BOARD OF COMMISSIONERS'

REGULAR MEETING

Wednesday, June 20, 2007

1:30 p.m.

Harris Hall Main Floor

APPROVED 11/7/07

 

Commissioner Faye Stewart presided with Commissioners Bill Dwyer, Bill Fleenor, Bobby Green, Sr., and Peter Sorenson present.  Assistant County Counsel and Recording Secretary Melissa Zimmer were also present.

 

17. A. PUBLIC HEARINGS/MEASURE 37 CLAIMS

 

1. PUBLIC HEARING AND ORDER 07-6-20-9/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 (Babb, 06-7257).

 

2. PUBLIC HEARING AND ORDER 07-5-15-1/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 (Barrar, 06-7312).  

 

3. PUBLIC HEARING/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 (PA05-6425, Bixler).

 

4. PUBLIC HEARING/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 (Brandt, 06-7297).

 

5. PUBLIC HEARING AND ORDER 07-6-20-10/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 (Cowger, 06-7290).

 

6. PUBLIC HEARING AND ORDER 07-6-20-11/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 (Cronk, 06-7280).

 

7. PUBLIC HEARING AND ORDER 07-6-20-12/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 (Davidson302, 06-7302)

 

8. PUBLIC HEARING AND ORDER 07-6-20-13/In the Matter of Amending Order No. 07-5-8-25 to Clarify a Ballot Measure 37 Claim Decision to Not Apply Restrictive Land Use Regulations in Lieu of Providing Just Compensation (PA06-7125, Edgemon).

 

9. PUBLIC HEARING/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 (Green2, 06-6896).

 

10. PUBLIC HEARING AND ORDER 07-5-22-14/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 (Harwood, 06-7267).

 

11. PUBLIC HEARING/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 (Larsen, 06-7251).

 

12. PUBLIC HEARING AND ORDER 07-6-20-14/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 (McBee, 06-7138).

 

13. PUBLIC HEARING/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 (PA06-7202, Miller).

 

14. PUBLIC HEARING/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 (Montgomery, 06-7333).

 

15. PUBLIC HEARING AND ORDER 07-6-5-10/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 (PA06-7250, Moulton).

 

16. PUBLIC HEARING/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 (Petersdorf, 06-7246).

 

17. PUBLIC HEARING AND ORDER 07-6-20-15/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 (Roberts275, 06-7275).

 

18. PUBLIC HEARING AND ORDER 07-6-20-16/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 (Robinson, 06-7277).

 

19. PUBLIC HEARING/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 (Rosboro79, 06-7279).

 

20. PUBLIC HEARING/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 (Rosboro81, 06-7281).

 

21. PUBLIC HEARING/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 (Rosboro83, 06-7283).

 

22. PUBLIC HEARING/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 (Rosboro85, 06-7285).

 

23. PUBLIC HEARING/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 (Rosboro87, 06-7287).

 

24. PUBLIC HEARING AND ORDER 07-5-8-18/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 (PA06-7226, Schrenk)

 

25. PUBLIC HEARING AND ORDER 07-6-20-17/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 (Schultz, 06-7278).

 

26. PUBLIC HEARING/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 (Shelley, 06-7253).

 

27. PUBLIC HEARING AND ORDER 07-5-22-21/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 (Suess72, 06-7272).

 

28. PUBLIC HEARING/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 (USR Co., 06-7282).

 

29. PUBLIC HEARING AND ORDER 07-6-20-18/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 (Van Duyn, 06-7259).

 

30. PUBLIC HEARING AND ORDER 07-6-20-19/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 (Vandercook1, 06-7205)

 

31. PUBLIC HEARING AND ORDER 07-6-20-20/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 (Vandercook2, 06-7206).

 

32. PUBLIC HEARING/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 (Warner, 06-7332).

 

33. PUBLIC HEARING AND ORDER 07-6-20-21/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 (Whitaker, 06-7273).

 

34. PUBLIC HEARING AND ORDER 07-5-15-25/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 (Wobbe, 06-7258).

 

Commissioner asked if there were any ex parte contacts.

 

Dwyer indicated he spoke with Mr. Babb and Mr. Babb asked to temporarily postpone his claim.

 

Green had no ex parte contacts.

 

Fleenor said he had no ex parte contacts.  He asked about the status on the processing all Measure 37 claims. 

 

Kent Howe, Land Management, responded that all Measure 37 claims that were filed with Lane County have had a public hearing as of May 22.  He added the hearing on June 5 and those heard today are on their second or more opportunity to bring their arguments to the Board to make their case a valid claim.  He noted to date the Board has approved 302 claims and they have continued 35 claims of which 34 will be dealt with today.  He indicated the Nielsen2 will be dealt with on June 27.  He said the Board has denied 29 claims.  He added there have been 13 applications that have been withdrawn and 14 applications are on hold indefinitely at the applicantís request. He said if the Board wanted to give another opportunity, he suggested closing the record by June 29 and then deliberation for July 24.

 

Howe noted the claims to be considered today have had more than one hearing and it was announced at the prior hearings that they would be heard today.  He indicated they did not send out subsequent notice.  He said the exception was Edgemon, which was a correction to the ordinance.  He stated that staff conducted the analysis of the pertinent Measure 37 requirements on these claims.  He said the analysis addresses the requirement of ownership, date of acquisition, the current zoning and the zoning regulations 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 current ownerís acquisition.  He added for the claims that didnít provide an appraisal, the county administrator has waived the appraisal requirement because they have provided a competent analysis of value reduction.  He said there are eight claims recommended for denial and seven claims are deemed incomplete because of inadequate information being provided.  He said except for the June 27 hearing on Nielsen2, this is considered the final hearing date the Board has scheduled for the Measure 37 claims they have received.

 

Commissioner Stewart opened the Public Hearing.

 

Babb

 

Jim Spickerman, Eugene, wanted to see if the intent of Babb and Van Duyn is to set this over.  He would get back with the Board.

 

Barrar

 

Mike Farthing, Eugene, recalled at the last hearing, issues were raised by the neighbors regarding access and the availability of utilities with respect to the valuation of the property.  He submitted additional information about how this property could be served by utilities.  He indicated in Lane County they donít have to demonstrate connection to an electrical grid.  He thought in the future they might argue with the neighbors about the use of the access easement as it states it is for road purposes.  He thought road purposes included utilities.  He noted staff recommended approval.

 

Rob Lilley, Springfield, submitted additional testimony dated June 1 regarding value analysis for the property.  He said he spoke with four real estate brokers to get a value analysis.  He indicated no one would give him a value analysis because there were no comparable sales data.  He added for the past six months in Lane County there have been no properties listed or sold that did not have utilities. He contacted an appraiser and was told that he doesnít own the property so he couldnít get an appraisal.  He thought the Board should deny the claim because there is not factual information.  He thought they should grant a continuance so the applicant could provide the factual information needed to make a decision.

 

Bixler

 

Celene Price, Eugene, said they submitted additional documentation that was requested on June 7.  She said the property was purchased by her grandparents in 1974.  She added her mother had an interest in the property.  She reported that her mother invested money into the property in 1974.  Price said they provided copies of an agreement between them showing her motherís investment of $37,500 was in the Lane County property.  She added the intent of the transaction was there in a promissory note, but it was not to be paid; it was to be fulfilled by property versus a cash payment.

 

Fleenor wanted to roll this to give staff more time for review.

 

Vorhes said the difficulty is the connection to the conveyance.  He noted there was a description of the intention of the parties but whether there is sufficient evidence to sustain the conclusion that the individuals gained an interest in the property on that date is the part of the problem.

 

Howe commented that in order to secure the daughterís interest in the property, the Colthars wanted to execute their promissory note of secured first deeds of trust on the property.  He said they agreed to deliver each daughter a promissory note in the principle amount of $37,500 with interest together with a first trust deed naming the daughters as beneficiaries and securing payment of the note.

 

MOTION: to keep the record open until June 29, with the public hearing on July 24.

 

Fleenor MOVED, Dwyer SECONDED.

 

Sorenson wanted an amendment to the motion that written evidence could be submitted until June 29 and they would deliberate on July 24.

 

Fleenor accepted the amendment and Dwyer seconded.

 

Stewart asked if Attachment B showed ownership in 1974.

 

Vorhes said it showed the mortgage company wanted their signature on the mortgage, but the other documents could have created an encumbrance.  He said they will review if the evidence would be in favor of an earlier waiver date. 

 

Stewart said it appears with the testimony they received that she was an owner at the original date.  He wanted to keep the record open.

 

VOTE: 5-0.

 

Brandt

 

Thomas Brandt, Marcola, said when he started the process he had to pay $31 for the County to find out what the zoning was on his property.  He said they sent a letter back saying it was unzoned land when he bought it and it was changed in 1980 to F2.  He added the County told him he couldnít live on the property.  He thought he was stopped illegally from building on his property.

 

Dwyer explained that under the Consent Calendar they deferred the $750 processing fee and the $100 notice fee for the Measure 37 claim.

 

Stewart said they need a value loss reduction that the Board asked him to get.  He said they determined the date of acquisition was May 27, 1974 and the property was unzoned.

 

Brandt brought a dissolution of marriage from 1976 and a deed where his wife signed the land over to him.  He said they bought the land in November 1971.

 

Stewart said they need proof of the acquisition date and the valuation.

 

Howe said he called Brandt requesting the information if he wanted to be considered by the Board for his claim  and they didnít receive anything.

 

Green commented that the applicant didnít have the information ready for the Board to make a decision.  He requested postponing the claim until the applicant was ready.

 

MOTION: to keep the record open to June 29, with deliberation on July 24.

 

Green MOVED, Fleenor SECONDED.

 

VOTE:  5-0.

 

Cowger

 

Bob Cowger, Pleasant Hill, said he was denied his application because of the lack of necessary information. He said he had supplied the information and he asked for the waiver.

 

Cronk

 

Mike Farthing, stated staff recommended approval and he agreed.

 

Davidson302

 

No one signed up to speak.

 

Edgemon

 

Bob Edgemon, Springfield, asked if this was adopted.  He didnít know the meeting was changed from 9:00 a.m. to 1:30 p.m.  He added this was adopted on May 8 and they put the wrong address and evaluation.

 

Vorhes said the order identified the tax lot correctly.  He added the legal effect of the previous order is a minor change that doesnít change the substance. He indicated the order was adopted and the claim has been approved.  He said this corrected the address reference.

 

Green2

 

Steve Green said they are denying the claim because lot 1400 was applied for.  He also applied for lot 1500, a legal tax lot and they denied it because it was an illegal lot.  He said he gave 40 acres to the BLM for a bird refuge.  They split the acreage and when they did that they made illegal tax lots and the BLM didnít realize it until later.  He said they contacted the BLM to try to work out his problem.  He wanted to put this on hold until they can fix the problem.

 

Howe explained that the legal lot status is part of the problem.  He said it is their understanding that Steve Green does not have ownership interest in the property, he only has ownership of the improvements, not in the land.  He added Nicole Green and Eddie Chernecki each have 50 percent ownership in tax lots 1400 and 1500.  He said Nicole acquired her interest in the property on February 25, 1998 and Eddie Chernecki in 2003.  He said there hasnít been a change in zone restrictions and they donít find it a valid claim.

 

Dwyer thought they could put this claim on hold.

 

Sorenson asked how many claims were put on indefinite hold.

 

Howe indicated there are 14 claims put on hold.  He said it is up to the applicant to request to reconsider the claim.  He added until then, it stays on hold.

 

Sorenson thought they should set all the indefinite claims over for a specific date in June next year so they have a way to manage this.

 

Stewart suggested at the conclusion of the July 24 date, to ask staff to give them options on how they might move forward with claims that are put on hold.

 

MOTION: to put the Green2 claim on hold.

 

Green MOVED, Dwyer SECONDED.

 

VOTE: 5-0.

 

Harwood

 

Kim Oí Dea stated she represents the claimant.  She indicated the question about power of attorney was resolved.  She supported staffís report.

 

Shirley Harwood, Junction City, was present for questions.

 

Rhonda Hardwood Schaefer, Junction City, said she sold a piece of property in 2004 with power of attorney.  She indicated at that time there was no complaint over the sale.  She recalled the property was purchased by her parents in 1965.  She was put on as power of attorney. She added she was on their checking account for over 30 years.  She said she was given the right to sell the land to pay back a loan.  She indicated her mother is 82 and her father is 87 and they have dementia.  She said  they want to stay in their home. 

 

Larson

 

Barbara Larson, Eugene, stated she got her paperwork in yesterday.  She submitted a new title report.

 

Howe indicated they have reviewed the information that has come in.  He noted the owner is Kenneth for tax lot 2600 and on the date of acquisition the property was zoned Exclusive Farm Use E-40, not FF20.  He indicated on April 13, 1988, the property was zoned Exclusive Farm Use at the time Kenneth Larson acquired an interest in the property.  He said the value reduction analysis was on the basis of dividing the property into three parcels.  He said staff had a problem as it was zoned E-40 at the time in 1988 and the value reduction analysis doesnít apply because it is on the presumption that it could have been divided.  He indicated it could not.  He said there is not a valid claim according to staff.

 

Larson indicated her husband purchased the property in 1985 but it was not recorded until 1988.  She wanted to bring information to prove that point.

 

Stewart asked if the outcome would be different if she brought in information about the earlier date.

 

Howe stated the deeds provided showed the date of acquisition as 1988 and the zoning was applicable since 1984. 

 

Stewart asked if the regulations were back to the date of acquisition if Larson could show the regulations were different and might allow a residence on this parcel.

 

Howe indicated there are provisions in exclusive farm use zones for non-farm dwellings and some are restrictive. He thought there could be a possibility the property could meet the requirements for a non-farm dwelling.

 

Stewart said Larson would need to bring documentation back to 1985.  He added the valuation would only qualify for one parcel.

 

MOTION: to keep the record open to June 29 and deliberation on July 24.

 

Fleenor MOVED, Dwyer SECONDED.

 

VOTE: 5-0.

 

McBee

 

Mike Farthing recalled the last time they were in front of the Board, the McBees hadnít submitted information.  He indicated they have since submitted information and staff was recommending approval and he agreed.

 

Miller

 

Tom Reid, Springfield, spoke in support of the staff recommendation to deny the Miller claim.  He indicated Miller acquired the property in 1995 and at the time it was subject to restrictive large parcel zoning reflecting its prime farmland and its position in the McKenzie River floodplain.  He noted a year after the purchase, most of Millerís property was under deep water in the flood of 1996.  He believed when Miller purchased the property in 1995 he would not have been able to build riverfront homes.  He indicated the property is already smaller than the minimum parcel size.  He didnít think the claim of loss of valuation was correct. 

 

Mike Farthing, Eugene, indicated staff was recommending denial.  He said it was a valuation issue.  He said it is a 20 acre parcel, with two acres inside the UGB and 18 acres outside the UGB on the McKenzie River.  He indicated Miller is experienced in dealing with properties in the area along Hayden Bridge Road.  He stated the two acres could be partitioned along the UGB.  He said they were not applying for the two acres inside the City of Springfieldís jurisdiction.  He said they are dealing with the 18 acres and they thought one home site could be obtained if the regulations were rolled back to when he acquired the property in 1995.  He added the difference is an $80,000 income standard versus a $20,000 income standard.  Farthing said Miller obtained approval of dwellings under the $20,000 income standard.  He thought it was impossible with the size of the parcel to obtain approval of a dwelling in the 18 acres under the $80,000 income standard or any of the other ways to get a dwelling on high value farmland.   He said there are different ways of building dwellings in high value farmland and they donít believe any are applicable under current circumstances.  He thought it was reasonable that at least one and possibly two dwellings could be obtained based on legal lot analysis.  He thought a reduction in value was at $275,000 for the 18 acres that could have been built in 1995 when he acquired the property.

 

Mike Miller, Springfield, said he is a real estate broker.  He said he had been involved with the development of 28 parcels that are almost identical to his property between 20th and 40th Street, along Hayden Bridge.  He said the properties are split between the UGB and the Countyís jurisdiction and the floodplain and floodway.  He said he had obtained a $20,000 EFU home dwelling permit that was approved.  He added they received another permit under the same conditions.  He said the parcels were on larger sites than the one he has today.  He commented the information staff provided was inaccurate. He didnít think it was possible to meet an $80,000 per year income standard in an EFU Class 1 soil area.  He said when he bought the property he could use a $20,000 income standard and he was asking to be able to use it now.  He said the difference is getting a home site permit with a $20,000 per year income on his EFU ground that has been changed to $80,000.  He thought he was entitled to that opportunity. 

 

Farthing stated in the final paragraph of staffís recommendation, the minimum lot size is exempt. He didnít think it was accurate.

 

Montgomery

 

Brandi Stachelrodt, Florence, submitted information to clarify questions.  She commented that this case was complicated. She indicated the property was homesteaded in 1893.  She added it was on the record in 1904 and it has been in continuous ownership. 

 

Howe indicated he hadnít had a chance to review the information.  He said if it addresses their concerns with the trust and the date of acquisition then they could bring the claim back.

 

MOTION: to keep the record open until June 29 and deliberation on July 24.

 

Dwyer MOVED, Fleenor SECONDED.

 

VOTE: 5-0.

 

Moulton

 

Martha Moulton, thanked the Board as this was 24 years in the making.

 

Petersdorf

 

Mike Farthing, Eugene, indicated they submitted a letter from the attorney who drafted the trust.  Farthing said it was a grantor trust.  He thought there was confusion between them and staff about the nature of the trust.  He said according to the attorney, it doesnít change the nature of the ownership of the trust,  it is still in Darryl, Sr.ís ownership. He misunderstood what staff was looking for and requested to hold the record open to June 29.

 

MOTION: to keep the record open until June 29 and deliberation on July 24.

 

Dwyer MOVED, Fleenor SECONDED.

 

VOTE: 5-0.

 

Roberts275

 

Les Roberts, Eugene, recalled last month staff recommended his claim be denied.  He submitted additional information and his claim has been approved.  He was pleased at the way staff handled his claim.

 

Robinson

 

Mike Reeder, Eugene, stated he represented Cecil Robinson.  He thanked staff for going through the claims thoroughly.  His experience was positive.  He said the issue for his client is whether or not Robinson had given up a property interest by converting tax lot 220 into an LLC.  He discussed other Measure 37 cases (copy in file).  He said the context of Measure 37 supports the conclusion that Mr. Robinson is an owner of tax lot 220.  He indicated the text of Measure 37 allows a trustee to obtain a waiver dating to when the trust beneficiary obtained interest.  He said Robinson is the only person with the right to control the property.  He added Robinson could transfer the property and has held the right continuously for 30 years.

 

Fleenor thought an LLC is formed to shield the person from liability but at the same time giving complete control over the assets of the corporation. 

 

Reeder commented that the benefits of an LLC do not necessarily exclude the benefits received under Measure 37.  He said Robinson has been denied a benefit and that benefit was a right to have an access to his legally partitioned piece of property.  He said the only reason for transferring the property into an LLC was to obtain a permit for access that he already had a right to.  He said it was the only way to convince ODOT to give him an approach to the site,  not for tax reasons.

 

Dwyer thought a limited liability that contains one person was never formed to negate control of property.  He thought Robinson had to go through extraordinary means in dealing with ODOT.  He supported this.

 

Vorhes didnít think in this case they had the documents that were being discussed.  He said for purposes of analyzing the compensation claim, they looked at the earlier date of acquisition.  He said under the measure it is a family member ownership.  He said that Robinson acquired the property in 1974 and conveyed it to a legal entity.  He thought it was a family member connection for purposes of compensation.  He said for LLCís they have been recommending that the waiver date goes to the date of the LLC acquisition and the ownership for purposes of compensation (if the LLC is a single or two or three family) would go further back.  He added they have not waived back to the original acquisition date.  He said the order describes the waiver is to the date the LLC acquired the property.  He said the request is to grant the waiver to Mr. Robinson, himself and that is what the order proposes to do.

 

Stewart agreed with Reeder and thought Robinson was the owner of the LLC.

 

Vorhes stated they donít have the details on who manages and controls the LLC. and that is part of the consideration for looking at a waiver.  He said the conveyance was from both husband and wife to the LLC.  He said the details were not in the record.  He said this was done to convince the state there were two different owners of the property.  He said the deed makes it clear there is a conveyance of the interest in the property held by Mr. and Mrs. Robinson at the time of the conveyance.

 

MOTION: to keep the record open to June 29 with deliberation on July 24.

 

Fleenor MOVED, Dwyer SECONDED.

 

Cecil Robinson said he is the sole owner of the corporation.  He said the only reason for going to an LLC was to get access to his property. 

 

Stewart said the Board needed documentation of the LLC showing Robinson is in control of the LLC.

 

Robinson said he never asked for any LLC. 

 

Reeder thought there was sufficient information in the record that Robinson is the only person who has control of the property.

 

Vorhes said in the past they had been using the date of acquisition by the LLC as the date of waiver.

 

Fleenor with withdrew his motion and Dwyer withdrew his second.

 

Rosboro79

 

Mike Reeder stated he represented Rosboro in all five claims and he incorporated his comments into all of them.  He hadnít provided material since late May.  He said there is no new information.  He indicated the issue is about conversion.  He said the issue is does the conversion that is a defined term from one form of business to an LLC create a new owner for purposes of Measure 37. He indicated staff recommended denial based on the fact that Rosboro Lumber Company was organized in 1947 and changed the form of the entity from a general partnership to an LLC.  He stated it does not create a new owner for purposes of Measure 37.  He said Rosboro Lumber Company converted its form of entity in 1995 four years before the Oregon State Legislature codified the common approach of converting entities.  He stated ORS 63.479 states a conversion is not a change of entity.  He said under a conversion there is no change of ownership but the owner converts the manner in which it conducts business.  He said the business entity continues its existence despite the conversion.  He thought staff was in error.  He said in 1995 the Rosboro general partnership wanted to make sure their conversion to an LLC didnít create any tax implications.  He said all of the general partnerships converted the form of entity, all interest, capital, profits and losses in the same member as a member of the LLC.

 

Rosboro81

 

No one signed up to speak.

 

Roseboro83

 

No one signed up to speak.

 

Rosboro85

 

No one signed up to speak.

 

Rosboro87

 

No one signed up to speak.

 

Schrenk

 

Jim Belknap, Cottage Grove, stated the recommendation for the order presented is acceptable to the Shrenks.  He noted there is a problem in the staff report in the analysis.  He said on page 2 of the supplemental memo, the area reserved by Belva Schrenk is four acres in size.  He added the land sale contract was tax lot 19-02-06, tax lot 201 and they entered into the contract on May 1, 1966 when the property was zoned AGT.  He indicated that part of the statement is correct.  With regard to the land sale contract completed by conveyance recorded under a Bargain and Sale Deed on January 27, 1978, Bargain and Sale Deed, 7841404, was correct.  He said the portion of tax lot 303 reserved to Belva was added to the deed on January 27, 1978.  He said that was not correct.  He indicated that area was deeded separately, Deed No. 7923230, executed April 19, 1979.  He said there is a significant difference between the two events.  He said Ernest had passed away earlier and the deed was a conveyance by Belva to her son of the piece she had reserved from the land sale contract.  He indicated the four acre parcel was specifically out of Deed 7842533.  He added it was conveyed a year later in Deed 7923230.  He indicated the date of acquisition was January 27, 1978, Bargain and Sale Deed 7842533 and that was not corrected.  He said it is Deed 7841404.  He stated Deed 7842533 was a correction deed that came later, but it corrected an error in the legal description.  He said the original deed was Deed 7841404 from the Estate of Ernest Schrenk.  He said with that correction the deed statement was correct.  He indicated the four acres of Belvaís ownership were conveyed through a correction deed on April 19, 1979.  He said the order was acceptable the way it was written as to the date of acquisition.

 

Vorhes thought there was low risk for any kind of consequence of this portion of the staff report and the record.  He said if the evidence in the record of the deeds accurately backs up the conclusion drawn in the order, he thought the order would stand well under scrutiny.  He thought it was sufficient to clear the record.

 

Schultz

 

No one signed up to speak.

 

Shelley

 

Josh Stump stated he represented the applicants.  He recalled he was before the Board last month.  He said the application fee had been paid. He said the definition of owner for Measure 37 is broad.  He indicated the owner of the property is the present owner of the property or any interest therein.  He said in this case there is the Shelley Family Trust.  He said it was set up as a revocable trust by Mabel Shelley, now deceased, in 1993.  He said there remained ownership interest beyond that of the trust.  He said Zora Studer is the trustee and beneficiary of the Shelley Family Trust.  He said there is a lack of evidence in the current record as to when people acquired certain interests.  He said staff wanted additional information.  He said in 1931 and 1941 there were two deeds recorded on behalf of the Shelley Family.  He said in 1968 Zora Studer and her husband moved back to the property and a parcel was carved out  so she could live on the adjoining property.  He noted at that point she acquired an interest in the property by way of an oral lease to use for operating a joint cattle operation.  He stated she did not move back to offer help in an existing operation, but to use the property for her own livestock.  He said there are no recorded documents and there is no requirement about what kind of evidence is necessary to prove a Measure 37 claim.  He said there was evidence of the ownership interest at that time and to this day.  He said Zora is the trustee and sole control of the Shelley Family Trust and is a beneficiary.  He said the Shelley Family Trust is the owner since 1993.  He added that Lynn and Eric Seitz are also on the application and they acquired a lease interest in 1989 with an option to purchase.  He said their argument about the critical date for waiver in this case goes to 1941 or 1938. 

 

Fleenor asked if there was any monetary transaction or lease payment or proceeds that came from the management of the property.

 

Stump didnít believe it was the kind of transaction where there was a set amount charged.  He said the agreement was Ms. Studer and her husband would have the right to use the property.  He said the key date is 1941.  He said there was evidence the expectation of the family was to purchase the property for its use.  He said the applicants acquired an interest in the property beginning in 1968 and they maintained an ownership interest since that time and they are seeking to use the property as it was always intended including by Mabel Shelley when she created the revocable trust.  He added the statute does not require a Measure 37 claimant to be the only owner or sole owner, it is that they just have an ownership interest.

 

Zora Studer, Pleasant Hill, said she lives on the John Shelly land donation claim.  She said her great grandfather was a pioneer that came over in covered wagons.  She said this piece of the property has been in the family for 250 years.  She moved back after a stay in Fort Hood where her husband was in the service in 1968 to build a home.  Her parents gave her the property.  She said her parents had expectations that she would own and operate the property with the rest of her family.  She said she worked on the property almost her entire life.  She said her parents gave her an oral agreement.  She said she has been paying taxes on the property since 1968.  She hoped the Board would consider this as it meant a lot to her and her family.

 

Lynn Seitz, Pleasant Hill, said she is one of the claimants on this Measure 37 claim.  She said they always had unrestricted access to the property, there were no locked gates and they all had cattle they ran together on the subject property.  She said it was her grandmotherís expectation that her kids and grandchildren would come back to live on the family farm as adults.   She stated she want to continue raising her children on the farm, that she and her husband moved onto the property in a manufactured home in 1989 to continue with active daily operations of the family farm. She indicated her grandmother provided them with a lease option to purchase a portion of the property.

 

Levi Seitz, Pleasant Hill, stated he hoped to live as an adult on the farm to keep the family tradition of farming.

 

Kirk Dutton, Springfield, stated he is married to Zoraís other daughter.  He indicated there are affidavits in the file.  He said the family was involved in taking care of animals.

 

Kent Anderson stated he is not a part of the family, but 21 years ago Lynn Seitz came to work for him and continues to work as a legal assistant.  He said Lynn wanted to live on the property to build a house but the only way to do that was for the property to be subdivided.  He participated in drafting the lease and discussing the matter with Mabel  Shelley and Lynn Seitz.  He said Mabelís intent was to have her family continue to live on the property to build houses.

 

Jim Belknap, said he did work on Mable Shelleyís trust four years ago.  He confirmed what was said about joint ownership of cattle and family involvement.  He indicated 40 acres of land was deeded to John Shelley.  He indicated the 115 acres was held in trust that Mabel Shelley had established.

 

Fleenor stated he heard there was a lease option in 1989 but he didnít see it in the record.

 

Vorhes said there was a memorandum of the lease option that was part of the original application.  He said the document reflects that on April 28, 1989, Mabel, Lynn and Eric Seitz, as tenants, entered into a lease and option agreement whereby the landlord agreed to lease to tenants the designated portion of real property and the landlord granted an exclusive option to purchase said real property.  Vorhes didnít recall seeing the actual lease and option agreement.

 

Dwyer asked what type of relief they had in 1989.

 

Howe said they are zoned exclusive farm use E 25 and in 1989 it would have been the same.  He indicated they have 112 acres and with 25 being the minimum land division, they could create four parcels today or in 1989.  He added for the provisions for dwellings, they changed in 1993 and they might be able to benefit for 1989.

 

Green asked what the risk would be to the Board if they made a determination without supporting documentation

 

Vorhes responded that someone could challenge the Boardís authority.  He said the debate would be whether the evidence sustains the Boardís decision.  He indicated the ultimate risk is with the applicant.

 

Sorenson asked why this claim was being denied.

 

Vorhes said the main concern was having the adequate documentation in the record of the asserted interests in either the 1968 date or the lease option from 1989.  He said where the whole property was put into the trust, it muddies the water in that there are individuals holding the title to the property as trustees.  He thought the trustee holds legal title in a fiduciary capacity for the benefit to the beneficiaries.  He said if there is a beneficiary interest, then there is a basis to look at earlier dates of acquisition and to connect the dates together.  He said the Board has to act within its authority and make a decision based on substantial evidence in the record.  He thought there was an arrangement within the family members to allow them to utilize the property.  He didnít know if that rose to an ownership interest or an interest in the property in 1968.  He said if there is no challenging evidence to what has been presented, there might not be a basis for undoing the Boardís reliance on the evidence.  He indicated it is up to the Board to decide.

 

Fleenor thought if they rolled this the family might be able to provide documentation to 1989. 

 

MOTION: to keep the record open to June 29 with deliberation on June 24.

 

Fleenor MOVED, Dwyer SECONDED.

 

Dwyer wanted counsel to review the qualitative material so when they have the deliberation they have the analysis associated with it.  He thought the grandfather homesteaded the property. He asked if there was an option to purchase the property.

 

Sorenson stated he would support this.  He wanted any documents that would provide additional information about the interest in an ownership issue.  He added he wanted any argument on how this adds up to a yes or no.

 

Green supported this. He thought there was a chance the information could materialize.  He wanted to know what the intent was originally and if anything was being violated.

 

VOTE: 5-0.

 

Suess72

 

There was information distributed by neighbors who had previously testified.

 

Green indicated there was information about water quality.

 

USR Company

 

Mike Reeder, Eugene, said USR is owned by Rosboro Company and it is a step removed from the Rosboro argument they made for the other five claims.  He didnít have more to add.

 

Van Duyn

 

Howe said this is a companion case to the Babb case and Van Duyn consents to his claim being rolled to July 24.

 

MOTION: to roll Van Duyn and Babb claim to July 24.

 

Dwyer MOVED, Green SECONDED.

 

VOTE: 5-0.

 

Vandercook1

 

No one signed up to speak.

 

Vandercook2

 

No one signed up to speak.

 

Warner

 

Ron Funke, Eugene, said there had been a question about the date of Warnerís ownership of the property.  He met with Vorhes and he thought they cleared the problem.  He said the original warranty deed by Warner took place in 1971 and it was notarized.  He indicated it was recorded in the County records until 1985 as a satisfaction of a contract.  He stated another issue had come up.  He said Blake and Neal Finance Company had been holding the paper and they were under the obligation to pay the taxes and they didnít.  He indicated that took place in 1999. 

 

Stewart indicated in 1971 there was a notarized contract but it wasnít recorded until April 1, 1985.  He wanted to know the reason why that happened.

 

Vorhes responded that there is a copy of the contract and the deed from Rolins to Warners, dated May 18, 1971 and wasnít recorded until 1985.  He said after the contract was entered into, the seller started assigning the sellerís interest to one party who assigned it to another party.  He said in 1985 there were a number of deeds from different entities, one is dated May 18, 1971 from Brian Junior Rolins and Judy Pearl Rolins to Michael Lee Warner and Sally Warner.  He added what was provided were copies of their last payments to the escrow in 1984 that show the completion of the payment of the contract.  He thought the track of ownership to 1981 was clean.  He added there was a tax foreclosure that went to judgment at that time.  He indicated the judgment was entered on May 14, 1979 and the certification of redemption was issued on November 26, 1979.  He didnít think it constituted a break in ownership from 1971.

 

Dwyer thought the evidence in the case showed Warner had  interest in the property since 1971.

 

Whitaker

 

No one signed up to speak.

 

Wobbe

 

Karl Mueller said the request is a modest one.  He said James R. Wobbe acquired the property in 1954 and at the time it was unzoned.  He said the interest went into a revocable trust and Wobbe has since deceased.  He added the trustees and all beneficiaries of the trust are family members. He said the issues with when the family members acquired an interest in the property in 2002 or 1954, have yet to be resolved and they are following a number of cases at the circuit court level.  He asked this be set out to a date certain in the future.

 

MOTION: to place this case on hold until June 2008.

 

Dwyer MOVED, Fleenor SECONDED.

 

VOTE: 5-0.

 

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

 

MOTION: to adopt staffís recommendations for Barrar, Cowger, Cronk, Davidson302, Edgmon, Harwood, McBee, Moulton, Roberts275, Robinson, Schrenk, Schultz, Suess72, Vandercook1, Vandercood2 and Whitaker.

 

Fleenor MOVED, Dwyer SECONDED.

 

Sorenson wanted a separate vote for number 2 and 27.

 

Fleenor amended his motion to take a separate vote for number 2 and 27.

 

Dwyer amended his second.

 

Stewart wanted to pull item 18.

 

Fleenor amended his motion, Dwyer amended his second.

 

VOTE: 5-0.

 

MOTION: to adopt the Robinson claim.

 

Dwyer MOVED, Green SECONDED.

 

Stewart agreed with the motion back to the 1974 date.

 

Sorenson said the LLC law required that Robinson give up his interest.  He didnít think they could get to the view that he had a sufficient ownership interest.

 

Dwyer didnít think the intention of Measure 37 was to make him suffer because he took some bad advice.  He thought it was different as it was a sole ownership and the lawyer made reference to him as a manager and the management agreement and that was in the record.  He supported this.

 

VOTE: 3-2 (Fleenor, Sorenson dissenting).

 

Dwyer suggested they bring this board order back reflecting the Board action, putting it on the Consent Calendar.

 

Barrar

 

Sorenson didnít think they met the proof of loss of value because there were no comparables submitted.

 

Fleenor thought here had been a loss.

 

MOTION: to accept staffís recommendation to adopt the order.

 

Fleenor MOVED, Green SECONDED.

 

Fleenor withdrew his motion.

 

MOTION: to deny the Barrar claim.

 

Sorenson MOVED, Dwyer SECONDED.

 

VOTE: 2-3 (MOTION FAILED)

 

MOTION: to accept staffís recommendation on the Barrar claim.

 

Fleenor MOVED, Green SECONDED.

 

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

 

Suess72

 

MOTION: to deny the Suess72 claim.

 

Sorenson MOVED, Fleenor SECONDED.

 

Stewart said it is impossible to have the exact valuation loss on these claims until they come in for a land application.  He wanted to be consistent with the past claims. 

 

VOTE: 1-4 (MOTION FAILED).

 

MOTION: to approve the Suess72 claim.

 

Fleenor MOVED, Green SECONDED.

 

VOTE: 4-1 (Sorenson dissenting).

 

Miller

 

Stewart said the recommendation was denial. 

 

Dwyer didnít think the income test was valid to waive the regulations.

 

Howe explained that staffís position is that they have one ownership.  He indicated the applicant proposes to partition the property at a future time.  He said a portion of the property is inside the urban growth boundary and those land use regulations are increasing the value.  He said staff had a problem with the value reduction analysis when there is one portion of the property inside the urban growth boundary that is getting the value increase versus the portion outside. 

 

MOTION: to deny the Miller claim.

 

Sorenson MOVED, Fleenor SECONDED.

 

Stewart disagreed with the staff recommendation.  He thought the intent of Measure 37 was to try to do what they could at the time they purchased the property and at that time it was a $20,000 income test..

 

VOTE: 4-1 (Stewart dissenting).

 

Rosboro79, Rosboro81, Rosboro83, Rosboro85, Rosboro87,  USR Company

 

MOTION: to accept staffís recommendation for denial.

 

Dwyer MOVED, Sorenson SECONDED.

 

VOTE: 4-1 (Stewart dissenting).

 

Warner

 

MOTION: to adopt a waiver to the 1971 date.

 

Dwyer MOVED, Green SECONDED.

 

VOTE: 5-0.

 

Stewart indicated the order would come back on the Consent Calendar.

 

Howe reported that on July 24 he would bring back the statistics of what the Board had accomplished and what was remaining regarding the Measure 37 claims.

 

35. SECOND READING AND PUBLIC HEARING/Ordinance No.7-07/In the Matter of Amending Chapter 18 of Lane Code to Reflect Ambulance Service Area Boundaries Changes (LC18.020).

 

Rob Rockstroh, Health and Human Services, indicated this was a housekeeping issue to get into Lane Code.

 

Commissioner Stewart opened the Public Hearing.  There being no one signed up to speak, he closed the Public Hearing.

 

MOTION: to adopt Ordinance No. 7-07.

 

Dwyer MOVED, Green SECONDED.

 

ROLL CALL VOTE: 5-0.

 

18. COMMISSIONERS' ANNOUNCEMENTS

 

Fleenor announced his Coffee and Conversation in Junction City at the Rodeo Restaurant.

 

19. CORRESPONDENCE TO THE BOARD

 

None.

 

20. OTHER BUSINESS

 

None.

 

There being no further business, Commissioner Stewart adjourned the meeting at 6:35 p.m.

 

Melissa Zimmer

Recording Secretary