shop building; while others,
including residences of opponents .are considerably further away. The applicant
asserts, and I concur, that distance will have the effect of reducing any effect from
noise generated by the proposed home business on surrounding properties.
Based on the. foregoing, I find that the home occupation can be conditioned so that it
will not unreasonably interfere with other uses. Conditions of approval will be
imposed with regard to days/hours of operation and noise/sound pressure levels.
First, a condition will be imposed allowing the applicant tooperate that business only
Monday -Friday (7:00 a.m. to 5:00 p.m.) plus no more than two Saturdays per month
(9 a.m. to 3 p.m.) Second, a condition will be imposed requiring the applicant at all
times (a) to keep the noise level of his home occupation operation below 50 decibels
at all points beyond the exterior wall of the accessory structure where the business is
operated, (b) to also keep the sound pressure level below 50 dB LAeq at all points
beyond the exterior wall of the accessory structure where the business is operated,
and (c) 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
operating conditions by an independent contractor acceptable -to the Deschutes
11 Manufacturer -provided information indicated that the sound transmission quality for loud speech on the
opposite side of a wall with an SCT (Sound Transmission Class) rating of 50) would be either "inaudible"
or "faintly heard." The applicant'swall system apparently carries an. SCT rating of 55, and thus "loud
speech" should be even less audible in that situation.
12 According to a World Health Organization study (applicant's Exhibit 7 accompanying Response to
Deschutes County Planning Division Staff Report submitted June 24, 2008): to protect the majority of
people from being seriously annoyed during the daytime, the sound pressure level from steady,
continuous noise on balconies, terraces, and in outdoor living areas should not exceed 55 dB LAeq. To
protect the majority of people from being moderately annoyed during the daytime, the sound pressure
Ievel should not exceed 50 dB LAeq. At nighttime outdoors, sound pressure levels should not exceed 45
dB LAeq..."
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 10 of 30
County Planning Division and paid for:. at the sole expense of the applicant. As
conditioned, this criterion is satisfied.
2. Section 18.16.040. Limitations on Conditional Uses.
A. Conditional uses permitted by DCC 18.16.030(F) through (BB) may be established
subject to applicable provisions in DCC 18.128 and upon a finding by the Planning
Director or Hearings Body that the proposed use:
1. Will not force a significant change in accepted farm or forest practices as defined
in ORS 215.203(2)(c) on adjacent lands devoted to farm or forest uses; and
2. Will not significantly increase the cost of accepted farm or forest practices on
surrounding lands devoted to farm or forest use; and
3. That the actual site on which the use is to be located is the least suitable for the
production of farm crops or livestock.
FINDING: The subject property is located in an area consisting of rural residential
properties and small and medium scale farm uses. Farm zoned parcels of varying
sizes (ranging from four to over 50 acres) lie to the north, south, west, and southeast
of the subject property. East and northeast of the property there are residentially
zoned subdivisions including of Nine View Estates, Chaparral Estates and Thompson
Estates (unrecorded subdivision) in which properties range in size from 1.3 to 10
acres. In addition, west and northwest, across SW McVey Avenue, are farm -zoned
parcels and the Deschutes River. Beyond the river are large BLM parcels. The
farming in the area appears to be generally irrigated pasture, livestock grazing, and
grass hay. There are no forest uses in the area, as the onlytrees in the area are juniper
trees, which have no commercial timber value. As proposed, the business trips are
minimal, 3 to 5 trips per day and the business operation will be entirely within the
accessory structure.
In a previous finding, I determined that the home occupation . would not
"unreasonably interfere" with other uses permitted in the EFU zone. However, the
question here is narrower: whether the proposed cabinet manufacturing business will
force any significant change in, or significantly increase the cost of, accepted farm
practices in the area.13. I find that it will not. The accessory structure where the
business will be conducted, is located approximately 140 feet south of the nearest
neighboring property and small-scale farm use (tax map and lot 16-12-02C-100).
County records indicate the closest [medium-sized] farm use to the proposed use is
approximately 290 feet away (as measured from the detached shop) on tax lot 600 to
the west.
The subject property contains approximately 10.75 acres of water rights through
Swalley Irrigation District. The dwelling and other structures, including the shop,.
appear to be located inan area that does not contain water rights. The property has
13 The concerns expressed by neighbors about issues such as noise, ambiance, traffic and similar matters
relate primarily or exclusively to the perceived impact of the proposed conditional use on surrounding
residential uses. No specific harms were identified that would force a significant change in forestry or
farming practices or significantly increase the cost of forestry or farming practices.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 11 of 30
two mapped soil units on it. The two soil units are 138A, Stukel sandy loam. (0-3%
slopes) and 141C, Stukel-Deschutes-Rock Outcrop complex (0-15% slopes).
Approximately 54% of the property is comprised of Unit 138A and 46% is 141C. The
majority of the existing structures are located at the boundary of the two soils. The
dwelling appears to be sited on a dry, unirrigated area of soil unit 138A. The two
barns and the detached shop are in the same area but appear to be located in soil unit
141C. According to the Natural Resources Conservation Service (NRCS), the major
uses of these soils are livestock grazing and are not considered high value farmland
when irrigated. Based on this information, staff concluded that the detached shop
intended for. the home occupation appears to be located in one of the least suitable
areas for farm use of the property. I concur in that conclusion. Moreover, the
Hearings Officer notes that the shop is an approved, existing structure. As such, I
find the site where it. is actually located is the least suitable area for the production of
farm crops or livestock.
Based onall of the foregoing, this criterion is satisfied.
3. Section 18.16.070. Yard and Setback Requirements.
FINDING: The applicant is proposing no new structures for the site. Therefore,
these criteria are not applicable.
C. CHAPTER 18.32. MULTIPLE USE AGRICULTURAL ZONE
1. Section 18.32.030. Conditional Uses Permitted.
L. Type 2 or Type 3 Home Occupation, subject to DCC 18.116.280.
FINDING: The subject property is zoned both EFU and MUA10. The western
portion of the property is zoned EFU and includes existing development. The eastern
portion is zoned MUA10. The proposed home occupation will utilize 3,000 square
feet in the existing 5,040 square foot shop that is located in the EFU-zoned portion of
the property. Therefore, the MUA10 standards are not applicable.
D. CHAPTER 18.116. SUPPLEMENTARY PROVISIONS
1. Section 18.116.280. Home Occupations.
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 (l/2) acre in size.
FINDING: The subject property is 20 -acres in size. This criterion is satisfied.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 12 of 30
2. Is conducted in such a way that it is compatible with the residential character, or in
resource zones, resource -oriented character of its location.
FINDING: The subject property is zoned both EFU and MUA10. The proposed
home occupation will utilize the 3,000 square feet of an existing 5,040 square .foot
shop that is located in the EFU-zoned (resource zone) portion of the. property. The
home occupation consists of having a cabinet manufacturing business on-site and will
include the usage of table saws, air compressors, a spray booth, shapers, planers, and
miscellaneous power tools, to name a few. In addition, there will be the use of a
forklift for unloading supplies from a delivery truck. The applicant indicates the
structure is "an insulated concrete form building" that will reduce noise and vibration
that would typically exceed those levels normally created by a residential use. The
proposed home occupation will include a dust collection system and the paint booth
will have a filter system in the structure. The applicant submitted information
showing that it will utilize approximately 3,000 pounds of low VOC (volatile organic
contaminants) annually and that its lacquer is H.A.P.S. (hazardous air pollutants free).
The applicant indicates that lights and other forms of glare and vibrationswill not be
included thus minimizing the impact the surrounding area. Neighbor comments do
express concern regarding environmental issues such as noise, odor, and dust. The
applicant believes that in the farm zone, associated uses generate dust (i.e. plowing of
fields) and if dust were to escape from the building it would be consistent to those
uses. I concur in that analysis. In a previous finding, I concluded that the home
occupation proposed here, as conditioned, would not unreasonably interfere with
other uses permitted in the EFU zone, including residential uses. That analysis is
incorporated here by reference.
Based upon the foregoing, and as proposed. to be conditioned elsewhere in this
Decision, I find that the proposed conditional use is compatible with both the
residential character and the resource -oriented character of its location. This criterion.
is satisfied.
3. Is conducted within a dwelling and/or an accessory structureby 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 atthe home occupation located on
property in an EFU, MUA10, or RIM zone and that is at least 10 acres in size.
FINDING: The submitted burden of proof statement indicates the entire operation of
the business will becarried on . within the existing shop building. No business
operations will occur in the dwelling. The subject property is 20 acres in size. The
business will be operated by the resident of the dwelling and will include two
employees. However, because the County standards allow up to five employees, the
applicant has asked for the ability to have . an additional three (3) employees if
necessary in the future development of the business.. Staff expressed the view that
this criterion is met. However, I find that although the applicant requested the ability
to have up to three additional employees, the applicant did not meet its burden of
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 13 of 30
proof with regard to this request. The materials submitted on behalf of the applicant
appear to speak solely to the operation of a business by the resident and two
employees. For example, the application and burden of proof simply do not address
the number of greater vehicle trips to be generated (employees, deliveries,
customers), the adequacy of parking for employees and customers, or the potentially
greater impact of a more sustained level of noise on surrounding land use that would
likely result from. the increased intensity of activity that presumably would result
from having more employees. However, the Hearings Officer finds that this
condition can be satisfied by imposition of a condition of approval limiting the home.
occupation to no more than two employees. Therefore, as a condition of approval,
the Hearins Officer will require the operation to be limited to no more than two
employees. L4
As proposed to be conditioned, this criterion is satisfied.
4. May include employees or contractors that work off site.
FINDING: The applicant indicates the proposed home occupation will not include
employees or contractors that work off site. This criterion is satisfied.
5. Does not occupy more than 35 percent of the combined floor area of the dwelling,
including an attached garage and one (I) accessory structure.
FINDING: The combined square footage of the dwelling (with attached garage) and
the accessory structure (shop) is 9,198 square feet. The applicant proposes to use
3,000 in the accessory structure for the operation of the home occupation. No portion
of the residence will be utilized for the home occupation. 35 percent of the combined
floor area is 3,219 square feet. The applicant proposes to use only 32.6 percent of the
combined floor area. This criterion is satisfied.
6. May include on-site sales of products associated with the home occupation that are
incidental and subordinate to the home occupation.
FINDING: The proposed home occupation is for a cabinet manufacturing business.
The submitted supplemental burden of proof states that the applicant does not
anticipate customers on-site. However, if there is a customer, the applicant estimates
one per week, on average. This criterion is satisfied.
7. Creates no more than twenty (20) business-related vehicle trips to the site per day
by employees, customers or clients, including parcel delivery services.
14 In the alternative, I will require this condition of approval in connection with the criterion of Section
18.16.030 requiring that the proposed use not "unreasonably interfere" with other uses allowed in the
zone. I believe the condition of approval is also applicable there because whether the conditional use
"unreasonably interferes" with other uses depends in part upon the intensity of use.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 14 of 30
FINDING: The applicant indicates the home occupation will generate 3 to 5
business-related vehicle trips to the site. These trips include two employees reporting
to the property for work and thepotential one customer per week. The applicant
indicates one delivery van delivering cabinet manufacturing accessories will be once.
per day. Another van will deliver wood once per week. Based on this information,
the proposal meets the limit of 20 business-related trips per day established above
based upon an operation that employs no more than two employees. The applicant
does not addressthe impact of .additional requested employees upon vehicle trips, and
the Hearings Officer reaches no decision with regard to that matter. The Hearings
Officer acknowledges concerns about increased vehicular traffic expressed by some
neighbors. The impact of increased traffic is addressed indirectly by the requirement
above.'5
8. Has adequate access and on-site parking for not more than five (5) customer,
employee, or delivery vehicles at any given time.
FINDING: The submitted site plan illustrates three parking spaces on-site. One
space designated as employee parking is located adjacent to the driveway, the
neighboring property (tax lot 100) to the north, and to septic tank area. This area is
located north of the dwelling. The customer parking space is located in between the
dwelling and the accessory structure. The applicant indicates there will be one 18 -
foot enclosed utility trailer related to the business. Trailer parking is designated
behind (south) ofthe existing machine shop/barn portion of the structure. These
parking spaces allows for the loading/unloading area in front of the building to
remain open. Although the applicant has not indicated as such, it appears to staff that
there may be ample room for two or three more vehicles in front of, north, the
accessory structure and next to the existing corral fencing.
Access to the site it taken from SW McVey Avenue in the northwest corner of the
property. However, the subject property does not front on the road right -o f -way. The
property owners, Mark and Peggy Corbet, of tax lot 600 submitted comments
expressing concern about the applicant's right to use this access point, as well as
concerns about increased traffic volume, maintenance of the driveway, and impacts
on the storm water drainage culvert under the driveway. The impact of increased
traffic has been addressed in a finding above. Issues of maintenance are matters of
private contract rights and responsibilities and, most importantly are not encompassed
by the criterion at issue here. This leaves only the question of adequate access. The
applicant claims access to the site is provided by an easement that crosses
neighboring tax lot 600 (tax map 16-12-02C). However, materials submitted by the
applicant insupport of a recorded easement across tax lot 600 do not in my view
clearly establish the existence of such an easement. The Hearings Officer notes that
15 There are other approval criteria to which increased traffic might apply. However, no substantial
evidence has been submitted indicating that increased traffic due to the home occupation at issue here
would rise to a sufficient level to either "unreasonably interfere with other uses permitted in the EFU
zone" or create an incompatibility with the residential character or resource -oriented character of its
location, two other criteria to which increased traffic might be relevant.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 15 of 30
the relevant code provision utilizes the term "adequate access" not "legal access."
Indeed, the context of the criterion could simply refer to physical adequacy, both as to
access and parking. Although I am not prepared to conclude that legal access is
always required in order to have "adequate access," I am unwilling to construe this
provision as referring only to the physical adequacy of access. When a reasonable
question is raised about the legality of access, by a property owner whose property is
being used to access another parcel, I find that "adequate access" requires evidence of
legal access. The comments submitted by the owners of tax lot 600, Mark and Peggy
Corbet, question the applicant's legal rights to access his property across tax lot 600,
although the property owners stop short of asserting that the applicant has no right to
do so. Based upon all of the factors above, I find that the applicant has not met his
burden of proof with regard to having adequate access because a reasonable question
about access has been raised and the applicant has not provided clear and
unambiguous evidence in rebuttal.16 However, I also find that this criterion can be
satisfied by imposition of a condition of approval requiring the applicant to provide
appropriate documentation of access prior to commencement of the conditional use.
Such a condition will be imposed.
As conditioned, this criterion is satisfied.
9. Is limited to the hours and days of operation proposed by an applicant and
approved with a conditional use permit.
FINDING: The submitted application states that the proposed business will operate
5-6 days per week from 7:00 a.m. to 5:00 p.m. The applicant's burden of proof
statement indicates the proposed hours of operation will be Monday through Saturday
from 7:00 a.m. to 5:00 p.m. However, in a previous finding, as a condition of
approval, I required the business to operate only Monday -Friday (7 a.m. to 5 p.m.),
plus no more than two Saturday per month on a shortened schedule (9 a.m. to 3 p.m.).
This condition was established in order to ensure that the conditional use did not
unreasonably interfere with other uses in the EFU zone. I find that the home
occupation is limited tothe days and hours of operation as conditioned above. As
conditioned, this criterion is satisfied.
10. Does not involve any external changes to the dwelling or accessory structure in
which the home occupation will be established that would give the dwelling an
outward appearance of a business.
FINDING: The proposed home occupation will be conducted entirely in an existing
accessory building.- The applicant's burden of proof, prepared over the signature of
the applicant's attorney, states that "the proposal does not involve any external
changes to the dwelling nr ar" my structures for which the home occupation will
16 The applicant asserts that the proper venue in which to resolve a challenge to access is in the Circuit
Court of Oregon. I concur in that analysis, but the question here is the impact of the existing uncertainty
on the requirement to have "adequate access" over tax lot 600.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 16 of 30
be established." There is potentially conflicting evidence on this point. The
previously submitted Supplemental Application for Type 2 and Type 3 Home
Occupation Conditional Use Permit, apparently prepared by the applicant, contains a
brief and possibly conflicting notation under "proposed construction" as follows:
"See elevation -vent for paint booth." The elevation documents show a sketched -in
addition of a 24" spiral vent for a paint booth. It is unclear from the record when the
vent was added, or even whether it was added before or after the submission of the
conditional use application, as a modification of the 2007 building permit for the
shop." Written testimony submitted at the public hearing by Douglas Schulz, a
neighbor of the applicant, mentioned that only after notice of the Conditional Use
Permitwas received did they begin to "understand the placement of what appeared to
be a large commercial -sized exhaust stack on the east roof matching what would be
required in a high production commercial woodworking shop." Prior to that time,
Mr. Schulz indicated that he and his wife thought the two story building might be a
milk parlor or a horse boarding and breeding barn.
County staff noted that the shop was designed to match the existing on-site
development.. Even if the exhaust stack was constructed after the conditional use
application was submitted, which seems likely, I find that this single modification is
simply not an external change that gives the •structure an outward appearance of a
business.18 Indeed, as noted above, after the exhaust stack was constructed, but prior
to the time Mr. Schulz became aware of the proposed home occupation, his written
testimony (Hearing Exhibit E) indicated he and his wife thought the two-story
building might be a milk parlor or a horse boarding and breeding barn.
According to the Building Safety Division, approval of the business in the shop
requires the occupancy designation of the shop building to be changed due to the
change in usage (residential to commercial).. Staff recommended it be made a
condition of any approval that the applicant be required to contact the Deschutes
County Building Safety Division and obtain a change of occupancy permit. The
applicant has agreed that it can be made a condition of approval to comply with
environmental health division, building safety division, and state and federal laws.
Based on the foregoing, I will impose a condition of approval requiring the applicant
to obtain a change of occupancy permit from the Deschutes County Building Safety
Division and to comply with environmental health division and building safety
division requirements, and state and federal laws.
As conditioned, this criterion is satisfied.
11. Does not produce prolonged odor, dust, glare, flashing lights, noise smoke, or
vibrations in excess of that created by normal residential use.
" The elevation drawings bear a date of production of June 2007, and a stamp indicating that they were
scanned into the record for the present conditional use in February 2008.
18 My review ofmultiple photographs of the shop structure submitted into the record showonly one
photograph where the exhaust stack is readily visible. In that photo the exhaust stack is partly obscured
by other structures and objects in the foreground.
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Hearings Officer's Decision Page 17 of 30
FINDING: The home occupation consists of having a cabinet manufacturing
business on-site. The business will include the usage of table saws, air compressors,
a spraybooth, shapers, planers, and miscellaneous power tools, to name a few. It will
include the use of hardwood lumber, veneers, wood stains, and lacquers. In addition,
there will be the use of a forklift for unloading supplies from a delivery truck. The
applicant's burden of proof statement indicates the structure in which the business
will operate out of is "an insulated concrete form building that will reduce any noise
or vibrations in excess of that created by normal residential use." The applicant
subsequently submitted detailed information into the record, including test results,
supporting this argument. Opponents submitted arguments and information into the
record in opposition. Those materials were analyzed in a previous finding in
connection with unreasonable interference with other uses in the EFU zone. In that
finding I established a condition of approval requiring the applicant to keep the noise
level of his operation below 50 decibels and the sound pressure level of his operation
below 50 dB LAeq at all points beyond the exterior wall of the accessory structure
where the business is operated. That finding and condition of approval is
incorporated here by reference. I also find that noise levels below 50 decibels and
sound pressure levels below 50 dB LAeq at the exterior wall of the point of origin
would not be in excess of that created by normal residential use.
The applicant indicated that there is a dust collection ventilation system .in the
structure and a ventilation system to control V.O.C. emissions generated by the use.
The applicant submitted supporting documentation to show that the use of V.O.C.
materials in the home occupation was classified by .the DEQ as de minimus. The
applicant's burden of proof states that there are "no lights or signs proposed or other
types of glare or vibrations that would be created by the business." Although some
comments and/or testimony submitted by neighbors expressed general concerns
regarding odors and dust, I find that no specific evidence was provided to rebut the
applicant with regard to these matters. Based on all of the foregoing, and as proposed
to be conditioned with regard to noise, I find that the proposed home occupation will
not produce prolonged odor, dust, glare, flashing lights, noise, smoke, or vibrations in
excess of that created by normal residential use.
As conditioned above and elsewhere in this decision with regard to noise, this
condition is satisfied.
12. Complies with all requirements of the Deschutes County Building Safety Division
and the Environmental Health Division and any other applicable state or federal
laws. Compliance with the requirements of the Deschutes County Building Safety
Division shall include meeting all building occupancy classification requirements
of the state -adopted building code.
FINDING: This proposal is for a cabinetry manufacturing operation to be located in
an existing shop structure. Staff recommended the applicant comply with all
applicable requirements of the Deschutes County Building Division as well as all
applicable state and federal laws. The applicant agreed to comply with state and
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 18 of 30
county building safety requirements and indicated in its burden of proof that this
could be made a condition of approval.
According to the Building Safety Division, approval of the business in the shop
requires the occupancy designation of the shopbuilding to be changed due to the
change in usage (residential to commercial). Staff specifically recommended it be
made a condition of any approval that the applicant be required to contact the
Deschutes County Building Safety Division and obtain a change of occupancy permit.
The applicant has agreed that this can be made a condition of approval. Based on the
foregoing, I find this criterion can be satisfied by imposing conditions of approval
requiring the applicant to obtain a change of occupancy permit from the Deschutes
County Building Safety Division and to comply with all environmental health
division and building safety division requirements, and other applicable state and
federal laws.
As conditioned above, this criterion is satisfied.
13.. May have one (1) sign, ground -mounted or wall -mounted, as defined in DCC
Chapter 15.08, that is no more than three (3) square feet in area, non -illuminated.
The ground -mounted sign and support structure shall not exceed 6 feet in height
and is located on the property from which home occupation will operate. Such
signs do not require a sign permit under DCC Chapter 15.08, Signs.
FINDING: No signs are proposed with this home occupation proposal; therefore,
staff believes this criterion is not applicable. The Hearings Officer concurs in that
analysis as regards the present proposal, but will impose a condition of approval that
any sign that may be erected in the future must comply with the requirements above.
14. May include outside storage of equipment and materials on parcels approved for a
home occupation, not to be included in the 35 percent of combined floor area.
FINDING: The applicant does not propose outside storage of materials. However,
the applicant does have a pickup truck and trailer. The trailer is a Wells Cargo style
enclosed trailer and is 18 -feet in length. The submitted site plan illustrates the trailer
will be parked behind. (south) the accessory structureand will not be visible from SW
McVey Avenue. The supplemental burden of proof statement indicates the truck will
also be out of view of SW McVey Avenue. In connection with a foregoing finding,
staff expressed the view that this designated parking area will also be screened from
neighboring properties. This criterion is satisfied.
15. Allows for servicing, inspecting, loading, and or dispatching vehicles and
equipment incidental to the home occupation and stored within the buffered and
screened outside area.
FINDING: As indicated in the previous finding, the pickup truck and trailer will be
stored out of view of SW McVey Avenue. No other outside storage of materials is
proposed. In addition, the applicant indicates that any outside activity such as
unloading and loading delivery trucks, are expected to be minimal. Based on a site
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 19 of 30
visit, staff expressed the view that existing vegetation, corral fencing, and the
dwelling will screen the loading and .unloading area slightly but the area remains
exposed. Coupled with the large structure, as discussed in a previous finding, staff
further expressed the view that the visual impact of the loading and unloading area
may present an outward appearance of a business on the property. I concur in that
analysis and will impose a condition of approval requiring. additional screening and
buffering of the loading and unloading area. The applicant presented evidence
showing that only one daily delivery of accessories in expected and one weekly
delivery of wood materials. The applicant in its supplemental materials submitted
during the period the record was kept open, emphasized that the mere loading .and
unloading of vehicles does not create a structural alteration affecting the appearance
of the buildings onsite, and is permitted by the Code. While I agree that loading and
unloading does not create a structural alteration of the buildings,19 that analysis is
misplaced because the subsection at issue here specifically requires the "outside area"
to be "buffered and screened," 1 conclude that the implied purpose of such buffering
and screening is the same as the express purpose in Section 18.116.280(E)(10), i.e., to
prevent creating "an outward appearance of a business." The issue is the adequacy of
screening and buffering. I find that the loading and unloading area remains exposed,
and that existing screening and distance are insufficient to ensure compliance .with
this standard. .Therefore, I will impose a condition of approval requiring additional
screening and buffering of the loading and unloading area.
16. Requires review of the home occupation approval every 12 months by the planning
division to ensure compliance with the requirements of this section and the
conditions required for approval of the use.
FINDING: The requirement for an annual inspection is completed by the Planning
Division. Staff recommended this be made a condition of any approval and the
hearing officer concurs in that recommendation. A condition of approval will be
imposed requiring an annual inspection.
17. Conducts all home occupation activities within one or more structures on the
property that are of a type normally associated with the zone where it is located.
FINDING: The home occupation is a cabinet manufacturing business that will
occupy 3,000 square feet in a detached shop (the entire first floor of the structure)
already located on the subject property. The property where the shop and residence
are located is zoned EFU. The main use of the property is for residential and
agricultural purposes. In prior findings, I concluded that the shop is a residential
accessory structure in connection with the residence. That finding is incorporated
here. As such it is a type of structure normally associatedwith the EFU zone where it
19 This is apparently a reference to Section 18.116.280(E)(10), discussed That subsection above. reads
as follows:
"10. Does not involve any external changes to the dwelling or accessory structure in which the
home occupation will be established that would give the dwelling an outward appearance of a
- business."
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 20 of 30
is located. Although this criterion does not speak directly to the physical appearance
of . the structure, it is worth noting that physical appearance of the shop building
resembles a large horse barn or enclosed arena and was designed to be compatible
with existing structures on the property. Horse barns and similar buildings are.
commonly found in the EFU zone. In this sense too the home occupation . is also
carried out in a structure that is commonly found in the zone where it located. This
criterion is satisfied.
18. Locates all employee, customer and delivery vehicle parking spaces on-site and
outside of the required zone setbacks.
FINDING: The proposed parking areas are located on-site. However, the employee
parking proposed by the applicant is located along a north property boundary
(between driveway and boundary) and inside the required 25 -foot setback required in
the EFU zone. Staff recommended that the applicant designate alternative parking
areas for the employee parking site, keeping in mind parking for customers and
delivery vehicles as discussed in a previous finding. In supplemental materials
submitted on June 24, 2008, the applicant indicated thatthere is ample alternative
space on the parcel, including around existing structures; to locate such parking and
that the applicant would adhere to EFU setbacks. Adherence to EFU setbacks will be
required as a condition of approval. As conditioned, this criterion is satisfied.
19. Parks all vehicles used by the operator to conduct the home occupation that have a
gross vehicle weight of 15,000 or more pounds in a garage, an accessory structure,
or withina screened area according to the requirements of DCC
18.116.280(E)(21)(a) through (e).
FINDING: According to the supplemental application for Type 2 and Type 3 Home
Occupation Conditional Use Permit submitted by the applicant, the pickup truck and
trailer used for the business and stored on-site are less than 15,000 pounds of gross
vehicle weight. This criterion is not applicable.
20. No structural alteration affecting the residential appearance of a building shall be
allowed to accommodate the home occupation except when otherwise required by
law, and then only after the plans for such alterations have been reviewed and
approved by the Deschutes County Planning Division.
FINDING: The proposed home occupation will occur in an existing accessory
structure. In the staff report, staff analyzed this provision based on treating the shop
as an "addition" to the existing machine shop. At the hearing, the .applicant testified
that the older machine shop/barn and the new shop had separate load bearing walls
located approximately 1" from each other, and were only connected through a
common roofline. Based on that information and a subsequent recommendation by
staff that the proposal should be reviewed using only the area of the new shop, I
found that a shop and a machine shop/barn sharing only a common roofline, but with
separate load bearing walls, were two separate structures. That finding is adopted
here by reference. For purposes of the present criterion, the only relevant building is
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 21 of 30
the shop. The applicant has not proposed any "structural alteration affecting the
residential appearance of a building," Therefore, I find that this criterion is either
satisfied or not applicable.
21. Includes no outside storage unless the subject property is 10 or more acres in size
and the storage Ls setback a minimum of 20 feet from all property lines, and is
maintained to screen materials and equipment from residences on adjacent
properties. The form of screening may include, but is not limited to:
a. A sight -obscuring fence, as defined in DCC 18.04.030.
b. Intervening tree cover.
c. Topography.
d. Existing buildings on site.
e. Introduced landscape materials, including, but not limited to, trees and/or
shrubs on an earthen berm.
FINDING: The applicant does not propose outside storage of materials. However,
as stated previously, the applicant does have a pickup truck and trailer. The applicant
indicates the truck and trailer will be parked in an area not visible from SW McVey
Avenue. Based on the submitted site plan, this designated parking area is at least 20
feet from all property lines. Staff, based on a site visit expressed the view that this
parking area is screened from neighboring residences on adjacent properties by
existing vegetation, topography, existing development and fencing, I find this
criterion is satisfied.
E. CHAPTER 18.128. CONDITIONAL USE
1. Section 18.128.015. General Standards Governing Conditional Uses.
Except for those conditional uses permitting individual single-family dwellings, conditional
uses shall comply with the following standards in addition to the standards of the zone in
which the conditional use is located and any other applicable standards of the chapter:
A. The site under consideration shall be determined to be suitable for the proposed use
based on the following factors:
1. Site, design and operating characteristics of the use;
2. Adequacy of transportationaccess to the site; and
3. The natural and physical features of the site, including, but not limited to, general
topography, natural hazards and natural resource values.
FINDING: The proposed use would be located in an area surrounded by rural
residential and farm use properties of varying sizes. The proposed home occupation
is a cabinet manufacturing business. The cabinet manufacturing business will use
power saws and other power equipment. To the east and northeast of the property
there are residentially zoned subdivisions including Nine View Estates, Chaparral
Estates and Thompson Estates (unrecorded subdivision). To the west is the
Deschutes River and large BLM parcels. The subject property is approximately 20
acres and is an inverse "L" shape. A majority of the existing development is located
in the northwestern portion of the property and includes a dwelling, two barns, a large
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 22 of 30
accessory building (the shop), and irrigated pasture. The proposed home occupation
will occur entirely within the 5,040 square foot shop building. The dwelling will not
be used for the proposed home occupation. The accessory structure where the
business will be conducted is setback 128 feet and 148 feet, respectively from the
northern and southern property boundaries and 262 feet and 950 feet, respectively,
from the western and eastern boundaries. The accessory structure is set back more
than 400 feet from the nearest residence on any adjacent property. Access to the site
is from an existing gravel driveway extending from SW McVey Avenue to the west.
The driveway access crosses the neighboring property to the west, tax lot 600, as the
subject property is land -locked with no direct access to SW McVey Avenue. No
changes are proposed regarding site access. However, the property owners of tax lot
600 are concerned about the impacts on the driveway and raised questions about legal
access across their property. The applicant has proposed employee parking next to the
driveway, north of the house, and client parking in front of the accessory structure,
and parking for company vehicles located on the south sides of the structure. There
are no known natural hazards.
Staff expressed the view that the site was not suitable for the proposed use based on
adequacy of transportation access and site, design and operating characteristics: In a
previous finding regarding access, I found that the applicant has not met his burden of
proof with regard to having "adequate access," but concluded that the criterion for
reasonable access could be satisfied by imposition of a condition of approval
requiring the applicant to provide appropriate document of access. The issue raised
here with regard to transportation access is the same and theprevious finding with
regard to adequate access, including the required condition of approval, is adopted
here by reference. As conditioned, transportation access to the site is adequate.
In a previous finding in this decision, I determinedthat the home occupation would
not unreasonably interfere with other uses permitted in the EFU zone if it was
conditioned to reduce . noise level and limit weekend hours of operation. Those
conditions were imposed and are adopted here by reference. The subject parcel is
relatively large and the specific site of the accessory structure is located on land that
is the least suitable for raising crops or livestock. As state above, the accessory
structure is also located more than 400 feet from the nearest residence on adjacent
property. Based on all of the foregoing, I find, the site under consideration is suitable
for the proposed used based upon the site, design and operating characteristics of the
use.
This criterion, as conditioned elsewhere in this decision, is satisfied.
B. The proposed use shall be compatible with existing and projected uses on surrounding
properties based on the factors listed in DCC I8.128.015(A).
FINDING: As indicated above, the site is located in an area surrounded by rural
residential and farm use properties of varying sizes. To the east and northeast are
residentially zoned subdivisions including Nine View Estates, Chaparral Estates and
Thompson Estates. To the west is the Deschutes River and large BLM parcels. I find
CU -08-11. (Vander Zanden)
Hearings Officer's Decision Page 23 of 30
that the existing and projected uses on surrounding properties are agricultural and
residential.
The subject property is approximately 20 acres and developed with an existing dwelling,
barns, a large accessory building, and irrigated pasture. The home occupation will be
housed in a large accessory structure and is setback 128 feet and 148 feet, respectively,
from the northern and southern property boundaries. The building is setback 262 feet and
950 feet, respectively, from the western and eastern boundaries. The closest residences
are each approximately 450 feet to the north and south. The next closest residence is
about 875 feet and then all other residences are beyond 1200 feet. Neighboring private
properties are developed and undeveloped and are of greater distance to the subject
property. There are farm uses of varying sizes adjacent to the property.
Neighboring property owners expressed concern about impacts the proposed business
would have on the area and the potential to set a precedent with the conversion of
resource and residential lands into commercial uses. Surrounding neighbors are also
concerned about environmental impacts. Home occupations are allowed as conditional
uses if they meet the applicable criteria or can be conditioned so as to meet those criteria..
Significantly, the applicant pointed out that the Deschutes County Board of
Commissioners recently adopted amendments to the Home Occupation Code, and found
the Code consistent with the comprehensive plan for resource zoned, and rural residential
zoned property. In earlier findings in this decision, I determined that the proposed use
would not "unreasonably interfere" with other uses allowed in the EFU zone and that the
proposed use would not force a significant change in accepted farm or forest practices.
Elsewhere in this decision, I also imposed conditions of approval requiring the applicant
to reduce anticipated noise levels from the operation, limit operating hours, operate with
no more than two employees, and install additional screening and buffering of loading
and unloading areas used in the home occupation. Those conditions, and the findings
made in connection with them, are applicable here and are incorporated by reference.
The term "compatible" is not defined in the Code. According t� Webster's dictionary,
"compatible" is a 15th Century middle English word based on later that means "capable of
existing togetherin harmony." Based on the foregoing I find, that as conditioned elsewhere in
this decision, the propose use is compatible with existing and projected uses on surrounding
properties based on the factors listed in DCC 18.128.015(A). This criterion is satisfied.
C. These standards and any other standards of DCC 18.128 may be met by the imposition
of conditions calculated to insure that the standard will be met.
FINDING: The Hearings Officer will impose conditions of approval as indicated
throughout this decision pursuant to this criterion.
IV. DECISION:
Based on the testimony and written evidence in the record, the Hearings Officer concludes that
the applicant has satisfied all relevant approval criteria or that it is feasible to satisfy the criteria
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 24 of 30
through the imposition of conditions .of approval. Accordingly, CU -08-11 is APPROVED by
the Hearings Officer, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL
1. This approval is based upon the application, site plan, specifications, and supporting.
documentation submitted by the applicant. Any substantial change in this approved use will
require review through a new conditional use application.
2. Prior to initiation of the use, theapplicant/owner shall contact the Deschutes County
Building Safety Division and obtain approval for a change of occupancy permit for the accessory
structure being used for the home occupation.
3. Prior to initiation of the use, the applicant/owner shall obtain any necessary federal or
state permits. Furthermore, the applicant/owner shall submit to the Planning Division
documentation from federal or state agencies indicating the review and approval of such
permit(s).
4. Pursuant to DCC 18.116.280(E)(8), prior to initiation of the use or issuance of a building
or septic permit, the applicant shall obtain a long-term access easement across tax lot 600 of
Deschutes County Assessor's map 16-12-02C. The access easements shall be recorded in the
Deschutes County Book of Records and a copy of each recorded easement shall be submitted to
the Planning Division.
5. Prior to initiation of the use, the applicant/owner shall satisfy all relevant requirements of
the Redmond Fire and Rescue Department, as indicated in. Exhibit "A". The applicant/owner
shall submit to the Planning Division documentation from. the Redmond Fire and Rescue
Department indicating the review and approval of the requirements.
6. There shall be no outside storage of materials associated with the home occupation.
7. Hours of operation for this home occupation shall be limited to 7:00 a.m. to 5:00 p.m.,
onda through Friday and no more than two(2)Saturday'sper month from 9:00 a.m. to
Y g Y Y -- _3 -4:10 -
p.m.
c7)n
The applicant/owner and two (2) additional employees are the only employees authorized
der this decision. _.
7 9.l The home occupation may generate no mere than five (5) business-related vehicle trips
er day to the site. This.includes .trips generated by a maximum of two (2) employees reporting
to the property for work, two deliveries, and one customer.
10. The home occupation is limited to 3,219 square feet of floor .area in the residential.
structure and detached shop combined. Furthermore, the applicant/owner shall only use the first
floor of the detached shop for the home occupation as requested and authorized under this
decision. The second floor of the detached shop is designated for personal residential use only.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 25 of 30
11. The home occupation may have one (1) sign that complies with requirements of DCC
18.116.280(B)(3)(K).
The home occupation shall not produce prolonged odor, dust, glare, flashing lights, noise,
smoke, or vibrations in excess of that created by normal residential use. Additionally, the
applicant is required (a) at all times to keep the noise level of his home occupation operation
below 50 decibels at all points beyond the exterior wall of the accessory structure where the
business is operated, (b) at all times to also keep the sound pressure level below 50 dB LAeq at
all points beyond the exterior wall of the accessory structure where the business is operated, and
(c) 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 operating conditions by an
independent contractor acceptable to the Deschutes County Planning Division and paid for at the
sole expense of the applicant.
® Trees and shrubs shall be retained on site in all areas where they serve to screen the
detached shop and home occupation, except as necessary for construction of access roads,
building pads, septic drain fields and parking areas. (This condition does not prohibit
maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the
commercial harvest of forest products in accordance with the Oregon Forest Practices Act or
agricultural use of the land.)
In addition, the applicant shall plant and maintain the following trees within six (6) months of the
change of occupancy [building] permit for the detached shop:
Eight (8) trees shall be introduced to screen the detached shop from SW McVey Avenue
(north) and along the southern side of the structure, with four trees on each side. The
introduced trees shall be clustered .together in a triangular pattern and spaced
approximately 10 feet apart from each other as measured from center of tree. The trees
shall be a mixture of larger native species (for example, Lodgepole pines and Aspen).
These trees shall be a minimum of 5 feet tall at thetime of planting.
94. Prior to initiation of the use or issuance of a building or septic permit, the applicant shall
submit a revised site plan illustrating employee parking that is outside of the required zone
setbacks.
15. Prior to the issuance of the change of occupancy of the detached shop, the property owner
shall sign and record with the County Clerk, &Conditions of Approval Agreement prepared by
the Planning Division regarding the authorized home occupation. A copy of the recorded
conditions of approval agreement shall be submitted to the Planning. Division.
16. The home occupation shall be reviewed on an annual basis to ensure compliance with the
conditions of approval.
Other permits may be required. The applicant is responsible for obtaining any
necessary permits from the Deschutes County Building and Environmental Health
Divisions, the Deschutes County Road Department, as well as any required state or
federal permits.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 26 of 30
V. DURATION OF APPROVAL:
The applicant shall submit an application for a building permit for the kennel and training
structure within two (2) years following the date this decision becomes final or obtain an
extension of time pursuant to Section 22.36.010 of the County Code.
Dated this 3rd day of September, 2008.
Mailed this 4thday of September, 2008.
Ab.c."1„lz
Gerald G. Watson, Hearings Officer
THIS. DECISION IS FINAL UNLESS APPEALED WITHIN 12 DAYS OF MAILING.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision. Page 27 of 30
Exhibit "A"
Redmond Fire and Rescue requirements are as follows:
Water:
Area without Fire Hydrants:
Water flow requirements shall be met or an approved sprinkler system shall be installed.
• NFPA 1142 Requirements
o If the structure is being built in an area outside a public water supply system, then the water
flow requirements will come from NFPA 1142.
o Note: The following information will need to be provided in order to determine accurate
water flow requirements.
• Building height, length and width
• Use of the building
• Type of construction
• Whether the structure 100 sq, ft or larger and within 50 feet of any other structures
Unable to provide water flow requirements.
• Structures with Automatic Sprinkler systems — 2001 NFPA 1142 Chapter 7
o The authority having jurisdiction shall be permitted to waive the water supply required by
this standard when a structure is protected by an automatic sprinkler system that fully meets the
requirements of NFPA 13.
• Fire Safety during Construction — 2007 OFC Chapter 14
o Approved fire department access roads, required water supply, and safety precautions shall be
made available as soon as combustible material arrives on site.
• Fire Sprinlder Systems shall be installed per NFPA 13.
o If there are greater than 20 sprinkler heads, the system is required to have a fire alarm
monitoring system.
o 2007 OFC 903.3.7 Fire Department Connections: The location of fire department connections
shall be approved by the fire department. The FDC(PIV shall not be under any combustible
projections or overhangs.
o NOTE — If the Building is sprinklered, the sprinkler system will need to be designed to the
specificuse that will be occurring in the building. If the sprinkler system is not designed
appropriately it will limit the types of businesses that can occupy the space.
Access:
• Premises Identification — 2007 OFC 505.1
o Approved numbers or addresses shall be placed on all new and existing buildings in such a
position as to be plainly visible and legible from the street or road fronting the property. Said
numbers shall contrast with their background and visible at night. Number/letter shall be a
minimum of 4" high and a 0.5" stroke width.
• Fire Apparatus Access Roads — 2007 OFC Section 503 & Appendix D
o Fire apparatus access roads shall extend to within 150 ft of all portions of the building as
measured by an approved route around the exterior of the building.
o Fire apparatus access roads shall have an unobstructed width of not less than 20.feet and an
n
unobstructed vertical clearance of not less than 13 feet 6 inches.
CU -08-11 (Vander Zanden)
Hearings Officer' s Decision Page 28 of 30
o Fire apparatus roads shall be designed and maintained to support the imposed loads of 70,000
lbs and shall be surfaced so as to provide all-weather driving capabilities.
o The required turning radius of a fire apparatus access road shall be 30 feet inside and 50 feet
outside.
o The grade of the fire apparatus access roads shall be within the limits established by the fire
code official (10%).
Unknown if the above requirements have been met.
• Fire Lanes - 2007 OFC 503.3 & Appendix D
o Approved signs or other approved notices shall be provided for fire apparatus access roads to
identify such roads or prohibit the obstruction thereof. Such signs or notices shall be kept in
legible conditions at all times. The stroke shall be 1 inch with letters 6 inches high and read "No
Parking Fire Lane". Spacing for signage shall be every 50 feet.
• Recommendedto also (in addition to Fire lane signs) paint fire lane curbs in bright
red paint with white letters.
o Appendix D Section D103.6.1 Roads 20-26 Ft. Wide: Shall have Fire Lane signs posted on
both sides of a fire lane.
o Appendix D Section 103.6.2 Roads more than 26 Ft. Wide: Roads 26=32 ft wide shall have
a Fire Lane signs posted on one side of the road as a fire lane.
• . Aerial Access Roads - 2007 OFC Appendix D, Section D105
o . Buildings or portions of buildings or facilities exceeding 30 feet in height above the lowest
level of fire department vehicle access shall be provided with approved fire apparatus access
roads and capable of accommodating fire department aerial apparatus. Overhead utility and
power lines shall not be located within the aerial fire apparatus access roadways. At least one of
the required access routes meeting this condition shall be located within a minimum of 15 feet
and a maximum of 30 feet from the building, all access roads shall have. an unobstructed with .of
not less than 26 feet and shall be positioned parallel to one entire side of the building.
Unknown if the above requirement will apply, height of building not provided.
• Dead -Ends — 2007 OFC Section 503.2.5
o Dead-end fire apparatus access roads in excess of 150 feet in length shall be provided with an
approved area for turning around fire apparatus. Contact Redmond Fire & Rescue for
requirements.
Unknown if the above requirement will apply.
• Emergency Access Road Gates — 2007 OFC Appendix D 103.5
o Minimum 20 feet wide.
o Gates shall be swinging or sliding type.
o Shall be able to be manually operated by one person.
o Electric gates shall be equipped with a means of opening by emergency personnel &
approved by fire official.
o Locking devices shall be fire department padlocks purchased from A-1 Lock, Safe Co. or
Vance Lock & Alarm or contact Redmond Fire & Rescue for order form.
o Section 503.3: Install a sign on the gate "Emergency Access"
• Key Boxes — 2007 OFC Section 506.1
o An approved key box shall be installed on all structures equipped with a fire alarm system
and /or sprinkler system. Approved key boxes can only be purchased at A-1 Lock Safe Co. or
Vance Lock & Alarm.
Commercial .& Industrial Development — 2007 OFC Appendix D 104
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 29 of 30
o Buildings exceeding three stories or 30 feet in height shall have at least 2 means of fire
apparatus access for each structure.
o Where 2 access roadsare required, they shall be placed not less than l/ the length of the
overall diagonal dimension of the property or area to be served, measured m a straight line
between accesses.
Unknown if the above requirement will apply.
CU -08-11 (Vander Zanden)
Hearings Officer's Decision Page 30 of 30
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BEND. OR. 41101
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CU -08-11
Applicant: Bruce & Peggy Vander Zander
Taxinap: 16 -12 -02 -CO -00700
Address: 7236 SW'Mcvey Ave
EXHIBIT
; 5 -
September 12, 2008
Attn: Lisa Klemp, Attorney
Bryant, Emerson, Fitch, LLP
888 S.W. Evergreen
Redmond, OR 97756
Re: Bruce and Peggy VanderZanden, Decision of Deschutes County Hearing Officer
File Number CU -08-11
We own the property to the south of the detached shop being considered and are writing
in response to the decision made by the Deschutes County Hearing Officer to require the
VanderZandens' to plant four trees on the southern side of the detached shop.
The above decision was made without discussing the issue with us and we are opposed to
this requirement. We already have trees on our property that obstruct viewing the
southern side of the detached shop, and this would be a waste of time, money and
duplication of what is already in place. It is our feeling that this requirement has already
been met and needs to be reconsidered by the county hearing officer and omitted.
If you have any questions or concerns regarding this matter, please feel free to contact us.
Thank you in advance for your consideration regarding the above matter.
Sincerely,
Richard and irley Langs n
7324 S.W. McVey Avenue
Redmond, OR 97756
(541)548-7415
EXHIBIT
RESPONSE TO •
DESCHUTES COUNTY PLANNING DIVISION
STAFF REPORT AND NEIGHBOR COMMENTS,
AND SUPPLEMENTAL INFORMATION
FILE NUMBER: CU -08-11
OWNER/APPLICANT:
Bruce and Peggy Vanderzanden
7236 SW McVey Avenue
Redmond, OR 97756
APPLICANTS ATTORNEY: Bryant, Emerson & Fitch, LLP
c/o Lisa DT Klemp, OSB #040012
888 SW Evergreen Avenue - P.O. Box 457
Redmond, OR 97756
1. Discrepancy in Building Sizes.
The Staff Report indicates that there is a discrepancy in the building sizes for the
dwelling and the accessory structure. The Applicant submits herewith a report from Western
Title & Escrow, and a DIAL Report from Deschutes County website which indicate the sizes of
the dwelling and attached garage. (Exhibit 1, also submitted as hearing exhibit .) The dwelling
and attached garage have a combined square footage of 4158 square fee. Chapter 18.116.280
(E)(5), Home Occupations allows up to 35% of the combined floor area of the dwelling, an
attached garage and one accessory structure to be used for a home occupation. As indicated in
both the DIAL Report and report from Western Title, the first floor of the dwelling is 2109
square feet, the second floor is 1265 square feet, and the garage is 784 square feet. This totals
4158 square feet.
Pursuant to the Deschutes County Tax Assessor's office, the square footage for tax
assessment purposes does not include the square footage of a garage. They stated that the livable
space is what is included for the Tax Assessor's purposes, and the garage is additional square
footage. As indicated in the Staff Report, the Tax Assessor is assessing 3374 square feet for the
dwelling on the subject property. The garage is in addition to that square footage. Therefore,
Applicant reasserts that the 4158 square feet is the correct square footage for the dwelling and
attached garage portion of the calculation. Staff's proposal to use 3166 is not supported by the
record.
Page 1 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY VANDERZANDEN
G:\Clients\LDIC\VanderZanden, Bruce & Peggy\Vanderzanden, Bruce & Peggy LLl\Response to Staff Report.wpd
EXHIBIT
BRYANT, EMERSON & FITCH, u..r
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE (541) 548-2151
FAX (541) 545-1895
The accessory structure is 5040 square feet. This is included in the information for the
building permit for the structure B65968. The application for the accessory structure was
submitted to Deschutes County and all plans and development of that structure were approved by
Deschutes County. Applicant requested previously, and again renews the request here, that the
building permit application materials be incorporated into the record for the home occupation
application. The attached Exhibit 6 are the building plans approved by the County which show
the square footage and all dimensions for the structure.
Therefore, the total square footage for the dwelling, attached garage, and accessory
structure is 9198 square feet. Applicant submits that 9198 square feet is the correct calculation
of the combined square footage.
Therefore, the combined allowed square footage of 9198 square feet allows up 3219.30
square feet (35%) for home occupation use. The Applicant is proposing to use only 3000 square
feet for the home occupation. Based on the actual sizes of the buildings onsite, this square
footage is less than that which is permitted by the Code. Therefore, the proposed 3000 square
feet should be approved as within the limitations of the Horne Occupation Code. If the Hearings
Officer determines less than 3000 square feet is required, the reduced square footage can be made
a condition of approval limiting the business area accordingly.
2. Residential Accessory Structure.
There are agricultural buildings and a dwelling established on the property. The
Vanderzandens have resided on the property for nearly 16 years. These uses will continue
subsequent to approval for a home occupation. The Staff Report questions whether the accessory
structure qualifies as a residential accessory structure within Deschutes County Code. Deschutes
County Code does not define residential accessory structure. An accessory structure is a
"structure incidental and subordinate to the main use of the property, and located on the same lot
as the main use." The structure is incidental and subordinate to the main use of the property, and
is located on the same lot as the main use.
The main use of the property is for residential and agricultural purposes. When looking at
the square footage for the residential use alone in light of the home occupation area, the home
occupation is less than one-half of the total square footage used for residential purposes. The
square footage for the dwelling and the garage which are used for residential purposes is 4158
square feet. In addition, the second floor of the structure is used for personal residential storage,
which equates to 2040 feet. This is a combined total of 6198 square feet used for residential
purposes. The proposed 3000 square feet for the home occupation is less than half of the total
residential square footage.
In addition, the County has approved the structure as a "residential accessory structure,"
therefore it has already determined that the structure itself is incidental to and subordinate to the
Page 2 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY VANDERZANDEN
G:\Clients\LDKWanderZanden, Bruce & Peggy\vanderzanden, Bruce & Peggy LU\Response
to Staff Report.wpd
BRYANT, EMERSON & FITCH, LLr
ATTORNEYS AT L/ N
885 S.W. EVERGREEN /. /ENUE
P.O. BOX 457
REDMOND, OREGON 97 55-0103
TELEPHONE (541) 54;:.2151
FAX (541) 548-18 5
main uses of the property. The Staff Report indicates that Staff "believes that the accessory
structure does not qualify for the proposed use as a residential accessory structure because it was
allegedly established with the intent to use as a home occupation." The Staff's belief regarding
the nature and intended use of a structure does not govern over the Code. The Code does not
define residential accessory structure. Even if a structure is developed with an intent to use part
of it for a home occupation - which by nature is a commercial use - that does not in and of itself
render the structure a nonresidential accessory structure. As stated in the application materials
and the Staff Report, the structure is used for personal storage. Since home occupation uses are
"commercial" uses, if the mere usage of a structure for a home occupation removes it from a
"residential accessory structure status" - then the Code would never be satisfied and home
occupations would never be found to be conducted within a "residential accessory structure."
The personal use is consistent with and an extension of the residential uses on the property.
The decisions cited by staff are distinguishable fiom this case. In V-01-11, the applicant
was seeking approval for an existing structure which was much larger than the dwelling on the
property. Here, the Applicant has already received approval for the structure as accessory which
included a consideration of its size as compared to the dwelling.
3. The Property is Currently Under Farm Deferral.
Nineteen of the twenty acres is primarily used for pasture lands for horses and cattle, and
a few hogs. This agricultural activity will continue even with the existence of a home
occupation.
4. Change of Occupancy.
The Applicant is aware that a change of occupancy is required upon approval of a home
occupation use of the structure. The Applicant's representative has contacted the Deschutes
County Building Department and has discussed the requirements for a change of occupancy for
the structure. This will be completed by the Applicant upon an approved application. This can
be made a condition of approval.
5. Septic Evaluations.
There is no proposed plumbing requiring a septic. It can be made a condition of approval
that the Applicant will obtain any necessary site evaluations for septic approval if such
improvements are desired.
6. The Attachment of the Shop to the Adjacent Structure.
The machine shop/barn building previously located on the property is only connected to
the shop in which the home occupation would be conducted by roof line. Each structure has its
Page 3 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY VANDERZANDEN
G:\Clients\LDK\VanderZanden, Bruce & Pegg \Vanderzanden, Bruce & Peggy LU\Response to StaffReport.wpd
BRYANT, EMERSON & FITCH, LLP
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE (541) 548-2151
FAX (541) 548-1895
own exterior load bearing wall. The machine shop/barn building will remain a part of the
farming operation. The Applicant does not intend to have any of the machine shop/barn building
used in the home occupation business. The relevance of this structure being connected to the
shop is not clear. The Applicant meets the minimum square footage requirement based on the
size of the accessory structure and the dwelling with the attached garage. The Applicant need not
include the 1872 square feet of the machine shop/barn building in order to meet the minimum
square feet requirements for the home occupation. The current use of the machine shop/barn is
not going to change with any approved home occupation use.
7. The Staff Report, Page 9, indicates that the "home occupation will be clustered in
and around existing residential and farm -related structures thus not interfering
with .other permitted uses that may occur on the EFU zoned parcel."
The surrounding area is used for both rural residential or small or medium size fauns.
The neighbors have raised concerns regarding impacts that could interfere with the rural
residential and agricultural uses of the property. The Home Occupation Code requires that such
interference be "unreasonable."
The Staff Report finds that the home occupation use on the subject property would not
interfere with other uses that occur on the subject property which include both residential and
agricultural activities. It is difficult to understand how if the home occupation does not interfere
with the uses on the subject property, the surrounding property uses may be "unreasonably"
interfered with. No specific interferences are identified for the Applicant to adequately respond
to. The Applicant has addressed the extent to which the proposed home occupation use will be
contained within a cement structure to mitigate noise, there is a ventilation system to collect dust
from escaping, there is a ventilation system to control V.O.C. emissions generated by the use
which the DEQ already classifies as de minimis, (Hearing exhibit, also attached as Exhibit 2
hereto) and that there will be minimal traffic generated by this use (3 to 5 vehicles trips per day).
The location of the accessory structure in which the home occupation would take place is
clustered with other buildings on the 20 acre lot, and set back from all property lines and
surrounding uses. Applicant submits that not only will the use not "unreasonably" interfere with
neighboring uses, the use will not force any "change or significantly increase costs" of accepted
faun practices in the area. The nearest fanning operation is approximately 140 feet from the
cement accessory structure. The closest farming use is approximately 290 feet away, and west of
the subject property. The closest residential use is approximately 450 feet away. These
distances create a significant buffer that serves to further mitigate any emissions from impacting
surrounding uses.
Deschutes County Planning sent out 27 notices to surrounding properties regarding the
home occupation application submitted by the Vanderzandens. Of the 27 notices, the County
received 5 responses from neighboring property owners. The neighbors' concerns included
Page 4 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY VANDERZANDEN
G:\Clients\LDK\VanderZanden, Bruce & Peggy\Vanderzanden, Bruce & Pegg} LU\Response to Staff Report.wpd
BRYANT, EMERSON & FITCH, ue
ATTORNEYS AT L) N
888 S.W. EVERGREEN JENUE
P.O. BOX 457
REDMOND, OREGON 97 56-0103
TELEPHONE (541) 546 2151
FAX (541) 546-181.5
noise, dust, and odor. Again, as previously indicated, and as acknowledged in the Staff Report,
the business will take place nearly entirely within an insulated concrete form building. The only
activity to be conducted outside is the loadingand unloading of delivery vans. The concrete
form building is an excellent insulator of noise. In fact, this type of construction is used for
theaters to control noise. The engineering manual for the building indicates that "the net result is
a very strong, energy efficient wall system that has excellent sound abatement and fire ratings."
(Exhibit #3) Pursuant to the Reward Wall System information provided in Exhibit 3, the sound
abatement, or reduction, for this structure is 48 to 65 decibels. (Exhibit 3, Section 2.2.2.) The
structure is an 11" iForm system. The worst case scenario for the interior decibel level of the
wood shop is 102 to 103 decibels. (Exhibit 4.) These are the decibel levels for the operation
testified to by the Applicant which were measured by Oregon OSHA. Exhibit 4 is the OSHA
report. The shop in which these levels were measured had approximately 12 employees.
Therefore, this is a good representation of what the worst case scenario would be for the
operation proposed by the Applicant with only 3 employees. Therefore, taking the worst case
scenario decibel level of 103, minus the 48 to 65 -decibel level reduction resulting from the
Reward Wall System 11" iForm structure, the result is a 38 to 55 decibel level from the opposite
side of the walls. Therefore, this is an average decibel level of 46.5. According to page 1 of
Exhibit 3, the 45 decibel level from the opposite side of the wall equates to loud speech that is
not audible, and of which 90% of the statistical population is not annoyed by. Forty-eight
decibels is barely audible, and 50 decibels is inaudible, and even loud sounds such as a stereo are
faintly heard. Exhibit 5 has additional information regarding the Reward Wall System, and the
benefits of the sound reduction from such a system.
It is difficult to determine the actual level of decibel levels generated by the workshop
until the business is actually operational. It is obvious that the concrete structure will absorb
much of the sound. Each piece of equipment has a huge noise difference, and the noise level will
all depend on the piece of equipment being used at any given time. According to OSHA, there
are even ranges in decibel levels for particular equipment. For example, not every tractor or saw
will have the same decibel rating. In the 2004 inspection performed by Oregon OSHA, OSHA
did not measure the decibel levels of the individual equipment used in the shop, but had the
employees wear a device which measured the decibel level exposure throughout the day.
The "community noise" publication exert proposes that the outdoor living noise should
not exceed 55 db LA eq to protect neighbors from being seriously annoyed from noise on
balconies, terraces, and in outdoor living spaces. To protect the majority of people from being
moderately annoyed, the daytime sound pressure level was recommended not to exceed 50 db
LA eq. (Exhibit 7.)
It is important to note that the zoning for the subject property and the surrounding area is
EFU and MUA-10, and area also has an airport safety combining zone overlay. The airport
safety combining zone indicates that the airport flight corridor is directly over this area.
Therefore, when considering the neighborhood noise, one must also consider the aircraft noise of
Page 5 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY V 4NDERZANDEN
G:1Clients\LDK\VanderZnnden. Bruce & PeggylVanderznnden, Bruce & Peggy LU\Response to Staff Report.wpd
BRYANT, EMERSON & FITCH, up
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE (541) 548-2151
FAX (541) 548-1895
this neighborhood. Exhibit 8 addresses aircraft operation noise, and states that aircraft operations
generate substantial noise in the vicinity of both commercial and military airports. Aircraft
takeoffs are known to produce intense noise, including vibration and rattle. The landings
produce substantial noise in long low -altitude flight corridors. There are noises produced by the
landing gear and automatic power regulation, and also when reverse thrust is applied. The
airflow generated by the fan can also be a significant noise source, particularly during landing
and taxing operations. Multi -bladed turbo -prop engines can produce relatively high levels of
tonal noise. (Exhibit 8.) It is estimated a jet plane from a passenger ramp and small aircraft
engines have a 120 db reading. (Exhibit 9) Therefore, this property which is in the flight corridor
is subject to such sound.
Section 2.2.4 of Exhibit 8 also addresses domestic noise and noise from leisure activities.
Exhibit 9 lists a number of the mechanical devices from which noise may stem with the
approximate decibel level to expect from any individual device. As you can see from this chart,
the decibel levels for this neighborhood would range from 40 decibels to 110 decibels for the
domestic noise. In addition, the cars on McVey Avenue would generate approximately 100
decibels, and agricultural land is rated at an approximate 40 decibel level. I have inarked Exhibit
9 to identify those items which would likely be found in this neighborhood. According to this
chart, the average decibel rating for the noise on the opposite side of the wall of the business .
(46.8 db) would range between the equivalent of a low voice or refrigerator in the home, and be
consistent with agricultural lands which are rated at approximately 40 decibels, and with an air
conditioner and average home noise which rates at approximately 50 decibels. Exhibit 10 has
additional decibel ratings for items expected to be found in this neighborhood, including a
number of items identified by Schultz during his testimony at the public hearing on this
application.
According to the tax maps for the application, the subject property is 20 acres in size,
with a width of 1310 lineal feet. The accessory structure is located in the northwest comer of the
property, and clustered with other buildings and vegetation. The nearest dwelling is to the south,
approximately 450 feet, and this neighbor testified in support of this application. Tax lot 600,
which is the Corbett property, is approximately 985 lineal feet from the accessory structure. As
illustrated on the aerial photo for the application, the other neighboring owners that testified in
opposition to this application live to the east of the subject property. The dwellings to the east
are located on approximately 5 acre lots, and primarily located along the eastern boundary of
each parcel. Therefore, there is an estimated 1500 lineal feet between the accessory structure and
the dwellings to the east. The dwelling to the north is located on the eastern boundary of that
parcel, and is estimated to be a 1000 lineal feet from the accessory structure. These distances are
substantial and significantly contribute to further reduce any effect of sound emission or other
emissions from the accessory structure on neighboring uses.
As explained in Exhibit 8, Section 2.5, barriers and screens that block the direct path from
the source of the noise to the receiver can reduce the propagation of sound. The attenuating
Page 6 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY V?sNDERZANDEN
G:\Clients\LDK\VanderZanden, Bruce & Peggv\Vanderzanden, Bruce & Peggy LU\Response to Staff Report.wpd
BRYANT, EMERSON & 1 ITCH, Liz
ATTORNEYS AT LAZA
BBB S.W. EVERGREEN AV. NUE
P.O. BOX 457
REDMOND, OREGON 9775.-0103
TELEPHONE (541) 546-::51
FAX (541) 546-1695
effects of the screen are limited by sound energy that defracts or bends around the screen. As
indicated in the aerial photo, there are a number of buildings and trees on the subject property.
There is a line of trees on the east side of the property which serve to deflect sound transmitting
from the accessory structure to the eastern neighbors. Therefore, the deflection by those trees
would further decrease the sound, if any, transmitted to that property. The dwelling to the
southwest, tax lot 600, is clustered in trees, and there are buildings on the subject property which
serve to deflect any sound emitted from the accessory structure. This all serves to further reduce
any noise that actually might be transmitted to the neighboring property.
Not only does this screening serve to deflect sound transmission, it also serves as a
visible screening. Exhibit 11 consists of 12 photographs taken from the surrounding area to
illustrate the screening of the accessory structure at issue. As indicated from those photographs,
the structure is screened from most of the surrounding property, and where visible it appears as
an agricultural building. As seen in the photos, the property with the greatest visibility of the
structure is not opposed to the home occupation use applied for. Therefore, there is significant
screening and the building is mostly obscure from the neighboring properties.
The accessory structure has a dust collection system in the building. Therefore, the dust
emissions will be minimal, if any. It is not likely that any more dust will be emitted from this
use than what is already generated from the farming operations onsite.
The paint booth has a filter exhaust system. Only about 3000 pounds of V.O.C. a year
will be generated by the cabinet manufacturing business. That is 5.5 pounds per day if operated
7 days :a week. The DEQ's regulations address V.O.C. (volatile organic contaminants). The
lacquer used by the Applicant is H.A.P.S. (hazardous air pollutants) free. Therefore, not only is
the amount used by the Applicant de minimis, it is even less harmful due to the fact that it is
hazardous air pollutant free. The DEQ regulations have an exclusion for this material. (See
Exhibit 2, Pages 2, 3, 12)
The Applicant submits that Bar 7A has clean wood recycling and so does Deschutes
County Department of Solid Waste. The Applicant will dispose of sawdust and wood scraps to
these agencies.
Safety Kleen of Clackamas, Oregon has been handling the liquid paint waste generated
from the business operation of the Applicant for nearly 10 years. In addition, the Applicant is
considered a conditionally exempt generator by the Oregon DEQ regulations.
The use will generate no impact to water.
The proposal indicates that approximately three to five vehicle trips per day may be
generated by the home occupation use. This estimate includes UPS deliveries. This is
significantly less than the 20 vehicle trips per day permitted by the Code The trips would include
Page 7 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY VANDERZANDEN
G:\Clients\LDIC\VanderZanden, Bruce & Peggy\Vanderzanden, Bruce & Peggy LU\Response to Staff Report.wpd
BRYANT, EMERSON & FITCH, ur
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE )541) 548-2151
FAX (541) 54B-1695
one van a day to deliver accessories for the manufacturing operation, and another van per week
to deliver wood. These are not large heavily weighted trucks. The deliveries would be made via
van, and should have very little impact to the existing driveway. Applicant will contribute to the
maintenance of the existing access for any impact resulting from this use. The access is already
used for agricultural operations, including equipment and deliveries, etc. consistent with an
agriculture production. Any traffic generated by this use is considered "minimal" in the Staff
Report, and the Applicant submits that the minimal traffic generated would not impact the
surrounding land uses.
Again, because the operation will take place almost entirely in the concrete structure,
except for the loading and offloading of materials, there would be little, if any, impact on
neighbors. In addition, the location of the building is screened via surrounding buildings,
topography, vegetation, and setbacks from the property lines. The nearest residential use is over
450 feet away from the building.
Although the Staff Report says that the use would interfere with neighbors because they
work Monday through Friday and will likely have Saturday and Sunday off and be enjoying time
at home, there is no evidence in the record to support this belief, or conclusion, and the neighbors
have not raised this as an issue. Because the operation will be screened and contained, even if
the neighbors were home on Saturday and Sunday, there would be little, if any, impact on the
neighboring uses for the reasons set forth previously. In addition, Mrs. Vanderzanden works
nights and sleeps during the days, so any noise level created by the home occupation must not
interfere with her sleep in the residence onsite.
The ventilation system for the dust and paint booth will minimize any emissions from
escaping the cement structure. With a cement structure, the noise generated by the home
occupation business is significantly mitigated, there are minimal vehicle trips to the subject
property in relation to this proposed use (estimated 3 to 5 trips per day), and there is significant
distance between the accessory structure and the surrounding uses. Therefore, the use would
have very little impact, if any, on the surrounding properties. Moreover, any impact would not be
"unreasonable" or force any significant "change or significantly increase costs of accepted faun
practices in the area."
8. The neighbors are concerned about business uses in the surrounding area.
The Deschutes County Board of Commissioners recently adopted amendments to the
Horne Occupation Code, and found the Code consistent with the comprehensive plan for
resource zoned, and rural residential zoned property. Although the neighbors prefer all business
activity be located in industrial and commercial zones in Deschutes County, the Board of
Commissioners has determined that small home occupations, such as proposed, are permissible
within the EFU zone, if the criteria for the home occupation use are satisfied. As illustrated in
Exhibit 12, there are a number of existing businesses in the area so the proposed home
Page 8 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY VANDERZANDEN
GAClientslLDK\VanderZanden, Bruce & Peggy\Vanderzanden, Bruce & Peggy LU\Response to Staff Report.wpd
BRIANT, EMERSON S :PITCH, u.r
ATTORNEYS AT LA1`
888 S.W. EVERGREEN Al :NUE
P.O. BOX 457
REDMOND, OREGON 977' 5-0103
TELEPHONE (541) 548- 151
FAX (541) 548-1891
occupation use is not setting precedent or resulting in an anomaly in the area.
V-08-1 is on appeal. As previously addressed, the area proposed for the home occupation
is less than half of the residential uses of the property. The Code has established 35% of the
combined allowed square footage to be used for the home occupation. Here the Applicant is
proposing to use less area.
The Applicant has addressed the criteria for the home occupation, and has provided
information that the proposed use will not unreasonably interfere with surrounding uses, or
change or significantly.increase the costs of accepted farm practices in the area. Therefore, based
on the analysis for the home occupation use permitted in the EFU zone, the Applicant submits
that this application has satisfied the criteria that Deschutes County considered necessary to cite a
home occupation business in the EFU zone.
9. Uses Compatible with Resource Oriented Character of the Location.
The use is compatible with resource oriented character of the location. "Compatible" is
defined by Webster as "capable of existing together in harmony." The proposed use is nearly
fully contained within a concrete structure, and has very little, if any, emissions. As indicated in
the Staff Report, page 9, the use would not even interfere with other uses permitted on the
subject parcel. Therefore, it would be difficult to conclude that the use would interfere with uses
on surrounding properties giving rise to rendering the proposal incompatible with the location.
As previously discussed herein, the proposal would have no "unreasonable interference" with
surrounding uses, and would not significantly increase the cost of accepted fano practices in the
area, or change the accepted farm practices in the area. Therefore, the use is "compatible" with
the resource oriented character of the location and would have little, if any, impact on
surrounding uses. Most importantly, any resulting impact would not render the use incompatible
with the surrounding resource oriented character.
10. Alteration to Existing Buildings to Give a Commercial Appearance.
Applicant has followed the Deschutes County Requirements for establishing the proposed
use. There will be no alteration to the existing building to give it a business appearance. The
structure has been approved as a residential accessory structure, and has gone through site and
design review. The structure was considered appropriate for the location and zoning, and has
been designed to match the existing onsite development. A mere change in the internal use of
the structure does not automatically cause an outward appearance of a business or alter the
existing business to give a commercial appearance. The Staff Report indicates that although not
currently a structure with a commercial appearance. A change in the internal use of the structure
could cause a change in the appearance of the structure. The application does not involve any
external changes to the dwelling or accessory structure in which the home occupation will be
established that would give the dwelling the outward appearance of a business. The proposal is
Page 9 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY VANDERZANDEN
G:\ClientstLDK\VanderZanden. Bruce & Peggy\Vanderzanden, Bruce & Peggy LU\Response to Staff Report.wpd
BRYAN% EMERSON & FITCH, UP
ATTORNEYS AT LAW
888 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE (541) 545-2151
FAX (541) 546-1095
consistent with the requirements of the Code, and this criteria is satisfied. A mere change in the
internal use of a structure does not change its outward appearance.
The Staff Report also indicates that the size of the structure alone may give an outward
appearance of a business. However, this is a difficult argument to understand. The size of the
structure exists today, and is not proposed to be modified to accommodate the home occupation
use. Therefore, if the appearance of the structure today, and its existing size, does not give an
out -ward appearance of a business, then it is difficult to understand how an internal change in the
use of the structure would somehow give rise to an out -ward appearance of a business. Applicant
submits again that this criteria is satisfied.
The Applicant submits that it can be made a condition of approval to comply with
environmental health division, building safety division, and State and federal laws.
11. The Code Allows for Loading and Unloading of Vehicles.
A Type 3 Home Occupation, which is applied for, allows for servicing, inspecting
loading, and/or dispatching of vehicles and equipment incidental to the home occupation. The
Applicant proposes to load and unload delivery vehicles onsite, consistent with the home
occupation code limitations. Again, the structure and the parking area is screened by existing
buildings onsite, vegetation, and setbacks from surrounding uses. The mere loading and
unloading of the vehicles does not create a structural alteration affecting the appearance of the
buildings onsite, and is permitted by the Code. The deliveries are expected once a day for
accessories, and once a week for wood materials. Therefore, there would be minimal time spent
onsite loading and unloading materials, and such activity would be screened, and a significant
distance from the neighboring uses.
12. It Can Be Made a Condition of Approval That All Parking Shall Be Maintained
Outside of the EFU Setback Requirements.
There is ample space on the 20 acre parcel, including around the existing structures, to
locate parking. The EFU setbacks will be adhered to. This can be made a condition of approval.
13. Access.
The owners of tax lot 600 have questioned the legal use of the existing access by the
Applicants. A proper challenge to the use of the existing access, and scope of that use is not in
this forum, but in Circuit Court of Oregon. The Applicants have used the existing access for 16
years. The owners of tax lot 600 purchased, as evidenced in their deed, subject to an existing
roadway access. The owners were not put on notice of the existing access to the subject property
and purchased subject to the easement for road use, and the easement recorded at Volume 247,
Page 75. Whether the scope of the use exceeds the road easement encumbering their property,
Page 10 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY VANDERZANDEN
G:\Clients\LDK\VanderZanden, Bruce & Peggy\Vanderzanden. Bruce & Peggy LU\Response to Staff Report.wpd
BRYANT, EMERSON T. FITCH,,.n
ATTORNEYS AT +W
888 S.W. EVERGREEN +VENUE
P.O. BOX 457
REDMOND, OREGON 9 756-0103
TELEPHONE (541) 5.'3-2151
FAX (541) 546-11+35
and any legal challenge to the continued use is subject to Circuit Court jurisdiction. The subject
property has benefitted from the easements cited and will continue to do so. The proposed use
does not increase the existing scope of the use to exceed the road easement footprint. (Exhibit 13
and 14.)
DATED this 24`)1 day of June 2008.
BRYANT, EMERSON & FITCH, LLP
DT
Of Attome
888 SW Eve
EMP,
for B
SB #040012
e and Peggy Vanderzanden
Avenue - P.O. Box 457
Redmond, OR 97756
541.548.2151 - 541.548.1895 (fax)
Email: lisa�,redmond-lawvers.coln
Page 11 - Response to Deschutes County Planning Division
Staff Report
BRUCE AND PEGGY VANDERZANDEN
GACIients\LDK\VanderZanden, Bruce & Peggy\Vanderzanden, Bruce & Peggy LU\Response
to Staff Report.wpd
BRYANT, EMERSON & FITCH, us
ATTORNEYS AT LAW
588 S.W. EVERGREEN AVENUE
P.O. BOX 457
REDMOND, OREGON 97756-0103
TELEPHONE (541) 548-2151
FAX (541) 548-1895
mis
About Decibels (dB)
Prepared by Gregg Vanderheiden Ph.D.
Trace R&D Center University of Wisconsin -Madison
What is a Decibel (dB)?
A dB or Decibel is a logarithmic unit of measure of the ratio between two numbers.
dB and Power (20dB = 100x)
When talking about power, 3dB represents a ratio of two to one or a doubling of power.
• Thus, a gain of 10dB would represent a ratio of ten to one for power- so 10 dB be 10
times the power
• A 40dB power gain would be 10,000 times the power.
dB and Voltage gain (20dB = 10x)
When talking about voltage, 6dB represents a ratio of two to one or a doubling of voltage.
• 20dB would represent a ratio of ten to one for voltage so 20 dB would be 10 times the
voltage.
• A 40dB voltage gain would be 100 times the voltage.
dB SPL (Sound Pressure Level) (20dB = 10x)
The term "SPL" stands for sound pressure level. SPL measures are taken with respect to the
minimum threshold for human hearing. A 20 dB difference in SPL represents a ratio of
ten -to -one in sound pressure.
• Thus, a 40dB SPL would be a sound pressure level that is 100 times greater than the
sound pressure level of the quietest sound that normal human hearing can detect.
Perception of Loudness (20dB = 4x)
interestingly, our perception of loudness is not the same as sound pressure level. Although
the actual formulae
is somewhat complex, as a rough rule of thumb, an increase of 10db SPL is perceived to be
approximately twice as loud.
• Thus a 20 Db gain would seem to be about 4 times as loud. VANDERZANDEN
• And a 40 Db gain would seem to be about 16 times as loud. Exhibit 10
Arnrmrw z•r tPia
dB SPL in Real Life
To give you an idea of how a dB SPL measurements relate to daily life, a listing of the
approximate sound pressure level for various sounds is provided below. (From
http://www.state.me.us/spo/landuse/docs/NoiseTABulletin.pdf - with the "Approximate
Loudness" column added) (see also dB SPL and dB(A) SPL discussion on next page)
Sound Environment
Sound Pressure
Level (dBA SPL)
Approximate loudness with
regard to ordinary conversation
Threshold of hearing
0
Don't hear anything
Broadcast studio interior or
rustling leaves
10
1/32nd as loud as conversation
Quiet house interior or rural
nighttime
20
1/16th as loud
Quiet office interior or watch
ticking
30
1/8th as loud
Quiet rural area or small
theater
40
1/4th as loud
Quiet suburban area or
dishwasher in next room
50
1/2 as loud
Office interior or ordinary
conversation
60
Ordinary Conversation
Vacuum cleaner at 10 ft. :
70
Twice as loud
Passing car at 10 ft. or
garbage disposal at 3 ft
80
4 times as loud
Passing bus or truck at 10 ft. or
food blender at 3 ft.
90
8 times as loud
Passing subway train at 10 ft.
or gas lawn mower at 3 ft.
100
16 times as loud
Night club with band playing
110
32 times as loud
Threshold of pain
120
64 times as loud as conversation
(twice as loud as night club)
Where to get more information
A good resource on this topic (referred to from the Acoustical Society of America Site)
m ;nnnu 14)4 PM
... t+.......... \,,...,
• Acoustics FAQ
What is difference between dB SPL and dB(A) SPL?
The following is from the Acoustics FAQ. A sound level meter that measures the sound
pressure level with a "flat" response will indicate the strength of low frequency sound with the
same emphasis as higher frequency sounds. Yet our ear perceives low frequency sound to
be of less loudness that higher frequency sound. The eardrum- stapes -circular window
system behaves like a mechanical transformer with a finite pass band. In EE parlance, the "3
dB" rollover frequencies are approximately 500 Hz on the low end and 8 kHz on the high
end. By using an electronic filter of attenuation equal to that apparently offered by the human
ear for sound each frequency (the 40-phon response curve), the sound level meter will now
report a numerical value proportional to the human perception of the strength of that sound
independent of frequency. Section 8.2 shows a table of these weightings.
Unfortunately, human perception of loudness vis-a-vis frequency changes with loudness.
When sound is very loud - 100 dB or more, the perception of loudness is more consistent
across the audible frequency band. "B" and "C" Weightings reflect this trend. "B" Weighting is
now little -used, but C -Weighting has achieved prominence in evaluating annoying community
noises such as low frequency sound emitted by artillery fire and outdoor rock concerts.
C -Weighting is also tabulated in 8.2.
The first electrical sound meter was reported by George W Pierce in Proceedings of the
American Academy of Arts and Sciences, v 43 (1907-8) A couple of decades later the switch
from horse-drawn vehicles to automobiles in cities led to large changes in the background
noise climate. The advent of "talkies" - film sound - was a big stimulus to sound meter
patents of the time, but there was still no standard method of sound measurement. "Noise"
(unwanted sound) became a public issue.
The first tentative standard for sound level meters (Z24.3) was published by the American
Standards Association in 1936, sponsored by the Acoustical Society of America. The
tentative standard shows two frequency weighting curves "A" and "B" which were modeled
on the response of the human ear to low and high levels of sound respectively.
With the coming of the Walsh -Healy act in 1969, the A -Weighting of sound was defacto
presumed to be the "appropriate" weighting to represent sound level as a single number
(rather than as a spectrum). With the advent of US FAA and US EPA interests in the '70's,
the dBA metric was also adapted by them. (Along with the dBA metric has come an
associated shortfall in precision in accurately representing the capacity of a given sound to
produce hearing loss and the capacity to create annoyance.)
[Editor's Note: A single number metric such as dBA is more easily understood by legal and
administrative officials, so that promulgation, enforcement and administrative criteria and
actions are understandable by more parties, often at the expense of a more precise
comprehension and engineering action capability. For instance, enforcement may be on a
dBA basis, but noise control design demands the octave -band or even third -octave band
spectral data metric.]
The most commonly referenced weighting is "A -Weighting" dB(A), which is sirnilar to that
originally defined as Curve "A" in the 1936 standard. "C -Weighting" dB(C), which is used
A191190( R 1-04 PM
- occasionally, has a relatively flat response. "U -Weighting" is a recent weighting which is
used for measuring audible sound in the presence of ultrasound, and can be combined with
A -Weighting to give AU -Weighting. The A -Weighting formula is given in section 8 of this FAQ
file.
In addition to frequency weighting, sound pressure level measurement can be time -weighted
as the "Fast", "Slow" or "Impulse" response. Measurements of sound pressure level with
A -Weighting and fast response are also known as the "sound level".
Many modem sound level meters can measure the average sound energy over a given time.
this metric is called the "equivalent continuous sound level" (L sub eq). More recently, it has
become customary in some circles to presume that this sound measurement was
A -Weighted if no weighting descriptor is listed.
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Page 1 of 1
Cynthia Srnidt
From: Clara Butler [Clara.Butler@ci.redmond.or.us]
Sent: Thursday, November 06, 2008 9:25 AM
To: haroldscci@aol.com
Cc: Cynthia Smidt
Subject: 7236 SW McVey Ave
Attachments: Comments for A 08-18; CU 08-11, Bruce Vander Zanden, Cabinet Manufacturing,
161202C000700.doc
Mr. Vanderzanden,
After my site visit on Tuesday, November 4, 2008, I am able to provide you with more accurate
comments regarding CU 08-11. I have included the cubic footage to the structure and ran the
numbers through NFPA 1142, Water Requirements. The total gallons needed to meet fire
flow are 101,362.
You still have the option of having a sprinkler system installed to meet your water
requirements. The designer of the sprinkler system can then inform you how much water
would be required to supply that system.
I made a note that access requirements have not been met but do know that you have plans to
correct that. I also attached the turn around requirements due to the length of your driveway.
If you have any further questions, please feel free to contact me.
Clara Butler
Deputy Fire Marshal
Redmond Fire & Rescue
www.redmondfireandrescue.org
541-504-5016
11/6/2008
Redmond Fire and Rescue Commercial Comments
Redmond Fire & Rescue
City of Redmond
341 NW Dogwood Ave
Redmond, OR 97756
541-504-5000
Fax: 541-548-5512
www.redmondfireandrescue.org
Date: November 6, 2008
Location: 161202C000700, 7236 SW McVey Ave
Subject: Comments for A 08-18; CU 08-11, Bruce Vander Zanden, Cabinet Manufacturing
From: Clara Butler, Deputy Fire Marshal
If there are questions regarding Fire Code issues, please contact the Redmond Fire and Rescue Deputy
Fire Marshal at 541-504-5016 or email at clarab@ci.redmond.or.us.
WATER:
Area without Fire Hydrants:
• NFPA 1142 Requirements
o If the structure is being built in an area outside the City of Redmond's public water supply
system, then the water flow requirements will come from NFPA 1142.
o Based on the following information:
• Building height, length and width
• Use of the building
• Type of construction
• Whether the structure 100 sq ft or larger and within 50 feet of any other structures
The structure is 135,150 cubic feet, the building will be used for cabinet manufacturing, the type
of construction per the owner and the Oregon Structural Specialty Code is 5N, and there is a
exposure to the structure. It appears that the fire wall between the barn and the structure is
antiquate to allow the two structures to be counted as separate fire flow areas. Applying NFPA
1142 to the above cubic footage with an exposure gives us a fire flow of 101,362 gallons.
• Structures with Automatic Sprinkler systems — 2001 NFPA 1142 Chapter 7
o The authority having jurisdiction shall be permitted to waive the water supply required by
this standard when a structure is protected by an automatic sprinkler system that fully meets
the requirements of NFPA 13.
• Fire Safety during Construction — 2007 OFC Chapter 14
o Approved fire department access roads, required water supply, fire hydrants, and
safety precautions shall be made available as soon as combustible material arrives on site.
ACCESS:
• Premises Identification — 2007 OFC 505.1
o Approved numbers or addresses shall be placed on all new and existing buildings in such a
position as to be plainly visible and legible from the street or road fronting the property. Said
11/6/2008 1
Redmond Fire & Rescue
City of Redmond
341 NW Dogwood Ave
Redmond, OR 97756
541-504-5000
Fax: 541-548-5512
www.redmondfireandrescue.org
numbers shall contrast with their background and visible at night. Number/letter shall be a
minimum of 4" high and a 0.5" stroke width.
• Fire Apparatus Access Roads — 2007 OFC Section 503 & Appendix D
o Fire apparatus access roads shall extend to within 150 ft of all portions of the building as
measured by an approved route around the exterior of the building.
The above requirement has been met.
o Fire apparatus access roads shall have an unobstructed width of not less than 20 feet and an
unobstructed vertical clearance of not less than 13 feet 6 inches.
The above requirement has not been met.
o Fire apparatus roads shall be designed and maintained to support the imposed loads of 70,000
lbs and shall be surfaced so as to provide all-weather driving capabilities.
o The required turning radius of a fire apparatus access road shall be 30 feet inside and 50
feet outside.
Unknown if the above requirement has been met.
o The grade of the fire apparatus access roads shall be within the limits established by the fire
code official (10%).
• Fire Lanes — 2007 OFC 503.3 & Appendix D
o Approved signs or other approved notices shall be provided for fire apparatus access roads to
identify such roads or prohibit the obstruction thereof. Such signs or notices shall be kept in
legible conditions at all times. The stroke shall be 1 inch with letters 6 inches high and read
"No Parking Fire Lane". Spacing for signage shall be every 50 feet.
• Recommended to also (in addition to Fire lane signs) paint fire lane curbs in bright
red paint with white letters.
o Appendix D Section D103.6.1 Roads 20-26 Ft. Wide: Shall have Fire Lane signs posted on
both sides of a fire lane.
• Dead -Ends — 2007 OFC Section 503.2.5
o Dead-end fire apparatus access roads in excess of 150 feet in length shall be provided with an
approved area for turning around fire apparatus. Contact Redmond Fire & Rescue for
requirements.
See attached below for requirements.
• Emergency Access Road Gates — 2007 OFC Appendix D 103.5
o Minimum 20 feet wide.
o Gates shall be swinging or sliding type.
o Shall be able to be manually operated by one person.
o Electric gates shall be equipped with a means of opening by emergency personnel &
approved by fire official.
o Locking devices shall be fire department padlocks purchased from A-1 Lock, Safe Co. or
Vance Lock & Alarm or contact Redmond Fire & Rescue for order form.
o Section 503.3: Install a sign on the gate "Emergency Access"
11/6/2008 2
Redmond Fire & Rescue
City of Redmond
341 NW Dogwood Ave
Redmond, OR 97756
541-504-5000
Fax: 541-548-5512
www.redmondfireandrescue org
• Key Boxes — 2007 OFC Section 506.1
o An approved key box shall be installed on all structures equipped with a fire alarm system
and /or sprinkler system. Approved key boxes can only be purchased at A-1 Lock Safe Co. or
Vance Lock & Alarm.
2007 Oregon Fire Code
Dead-end Fire Apparatus Access Road Turnaround
Table D103.4 Requirements for Dead-end Fire Apparatus Access Roads
Length (1;)
Width (11)
Turnarounds Required
1-1.50
20
None required
151-500
20
120-1 Hammerhead, 60-11 "Y" or 96-
ft -diameter cul-de-sac ui accordance
with Figure D103.1
501-750
26
120 -ft. Hammerhead, 6041 "IT" or 96-
ft -diameter cul-de-sac in accordance
with Figure D103.1
Over 750
Special approval required
96'
26'
28' R
TYP.'
96' D AMETER
CUL-DE-SAC
60'
28' R
TYP.'
Figure D103.1
60' "Y"
4— 60'
20'
--3
20'
< 26'
20'
MINIMUM CLEARANCE
AROUND A FIRE
HYDRANT
28' R
TYP.'
1.
70' —>
20'T
60'
20'
120' HAMMERHEAD ACCEPTABLE ALTERNATIVE
TO 120' HAMMERHEAD
11/6/2008 3
Page 1 of 1
Cynthia Smidt
From: Mark Corbet [mcorbet@web4mix.com]
Sent: Wednesday, November 05, 2008 1:51 PM
To: Cynthia Smidt
Subject: Vander Zanden Hearing
Attachments: Memo to DC Board of Commissioners 11.5.08.doc; Vander Zanden land use response.doc
Hello Cynthia,
Attached is a memo to the County Commissioners for your review and a copy of our original concern letter.
Please forward this information to the Commissioners on our behalf.
I am also mailing copy to the office of the Commissioners.
Thank you,
Mark Corbet
11/6/2008
November 5, 2008
To: Deschutes County Board of Commissioners:
Dennis Luke, Chair
Tammy Baney, Vice Chair
Michael M. Daly, Commissioner
From: Mark and Peggy Corbet
7376 SW McVey Avenue
Redmond, OR 97756
RE: Public Hearing Notice on file #A-08-18(CU-08-11), to be held November 10, 2008
Appeal of Hearings Officer Conditions of approval of Bruce and Peggy Vander Zanden's
Type 3 use application
Attached is copy of our submitted comments dated. March 17, 2008 regarding the application for
a type 3 business operation made by our neighbors, Bruce and Peggy Vander Zanden. We want
to reiterate our original concerns, and to let the Board know that we were satisfied with the
conditions of approval included in the original decision of the hearings officer subsequent to the
June 10, 2008 hearing.
As you review their appeal, two access issues continue to be of concern to us:
1. The Vander Zandens do not own the property that connects their driveway entrance to
McVey Avenue; we do. Currently, they must cross a short section of our driveway
entrance to access their property. While we have never denied the Vander Zanden's
personal or farm use of our driveway entrance to access their property, they have never
made an attempt to gain legal access. Since the Vander Zandens now desire a change in
use which could significantly increase the traffic over our entrance, we feel that they
should provide us with reasonable assurance that any negative conditions created by their
manufacturing business traffic will be dealt with in a manner that will not hinder our farm
use or quiet enjoyment.(Ref: item 4, page 25 Hearings Officer's Decision)
2. A second concern related to access came to light after reading the Hearings Officer's
Decision. In Exhibit "A", page 28 of 30, "Redmond Fire And Rescue Requirements" for
Fire Apparatus Access Roads -2007 OFC Section 503 & Appendix D it reads "The
required turning radius of a fire access road shall be 30 ft. inside and 50 ft. outside." Our
concern is that without a requirement for an assessment by the Redmond Fire
Department, there may be a fire protection issue overlooked given the very sharp U-turn
required by vehicles approaching from the east, and trying to connect with the Vander
Zanden's driveway. The review performed by the fire department could not determine if
fire vehicles could successfully negotiate this turn because an on-site inspection was not
completed. Such an inspection appears to be indicated. (Ref: item 5, page 25 Hearings
Officer's Decision)
In closing, we remain very concerned about allowing any type of business use that is not in
keeping with the farming and residential zoning of our neighborhood. With this in mind, we urge
the Board to exercise the greatest amount of care in determining any deviations from existing
land use regulations.
March 17, 2008
Cynthia Smidt, Associate Planner
Community Development Department
117 NW Lafayette Avenue
Bend, OR 97701-1764
RE: Notice of Application — Land use
File number CU -08-11
Dear Ms. Smidt,
Upon receipt of the county's notice of Bruce and Peggy Vander Zanden's proposed action to
operate a "Type 3" home occupation we have the following comments:
1. Due to the proximity of the Vander Zanden property to the scenic Deschutes River
canyon, there is the ongoing concern for the preservation of the existing ambiance of
the rural and natural landscape. However, since the Vander Zanden's have already
been allowed to build a disproportionately large "shop" on their farm property with
what appears to be separate living quarters on a second level, this disruption of the
natural landscape may already be seriously compromised. It is our desire that any
additional home business conducted in this area be of a type that is complimentary to
the natural landscape such as limited use bed and breakfasts or other home office type
businesses that will not be obvious nor which will significantly increase the amount
of local traffic.
2. With regard to the level of traffic permitted with a type 3 home occupation, it should
be noted by the county development department that the Vander Zandens do not have
completely private road access to their property. They must cross a small section of
our property to access their driveway. While this has not and is not a major issue
under current land use regulations, any increased use by larger trucks and trailers will
likely necessitate an improvement to the driveway access at minimum, in addition to
the maintenance of such while the subject property is used as a type 3 commercial
venture. Large vehicles have a tendency to cut the corner short and ride over the
metal culver ends clogging the culvert openings with gravel, thereby closing them off
to water flow. In the past, we have had to maintain this entrance and construct certain
barriers to prevent the existing use from destroying the rainwater overflow culvert.
Twenty trips per day (on average?) as allowed with a type 3 permit would be a
significant change in the use of the driveway entrance. Since the entrance is only an
improved gravel surface at this point, we suggest that the Vander Zandens be
required to pave a large apron to accommodate future business traffic and that they be
required to maintain the apron to prevent any adverse affects on other legal uses of
the entry. The apron should be paved in such a way that adequately takes into
consideration any driveway run off from our existing driveway. As an alternative, the
Vander Zandens could abandon this access altogether and pursue an access further to
the east in cooperation with another adjacent landowner.
3. Given the information provided by your office, we were not able to determine
whether the type 3 conditional use permit attaches solely to the business operator or if
it attaches to the property itself. If such use attaches to the property, we have a high
level of concern for the future of our "neighborhood" ambiance. We do not believe
that allowing a "manufacturing" operation that clearly sets a precedent for future
allowable activities is in keeping with the intent of current land use laws. While we
are sympathetic to the Vander Zanden's intent and desire to conduct business
operations that are economically viable, we remain concerned for the future of the
area and the potential for conflict between light manufacturing and the existing
residential, recreational, and rural farming use of the area.
4. Should the conditional permit be granted, what are the specifics for monitoring the
operation in compliance with a type 3 activity? Will the annual reviews show clear
proof of the number of vehicle trips accessing the property? Will there be annual on-
site inspections conducted in such a way that will adequately determine whether noise
or particulate emissions are within required levels? We were subjected to a
considerable amount of noise and traffic during the construction of the new shop. If
that activity was indicative of what the business operation could potentially generate,
then we are strongly opposed to allowing a manufacturing facility in such close
proximity to the adjoining residential setting. A possible solution would be for the
Vander Zanden's to create a heavy tree and bush barrier between their property and
ours to reduce noise, minimize visual impact and improve air quality.
In summary, while we are not opposed to our neighbors conducting viable home business
operations, we are concerned that a type 3 use as described in the application without
requiring additional mitigating preventative measures as described above, would potentially
open a Pandora's Box for future activities in this area of the county. If the Vander Zandens
are willing to adequately address the driveway access issue as well as ensure that their level
of operations will clearly remain within the guidelines of the type 3 use; and, if each
subsequent owner would need to reapply without being able to use the Vander Zandens'
permit as a rollover to future owners' operations, then we would be more complacent
regarding this application.
Yours very sincerely,
Mark R. Corbet
7376 SW McVey Avenue
Redmond, OR 97756
541-548-6601
mcorbet@web4mix.com
Peggy D. Corbet
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