October 4, 2006

1:30 p.m.

Commissionersí Conference Room

APPROVED 10/25/06


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.




a. PUBLIC HEARING AND ORDER 06-10-4-10/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 06-5995, Cochran) (Kent Howe)


Kent Howe, Land Management, distributed corrected materials for all of the Measure 37 claims. (Copies in file).


Dwyer asked if there were any ex-parte conflicts.


There were none.


Howe reported that this is a ten-acre property located four miles north of Elmira on Baker Road.He noted it was acquired in 1994, zoned F2 with an 80 acre minimum and it is currently zoned F2 with an 80 acre minimum.He said Kevin and Catherine Cochran conveyed the property in 2003 to the Cochran Family Revocable Trust.He said they are the trustees and beneficiaries and that did not create a change in owners.He said they want to divide the property into parcels less than 10 acres each with a dwelling.He noted at the time they acquired the property, the minimum 80 acre provision was in effect.He stated there hasnít been a reduction in value as a result of the land use regulations.He said staff didnít think they have a valid claim.He indicated their representative is making an argument that Goal 2, Policy 11 applies.He stated that staff didnít agree.†† He said the property is currently in a forest designation, zoned F2.He noted that the applicant is trying to make a case that a policy in developed and committed exception areas for rural residential area applies.Howe said staff says it doesnít.He said if the applicant making an application for a plan amendment and zone change is successful in receiving a zone change to residential, then the policy would apply.He said until they are out of the forest zone, that policy does not apply and they donít see it as a basis for the claim and couldnít find that it was a valid claim.


Kevin Cochran, Elmira, said he is the owner of the property.†† He and his wife purchased the property over 12 years ago.He said seven years ago they explored the possibility of being able to rezone their property which is currently F2 zoning to rural residential, five acre minimum.He indicated his property is over 11 acres.He said when he spoke with Satre Associates; they explained that the property would be ideal for the change rules at that time.†† He said out of the 11 acres, they have about five acres of trees that will be loggable in 20 to 30 years.He said in doing his research at the County seven years ago, they were able to find several approved applications that had undergone an amendment change and subsequent rezoning of F2 designated property to rural residential zoning. He said they hired Satre Association to complete an application for submittal.He added that $5,000 later they submitted an application for a plan amendment and zone change.He noted midway through the year of 2000, LCDC had come down with a rural residential rule on June 9, 2000, precluding any plan amendment changes involving forestry zoning.He indicated that put a stop to any chance to rezone their land to a rural residential zoning designation.He noted that Satre Associates advised them to withdraw their application waiting for review at the County level and they did that.With the passing of Measure 37, Cochran thought it was time to revisit the opportunity to submit an application for a plan amendment and zone change.He thought his application was well prepared six years ago and they want a chance to resubmit it under the laws in place prior to the LCDC ruling.He said if they had gained approval six years ago, the likelihood was high they would have no adverse statewide ruling, and the value of his property would have increased. He said to be denied the opportunity is denying them the right to a fair and increased valuation.He wanted the chance to go back to where it was and submit the application.He said if LUBA decides it doesnít work he would be okay that.He believed under Measure 37 that he would be allowed to go back to that time.


Mike Reeder, Eugene, stated he is an attorney representing Cochran.He said they disagree with staffís interpretation of Measure 37.He said the theory is that their clientís property is not currently developed and committed rural residential property, therefore Goal 2, Policy 11 a. was not applicable.He didnít think it was correct.He explained that the property is surrounded by rural residential areas to the east, south and north.He noted the average parcel sizes are less than five acres.He said although the property is currently zoned F2, the subject property is impracticable for forest management.He noted at the time of the purchase, state and county rules allowed developed and committed areas to have a density of one, two five or ten acres for existing development patterns. He said the OAR new rural residential rule was implemented by the County after the state implemented the rule in 2000.He noted the memo from Howe to planning explained that the rural residential rule does not allow newly designated rural residential exception areas to have an area of less than ten acres.Reeder said the claimantís property is 11 acres.He said if his client were to go through the process, it would be futile because of the size of the property.He said the Rural Comprehensive Plan and zone amendment and zone change would have been granted.He said that Satre Associates pulled their application after the rule was implemented.He recalled it was their understanding at that time that they wouldnít be able to move forward.


Reeder said if they were to go into the County today and had a developed and committed property they wanted rezoned to rural residential, the County would turn them away because the property is less than 20 acres and they couldnít partition it.He said the whole reason for the new rule from DLCD was to prohibit owners of parcels of non-designated and developed and committed areas of less than ten acres from becoming rural residential properties.He said the new rule is applicable to the subject property.He said to ignore the fact is to ignore common sense.He indicated there is a Doctrine of Futility that applies:Measure 37 has aspects of inverse condemnation or regulatory takings that say if it is futile to go through a regulatory process such as the process they would go through, then the applicant is relieved of going through the process.He said Goal 2, Policy 11 a. was directly applicable within the property in the Countyís jurisdiction.He submitted an October 3 letter that goes through their legal analysis.He said this was about fairness and one additional unit that would allow their client to build and have family members nearby.


Diane Weaver, Elmira, said her property is directly behind the Cochranís.She wanted to understand what the Board was trying to accomplish and the affect on her property.She indicated she has an easement road through the Cochranís property to get to their property.She said the easement would be used by the second driver and it is narrow.She thought it would be difficult for two cars to pass by each other.She noted that their well is at the dividing line of the two properties and they are only getting six gallons per minute at the well.Her concern was enough water available to sustain a second house.


Eugene Homez, Elmira, said he is a nearby property owner who received notification of the Measure 37 claim letter.He asked why this claim should be decided today.He thought the claim should be made with the actual division of land who put it into effect.He said the property started out at 40 acres in the late 90ís and ten acres were subject to a special use permit.


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


Stewart asked if there was anything stopping Cochran from filing a zone change.  He asked if he had a legitimate claim.


Vorhes explained that part of the difficulty is that this is a state administrative rule.He said if the state has not waived the rule, they are stuck with it regardless of what Lane Countyís policy says.He said the policy says that rule is applicable when a zone change comes to them.He said they would need to get a plan designation to residential based on a developed and committed exception to the forest designation.He said once the exception has been approved, then the zone change application could proceed and the policy would come into play.He commented that it is questionable if there was a waiver from the state that says this administrative rule doesnít apply to the property, how they would apply the policy to apply a rule by the state.He added it is difficult to do the value reduction analysis if the policy doesnít apply yet under the measure.He said this is a new land use regulation after the affected day of the measure.He said they enact to the extent that this is a land use regulation prior to the effective date of the measure and the land use regulation restricts the use of private real property and has the effect of reducing the fair market value.He added if that is the case, then the owner of the property shall be paid just compensation.He said the category of property that it applies to is developed and committed areas.He said unless it is a developed and committed area, none of the provisions of the policy are being enforced against this property at this time.He commented that it wasnít clear under Measure 37.He said until the plan has changed, this doesnít apply.


MOTION: to deny the claim.


Green MOVED, Sorenson SECONDED.


VOTE: 4-1 (Morrison dissenting).


b. PUBLIC HEARING AND ORDER 06-10-4-11/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 05-6833, Wilbur33).


Howe reported that these five Wilbur claims are near the community of Deadwood.


Dwyer asked if there were any ex-parte contacts.


There were none.


Howe noted this claim is 91 acres adjacent to the community of Deadwood that was acquired in 1964.He added the remainder of the land was acquired in 1978.He said at those times it was unzoned.He said it was transferred to Don Wilbur Limited Partnership in 2001.He noted at that time it was zoned F1, 80 acre minimum land division and it prohibits new dwellings. He indicated the applicant has provided a real estate brokerís opinion of the value reduction and the County Administrator had waived the appraisal requirement.He said they want to divide the property into less than 80 acres with each having a dwelling.He commented that the partnership in staffís determination was that the property was transferred in 2001 and is considered a new owner.He said if the Board finds that the value reduction is met then it is a valid claim from the standpoint of when they acquired the property.


Sorenson asked if when the transfer took place from Don Wilbur to the Don Wilbur Limited Partnership, they got off the rights of Don Wilbur.


Howe responded that it made it so that Don Wilbur didnít have an interest in the property, he had an interest in the partnership.


Sorenson asked if this should be denied because there is no interest in the property.


Howe said the partnership is considered a new owner.He said if they find that the value reduction is valid, they have a valid claim, but the waiver could only go back to 2001 when the new owner was created.He said the current ownership became effective in 2001.


Vorhes explained that the applicant is the partnership and the partnership could trace through the definition of family member, an ownership to Don Wilbur at the time Don Wilbur acquired an interest in the property.That works for purposes of compensation. He added when it comes to granting a waiver, that waiver goes to the present ownerís acquisition date which is the partnershipís acquisition date.


Lee Curston, Eugene, stated he is representing the Wilburs.He noted that the same issue is present in all of the Wilbur Measure 37 claims.He added that staff may have a concern on Tax Lot 1700, but they have that cleared up.


Vorhes responded that there wasnít an issue with Tax Lot 1700 as the tax lots covered by Wilbur 36.


Curston explained that these were sent in as different applications because of request from staff, as it made it easier to process.He noted the Wilbur family had been in Deadwood for many years.He said the transfer to the limited partnership occurred prior to Ballot Measure 37.He noted the entity itself was first created in 1989 and it was a management and estate planning technique that they entered into by advice of their attorneys at time.He said that after a thorough search of the cases, he could find nothing that proved that their position was wrong.He said they have the time issues of one time being a value reduction compensation and the other time being the waiver.He noted on the valid reduction of the compensation, the applicant meets those standards.He said from his September 11 letter (copy in file) they are suggesting that there is another alternative.He said a number of the people are in support of their interpretation that a transfer to a family LLC will qualify for all purposes under the statute.He said under the law the general partner controls the limited partnership and the general partner is 100 percent owned by Wilbur.He said nothing could happen without the consent of Wilbur.He added the limited partnership interests are now held by three people who are legal family members.He noted some of them had transferred their interest back to Wilbur.He indicated the limited partnership is now owned 85 percent by Wilbur and some by his daughter Sally and the other percentages with a woman who was Wilburís long time companion.He said they have total control at the general partner level that controls the limited partnership and functional control by 85 percent voting control.He commented that places them in the same position as a revocable trust.He hoped the Board would allow them to take this to the state.


Dwyer asked if the question becomes is a limited partnership that could be changed by a majority shareholder the same as a revocable trust.


Curston thought the issue was in a limited partnership, which no change could occur without the consent of Wilbur.He said that Wilbur has complete legal control over the limited partnership.


Stewart asked if they were to grant the waiver if it is applicable only to Don Wilbur and his ownership.He asked if it would allow the partners to benefit from the waiver if it was granted.He asked if they gave it back only to Don Wilbur, how it gets applied back to the partnership.


Curston responded that there could be a potential for abuse and that was why he made the point it was established in 1989.He commented that it was a straight family entity.


Dwyer asked if the waiver in the order is the waiver back to the creation of the LLC.


Vorhes responded that it went to the limited partnership date of acquisition.He said the issue of family ownership has changed over time. He noted without a corporation or partnership involved there have been issues of one family memberís acquisition date from an earlier family memberís ownership and which date is used.†† He said this claim is filed by the partnership and part of the difficulty in the other partners gaining a waiver that goes back to the original family member ownership date is that those family members would get the benefit that they would not otherwise if it were a transfer from the father to the daughter.†† He said the claim is filed on behalf of the partnership and the current owner is the partnership.He noted that all of the principles that have been articulated as to the ownership and control go to the issue of the family member tracing for purposes of compensation.He said it gives the Board the basis to say they would be entitled to compensation because the family ownership had continued from that period forward.He said that compensation date was used as a tool to get to a waiver, but the early information from Oregonians in Action was used in claims the state is defending on the same issue, that there is a difference between a waiver date and a compensation date under the measure.


Dwyer said the reason the application is structured that way is because the answer to the question is not clear and it is easier to make a partial approval than to fight a denial.


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


MOTION: to approve ORDER 06-10-4-11.


Morrison MOVED, Green SECONDED.


VOTE: 5-0.


c. PUBLIC HEARING AND ORDER 06-10-4-12/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 05-6834, Wilbur34).


Dwyer asked if there were any ex parte contacts.


There were none.


Howe reported that this claim is 123 acres east of the community Deadwood.He noted it was acquired between 1964 and 1967 at a time when the property was unzoned.It was transferred to the Don Wilbur Limited Partnership in 2001.He said they provided the real estate brokerís opinion of reduced value.He noted it was the same as the prior application.He said they want to divide into parcels less than 80 acres each with a dwelling.He indicated that the property is currently zoned F1 and in 2001 it was zoned F1.†† He said if the Board finds that the value reduction estimate meets the validity, than they have a valid claim and they could waive back to the 2001 date.


Vorhes said he officially incorporated the other discussion around the ownership issue into this one as the same issues apply.He noted for this claim, the valid reduction is on the tax lots only that they had dealt with and does not specify or connect to these tax lots.He said the county administrator had not waived the appraisal requirement for this one because the valid reduction was focused on the previous claimed property and not this one.


Howe explained the value reduction information that was provided on all five claims is the same but it specifies that it is only applicable to the first claim for Wilbur 33.


Dwyer wanted to roll this to that makes them applicable to the tax lots.


MOTION:to close the Public Hearing and leave the record open for one week and move this to October 18, 2006.


Green MOVED, Stewart SECONDED.


VOTE: 5-0.


d. PUBLIC HEARING AND ORDER 06-10-4-13/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 05-6835, Wilbur35).


Dwyer asked if there were any ex parte contacts.


There were none.


Howe indicated this property is adjacent to Deadwood, 68 acres in size.He noted the property was transferred to the Don Wilbur Limited Partnership in 2001.He indicated the properties are zoned F1 and they were zoned F1 in 2001.He said they need the additional information regarding the reduction in value.He explained if the Board finds the information is correct, then there would be a valid claim, but the waiver would be to 2001.


Vorhes indicated they were incorporating the discussion into this claim.


Commissioner Dwyer opened the Public Hearing.


MOTION:to close the Public Hearing and leave the record open for one week and move this to October 18, 2006.


Green MOVED, Stewart SECONDED.


VOTE: 5-0.


 e. PUBLIC HEARING AND ORDER 06-10-4-14/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 05-6836, Wilbur36).


Dwyer asked if there were any ex parte contacts.


There were none.


Howe reported that this claim is for 110 acres adjacent to the community of Deadwood.He said they need additional information that demonstrates when the current owner acquired interest in this property.He added they need the information on the reduction in value.He noted the properties are zoned F1 and they werenít certain when it went to the limited partnership.He said they need the information about date of acquisition, the date it went to the limited partnership and the reduction in value.


Commissioner Dwyer opened the Public Hearing.


Dwyer indicated they would incorporate all of the previous testimony.


MOTION:to close the Public Hearing and leave the record open for one week and move this to October 18, 2006.


Green MOVED, Morrison SECONDED.


VOTE: 5-0.



f. PUBLIC HEARING AND ORDER 06-10-4-15/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 05-6837, Wilbur37).


Dwyer asked if there were any ex party contacts.


There were none.


Howe reported this is a 1.8 acre property five miles north of Deadwood, currently zoned F 2 and it was acquired by John Wilbur in 1967 and conveyed to the limited partnership in 2001.He said they need the information about the reduction in value and providing that, this would be a valid claim.


Dwyer said all testimony that was applicable in the first claim would apply to this claim.


MOTION:to close the Public Hearing and leave the record open for one week and move this to October 18, 2006.


Morrison MOVED, Green SECONDED.


VOTE: 5-0.












Van Vactor recalled that he and Dwyer had a discussion about what option the Board of Commissioners had with regard to management of the fairgrounds.


Wilson stated that under ORS 565.210, the Board of County Commissioners shall appoint a board consisting of not less than three or more than seven residents of the County.She said they could have a Fair Board of any amount within that range.She added that it also provides that no more than one member of the County court may serve as a member of the Fair Board.She noted that the statute contains provisions for removal of a sitting County Fair Board member.She said if they wanted to make a change, the less risky change occurs when they have a vacancy or term expiring.She said if they didnít have a vacancy or term expiring there are provisions in the statute for removal for inefficiency, neglect of duty, misconduct in office, incompetence, incapability, dereclition of duty or other good cause as those terms may be defined by County ordinance.She said they have to provide a notice and an opportunity for a normal due process type of approach to remove a Fair Board member mid term.


Morrison said they have to fill Tom Huntonís vacancy and the other vacancy they have. She noted the current sitting person has reapplied and they have a total of three applicants.


Dwyer said Bob Zagorin and Michael Schwartz had applied.†† He wanted to know the process.He said it makes him mad that the Fair Board is not being responsive.He called the Fair Board chair to express his concern and he hung up on him.He said he has to change the makeup of the Fair Board so they would have more responsive members.He was prepared to do whatever it takes to do that.He didnít want to fill the two slots and let the Board operate the way it does.


Wilson said past practice had been when they decided they wanted to conduct interviews they had done it in November or December.She noted the statute states annually thereafter at the first meeting in January upon expiration of a term of a member a successor should be appointed.


Green wanted to know about Zagorinís conversation with Dwyer.He said that was separate from the three vacancies of the Board and whether they fill those vacancies.††He didnít think the process they had was broken.He thought there were other dynamics.


Sorenson said on August 14 they put out the committee vacancy notice for the Fair Board.He said there are two vacancies and the deadline to apply was September 15 and three people applied, Greg Gibbons, Rob Zagorin and Mike Schwartz.He indicated the Board of Commissioners and the Fair Board would have some process.


Dwyer said the Fair Board has their interview process and they tell the Board of Commissioners who they like.Dwyer said they do their interviewing and they may or may not like whom the Fair Board chose.He thought it was strange they were re-appointing themselves for the position.


Green reported that there is a Work Session scheduled for Monday for the Fair Board.He noted the first 90 minutes was going to be taken up about the applicants.He thought they needed to audit that process.He said the Board of Commissioners would still have to ratify anything from the Fair Board.He wanted to make sure they act in good faith.


Morrison stated what Sorenson read was in conflict with what came to them in the Executive Summary from the last Fair Board meeting wherein it said the terms of two board members end in December, Tom Hunton who was term limited and Mike Schwartz, who is eligible to apply for a second term.She said the Board received three applications:Mike Schwartz, Gerard Gasno and Craig Gibbens.She indicated the Fair Board agreed to interview Gerard and Craig at their October 24 meeting.She said that after the interviews the Board would submit a recommendation to the Board of Commissioners. She said they have a Fair Board that has done a tremendous amount of work in the past seven years to bring consistency and stability to revenue at the fairgrounds.She said the executive summary shows where they are now in comparison to where they had been.She didnít think any one person on the Fair Board fit any of the above stated conditions.She said they had been given direction by the Board of Commissioners to try to bail them out.She said they had done a good job.She commented that they needed to let personal philosophies out of this and base it on product and performance on what they had done.


Stewart said they have a joint meeting with the Fair Board scheduled for November 14 from noon to 1:30 p.m.He thought they should have a discussion with both bodies about the issues that are major concerns.


Wilson explained that the relationship between the County Board of Commissioners and the Fair Board is historical that exists.She said it assigns to the Fair Board the exclusive management of the property committed by the County to the fair.


Sorenson wanted an update on who has applied for the Fair Board.


Dwyer said on November 14 they want a report from the October 9 workshop on the YMCA proposal.He wanted a short meeting on November 14 and then they could set a subsequent meeting to have a discussion.


Wilson recalled that the e-mail that Warren Wong, Fairgrounds, sent to the Board included an invitation to the Board to attend their work session.


Dwyer indicated if three commissioners planned to go, they need to have a public notice.


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


Melissa Zimmer

Recording Secretary