BOARD OF COMMISSIONERS'
October 19, 2005
Commissioners’ Conference Room
Commissioner Anna Morrison presided with Commissioners Peter Sorenson and Faye Stewart present. Bobby Green Sr., present via telephone. Bill Dwyer excused. County Administrator Bill Van Vactor, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.
15. PUBLIC HEARINGS
a. WORK SESSION/Connect Oregon.
Julie Rodwell distributed information about Connect Oregon. (Copy in file). She indicated that it is a new multi-modal program. She noted it is a $100 million capital program that is backed by lottery bonds and divided into five regions around the state. She said there is $15 million per region plus $25 million that is not allocated geographically for a grant and loan program. She said there is a requirement for a 20 percent match. She thought it could be in-kind services but they received a ruling stating that wasn’t correct. She noted they are in the middle of the rule making process. She hoped to bring this to the Oregon Transportation Commission on November 16 for their action. She added they are having a public hearing on the permanent rule on November 15.
Rodwell explained that they are looking into opening applications in late November to do what is necessary to post them. She hoped to close in mid-January. She indicated the Oregon Transportation Commission would select the projects. She said they are going to ask the OTC to have a public hearing in May on the list of recommended projects and to make the decision in June. She said the bill has six criteria for what a successful project should look like: whether the project would be used for transportation costs for business, it benefits or connects two or more modes, whether the link measures improvement and efficiency of the system, how much of the cost is being borne by the applicant and whether the project creates construction or permanent jobs and if it is ready for construction. She explained if a grant is awarded, it is paid out on a reimbursement basis.
Morrison asked what Lane County’s process would be.
Tom Stinchfield, Public Works, said that he had signed up for the web service to be notified of all information and he will bring that back to the board at the appropriate time. He said the applications would go to ODOT and go through the committee structure and then be available for public comment.
Morrison was concerned about the timelines. She hoped they would be given ample time to review what they have locally.
Rodwell said they could comment on the schedule. She said they want to be responsive to the legislature to get this done.
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 (PA 05-5579, Bruce Family Trust).
Green was present via telephone.
Kent Howe, Land Management, reported that the property was acquired in 1953 in the exclusive farm use zone, E40, 38 acres in size. He said in 1994 the property was placed in a trust and the trustees and the beneficiaries are the same. He said it is a revocable trust. He said the 1953 land use provisions allowed the property to be subdivided. He indicated they were interested in eight lots of three and a half acres each. He said they provided an appraisal and paid the fees. He stated that they have a complete application. He noted the issue in this application is if a trust was formed in 1994, if the date of acquisition becomes 1994 or it goes back to 1953.
Van Vactor stated that all trusts are not created equal.
Stephen Vorhes, Assistant County Counsel, indicated that it is a revocable trust, not a non-revocable trust and the grantor of the trust is the same person as the trustee in the trust. He said the grantor still holds an interest in the property through the trust. He said the grantor could unwind the trust and take back the property in its form as the ownership was before the trust was created. He didn’t think there was an issue with ownership as it is a family owned entity and for compensation purposes under the act, they could go back to the earlier date. He added for the waiver, treating the original grantor as still holding ownership in the property, means they could waive as to the grantors, regulations and allow use of the property in the same way they could have used it at the time of acquisition in 1953.
Van Vactor explained that based on the legal parameter, they were recommending approval of this claim.
Commissioner Morrison opened the Public Hearing.
Ray Bruce, Springfield, noted his property is bordered on the west by Marcola Road and on the east by Connelly Road and the eight additional parcels he wanted would front on Connelly Road. He noted there would be no roads to build. He added the road is a County road that is 60 feet in width.
Carla Parmenter, Springfield, said her property is next to Bruce’s property. She was concerned about it being identified as no farm use as they had raised and sold Christmas trees for many years. She said they barely have enough water to get by. She was concerned about the supply of water with eight more wells being put in. She said it was a flood area and she was worried about putting in septic systems. She thought eight families coming in would cause traffic problems.
Norman Parmenter, Springfield, said he voted for Measure 37. He thought there was a stipulation that if the county or state did something to devalue property, they would allow compensation for it. He said the Bruce’s property had been zoned agricultural for a long time and he has a tree farm on it. He was also concerned about the water supply.
Charles Bangle, Cottage Grove, thought the family trust would come up more in the process. He commented that he had a revocable trust and he said it was a stretch to say that anything had changed because the tax lots are the same. He wanted to see it settled before people spend too much time on it.
E. Kenneth Hofman, Springfield, said their property abuts the back end of the claimant. His concern is eight more homes with water problems and the additional homes on the sewer system. He wanted to make sure that many more households wouldn’t affect the water table in the area.
Annie Yokum, Springfield, said her concern is the impact of the traffic. She said the road is not wide enough to handle more traffic. She said she has lived there since 1992. She asked who would pay for the road widening. She added the septic problem was also a concern.
Mike Wellington, Springfield, said he lives on the same street and also has concerns. He had concerns about eight additional septic systems and wells. He stated during the summer they do monitor their water and use it sparingly so there is enough water in the neighborhood to go around. He said he moved to the area in 2000 to be in a farm area in a rural district. He commented the eight lots would create a danger on the road. He added it is a flood zone and it will flow down toward the Parmenters and into his area. He thought without the proper impact studies it should be tabled. He turned in a letter from a neighbor.
David Vanderploeg, Springfield, said they have to have a workable situation. He thought the Marcola area would be better for housing. He was in favor of the subdivision.
Kathleen Shiftke, Springfield, said her concern was that she moved from another state with urban sprawl and she chose Oregon and the Mohawk Valley because of the environment and the attitudes of the State of Oregon with quality of life. She was concerned about the impact of homes with traffic. She had no problem with putting up two homes, but thought it was going in the wrong direction. She didn’t support it.
Renee Douglas, Springfield, stated she lives across the street and owns 54 acres in E-40. She said that the Bruce’s property doesn’t drain properly. She was concerned about the number of houses going in. She moved on her property in 1986 with her daughter. She didn’t think it was right that she couldn’t divide her land. She was concerned about the water, septic service and the roads.
There being no one else signed to speak, Commissioner Morrison closed the Public Hearing.
Morrison commented that if the Bruces go through the building and planning process from this point forward, they have to meet all the criteria regarding those issues and it would be a possibility that they wouldn’t be able to build eight houses.
Howe noted Ordinance 3 was the subdivision ordinance regulation that was in effect in 1953 and that would be the applicable regulation that would govern the land division.
Vorhes said they would apply under the current subdivision ordinances. He added when it came down to how many and how large, they would look to the old regulations and show what it would have been allowed at the time of acquisition. He said the health and safety pieces of the subdivision regulations currently in place are not waived and those continue to apply.
Sorenson asked how they were being treated differently because of the date they acquired their property.
Vorhes responded that the issue was raised and addressed in the opinion of a Marion County Circuit Court Judge, but Lane County was not a party to that proceeding and is not bound by the decision. His recommendation to the Board is based on the fact that Lane County is not a party to the proceeding and the opinion had not been finalized in a final judgment to continue to process them as they had in the past. He recommended putting something in addition to any order they adopt that calls out the provisions of the code that if an appellant court overturns or finds Ballot Measure 37 invalid for any reason, the orders would no longer have effect and force to the date of the order.
Green asked if this pre-empts the process that involves the Planning Commission.
Howe said the provision for doing a subdivision would go through the normal partition and subdivision requirements. He said it is an administrative process that doesn’t involve the Planning Commission.
MOTION: to approve this application.
Green MOVED, Stewart SECONDED.
VOTE: 3-1 (Sorenson dissenting)
Howe said this would come back with an order that would implement the action.
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 (PA 05-5708, Jon & Lynna Gay Bowers).
Howe reported that this property is in the Junction City area, two tax lots in the exclusive farm use zone totaling nine acres. He said the Bowers Distillery acquired the property in 1971 through a land sales contract. He said the issue has to do with time of acquisition under a land sales contract. He said the property owner wants nine acres to divide it into five one and a half acre lots. He provided an appraisal and they have paid the fees. He said it appears there is a reduction in the property value. He said the Board would need to determine when the date of acquisition was made. He said through the process, the distillery issued stock at 25 percent each to the dad and three sons. He said there were four payments from 1972 thought 1975 through a verbal agreement. He said it is documented in writing. He said they have an unwritten sales contract with an ownership date that is 1971 and a deed that conveyed tax lot 402 in 1977 and tax lot 403 in 1980. He said if the determination by the Board is that the date of acquisition goes to 1971, under the AGT zone in effect at that time, land divisions could go down to one acre in size. He added because of the deeds that conveyed property in 1977 and 1980 for the two separate tax lots, then the AGT restricted land division to 20 acres in size. He noted the current zone E 30 would be 30 acres minimum land division size that went into effect in 1980.
Green asked, since there was no document submitted, who owned the land sales contract.
Van Vactor said that part of the decision would hinge on the evidence that would come in from the applicant. He said staff was concerned there was documentation in the form of affidavits.
Vorhes said the Board would have to decide what enough proof is and what it takes to establish what the ownership was at certain points in time. He said a land sales contract conveys an interest to the buyer as well as the seller holding the legal title to the property. He said they treated the date of the land sales contract as the date of ownership for both the seller and the buyer. He added there are some affidavits and other evidence. He said they have to determine what is factual enough to convince that ownership rested with the claimant at that point in time.
Howe distributed information from 1000 Friends that he received this afternoon.
Commissioner Morrison opened the Public Hearing.
John Bowers, Junction City, recalled in December 1967 their family incorporated and brought him from public school teaching into the farming operation. He noted in the period of the mid-60’s, his parents gave his oldest brother ten acres to build his house on. He said shortly thereafter his younger brother was married and given ten acres of property on the east side of the river. He said his brothers, father and his mother (who are alive today) stated that he would be given ten acres. He said the Peterson farm they purchased in 1971 had a house on it that was not in good shape. He said his parents gave him the house and they remodeled it in June 1971. He said when Measure 37 came along, he thought he could locate his children on the property. He commented that this doesn’t take any valuable farmland.
John Brice, Junction City, said he and his brother farm 400 acres surrounding this acreage. He was concerned because there was information that came in the last minute that they weren’t able to see. He wanted to review the materials.
Bill Potter, Eugene, stated he was John Bowers’ attorney. He agreed the date of acquisition was June 30, 1971. He noted that Bowers Distillery bought the Peterson Farm on that date on a land sales contract. He recalled land sales contracts were commonly used in the early 70’s among farmers. He said that on June 30, 1971 Bowers Distillery became the owner of the property. He said it had possession, title, payments were made and the deed was delivered by the Petersons when the title was paid off. He said the contract was paid off in 1977 and the property was deeded to Bowers Distillery in 1977. He said that as a result, Bowers Distillery could not deed it to John Bowers until 1977. He added on June 30, 1971 John and Linda Bowers entered into a contract with Bowers Distillery to acquire the nine acre part of the property. He noted this was not farm ground and no farm was taken out of this. He said in 1977 when the Bowers Distillery acquired the deed from Peterson, they gave it to John Bowers. He noted the only reason there is a 1980 deed was because of a Scribner’s error in the 1977 deed. He said that deed was supposed to cover tax lot 402 and 403. He said the error wasn’t discovered until 1980 and a correction deed was done. He stated that under the law the deeds relate back to the date of the land sales contract. He said there are three houses on the site already and John Bowers wanted to add two more for his children so they could get financing. He provided letters that are evidence of the June 30, 1971 acquisition. He added there was no evidence to the contrary.
There being no one else signed up to speak, Commissioner Morrison closed the Public Hearing.
Green asked what was filed with Lane County on June 30, 1971.
Potter recalled that under a land sales contract, in 1971 nothing was filed with the County. He noted that subsequent to 1971, Oregon passed a law that if property was sold on a land sales contract they had to record a memorandum of land sales contract and that law was passed after all of these things occurred.
Green asked if there were documented checks or payments for the property.
Potter indicated those were covered in affidavits by Jim Bowers, Bowers Distillery, that payments were received from John and Linda Gay Bowers and John’s affidavit states that payments were made.
Green asked what precedent they were setting in taking that type of action. He would have been more comfortable if they had criteria.
Vorhes said it comes down to the Board being convinced that there is enough evidence to support a finding that there was an ownership interest that passed on June 30, 1971. He thought it was difficult. He said when this situation arises again, the Board will see a similar situation.
Green wanted to see other cases that fell into this category.
Vorhes said they could leave the record open to allow that information to come in and then deliberate at another time.
Green wanted to find out more information to see how other cases were handled. He wanted to keep the record open.
Morrison asked the Board if they wanted to keep this open for one more week for the opportunity for the applicant to submit more information.
Van Vactor suggested taking tentative action and when Green gets back to the office he could read the information.
Green was in agreement.
MOTION: to tentatively approve the claim until they receive further information with a board order coming back next week.
Green MOVED, Stewart SECONDED.
VOTE: 3-1 (Sorenson dissenting).
Morrison said this would come back with a final order.
16. COMMISSIONERS' ANNOUNCEMENTS
Stewart received a telephone call from the district ranger in the Umpqua Glide District. She signed a record of decision yesterday that decommissioned 12 ½ miles of road in the Umpqua Forest. He reported that the road lies in the Lane County jurisdiction.
17. CORRESPONDENCE TO THE BOARD
18. OTHER BUSINESS
There being no further business Commissioner Morrison adjourned the meeting at 3:20 p.m.