Supplemental Materials #4 - Laserfiche WebLink

"We do not see anything in Bowman Park or Roth that supports petitioners' argument that the hearings officer incorrectly relied on those cases or that they are inapposite in the present appeal. Bowman Park and Roth stand for the somewhat unremarkable proposition that where a property is to be developed with a commercial or industrial use, the internal driveway on that property that connects the commercial or industrial buildings to the nearest public right of way is properly viewed as part of the commercial or industrial use. Whether that driveway is labeled as "accessory" to the business, as in Roth, or an integral part of the use itself, as in Bowman Park, is not material. Similarly, although the facts in the present appeal differ somewhat from Bowman Park and Roth, because the driveway is not located on the same parcel as the proposed business and the 30-acre parcel the driveway must cross to access NW Dick Road is not zoned for residential use, neither of those factual differences supports a different result. We see nothing in Bowman Park or Roth that leads us to conclude that the outcome of those cases depended on the residential zoning of the proposed driveways, or that the outcome would have been different had the proposed access to the uses been zoned something other than residential. Rather, it was the fact that the proposed businesses were not allowed in the zoning district the driveway crossed. In addition, the fact that petitioners' property is made up of two parcels rather than one parcel does not mean the driveway on their property which is essential to connect the winery with NW Dick Road is properly viewed as something other than a driveway. "Where, as here, the proposal includes establishing and operating a winery under CDC 430-145, the proposed winery use includes the driveway that is necessary to connect that winery with the nearest public right of way. The hearings officer's conclusions that (1) petitioners' proposed winery includes the driveway providing access to the winery, and (2) the winery could not be approved because wineries are not allowed uses in the zoning district that applies to one of the parcels that driveway crosses is correct. McCoy v. Linn County, 90 Or App 271, 275, 752 P2d 323 (1988). There is nothing in the language of any relevant CDC provisions that leads us to a different conclusion. The first assignment of error is denied." (Underlining added.) The findings and decision in Wilson are especially important because they make clear that the fact that the subject site is a single tax lot makes no difference; and, in any case, "[a] tax lot is not necessarily a legal lot." EC 9.0500. With respect to the subject lot, the Wilson decision also makes clear: If a "Drug Treatment Clinic- Non-residential" were to be proposed on the subject site, and the "Drug Treatment Clinic- Non-residential" depended on any portion of the S-DW-zoned area to provide a "Parking Area" in order to meet the code requirements for parking spaces, the "Drug Treatment Clinic - Non-residential" use would include the "Parking Area" use. In such a case, the "Drug Treatment Clinic- Non-residential" use could not be approved because "Drug Treatment Clinics - Non-residential" are not allowed in the S-DW zone. Conclusion Obviously, there may (or may not) be some alternative way to structure to a hypothetical proposal for future development of the subject site as a "Drug Treatment Clinic - Non-residential," but this Zone Verification application is limited to whether or not a "Drug Treatment Clinic- Non-residential" is permitted by right on the subject site, under the current conditions. That use clearly is not permitted, and substantial LUBA decisions support that conclusion. ZVR 20-1 (Conte) Additional Application Material #4 Page 5 January 7, 2010