Hearings Officer: Z0424-25 - May 7, 2026

Notice

File Number:  Z0424-25

Appellant/applicant:   Natalie Voruz

Property Owner:  K & H Fritz Co LLC

Proposal:  The Planner Director decision has been appealed. The applicant is requesting an alteration of a previous NCU approved on the subject property. The site was previously used concurrently as a metal fabrication business and car, motorcycle, truck, and farm/industrial equipment repair shop. The applicant is requesting approval for an asphalt cutting and coring business. The site will serve as a primary base of operations for the business, with primary work functions occurring off-site. Clients will not be visiting the site, and the applicant will be primarily storing materials, including work trucks, and preparing materials for off-site jobs.

Planning Director’s Initial Decision:  Approval, with Conditions

Applicable Zoning and Development Ordinance and Comprehensive Plan Criteria:  ZDO 202, 316, 1206, and 1307.  These criteria may be viewed online.

Site Address and/or Location:  37300 SE Lusted Rd, Boring, OR 97009

Assessor’s Map:  T1S, R4E, Section 26A, Tax Lot(s)  2100, W.M.

Property Size:  Approximately 2.88 acres

Zoning:  RRFF-5 - Rural Residential Farm Forest - 5 Acre

How to obtain additional information

Staff Contact: Mya Ganzer; 503-742-4520 or mganzer@clackamas.us 

A copy of the application, all documents and evidence submitted by or on behalf of the applicant, and applicable criteria are available for inspection at no cost. In addition, a staff report on the application will be available for inspection at no cost at least seven days prior to the hearing. Copies may be purchased at the rate of $2.00 per page for 8 1/2” x 11” or 11” x 14” documents, $2.50 per page for 11” x 17” documents, $3.50 per page for 18” x 24” documents and $0.75 per sq ft with a $5.00 minimum for large format documents, or you may view these materials:

1. By emailing or calling the staff contact; or
2. View online through Accela. After selecting the “Planning” tab, enter the File Number to search. Select Record Info and then select “Attachments” from the dropdown list, where you will find the submitted application.

Community Planning Organization for Your Area: The following recognized Community Planning Organization (CPO) has been notified of this application and may develop a recommendation. You are welcome to contact the CPO and attend their meeting on this matter, if one is planned. If this CPO currently is inactive and you are interested in becoming involved in land use planning in your area, please contact Clackamas Clackamas County Community Engagement at communityinvolvement@clackamas.us. CPO: Cottrell CPO, Contact: COTTRELLCPO@GMAIL.COM 

How to submit testimony on this application

• All interested parties are invited to “attend” the hearing remotely online or by telephone and will be provided with an opportunity to testify orally, if they so choose. One week prior to the hearing, specific instructions will be available online.
• Written testimony received prior to the close will be considered by staff prior to the issuance of the staff report and recommendation on this application.  However, written testimony will continue to be accepted until the record closes, which may occur as soon as the conclusion of the public hearing.
• Written testimony may be submitted by email, fax, or regular mail.  Please include the permit number on all correspondence and address written testimony to the staff contact who is handling this matter.  
• Testimony, argument, and evidence must be directed toward the criteria identified above, or other criteria in the Zoning and Development Ordinance or Comprehensive Plan that you believe apply to the decision.  Failure to raise an issue in person at the hearing or by letter prior to the close of the record, or failure to provide statements or evidence sufficient to afford the Hearings Officer an opportunity to respond to the issue, precludes an appeal to the Oregon Land Use Board of Appeals based on that issue.
• Written notice of the Hearing Officer’s decision will be mailed to you if you submit oral or written testimony or make written request for notice of decision and provide a valid mailing address.

Procedure for the conduct of the hearing

The hearing will be conducted by one of the Land Use Hearings Officers, who are appointed by the Board of County Commissioners to conduct public hearings and issue decisions on certain land use permit applications. The following procedural rules have been established to allow an orderly hearing:

1. The length of time given to individuals speaking for or against an item will be determined by the Hearings Officer prior to the item being considered.
2. A spokesperson representing each side of an issue is encouraged.
3. Prior to the conclusion of the evidentiary hearing, any participant may request an opportunity to present additional evidence, argument, or testimony regarding the application. The Hearings Officer will either continue the hearing or leave the record open for additional written evidence, argument, or testimony.

Notice of Decision on a Type II Land Use Permit

Decision: Approved with Conditions

Permit Type:  Nonconforming Use-Alteration 

File No. Z0424-25

Applicant’s Proposal: The applicant is requesting an alteration of a previous NCU approved on the subject property. The site was previously used concurrently as a metal fabrication business and car, motorcycle, truck, and farm/industrial equipment repair shop. The applicant is requesting approval for an asphalt cutting and coring business. The site will serve as a primary base of operations for the business, with primary work functions occurring off-site. Clients will not be visiting the site, and the applicant will be primarily storing materials, including work trucks, and preparing materials for off-site jobs. 

Decision Date: April 2, 2026

Deadline for Filing Appeal: April 14, 2026, at 4:00 pm. 

Issued By: Mya Ganzer, Planner I, MGanzer@clackamas.us, 503-742-4520

Applicant: Kevin Fritz

Owner of Property: K & H Fritz Co LLC

Zoning: RRFF-5

Assessor’s Map & Tax Lot(s): T1S R4E Section 26A Tax Lot 02100

Site Address: 37300 SE Lusted Rd, Boring, OR 97009

Community Planning Organization (CPO) for Area:

COTTRELL CPO

DAWSON, MIKE

COTTRELLCPO@GMAIL.COM 

Community Planning Organizations (CPOs) are part of the county’s community involvement program. They are advisory to the Board of County Commissioners, Planning Commission and Planning and Zoning Division on land use matters affecting their communities. CPOs are notified of proposed land use actions and decisions on land within their boundaries and may review these applications, provide recommendations or file appeals. If this CPO currently is inactive and you are interested in becoming involved in land use planning in your area, please contact Clackamas County Community Engagement at 503-655-8751.

Opportunity to Review the Record and Decision: The complete decision, including findings and conditions of approval, and the submitted application are available for review online. Select the Planning tab and enter the file number to search. Select Record Info and then select Attachments from the dropdown list, where you will find the submitted application. A copy of the decision, application, all documents and evidence submitted by or on behalf of the applicant, and applicable criteria are available for inspection at no cost by contacting the Planner listed above. Copies of all documents may be purchased at a cost established by the County fee schedule. 

Appeal Rights: This decision will not become final or effective until the period for filing an appeal with the County has expired without the filing of an appeal. Any person who is adversely affected or aggrieved or who is entitled to written notice of the decision pursuant to Subsection 1307.09(C) of the Clackamas County Zoning and Development Ordinance may appeal this decision to the Clackamas County Land Use Hearings Officer by filing a written appeal. An appeal must include a completed Appeal Form and a $250.00 filing fee and must be received by the Planning and Zoning Division by the appeal deadline identified above.

Appeals may be submitted in person during office hours (8:00 am to 4:00 pm Monday through Thursday, closed Friday and holidays). Appeals may also be submitted by email or US mail.   

A person who is mailed written notice of this decision cannot appeal this decision directly to the Land Use Board of Appeals under ORS 197.830.

NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER.

Clackamas County is committed to providing meaningful access and will make reasonable accommodations, modifications, or provide translation, interpretation or other services upon request. Please contact us at 503-742-4545 or email DRenhard@clackamas.us.

503-742-4545:¿Traducción e interpretación? | Требуется ли вам устный или письменный перевод? | 翻译或口译？| Cấn Biên dịch hoặc Phiên dịch? | 번역 또는 통?

Site map:

Permit Expiration

Pursuant to ZDO Subsection 1206.08, approval of an Alteration of a Non-Conforming Use is valid for two years from the date of the final decision. Unless an appeal is filed, the date of the final decision is the “decision date” listed above. During this two-year period, the approval shall be implemented, or the approval will become void. 

Implemented means all major development permits shall be obtained and maintained for the approved alteration of a nonconforming use, or if no major development permits are required to complete the development contemplated by the approved alteration of a nonconforming use, implemented means all other necessary County development permits (e.g., grading permit, building permit for an accessory structure) shall be obtained and maintained.

This is the only notice you will receive of this deadline.

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 parentheses. At all times, the use shall be sited and conducted in compliance with these conditions of approval. Noncompliance may result in code enforcement action or revocation of this permit. 

1. Approval of this land use permit is based on the submitted written narrative and plan(s) filed with the County on 10/13/2025 and additional documents submitted on 2/11/26 and 2/18/26. No work shall occur under this permit, other than which is specified within these documents, unless otherwise required or specified in the conditions below. It shall be the responsibility of the property owner(s) to comply with these documents and the limitation of any approval resulting from the decision described herein. 
2. The use is limited to eight hour work day with one additional hour for lunch periods and will not begin prior to 6am or later than 6pm and shall be limited to Monday through Friday. (ZDO 1206.07(B))
3. Fleet vehicles shall not enter or leave the property before 6am or after 6pm. (ZDO 1206.07(B))
4. The applicant shall maintain all existing fencing or landscaping as shown on the site plan. (ZDO 1206.07(B)) 
5. The applicant shall conduct noise producing work inside the building on site, whenever possible. (ZDO 1206.07(B))

Applicable Approval Criteria

This application is subject to Clackamas County Zoning and Development Ordinance (ZDO) Section(s) 202, 316, 1206, and 1307. 

Public and Agency Comments

Notice was sent to applicable agencies and owners of property within 2,640 feet.  Comments received relating to the applicable approval criteria listed above are addressed in the Findings Section.  Comments from the following were received: 

Cottrell CPO and neighbors

Findings

The findings below identify the standards and criteria that are relevant to this decision, state the facts relied upon in rendering the decision, and explain the justification for the decision.   

1. Background and Overview of Applicant’s Proposal: The applicant is requesting an alteration of a Nonconforming Use (NCU). The site was previously used concurrently as a metal fabrication business and car, motorcycle, truck, and farm/industrial equipment repair shop. The applicant is requesting approval for an asphalt cutting and coring business.

   The subject property was initially zoned R-30 on December 14th, 1967. This zoning designation would have restricted commercial and industrial uses such as metal fabrication and auto repair. In 1971, the County approved an addition of the commercial building on-site, as an NCU under file number ENCU-1-71. The use at the time was metal fabrication and machinery storage and repair. This was approved by the Board of County Commissioners. 

   The property was rezoned to its current zoning designation, RRFF-5, on July 31st, 1978. This zoning district also prohibits the historical and current uses, hence, the use remained nonconforming with applicable base zoning standards. In 1997, there was an approved application for an alteration of a Non-Conforming use. The file, Z1522-97, allowed the use to expand from metal fabrication and machinery repair, to include car, motorcycle, truck, and farm/industrial equipment repair, frame and chassis repair and fabrication, and painting of vehicles. 

   Since 1997, until 2024, ACT Painting and Fabrication has operated on the subject property. After the applicant purchased the property in July of 2025, he has been using it as a base of operation for his business, Fritz Cutting and Coring Inc., an asphalt and concrete cutting business. The applicant states he does not conduct asphalt or concrete cutting work on site, and no customers come to the subject property. The subject property is used to park fleet vehicles and prepare and repair equipment as needed. The applicant states that no more than eight employees, usually five to seven, come to the site for workload distribution and restroom use. The applicants proposed working hours between 6am and 6pm, with shifts not to exceed eight hours, excluding a lunch period, Monday through Friday.  This is consistent with what was approved under the 1997 NCU. The applicant has been operating on site since at least November 2025, and is retroactively seeking approval for the change in use after Code Enforcement issued an alleged violation letter, due to the change in use. 

2. ZDO Section 316, Rural Residential Farm and Forest 5-acre

   316.03 - USES PERMITTED

   Uses permitted in each rural residential and future urban residential zoning district are listed in Table 316-1, Permitted Uses in the Rural Residential and Future Urban Residential Zoning Districts. Uses not listed are prohibited.

   Finding: The proposed use is not listed in Table 316-1, and hence, not permitted as an outright allowed use. The use was established prior to restrictive zoning and being reviewed as a Nonconforming Use as defined in Section 202 of the Zoning and Development Ordinance (ZDO): NONCONFORMING USE: A use of any building, structure or land allowed by right when established or that obtained a required land use approval when established but, due to a change in the zone or zoning regulations, is now prohibited in the zone. This criterion is met pursuant to the ZDO Section 1206 included below.

3. ZDO Section 1206, Section Title

   1206.01 - PURPOSE AND APPLICABILITY

   Section 1206 is adopted to provide standards, criteria, and procedures under which a nonconforming use may be continued, maintained, verified, restored, replaced, and altered and under which a vested right may be determined.

   Finding: No finding is warranted for this criteria. 

   1206.02 - STATUS

   A nonconforming use may be continued although not in conformity with the regulations for the zoning district in which the use is located. Nonconforming use status applies to the lot(s) of record on which the nonconforming use is located and may not be expanded onto another lot of record, except as provided under Subsection 1206.07(B)(3)(a) and (b) or, in the case of nonconforming premises for marijuana production, with an alteration approved pursuant to Subsection 1206.07(C). A change in ownership or operator of a nonconforming use is permitted.

   Finding: The subject property is Lot 11 of Block 2 of the Mabery Subdivision, recorded in 1912. This makes the subject lot a Lot of Record under the County’s definition in Section 202 of the Zoning and Development Ordinance (ZDO). The applicant proposal does not include an expansion onto another lot of record. The applicant is a different owner than the Non-Conforming Use’s previously approved on site, which is permitted under ZDO 1206.02. This criterion is met. 

   1206.03 - MAINTENANCE

   Normal maintenance of a nonconforming use necessary to maintain a nonconforming use in good repair is permitted provided there are not significant use or structural alterations. Normal maintenance may include painting; roofing; siding; interior remodeling; re-paving of access roads, parking areas, or loading areas; replacement of landscaping elements; and similar actions.

   Finding: The applicant is not proposing normal maintenance. Normal maintenance will be permitted in the future under ZDO 1206.03, in compliance with applicable ZDO standards at the time of potential future maintenance. This criterion is met.

   1206.04 - DISCONTINUATION

   A.       If a nonconforming use is discontinued for a period of more than 24 consecutive months, the use shall not be resumed unless the resumed use conforms to the requirements of this Ordinance and other regulations applicable at the time of the proposed resumption.

   Finding: The applicant states that ACT Painting and Fabrication operated at the site prior to the applicants business, Fritz Cutting and Coring, Inc. ACT Painting and Fabrication was a registered business at the site from 3/23/1998 until 8/22/24 (their business changed names in 2017, and hence, there are two separate entries in to the Oregon Secretary of State Business Entity Data page). ACT Painting and Fabrication applied for a NCU Verification and Alteration in 1997 which verified use of the site for a metal fabrication use that had been operating since the 1970s and allowed auto body repair and painting services, frame/chassis repair and alterations, truck, motorcycle, and farm machinery repair, in addition to continuing the metal fabrication use. 

   The applicant provided the previous business owners business card, stating the subject address, as well as photos stated to be from 1997 until the present. The applicant also supplied aerial photographs from 1995 to 2024, showing vehicles have consistently been parked on site, consistent with the approved uses. The previous property owner, Dave Evans, also supplied an affidavit stating he operated the business without interruption from 1997 until 2024. The current property owner is parking fleet vehicles associated with his business, and consistent with his requested alteration (reviewed under ZDO 1206.07). These have been parked there since at least November of 2025. Based on the supplied information, staff finds that the applicant has demonstrated the non-conforming use has not discontinued for a period exceeding 24 months. This criterion is met. 

   B.       Notwithstanding Subsection 1206.04(A) and pursuant to Oregon Revised Statutes (ORS) 215.130(7)(b), a nonconforming surface mining use shall not be deemed to be discontinued for any period after July 1, 1972, provided:

   1. The owner or operator was issued and continuously renewed a state or local surface mining operating permit, or received and maintained a state or local exemption from surface mining regulation; and
   2. The surface mining use was not inactive for a period of 12 consecutive years or more. Inactive means no aggregate materials were excavated, crushed, removed, stockpiled, or sold by the owner or operator of the surface mine.

   Finding: The applicant is not proposing surface mining. This criterion is not applicable.        

   C.       Notwithstanding Subsection 1206.04(A), marijuana production may not be resumed on a premises for which a marijuana producer holds a production license issued under ORS 475B.070 and which is nonconforming to the regulations for the zoning district in which the production is located if the premises is not used for marijuana production for a period of at least 12 calendar months, unless the marijuana production conforms to any zoning requirements or regulations applicable at the time of the proposed resumption.

   Finding: The applicant is not proposing marijuana production. This criterion is not applicable. 

   1206.05 - VERIFICATION

   Verification of nonconforming use status requires review as a Type II application pursuant to Section 1307, Procedures, and shall be subject to the following standards and criteria:

   A.       The nonconforming use lawfully existed at the time of the adoption of zoning regulations, or a change in zoning regulations, which prohibited or restricted the use, and the nonconforming use has not been subsequently abandoned or discontinued. Once an applicant has verified that a nonconforming use was lawfully established, an applicant need not prove the existence, continuity, nature, and extent of the nonconforming use for a period exceeding 20 years immediately preceding the date of application for verification; or

   B.       The existence, continuity, nature, and extent of the nonconforming use for the 10-year period immediately preceding the date of the application is proven. Such evidence shall create a rebuttable presumption that the nonconforming use, as proven, lawfully existed at the time of, and has continued uninterrupted since, the adoption of restrictive zoning regulations, or a change in the zoning or zoning regulations, that have the effect of prohibiting the nonconforming use under the current provisions of this Ordinance.

   Finding: The NCU was previously verified under Z1522-97, which verified the metal fabrication use approved under ENCU-1-71, a 1971 verification and alteration of the NCU. The previous verification approved the site for metal fabrication and the repair of cars, trucks, motorcycles, and farm equipment. This included fabricating truck beds and farm machinery, and their parts on site, as well as frame/chassis repair, and painting. The applicant demonstrated, pursuant to ZDO 1206.04, that this use continued uninterrupted since 1997. The photos, both on the ground and aerial, demonstrate the extent of use, with significant volumes of vehicles to be repaired parked on site, including large farm vehicles. This application received a large volume of public comment; however, none seriously disputed the historic use of the site, nor the legal establishment. Staff finds that the use was legally established, based on previous Land Use decisions, and that the applicant proved the existence, continuity, nature, and extent of the nonconforming use from 1997 on, which exceeds the 20 years required under ZDO 1206.05(A). This criterion is met.  

   1206.06 - RESTORATION OR REPLACEMENT FOLLOWING DAMAGE OR DESTRUCTION

   If a nonconforming use is damaged or destroyed by fire, other casualty, or natural disaster, such use may be restored or replaced consistent with the nature and extent of the use or structure lawfully established at the time of loss, subject to the following conditions:

   A.       Alterations or changes to the nature and extent of the nonconforming use as lawfully established prior to the fire, other casualty, or natural disaster shall not be permitted under Subsection 1206.06, but may be permitted pursuant to Subsection 1206.07.   

   B.       Physical restoration or replacement of the nonconforming use shall be lawfully commenced within one year of the occurrence of the damage or destruction. Lawfully commenced means the lawful resumption of the nonconforming use or the issuance of a land use, building, on-site wastewater treatment system, grading, manufactured dwelling placement, residential trailer placement, plumbing, electrical, or other development permit required by the County or other appropriate permitting agency that is necessary to begin restoration or replacement of the nonconforming use or structures and resumption of the nonconforming use. 

   C.       The nonconforming use status of the use to be restored or replaced, and the nature and extent of the nonconforming use, shall be verified pursuant to Subsection 1206.05. 

   Finding: The Non-Conforming Use has not been damaged or destroyed. This criterion is not applicable.

   1206.07        ALTERATION

   A.       Alterations Required by Law: 

   1. The alteration of any nonconforming use shall be permitted when necessary to comply with any lawful requirement for alteration of the use or structure, subject to building, plumbing, sanitation, and other specialty code permit requirements in effect at the time the alteration is commenced. Additional conditions shall not be imposed upon the continuation of a nonconforming use when an alteration is required to comply with local or state health or safety requirements, except as provided in Oregon Revised Statutes (ORS) 215.215 pertaining to the re-establishment of nonfarm uses in the EFU District.
   2. Alterations to a premises for which a marijuana producer holds a production license issued under ORS 475B.070 shall be permitted when necessary to comply with a lawful requirement for alteration in production. 

   Finding: The applicant is not proposing an alteration required by law. This criterion is not applicable. 

   B.       Alterations Not Required by Law:  Except as provided in Subsection 1206.07(C), an alteration of a nonconforming structure or other physical improvements, or a change in the use, requires review as a Type II application pursuant to Section 1307, Procedures, and shall be subject to the following standards and criteria: 

   1. The alteration or change will, after the imposition of conditions pursuant to Subsection 1206.07(B)(4), have no greater adverse impact to the neighborhood than the existing structure, other physical improvements, or use. 

   Finding: The applicant is proposing to alter the use verified under Z1522-97 to allow for the operation of his asphalt cutting and coring business. The site is currently approved for auto body repair and painting services, frame and chassis repair, truck, motorcycle, and farm machinery repair, in addition to metal fabrication. The site was approved for operating hours of 6am to 6pm; with no more than eight hour works days, excluding an hour lunch, and no more than eight employees. 

   The applicants proposed alteration does not include any expansion of working hours or amount of employees. While the applicant proposed multiple working hours, none exceeded what was previously approved. The most recent proposal was stated on 2/18/26 and stated the current operational hours were between 6am and 6pm, Monday through Friday, and no more than eight employees. This would not be an alteration as there is no change to the operational hours, employee volume, or the number of vehicles stored on site of the previously verified use. The change of use will be addressed as an alteration and evaluated for compliance with ZDO 1206.07 below.

   The applicant is proposing changing the use from the aforementioned vehicle repair and metal fabrication to the base of operations for his asphalt cutting and coring business. On site business operations will include parking of fleet vehicles, servicing and loading vehicles, fabrication and maintenance of tools, testing equipment, preparing work assignments, and employee restroom use. The concrete and asphalt cutting operations are conducted entirely off-site and no concrete processing or cutting will be done on-site. 

   The application received significant public comment in opposition of this application, with the primary issues being: 

   • Use of larger vehicles, early morning vehicle departure, and traffic;
   • Operational hours and noise and disturbances;
   • Visual blight created by the use, and;
   • Removal of the property’s Mobile Home and a lack of residential use.

   Based on the previous approved use for the site, and the applicants proposal, staff finds that with the adoption of certain conditions, the applicant’s proposal will not create greater adverse impacts than the previous use. Staff will address each concern below, and how with the adoption of conditions, the use can comply with ZDO 1206.07(B)(1).

   Regarding the concerns of larger vehicles being parked and driven on site, while this could create greater adverse impacts, it is clear, from photographs of the previous use, that large vehicles were often on-site. Photos show large farm and industrial equipment being repaired on site, and aerial photographs show the tops of several large vehicles on site, spanning the last 20 years. The vehicles in the applicants business fleet are of comparable or smaller size in comparison. Additionally, the applicant is not proposing commercial vehicle repair, so only fleet vehicles will be entering the property, not trucks delivering vehicles for repair, or large farm equipment. The applicants proposed fleet and equipment parking area, including employee vehicle parking, takes up much less space than the parking shown in aerial photographs from the previous use. Based on this information, staff finds that the applicants use of larger vehicles does not exceed the previous use and will not create greater adverse impacts. 

   The applicant shall be limited to their proposed hours of operation and employee count as outlined in the conditions of approval to ensure that the vehicles continue to be similar to vehicles associated with the prior use, and their comings and goings are no more disruptive than the previous use. To address the public concerns, a condition will be adopted requiring fleet vehicles arrive and depart within the proposed hours of operation, 6am to 6pm, to reduce potential noise impacts, and limit the impacts from larger vehicles. The public stated they could hear the site during early and late hours. This condition will remedy this issue, if the reported noises are occurring on site. Staff also acknowledge that the subject site is less than a quarter mile (approximately 700 feet) from a site in Multnomah County involved with Portland Water Bureau project. Staff reached out to Multnomah County Land Use Planning about the use on the nearby site was told the site is being used for a new pipeline construction specifically, “The pipeline is anticipated to go through this property, and it is also proposed to be used for temporary staging and construction activities in support of that project.” Staff finds it feasible that some of the reported concerns from the subject property, may originate at this site, as the applicant states they do not operate outside of the proposed working hours, nor do they create excess noise. The public alleges the operation exceeds the proposed working hours and days, hence, it is being adopted as a condition to clearly limit the proposed use to its historical and proposed operation hours and days. 

   The public also raised concern about the visual blight created by the property. Staff is evaluating if the proposed change in use shall create greater adverse impacts, than the previous use. Based on photos provided by the applicant and the public, there do appear to be visual impacts created by the previous use, which is to be expected due to the nature of auto repair. The previous property owner removed landscaping, which would have likely increased this visual blight. The applicant installed a new fence, which does significantly limit the publics ability to view the operations from the right-of-way. The 1997 decision conditioned sight obscuring fencing or sight obscuring trees and shrubs along sections of fencing where adjacent neighbors can see into the property. The rear of the property contains trees, and adjacent parcels are also containing vegetation, on their side of the property. To limit any impacts on the neighborhood, the applicant shall maintain the minimum fencing or landscaping needed along the east and west property lines to limit the visual impact on adjacent neighbors. Staff did not receive comment in opposition from either neighbor to the east or west. The applicant shows on their site plan that there is already existing fencing on the north, east, and west property line. The fencing does not extend all the way to the south property line, but that area contains significant vegetation and there are not nearby adjacent structures or parking in that area. The use takes place on the north of the property, not necessitating the need for sight obscuring fencing all the way to the south property line. Additionally, the applicant has proposed parking their fleet vehicles behind the existing structure on site, this will further reduce the visual impacts, especially compared to the previous use which parked vehicles in various states of disrepair all over the property. The change of use with fencing, as installed and conditioned, does not appear to generate any adverse impacts related to visual impacts on the property, compared to the previous use. 

   The public also relayed concerns regarding the removal of a mobile home on the property. From staff’s understanding, there was a mobile home on the property that the previous property owner and business owners lived in, that also served as an office. Single family residences (SFR) are an allowed primary use within the RRFF-5 zoning district and the removal or placement of an SFR is not subject to the standards in ZDO Section 1206. While staff acknowledge the public’s concern that the use of the property is now primarily commercial and not mixed residential and commercial, the NCU is related to continual commercial use of the property, and not dependent on residential use, or the lack thereof, which is allowed outright by ZDO Section 316. The public generally objected to the commercial use of the property, and the existence of said use within their residential zoning district. As established earlier in the decision, this use predates the RRFF-5 zoning designation, and previous historical zoning designations that would have restricted said use. Nonconforming uses are a permitted use within the RRFF-5 zoning district, even though their use may not be congruent with the currently allowed uses within the RRFF-5 zoning district, which is why they are considered Nonconforming Uses and reviewed under Section 1206 of the ZDO. 

   The previous use of the property included welding, vehicle assembly, industrial painting, and metal fabrication. Tools utilized included grinders, rivet busters, sanders, and other air powered tools, which would have produced excessive noise. Additionally, an autobody repair shop would have been receiving many on-site customers and insurance adjusters, supported by the alleged office use on site. Public comment stated that the previous use produced noticeable noise from these tools. The public opinion is that this previous use created undesirable impacts, and that they wish for the commercial use of the property to cease entirely. However, staff must evaluate the application under the standard in ZDO Section 1206, and cannot revoke the commercial use of the property, if it otherwise complies with the Non-Conforming use criteria, which is related to the generation of GREATER adverse impacts, not no impacts at all. Staff has found that the property has operated as legally established commercial use, and therefore qualifies for an alteration or to continue the use in compliance with ZDO 1206. 

    Compared to the previous use, the applicants proposed use; the parking of fleet and employee vehicles, repair of fleet vehicles and tools, and storage of materials; is less extensive and impactful than the previous use relating to noise, visual impacts, and traffic as discussed in the above analysis and summarized below:

   • The primary work of the business (cutting of concrete and asphalt) will occur off site. 
   • on-site work is related to maintenance and repair of business equipment and vehicles as needed. 
   • Vehicle storage will be limited to fleet and employee vehicles, not farm equipment, trucks, cars, and motorcycles in need of repair. 
   • The hours of operation will remain the same, and not exceed what was previously approved . 
   • The applicant has installed sight obscuring fencing, and additional screening measures are conditioned. 

   Staff finds that the applicants proposal will not generate impacts greater than what was generated by the previous use, and that this criterion is met. 

   2.       The nonconforming use status of the existing use, structure(s), and/or physical improvements is verified pursuant to Subsection 1206.05. 

   Finding: Staff found the use complied with the criteria in ZDO 1206.05. This criterion is met. 

   3.       The alteration or change will not expand the nonconforming use from one lot of record to another unless: 

   1. The lot of record on which expansion is proposed and the lot of record on which the nonconforming use currently is established have been part of the same tract continuously since the date the nonconforming use became nonconforming; or
   2. The expansion would allow only for facilities necessary to support the nonconforming use, such as driveways, storm water management facilities, and on-site wastewater treatment systems.       

   Finding: The applicant is not proposing the use expand from one lot of record to another. This criterion is not applicable. 

   4.       Conditions of approval may be imposed on any alteration of a nonconforming structure or other physical improvements, or a change in the use, permitted under Subsection 1206.07(B), when deemed necessary to ensure the mitigation of any adverse impacts.

   Finding: Conditions of approval have been adopted to ensure the use does not create greater adverse impact than the previous use. This criterion is met. 

   C.       Alterations to Nonconforming Marijuana Production Premises Not Required by Law: Alterations in production or in a building, structure, or physical improvement associated with a nonconforming premises for which a marijuana producer holds a production license issued under ORS 475B.070 requires review as a Type II application pursuant to Section 1307 and shall be subject to the following standards and criteria:

   1. The alterations will have no greater adverse impact to the surrounding area than the premises’ existing production or its existing associated buildings, structures, and physical improvements; and
   2. The number of calendar months in which the premises have not been used for marijuana production since the premises became nonconforming does not exceed 12.

   Finding: The applicant is not proposing marijuana production. This criterion is not applicable. 

3.  ZDO Section 1307, Procedures:

This section provides standards and criteria for processing land use applications according to their type; this application is being processed as a Type II Permit, pursuant to Section 1307. No further written findings regarding Section 1307 are warranted.

Actions

X Closed Hearing:

X Left the Record Open:

• Record left open 1 week(s), until 4:00 p.m. on May 14, 2026  for anyone to submit additional written evidence, argument, or testimony;
• Record left open an additional 1 week(s), until 4:00 p.m. on May 21, 2026 for any participant to respond to new evidence submitted during the prior open-record period; and
• Record left open an additional 1 week(s), until 4:00 p.m. on May 28, 2026 for the applicant to submit final written argument in support of the application.
• Decision expected within 5 weeks.

BEFORE THE LAND USE HEARINGS OFFICER CLACKAMAS COUNTY, OREGON

FINAL ORDER Case File No: Z0424-25 Appeal

Regarding an Appeal of a Planning Director Decision Approving an Alteration of an Approved Non-Conforming Use (NCU)

A. SUMMARY

1. The owner of the subject property is K & H Fritz and Company, LLC. The applicant is Kevin Fritz, Manager, K & H Fritz and Company, LLC. The property is located at 37300 SE Lusted Rd., Boring, OR 97009, within Clackamas County, and is inside an urban growth boundary. The property is an approximately 2.88-acre parcel zoned Rural Residential Farm Forest 5-Acre (RRFF-5) District. The legal description of the property is T1S, R4E, Section 26A, Tax Lot 02100, W.M.

2. The subject property was initially zoned R-30 on December 14, 1967 and changed to the current RRFF-5 zoning on July 31, 1978. An existing nonconforming use (NCU) was established prior to the adoption of zoning. The use of the property for a metal fabrication business also providing car, motorcycle, truck, and construction/farm/industrial vehicle and equipment repair, maintenance, modification, and painting, with on-site storage of vehicles and materials is recognized as a protected NCU subject to the limitations found in file no. ENCU-1-71. The NCU had a maximum of eight (8) employees working eight (8) hour shifts between 6:00am and 6:00pm during a five (5) day work week and included a 40x60 metal fabrication shop with an approved 40x50 addition (4,400 square feet total) and utilized an 8x38 mobile office trailer. The property also had a mobile home used as a residence. In 1996, the County approved an alteration/expansion to allow disassembly of steel casings. In 1997 the County approved an alteration to the NCU to allow auto body repair, motorcycle, truck and farm/industrial equipment alterations and painting in addition to the existing metal fabrication use.

3. On October 13, 2025 the applicant submitted this application for an alteration to the previously approved NCU, requesting approval for an asphalt cutting and coring business. County Planner Mya Ganzer reviewed the application, and after receiving additional required information from the applicant deemed the application complete on 11/05/25, with Notice of Land Use Application issued to applicable agencies and owners of property within 2,640 feet. As the subject property is not located inside an urban growth boundary, the 150-day deadline for final action on the application pursuant to ORS 215.427(1) was 04/06/26. However, several extensions were requested by the applicant prior to the public hearing in this matter, extending the deadline for final action to 06/15/26. Comments in opposition to the application were received from the Cottrell Community Planning Organization (CPO) and several neighbors.

4. The application was approved by County staff on April 2, 2026, subject to conditions. On April 14, 2026, the appellant Natalie Voruz, a neighbor, submitted an appeal of the decision stating the reason(s) for the appeal are: "Incorrect assessment of negative visual impacts and source of increased noise."

5. On May 7, 2026, Hearings Officer Carl Cox (the "Hearings Officer") conducted a public hearing to receive testimony and evidence in the matter. Prior to ending the public hearing, the Hearings Officer asked whether any of the parties wanted an opportunity to request that the record remain open to submit additional evidence, arguments, or testimony. A participant at the hearing made a request that the record stay open for submission of new evidence and argument. The Hearings Officer discussed the request with the parties and determined that it was appropriate to hold the record open for all parties and members of the public as follows: for one week until 4:00 pm on Thursday May 14, 2026 for any participant or member of the public to submit additional written evidence, argument, or testimony, a second week until 4:00 pm on Thursday May 21, 2026 for any participant or member of the public to submit additional written evidence, argument, or testimony in rebuttal to respond to new evidence submitted during the prior open record period, and a third week until 4:00 pm May 28, 2026 for the applicant to provide a final written "last word" response or rebuttal, not to include new evidence. As applicant received an additional seven-day period for a final written response following the open-record period requested at the hearing, this extended the deadline for final action to 06/22/26. After receiving and considering the evidence and arguments submitted, the Hearings Officer approved the application subject to conditions.

B. HEARING AND RECORD HIGHLIGHTS

1. The Hearings Officer received testimony and evidence at the May 7, 2026 public hearing about this application and related appeal. All exhibits and records of testimony are filed with the Planning Division, Clackamas County Department of Transportation and Development. The public hearing was conducted virtually over the Zoom platform. Notice of this public hearing was sent to agencies, Community Planning Organization(s) and property owners within 2,640 feet of the subject property. At the beginning of the hearing, the Hearings Officer made the declaration required by ORS 197.763. The Hearings Officer disclaimed any ex parte contacts, bias, or conflicts of interest. The Hearings Officer stated that the only relevant criteria were those identified in the County's staff report, that participants should direct their comments to those criteria, and failure to raise all arguments may result in waiver of arguments at subsequent appeal forums.

Pre-Hearing Submissions

2. The application for alteration of a nonconforming use submitted in this matter includes a narrative describing the proposed use and includes the applicant's statement explaining how the alteration will, after the imposition of conditions, have no greater adverse impact on the neighborhood than the existing use. The applicant states that the proposed alteration will primarily use the site as a staging area and for the parking of employee and company vehicles, with only minimal activities occurring on the site as all primary company functions occur off-site. The applicant states that the business will utilize the building on the site and the areas within the greater enclosed yard. The applicant states the site will serve as a base for no more than 8, and typically 5-7 employees working between 6am and 6pm, with shifts not to exceed eight hours, excluding a lunch period, Monday through Friday. The applicant states the building will serve as an office and assembly area for employees at the beginning and ending of the work day, for dry storage and warehousing of materials, and will be utilized to perform light vehicle servicing functions and minor repairs of fleet vehicles. The applicant asserts that the proposed alteration will result in a significant reduction of noise, odors, and visual pollution from the former non-conforming use, noting that new sight-obscuring fence was already installed along the northern and western boundaries, with existing fencing along the eastern boundary in good repair, further stating they are committed to maintaining these facilities. (Exhibit 2A)

3. The application includes general information concerning the subject property and existing improvements, past history of the non-conforming use as approved in File No. Z1522-97-E, historic photos, and photos of the property's use for storage of a variety of vehicles, boats, and pieces of equipment in various states of disrepair, and stating that when the prior use of the property ended in June 2024 the site contained more than 50 wrecked automobiles and other debris. The application included a copy of File No. Z1522-97-E, a Site Plan for the proposed use, numerous historic aerial photos of the property showing the use of the property, dated June 1995, August 2000, August 2002, June 2006, April 2015, May 2019, April 2023, April 2024, July 2024, and April 2025, showing numerous and changing vehicles stored on the property through April 2024, with significantly fewer vehicles remaining on the property as shown in the July 2024 photo and the April 2025 photo showing that the remaining vehicles and the mobile home and mobile office were removed. The application included current site photos of the property. (Exhibit 2A)

4. The application was supplemented by additional materials, including records for ACT Painting & Fabrication LLC, the business that operated the NCU prior to the applicant purchasing the property. These records include Oregon State Corporation Division Business Registration records from 1998 through 2024, with a last Amended Annual Report submitted 01/02/2024 and Articles of Dissolution submitted 08/22/2024. These materials included a signed and notarized affidavit of continuous commercial use by David Evans, the former owner of the ACT Painting & Fabrication LLC business that operated on the site, stating he owned the property and operated an auto body shop business from approximately 1997 through 2024, and during this entire period the property was used continuously for commercial purposes related to the auto body shop. Further, the affidavit states that at no time between 1997 and 2024 was there a discontinuation, abandonment, or interruption of the commercial use of the property for a period exceeding 24 months and the property had been in continuous commercial use since 1997 with no gaps exceeding 24 months. (Exhibit 2B)

5. The applicant also submitted several additional photos showing the metal fabrication/auto body shop and repair business activity on the property, including the two photos below of the same vehicle displaying March 2023 vehicle registration tags:

Photos of damaged pickup with March 2023 vehicle registration from Exhibit 2C

6. The applicant submitted photos showing the types of heavier equipment and commercial vehicles that were associated with the for ACT Painting & Fabrication LLC metal fabrication/auto body shop and repair business activity on the property, including: (Exhibit 2D)

7. The applicant also submitted photos showing the condition of the property when it was associated with the for ACT Painting & Fabrication LLC metal fabrication/auto body shop and repair business activity on the property, including photos showing the dilapidated condition of the mobile home and the numerous vehicles stored on the property: (Exhibit 2C)

8. The applicant submitted photos showing the current condition of the property, with the dilapidated mobile home, mobile office, and vehicles and equipment associated with the for ACT Painting & Fabrication LLC auto body shop and repair business activity on the property removed, new fencing installed, and current use showing the site entrance with new slatted fence and gate, and employee parking looking north at new slatted fencing, and fleet vehicle storage along the eastern property line:

9. The applicant's supplemental materials included a statement of revised work hours, noting the property was approved in 1997 for a five-day workweek, eight-hour shifts and no more than eight employees at one time, noting current operation hours are 6 a.m. to 6 p.m., Monday through Friday, with no more than eight employees present on-site at any time, and all concrete and asphalt cutting performed off-site in the field. The applicant originally discussed occasional emergency callouts in the application narrative but provided a supplemental statement clarifying there would be no emergency callouts, and the hours would remain as originally approved. The applicant notes that equipment may be tested on-site but states that concrete or asphalt related cutting or coring for profit does not occur on site. The applicant reports that most of the submitted photos were taken within the past six years, with some dating from 1997 to 2005. The applicant also states they are willing to replace landscaping or greenery that was removed following the departure of the previous tenant. Reproduced below is the approved site plan ("Plot Plan") submitted with the application by ACT Painting & Fabrication showing the areas approved for use and showing the approved landscaping at that time:

10. The County received numerous public comments submitted in opposition to the application, including from the appellant Natalie Voruz, several other neighbors of the site, and the Cottrell CPO, the Community Planning Organization for this neighborhood. These comments assert several reasons for opposing the application and contend that the application should be denied, including the following representative statements:

• The non-conforming use has significantly changed since the property sold on July 16, 2025 and is not at all similar to the previously approved NCU
• The past use for automobile fabrication had very little impact on the surrounding properties
• It is now being used as a place of business for a concrete cutting and coring business
• It is now being used for parking heavy machinery and trucks
• The new use has resulted in a significant amount of traffic along SE Lusted Road and noise going in and out including noise from industrial vehicles, equipment, and early morning dispatching, including large, heavy box trucks that are disproportionately involved in fatal crashes, particularly with pedestrians and bicyclists
• Expanded hours of activity, including early morning and occasional after-hours access are occurring, with increased industrial activity associated with the new owner's use
• The mobile home was removed making the property appear industrial, with the property now enclosed with razor wire fencing and no residential use of the property, intensifying the non-conforming use of the property and making it appear less rural or residential
• The former owners were two brothers who lived and worked on the property, with noise from compressors, welders, and grinding equipment, that the activity of ACT Painting & Fabrication was reduced beginning in 2017 after the death of one of the brothers, and the use should be revoked now that their business has ceased and they are gone
• Questions concerning whether the non-conforming use has now been discontinued or abandoned, with comments noting the property was first listed for sale in August 2024 and was sold to the current owner in July 2025
• Concerns that the new owners will violate restrictions or conditions
• Visual blight from multiple storage containers, unscreened industrial equipment, and lack of vegetation, asserting violations of the landscaping requirements of the approved NCU
• The use does not belong in a neighborhood of rural homes and is incompatible with RRFF-5 zoning, disrupting quiet enjoyment of neighborhood residential properties and sets a harmful precedent for further commercial encroachment
• The use is not compatible with the designated Rural Reserve that serves as a migration route for elk and deer, nor compatible with other wildlife inhabiting the region
• Lack of data supporting assertions that the previous use involved a high level of noise generated by machinery and grinding, or odors associated with painting, to compare with impacts of proposed alteration of NCU
• Negative impacts on surrounding property values
• Assertions that the previous use resulted in little traffic, with business greatly diminished
• Potentially harmful chemicals associated with shipping containers stored on the property
• Neighbors also submitted several photos showing the property as used by the former owner, and the current owner, with representative comparison photos above and more current photos shown below:

11. The applicant's consultant, Tracy Brown, submitted written comments responsive to some of the public comments received in opposition to the application. He pointed to a new fence with slats that was installed around the north and most of the west of the property, in addition to an existing fence along the east line, asserting the fencing provides significantly better screening that what was previously required and installed. Further, Mr. Brown contends that: "it is hard to imagine the proposal would create more visual impact than the junkyard appearance of the previous use as documented on submitted aerial photos." He also questions assertions that there has been an increase in outdoor storage area and noise. The applicant also submitted a clarification of the proposal eliminating language regarding emergency callouts outside of normal business hours, and agreeing to a condition limiting the business operation to the proposed hours of 6 am to 6 pm on weekdays.

12. The appellant, Natalie Voruz, submitted written statements in advance of the hearing in support of her appeal. Ms. Voruz points to the various changes to the property that have occurred since it was purchased by the applicant, noting that the approved site plan for the property included greenery and shrubs that have been removed. She also points to further development to the rear of the property in an area that was not included in the site plan, with removal of trees that formerly provided screening of these areas from view by neighboring properties, asserting these changes have resulted in a greater adverse impact to neighbors. Ms. Voruz points to findings in the staff decision concerning whether the NCU was discontinued, disputing the findings that ACT Painting & Fabrication was a registered business at the site from 3/23/1998 until 8/22/24 and pointing out that the original articles of dissolution for this business state they were completed on 6/30/2024, even though the filing was made August 22, 2024, and asserting that in any case this form is insufficient for determining if the business was still in operation. She compares this finding with findings in a different decision denying a proposed alteration of an NCU, providing a copy of that decision and asserting that different requirements or standards were applied by staff.1 (Exhibit 31)

13. Ms. Voruz reports that her property is located on SE Dodge Park Blvd adjacent to the rear of the site and asserts she never heard or witnessed any business activity on the property, further stating that: "As an adjacent property owner, I can confirm that I did not witness any non-conforming use of the property after April 2024." Ms. Voruz contends that the business activity was discontinued long before the 6/30/24 dissolution date. Ms. Voruz points to aerial photos of the Property taken in April 2023, April 2024, and July 2024 (shown below) and contends that the property appears a junkyard with vehicles that had not been moved in years until the property was cleaned up in July 2024, asserting that the presence of the vehicles is merely evidence of the property being operated as a nuisance with abandoned vehicles, and not evidence of ongoing business activity.

14. Ms. Voruz contends that subsequent use of the property by the applicant's Fritz Cutting and Coring business should not be considered as "continued use" because it is not a current approved use and the decision should not rely on applicant claims concerning the work being done, further noting that cleaning up the property also does not establish continuation of the NCU. Ms. Voruz points to the approved NCU that included sheet metal fabrication and painting and asserts it was unrelated to the storage of the various vehicles on the property. She points out that many properties in the RRFF-5 zone store vehicles, farm equipment, boats, etc. and also points out that the photos of the property supplied by the applicant in support of the continuation of the use are undated. Ms. Voruz contends that the County should rely on eye witness accounts of business activity and legal records such as payroll records and tax statements to determine whether the NCU activity was still occurring on the site.

15. Ms. Voruz refers to the Affidavit of Continuance of Commercial Use signed by the former business owner David Evans, and points out that it incorrectly names Mr. Evans as the owner of the property when he was never actually the owner but was a tenant, and points to the document's approximate dates such as "approximately 1997 through 2024" and the fact it does not specify when in 2024 the NCU activity ceased, essentially asserting that it is not reliable evidence. She contends the applicant should be required to show evidence of continuation of the NCU for the 24 months prior to the May 7, 2026 hearing date, asserting they cannot meet this burden of proof as the NCU did not continue after April 2024.

16. Ms. Voruz disputes that the neighborhood experience of increased noise is attributable to the Portland Water Bureau's pipeline construction, asserting the Portland Water Bureau's construction activity on Lusted Road has existed since 2023, yet the noise began after July 2025 when the applicant began using the property. Ms. Voruz further reports that the applicant's site is directly to the right of her property as she faces towards Lusted Rd., whereas the Portland Water Bureau location is to her left and ? mile away, asserting it is easy for her to discern that the applicant's property is the source of the increased noise and industrial activity. Ms. Voruz points to the screening fence installed by the applicant and discussed by the staff decision as significantly limiting the public's view of the operation on site from the right of way. She disputes this finding, asserting that the view of the property as shown in the submitted photos is degraded, with all landscaping removed, trees in the previously undeveloped area in the back of the property removed, and razor-wire fencing installed. She further contends the screening provided by the now-removed mobile home and office previously blocked the view of the storage from the right of way whereas now a gravel pit with a fleet of construction vehicles, shipping containers, and heavy equipment is visible. Ms. Voruz contends the current use creates an unappealing visual blight that is a greater adverse impact than the former, approved NCU. Ms. Voruz disputes related staff findings that the applicant's vehicles are being obscured by the shop building, asserting these vehicles are much taller than the vehicles associated with the previous use. (Exhibit 31

Public Hearing

17. At the public hearing, County Planner Mya Ganzer discussed the decision approving the application for alteration of a non-conforming use, providing a presentation with related exhibits, discussion of relevant approval criteria in the County's Zoning and Development Ordinance (ZDO) and the County's recommendation to uphold the decision approving this application. Ms. Ganzer explained that the applicant is requesting an alteration of an NCU previously verified and approved on the subject property. She noted that the site was used as a metal fabrication business and car, motorcycle, truck, and farm/industrial equipment repair shop. Ms. Ganzer stated that the applicant is requesting approval for an asphalt cutting and coring business, explaining that the site will serve as a primary base for operations for the business, with primary work functions occurring off-site. Ms. Ganzer further stated that clients will not be visiting the site, and the applicant will be primarily storing materials, including work trucks, and preparing materials for off-site jobs.(Exhibit 32)

18. Ms. Ganzer provided a discussion of the site history, noting that the site became subject to zoning regulations on 12/14/1967 when it was zoned R-30, and this zoning would have restricted commercial/industrial uses of the property. She noted that in 1971 the County approved an addition on an existing building under ENCU-1-71, verifying the non-conforming use existed prior to restrictive zoning and allowing an expansion of the use. Ms. Ganzer reported that the property was rezoned to RRFF-5 on 7/31/1978 and this remains the property's zoning designation, with similar restrictions on commercial/industrial uses as the prior R-30 zoning. She noted that in 1997 the nonconforming use was verified again and approved for an alteration, expanding the existing use under Z1522-97. Ms. Ganzer stated that from 1997 through 2024, ACT Painting & Fabrication was a registered business operating on the subject site. She noted that in July of 2025 the applicant purchased the property and has been using the site as the base of operations for his business, Fritz Cutting and Coring Inc., an asphalt cutting and coring company.

19. Ms. Ganzer shared a slide and provided discussion concerning the approval criteria for a proposed alteration of a non-conforming use, noting the application is subject to ZDO Sections 202, 316, 1206, and 1307. She also explained that her presentation primarily discusses the criteria most disputed by public comment, pointing to the relevant approval criteria in ZDO Section 1206.07(B) and stating that findings on the relevant criteria are in the County's land use decision submitted as Exhibit 1. Ms. Ganzer noted that other uses discussed in ZDO Section 1206.07 are not proposed by the applicant and are not addressed.

20. Ms. Ganzer shared a slide and provided discussion of ZDO Sections 1206.04(A), Discontinuation, and 1206.05(A), Verification. She noted that Section 1206.04, Discontinuation, Subsection (A) provides: "If a nonconforming use is discontinued for a period of more than 24 consecutive months, the use shall not be resumed unless the resumed use conforms to the requirements of this Ordinance and other regulations application at the time of the proposed resumption. Ms. Ganzer pointed to the evidence the applicant submitted supporting finding that there was no discontinuation, including Secretary of State business registration records, a written statement from the previous business owner, and aerial and non-aerial photographs.

21. Ms. Ganzer noted that Section 1206.05, Verification, Subsection (A) requires a finding that: "The nonconforming use lawfully existed at the time of the adoption of zoning regulations, or a change in zoning regulations, which prohibited or restricted the use, and the nonconforming use has not been subsequently abandoned or discontinued. Once an applicant has verified that a nonconforming use was lawfully established, an applicant need not prove the existence, continuity, and extent of the nonconforming use for a period exceeding 20 years immediately preceding the date of application for verification;" Ms. Ganzer noted that the nonconforming use was lawfully established on the property prior to 1967, that the evidence discussed in reviewing ZDO Section 1206.04 establishes the use for the 20 year period preceding the application, with ACT Painting & Fabrication's use of the property established from 1997 through 2024, and Fritz Cutting and Coring from 2025 through to the present.

22. Ms. Ganzer shared a slide and provided discussion of ZDO Section 1206.07(B), Alterations Not Required by Law, noting that the applicant is requesting an alteration of a previous alteration of the NCU on site, Z1522-97, approved in 1997. She explained that this 1997 decision verified the metal fabrication use on site and permitted the addition of auto body repair and painting; frame/chassis repair and alterations; truck, motorcycle, and farm machinery repair and fabrication. Ms. Ganzer also noted that the work was approved inside of the shop on the property, with vehicle and material storage approved outside of the shop. (Exhibit 17)

23. Ms. Ganzer discussed public comments submitted by neighbors asserting that the current use exceeds the noise, hours, traffic, and visual impacts of the previous use, creating grater adverse impacts. She explained that the requirement of the Land Use Decision is to determine if the application materials demonstrate the use will not generate greater adverse impacts than the existing use, after the imposition of conditions of approval. Ms. Ganzer also explained that if the applicant exceeds the scope of what was proposed, or violates conditions of approval, that would be addressed through the County Code Enforcement procedure.

24. Ms. Ganzer shared another slide and provided additional discussion of ZDO Section 1206.07(B), Alterations Not Required by Law, pointing to the application and noting the applicant's statement that the majority of work is done off-site, with vehicles and work materials stored on-site and occasional repairs done on-site, but at a much lower scale than the previous use as the applicant's primary use is not repair. She references Exhibit 2D for images demonstrating the previous scope of work and the volume of vehicle repair. Exhibit 2D includes images of numerous personal use vehicles and commercial and farm vehicles and various equipment in various stages of repair and painting, with numerous such vehicles and items stored outside on-site and work on equipment and vehicles taking place outside. Ms. Ganzer noted that staff imposed additional conditions to limit adverse impacts from noise, including: "Fleet vehicles shall not enter or leave the property before 6 am or after 6pm" and "The applicant shall conduct noise producing work inside the building on site, whenever possible." Ms. Ganzer further noted that noise and working hour concerns were also addressed by imposing the same condition of approval as the 1997 Land Use Decision: "The use is limited to eight hour work day with one additional lunch hour for lunch periods and will not begin prior to 6am or later than 6pm and shall be limited to Monday through Friday." (Exhibit 1)

25. Ms. Ganzer provided discussion addressing comments by the appellant and public comments from neighbors raising concerns about traffic and vehicle size. She noted that the previous NCU alteration approved the repair of large vehicles on site, noting that the previous vehicles brought to the site for repair appear to be the same size or larger than vehicles used by the applicant. Ms. Ganzer pointed out that the applicant has a small workforce, with no more than 8 employees proposed coming to and from the site. She noted that the previous use generated traffic from delivery of supplies, vehicles for repair, sales representatives, appraisers, and insurance adjusters. Ms. Ganzer reports that the proposed use does not appear to generate any impactful traffic increases or larger vehicle use.

26. Ms. Ganzer provided discussion addressing comments by the appellant and public comments from neighbors raising concerns about the visual impacts of the proposed alteration to the use. She noted that the applicant has installed new slatted fencing. She noted that the previous use parked vehicles between the road and the sight-obscuring fencing (as shown on Exhibit 2D) and reported that the 1997 decision addressed visual impacts for adjacent properties but did not address the parking visible from SE Lusted Rd as shown on the site plan, as shown in the photo below from Exhibit 2D showing a vehicle parked in the outside parking of the former use, as shown on the site plan for the 1997 decision:

27. Ms. Ganzer points out that the applicant's submitted site plan demonstrates all parking and storage will be behind the new fence. She also points out that the applicant's proposed fencing obscures the view of the work on site, and the site plan shows that large work trucks are parked behind the building on the site limiting visual impacts. Ms. Ganzer reports that the applicant also expressed willingness to install landscaping, and staff included a condition requiring: "The applicant shall maintain all existing fencing or landscaping as shown on the site plan, to ensure this standard continues to be met." The proposed site plan is reproduced below, with a photo showing the fencing:

28. Ms. Ganzer states that the applicant's proposal does not exceed the previous NCU's working hours, traffic, or impacts from on-site work, both auditory and visual. She observed that conditions have been imposed to reduce noise and visual impacts, and the impacts of traffic and working hours. Ms. Ganzer stated that approval is based on what the applicant submitted and with conditions of approval the submitted materials demonstrate compliance with ZDO Sections 202, 316, 1206, and 1307. She noted that the initial decision was approval with conditions, and the recommendation by County staff is approval with conditions.

29. The appellant, Natalie Voruz, is a neighbor who moved to the neighborhood in 2020 and resides on adjacent property behind and to the side of the site. Ms. Voruz provided testimony at the hearing consistent with the written pre-hearing statement she submitted in advance of the hearing. Ms. Voruz contends that the noise from the site started in September 2025 and can be verified by the complaints she and her neighbors submitted to the County. Ms. Voruz asserts that the NCU was discontinued in early 2020 and there was no active business activity on the site, only storage of vehicles. She contends that the NCU was discontinued and abandoned well over 24 months before the property was sold to the applicant. With respect to the proposed alterations, Ms. Voruz asserts that the noise is not coming from the Portland Water Bureau project as stated by the applicant. She points to impacts to the surrounding area from the new activity from increased traffic, and contends the activity is not in conformance with the 1997 approval of the NCU. Further, she describes the current negative impact of the appearance of the site without the required landscaping and greenery, and without the screening formerly provided by the mobile home and mobile office that are now removed. Ms. Voruz reports that the vehicles and equipment stored on the site can now be seen from the right-of-way. Further, she describes the change in appearance of the site with the former residence removed, asserting it now has an industrial fence and appearance.

30. The applicant, Kevin Fritz, provided rebuttal, pointing to submitted photographs showing damaged and repaired vehicles and large equipment on the site. He notes that the shop and security office were existing improvements and states the new fencing is along the original line. Mr. Fritz asserts that his business is not the source of the noise at the site, but contends the noise is created by the Portland Water Bureau's activities. He reports that the Portland Water Bureau is engaged in construction and digging 30-40 feet underground for a Bull Run pipeline just 190 linear feet from the site and the noise is from their equipment. Mr. Fritz states he has talked to the Portland Water Bureau about the noise complaints and notes that they are supposed to cease working by 6 pm.

31. The appellant, Ms. Voruz, agrees that the construction by the Portland Water Bureau is creating noise, but asserts the noise she and the neighbors are complaining about is coming from the applicant's activities.

32. Scott Voruz and Jennifer Hart, each neighbors of the subject site, appeared and provided testimony as members of the general public in addition to written statements they submitted. Mr. Voruz describes having a line of sight to the rear of the subject property from his own adjacent property, reporting that the noise from the site started with the new owner. Mr. Voruz states that he can tell where the noise is coming from when he walks along his property, stating that the Portland Water Bureau construction is back and to the left, and noise from the site is from the right. Mr. Voruz also notes that the site formerly had a mobile home with a shop and fit in with the character of the neighborhood because it looked like many other rural properties. Ms. Hart requested that the record remain open for submission of additional materials.

Post-Hearing Open Record Period Submissions

33. Ms. Voruz submitted photos of the site showing that vehicles and storage containers (shipping containers) stored in the area behind the fence are visible from the public roadway. (Exhibit 34)

34. Ms. Ganzer submitted a staff response to testimony raised at the May 7th hearing. In her memorandum, Ms. Ganzer pointed to differences between this application, which she reviewed and approved, and the Z0088-25 application for a Non-Conforming Use referenced by the appellant, which she reviewed and denied, with the denial appealed and upheld. Ms. Ganzer highlighted some of the different facts that were relied upon, noting that 37300 SE Lusted Rd was the primary business location for ACT Painting & Fabrication for a 29-year period (listed with the Secretary of State) and had supporting statements from the business operation, photos, and business cards. By contrast, Ms. Ganzer pointed to the Secretary of State records for Z0088-25 that did not list the subject address (in that application) as the primary place of business, except for one business, Mt. Hood Alternative Medicine. Ms. Ganzer stated that this business was registered for 4 years but no supporting evidence was provided and staff were not provided with statements describing the business activity or use of the property. Additionally, Ms. Ganzer stated there were gaps in the business registration on-site in Z0088-25 that exceeded 24 months. By contrast, Ms. Ganzer states that the use of the subject property by ACT Painting & Fabrication is well documented through previous land use decisions, and also business owner and applicant statements and photos, information that was not provided for Mt. Hood Alternative Medicine. Ms. Ganzer asserts that these differences provide context for the Secretary of State business records showing the two applications are different and depict different continuity timelines, with Z0424-25 supported by additional evidence that resulted in the different decisions. (Exhibit 35)

35. The Cottrell CPO submitted a written statement during the open-record period in opposition to this application, requesting denial of the application. First, the CPO asserts that the proposed alteration will generate noise that is materially greater than the previous use and incompatible with the surrounding rural and farm uses. Secondly, the CPO contends the proposal does not fit the established character of the Cottrell area, which is rural-residential and Exclusive Farm Use (EFU) in nature. Thirdly, the CPO asserts that the increase in heavy-truck traffic generated by a concrete cutting staging operation will overburden the rural roads and create safety hazards for residents, farm operators, and the traveling public. Further, the CPO contends that the imposition of conditions of approval is inadequate, essentially asserting the conditions lack adequate enforcement. The CPO asserts that the proposed alteration will result in greater adverse impacts to the neighborhood than the previous use, pointing to changes to the character of the neighborhood, asserting an increased level of activity, traffic, noise, dust, vibration, and other off-site impacts. The CPO points to the industrial nature of the concrete cutting and staging yard, contending that even when the cutting is occurring off-site the routine staging operation generates noise from diesel trucks starting and idling, arriving and departing, backup alarms, loading and unloading activities, and testing, washing, and maintenance of equipment. The CPO asserts the staff recommendations provide no objective mechanism for compliance, with no on-site monitoring, or third-party noise or vehicle trip verification or review. (Exhibit 36)

36. The Cottrell CPO contends that the proposal does not fit the character of the Cottrell area, describing the applicant's concrete cutting business as an industrial use that belongs in an industrial or heavy-commercial zone where such use is planned for. Further, the CPO points to Statewide Planning Goals and the County's Comprehensive Plan reflecting state policy that such industrial and heavy-commercial activity should not be permitted to creep into rural and farmland areas. The CPO contends that the NCU doctrine exists to allow legal uses to continue, not to provide a "back door" for expanding industrial activity into rural areas. In addition, the CPO points to traffic and road safety concerns with work crews and heavy-vehicle traffic on rural roads, causing road damage and increased risk of collisions including at locations where children wait for school buses. Further, the CPO points out that no trip-generation analysis was included in the application to show no greater adverse impact. The CPO requests denial but suggests several more restrictive conditions should the application be approved.

37. Leroy Wallace is a neighbor residing on SE Lusted Road near the subject property since 2019 and is in support of the application. Mr. Wallace reports having read the comments submitted and states he has not experienced any of the negative impacts described by others. He states there has been no noise from heavy equipment, no early or late activity, and no visual blight. Mr. Wallace asserts that the applicant's activities are quieter that the previous NCU business activity. Mr. Wallace believes the concerns expressed by other neighbors are due to unrelated construction disturbances. (Exhibit 37)

38. Eufrosina and Freddy Cervantes are neighbors residing on SE Lusted Road directly next door to the subject property and are in support of the application. They write: "Since Fritz Cutting & Coring moved in, we have experienced no disturbances, excessive noise, or issues of any kind." The Cervantes describe the applicant as respectful and a positive addition to the community, asserting that because they reside immediately adjacent to the site they would be the first to notice any significant noise or negative impacts, yet they have not. Further, they report that Ms. Cervantes mother is at their home throughout the day and has not experienced concerns related to noise or disturbances. (Exhibit 38)

39. Hani Al-Meer and Jamie Al-Meer are neighbors residing on SE Lusted Road, directly across from the subject property. The Al-Meers report they have not personally experienced any unusual or disruptive noise, excessive traffic, or activity that has negatively impacted their use and enjoyment of their own property. The Al-Meers point out they live directly across from the proposal site and assert they would be the first to notice ongoing disturbances or excessive activity. The Al-Meers describe the subject property as being well-maintained and state they have not had any issues or concerns regarding the property or its use. (Exhibit 39)

40. The appellant, Ms. Voruz, submitted an additional written statement supporting the statement submitted by the Cottrell CPO and asserting that the noise impacts from the applicant's concrete cutting and staging yard are incompatible with the surrounding rural area. She reiterates her personal confirmation that the noise is generated at the subject site, noting it was the noise that brought the new use of the property to their attention. Ms. Voruz submitted photos from the applicant's website showing examples of equipment. In addition, Ms. Voruz submitted a response to the staff memorandum submitted May 14, 2026 (Exhibit 35) reiterating her assertion that the operation of ACT Painting & Fabrication was not evident after early 2024, with photos as early as April 2024 showing clean-up of the property to prepare it for sale. Ms. Voruz points to her assertion that the applicant has failed to prove the NCU use has existed for the past 24 months, contended the use was discontinued. Further, Ms. Voruz contends there has been no resumption of the NCU activities approved for ACT Painting & Fabrication, noting the current use is already an alteration. She describes the former use as showing a steady decline in activity, reporting she moved to her property in 2020 and never saw any signs of painting, body work, or metal fabrication. (Exhibits 40, 41)

41. The applicant submitted a final written statement in support of approving the application. Mr. Fritz contends that many of the statements submitted in opposition to the application contain inaccuracies. He describes his business as a service contractor supporting residential, commercial, public works, and infrastructure projects throughout the region, and not operating an industrial yard, and denies creating the types of impacts alleged by opponents. Mr. Fritz notes that the previous business, [ACT Painting & Fabrication LLC], performed paint, fabrication, towing, and commercial repair-related work onsite and describes it as generally supported within the community. He contends that the [ACT Painting & Fabrication LLC] operation involved substantially more intensive onsite activity than what is currently occurring. Mr. Fritz points to the nearby Bull Run filtration and water infrastructure projects and asserts those projects have created substantial traffic, noise, road closures, steel plating operations, and general disruption throughout the area that are entirely unrelated to his business operations. Mr. Fritz describes purchasing the subject property with the understanding that the NCU rights associated with the property were valid and recognized by the County and invested his family's life savings into it. Mr. Fritz describes working and living in the area for many years and attempting to operate respectfully and professionally, noting that several neighbors have expressed support. He requests approval of the application. (Exhibit 42)

C. FACTS AND DISCUSSION

The evidence presented is reliable, probative and substantial evidence upon which to base a determination in these matters. This application was originally processed as a Type II Permit, pursuant to Clackamas County Zoning and Development Ordinance (ZDO) Section 1307, approved by the Planning Director's designee, County Planner Mya Ganzer 2, and this appeal followed. Table 1307-01 authorizes the hearings officer to hear appeals of planning director decisions. Pursuant to ORS 215.416(11)(a), an appeal of an administrative decision is reviewed as a de novo matter. The hearings officer is required to conduct an independent review of the record, is not bound by the prior decision of the planning director and does not defer to that decision in any way. The record of the initial proceedings shall, however, be made a part of the record of the appeal. New evidence may be introduced in an appeal, and new issues may be raised. The applicant/appellant must carry the burden of proof that the application complies with all applicable approval criteria in light of all relevant substantial evidence in the whole record, including any new evidence. This application is subject to Clackamas County Zoning and Development Ordinance (ZDO) Sections 202, 316, 1206, and 1307, and the County's Comprehensive Plan. The findings below identify the standards and criteria that are relevant to this decision, state the facts relied upon in rendering the decision, and explain the justification for the decision. This appeal concerns a Planning Director decision approving application File No. Z0424-25 seeking approval of an application for an alteration of a previously verified and approved non-conforming use on the subject property.

Numerous reasons were submitted by the appellant and members of the public for opposing this application and requesting it should be denied that are not relevant to the approval criteria. Several statements were made to the effect that the NCU does not belong in this neighborhood, or does not fit the character of the area, or is incompatible with RRFF-5 zoning or statewide planning goals, or with the Rural Reserve, or that local roads are insufficient. All of this may be true but is not relevant here because a verified non-conforming use is a use that exists before restrictive zoning laws and such an existing use is not eliminated just because restrictive zoning laws are enacted. Rather, the NCU continues as a legal use that does not conform to such zoning and is often incompatible with the allowed uses within the zone. Similarly, the NCU is not dependent on residential use of the property. A primary use of RRFF-5 property is required to obtain land use approval under current zoning laws, such as for a home occupation on such property, but the NCU here was never an approved home occupation or dependent on a primary residential use of the property. Further, the NCU itself is established by the use that existed at the time the property became subject to restrictive zoning, and continues with the property regardless whether the operator changes, and can be altered or changed provided the alteration or change will, after the imposition of conditions, have no greater adverse impact to the neighborhood than the existing physical structure, improvements, or use. Alleged property value impacts are also not relevant to the applicable approval criteria.3 The findings below identify the standards and criteria that are relevant to this decision, state the facts relied upon in rendering the decision, and explain the justification for the decision.

1. Background and Overview of Applicant's Proposal: The applicant is requesting an alteration of a Nonconforming Use (NCU). The site was previously used concurrently as a metal fabrication business and car, motorcycle, truck, and farm/industrial equipment repair shop. The applicant is requesting approval for an asphalt cutting and coring business. The subject property was initially zoned R-30 on December 14th, 1967 and changed to the current RRFF-5 zoning on July 31, 1978. Both of these zoning designations restricted commercial and industrial uses such as metal fabrication and auto repair. A non-conforming use (NCU) consisting of a commercial business using an existing 40x60 original shop building was engaged in metal fabrication, welding, machine work, and equipment storage, and was established on the site prior to the 1967 rural zoning. A 40x50 addition to the original shop building was approved by the County in 1971, subject to conditions for fencing or landscaping, and access definition. An alteration to this NCU was approved by the County in File No. Z1522-97-E on October 23, 1997. This alteration approved the NCU to expand and allow the disassembly of steel casings, substituting existing electrical casing disassembly for this work, finding this alteration would have no greater adverse impact on the neighborhood than the current use or level of activity associated with the site. Another alteration to this NCU was approved by the County in File No. Z1522-97, approved October 23, 1997, for applicant Donald Evans4 (ACT Painting & Fabrication LLC). This alteration/change in use altered the existing metal fabrication use to allow auto body repair and painting services, frame/chassis repair and modifications, truck, motorcycle, and farm machinery and implement repair and fabrication, in addition to the metal fabrication use. The use included vehicle body repair and painting, frame/chassis repair, alteration and fabrication, truck bed fabrication, truck accessory fabrication (e.g. steps and handrails, etc.), and repair and fabrication of farm machinery and implements. The work was approved to occur within the existing 40x110 shop. The approval included use of a fenced outdoor storage area for vehicle and materials storage and a front parking and storage area. The approval also noted that an existing mobile home on the site is allowed as a primary use in the current RRFF-5 zoning for the property. Hours and days of operation were limited to an eight (8) hour work day with one (1) additional hour for lunch periods "and shall not begin operations prior to 6:00 a.m. or later than 67:00 p.m." Mondays through Fridays with no more than eight employees. The alteration of the NCU was approved as reasonably necessary in order to continue the existing use, with findings that with conditions the alteration would have no greater adverse impact on the neighborhood than the existing use, noting the existing commercial/industrial uses including metal fabrication, welding, painting, and construction equipment repair and maintenance.

From 1997 until approximately April 2024, ACT Painting & Fabrication LLC continued operating on the subject property. Exactly when ACT Painting & Fabrication LLC ceased operating is a fact contested by the appellant that is discussed further in the section addressing discontinuation. The applicant purchased the property in July of 2025 and has been using it as a base of operation for his business, Fritz Cutting and Coring Inc., an asphalt and concrete cutting business. The applicant states he does not conduct asphalt or concrete cutting work on site, and no customers come to the subject property. The subject property is used to park fleet vehicles and prepare and repair equipment as needed. The applicant states that no more than eight employees, usually five to seven, come to the site for workload distribution and restroom use. The applicant's proposed working hours are between 6 am and 6 pm, with shifts not to exceed eight hours, excluding a lunch period, Monday through Friday. This is consistent with the approval of the 1997 NCU. The applicant has been operating on site since November 2025 and is retroactively seeking approval for the change in use after Code Enforcement issued an alleged violation letter, due to the change in use.

2. ZDO Section 316, Rural Residential Farm and Forest 5-acre

316.03 - USES PERMITTED
Uses permitted in each rural residential and future urban residential zoning district are listed in Table 316-1, Permitted Uses in the Rural Residential and Future Urban Residential Zoning Districts. Uses not listed are prohibited.

Finding: The proposed use is not listed in Table 316-1 and is not permitted as an outright allowed use. However, the use was established prior to restrictive zoning and is being reviewed as a Nonconforming Use as defined in Section 202 of the Zoning and Development Ordinance (ZDO): NONCONFORMING USE: "A use of any building, structure or land allowed by right when established or that obtained a required land use approval when established but, due to a change in the zone or zoning regulations, is now prohibited in the zone." This criterion is met pursuant to the discussion of ZDO Section 1206 included below.
 

3. ZDO Section 1206, Section Title
1206.01 - PURPOSE AND APPLICABILITY
Section 1206 is adopted to provide standards, criteria, and procedures under which a nonconforming use may be continued, maintained, verified, restored, replaced, and altered and under which a vested right may be determined.

1206.02 - STATUS
A nonconforming use may be continued although not in conformity with the regulations for the zoning district in which the use is located. Nonconforming use status applies to the lot(s) of record on which the nonconforming use is located and may not be expanded onto another lot of record, except as provided under Subsection 1206.07(B)(3)(a) and (b) or, in the case of nonconforming premises for marijuana production, with an alteration approved pursuant to Subsection 1206.07(C). A change in ownership or operator of a nonconforming use is permitted.

Finding: The subject property is Lot 11 of Block 2 of the Mabery Subdivision, recorded in 1912. This makes the subject lot a Lot of Record under the County's definition in Section 202 of the Zoning and Development Ordinance (ZDO). The applicant's proposal does not include an expansion onto another lot of record. The applicant is a different owner than the operator of the previously approved nonconforming, which is permitted under ZDO 1206.02. This criterion is met.

1206.03 - MAINTENANCE
Normal maintenance of a nonconforming use necessary to maintain a nonconforming use in good repair is permitted provided there are not significant use or structural alterations. Normal maintenance may include painting; roofing; siding; interior remodeling; re-paving of access roads, parking areas, or loading areas; replacement of landscaping elements; and similar actions.

Finding: The applicant is not proposing normal maintenance. Normal maintenance will be permitted in the future under ZDO 1206.03, in compliance with applicable ZDO standards at the time of potential future maintenance. This criterion is not applicable. 
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1206.04 - DISCONTINUATION
A. If a nonconforming use is discontinued for a period of more than 24 consecutive months, the use shall not be resumed unless the resumed use conforms to the requirements of this Ordinance and other regulations applicable at the time of the proposed resumption.

Finding: The applicant states that ACT Painting & Fabrication LLC operated at the site prior to the applicant's business, Fritz Cutting and Coring, Inc. ACT Painting & Fabrication LLC was a registered business at the site from 3/23/19985 until 8/22/24, when articles of dissolution dated June 30, 2024 for the ACT Painting & Fabrication LLC business were filed with the Oregon Secretary of State. The owner of ACT Painting & Fabrication LLC applied for a NCU Verification and Alteration in 1997 which verified use of the site for a metal fabrication use that had been operating since prior to adoption of restrictive zoning laws in 1967 and allowed auto body repair and painting services, frame/chassis repair and alterations, truck, motorcycle, and farm machinery repair, in addition to continuing the existing metal fabrication use.

The applicant provided the business card for Dave Evans (the previous business owner) showing his business card gives the subject property site address, as well as photos stated to be from 1997 until the present. The appellant points out that the photos are not dated. I reviewed the submitted photos and found them consistent with the applicant's statement. I also noted that two photos are of a damaged white pickup displaying March 2023 vehicle registration tags, the first photo appearing to show the vehicle as it was towed to the site, and the second photo appearing to show the vehicle going through significant repairs with its pickup bed removed, the top of the cab removed, and doors, windows, and windshield also removed. There are also photos of at least one pickup cab being delivered to the site, and the use of a forklift to move it. The photos submitted by the applicant show numerous large commercial vehicles that similarly appear to be undergoing repairs, painting, and modifications consistent with the described business operations of the former business, and use of the parking area on Lusted Road and storage and parking areas inside the fenced area as shown on the ACT Painting & Fabrication site plan.

The applicant supplied dated aerial photographs from 1995 to April 2024 showing various types of vehicles have consistently been parked on site, including passenger cars, pickups, and commercial vehicles and equipment consistent with the approved uses shown on the ACT Painting & Fabrication site plan. A comparison of the April 2024 aerial photo submitted by the applicant with the April 2023 aerial photo submitted by the applicant shows numerous differences in the types and locations of vehicles stored on the site, consistent with an active business. The applicant submitted an aerial photo dated July 2024 that shows most of the vehicles and items stored on the site shown as shown in the April 2024 photo were removed, consistent with the business activity ceasing at about that time, as asserted by the appellant. The previous property owner, Dave Evans, supplied an affidavit stating he operated the business6 without interruption from 1997 until 2024. I was persuaded by the substantial evidence submitted by the applicant that the non-conforming use on the property continued through at least April 2024 and perhaps through July 2024 as the former owner was apparently still winding down his business operations at that time. An April 22, 2025 aerial photo shows all of the vehicles and materials, the mobile home and office trailer, and much of the vegetation and fencing formerly visible on the site, were removed. The property was then purchased in July 2025 by the applicant's business, K & H Fritz Co LLC.

The current property owner, Mr. Fritz, submitted this application for alteration of a non-conforming use on October 13, 2025, and it appears that by November 2025 the applicant was parking fleet vehicles and equipment associated with his business, consistent with his requested alteration (reviewed under ZDO 1206.07). Further, since purchasing the property the applicant has engaged in substantial activity demonstrating the continuation of commercial non-conforming use of the property, including replacing and repairing fencing and clearing and graveling the storage and parking areas, consistent with his application for alteration of the existing NCU. The appellant contends that the current use is substantially different from the approved NCU as operated by David Evans and ACT Paining & Fabrication. The use by the applicant does not appear to continue the metal fabrication, auto body, or painting activities, but does continue the vehicle, equipment, and materials storage activities, as well as repair and maintenance of construction equipment. Regardless, the question here is whether the non-conforming use was discontinued for a period of more than 24 consecutive months prior to the date this application for alteration of the non-conforming use was submitted. In other words, whether the use was discontinued prior to October 13, 2023. As discussed, I was persuaded by the substantial evidence submitted by the applicant that the non-conforming use was continued through at least April 2024. Thus, the applicant has demonstrated that the non-conforming use has not been discontinued for a period exceeding 24 months. This criterion is met.

B. Notwithstanding Subsection 1206.04(A) and pursuant to Oregon Revised Statutes (ORS) 215.130(7)(b), a nonconforming surface mining use shall not be deemed to be discontinued for any period after July 1, 1972, provided:

1. The owner or operator was issued and continuously renewed a state or local surface mining operating permit, or received and maintained a state or local exemption from surface mining regulation; and

2. The surface mining use was not inactive for a period of 12 consecutive years or more. Inactive means no aggregate materials were excavated, crushed, removed, stockpiled, or sold by the owner or operator of the surface mine.

Finding: The applicant is not proposing surface mining. This criterion is not applicable.

C. Notwithstanding Subsection 1206.04(A), marijuana production may not be resumed on a premises for which a marijuana producer holds a production license issued under ORS 475B.070 and which is nonconforming to the regulations for the zoning district in which the production is located if the premises is not used for marijuana production for a period of at least 12 calendar months, unless the marijuana production conforms to any zoning requirements or regulations applicable at the time of the proposed resumption.

Finding: The applicant is not proposing marijuana production. This criterion is not applicable.

1206.05 - VERIFICATION
Verification of nonconforming use status requires review as a Type II application pursuant to Section 1307, Procedures, and shall be subject to the following standards and criteria:

A. The nonconforming use lawfully existed at the time of the adoption of zoning regulations, or a change in zoning regulations, which prohibited or restricted the use, and the nonconforming use has not been subsequently abandoned or discontinued. Once an applicant has verified that a nonconforming use was lawfully established, an applicant need not prove the existence, continuity, nature, and extent of the nonconforming use for a period exceeding 20 years immediately preceding the date of application for verification; or

B. The existence, continuity, nature, and extent of the nonconforming use for the 10-year period immediately preceding the date of the application is proven. Such evidence shall create a rebuttable presumption that the nonconforming use, as proven, lawfully existed at the time of, and has continued uninterrupted since, the adoption of restrictive zoning regulations, or a change in the zoning or zoning regulations, that have the effect of prohibiting the nonconforming use under the current provisions of this Ordinance.

Finding: The NCU was previously verified under Z1522-97, which verified the metal fabrication use approved under ENCU-1-71, a 1971 verification and alteration of the NCU. The previous verification approved the site for metal fabrication and the painting, repair, and modification of cars, trucks, motorcycles, and farm equipment. This included fabricating truck beds and farm machinery and their parts on site, as well as frame/chassis repair, and painting. The applicant demonstrated, pursuant to ZDO 1206.04, that this use continued uninterrupted since 1997. The photos, both on the ground and aerial, demonstrate the extent of use, with significant volumes of vehicles to be repaired parked on site, including large farm and construction vehicles. This application received a large volume of public comment; however, none seriously disputed the historic use of the site, nor the legal establishment of the NCU. The hearings officer finds based upon substantial evidence that the use was legally established based on previous Land Use decisions, and that the applicant proved the existence, continuity, nature, and extent of the nonconforming use from 1997 on, which exceeds the 20 years required under ZDO 1206.05(A). This criterion is met.

1206.06 - RESTORATION OR REPLACEMENT FOLLOWING DAMAGE OR DESTRUCTION
If a nonconforming use is damaged or destroyed by fire, other casualty, or natural disaster, such use may be restored or replaced consistent with the nature and extent of the use or structure lawfully established at the time of loss, subject to the following conditions:

A. Alterations or changes to the nature and extent of the nonconforming use as lawfully established prior to the fire, other casualty, or natural disaster shall not be permitted under Subsection 1206.06, but may be permitted pursuant to Subsection 1206.07.

B. Physical restoration or replacement of the nonconforming use shall be lawfully commenced within one year of the occurrence of the damage or destruction. Lawfully commenced means the lawful resumption of the nonconforming use or the issuance of a land use, building, on-site wastewater treatment system, grading, manufactured dwelling placement, residential trailer placement, plumbing, electrical, or other development permit required by the County or other appropriate permitting agency that is necessary to begin restoration or replacement of the nonconforming use or structures and resumption of the nonconforming use.

C. The nonconforming use status of the use to be restored or replaced, and the nature and extent of the nonconforming use, shall be verified pursuant to Subsection 1206.05.

Finding: The Non-Conforming Use has not been damaged or destroyed. This criterion is not applicable.

1206.07 - ALTERATION
A. Alterations Required by Law: 
1. The alteration of any nonconforming use shall be permitted when necessary to comply with any lawful requirement for alteration of the use or structure, subject to building, plumbing, sanitation, and other specialty code permit requirements in effect at the time the alteration is commenced. Additional conditions shall not be imposed upon the continuation of a nonconforming use when an alteration is required to comply with local or state health or safety requirements, except as provided in Oregon Revised Statutes (ORS) 215.215 pertaining to the re-establishment of nonfarm uses in the EFU District.
2. Alterations to a premises for which a marijuana producer holds a production license issued under ORS 475B.070 shall be permitted when necessary to comply with a lawful requirement for alteration in production.

Finding: The applicant is not proposing an alteration required by law. This criterion is not applicable.

B. Alterations Not Required by Law: Except as provided in Subsection 1206.07(C), an alteration of a nonconforming structure or other physical improvements, or a change in the use, requires review as a Type II application pursuant to Section 1307, Procedures, and shall be subject to the following standards and criteria: 
1. The alteration or change will, after the imposition of conditions pursuant to Subsection 1206.07(B)(4), have no greater adverse impact to the neighborhood than the existing structure, other physical improvements, or use.

Finding: The applicant is proposing to alter the use verified under Z1522-97 to allow for the operation of his asphalt cutting and coring business. The site is currently approved for a metal fabrication business providing car, motorcycle, truck, and construction/farm/industrial vehicle and equipment repair, maintenance, modification, and painting, with on-site storage of vehicles and materials, a large 4,400 sq ft shop, and an office. The site was approved for operating hours of 6 am to 6 pm weekdays (no weekends) with no more than eight-hour work shifts, excluding an hour lunch, and no more than eight employees.

The applicant's proposed alteration does not include any expansion of the previously approved work hours or number of employees or workday schedule. The applicant submitted a supplemental statement to the proposal on 2/18/26 clarifying that the operational hours will remain consistent with the approved NCU and are between 6 am and 6 pm, Monday through Friday, with no more than eight employees, and no after-hours or weekend "call outs" as were referenced in the original application. This is not an alteration as there is no change to the operational hours, employee volume, or the number of vehicles stored on site of the previously verified use. The change of use is addressed as an alteration and evaluated for compliance with ZDO 1206.07 below.
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The applicant is proposing changing the use to the base of operations for his asphalt cutting and coring business. On-site business operations will include parking of fleet vehicles, servicing and loading vehicles, fabrication and maintenance of tools, testing equipment, preparing work assignments, and employee restroom use. The concrete and asphalt cutting operations are conducted entirely off-site and no concrete processing or cutting is performed on-site. The application received significant public comment in opposition to this proposal, with the primary issues related to assertions of actual or potential greater adverse impact to the neighborhood identified as:

• Operational hours and disturbances, including after-hours access;
• Noise from use of equipment on site;
• Visual blight created by the use, pointing to placement of storage containers and parking of heavy machinery and trucks, vehicles and equipment, with removal of trees and vegetation and removal of the mobile home and mobile office that formerly provided screening of these areas of the site and a more residential appearance;
• Significant increase in traffic along SE Lusted Road and noise from larger vehicles going in and out of the property, including noise from industrial vehicles, equipment, and early morning dispatching, and increased traffic with more dangerous heavy box truck vehicles;

Operational hours: The operational hours, number of employees, and after-hours access remain unchanged from those of the original NCU. Thus, imposing a condition requiring the use remain limited to an eight-hour work day with one additional hour for lunch periods and not begin prior to 6am or end later than 6pm, limited to Monday through Friday as provided for the original NCU, is sufficient to ensure that the applicant's proposal will not create greater adverse impacts than the previous use with respect to operational hours and disturbances, and after-hours access.

Noise from use of equipment on site: The appellant (Ms. Voruz) points to the use of the property by the applicant and asserts that her neighborhood's experience of increased noise is related to the applicant's activities at the site. The applicant (Mr. Fritz) asserts that the noise is not coming from his activities, contending the noise is attributable to ongoing construction activity by the Portland Water Bureau related to the Bull Run filtration and water infiltration projects. Mr. Fritz reports the PWB project is engaged in construction and digging 30-40 feet underground from a site near his property, and asserts the noise is from their equipment. Ms. Voruz and her husband dispute this explanation, describing the applicant's site as directly to the right of their property as they face towards SE Lusted Road, whereas the PWB location is to their left and ? mile away, asserting it is easy for them to discern that the noise is coming from the applicant's site. (The Voruz property is located on SE Dodge Park Blvd. and is behind and to the side of the applicant's site, appearing to share a common diagonal corner at the rear of each property.) Three other families residing on SE Lusted Road near the applicant's property submitted written statements reporting they have not experienced any unusual or excessive noise from the site, or from early or late activity, or any of the negative impacts described by other neighbors. The Cervantes family reports living directly next door to the applicant's property and assert they would be the first to notice any significant noise or negative impacts, further noting that Ms. Cervantes mother is home throughout the day. Similarly, the Al-Meer family lives directly across SE Lusted Road from the applicant's property, reporting they have not experienced any unusual or disruptive noise, and also assert they would be the first to notice. Mr. Wallace reports living on SE Lusted Road near the proposal site since 2019 and states he has not experienced any of the negative impacts described in comments submitted by others. Mr. Wallace describes the applicant's activities as quieter than the previous NCU business activity, with no noise from heavy equipment or early or late activity, conjecturing the reports of disturbing noise are from unrelated construction activities.

The existing NCU on the property verified in 1971 was related to metal fabrication, repair and maintenance of construction equipment, product painting and storage of materials for a business with a maximum of eight employees working eight-hour shifts between 6 am and 6 pm weekdays, with 4,400 square feet of shop space and an office trailer. In 1997 the Evans brothers obtained approval of their application for alteration of the NCU on the property for their ACT Painting & Fabrication business, adding auto body repair, motorcycle, truck and farm/industrial equipment alterations and painting, and related storage, in addition to existing metal fabrication and other uses. The ACT Painting & Fabrication business continued the NCU of the property through approximately April 2024.

Photographs of the activities of the ACT Painting & Fabrication business show that large and noisy farm and commercial/industrial/farm vehicles and equipment were often on-site being repaired, modified, disassembled, reassembled, and painted, and these vehicles were parked on-site in various locations including a designated parking and storage area located in the front of the property that was not screened at all. Additionally, an autobody repair shop would have received many on-site customers and insurance adjusters as supported by the existence of the office trailer, with these visits creating additional noise and traffic. I note that this business was engaged in metal fabrication, repair and modification work with associated cutting, grinding, and welding, and use of tools such as grinders, rivet busters, sanders, and other air-powered tools, which would have produced excessive noise, and public comments submitted concerning the previous use described the undesirable noise from these tools. Further, the photographs show that vehicles were towed to the site and were also brought in on large flat-bed trailers, and I note these are noisy activities. Photographs also show use of a forklift on site, another noisy activity. I note that moving these damaged vehicles is noisy, involving starting vehicles with working engines and moving them, or using the forklift or other equipment to move them. The larger farming and industrial vehicles would also have been quite noisy when operating or being repaired or tested. I also note that repair and modification work on any of these vehicles and equipment would have been quite noisy even when it took place within the large shop, as this type of work involved cutting and grinding metal, welding, and the use of air compressors and powered tools.

Mr. Fritz asserts that the noise described by his neighbors and Ms. Voruz is not coming from his activities, stating that the concrete and asphalt cutting and coring work his business is engaged in takes place off-site, with only storage, maintenance, testing, and repair of vehicles and equipment taking place on site, but rather is from the nearby PWB construction activities. County staff verified that the applicant's property is approximately 700 feet from a site involved with the PWB project and verified that the PWB is constructing a new pipeline with that site being used for temporary staging and construction activities in support of that project. I agree that it is feasible that at least some of the reported noise concerns originate at the PWB site. However, as discussed above, there is substantial evidence that the activities associated with the non-conforming use of this property included significant noise similar or greater than the noise associated with the applicant's current activities. 
The imposed condition requiring the use remain limited to an eight-hour work day with one additional hour for lunch periods and not begin prior to 6am or end later than 6pm, limited to Monday through Friday as provided for the original NCU, is sufficient to ensure that the applicant's proposal will not create greater adverse impacts than the previous use with respect to noise from the applicant's activities.

Visual blight: Ms. Voruz and several public commenters also assert a visual blight created by the applicant's use of the property. The question here is whether the proposed change in use will, after the imposition of conditions, have a greater adverse impact to the neighborhood than the existing structure, other physical improvements, or use.

Based on photos provided by the applicant, the appellant, and the public, there are recent dramatic changes to the appearance of this property. The previous use by ACT Painting & Fabrication included visual impacts involving numerous vehicles, including damaged and/or inoperable vehicles and large farm/commercial/industrial vehicles and equipment, and various parts and materials parked or stored on the property, which is to be expected due to the nature of the former auto repair and metal fabrication use. Nevertheless, the large number of damaged and inoperable vehicles parked or stored on the site gave it a general appearance like a wrecking yard. The previous use also included a 4,400-square-foot workshop with a large front-facing rollup door, with an industrial appearance. In addition, previous structures shown in the photos included an older, dilapidated-appearing mobile home, and an older mobile office structure. While these structures included some landscaping that arguably gave the property a more residential appearance, these structures appeared poorly maintained with photos showing plastic tarp over portions of the roofing. The previous property owner removed much or all of the landscaping and fencing (which was older and falling down in sections) and the older mobile home and mobile office structures before selling the property to the applicant in July 2025.

Ms. Voruz and several other neighbors point to these changes and describe them as creating visual blight, essentially describing the prior structures, physical improvements, and use as fitting in better with the existing residential character of the neighborhood. Ms. Voruz, submitted photos of the applicant's use of the property showing the tops of what appears 2-3 personal use vehicles parked behind the shop in the area designated for employee parking on the applicant's site plan, the top of what appears a large equipment trailer, a flat-bed work truck, the top of some type of orange-painted industrial equipment mounted on a trailer, 1-2 other flatbed trailers visible through an open gate, two Conex-type storage containers and a dumpster also visible through the open gate and over the top of the fence, and portions of three of the applicant's fleet vehicles visible in photos taken through the open gate in the screening fence. She also submitted similar photos taken from the public roadway with the gate closed, showing the top of the orange-painted equipment, at least one of the Conex-type storage containers, and portions of the applicant's fleet vehicles are visible over the top of the fence with the gate closed, as well as a photo showing a vehicle parked in front of the rollup door to the shop. One commentator opposed to this application expressed concern regarding the environmental safety of the paint on the containers stored by the applicant. I note that the site was previously used for commercial auto body painting, which involves the use of hazardous paints and solvents and find the applicant's painted shipping containers generate significantly less potential adverse environmental safety impacts compared to the previous use.

Although the vehicles and equipment parked in the parking areas or stored in the storage yard behind the screening fence remain at least partially visible, there are far fewer vehicles and equipment on the property associated with the applicant's use of the site than were visible in the photos showing vehicles and equipment associated with the NCU in the past. The front storage area is largely clear of any vehicles or equipment whatsoever and the storage yard that formerly stored dozens of vehicles and large amounts of materials is now largely empty. The three neighbors residing on SE Lusted Road near the applicant's property who submitted written statements in support of the application appear to view the changes in the appearance of the property as improvements, variously stating there is no visual blight and no negative impacts, describing the applicant as a positive addition to the community, and describing the property as well-maintained.

The new owner/applicant, Mr. Fritz, installed new sight-obscuring fencing with razor-wire and a large steel gate, grading and graveling the entry and storage yard areas of the property, further changing the property's visual appearance to that of a more strictly industrial property. The applicant's new fence significantly limits but does not eliminate the public's ability to view the operations from the public right-of-way, particularly when the gate is open. The applicant's sight-obscuring fence also limits but does not eliminate view of the vehicles and equipment in the storage yard from surrounding properties. The 1997 decision conditioned sight obscuring fencing or sight obscuring trees and shrubs along sections of fencing where adjacent neighbors can see into the property. The rear of the property still appears to contain trees, although a portion of the trees and vegetation that were within this formerly undeveloped area have been removed as pointed out by Ms. Voruz.

To limit any impacts to the neighborhood, the applicant shall be required to maintain the minimum fencing or landscaping needed along the east and west property lines to limit the visual impact on adjacent neighbors. The County did not receive comments in opposition from either neighbor to the east or west. The applicant shows on their site plan that there is now fencing on the north, east, and west property lines. The fencing does not appear to extend all the way to the south property line, but that area contains significant vegetation and there are not nearby adjacent structures or parking and storage in that area. Most of the applicant's use takes place on the north of the property, near the large workshop located near SE Lusted Road, not necessitating the need for sight obscuring fencing all the way to the south property line. Additionally, the applicant has proposed parking the fleet vehicles behind the existing workshop structure on site, further reducing (but not eliminating) the visual impacts. By comparison, the previously approved NCU allowed parking and storage of equipment, materials, and vehicles in various states of disrepair all over the property, including designated areas directly adjacent to SE Lusted Road that were not screened at all. The NCU never required any residential use of the property. The change of use with new sight-obscuring fencing, as installed and conditioned, does not appear to generate any greater adverse impacts related to visual impacts on the property, compared to the previous use.

Increased traffic and noise from larger vehicles: Regarding the concerns of larger vehicles being parked and driven on site, while this could create greater adverse impacts, as discussed in the previous section regarding noise, photographs of the previous use show that large vehicles were often on-site. Photos show large farm and industrial vehicles and equipment were brought to the site and were repaired, maintained, and modified on site, with aerial photographs spanning the last 20 years showing the tops of large vehicles on site in various locations at various different times.

Further, the photographs show that vehicles were towed to the site and were also brought in on large flat-bed trailers, generating traffic and noise associated with this activity. Additionally, as previously noted, an autobody repair shop would have received many on-site customers and insurance adjusters as supported by the existence of the office trailer, with these visits creating additional noise and traffic. The larger farming and commercial or industrial vehicles would also have created significant traffic and noise as they were brought to and from the site. The vehicles in the applicant's business fleet are of comparable or smaller size by comparison. Further, neighbors residing on SE Lusted Road near the applicant's property who submitted written statements in support of the application report observing no negative traffic impacts from the applicant's use. The activities of the applicant are different, but the traffic and associated noise generated by the previous NCU of the property was at least as impactful to area traffic and associated noise as the applicant's current use of heavy box trucks, moving of equipment on flat-bed trailers, and parking of employee vehicles. Ms. Voruz and other public commentators opposing this application stated they could hear vehicles entering and leaving the site during early and late hours. The condition limiting hours of operation requires fleet vehicles arrive and depart within the proposed hours of operation, 6 am to 6 pm, to reduce potential noise impacts and limit the impacts from larger vehicles. The hearings officer finds based upon this substantial evidence that the applicant's use of larger vehicles does not exceed the previous use and, as conditioned, will not create greater adverse impacts

Staff provided the following additional statement responding to concerns by Ms. Voruz, the Cottrell CPO, and other community members regarding the lack of residential use of the property by the applicant:

The public also relayed concerns regarding the removal of a mobile home on the property. From staff's understanding, there was a mobile home on the property that the previous property owner and business owners lived in, that also served as an office. Single family residences (SFR) are an allowed primary use within the RRFF-5 zoning district and the removal or placement of an SFR is not subject to the standards in ZDO Section 1206. While staff acknowledge the public's concern that the use of the property is now primarily commercial and not mixed residential and commercial, the NCU is related to continual commercial use of the property, and not dependent on residential use, or the lack thereof, which is allowed outright by ZDO Section 316. The public generally objected to the commercial use of the property, and the existence of said use within their residential zoning district. As established earlier in the decision, this use predates the RRFF-5 zoning designation, and previous historical zoning designations that would have restricted said use. Nonconforming uses are a permitted use within the RRFF-5 zoning district, even though their use may not be congruent with the currently allowed uses within the RRFF-5 zoning district, which is why they are considered Nonconforming Uses and reviewed under Section 1206 of the ZDO.

Finding: After review of the substantial evidence submitted in this matter concerning the previously approved use of the site and the applicant's proposal, I conclude that the applicant's proposal for alteration to the non-conforming use will not, after the imposition of conditions, have any greater impact to the neighborhood than the previously existing structure(s), physical improvements, or use. This criterion is met.

2. The nonconforming use status of the existing use, structure(s), and/or physical improvements is verified pursuant to Subsection 1206.05.

Finding: The use complied with the criteria in ZDO 1206.05. This criterion is met.

3. The alteration or change will not expand the nonconforming use from one lot of record to another unless: 
a. The lot of record on which expansion is proposed and the lot of record on which the nonconforming use currently is established have been part of the same tract continuously since the date the nonconforming use became nonconforming; or
b. The expansion would allow only for facilities necessary to support the nonconforming use, such as driveways, storm water management facilities, and on-site wastewater treatment systems.

Finding: The applicant is not proposing the use expand from one lot of record to another. This criterion is not applicable.

4. Conditions of approval may be imposed on any alteration of a nonconforming structure or other physical improvements, or a change in the use, permitted under Subsection 1206.07(B), when deemed necessary to ensure the mitigation of any adverse impacts.

Finding: Conditions of approval have been adopted to ensure the use does not create greater adverse impact than the previous use. This criterion is met.

C. Alterations to Nonconforming Marijuana Production Premises Not Required by Law: Alterations in production or in a building, structure, or physical improvement associated with a nonconforming premises for which a marijuana producer holds a production license issued under ORS 475B.070 requires review as a Type II application pursuant to Section 1307 and shall be subject to the following standards and criteria:
1. The alterations will have no greater adverse impact to the surrounding area than the premises' existing production or its existing associated buildings, structures, and physical improvements; and
2. The number of calendar months in which the premises have not been used for marijuana production since the premises became nonconforming does not exceed 12.

Finding: The applicant is not proposing marijuana production. This criterion is not applicable.

3. ZDO Section 1307, Procedures:
This section provides standards and criteria for processing land use applications according to their type. This application was processed by the County as a Type II Permit, pursuant to Section 1307, whereby the County Planning Director is the initial decision-maker, and the Hearings Officer is the Appeal Review Authority. See Table 1307-1: Land Use Permits by Procedure Type. These procedures were followed and no further written findings regarding Section 1307 are warranted.

D. DECISION

Based on the findings, discussion, conclusions provided or referenced and incorporated herein, and the public record in this matter, the Hearings Officer hereby APPROVES application Z0424-25 for an alteration of a previously approved non-conforming use approved on the subject property, subject to the following conditions of approval:

E. CONDITIONS OF APPROVAL

The Clackamas County Land Use and Zoning staff recommended approval of this application subject to the following conditions, consistent with the April 2, 2026 Planning Director decision approving this application, reviewed, adopted and/or modified by the Hearings Officer as denoted by boldface type in italics:

1. Approval of this land use permit is based on the submitted written narrative and plan(s) filed with the County on 10/13/2025 and additional documents submitted on 2/11/26 and 2/18/26. No work shall occur under this permit, other than which is specified within these documents, unless otherwise required or specified in the conditions below. It shall be the responsibility of the property owner(s) to comply with these documents and the limitation of any approval resulting from the decision described herein.

2. The use is limited to an eight hour work day with one additional hour for lunch periods and will not begin prior to 6am or later than 6pm and shall be limited to Monday through Friday. (ZDO 1206.07(B))

3. Fleet vehicles shall not enter or leave the property before 6am or after 6pm. (ZDO 1206.07(B))

4. The applicant shall maintain all existing fencing or landscaping as shown on the site plan. (ZDO 1206.07(B))

5. The applicant shall conduct noise producing work inside the building on site, whenever possible. (ZDO 1206.07(B))

Dated: June 8, 2026

Carl D. Cox
Clackamas County Hearings Officer
 

PERMIT EXPIRATION

Pursuant to ZDO Subsection 1206.08, approval of an Alteration of a Non-Conforming Use is valid for two years from the date of the final decision. Unless an appeal is filed, the date of the final decision is the "decision date" listed above. During this two-year period, the approval shall be implemented, or the approval will become void.

Implemented means all major development permits shall be obtained and maintained for the approved alteration of a nonconforming use, or if no major development permits are required to complete the development contemplated by the approved alteration of a nonconforming use, implemented means all other necessary County development permits (e.g., grading permit, building permit for an accessory structure) shall be obtained and maintained. This is the only notice you will receive of this deadline.

APPEAL RIGHTS

ZDO 1307.10(F) provides that, with the exception of an application for an Interpretation, the Land Use Hearings Officer's decision constitutes the County's final decision for purposes of any appeal to the Land Use Board of Appeals (LUBA). State law and associated administrative rules promulgated by LUBA prescribe the period within which any appeal must be filed and the manner in which such appeal must be commenced. Presently, ORS 197.830(9) requires that any appeal to LUBA "shall be filed not later than 21 days after the date the decision sought to be reviewed becomes final." This decision is "final" for purposes of a LUBA appeal as of the date of the decision appearing by my signature. 
 

1 Application Z0088-25 was denied for several reasons, including: 1) The 2005 NCU alteration was not lawfully implemented (required building permits were not obtained); 2) water supply records demonstrated a consecutive 34-month disruption in water consumption and use; 3) the applicant failed to demonstrate the upper level of the building was continuously used as an office; and 4) evidence demonstrated the upper level was converted to residential space. The denial was appealed and the denial upheld following a public hearing before a County hearings officer.
2 See ZDO Table 1307-1. Also See ZDO 1307.03(B), stating that the Planning Director includes "any County staff member authorized by the Planning Director to fulfill the responsibilities assigned to the Planning Director by the [ZDO]." County Planner Mya Ganzer acted in this capacity.
3 The Land Use Board of Appeals ("LUBA") held that "[p]otential loss of property value does not affect the use of surrounding properties for residential and other primary uses within the meaning of ZDO 1203.01(D). . ." Tylka v. Clackamas County, 34 Or LUBA 14 (1998).

4 It appears that Donald Evans and David Evans were brothers operating this business together.
5 ACT Painting & Fabrication LLC's Registered Agent and Manager is David Evans and formerly operated as "ACT Painting & Fabrication" at the same address, naming David Evans as its Registered Agent and Registrant.
6 The affidavit describes Mr. Evans as the owner of the property; however, Mr. Evans only owned the business on the property and not the property itself.
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Hearings Officer Final Order 18 of 18
Z0424-25 (Appeal: NCU-Alteration)

Hearings Officer Final Order 1 of 18
Z0424-25 (Appeal: NCU-Alteration)