BOARD OF COMMISSIONERS'
November 29, 2006
Commissioners' Conference Room
Commissioner Bill Dwyer presided with Commissioners Bobby Green, Sr., Anna Morrison, Peter Sorenson and Faye Stewart present. County Administrator Bill Van Vactor, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.
15. PUBLIC HEARINGS
a. SECOND READING AND PUBLIC HEARING Ordinance No. PA 1226/In the Matter of Adopting Amendments to the Rural Comprehensive Plan For Properties in the Coast Fork Willamette Watershed and Other Portions of Rural Lane County; Adopting Exceptions to Statewide Planning Goals Three and Four Where Necessary; Adopting Changes in Zoning Designations to Comply With Such Plan Amendments Where Necessary; and Adopting a Savings and Severability Clause (Control No. 1 - 21) (NBA & PM 11/8/06).
Bill Sage, Land Management, explained there are 19 staff reports involving 31 properties. He recalled in the agenda cover memo of October 23, they listed the actions that were taken by the Planning Commissions. He noted during the Planning Commission meeting there was a request to leave the record open for written evidence and Jim Just from the Goal 1 Coalition submitted information. Sage indicated they objected to 18 of the staff reports and about 27 of the properties within the staff report based on non-compliance between Lane Code and the Administrative Rule. He said the three issues that were brought up included the minimum lot parcel lot required. He said from 2005 there was a LUBA case that was brought to the Board’s attention. He indicated they had two choices, one to come to the Board to suggest a work program and the other was to approach the state to see if they would amend the Administrative Rule as it was something that affected all counties. He noted they did that on October 4, 2006, and that eliminated the requirement. He said there was a concern about the same number of properties not having findings in the record that state if they rezone a property from one zone to another, (when they go into a second zone,) there were enough assurances that it wouldn’t change the rural uses that would be allowed that would be impacting adjacent resource lands. He said Attachment D (copy in file) was a supplemental finding and it outlined the history between the County and the code they adopted in the zones and the acknowledgment order from LCDC that stated the codes were in compliances.
Sage noted the addendum the Board received on November 7 was inserted in the record (Exhibit C, copy in file) 17-1. He added at that time they had a letter that came to them from one of the applicants wanting to withdraw their application,. He said there was instruction to withdraw Exhibits A and B.
Sage explained over the Thanksgiving weekend, they received notice from another property owner that a second property had been sold since the original application had been heard at the Planning Commission (Baldwin property) and they pulled the record. He said they had two telephone conversations with the owner saying they wanted to withdraw. He recalled that issue was to move from a rural residential zone to a rural commercial zone.
Sage noted the last ordinance the Board received with addendum 3, represented all the changes that had taken place over the last month. He added the ordinance the Board received is the one to be considered, 19 staff reports and 31 properties.
Commissioner Dwyer asked if there were any ex parte contacts.
There were none.
Commissioner Dwyer opened the Public Hearing.
Sage explained that they were required under Lane Code to notice all the property owners within 750 feet. He said about 400 people were noticed.
Valerie Nash, stated she owns property number 11. She was in favor of the rezoning. She thought it would bring revenue to the area. She didn’t think the property serves other uses. She said they planted 1,500 trees and only 100 survived. She didn’t think the land was good for foresting. She hoped the Board approves this.
Lauri Segel, Eugene, spoke on behalf of Landwatch. She submitted testimony from Goal 1. She stated this was not a periodic review task and the upzones were not part of a periodic review. She said there was a survey sent out to residences throughout the watershed and people responded to those surveys and staff reviewed the responses. She said the ones that came forward were the ones that qualified. She said this should be considered quasi judicial. She commented that for 12 of the 21 properties, the uses currently on those properties are allowed in the existing zones. She said the properties are not necessary illegal non- conforming uses, but other legal oppositions are documented. She didn’t think it was an appropriate process for a fee supported department to pursue. She hoped the Board would think seriously about the implications.
Dwyer asked why the County would initiate a zone change when there is not an applicant.
Sage said they went to the Video Lottery Commission and they got money for four years for periodic review. He said they sent surveys out to property owners and they also drove around and looked at every property that was in the zone committed exception area. He added they also looked at all the existing commercial, industrial and public facilities. He noted they also looked at the developed committed exception areas in rural communities on a watershed basis. He stated in 1984 they didn’t get everything. He said Lane County didn’t have any relief for that type of action until 2002 when they adopted the new conformity determination opportunity. He said it became an opportunity for the Board and they wanted to do it. He noted the funds for the actions were paid for by the video lottery money. He said this year they couldn’t do anything until LCDC acted. He said these are processes of post acknowledgment plan amendments and they comply with the state law.
Sage indicated the only claims the Board should be concerned with are numbers 2 to 18 and 20 to 21. He said the Planning Commission had concerns about four of them and recommended that all not be processed. He stated staff was recommending approval of all of them.
Don Prechtel, Creswell, stated he and his wife have lived in the same home for 46 years. He indicated that it is a historic property. He was concerned about the proposed change in zoning. He didn’t think the property should be surrounded by commercial development with increased noise. He commented that the area is mostly a residential area and the addition of any more commercial businesses in the area could have the affect of turning the area into an industrial strip mall. He opposed the change from rural residential to rural commercial. He didn’t agree that the change would make the apartments legally conforming. He understood their wanting to make repairs to their property but he disagreed with the zone change. He asked if there was a specific comprehensive plan for the area and what the long range County plan was for the area between the north city limits of Creswell and Dale Kuni Road.
Sage noted part of this is in the urban growth boundary of the city and they wouldn’t have plans for that. With regard to Control 10, the Jackson Crawford property, he indicated there are 18 units. He explained they are trying to fit something in and the zone closest is to it would be a motel to an extended stay operation
Morrison indicated this was part of what they gave direction for staff to do. She was in agreement with this.
Dwyer wanted the community to have an opportunity to have a discussion on the impacts
Russell Crawford, Creswell, commented that to him this meant getting permits to repair his roof. He said it was a long expensive process that was more expensive than the project itself. He indicated it is a rural residential area, they are next door to industrial property and there is commercial property in the area. He said if this is approved, he couldn’t expand his apartment without special permission. He noted the property is outside of the urban growth boundary. He said his building was built in 1965 and it needs to be kept up or it will fall apart.
MOTION: to adopt Ordinance No. PA 1226.
Stewart MOVED, Morrison SECONDED.
Stewart was familiar with the property and he thought this could bring them into compliance and allow them to continue to operate.
Morrison said it was Lane County’s fault in most cases that the zonings applied. She thought it was a service to the citizens to do this. She was in support.
Green supported the ordinance.
Dwyer was familiar with the apartments. He was concerned because it requires a zone change for someone who has an existing use to fix his apartment. He commented that it wasn’t right to make people jump through hoops to try to get a building repaired.
Vorhes asked if the motion was without control number 1 or control number 19 that came in the supplemental.
Morrison stated her motion was with Supplemental 3, having those numbers removed.
ROLL CALL VOTE: 3-2 (Dwyer, Sorenson dissenting).
b. CONTINUED PUBLIC HEARING AND ORDER 06-11-29-9/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 05-6805, Omlid) (NBA & PM 11/8/06).
Kent Howe, Land Management, recalled this was a continuance from November 8 and at that time the Board requested additional information on the Clearlake Watershed Protection Zone and how that would be exempt from Measure 37. He provided the Board with a supplemental memo. He said if they are looking at the Clearlake Watershed Protection Zone, the findings adopting that zone state that its purpose will ensure that the development of properties commensurate with the character and physical limitations and that the land be controlled in a manner to promote and protect the public health, safety and convenience of welfare. He added the protection of the purity of the water of the two lakes is the primary goal of that zone and it reflects a major concern with protecting the water supply for the area. He said it has been described as the protection of the lakes and the zone as adopted protects that water supply. He explained that it does so by restricting the uses that could be located in the watershed. He noted the plan area will be used less intensely and specific objective standards could be set forth in the zone precisely limiting the particular uses allowed. He noted the primary applicable natural value is water quality maintenance that is addressed by the standards discussed in the zone. He noted those were the findings that were adopted as part of the ordinance, adopting the Clearlake Watershed Protection Zone and from a staff standpoint, it appears to be a zone that is for the purpose of health and safety. He added that it allows for development within the limitations of the zone but it is limiting to the uses and division standards for not impacting the watershed.
Dwyer asked if they grant the claim if it would endanger the watershed.
Howe said that would be the logical conclusion. He added the intent of the zone is it allows a limit of development that won’t impact the watershed.
Dwyer asked by denying the claim under Measure 37 if their liability would be limited.
Howe recommended approval of the claim. He said for the portion of the property that is outside the watershed, the County would waive those F2 restrictive regulations that have been enacted since 2000. He said the Clearlake Water Protection Zone is one expressly written to protect public health and safety. He said it limits the uses and everything in the zone is protecting public health.
Vorhes said it doesn’t waive the watershed, it is a way of calling it out and making it clear. He indicated, this was in place before 2000 and it wouldn’t be waived.
Commissioner Dwyer opened the Public Hearing.
Lee Omlid, Florence, asked why the waiver went back to 2000. He stated his uncle acquired the property in 1978 and it was transferred to this trust in 2005.
Vorhes explained the order in front of the Board specifies that date because of the passing of Earl. Vorhes noted Earl is no longer a current owner and in the waiver language, the Board waives to the present owner. He said Lee Omlid and the trust has an interest, so the dates of acquisition by those two remaining applicants are the dates that were put in the order. He indicated the order was set up to account for the ownership of the property at the time of the Board action in terms of the waiver to the present owner, Mr. Omlid and the trust. He added the dates of acquisition were specified in the order. He said in previous trusts what they had done was waive to the earliest owner who retained an interest in the property even though it was conveyed to the trust. He indicated it can no longer be revoked at the time of the Board action.
Dwyer asked what the claimant would be able to do with his property.
Vorhes explained there are two issues. He said there are some things with AGT that might not be allowed under the F2 zone.
Howe said they would have to apply the F2 zone to it and whether it would apply with the template requirements and if there is enough parcelization. He didn’t think this property would qualify.
Omlid didn’t think it spoke to equity. He quoted White v. Heceta Water District, Federal Court Case 91-816, decided 9/11/92. Omlid said it was held that the watershed was not endangered and the property owner could put a house there. With regard to previous policies and the waiver question, he said a waiver could still be granted because in the Clearlake Watershed Protection Zone, it states there are two purposes: protecting the watershed quality and protecting the rights of private property owners to make reasonable use of their land. He thought the waiver should be allowed to override the exemption because there are conflicting public policy arguments for Measure 37. He thought reasonable use was a promise by the owner developer to use sanitation methods and it would address the health and sanitation.
There being no one else signed up to speak, Commissioner Dwyer closed the Public Hearing.
MOTION: to approve ORDER 06-11-29-9.
Green MOVED, Morrison SECONDED.
VOTE: 4-1 (Dwyer dissented).
Dwyer said he thought they still had to apply the templates.
c. CONTINUED PUBLIC HEARING 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).
Howe reported the 1,368 acre property is located along the middle fork of the Willamette River, south of Springfield. He said the property consists of 20 tax lots acquired between 1966 and 1971, at which time eight were unzoned and the rest were zoned agricultural timber grazing. He noted the zoning did not have a minimum lot size. He said they had a subdivision ordinance in place that limited to one acre land divisions. He noted the property is mostly located inside the Eugene/Springfield Metro Plan. He said 147 acres are located in the Rural Comprehensive Plan. He explained that the property is designated a combination of sand, gravel, forest and agriculture and is currently zoned Sand and Gravel F1, that is a non-impacted forest designation F2 and impacted forest designation and Exclusive Farm Use.
Howe indicated the applicant wants to subdivide the property into lots that range from one to four acres in size and develop approximately 300 dwellings. He noted for tax lot 3500 there was a question on whether it was a stock subscription or deed that conveyed it. He added there was another question about the conveyance of the stock subscription and when the property was zoned sand and gravel. He indicated there are portions of the property that fall within the floodplain and floodway. He said there are provisions for development in both the floodplain and floodway. He indicated the provisions in the floodplain are such that the property owner prior to development would have to elevate the structures so they are not within the 100 year flood elevation level and in the floodway it would require a step back water analysis. He added within the floodway they cannot do further subdivisions. He said it appears it is a valid claim from the standpoint of dates of acquisition and the reduction in value from what could have been done when the property was acquired compared to what the zoning allows today. He said the land use regulations are dealing with minimum parcel sizes and whether they can place a dwelling on the property, should the Board decide to find this a valid claim. He added the floodway and floodplain regulations are exempt from Measure 37 and would be applied at the time of the development application.
With regard to tax lot 3500, a stock subscription or a deed, Howe said there was a discrepancy between the text and table. He stated that all of the 20 tax lots were conveyed through the stock subscription. With regard to page 6, Howe indicated TC Wildish only held the vendees interest in a land sale contract with Silva. He added the beneficial interest in the following described parcels was transferred to the applicant: Wildish Land Company by the owners of TC Wildish Company, pursuant to the stock subscription agreement dated December 31, 1966. He indicated the failure of TC Wildish Company to convey the legal interest to a successor, Wildish Land Company (except for the Silva contract interest) was an error they recently discovered. He said regardless of the error, in failing to convey the following described parcels, the applicant obtained its interest in those parcels pursuant to the stock subscription agreement in 1966 and the applicant has exercised all of the tenant ownership of those parcels ever since. He stated that was the basis staff recognized was a conveyance of the interest in those properties on December 31, 1966.
Howe reported the property was unzoned until 1966. He went into the records of the mining permits on the property. He said the Lane County records show that the mining had started as early as 1962 and possibly earlier. He said it was unzoned at that time. He noted the first zoning in 1966 was applied to the property for agriculture, grazing and a timber zone. He said the zoning did not allow mining. He said at that time they had a lawful pre-existing non-conforming use. He recalled in 1976 the County adopted the sand and gravel zone and applied it to that property at that time which made the operation conforming to the zone. He stated in 1984 they did the countywide rezoning and applied the sand and gravel zoning to that property and it has been that way ever since.
Commissioner Dwyer opened the public hearing.
Steve Cornacchia, Eugene, stated he represented the applicant. He said they are in agreement with the staff report and the staff recommendations from Legal Counsel and Land Management. With regard to Dwyer’s concern that the company had sand and gravel on the property, used it and is claiming to be deprived and property values have gone down as a result of the application of the current zoning, Cornacchia recalled in 1984 the Board rezoned the entire County. He said they were zoned AGT, sand and gravel or in some cases not zoned at all. He said there was no opportunity for an up zone. He indicated what occurred is the majority of the property was considered resource land and there was never a consideration for the property to be residential. He said when the company learned the AGT zone was going to go away, they had a choice of Exclusive Farm Use or F1 or F2. He indicated they may have had the opportunity to ask for rural residential but in 1984 when the Board reviewed it, most resource lands remained in a resource designation. He added after 1984, the whole land package was sent up to LCDC for acknowledgement. He noted at that time 1000 Friends of Oregon objected to the packet and used aerial photos of the entire county and noticed parcels were being rezoned from source to rural residential for large acreage that was undeveloped. He said they object to the County’s rezoning to that affect. Cornacchia said when he was a commissioner, he listened to the testimony and received direction from LCDC that to be acknowledged, this was what they had to do. He said they had designations imposed on them and the only ones available to the company for the vacant rural resource land by aerial photos was Exclusive Farm Use, forestry or sand and gravel. He said the company chose sand and gravel to confirm what was already occurring there. He recalled the company knew the deposits were limited and the sand and gravel designation would be of limited value. He said it allowed them to continue as a legal use versus a non-conforming use.
Randy Hledick, Wildish Land Company, indicated on page 13 of their appraisal dated June 17, 2006, it addresses the issue that accounts for not only the land in the floodway but land encumbered with wetlands and land too steep to build upon. He noted of the approximately 1400 acres, they found 710 acres are encumbered by physical constraints that don’t allow them to build on the land and they did not include that land in the analysis. With regard to history and the request of Wildish Land Company asking for the zoning, he recalled in the early 1980’s when the counties and cities were either developing or updating their comprehensive land use plans, he was involved in following the company’s lands through the plan designation and rezoning process. He said what first occurred was the County had planned a parks and open space designation across company property. He said had they requested or obtained the type of zoning they would have preferred, it would have allowed them to do both sand and gravel extraction until the ground was mined and to do a post mining reclamation activity. He noted the alternatives presented to them were natural resource zones, EFU, forest land, sand and gravel and some rural residential. He indicated they asked for sand and gravel zoning and for rural residential designation and zoning. He said what they received was sand and gravel designation and zoning, some farm land EFU zoning, forest designation and forest zoning and the restriction was the Willamette Greenway, applied across the entire property instead of the 150 foot along the Willamette River. He commented that was restrictive and not something they had asked for. He added they asked that not be included. He said they asked for sand and gravel because they were limited in what they could seek on the property.
Steve Wildish, Vice President Wildish Land Company, spoke on the stock subscription issue. He said when they refer to their stock subscription, they are referring to a transaction. He said it was a sale during the formation of their parent company Wildish Land Company. He said in consideration from TC Wildish Company transferring all of its assets including multiple parcels of land to Wildish Land Company, the member of TC Wildish partnership received stock in Wildish Land Company. He added the stock subscription or sale applied to not just a few parcels titled in TC Wildish Company, but it applied to all the parcels conveyed by deed to Wildish Land Company as a result of the stock subscription. He indicated an error was made by his family by not recording the sale by deed of the five parcels showing title in TC Wildish Company. He said Wildish Company corporate records show that Wildish Land Company paid for the parcels with stock in Wildish Land Company. He indicated the tax records show Wildish Land Company as the owner of the parcels, but their corporate records are the best evidence of the conveyance. He said they show voting shares in Wildish Land Company. He added that included the shares received as a result of all the parcels included in the stock subscription, whether they were deeded or not. With regard to dividend payments, he said periodically over the years dividend payments were also made to the same interests. He recalled in 1991 they had a large redemption of stock and it included stock that came out of the original stock subscription payment with Wildish stock to TC Wildish Company interest. They believe that Wildish Land Company is the owner of the parcels. He added that TC Wildish Company received the same consideration in Wildish Land Company whether it was shown by a conveyance in a deed or not.
Cornacchia believed they met all the requirements of the statute that implements Ballot Measure 37 and that the claim is valid and they have shown a diminution in value and that the claim if not paid, should be transferred to a waiver of regulations.
Commissioner Dwyer opened the Public Hearing.
Jim Weaver, Eugene, commented that Mt. Pisgah Park is one of the greatest municipal parks in the country. He said there are dozens of Measure 37 claims that are unresolved. He didn’t want the Board to let this Measure 37 claim go to court.. He wanted the Board to get a first rate appraisal.
Dwyer commented that the Board agreed this is a jewel of a piece of property they want to see become part of their legacy for their children and grandchildren. He said they are talking about Measure 37. He said the Wildish’s let them put this land into their inventory. He said they will have public hearings over the acquisition for a park. He indicated they have a 45-day window of opportunity to tell the company whether they want to exercise the option. He said they agreed to give them several years to put a deal together should they exercise the option.
Katy Mason, stated she is a teacher. She agreed with Dwyer that this is a piece of property that is valuable to the children and grandchildren. She appealed to the Wildish family to leave this as a legacy to all children in Lane County. She commented that it was an opportunity they couldn’t do without.
Tom Locasio, stated he lives at Mt. Pisgah. He said they all see this as a good acquisition for the community and the Wildish‘s agree that it will create a legacy. With regard to Measure 37, he said it is key as they proceed with the claims to make sure they understand what the interpretation of the law is and what they have to do in order to abide by that. He said volunteers have made what Mt. Pisgah is today. He said as a community they all see value on the piece of land. They hope they will continue to work as a community because they will all gain from the property. He hopes everyone involved will work together to make Mt. Pisgah a place they will value for many years to come.
Jim Evanauk, Eugene, he said not everyone agrees it should be a park. With regard to Measure 37, he thought they followed all of the rules and saw no reason to deny the claim.
Theodore Palmer, Eugene, commented the acquisition of the property is the basis for the future of Lane County. He said if the Wildish Land could be added, they would have a park of nearly 5,000 acres, three-quarters of the boundary will be river front and the other quarter of the boundary is the south outline of Mt. Pisgah itself. He said it is the kind of boundary that can persist for centuries. He added if the Wildish property were developed, there would be houses almost within sight of the summit of the mountain and there would be degradation of the natural resources. He said for the past 20 years the Wildish Company has done little with the land and it has functioned as part of the natural land system of central Lane County. He stated he was a good friend of Howard Buford. He believed in 1966 Buford decided the land should continue to be used for gravel extraction. He recalled it was a controversial decision at that time. He said there was a public outcry against having the land as gravel land. He said it was essential that Lane County gets the land.
John Helmer, Eugene, said he has an adjoining property on Seavey Loop. He said he is a long time visitor to the Howard Buford and board member of the Mt. Pisgah Arboretum. He said it is time to show that this generation has the energy, commitment and vision to build a better community for children. He urged the Board to facilitate the acquisition of the Wildish land and the Howard Buford Recreation area.
Lauri Segel, Eugene, commented that with Measure 37 claims there is no opportunity to really speak about them. She wanted to see the County acquire the property but she did not think the valuation was addressed from a reasonable perspective.
Dwyer stated that under the Wildish Measure 37 claim, they are claiming diminution of value of $15 million. He added under their offer to the County, they have another appraisal for a different value that says it is worth $31 million and they are willing to discount $5 million toward the County for the purchase.
Rob Zako, Eugene, 1001 Friends of Eugene, stated they submitted 25 pages with another 50 pages of attachments. He commented that Measure 37 doesn’t provide a lot of guidance on how to evaluate a claim. He indicated the claim consists of 20 different parcels and there are questions with some parcels. He said there is confusion over tax lot 3500. He said another parcel where there is confusion is tax lot 101 and 180208. He noted there is disagreement between the applicant and the appraiser about which parcels are part of the claim. He indicated the appraiser appraised tax lot 180208 and 201, but it wasn’t part of the claim. He noted a parcel that was part of the claim, 180209, tax lot 900 wasn’t appraised. He added there are five other parcels that Wildish owns immediately adjacent to the claim that are not included in the claim. He thought the Board should deny the claim because he doesn’t think they are establishing a Measure 37 claim. He asked to keep the record open for 14 days to provide additional evidence.
Cornacchia reported they reviewed the material by Zako and thought there was nothing of substance. He said in reading through the questions, that they were already answered. He said the request that the record be kept upon, they were on record that they are not willing to waive the 180 day period. He thought the Board needed to make a decision within 10 days. He said Zako brought in a competing analysis. He said to use the testimony to put them past the 180 day period is problematic. He indicated the Wildishs’ are the owners of the property, it did go through a change in zone that restricted it from what their clients could have done prior to the time it was changed and through a licensed appraiser’s valuation analysis that the property has experienced a diminution in value. He added that Zako brought up the fact that the appraiser identified 710 acres as unbuildable. He indicated that was factored into the value of the property. He said if the Board could still make a decision in December, they could keep the record open. He stated they had no need to address this at this time. .
Dwyer indicated the 180 days runs on December 25., 2006. He entered letters into the record.
There being no one else signed up to speak, Commissioner Dwyer closed the Public Hearing.
MOTION: to move for deliberation on December 5, 1:30 p.m.
Howe indicated they made an error in the order and they handed out another order.
Green MOVED, Stewart SECONDED.
16. COMMISSIONERS' ANNOUNCEMENTS
17. CORRESPONDENCE TO THE BOARD
18. OTHER BUSINESS
Dave Williams was recognized by the Board of Commissioners for his work at Lane County.
There being no further business, Commissioner Dwyer adjourned the meeting at 4:10 p.m.