BOARD OF COMMISSIONERS'
June 8, 2005
Commissioner’s Conference Room
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, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.
1. ADJUSTMENTS TO THE AGENDA
Morrison indicated there was an Emergency Business item and under Commissioners Business, they needed to add the letter to the small city mayors. She added under Correspondence to the Board there was a letter they received on Monday.
2. PUBLIC COMMENTS
Barbara McClain, Mapleton, presented a petition with signatures for grandfathering the docks in Mapleton. She said they asked to be part of the work-study for next week and haven’t been answered.
Morrison indicated that staff would be contacting them.
Melba Durant, Junction City, distributed a map to the Board. She added that attached were papers she obtained from Benton County regarding the mining operation by Delta Sand and Gravel. She said that Benton County had approved the operation but no permit had been acquired in Lane County. She noted the site crosses the Lane-Benton County line and the mining area is less than two miles from Hobart Lake Road. She noted in November 2003, Morrison sent a letter to the landowners on Hobart Lake Road, (except for her and her mother) and it was about the County’s inability to sell, refinance or acquire building permits due to the legal status of the road and indicating things she intended to do. She added in April 2004, Morrison conducted a public meeting in Junction City and when asked whom this bypass road was for, she couldn’t remember.
Marta Gee, Creswell, contacted other agencies on how they were dealing with Measure 37 claims. She said no appraisals were required as payments of restitution were not an option. She added that other agencies helped the claimants fill out the applications.
Kenny Gee, Creswell, said with regard to the Measure 37 claim, the information he presented at the April 16 meeting were examples of county codes relating to Measure 37 from other counties throughout the state and a completed board order from Jackson County. He said at that time he recommended that Lane County copy someone else’s style because they were having problems. He indicated with the passage of time, a state final order has become available and he thought they should borrow its style. He noted in supplemental information provided by staff, is a joint letter from the state AOC and LOC, dated December 23, 2004, instructing local governments to provide claim information to be shared with the state as to any claims that may involve a state issue. He commented that nothing had been forwarded from Lane County. He originally hoped that with a zone change the state issue would be absorbed, as the claim would integrate into the current code requirements. He added that due to the recent dialogue with other agencies associated with Measure 37, he withdrew his request for such a zone change and wanted to return to the point of a waiver as expressed in Measure 37, to land use regulations in effect at the date of acquisition. He commented the problem he sees is the ex parte exclusion. He noted that Lane County was the only county in the state that has taken that stand. He added that communication between he and staff has been poor.
Debbie Jeffries, Eugene, noted there was an acknowledgement in the City of Eugene’s staff’s minutes that was presented to the Planning Commission that what she had said was correct. She thought the ordinance that eventually gets to the Board would be accurate. She said her part is supposed to be removed and acknowledging it is because of the LCDC decision. She explained that city staff presented to the Planning Commission yesterday those properties that carry a conditional use permit and a special development district that Goal 5 will supersede those contract overlays. She indicated that Goal 5 staff recommendations have come in and are demanding a wider setback than the agreement made relative to the special development district. It was her understanding that Goal 5 would take precedent over any type of land use contractual agreement.
Morrison asked if there was going to be a joint meeting with the Eugene City Council regarding Goal 5. She thought Goal 5 was part of the work plan for Land Management. She wanted to have Jeffries’ portion removed.
Jeffries indicated all the work is being done by the City of Eugene staff.
Morrison said she wanted to pursue this.
Van Vactor said he had requested from Kent Howe, Land Management, to bring this matter to the Board in June or July.
Rex Underwood, Mapleton, stated he is a retired physician who lives on the south bank of the Siuslaw. He said they have 790 feet of frontage on the river. He noted when they purchased the property in 1970, a dock, ramp and pier were in place and there was no mention of the structures in the property deed. He added that they have pictures showing their dock and relating structures were in existence in the late 1940’s. He said they were not aware of the dock registration requirement until October 2004 when they decided to replace the old dock because it was sinking. He noted that Florence Marine Construction built a dock for them identical in size to the old one with the process of registration from the State of Oregon, approval by the U.S. Army Corps of Engineers, and a permit from Lane County. He said they paid a fee of $125 to the State of Oregon but received no approval of registration. He noted in the early part of 2005 they were notified by the Department of State Lands that their dock would be registered after they gained approval from Lane County. He added that the Corps of Engineers responded to their application stating they met their requirements and could go ahead with the replacement. He noted as of June 8, 2005, they do not have the permit from Lane County. He indicated that the reason for the delay in replacement was due to the difficulties they have had in obtaining permission from Land Management from Lane County. He said he sent in forms to the County. He added when they first applied to Land Management in December 2004, they were charged a fee of $1,126. He said he was never told what the fee was for and never received any acknowledgement of it. He thought the Land Management Department couldn’t interpret the Lane Code in a practical way that would allow docks to be replaced, built or modified. He stated he had no complaints about the way the managers of the division had treated them but there is frustration that has developed. He commented that the Land Management Department needs direction and leadership.
3. EMERGENCY BUSINESS
ORDER 05-6-8-8 Amending the County Assessment Function Funding Assistance (CAFFA) Grant Application to the Oregon Department of Revenue for FY 2005-06
Jim Gangle, Assessment and Taxation, reported they had not included the Materials and Services for the Board of Property Tax Appeals function in their original grant. He indicated that this amends the grant to add $18,000 to Materials and Services for the Board of Property Tax Appeals and $2,000 for county indirect. He said the total amount of the grant would be $6,687,300.
MOTION: to approve ORDER 05-6-8-8.
Stewart MOVED, Sorenson SECONDED.
4. COMMISSIONERS' REMONSTRANCE
Stewart reported that last Saturday he was the official starter for a race that raises money for Mt. Pisgah. He also attended the Mohawk Watershed Council.
5. COMMISSIONERS' BUSINESS
a. Copy of Draft Letter to All City Mayors regarding the Public Safety System.
Green supported the letter, but wanted an ending date.
Morrison indicated they rolled the matter until the end of August with the idea that this group would have a couple of months to come together to make decisions to come forward to the Board.
Van Vactor said that this is a collaborative effort and they don’t know where it is going to end up. He didn’t want to put a definite time frame in as it might be interpreted that Lane County wouldn’t be open to any new ideas. He recommended keeping it vague.
MOTION: to move to send the letter.
Stewart MOVED, Green SECONDED.
Stewart indicated that he wanted to be one of the representatives for Lane County.
Green also wanted to participate.
6. COMMITTEE REPORTS
a. Legislative Committee
Tony Bieda, Intergovernmental Relations Manager, reported that since he was before the Board last week, they went to the floor of the Senate and passed HB 3157, introduced by Representative Ackerman on the County’s behalf. He said it makes discretionary the annual inspection of jail facilities that are not County jail facilities. He noted that the budget people were looking at taking some of the proceeds that would flow to the counties on shared revenues (including video lottery) in order to close the gap between what they aspired to spend and what resources are available. He said that was about $38 million per year, video lottery statewide. He noted that in exchange for not regulating video lottery on a county-by-county basis in the early 90s, the county association agreed with the state to give the state authority to regulate. In exchange, the counties would receive 2.5 percent of the proceeds from the ongoing enterprise. He said what had happened the past few years were that in order to balance the budget, the counties’ proceeds were capped at the level of the previous biennium. He added since then other things had happened that had increased the proceeds from video lottery on a statewide basis. He said the commission paid to retailers that have video lottery terminals has decreased, providing more revenue to the state. The array of games has been expanded to include video slot machines, whereas in the past only video poker was available. He noted on that basis, legislators have been advised by legislative fiscal that by refraining to honor the 2.5 percent to the counties on the new games and on the roll back of the commissions, the state will have more money to balance its general fund budget--but on principle it violates the ongoing agreement with the counties. He said the idea is to cap the 2.5 percent and not include revenue from the new video slot machines originated in the senate.
Morrison asked if they were still having problems with community corrections.
Bieda responded that the last version of the house budget had funding for community corrections for the next biennium at a level that would not trigger above the opt out threshold. He thought that version of the correction budget had the best chance of passing. He noted the original recommendation was not funding at a threshold that prevented an opt out.
7. COUNTY ADMINISTRATION
Van Vactor announced that AFSCME approved the tentative agreement of their contract.
b. DISCUSSION/Status of Lane Business Education Compact Services to Lane County Youth.
Peter Thurston, Economic Development, reported that this is a discussion item to provide guidance from the Board on whether any further action is needed regarding Lane Business Education Compact obligations under two economic development contracts for their services. He noted the memo the Board has describes the background of the two contracts from Fiscal Year 02/ 03 and 03/ 04 awarded in the usual process for RFP’s. He said the purpose of the contracts was to provide training, mentoring and a public/private partnership for youth to learn about business and employment experience in the rural communities across Lane County. He noted the current status of the contracts is they have been completed and paid and there is a balance in the second one that was not invoiced of $1,643. He reported on May 5, the Economic Development Standing Committee considered the question the Board has today and recommended Option 1, that no further action be taken at this time, and to let the compact Board of Directors deal with any obligations they have as a non-profit organization.
Stewart commented that it was in the best interest to close this and move on.
MOTION: to move Option 1.
Dwyer MOVED, Green SECONDED.
Morrison pursued this being brought to the Board. She had concerns about how they monitor the people they give the economic development money to. She wanted to make sure that when they allocate dollars that they monitor what it is they are doing and what they are paying for. She said she would vote for this but stated she was disappointed in the Board of Directors.
Stewart noted at their last meeting they came up with a monitoring system and grant requirements. He said they would do a better job than in the past.
Sorenson asked if they could take action with the remaining $1,600 that had not been withdrawn.
Thurston responded that it had been past six months since the last period of time where they would have normally billed. He thought those funds will not be paid, they will stay in the account in Lane County. He didn’t think further action was necessary to retain the funds they have.
Van Vactor commented that they had fulfilled their obligation under Thurston’s analysis He said this is a status report because there was concern as to whether or not they had to fill those obligations and Option 1 reflects that they have completed their performance and there is no further action.
8. PUBLIC WORKS
a. ORDER 05-6-8-1/In the Matter of Vacating a Portion of Newman Street, a Public Road Within the Plat of Wildish Industrial Tracts, as Platted and Recorded in Book 56, Page 11, Lane County, Oregon Plat Records, Without a Public Hearing, and Adopting Findings of Fact (18-03-03-14).
Bill Robinson, Land Management, reported that this is a segment of road that is within the plat. He said it is located between Franklin Boulevard and I-5 and is connected to the railroad. He noted the intention is that a spur also be connected in the area and then the petitioners would have better use of their property. He added the road would maintain a 40 foot-width. He noted it is in the UGB of Springfield that meets their criteria.
MOTION: to approve ORDER 05-6-8-1.
Dwyer MOVED, Stewart SECONDED.
b. ORDER 05-6-8-2/In the Matter of Vacating a Portion of West 18th Avenue (Co. Rd. 265), Within the City of Junction City, Located in Sections 29 and 32, Township 15 South, Range 4 West of the Willamette Meridian, in Lane County, Oregon, Without a Public Hearing, and Adopting Findings of Fact (15-04-29 & 32).
Robinson explained that this is at the “Y” area on the north part of Junction City. He noted that a portion of 18th Street and the westerly side of the “Y” had been previously vacated in 1998. He indicated there is a remnant and it falls in an area that is not being used as access to commercial property. He added the petitioners asked for this to allow them to further develop their property.
MOTION: to approve ORDER 05-6-8-2.
Dwyer MOVED, Green SECONDED.
c. STATUS REPORT/Oregon Department of Transportation (ODOT) Coburg Interchange Area Management Plan (IAMP).
Bill Morgan, Public Works, explained that this was an opportunity to update the Board on the Coburg Interchange Area Management Plan. He said that Lane County has $2.5 million in the 06/10, CIP for the future interchange project. He noted there is money that the road funds allocated for the project plus there are portions within the influence zone of the interchange that are in Lane County’s jurisdiction.
Terry Harding, ODOT, stated she is a transportation planner. She indicated that they also adopted an Interchange Refinement Plan in 1999 and there are policies related to the interchange in their current comp plan update. She indicated that certain aspects of the Refinement Plan from 1999 have already been completed with the County improvements to Pearl Street and the off ramp lengthening. She noted since the Refinement Plan was adopted in 1999, the city has grown and the UGB has been expanded to the east side of the freeway. She added there are new Oregon Administrative Rules regarding access management and the completion of the IAMP. She noted there is a $9 million earmark for construction at this location. She added that previously $3 million was allocated during the annual federal reauthorization and the County CIP identified the matching commitment of $2.5 million. She said they have been to the Coburg Planning Commission and the city council to explain about the project and the technical work is underway. She noted what they will end up in the document is recommendations for interchange geometry, road alignment, access management, and land use control. She added they wouldn’t know what those recommendations are until they work through the technical analysis and the stakeholder input. She noted that the project would have to be adopted by the Oregon Transpiration Commission, City of Coburg and the Board of Commissioners.
Morrison asked since Coburg is now part of the MPO, how that would play in the adoption.
Harding responded that the Interchange Area Management Plan does not need to be adopted by the MPC.
Tom Boyette, ODOT, indicated that the MPO adopts the Federal Regional Transportation Plan and the financially constrained budget. He said in order for the feds to sign off on the environmental for the project, the project needs to be on the financially constrained list for the entire MPO. He added the post 2000 consensus brought Coburg into the MPO and now Coburg’s project has to be on the constrained list and that is an MPO action.
Green was concerned about the estimated costs because the number hadn’t been re-scoped. He thought there would be more dollars attached to the project. He asked where the money would come from and who would take care of the project if they fell short of funds.
Boyette thought there might be opportunities for annual authorizations out of Washington D.C. He added it would probably be a STIP prioritization process.
Morrison thought the $2.5 million they have allocated for the project would be different by 2010 because ODOT’s scoping at this level is minimal as to actual costs.
Boyette commented that until the job is actually designed, applying the unit cost couldn’t be done. He didn’t think that any of the federal earmarked money would be sufficient to cover the project. He thought with the local match identified in the CIP and the two federal authorizations it creates capacity for the project.
Green hoped there would be sufficient and adequate public information to keep people notified about the project. He added that local participation is important.
Stewart wanted to see this project move forward as it is important for safety and for the employees to get jobs.
d. DISCUSSION/Resolving the Legal Status of a Portion of Hulbert Lake Road (County Road No. 160), and Directing Staff as to Process for Establishing Said Portion of Road at a Width of 40 Feet.
Frank Simas, Public Works, noted the portion of Hulbert Lake Road (for which the legal status is in question) is northerly 1.94 miles from the section corner to the Benton County line. He noted this part of the road was initially petitioned to be a County road in 1855, but it was discovered that there was no formal road establishment order for the road. He reported that, historically, County maintenance maintained the road. He recalled in 2003 the County Surveyor came to the Board with a proposal to legalize a 60-foot right-of-way in connection with a capital improvement project. He noted the capital improvement project had been dropped from the program and at that time the legalization proposal was rejected and the County Surveyor was requested to cease working on it. He indicated that County maintenance has resumed maintenance on the lower portion of Hulbert Lake Road and they have not been doing any maintenance on the upper portion since 2004. He said it was a result of the objection and questions of one or more abutting property owners as to the legal status and it had not been formally accepted.
Simas reported that at the end of the meeting held in Junction City on April 8, there was consensus that the road should be legalized at a width of 40 feet and the County should resume maintenance. He indicated that is what prompted them to come back to the Board with a proposal to legalize the road. He noted the issue for the Board is whether the road should be legalized and if so, what width. He stated what is current is 21 feet of pavement and there are shoulders that hadn’t been maintained. He added the fencing is between 37 and 44 feet from one side to the other. He noted at 40 feet with a 21-foot hard surface width, there would be nine feet of additional right-of-way beyond the edge of the chip seal surface. He added that could be the minimum that could be efficiently maintained by maintenance forces with regard to mowing and maintaining the edge of the shoulders to make sure the vegetation didn’t ruin the hard surface.
Simas indicated that if the Board were to legalize something less than 40 feet, it could be directed that 20 or 30 feet be legalized. He noted the additional width to make 40 feet could be acquired through the normal acquisition process. He said the staff recommendation for this is to legalize the 40-foot width. He stated that they had already surveyed the center of the road. He added that they would need to go out and stake the right-of-way to determine where the 40 foot width would fall and determine where the fencing was located and what fencing would be eligible for owners to receive payment for relocating it. He explained that if the Board approves and gives direction as to which way to proceed to make the 40 foot right-of-way a formal County road, the County surveyor would come back with a proposal to legalize the road in accordance with the Board’s direction. He added that Public Works’ staff would talk with the landowners to offer them payment for any fencing that would have to be moved in order to accommodate the 40-foot right-of-way.
Dwyer commented that they had already made a decision that they weren’t going to legalize the road. He added that it is a road that no one wants and he didn’t want to spend $1.5 million on it. He recalled that in the board order they gave direction to repair some of the potholes and that wasn’t done.
Morrison stated there was no money in the CIP to repair potholes.
Ollie Snowden, Public Works, explained they came back to the Board because the Board had never accepted the road into the County road system. He said the option then is to go through a vacation proceeding where the County vacates all legal interest in that as a public road. He said they could do that if that is the direction. He recalled when they had the meeting in Junction City, the people who were present did not support vacating the public interest in the road traveled. He said they wanted to get it established as a County road so they could maintain the road without getting into disagreements.
Dwyer commented that not more than eight or ten people use the road. It was his preference to vacate the road and if there is comment from the people, then it should be brought back by people, not Public Works.
Snowden noted that from a Public Works’ perspective they want to resolve the issue of whether it is a County road or a local access road, or vacate it so they don’t get into arguments when they try to maintain it.
Dwyer didn’t want to upset the people by having the area surveyed. He said they would think that the County would automatically adopt the right-of-way.
Snowden indicated it is a two-step process. He said they could come back with Bill Robinson and another legalization proceeding, but they didn’t know what the Board wanted to do. He wanted to come to the Board in a work session to get general direction He noted the road is not legalized until the County surveyor brings the document back to the Board and they go through a formal process as prescribed by ORS, including notification of the abutting property owners and a public hearing.
Green asked if the County had been maintaining the road.
Simas said the County had been maintaining the road.
Snowden explained that there are a number of roads that currently as traveled are outside of the right-of-way. He noted once they determine that, the process is to establish the right-of-way so the road as traveled is a legal County road.
Green asked if the property owners (once the County vacated the road) could take care of the road.
Snowden said they would either legalize it as a County road, legalize it as a local access road (which means the County wouldn’t maintain it) or they could vacate all public interest in the road as traveled. He recalled the road appears to be in the current location for 70 years. He noted if the Board were to vacate it, it wouldn’t preclude a challenge from someone who had been using the road for more than ten years to say they have prescriptive rights to continue to use the road irrespective of what the County does.
Green wanted to stay consistent in their practice by legalizing the road. He said if they are not, then they should vacate the road and have the private property owners maintain the road.
Sorenson asked what the rationale was for making this road larger than it currently is.
Sonny Chickering, Public Works, responded that their standard road maintenance practices would include more than the paved surface. He added that they wanted to maintain the shoulders and mow vegetation for sight distance around corners. He noted there could be utilities that exist outside of the paved surface. He added that 40 feet is a minimum width for maintenance of the ditch.
Sorenson noted during public comment Ms. Durant said there is a rock quarry application north of this area in Benton County and there is an interest for the need for a bypass for Junction City.
Chickering said he was not aware of any application for an extraction permit of any kind in Benton County. He added there had not been an application made in Lane County. He never saw this road as a bypass for Junction City. He stated they had no future plans in their 20 year TSP for widening or additional lanes. He said they have no new construction project proposed for that section of road.
Stewart said it was important that the crews could go out to maintain the road. He added the public has been able to use the road for 70 years. He didn’t think they should look at vacating. He wanted to legalize the road and respect the fences that are there.
Morrison commented that out of 1.9 miles of the road, the Nixon Farms owns a majority and they were in support of constructing the 40-foot width and the ditching. She wasn’t opposed to leaving the fence.
Dwyer thought they needed to move the fence now, not when they sell it. He wanted to make sure that in the future there is no confusion over property and who is paying the taxes.
MOTION: to move to legalize the road, pursuant to where the fences exist, up to 40 feet wide. He added if it is 32 feet wide where the fences are, that is how wide to leave it.
Stewart MOVED, Dwyer SECONDED.
Snowden indicated the first step would be to survey where the fences are. He said he wouldn’t know the answers until they actually do the surveys. He said they could give that to staff as a direction. He said they could do the survey where the fences are in relation to the 40 foot width and then if they have a problem, they could come back and tell the Board. Then the Board could agree and staff could go to Bill Robinson and come back with a legalization based on what they found.
Green reiterated the first step was the survey and the second step is the legalization.
Snowden stated that was what Simas was asking for.
Wilson explained the legalization is a formal process and the Board hadn’t initiated a formal process. She said the Board was giving direction to staff to begin the legal process of legalization.
Stewart suggested looking at the option of legalizing the road, but they couldn’t legalize the road without doing the work.
MOTION: to amend the motion to start the process of legalizing the road.
Stewart MOVED, Dwyer SECONDED.
VOTE: 4-1. (Sorenson dissenting).
Simas explained that once they have the survey completed as to where the 40 foot width or fence line would fall, barring any unusual fences that are less than acceptable, they would need to come back to the Board at the time of legalization and report it. Then they would proceed and have the County Surveyor bring back the legalization proposal. He added that, barring any unusual narrow fences, they would go with the existing fence line as much as possible.
Van Vactor asked if the survey crew would go past the fence line and put stakes in the land.
Simas said no, they would stay on the road side of the fence line.
Snowden indicated where there is no fence, they would flag it at 20 feet from the center line and tie the fences on the other side.
Chickering said they would video log the road so they know where the fences are today.
Morrison concurred so there is not a question as to where fences are.
e. ORDER 05-5-11-12/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 (PA 05-5161, Ronald and Patricia Tendick).
Kent Howe, Land Management, recalled the Board received a supplemental packet on the information about the order alerting the claimants to the limit on the County’s ability to authorize a waiver of state law. He said they included research on the Multnomah County’s orders regarding Measure 37 claims and from Clackamas and Jackson County.
Van Vactor reported that Stephen Vorhes, Assistant County Counsel, sent the Board a supplemental memo. He believed what they placed in the order matched the state process as they understand it. He said that if in the development proposal for Tendick and Gee, when those come in (because they don’t have completed applications for the partitions or the subdivision), there are additional land use restrictions discovered, Vorhes has proposed language that would delegate authority to the County Administrator and the planning staff to grant waivers to implement the intent of the waiver. He said that would be in lieu of the second sentence of the second paragraph in each of the orders. He added that otherwise if they discover an issue, they would need to bring it back to the Board.
Stewart said he saw board orders from other counties and was confident they were similar to what they are trying to do. He said the claimants are not changing the zoning. He wanted to make it clear that when someone comes in to make a request the request needs to be more explicit about what they are trying to do. He commented that Tendick’s claim was clear. He said with the other case it was hard to make sure they could absolutely be assured that they have waived all the restrictions without really knowing exactly what they are doing. He liked the added verbiage that allows them to take the direction that this is what the Board intended and to move it through the process. He wanted to make sure the process was not labor intensive and expensive.
Van Vactor said they don’t want to make it expensive with regard to the waiver. With regard to the application, the claimants have to pay for it. He added that property development is expensive and the Tendicks and Gees needed to be aware of that.
Green recalled that this legislation was new and that they would probably make mistakes and will need to be corrected. He didn’t think there was uniformity across the state. He said they have to do these on a case-by-case basis. He added what some counties are doing might not apply in Lane County. He said a lot has to do with how they are structured with their resources. He wanted to protect the interest of Lane County but also enact what the will of the voters wanted around Measure 37.
Howe noted that Tendick has a 53-acre property of which they are going to allow him one land division and is a range of between 20 and 30 acres for that to be decided at the time when he makes the application.
Sorenson asked if they were providing a waiver under Measure 37.
Howe said they are providing a waiver, the waiver being a modification of the existing land use regulations in effect on the property for Tendick.
MOTION: to amend the order to include the language that Vorhes recommended.
Stewart MOVED, Green SECONDED.
MOTION: to approve amended ORDER 05-5-11-12.
Stewart MOVED, Green SECONDED.
f. ORDER 05-5-11-13/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 (PA 05-5162, Kenny and Marta Gee).
Van Vactor explained what Vorhes prepared in the language in the first part of the order, first paragraph request that Kenny Gee shall be granted a restrictive dwelling and minimum area of provision to Lane Code that limits the division and restricts placement of dwellings, shall not apply to Kenny Gee so they may further divide the property into parcels or lots as small as two acres. He said the order does not propose a zone change but allows lot sizes smaller than two acres.
Stewart said that Gee testified in public comment asking to drop his request.
Van Vactor indicated the order implements what he is requesting.
Green asked what action he thought was being proposed.
Gee commented that with the zone change out of the picture, he thought they would be better off going back to the language within Measure 37 that doesn’t restrict it any further than what it was when he acquired the property. He said Chapter 13, subdivision was in place in 1972. He noted Jackson County listed theirs in the order it was definite. He said it gives a listing as what they are looking to exclude. He agreed about specifying that the Planning Commission should be predirected to handle it as it was on the date, by the code that was in force at that time.
Dwyer asked if there was any discretion by the Planning Commission in 1973.
Howe thought there would be discretion being exercised in the application of those regulations.
Van Vactor indicated they didn’t have a specific application from Gee other than the general one submitted for a zone change. He said that was why Gee proposed the discretionary language. Van Vactor didn’t know which elements of the code could be waived. Van Vactor stated that Gee wants things back to the way they were with Chapter 13 in 1973. He said what the order says is if he gets a land division, it shall be in parcels as small as two acres so it sets a minimum.
Dwyer commented that the fact there was discretion doesn’t make it so. He said if the discretion didn’t automatically allow it, then it shouldn’t be expected that they not apply the discretion they may have applied in 1973. He added that Gee’s neighbors bought land figuring they were going to be in a rural setting. He said they had expectations that the Board should live up to also. He didn’t see how Measure 37 gets around the equal protection clause of the U.S. Constitution and people who have subsequently bought property since Gee bought his property.
Sorenson asked what flexibility and responsibility the Board has. He asked what the law was at the time and what the applicant submitted as to what the law was.
Van Vactor didn’t agree with the discussion about the temporary ordinance. His understanding of Ballot Measure 37 is the applicant needs to identify the regulation and the development of the property and that is what gets waived, Lane Code 16.212, which is what they explained.
Stewart said that Gee came in saying he wanted two-acre lots with homes on them. He thought it would be inappropriate to waive beyond what he wants. Stewart said they are waiving what he is asking for because it looks legitimate and proven that it has been taken from him. He said just because the Board waives the restrictions of two acre lots doesn’t mean when he applies for a subdivision or to create smaller lots that he would legally be able to comply with septic and the infrastructure. Stewart indicated that Gee had the ability in 1973 to do it and Stewart thought they should grant him the ability to try to do it now.
Wilson commented that the discretion on the subdivision back then was related to the health and safety issues like water, septic and transportation. She added the health safety issues are not waived under Measure. 37. She said it appears that the solution accommodates both the lifting of the current restriction that is reducing the value of Gee’s property and is protecting the health safety that Measure 37 says they need to do.
MOTION: to amend ORDER 05-5-11-13 including the wording inserted by Vorhes.
Stewart MOVED, Green SECONDED.
VOTE: 3-2 (Dwyer, Sorenson dissenting).
MOTION: to approve ORDER 05-5-11-13 as amended.
Stewart MOVED, Green SECONDED.
VOTE: 3-2 (Dwyer, Sorenson dissenting).
Stewart asked for clarification on the ex parte contacts. He also asked about the refund of the application fee.
Wilson explained that the ordinance as it was written was that if compensation were paid, as part of that payment there would be a refund of the application fee. She added at the time it was written it was not contemplated that if they waived the regulation there would be a refund of the application fee. With regard to the ex parte contact , she commented that these are not traditional land use cases, but they are the applications of regulations or the waiver of regulations to a specific piece of property. She said that makes them a quasi-judicial matter. She said as a quasi-judicial matter, there is an expectation that under ordinary administrative law that they are sitting in a quasi-judicial role as judges and decision makers. She noted that under traditional administrative law, the Board is expected to be impartial. She said the rules in the land use arena have been highly developed as to what ex parte contact means. She thought it was still good practice to be careful and cautious that they don’t have the individual personalized contact on a quasi-judicial matter.
g. ORDER 05-6-8-3/In the Matter of Electing Whether or Not to Hear Arguments on an Appeal of a Hearings Official's Decision to Approve a Template Dwelling and a Riparian Modification within the F2 Impacted Forest Zone (PA 04-5746 & PA 04-747/LeGault).
Steve Hopkins, Land Management, noted the question before the Board of Commissioners is whether to hear the appeal. He noted there are two appeals: one for the placement of the dwelling and one for the riparian modification. He stated that the landowner wants to place a dwelling on his property. He said there is no place for him on the property to meet the riparian set back. Hopkins said LeGault had to apply for a riparian modification. Hopkins explained if a property owner cannot meet the 100-foot setback from the ordinary high water mark, then there is a process to go through to meet the criteria and they can encroach into the 100-foot setback. Hopkins indicated that Mr. LeGault wants to place the house approximately 30 feet from the high water mark.
Hopkins explained the application was approved by the director then appealed to the Hearing’s Official and the Hearing’s Official affirmed the director. He said what is before the Board is the appeal from the Hearing’s Official. He noted the one issue that was not covered was that the Hearing’s Official didn’t follow the correct procedure to revise his findings from the first determination on May 9 to his second determination on May 12. Hopkins explained what the Hearing’s Official did was apply the riparian modification criteria. He said there are three criteria that must be met. He noted the Hearing’s Official stated that they only needed to meet one of the three criteria instead of two of the three. Hopkins said the Hearing’s Official discovered his mistake, corrected it and included a condition of approval to address it.
Dwyer asked how a house could be built within 30 feet from the high water mark and comply.
Hopkins responded that it applies to indigenous vegetation. He said that LaGault’s property contains blackberries that were not indigenous and he removed the blackberries. He added they are allowed by the code in Section 2 as there are limits to the amount of indigenous vegetation that could be removed. He noted if a certain amount could be removed and not go beyond that, they could encroach into that setback. He noted that. LaGault complied with that.
Dwyer said they would have to address the merits of the case if they decide to hear the appeal. He wanted to hear the appeal.
Morrison asked if the Board wanted to hear the appeal.
MOTION: to move to hear the appeal.
Sorenson MOVED, Dwyer SECONDED.
Dwyer thought they needed to hear this because of the situation with the Matthew’s property.
VOTE: 2-3 (Green, Morrison and Stewart dissenting). MOTION FAILED.
MOTION: to approve ORDER 05-6-8-3 to not hear the appeal.
Green MOVED, Stewart SECONDED.
VOTE: 3-2 (Dwyer, Sorenson dissenting)
9. CONSENT CALENDAR
A. Approval of Minutes:
B. Management Services
1) ORDER 05-6-8-4/In the Matter of Award of Bid LCP 2005-01 for a Construction Contract for Lane County Bus Barn Roof Replacement in the Amount of $71,400.
2) ORDER 05-6-8-5/In the Matter of Award of Bid LCP 2005-02 for a Construction Contract for Lane County Historical Museum Roof Replacement in the Amount of $82,848.
C. Health and Human Services
1) ORDER 05-6-8-6/In the Matter of Appointing the County Administrator or His Authorized Designee as County Financial Assistance Administrator for the FY 05/07 Department of Human Services Financial Assistance Agreement.
D. Public Works
1) ORDER 05-6-8-7/In the Matter of Renaming Hebron Grange Road (Co. Rd. 261), to Hebron Road, Without a Public Hearing (21-03-21).
MOTION: to approve the Consent Calendar.
Dwyer MOVED, Green SECONDED.
10. CORRESPONDENCE TO THE BOARD
Morrison distributed a letter and resolution regarding a situation in Florence and the possibility of the pioneer museum being able to move into Old Town and the Resurrection Lutheran Church moving back into the museum that was originally a church. She suggested staff doing more work on this and bringing it back next week.
Dwyer asked how Lane County could have jurisdiction within the corporate limits of Florence.
Morrison responded that the church facility where the museum currently is, is south of the bridge in Glenada, which is in the unincorporated part of Lane County.
Dwyer had no objection for them to make the application but he wouldn’t waive zoning without a formal process.
Green requested that this go to the agenda team to be directed to the appropriate staff and bring it back to the Board in two weeks.
Morrison noted there are timeline issues.
11. COMMISSIONERS' ANNOUNCEMENTS
Green announced that he attended a Leadership Training in New York last week.
Stewart announced that on Saturday there is a tour of Steve Woodard’s tree farm.
Morrison accepted an award on behalf of the Board from the Lane Arts Council for extraordinary contribution to youth arts.
12. EXECUTIVE SESSION as per ORS 192.660
13. OTHER BUSINESS
There being no further business, Commissioner Morrison adjourned the meeting a 11:35 a.m.