BOARD OF COMMISSIONERS'
May 18, 2005
Harris Hall Main Floor
Commissioner Anna Morrison presided with Commissioner Bill Dwyer, Peter Sorenson and Faye Stewart present. Bobby Green, Sr., was present by telephone.† County Administrator Bill Van Vactor, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.
18. PUBLIC HEARINGS
a. CONTINUED PUBLIC HEARING AND 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 (PA05-5161, Ronald and Patricia Tendick).
Dale Riddle, Eugene, stated he didnít represent any party in the proceeding. He was involved in the drafting and passage of Measure 37.† He thought it was important that the will of the voters is honored and the rule of the law be followed.† With regard to the transferability issue, he indicated that the intent of the voters supporting the campaign was that property could be transferable.† He thought the Tendick claim was close to Dorothy Englishís claim.† With regard to the rule of law, he thought Measure 37 was clear with no debate, as it applies to land divisions.† He commented that the Board had options.† He noted that the waiver provision only applies to the current owners.† He added that Measure 37 doesnít allow unfettered land divisions.† He stated that any proposed land divisions still must comply with public health and safety requirements.
Sorenson asked about the emphasis on compensating landowners.† He asked what the right course would be on whether to compensate versus whether to waive, not apply or modify provisions.
Riddle responded that the template for decision is the same for other decisions.† He said that would be where the benefits outweigh the costs.† He noted that language was to give maximum flexibility to governments to deal with the issues.
Stewart asked what ďuseĒ meant in Measure 37.
Riddle stated that use in the intent when they drafted language was that the land divisions are a use of the land.
Dwyer asked about diminutive lifestyles and people who are impacted by a reasonable expectation that they were moving into a community that was zoned a certain way, and they paid their fair share on market value.
Riddle stated that government has the right to change ordinances.† He added the person who has use of the property had the same use when they bought it.
Ron Tendick, Creswell, asked the Board if they had any questions.
Sorenson asked how many houses he was hoping to build.
Tendick replied he was hoping to build an additional house for his son.
Sorenson asked what change in the zoning he believed was needed to build the second residence on his property.
Tendick indicated that the zoning change was not an issue at the time he bought his property.† He said he could have built his house then and now has the ability to build another home site.
Sorenson asked if they were not to compensate him, what other decision he wanted.
Tendick asked that the zoning be waived.
Dwyer commented that it was a question of reasonable expectation.† He said that they couldnít be reasonably expected to benefit from a government decision any more than to lose from a government decision.† He thought when people buy land and have a reasonable expectation that something could be done with the land and they pay the market price that is reflected in the decision at the time of purchase based on what their expectation could be, if they impede the expectation, then it is a taking.
Tendick stated he was only asking for the minimum.† He wasnít asking that it be parceled into a subdivision, he was asking for one tax lot.
Green indicated he had talked to Riddle about transferability and what Measure 37ís intent was regarding transferability.
Dwyer stated he was in contact with no one.† He added that whatever decision he makes would be made on testimony and not on any conversations he had.
Dwyer didnít think it was unreasonable to allow Tendick to do what it is expected to do.† He added that it doesnít mean that he will judge all the cases the same way.† He said it has to be based on what was reasonably expected.
MOTION:† to approve the request of a waiver.
Van Vactor indicated that Tendick needed to partition the land and waive one dwelling per parcel, by applying for a partition through the planning process.
Wilson explained that if the motion were adopted, the order would be back to the Board in context.† She said what the draft order does is that it indicates if there are additional barriers that occur; there would be an opportunity to return to the Board to waive the additional barriers.
Stewart asked if they went back in time, what the process for Tendick would have been to create the second lot and if he would have had to go through the F2 template placement to endure additional costs.† He asked if the Board allowed this additional partition or lot, and what the process was back then.
Howe responded that at the time Tendick acquired the property, it was unzoned and the forest requirements for dwellings were not in place.† He noted that Lane Code Chapter 13 was in place and it regulated subdivisions.† He said there would have been requirements for dividing the property.† He noted the forest dwelling requirements were not in place then.
Dwyer was in favor of the process that was the least cumbersome to allow a waiver.
Wilson explained what is being suggested is that the Board would allow a partition and waive the minimum parcel size that is in existence with the current F2 zoning.† She said that allows Tendick to do the partition.† She recalled that in 1963, Tendick would have been allowed to do a partition.† She said they were waiving a minimum lot size in an existing zone consistent with what Measure 37 permits.
Sorenson suggested having Wilson write up a board order that makes the intent clear.† He asked how the proposed order would be different than this motion.
Wilson noted the proposed order allows a second dwelling to be placed on the property.† It does not address the partition.† She said the order needs to be modified to do it.† She wants to have the opportunity to bring the order back to make sure it accomplishes what the Board desires.
Stewart was in favor of the motion as long as it includes the waiver for the petition.† He also wanted the least expense for the landowner to get a second dwelling.† He said if a home was allowed on an additional piece of property at that time, he wanted to see that as a waiver for the second dwelling.† He was not waiving sanitation and health and safety.
Dwyer indicated that was part of his motion.
Green wanted to do whatever they need to do to avoid paying attorney fees in the future and allow the applicant what he needs to do, remaining consistent with the will of the voters.
Wilson said they would bring back an order on June 1.
b. CONTINUED PUBLIC HEARING AND 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 (PA05-5162, Kenny and Marta Gee).
Martha Gains, Creswell, believed the two-acre parcel subdivision would have a large negative impact on the health, safety and culture of neighboring property owners. She supported the Gees in developing their property as reasonable.† She was concerned about the safety of the people living near the property. She asked what the best interest was for the citizens and the other county residents.† She didnít think the will of the voters was to place in jeopardy the health, safety and cultures of hundreds of others. She asked that the Gees consider a reasonable development of their property of 20, 10 or five-acre density.† She commented that this case is where one property owner will become a millionaire on the backs of the neighbors.
Dwyer stated he had no conversations with anyone about this claim.
Kenny Gee, stated he reviewed the voters pamphlet for arguments about land division. He said there were seven.† He noted that the pamphlet stated that Measure 37 provides an economic boost that Oregon so desperately needs by allowing state and local government to return the property rights they have taken. Instead of paying compensation, Measure 37 allows Oregonians to use their land, create jobs, boost property and income tax revenues and help fund essential government services.† He indicated this was the similar viewpoint that he addressed on December 1 last year.† He said he realized that it is the state system that has gotten out of control and is the true adversary.† He commented that his property is insignificant compared to the magnitude of decisions the Board is making.† He said it is the only investment for the future that he has.† He commented that all he owns is wrapped up in the property.† He hoped a solution would be arrived at before court proceedings begin on June 1.
Morrison closed the public hearing.
Dwyer asked what aspects of the requirements of this application that Gee had not legitimately complied with.
Howe responded that the application was different because it is in the exclusive farm use zone.† He said if they had 60 acres, they could divide into two 30ís.† He stated that they couldnít divide their property under the current zoning.† He said the dwelling provisions are such that they are different from what they were when they acquired the property.† He noted when they acquired the property there were not dwelling requirements on legal lots.† He said if they want additional dwellings, they have to have it on a separate legal lot.† He said they have to partition their land or waive the requirements of one dwelling per lot.
Van Vactor added that this application was different because the applicant was asking for an RR2 zone that is different than a partition.† He noted that Gee testified that there are two dwellings on the property now but they are on one parcel.
Howe explained there is an issue of minimum land division of 30 acres.† He said if they want to waive the minimum land division requirements or modify them to some other minimum acreage size they could do that first. He said the next hurdle would be the dwelling provision in the exclusive farm use zone.† He said they have to have a commercial farm if they are going to have a farm dwelling and they would have to waive the farm dwelling requirements as well.
Dwyer asked when the original purchase took place.
Howe understood the property was acquired in 1973. He added it is the same property and configuration. He noted the size didnít change, but the ownership did.† He noted in 1995, Geeís brother Craig did a quitclaim deed granting his interest to Kenny Gee and in 1999, Kenny Gee by warranty deed conveyed the property to both himself and his wife.† He said it is in both names.
Van Vactor indicated that Marta Gee does not have a claim under Measure 37 but Ken Gee does.
Wilson noted that Kenny Gee has owned at least one-half interest in the property since 1977.
Stewart asked if back then they were able to create two-acre lots under the ownership.
Wilson noted that in 1973 the property was unzoned, but was subject to the Lane Code subdivision requirements.† She said the first zoning regulations adopted and made applicable to the property were the farm forest zone (FF20) that was enacted in 1976.
Howe said they would have been able to have 20-acre minimum parcels.† He said he could have had two parcels, not less than 20 acres in size and in that zone a dwelling was a permitted use.
Stewart asked if (at the time of ownership) he would not have been able to create two-acre lots.
Howe said if the Board determined he acquired the property in 1973, then there werenít the minimum standards and regulations in place.† He said if they look at the date of acquisition in 1977, then those regulations of FF20 were in effect.
Wilson indicated that Gee had an ownership interest in 1973. She said on July 31, 1973, Royce, Allan, Craig and Kenny on a land sale contract bought the property, not as tenants in common, but as right of survivorship.† She indicated that if any of the three died, the fourth owned. She said it was an undivided interest. She stated the subsequent year he and Delores Gee acquired an undivided half interest.
Stewart asked if they could grant a waiver to the new zoning, if that was what he could do back then.
Wilson said they could modify the application of the EFU zone to the property to the extent of a modification or waiver so that it is an RR2.
Howe said the minimum land division size could go to the equivalent of RR2 or a two-acre minimum, and then not apply the dwelling regulations of the exclusive farm use zone so each RR 2 parcel could qualify for a dwelling.
Stewart thought there should be a fee for the process.
Dwyer said he couldnít have just subdivided his parcels into two acres without any land use action.† He asked what would happen after they allow this.
Howe said that marginal lands deals with surrounding developments, but it locked the date for parcelization matters that were in effect in 1983.† He indicated the template dwelling provision wouldnít be affected under this claim.† He said regarding other farm operations, it wouldnít affect qualifying for a greater density or apply to the rural residential areas.
Sorenson asked whether the Board could take into consideration in the decision the testimony of the neighbor who implied that there was fear about their well being diminished as a result of parcelizing of that area.
Wilson said it could be taken into consideration for the Measure 37 claim.† She said that Measure 37 makes clear that they are not waiving public health and safety issues or regulations.† She believed the subdivision review process addresses those matters.
Sorenson asked what they would be deciding if they granted the petition and approved the two acre parcel.
Wilson didnít believe they were granting the two acres.† She heard that they would waive the minimum lot size component of the EFI zone and they would waive the farm dwelling standards.† She said the Gees could decide how they wanted their property to be divided and developed and make an application.† She added it is at that point they would have more facts to evaluate.† She said as a Measure 37 waiver, they are waiving something that is in existence today and allows the property owner to begin the process of a development.
Stewart thought the intent of this was clear throughout the whole campaign. He said that Gee was an owner in 1973 and was able to create the two-acre lots then and could have built homes.† He thought Gee had the right to do that today.
MOTION:† to waive the legal lot size requirements and dwelling requirements and allow Gee to go through the subdivision process to create them.
Stewart MOVED, Green SECONDED.
Green stated he had no ex parte contacts.
Sorenson thought the adjoining landowners who would be affected by this would raise the issue of whether or not they have† (through the process of Measure 37) changed the zoning outside of the area.† He said for that reason, on this motion he would vote no.
Green said the legislature is working on this and tweaking it.† He asked how the county was going to pay for this.† He asked if they didnít have the money, would they move or modify the restrictions.
Van Vactor stated there is no money allocated for Measure 37 claims during the budget process.† He added as they process these claims and see how they work, in future budget processes they might want to allocate a fund for compensation.
Green hoped that they try to remain as consistent as possible and try to determine the voterís intent.
Dwyer stated he was willing to work with Gee on something that is reasonable and fair and protects the integrity of the process in the community.† He didnít think two-acre parcels were in the publicís interest, due to safety and health factors.† He didnít think it was a reasonable proposal.
Morrison commented in 1973 they could have applied to have the land divided into two-acre parcels.† She said they would have gone through a process with regard to health and safety.† She said if they move forward and proceed, the Board would see what the outcome would be.† She was supportive of the measure and of the motion.† She commented that when people bought property, then at the state level laws are passed that take away peopleís rights to do what they wanted with their property, it is wrong.
VOTE: 3-2 (Dwyer, Sorenson dissenting).
Van Vactor said this would return the first week of June.
19. COMMISSIONERSí ANNOUNCEMENTS
Dwyer announced there are Work Force Partnership and Lane Metro Partnership meetings tomorrow.
Green announced that a Positive Youth Development Conference was taking place next week.† He added that the Department of Youth Services was having a summit around prevention.
Morrison announced that she would be in Tacoma next week for a NACo meeting.† She announced that this week is the Rhododendron Festival and the Rotary District 5110 Conference.† She received a call from Washington DC informing her the Secure Rural Schools passed out of house resources and onto agriculture.† She noted there was no money but it is moving on the house side.
20. OTHER BUSINESS
LCARA Ė Claims that were made in Public Comment about horse abuse.
Mike Wellington, LCARA, noted that it is not uncommon that people allow their animals to get into bad shape.† He indicated that Lane Code states they do not have the ability to seize animals at will. He noted that in a prior case they had 34 horses they took possession of.† He said they were able to do that because the animal owner relinquished ownership to them.† He said in that large of a case, they would have attempted to get a warrant to move those animals.† He indicated he had outside help for that from the public.† He commented that in these cases he looks out for the liability of the County.† He believed that if anyone who volunteered got injured, the County would be held liable.† He said they have acquired a horse trailer and no longer have to rely on the community.
Green asked what happened to the owner of the horse.
Wellington responded that the owner of the horse was charged with first and second-degree neglect.† He said about the charge of first-degree neglect, the animal was euthanized at the request of the owner.† He said with the second-degree neglect, the horse went to another owner and received vet care.† He said their problem is that under administrative, they arenít able to do anything until they get another report of neglect.† He understood that the property owner had allowed two other horses on property that belonged to someone else.
There being no further business, Commissioner Morrison recessed the meeting into Executive Session at 3:00 p.m.