May 17, 2006

1:30 p.m.

Commissioners' Conference Room

APPROVED 6/21/06 

Commissioner Faye Stewart presided with Commissioners Bobby Green, Sr., Anna Morrison and Peter Sorenson present.  Bill Dwyer 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 06-5-17-15/In the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to Modify, Remove or Not Apply Restrictive Lane Use Regulations in Lieu of Providing Just Compensation (PA 05-5880, Suess).


Commissioner Stewart asked if there were any ex parte contacts.


There were none.


Kent Howe, Land Management, reported that they would be dealing with four Measure 37 claims today.  He indicated that notice was sent on all of them about four weeks ago.  He said there was something wrong with the notice for the Suess claim and once they realized it had occurred, they sent out a second notice on May 11.


Howe noted the Suess property was acquired in 1963 and it was unzoned.  He said the property is about one mile southwest of the Eugene urban growth boundary off of Crow Road.  He noted it is now zoned EFU 40, 120 acres in size.  He said the appraisal that had been provided in the packet is speculation about the value, assuming 125 lots that were one-acre in size.  He added the value would be in comparing it to the current property value.  He indicated the applicant is requesting one-acre lots on this 125-acre piece of property.  He asked if the Board was comfortable with the reduction in value analysis that is provided, then the claim would meet the requirements of being a valid claim as far as date of acquisition.  He said there were no issues about ownership or title.


Howe explained that if the application is deemed to be a valid claim and the Board waives the land use requirements that limit the ability for the property to be divided into 125 one-acre parcels, it still requires the applicant to go through the land use process of platting a subdivision of one-acre parcels. He added that process requires the applicant to provide the information that they have for water, to meet the DEQ requirements, provision for subsurface disposal systems and transportation circulation pattern.  He noted that both the health and safety requirements are built into future land use applications that would be subsequent to any waiver the Board might approve.  He added they would still need a state waiver on this claim.


Commissioner Stewart opened the Public Hearing.


Marty Peets stated he was an agent for the Suess.’  He said they acquired the property in 1963 and were planning for development of that property. He noted at the time the development code allowed for seven lots per acre for development.  He said in ensuing years further restrictions were placed.  He indicated there is reference to a tax lot 3100 on page 1 and it should be tax lot 300.  He said the property is described correctly.  He said the County has to decide how long the property has been owned continuously by the Suess’ and if any land use regulations enacted after their acquisition caused devaluation of the property.  He said they have provided an appraisal that properly determines if there had been a devaluation. He said they are asking that the County address those two questions as required by law.  He believed the evidence provided showed a devaluation that requires the County either waive the land use restrictions or compensate the Suess.’  He thought any modification must still be matched up with what the land use regulations were at the time they acquired the property.  He noted when the Suess family purchased the property, they could have made application to build 800 or 900 homes.  He said they picked a maximum number of homes that they would want to investigate regarding development.


Sorenson asked if there was any opposition to this request.


Peets responded he hadn’t been contacted directly by anyone.  He said they received a letter from County planning.  He also heard some people discussing water and if it is available.  He said they investigated that with the state water master in Springfield and they think there is water available.   He said they did an investigation of wells in the area.


Dwyer asked if the County had discretion to deny back then.


Peets said whatever the health and safety regulations were at the time were not as detailed and clearly written as today.  He said there are home sites that are smaller that were approved by the County.


Jodi Butler, said her concern is the water and traffic.  She said if they put 125 homes there then it becomes a safety issue because the traffic will increase.  She said she moved to the country for the rural area.  She commented with 125 homes being placed, it is not rural anymore.  She said there was only one home that was less than five acres.  She didn’t agree with the claim.


Ronna Boucher, stated her position was neutral.  She noted that Crow Road is a service road.  She was interested in a water study.  She also wanted to know if they had a neighborhood group that was formed for this.


Tim Attaberry, said his property is located about 200 feet from the Suess’ property.  His main concern is water.  He said in summer he has to be careful with how much water he uses.  He said that Dukholba Road is not paved.  He noted the County uses dust control in the summer.  He added he was also concerned about water, sanitation and traffic control.


Ken Benson, said there were advantages to having a subdivision that was upscale that brings property values up in the neighborhood.  He hoped there would be a public water supply and sewers.  He said his neighbor has under an acre.  He noted there were wetlands on the property and it has a Bonneville Power transmission line that goes through the middle.


Darold Smith, stated his biggest concern is water.  He said his well is at 400 feet and he gets about 10 gallons per minute.  He was neutral with the project but he was concerned about the wetland issue and the Bonneville line going through.  He thought that he and his neighbors had not been given enough time to review the project.  His concern is putting in 125 houses in the area and the infrastructure with it. 


Joel Freeman, said he moved to the neighborhood two years ago.  He said they picked the location because it is a rural location.  He was against the idea of a subdivision in the country.  He said the quality of life would deteriorate.  He was concerned about the water.


Bob Barnum, stated he has less than five acres and moved in 1972.  He said the property had one well that was 165 feet when they bought it.  He said within the first two years their well was dry.  He said they are immediately to the south of where the project is.  He noted that every summer they are limited on the amount of water they used.  His main concern is water.


Peets explained that the process of Measure 37 is to correct the inequitable land use regulations placed on land after people purchased it.  He commented that the County has the opportunity to view a development plan when they put one together and regulate traffic, transportation and sanitation and water.  He said if they can’t do any of those things then there would be no development.  He commented that the law has been that the regulations have been found to be inequitable and they are entitled to a waiver or compensation.  He noted the second step is to come to the County with a development plan to determine how they want to use the property.  He said they had no neighborhood meetings because they are so early in the planning stages. 


Sorenson noted the applicant was requesting 125 lots for single-family homes.  He asked if there were a certain number of lots that had to be requested.


Peets said they did appraisals for 125 lots using the County Assessor’s tax valuation of parcels of that size.  He said they used 200 parcels to compare and came up with $3.4 million.  He said they went back and determined if they had to put in between 59 and 65 home sites, the compensation value would be $1.4 million for 62 parcels.


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


Green asked if notification was limited to a certain area.


Howe responded that it is 1,500 feet from the perimeter of the subject property.


Morrison asked what the notification process would be when they actually go for the development.


Howe said it is a land use process and notice will be sent to properties within 750 feet.  They will have an opportunity to comment on the proposed subdivision He said there will be planning director approval and an opportunity to appeal to the hearing’s official and to the Board and then on to LUBA.


Vorhes explained they send notice when the application first comes in, not in advance of a hearing, as with the Measure 37 claims.  He added the planning director has the discretion of electing to hold a public hearing before the planning director makes a decision.  He said if there is a hearing that notice would go out as well.


MOTION: to approve ORDER 06-5-17-15.


Morrison MOVED, Green SECONDED.


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


b.  PUBLIC HEARING AND ORDER 06-5-17-16/In the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to Modify, Remove or Not Apply Restrictive Lane Use Regulations in Lieu of Providing Just Compensation (PA 05-6478, Stewart).


Commissioner Stewart stated that due to state law, he had to remove himself from this hearing as he has a direct conflict, as this is his dad’s claim.  He turned the meeting over to Commissioner Green and left the room.


Howe explained that the applicant acquired the property in 1969 and it was unzoned at that time.  He indicated the property is on Stewart Hills Lane, four miles southwest of Cottage Grove.  He said it is currently zoned rural residential, five-acre minimum and is 13 acres in size.  He said the information the applicant provided was a realtor’s opinion of the value.  He said the Board has to determine if they feel it represents a reduction in fair market value.  He said the applicant wants to divide the property into smaller lots.  He asked if the Board was comfortable with the value reduction opinion, then it would be a valid claim because of the date of acquisition.


Commissioner Green opened the Public Hearing.


Green asked if there were any other ex parte contacts.


There were none.


Bruce Stewart, Cottage Grove, stated he is the applicant.  He purchased the property in 1969 and at that time it was unzoned.  He said he bought it to enjoy and a place for his children to have a future home.  He said land use laws and zoning didn’t let him previously build on the land.  He tried to apply for a RR2 zoning but was denied.  He indicated he presently has two legal lots of 13 acres.  He stated that part of buying the property was a form of retirement investment.  He stated he met all of Measure 37’s criteria.


John W. Gorny, Cottage Grove, stated they had nothing against the development because Stewart’s first priority is family. He was concerned about the traffic, the water problem and in order to get onto his property, they have to take Stewart Hills Road.  He said the road is a gravel road and it is a problem for them with the dust.


Nolene Wheeler, Cottage Grove, said she is a neighbor.  She said she is neutral on this.  She indicated she lives on 3/10th of an acre that is bordered by Mosby Creek Road.  She lives in a house there because her mother bought the property in 1962 and two cabins were built on it before it was controlled by the County.  She said the County let them rebuild a house that was damaged by a fallen tree and to rebuild, they were grandfathered in because they already had a septic and well system.  She was concerned about being a streamside resident.  She hoped her neighbors would find satisfaction in the process.


Michael King, Cottage Grove, stated he is a landowner who lives on property adjacent to Bruce Stewart.  He said the land use regulations are there for a purpose.  He commented with the division of land there would be more people by the creek.  He said people come and swim in the creek and discard trash.  He stated that the land is for everyone and he doesn’t understand why people are able to split land and destroy it. 


Samuel King, Cottage Grove, said he had been affected by the previous actions of Bruce Stewart.  He added that this claim would change the zoning of the land.  He thought the Measure 37 claim should be rejected because there would be a negative effect on people in the community.  He was concerned about trespassing.  He thought a public nuisance would be increased traffic. He said they would have to go over a small bridge to travel in the area.  He stated that there would be pollution from the land being constructed on.  He said Stewart’s application discusses other property that isn’t creek side.  He commented that Stewart’s claims were speculation on the loss.  He said that Stewart only showed one instance where there might be a decrease in value.


Jim Belknap, stated he is the principle broker for Territorial Land Company, Cottage Grove.  He said he does land use consulting but they didn’t represent Stewart in the preparation of the application. He indicated he was asked to prepare the valuation to determine what type of compensation could be requested under a Measure 37 claim.  He said one of the problems with Measure 37 is that it requires almost a speculative approach of value of what could be done if current land use regulations were not applied to a piece of property. He noted when Stewart acquired the property, there was no zoning in effect and he could have done any type of development.  He was given the assignment to determine the highest and best use of the property.  He said it was his opinion, that the property as it is currently zoned (rural residential, with a greater level of density) has the highest and best use.  He added abutting Stewart’s property is a higher level of density, lots between a half and one acre in size.  He said they evaluated the property as if 13 single family residential building sites could be developed.  He added it would be a one-acre lot where a septic system could be installed and a well could be constructed that would meet state DEQ standards.  He said they estimated what 13 building sites would be worth and they deducted the development costs of the project and arrived at a figure.  He said they also determined the current market value of the property and the difference between the two was the compensation figure of $445,000.


Scott Pyle, Cottage Grove, said his concern is water and sewer.  He said they have a shallow well but it supplies them until August.


There being no one else signed up to speak, Commission Green closed the Public Hearing.


Green asked about the legitimacy of the claim and what the interpretation is.


Vorhes said the sections that define exempt regulations are not considered restricted land use regulations under the measure.  He added that some of the descriptions of situations continue to apply and cannot be waived.  He didn’t think the current zone lot division limitations fit into those categories.  He said some of the regulations continue to apply to address adequate water and sanitation concerns.  He said those regulations are not being recommended to be waived.  He said the only restrictions that are being waived are the ones that limit the division of land.  He noted that the owner of the property, once the County and state have taken action on Measure 37 claims will still need to apply and show compliance with all of the health and safety regulations that continue to apply to this property. He added that federal and state pollution control regulations would continue to apply.


Sorenson indicated the current ordinance in effect requires an applicant for Measure 37 claim to have an appraisal.  He asked if Van Vactor waived the appraisal requirement.


Van Vactor said in reviewing the claim the valuation information they had used comparable sales.  He said in previous discussions with the Board on the minimum requirements for discussion on the valuation question of Measure 37, he recommended that as long as they have comparable sales of actual sales and not just assessed valuation and an analysis to the regulation, they had met the minimum requirements of Ballot Measure 37.  He said this claim meets the requirement for a waiver.


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


Morrison MOVED, Green SECONDED.


VOTE: 2-2  (Dwyer, Sorenson dissenting) MOTION FAILED.


Morrison asked if the applicant goes to the state and the state approves their application, what impact it would have on the Board.


Vorhes responded that all the state would be able to waive is state regulations.


Van Vactor explained that there is a concept called Rule of Necessity.  He said that occurs when an elected official has a conflict of interest and has withdrawn (what Commissioner Stewart had done), and the governing body, because it has an even number, splits and can’t come to a decision. He noted that under the Rule of Necessity, Commissioner Stewart could check with County Counsel to see if it meets those requirements. He suggested having that analysis done before Commissioner Stewart participates.


c.  PUBLIC HEARING AND ORDER 06-5-17-17/In the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to Modify, Remove or Not Apply Restrictive Lane Use Regulations in Lieu of Providing Just Compensation (PA 05-6584, Bangle).


Stewart asked if there were any ex-parte conflicts.


There were none.


Howe indicated that this Measure 37 claim involves property that was acquired by the Bangles in 1957 and at that time the property was unzoned. He said it is located on Allen Road, about five miles southwest of Cottage Grove.  He said it is currently zoned F2 and is 150 acres in size.  He noted the realtor provided a comparative market analysis with comps.  He indicated the reduction in fair market value has been provided.  He said the property was placed in a trust in 1995 but it is revocable.  He said the trustees are Charles and Mary Bangle the applicant for this Measure 37 claim.  He stated that they wanted to divide the property into three or four lots out of the 150 acres that are currently zoned F2.


Commissioner Stewart opened the Public Hearing.


Charles Bangle, Cottage Grove, said he had moved on his property in 1958.  He said they purchased the property in 1957.  He said they moved on their property for the quality of life in the rural area.  He indicated that they wanted to divide the land so they had a place for their kids to live.  He thought by dividing the land that it wouldn’t impact anyone that much. 


Van Vactor asked Bangle if he had any experience or qualification with regard to the valuation of land.


Bangle responded that he went to a real estate broker and looked at comparative parcels in Cottage Grove and what it sold for.


Van Vactor explained that Ballot Measure 37 requires that there be evidence in the record that indicates that as a result of the land use regulation, the property has been reduced in value. 


Bangle thought it was not the value of the property but what he could do with the land when he bought the property.  He recalled at that time he could place a house anywhere and sell it.  He wanted to divide the property in three parcels.


Van Vactor noted the question is the opinion of value of the realtor.  He noted that Bangle in handwritten notes talks about the land use regulation.  Van Vactor wanted to get an establishment of the linkage between the $1.4 million value and the lower $350,000 if that was the current land use regulation.  He asked if that met the minimum record.  He noted that Bangle thought his record did.  Van Vactor stated the difficulty is that Bangle is not a licensed real estate broker or appraiser.  Van Vactor said by performing deductive reasoning, $1.4 million divided by what the realtor said probably met the minimum requirements of Ballot Measure 37.


Morrison wanted to extend this application for another couple of weeks and ask Sherry Dirst-Higgins to draft what is required to be submitted so everything is met.  She didn’t have a problem with the information as it is in the report and the documentation.


Green wanted to be consistent in getting the information.  He was okay with the information presented.


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


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




Dwyer thought this claim was a reasonable request.


VOTE: 5-0.


d.  PUBLIC HEARING AND ORDER 06-5-17-18/In the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to Modify, Remove or Not Apply Restrictive Lane Use Regulations in Lieu of Providing Just Compensation (PA 05-6653, Wobbe).


Stewart asked if there were any ex parte conflicts.


There were no conflicts.


Howe explained that the property is located off of Awbrey Lane, north of Eugene’s urban growth boundary.  He said the property was acquired in 1975 and it was zoned at that time M2, medium industrial designation.  He said it is currently zoned EFU 40 and is 25 acres in size.  He said this appraisal is based on a hypothetical value if it were in the industrial zone.  He noted the applicant wants to develop the property as would have been allowed in 1975 in the industrial zone.  He said at that time, the industrial zone allowed residential, commercial and industrial use. 


Commissioner Stewart opened the Public Hearing.


Mike Farthing, stated he represented Donald and Cheryl Wobbe.  He indicated they received an appraisal from an appraiser and they valued the property for EFU versus M2.  He said the Wobbes want this rolled back to what it was when they bought it.  He said their expectations when they purchased it were M2 grounds.  He added there was confusion whether it was M2 or M3. They concluded it was M2 zoning.  He believed the appraisal was a fair one and indicates a reduction of value consistent with Measure 37 requirements.  He asked the Board for approval.


Sorenson asked if there was any opposition to this claim.


Farthing responded there was none.


There being no one further signed up to speak, Commissioner Stewart closed the Public Hearing.


MOTION: to approve ORDER 06-5-17-18.


Morrison MOVED, Green SECONDED.


Vorhes indicated there was a minor revision to the order.  He said in the first paragraph in the order on page 2, the reference to the restrictive provisions of LC is 16.210, should be 16.212.  He didn’t think the request was to just limit the dwelling and division provisions, there were other use provisions He recommended they delete the phrase “Dwellings and the division of” so it would read:  “ The request shall be granted and restricted provisions of LC 16.212 that limit the development of land in the EFU E 40 zone shall not apply.”


Morrison amended her motion to accept the corrections to the Board order.


Green concurred with Morrison.


VOTE; 5-0.














There being no further business, Commissioner Stewart adjourned the meeting at 3:20 p.m.



Melissa Zimmer

Recording Secretary