June 29, 2005

1:30 p.m.

Commissionersí Conference Room

APPROVED 11/9/05


Commissioner Anna Morrison presided with Commissioners Bobby Green, Sr., Peter Sorenson and Faye Stewart present. Bill Dwyer was present via telephone.County Administrator Bill Van Vactor, Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.




a. PUBLIC HEARING AND FINAL ORDER 05-6-29-11/In the Matter of Vacating a Portion of the Alley in Block 74 in the Plat of Gallagherís Part of the City of Florence, as Platted and Recorded in Book 30, Pages 12 and 13, Lane County, Oregon Plat Records (18-12-26-42) (NBA & PM 5/18/05).


Bill Robinson, Land Management, recalled that he was to bring this back to the board as a hearing.He said it was first presented in April and at that time the Board wanted to have it as a discussion.He added in May there was a notice and resolution.He noted since that time, public notice had been provided by posting in the area and in The Siuslaw News.He indicated the road is an approximate 300-foot by 20 foot wide alley.


Dwyer asked if there was an access road that was always available to Tax Lot 2200 and if Lane County maintained the access road.


Robinson responded that the petitioners have agreed and signed a maintenance and access agreement wherein this will be a private access.He added they would be responsible for maintaining it.He noted that this would not force access from Highway 126. He said ODOT would object to that if that were the case.He added that as long as there was a local route to get to the property, ODOT was okay with it.He said the alley continues to the west and would provide access.


Commission Morrison opened the Public Hearing.


Ted Hawkins, Florence, commented that they are the property owners that requested the vacation so they could build a home on the lot.He noted that without the vacation it was not possible to build there.He said when they purchased the lot, they had an agreement signed with all of the adjoining property owners regarding the realignment so the Hatters would have a legal access to their property.He commented that without this going through it makes the land valueless because of the way it is designed.


Juanita Hatter, Florence, indicated that she is the one who lives on the end of the street and needs the access road from the vacated alley.She stated as along as all the provisions of the easement and the road are provided(including going to their heirs) there will be access.She noted that all of this would be recorded.


Morrison asked if she had a problem with this going through.


Hatter responded that she did not.


Stewart asked Hatter if she was happy with the existing road and the access as long as the easement was recorded and it was permanent to her property.


Hatter responded that she was in agreement with this as long as the easement and road is maintained to her property.


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


Dwyer asked how providing more room so someone could put up a house was in the public interest.He also wanted to know how Hatter could enforce the agreement.


Robinson responded that the agreement is between the people who adjoin the property along the access route.He added that it is enforceable once they are in agreement by the civil portion of the law.He commented that it was the best use of their property and they believed that the public would be represented that way.


MOTION:to approve ORDER 05-6-29-11.




Green stated this was with the understanding that the agreement is recorded.


Morrison recalled in the original packet there was a copy of the grant of easement and maintenance agreement and it had been signed and needed to be recorded.


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


b. PUBLIC HEARING AND FINAL ORDER 05-6-29-12/In the Matter of the Vacation of a Portion of the Unnamed Platted Streets and Alley, in the Plat of Lake View, as Platted and Recorded in Book 10, Page 6, Lane County , Oregon Plat Records (16-07-19-11)(NBA & PM 5/18/05).


Robinson explained that this is a requirement of a subdivision that exists where the access would be changed from the way it was platted, subsequent to a replat of the property and a redesign of the lots.He indicated that ORS 92.185 requires that any access in a replat of a subdivision go through a vacation if it is not to be used.He added the condition of approval of the subdivision from planning is that this criteria be met.


Commissioner Morrison opened the Public Hearing.


Gary Jenson, Eugene, stated he is part owner of Lot 1600.He said he has the corner of the property that proposes to be vacated.He asked if his property was part of the vacation.He wanted to be included in the vacation.He asked if there was a survey by Larry Olson that touched his property.He had no objection as long as he knows that Lot 1600 does not touch the vacation in process.


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


Dwyer wanted to amend the vacation to accommodate Jenson.


Vorhes said they could initiate it by resolution and start a process on that portion.He said if they would include it here, they would have to re-notice it as it relates to that particular piece or property.


Dwyer wanted to delay this and re-notice this with Lot 1600.


Morrison asked who would cover the cost for Lot 1600.He asked if the person wanting the vacation needed to re-apply and re-pay fees.


Robinson indicated that they would have to pay.He added this action is a request of a portion of the road and the alleyway within the plat so that it is a condition of the replat.


Sorenson asked how they determine that this is in the publicís interest.


Robinson noted that staff determines whether the portion of the roadway is no longer needed by Lane County transportation.He said they ask if the property would be denied legal access by the vacation.He said they ask if vacating provides more utilization of the petitionerís property by having no negative impact on access to another portion of the road and in conjunction with the vacation, would public facility easements be reserved for additional utilities.


Stewart commented that this made sense to him.


Green said since no one showed up in opposition and since in most cases this would have been on the Consent Calendar this was pulled as a courtesy to Dwyer with a public hearing to be held.He said no one testified against it.


MOTION:to approve 05-6-29-12.


Green MOVED, Stewart SECONDED.


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


MOTION:to have the Board initiate the action that would help Gary Jenson, who was impacted by the previous order.


Morrison asked if the County would absorb the fees.


Dwyer indicated that was what he wanted.


Morrison noted that they would be subsidizing fees for a separate action that would be normally required of an applicant.


Dwyer said Jenson testified he didnít receive notice early enough to have an impact on this.


Robinson indicated that Jenson did receive notice.


Morrison asked Robinson to research this application and the process they go through on whether the notification had gone out to surrounding property owners, when it took place and who was notified and whether or not Jenson was notified when the application first came in.She said they could make a decision at that point as to whether or not they would move forward.


Stewart agreed, but if it is found that Jenson wasnít notified and he wanted to be a part of it, he agreed with allowing him that process.He added if he was notified and he didnít show up until last week, then he [Stewart] would have a problem with it.


Motion was pulled.


c. PUBLIC HEARING AND ORDER 05-6-29-13/In the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of Providing Just Compensation (PA05-5165, Robert Ericsson).


Kent Howe, Land Management, explained that this is a Ballot Measure 37 claim.He submitted a supplemental letter and he received from the state a copy of the final orders that state issued on this claim.He said the applicant Robert Ericsson owns two lots in the Green Bluff Estates subdivision, ten acres in size, each currently zoned marginal land.He acquired the property in 1973 and it was zoned agriculture, timber and grazing.He said the claimant is requesting either $1.5 million or a waiver of the land use regulations that are preventing him from the development that would have otherwise been allowed on the property at the time he acquired it.


With regard to submittal requirements, Howe said the title report that had been submitted was from 1973 and they are not sure about continuous ownership since that time.He added there is not an appraisal for value reduction that is being proposed.He noted that Ericsson made an application on 70 acres of the property when it was zoned F2 in 1995 and received a marginal lands designation that is currently on the property today.He said that allowed the property to be divided instead of an 80-acre minimum; it gave the property a ten-acre minimum.He said Ericsson created seven ten-acre parcels. He said he has since sold five of them and they have been developed with dwellings.He noted there are two remaining and the claim is for the two remaining that are vacant and zoned marginal lands.He added that under the marginal lands designation, a dwelling could be placed on those outright, and permitted without any difficulty.He said those two ten acre properties are at the minimum they could be divided under the current zoning regulations.He noted when Ericsson acquired the property in 1973, it would had allowed the property to be divided to one-acre minimum.


He said the Board needs to find that this is a valid claim and that there is a reduction in fair market value of the property as a result of the land use designation on it now.Also, the land use designation is restricting the property owner from being able to do what he could have done when he acquired the property in 1973.


Van Vactor explained that there was no title report or appraisal.He said there would be varying degrees of what proof would be under Ballot Measure 37 and until they get some court cases they donít know for sure.He thought an appraisal was the best evidence.He asked the Board what they thought the minimum level of proof was in order to prove the value to the land use regulations.He added there was correspondence from a Mr. McClary, representing James and Denise Barda, where they raise an issue of lack of water.


Stewart asked how the state addresses dollar and ownership value.


Vorhes responded that on the ownership issue, they looked at the 1973 title report that indicates a transfer to Robert Ericsson and his father.He added they also looked at the current Lane County property tax statement that indicated the owner.


Green said they need to look to see what portion of this might have caused a loss of value or have caused the person not to get the full benefit of the property.


Sorenson didnít think the application was complete.


Commissioner Morrison opened the Public Hearing.


Robert Ericsson, applicant, submitted the stateís draft report.He indicated he had a report of a realtor assessment valuation.He said he wasnít told that an appraisal was necessary because he was told the County wouldnít pay monetary damages anyway.He said he was at other meetings and appraisals werenít required for other applications.With regard to ownership, he has owned the land since 1973.He said there is not a water issue.He added that the CC&Rís deal with water.He said it is not relevant to the Measure 37 claim.He said the land was reserved for him to be divided.He said he isnít asking to divide things, he was asking for money.


Lawrence Elliot Patice, Creswell, said he received a letter from the state noting that Ericsson was asking to subdivide property.He said Ericsson was either asking for compensation from the state or to subdivide the property.He said they are bound by CC & Rís for their homeownerís association.He recalled in 1993 when the development was proposed, Ericsson was provided with demonstration of water availability that if there was not adequate water, that the development would be denied. He said they own Lot 4.He said when the property was purchased in 1998, there was no well on the property.He said they drilled a well and two weeks after they purchased the property the well went bad.He said they drilled a second well and they have had an adequate water supply.He was concerned with the lack of water.


James Barda, Creswell, presented the Board with a letter from Scott McCleary that reviewed the program.He didnít think there was a valid proof for a Measure 37 claim as there had been no monetary damages placed.He said the reason the water was brought up was there was an adequate level.He said it is an error to say Ericsson could have developed the property at one-acre levels, because there is not adequate water to build 70 to 90 single unit homes.He thought that instead of a loss, Ericsson would have a profit from the subdivision.


Howard Walton, Creswell, stated he has property adjacent to Ericsson.He asked if Ericsson divides his property into one-acre lots if he could do the same.He said that he has three dry wells on his property.


Lauri Segel, Eugene, commented that when zoning decisions were made 25 years ago, it was for the use of the land at that time.She said some land had never been zoned before.She noted that the zoning then did not reduce land values, but by protecting farm and forest uses, it increased the value of land for those purposes.She said Ericsson purchased the land on August 28, 1973 as unzoned.She added that the regulations applicable at that time were those via Ordinance 9-73 on August 15, 1973.She said the maximum number of land divisions allowed for single properties or multiple contiguous properties under single ownership were five or less. She said that Ericsson requested and was granted an upzone to marginal lands in 1991, allowing him to divide his property into ten-acre parcels.She added this upzone approval removed his property from being subject to Goal 4 regulations and allowed him more dwelling units outright than allowed pursuant to the subdivision and partition requirement of Ordinance 9-73 that were in effect when he purchased the property. She added that Ericsson had provided no substantive documentation to support his claim of loss value and as such the waiver demand should be denied.


Jennie Hunt, stated she represented Weyerhaeuser Company, Springfield.She said Weyerhaeuser owns forestland near the property.She said they were neutral on the matter.With regard to the value, they support land value but when they reviewed the $1.5 million, they wondered how it would be supported and the applicant hadnít given adequate information to support the value.Their concern is if Lane County approves the waiver, that people who purchase adjacent property wouldnít be aware of the claim.She was also concerned about fire protection where there is small wild land urban interface.


Robert Morales, Creswell, was concerned about fire protection with the multiple one-acre lot developments.He said when a well is drilled, water is found eventually but the quality of the water fluctuates.


Dan White, Creswell, indicated that he was surrounded by Lot 3 and had lived in the area for 15 years.He stated when Ericssonís subdivision came in, it affected their quality of life.He said he has two wells on his property and one is currently dry.He added that septic is another issue. He thought the amount of loss Ericsson had was not a fair value.He commented that if this development goes in, he would have to move.


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


Ericsson said he hadnít decided whether he would put in one-acre lots.He added that water and septic are dealt with in other regulations, not Measure 37. He said the question is whether there had been a reduction of value.He said it had been addressed.He asked for a waiver.


Sorenson asked if they could keep the record open so people who asked to submit written materials could get them in.


Morrison said they would move this forward until July 13.She said the written record would be open until July 8, 5:00 p.m.


Commissioner Morrison closed the Public Hearing and kept the written record open to July 8, 5:00 p.m.


d. PUBLIC HEARING AND ORDER 05-6-29-14/In the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of Providing Just Compensation (PA05-5163, Asghar Sadri).


Howe reported this claimant owns 266 acres, Tax Lot 100 of 180502.He said it is in the exclusive farm use E-40.He said Sadri acquired the property in 1993.He noted at that time it was zoned exclusive farm use, but since the time he had acquired the property, there have been state regulations adopted that have applied additional restrictions regarding high value farm soils.Howe said that Sadri made an application and did not qualify for a dwelling under those more restrictive exclusive farm use zone requirements.


Howe indicated that Sadri did not provide any information on his claim form and he had not paid a fee for processing this application.He said there is no title report that had been provided, there are no copies of deeds that had been provided and there is no appraisal.Howe said that Sadri asserted in his claim that the demand is for $100,000 and there are no appraisals that back that up.He noted there was a letter that Sadri submitted that was a supplement and he is clarifying that he isnít interested in the demand for $100,000, he was only interested in having his property restored to the restrictions that were in effect at the time he acquired the property in 1993.Howe said the claim that Sadri had made is on one tax lot, but he owns an adjacent property that is 40 acres.He added the ownership is around 300 acres and the claim is on one tax lot that is about 266 acres in size.


Green asked why they processed an incomplete application.


Howe said this was new and the Board needed to tell staff that if a claimant isnít paying fees, they shouldnít be processing them.He said they needed direction from the Board.


Green wanted applications consistent so people come in knowing what the rules are.He wanted to give staff direction that if an application comes in, it must have a fee.


Sorenson suggested that they have the hearing, but urged the Board that they donít take action until such time as the filing fee is paid.


Van Vactor indicated that the property was zoned EFU when the claimant became entitled to the property.He noted what Measure 37 says is just compensation shall be equal to the reduction of the fair market value of the affected property interest resulting from enactment or enforcement of a land use regulation at the date the owner makes written demand for compensation under this act.He explained that even though $80,000 capture of the high value test may not be applicable, other discretionary standards were with the EFU zone at the time of acquisition.With regard to the burden of proof, they need to have some evidence in the record that the claimant had met provision 2 of Ballot Measure 37.


Commissioner Morrison opened the Public Hearing.


Asghar Sadri, Vancouver, WA, said his property contains 311 acres.He said they applied for one house to be built on the property.He wasnít aware a letter was sent asking for $100,000 because he was out of the country.He said there was a misunderstanding and someone sent the paper on his behalf.He wasnít asking for $100,000, he wants to build one house.He wanted to extend this for three months.He didnít know he had to pay a filing fee.


Morrison said the application should not have been brought to the Board because it was not complete.


Lauri Segel, Eugene, said that Sadri requested that 1992 zoning be restored to the property pursuant to Measure 37.She noted that Measure 37 does not and cannot authorize approval of such a request.She said Measure 37 allows removing, modifying or not applying a regulation that is shown to have restricted and reduced the value of a property but not does authorize reapplying previous zoning classifications.She added that Sadri failed to establish substantive legal documentation that there had been a reduction in the value of his property, nor had Sadri complied with the majority of Lane Countyís Measure 37 ordinance requirement.She added that Sadri didnít identify the restricted provision of Lane Code that resulted in the reduction in property values.She said because of these reasons, the Measure 37 claim should be denied.


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


Van Vactor said the message he heard was that Lane County doesnít process the Measure 37 claims until they get a filing fee.


Howe indicated that of the seven claims they would be bringing to the Board, four had not paid.He said they would stop work on those four and bring forward the claims that had paid.


Van Vactor suggested they should insist on the same evaluation evidence.


Stewart commented that unless they were going to pay compensation, he didnít think a full appraisal was needed.He wasnít certain that Sadri could create the lots that would generate the revenue.He wanted to know the requirements were there and access was available.


Sorenson didnít agree that the Countyís 180 days commences before someone pays his or her filing fee.He thought the 180-day requirement is after they notified the County with the filing fee.He agreed about cases that had not paid a filing having a letter sent stating no action would be taken on their case until a filing fee is paid.


Stewart asked when they determine that someone is entitled to compensation, if they get their filing fee back.


Vorhes said ďentitled to compensation,Ē means Lane County pays the compensation.He noted the waiver is not compensation, it is in lieu of compensation under the language of Measure 37.He said the board order that adopted the Lane Manual fee provision clarifies that if the County chose to pay the compensation under those circumstances, a refund of the application fee would also be included.†† He said the board would waive the current regulations that would limit the ability to put a dwelling on the property and allow the owner to apply for dwelling approval, provided it was consistent with the regulation that would have been in place at the time the property was bought.


Howe said from the date they make a demand they have a right to go to circuit court.He noted the first five that were applied for occurred at the end of December and within the first week of January.He noted one of the first five had been requested to be put on hold because he is pursuing other land use measures.That claim might be able to get through the normal process instead of a Measure 37 claim.He said in April they received three additional claims, in May six more and in June seven more for a total of 21 claims.He said todayís action catches up the need to act before the 180 days.


Green suggested providing the chair a script for Measure 37 claims, as they could turn into a quasi-judicial matter with ex parte contacts.


Vorhes said they would standardize the process.With regard to not processing cases where fees were not paid, he noted that local process should not reduce or eliminate the potential for a claim. He indicated that if all the information needed to assess the claim is provided, then there is some risk in not going forward.He said if they have that type of situation, they would alert the Board.












Wilson explained that Vorhes left the board order regarding the West Eugene Enterprise Zone.She said it captured the revisions the Board voted on.She said in order to reflect the action, she asked the Board to sign it as part of the record that the Board of Commissioners took today.


Morrison noted the only thing they took out was item 3 and it captured what they decided.


Van Vactor indicated that he and Dennis Taylor, City of Eugene, would have discussions about finding middle ground and getting to yes.Van Vactor indicated that they are very close.


Morrison said they made suggestions in April with the criteria that was in front of them.She said it was given to them on a short time line, similar to what happened with the $30,000 cap.She said they have had no discussions.She said there had been ample opportunity.She said they looked at it in April and said they didnít have any problem with the 1997 criteria, that they were willing to discuss the changes that were being proposed from 15% to 25% and a cap with a blank.She said they didnít have a conversation on whether or not they were supportive of a cap.She said they thought they were left out of the dialogue and that it should had been taken into consideration.She said that the Board of Commissioners did due diligence regarding this and tried to move this forward.She noted the board order discussed the action.


Stewart recalled that the Board of Commissioners agreed to be a co-applicant on an application that was not their idea.He said it was the City of Eugene that presented issues they wanted to discuss as part of the criteria and they would do it if the zone was approved He added there was no collaboration in what was presented.He wasnít opposed to looking at a cap but wanted information about it.He noted there was no information in the board packet to tell them what the cap was or why it was set there.He indicated that it wasnít presented to them.He wanted to consider a cap and working together collaboratively.


Sorenson asked if there was interaction at the council meeting between Morrison, Green and Stewart.


Morrison and Stewart said they sat at the meeting.


Sorenson was concerned that when three commissioners attend a public meeting they give notice.


Van Vactor indicated there was no deliberation or interaction with the commissioners who attended.


Morrison said she went to the meeting as a courtesy.


Green indicated he spoke with a historian about open meeting laws and he was assured that because they were not attending, not participating and not articulating any board point of view it would be okay.He said from a public perception it could have been construed they were a force there, but that wasnít true.


Sorenson said he would pursue this.


Morrison announced tomorrow would be a meeting at LCC with the mayors from the 12 cities regarding the public safety situation in Lane County and how they could possibly address the issue as they move forward to try to resolve it.


Van Vactor noted the meeting for tomorrow had been noticed and there will be three commissioners in attendance.


There being no further business, Commissioner Morrison adjourned the meeting at 4:10 p.m.




Melissa Zimmer

Recording Secretary