June 7, 2006

1:30 p.m.

Commissioners' Conference Room

APPROVED 1/24/07


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




a. PUBLIC HEARING AND ORDER 06-6-7-12/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 05-6802, Tetzler).


Dwyer asked if there were any ex parte contacts.


There were none.


Kent Howe, Land Management, reported the property is south of Eugene off Lorane Highway on Isaac Walton Road.  He said it is 80 acres zoned F2.  He indicated tax lot 600 and 602 were acquired in 1961 and tax lot 700 was acquired in 1958, at which time both properties were unzoned.  He said they want to divide the property into four acre lots each with a dwelling.  He indicated the applicants have provided an appraisal, title report and deeds.  He noted they conveyed the property into a revocable trust with Joseph and Nina Tetzler as the trustees.  He said they consider them the current owner and this appears to be a valid claim.


Commissioner Dwyer opened the Public Hearing.


Ron Funke, stated he is the agent for the Tetzlers.  He indicated the agenda cover memo listed Harry Taylor as the agent of record.  He reported the property has been owned by the Tetzlers for a long period of time to qualify.  He indicated that part of the property is being considered for division into four acres and other portions are not.  He said the Tetzlers recognized there were various values to part of the property.  He noted along Spencer’s Creek there is value to retain it into a wetland zone.  He said that Mrs. Tetzler wanted to move her residence to a part of that zone.  He stated it was amended from the original Measure 37 claim he filed.  He added it corresponds with what they had sent to the state.  He indicated there are about 10 acres that they think should be best left in pasture with the remaining 40 acres up the hill, where the Tetzlers want to divide the property into four or five acre parcels.  He noted the Tetzlers received a letter from the Long Tom Watershed Council indicating they were interested in evaluating the south Spencer Creek Channel for riparian purposes.


Nina Teztler, Eugene, stated she bought her house in 1958 as an investment to take them through retirement.  She said she still raises cattle but can no longer farm.  She indicated her husband is in a retirement home and it is expensive to keep him there and she needed the money to help support him.


Maureen Hudson, Eugene, said she is a neighbor and had empathy for what they are doing.  She was concerned with the issue of sprawl and for the area to become a suburban area.  She was also concerned about the public safety and liability issues.  She was also concerned about a fire next to F2 lands.  She thought it would be a strain on the health and safety system.


Funke explained that the original proposal was to create between 10 and 13 parcels high on the hill in the F2 land.  He said the whole approach is to respect the land.


Hudson wanted to see them have a good solution to be able to utilize the land and about the common good and the problems of sprawl.  She indicated the Upper Spencer Creek Valley had been identified in rivers to ridges as important to the well being of the region to keep in open space.  She hoped there is a good compromise that could meet everyone’s needs.  She thought fewer dwellings would have less of an impact.


Norm Maxwell, Lorane, stated he lived close to the subject area.


Jim Gillette, Eugene, stated he is the most affected of all neighbors as he is the only one that adjoins the 50 acres on two sides.  He said he has 500 acres that he is trying to preserve as a park for open space and the Tetzlers have been leaders in the fight against him.   


Funke said they were not interested in maximizing dollars as much as making parcels that are livable and meet the public health and safety standards.  He commented that F2 land is not economically timber harvestable any more, but could make nice housing for a limited number of people.


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


MOTION: to approve ORDER 06-6-7-12.


Morrison MOVED, Stewart SECONDED.


VOTE: 4-1 (Sorenson dissenting).


b. PUBLIC HEARING AND ORDER 06-6-7-13/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 06-5132, Neely).


Howe reported this property is north of Santa Clara on River Road, outside of the urban growth boundary.  He indicated it is 12 acres in size and is currently zoned Exclusive Farm Use E-30.  He noted the property was acquired in 1970 and at that time it was zoned AGT.  He said they provided a comparative market analysis by a real estate broker, title report and deeds.  He said they want to divide the property into lots that would be less than 30 acres in size, each with a dwelling.  He indicated the issue is with a life estate.   


Howe explained the Neely family acquired an interest in the property in 1970 by deed and in 1990 a reversionary interest in the property was conveyed to a Daniel and Sandra Teall and as part of the transaction, Mayme Neely retained a life estate on the property.  He indicated that according to the title report, Daniel and Sandra Teall are owners of an interest in the property and that interest is being termed as “springing executory interest.”  He said that interest would become complete in the future that is measured by Neely’s life.  He indicated there is an agreement between the owners that provides the Tealls with control over the dwelling on the property and the two acres surrounding the dwelling.  He said because Mayme retained the life estate, she still has an interest in the property and could be considered the owner for the purposes of Ballot Measure 37.  He stated the Board needs to decide whether or not Daniel and Sandy Teall should also be considered owners in this situation.  He said if the owner is Mayme, then the claim is valid back to 1970 when she acquired the property.  He added if Daniel and Sandra Teall are considered owners as well, then that ownership acquisition date occurred in 1990 and the zoning at that time was exclusive farm use and the minimum land division standards and the dwelling requirements apply, so there wouldn’t be the ability to waive the regulations.


Dwyer asked if there were any ex parte contacts.


There were none.


Commissioner Dwyer opened the Public Hearing.


Joshua Clark, stated he was the attorney representing the Tealls.  He agreed that the application should be approved if the Board determines that there had been a value loss.


Dwyer asked about the transfer of the life estate that was made in 1990 as land use laws applied in 1990.


Clark responded that the application applies to the entire parcel of property.  He agreed there is a distinction between the claims the Neelys’ have versus the claim of the Tealls.  He indicated both parties individually are potential applicants under the measure.  He noted the Neelys go back to 1970 and the Tealls go to 1990.  He indicated it was possible for the claim to be approved with two different waivers.


Van Vactor indicated that was the way the order was written.


Mustafa Kashubhai, Junction City, stated his property is adjacent to the  subject property.  He said Spring Creek is the boundary.  He wanted to preserve his right to appeal.  He submitted written materials. (Copy in file).  He said the hearing notice they received indicated the current landowner wants to subdivide the property into one acre lots and place a dwelling on each lot.  He said the applicant requests that the property be subdivided into two subdivisions, one a two acre subdivision and another a ten acre subdivision.  He indicated on each subdivision would be a house that already exists on the property.  He asked the Board not to grant an order that goes beyond the scope of the remedy the applicant has in question.  He thought the Board should limit the scope of their request.  He requested the proposed order be modified, granting the two subdivisions.


Green asked if they modified the claim if the person would still have further claims.


Vorhes responded that was the risk that would be involved in any type of action that would articulate a limited scope of development right pursuant to this.  He said the measure discusses allowing use that would have been allowed at the time they acquired the property.  He indicated for Mayme Neely, that was what the evaluation was based on, and they could do anything under the AGT zone at that time that could have included up to one acre minimum lot parcel sizes. He added as to the Tealls, it was a different issue.  He indicated the regulations had not changed significantly between then and now and in 1990 the waiver would be more limited.  He said to specify in the order a particular development proposal could cause some risk to the claimant.  


Kristin Lee, Junction City, stated she lives across the creek from the property in question. She said there are two houses on the tax lot and it was never described in the application which two acres they would want to include for the home in the back and which ten acres for the home in the front.  She urged the Board to give them what they are asking for but not more.  She thinks their interests are preserving the land uses that exist.  She said they have asked for the status quo of two single family residences while clarifying the property boundaries with the property use agreement.  She commented the impact on the adjacent property owners would be minimal as it would create a new tax lot without new residences.  She objected to the issue which is described in the order. She had concerns with the comparative market analysis that was conducted.  She noted the application only requested $300,000 in compensation, not the $1 million dollars that was provided in the materials.


Randy Henderson, Junction City, stated he is the owner of Thistledown Farms.  He had concerns about the erosion of EFU grounds and their ability to farm next to subdivisions.  He said the parcel was acquired and split in half, half was sold to someone named Matheson. He said that Mayme’s house is on the road and the other house sits in the back.  He said the house in the back was given a permit as a family farm held dwelling.  He said that none of the Neeleys had ever farmed the parcel.  He thought it was a fraudulently acquired dwelling in the EFU zone.  He said neither owner lives on the property.  He indicated that both homes are rented and there had been numerous calls made to the Sheriff’s Office because of trespassers.  He said as a farmer he bought ground so he could farm unencumbered by pressures by urban dwellings.  He wondered when he could file a Measure 37 claim because he lost the right of his EFU ground.  He recommended to let them split the two houses but he didn’t think the transferability to the Tealls was correct and Mayme should be given two parcels.


Bill Neely, Junction City, stated he lives south of the property.  He indicated his father purchased the property in 1970 as an investment to put in a mobile home park.  He stated that Lane County issued a permit for a mobile home park for 200 units but they did not obtain enough financing to complete the project and the permit ran out and construction did not start.  He added the permit was not renewed.  He said his mom who is 91 still owns the property. Neely indicated his mom allowed Dan and Sandra to build the property on the back and they will own the property when she dies.  He recalled that 30 years ago the area was quiet and now it is a speedway in front of their property.  He said he is not a farmer nor is his mother.  He said the land has been in wheat and grass fields and generates enough income to pay for taxes.  He wasn’t opposed to this.


Kathy Gunson, Junction City, stated she has property across the street from the property in question.  She received notice that the Tealls wanted to divide the property into 12 one acre lots.  She said they would be put up next to farm areas. Her concern is they have lost farm country to subdivisions an only two percent of land is in farming.


Clark thought the Board should review the application in its entirety as there are multiple instances in the application where it is clear that the applicants have expressed a desire to split from more than two lots into as many as 12.  He thought there had been adequate notice to the neighbors about splitting the land.   


Morrison asked Neely what year the permit was given for the mobile home park.


Neely stated in 1969 or 1970.


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


With regard to the order, Morrison asked if they would be granting one waiver to Neely and one to the Tealls.


Vorhes said the way the order is drafted, the waiver would be to allow Neely to develop the property in a manner consistent with the land use regulations that were applicable in 1970 when she first acquired an interest in the property or to Daniel and Sandra Teall to make an application to develop the property in a manner consistent with the land use regulations in effect in 1990 when they acquired an interest in the property.  He indicated as the title report shows, the interest in the property rests with Ms. Neely and a reversionary interest to the Tealls and will upon Mayme’s death get the property.  He said it was a transferable interest in property.


Dwyer said he would support a modified order, but he wouldn’t support the transfer of the order.


MOTION: to approve 06-6-7-13.


Green MOVED, Morrison SECONDED.


VOTE: 3-2 (Dwyer, Sorenson dissenting).  




Green thanked the employees for their time at the Valley River Center.








ORDER 06-5-17-16 Considering a Ballot Measure 37 Claim and Deciding Whether to Modify, Remove or Not Apply Restrict Land Use Regulations in Lieu of Providing Just Compensation (Bruce Stewart/PA 05-6478).


Dwyer said Stewart is claiming the rule of necessity and is not allowed to engage in a debate.  He said they had the debate and the motion had failed on a 2 to 2 tie.  He said they have the Rule of Revision that requires Commissioner Stewart to vote and not to participate in the debate.  He said under the Rule of Revision they are going to revisit the Measure 37 claim.


Van Vactor indicated that Vorhes sent the Board an e-mail and paper copy on June 5 that explained this procedure.


Vorhes said in putting this matter on the agenda, they could hear from Stewart on whether or not he has reviewed the record.  He stated that any other discussion or debate is not allowed under ORS 244.120.


Dwyer thought the Rule of Necessity was a lousy rule.  He advised Stewart to participate in a debate before this. He said the fact that Stewart is related to his father does not deprive his father of certain rights.


MOTION: to approve ORDER 06-5-17-16.


Green MOVED, Morrison SECONDED.


Sorenson objected, he said the motion was already made.  Dwyer overruled his objection.


Green said when the applicant made the application, he supported it at that time, not because it was any relative or relationship.  He said the applicant stated he intended to do with the property what other claimants had asked for. Green recalled there were 5-0 votes on those.  He said by lifting the restriction, it allows that person to go forward to proceed in a manner which they had allowed in other applications.  He was trying to be consistent. He supported the motion.


Dwyer asked if they were required to vote, even if there was a conflict.


Vorhes said in ORS 244.120(1), the rule that creates this is an elected public official other than a member of the legislative assembly, or an appointed public official serving on a board or commission shall, when met with a conflict potential or actual, announce the conflict when it is an actual conflict.  Then the first step is to refrain from participating as a public official in any discussion or debate on the issue out of which the conflict arose.  He indicated the Rule of Necessity comes in only if necessary to meet a requirement of a minimum number of votes to take official action.  He said the rules for the legislature as he described is in ORS 244.120(1)(a) that states if a public official is a member of the legislative assembly, the public official shall announce publicly pursuant to the rules of the house of which the public official is a member the nature of the conflict before taking any action in the capacity as a public official.


Sorenson asked how this was brought up without public notice.


Van Vactor indicated he asked the agenda team whether they wanted to bring it up today or to schedule it later.  He said the discussion by the agenda team was to have it today.


Dwyer explained it was his vote and Sorenson’s vote that caused this situation.  He stated he wouldn’t change his vote.


Van Vactor added that during adjustments to the agenda that this matter would be brought up.


Stewart stated that under the Rule of Necessity, he had reviewed the documents that were presented, the public testimony on tape and the written comments that had been sent around in the mail.  He believed he could make a decision and would vote in favor of the Stewart claim.


VOTE: 3-2 (Dwyer, Sorenson dissenting).


There being no further business, Commissioner Dwyer adjourned the meeting at 2:50 p.m.



Melissa Zimmer

Recording Secretary