Notice of Decision

Home , Secondary forest

MULTNOMAH COUNTY LAND USE AND TRANSPORTATION PROGRAM 1600 SE 190TH Avenue Portland, OR 97233 PH: 503-988-3043 FAX: 503-988-3389 http://www.co.multnomah.or.us/landuse

NOTICE OF DECISION

This notice concerns a Planning Director Decision on the land use case(s) cited and described below.

Case File: T2-08-069 Vicinity Map NÇ

Permit: Administrative Decision by the Planning Director (Commercial Forest Use – 4 Development Standards) with an Exception to Secondary Fire Safety Zone and an Adjustment to Forest Practices Setbacks

Location: 41601 SE Louden Tax Lot 400, Section 06D, Subject Property Township 1 South, Range 5 East, W.M R995060140 LOUDEN RD. MAN NTHEY RD. Applicant: Shirley Knittle

Owner: Bob and Shirley Knittle 41601 SE Louden Rd. Corbett, OR 97019

Summary: To build an agricultural building for an existing Christmas tree farm in the Commercial Forest Use – 4 (CFU-4) Zone District with an Exception to the Secondary Fire Safety Zone and an Adjustment to Forest Practices Setbacks.

Decision: Approved with conditions.

Unless appealed, this decision is effective February 12, 2009, at 4:30 PM.

Issued by:

By: George A. Plummer, Planner

For: Karen Schilling- Planning Director

Date: Thursday, January 29, 2009

Instrument Number for Recording Purposes: #2006055650

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Opportunity to Review the Record: A copy of the Planning Director Decision, and all evidence submitted associated with this application, is available for inspection, at no cost, at the Land Use Planning office during normal business hours. Copies of all documents may be purchased at the rate of 30-cents per page. The Planning Director Decision contains the findings and conclusions upon which the decision is based, along with any conditions of approval. For further information on this case, contact George A. Plummer, Staff Planner at 503-988-3043, ext. 29152.

Opportunity to Appeal: This decision may be appealed within 14 days of the date it was rendered, pursuant to the provisions of MCC 37.0640. An appeal requires a $250.00 fee and must state the specific legal grounds on which it is based. To obtain appeal forms or information on the procedure, contact the Land Use Planning offices at 1600 SE 190th Avenue (Phone: 503-988-3043). This decision cannot be appealed to the Land Use Board of Appeals until all local appeals are exhausted.

This decision is final at the close of the appeal period, unless appealed. The deadline for filing an appeal is February 12, 2009 at 4:30 pm.

Applicable Approval Criteria: Multnomah County Code (MCC): Chapter 37: Administration and Procedures, MCC 35.2200 – 35.2310: Commercial Forest Use (CFU-4), MCC 35.7601 - 35.7611: Adjustments and MCC 35.5510: Hillside Development and Erosion Control, Exempt Land Uses and Activities.

Copies of the referenced Multnomah County Code sections can be obtained by contacting our office at 503-988-3043 or by visiting our website at http://www.co.multnomah.or.us/landuse.

Scope of Approval

1. Approval of this land use permit is based on the submitted written narrative(s) and plan(s). No work shall occur under this permit other than that which is specified within these documents. It shall be the responsibility of the property owner(s) to comply with these documents and the limitations of approval described herein.

2. This land use permit expires two years from the date the decision is final if; (a) development action has not been initiated; (b) building permits have not been issued; or (c) final survey, plat, or other documents have not been recorded, as required. The property owner may request to extend the timeframe within which this permit is valid, as provided under MCC 37.0690 or 37.0700, as applicable. The request for a permit extension must be submitted prior to the expiration of the approval period.

Conditions of Approval

The conditions listed are necessary to ensure that approval criteria for this land use permit are satisfied. Where a condition relates to a specific approval criterion, the code citation for that criterion follows in parenthesis.

1. After the decision is final and prior to building permit sign-off, the property owner shall record the Notice of Decision cover sheet through the conditions of approval with the County Recorder along with a copy of the site plan (Exhibit A.2). The Notice of Decision shall run with the land. Proof of recording shall be made prior to the issuance of any permits and a copy filed with Land Use Planning. Recording shall be at the applicant’s expense. [MCC 37.0670]

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2. The proposed building shall be used only for farm uses as defined in ORS 215.203. [MCC 35.2220(C) and MCC 35.2261(B)(2)(b)]

3. The proposed building shall be sited as shown on the site plan included as Exhibit A.2. The building shall be located at 78 feet from the western property line (measured horizontally from the roof overhand) and shall be a maximum of 36 feet by 36 feet footprint. [MCC 35.7606 (A)]

4. The property owner shall establish and maintain Primary and Secondary Fire Safety Zones on the subject tract for the proposed building as described below. [MCC 35.2256] (1) Primary Fire Safety Zone (a) A primary fire safety zone is a fire break extending a minimum of 30 feet in all directions around a dwelling or structure. Trees within this safety zone shall be spaced with greater than 15 feet between the crowns. The trees shall also be pruned to remove low branches within 8 feet of the ground as the maturity of the tree and accepted silviculture practices may allow. All other vegetation should be kept less than 2 feet in height. (2) Secondary Fire Safety Zone A secondary fire safety zone is a fire break extending a minimum of 100 feet in all directions around the primary safety zone, except when that area exceeds the tract’s property line. The goal of this safety zone is to reduce fuels so that the overall intensity of any wildfire is lessened. Vegetation should be pruned and spaced so that fire will not spread between crowns of trees. Small trees and brush growing underneath larger trees should be removed to prevent the spread of fire up into the crowns of the larger trees. Assistance with planning forestry practices which meet these objectives may be obtained from the State of Oregon Department of Forestry or the local Rural Fire Protection District.

5. The property owner shall obtain a building permit for the proposed building and meet the International Fire Code Institute Urban– Wildland Interface Code Section 505 Class 2 Ignition Resistant Construction. The roof shall be fire retardant and if a chimney is installed in the future it shall have a spark arrester. [MCC 35.2261(C) and MCC 35.2310(B)(1)]

6. There shall be no combustible fences erected within 12 feet of the exterior surface of the proposed building. [MCC 35.2310(B)(3)]

Note: Once this decision is final, application for building permits may be made with the City of Gresham. When ready to have building permits signed off, the applicant shall call the Staff Planner, George Plummer, at (503) 988-3043 ext. 29152, for an appointment for review and approval of the conditions and to sign the building permit plans. Please note, Multnomah County must review and sign off the building permits before the applicant submits building plans to the City of Gresham. Three (3) sets each of the site plan and building plans are needed for building permit sign off. At the time of building permit review, a fee of $53.00 will be collected. In addition, an erosion control inspection fee of $77.00 may be required.

Notice to Mortgagee, Lien Holder, Vendor, or Seller: ORS Chapter 215 requires that if you receive this notice it must be promptly forwarded to the purchaser.

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FINDINGS OF FACT

Note: Written findings are contained herein in the following section of this decision. The Multnomah County Code criteria and standards are in bold font. The applicant’s statements are italicized and identified “Applicant”. Staff comments and analysis addressing the applicable criteria and standards are identified as “Staff.”

1. PROPOSAL

Applicant: This application requests the issuance of a development permit to allow the construction of a 36’ x 36’ farm building that will be used for the storage and maintenance of equipment for use in conjunction with a commercial Christmas tree growing operation that is conducted on the subject site and a portion of the adjoining property. The application also requests approval of: (1) an exception to the secondary fire safety fire safety setback, and (2) an adjustment to the 130-foot minimum side yard forest practice setback in the CFU-4 zoning district.

Staff: The applicant requests an approval of an Administrative Decision of the Planning Director addressing CFU-4 Development Standards, an Exception to the Secondary Fire Safety Zones and an Adjustment to the Forest Practices Setbacks to build an agricultural farm building (Exhibit A.1). The proposed building site is located within the Hillside Development Overlay District, however as discussed in the findings of Section 11 of this decision the proposed development meets the exemption standards thus a Hillside Development Permit is not required.

2. PROPERTY DESCRIPTION & VICINITY

Staff: The subject property is located in the East of the Sandy River Plan Area and is within the CFU-4 Zone district (Exhibit B.2) and the Hillside Development Overlay District. The subject property is 6.7 acres (Exhibit A.1), part of a two parcel ownership tract that is 10.12 acres. The property is accessed from SE Louden Road through the adjacent property to the west, part of the ownership tract. The subject property has a woodshed established as a farm building in 1990. The adjacent property to the west, has the dwelling for the tract which was established through a building permit issued in 1981. The southern third of the property is planted in Christmas trees and has a relatively shallow slope (Exhibit B.3). The northern two-thirds of the property is forested and has steeper slopes increasing from about 12 percent towards the middle of the property to about 50 percent toward the back of the property. The proposed building will be located toward the northern edge of the cleared area, between the existing buildings on the tract. The slope in this area is about four percent.

The subject property is located amongst several small woodlot properties with dwelling along SE Louden Road in the CFU-4 district (Exhibit B.3). These properties are predominately similar in size or about twice the size. Down the road to the east and to the north away from the road the properties tend to be larger (40 to 80 acres) and are forested properties many without dwellings.

3. ADMINISTRATION & PROCEDURES

3.1. Summary Of Decision Making Processes

MCC 37.0530(B) Type II decisions involve the exercise of some interpretation and discretion in evaluating approval criteria. Applications evaluated through this process are assumed to

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be allowable in the underlying zone. County Review typically focuses on what form the use will take, where it will be located in relation to other uses and natural features and resources, and how it will look. However, an application shall not be approved unless it is consistent with the applicable siting standards and in compliance with approval requirements. Upon receipt of a complete application, notice of application and an invitation to comment is mailed to the applicant, recognized neighborhood associations and property owners within 750 feet of the subject tract. The Planning Director accepts comments for 14 days after the notice of application is mailed and renders a decision. The Planning Director’s decision is appealable to the Hearings Officer. If no appeal is filed the Planning Director’s decision shall become final at the close of business on the 14th day after the date on the decision.

Staff: Procedures outlined in MCC 37.0530 were followed in processing this case. An opportunity to appeal this case will be provided. If no appeal is filed, the decision will become final 14 days after the date on the decision. The application was submitted November 7, 2008 and on November 20, 2008 addition fees was paid to cover the application fee and the application was amended to include an Adjustment request (Exhibit A.1). The application was deemed complete as of November 20, 2008 when the fee for the Adjustment and the reminder fee for the Administrative Decision by the Planning Director were submitted.

An “Opportunity to Comment” notice was mailed on December 16, 2008 to all owners of property within 750 feet of the subject site. They were given a 14-day period to provide comments on the application (MCC Chapter 37). No letters of comment were received.

3.2. INITIATION OF ACTION

MCC 37.0550: Except as provided in MCC 37.0760, Type I - IV applications may only be initiated by written consent of the owner of record or contract purchaser. PC (legislative) actions may only be initiated by the Board of Commissioners, Planning Commission, or Planning Director.

Staff: The application was submitted by Shirley Knittle (Exhibit A.1). County Assessment records show that the property is owned by Robert R. Knittle, TR and Shirley M. Knittle, TR (Exhibit 2.1). Robert and Shirley Knittle signed the application form (Exhibit A.1). This criterion has been met.

3.3. CODE COMPLIANCE AND APPLICATIONS. MCC 37.0560 Except as provided in subsection (A), the County shall not make a land use decision, or issue a building permit approving development, including land divisions and property line adjustments, for any property that is not in full compliance with all applicable provisions of the Multnomah County Land Use Code and/or any permit approvals previously issued by the County. (A) A permit or other approval, including building permit applications, may be authorized if: (1) It results in the property coming into full compliance with all applicable provisions of the Multnomah County Code. This includes sequencing of permits or other approvals as part of a voluntary compliance agreement; or (2) It is necessary to protect public safety; or (3) It is for work related to and within a valid easement over, on or under an affected property.

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(B) For the purposes of this section, Public Safety means the actions authorized by the permit would cause abatement of conditions found to exist on the property that endanger the life, health, personal property, or safety of the residents or public. Examples of that situation include but are not limited to issuance of permits to replace faulty electrical wiring; repair or install furnace equipment; roof repairs; replace or repair compromised utility infrastructure for water, sewer, fuel, or power; and actions necessary to stop earth slope failures. Staff: Based upon the findings listed under MCC 35.2275, the lawful configuration of the property is the 6.7 acre parcel. The most recent copy of deed we have was recorded in 2006 showing that the property was combined into one property similar the 1968 parcel (Exhibit B.9), with minor changes due to boundary line correction resulting from survey errors. Given the property has been recombined as created in 1968, it is a Lot of Record (see findings in Section 4 below). There are no known code compliance issues on the property.

4. COMMERCIAL FOREST USE LOT OF RECORD PROVISIONS

MCC 35.0005 Definitions Lot of Record – Subject to additional provisions within each Zoning District, a Lot of Record is a parcel, lot, or a group thereof that, when created or reconfigured, (a) satisfied all applicable zoning laws and (b) satisfied all applicable land division laws, or (c) complies with the criteria for the creation of new lots or parcels described in MCC 35.7785. Those laws shall include all required zoning and land division review procedures, decisions, and conditions of approval. (a) “Satisfied all applicable zoning laws” shall mean: the parcel, lot, or group thereof was created and, if applicable, reconfigured in full compliance with all zoning minimum lot size, dimensional standards, and access requirements. (b) “Satisfied all applicable land division laws” shall mean the parcel or lot was created: 1. By a subdivision plat under the applicable subdivision requirements in effect at the time; or 2. By a deed, or a sales contract dated and signed by the parties to the transaction, that was recorded with the Recording Section of the public office responsible for public records prior to October 19, 1978; or 3. By a deed, or a sales contract dated and signed by the parties to the transaction, that was in recordable form prior to October 19, 1978; or 4. By partitioning land under the applicable land partitioning requirements in effect on or after October 19, 1978; and 5. “Satisfied all applicable land division laws” shall also mean that any subsequent boundary reconfiguration completed on or after December 28, 1993 was approved under the property line adjustment provisions of the land division code. (See Date of Creation and Existence for the effect of property line adjustments on qualifying a Lot of Re-cord for the siting of a dwelling in the EFU and CFU districts.)

MCC 35.2275(A) In addition to the Lot of Record definition standards in MCC 35.0005, for the purposes of this district a Lot of Record is either: (1) A parcel or lot which was not contiguous to any other parcel or lot under the same ownership on February 20, 1990 (2) A group of contiguous parcels or lots: (a) Which were held under the same ownership on February 20, 1990; and (b) Which, individually or when considered in combination, shall be aggregated to comply with a minimum lot size of 19 acres, without creating any new lot line.

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1. Each Lot of Record proposed to be segregated from the contiguous group of parcels or lots shall be a minimum of 19 acres in area using existing legally created lot lines and shall not result in any remainder individual parcel or lot, or remainder of contiguous combination of parcels or lots, with less than 19 acres in area. See Examples 1 and 2 in this subsection. 2. There shall be an exception to the 19 acre minimum lot size requirement when the entire same owner-ship grouping of parcels or lots was less than 19 acres in area on February 20, 1990, and then the entire grouping shall be one Lot of Record. 3. Three examples of how parcels and lots shall be aggregated are shown below with the solid thick line outlining individual Lots of Record: 4. The requirement to aggregate contiguous parcels or lots shall not apply to lots or parcels within exception, urban, or Columbia River Gorge National Scenic Area zones (e.g. MUA-20, RR, RC, R-10, GGA-40), but shall apply to contiguous parcels and lots within all farm and forest resource zones (i.e. EFU and CFU), or (3) A parcel or lot lawfully created by a partition or a subdivision plat after February 20, 1990. (4) Exceptions to the standards of (A)(2) above: (a) Where two contiguous parcels or lots are each developed with a lawfully established habitable dwelling, the parcels or lots shall be Lots of Record that remain separately transferable, even if they were held in the same ownership on February 20, 1990. (b) Where approval for a “Lot of Exception” or a parcel smaller than 19 acres under the “Lot Size for Conditional Uses” provisions has been given by the Hearing Authority and the parcel was subsequently lawfully created, then the parcel shall be a Lot of Record that remains separately transferable, even if the parcel was contiguous to another parcel held in the same ownership on February 20, 1990. (c) Disaggregation of a Lot of Record for consideration of a new template or heritage tract dwelling may be allowed subject to the standards in (E) below. * * * MCC 35.2275 (C) A Lot of Record which has less than the minimum lot size for new parcels, less than the front lot line minimums required, or which does not meet the access requirements of MCC 35.2290, may be occupied by any allowed use, review use or conditional use when in compliance with the other requirements of this district.

MCC 35.2275 (D) The following shall not be deemed a Lot of Record: (1) An area of land described as a tax lot solely for assessment and taxation purposes. (2) An area of land created by the foreclosure of a security interest. (3) A Mortgage Lot. (4) An area of land created by court decree.

MCC 35.2275 (E) Disaggregation of Lots of Record existing on or before August 8, 1998, being the effective date of Ordinance 916. (1) A Lot of Record may be disaggregated for consideration of a new dwelling under MCC 35.2240 if: (a) It consists of two legally created, aggregated lots or parcels and: 1. The disaggregation occurs along existing lot or parcel lines without creating any new lots or parcels; 2. One of the lots or parcels is currently developed with a legally established dwelling; 3. The lot or parcel on which application will be made for the new dwelling is less than 19 acres; and

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4. The lots or parcels constituting the disaggregated Lot of Record were in the same ownership prior to January 1, 1985. (b) It consists of three or more lots or parcels and: 1. Only one lot of less than 19 acres shall be disaggregated; 2. The remaining lots or parcels shall be combined into a single lot; and 3. The disaggregation occurs along existing lot or parcel lines without creating any new lots or parcels; 4. One of the lots or parcels is currently developed with a legally established dwelling; 5. The lot or parcel on which application will be made for the new dwelling is less than 19 acres; and 6. The lots or parcels constituting the disaggregated Lot of Record were in the same ownership prior to January 1, 1985. (2) A property that was originally a portion of a Lot of Record that would otherwise satisfy the standards of 35.2275(E)(1) above, but has subsequently been legally transferred to another owner, may be developed with a single family dwelling if found to satisfy the standards of MCC 35.2240 (A) or (B).

Staff: In a prevoius case T2-05-046 the applicant (same applicant) provided the following narritive addressing the Lot of Record stauts of the subject property:

“In aproximately 1940 the Petersons purchased from Udey’s a 10 acre parcel, which today is made of 2 lots totalling only 8.5 acres. By the tax lot information later it was found that an error had been made by a survey company that tilted the entire ¼ section that these properties are apart of. It created several law suits between adjacent property owners in order to adjust lines and cure encroachments, see exhibits a, b, c and d attached. Because of this error in a survey of of this ¼ section and of no fault of the prior owners who by their legal description sold a 2+ acre lot to the Stewarts back in 1968. Property has been lost due to litigation between the parties to remedy the encroachment problem crated by the survey error. Also Loudon Rd was not identified at that time.” “On September 27, 1968, Mr. and Mrs Goodling sold James and Dorothy Stewart a 2 acre lot that currently show 1.80 acres on the county zoning maps. At the time this contract of sale was made and the deed created the description excluded out that portion lying within the right of way of Louden Rd. No survey was done and the county did not require it to be done. February 27, 1984 there was a survey of the lot to the east Tax lot #16 survey #47537, it was a lot line adjustment of the east boundary line of tax lot 16. Copy of the survey maps show some other old boundary line references and appears to have adjusted a previous survey of the same property back in March 26, 1982 survey #46273. However on October 31, 1989 Associated Land Surveyors (Kurtis H Krieper) by court order, had to survey the entires ¼ section to correct an error which shows the entire ¼ section titled to the east. These errors have created errors in the subject tax lot. If you calculate the area based on the ordinary legal description tax lot #500 = 2.0 acres. The remaining tax lot #400 should have 8 acres, but it is not only 6.7 ac. The conclusion to what exists today is an effect from the survey error and should not be used to reflect what the lots have for area, because this was not the intent of the proeprty owners to create any lots less than the 2 acres required at the time under Multnomah County zoning regulations. Pease refer to the exhibits that are attached to this request for construction of a

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accessory buidling on tax lot #400 under current tax records is 6.70 ac lot but should be a 8.0 ac lot if it had not been for the huge error in the survey of that ¼ section.”

In case T2-05-046 staff made the following findings, which we reorginized into bulleted items and have adopted here as finding for this case.

• In 1950 the Udeys sold on contract to the Petersons a supposedly 10 acre parcel (Exhibit B.5). No survey was completed. • In December 1954, the Udeys signed a Warranty Deed to the Petersons for 6 acres of land, (Exhibit B.6). • In January 1954, the Petersons (Wallace and Jacqualine) transferred to Jacqualine Peterson through a Quit Claim deed the original 1950 legal description (Exhibit B.6). This deed is a little confusing to staff as there is no deed in the record from the Udeys transferring the entire ten acres. • In addition, the Assessment and Taxation Parcel records for Tax Lot 300 (Exhibit B.7) shows that it was created by the same deed as Tax Lot 400 in 1955 (Exhibit B.8). • In 1968, the Circuit Court clarified the 2.64 acres of land that belonged to Tax Lot 400 adding this area to the parcel. • Staff agrees that there seems to have been a survey error that was corrected through various steps through the years. • Tax Lot #400 was created in its legal form (Exhibit B.9) in October 1968 when the Goodlings sold a 1.90 acre property to the Stewarts (Tax Lot 500). The zoning at the time was F-2. • The F-2 regulations had a minimum lot size of 2 acres at that time (Exhibit B.10). Tax Lot 400 is 6.7 acres then and now. In 1968, the 6.7 acre Tax Lot 400 was in compliance with the zoning regulations at the time of creation. • In the record is an Agreement Line Survey between Tax Lots 400 & 600 (Exhibit B.11). The survey was completed in 1984, but it did not alter the actual area of the property known as Tax Lot 400 but clarified where both property owners believed from the record where the actual property line between the two separate properties existed. • In February 1988, the Goodlings sold to Palmer/Helland Tax Lot 400. The warranty deed recorded for this transaction (Exhibit B.4) describes the single property as two separate parcels. Parcel I was 6 acres and Parcel 2 was 0.85 acres in size. In 1988 the zoning for the area was MUF-19 which had a minimum lot size of 19 acres (Exhibit B.12). Neither of these two parcels met the minimum lot size for the district and henceforth were not lawfully created in compliance with the zoning regulations at the time.

Staff finds that the subject property was created as legal parcel in 1968. In 1968 there were no land division regulation that applied to land divisions of three lots or less and the property meet the two acre minimum F-2 zone requirement. However, in 1988 a deed was filed that described the property (area of 1968 parcel) as Parcel I and Parcel II. Creating two parcels out of the property in 1988 would not have met the minimum parcel size at that time for the MUF-19 Zone District which had 19 acre minimum. Thus to return the property to its legally created configuration, the property owner needed file a deed that described the property with one metes and bounds legal description, combining what is described as Parcel I and Parcel II on the 1988 deed (with property line corrections to correct past survey errors). On March 29, 2006 a warranty deed was filed with County Records under Instrument Number 2006-055650 that described the subject property with one metes and bounds legal description, as one parcel (Exhibit B.13).

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Aggregation Requirements pursuant to MCC 35.2275(A)(2): In February 1990, Tax Lot 400 was owned by Palmer & Helland (Exhibit A.8). The adjacent properties were owned as shown in Figure 1 below:

Since the property was not contiguous to any other ownership interest of Palmer & Helland, it does not require aggregation at this time with any adjacent properties. Figure 1

Lenske & Smith

Axling # d Blum

P # Stewart

Carter Herndon

Given the property is described as a single parcel again as shown in Exhibit B.13 and there are no aggregation requirements for the property, it is a lawfully created property and a Lot of Record.

5. COMMERCIAL FOREST USE – 4 Allowed Use

MCC 35.2220(C) Farm use, as defined in ORS 215.203.

ORS 215.203 Zoning ordinances establishing exclusive farm use zones; definitions.

* * *

(2)(a) As used in this section, “farm use” means the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur- bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof. “Farm use” includes the preparation, storage and disposal by marketing or otherwise of the products or by-products raised on such land for human or animal use. “Farm use” also includes the current employment of land for the primary purpose of obtaining a profit in money by stabling or training equines including but not limited to providing riding lessons, training clinics and schooling shows. “Farm use” also includes the propagation, cultivation, maintenance and harvesting of aquatic, bird and animal species that are under the jurisdiction of the State Fish and Wildlife Commission, to the extent allowed by the rules adopted by the commission. “Farm use” includes the on-site construction and maintenance of equipment and facilities used for the activities described in this subsection. “Farm use” does not include the use of land subject to the provisions of ORS chapter 321, except land used exclusively for growing cultured Christmas trees as defined in subsection (3) of this section or land described in ORS 321.267 (3) or 321.824 (3).

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* * *

(3) “Cultured Christmas trees” means trees: (a) Grown on lands used exclusively for that purpose, capable of preparation by intensive cultivation methods such as plowing or turning over the soil; (b) Of a marketable species; (c) Managed to produce trees meeting U.S. No. 2 or better standards for Christmas trees as specified by the Agriculture Marketing Services of the United States Department of Agriculture; and (d) Evidencing periodic maintenance practices of shearing for Douglas fir and pine species, weed and brush control and one or more of the following practices: Basal pruning, fertilizing, insect and disease control, stump culture, soil cultivation, irrigation.

Applicant: Applicants seek to construct a farm building on the subject site that will be used for the storage and maintenance of equipment and various agricultural products used in conjunction with an existing commercial Christmas tree farming operation that is conducted on the subject site and a portion of an adjoining parcel. Current on-site cultivation activities include: periodic tree shearing; weed and brush control; Basal pruning; fertilizing; insect and disease control; stump culture; soil cultivation; and irrigation. The farm building will also be used for preparation, storage and sale of Christmas trees, fresh wreaths and other related items that are assembled using raw materials that have been cultivated on the subject property.

The code makes both a “farm use” and “buildings customarily provided in conjunction with farm use” allowed uses in the CFU-4 zone. MCC 35.2256(C) makes a “farm use” an allowed use in the CFU-4 zone, as follows:

Comment: The applicant is proposing a “farm use” within the meaning if ORS 215.203. The Multnomah County Code adopts and incorporates the definition of “farm use” contained in ORS 215.203(2), which states:

(a) As used in this section, “farm use” means the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur-bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use 1or animal husbandry or any combination thereof. “Farm use” includes the preparation, storage and disposal by marketing or otherwise of the products or by-products raised on such land for human or animal use. “Farm use” also includes the current employment of land for the primary purpose of obtaining a profit in money by stabling or training equines including but not limited to providing riding lessons, training clinics and schooling shows. “Farm use” also includes the propagation, cultivation, maintenance and harvesting of aquatic, bird and animal species that are under the jurisdiction of the State Fish and Wildlife Commission, to the extent allowed by the rules adopted by the commission. “Farm use” includes the on-site construction and maintenance of equipment and facilities used for the activities described in this subsection. “Farm use”

1 LUBA has held that the raising and harvesting of cultured Christmas trees is a farm use. Harwood v. Lane County, 23 Or LUBA 191, 194-95 (1992); Forster v. Polk County, 23 Or LUBA 420 (1992). These cases further note that the “used exclusively” language in the statute relates to taxation issues and does not prevent accessory dwellings or related structures from being sited on the property.

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does not include the use of land subject to the provisions of ORS chapter 321, except land used exclusively for growing cultured Christmas trees as defined in subsection (3) of this section or land described in ORS 321.267 (3) or 321.824 (3). (Emphasis added).

(b) “Current employment” of land for farm use includes:

(A) Farmland, the operation or use of which is subject to any farm- related government program; (B) Land lying fallow for one year as a normal and regular requirement of good agricultural husbandry; (C) Land planted in orchards or other perennials, other than land specified in subparagraph (D) of this paragraph, prior to maturity; (D) Land not in an exclusive farm use zone which has not been eligible for assessment at special farm use value in the year prior to planting the current crop and has been planted in orchards, cultured Christmas trees or vineyards for at least three years; (E) Wasteland, in an exclusive farm use zone, dry or covered with water, neither economically tillable nor grazeable, lying in or adjacent to and in common ownership with a farm use land and which is not currently being used for any economic farm use; (F) Except for land under a single family dwelling, land under buildings supporting accepted farm practices, including the processing facilities allowed by ORS 215.213 (1)(x) and 215.283 (1)(u) and the processing of farm crops into biofuel as commercial activities in conjunction with farm use under ORS 215.213 (2)(c) and 215.283 (2)(a); (G) Water impoundments lying in or adjacent to and in common ownership with farm use land; (H) Any land constituting a woodlot, not to exceed 20 acres, contiguous to and owned by the owner of land specially valued for farm use even if the land constituting the woodlot is not utilized in conjunction with farm use; (I) Land lying idle for no more than one year where the absence of farming activity is due to the illness of the farmer or member of the farmer’s immediate family. For purposes of this paragraph, illness includes injury or infirmity whether or not such illness results in death; (J) Any land described under ORS 321.267 (3) or 321.824 (3); (K) Land used for the primary purpose of obtaining a profit in money by breeding, raising, kenneling or training of greyhounds for racing; and (L) Land used for the processing of farm crops into biofuel, as defined in ORS 315.141, if: (i) Only the crops of the landowner are being processed; (ii) The biofuel from all of the crops purchased for processing into biofuel is used on the farm of the landowner; or (iii) The landowner is custom processing crops into biofuel from other landowners in the area for their use or sale.

(c) As used in this subsection, “accepted farming practice” means a mode of operation that is common to farms of a similar nature, necessary for the

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operation of such farms to obtain a profit in money, and customarily utilized in conjunction with farm use.

The Multnomah County code refers to these types of farm uses as “agricultural buildings,” as follows:

Agricultural Building – Pursuant to ORS 455.315(2) [2005] and any amendments made thereto, means a structure located on a farm and used in the operation of the farm for: (a) Storage, maintenance or repair of farm machinery and equipment; (b) The raising, harvesting and selling of crops; (c) The feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur-bearing animals or honeybees; (d) Dairying and the sale of dairy products; or (e) Any other agricultural or horticultural use or animal husbandry, or any combination thereof, including the preparation and storage of the produce raised on the farm for human use and animal use and disposal by marketing or otherwise. (f) Agricultural building does not include a dwelling, a structure used for a purpose other than growing plants in which 10 or more persons are present at any one time, a structure regulated by the State Fire Marshal pursuant to ORS chapter 476, a structure used by the public, or a structure subject to sections 4001 to 4127, title 42, United States Code (the National Flood Insurance Act of 1968) as amended, and regulations promulgated thereunder.

ORS 215.203(3) defines “cultured Christmas trees” as follows:

Mr. Jim Palmer, the prior owner and farm operator of the property, began cultivating Christmas trees on the property in the mid 1970’s. Applicants purchased the subject property from Mr. Palmer in December, 2005 with the intent to continue cultivating Christmas trees on the site. (Exhibit 1.) The Multnomah County Assessment and Taxation Division’s records reflect that the entire 6.7 acres that comprises the subject property is currently in agricultural deferral. A property is considered to be in farm use if it receives a farm tax deferral.

When Applicants purchased the property from Mr. Palmer there were approximately 1,000 trees on the site ranging from 1-foot to 8-feet tall. Approximately 200 of the existing trees were of marketable size and quality. On or about April, 2006 Applicants began weed and brush control around the existing marketable trees; trimming and shaping of larger trees that were ready for harvest; pruning of smaller trees to prepare them for future harvest; removal of dead Christmas

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trees and volunteer alder and hemlock species; removal of stumps remaining from previously harvested Christmas trees; spraying and fertilizing the existing trees; and soil cultivation to prepare the property for future planting. (Exhibit 2).

In the late spring of 2006 Applicants began planting a 2-acre portion of the property with approximately 1,800 Noble fir Christmas trees on 6-foot centers.2 (Exhibit 2). Applicants plan to harvest approximately one-half acre of marketable trees every other year for the first several years of operations. Applicants reasonably anticipate that sale price per tree will range from $30 to $40, for a gross income of $18,000 to $24,000 per harvest. Applicants’ farm plan for the property calls for planting approximately 6,000 - 7,000 trees on a net acreage of approximately 5 to 6-acres. As the tree farm is brought into full production trees will be harvested every year to produce income. Applicants anticipate producing additional income through the assembly and sale of wreaths, swags, centerpieces and other miscellaneous fresh Christmas tree greenery using materials grown on the site. The foregoing evidence conclusively establishes that the subject property is currently employed for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops as required by ORS 215.203(2)(a).

No provision in ORS 215.203(2) defines the term “facilities.” The term is also not defined by administrative rule. In this absence, the decision maker is required to give words of common usage their plain, natural, and ordinary meaning. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993). Looking to the dictionary definition of “facilities,” the plain, natural, and ordinary meaning of the word “facility” is “something that makes an action, operation, or course of conduct easier.” Webster's Third New Int'l Dictionary, (unabridged ed. 1993). Based on the plain, natural, and ordinary meaning of the word “facilities,” it can be inferred that the term necessarily includes structures that are used to store and maintain equipment used in conjunction with cultivation of farm land, or, in this instance, Christmas trees.

Applicants propose to construct a 36-foot by 36-foot farm structure on the site to store and maintain farm equipment and various agricultural products that will be used in conjunction with the Christmas tree farm operation that is conducted on the subject site and a portion of an adjoining parcel. The structure will also be used for the storage and assembly of wreaths, swags, centerpieces and other miscellaneous fresh Christmas tree greenery using materials grown on the site. The structure will be supplied with an electrical service to power required fire safety systems, however no plumbing services will be installed to serve the structure. Equipment and materials that will be stored and maintained in the structure will include: agricultural herbicides and fertilizers; hand spraying equipment; chainsaws; miscellaneous personal safety equipment and rain gear; pruning and shearing tools; miscellaneous hand tools; farm tractors (2); tractor sprayer attachments; lawn mower; brush hog; utility trailer; a truck licensed for farm use; Christmas tree baler; a wreath making machine; storage facilities for wreath making equipment and supplies; work tables for wreath making activities; storage facilities for materials and equipment necessary to maintain and repair farm equipment; and work tables for maintenance and repair of farm equipment. A floor use plan for the proposed building is included herewith. (Exhibit 3.)

OAR 660-033-0120, Table 1, lists “[o]ther buildings customarily provided in conjunction with farm use[,]” as allowed uses. No provision in OAR 660-033-0120 or OAR 660-033-0120, Table 1 defines the term “customarily.” In this instance, the decision maker is similarly required to give

2 The normal industry practice for planting Christmas trees is to space them on 5-foot centers. Applicants have planted their trees on 6-foot centers to facilitate weed control and mowing between the trees with motorized farm equipment and reduce fire risks on the property.

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the term its plain, natural and ordinary meaning. PGE, Supra. The ordinary meaning of the word “customary” is “based on or established by custom, 2 : commonly practiced, used, or observed.” Based on the plain, natural, and ordinary meaning of the word “customary,” it can be inferred that proposed structure, which will be used to store and maintain equipment and materials used in conjunction with cultivation of Christmas trees is, a building that is “customarily provided in conjunction with farm use,” or, in this instance, Christmas trees.

This conclusion is supported by the written testimony of Mr. Michael Bondi and Mr. Chal Langren (Exhibits 4 & 5.)

Their statements notwithstanding, there is nothing in ORS 215.203, OAR 660-033-0120, OAR 660-033-0120, Table 1 or MCC Chapter 35.2220 that requires or authorizes the decision maker to consider or balance the size or intensity of a farm operation on a property with the nature, scope and character of the machinery, equipment and supplies an individual farm operator elects to purchase and employ to obtain a profit from farming operations on the property. The only factors the decision maker may consider is: 1) whether the property is currently employed for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops; and 2) whether it is customary for a Christmas tree farm operator to construct own, utilize and maintain agricultural machinery and supplies in conjunction with the cultivation and harvest of 60,000 Christmas trees. The evidence conclusively demonstrates that Applicants have satisfied both of these criteria and that the proposed structure is a permitted use in the CFU-4 zone.

Staff: The applicant is proposing a building in conjunction with a farm use. County Assessment lists the property as in the unzoned farm land deferral program. The applicant has provided several photographs, included with Exhibit A.3 as Applicant Exhibit 2, showing the Christmas tree farming operation on the subject property. A staff site visit on November 20, 2008 verified that the portion of the property that had been cleared, except the area where the proposed building will be, has been planted in a crop of Christmas trees.

The applicant has submitted two letters from Christmas tree experts (Applicant Exhibit 4 and 5) that address the need for a building and the equipment in conjunction to a Christmas tree farm operation. The first letter, dated August 14, 2008, from Michael C. Bondi, Clackamas County Extension Agent – Forestry, Christmas Trees and Staff Chair), stated that it is common to need a building similar to the proposed building for this type of Christmas tree operation. In a letter dated September 12, 2008, Chal Landgren, Christmas Tree Specialist, Extension Service North Willamette Research and Extension Center stated that, “… based on my observations and personal experience working with land owners on Christmas tree and forestry operations, I would consider the equipment and miscellaneous items employed by the Knittle’s to be customary and consistent with other similarly engaged tree farms.”

Staff finds that the applicant has demonstrated the proposed building to be a agricultural farm building. A condition will require that it be used as a farm building. However a building permit will be required due to CFU-4 Exception to the Secondary Fire Safety Zone standards [MCC 35.2310(B)(1)], as discussed in Section 8 of this decision. The Exception standards require the building to meet International Fire Code Institute Urban– Wildland Interface Code Section 505 Class 2 Ignition Resistant Construction. Thus a building permit will be required to verify that this standard is met.

An application for a building in the CFU-4 District must be reviewed as a Type II land use case, when the proposed building is greater than 100 feet the dwelling (see findings in Sections 7.1 and

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7.2 of this decision). Additional Exceptions and Adjustment must be reviewed as a Type II land use case. This was reviewed as required by MCC 37.0530 (discussed in Section 3 of this decision). The applicant must demonstrate that the development meets CFU-4 development standards, fire safety zone standards, exception to the secondary firebreak criteria and adjustment criteria. Findings addressing these requirements are in the following sections of this decision.

6. COMMERCIAL FOREST USE FOREST PRACTICES SETBACKS AND FIRE SAFETY ZONES

MCC 35.2256: The Forest Practice Setbacks and applicability of the Fire Safety Zones is based upon existing conditions, deviations are allowed through the exception process and the nature and location of the proposed use. The following requirements apply to all structures as specified:

Table 1

Use Forest Practice Setbacks Fire Safety Zones Front Property Line Adjacent All Other Fire Safety Zone Nonconforming Description of use to County Setbacks Requirements Setbacks And location Maintained (feet) (FSZ) Road (feet) Other Structures Primary & Secondary N/A 30 130 required

(A) Reductions to a Forest Practices Setback dimension shall only be allowed pursuant to approval of an adjustment or variance. (B) Exception to the Secondary Fire Safety Zone shall be pursuant to MCC 35.2310 only. No reduction is permitted for a required Primary Fire Safety Zone through a nonconforming, adjustment or variance process. (C) The minimum forest practices setback requirement shall be increased where the setback abuts a street having insufficient right-of-way width to serve the area. The county Road Official shall determine the necessary right-of-way widths based upon the county “Design and Construction Manual” and the Planning Director shall determine any additional setback requirements in consultation with the Road Official. (D) Fire Safety Zones on the Subject Tract (1) Primary Fire Safety Zone (a) A primary fire safety zone is a fire break extending a minimum of 30 feet in all directions around a dwelling or structure. Trees within this safety zone shall be spaced with greater than 15 feet between the crowns. The trees shall also be pruned to remove low branches within 8 feet of the ground as the maturity of the tree and accepted silviculture practices may allow. All other vegetation should be kept less than 2 feet in height. (b) On lands with 10 percent or greater slope the primary fire safety zone shall be extended down the slope from a dwelling or structure as follows:

Percent Slope Distance In Feet Less than 10 No additional required Less than 20 50 additional

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Less than 25 75 additional Less than 40 100 additional

(2) Secondary Fire Safety Zone A secondary fire safety zone is a fire break extending a minimum of 100 feet in all directions around the primary safety zone. The goal of this safety zone is to reduce fuels so that the overall intensity of any wildfire is lessened. Vegetation should be pruned and spaced so that fire will not spread between crowns of trees. Small trees and brush growing underneath larger trees should be removed to prevent the spread of fire up into the crowns of the larger trees. Assistance with planning forestry practices which meet these objectives may be obtained from the State of Oregon Department of Forestry or the local Rural Fire Protection District. The secondary fire safety zone required for any dwelling or structure may be reduced under the provisions of 35.2310. (3) No requirement in (1) or (2) above may restrict or contradict a forest management plan approved by the State of Oregon Department of Forestry pursuant to the State Forest Practice Rules; and (4) Required Primary and Secondary Fire Safety Zones shall be established within the subject tract as required by Table 1 above. (5) Required Primary and Secondary Fire Safety Zones shall be maintained by the property owner in compliance with the above criteria listed under (1) and (2).

Applicant: The required front property line setback adjacent to a county maintained road is 30 feet. The required side and rear minimum property line setbacks are 130 feet. The proposed structure will be set back approximately 420 feet from SE Louden Road and 770 feet from the rear property line. Exhibit 6. The property does not provide sufficient width to allow compliance with the 130-foot minimum side yard setback requirement. Per MCC Chapter 35.2256(A), reductions to a forest practices setback dimension are only allowed pursuant to approval of an adjustment or variance. The applicable adjustment approval criteria for reduction to the forest practices setback requirement are discussed below. MCC 35.7611.

Applicants intend to comply with the primary fire safety zone setback standards described in MCC Chapter 35.2256(D)(1)(a). Applicants are not requesting an adjustment to the Primary Fire Safety Zone. Applicants anticipate that they will be required to demonstrate compliance with the applicable standards for primary fire safety zones as a condition of the issuance of a certificate of occupancy for the structure.

MCC Chapter 35.2256(D)(1)(a) requires additional primary fire safety zone setbacks for lands slopes greater than 10 percent. The slope in the area where the applicants propose to site the structure is approximately 4 percent. The Multnomah County Soil Survey indicates that the soil type in the area is Bull Run silt loam with 3 to 8 percent slopes. Based on the foregoing, no increase is required in the primary fire safety zone setback.

Staff: The proposed building is considered an “Other Structure” shown in Table 1 as requiring 130 foot forest practices setbacks. Forest practices setbacks are measure from the property line to the proposed building as indicated in the Table 1. Setbacks are measure horizontally from the property line to the closest point of the building. For many buildings that closet point is the roof overhang. According to the submitted site plan the proposed forest practices setbacks for the building are more than 400 feet for the front and rear yards (Exhibit A.2). The west side yard is

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proposed to be 78 feet (measured from the roof overhang) and the southeast side yard approximately 98 feet (the setback maybe be a few feet less due to roof overhangs). Both of these side yards do not meet the required 130 foot setback, thus an Adjustment must be obtained as required by Subsection (A). The setback due east will be slightly more than 130 feet. The applicant has requested an Adjustment to Forest Practices Setback as part of this case which has met the criteria and been approved as part of the decision for this case (see Section 9 and 10 of this decision)

The fire safety zones are measured to the tract boundary as stated in Subjection (D). The slope within 30 feet of the proposed building is less than 10 percent which was confirmed by a staff site visit on November 20, 2008. The primary fire safety zone of 30 feet on all side of the proposed building can be met as shown on the site plan (Exhibit A.2). The secondary fire safety zone can be met on the tract for all sides of the building except the southeast side with approximately 98 foot distance to the property at the closest point, the secondary fire safety zone will be 68 feet. An exception to the secondary has been approved as part of the decision for this case (see Section 8 of this decision).

7. CFU DEVELOPMENT STANDARDS FOR DWELLINGS AND STRUCTURES

7.1. MCC 35.2261: All dwellings and structures shall comply with the approval criteria in (B) through (E) below except as provided in (A):

MCC 35.2261(A) For the uses listed in this subsection, the applicable development standards are limited as follows: * * * (3) Accessory buildings. * * * (b) Accessory buildings located farther than 100 feet from the existing dwelling: Shall meet the development standards of MCC 35.2261(B)&(C);

Staff: The applicant indicates in the narrative for a later finding that the structure is 125 feet from the dwelling. While the proposed structure is not a structure that is accessory to the dwelling, it is a structure accessory to the farm use on the property. Findings addressing development standards of MCC 35.2261(B)&(C) are in the following sections of this decision.

7.2. MCC 35.2261(B) New dwellings, replacement dwellings greater than 100-feet from an existing dwelling, and accessory buildings (or similar structures) greater than 100-feet from a dwelling shall meet the following standards in (1) and (3) or (2) and (3):

Staff: The applicant demonstrates in the following findings that Subsections (2) and (3) have been met.

7.2.1. MCC 35.2261(B)(2) The structure shall satisfy the following Option 2, Discretionary Type 2 Permit requirements: (a) It has the least impact on nearby or adjoining forest or agricultural lands and satisfies the standards in MCC 35.2256;

Applicant: Applicants are the owners of the property to the west. The property contains one dwelling unit that is occupied by the applicants. The property is presently in forest deferral.

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Applicants Christmas tree planting plan proposes to utilize approximately one (1) acre +/- of the property for future Christmas tree production.

The property to the southeast of the subject site, tax lot 500, contains approximately 1.8 acres. The primary use on the property is residential.

The property to the northeast of the subject site, tax lot 600, contains approximately 9.3 acres. The property is in forest deferral, but the primary use on the property is residential.

The properties to the south of the subject site across SE Louden Road (Map 1S 5E 07A, tax lots 400 and 500) each contain approximately 5 acres. The primary uses on both properties are residential.

The parcel to the north, tax lot 100, is an 80-acre tract that is in forest deferral. This is the only parcel in the immediate area that is actively managed for forest practices. None of the adjoining properties are presently being employed or otherwise managed for farm uses.

Since the subject site is not wide enough to accommodate the 130 foot side yard setback proscribed by the code’s forest practice standards, the applicants propose to shift the farm structure’s location closer to tax lot 300. By doing so the structure will be located more than 90 feet from the properties to the east. This will allow the applicants to establish the maximum fire safety zone between the proposed structure and the adjoining uses to the east. The proposed location also allows for the maximum fire safety buffer to the residential use to the northeast and the forest lands to the north.

Based on the foregoing, applicants have established that the proposed location of the farm structure will have the least impact on nearby forest lands.

Staff: The proposed building is located in a cleared area on the property about a third of the length of the property back from the road. This site was chosen because it is adjacent to the dwelling and other buildings on the tract, thus the building will be easier to monitor for security and fire from the dwelling at this location. The area between the road and the proposed building location is planted in Christmas Trees, thus a building closer to the road would impact the farming on the property and reduce security. Locating the building further to the north would begin to impact the forested areas on the property, the building would be closer to the forested land on the adjacent property and the slope becomes steeper requiring an increase to the primary fire safety zone. The proposed site is the best site on the property to minimize impacts to forested areas, the farmed area, for security, and for fire protection.

The primary and secondary fire safety zones on the tract, between the forested area and the proposed structure will be met. However to the southeast, where an exception to secondary fire safety zone is necessary, the distance measures 95 feet from the proposed building to that corner of the property. Thus an Exception to the secondary fire safety zone is needed for this area. The area east of that corner on the adjacent property is a cleared, unforested area. All other fire safety zone areas will be met including due east of the structure and more importantly in the direction of forested lands on the subject property and on the adjacent property. The properties adjacent to these properties are not in farm deferral thus there will be no impacts to adjoining farmland.

The standards in MCC 35.2256 are met through conditions related to maintaining fire safety zones and building code standards (International Fire Code Institute Urban– Wildland Interface Code

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Section 505 Class 2 Ignition Resistant Construction) as required by the exception criteria. Given the establishment of fire safety zones, the Wildland Interface building permit requirements and distance between the proposed structure and forested area on adjoining properties, the proposed structure meets the least impact on nearby or adjoining forest through conditions. This criterion is met through conditions requiring the maintenance of fire safety zones and building to the Wildland Interface standards.

7.2.2. MCC 35.2261(B)(2)(b) Adverse impacts on forest operations and accepted farming practices on the tract will be minimized;

The proposed farm structure has been located on the subject property in a manner that will allow it to be connected to an existing driveway located on the adjoining parcel to the west. The proposed location will require the construction of a new access drive across the subject property that is approximately 140 feet in length. In contrast, if a new driveway were constructed to serve the proposed accessory farm structure from the Louden Road frontage, the new driveway would measure approximately 400 feet in length. By connecting the proposed structure to the existing access way on the property to the west applicants have significantly minimized the amount of land necessary to provide access to the structure. In turn, applicants have reduced by a third the amount of land that would have otherwise been lost to the cultivation of Christmas trees on the site. Based on the foregoing, applicants have satisfied this criterion.

Staff: The about two-thirds of the subject tract is currently in forestry use. The proposed building is located in an area that was previously cleared, with a cleared primary fire safety zone surrounding the proposed building location. Thus the proposed building will not impact forest operations on the property. The building will be used for storage related to the farm use, Christmas tree farm, on the property. For that reason the proposed farm building will not adversely impact the farming practices on the tract but benefit the farm practices. Given the location in a cleared area and being used for farm purposes this criterion has been met.

7.2.3. MCC 35.2261(B)(2) (c) The amount of forest land used to site the dwelling or other structure, access road, and service corridor is minimized;

Applicant: As noted above, the primary means of access to the proposed accessory farm structure will be via an existing driveway located on the property to the west. The new driveway area measures approximately 140 feet in length. In contrast, if a new driveway were constructed to serve the proposed accessory farm structure from the Louden Road frontage, the new driveway would measure approximately 400 feet in length. By connecting the proposed structure to the existing access way on the property to the west applicants have significantly minimized the amount of land necessary to provide access to the structure. Based on the foregoing, applicants have satisfied this criterion.

Staff: The area in which the proposed building will be located as been cleared for several years. No forest land is being used to site the structure. This criterion is met.

7.2.4. MCC 35.2261(B)(2) (d) Any access road or service corridor in excess of 500 feet in length is demonstrated by the applicant to be necessary due to physical limitations unique to the property and is the minimum length required; and

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Applicant: As noted above, the primary means of access to the proposed farm structure will be via an existing driveway located on the property to the west. The driveway measures approximately 358 feet in length. Based on the foregoing, applicants have satisfied this criterion.

Staff: The applicant states the driveway measure approximately 358 feet in length. That is the driveway serving the dwelling. If an additional driveway length is established for the proposed building, linking to the existing driveway, that length would be about a 100 feet, thus a total of less than 500 feet in length meeting the requirement. The criterion is met.

7.2.5. MCC 35.2261(B)(3) The risks associated with wildfire are minimized. Provisions for reducing such risk shall include: (a) The proposed dwelling will be located upon a tract within a fire protection district or the dwelling shall be provided with residential fire protection by contract; (b) Access for a pumping fire truck to within 15 feet of any perennial water source of 4,000 gallons or more within 100 feet of the driveway or road on the lot. The access shall meet the driveway standards of MCC 35.2261(E) with permanent signs posted along the access route to indicate the location of the emergency water source;

Applicant: The subject property is located within the Corbett Fire District.

Staff: The applicant has submitted a Fire District Review Fire Flow form completed by Thomas Layton, Chief, Corbett Fire District. The tract is within the Corbett Fire District. There is no stream on the property thus Subsection (b) is not required to be met. The criterion in subsection (a) is met.

7.3. MCC 35.2261(C) The dwelling or structure shall:

(1) Comply with the standards of the applicable building code or as prescribed in ORS 446.002 through 446.200 relating to mobile homes; * * * (3) Have a fire retardant roof; and (4) Have a spark arrester on each chimney.

Applicant: Applicants will obtain all necessary electrical permits from the proper permitting authorities prior to the commencement of any construction activities on the site. The building will not require building permits, as it will be an agricultural exempt structure. The exterior siding and roof of the proposed structure will be constructed using non-combustible metal sheeting. The proposed structure will not have a chimney.

Staff: For most agricultural farm buildings there is no applicable building code, however because this proposed building will need an Exception to the Secondary Fire Safety Zones, the building must be constructed in accordance with the International Fire Code Institute Urban– Wildland Interface Code Section 505 Class 2 Ignition Resistant Construction as adopted August, 1996, or as later amended. Thus a building permit will be required for the proposed building to assure this code is met. Additionally electrical and plumbing permits will be needed if those amenities are installed. The roof will need to be fire retardant and if a chimney is installed in the future it will need to have a spark arrester. A condition will require these standards to be met.

8. EXCEPTIONS TO SECONDARY FIRE SAFETY ZONES

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8.1. MCC 35.2310(A) The secondary fire safety zone for dwellings and structures may be reduced pursuant to the provisions of 35.2310 (B) when: (1) The tract on which the dwelling or structure is proposed has an average lot width or depth of 330 feet or less, or (2) The dwelling or structure is proposed to be located within 130 feet of the centerline of a public or private road serving two or more properties; or (3) The proposed dwelling or structure is proposed to be clustered with a legally existing dwelling or structure.

Applicant: In this case, the proposed structure is proposed to be clustered with a legally existing dwelling or structure. We understand that the term “clustered,” although undefined, refers to structures that are within 130 feet of one another. In this case, the proposed structure will be located within 125 feet of the applicant’s home.

Staff: The proposed structure would be within 125 feet of the dwelling. The building will be located between the dwelling and another storage shed (woodshed) on the tract. The dwelling was established through a building permit issued in 1981 (Exhibit B.15) and the woodshed was established in 1990 when woodsheds were an outright use in the MUF zone district. Given the proximity to the dwelling and other building, the proposed building is clustered with the existing development on the tract. Thus the secondary fire safety zone may be reduced under the provisions of MCC 35.2310 (B) which are addressed in the following finding.

8.2. MCC 35.2310(B) Exceptions to secondary fire safety zones shall only be granted upon satisfaction of the following standards:

8.2.1. MCC 35.2310(B) (1) If the proposed secondary fire safety zone is between 50 and 100 feet, the dwelling or structure shall be constructed in accordance with the International Fire Code Institute Urban– Wildland Interface Code Section 505 Class 2 Ignition Resistant Construction as adopted August, 1996, or as later amended, or (2) If the proposed secondary fire safety zone is less than fifty feet, the dwelling or structure shall be constructed in accordance with the International Fire Code Institute Urban- Wildland Interface Code Section 504 Class 1 Ignition Resistant Construction as adopted August, 1996, or as later amended, and

Applicant: Applicants are requesting a secondary fire safety setback of 78 feet, which would correspond with the 30 foot primary fire safety setback zone. Applicants intend to construct the farm structure in accordance with the International Fire Code Institute Urban-Wildland Interface Code Section 504 Class 1 Ignition Resistant Construction as adopted August 1996, or as later amended. Matters regarding Class 1 Ignition Resistant Construction are discussed in more detail below.

Staff: The secondary fire safety zone can be met on the tract for all directions from the building except the southeast corner (Exhibit A.2). While the building will be 78 feet from the western property line, that adjacent property is in the same ownership tract, thus the secondary fire safety zone can be established on the property for this building. The proposed building will be approximately 98 feet from the property line to the southeast, a property line corner in this area. As shown on the site plan, this corner intrudes into the secondary fire break area for a small corner bite out of the fire break. Thus at the closest point the secondary firebreak would need to reduced through the exception to 68 feet at the closest point and then more as the fire break moves down the property lines to the south and to the east. Given the the secondary fire safety zone will be

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reduced to 68 feet through this Exception the proposed building will meet Subsection (1), thus the building will be required through a condition to meet the International Fire Code Institute Urban– Wildland Interface Code Section 505 Class 2 Ignition Resistant Construction as adopted August, 1996, or as later amended. This standard is met through a condition.

8.2.2. MCC 35.2310(B)(3) There shall be no combustible fences within 12 feet of the exterior surface of the dwelling or structure; and

Applicant: No combustible fences are proposed.

Staff: A condition will require no combustible fences within 12 feet of the exterior surface of the structure. This standard is met through a condition.

8.2.3. MCC 35.2310(B)(4)A dwelling shall have a central station monitored alarm system if the secondary fire safety zone equivalents of MCC 35.2310 (B) (1) are utilized, or (5) A dwelling shall have a central station monitored 13D sprinkler system if the secondary fire safety zone equivalents of MCC 35.2310 (B) (2) are utilized. Exception: Expansions of existing single family dwellings as allowed by MCC 35.2225 (A) shall not be required to meet this standard, but shall satisfy the standard of MCC 35.2261(C)(3).

Applicant: No dwelling is proposed. This criterion is not applicable.

Staff: We concur with the applicant these standards are not applicable because the proposed building is not a dwelling.

8.2.4. MCC 35.2310(B)(6) All accessory structures within the fire safety zone setbacks required by MCC 35.2256, and all accessory structures within 50 of a dwelling, shall have a central monitored alarm system.

Applicant: The proposed structure will be located approximately 125 feet from the nearest dwelling, which is located on tax lot 300. Accordingly, this standard is not applicable to this application.

Staff: We concur that the dwelling is more than 50 feet from the proposed building and not within 50 feet of any other structure, thus this standard does not apply.

8.2.5. MCC 35.2310(B)(7) All accessory structures within 50 feet of a building shall have exterior walls constructed with materials approved for a minimum of one-hour-rated fire-resistive construction, heavy timber, log wall construction or constructed with noncombustible materials on the exterior side.

Applicant: As noted above, the proposed structure will be located approximately 125 feet from the nearest dwelling, which is located on tax lot 300. The foregoing notwithstanding, the structure will be constructed in accordance with the International Fire Code Institute Urban-Wildland Interface Code Section 504 Class 1 Ignition Resistant Construction as adopted August 1996, or as later amended.

Staff: There are no building is within 50 feet of the proposed structure, thus this standard does not apply.

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8.2.6. MCC 35.2310(B)(8) When a detached accessory structure is proposed to be located so that the structure or any portion thereof projects over a descending slope surface greater than 10 percent, the area below the structure shall have all underfloor areas enclosed to within 6 inches of the ground, with exterior wall construction in accordance with Section 504.5 of the International Fire Code Institute Urban– Wildland Interface Code Class 1 Ignition Resistant Construction as adopted August, 1996, or as later amended, or underfloor protection in accordance with Section 504.6 of that same publication. Exception: The enclosure may be omitted where the underside of all exposed floors and all exposed structural columns, beams and supporting walls are protected as required for exterior one-hour-rated fire- resistive construction or heavy-timber construction.

Applicant: As previously discussed, the slope in the area where the structure will be sited is approximately 4 percent. The foregoing notwithstanding, there will not be any underfloor area because applicants propose to construct the farm structure with a compacted aggregate gravel floor.

Staff: The slope is less than 10 percent for the proposed building site. This standard does not apply.

9. ADJUSTMENT

9.1. MCC 35.7606 (A) Dimensional standards that may be modified under an Adjustment review (modified no more than 40 percent) are yards, setbacks, forest practices setbacks, buffers, minimum front lot line length, flag lot pole width, cul-de-sac length, cul-de-sac turnaround radius, and dimensions of a private street, except the following: (1) Reduction of yards/setback/buffer requirements within the Significant Environmental Concern (SEC) and Willamette River Greenway (WRG) overlay districts and the Commercial Forest Use fire safety zone are not allowed under the Adjustment process; and (2) Reduction of yards/setback/buffer requirements within the Hillside Development, Large Fills, Mineral Extraction, and Radio and Television Transmission Towers Code Sections and any increase to the maximum building height shall only be re-viewed as Variances; and (3) Minor modification of yards/setbacks/buffers in the off-street parking and design review standards are allowed only through the “exception” provisions in each respective Code section.

Applicant: The applicant is seeking a 40% adjustment to the 130 foot secondary “forest practices setback” required by MCC 35.2256, Table 1.

Staff: The applicant is requesting a 40 percent maximum reduction to the forest practices setback as provided for under MCC 35.7606 (A). The applicant proposes a minimum 78 foot setback to the western property line and a minimum 98 foot setback (may be a few feet less due to roof overhangs) to the eastern property line (Exhibit A.2). The forest practices setback requires a minimum of 130 feet, thus reducing the setback to 78 feet or more meets the 40 percent maximum reduction requirement for an Adjustment. Condition of approval will require that the building be no closer than 78 feet from the western property line, measured from the roof overhang, horizontally.

9.2. MCC 35.7611 Adjustment Approval Criteria

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The Approval Authority may permit and authorize a modification of no more than 40 percent of the dimensional standards given in MCC 35.7606 upon finding that all the following standards in (A) through (E) are met:

Applicant: The applicant is seeking a 40% adjustment to the 130 foot secondary “forest practices setback” required by MCC 35.2256, Table 1.

Staff: As discussed in the previous finding the proposed setbacks meet the requirement for an Adjustment of no more than 40 percent of the dimensional standards given in MCC 35.7606 (finding above in Section 9.1 of this decision). The following findings demonstrate that the proposal meets the standards in subsection (A) through (E).

9.2.1. MCC 35.7611 (A) Granting the adjustment will equally or better meet the purpose of the regulation to be modified; and

Applicant: The subject property’s front lot width is approximately 217 feet. The property is approximately 240 feet wide at the point where the proposed structure will be located. As applied to the subject property, the 130-foot forest practices setback requirement effectively prohibits any permitted use on the site that includes the construction of any structure, of any size. The surrounding properties, as well as the majority of properties located within the commercial forest district, possess sufficient acreage and dimensional measurements to allow the placement of similarly sized accessory structures that are incidental to permitted uses in the district.

The property’s present configuration was established by deed in 1968. See, Multnomah County Planning File No. T2-05-046. The property’s current dimensions existed at the time applicants purchased the property. Applicants have not taken any actions since purchasing the property that have made it impossible to site any allowed structure on the site in compliance with the 130 foot side yard setback standard.

The requested variance will not be detrimental to the public welfare or injurious to property in the vicinity or zoning district in which the property is located because the applicants will maintain a 30-foot primary fire safety zone around the proposed structure. Additionally, the structure will be constructed with a Class A roof assembly and 1-hour firewalls.

Staff: The purpose of the 130 forest practices setbacks is to prevent impacts from a proposed building on the forest practices on adjacent properties and vise versa. The adjacent property to the west is part of the tract. For the adjacent property to the east, the forested area is be more that 130 feet from the proposed building. Additionally, the exception requirement to meet International Fire Code Institute Urban– Wildland Interface Code Section 505 Class 2 Ignition Resistant Construction as adopted August, 1996 will provide additional protect from a wildfire. Given the distance to forested areas and the additional fire protection, the standard that the proposal equally or better meet the purpose of the forest practice setback is met. This criterion is met.

9.2.2. MCC 35.7611 (B) Any impacts resulting from the adjustment are mitigated to the extent practical. That mitigation may include, but is not limited to, such considerations as provision for adequate light and privacy to adjoining properties, adequate access, and a design that addresses the site topography, significant vegetation, and drainage; and

Applicant: The forest practices setback requirements are not intended to address the light preservation, privacy, access, topography and drainage considerations that are ordinarily

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associated with side yard setback requirements. This fact notwithstanding, the nearest dwelling is located in the southwest corner of tax lot 500. The dwelling on tax lot 500 is located approximately 30 feet from the Louden Road right-of-way. The proposed accessory structure will be located approximately 94 feet from the eastern property line and more than 300 feet from the Louden Road right-of-way. As a result, it is reasonable to conclude that the proposed structure will not impede light access to the dwelling on tax lot 500 or create any privacy concerns.

The proposed structure will be accessed via an existing driveway located on the parcel to the west, tax lot 300. There will also be a 60-foot wide and 100-foot plus deep buffer of Christmas trees between the proposed structure and the dwelling located on tax lot 500. Based on the foregoing, it is reasonable to conclude that the proposed structure will not impact the privacy currently enjoyed by the dwelling located on tax lot 500.

The subject property has been historically used for commercial cultivation of Christmas trees. The applicants recently cleared volunteer alders and Christmas trees from the property in preparation to replant the property with Christmas trees. The proposed structure will not require the removal of any significant vegetation on the property.

Storm water on the site drains to a waterway located just north of the property. The structure’s roof drains will be connected to an on-site storm water infiltration facility to minimize storm water runoff impacts to adjoining properties.

Christmas trees on the site will provide a substantial visual buffer more than 130 feet deep between the proposed structure and the parcels located to the south of the subject property across SE Louden Road.

As noted above, the 130-foot forest practices setback requirement effectively prohibits any permitted use on the site that includes the construction of any structure, of any size on the site. The proposed structure is the minimum size necessary to store and maintain the farm machinery, equipment and supplies necessary to operate the proposed Christmas tree cultivation activities on the site.

Staff: Given the setback to the adjacent property to the east is 98 feet at minimum (only a small corner doesn’t meet the setback for the ownership), that the forested area on the adjacent property more than 130 feet from the proposed building meeting intent of forest practice setback and the fact that the building must meet the Urban– Wildland Interface Code, these factors mitigate for the reduction of the forest practices setback. This criterion is met.

9.2.3. MCC 35.7611 (C) If more than one adjustment is being requested, the cumulative effect of the adjustments results in a project which is still consistent with the overall purpose of the zoning district; and

Applicant: This application seeks only one adjustment, which is a reduction to the Forest practices Side Yard Setback. Accordingly, this criterion is not applicable to the request.

Staff: An Adjustment is being requested for both the west and the east setbacks, however the western adjacent property is in the same tract. There should be no cumulative effects given the setback to the adjacent property to the east is 98 feet at minimum (only a small corner doesn’t meet the setback) and that the forested area on that property is located were the forest practice

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setback is effectively met by existing conditions. Additionally, the condition that the building must meet the Urban– Wildland Interface Code reducing potential impacts. This criterion is met.

9.2.4. MCC 35.7611 (D) If the properties are zoned farm (EFU) or forest (CFU), the proposal will not force a significant change in, or significantly increase the cost of, accepted forestry or farming practices on the subject property and adjoining lands; and

Applicant: If approved, the requested adjustment will not force a significant change in, or significantly increase the cost of accepted forestry or farming practices on the subject property or adjoining lands. The proposed accessory structure is intended to serve as a storage and maintenance facility for a commercial Christmas tree farm. Its effect on the subject property will be to increase the operation’s overall efficiency with the goal of decreasing annual operating costs. Regarding impacts on forestry operations on adjoining parcels, the proposed structure will be located more than 500 feet from the nearest lands that are being actively managed for forest production. The structure will be used for storage and maintenance of machinery and equipment that will be used in conjunction with the Christmas tree farm operations on the site. As a result, the structure will not create any new vehicle trips on the site. Applicants will maintain a 30-foot primary fire safety zone around the proposed structure. Additionally, the structure will be constructed with a Class A roof assembly and 1-hour firewalls. Accordingly, fire hazards associated with the structure have been minimized to the greatest extent practicable.

Staff: Given the setback to the adjacent property to the east is 98 feet at the closest point (only a small corner doesn’t meet the setback), that the forested area on that property is located where the forest practice setback is met by the proposed building location and the fact that the building must meet the Urban– Wildland Interface Code; there will be no significant change in, or significantly increase the cost of, accepted forestry or farming practices on the subject property and adjoining lands. This criterion is met.

9.2.5. MCC 35.7611 (E) If in a Rural Residential (RR) or Rural Center (RC) zone, the proposal will not significantly detract from the livability or appearance of the residential area.

Applicant: The subject property is not located within a Rural Residential or Rural Commercial zone. Accordingly, this criterion is not applicable to the requested adjustment.

Staff: The property is in the CFU-4 zone, thus this criterion does not apply.

10. OTHER CFU REQUIREMENTS

10.1. Access

MCC 35.2073: All lots and parcels in this district shall abut a street, or shall have other access deemed by the approval authority to be safe and convenient for pedestrians and for passenger and emergency vehicles, except as provided for Lots of Record at MCC 36.2075(C).

Applicant: The subject property has approximately 217 feet of frontage that provides direct access to SE Louden Road. (Applicant’s Exhibit 6.) Accordingly, applicants have demonstrated compliance with this approval criterion.

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Staff: The applicant will access the proposed building using the existing right-of-way access for the tract with no changes. In a memorandum dated July 21, 2005 (Exhibit 2.21), Alison Winter, County Transportation Planning Specialist, addressed a proposed farm building for the subject property that was not approved at that time. This proposal is the same except the building is smaller and the farm use is better established. Ms Winter stated that, “County Transportation does not object to this proposal and does not have any conditions of approval.” Ken Born, County Transportation Planning Specialist verbally stated on January 23, 2009 that Ms. Winter’s memo continues to be valid for this decision.

11. HILLSIDE DEVELOPMENT

MCC 35.5510 Exempt Land Uses and Activities The following are exempt from the provisions of this Chapter: (A) Development activities approved prior to February 20, 1990; except that within such a development, issuance of individual building permits for which application was made after February 20, 1990 shall conform to site-specific requirements applicable herein. (B) General Exemptions – All land-disturbing activities outlined below shall be undertaken in a manner designed to minimize earth movement hazards, surface runoff, erosion, and sedimentation and to safeguard life, limb, property, and the public welfare. A person performing such activities need not apply for a permit pursuant to this subdistrict, if : (1) Natural and finished slopes will be less than 25 percent; and, (2) The disturbed or filled area is 20,000 square feet or less; and, (3) The volume of soil or earth materials to be stored is 50 cubic yards or less; and, (4) Rainwater runoff is diverted, either during or after construction, from an area smaller than 10,000 square feet; and, (5) Impervious surfaces, if any, of less than 10,000 square feet are to be created; and, (6) No drainageway is to be blocked or have its stormwater carrying capacities or characteristics modified.

Staff: While the proposed building appears to be in the Hillside Development Overlay District the slope in the building location is about four percent (according to the applicant, the county GIS contours and staff site visit). Thus subsection (1) is meet, the slope is less than 25 percent. The amount of grading to site the building will be minimal given the floor will be gravel on the ground. The site may need minor leveling. The proposed building is 36 feet by 36 feet or 1,296 square feet. The disturbed or filled area will be less than 20,000 square feet. The volume of soil or earth materials to be stored in relation to the proposed project will be less than 50 cubic yards. The rainwater runoff diverted, during or after construction, will be from an area smaller than 10,000 square feet and the impervious surface will be less than 10,000 square feet (proposed building is 1,296 square feet). No drainageway will be blocked or have its stormwater carrying capacities or characteristics modified by the proposed development. The proposed development meets the general exemptions standards thus a Hillside Development Permit is not required.

12. CONCLUSION

Staff: The proposed development meets the code criteria and standards, for a farm building in CFU-4 District with an Exception to the secondary fire safety zone and an Adjustment to the forest practices setbacks.

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13. EXHIBITS

13.1. Exhibits Submitted by the Applicant:

Exhibit A.1: Application form (1 page) Exhibit A.2: Site Plan (1 page, oversized) Exhibit A.3: CFU Application Worksheet (2 pages) Exhibit A.4: Narrative with seven attached exhibits (21 pages) Applicant Exhibit 1: County Assessment Map of subject property and legal description (2 pages) Applicant Exhibit 2: Photographs of Christmas tree farm operation (11 pages) Applicant Exhibit 3: Proposed building elevation drawing and floor plan (2 pages) Applicant Exhibit 4: Letter dated August 14, 2008 from Michael Bondi, Extension Agent (1 page) Applicant Exhibit 5: Letter dated September 12, 2008 from Chal Landgren, Christmas Tree Specialist (16 pages) Applicant Exhibit 6: Site Plan (smaller unscaled copy of Exhibit A2 substituted by staff) (1 page) Applicant Exhibit 7: Fire District Review Fire Flow Requirements Form completed by fire chief (4 pages) and Storm Water Certificate completed by Kent Cox PE with attached stormwater drainage control system plans

13.2. Exhibits Provided by the County

Exhibit B.1: County Assessment record and map for the subject property (5 pages) Exhibit B.2: Current County Zoning Map with subject property labeled (1 page) Exhibit B.3: Two 2004 Aerial Photos showing subject property, 10 foot contours and vicinity (2 pages) Exhibit B.4: Warranty Deed (Book 2082, Page 1474 & 1475) recorded 2/25/1988 (Goodling to Palmer/Helland) (3 pages) Exhibit B.5: Deed Information from 1950’s (1 page) Exhibit B.6: Deed Information from 1954 and 1955 (1 page) Exhibit B.7: Parcel Record Card for TL 13, Sec. 6, 1S5E (1 page) Exhibit B.8: Parcel Record Card for TL 14, Sec. 6, 1S5E and Survey (2 pages) Exhibit B.9: Contract Record in Book 644, Page 1175 & 1176 on October 10, 1968 (Goodling to Stewart) (2 pages) Exhibit B.10: 1962 Zoning Map showing F2 Zone (1 page) Exhibit B.11: 1984 Adjustment Agreement Survey (1 page) Exhibit B.12: Other deeds and County Records which are related to the property or adjacent properties (10 pages) Exhibit B.13: Warranty Deed recorded as Instrument Number 2006-055650 (3 pages) Exhibit B.14: Memorandum dated July 21, 2005 from Alison Winter, Transportation Planning Specialist (2 pages) Exhibit B.15: Building Permit card for new Single Family Dwelling from 1981 for the west property on the tract.

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