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HomeMy WebLinkAboutVander Zanden AppealDECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: CU-08-11 APPLICANT/ PROPERTY OWNER: Bruce and Peggy Vander Zanden 7236 SW McVey Avenue Redmond, Oregon 97756 APPLICANT’S REPRESENTATIVE: Lisa Klemp Bryant, Emerson & Fitch, LLP Post Office Box 457 Redmond, Oregon 97756 REQUEST: The applicant is requesting approval of a conditional use permit to operate a Type 3 home occupation within the Exclusive Farm Use zone. The home business entails cabinet manufacturing. STAFF CONTACT: Cynthia Smidt, Associate Planner HEARING HELD: June 10, 2008 RECORD CLOSED: July 8, 2008 I. 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 CU-08-11 (Vander Zanden) Hearings Officer’s Decision Page 2 of 30 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 Agricultura l (MUA10) on the east. The proposed 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 t o the south. 1 The County approved a site plan review (LM-97-8) on June 9, 1997 to construct a detached machine shop/barn (AG978) and an addition to the existing single-family dwelling (B39909). In October 1998, the County approved a 2,592 square foot livestock barn i n 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 squa re foot building footprint) structure in 2007 through building permit no. B65968. Although the record is somewhat confusing on this point, this newer shop was appr oved 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 wa s 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 res idential 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 j uniper trees, 1 Prior to the approval of file LL-92-25, the County approved a prope rty 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 3 of 30 deciduous trees, and introduced pasture grasses. The southern portion of t he 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 c orner 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 dete rmined that the square footage figures specified in the Building Permit for t he 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 f eet. 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 si ze. This is because the 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 larger combined square footage (6,912 square feet) of the new shop and the machine/shop barn in the analysis of the conditional use application. At the hearing 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 struct ures 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 reviewe d 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 c ommon roofline, but with separate load bearing walls, to be separate “structure s” for purposes 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 parce ls 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 4 of 30 borders the property in the northwest corner of the property. To the ea st and northeast of the property there are residentially zoned subdivisions including of Ni ne View Estates, Chaparral Estates and Thompson Estates (unrecorded subdivision). The prope rties in these areas range in size from about 1.3 to 10 acres. To the wes t and northwest, across SW McVey Avenue are small farmed zoned parcels and the Deschut es 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 Agricultura l (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. T he 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 locat ed at the boundary of the two soils. The dwelling appears to be sited on a dry, unirrigate d area of soil unit 138A. The two barns and the detached shop are in the same area but a ppear 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 busi ness 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, s pray 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 s heets 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 t o the building. No outside storage is proposed. The proposed home occupation will include t wo (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 f eet, 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 5 of 30 (no more than one per week). The proposed hours of operation will be Monday t hrough 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, Des chutes 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 or set fort h 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 Cooperati ve, Central Oregon Irrigation District, Deschutes County Property Address Coordi nator, Deschutes County Road Department, Oregon Department of Environmental Quality (DEQ), Qwest, U.S. Bureau of Land Management (BLM), and Watermaster – District 11. J. 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 hea ring. 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 test ified 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 applic ation complete and accepted it for review on April 23, 2008. Notificati on 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 da ys 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 w eeks 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 the business 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 6 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 applicant requested the ex tension 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 secondary to the residen tial 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 P roposal section of this report. The home occupation will be carried out by the residi ng 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 squar e 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 struc ture 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 an d subordinate” to the principal use of property. Staff concluded that the accessory st ructure 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 commerci al 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 st ructure is an “accessory use or accessory structure,” none of them, individually or collective ly, are controlling. This is particularly the case where there is no statutory def inition 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 7 of 30 “incidental and subordinate,” and where there are quantifiable cri teria elsewhere in the county code, notably a square footage ratio, that implicitly address this matte r. 6 I find that the present matter is distinguishable from prior cas es where the Hearings Officer determined that the accessory structure was not “incide ntal 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 pr eviously 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 and a metal roof. The Hearings Officer acknowledged that the use of the accessory structure was residential, but det ermined 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 pol e 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 tha t it “dominates the subject property and surrounding area.” The Hearings officer speci fically pointed out that the pole barn was considerably larger than other structures on th e 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 struct ures in the general area. Moreover, it is located on a much larger par cel (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 bus iness that involved a home office, storage of insulation materials in a separa te 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 “residenti al accessory structure” as required to meet the requirements of a “home occupation: on two gr ounds: (1) a written statement in the county building records for the previously a pproved shop building signed by the applicant indicated that the building “will not be used for any residential purpose or for any commercial purpose” and (2) because t he Hearings Officer determined that the shed could not be considered a “residential acces sory 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 clea rly indicates that a significant portion of the accessory structure was to be used for storage of personal prope rty, 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” acc essory structure. CU-08-11 (Vander Zanden) Hearings Officer’s Decision Page 8 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 stora ge 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 hom e 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 reside ntial accessory structure,“ and therefore not a “home occupation,” thus requiring the appl icant 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. Perha ps most importantly, the total floor coverage requested for the conditional use in the prese nt application is less than the 35% floor coverage allowed for a Type 3 home occupation. 7 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” acces sory 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 proper ty is 7 I also note that the comparable criteria for a Type 2 home occupa tion includes a similarly worded, but lower, floor coverage ratio (25%) than is found in the Type 2 cat egory. 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 9 of 30 nonhighvalue farmland, but this portion of the criterion is not applicable, s ince Type 3 home occupations are allowed in either high value farmland or nonhigh va lue farmland in the EFU zone. The business will be conducted entirely in t he 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-re lated structures thus not interfering with other permitted uses that may occur on the E FU zoned parcel itself. The issue, however, is whether it would “unreasonably inte rfere” with other uses permitted in the EFU Zone. The surrounding properties are either rural residential in nature and small and medium sized farming operati ons. 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 s urrounding EFU-zoned properties. Furthermore, the applicant states there will be “no noi se, dust, light pollutions, or such interferences” related to the business that would i mpact surrounding properties. However, submitted comments from surrounding property owners and testimony offered by opponents at the public hearing rais e concerns about environmental impacts (particularly noise and air pollution), and traf fic 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 additiona l information from the manufacturer about sound transmission tests for t he kind of concrete wall system used in the structure The applicant assert s that the worst case scenario for the interior decibel level of the wood shop is 102 to 103 dec ibels 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 common roofline with) a machine shop/barn that the applicant indicates continues to be in resource (agricultural) use, According to t he 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 loc ated 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 t he precedential effect of approving this application. Except for the matter of access, opponents general ly 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 w hich 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 10 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 diff erent 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 occupa tion. The opponent argued that the laboratory-based sound lowering projections used by the applicant are “a poor guideline for construction to contain mechanical equi pment noise.” The opponent argued and provided documentation supporting the view that sound transmission through a wood-framed ceiling, windows and doors, such a s found in the subject shop, would likely be greater than for a solid conc rete wall measured alone. The opponents did not submit any specific evidence on how much greater the noise level would be. However, it is acknowledged th at 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 redu cing 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 w ill be imposed with regard to days/hours of operation and noise/sound pressure l evels. First, a condition will be imposed allowing the applicant to operate that business only Monday-Friday (7:00 a.m. to 5:00 p.m.) plus no more than two Saturdays per m onth (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 bus iness 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 unde r actual full operating conditions by an independent contractor acceptable to the Deschutes 11 Manufacturer-provided information indicated that the sound transmission qu ality 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’s wall system apparently c arries 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 press ure 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 t he daytime, the sound pressure level 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 11 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 r esidential properties and small and medium scale farm uses. Farm zoned par cels of varying sizes (ranging from four to over 50 acres) lie to the north, south, we st, and southeast of the subject property. East and northeast of the property there ar e residentially zoned subdivisions including of Nine View Estates, Chaparral Estates and Thompson Estates (unrecorded subdivision) in which properties range in size fr om 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 only tre es 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 enti rely 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 z one. 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 t he 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 ri ghts through Swalley Irrigation District. The dwelling and other structures , including the shop, appear to be located in an area that does not contain water rights . The property has 13 The concerns expressed by neighbors about issues such as noise, a mbiance, traffic and similar matters relate primarily or exclusively to the perceived impact of t he 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 12 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 o f 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 loc ated in soil unit 141C. According to the Natural Resources Conservation Service (NR CS), 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 det ached shop intended for the home occupation appears to be located in one of the leas t suitable areas for farm use of the property. I concur in that conclusion. Mo reover, the Hearings Officer notes that the shop is an approved, existing struc ture. 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 on all 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 (1/2) 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 13 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 s quare foot shop that is located in the EFU-zoned (resource zone) portion of the proper ty. 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, s hapers, 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 i ndicates the structure is “an insulated concrete form building” that will reduc e 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 submi tted 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 vi brations will 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 generat e 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. Tha t 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 structure by residents of the dwelling and no more than two (2) employees who report to the property for work. May have a maximum of five (5) employees at the home occupation located on property in an EFU, MUA10, or RR10 zone and that is at least 10 acres in size. FINDING: The submitted burden of proof statement indicates the entire operation of the business will be carried on within the existing shop building. No business operations will occur in the dwelling. The subject property is 20 a cres 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 expresse d 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 14 of 30 proof with regard to this request. The materials submitted on beha lf of the applicant appear to speak solely to the operation of a business by the reside nt 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 us e that would likely result from the increased intensity of activity that presumably would result from having more employees. However, the Hearings Officer fi nds 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 Hearings Officer will require the operation to be limite d to no more than two employees. 14 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 (1) 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 propo ses to use 3,000 in the accessory structure for the operation of the home occupat ion. 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, t he 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 intensit y of use. CU-08-11 (Vander Zanden) Hearings Officer’s Decision Page 15 of 30 FINDING: The applicant indicates the home occupation will generate 3 to 5 business-related vehicle trips to the site. These trips include t wo employees reporting to the property for work and the potential one customer per week. The applicant indicates one delivery van delivering cabinet manufacturing acc essories 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 e stablished above based upon an operation that employs no more than two employees. The applicant does not address the impact of additional requested employees upon vehi cle trips, and the Hearings Officer reaches no decision with regard to that ma tter. The Hearings Officer acknowledges concerns about increased vehicular traffic expressed by some neighbors. The impact of increased traffic is addressed indirec tly by the requirement above. 15 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 locate d 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) of the existing machine shop/barn portion of the structure. These parking spaces allows for the loading/unloading area in front of the buil ding 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 comme nts 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 impac t of increased traffic has been addressed in a finding above. Issues of maintenance are matters of private contract rights and responsibilities and, most importantly a re 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 submitt ed by the applicant in support of a recorded easement across tax lot 600 do not in m y view clearly establish the existence of such an easement. The Hearings Officer notes that 15 There are other approval criteria to which increased traf fic 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 interf ere with other uses permitted in the EFU zone” or create an incompatibility with the residential chara cter or resource-oriented character of its location, two other criteria to which increased traffic might be releva nt. CU-08-11 (Vander Zanden) Hearings Officer’s Decision Page 16 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 unwilli ng 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 reasona ble question about access has been raised and the applicant has not provided clear a nd 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 condit ional 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 th rough 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 to the 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 sig nature of the applicant’s attorney, states that “the proposal does not involve an y external changes to the dwelling or accessory structures for which the home occupation will 16 The applicant asserts that the proper venue in which to reso lve 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 17 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 f ollows: “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 t he 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. 17 Written testimony submitted at the public hearing by Douglas Schulz, a neighbor of the applicant, mentioned that only after notice of the Conditional Use Permit was received did they begin to “understand the placement of what appeared to be a large commercial-sized exhaust stack on the east roof mat ching 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 a ppearance 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, hi s 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 recommend ed 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 co mply with environmental health division, building safety division, and state and federal laws. Based on the foregoing, I will impose a condition of approval requirin g 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. 17 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 of multiple photographs of the shop structure submitt ed into the record show only 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. CU-08-11 (Vander Zanden) Hearings Officer’s Decision Page 18 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 spray booth, shapers, planers, and miscellaneous power tools, to name a few. It will include the use of hardwood lumber, veneers, wood stains, and lacquers. In a ddition, there will be the use of a forklift for unloading supplies from a del ivery truck. The applicant’s burden of proof statement indicates the structure in whic h the business will operate out of is “an insulated concrete form building that wil l 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 fi nding 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 ke ep the noise level of his operation below 50 decibels and the sound pressure level of hi s 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 b elow 50 decibels and sound pressure levels below 50 dB LAeq at the exterior wall of t he 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 gener ated 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 fore going, and as proposed to be conditioned with regard to noise, I find that the proposed home occupati on will not produce prolonged odor, dust, glare, flashing lights, noise, smoke, or vibr ations 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 loc ated 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 compl y with state and CU-08-11 (Vander Zanden) Hearings Officer’s Decision Page 19 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 shop building 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 conta ct 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 approv al. Based on the foregoing, I find this criterion can be satisfied by imposing condit ions 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 condit ion 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. Howev er, the applicant does have a pickup truck and trailer. The trailer i s 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 structure and 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 20 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 f inding, 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 e vidence showing that only one daily delivery of accessories in expected and one weekly delivery of wood materials. The applicant in its supplemental mat erials submitted during the period the record was kept open, emphasized that the mere l oading and unloading of vehicles does not create a structural alteration af fecting 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,” I conclude that the implied purpose of s uch 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 i s the adequacy of screening and buffering. I find that the loading and unloading area r emains exposed, and that existing screening and distance are insufficient to ensure compliance with this standard. Therefore, I will impose a condition of approval requir ing 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 a nd residence are located is zoned EFU. The main use of the property is for res idential and agricultural purposes. In prior findings, I concluded that the shop is a re sidential accessory structure in connection with the residence. That finding is incorporated here. As such it is a type of structure normally associated wi th the EFU zone where it 19 This is apparently a reference to Section 18.116.280(E)(10), discussed above. That subsection 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 21 of 30 is located. Although this criterion does not speak directly to t he physical appearance of the structure, it is worth noting that physical appearance of t he 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 i t is 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 empl oyee parking proposed by the applicant is located along a north property boundary (between driveway and boundary) and inside the required 25-foot setbac k required in the EFU zone. Staff recommended that the applicant designate alternative parki ng 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 that there is ample alternative space on the parcel, including around existing structures, to locate s uch parking and that the applicant would adhere to EFU setbacks. Adherence to EFU s etbacks 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 within a 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 t hrough a common roofline. Based on that information and a subsequent recommendation b y 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 wit h 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 22 of 30 the shop. The applicant has not proposed any “structural alteration af fecting 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 is 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. Howev er, 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 vi sible 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 transportation access 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 propose d 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 pr operty there are residentially zoned subdivisions including Nine View Esta tes, Chaparral Estates and Thompson Estates (unrecorded subdivision). To the west is t he 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 23 of 30 accessory building (the shop), and irrigated pasture. The proposed home occ upation 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 t he 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, respecti vely, 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 wes t, 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 pa rking next to the driveway, north of the house, and client parking in front of the accessor y 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 t he proposed use based on adequacy of transportation access and site, design and operating charact eristics. 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 the previous 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 adequat e. In a previous finding in this decision, I determined that 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. Thos e conditions were imposed and are adopted here by reference. The subj ect parcel is relatively large and the specific site of the accessory str ucture is located on land that is the least suitable for raising crops or livestock. As stat e above, the accessory structure is also located more than 400 feet from the nearest re sidence on adjacent property. Based on all of the foregoing, I find the site under cons ideration is suitable for the proposed used based upon the site, design and operating characteri stics 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 18.128.015(A). FINDING: As indicated above, the site is located in an area surrounded by r ural residential and farm use properties of varying sizes. To the ea st 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 24 of 30 that the existing and projected uses on surrounding properties are agri cultural 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 occ upation 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 c losest residences are each approximately 450 feet to the north and south. The next clos est residence is about 875 feet and then all other residences are beyond 1200 feet. Neighbor ing 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 propos ed 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 s o 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 rura l residential zoned property. In earlier findings in this decision, I determined t hat 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 requir ing 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 to Webster’s dictionary, “compatible” is a 15 th Century middle English word based on later that means “capable of existing together in 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 Hearing s Officer concludes that the applicant has satisfied all relevant approval criteria or t hat it is feasible to satisfy the criteria CU-08-11 (Vander Zanden) Hearings Officer’s Decision Page 25 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, the applicant/owner shall contact t he 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 revie w 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 easemen t 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., Monday through Friday and no more than two (2) Saturday’s per month from 9:00 a.m. to 3:00 p.m. 8. The applicant/owner and two (2) additional employees are the only em ployees authorized under this decision. 9. The home occupation may generate no more than five (5) business-rel ated vehicle trips per day to the site. This includes trips generated by a maxim um 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 shal l 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 26 of 30 11. The home occupation may have one (1) sign that complies with requirements of DCC 18.116.280(B)(3)(K). 12. The home occupation shall not produce prolonged odor, dust, glare, flashing light s, noise, smoke, or vibrations in excess of that created by normal reside ntial 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 acc essory 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 w here 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 operat ing conditions by an independent contractor acceptable to the Deschutes County Planning Division and paid for at the sole expense of the applicant. 13. Trees and shrubs shall be retained on site in all areas wher e 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 Ore gon 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 s hop 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 patt ern 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, Lodg epole pines and Aspen). These trees shall be a minimum of 5 feet tall at the time of planting. 14. Prior to initiation of the use or issuance of a building or septic pe rmit, 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, a Conditions of Approval Ag reement 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 compli ance 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 27 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 be comes 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. ________________________________ 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 28 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 syste m shall be installed. · NFPA 1142 Requirements o If the structure is being built in an area outside a public wa ter 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 de termine 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 str uctures 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 spri nkler 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 preca utions shall be made available as soon as combustible material arrives on site. · Fire Sprinkler 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 specific use 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 unobstructed vertical clearance of not less than 13 feet 6 inches. CU-08-11 (Vander Zanden) Hearings Officer’s Decision Page 29 of 30 o Fire apparatus roads shall be designed and maintained to support the impos ed 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 a pparatus 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. 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 provide d with approved fire apparatus access roads and capable of accommodating fire department aerial appar atus. Overhead utility and power lines shall not be located within the aerial fire appara tus access roadways. At least one of the required access routes meeting this condition shall be loca ted 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 Fi re & 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 30 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 roads are required, they shall be placed not less than ½ the length of the overall diagonal dimension of the property or area to be served, measured in a straight line between accesses. Unknown if the above requirement will apply.