BOARD OF COMMISSIONERS'

REGULAR MEETING

October 25, 2006

1:30 p.m.

Commissionersí Conference Room

APPROVED 4/18/07

 

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

 

15.†††††† PUBLIC HEARINGS

 

a.†††††††† PUBLIC HEARING AND ORDER 06-10-25-8/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 05-6234, CBM Family LLC).

 

††††††††††† Kent Howe, Land Management, reported that this is a 245-acre property, located three miles southeast of Veneta off of Fleck Road on Green Ridge.He said the property was acquired by Ross and Corrine Murry in 1974 and at that time it was unzoned.He said the property was later conveyed to the Murry Family LLC, but they donít have a date associated with that conveyance.He continued that the property was then conveyed to CMB Family LLC in 2002.He noted at that time the property was zoned Exclusive Farm Use E-40.He stated the applicant has provided the deeds and an appraisal.He said because of the family ownership, the reduction in value for purposes of compensation would go back to 1974.He added when the property was conveyed to the CBM LLC in 2002, it created a new owner.He stated for the purposes of a waiver, they would only be able to waive back regulations that were in effect in 2002.He said it appears to be a valid claim.Howe recommended waiving the land use regulations to those that were in effect to 2002.

 

††††††††††† Dwyer asked if there were any ex parte contacts.

 

††††††††††† There were none.

 

††††††††††† Morrison asked who CMB Family LLC was.She thought it was the same family members.She thought the original property owners could go back to 1974.

 

††††††††††† Howe indicated the attachment to the packet is the Bargain and Sale deed for Ross Murry and Corrine Murry, husband and wife, grantors.He added that conveys title through CMB Family, LLC.He noted they are the LLC.He said it created a new owner, and for the purposes of reduction in value for compensation, they have the family linage intact, but for purposes of a waiver, it goes to the current owner.That occurred in 2002.

 

††††††††††† Stewart said it appears they are the only two original owners.

 

††††††††††† Vorhes explained that at that time they would own it as individuals, but until that happens, the entity owns it and the difficulty with the trust is the individuals retain an ownership interest as a trustee and beneficiary.He said the entity holds title to the property and the shareholders of the corporation donít hold an interest in the property itself, but have shares.

 

††††††††††† Commissioner Dwyer opened the Public Hearing.

 

††††††††††† Brant Sisson, stated he is a close neighbor to the development by CMB.He was supportive of this claim.

 

††††††††††† Katy Lenn, Eugene, did not contest the granting of the waiver of the LLCís rights back to 2002, her concern was what the Measure 37 waiver would accomplish.She noted on the application letter, the applicant states there are two homes on the property but there is only one legal residence.She added one residence was actively being investigated by Lane County Compliance at the time the Measure 37 claim was filed.She said the Murrys are property developers.They were aware of the land use regulations and placed a trailer on the property without a permit that would have been required in 1974 and have been earning income on it since 1990.She said they have been trying to prove its legality since the violation has been brought to light.She said the Murrys used up all the time delays on the permits and received information that their application would have most likely be denied.She said when they received that information they ran out of extensions, and then filed a Measure 37 claim that would address land use compliance issues for the dwelling.Lenn said if the Board grants the waiver to 2002, they should not absolve the owners from the obligation to obey the code.She commented that the commissioners should not allow someone to break the rules and manipulate the spirit of Measure 37.She added the Board should grant landowners their original rights, but not the ability to skirt the law.She commented that Measure 37 should not be used to fix a compliance issue.

 

††††††††††† Dwyer asked about the compliance issue.

 

††††††††††† Howe indicated there was a compliance effort but he didnít know the details.He noted there was a possibility that a Measure 37 waiver would enable them to place dwellings on the property without having to conform to the Exclusive Farm Use Zone through the waiver process.He said until the Murrys know if they get the waiver (and whether they obtain a state waiver) they need to comply with the existing Exclusive Farm Use regulation.He explained that during the process of a Measure 37 claim, if the land use regulations are waived to allow land divisions and dwellings that donít have to comply with the Exclusive Farm Use Zone, it is a potential fix.

 

††††††††††† Dwyer thought they needed to be in compliance with the law.

 

††††††††††† Vorhes said there are steps the property owner will need to take, and if they grant the waiver to the corporation to the date (as the order is enacted), or if they granted it to the family who first acquired an interest in the property, they would still need to get a waiver from the state and go through an approval process before they would have authority for the placement of a dwelling.He said the waiver order would not validate that by itself.

 

††††††††††† Ron Lenn, Eugene, commented that the applicant failed to disclose that one of the residences on the property is a trailer, under active investigation by Lane County Compliance Division for being placed without a building permit.He indicated the building is being used as an income-producing rental.He noted the partners of the LLC are developers and they do it for a living.He wanted CBM to get what they deserve.He wanted the Board to modify land use regulations to 2002.He didnít think CBM should be rewarded for violating Lane County Code and profiting by breaking rules and placing an income producing trailer on agricultural land that limits dwellings to persons involved in farming.He asked the Board to include in their decision an order to have the non-compliance trailer removed.He didnít think the Board would want to set a precedent by allowing people to use Measure 37 as a way of avoiding Lane County Code.

 

††††††††††† Denis Bottom, Veneta, stated his mother-in-law and father-in-law purchased the property in 1974 and still reside on 30 acres that are in Ross and Corrine Murry.He said in 2002 their accountants and legal advisors advised them, for estate planning purposes, to transfer part of the property into a limited liability company.He said they still own 100 percent of the company.He said in 1974 there was a small singlewide trailer on the property as well as an older house.He said they burned the house down and put a newer doublewide home next to the shop they have.He said it is a legal residence.He noted last year they learned it was never finalized because the final electrical inspection had not been completed.He stated they applied for the legal application, and then Measure 37 came up.

 

††††††††††† Morrison asked where they were with the compliance department and the possible illegal mobile home.

 

††††††††††† Bottom stated they submitted the application to make it legal.He said when the Measure 37 application came up they backed off on it.He said compliance asked them to show that the property had electricity, heat and lights.He said when they went through the County files, they discovered the prior owner had a hardship claim.They didnít know it was a hardship case until two years ago.He said the property is 245 acres.He said they are not asking to subdivide it into five or ten acre pieces, they want four forty acre parcels.

 

††††††††††† Mike Reeder, Eugene, stated he represented the Murrys and CBM, LLC.He noted he was in front of the board last April, where they asked that this be held over until today.He indicated the purpose of the claim being filed was to preserve their rights under Measure 37.He understood that staff took the position that the removal of property as individuals into an LLC is a transfer of ownership under Measure 37.He disagreed with the position.He wanted the Board to move forward with the item so if and when it is appropriate they would appeal the decision or wait until the state, court or legislature resolves the issue.He indicated they have an analysis on the issue of whether or not there is a new owner when property is moved to an LLC.He said the issue that was brought up by Vorhes was if property is moved into an LLC, the members of the LLC only have an ownership interest in the property of the LLC, they donít actually have a property interest in the real property.He disagreed.He said the Murryshave right of entry and Corrine is the only person with voting rights.She controls the property and has the right of control and entry.He asked the Board to reconsider the stance on the LLC issue.

 

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

 

††††††††††† Morrison agreed with Reeder on the interpretation of an LLC to an irrevocable trust.She asked--when they make the decision about the ownership to 2002, and the court determines the LLC is the property owner--if the property owner would have to come back to them to have their decision amended to go back to 1974.

 

††††††††††† Vorhes answered that would depend on how that decision is rendered, what it says and who is involved in the Court decision.He said they have a provision in the order that provides for interpretation that might affect the order.He said they would want to hear from each of the claimants that the orders donít cover all of the rights they have.He said they could request reconsideration of the order based on the information that is provided on how the courts have resolved the issues that may lead them to believe that there is a different resolution that should happen with their claim.He said they hadnít set up the process.

 

††††††††††† Dwyer indicated that not all LLCís are the same.He didnít think they were obligated to lose money to process Measure 37 claims.He thought there needed to be an actual cost for the process for whatever time it takes. He didnít think a Measure 37 claim should take over a compliance case.

 

††††††††††† MOTION: to approve ORDER 06-10-25-8.

 

††††††††††† Stewart MOVED, Morrison SECONDED.

 

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

 

b.†††††††† PUBLIC HEARING AND ORDER 06-10-25-9/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 05-6827, Berry).

 

††††††††††† Howe reported this is a 127-acre property six miles southeast of Cottage Grove at the intersection of Mosby Creek Road and Perkins Road.He said it was acquired in 1970, at which time it was unzoned.He noted it is currently zoned Exclusive Farm Use E-40 with a minimum 40 acre land division.He said the applicant wants lots that are less than 40 acres, each with a dwelling.He indicated they provided deeds, and a comparative market analysis by a real estate broker.The County Administrator had waived the appraisal requirement.He said it appears to be a valid claim and staff recommends waiver of the regulations in effect in 1970.

 

††††††††††† Dwyer asked if there were any ex parte contacts.

 

††††††††††† There were none.

 

††††††††††† Commissioner Dwyer opened the Public Hearing.

 

††††††††††† Joshua Clark, stated he is the attorney representing the Berry claim.He approved staffís recommendation.

 

††††††††††† Susan Ikeda, stated she lives across the property in question.She said she moved to her house in June of this year.She chose to live on Mosby Creek Road to live in the country, because she wanted a quiet rural environment.She commented that Measure 37 is a flawed law that makes it possible to take advantage of people.She believes they have to protect farmland from unnecessary development.She said zoning protects the land and it creates stability for those investing in property.She thought those who are affected should be compensated for loss of enjoyment and property values.She also had concerns about water.

 

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

 

††††††††††† MOTION: to approve 06-10-25-9.

 

††††††††††† Morrison MOVED, Stewart SECONDED.

 

††††††††††† VOTE: 5-0.

 

c.†††††††† TENTH READING AND DELIBERATION Ordinance PA 1190/In the Matter of Adopting Amendments to the Junction City Comprehensive Plan to Expand the Urban Growth Boundary to Include the Subject Property (a Portion of Tax Lot 1300 and a Portion of the Juniper Connector) and Redesignate the Portion of the Tax Lot From "Agricultural" Land To "Commercial", and Adopting Savings and Severability Clauses (File PA 02-5778; Safeway) (NBA & PM 8/27/03, 9/10/03, 1/14/04, 7/14/04, 1/12/05, 7/13/05, 9/13/05, 1/18/06 & 7/19/06).

 

††††††††††† MOTION: to approve a Tenth Reading and Setting an Eleventh Reading and Deliberation for Ordinance PA 1190 on April 18, 2007.

 

††††††††††† Morrison MOVED, Green SECONDED.

 

††††††††††† Sorenson asked why this application had not gone forward.

 

††††††††††† Howe understood the issue had not gone forward because of multiple owners and easements.He added that trying to get everyone to sign the easements from out of state had been difficult.

 

††††††††††† Sorenson suggested rolling this over for a shorter period of time.He thought they were at risk of having a stale record since the public hearing took place three years ago.

 

††††††††††† Morrison asked what would happen if they were to deny the request.

 

††††††††††† Howe said there is a legal lot issue and they wouldnít be able to authorize a plan amendment on a legal lot

 

††††††††††† Dwyer asked if there was a statute of limitations on the reasonableness of whether this should be denied or concluded.

 

††††††††††† Vorhes indicated there is a statute but it doesnít apply to Comprehensive Plan amendments.He said the 150-day rule for acting on an application is not applicable.He thought there might be a point where they would have to consider letting this go on.He said that is a decision for the Board of Commissioners.

 

††††††††††† Morrison recalled this came to the Board as a request.She noted that other bodies had been working on it.She asked if Junction City made any comments regarding the delays in this and their Comp Plan.

 

††††††††††† Howe stated he wasnít aware of any.

 

††††††††††† MOTION: to approve a Third Reading and Setting a Fourth Reading and Deliberation to December 13, 2006.

 

††††††††††† Morrison amended her motion to reflect the change in the date.

 

††††††††††† Green SECONDED.

 

††††††††††† Sorenson requested a timeline of this case.

 

††††††††††† VOTE 4-1 (Sorenson dissenting).

 

16.†††† COMMISSIONERS' ANNOUNCEMENTS

 

††††††††††† Morrison announced on Monday they had a District 5 meeting in Albany.They discussed telecommunications expenses.She indicated they would come in and review all of the telecomm billing.She suggested having them look at Lane Countyís systems.

 

††††††††††† Van Vactor agreed.

 

††††††††††† Green reported back on the State Court Facility Task Force.

 

††††††††††† Stewart reported that he met yesterday in Salem with Oregon Parks.He thought there could be some help with the Wildish property.He announced that Krista Parent received the State Superintendent of the Year Award.

 

††††††††††† Dwyer said he received a note from Lindsey Ball stating that things didnít work out.He said the communication between staff and Ball is disconnected.He said they want to put the DEQ across the street by September 2008.

 

17.†††† CORRESPONDENCE TO THE BOARD

 

††††††††††† None.

 

18.†††† OTHER BUSINESS

 

††††††††††† None.

 

There being no further business, Commissioner Dwyer adjourned the meeting at 2:30 p.m.

 

 

Melissa Zimmer

Recording Secretary