BOARD OF COMMISSIONERS'
January 23, 2007
Commissioners' Conference Room
Commissioner Faye Stewart presided with Commissioners Bill Dwyer, Bill Fleenor, Bobby Green, Sr. and Peter Sorenson present.† County Administrator Bill Van Vactor, Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.
A. ADJUSTMENTS TO THE AGENDA
B. PUBLIC COMMENTS
Katherine Ford, Eugene, said she is a member of the Willamette Animal Guild (WAG) and a member of the No Kill Community Coalition.† She said it is necessary that there is an affordable and accessible low cost spay neuter clinic available in the area for the concept of no kill to succeed.† She said the WAG plans to do that by following the Humane Alliance Model of high volume spay neuter.† She said they will maximize their fixed costs of rent, salaries and insurance by permitting 25 to 30 surgeries per day.† She said it would be accomplished with one veterinarian in the beginning.†† She said they hope to increase to two vets who will double their output and only increase their costs by the salary and insurance of the second vet.† She said they would be able to offer their services for an average of $35 for cats and $70 for dogs.†† She said they plan to raise revenue with fund raising events and grant requests.† She indicated their goal is no kill in Lane County.† She said they want to work with LCARA to make the administration of the system an easier scenario.† She wanted to work with the commissioners in partnership.
Diana Robertson, Eugene, stated she was on the steering committee of the No Kill Community Coalition.† She discussed the success of a no kill shelter in other cities.† She thanked Commissioner Green for expressing his discomfort with the actual term ďno kill.Ē She indicated they wanted to adopt a resolution that would make it clear to the community and LCARA that each animal could safely, and in a fiscally responsible way, be saved. She said they would appreciate a no kill or low kill term.† She said what matters is what happens at the shelters, which should have a positive work environment.
Green commented that if they say no kill, it should mean no kill.† He said if they euthanize one animal, it sends the wrong message and is not consistent with the philosophy.† He was willing to work with their goals but wanted to be straight with people--if they mean no kill, it is indeed no kill. †
Jill Winans, Eugene, said their model is the Humane Alliance Clinic in Asheville, North Carolina.† She indicated that spay and neuter is essential to the no kill concept and is the most important factor because no shelter will ever be big enough to handle the over population of companion animals.† She estimated there are about 160,000 animals in Lane County that people consider their own, of those about two thirds are spayed, leaving 53,333 unaltered. †She said there are 30 vet clinics in the phone book, each doing on average five spay or neuter surgeries daily, which is about 39,000 surgeries yearly, with 14,333 animals unaltered and continuing to breed.† She said using the Human Alliance as a model, the WAG Clinic hopes to have a staff of four vets altering 20,000 animals per year.† She said that amount would make a difference.† She indicated that WAG has chosen a fixed location with a full time clinic using paid staff and a shuttle system to reach outlying areas.
Lesa Fisher, Eugene, said they transport animals to save the lives of the animals.† She said their transports have involved five other agencies.† For services, they promote not killing cats at LCARA because of lack of kennel sources.† She noted they have been making interagency transfers of LCARA cats. †
Starly Pupke, reported that with the establishment of the Petsmart adoption program in early October, they have transferred all of the cats and their adoption packets on a weekly basis from LCARA to the Petsmart store.† She said it has involved over 35 transfers and many volunteer hours leading to the successful adoption of over more than 50 cats.† She noted there have been six agencies, 60 transports, 206 cats and countless volunteers in the past three months.† She wanted the Board to adopt a no kill philosophy at Lane County.
C. COMMISSIONERS' REMONSTRANCE †
Sorenson stated that last Friday he asked the Oregon Legislature to look at reforming the unintended consequences of Measure 37.† He received a response back that only 10 percent of all Measure 37 claims involve building a single house on property owned by the petitioner.† He hoped the legislature would try to reform the unintended consequences.
D. EXECUTIVE SESSION as per ORS 192.660
E. PUBLIC HEARINGS/MEASURE 37 CLAIMS
Stewart explained that all Ballot Measure 37 claims set for hearing and consideration will be reviewed in a single hearing.† He said this would allow anyone the opportunity to speak on any claim set for the public hearing.† He added written testimony may also be submitted.† He indicated by signing up on the sign up sheets, they will have placed themselves on a list that if the claim waiver gets approved and a further land use application is submitted, then they will be notified of the submittal and opportunities to speak on the development of the property.† He explained the testimony at todayís hearing should be limited to the issues relevant to Measure 37 claims:† ownership, reduction in value from restrictive land use regulations, and exempt regulations.† He added the criteria for determining the validity of a Measure 37 claim in Lane County are found in Lane Code Chapter 2.700 to 2.770.† He said the claims either appear to be valid or more information is needed to determine their validity.† He noted the first category involves claims that appear valid and contain proposals for waivers of the current land use regulations.† He said the second category involves claims that have issues where the claimants did not submit enough information for staff to determine the validity of the claim.† He said the Board would consider those claims to be considered separately.† He said the Board will act upon the rest of the listed claims with one motion.† He added if the Board determines that a claim is valid and waives the current land use regulations, the claimant may submit a land use application to develop the property at a later date.† He said notice regarding a land use application to develop the property will be sent at the time to all who submit testimony during the Measure 37 claim, and request notice using the comment testimony form.† He said issues addressing the proposed development such as water, sanitation and traffic will be addressed at a later date.†† †
Kent Howe, Land Management, explained they are providing an opportunity for citizens to comment on 28 claims.† He said staff mailed notice to the property owners within 1500 feet on January 5, 2007.† He said that staff had concluded the analysis of the pertinent Measure 37 requirements of the 28 claims and summarized that information in the staff reports.† He said the analysis addresses the requirements of ownership, date of acquisition, the current zoning, the zoning regulation at the time of acquisition, and some form of competent analysis of fair market value reduction resulting from the land use regulations that have been applied to the property since the ownerís acquisition.† He noted on those claims that did not provide an appraisal,† the County Administrator has waived the appraisal because they had provided a competent analysis of value reduction such as a real estate brokerís opinion of comparative sales.†† He indicated that Table 1 had a summary of claims, the staff analysis and the recommendations. (Copy in file).
Commissioner Stewart opened the Public Hearing.† He asked if there were any ex parte contacts or any conflicts of interest.
Stewart declared that one of the applicants today is his second cousin, Bud Stewart.
Mike Reeder, Eugene, stated he represented George Hinnenkamp.
George Hinnenkamp, stated he bought the property in 1964 and it was turned over to him completely in 1967.
Stewart said it appeared that Hinnenkamp sold the piece of property and through court got it back in 1979.† He thought the title was broken. †
Hinnenkamp recalled the person didnít make a down payment.
Vorhes explained that the state had acted on the claim and concluded that the date of the land sale contract foreclosure reacquisition is the new acquisition date for the current owner and waived only to that point.† He said there was a possibility that the Circuit Court would decide the issue.† He said there is another Circuit Court case in another county that had decided in a different situation that the land sale contract seller has no interest in the property under Measure 37. †
Reeder stated that no money was transacted.† He explained that the contract entered into in 1979 was a contract with no money paid and there was strict foreclosure on the property in late 1979.† He said the contract was only open for seven months and no payment was received.† He gave the Board and Vorhes their analysis of the land sale contract doctrine as provided by the Oregon Supreme Court.† He recalled that this Measure 37 claim had come before the Board before and during the hearing the question of this land sale contract came up and Vorhes explained his position.† He said they sent a letter to the state explaining why they think their position on the land sale contract issue is erroneous.
Reeder said the state has said a land sale contract is a transfer of ownership.† He said when the Supreme Court has held that, it had been in circumstances where a vendor (the original landowner) conveys the property to the vendee through the contract and the vendee sells to another party. He said in order to protect an innocent third party purchaser from a mortgage or other encumbrance, the courts have said in this case, the vendor only has bare legal title.† He said in this case there is not an innocent third party purchaser.† He said according to the Oregon Supreme Court cases, the vendor in a land sales contract still retains interest in the property.† He said it is like a lessor and a lessee, where the lessor has control and occupies the property.† He said just because the lessor doesnít have control of the property at the moment doesnít mean that they are not an owner for real property purposes or for Measure 37.† He said a land use contract is similar.† He said that Measure 37 is broad enough to allow that the present owner of the property or any interest therein includes a vendor in a land sale contract.† He added that Measure 37 by its own terms has no continuous ownership requirement.† He said in this case there is no continuous ownership requirement.† He noted that Hinnenkamp acquired the property prior to land use regulations and he is now the present owner of the property.† He said those two things are what are required under Measure 37.† He said that George Hinnenkamp is the owner of the property today, in 1966 and continuously as defined by the Oregon Supreme Court.
Sorenson recalled that Vorhes said there was a circuit court ruling that held that a land sales contract seller has no interest for purposes of Measure 37.
Vorhes said there was a single page letter opinion from Klamath County Circuit that denied a motion for summary judgment on the basis that the judgeís ruling doesnít make sense that a person holding a vendorís interest in a land sales contract is an owner for the purposes of Measure 37.† He said that was the conclusion the judge reached in denying that applicantís request for a summary judgment where the state had reached a similar conclusion involving Hinnenkamp.† He wasnít aware of an appellate ruling on that case.
Sorenson asked if that was binding on this case.
Vorhes said it is not binding except as the Board interprets the statute.† He said they could use it as an aid in interpreting the statute and they could use the other cases cited.† He said they have to reach the conclusion on what their authority to waive under the statute is and the language in the statute is waiver to allow for an use permitted at the time the owner acquired the property.† He said the Board has to determine when the owner acquired the property under the measure.† He said there is debate on the steps the contract seller needed to take to get the property back.† He noted it was necessary for him to go to circuit court. He said the memorandum of contract spoke of a price of $232,000.† He said the suit and the judgments only mentioned a claim of $222,000.† He didnít know if any money transferred and didnít know if it made a difference.† He commented that was an uncertainty of Measure 37.† He said the contract took judicial action to have the owner reacquire the property for the failure to pay the security that the owner held at the time the contract started.
Green recalled the owner had a warranty deed for the property in 1966 that has been recorded.† He stated the owner conveyed the property to a third party in 1979.† He asked why they had to go through a court action to regain something that he claimed he never really did release.
Reeder explained the response was like a person who had property through adverse possession.† He said you can have an interest in the property through adverse possession, but you have to go through the judicial process to do so. He said it was similar to a rental situation.† He said it doesnít mean interest is lost in the property.† Reeder said the text of the Measure 37 defines an owner.† He said the Oregon Supreme Court cases are clear on this matter.† He said the Klamath County case was not binding on this jurisdiction.† He indicated they were appealing to the state on this case.
Green asked if Hinnenkamp could have gotten a loan when the property was conveyed to the third party.
Reeder said that Hinnenkamp retained legal title to the property and that is why the courts have made the distinction between innocent third party purchasers because the vendor could encumber the property and the innocent third party purchaser who bought from the vendee could be stuck with the mortgage through no fault of their own.
Green thought if that was the case it causes a question of who was the rightful owner.
Reeder said there are many ownership methods.† He didnít think there was a clear-cut answer in Measure 37.
Ted Stevens, Eugene, discussed the Hinnenkamp claim. He thanked the Board for denying Hinnenkampís initial claim.† He commented that the issues they raised last year were disposed of by two carefully crafted affidavits that were signed two months after the denial of the initial claim (Exhibit 1).† He supports the position of County staff regarding the acquisition date.† He thought it should be December 21, 1979 instead of the date in 1966.† He contended that the land use contract and the subsequent reacquisition through foreclosure break the chain of continuous ownership and they should use the 1979 date.† He said the State of Oregon in consideration of Hinnenkampís claim has elected to use the December 21, 1979 date.† He thought the Board had no choice but to approve this, but if they have to approve it, he hoped they would use the 1979 date.
Bill Lewis, †Springfield, said he has owned his property since 1968.† He wanted to make three parcels out of the lot of approximately 14 acres.† He said when they bought the land in 1968 it was unzoned.† He went to all of the hearings when they were rezoning and requested an RR classification.† He said they were told that would be okay, but when they took the papers back to the County, it came back as F2.† He said they had gone through the process about two or three times. †He said the state has approved his claim they filed on June 22.† His 180 days were up before Christmas.† He recalled at the time he purchased the property, the lot sizes were 6,000 and it could be divided.† He said his claim has been continuous title with his wifeís name on the deed since they bought the property in 1968.† He indicated that it was transferred to her trust in 1991 but her name never came off the deed.
Lenae Masters, Sandy, Oregon, spoke on the Howard Measure 37 claim.† She said there has been continuous ownership by the family since the early 30ís.† She indicated that it was originally purchased by George Howard,† her great grandfather.† She said it was passed to †her grandfather, Vincent Howard, Sr.,† who passed half to their mother Marjorie Howard Bancroft in the early 1960ís.† She added when her mother died in 1979, it passed to her and her two sisters.† She said it had been used for camping and living. She stated the land was passed through inheritance and belonged in the family for over 75 years.† She said there has been development on Collard Lake Road but their 80 acres have not been able to be divided, or to put a home on it due to changes in zoning.† She said the zoning had changed since their family purchased the property.† She indicated at first there was no zoning and later it was zoned F2 with 20 acres per dwelling.† Now it is zoned 80 acres.† She wanted the land to be divided into 20 acre lots.† She stated there were few trees on the land and it would be questionable to state that it is currently forest land. ††She said they are not asking to build houses on the land, just to divide it.† She said the diminished value of their land due to the more restrictive zoning is $1,040,000.† She requested the Board either reimburse them for the loss of value or disregard the more restrictive zoning and allow them to divide the land into 20 acre parcels.
Brenda Black, Eugene, stated she was against the Haffner claim. She was not notified by the state and was unable to oppose the Haffner claim for their intent to subdivide to one acre parcels.† She said the state agreed to this.† She wanted to go on record with the Board of Commissioners because she couldnít be in standing with the state because she was never notified.† She added that other neighbors were also not notified by the state.
Fleenor asked if due process was a criteria by which they assess a Measure 37 claim.
Vorhes responded that they have included a hearing process so they give people an opportunity to speak, †but they have provisions in their procedures that recognize that it is possible that people will not get notice and they donít hold that as a basis for denying a claim.† He said the criteria for approval or denial of a claim are the criteria that are contained in the measure itself.† He said it is not clear whether the measure has those types of constitutional implications for neighbors.† He said the earliest challenge to the measure included some †of the same issues and the circuit court judge ruled that it was a problem and the Supreme Court disagreed.
Stewart stated that it was being recommended that the Haffner claim only be granted to Wesley and not the wife.† He said for Wesley that date would be to 1972 and the wifeís date would be 1986.
Terry Worthylake, Carson City, Nevada,† said he wanted to move ahead with lowering the restrictions on his property so he could build a home.† He said he acquired tax lot 603 on South Canary Road in 1976 from his father so he would have a place to retire.† He wants to build on the property.† He urged the Board to lower the restrictions so he can build.
Stewart noted that staff recommended that they waive Worthylake to 2005 because in 1997 he quitclaimed the property to his daughter and in 2005 his daughter quitclaimed it back.
Merilee Bancroft, Portland,† spoke on the Masters claim.† She said when there was a moratorium on the property in 1983, it prevented Lane County from issuing building or sanitation permits, within the Clearlake Watershed due to health and safety concerns.† She said the fact the moratorium was removed was proof that no health safety threats could be used to exclude properties inside the Clearlake Watershed Zone from a Measure 37 claim.† She† hoped the Board would approve the Measure 37 claim in its entirety.
Trudi Sletager, Creswell, spoke on the Stewart claim.† She wanted the commercial uses to be struck from the Measure 37 claim.† She received a notice from the State of Oregon.† She said she is filing a Measure 37 claim and they donít want a commercial use for their property.† She said she purchased her property when a covenant was enforced and so did the Stewarts. †
Fleenor asked how CCRís are dealt with in a Measure 37 claim.
Vorhes said at some level it could impact the analysis of the reduction in value and what is attributable to regulations, versus other factors that might limit the property development scenarios that are provided as a basis for the reduction value.†† With regard to a waiver, he said there was nothing they could do that would affect that. He said if there is still some reduction in value, they are faced with the choice of paying or not.
Leonard Sletager, said he has property adjacent to the Stewart property.† He stated he doesnít have objection to Stewart applying for the Measure 37 claim for residential use but disagrees about commercial use.
Fleenor asked if they are able to factor out commercial versus residential applications.
Vorhes said they have to focus on the regulations that are alleged to have reduced the value.† That is what the Board needs to look at in terms of waiver of the County regulations.† He said even if the County regulations are waived as to commercial uses or any other use within a zone, if there are other factors that will limit the use of that property (such as a CC&R), that is more of a private matter, and come into play at some† time.† He noted for the purposes of the County regulations, they have to focus on what has alleged to have reduced the value and restricted the use as far as the County regulations are concerned.† He said they have not limited the waiver in any way because it is unclear under the measure how much authority there is to do that.
Green asked if it was a permitted use or if it was already zoned commercial.† He asked if they were to remove it, if it would trigger another Measure 37 claim.
Vorhes said they would need to find out the reduction in value and how attributable it is to one or another claimed use that could have occurred under previous regulations.† He commented that irrespective of what CCRís might have come into place since then to limit the uses, the analysis† (under current regulations) state there are certain uses that are not allowed.† He said if there is that difference and a difference in the value, the waiver under the measure says to allow the property owner to use the property in a manner that could have been used when they acquired the property. He said the claim could come in circuit court that the Board continued to apply a regulation that prohibits commercial use in a manner that is not supported by the measure.† He said they could be subject to a claim for compensation for that portion of the original claim.† †
Steve Cornacchia, Eugene, stated he represented four claimants.† With regard to Harold and Roxanee Rutherford, he said the claim should be listed as PA 6190 and not 6191 as was on the website.† He also represented John McNutt, †PA 6191, LeSalles and Sandra Stewart, PA 6211 and Vena Dilley, PA 6348.† He noted he had read the staff report and the order, and was in agreement with all four.† With regard to the Stewarts, he said the issue was commercial use.† He said it was represented that CCRís were in place against this property. He indicated they were at one time but at this point they no longer exist.† He said in earlier years the CCRís stated that if 75 percent of the neighbors desired to remove the CCRís against their property, it could be done and it was done.† He indicated at this point those CCRís donít exist.† He said if the Board has issues with that and wishes to give additional information, they could get a title report, but it is an additional expense on the part of the claimant.† He added that CCRís are a private matter between the† parties and are not part of the Measure 37 consideration.† He indicated at the time the applicant obtained their interest in the property, they could have made commercial use of the property.† He said the primary focus of his clients is residential.† He said in 1971 when they obtained interest in the property, commercial use was allowed and they included it in the claim.† He said that staff determined that both commercial and residential uses could be made on the property at the time the claimants obtained their interest.† He said they provided an appraisal that was based upon residential use.† He said they had demonstrated that they had a significant diminution in value without considering commercial uses.
Millie Graves, Veneta, spoke about the Purkerson claim.† She lives near the property and they received no notice. †She heard a rumor about a housing development in her area and how it would impact the school.† She said the property is zoned F1 Non Impacted Forest and contains approximately 92 acres.† She said the landowner wants to divide the property into lots that contain less than 80 acres with a dwelling on each lot.† She had no objections to their putting a house on their property.† She noted on timberland there is always the possibility of fire.† She said in some cases people could be financially responsible if the fire spreads and damages another personís property.† She wasnít in favor of a housing development.
Lee Omlid, Florence, stated he filed claims on behalf of Johnston, Buley and Lucchesi.† He understood that waivers would be granted to Johnston and Buley. †
Preston Nydam, Creswell, spoke on the Cully property.† He stated he was against it.† He commented that leaving the zoning the way it is will not affect the propertyís †worth.† He stated that half of the property is swampland and what they want to do with it is not physically possible.† He said it floods every year.† He heard that Cully sold the property to Tony Chapman. †
Stewart indicated that the Cully application is being pulled and the recommendation is to deny the claim because the ownership transferred to an LLC in 2005.
Vorhes indicated in the Cully matter there is not clear track of ownership tracing to the current owner to show what ownership interests the family has that restrict the use and reduce the value to the earliest family member. †
James Bowers, Cottage Grove, stated he was the agent for his parents and wanted to be on record.
Jim Babson, Land Watch, Eugene, commented that the statewide land use planning goals were adopted in 1975 and of the 28 properties today, 13 have dates of ownership after that.† He said Goals 3 and 4 †restricted land divisions and dwellings on farm and forest land apply directly to their property when they acquired it.† He thought those claims should be denied on that basis. †
Green asked what evidence Babson had to substantiate the allegations.
Babson said the analysis of state staff reports and †the final report cite January 25, 1975 as when Goal 3 and 4 become effective and that applied directly to properties acquired after that.† He said Worthylake had a date of 2005; Stapleton 1987; Cully 1999; Keeney 2004; Haffner; 1986; Garvin 1999 and Buley 2003.
Stewart indicated they were not waiving those claimants past those dates.
Babson asked why they would grant a waiver back to 2003.† †
Dwyer said the law for Measure 37 sets out a standard that gives several choices.† He said any subsequent effort to develop will make them comply and those dates will become pertinent.
Aimie Garvin, Eugene, stated the property has been in her family since 1936.† She said title passed to her in 1999 but there was continuous ownership of the family.† She indicated it was part of her husbandís inheritance and they want to build a house on the small lot and retire there.† She noted at one time her father in law had a permit for the property.
Vorhes said whether or not the claim is valid, they look at how long the family owned the property for determining whether compensation would be possible under the measure.† He explained it was the analysis of reduction in value that leads to the conclusion that the choice of the Board is to pay compensation under that analysis, waive or choose not to apply the regulations to allow the present owner the ability to develop the property in a manner the present owner could have done at the time the present owner acquired the property.
Fleenor said he would be willing to waive this back to 1948, as this was the reason why Measure 37 was passed.
Paulette Richards, said she owns property within 1500 feet of the Rutherford property.† She said it is zoned F2 impacted forest land.† She had a question about continuous ownership.† She was confused about the deed.† She said there was a conveyance of some portion of the property and she wanted to know which portion of tax lot 1200 was conveyed and to whom.† She didnít think fair market was being considered for vacant land with no electricity or roads into the property. She claimed the residents of Paradise Drive value their privacy and the quiet country lifestyle as did the Rutherfords.† She said adding 25 more homes on the hillside will impact the current residents on well water and will create a potential for soil erosion.† She urged a temporary suspension of the Measure 37 claims to give the legislative assembly time to work on some reform.
Carl Hingley, stated he is the applicant.† He didnít have the resources to have a full scale appraisal done on his property† since they arenít looking for compensation.† He said the state† approved his claim.† He said he is protecting his rights.
Stewart said they needed more information on the value loss.† He asked if he could meet the requirements of the county administrator: a market analysis from a professional in the field and could show the market loss. He thought then the Board might be in favor of waiving. †
Hingley said he didnít know about the valuation problem.
George Heilig, Corvallis, stated he appeared on behalf of the Haffner application.† He reviewed the staff report and supports its analysis that it is a valid claim.† He reviewed the order and it is consistent with the order the State of Oregon issued and it correctly identifies the different dates of acquisition for the co-owners of the property.
Leslie Wolf, Eugene, spoke on the Haffner claim.† She was against the claim.† She did not receive notice from the state.† She asked the Board to take into account† Land Watch and others who are against the claim.
Jerry Kerns, spoke on the Le Salles Stewart claim.† He said he was neutral on this matter.† He said his property is the northern boundary.† He said in reviewing this, it appeared that only tax lot 113 is the subject of the Measure 37 claim.† He added that tax lots 114 and 123 were included.† He noted that tax lot 123 is already 4.9 acres so it is not subject to the RR 10 zoning.† He asked how they could come up with a $2 million loss of revenue.
Fleenor asked what provisions there were in Measure 37 for authenticating the valuation.
Vorhes responded that there was little to go on with Measure 37.† He said it is a matter for the Board to determine in each case if there is enough proof sufficient in a decision and if there was enough evidence a reasonable mind or a business person would use or rely on in the conduct of their business.† He said there has to be some basis to conclude the Countyís restrictive regulations have reduced the value.† How much the value is reduced is something the Board has struggled with. He said the state looks at the evidence and declares there has been a reduction in value. †
Van Vactor said (describing the range of what is adequate information) is that at the high end there is a certified appraiser, and at the low end there is the landownerís personal opinion.† He said they had accepted real estate brokers that did a comparative analysis of actual sales and relate that to the regulation as the minimum threshold.†
There being no one else signed up to speak, Commissioner Stewart, recessed the meeting at 12:05 p.m.
(The meeting reconvened at 1:30 p.m.)
Van Vactor said on the Hingley claim he spoke with the claimant and he is planning on submitting more information.† He recommended withholding any action until the appraisal information is submitted.
Sorenson suggested that they split the claims and take half in the morning and the other half in the afternoon so they could focus on groups at a time.
Green thought it went well for the first time.† He concern was when people came up to speak they didnít all mention which claim they were talking about.† He thought staff did a good job on the summary of the claims.† He thought they needed to be consistent and to let people speak.
Dwyer thought if any commissioner had a problem with any of the claims they should †pull it off, †approve the balance, then deal with the issues one by one.
Stewart reiterated that Cully was pulled.† He said that Hingley was asked for more time to provide the evaluation.† He noted that ownership for Hallett was unclear.† He added that for Cully they would base it on the state.† He added for Hingley, Gass and Hallett additional information is needed.† He asked if they should be given 30 days to supply additional information.
1. 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 (PA05-6397, Cully). (PULLED)
2. 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 (PA05-6816, Hingley).
3. 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 (Pa06-5082, Gass).
4. ORDER 07-1-23-1/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 06-6114 Hallett).
5. ORDER 07-1-23-2/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 (PA05-6369, Raloa Keeney).
6. ORDER 07-1-23-3/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 (PA05-6611, Ralph Keeney).
7. ORDER 07-1-23-4/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 (PA05-6806 Lucchesi).
8. ORDER 07-1-23-5/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 (PA06-6094, Stapleton).
9. ORDER 07-1-23-6/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 (PA06-6112, Hinnenkamp Trust).
10. ORDER 07-1-23-7/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 (PA06-6113, Lee).
11. ORDER 07-1-23-8/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 (06-6139 Lewis).
12. ORDER 07-1-23-9/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 (PA06-6191, Rutherford).
13. ORDER 07-1-23-10/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 (PA06-6191, McNutt).
14. ORDER 07-1-23-11/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 (PA06-6211, LaSells).
15. ORDER 07-1-23-12/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 (PA06-6213, Johnston).
16. ORDER 07-1-23-13/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 (PA06-6246, Buley).
17. ORDER 07-1-23-14/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 (PA06-6254, Worthylake).
18. ORDER 07-1-23-15/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 (PA06-6276, Haffner).
19. ORDER 07-1-23-16/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 (PA06-6293, Purkerson).
20. ORDER 07-1-23-17/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 (PA06-6296, Weber2).
21. ORDER 07-1-23-18/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 (PA06-6301, Strickland).
22. ORDER 07-1-23-19/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 (PA06-6307, Bowers2).
23. ORDER 07-1-23-20/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 (PA06-6315, Williams).
24. ORDER 07-1-23-21/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 (PA06-6316, Garvin).
25. ORDER 07-1-23-22/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 (PA06-6344, Jones).
26. ORDER 07-1-23-23/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 (PA06-6348, Dilley).
27. ORDER 07-1-23-24/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 (PA06-5051, Masters).
28. ORDER 07-1-23-25/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 (PA06-6176, Hansen).
MOTION: to adopt the balance of the Measure 37 claims and accept the recommendations of staff for numbers 5 through 28 with the issues so noted on the sheet.
Green MOVED, Dwyer SECONDED.
Green said they tried to set this up so they could expedite some of the hearings.† He said they had taken care of the three that were in question based upon the evidence.† He indicated there were some issues remaining but it would be nothing that would keep them from adopting the balance.†† He noted in the past they have adopted many of the Measure 37 claims based on the same recommendations and consistent criteria.
Dwyer commented that the Hinnenkamp claim is not accepting the interpretation of the state.† He said if they go with the recommendations they will become a defendant in any action against the state.† He asked how they should act.
Vorhes explained that it is unclear where the Hinnenkamp case would come out in circuit court.† He said if they get pulled in, they would need to provide the record but what participation the County would be involved in could range from a costly defense to a limited monitoring of the defense that the state is making on the same issue around the ownership interest of a contract seller under Measure 37.† He said the ultimate authority to pay compensation and waive still rests with the Board of Commissioners when it relates to County regulations.
Sorenson stated the inclusion of the Hinnenkamp claim is problematic for him.† He said they heard commentary from Mr. Stevens for the date of acquisition and the fact it is a land sales contract, the sellers and their rights are not protected under Measure 37.† †
Fleenor asked what the difference was between the Hinnenkamp and Garvin cases with respect to the waiver and setting precedent.
Vorhes explained that the analysis in the Garvin case is that the two dates relate to the issue of compensation date and waiver date.† He said the acquisition by the family occurred in earlier times and they had held an ownership interest in the property since that time.† He added as to the present owner to which a waiver would go, the acquisition date is 1999.† He said that sets up different owners and different acquisition dates than the Hinnenkamp, but the analysis is the same in that in the Hinnenkamp case the family acquisition was early but then the family ownership stopped when the land sales contract was entered into.† The ownership by Hinnenkamp was reacquired when the land sale contract was foreclosed and that becomes the acquisition date for the compensation and for the purposes of the waiver.
Dwyer wanted to accept staffís recommendation with the exception of Garvin, Hinnenkamp and Worthylake. †
Green amended his motion.
Dwyer seconded the amended motion.
Sorenson asked about the Hanson claim.† He said there was an issue regarding two other tax lots.
Vorhes said the proposed order only speaks to tax lots 300 and 500 for purposes of analysis for compensation and for the waiver and recommends approving the waiver for those two tax lots only.
Vorhes indicated the motion skipped over number 4.† He asked how the Board wanted to vote for the portion of the claim that was valid.
MOTION: to approve† ORDER 07-1-23-1.
Dwyer MOVED, Green SECONDED.
With regard to Hinnenkamp, Sorenson said they should deny the application because of the land sales contract issue that is separate from the acquisition date issue.
MOTION: to deny ORDER 07-1-23-6.
Sorenson MOVED, Dwyer SECONDED.
Sorenson wanted to keep it clear that they were denying the claim.
Green didnít support the motion.† He wanted the argument around the date versus the denial of the claim.
Dwyer concurred that the 1979 date runs some risk.† He said the state concluded that there was a break and there was a land sales contract that created a break.† He stated that Hinnenkamp alleges that no money changed places from 1967 to 1979 which he thought was possible, but not practical.† He didnít support the motion because he said there is no doubt that Hinnenkamp owns the land, the only question is the chain of ownership from 1967 to present or from 1979 to present.† He said the state chose 1979.† He said the Hinnenkamps have a suit against the state and if they take the same position they will become part of that.† He said the state had made the decision based on the reasonableness of their doubts that they can come to the same conclusion.
Fleenor asked if† there was a possibility that Hinnenkamp would provide them with an extension of the 180 days that would allow the state to work the case through so then they could make a determination after the state has rendered its decision.† †
Vorhes indicated they were past the 180 days. He said they could ask if there was a willingness on behalf of the claimant to waive the 180 days to allow the stateís position to be litigated in this claim.† He didnít know what the outcome of the question would lead to and if they would agree to that type of extension.
Stewart commented that the state had already said the date was 1979 and they are defending it.† He said if they lose and Lane County is a party that they will lose too.† He said if they accept the claim to 1967 and the court comes back to 1979, they hadnít lost anything and the waiver would only be good to 1979.† He didnít think Lane County should be a party to it.
Fleenor thought Hinnenkamp and Garvin were similar with precedent.† †
Vorhes explained there are factual differences between Hinnenkamp and Garvin.† He said in Hinnenkamp there was a seller who reacquired an ownership interest in the property.†† He added there is the concept that if the basis for granting a waiver is their conclusion around the ownership interest of a land sales contract, then the seller is sufficient for purposes of a Measure 37 claim to get a waiver or compensation, they will see the issue come up in other similar situations where an interest could be alleged and an indication of some ownership may continue.† He said they might face it in other cases where there is a land sales contract.† He said the question becomes what (if any) ownership interest under Measure 37 does the contract seller have.† He said in the Garvin case, those were actually deeds from one party to another party so there was no land sales contract.† He said he could review this case and explore the risk in the different courses of action.
Sorenson suggested taking a vote on the motion and if it is denied, to direct staff to contact the applicants and ask them if they would waive the 180 day period until 60 days after the state issues its ruling and staff could report back.
VOTE: 1-4 (Dwyer, Green, Fleenor, Stewart dissenting) MOTION FAILED.
MOTION: to have staff contact Hinnenkamp or his representative to see if they would be willing to waive the 180 day time period and dispose of it after the state rules.
Sorenson MOVED, Fleenor SECONDED.
Dwyer thought they should approve the Worthylake claim as it meets with the intent of the ballot measure.† He wanted to keep with the spirit of Ballot Measure 37.
MOTION: to approve ORDER 07-1-23-14 to waive back to 1976.
Dwyer MOVED, Green SECONDED.
Sorenson said they didnít know why the transfer took place.† He thought he should get the waiver to 2005, not 1971.
Dwyer commented that Measure 37 discusses family and family members.† He indicated that Worthylake quitclaimed the deed to his daughter and that was in the spirit of Measure 37.
Green agreed with Dwyer that given the land use laws, that 2005 was too restrictive.† He thought going back to 1971 gives them more options.
Vorhes said the 1971 date is the date the parents acquired an interest in the property.† He indicated Worthylake acquired an interest in 1976 and he deeded it to another family member.† He said if they are going to waive back, there is a distinction between 1971 and 1976.† He said in 1976 Terry and Beverly Worthylake acquired the property from his parents.
Dwyer wanted to amend the† motion to go back to 1976, taking care of part of the risk.
Vorhes asked for direction in the future on claim analysis.† He indicted this is a different way of approaching a claim than what they had been recommending.
Green said if they are going to be consistent, they need to keep it correct. He agreed about the intent of the claim but he wanted to be consistent.
Fleenor said he had compassion for the Worthylake situation but he didnít want to set a precedent that could be misused as they move forward.† He didnít support the motion.
Dwyer said the real intent of Ballot Measure 37 was to help people like Worthylake.† He said he would again be deprived of being able to use his property in a way and a manner that he was able to do when he acquired it.† †
Green asked the agenda team to schedule time with Floyd Prozanski to discuss why this law is being complicated by the unintended consequences.† He said for future claims they have to give Vorhes direction.† He wanted the legislative committee to work with Prozanski on how the measure could be flawed.
Dwyer thought they could be sued by Worthylake and if he prevailed the County could be sued and have to pay legal fees.
Vorhes said there have been cases that have drawn the distinction between acquisition for purposes of compensation and acquisition for purposes of waiver.† He thought the risk was lower, but they could sue.
Stewart hoped in the land use process there would be the opportunity for Worthylake to rezone this from F1 to F2 to accommodate a home.
VOTE: 1Ė4 (Green,† Stewart, Fleenor, Sorenson) MOTION FAILED.
MOTION: to approve† ORDER 07-1-23-14 to 2005.
Green MOVED, Fleenor SECONDED.
VOTE: 4-1 (Dwyer dissenting).
Sorenson asked if the Garvin claim was a land sale contract.
Vorhes responded that it transfers within the family similar to the Worthylake claim.† He said in Garvin there were warranty deeds.† He said the current owner had it and then conveyed to Robert Garvin, Sr., and Robert Garvin, Sr.,† conveyed it back to Robert, Jr. and Amy (the present owners) in August of 1999. He said the date of waiver and the testimony given went back further than was identified in the staff report.†† He said it was 1948 when the family acquired interest in the property.† He added it was conveyed among family members.† He commented that the present owners acquired the property in 1999 and that is the recommendation of the waiver date.† He said part of the issue is similar to the Worthylake, if there is a previous ownership that conveyed out and then it is conveyed back, if that break in the ownership creates a new acquisition date for purposes of the measure.† He said their analysis is that it does.† He said the waiver language speaks to waiving to allow the owner to use the property for a use permitted at the time the owner acquired the property.† †
Fleenor asked if previous Measure 37 hearings had similar situations.
Vorhes replied they had family member conveyances where they had gone to the most recent conveyance date as the waiver date for purposes of compensation† He recommended the waiver to only the most recent acquisition date.
MOTION: to move approval of the staff recommendation to 1999 for ORDER 07-1-23-21.
Green MOVED, Fleenor SECONDED. †
Green commented that this stayed in the family and is consistent with what they had just done previously.† He said they are treating all of these that fall under this category the same.
Dwyer thought they should be doing something different and they are doing something consistently wrong.† He said they are not talking about a large land subdivision, they are talking about the true intent of Ballot Measure 37 and why so many people voted the way they did.†
VOTE: 4-1 (Dwyer dissenting).
Dwyer requested to find out how many claims there are that involve a transfer within the family and not to a limited liability.
Fleenor thought the procedure worked well but he wanted to systematically take public comment starting with one to the end.† He said it was difficult for him to stay focused.
Van Vactor suggested taking one batch at 9:00 a.m. and a batch at 1:30 p.m. and send notices for morning or afternoon.
Sorenson recommended hearing each claim separate every ten minutes.
Green thought the process went well for the first time.† †
Stewart agreed to take half of the claims in the morning and half in the afternoon.† He said to put an individual time on each claim couldnít feasibly work. He wanted the flexibility to spend more time on a claim.
Fleenor wanted a sign up sheet per claim so they could sequence the public easier.
Sorenson wanted to take these in order of claim, not in order of the witness.
Van Vactor suggested taking the sign up sheet by the claim in sequence to see how it works for the February 13 meeting.
Stewart said they would take testimony by claim until it is completed.
Vorhes suggested having a form to clearly ask what claim they are speaking on.† He noted the Board has had hearings on several items in the past with a separate sign up sheet and people donít always sign up for the one they think they are supposed to sign up for.† He added they would come up with a better score sheet.
Van Vactor asked if the Board wanted Steve Hopkins to go through the existing claims to see how many have the family member connection.† He asked what impact that would have on the department.
Howe said because it is written in the record of each claim, it would require going through 300 claims to identify whether it was a transfer within the family or not.† He said they could do it.
Stewart was willing to have the department review the claims.
Sorenson was in favor of doing it as they have learned a lot since they adopted their initial Measure 37 claim. †
Howe said it was a workload issue. He asked if they could do this in July.
Green did not agree with that.
Howe didnít know where they would get additional labor resources. †
Van Vactor said he would meet with Howe, Jeff Towery and Vorhes to see if they could develop something.† He didnít want to interfere with anyoneís work load.
F. COMMISSIONERS' ANNOUNCEMENTS
Dwyer announced that he wouldnít be present at the Human Rights Meeting as he has a Riverstone Meeting.† He added that Sorenson wonít be present.
Sorenson announced that he would be involved with the Energy Forum in Harris Hall.
Green distributed information about justice and public safety around parole and probation.† He stated that Cottage Grove was awarded host to the National Triathlon in July 2007 and 2008.
G. COMMISSIONERS' BUSINESS
ORDER 07-1-23-26 Designating Interim Signature Authority for the Lane County Fairgrounds
Stewart indicated they had two more resignations from the Fair Board.† He said Warren Wong, Director, needs a second person to sign checks.† He said it had been brought to his attention that this Board could direct Van Vactor to do that.
MOTION: to authorize Bill Van Vactor to co-sign checks so they could facilitate the every day operations of the Fairgrounds until they sort this out .
Dwyer MOVED, Fleenor SECONDED.
VOTE : 5-0.
H. EMERGENCY BUSINESS
There being no further business, Commissioner Stewart adjourned the meeting at 3:00 p.m.