BOARD OF COMMISSIONERS'
October 18, 2006
Commissionersí Conference Room
Commissioner Faye Stewart presided with Commissioners Bobby Green, Sr., Anna Morrison and Peter Sorenson present.† Bill Dwyer was excused. Assistant County Counsel Marc Kardell, County Administrator Bill Van Vactor and Recording Secretary Melissa Zimmer were also present.
9. PUBLIC HEARINGS
a. CONTINUED PUBLIC HEARING AND FINAL ORDER 06-9-13-17/In the Matter of Legalizing a Portion of Hulbert Lake Road (County Road No. 160), Being Located Within Sections 11, 13, and 14, Township 15 South, Range 5 West of the Willamette Meridian and Adopting Findings of Fact (15-05-11, 13 And 14).
Bill Robinson, Land Management, recalled that this was a continuation from September 13, 2006.† He discussed the history of what had taken place in the past several years.† He noted when they said there were going to do a 60-foot right of way when proposed, it would be 60 feet of pavement.† He stated that was never the intention.† He indicated they would do what they have now, but have enough right of way on each side of the existing road to maintain the ditches, drainage and vegetation.† He noted in April 2005, there had been a meeting in Junction City to find out what people in that area would prefer.† He said a 40-foot right of way stood out as a preference.† He added there were fences that were constructed at that time that were closer to the road than 40 feet.†† He said the Board came back and directed them to come back with a proposal to legalize the 40 feet where there were no fences and at the bridge, and have it 50 feet to get around it for maintenance.† He added where there are fences; it would become narrow to less than 30 feet total width in that area.†† †
Robinson thought they could proceed with this under the statute ORS 368.221 where there are considerations, and the County Board of Commissioners has the opportunity to decide if the road should be legalized.† He noted the road had been there for a long time and there are exhibits going back to 1853 when the governorís surveyors were there.† They showed in notes and on the plat where Wm. Crows was.† He stated they were currently involved in litigation with one of the property owners along the road. †
Robinson gave a slide presentation.† He reported that they were never able to find the document from 1855 to show the commissioners had actually accepted this as a County road. He said they want to make it a legal county road so funds could be expended on it for maintenance.
Green asked about the pending litigation. †
Kardell reported that they had a series of hearings in circuit court and there was an injunction granted prohibiting the County from going forward with the legalization.† He added there was a subsequent hearing in Circuit Court where the injunction was terminated and the case against the County dismissed.† He noted that the Stromes had applied to the Court of Appeals and the next step in the process will be a brief.† He indicated there is a potential for further litigation if they appeal what the Board does today.
Commissioner Stewart opened the Public Hearing.
George Heilig, Corvallis, represented Lela Strome, who is objecting to this procedure.† He said Ms. Strome filed objections with exhibits and affidavits dated September 11, 2006, and she had filed a response to new material that they became of aware of the last time this matter was set for public hearing.† He said the materials indicated that the Board has challenges to Mr. Robinsonís interpretation of the historical record.† He said in reading all of the historical documents, the Board had to be careful they donít make a decision about the roads being viewed, versus the driveways that existed that serviced the two residences that are at issue.† He noted the only witness with personal knowledge still alive is Lela Strome began and she had made her affidavit as part of the original objection.† †
Heilig explained that Stromeís history in 1920 near the Benton County line, where her father located her family.†† Heilig noted that Stromeís father improved a driveway from the original family home northward to Benton County.†† He added in 1929 Strome married Gillis Strome who lived in the old Adam Zumwalt home and at that time there was a driveway from the Adam Zumwalt home south to Ferguson Road.† He said Strome stated that during the time she had been on the property from 1929 and there had never been a continuous road until 1960 when County personnel showed up and claimed the area of their farm as a road.† He indicated what had originated between her childhood home and Adam Zumwalt was nothing more than a private agricultural way that people would use from one field to another and the private way had been interpreted by Robinsonís office as being a road.† They donít think it was.† He said if the evidence before the Board doesnít establish that in 1857 there was a road actually built out, the road as viewed would have reverted to the owner, which is Lela Strome.† He added another issue is that all of the deeds that they put into the record do not refer to County Road 160 until the assessor unilaterally takes it out of the property they were assessing.† He said in 1960 Strome indicated the County showed up, took down their barn, cut their trees and took their land.†† He said that was unfair.† He said they had been allowing people to use the road so there is not an adverse possession, there had been permissive use.† He said the road didnít come into existence as it is today until 1960.† He said the Corners Report is silent as to County Road 160, which is the basis for Robinsonís contention that the road really existed.† He said County Road 160 is not actually mentioned, they reference County Road 270, Ferguson Road that leads south from this corner.
Heilig said in 1994 the previous Board of Commissioners ordered the County to buy land from the Stromes to construct a bridge. He believed that in 1994 the County was on record as having already decided it didnít have the ownership that they needed to buy it to build a bridge.† He said as in 1960, the County didnít buy it or do anything but build a bridge.† He thought there was a pattern of conduct that didnít respect the Stromeís rights.
Heilig noted another legal argument concerning the original document as viewed said the road is to begin near William Crowe and it is misstated by the County documents.† He added it stated the road as viewed is to be near the Adam Zumwalt land claim and it goes through his property.† He said it would have been a conflict to run a road through his own land.† He stated they didnít think the road was where Robinsonís department is saying it is.† He noted in the response document, in 1986 Lane County studied the cultural and transportation pattern of the County and the findings show the people back then had their driveways connecting to the roads.† He said Lela Stromeís remembrance is that her dadís driveway connected to the Benton County road and her home only had a driveway in 1929 to Ferguson Road.† He noted that is confirmed by the historical research.
Heilig said the deeds on the property never had mentioned any road.† He added if the road is in existence, people would know their property and they would call out the road.† †
Heilig noted in Benton County, east and west of Monroe, are two permitted gravel pits.† He thought the aggregate would travel south along Highway 99W to Hulbert Lake Road and directly to Ferguson Road to avoid Junction City.† He said Benton County permitted the aggregate to make Delta Sand and Gravel responsible for road maintenance.† He commented that Lane County didnít do that.† He didnít think that Robinson could attest that the structure of that road has the integrity to maintain any kind of significant kind of transportation.† He thought there could be a fiscal impact beyond just cleaning out side ditches.
Heilig reported there was material in the objection, as well as in the response, concerning the significant damages that the Strome ownership has suffered and will suffer if the Board goes through with this.† He said from a legal perspective, the County has a right to condemn land but he wondered why the County hasnít done that.† He asked why the Board wanted to do this.† He thought another option would be to pay fair money.† He thought the facts did not exist to support the statutory requirements that they had to legalize the road.† He said they prepared an order that stated there was no substantial evidence in the record to show statutory compliance.
Kardell recalled the Board authorized condemnation of the right of way.† He indicated there was a dispute as to the ownership.† He commented the Board thought since ownership was in dispute that condemnation would settle the matter.
Chickering noted at the time he started working, the County was attempting to purchase additional right of way.
Jean Nixon, Junction City, said she moved to Hulbert Lake Road in 1946.† She and her husband rented a farm piece and farmed it and later purchased the property.† She said the Board has had numerous meetings about Hulbert Lake Road.†† She commented there were so many meetings that those who use the road could no longer take time from work to attend the meetings.† She said over a year ago there was a meeting in Junction City about Hulbert Lake and the majority in attendance were the users of Hulbert Lake Road.† She said there was an agreement among those in attendance that a 60-foot right of way was not needed and that a 40-foot right of way was acceptable.† She said there was no one at the meeting that spoke against the 40-foot right of way except for her.† She asked why they keep having meetings about Hulbert Lake Road if most of the people say they are happy with 40 feet and why the County wasnít doing it.† She noted that Hulbert Lake Road extends into Benton County and about 35 years ago Benton County changed one corner of Hulbert Lake Road, raised the roadbed with rock and paved the surface.† She added for the next 30 years they rarely saw any road crews on Hulbert Lake Road from Benton County.† She indicated within the past five years people were out to repair potholes. She hoped the Board considered keeping the road up to date.† She wanted a safe usable road.
Morrison commented that once they get the legal authority, they could do the maintenance.† She said that is why they are coming back.† She commented they couldnít get to a decision that this is a legal County road.† She said for some reason there was an unwillingness by prior boards, and this Board to take the action to make it a legal road.
Nixon noted it had been a road since she had been there and Lane County maintained it.† She said they came out and graded the road.† She said she was the only working farm on the road.
Stewart asked if the road was in existence in 1946.
Nixon responded it was always there and that was the way they went to Junction City.† She said they would go down to Ferguson to get to Junction City and she went north up the road to Monroe.
Kathleen Wheat, Junction City recalled the road had been there but it was gravel.† She said they now have a slurry over it.† Her concern was that it hadnít been taken care of or maintained since the 60ís.† She said when she bought her property, someone came by to deepen the ditches and maintain it.† Her concern is they are having an argument over 60 feet and Hulbert Lake is not 60 feet wide.† She said when they started this it first went from 30 to 40 feet as a consensus at a meeting in December and it was clear there was to be 20 feet each way to the middle of the pavement and to leave it as is and for the County to maintain it.† She said they received various notices about the road being 40 feet with varied widths with the bridge.† She asked if they are still trying to straighten the curves. She stated that maintenance had not been done. She stated the meeting today was not noticed.
Jim Just, Goal 1 Coalition, Eugene, spoke on behalf of Landwatch Lane County.† He commented it was a solution in search of a problem.† He said there isnít an outcry of people living in the area to do this.† He said the staff memo stated there was no urgency to do this.† He suggested that they set this aside.
There being no one else signed up to speak, Commissioner Stewart closed the Public Hearing.
Kardell explained the board order proposed was proposed prior to Lela Strome submitting a claim for damages.† He said it recites in the board order that no claims had been filed.† He said if the Board wanted to go forward with legalization today, they would need to amend that.† He noted anyone had up until the close of the hearing to file a claim.
Morrison commented that there is a lack of understanding on what they are supposed to do.† She asked if there was any money in the CIP to do anything major with Hulbert Lake Road.
Chickering indicated there is no longer money in the CIP dedicated to Hulbert Lake Road.† He noted there was a capital project at one time but the board cancelled that.
Morrison asked what the timeline would be to get it back into the CIP and have money to do it.
Chickering said the CIP is reviewed and approved annually in the spring of each year.† He added the residents along the road or County staff could nominate a project on any road.† He said it would ultimately have to be approved and adopted by the Board of Commissioners, assuming there is money available.† He commented there are many demands on the County road funds.† He didnít know if the Board wanted to assign any money to this road.
Morrison asked that, in order to do routine maintenance and fix potholes, if the legalization process needed to move forward. †
Chickering responded when they received objections to their performing maintenance on the road, they elected to halt the maintenance until the legalization could be resolved.† He said they hadnít been maintaining the road for a significant period of time.
Morrison asked who brought forward the objection of maintenance on the road.
Chickering responded that Melba Durant was the initial contact.† He said she asked them to halt vegetation activities they were doing.
Morrison asked if the County or the people who live along the road want maintenance to be done, then the legalization process needed to move forward.
Chickering said if the Board asked them to, they could go ahead and perform maintenance.† He said as staff they elected not to because there were objections and there are legal proceedings relating to this matter.
Morrison asked if there were threats made against Public Works employees.
Chickering was not aware of any threats.
Green asked about the Countyís liability exposure on this.
Kardell indicated they had exposure now if they are not maintaining it and someone else comes to court and said they were injured on the road and the judge agrees, they would have exposure.† He said they would have exposure if they legalized the road to some extent because it is Lane Countyís road.† He said the way they would be out of exposure would be to vacate the road and that was an option that was presented but not an option that most wanted to do.† He added that was an option that was given to Durant to find people willing to sign to vacate the road.† He indicated that staff was willing to bring it to the Board, but it was not able to move forward.† ††
Green asked if they did nothing what would happen.
Chickering responded the road would continue to deteriorate and the potential for a hazard or accident will increase.
Sorenson asked if they were under any timeline to make the decision today.
Kardell didnít think the packet indicated there was any pressing time.
Sorenson asked if the County proceeds to legalize the road if this would go forward to the Board of Appeals.
Kardell said it would be at the Court of Appeals if the Board would elect to stop the process.† He said they would contend the matter would be moot.† He said if they would delay the process, he didnít think there would be any effect on litigation.
Sorenson asked who instigated the legalization process.
Chickering requested legalization because at that time there was a capital project in the CIP and it was a significant sum of money.† He didnít want to expend the money because of the uncertainty of the legal status of the road.
Sorenson asked why Lane County was creating this controversy.
Chickering said they have other users of the road, both residents and non-residents who call and complain about the potholes.† He said the road ownership had been in dispute and he had been waiting for the process to run its course.
Stewart said when the surveyors went out they noted it was a County road in the documentation.† He asked at that time if it would have been a driveway would it had been referred to as a driveway or a road. †
Robinson explained in the 1901 survey where the two County surveyors were surveying it and familiar with the area, if it had been a driveway, they would not have called it a County road.† In 1915 when the surveyor surveyed it, he said he came to the east edge of the County road, and he knew it was a road.† Robinson added in the 1911 plat that showed the road, County Road 160 was written on it in 1915.† He didnít see it called a driveway anywhere.
Stewart recalled there was a question about the 1994 bridge and the condemnation.† He said there was a check cut and money paid for it but they elected not to cash the check.
Kardell reported there was a check issued to a Mr. Watkinson who was representing the Strome family regarding the settlement of the condemnation suit.† Kardell said there is documentation on a file that after cutting the check they were contacted more than six months later asking staff to reissue the check because it was no longer any good and hadnít been cashed.† Kardell said they offered money and sent an agreement that Mr. Watkinson and Dave Williams of their office worked on and sent that along with the check.† Kardell said to their knowledge the check was never cashed.
Stewart thought there was a road there.† He thought the Board went out of their way to listen to the citizens.† He added to make a good compromise and to prove there wasnít a hidden agenda; they were legalizing an existing road.† He believed in that conclusion.† He didnít believe they were taking away $2 million of property by legalizing it as it exists today, and their ability to use the road and the County paying for all the maintenance and upgrades throughout the years.†† He was told they could put a weight limit on the road that would restrict large hauling trucks.† He was in support of moving forward with the legalization so they could keep the road safe for citizens to travel on.
MOTION: to approve ORDER 06-9-13-17 with the fact that a claim had been made and it was denied.
Morrison MOVED, Green SECONDED.
VOTE: 3-1 (Sorenson dissenting).
10. CORRESPONDENCE TO THE BOARD
11. COMMISSIONERS' ANNOUNCEMENTS
Stewart was appointed to the NACo Public Lands Steering Committee.† He and Green attended the Human Services Commission meeting and there was a presentation about project Homeless Connect.† He said they would be doing this on February 8, 2007. He indicated it had been successful in the Portland area.† He said the City of Eugene had made a contribution and they were asked to consider making a contribution to help the event move forward.
Green said they would receive something from the chair of the Human Services Commission seeking matching funds out of their contingency fund.
12. EXECUTIVE SESSION as per ORS 192.660
Per ORS 192.660 (2)(h) for the purpose of consulting with counsel on litigation.
13. OTHER BUSINESS
There being no further business, Commissioner Stewart adjourned the meeting at 2:30 p.m.