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HomeMy WebLinkAboutDiscussion B&B HearingCommunity Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or. as/cdd/ MEMORANDUM DATE: June 1, 2010 TO: Board of County Commissioners FROM: Cynthia Smidt, Associate Planner Kevin Harrison, Principal Planner RE: Board consideration to initiate review of Hearings Officer's decision denying the request to establish room and board arrangements for up to five unrelated persons in an existing residence in the Exclusive Farm Use zone. File No.: CU -10-2. BACKGROUND Before the Board is the request for the Board to initiate review of Hearings Officer's decision of CU -10-2 for Terry and Candice Anderson. The Andersons applied for overnight accommodations in the Exclusive Farm Use (EFU) zone. During the preparation of the staff report, Staff directed the Andersons to address the criteria for a "bed and breakfast inn" because of similar characteristics to the proposed use of "room and board arrangements for up to 5 unrelated persons," the use as listed in the EFU zone. The opponent to this application pointed out that bed and breakfast inn is not a use listed in the EFU zone. Therefore, since the EFU zone is a zoning district that comes directly from state statute and administrative rule, the Hearings Officer correctly found that a bed and breakfast inn, as defined by County Code, is a distinct use from room and board arrangements and could not be permitted. The Hearings Officer also found that the application could otherwise be approved as submitted with appropriate conditions of approval. Because staff feels some responsibility for the adverse outcome for the applicants, and because the applicants originally applied for the use as listed in the EFU zone, staff recommends that the Board initiate review of this decision pursuant to DCC 22.28.050 and limit the issues on appeal to those, which served as the Hearings Officers basis for denial. (See: DCC 22.32.027(B)(4)) REVIEW BY BOARD As detailed in DCC 22.28.050, the Board may initiate an administrative action or a lower Hearings Body's decision within 12 days of the date of the mailing of the final written decision. The Board should review the Planning Division request to determine that it is sufficiently specific so that the Board is able to respond to and resolve each issue in dispute. File No.: CU -10-2 Page 1 of 2 Quality Services Per formed with Pride If the Board decides to hear the appeal, the review shall be on the record unless the Board, under its own motion, decides to hear the appeal de novo (DCC 22.32.027(B)(1) and (3)). As noted above, the Planning staff has requested the Board limit the issues on appeal to those, which served as the Hearings Officers basis for denial. Per DCC 22.32.027(B)(4), the Board, may, at its discretion, determine that it will limit the issues on appeal to those listed in the notice of appeal, or to one or more specific issues from among those listed on the notice of appeal. DECLINING REVIEW If the Board of County Commissioners decides that the Hearings Officer's decision shall be the final decision of the County, then the Board shall not initiate review of the decision and parties of interest may appeal the Hearings Officer's decision as provided by law. The decision on the land use application becomes final within 12 days of the mailing of the Hearings Officer's decision. STAFF RECOMMENDATION Staff recommends the Board initiate review of this decision because staff takes some:: responsibility for the adverse outcome for the applicants and that because the applicant, originally applied for the use as listed in the EFU zone. SCHEDULE This item is scheduled for the Board's regular meeting on June 7, 2010. Please feel free to contact me at your convenience with any questions or concerns. Attachments: 1. Order 2010-032 2. Hearings Officer decision for file CU -10-2 File No.: CU -10-2 Page 2 of 2 REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Initiating Review of Hearings Officer's Decision in File no. CU -10-2 * ORDER NO. 2010-032 WHEREAS, Applicants, Terry and Candice Anderson, requested overnight accommodations in the EI U zone, which was denied by the Hearings Officer's in application number CU -10-2; and WHEREAS, County Planning staff brought the Hearings Officer's decision to the Board ;or consideration of whether or not to initiate review of the Hearings Officer's decision pursuant to DCC 22.28.050; and WHEREAS, the Board has given due consideration as to whether to initiate review of this application; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREI3Y ORDERS as follows: Section 1. The Board hereby initiates review of application number CU -10-2 pursuant to DCC 22.28.050. Section 2. The review of the Board shall be heard de novo, limited to the criteria on which the heari 1gs officer based his denial of the application. Section 3. All other issues shall be reviewed on the record with legal arguments but no new evidence allowed for those issues. Section 4. Staff shall set a hearing date and cause notice to be given to persons or parties entitled to notice pursuant to DCC 22.24.030 and 22.32,030. Dated this of , 2010 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: DENNIS R. LUKE, Chair ALAN UNGER, Vice Chair Recording Secretary TAMMY BANEY, Commissioner PAGE 1 OF 1 - ORDER NO. 2010-032 (6/7/10) DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBER: APPLICANT/OWNER: REQUEST: STAFF CONTACT: HEARING HELD: RECORD CLOSED: CU -10-2 Terry and Candice Anderson 18540 Plainview Road Bend, Oregon 97701 The applicant is requesting a Conditional Use permit to establish room and board arrangements for up to five unrelated persons in an existing residence (bed and breakfast inn). The subject property is within the Exclusive Farm Use zone. Cynthia Smidt, Associate Planner March 30, 2010 April 23, 2010 I. APPLICABLE CRITERIA: Title 18, Deschutes County Zoning Ordinance A. Chapter 18.16, Exclusive Farm Use Zone B. Chapter 18.128, Conditional Uses Title 22, Deschutes County Development Procedures Ordinance II. BASIC FINDINGS: A. LOCATION: The property is located at 18540 Plainview Road, Bend and is identified on Deschutes County Assessor's Map 15-11-34C as tax lot 500. B. LOT OF RECORD: Deschutes County has recognized this subject property as a legal lot of record pursuant to being Parcel 1 of Partition Plat 1995-35. C. ZONING: The subject property is zoned Exclusive Farm Use — Sisters/Cloverdale subzone (EFU-SC). D. SITE DESCRIPTION: The subject property is approximately 39.82 acres in size and irregularly shaped. The topography is relatively level for majority of the property except in the north where the land steeply slopes at the base of a high ridge. The site is vegetated with pasture grasses, native grasses and groundcover, and scattered juniper trees. The subject property is currently developed with a CU -10-2 (Anderson) Hearings Officer Decision Page 1 of 16 7,851 square foot single-family dwelling (see file CU -97-31), a pole bam, loafing shed, a paved driveway, and fenced irrigated horse pasture. The applicant indicated that the property is served by a domestic well, an agricultural well for irrigation, and a "1,500 gallon concrete tank and 600 feet of leach field." Plainview Road, a county -maintained gravel road abuts the property to the south. According to the applicant's Burden of Proof Statement, the closest paved roadway is Fryrear Road located approximately .8 mile to the west. The structural development on the property is located in the southeastern region of the property, approximately 150 feet west of the eastern boundary and 600 feet north of the road. The staff report indicates that according to the Flood Insurance Rate Map (FIRM) for Deschutes County and the National Wetlands Inventory, respectively, the subject property is not located in the 100 -year flood plain or contains wetlands. The staff report further indicates that these findings were verified by a staff site visit on February 23, 2010. E. SURROUNDING LAND USES: The area surrounding the subject property consists of rural residential and farm zoned parcels of varying sizes ranging from five (5) acres to over 50 acres. Surrounding the property in all directions are developed or vacant farm -zoned properties. Some properties have small-scale (hobby) farm uses present while other properties are devoid of any agricultural uses. To the northwest and west of the property, there are residentially zoned subdivisions including Fryrear Ranch, Duke, and Sun Mountain Ranches and to the south is the Snow Creek Ranch subdivision. Abutting the property in the north and about 100 feet from the southeast property corner is large farm -zoned parcels under the management of the United States Department of Interior's Bureau of Land Management (BLM). Plainview Road, County maintained, abuts the property to the south. Highway 20 lies to the southwest approximately 3,700 feet and the closed paved road is Fryrear Road, approximately 4,000 feet to the west. The City of Sisters is approximately seven (7) miles northwest of the property. Zoning in the area is a mixture of Multiple Use Agricultural (MUA10), Exclusive Fann Use (EFU), and Flood Plain (FP). F. PROPOSAL: The applicant is proposing to establish room and board arrangements for up to five unrelated persons in the existing single-family residence (bed and breakfast inn). The applicant proposes to use three (3) rooms in the existing dwelling for no more than 5 unrelated guests.' No structural modifications to the dwelling are proposed for this use. The use will operate year- round and breakfast will be the only meal served. Guest parking is available on - The burden of proof initially submitted by the applicant requested use of four (4) rooms in the existing dwelling. This was subsequently reduced by the applicant to the proposed use of three (3) rooms in order to meet the requirements of Section 18.128.310 (Bed and Breakfast Inn) of the Deschutes County Zoning as set forth in a letter regarding Incomplete Application to the applicant from the Deschutes County Community Development Department dated February 17, 2010. CU -10-2 (Anderson) Hearings Officer Decision Page 2 of 16 site as shown in the submitted site plan. The applicant has submitted a burden of proof statement, and other documents, and a plot plan in support of this application. G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received continents from the Deschutes County Building Safety Division, the Deschutes County Environmental Health Division, and the Deschutes County Road Department. Those comments are contained in the record and are either summarized or set forth verbatim in the staff report. For this reason, they are not repeated here. To the extent the comments pertain to the applicable approval criteria, they are addressed in the findings. The following agencies did not respond or had no comments: Cloverdale Fire Department, Deschutes County Assessor's Department, Deschutes County Property Address Coordinator, Deschutes County Transportation Planner, Oregon Department of Transportation, and Watermaster — District 11. H. PUBLIC COMMENTS: The Planning Division sent notice of this proposal to all property owners within 750 feet of the subject property. Two neighboring property owners, Ray Seidler and Tom and Mary Tomjack, submitted comments. Tom and Mary Tomjack opposed the proposal and expressed concern about impacts to the roads, property values, and rural character of the neighborhood. Ray Seidler raised concerns about the impacts of the business on the shared domestic well. All comments are incorporated in the record by reference and available for review. Further testimony was provided by or on behalf of Seidler and Tomjack at the public hearing on March 30, 2010. To the extent that testimony is relevant, it is addressed in the findings below. I. 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 January 10, 2010, indicating the applicant posted notice of the land use action on January 27, 2009. At the public hearing, applicant testified that the correct date for execution of the affidavit should have been January 27, 2010, contemporaneously with the actual posting of the Land Use Action Sign. The Hearings Officer notes that the Affidavit also bears a notary's statement that it was "subscribed and sworn" on January 27, 2010. Correction of this scrivener's error is noted for the record. J. REVIEW PERIOD: The application was submitted to the Planning Division on January 22, 2010. An incomplete letter was sent on February 17, 2010 and the applicant responded on February 24, 2010. Therefore, the Planning Division deemed this application complete and accepted it for review on February 24, 2010. Notification of the public hearing was posted in the Bend Bulletin Newspaper on March 7, 2010. As of the date of the public hearing for this matter, March 30, 2010, staff estimated 116 days remained on the 150 -day review clock for this land use application. Although the record was held open for a period of three weeks subsequent to the hearing, and 3 additional days were allowed at the request of an CU -10-2 (Anderson) Hearings Officer Decision Page 3 of 16 opponent to supplement the record, the 150 -day period was not extended by those actions. The 150 -day period therefore expires on Saturday, July 24, 2010. III. CONCLUSIONARY FINDINGS: As a practical matter, this application primarily raises two major issues: (1) whether a "bed and breakfast inn" is an allowed conditional use in the EFU zone as a form of "room and board arrangement" based upon 2009 changes to the Deschutes County Zoning Ordinance at Section 18.16.030(T); and (2) whether the applicant can utilize a shared well that is limited by agreement to domestic purposes and is under the ownership of a third party, as the source of water for the room and board arrangements (bed and breakfast inn) without the consent of that third party. Those issues, as well as numerous other matters of lesser controversy, are addressed below under the specific criteria of the Deschutes County Zoning Ordinance that are applicable to this request. Title 18, Deschutes County Zoning Ordinance. A. 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. T. Room and board arrangements for a maximum of five unrelated persons in an existing residence. If approved, this use is subject to the recording of the statement listed in DCC 18.16.020(J)(6). FINDING: The applicant proposes to establish room and board arrangements for a maximum of five unrelated persons in an existing single-family residence. The applicant proposes to use three (3) rooms in the existing dwelling. No modifications to the structure are proposed. As indicated above, the proposed use is subject to DCC 18.16.040 and 18.16.050, and other applicable sections. Planning staff finds the proposed room and board arrangements are in effect the same or similar to a Bed and Breakfast Inn,2 and takes the position that the criteria for a bed and breakfast inn are also to be regarded as 2 Deschutes County Codc, Section 18.04, defines "Bcd and Breakfast Inn" to mean: "Bed and breakfast inn" means a single-family dwelling unit where lodging and meals are provided for compensation, in which no more than three guest rooms are provided for no more than eight guests. A guest shall not rent for a time period longer than 30 consecutive days. CU -10-2 (Anderson) Hearings Officer Decision Page 4 of 16 requirements of the "board and room arrangements" proposed by the applicant.3 Staff appears to reach this position at least partially on the basis that DCC 18.16.030 also subjects conditional uses to "other applicable sections of DCC Title 18," finding those other sections to include the "bed and breakfast inn" provisions of DCC 18.128.310. Significantly, the applicant either concurs in or at least accepts that analysis, since the applicant's burden of proof addresses the separate requirements for a Bed and Breakfast Inn set forth in the conditional use chapter, and indicates that the applicant will comply with each of those criteria. Therefore, I will regard this application solely as an application for a "bed and breakfast inn" as a form of room and board arrangements. Opponent argues that the Bed and Breakfast Inn use was "repealed" in 2009 by Deschutes County, which previously specifically allowed bed and breakfast inns as a conditional use in the EFU zone.4 By letter dated March 30, 2010, attorney Liz Fancher, representing a neighboring property owner, Mr. Seidler, based this argument on the premise that in other Deschutes County land use cases, the county has interpreted situations where a use is specifically authorized in one zone, but not specifically listed in another zone to imply that the specific use is prohibited in zones where it is not specifically listed. Although Mr. Seidler's attorney neglected to specify any Deschutes County land use cases for this proposition, I concur that such an approach is consistent with general principles of statutory construction and apply it here.5 In this case, a bed and breakfast inn continues to be specifically listed in the general definitions section (DCC 18.04), the conditional use section (DCC 18.318.320), the MUA zone (DCC 18.32.030(U), RR -10 zone (DCC 18.60.030(L), and a number of other zones in the Deschutes County Code. The continued use of "bed and breakfast inn" elsewhere in the Deschutes County Code, coupled with its explicit removal from the EFU ordinance in 2009, strongly implies that it is prohibited in the EFU zone. 3 The applicant does not specifically identify the request as one for a "bed and breakfast inn," although the applicant clearly regards the provisions governing bed and breakfast inns in the conditional use chapter (DCC 18.128.310) to be applicable, and addresses how those criteria will be met in the application. The staff report adds a parenthetical reference to "bed and breakfast inn" in the staff report to the description of the request initially submitted by the applicant. 4 With the adoption of Ordinance 2009-014, Deschutes County removed the prefatory wording "bed and breakfast inn" from the list of conditional uses permitted on High Value and Nonhigh Value farmland in the EFU zone under Deschutes County Code Section 18.16.030 (U), leaving the remainder of that section in place. The changes to Section 18.16.030(U) by Ordinance 2009-014 are as follows (deletions crossed out; additions underlined): U,T. Bed and brcahfast inn, with Rt'oom and board arrangements for a maximum of five unrelated persons in an existing residence. 1/ approved, this use is subject to the recording of the statement listed in DCC 18.16.020(J)(6). 5 Opponent's attorney cites specifically to an appellate court decision from another county for support for this proposition (Clatsop County v. Morgan, 19 Or App 173, 178-79, 526 P2d 1393 (1974)), but neglected to point out any Deschutes County land use case involving that principal. Nonetheless, I concur that such an approach is consistent with general principles of statutory construction and apply it here. CU -10-2 (Anderson) Hearings Officer Decision Page 5 of 16 As noted above, the applicant impliedly argues that a bed and breakfast inn is an allowed conditional use in the EFU zone because it is a form of room and board arrangement.6 However, any argument that a bed and breakfast inn is a form of room and board arrangement is made more complicated by the lack of clear definition for critical terms in both Deschutes County ordinances and state law. State law describes those uses that may be allowed by Deschutes County in the EFU Zone. Only those uses listed in ORS 215.283 and in OAR 660-033-0120 may be allowed by the county. Room and board arrangements are an allowed conditional use in an EFU zone under both the Deschutes County Code and applicable state law. Unfortunately, neither state law nor the Deschutes County Ordinance defines what is meant by those arrangements. A "bed and breakfast inn" is not specifically listed as a conditional use in the EFU zone under applicable state law or regulations (see, ORS 215.283 and OAR 660-033-0120) or under the 2009 revisions to the Deschutes County EFU zone ordinance. Although a "bed and breakfast inn" is defined in the Deschutes County Code, that term is undefined in state law.7 The bottom line is that there is ambiguity in the meaning of those terms, and specifically it is unclear from the text of the statutes and ordinances themselves whether a "bed and breakfast inn" is a kind of "room and board arrangement" contemplated by either local ordinances or state statutes. Moreover, in interpreting ambiguity in uses possibly allowed in the EFU zone, it is important to keep in mind that the overarching purpose of the EFU zone is "to preserve and maintain agricultural lands and to serve as a sanctuary for faun uses." DCC 18.16.010(A). Under those circumstances, a narrow construction of allowable conditional uses seems appropriate. I am persuaded that a "bed and breakfast inn" most clearly contemplates short-tenn guest status that is commercial in character, while "board and room arrangements" generally connotes longer-tenn arrangements that are essentially residential in characters Thus, I find the terns do not have the same meaning, nor is a bed and breakfast inn a fonn of room and board arrangements for purposes of the ordinance. 6 Opponents have asserted that the applicant must proceed, if at all, to seek conditional use for a bed and breakfast inn as a "home occupation." I express no opinion as to whether such a use would be allowed as a "home occupation," since the application was not submitted or argued on that basis. Provisions of the state's food service health code do define a similar tenn, "bed and breakfast facility," for purposes of the health code. ORS 624.010(2). 8 While the Deschutes County Code clearly specifies that a "bed and breakfast inn" involves stays of 30 days or less, it is silent with regard to the length of stays involved in room and board arrangements. It is instructive to look elsewhere to see how these issues are handled. For example, in the Marion County EFU zone, both bed and breakfast inns and room and board arrangements are allowed as separate conditional uses. This supports the idea that they are not the same thing. Similarly, Wasco County treats both Room and Board or Bed and Breakfast arrangements as conditionally allowed "home occupations", and specifically defines bed and breakfast arrangements as involving stays of 30 days or less, and room and board arrangements to involve month-to-month rental. CU -10-2 (Anderson) Hearings Officer Decision Page 6 of 16 In sum, although it is possible to argue that the concept of "board and room arrangements" is broad enough to encompass a "bed and breakfast inn", the elimination of that term from the EFU zone provisions, the arguments advanced by opponents, the overarching purpose of the EFU zone, and the text of applicable state statutes and regulations, lead me to conclude that a bed and breakfast Inn is not allowed in the EFU zone as a conditional use by either the Deschutes County Code, nor state law. For the foregoing reasons, the Hearings Officer finds the applicant has failed to either demonstrate that a Bed and Breakfast Inn is independently allowed in the EFU Zone or that it is a kind of room and board arrangement" that is allowed in that zone. Therefore, I find the applicant's proposal simply does not satisfy all applicable approval criteria in DCC Section 18.16.030, that it is not capable of being satisfied with conditions, and cannot be approved. Nevertheless, because this decision may be appealed to the Board of County Commissioners (hereinafter sometimes referred to as "board"), I include in this decision findings on the remaining approval criteria. If this decision is appealed, and the finding above reversed on appeal, the requirements of DCC 18.16.020(J)(6) are applicable according to the terms of DCC 18.16.030(T). If a conditional use is approved, DCC 18.16.020(3)(6) requires the property owner to sign and record a waiver of remonstrance, in the deed records for the County, binding the landowner, and the landowner's successors in interest, prohibiting them from pursuing a claim for relief or cause of action alleging injury from fanning or forest practices for which no action or claim is allowed under ORS 30.936 or 30.937. Based on all of the foregoing, 1 find that if the board approves the applicant's proposal on appeal, such appeal should be subject to a condition of approval requiring recording a waiver of remonstrance as provided in DCC 18.16.020(J)(6). 2. Section 18.16.040. Limitations on Conditional Uses. A. Conditional uses permitted by DCC 18.16.030 may be established subject to ORS 215.296 and 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 submitted application states, and as observed on a February 23, 2010 site visit by staff, there are no forest uses in the area, as the only trees in the area are juniper trees, which have no commercial timber value. Farm -zoned parcels of varying size, ranging from five acres to over 50 acres, surround the property. Uses adjacent to the subject property are a mixture of rural residential, open space, small-scale farm uses, and an Alpaca farm. To the northwest and west there are residentially zoned subdivisions including Fryrear Ranch, Duke, and Sun Mountain Ranches in which properties range in CU -10-2 (Anderson) Hearings Officer Decision Page 7 of 16 size from one (1) to 10 acres. In addition, south of the property is farm -zoned Snow Creek Ranch subdivision. To the north and southeast, there are large BLM parcels. The farming in the area appears to be generally irrigated pasture, livestock grazing, and grass hay. The closest farming practice, an Alpaca farm, is located to the east on tax lot 100 of tax map 15-11-34C. The existing development on-site is located along the eastern boundary approximately 600 feet north of Plainview Road and thus provides for expansive yard setbacks to buffer the use from adjacent farm uses. Submitted comments from a neighboring property owner raised concerns about the impact of this proposed business on the farm use characteristics of this area and whether this proposed business would set a precedent of future businesses. However, staff expressed the view that the proposed use would not force a significant change in these farm practices nor significantly increase the cost of accepted farming practices occurring on the adjacent lands. Based upon the distances from the proposed Bed and Breakfast operation to surrounding agricultural uses, as well as the size and scope of the proposed use, I concur in that analysis and specifically find that the proposed use 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 will not significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use. Further, the room and board arrangements will occur in an existing single-family dwelling. I therefore also find that the actual site of the proposed operation is the least suitable for the production of farm crops or livestock since it is already devoted to residential use. For the foregoing reasons, the criteria of DCC Section 18.16.040(A) are satisfied. 3. Section 18.16.070. Yards. FINDING: The applicant is proposing no new structures for the site. Therefore, these criteria are not applicable. B. CHAPTER 18.128. CONDITIONAL USES 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; FINEIING: The site of the proposed bed and breakfast inn will be located in an existing single-family dwelling. The subject property is 39.82 acres and is currently development with a 7,851 square foot single-family dwelling, pole barn, and shed in the southeast region of the property. The dwelling is approximately 150 feet west of the eastern boundary and 600 feet north of Plainview Road. According to the applicant, the nearest dwelling is 900 feet to the south. The property has a private paved driveway that leads to the dwelling and barn. Guests would access the inn from Plainview Road and park on the property with the CU -10-2 (Anderson) Hearings Officer Decision Page 8 of 16 parking area located near the dwelling and barn. The inn would operate year-round and breakfast will be the only meal served to the guests. Based on the description of the existing development design and operating characteristics in the applicant's written statement and the materials submitted with the application, staff expressed the view that the site under consideration is suitable for the proposed bed and breakfast inn. Opponent Seidler argues that the proposed use of water for the board and room arrangements (bed and breakfast inn) from a shared well located on land belonging to Mr. Seidler violates DCC 18.128.015(A)(1). DCC 18.128.015(A)(1) requires that the site be suitable for the proposed use based on its site, design and operating characteristics. The opponent asserts that both the existing well agreement affecting the property and other restrictive covenants make it clear that such use is not permitted. There is no other agreement between the parties that would allow such use. Opponents argue that in the absence of an agreement between the parties for such use, the applicant will not have a water supply that is appropriate for the use.9 The Hearings Officer does not typically interpret private agreements, such as well agreements or restrictive covenants, when such matters are at issue between private parties. Under the circumstances, I find that the applicant has not met his burden of proof to establish that this criterion is satisfied.10 However, I also find this criterion can be satisfied with imposition of a condition of approval requiring the applicant to either (a) enter into a specific agreement with the other party(ies) to the well agreement allowing such use; (b) obtain a final enforceable judgment from an appropriate court determining that the applicant has the right to use water from the Seidler well for the proposed use; or (c) connect to another water source acceptable to Deschutes County. For the foregoing reasons, 1 find if the board approves the applicant's proposal on appeal, such approval should be subject to the recommended condition of approval described above. For the foregoing reasons, and with the imposition of the recommended condition of approval described above, I find that the site under consideration is suitable for the proposed use based on the site, design and operating characteristics of the use. 2. Adequacy of transportation access to the site; and 9 The County Environmental Health Division has indicated that it will require the well to become a public water system if the proposed use is approved. Opponents further assert that use of the Seidler well to supply water for the proposed use will also violate DCC 18.128.310 by creating an unreasonable disturbance to an area resident, Mr. Seidler by requiring him to operate a public water system, purchase water rights, and assume legal obligations that he does not wish to assume. Those arguments will be addressed separately below. 1° See also the Hearings Officer's decision in CU -92-99, where the proposed use of a shared well was rejected on the basis that it failed to meet the requirements of DCC 18.128.015(A)(1). While not dispositive in this case, I find the reasoning employed in that earlier decision to be persuasive, and reach a similar conclusion here with regard to this matter. CU -10-2 (Anderson) Hearings Officer Decision Page 9 of 16 FINDING: The proposed bed and breakfast inn would be accessed via Plainview Road onto a paved driveway. The County classifies Plainview Road as a rural local road and comments received from the Road Department indicates the roadway is a gravel surface of 20 feet wide and is County maintained. Staff observed on a February 23, 2010 site visit, that the Plainview Road travel surface exceeds 20 feet in most places and is in good to excellent graveled condition. Staff believes that having a condition of approval limiting the number of guests to five, minimum road impacts can be expected to Plainview Road. However, one neighbor expressed concern that traffic impacts from the bed and breakfast would be detrimental to the roadway. The County Road Department concluded that the application would generate approximately 28 weekday trips, which would not affect the road, nor require any further dedication or road improvements. The applicant also notes that the applicant raised a family of six children (only one of whom currently resides on the property) on the site. It is difficult to envision that the number of trips likely to be generated by the proposed use would exceed the use that might reasonably have been made of the road by a larger single family, such as previously resided at the location. Based upon all of the foregoing, I find that the subject property is suitable for the proposed use considering transportation access. 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 bed and breakfast inn will be located in an existing dwelling and no improvements to the dwelling are required to accommodate the use. The natural and physical features of the site are limited, as the property has been disturbed through the development of the dwelling, driveway, barn, shed, and faun use including pasture and fences. The staff report indicates that staff is unaware of any natural hazard on the site, and no contrary evidence has been presented. For the foregoing reasons, I find the subject property is suitable for the proposed use considering the natural and physical features of the site, including but not limited to, general topography, natural hazards and natural resource values. 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: The proposed use would be located in an area surrounded by rural residential and farm use properties of varying sizes. To the northwest and west of the property there are residentially zoned subdivisions including Fryrear Ranch, Duke, and Sun Mountain Ranches and to the south is the Snow Creek Ranch subdivision. To the north and southeast, there are large BLM parcels. The subject property is approximately 39.82 acres and developed with an existing dwelling, barn, shed, and irrigated pasture. The bed and breakfast inn will occur in the existing dwelling, which is setback about 150 feet and 495 feet from the eastern and western boundary, respectively. The dwelling is setback 1,530 feet and 600 feet, respectively from the northern and southern boundaries. The closest residences are each approximately 900 feet to the south. The next closest residence is about 1,000 feet. Neighboring private properties are developed and undeveloped and are CU -10-2 (Anderson) Hearings Officer Decision Page 10 of 16 of greater distance to the subject property. The closest farming practice, an Alpaca farm, is located to the east on tax lot 100 of tax map 15-11-34C. Staff also expressed the view that the proposed use is compatible with the surrounding properties because the existing development has sizable yard setbacks thus buffering the neighbors in all directions. In addition, Plainview Road borders along the southern boundary and thus providing a buffer to those properties to the south. Further, vehicular access is taken from Plainview Road, an improved local rural County road, onto a paved driveway that is located in the southeast corner of the property. The driveway location provides for buffering from properties to the south, west, and east. Minimal traffic is anticipated to be generated because the number of guests will be limited to five. Lastly, the bed and breakfast inn will occur in an existing residence where no additional improvements are required to accommodate the use.11 As stated in the findings above regarding Section 18.1.28.015(A), the applicant's reliance upon use of a shared well means that the proposal fails to satisfy the criteria of DCC 18.128.015(A)(2) with regard the site, design and operating characteristics of the use. That analysis is incorporated here with regard to the compatibility with existing and projected uses on surrounding properties, specifically the property belonging to Mr. Seidler upon which the shared well is located. Again, however, I find this criterion can be satisfied with imposition of a condition of approval requiring the applicant to either (a) enter into a specific agreement with the other party(ies) to the well agreement allowing such use; (b) obtain a final enforceable judgment from an appropriate court determining that the applicant has the right to use water from the Seidler well for the proposed use; or (c) connect to another water source acceptable to Deschutes County. For the foregoing reasons, I find if the board approves the applicants' proposal on appeal, such approval should be subject to the recommended condition of approval described above. With the imposition of the recommended condition of approval described above. 1 find that the site under consideration is compatible with existing and projected uses on surrounding properties based on the factors listed in DCC 18.128.015(A). 2. Section 18.128.310. Bed and Breakfast Inn. The Hearings Officer acknowledges that comments were submitted into the record by neighboring property owners reflecting concern that the proposed use would be a detriment to the rural character of the area, including the roadway, and impact property values. Neighboring property owners also expressed concern about the potential to set a precedent with the conversion of resource and residential lands into commercial uses. The roadway issue was addressed above under the topic of adequacy of transportation access to the site. That analysis is incorporated here by reference. With regard to the other points raised by opponents, no evidence was submitted by opponents to substantiate the opponent's position with regard to those points (impact on rural character, property values, and precedent for conversion into commercial uses), and therefore, I believe the applicant has satisfied his burden of proof with regard to those matters. CU -10-2 (Anderson) Hearings Officer Decision Page 11 of 16 A. Bed and breakfast inns shall be restricted to owner -occupied single-family residences. FINDING: The proposed bed and breakfast will occur in an existing single-family residence. The owner of the residence as listed on the County Assessor's records is Teny Anderson who, according to the submitted application, lives at the dwelling along with his wife, Candice Anderson, and one daughter. Terry and Candice Anderson will be operating the bed and breakfast inn. I find that the provision of room and board arrangements (bed and breakfast inn) will occur in an owner -occupied single-family dwelling and, thus, this criterion is satisfied. B. Bed and breakfast inns located in farm or forest zones shall utilize existing dwellings or dwellings conforming to the requirements of those zones relating to single-family dwellings. FINDING: The proposed bed and breakfast inn will be located in the EFU zone and will use the existing single-family dwelling on the property. This criterion is met. C. No more than three sleeping rooms shall be available for the accommodation of inn visitors. FINDING: The proposal identifies three bedrooms in the existing dwelling that will be used to accommodate the guests. To ensure compliance with this criterion, if the board approves the applicant's proposal on appeal, such approval should be subject to a condition of approval requiring that no more than three sleeping rooms shall be available for room and board arrangements. As proposed to be conditioned, this criterion is satisfied. D. No more than eight guests shall be accommodated at any one time. FINDING: As previously discussed, the EFU zone limits the number of unrelated persons having room and board arrangements to five. The applicant proposes to accommodate no more than five guests at any one time. Staff recommended it be made a condition of any approval that the applicant be prohibited from having more than five guests with room and board arrangements at any one time. I concur. Therefore, if the board approves the applicant's proposal on appeal, a condition of approval should be imposed prohibiting the applicant from having more than five guests at any one time. As proposed to be conditioned, this criterion is satisfied. E. Occupancies shall be limited to not more than 30 consecutive days. FINDING: The applicant indicates that guests will have a limited occupancy of 30 consecutive days or less. To ensure compliance with this criterion, staff recommended this be added this as a condition of any approval. I concur in the staff's analysis. Therefore, if the board approves the applicant's proposal on appeal, a condition of approval should be imposed limiting occupancy by any person to not more than 30 consecutive days. As proposed to be conditioned, this criterion is satisfied. CU -10-2 (Anderson) Hearings Officer Decision Page 12 of 16 F. Breakfast shall be the only meal provided to inn guests. FINDING: The application materials indicate that the applicant will provide breakfast to guests as the only meal available. Staff recommended, as a condition of approval, that the applicant be prohibited from serving any meal other than breakfast to guests with room and board arrangements. I concur in that analysis. Therefore, if the board approves the applicant's proposal on appeal, a condition of approval should be imposed prohibiting the applicant from serving any meal other than breakfast to inn guests. As proposed to be conditioned, this criterion is satisfied. G. The exterior of the building shall maintain a residential appearance. FINDING: The residential appearance of the existing dwelling will remain intact, as the applicant proposes no changes to accommodate the use. Staff recommended, as a condition of any approval, that the applicant be prohibited from making any changes to the building exterior in connection with the proposed use. I concur in the staff recommendation. Therefore, if the board approves the applicant's proposal on appeal, a condition should be imposed prohibiting any changes to the building exterior in connection with the proposed use. As proposed to be conditioned, this criterion is satisfied. H. The bed and breakfast inn shall be operated in a way that will prevent unreasonable disturbance to area residents. FINDING: A disturbance is "something that disturbs."12 The term disturb can be further defined, "to interfere with the arrangement, order, or harmony of; disarrange."13 Staff expressed the view that the operation of a bed and breakfast inn would have minimal disturbance to area residents for the reasons listed in the staff report. Those reasons include the fact that the existing development has sizable yard setbacks that will buffer the neighbors to the east, west, north and south. This buffering is further improved with Plainview Road bordering along the southern boundary. Access is taken from Plainview Road, an improved and maintained local rural County road, onto a paved driveway that is located in the southeast corner and thus allowing a buffer from properties to the south, west, and east. The proposed bed and breakfast inn anticipates minimal traffic generated because the number of guests will be limited to five. Moreover, the bed and breakfast inn will occur in an existing residence where no additional improvements are required to accommodate the use. With regard to each of these points, I concur in the staff's analysis. That does not, however, entirely resolve the matter. There is one aspect of the operation of the proposed use that does create an "unreasonable disturbance:" the use of a shared well as the proposed source of water. The County Environmental Health Division has indicated that it will require the shared well to become 42 disturbance. Dictionary.com. Dictionary.com Unabridged. Random Nouse, Inc. http://dictionary.reference.com/browse/disturbance (accessed: March 17, 2010). 13 disturb. Dictionary.com. Dictionary.com Unabridged. Random House, Inc. http://dictionary.reference.com/browse/disturb (accessed: March 17, 2010). CU -10-2 (Anderson) Hearings Officer Decision Page 13 of 16 a public water system if the proposed use is approved.14 Opponents specifically assert that use of the Seidler well to supply water for the proposed use will violate DCC 18.128.310 by creating an unreasonable disturbance to an area resident, Mr. Seidler, by requiring him to operate a public water system, purchase water rights, and assume legal obligations that he does not wish to assume. I find opponent's argument to be persuasive on this point. For these reasons, I find that if the board approves the applicant's proposal on appeal, such approval should be subject to a condition of approval requiring the applicant to either (a) enter into a specific agreement with the other party(ies) to the well agreement allowing such use; (b) obtain a final enforceable judgment from an appropriate court determining that the applicant has the right to use water from the Seidler well for the proposed use; or (c) connect to another water source acceptable to Deschutes County (and disconnect from the Seidler well). As proposed to be conditioned, this criterion is capable of being satisfied.15 I. One off-street parking space shall be provided for each guest room in addition to parking required for the residence. FINDING: The proposal includes three guest bedrooms to accommodate the inn guests. Therefore, three off-street parking spaces are required. The site plan submitted with the application shows a large gravel parking area in between the house and the pole barn at the end of the driveway. Based on the record in this matter, this criterion is met. J. Approval shall be conditioned upon compliance with all applicable state building code requirements and state sanitation requirements. FINDING: Comments received from the County's Environmental Health Division require the applicant to obtain a septic authorization notice, a public water system certification, and a Bed and Breakfast license. A comment from the County Building Safety Division requires review for any change in occupancy. Staff recommended as a condition of any approval, and before commencing operation of the bed and breakfast inn, that the applicant be required to provide written documentation to the Planning Division that all applicable state code requirements—including but not limited to building safety, septic, food preparation, and domestic water- have been complied with. I concur in the staff recommendation. For these reasons, I find that if the board approves the applicant's proposal on appeal, such approval should be subject to a condition of approval requiring 14 Other arguments concerning use of the well are made above at the discussion of Section 18.128.015(A)(1) and are incorporated here by reference to the extent relevant. 's The Hearings Officer acknowledges that additional comments were also submitted into the record indicating a concern that the proposed use would affect the rural character of the area. It is unclear whether an "effect on the rural character of the area" is the kind of "disturbance" to "area residents" contemplated by the ordinance. However, in any event, 1 find that those concerns are not well founded and that no evidence was submitted that the "rural character" of the area would be disturbed, or that any disturbance would be "unreasonable." CU -10-2 (Anderson) Hearings Officer Decision Page 14 of 16 the applicant to provide written documentation to the Planning Division that all applicable state code requirements—including but not limited to building safety, septic, food preparation, and domestic water have been complied with. As proposed to be conditioned, I find that this criterion is satisfied. K. Bed and breakfast inns in the Wildlife Area Combining Zone are subject to the provisions of DCC 18.88. FINDING: The proposed bed and breakfast inn is not located in the WA zone; therefore, this criterion is not applicable. IV. DECISION: Based on the testimony and written evidence in the record, the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DENIES the applicant's request for room and board arrangements (bed and breakfast inn). If this decision is appealed to the Board of County Commissioners and the board approves the application on appeal, the Hearings Officer RECOMMENDS SUCH APPROVAL BE SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: A. Except as described below, this approval is based on the submitted site plan and narrative for the bed and breakfast inn. Any substantial changes to this proposal will require a new application. B. Prior to initiation of the use, the applicant shall either (a) enter into a specific agreement with the other party(ies) to the well agreement allowing such use; (b) obtain a final enforceable judgment from an appropriate court determining that the applicant has the right to use water from the Seidler well for the proposed use; or (c) connect to another water source acceptable to Deschutes County. C. Prior to initiation of the use, the applicant shall obtain any necessary permits from the Deschutes County Building Division. The applicant shall provide written documentation to the Planning Division illustrating all applicable building codes have been satisfied. D. Prior to initiation of the use, the applicant shall obtain any necessary pennits and plan review from the Deschutes County Environmental Health Division. The applicant shall provide written documentation to the Planning Division illustrating all applicable code requirements for septic, food preparation, and domestic water have been met. E. Prior to issuance of a building or septic permit, the property owner shall sign and record a waiver, binding the property owner and the property owner' s successors in interest, prohibiting them from pursuing a claim for relief or cause of CU -10-2 (Anderson) Hearings Officer Decision Page 15 of 16 action alleging injury from farming or forest practices for which not action or claim is allowed under ORS 30.936 or 30.937. F. Prior to the issuance of a building or septic permit, the property owner shall record a condition of approval agreement that specifies that current and future owners of the subject property shall comply with the approved bed and breakfast inn. A copy of the recorded conditions of approval agreement shall be submitted to the Planning Division. The conditions of approval agreement must state that the applicant shall operate the bed and breakfast inn subject to the following limitations: 1. No more than three guest rooms will be available and occupied at any one time. 2. No more than five guests will occupy the inn at any one time. 3. No guest shall stay at the inn for a period longer than 30 consecutive days. 4. No meal other than breakfast will be served to inn guests. 5. No changes to the exterior of the dwelling shall be made in connection with the operation of the bed and breakfast inn. G. All lighting on the subject property shall be required to comply with Chapter 15.10 of the Deschutes County Code, the Outdoor Lighting Control Ordinance. All exterior lights shall be sited and shielded so that no direct light projects off-site. V. DURATION OF APPROVAL: If the decision is appealed to the Board of County Commissioners and the Board approves the application on appeal, the Hearings Officer further recommends that approval be subject to the following duration of approval: The applicant shall meet all of the requirements to commence use, and actually commence the approved use within two (2) years from the date this decision becomes final, or shall obtain an extension of time pursuant to Section 22.36.010 of the Deschutes County Code, or this approval shall be void. Dated this 27`h day of May, 2010. Mailed this 281h day of May, 2010. ettcce.el Gerald G. Watson, Hearings Officer THIS DECISION IS FINAL UNLESS APPEALED WITHIN 12 DAYS OF MAILING. CU -10-2 (Anderson) Hearings Officer Decision Page 16 of 16