January 12, 2005

1:30 p.m.

Commissioners' Conference Room




Commissioner Anna Morrison presided with Commissioners Bill Dwyer, Bobby Green, Sr., Peter Sorenson and Faye Stewart present.Assistant County Counsel and Recording Secretary Melissa Zimmer were also present.




a. SECOND READING AND PUBLIC HEARING/Ordinance No. PA 1220/Amending the Rural Comprehensive Plan to Redesignate Land From "Forest" to "Marginal Land" and Rezoning That Land From "F-2/Impacted Forest LandsĒ to "Ml/Marginal Land", and Adopting Savings and Severability Clauses (File PA 03-5901; Carver) (NBA & PM 12/15/04)


Thom Lanfear, Land Management, reported that this is a request to change the plan designation from forestlands to marginal lands and a concurrent request to rezone the property from F-2 to marginal lands.He indicated the subject property is located south of the Eugene city limits and the urban growth boundary at the end of Ridgeway.He said it is approximately 42 acres in size.He stated the proposal is being evaluated under ORS 197.247 that addresses marginal lands for Lane County.He said it contains two requirements that need to be met by the applicant: an income and productivity test as a way of identifying lands that are not prime farm or forest lands and allows them to obtain the marginal land category.He indicated the application has been through the Planning Commission and in June they forwarded a recommendation to the Board for approval of this application.He stated the applicant appears to meet both the income and productivity test and staff is recommending approval of the application.


Morrison asked the Board if there were any ex parte conflicts.


There were none.


Commissioner Morrison opened up the Public Hearing.


Steve Cornacchia, Eugene, stated he represented the applicants Juliet and Roy Carver.He said that Lanfear did a good job of providing the Board with a staff report that sets out the criteria necessary for the applicant to demonstrate compliance and fulfillment.He commented that the applicant met the criteria.He added the Planning Commission voted unanimously to approve this matter with the same foundation.He explained the marginal lands concept was developed by the legislature in the 80ís to deal with those lands that lie between the fertile agricultural soils of the valley floor and the forested areas.†† He said it is those areas that are not prime resource land and not a good candidate for high-level rural residential use.He noted that ORS 197.247 creates a series of tests, both income and productivity that the applicant has provided with a significant amount of substantial evidence that supports the demonstration that he has met those criteria.He added that evidence comes from professional consultants and Oregon Land Use Law has determined and provided as leadership, that when there is a demonstration of these types of issues, the applicantís use of professional consultation and the analysis conclusion is to be taken by the elected body as the primary evidence of the demonstration.


Cornacchia indicated the property was not managed during three of the five calendar years preceding January 1983 as part of a farm operation that produced $20,000 or more in annual gross income.He said the information and demonstration comes from the professional analysis and conclusion of Paul Davies, Extension Service that was used by the applicant.He added the property was not managed as part of the forest operation during that same time period that was capable of producing on an average over the growth cycle of $10,000 in annual gross income. He noted the property is composed primarily of soils and agricultural capability classes five through eight.He stated it was not capable of producing 85 cubic feet of merchantable timber per acre per year.


Cornacchia stated it is the position of the applicant, staff and a unanimous decision from the Lane County Planning Commission that the property is a good candidate for redesignation from marginal lands.He added it would provide an alternative to the more restrictive farm and forest zoning in the code and it would allow the uses in the marginal land-zoning district such as resource use and rural residential use as a multiple use opportunity.


Sorenson asked if there was a Measure 37 application in this.He asked if the existence of the urban growth boundary near the property had any bearing on this.


Cornacchia said the prior ownerís son stated his understanding of his parentís use of the property.He thought that was good evidence to support the demonstration.He noted the current owner purchased this property at a time subsequent to the placement of statewide planning goal considerations, marginal lands considerations and Carver is not a candidate for a waiver or non-enforcement of Measure 37.With regard to the urban growth boundary, he said that it sits next to the urban growth boundary and has nothing to do with the criteria.He said the way in which the final disposition of the property from the standpoint of use is intended, ten and twenty acre parcels is different than creating one and two acre parcel.He said they would have the opportunity to redevelop the property with urban densities that will not be constrained by a smaller size acreage.


Sorenson asked if farm deferral was relevant in this type of hearing.


Cornacchia responded it is evidence but it is not relevant and it is not excludable.He said their position is regarding forest and farm deferral.He added there is nothing in the statutes or Lane Code that sets out farm deferral as requisite criteria.He indicated it wasnít relative to the Boardís determination.


Sorenson asked if there was farm and forest deferral in this case.


Roy Carver, believed there was no farm deferral.He noted the previous owner had a forest deferral and that was carried over when they purchased the property.He didnít know if it was removed and he said it didnít have a farm deferral today.


Jim Just, Landwatch Lane County and the Goal 1 Coalition said they are concerned with the agricultural capability of the subject property.He noted half the soils on the property were class three and over two thirds are class three and four.He said the soils didnít meet that part of the productivity test based on the system that was used in 1983.He said they think the productivity and income data of the forestland doesnít meet the standards.He said the applicant used alternative methodology when the NRCS productivity is available and used it without establishing that data was produced by a methodology approved by the Oregon Department of Forestry.They didnít think it could be used in the productivity test and the applicant hadnít met his burden of proof.


Sorenson asked about the different ways of describing the soils.


Lanfear responded they have a sheet with three soils and there is a category classification for each of the three.He noted the NRCS book has a section that gives a generalized rating for the type of soil class.He said the publication (just mentioned) came out in 1987.Lanfear noted before that, Lane County had a draft from the NRCS that had the soil sheets and the same classifications for each component.He said they had a working paper they developed in 1981 that lists the classification for the complex as class six soils.He noted the data hadnít changed over time.


Cornacchia commented that the statute is clear, the proposed marginal lands are composed of predominately soils with capability class five to eight and the agricultural capability classification system in use by the U.S. Department of Agricultural soil conversation service on October 15, 1983.He noted it didnít say they could use 1997 figures that Mr. Just asked the Board to do, it says they must use the 1983 figures. He said in 1981 the classifications they were using were published and those were carried forward into 1983 by the soil survey by the Lane County agricultural classification system, in use by the U.S. D.A. at that time.He noted the comment that the applicant didnít use NCRS data was false.He said there are several circumstances where the NCRS data shows the rating is zero and in those cases what the consultant did was make use of Department of Forestry ratings for the soils. He noted the arguments before the Board were the same as those that were in front of the Planning Commission and are addressed in the findings.


There being no one else signed up to speak, Commissioner Morrison closed the Public Hearing.


Green supported this as the applicant met the criteria.


MOTION: to move to adopt Ordinance PA 1220.


Green MOVED, Stewart, SECONDED.


Dwyer commented he wasnít convinced that they were marginal lands


ROLL CALL VOTE: 3-2 (Dwyer, Sorenson dissenting).

††††††††††††††††††††††††††††††††††† .







Letter from State Representative Alan Brown.


Green indicated the Board approved his sending a letter about the truck route.Green indicated he did and Brown responded to his letter.Green noted that Brown said that they had adjusted the schedule and the Board didnít have to make a decision at this time.






There being no further business, Commissioner Morrison recessed the meeting into Executive Session at 2:30 p.m.


Melissa Zimmer

Recording Secretary