HomeMy WebLinkAboutReview of Denial re Room-Board ArrangementCommunity Development Department
Planning Division Building Safety Division Environmental Healt i Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or. is/cdd/
MEMORANDUM
TO: Deschutes County Board of County Commissioners
FROM: Cynthia Smidt, Associate Planner
Kevin Harrison, Principal Planner
DATE: June 21, 2010
MEETING DATE: June 28, 2010
SUBJECT: Public Hearing for Conditional Use request to establish room and board
arrangements in the Exclusive Farm Use zone. File No. CU -10-2.
Before the Board is a request for a Conditional Use permit to establish room and board
arrangements for up to five unrelated persons in an existing residence. The subject property is
within the Exclusive Farm Use zone. The applicants are Terry and Candice Anderson. The
review of this application is in response to the Board's decision to initiate review of the request
via Order 2010-032, which is based on Planning staff recommendation.
BACKGROUND
The 38.19 -acre subject property is located at 18540 Plainview Road and is further identified
on County Assessor tax map 15-11-34C as tax lot 500. The property is owned by Terry and
Candice Anderson. The applicants filed for a conditional use permit, the no. CU -10-2, to
request room and board arrangements for up to five unrelated persons in an existing
residence on the subject property. (Emphasis added) Originially the applicant proposed to
use four (4) rooms in the existing dwelling with no disclosure of provided meals. However,
Planning staff's interpretation found that the proposed use was in effect the same or similar
to a bed and breakfast inn. (Emphasis added) Therefore, staff found the application
incomplete and sent a letter to the applicant requesting that the criteria at DCC 18.128.310,
Bed and Breakfast Inn be addressed. After meeting with Planning staff to address staff's
concerns, the applicants submitted the requested information and altered their proposal to
satisfy the criteria.
Planning staff referred the application to the Hearings Officer because of opposition by two
neighbors regarding impacts to the roads, property values, and rural character of the
neighborhood and impacts of the business on the shared domestic well. The application was
heard on March 30, 2010. The Hearings Officer issued a decision denying the request on
May 28, 2010 primarily because he found that a bed and breakfast inn and room and board
Quality Services Performed with Pride
arrangements were two distinct uses and that bed and breakfast inn is not an allowed use in
the EFU zone. On June 8, 2010, Planning staff requested the Board initiate review of the
Hearings Officer's decision through a partial de novo review. On June 8, 2010, the Board
decided to initiate review, and under its own motion, decided to hear the review de novo as
referenced in Board Order 2010-032.
In the Hearings Officer's decision, two (2) major issues were examined:
• "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)."
• "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."
Regarding the first issue, the Hearings Officer found that the "application was for a 'bed and
breakfast inn' as a form of room and board arrangements." The decision was denied
because "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."
The Hearings Officer addressed the shared well issue with the imposition of a condition of
approval that would either require the applicant to modify the current shared well agreement
with the affected neighbor to specifically authorize the use, connect to another water source,
or "obtain a final enforceable judgment from an appropriate court determining that the
applicant has the right to use water... for the proposed use."
Staff will attend the Board Work Session on the afternoon of Wednesday, June 23, 2009 to
answer questions. Background information on the record to date is available for inspection
at the Planning Division.
Attachments
1. Hearings Officer decision on file no. CU -10-2
2. Staff Report on file no. CU -10-2
File No.: CU -10-2
Page 2 of 2
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 barn, 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) faun 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 Farm 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 -
1 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 comments 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 Code, Section 18.04, defines "Bed 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 appli cant.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):T. Bed and breakfast inn, with Rroom 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).
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 farm
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-term guest status that is commercial in character, while "board
and room arrangements" generally connotes longer-term arrangements that are essentially
residential in character.8 Thus, I find the terms do not have the same meaning, nor is a bed
and breakfast inn a form 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 term, "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(J)(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 farming 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 faun -zoned Snow Creek
Ranch subdivision. To the north and southeast, there are large BLM parcels. The fanning
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 eastem boundary
approximately 600 feet north of Plainview Road and thus provides for expansive yard
setbacks to buffer the use from adjacent faun 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;
FINDING: 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 nothave 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, I 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.
10 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, 1 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 iinpacts 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 farm 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, 1 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.
11 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 Terry
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. 1 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 comer 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
12 disturbance. Dictionary.com. Dictionary.com Unabridged. Random House, 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. ] 5
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. 1 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, I
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, 1 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 permits 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 fanning 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 28`h day of May, 2010.
htt,e1N.
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
•
Community Development Department
Planning Division Building Safety Division Environmental Health Di' ision
117 NW Lafayette Avenue Bend Oregon 97701-' 925
(541)388-6575 FAX (541)385- 764
http://www.co.deschutes.or.us, cdd/
DESCHUTES COUNTY PLANNING DIVISION
STAFF REPORT
FILE NUMBER: CU -10-2
HEARING DATE: March 30, 2010, 6:30 p.m.
LOCATION: Barnes and Sawyer Hearing Rooms
Deschutes Services Center
1130 NW Wall Street
Bend, OR 97701
APPLICANT/OWNER: Terry and Candice Anderson
18540 Plainview Road
Bend, Oregon 97701
REQUEST:
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.
STAFF CONTACT: Cynthia Smidt, Associate Planner
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: The subject property is a legal lot of record pursuant to being Parcel
1 of Partition Plat 1995-35.
Quality Services Performed with Pride
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 7,851 square foot single-family
dwelling (see file CU -97-31), a pole barn, loafing shed, a paved driveway, and fenced
irrigated horse pasture. 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 abuts the property to the south. 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. 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.
These findings were verified by 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 Targe
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 Farm 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-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 the following comments:
1. Deschutes County Building Safety Division: The Deschutes County Building Safety
Division code requires access, egress, setbacks, fire and life safety, fire fighting
water supplies, etc. will be specifically addressed during the plan review process for
any proposed structures and occupancies.
CU -10-2, Anderson Page 2
2. Deschutes County Environmental Health Division: Comments were submitted by
Dan Haldeman, Director, on January 27, 2010. Mr. Haldeman's comments are
below:
• [The proposed use] will need an Approved Authorization Notice to increase flow
for on-site wastewater system.
• [The water system] will need to become a Public Water System. Contact Jeff
Fruend at 388-6563.
• [The applicant] will need to acquire a License to operate a Bed and Breakfast.
Contact John Mason at 388-6598.
Staff Comment: Staff recommends these be made a condition of any approval.
3. Deschutes County Road Department: George Kolb, County Engineer, provided the
following comments:
Background information:
• This parcel is accessed by Plainview Road which was established in 1907 as the
A.J. Harter Road. The road is maintained by Deschutes County and is a gravel
surface roadway with a width of 20 feet. The Road Department applies
Magnesium Chloride in June to control dust on the road.
• This lot was created as part of MP -93-12 and as part of that application, 10 feet
of right-of-way was dedicated on this parcel to create 30 feet from centerline.
• Per correspondence from Peter Russell, Senior Transportation Planner, this
application will generate approximately 28 weekday trips which will not affect the
road therefore no dedication or road improvements will be required on this
application.
4. The following agencies did not res and 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
submitted comments. One neighbor opposes the proposal and expressed concern
about impacts to the roads, property values, and rural character of the neighborhood.
The other neighbor 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.
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.
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
CU -10-2, Anderson Page 3
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 estimates 116 days
remain on the 150 -day review clock for this land use application.
III. CONCLUSIONARY FINDINGS:
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 Nonhiah 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.' Therefore, Conditional Use approval is required to satisfy
the applicable criteria in Section 18.128.310 of Title 18. Additionally, as indicated in
DCC 18.16.020(J)(6), if approved the property owner should be required 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 farming or forest
practices for which no action or claim is allowed under ORS 30.936 or 30.937.
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
1
Deschutes County Code, Section 18.04, defines "Bed 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 Page 4
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, 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 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. Staff believes the proposed bed
and breakfast inn will not force a significant change in these farm practices or
significantly increase the cost of accepted farming practices occurring on the
adjacent lands. Further, the bed and breakfast inn will occur in an existing single-
family dwelling and is the least suitable site for the production of farm crops or
livestock as the site of the bed and breakfast inn is developed. However, submitted
comments from a neighboring property owner raises concerns on the impact of this
business on the farm use characteristics of this area and whether this business will
set a precedent of future businesses. Staff recommends the Hearings Officer focus
his review on the question of whether the proposed bed and breakfast inn business
will force any change in, or significantly increase the cost of, accepted farm practices
in the area.
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;
FINDING: 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
CU -10-2, Anderson Page 5
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 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 believes the proposal demonstrates
that the site under consideration is suitable for the proposed bed and breakfast inn.
2. Adequacy of transportation access to the site; and
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. Staff recommends the Hearings Officer focus on transportation access
and its impacts to the site.
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 farm
use including pasture and fences. In addition, staff is unaware of any natural hazard
on the site. Thus, staff believes the site is suitable based on the natural and physical
features of the site.
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 Targe 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 of greater
CU -10-2, Anderson Page 6
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 believes the proposed use will be 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.
Conversely, comments submitted into the record reflect concern that the proposed
use will be a detriment to the rural character of the area, including the roadway, and
impact property values. Furthermore, neighbors are concerned about the potential to
set a precedent with the conversion of resource and residential lands into
commercial uses. Staff recommends the Hearings Officer focus on whether the
proposed use will be compatible with existing and projected uses on surrounding
properties.
2. Section 18.128.310. Bed and Breakfast Inn.
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
Terry 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. Based on this information,
staff finds that the bed and breakfast inn will occur in an owner -occupied single-
family dwelling and, thus, meets this criterion.
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, staff
recommends this be added this as a condition of any approval.
D. No more than eight guests shall be accommodated at any one time.
CU -10-2, Anderson Page 7
FINDING: As previously discussed, the EFU zone limits the number of unrelated
persons to five. The applicant proposes to accommodate no more than five guests
at any one time. Staff recommends it be made a condition of any approval that the
applicant be prohibited from having more than five bed and breakfast inn guests at
any one time.
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
recommends this be added this as a condition of any approval.
F. Breakfast shall be the only meal provided to inn guests.
FINDING: The proposed bed and breakfast inn will provide breakfast to the inn
guests as the only meal available. Staff recommends it be made a condition of any
approval that the applicant be prohibited from serving any meal other than breakfast
to the bed and breakfast inn guests.
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 recommends, 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.
H. The bed and breakfast inn shall be operated in a way that will prevent
unreasonable disturbance to area residents.
FINDING: Staff believes the operation of the bed and breakfast inn will have minimal
disturbance to area residents for the reasons previously listed and restated here.
The 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. Lastly, the bed and breakfast inn will occur in an existing residence
where no additional improvements are required to accommodate the use. However,
comments submitted into the record indicate a concern that the proposed use will
affect the rural character of the area. Another neighbor submitted comments in
regard to the domestic well the subject property shares with two other properties.
Staff is unsure if the use of the shared domestic well would warrant unreasonable
disturbance to the other two residents that share the well. A disturbance is
"something that disturbs."2 The term disturb can be further defined, "to interfere with
2 €Isturbance. Dictionary.cor. Oicficnarycom Unabr-fdped. Random House, Inc.
.
11p:.....cto!':e r\et rric.: Ci
.c,n;,��'. v:+s ei��isturbt:,;cMai-oh (accessed: 17, 2010).
CU -10-2, Anderson Page 8
the arrangement, order, or harmony of; disarrange.s3 (Emphasis added). Staff
recommends the Hearings Officer focus on whether the proposed use will be an
unreasonable disturbance to area residences in particular those concerns raised by
the neighboring property owners.
1. 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 Targe gravel parking area in between the
house and the pole barn at the end of the driveway. Based on this information, 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 recommends as
a condition of any approval, and before commencing operation of the bed and
breakfast inn, the applicant will 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.
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. CONCLUSION AND RECOMMENDATION:
Based on the evidence in the record submitted to date, staff recommends approval of this
application. However, staff recommends additional review of those issues raised by
neighbors including the following:
• Whether the proposed bed and breakfast inn business will force any change in, or
significantly increase the cost of, accepted farm practices in the area.
• Whether the proposed use will be compatible with existing and projected uses on
surrounding properties.
• Whether the bed and breakfast inn shall be operated in a way that will prevent
unreasonable disturbance to area residents.
disturb. DICt onary.com. Dict onaiy.00171 Unabridged. Random I --louse: Inc.
3ttp:.`:' ist.._.,:;:.., i•=`:,r?::?.corliib..Fid.`.ttirt (accessed: March 17, 200).
CU -10-2, Anderson Page 9
If the Hearings Officer finds the issues raised in the Staff Report have been resolved and the
applicant satisfies the approval criteria, staff recommends 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 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.
C. Prior to initiation of the use, the applicant shall obtain any necessary permits 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.
D. 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 action alleging injury
from farming or forest practices for which not action or claim is allowed under ORS
30.936 or 30.937.
E. Prior to the issuance of a building or septic permit, the property owner shall record a
condition of approval agreement which 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 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.
F. 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.
Dated this 18th day of March, 2010 Mailed this 18'h day of March, 2010
CU -10-2, Anderson Page 10
M
L▪ )
•
w
�
v;8
Lo 6▪ N
w ,
.r x
• V
tel
• W
W
✓
11 51 on 335
H