November 8, 2006

1:30 p.m.

Commissionersí Conference Room

APPROVED 1/17/07


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.




a. SECOND READING AND PUBLIC HEARING Ordinance No. PA 1235/In the Matter of Amending the Rural Comprehensive Plan to Redesignate Land From "Forest" to "Marginal Land" and Rezoning That Land From "F-2/Impacted Forest LandsĒ to "ML/Marginal Land", and Adopting Savings and Severability Clauses (file PA 04-6308; Dennis) (NBA & PM 10/25/06).


Thom Lanfear, Land Management, explained that this is for a plan amendment and zone change from forest land to marginal land and zoned from F2 impacted forest land to marginal lands.He noted the Planning Commission held public hearings and deliberated on the record.


Dwyer noted this is a de novo hearing where new evidence will be taken. Dwyer asked if there were any ex parte contacts.


There were none.


Lanfear reported the project is 102 acres in size, located on Jasper Lowell Road, identified as Assessorís Map 180133, tax lot 106.He said the criteria used to evaluate the proposal are found in ORS 197.247, as it existed in 1991, the marginal lands provision.†† He indicated there are two tests the applicant has to have.He noted the income test requires that the applicant demonstrate that the proposed marginal lands were not managed during three of the five calendar years preceding January 1, 1983, as part of a farm operation that produced $20,000 or more in annual gross income or was a forest operation capable of producing an average over the growth cycle of $10,000 in annual gross income.He said the second test the applicant chose was the productivity test.He said the test requires that the applicant demonstrate that the proposed marginal land is composed of predominately soils in capability classes 5 to 8 and the agricultural capability classification system (used by the US Department of Agricultural Soil Conservation Service), and is not capable of producing 85 cubic feet of merchantable timber per acre per year.He added the applicant chose a third component in the initial application and that had been withdrawn regarding the parcelization test.


Lanfear explained the applicantís material states that the forest operation is only capable of producing $6,821 in annual gross income to show it was capable of producing less than $10,000.He added the soil classes between 5 and 8 compromised 58 percent of the subject property soils and they turned in information claiming that the property is only capable of producing 80.7 cubic feet of merchantable timber per acre per year.


Lanfear noted the Planning Commission evaluated all of the evidence and listened to testimony.He said they concluded on a vote of 4-2 that the application did not qualify to be changed to marginal lands.


Lanfear indicated he had no new information from the applicant, but received a letter yesterday from a neighboring property owner that he distributed to the Board.(Copy in file).


Dwyer wanted to make sure that other people could respond to the letter.


Lanfear indicated the letter was in opposition.He stated at the end of the testimony the Board could decide whether to leave the record open for additional testimony.He said he would give a copy of the letter to the applicant.


Commissioner Dwyer opened the Public Hearing.


Steve Cornacchia, Eugene, stated he represented the applicant.He indicated in the staff report that staff accepted their information and came to the conclusion that the evidence they provided to date is sufficient and adequate to be considered substantial evidence that would support an approval of the application.He added staffís recommendation was for the Board to approve the application.He said there are a variety of tests associated with marginal lands applications.He believed there was more than enough evidence to support conclusions that the applicants have met their burden on each and every test associated with the marginal lands statute requirement.He was aware that the Goal 1 Coalition was going to submit information objecting to most of the information.†† He reviewed that information and found that the arguments made were the same that had been made throughout this case for the past two years and in other marginal lands cases.He noted there was an issue raised of 1983 prices being used for the conclusions reached on productivity.He added there are issues raised on 50 year cycles and on all of the interpretations that the Board issued in 1997 regarding marginal lands applications.


Cornacchia noted there were other claims with the same arguments with a new twist, stating the information provided is skewed and not relevant.He had Mr. Setchko review them this morning and provided him with an e-mail that has five one sentence responses.He indicated that Setchko discovered those were based upon State of Washington figures for productivity. He said Goal 1 had continually questioned them on their methodology. He said they assumed productivity for witzel rock outcrops. He said this was an argument that was made in other cases involving complexes.He said that methodology was rejected by LUBA in the Carver case.He thought they would find the same for forestry productivity.He said because witzel rock outcrops has soil involved, they make it one class and give it one productivity rating.He said the methodology they used in Carver and the resources was the same and the Carver decision the Board made was affirmed. He noted there was an issue where they used prices for their income calculations that assume higher grades that could be attained in the time frames given.


Cornacchia said they were providing no new evidence.He said they didnít require keeping the record open.


Cornacchia recalled that at the Planning Commission the applicants were personally attacked for the neighborsí perception of what had occurred at that property.He said people came in to testify that the applicant did not reforest the property after they attempted to plant it. He said they attempted to plant it twice and the information is in the record and confirmed by Mr. Setchko from his personal observations on the property.He added they attempted to make two additional attempts to reforest the area that had been logged and in the record Setchko also confirmed that.He asked how anyone knew unless they trespassed on the property.He said if that was how the information was attained, then when they look at the two offers of evidence, (one from a professional forester and one from a questionable source) the law states they have to give more weight to the professional foresterís opinion of what happened on the property.He commented that 60 percent of the property is bare hillside and rock.He indicated there was anecdotal information that was irrelevant to the criteria that gives a bleak impression of the applicant. He stated that was not relevant.He indicated what had been alleged was that the applicants were storing hazardous materials on the property and allowed those materials to leak out.He said there were two barrels of reclaimed oil on the property.He said vandals used the barrels for target practice and the destroyed barrels were observed by people who went on the property and notified Lane County.He indicated Lane County notified the owners who promptly removed the two barrels.


Cornacchia noted there was testimony that the applicants had done things with their property that had created flooding on neighboring properties.†† He said in looking through the testimony, they found what had occurred were people in the area had decided to use the property as a playground.


Cornacchia said the applicants were suggesting that the development of the property with four or five lots that are 20 acre parcels would be a better treatment of the property than it currently is.He noted the owners are absentee owners and do not live on the property.He said there was no evidence of civil litigation on the matters.He asked the Board to review the application as a criteria based application and whether they had provided substantial evidence to support it.†† He believed they had, as well as the planning staff.


Trish Chomyn, Fall Creek, indicated she was one of the people who reported on the hazardous waste.She stated they wanted to make their property workable.She said after their complaints and issues were brought to the county and state agencies, they fell on deaf ears.She indicated the only hope was to litigate. With regard to the reforestation, she said they could see the areas from the roadway; they didnít have to walk on the property.She didnít know how it could be forested when it had never been cleaned up. She indicated they logged the property and she didnít know why it couldnít be done again.She noted the neighboring properties were reforested.She indicated there were farming activities that were successful.


Julie Erlei, Fall Creek, said she and her husband just moved in.She said she didnít know about this until they received notices from the former owner.Her concern was the easement that goes through her property.


Morrison asked if in the purchase of Erleiís property there was a disclosure about the easement.


Erlei said the easement was in the papers. She said it was disclosed as a 60 foot easement going to F2 property and there would be one family or a person going to and from the property and possible logging or farming in short bursts as opposed to daily.


Nina Lovinger, stated she represented Land Watch, Eugene. She said the proposal had undergone thorough review by the Lane County Planning Commission.She said the findings and staff materials do little to inform the Board of the basis for the Planning Commissionís recommendation of denial.She said, based upon their participation in the planning actions that come before the Planning Commission and the Board of Commissioners, they recognize the Planning Commission spends more time reviewing zone change and plan amendment proposals than do the commissioners.She said the Planning Commission is charged with the sole responsibility of reviewing land use proposals, whereas the Board is charged with decision making.She said this Board appears to accept applicant material as the facts even when the Planning Commission points out flaws and inconsistencies in the applicantís material.She noted that two of the Planning Commissioners submitted their justifications for their recommendations in writing to the minutes of the deliberations on the proposal.She said the written comments addressed the productivity standards and forest income test, but it was ignored.She urged the Board to review the written minutes of the Planning Commission hearing and deliberations of the review of the plan amendment and zone proposal before they take action on the proposal.


Robert Emmons, Fall Creek, stated he was president of Land Watch.He said on the forest productivity standards of the 1991 edition of ORS 197.247 1 (d) (c), their analysis relies on Setchkoís data and their calculations shows the productivity test is not met.He said Setchkoís analysis concludes that the subject property is capable of producing 78.175 cubic feet per acre per year of merchantable timber.He said there were three errors in his analysis.He said the first incorporates an error found in Lane County for ratings for forestry and agriculture and in assigning productivity for the Dixonville Hazelare Philomath complex.He noted the second error was in restricting the inquiry in Douglas fir.†† He stated the third error is in relying on productivity data and the Lane County ratings that provide potential productivity ratings only for Douglas fir. He concluded that the subject property is capable of producing in excess of 85 per cubic foot per acre with a combination of Douglas fir and Ponderosa Pine and the productivity test is not met.He requested that the record be kept open.


Tim McMahen, Fall Creek, stated he was a direct neighbor to the property. He said no one was tearing down fences.He said there are abandoned vehicles on the property and it is a junkyard.He didnít think it should be used as a junk site.He didnít think it was a good use of the land.


John Richardson, Eugene, said he owns 28 acres to the west of the subject property.He said he shares the road going up to the properties.He commented the Board has a Planning Commission that has recommended the application be denied by a 4-2 vote. He thought the Board needed to decide if they support their Planning Commission or not.


Lauri Segel, Eugene, stated she was speaking on behalf of the Goal 1 Coalition.She said based on their analysis, the income text of ORS 197.247 isnít met.She said 1978 to 1982 prices must be used.She stated that LUBA has held that the legislature intended the gross income text under ORS 197.247 to be applied based on the five year period proceeding January 1, 1983.She stated the applicantís forestry consultant has used 1983 prices in computing potential income.†† She said ORS 197. 237 1(a) looks back in time to the 1978 to 1982 period. She recalled that LUBA in Carver pointed out that both the farm operation and forest operations are linked to January 1, 1983.It required that pricing prior to the first quarter of 1983 be used.She said the use of the 50 year growth cycle had not been justified and is not appropriate.She requested the marginal lands be denied.


Rozelle Bircher, Fall Creek, opposed the change.She said changing the zoning would lead to more houses that would create more traffic.She thought her water could also be affected.She asked that the application be denied.


Cornacchia agreed with Lovinger that the Board should read the minutes of the Planning Commission.He said they had Planning Commissioners telling them that the soils survey could not be relied upon and thought the surveys were unreliable.He said that was the type of decision making that evening.He said there were statements on hazardous materials and flooding, which are not part of the criteria. He said those issues will come out when they go for the subdivision and the applicant will address them appropriately. .He noted the property immediately west to the property is 100 acres that was rezoned to marginal lands about seven years ago.He said they have the same soils as the property next door and it was rezoned marginal lands.He commented that the 1983 prices and the 50 year rotation were affirmed by Lane County by LUBA in the Carver case.He said one of the comments that Setchko made, he responded to the issue of rotation which is a simple issue.He stated there was no one else with credentials to argue the value or the appropriateness of 60 to 100 year rotations to be used as managing forestland.He said Setchko stated in the Goal 1 materials that there was no discussion of opportunity costs. He believed they more than adequately provided evidence to support the record.†† He commented it was not great land.He said the application was filed November 2004 and the only thing new was the five points.He didnít think there was a need to keep the record open longer than seven days.


MOTION: to approve a Second Reading and Setting a Third Reading and Deliberation for November 29, 2006 and leaving the record open for seven days to respond to any materials submitted at the hearing.


Stewart MOVED, Green SECONDED.


VOTE: 5-0.


b. PUBLIC HEARING AND ORDER 06-11-8-5/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 05-6805, Omlid).


Kent Howe, Land Management, reported this is a 37 acre property outside of Florence off Taylor Road near Clear Lake.He noted the interest in the property was acquired in 1978 by Erling Omlid, and in 2000 Lee Omlid acquired interest in the property.He said they want to divide the property into lots of less than 80 acres and place a dwelling on each, and construct a mobile home park.He indicated the applicant submitted deeds and a brokerís opinion of the value reduction addressing the Measure 37 requirements and the county administrator waived the appraisal requirement.


Howe explained that Erling Omlid conveyed interest in the property to a revocable living trust in 2005 and because he is a trustee, it doesnít create a new owner.He said it appears they have a valid claim for Erling Omlid and the restrictive land division and dwelling requirements could be waived.He noted there is a small portion of a half acre of a split zone property in the F2 zone and the balance is in the Clear Lake Watershed Protection Zone.


Howe said the purpose of the Clear Lake Watershed Protection Zone is for water quality and protection of public health.He said there was a question as to whether or not the Clear Lake Watershed Protection Zone could be waived.He thought it was exempt from Measure 37 because of its public health protection language.


Howe explained with Erling Omlid, the restrictive land division and dwelling requirements could be waived for the portion of the property that is located outside the Clear Lake Watershed Protection Zone.He said it was less than half an acre that is zoned F2.He added that Lee Omlid would be able to have any of the F2 regulations that were further restrictive than those that had been enacted since 2000 when he acquired the property.He said that Erling Omlid had died in July 2006 so there are issues that Lee will address as to the beneficiaries of theErling Omlid Revocable Living Trust that the property was placed into in 2005 and how the beneficiaries and trustees of that work in relation to Lee.


Vorhes explained the way the order is drafted, it speaks to a waiver of the date of the acquisition by Lee Omlid and the date of acquisition by the revocable living trust.He indicated the application was originally submitted on behalf of Erling and Lee Omlid.He noted the living family members that owned the property prior to the conveyances to Lee and Erling no longer are living so there is not an interest or ownership that could be waived to allow use to the date of their acquisition.


Commissioner Dwyer opened the Public Hearing.


Lee Omlid, Florence, stated it was his understanding that his uncle filed the claim when he was living.He said he died in July.He said the living trusts were considered to be entities that people could with a revocable living trust, be the same person and allow for continuation of that interest. He said the interest should have gone back to 1978 when his uncle acquired the property. He said he knew they couldnít go back to 1962 when his father acquired the property.He thought the waiver should go to 1978.He indicated the successor trustee in his uncleís trust and the sole beneficiary of his uncleís estate is his cousin O.J. Omlid.He said, at this point in time, and not knowing what it would mean from a legal standpoint, they chose not to record a deed from the successor trustee to himself.He stated as far as they were concerned the trust was with Erling.He said there was so much information that had become available to him that he wanted to keep the record open for seven days to submit information on the Clear Lake Watershed Zone in the case of White v. Heceta Water District, and to present information about the living trust.He then wanted a hearing set for another date.


Omlid stated they wanted to have this determined as soon as possible.He wanted to have a hearing later this month.


Vorhes suggested having a continuation of the hearing to a time and date certain.


Omlid asked fora waiver.He said they mentioned a mobile home park but did not want to go ahead with that.He said the groundwater situation with the watershed could be taken care of with a sand filtration filter system.


Vorhes said living in the Clear Lake Watershed zone, and the regulations there, fall within the exemption of land use regulation under the measure.


With regard to White v. Heceta Water District, Omlid noted that Heceta ended up paying $113,000 to the Whites, whose home was 1,000 feet away from the lake and there was information that in 750 years the phosphates from the personís property would reach the lake.He didnít think the lake would still be there as it has been shrinking.He said there canít be an automatic assumption that this would be in violation of some kind of public policy interest for sanitation of health because the zone is there.He said they are a quarter mile from the urban growth boundary in Florence and growth is heading north.


Al Owens, Florence, stated he is one of the property owners within the 1500 feet of the subject property.He had a question about the access to the property being discussed.He said his property is in front of the property and Highway 101.He wanted to be kept informed.He said if he gets answers he wants, he could support the development.


David Bradley, Eugene, supported everything that was going on.


MOTION: to continue public hearing to November 29, 2006.


MorrisonMOVED, Stewart SECONDED.


Vorhes explained the way the order is drafted, it is to waive only the regulations in the F 2property and not waive the Clear Lake Watershed Protection zone.


VOTE: 5-0.


c. PUBLIC HEARING/Regional Housing Center Grant (HCS 509 & RHCA 609).


Mike McKenzie-Bahr, Economic Development, reported that the County received a grant to assist the NEDCO Community Housing Center.He indicated it is the end of the grant.He said they needed to hold a public hearing to receive feedback on how they did on the project.


Morrison asked what the next step would be.


McKenzie-Bahr responded this project, from a financial monitoring standpoint was completed.


Green asked if it was renewable.


McKenzie-Bahr said Lane County is stepping out of the process.The money will flow directly to NEDCO and they have been able to receive additional funding sources.


Commissioner Dwyer opened the Public Hearing.


Sandy Halonen, NEDCO, Eugene, said they applied through Lane County for a grant of $70,000 from the Regional Housing Center Grant that went from November 1, 2005 to October 31, 2006.She noted that $7,500 of it was a Community Development Block Grant and the rest was HOAP Funding from the State of Oregon.She said they had concluded the grant.She distributed a final report. (Copy in file).She indicated they applied for funding for the second year and they were awarded funding.She said the state realized that their grant was only $7,500 and they opted to give them the entire grant with no federal funding in it.She noted the entire budget on the project is about $190,000 and only $70,000 was from the grant.She indicated that they took Lane County out of it.


Halonen reported they worked with 1,265 families this year through the Regional Housing Center and 15 percent of those were rural.She added that 83 percent were low or moderate income.She indicated a challenge this year was to keep statistics according to HUD rules, and when they proposed how much they were going to do, they were under one set of rules and HUD changed them and required them to count in a different way.She said they found there was a lot of need for what they were doing.She said they thought there would be need but when they got out into the rural areas, they received a lot of calls and had meetings with families.She said they became so busy that they moved their office and they now have a classroom in their office. She added they have an 800 number that people from all over the County can call.She noted they are recognized throughout the state for having a good homeownership center and they are being asked by Marion County to bring Lane Countyís program, as they do not have a program.


MOTION: to move to accept the final grant report and incorporate any public comments received into the close out document submitted to the Oregon Department of Housing and Community Services for the Housing Grant fund No. 509 and Regional Housing Center Agreement No. 609;


Green MOVED, Morrison SECONDED.


Morrison asked how many people are actual homeowners.


Halonen responded that they have information on 41 families that actually purchased homes during this period of time.She said that 17 percent were rural, 32 percent Springfield and 51 percent Eugene.She added this didnít give information on people who bought homes and didnít need down payment assistance or whose lenders chose not to give the down payment assistance.She note in past years it had been between 80 and 85 percent.She commented they have seen the market diminish not from the number of people buying, but from people using down payment assistance because lenders have different types of products.


VOTE: 5-0.












Van Vactor asked for staff direction on the Wildish Company letter.


Green suggested they respond to the Wildish letter in a timely manner.He wanted to take the letter in different parts.He wanted to take a matrix by Chris Orsinger and prepare an action plan around that.He recommended that a task force be formed with not more than seven people.He thought Stewart should be the lead person with Orsinger, Todd Winter, Bob Keefer and three members from the public.He thought they should have someone with a financial background to ensure itís in the best interests of the County.He stated they should stay focused and not extend a lot of staff time.


Van Vactor responded if the issue is to form a task force, he would come back to the Board with recommendations on how it should be structured.He indicated it would create another governing body with public meetings.


Sorenson suggested in the report back that they consider the people on the Parks Advisory Committee.He thought the initial group should be an internal one and the process would become public when it comes to the Board.


Dwyer indicated he received a letter from Mayor Piercy supporting the acquisition.He met with Mayor Liken who said he would send a letter of support for the acquisition.†† He thought it was in their best interest to have each of the mayors as part of the task force as they are critical and should be kept in the loop.


Sorenson wanted Van Vactor to bring back a report with recommendations and then discuss involving people outside of the County.


There being no further business, Commissioner Dwyer adjourned the meeting at 4:30 p.m.



Melissa Zimmer

Recording Secretary