December 6, 2006

1:30 p.m.

Commissioners' Conference Room

APPROVED 10/3/2007


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




a. DELIBERATION AND ORDER 06-11-29-9/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 06-6144, Wildish) (NBA & PM 11/28/06).


Kent Howe, Land Management, reported that the Board closed the record.He said because of a late submittal by Rob Zako of a lot of information, the Board wanted to continue to allow staff an opportunity to review the discrepancies that were being alleged in the testimony.He noted staff went through and did not find that there was merit to those discrepancies that Zako was alleging.He indicated that staff had made the corrections to the staff report. He noted there are no changes to make to the table attached to the order.He stated the evidence they have indicates earlier that it was a different form of ownership transfer and in their opinion it represents a legal interest in the properties that were transferred.He added the supplemental packet from Rob Zako last Wednesday and three e-mails from others were in the file before the record closed. He noted that because of the date of acquisition, the zones in place, the transfer of the properties and the legal interests, it appears to be a valid claim and they recommended waiver of the land use regulations back to 1966.


MOTION: to approve ORDER 06-11-29-9.


Green MOVED, Morrison SECONDED.


Green thought this application met the test and had been consistent with others.


Stewart asked if they agreed with the appraisal, if it meant they agreed with the loss of the appraised value.


Vorhes said if they were going to pay the compensation under the measure they would need to know the exact amount but under Measure 37, the only requirement is that there is a value loss and they donít have to determine how much of a dollar loss there is.He said they have to reach a conclusion that under the measure restrictive regulations do have the effect of reducing the value of the property. He said the order states the application appears to qualify for compensation under Measure 37.


Stewart believed they have proven that they showed a loss but he didnít believe it was at that level without doing more work to process the claim.


Sorenson thought they should deny the claim based on the process they use.He said they have a multi-million claim and by staffís statement they are not treating the claim any different than any other.He viewed this as a rush to make a waiver and he didnít think it was justified. He thought they were making an unfair result and thought the Board should deny it.


Dwyer asked if the Board denied this claim if they are prepared to expend the money and resources necessary to defend their position. He added they would be buying retroactive rights, not prospective rights. He didnít think they were deprived of anything when they have been extracting resources.


VOTE: 4-1 (Sorenson dissenting).


Dwyer said they hope to acquire the land for the publicís benefit.




a. SECOND READING AND PUBLIC HEARING Ordinance No. PA 1239/In the Matter of Amending the Rural Comprehensive Plan to Redesignate Land From "Forest" to "Nonresource" and Rezoning That Land From "F-2/ Impacted Forest LandsĒ to "RR5/Rural Residential", and Adopting Savings and Severability Clauses (File PA 05-6249; Carver) (NBA & PM 11/21/06).


Dwyer explained that this decision is subject to the plan amendment and rezoning criteria sighted in the agenda cover memo and attachments and evidence and testimony may be directed towards the approval criteria.He said failure to raise an issue to enable a response may preclude an appeal to LUBA.He indicated this was an opportunity for those present to enter information into the record.He said that only persons who qualify as a party may appeal a Board decision to LUBA.He asked if there had been any ex parte contacts.


There were none.


Thom Lanfear, Land Management, explained that this is a request for a plan amendment and a rezoning for a 52 acre parcel a mile north of the urban growth boundary in Florence, west of Highway 101.He said the property is identified as Assessors Map 18120220, tax lot 1900.He indicated the application is a request to rezone the property to RR five acre minimums. He noted through an application of a non-resource designation, the primary criteria to evaluate whether the land qualifies is to determine whether the land meets the state requirements for designation of agricultural or forest land.He added the state had set up administrative rules that define agricultural land.He noted in part it states those are lands classified by the U.S. Natural Conservation Service as predominantly Class 1 through 4 soils in western Oregon. He added the Administrative Rules also contain provisions that classify agricultural lands if there are other suitable lands.He noted if there are lands in other soil classes suitable for farm use, they are defined in Oregon Revised Statutes, taking into consideration soil fertility, suitability for grazing, climatic conditions, existing and future availability of water for farm irrigation purposes, existing land use patterns, technological and energy inputs.


With regard to the review under the forestland goal, Lanfear indicated the Administrative Rules contain a provision that states that forestland shall include lands that are suitable for commercial forest uses and in past applications and in the Rural Comprehensive Plan, the Board has determined that commercial forest lands are lands that produce 50 cubic feet per acre per year of merchantable timber.He said the Planning Commission held a hearing on the application and deliberated.He noted there was opposition during the hearing to the application and the Planning Commission voted to recommend denial to the Board of Commissioners, with the vote 4-2. He indicated the findings are attached to the order.


Sorenson asked why the Planning Commission recommended denial.


Lanfear responded that the Planning Commission was focused on the soils analysis and classification of soils on the property.He said the Natural Resources Conservation Service mapping in the Lane County soil survey shows a larger predominance of a certain soils type.He said the applicant had a soils scientist go to the property to do a more detailed analysis of what is actually on the property and concluded that there was a soil with a different classification, Class 6, instead of Yaquina, a Class 4 soil.He added the Planning Commission did in-depth questioning about how the study was performed.


Commissioner Dwyer opened the Public Hearing.


Steve Cornacchia, Eugene, stated he represented the applicant. He said the original Natural Resources Conservation Service ratings for the property were 60 percent Class 1 to 4.He said the area contains brush, rhododendrons and shore pine.He said knowing the property contains soil less than that, the applicant retained the services of Brian Rabby, who used his own methodology from digging test holes, using cuts naturally occurring or man made cuts occurring on the property.He came to the conclusion that on the property not previously developed for the wasabi production, the property was more accurately designated in the matter in which he came to his final conclusion.He indicated the number was 52 percent under the Class 1 to 4 and 48 percent in Class 1 to 4.He said the Planning Commission said it was close and wondered how they could rely on that individual. He said there was concern about the manner in which the questions were presented and the tone. He thought it was a legitimate inquiry.He added whether they meet the conditions by one cubic foot or thirty cubic feet is irrelevant. He commented that they either meet the 50 cubic feet per acre per year requirement or they donít.He said they went back and looked at the property as a whole.He said there was a color map shown by Mr. Rabby where the new soils are. He indicated in the north portion, there are eight acres on the north side that is cross hatched.He said it is an area where the soil has been converted because of development to an impervious surface. He said the NRCS provisions allow revisions of soil types whenever there has been a disturbance and a transformation of the land itself from a productive soil to a non pervious surface.He said Rabby took the eight acres that had the Class 4 soils and counted it as a Class 4.He said Rabby went back and recounted the eight acres in the calculations to a Class 8. (There is no Class 8 in Lane County).He said the same methodology is provided in Lincoln County and by using that county by analogy, they came up with different numbers. ††He said the numbers change from the 39 cubic feet per acre to nine.†††


Cornacchia said they have provided all the requisite information and evidence to provide the Board findings to support the application. He indicated that they have met the criteria and demonstrated the property is not resource and they went through the analysis on why the property can be under the Goal 14 considerations, transformed from what was a resource zone to a rural residential use on the property.


Doris Van Arsdale, stated she lived in front of the wasabi farms.She wasnít sure what the projected use of the area was.Her concern is the water table in the area is high and she had to put in a new septic system.She didnít know how the rest of the area would be affected. She indicated that she has another house across Highway 101 and there is a water runoff pipe under the property to the wasabi farm. She asked where the water would go if the land is developed. She also asked if they would have to widen the highway.


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


MOTION: to adopt Ordinance No. PA 1239.


Morrison MOVED, Green SECONDED.


ROLL CALL VOTE; 3-2 (Dwyer, Sorenson dissenting).


b. SECOND READING AND PUBLIC HEARING Ordinance No. 10-06/In the Matter of Amending Chapter 16 of Lane Code to Revise the Commercial Airport Safety Combining Zone to Reflect Updates Made to Mahlon Sweet Field (LC 16.245) (NBA & PM 11/21/06).


Stephanie Schulz, Land Management, recalled the Eugene Airport Master Plan Update was adopted by the metro jurisdictions in March 2000.She added the Airport Master Plan is a functionally specific refinement plan to the Metro Plan that applies to the provisions of commercial and general aviation and airport related commercial industrial services, associated with the Eugene Airport.She indicated the master plan addresses the full intent of future activities and projects for the airport and documents the purpose and need for the Lane Code revisions.She noted since the airport is located outside the urban growth boundary, but inside the Metro Plan boundary, Lane Code Chapter 16.245 provisions implement the applicable Metro Plan policies for the Eugene Airport. She indicated this request doe s not require multi-jurisdictional approval because it amends only the Lane Code.††


Schulz reported the proposed amendment is before the Board because the planned runway construction has been completed and the exact elevations specific to the new runway location are now known and identified. She noted Lane Code 16..245 contains the text and diagram establishing the appropriate protective surfaces and airspace that defines the safety zone as required by the Federal Aviation Administration. She stated the code update recognizes the necessary change tothe safety zone that covers the air space above the new coordinates of the extended runway. She added the coordinates determine the safety approach surfaces for which the FAA requirements limits structure height, lights, glare, radio interference, smoke, dust and other hazards to flight safety.She indicated the safety zone extends in a three dimensional cone from the surface of the earth and encompasses space from the airport.She recalled that these issues were presented to the Lane County Planning Commission at a public hearing held on November 7, 2006 and they voted unanimously to recommend adoption of the updates.She added this proposal meets the Lane Code criteria for chapter updates and the proposed language and diagram amendments are consistent with the policies found within the Metro Plan and the Airport Master Plan as adopted by the Board.She also recommended adoption of the code amendments.


(Morrison was off of the telephone).


Phil Groshan, stated he was the general aviation services manager at the airport.


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


MOTION:to adopt Ordinance No. 10-06.


Green MOVED, Stewart SECONDED.


ROLL CALL VOTE: 4-0 (Morrison off phone).






There being no other business, Commissioner Dwyer adjourned the meeting at 2:30 p.m.



Melissa Zimmer

Recording Secretary