HomeMy WebLinkAboutDoc 041, Declaratory Ruling - FagenFINDINGS AND DECISION
OF THE
DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS
FILE NUMBER: DR-10-3
APPLICANT Deschutes County
c/o Nick Lelack, Planning Director
PROPERTY OWNERS: Harry and Beverly Fagen
21208 Tumalo Road
Bend, OR 97701
REQUEST: An administrative determination of a declaratory ruling (DR-10-3)
that the structure on the northwest quadrant of the Deschutes
Junction interchange is a permanent residence and thus complies
with Oregon Administrative Rule 660-022, Unincorporated
Communities, specifically Rural Service Center.
STAFF CONTACT: Peter Russell, Senior Transportation Planner
II. APPLICABLE STANDARDS & CRITERIA:
A. Title 22 of the Deschutes County Code, the Deschutes County Zoning Ordinance
Chapter 22.40, Declaratory Ruling
* Section 22.40.010, Availability of Declaratory Ruling
* Section 22.40.020, Persons Who May Apply
* Section 22.40.030, Procedures
* Section 22.40.040, Effect of Declaratory Ruling
* Section 22.40.050, Interpretation
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
Chapter 18.74, Rural Commercial
*Section 18.74.010, Purpose
*Section 18.74.020, Uses Permitted – Deschutes Junction and Deschutes River
Woods Store
C. Oregon Administrative Rule, Chapter 660, Division 22, Unincorporated Communities
*Section 660-022-0010, Definitions
II. FINDINGS OF FACT:
A. Location: The 29.24-acre subject property is located at 21280 Tumalo Place, Bend, and
is further identified as Tax Lot 500 on Deschutes County Assessor's Map 16-12-26B.
Board Document 2011-041
(Structure on Fagen property at Deschutes Junction)
Board Document 2011-041
(Structure on Fagen property at Deschutes Junction)
2
B. Zoning and Plan Designation: The 1.77-acre portion of the subject property that abuts
the northwest quadrant of the Deschutes Junction interchange and Tumalo Place is zoned
Rural Commercial (RC), with the remaining 27.47 acres zoned Multiple Use
Agricultural, 10-acre minimum (MUA-10). A portion of the property is also zoned
Landscape Management Combing Zone (LM) due to its proximity to US 97. The
Comprehensive Plan designation is Rural Commercial (RC) for the 1.77 acres and Rural
Residential Exception Area (RREA) for the remaining 27.47 acres.
C. Site Description: The subject property is irregular in shape and currently has a home on
the west side of the property and a vacant pink two-story building sits near the northwest
corner of the US 97/Tumalo Road-Deschutes Market Road interchange. That building is
the subject of this declaratory ruling. An irrigation lateral meanders through the MUA-10
portion of the property.
D. Surrounding Zoning and Land Uses: To the north are two commercial businesses on
land zoned Exclusive Farm Use-Tumalo/Redmond/Bend (EFU-TRB). To the east is US
97 and farther east across US 97 is The Funny Farm, a commercial business with eclectic
wares and novel landscaping. Directly south across Tumalo Place, which is the
southbound off-ramp from US 97 that ends at Tumalo Road, is a parcel zoned EFU-TRB
and engaged in hay sales. Farther south across Tumalo Road is the Seventh Day
Adventist school. Westward are vacant parcels zoned EFU and MUA-10 and the
Whispering Pines residential subdivision on land zoned MUA-10.
E. History of Property: The corner of the site that abuts the northwest quadrant of the
Deschutes Junction interchange where the vacant pink building now stands has had a
long history of land uses and interpretations by staff – with Board concurrence - of state
rules and the Deschutes County planning policies and zoning ordinances. Summarized
below are County land use decisions on 16-12-26B, Tax Lot 500 and any Assessor’s
information or permits associated with the site.
The RC zone on this property has ranged in size in various land use decisions from 0.67
acres to 0.83 acres to 1.77 acres. This was due to a combination of interpreting size of
site plans when scaled against mylar sheets, sale of land to the Oregon Department of
Transportation (ODOT) for highway improvements, and changes to the property related
to the Deschutes Junction interchange and access issues. Neither County staff nor the
Board is disputing the current 1.77-acre size of the RC zoning.
Z-77-53
Approved a rezone of two-thirds of the 0.83-acre parcel changing it from A-1, Exclusive
Agriculture, to A-S, Rural Service Center. The 1977 rezoning was done so the parcel
could be developed as a grocery store, but what ultimately was developed was Buffet
Flat, a flea market and secondhand store. The zoning and development of the 0.67-acre
area committed the land to commercial service center use. (Sometime between 1977 and
1993, the area zoned RSC increased from 0.67 acres to 0.83 acres. Additionally, the
remainder of the property was rezoned from A-1 to MUA-10.) The staff report described
the buildings on the site as being vacant.
SP-78-18
A site plan that approved a welding repair shop and ill-defined retail uses. The applicant
broadly described the intended retail use as possibly being a secondhand store, a grocery
store, or other form of retail. The applicant described the existing buildings as abandoned
in the submitted burden of proof. See permits B2777 and B 2798.
Board Document 2011-041
(Structure on Fagen property at Deschutes Junction)
3
1979 Deschutes County Comprehensive Plan
The 1979 Comprehensive Plan recognized the historical use of this area for small-scale
commercial and industrial activities, designating a portion of the Fagen property as Rural
Service Center (RSC). Unlike most of the other RSC’s designated in the Comprehensive
Plan, there were no Comprehensive Plan policies specific to Deschutes Junction. Rural
Development Policy #13 identified Deschutes Junction as an RSC (see Exhibit #1) and
Policy #14 provided policy language for development in all RSC’s.
Rural Development Policy #14 stated:
Each Rural Service Center shall have a compact commercial area to serve
the convenience-commercial, agricultural and repair services needs of the
surrounding rural lands. In addition, larger Rural Service Centers along
major highways, where public facilities such as schools already exist, shall
have a residential area designated (see individual RSC maps and policies).
The size and uses of rural service centers shall be such as to maintain the
rural character of the area.
SP-82-22
Approved a site plan to construct a 5,040-square-foot addition on the north end of
the building and open Buffet Flat Flea Market, a secondhand store specializing in
antique furniture and collectibles. The staff report references a house on site
amongst other buildings. (With the impending construction of the Deschutes
Junction interchange in the late 1990s, the owners of Buffet Flat moved their
wares to the northeast side of the highway circa 1992 and established what is now
known as The Funny Farm.) The building permit for the addition, B 9903, appears
to not have been used.
PA-92-8 and ZC-92-3
This land use application attempted to change the zoning from MUA-10 to RSC
for 4.15 acres on 16-12-26B, Tax Lot 500 and add a gas station and mini-mart to
the parcel. In 1992 it was determined that 0.83 acres of the 29.71-acre parcel was
zoned RSC. Applicants had also sold 0.23 acres of the RSC land to ODOT for a
then-future grade-separated interchange at Deschutes Junction. The Hearings
Officer recommended denial of PA-92-8 and ZC-92-3 as the Comprehensive Plan
did not allow for RSC zoning on the property, the required Goal 14 exception was
not submitted by the applicant, and the proposed uses were already provided on
nearby lands inside an Urban Growth Boundary (UGB). The Board accepted the
Hearing Officer’s recommendation to deny the plan amendment and zone change.
Oregon Administrative Rule 660-022, Unincorporated Communities
In 1994, the Department of Land Conservation and Development (DLCD) crafted
OAR 660-022, Unincorporated Communities, to have local governments address
the anomaly of land uses of a type and/or intensity that were more urban in nature,
but occurring on rural lands.
Deschutes County planning staff examined all of the RSC’s designated at the
time, culminating in the report “Unincorporated Rural Communities Land Use
Inventory” dated Oct. 26, 1994, for Periodic Review Work Task #7. Pages 10-13
dealt with Deschutes Junction. The County’s report concluded Deschutes
Junction did not meet any of the OAR criteria for an Unincorporated Community.
The report found Deschutes Junction had four tax lots, with three zoned for
industrial and one zoned for commercial (Fagen property). The Assessor’s date
Board Document 2011-041
(Structure on Fagen property at Deschutes Junction)
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for those four lots listed three as industrial and one as exempt (Fagen property).
The exempt lot was listed as vacant as were two of the four industrial lots. The
industrial lots are on the east side of US 97.
The report summarized the land use pattern at Deschutes Junction as “…industrial
uses, which include United Pipe and Supply and Cascade Pumice, and retail
businesses including a gas/service station and café. (Fagen property)” The Oct.
26, 1994, report did not identify any residential uses at Deschutes Junction.
After receiving input from local governments, including Deschutes County,
DLCD published on January 30, 1997, "Survey of Oregon's Unincorporated
Communities.” Deschutes Junction was not on this list as the then-Planning
Director and DLCD’s field representative had discussed and determined in the
October 1994 report cited in the previous page that the two-story pink building on
the Fagen property was not a permanent residence. Thus, Deschutes Junction did
not meet the multiple permanent residential dwellings criteria of OAR 660-022-
0010 for an RSC.
PA-99-2 and TA-99-2
While under Periodic Review, the County began to apply OAR 660-022 to the
RSC’s listed in the Comprehensive Plan. During this process, the County again
determined the vacant building on the Fagen property was not a permanent
residence and thus Deschutes Junction did not qualify as an RSC. The County
held public hearings on these land uses and their implementing ordinances, 2002-
018 and 2002-019. These ordinances removed the RSC designation from
Deschutes Junction, replacing it with Rural Commercial (RC) on the Fagen
property and Rural Industrial (RI) for other properties on the east side of the
interchange (Willamette Graystone, United Pipe, and Cascade Pumice, for
example).
Also during this land use process, the County took into consideration the effects
on the Fagen property of the Deschutes Junction interchange, which opened for
traffic in November 1998. The Fagen property no longer had direct access to US
97. PA-99-2 amended the RC boundaries from a narrow north-south alignment
into a more east-west alignment with access from Tumalo Place. (see Exhibits 2
and 3, which are Exhibits C, and D from Ord. 2002-018). PA-99-2 kept the RC
designation at 1.77 acres, which is the same size as the previous RSC designation.
(Neither staff nor the Board has found in the record when the size of the RSC
went from 0.83 acres to 1.77 acres. Neither staff nor the Board is disputing the
increased size; we just cannot explain it at this time. As the RC zoning does not
parallel lot lines but rather is an amorphous designation within the larger MUA-10
zoning, staff and the Board assume the inconsistent size relates to scrivener
interpretations over the years.)
SP-05-28
Approved a business for the retail and wholesale sale of potting soils, compost,
fertilizer, and other soil amendments with the vacant building becoming an office.
Products would be stored in large outdoor bins.
Septic Permit S—748 (1978)
Remodel of a building classified as Commercial. S-748 was issued 4/14/78.
Board Document 2011-041
(Structure on Fagen property at Deschutes Junction)
5
Building Permit 2777 (1978)
Remodel of a building classified as Commercial. B2777 was issued 1/24/78 and
finalized 2/8/78. B2777 was for a welding shop approved under SP-78-18.
Building Permit 2798 (1978)
Remodel of a building classified as Commercial. B2798 was issued 1/24/78 and
finalized 4/6/78. B2798 was for a secondhand store approved under SP-78-18.
Building Permit 9903
New construction for an addition to a Commercial building. B9903 was issued
6/9/82 and finalized on 8/22/83. B9903 was for a flea market approved under SP-
82-22 and its status is listed as expired.
Septic Permit S54654 (2005) is the only County building or septic permit
associated with this change of use detailed in SP-05-28. The septic permit
classifies the vacant two-story building as “commercial landscape business/office
with bath.”
The Deschutes County Assessors Office lists the building as a General Purpose
building, not as a residence.
F. Proposal: The Board adopts the administrative decision regarding the declaratory ruling
on whether the vacant pink building can be considered a permanent residence. The status
of the building is the fundamental question on whether Deschutes Junction could
potentially be designated a Rural Service Center (RSC) under the State’s administrative
rules for Unincorporated Communities.
G. Public/Private Agency Comments: Notice was mailed on Dec. 2, 2010, to Deschutes
County Assessors Office; Building Division; Code Enforcement; Oregon Department of
Transportation (ODOT), and Department of Land Conservation and Development
(DLCD).
Dave Pederson, Deschutes County Building Official, submitted on Dec. 15, 2010, the
comment “Peter, based on our observations of the referenced structure and the existing
permitting record we find this structure is and has been in use as a Commercial
Occupancy.”
Jon Jinings, DLCD, submitted on Dec. 15, 2010, the comment “It is our understanding
that the purpose of these proceedings is to make a local determination regarding the status
of a structure located at the northwest quadrant of the Deschutes Junction intersection.
More specifically, it is our understanding that the county intends to establish whether said
structure should be considered a "permanent residence."
“Our observations suggest that this structure probably is not a permanent residence. It
doesn't appear to be lived in or to be cared for as a home, nor is it designed or decorated
in the manner of an ordinary home. We trust that staff's review of the property's land use
and building history will be helpful in making a decision one way or another.”
“What may be more important to recognize is that even if the county finds the structure to
be a permanent residence the area is still likely to fall short of qualifying as an
unincorporated community under OAR Chapter 660, Division 22. Deschutes County
completed its planning for unincorporated communities several years ago. We believe
Board Document 2011-041
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the county did a good job, as evidenced by LCDC's acknowledgment. There have been
no substantial changes to the area that would suggest to us that the original decision was
mistaken or is no longer applicable.”
“Please enter these comments into the record. Feel free to contact me if you have any
questions.”
H. Public Notice and Comments: Notice was mailed on Dec. 2, 2010, to all property
owners within 250 feet of the subject property as required by Deschutes County Code for
public notification involving MUA-10 lands. Additionally, an e-mail was sent Dec. 1,
2010, to all members of the Deschutes Junction stakeholders group, which is a collection
of residents, property owners, and business owners, who have been involved for
approximately the last three years in the development of draft transportation and land use
policies for the area as part of the comprehensive plan update.
The Country received responses from Tony Aceti, Jack Holt, Hal Keesling, John
Lysaught, and Marian Woodall. Those responses and their attachments are identified and
incorporated herein by reference.
Mr. Aceti entered into the record a March 26, 2009, letter from Eugene Casey in which
Mr. Carsey wrote, “From 1980 to 1997 my partner and I lived in the two-story residence
located at 65005 N. Hwy 97 (the northwest corner of Hwy 97 and Tumalo Road). [staff
notes and Board concurs this is the pink building that is the subject of this land use. The
mailing address of the site was changed after construction of the Deschutes Junction
interchange, Phase I.] From 1977 to 1980 we lived in the small house (since razed)
which was located just north of the two-story residence. There has been a home located
on the property since at least 1947.” Photos of the site, copied from Deschutes County
Assessors Office, showing the buildings described by Mr. Carsey were included. Also
included were diagrams and assessments for the site copied from Deschutes County
Assessors Office.
Finally, Mr. Aceti also entered into the record two transmittals to the Deschutes County
Planning Commission. One is an e-mail from Jack Holt dated Feb. 26, 2010, in which
Mr. Holt summarized how past land use and transportation changes make commercial
development at Deschutes Junction inevitable. (The e-mail does not address the
residential status of the pink building.) The second is a letter from Bruce Barrett dated
Dec. 12, 2009, where Mr. Barrett recounted his personal experience with commercial
development at Deschutes Junction beginning in the 1950s and expansion of
approximately 4,000 people who now live near Deschutes Junction. (The letter does not
address the residential status of the pink building.)
Mr. Jack Holt submitted an e-mail dated Dec. 9, 2010, observing the complexity of the
applicable rules and process. (This e-mail does not address the residential status of the
pink building.)
Mr. Hal Keesling submitted an e-mail dated Dec. 10, 2010, referencing all of his
previous comments on the Deschutes Junction Transportation Plan (there has never been
such a document; staff believes and Board concurs Mr. Keesling is referring to the draft
transportation and land use policies for Deschutes Junction proposed for addition to the
Deschutes County Comprehensive Plan in TA-10-6), 19th Street, and the Deschutes
County Comprehensive Plan Update. While Mr. Keesling did not enter any copies of his
comments on those topics into the record, he did state “...those comments address the
need and want of the public to maintain the current rural character of the area.” His e-
Board Document 2011-041
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mail also stated that he has not seen any residential use of the property for the last five
years.
Mr. John Lysaught submitted a Dec. 14, 2010, e-mail stating for the last 12 years he had
lived in the Boones Borough area that the pink building was not a residence, but was
briefly a commercial landscaping operation.
Ms. Marian Woodall submitted a letter Dec. 13, 2010, stating in the 12.5 years she has
lived in the Boones Borough neighborhood that she and her husband have not seen any
one living in the building, but there was a commercial landscaping business for a while.
I. Lot of Record: The County considers the subject property to be a legal lot of record on
the basis of previous development permits (see: B2777 and B2798).
III. CONCLUSIONS OF LAW:
A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.40, Declaratory Ruling
a. Section 22.40.010, Availability of Declaratory Ruling
A. Subject to the other provisions of this section, there shall be
available for the County’s comprehensive plans, zoning
ordinances, the subdivision and partition ordinance and this
title a process for:
1. Interpreting a provisions of a comprehensive plan or
ordinance (and other documents incorporated by
reference) in which there is doubt or a dispute as to its
meaning or application; . . .
FINDINGS: The County originally designated the property Rural Service Center in the 1979
Comprehensive Plan, a designation removed in 2002 and replaced with Rural Commercial (RC)
for portions of this property and Rural Industrial (RI) for property on the east side of US 97. The
removal of the RSC designation was based on the interpretation of the number of permanent
residences required for the revised traits set for a RSC in 1994 by the State’s administrative rules
for Unincorporated Communities. The question at hand is the status of the pink building and
whether it qualifies as permanent residence under OAR 660-022.
B. A declaratory ruling shall be available only in instances
involving a fact-specific controversy and to resolve and
determine the particular rights and obligations of particular
parties to the controversy. Declaratory proceedings shall not
be used as a substitute for seeking an amendment of general
applicability to a legislative enactment.
Board Document 2011-041
(Structure on Fagen property at Deschutes Junction)
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FINDING: The fact-specific controversy is what is meant by the term “permanent residential
dwellings” in OAR 660-022-0010(5) and “some residential dwellings” at OAR 660-022-0010(8)
and how those definitions apply to the vacant pink building at Deschutes Junction.
b. Section 22.40.020, Persons Who May Apply
A. Section 22.08.010(B) notwithstanding, the following persons
may initiate a declaratory ruling under this chapter:
1. The owner of a property requesting a declaratory ruling
relating to the use of the owner’s property.
2. In cases where the request is to interpret a previously
issued quasi-judicial plan amendment, zone change or
land use permit, the holder of the permit; or
3. In all cases arising under DCC 22.40.010, the Planning
Director.
No other person shall be entitled to initiate a declaratory
ruling.
FINDINGS: At the August 26, 2010, public hearing before the Planning Commission (PC) on
TA-10-6 (proposed transportation and land use policies for Deschutes Junction); the PC
discussed the 2002 decision to replace the RSC designation with RC and RI. The PC directed
staff to seek direction from the Board of County Commissioners (Board) on whether a
declaratory ruling on the residential status of the vacant pink building should be initiated by the
property owner or staff. The Board at a Sept. 29, 2010, work session directed the Planning
Director and staff to initiate a declaratory ruling on the residential status of the vacant pink
building on the Fagen property.
B. A request for a declaratory ruling shall be initiated by filing an
application with the Planning Division and, except for
applications initiated by the Planning Director, shall be
accompanied by such fees as have been set by the Planning
Division. Each application for a declaratory ruling shall
include the precise question on which a ruling is sought. The
application shall set forth whatever facts are relevant and
necessary for making the determination and such other
information as may be required by the Planning Director.
FINDINGS: The Planning Director, through staff, filed an application for a declaratory ruling
on Dec. 1, 2010. The question is the residential status of the two-story, vacant pink building on
the land zoned RC.
c. Section 22.40.030, Procedures
Except as set forth in DCC 22.40 or in applicable provisions of a
zoning ordinance, the procedures for making declaratory rulings shall
Board Document 2011-041
(Structure on Fagen property at Deschutes Junction)
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be the same as set forth in DCC Title 22 for land use actions. Where
the Planning Division is the applicant, the Planning Division shall
bear the same burden that applicants generally bear in pursing a land
use action.
FINDINGS: This administrative decision and its referenced materials and exhibits constitute
the Burden of Proof. The Board uses the procedures set forth in this Title in making this ruling.
d. Section 22.40.040, Effect of Declaratory Ruling
A. A declaratory ruling shall be conclusive on the subject of the
ruling and bind the parties thereto as to the determination
made.
B. DCC 22.28.040 notwithstanding, and except as specifically
allowed therein, parties to a declaratory ruling shall not be
entitled to reapply for a declaratory ruling on the same
question.
C. Except when a declaratory ruling is made by the Board of
County Commissioners, the ruling shall not constitute a policy
of Deschutes County.
FINDINGS: The intent of the declaratory ruling is to determine the meaning of the term
“permanent residential dwelling” as it applies to the vacant pink building. If the declaratory
ruling determines the vacant pink house is not a permanent residential dwelling, then the
County’s 2002 application of OAR 660-022 to Deschutes Junction was correct and continues to
stand. If the declaratory ruling determines the vacant pink building does meet the definition of
the permanent residential dwelling, the County has the discretion, but not the obligation, to
revisit whether Deschutes Junction meets the RSC criteria of OAR 660-022.
e. Section 22.40.050, Interpretation
Interpretations made under DCC 22.40 shall not have the effect of
amending the interpreted language. Interpretation shall be made only
of language that is ambiguous either on its face or in its application.
Any interpretation of a provision of the comprehensive plan or other
land use ordinances shall consider applicable provisions of the
comprehensive plan and the purpose and intent of the ordinance as
applied to the particular section in question.
FINDINGS: The interpretation is for the language at OAR 660-022-0010(5) and underlined for
clarity: “’Permanent residential dwellings’ includes manufactured homes, but does not include
dwellings primarily intended for a caretaker of an industrial use, commercial use, recreational
vehicle park or campground.” Then at OAR 660-022-0010(8) Rural Service Center is defined as
an “…unincorporated community which consists primarily of permanent residential dwellings
but also has at least two other land uses that provide commercial, industrial, or public use…” The
language subject to interpretation is again underlined for emphasis.
Board Document 2011-041
(Structure on Fagen property at Deschutes Junction)
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When applying OAR 660-022 to Deschutes Junction in 1997 and again in 2002, the County
determined there were not multiple permanent residential dwellings on the site. Thus Deschutes
Junction did not comply with RSC criteria set by OAR 660-022. The findings for PA-99-2 and
TA-99-2 lack an explanation of why the County decided there were not multiple permanent
residences. Staff and the Board can only assume it was due to the building’s mix of previous
uses and continuing vacancy. Note that according to the March 26, 2009, letter submitted by Mr.
Aceti, that Mr. Carsey and his partner had quit living in the building in 1997. The pink building
was definitely vacant when the County applied OAR 660-022 to Deschutes Junction. Finally, the
County’s 2002 land use decision was not appealed and therefore stands. The Fagens were
mailed notice of the proposed removal of the RSC designation and the application of the
replacement RC designation.
Deschutes County Code (DCC) at 18.04.030 defines residential as "…any dwelling unit or group
of units built or used for human occupancy.” DCC 18.04.030 defines dwelling unit as “…one or
more rooms in a building designed for occupancy by one family and having not more than one
cooking area or kitchen.” DCC 18.04.030 defines dwelling, single family, as “a detached
building containing one dwelling unit and designed for occupancy by one family only, not
including temporary structures such as tents, teepees, travel trailers and other similar structures.”
The code implies residential is a stand-alone use, not a mixed use where commercial activity is
taking place on the ground floor and the business owners are living above. Where there is a mix
of economic and residential activity in a dwelling, the County has a code section for Home
Occupations. Even in Home Occupations, the economic activity within the dwelling is
secondary to the residential use. Clearly, the vacant pink building for much of its existence has
been a commercial building, not a residential dwelling.
The County code has no definition in DCC 18.04.030 for the term permanent. This is crucial, as
OAR 660-022 requires multiple permanent residential dwellings. Yet, as recounted in the
procedural history above, the vacant pink building has seen a multitude of active and proposed
uses with the vast plurality of those uses being non-residential in nature.
The American Heritage College Dictionary defines permanent as “1) lasting or remaining
without essential change” and “2) not expected to change in status, condition, or place.”1
Webster’s II New College Dictionary defines permanent as “1) lasting or meant to last
indefinitely: enduring” and “2) not expected to change in status, condition, or place.”2 The
Oxford English Dictionary defines permanent as “1) lasting or intended to last or remain
unchained indefinitely” and “2) lasting or continuing without interruption.”3
The vacant pink building has not been the site of a continuously occupied residence. Based on
research cited above, apparently the last time the building had a residential component was when
Buffet Flat existed; even then the building’s primary use was commercial. Not only has the
building been unoccupied since 1997, the site has been the subject of several land use
applications for commercial and/or industrial uses. The latter is an equally critical component in
1 The American Heritage College Dictionary, Third Edition; Houghton Mifflin Company, 1997; page 1,018.
2 Webster’s II New College Dictionary; Houghton Mifflin Company, 1999; page 819.
3 Oxford Dictionaries On-Line,” Oxford Universities Press, 2010.
Board Document 2011-041
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the interpretation of “permanent residence.” The building has not been merely vacant; the
building has been the subject of several land use actions whose intent was to conduct non-
residential uses in the building. Indeed, in a letter dated Sept. 9, 2010, from the property owner,
the Fagens themselves state, “The pink building has been used as both commercial and
residential (sic) through the years.”
Given the history of non-residential uses in the pink building, both historical and intended, as
well as well as the time the structure has spent being unoccupied by either residential or non-
residential uses, the Board finds the vacant pink building is not a permanent residential dwelling
as the term permanent is defined by dictionaries or understood by the reasonable persons test.
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.74, Rural Commercial
a. Section 18.74.010, Purpose
The purpose of this chapter is to establish standards and review
procedures for development in the Rural Commercial Zone. The
Rural Commercial (RC) zone provisions implement the
comprehensive plan policies for rural commercial development
and associated uses outside of unincorporated communities and
urban growth boundaries.
FINDINGS: There is no development tied to this land use application nor are there any policy
changes proposed.
b. Section 18.74.020.Uses Permitted – Deschutes Junction and
Deschutes River Woods Store
A. Uses Permitted Outright. The following uses and their
accessory uses are permitted outright and do not require site plan
review:
1. Single-family dwelling.
2 . M a n u f a c t u r e d home subject to DCC 18.116.070.
3 . T w o - f a m i l y d w e l l i n g .
4. Type 1 Home Occupation, subject to DCC 18.116.280…
5 . A g r i c u l t u r a l u s e s .
6. Class I and II road or street project subject to approval as
part of a land partition or subdivision, or subject to the
standards and criteria established in DCC 18.116.230.
7. Class III road or street project.
8. A lawfully established use existing as of 11/05/02, the date
this chapter was adopted, not otherwise permitted by this
chapter.
FINDING: A residential use, both single-family and multi-family, is an outright permitted land
use in the RC zone. Thus, from a regulatory standpoint there is no procedural barrier for the vacant
Board Document 2011-041
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pink building being used for residential purposes. The fact no one has lived there for
approximately 1.5 decades again indicates this is not a permanent residential dwelling. Mr. Carsey
had written he and his partner had not lived in the structure since 1997. When staff prepared the
findings for Ordinances 2002-018 to change the designation at Deschutes Junction from RSC to
RC there was no evidence provided or testimony given that the pink building was being used as a
residence.
C. Oregon Administrative Rule, Chapter 660, Division 22, Unincorporated Communities
a. Section 660-022-0010, Definitions
For purposes of this division, the definitions contained in ORS
197.015 and the statewide planning goals (OAR Chapter 660,
Division 15) apply. In addition, the following definitions apply:
(1) "Commercial Use" means the use of land primarily for the
retail sale of products or services, including offices. It does not
include factories, warehouses, freight terminals, or wholesale
distribution centers.
(2) "Community Sewer System" means a sewage disposal system
that has service connections to at least 15 permanent dwelling
units, including manufactured homes, within the unincorporated
community.
(3) "Community Water System" means a system that distributes
potable water through pipes to at least 15 permanent dwelling
units, including manufactured homes within the unincorporated
community.
(4) "Industrial Use" means the use of land primarily for the
manufacture, processing, storage, or wholesale distribution of
products, goods, or materials. It does not include commercial
uses.
(5) "Permanent residential dwellings" includes manufactured
homes, but does not include dwellings primarily intended for a
caretaker of an industrial use, commercial use, recreational
vehicle park or campground.
(6) "Resort Community" is an unincorporated community that
was established primarily for and continues to be used primarily
for recreation or resort purposes: and
(a) Includes residential and commercial uses; and
(b) Provides for both temporary and permanent
residential occupancy, including overnight lodging and
accommodations.
Board Document 2011-041
(Structure on Fagen property at Deschutes Junction)
13
(7) "Rural Community" is an unincorporated community which
consists primarily of permanent residential dwellings but also has
at least two other land uses that provide commercial, industrial,
or public uses (including but not limited to schools, churches,
grange halls, post offices) to the community, the surrounding
rural area, or to persons traveling through the area.
(8) "Rural Service Center" is an unincorporated community
consisting primarily of commercial or industrial uses providing
goods and services to the surrounding rural area or to persons
traveling through the area, but which also includes some
permanent residential dwellings.
(9) "Urban Unincorporated Community" is an unincorporated
community that has the following characteristics:
(a) Include at least 150 permanent residential dwellings
units;
(b) Contains a mixture of land uses, including three or
more public, commercial or industrial land uses;
(c) Includes areas served by a community sewer system;
and
(d) Includes areas served by a community water system.
(10) "Unincorporated Community" means a settlement with all of
the following characteristics:
(a) It is made up primarily of lands subject to an
exception to Statewide Planning Goal 3, Goal 4 or both;
(b) It was either identified in a county's acknowledged
comprehensive plan as a "rural community", "service
center", "rural center", "resort community", or similar
term before this division was adopted (October 28,
1994), or it is listed in the Department of Land
Conservation and Development's January 30, 1997
"Survey of Oregon's Unincorporated Communities";
(c) It lies outside the urban growth boundary of any
city;
(d) It is not incorporated as a city; and
(e) It met the definition of one of the four types of
unincorporated communities in sections (6) through (9)
of this rule, and included the uses described in those
Board Document 2011-041
(Structure on Fagen property at Deschutes Junction)
14
definitions, prior to the adoption of this division
(October 28, 1994).
FINDINGS: OAR 660-022 requires at 660-022-0010(8) some residential dwellings for a site to
be an Unincorporated Community (UC). At 660-022-0018(5), the OAR does not fully define
permanent residential dwellings, but again indicates more than one is needed for the UC
designation.
While OAR 660-022-0010 provides definitions of types of unincorporated communities and their
land use characteristics, it does not provide an elemental definition of permanent as used to
modify residential dwelling. The County internally in 1997 and again in a series of public
hearings in 2002 determined Deschutes Junction was not a Rural Service Center based on the
lack of multiple permanent residential dwellings.
The vacant building on the Fagen property was judged by the County to not be a permanent
residential dwelling due to the non-residential activities cited above and the building’s chronic
vacancy and/or disuse. Given that determination, it followed there was not more than one
permanent residential dwelling in the area previously designated the Deschutes Junction RSC.
With the changing State definition of a RSC, the County applied OAR 660-022 and found
Deschutes Junction was no longer an RSC. Instead the County designated RC and RI on various
parcels to reconcile the pre-existing and in some instances continuing land uses.
IV. DECISION:
Based on the foregoing Findings of Facts and Conclusions of Law, the Board finds the two-story
vacant pink building on the Fagen property is not a permanent residential dwelling unit.
Dated this 28th day of March 2011.
Mailed this _____ day of ______________ 2011.
___________________________
THIS DECISION BECOMES FINAL TWENTY-ONE DAYS (21) AFTER MAILING
UNLESS TIMELY APPEALED BY A PARTY OF INTEREST TO THE LAND USE
BOARD OF APPEALS (LUBA).