November 8, 2005

Commissioners' Conference Room

9:00 a.m.

APPROVED 8/15/06


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












Dwyer said the public should know that the Congress and Senate are trying to amend the tax code to take away deductions from home interest and the ability to deduct taxes from home and the ability to deduct state taxes from the federal taxes and other ways that would dramatically affect the middle class.† He said it was an important item that was sliding through the commission.


Sorenson said the National Junior College Athletic Association would be holding the national championship for community college soccer in Tyler, Texas.


4. EXECUTIVE SESSION as per ORS 192.660










a. Announcements






a. PUBLIC HEARING/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 (PA05-5680, George Hinnenkamp Trust).


Kent Howe, Land Management, explained the location is on Hamm Road and Territorial near Lorane.† He said it is a 159 acre property, with the eastern half zoned F2 and the western zoned E-40.† He noted the property was acquired in 1967 and went into a trust in 1996.† He said relief is sought in the form of a waiver so they would be able to subdivide the property into ten parcels.† He said an appraisal indicates that the reduction in value is $240,000.† He noted the main issue is the trust.† He said there had been a memorandum of sale that covered the property in May 1979 but the owner got it back in November 1979.† Howe was comfortable that it meets the requirement of being acquired in 1967.† He indicated that the warranty deed spelled out the trust.† He said they didnít have any other information on the trust.


Vorhes indicated that there was not a transfer of the deed to the buyer.† He said what happened was the seller held legal title to the property for a period of time the contract was active.† The seller foreclosed on the contract and got a judicial clearance of the equitable interest the buyer had acquired by virtue of the contracted sale.† He said the seller had the property back in total without it being encumbered by the equitable interest of the buyer at the time the land sale contract was signed.


Morrison asked if there was a current land use contract in existence.


Vorhes responded that they didnít have any evidence of any other land sale contract.† He said what had happened since then on the record is the warranty deed conveyance to the trust and to the grantor as the trustee of the trustee.† He didnít know if it was a revocable trust.


Stewart said there were questions on whether there was a deed for parcel 300.


Howe said they had gotten that clarified and they were comfortable with the deed.


Stewart reported he received three telephone calls that pertained to this matter.† He said the questions were about the trust and the owner of the property.


Dwyer asked if the terms of the agreement of the contract were not met.†


Vorhes didnít know what happened but the sale occurred, as there was an agreement between the parties to convey a deed at the completion of a contract.† He said the contract was never completed and the seller took the property back through the judicial process that is available to land sale contract sellers.† He noted that the deed never transferred.† He said when they look at Measure 37 claims, they look at the buyer as having enough of an interest in the property for purposes of Measure 37 to constitute an interest as of the date of the contract if the contract is completed and a deed conveys the property to that buyer.† He said that did not happen in this case.† He said that legal title to the property remained with the seller the whole time and didnít transfer out.† He thought the buyer still held legal title through the period and regained any interest that was conveyed to the buyer as a result of the land sale contract when the seller went through the judicial foreclosure.† He said the seller might have the ability to assert a Measure 37 claim for the property to an earlier date because the seller still had an interest to the property.


Dwyer asked if the transfer to the trust caused any problems.


Vorhes said that was difficult in terms of the transaction creating a new ownership solely in the trust and cutting off the original ownersí interest in the property enough for purposes for Measure 37.††† He said when it is a revocable trust, the grantor is the trustee and continues to control and manage and has an interest in the property.† He said it was reasonable to view that person as still owning and having an interest and the transfer to the trust as not creating a new ownership as to that grantor.


Commissioner Morrison opened the Public Hearing.


Ted Stevens, Lorane, distributed a letter urging denial of the claim.† He thought the application was incomplete.† He said there was a question about the trust because the copy of the trust is not available.† He thought it was difficult to assume it was a revocable trust and that the grantor and the trustee are the same.† He noted that the Countyís application requires that there be any copies of leases, covenants, conditions or restrictions as part of the application.† He said while it contained easements, it was missing information.† He noted in 2004 there is a preliminary title report listing the seller as George Hinnenkamp and the buyer as Donald Palmer.† He added in 2005 there was a letter from the appraiser to Jerry Palmer, about how the appraisal was conducted and the assumptions, making it appear that Mr. Palmer is the purchaser.† He added in August 2005, there is a final title report listing Donald Palmer as the purchaser.† He stated that, based on that information and what the neighbors had observed in terms of improvements that had been made on the property over the past couple of years, they think there might be a lease or lease purchase arrangement between Hinnenkamp and Palmer.† He said if that was true, then the County should have information about that and the neighbors should have the opportunity to review that.† He added there are also questions on whether the application satisfies the County code in term of their requirements.


Kathy Burchart, Lorane, stated she has lived for 17 years on land that is a quarter mile from the property.† She heard that Hinnenkamp likes to make land sales and contracts on his properties.† When she checked with Land Management, there was only one sales contract to a Mr. Obige in 1979 and the land reverted to Hinnenkamp.† She said that over a year ago Hinnenkamp turned the property over to Don Palmer and family.† She had met them several times and they assured them they were buying the property.† She said a land sales contract was not filed but they represented themselves as the buyers to the neighborhood.† She noted they spent several thousand dollars on fencing and animal shelters and they cleared the land.† She said they were told they were going to build a house and they also intended to build a professional motocross track.† She recalled that suddenly plans changed several months ago.† She noted that a relative that was living on the property left.† She said there is at least one land sales contract from 1979.† She asked if this broke the chain of title.† She asked if there was a land sales contract in force currently with the Palmers.† She asked if the chain of title was broken.† She asked if the new owners or co-developers are working in collusion with Hinnenkamp.† She strongly thought that Land Management and Legal Counsel should investigate the claim before it is brought to the Board for consideration.†


Roger Wiese, Lorane, commented that this development would be out of character with the rural nature of the area.† He was not against unreasonable growth in the neighborhood but putting 10 houses on that parcel of land would change the nature of the neighborhood.† He thought the development would be bad for the neighborhood.


Lauri Segel, Eugene, stated she was speaking on behalf of 1000 Friends of Eugene.†† She commented that the contract is a gray area.† She said it wasnít clear that no change in ownership resulted from the sale and foreclosure of the property.† She noted that it was clear Hinnenkamp (prior to establishing the revocable Hinnenkamp trust) had the intent of divesting himself of tax lot 300.† She stated the subsequent foreclosure did not unequivocally establish continuous ownership. She noted that Hinnenkamp was a mortgager and was not the continuous owner of the tax lot.† She said the claimant had failed to provide documentation that establishes continuous ownership back to 1967.† She stated that documents including certification of the trust would establish continuous family ownership had not been made available and the record had not been established that indicated ownership was transferred in 1996.† She added there is the issue of a land sales action by Hinnenkamp in October 2004 that is clear.† She said that George Hinnenkamp and a Donald Palmer entered into a sales agreement for tax lot 600 and 300 and a final title report was issued by Western Pioneer Title in August 2005.† She noted the record stated that Palmer is a trustee of the trust and that Palmer is the current owner of all or some portion of tax lot 300 and 600.† She said in lieu of additional documentation between Palmer and Hinnenkamp, there was no clear proof of continuous ownership by Hinnenkamp.† She commented that Measure 37 was unconstitutional as a matter of law and that local governments no longer have the authority to issue waivers.


Norm Waterbury, Eugene, stated he represented Mr. Hinnenkamp.† He noted there was an issue that this was uncharacteristic of the neighborhood. He said it was in perfect character because there is parcelization to the west, across and a smaller parcel to the east.† He said the lowland that is down by the river is kept in a 50-acre parcel. He said the issue of foreclosure and continuous ownership was answered by County Counsel.† He said when they have a land sales contract, they are still on title.† He didnít think that was an issue with the County.† He noted Western Pioneer Title said they had a memorandum of trust and that was the understanding that Hinnenkamp was capable of taking the property out of the trust or selling it.† They donít have a copy of the trust. He said if Western Pioneer Title was going to insure that Hinnenkamp had the ability to sign papers and sell the property and risk $500,000 that he was able to sign on the property.† He said the issue of trust was not an issue.


Dwyer asked why they canít be provided with a copy of the trust agreement.


Waterbury stated it was misplaced.† He said the trust was not filed with the County.† He said they tried to contact Hinnenkampís attorney to get a copy but the attorney retired.


Dwyer asked if they ever supplied the title company with a copy of the trust.


Waterbury said they didnít.


Sorenson asked who currently owned the property.†


Waterbury responded that George Hinnenkamp owned the property.† He said it is owned by the George Hinnenkamp Trust.


Sorenson asked who owned it before the trust.


Waterbury indicated it was in Hinnenkampís name personally.


Sorenson commented that Hinnenkamp did transfer the property to another Trust and it takes over its own liabilities and in this case, the trust took the property at the time the zoning was in place and there was no deprivation value to the trust.† He said that is what has to be established under a Measure 37 claim.


Waterbury responded that if Hinnenkamp could sign on a piece of paper and sell the property, then he still has control of that property.†


Green indicated there is a preliminary title report. He asked when the preliminary title report was issued, if they were prepared to issue a policy up to $500,000, subject to exceptions.† He noted there are 10 exceptions.† He said number 10 said they would need to provide a certification of trust pursuant to ORS.† He said Waterbury referenced a memorandum of trust, but he hadnít provided it to the title company.† Green said they have no way of knowing if it exists, where it is and whether or not they would make good on the policy.† He was okay with Waterbury taking more time to get the information.† Green said without that he didnít think they could move forward with the claim.


Morrison said there was consensus with the trust needing to be addressed.† She asked if there was an outstanding land contract from 2004.


Waterbury didnít know.


Morrison reported she received a call that someone was doing work on the property.† She indicated it was a land use compliance issue.†


Waterbury said that Jerry Palmer had interest in buying a parcel on the property. Waterbury said he would provide the information requested within two weeks.


Morrison said they would bring this matter back in two weeks.


b.PUBLIC HEARING/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 (PA05-5553, James F. and Cheryl E. Kinley).


Howe reported this property is located south of Junction City, seven acres in size, zoned E-40.† He noted the property was acquired in 1990 and at that time the property was zoned rural residential RR5.† He said the relief they are seeking is the ability to place a dwelling on the property. He noted there is an appraisal that was provided that indicates a reduction in value of $99,000.† He added that this would require a state waiver.†


Morrison asked what the zoning was in 1990 and how it was created.


Howe responded it was a result of the 1984 planning effort that was challenged by 1000 Friends and in 1990 they rezoned back to where they had zoned properties that werenít developed and committed.† He said they were placed back in a resource designation.


Dwyer commented that they purchased the property in good faith.† He asked what the reasonable expectation was that they could do with the property at the time of the purchase that was reflected in the zoning and the purchase price.


Howe said in the residential zone it was RR5.† He noted with a seven-acre piece of property, a single-family dwelling was an outright permitted use.


Dwyer asked what was missing.


Howe indicated that nothing was missing from the application.† He said it appears to be a valid claim.


Commissioner Morrison opened the Public Hearing.


Cheryl Kinley, Harrisburg, recalled that they purchased the property in December 1990.† She said the zoning was changed to EFU from RR5.† She said they purchased a seven-acre piece of land as rural residential. She said they wouldnít have bought it knowing that six months later it would change to an unbuildable piece of land.† She said they received a notice in the mail at that time because they had just purchased the land. She said they were unaware of what was taking place with land use laws.


Jim Kinley, Harrisburg, said since they bought the property, they were notified of the change.† He said they bought another place where they had lived for 11 years.† He stated that depending on the decision made for the property, they have more to consider than just developing the property.† He said they would have to sell where they live and then develop the property.


Dwyer asked what the market price was when they bought the property.


Jim Kinsey said it was $23,000.


Cheryl Kinley said going back in time, they applied for the claim and it was their understanding that Lane County doesnít have a budget to compensate people for this.† She said their first choice was compensation.† She said the second choice was to be allowed to put a home on it.†


Sorenson asked how this case was different from other Measure 37 cases.† He also asked what the state issue was.


Van Vactor said the state issue is Goal 3, ORS 215.213 or as the test existed in 1990, when they acquired the property.


Vorhes indicated that Goal 3 was applicable because that was what Lane County was involved with in litigation; whether the developed and committed exceptions included the area to justify an exception to Goal 3.† He said Goal 3 has been applicable since the late 70ís.† He noted in all of the Measure 37 claims, all of the claimants face the challenge of the current state regulations.† He said when Lane County gets an application for development of property, they donít want to get caught having waived the Countyís zoning regulations in Lane Code but to apply the stateís current statutes and goals and administrative rules that may preclude the development that is being requested.† He stated that all claimants have to go to the state.


Stan Sweeten, Eugene, stated he is a neighbor of the Kinelys.†† He said he had owned his property for 35 years which was originally RR5 and was changed in 1984 and in 1990 to E-40.† He asked why they would change a ten-acre parcel to E-40.† He noted that most parcels around the claimantís property have houses on the land.† He was in support of the claimants receiving a variance.


Lauri Segel, Eugene, indicated there was an error in the date of PA 992.† She did a search on the Countyís website and PA 992 was adopted on 12/19/90, and the record showed January 1991.† She said there was other agricultural zoning along Skinner Lane. †She commented that it was unfortunate that when the goals were being applied directly that people who were purchasing land either on land sale contract or from a real estate agent didnít have that information and didnít understand that the goals were applied directly.† She agreed there should be some way for some people to have some type of relief.† She was concerned about the issue of legal lots and what people could buy.


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


MOTION: to grant the waiver for Board Order.




Vorhes explained there are three alternatives to the Board.† He noted there was an order in the packet.


Sorenson thought they were under an obligation to follow the Court order that states the measure is invalid and violates the Oregon Constitution.††† He thought this claim was giving people the false expectation. He thought the Board of Commissioners was under the same requirements as any official in Oregon to uphold the Constitution.


VOTE: 4-1 (Sorenson dissenting).


c. PUBLIC HEARING/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 (PA05-5735, Edgar Roberts).


Howe explained this property is located outside of the City of Oakridge.† He said it is 22 acres in size and zoned F2 impacted forestlands.† He noted the applicant acquired the property in 1955 and placed it in a trust this year.† He said they are seeking to allow three to four lot divisions of the 33 acres.† He noted the value information they provided is by a real estate broker.† He said they donít have information on the trust or an appraisal.† He noted they have a 22-acre parcel that has two dwellings on it.† He said they need to determine whether a larger track with two dwellings on it is less valuable than three to four smaller tracts each with a dwelling.† He added that this would also require a state waiver if it would allow permits in Lane County.


Green asked if the applicant didnít have an appraisal or information on the trust why this was in front of the Board.


Howe said this is whether the applicant could bring the information to the hearing to clarify the missing information.†


Dwyer thought the people were in front of them because the time was running and they have to do what they can.†


Stewart thought there was confusion on this.† He asked for a work session to discuss legally what Lane County could and couldnít do.


Commissioner Morrison opened the Public Hearing.


Van Vactor said the issues for this were the trust and the appraisal.† He noted they did have a comparative market analysis.


Ken Carver, Oakridge, represented Edgar Roberts.† He said he and Roberts werenít aware the issue of the trust and the appraisal were a problem.† He indicated they could provide a copy of the trust within a few days.† He said the trust is to the Robertsí family.† He said they went to get an appraisal and the estimate they received was $6,500.† He thought it was ridiculous to spend $6,500 on something they didnít know would go through and that is why they went through a comparative analysis.† He noted that Roberts had owned the properties since the 1950ís and donated a portion of the property for the Oakridge airport.† He thought this was a perfect Measure 37 claim.† He noted at the time he donated the land for the airport, they told him he would be able to develop all the land around the airport and in 1984 that was changed.


Green suggested rolling this matter.


Morrison thought there was a variable with the appraisals.† She asked for an appraisal that was more concrete.


Carver said they werenít concerned about getting money out of the County, they wanted the regulations waived.† He commented that a piece of property is more valuable if can be divided.


Sorenson thought the economy of Oakridge had fallen on hard times and the valuation of property is part of the overall economy.


Dwyer asked if the County Administrator waived the appraisal.


Van Vactor commented that this was an evolving circumstance in the market claim.† He noted when Gee had the first claim, there were no appraisals to be available.† He said they are now slowly becoming available and it is a brokerís opinion or a comparative market analysis with some evidence of value.† He noted that Measure 37 doesnít require an appraisal, it requires the linkage of the regulation that restricts the loss of value.


Stewart said if they were to pay compensation then an appraisal would be necessary.† He agreed that one parcel wasnít as valuable as two or three parcels.† He said if they have documentation they believe supports that to back up their decision, that was good enough for him. He didnít think that placing the burden of $6,500 for an appraisal was worthwhile because the waiver they grant doesnít necessarily approve what they want to do, they still have to go through the land use process.† He was comfortable with moving forward with the appraisal.


Sorenson thought they had a good claim and they could find someone to help them show the deprivation as a specific land use rule.† He didnít think it was fair for the claimant to pay $6,500.


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


Dwyer said that he would supply the Board with a copy of the trust.† He said if he were to make a judgment about the claim, he wouldnít have any problem with it.†


Morrison requested that this come back with a no date certain.†


d. PUBLIC HEARING/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 (PA05-5587, Francis Gabrielson).


Howe explained that this property is located southwest of Creswell and is 15 acres in size.† He said it is zoned exclusive farm use E-30.† He noted the property was acquired in 1972. He said the relief they are seeking is to divide the property into three parcels.† He noted there are two parcels with a dwelling, and the remaining parcel they hadnít specified a use for.† He said the value analysis indicates a reduction of $603,000 and there is no appraisal provided.† He said the issue is whether one 15-acre parcel that has two dwellings on it is more valuable or less valuable than three parcels that would be smaller in size with a dwelling on each.† He added that this applicant also needs a state waiver.††† He said the value reduction analysis that was provided compared appropriately the size parcels within two sections of their property.† He noted that sections 26 and 27 show there is a reduced assessed value of $603,000.


Van Vactor stated he didnít waive the appraisal.


Commissioner Morrison opened the Public Hearing.


Francis Gabrielson, Creswell, stated he bought the property a few years ago.† He indicated he paid more to the County in taxes then he paid for the property.† He said it has two residences on it and it is 15 acres and it canít be farmed.† He said when he first started the claim there were no appraisers available.† He took his appraisal off the Lane County tax records.


Van Vactor recalled that he sent a letter in June recommending an appraisal.


Ken Gee, Creswell, stated he supplied Gabrielson with the figures on the property analysis.† He noted that Lane County was the only county in the state that requires an appraisal.† He added that the state doesnít require one.† He supported Gabrielson doing something with this land.


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


Dwyer commented that they were beyond the 180-day limit and to require the appraisal could weaken the case.


Vorhes said the risk is to ask for more information before they take action on this or not.† He thought something could happen in Circuit Court around this claim, but it does not preclude the Board from continuing the analysis and taking the action.† He said it puts the Circuit Court in a difficult position.† He stated if the regulations have been waived, there is no longer a claim for compensation under the measure.† He said the action in Circuit Court might not succeed and might not result in an award in compensation or attorneys fees and costs.† He said if a claim is submitted to Circuit Court, the claimant will still have to establish the regulations restricting the use and reduce the value of the property.


Green supported the Court Administratorís request for an appraisal.† He commented that the claimant had knowledge that an appraisal was required, but decided not to provide it and take a chance with the process.


Stewart said Gabrielson owned the property at the time and there was a reduction in value based on the land use law.† He thought he had a good case and supported this.


MOTION: to move alternative 1, to require the applicant to provide an appraisal.




VOTE: 3-2 (Stewart and Morrison dissenting).


Morrison explained that the applicant needs to provide an appraisal before the Board makes a decision.


e. PUBLIC HEARING/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 (PA05-5813, Richard D. and Velma B. Nice).


Howe stated he received a letter yesterday from the agent for this application requesting the application be placed on hold while they sort out the issues of the effect of the floodway on the appraisal.


Stewart noted there was an appraisal made on the property.† He commented that they werenít within any riparian zone.† He asked why they were being asked to submit a floodplain appraisal.


Howe responded the property and the portion of the property that would be developed is within the floodway.† He added there would be increased costs to develop within the floodway.† He added they had an appraisal of the property, but they didnít realize it was in the floodway.


Morrison asked the difference between floodplain and floodway.


Howe explained that in the floodplain, they could build as long as the foundation is elevated so it is one foot about the 100-year floodplain.† He noted the floodway is the raging course of the 100-year flood.† He noted the property is in the floodway.


Sorenson asked if there were any federal issues for developing in floodways and floodplains.


Howe responded that any development on the property would have to meet those requirements for public health and safety and federal regulations for Lane Countyís involvement in the FEMA program.† He indicated the claimant needs to show that through the design floodway permit, whatever development would occur would be elevated to a point that it is not in the floodway.


Vorhes noted the claim in the RR5 zoning precludes them from dividing the 3.5 acres into smaller parcels.† He said that was the land use regulation they were focusing on.† He said if it turns out that under the flood regulations that are in place for the County to comply with that precludes the development or the division, then it goes to the analysis of the value reduction.


Dwyer asked if they would be willing to waive the 180-day rule while they sort this out.


Howe responded they were requesting this go on hold.


Sorenson asked if the purchasers of the land sale contract were not entitled to this compensation because they were not the owners of the property.† He noted the Mooreís held title to the property, not the applicant.


Vorhes explained that with land sales contracts, the seller holds the title of security for the purchased money being paid for the period of time the contract was being executed under Measure 37.† He noted there were two parties with an interest in the property:† the seller with legal title and the buyer with the equitable interest in the property that was obtained by entering into the land sales contract.† He noted in this case there is a deed that shows the completion of the contract.† He said for purposes of Measure 37, they look at the contract sales date as the date the buyer acquired an interest in the property sufficient for purposes of asserting a Measure 37 claim.


MOTION: to continue the hearing (no date certain) pursuant to the applicantís contact and information supplied.


Dwyer MOVED, Stewart SECONDED.


VOTE: 5-0.




Green noted that MPC is meeting on Thursday.† He asked if other commissioners were coming and if they were, staff would need to notice that for the public record that two or more commissioners may attend.


Stewart and Green had their first meeting with Eugene on the Enterprise Zone criteria.


Morrison announced that she would be hosting a town hall meeting in Junction City regarding the public safety matter.














There being no further business, Commissioner Morrison adjourned the meting at 11:20 a.m.



Melissa Zimmer

Recording Secretary