BOARD OF COMMISSIONERS'

WORK SESSION

May 22, 2007

9:00 a.m.

Commissionersí Conference Room

APPROVED 10/3/2007

 

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

 

A. ADJUSTMENTS TO THE AGENDA

 

None.

 

B. PUBLIC HEARINGS/MEASURE 37 CLAIMS

 

1. 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 (1st Baptist, 06-7274).

 

2. PUBLIC HEARING AND ORDER 07-5-22-1 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 (Anjun, 06-7284).

 

3. PUBLIC HEARING AND ORDER 07-5-22-2 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 (Bales2, 06-7291).

 

4. 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 (Batchelor, 06-7289)

 

5. PUBLIC HEARING AND ORDER 07-5-22-3 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 (Brice, 06-7271).

 

6. PUBLIC HEARING AND ORDER 07-5-22-4 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 (Cochran286, 06-7286).

 

7. 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 (Cone Investments, [Cont'd from 4/17], 06-7181).

 

8. 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 (Cowger, 06-7290).

 

9. 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 (Cronk, 06-7280).

 

10. PUBLIC HEARING AND ORDER 07-5-22-5 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 (Davidson 98, 06-7298).

 

11. PUBLIC HEARING AND ORDER 07-5-22-6 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 (Davidson269, 06-7269).

 

12. PUBLIC HEARING AND ORDER 07-5-22-7 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 (Davidson301, 06-7301).

 

13. 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 (Davidson302, 06-7302).

 

14. PUBLIC HEARING AND ORDER 07-5-22-8 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 (Davidson304, 06-7304).

 

15. PUBLIC HEARING AND ORDER 07-5-22-9 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 (Davidson305, 06-7305).

 

16. PUBLIC HEARING AND ORDER 07-5-22-10 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 (Davidson306, 06-7306).

 

17. PUBLIC HEARING AND ORDER 07-5-22-11 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 (Davidson307, 06-7307).

 

18. PUBLIC HEARING AND ORDER 07-5-22-12 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 (Davidson308, 06-7308).

 

19. PUBLIC HEARING AND ORDER 07-5-22-13 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 (Fisher, 06-7270).

 

20. 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 (Green2 [Cont'd from 4/17], 06-6896).

 

21. PUBLIC HEARING AND ORDER 07-5-22-14 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).

22. 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 (Heceta Lake, [Cont'd from 4/17], 06-7172).

 

23. PUBLIC HEARING AND ORDER 07-5-22-15 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 (Laird, 06-7268).

 

24. PUBLIC HEARING AND ORDER 07-5-22-16 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 (Lemert, 06-7296).

 

25. 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 (McBee, 06-7138).

 

26. 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 (Mosby1, 06-6248).

 

27. 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 (Purcell, 06-7292).

 

28. PUBLIC HEARING AND ORDER 07-5-22-17 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 (Rennie, 06-7294).

 

29. 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 (Roberts275, 06-7275).

 

30. 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 (Robinson, 06-7277).

 

31. 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 (Rosboro79, 06-7279).

 

32. 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 (Rosboro81, 06-7281).

 

33. 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).

 

34. 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 (Rosboro85, 06-7285).

 

35. 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 (Rosboro87, 06-7287).

 

36. PUBLIC HEARING AND ORDER 07-5-22-18 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 (Schiltz, 06-7140).

 

37. 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 (Schultz, 06-7278).

 

38. PUBLIC HEARING AND ORDER 07-5-8-19 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 (Sea Lion Caves, [Cont'd from 4/17], 06-7221).

 

39. 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 (Sly, [Cont'd from 4/17], 06-7184).

 

40. PUBLIC HEARING AND ORDER 07-5-22-19 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 (Stoneberg1, 06-7350).

 

41. PUBLIC HEARING AND ORDER 07-5-22-20 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 (Stoneberg2, 06-7351).

 

42. PUBLIC HEARING AND ORDER 07-5-22-21 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).

 

43. PUBLIC HEARING AND ORDER 07-5-22-22 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 (Titus, [Cont'd from 4/17], 06-6846).

 

44. 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 (USR Co., 06-7282).

 

45. PUBLIC HEARING AND ORDER 07-5-22-23 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 (Vance, 06-7330).

 

46. 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 (Vandercook1, 06-7205).

 

47. 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 (Vandercook2, 06-7206).

 

48. 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 (Whitaker, 06-7273).

 

Commissioner Stewart asked if there had been any ex parte contacts.

 

Fleenor indicated there is a Measure 37 claim he had been notified of that touches his property.He asked if he should declare a conflict of interest or recuse himself.

 

Vorhes responded that under the circumstances, since he is not the applicant, there is not a rule.Vorhes said if he wanted to, he could recuse himself so there is no appearance of any influence by virtue of the ownership of the property.Vorhes said as long as Fleenor bases his decision on the evidence in the record and on the testimony he hears, Vorhes didnít hear anything that indicates a conflict of interest.

 

Dwyer commented that by Fleenor mentioning the conflict, that it is noted.

 

There were no other conflicts.

 

Kent Howe, Land Management, reported they are providing opportunity for citizens to comment on 48 claims.He indicated for those claims having their first hearing today, they mailed notice to property owners within 1500 feet, between April 25 and May 3 and it meets the code requirements of 20 days in advance of todayís hearing.He added for the claims that have been continued from prior hearings, it was announced at those hearings they would be heard today.He indicated that staff has concluded that the analysis of the pertinent Measure 37 requirements have been summarized in the staff reports and the analysis address the requirements of ownership, date of acquisition, the current zoning, the zoning regulations at the time of the 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 acquisitions.He noted for those claims that did not provide an appraisal, the county administrator has waived the appraisal requirement because they have provided a competent analysis of value reduction.He noted one claimant requested their claim be placed on hold:Sly and they have provided a waiver.He added with the First Baptist Church and Purcell (because they have properties located within the urban growth boundary,) they are also requesting those be placed on hold, waiting for the cities to provide value reduction information.He noted three claims are not valid because no demonstration of reduction in value as been provided:Cone Investments, Green2 and Heceta Lake.He indicated that 17 of the claims are incomplete because they havenít provided enough information necessary to make the claims valid.He added those will be recommended for continuance and they would recommend June 5 for the record to close and June 20 for the continued public hearing.

 

Stewart indicated he read through the supplemental material. He said with regard to the Green2 claim, the attorney asked for an extension of the claim.

 

Commissioner Stewart opened the Public Hearing.

 

First Baptist Church

 

This claim was asked to be put on hold.

 

No one signed up to speak on the claim.

 

Anjun

 

Helmer Kiddal, Pleasant Hill, stated his property adjoins the Anjunís property on the south side.He said he has lived there 60 years and never had any trouble.He didnít think they could put in one acre tract homes.He was opposed to what they were doing.

 

Paul Burgett was opposed to this matter.

 

Cindy Todd said she is the daughter of Laurie Anjun.She said they are not trying to take away from the neighborhood; they are trying to get back their rights.She said Anjun has no immediate plans but wants the rights from when he purchased the property. She said they would work with the neighbors.

 

Bales2

 

Scott Bales, Veneta, stated he and his brother have owned the property since the mid 70ís and there have been several deed changes.He was pleased the recommendation was for adoption.

 

Howe noted on the Bales2 claim, staff noted a typo..He said the date of acquisition is not 1985, but 1975.

 

Batchelor

 

No one signed up to speak on the claim.

 

Brice

 

No one signed up to speak on the claim.

 

Cochran286

 

Mike Farthing, Eugene, agreed with staffís recommendation that this is a valid claim.He said they want to create one additional lot they could have had in 1975 and 1967 when they acquired the property.

 

Cone Investments

 

Barry Smith stated he is the attorney for Cone Investments.He said the application was first heard on April 17 and it was continued so they could enter into a dialogue with staff, to change their initial recommendation. He submitted materials and found that staff maintained the same position.He said Cone still thinks staffís recommendation is based on an incorrect reading of partnership law in this state.He recognized they would have to agree to disagree and unless they want staff to revisit the issue, they are still pursuing their application and filing an appeal if staffís recommendation is carried through.

 

Cowger

 

Bob Cowger, Pleasant Hill, said he wants to break up four one acre parcels.He said he has owned the property since 1972. He noted Attachment B says the recommendation is to adopt the order.He added on Table 1, Attachment A says it is incomplete and they need valuation.He said they have the valuation.He noted there has only been one transaction in the past year into a one acre parcel.He asked the Board to adopt the claim

 

Howe explained the information that was provided was a tax statement from the County regarding the value of the property.He indicated there wasnít any appraisal information and there has not been any comparative market analysis provided by a real estate broker or any information in the record that states the property is worth so much today under the current regulations, versus what the propertyís reduction in value has been as a result of those regulations.He said if Mr. Cowger could testify about the value of some of the surrounding properties and give an indication of what they would be worth to have the four additional dwellings on the property, they could possibly get there.He said there was nothing in the record.

 

MOTION: to hold the record open until June 5 to allow time to meet with staff to get the correct information and to continue the hearing to June 20.

 

Dwyer MOVED.

 

Howe explained there is a question about the date of acquisition.He said it is stated that acquisition was in 1972 and at the time of the acquisition it was zoned AGT.He added in 1972 it would have been AGT 5. He said they would have to review that. He said without having the value reduction information, they didnít think they had a valid claim and they didnít pursue it.†† He added that staff needs to find out if the minimum land division size would have been five acres or one acre.He added if it is five acres, they wouldnít have a valid claim.

 

Fleenor SECONDED.

 

VOTE: 5-0.

 

Cronk

 

Mike Farthing, Eugene, noted staff recommended denial.He requested a continuance.He noted they submitted a valuation analysis on May 17.He said the date of acquisition was 1963.He indicated the staff report said the property was zoned FF.He said he was familiar with the FF20 zone that was implemented in 1972.He couldnít find an FF zone in 1963.He didnít think the property was zoned at the time.

 

MOTION: to continue this matter to June 5 to submit information and to hear the matter again on June 20.

 

Dwyer MOVED, Fleenor SECONDED.

 

VOTE: 5-0.

 

Davidson98

 

Kathryn Dawson stated she is the owner of residential and timber property on Siltcoos Lake that she purchased 21 years ago.She objected to the proposed Davidson Industry claims in the area including all claims between Siltcoos Station Road and Canary Road.

 

Rand Dawson stated he submitted written testimony.He was aware of the parameters.His objection was to all the Davidson claims.He said they want a denial or an extension of time of 60 days to add information.He said the extension wouldnít be to the prejudice of the applicant.He thought they had the authority to make such an extension.He noted there are a variety of neighbors who have objected to this.His concerns were F1 and F2 and thought there were other federal programs involved including the Clean Water Act, the Coastal Zone Management Act, the Safe Water Drinking Act and the drinking water protection area.

 

Sorenson asked if the government regulation in question gets adopted because of a health or safety concern or because of a federal rule or regulation.

 

Howe said local regulations are implementing statewide Goal 4 for forestland and that goal is broad and directed at conservation of the lands for timber harvest and raising forest tree species.He added there is a provision in the rule that also includes why they are conserving the land for the purpose of growing trees.He added they are also protecting wildlife habitat, water and soil.He said there is an indirect relationship between Goal 4 and Lane Countyís Goal 4 forest regulations for water and habitat.He didnít know if F1 would be considered a regulation for the purpose of public health and safety.He thought it was worth looking at.

 

Sorenson noted there was a moratorium on land development in the area.He asked when the specific regulations in the Davison 98 claim were imposed.He asked if they were imposed because of a concern about a specific health or safety issue or if it was part of a general land use regulation that affected all of Lane County.

 

Howe responded that the forest regulations were adopted before the moratorium.He said the forest regulations have density controls so they provide additional coverage for clean water.He added they werenít adopted specifically for that purpose but they have the additional benefit of providing protection.

 

Vorhes explained for ORS 197.352, for Ballot Measure 37, the parameter of exempt regulations says the measure doesnít apply to land use regulations restricting or prohibiting activities for the protection of public health and safety such as fire and building codes, health and sanitation regulations, and pollution control regulations. He said there are some attributes from the forest zone in Goal 4 that talked to qualities other than growing and harvesting trees.He said whether it fits within the category of fire and building codes, or other regulations is where the debate will be.He didnít think there was a direct connection between the forest zone and any of those regulations.

 

Sorenson asked if there are requirements for the protection of land between the territorial limit of Oregonís ocean to the coast range, because federal laws tell the state to have the regulations.

 

Vorhes said they have had conversations about the lands having overlay zones.He said in those cases they recommended that those not be waived so they continue in place.

 

Dawson said what he discussed with this claim he wanted incorporated with all of the Davidson claims.

 

Fleenor asked if there was a reduction in value.

 

Howe responded that there are nine Davidson claims and this claim was not within the coastal resources management plan area.

 

Vorhes said that value reduction may assess the process or the need for permitting for those things to occur, but if it would prohibit any development of the property, it might be unlikely. He thought in these cases the applicant had already addressed the constraints of the land use.He said it was part of the analysis of value reduction.

 

Mike Reeder, Eugene, stated he represented the Davidson Industries on all nine of their claims.He wanted his comments to be addressed to all nine of their claims.He said federal regulations under Measure 37 are exempt.He said the state laws that implement the federal regulations are also exempt to the extent that state laws exceed federal regulations.He believed the regulations were not exempt.He recalled in 1973 Senate Bill 100 was passed that adopted the statewide planning goals and Goal 4 is regulated in Lane County under F1 and F2 zoning standards.He said they are not health and safety issues contemplated under Measure 37.He wanted the Board to consider the nine claims based on the record before them and make a decision today.He recommended approving the claims pursuant to the staffís memorandums.

 

Sorenson asked if there was feedback on the issue.He commented that if there is a federal law involved, then the Measure 37 claim is invalid.He said the federal law involved is the Coastal Zone Management Act and it requires states to make plans on how they are going to protect their coastline.

 

Reeder said they had their planning consultant review the Lane County and State of Oregon Land Use issues.He didnít know if he looked at the claims with regard to the coastal issues.He didnít believe there are any specific regulations that apply to these claims.

 

Sorenson asked if there were any other cases that raise the connection between a federal law, the coastal zone or any other law that requires the state to make a plan for how they are going to protect a particular resource and the Oregon land use law that is not specifically dependent upon a federal law for its authority.

 

Reeder wasnít aware of any other cases.

 

Davidson269

 

No one signed up to speak on the claim..

 

Davidson301

 

No one signed up to speak on the claim.

 

Davidson302

 

Mike Reeder stated with regard to the Davidson302 claim, they have provided the deeds that were noted to be missing.He also included a letter from Jim Mann and copies of deeds.He said the application should be complete.He asked the Board to approve the claim based on the supplemental information.

 

Stewart noted this claim was on the sheet as incomplete.He asked if staff reviewed the additional information.

 

Howe indicated he didnít have the opportunity to review the claim or distribute the copies to the Board.†† He recommended moving this claim.

 

MOTION: to keep the record open until June 5 for the application to provide additional information to staff and continue the public hearing to June 20.

 

Fleenor MOVED, Green SECONDED.

 

VOTE: 4-0 (Dwyer out of room).

 

Davidson304

 

No one signed up to speak on the claim.

 

Davidson305

 

No one signed up to speak on the claim.

 

Davidson306

 

Donald Landstrum, Mapleton, said they have no objection to a residence on the property but he objected to a recreational vehicle park.He added this was Point Terrace and it had historical significance.

 

Reeder responded that the claimant was unsure as to what they want to do with the property.

 

Vorhes explained the order only speaks to the dwelling and division standards of the applicable zone.He said when there is a request for other kinds of uses in a zone, they will look to the appraisal to raise that as a basis for their value reduction.

 

Howe noted on their claim form they specified they wanted to develop the property with up to four single residential lots of various sizes allowing for multiple units per lot of either separate or attached dwellings.He stated there was no mention of an RV park.

 

Landstrum objected to four dwellings on the property.

 

Davidson307

 

No one signed up to speak on the claim.

 

Davidson308

 

No one signed up to speak on the claim.

 

Fisher

No one signed up to speak on the claim.

 

Green2

 

Barry Smith, Springfield, indicated this was the third time the Green2 application had been to a hearing.He was recently hired by the family and he submitted documents after the last public hearing.He requested another continuance.He said Eddie Chernicki is still the owner of the property and he acquired the property in the mid-70ís when there were less restrictive regulations in place. He added during the early 1990ís the BLM approached him, wanting him to engage in some transactions and they executed deeds that created illegal lots.He noted during the mid to late 90ís Chernicki transferred partial interests in tax lot 1400 to family members. He said that was for estate planning purposes.He added there were about ten deeds where he gave away fractional interest of tax lot 1400.He indicated that he gave away all interest in tax lot 1400 but acquired it later.He said Chernicki never gave away his entire interest in any of the other lax lots.He indicated in the comments he submitted after the last hearing, Chernicki retained an ownership interest because he never intended to go off the title. He noted the other tax lots were part of the same acquisition in the 70ís and he had never lost an ownership interest for any period of time.He said they werenít given a reason why they denied the Measure 37 relief on the other tax lots.

 

Fleenor asked if a continuance would allow staff to come to a different conclusion.

 

Howe indicated the claim that was submitted was for tax lot 1400 and the claim was a timely claim, submitted on November 3.He noted there hadnít been a claim submitted for any of the other tax lots.He said if the claimant is interested in filing a Measure 37 claim on additional properties, he would need to comply with the regulations that are currently in effect.He noted under the current regulations, he would need to make an application for Lane County, be denied and he might be able to make a Measure 37 claim.He added he would need to make a Measure 37 claim with the state on the additional properties.He said he could only make the claim to the state after he made an application to Lane County and have been denied.He said with lot 1400, nothing had been provided and it didnít go out of ownership of Chernicki..

 

Smith said the claim that was filed last fall identified tax lot 1400.He thought it was reasonable to add adjacent tax lots under common current ownership.He thought they could possibly put all the properties together and they would be part of tax lot 1400.

 

Stewart stated there needed to be a clear path because they have a deed in 1998 where it states Chernicki conveys the whole thing to Steve and Nicole Green.He added in 2002 they recognized there was a mistake, but it was changed to 100% for improvements and 25% individual for land and Eddie retains 50%.

 

Smith said the deed that caused Chernicki to give up his property was limited to only 23 out of 80 acres.He said if it was a mistake in transaction, they could get it corrected.He indicated the 1998 transaction didnít apply to all of the property.

 

Green asked Smith what he would produce that would correct the recommendation.

 

Smith wanted to talk with staff to see if they could discuss tax lot 1403, 1407 and 1408.

He wanted to provide law showing the other laws should be addressed.

 

Fleenor asked if the applicant demonstrated further evidence that this would change their mind if they were to bring information back in the future.

 

Howe responded that in their original application, it provides a legal lot determination for 1400, 1402, and 1500.He said it raises the question and provides a map that includes those as well.He thought there was some validity into looking at this more, even though the applicant stated in writing tax lot 1400 is what they were basing their claim on.He said they would need additional deeds for the other tax lots.

 

MOTION: to hold the record open until June 5, allowing the applicant to provide additional information and continuing the public hearing to June 20.

 

Fleenor MOVED. Sorenson SECONDED.

 

Sorenson asked what information would be provided.

 

Smith said he thought there was enough in the file to run through the criteria.

 

Howe explained the applicant is Nicole and Steve Green who are owners of tax lot 1400 and there are other owners for tax lots 1402 and 1403. He did not know who the property owners are.He indicated the information on the ownership and deed information is complicated.

 

Smith stated they submitted a statement from Eddie Chernicki. He said Chernicki is an applicant and he agreed with the application.

 

Vorhes said it could include properties and clear indication of ownership of all properties, on the subject of the application and the value reduction analysis.He said there could be conclusions on certain tax lots, but not on others.

 

Dwyer asked if any other tax lots had been sold.

 

Smith said the property was split a number of time in the 90ís.

 

VOTE: 5-0.

 

Steve Green said they wanted to sell half of the 84 acres to the BLM for a bird refuge.He noted the BLM took over and subdivided the 84 acres.He allowed the County and BLM to do everything.He found out the lots were divided illegally in 1995.He tried to clean them up. He said only one family owns the land and it is on the deed.

 

Jim Dodson stated this claim has problems and recommended the Board not approve it.He said they are trying to add the father who was never an applicant originally.He thought the claim was only for lot 1400.

 

Harwood

 

Shirley Harwood stated her concern was a housing development.She noted in 2003 they got a guardianship for the in-laws and no conservator was established.She said since then her sister-in-law has the power of attorney.She noted at the time of the guardianship, the father was deemed incapacitated.She thought the power of attorney is after the fact to the guardianship.She did not think the power of attorney was legal.

 

Fleenor asked what happed to tax lot 2440 and if she could continue with a valuation loss.

 

Vorhes responded the order deals with the whole claim.He said if the Board wanted to put it on hold they could.He said it was presented with reductions for two tax lots and that was the reason for the order.He added it only applies where there is value.

 

Debbie Petee, Junction City, questioned if Harwood has a legal right to even ask for this.She talked to Harwood and asked what was happening.She said he had no idea that this was happening and gave no consent to Rhonda to proceed with this.

 

Bill Kloos stated he prepared the application by request of Rhonda, who holds the power of attorney.He said with tax lot 2400, they could let it go out of the claim.He said it is an existing mobile home park and the only issue with the claim is that the power of attorney is not valid.He wanted to look at the power of attorney and wanted to have this rolled.

 

MOTION: to hold the record open until June 5, allowing the applicant to provide additional information and continuing the public hearing to June 20.

 

Dwyer MOVED, Green SECONDED.

 

VOTE: 5-0.

 

Rhonda Harwood Schaefer stated she has the power of attorney for both parents and she has had access to all funds.She indicated this power of attorney was prepared by their attorney and it is legal. She said both parents had a mental exam that was witnessed by affidavit.She did what she thought what her parents wanted her to do.She thought her mother would be in favor of going forward.She indicated her father wants it to go forward.She noted guardianship was only a health care decision.

 

Heceta Lake

 

No one signed up to speak on the claim.

 

Laird

 

No one signed up to speak on the claim.

 

Lemert

 

Frederick Batson said the claim involves four parcels.He said they were acquired in 1967, 1969 and 1975.He submitted a valuation analysis and staff report and was told the claim was valid.He said the reason staff indicated the waiver was to 1998 was because the Lemerts put in a family limited partnership with an expiration.He said it was not a usual partnership and pursuant to agreement, the property reverts back to the parents and the same individuals continue to have the right whether it is sold.He said under Measure 37, Lemert never gave up his interest and the waiver should be the original date of acquisition. He found what is discussed in real property is that interest in property could take advantage of any right but less than title.He said Lemert retained the power and they think in this situation it should be to the original acquisition date.

 

Lee Kersten, Eugene, represented Lone Pine. He said they are opposed.They wanted County Counsel to review the partnership agreement.He said it is their position that they donít get to Batsonís argument until they can show control.He said they object to the valuation.He said with valuation it is hard to show that any aggregate operation during the lifetime of a business could show a higher presence than agriculture.

 

Stewart thought once gravel was extracted, it has no value left in the property.

 

Kersten said they presented a comp value on real estate.

 

Batson said with 75 percent of control, they could approve the sale.He said the original people who bought the property would approve the property under a partnership agreement.He didnít think it was a reasonable argument to use the property as residential or aggregate ahead of agriculture.He said the valuations assume the depth of mining. He said they would reject any claims by Kersten.

 

McBee

 

No one signed up to speak on the claim.

 

Mosby1

 

Mark Haneberg, Ashland, stated their demand for compensation was complete.He indicated it gave the Board an opportunity to remove the land use regulations.He said the Mosbyís commissioned a study of land use. He said since the restrictions were placed on the property there was a loss of value.He indicated his clients spent money preparing title reports and showing ownership of the current owners.He noted the Mosbyís came to the area in 1853.He indicated the Mosbyís want compensation made available under Measure 37.

 

Green stated they were denied the claim because of ownership, valuation and the fee.He stated the applicants have not submitted a fee.

 

Haneberg didnít think there was a rationale for a fee because Measure 37 doesnít require one.

 

Green stated Lane County requires a fee and that is why the claim is being denied.He indicated that 35 counties each do their claims different with a different outcome.He said a fee is required, it was noticed and people are aware of the fee.He stated the Board canít further process the claim unless they complete the fee requirement.

 

Haneberg stated if the Board denies this, he would be taking this to circuit court.

 

Dwyer stated the Courts charge a fee to administer justice.He said Measure 37 doesnít require a fee, there is a charge for administration that is deemed to be reasonable.He said without the fee this claim would not have a chance of prevailing.He thought Haneberg was doing his client a disservice.

 

Haneberg stated the state does not charge a fee to file a claim.

 

Stewart thought to pay someone consideration when there is not enough information to what the compensation level is, is not correct.He said compensation is not an option when they have not met any of Lane Countyís requirements. He wanted to see the Mosby family trust.He said when she left the property to the niece, there might be restrictions and they need to be assured that what they are asking for could be done.

 

Haneberg said Measure 37 doesnít require a quasi application or hypothetical use.He said the valuation approach is flawed and other land regulations would let it sell at a premium.He said the proof of difference is a presumption.He said lands that are restricted are not worth as much as unrestricted lands.

 

MOTION: to hold the record open to May 7, 2007, to allow the legislation to come to some decision.

 

Fleenor MOVED, Dwyer SECONDED.

 

Dwyer said he doesnít want to deny the claim. He wanted to give the applicant time to get through this.He thought maybe the claimant would have a change of heart and decide to pay the claim and not be at risk.

 

Sorenson asked if the 180 days had run.

 

Haneberg said the 180 days had already expired on January 1, 2007.He said they are waiting on the legislature for resolution.He indicated if the state ends the relief, they wonít have anything.He wanted to wait for things to develop.

 

Vorhes stated he wasnít sure HB 3546 covers the claim because it came in before the rush. He said the house bill was designed for claims after November 1 and this was filed in July 2006.He added it is not covered by the additional time period.He said part of the problem is getting information and the lack of the fee.He said given the limitations of additional time by the legislation, putting this one out will not be covered by the house bill.He thought the Board could act on this.

 

Fleenor withdrew his motion.Dwyer withdrew his second.

 

Green commented that they submitted the application and left the Board to its own devices.He said in doing that, what the applicant failed to do was provide a completed application.He said it requires valuation and the Board had been consistent and more flexible than most counties asking for a market analysis and reasonable application fee.He didnít want to give the applicant more time.

 

Purcell

 

The claim was pulled.

 

Rennie

 

Boyd Iverson, for Bill Rennie, said he didnít get a copy of the order or the notice.

 

Roberts275

 

Mike Evans, stated his claim was recommended for denial.He called Kent Howe and left a message to see if they could clean up the situation.He said between the loss of value and what the regulation created there was a loss of value.He hoped the information was adequate.He requested approval of the waiver.

 

Dwyer read information submitted by Evans and said it connected things.Dwyer indicated that staff recommended approving it as it is a valid claim.

 

Robinson

 

Randall Rasher stated his property surrounds the Robinson property.He thought it would devalue his property to have homes built because of the wetlands. He was opposed to it.He said that Robinson acquired the property in 1974 and sold it to an LLC.He indicated the corporation owned the property since the enactment of Measure 37 and it was zoned F2.

 

Stewart noted the recommendation was incomplete and the claim was being recommended for denial.

 

Mike Reeder stated he represents Cecil Robinson.He stated the issue was valuation.He said the staff memo talked about valuation and the comparatives were not sufficient.He said they have a comparative market analysis that would compare the entire property.He said if the Board chooses not approving the 30 acres, there is a valid claim for the 15 acres by Robinson as an individual and the information he submitted yesterday has that.He said they connected the lots pursuant to staffís request.He said the Board had looked at when the property transferred into a single member LLC and they said it is a transfer to a new owner.He noted Robinson acquired the property in 1974 and in 1979 he got a partition.Reeder said Robinson owned two legal lots.One lot has a house and one is 30 acres that is underdeveloped.He noted that ODOT would not allow Robinson to get an access permit for the 30 acres. Reeder said Robinson went to an attorney and tried to reason with ODOT to give him a permit.Reeder said ODOT wouldnít budge and the attorney suggested a new entity, an LLC that would purpose to receive a right he had.Reeder provided an analysis as to why the ORS statute speaks to LLCís and why a transfer into a single LLC is not for a Measure 37 claim.He stated that Robinson has the entire control of the LLC.Reeder said Robinson is a member and pays the taxes.Reeder said Robinson was trying to receive rights when he acquired the property.He asked the Board to review this.

 

Fleenor asked if this should be denied.

 

Vorhes stated that information was hand delivered and he reviewed it. He indicated the planning staff did not review it.He looked at the letter and it made sense.He noted there was similar ownership in the past. Vorhes said they could end up with a valuation analysis that is adequate to address including the legal entity. He said it might benefit the current owner.He thought the Board could waive to when the LLC was acquired.

 

MOTION: to keep the record open to June 5 and continue the public hearing to June 20.

 

Fleenor MOVED, Dwyer SECONDED.

 

Reeder asked if the Board denies the claim to the LLC, if they could have approval for the 15 acre parcel to bifurcate the claim.He said he filed two claims at the state.

 

VOTE: 5-0.

 

Rosboro79

 

Mike Reeder stated he represented Rosboro on all claims, similar to Robinson.He said the blanket effect of the LLC is Rosboro was a general partnership in the 40ís and they acquired property.He asked for the Board to hear the testimony and to roll to June 20 all of the Rosboro claims. He noted the properties were acquired in the 40í and 50ís and in 1995 the lumber companyís general partnership converted the form of entity to a LLC.He said that the Rosboro partnership became a different form, not a different entity.He noted in Measure 37, in the case of Rosboro, they are not new owners.He provided a statute as information about the conversion form.He noted the staff report indicates the Rosboro Lumber Company LLC as a new owner.He said it didnít consider Rosboro Company and LLC as a different entity and neither did the statute he sighted.He said when there is a need to transfer title to a company owned by Rosboro to some other entity, they do it in a different manner, not by Rosboro LLC.He indicated in 1998 there were warranty deeds that show it. He included Articles of Incorporation of the organization of the creation of Rosboro that shows the conversion, not a change of entity.

 

Fleenor asked when a transfer of ownership is an LLC if it could not be a Measure 37 claim.

 

Reeder responded that it is now a general partner to LLC, not a new owner.

 

Dwyer indicated in the 93 legislation that LLCís were a form of incorporation as a way to protect entities to limit liability.

 

Reeder agreed. He didnít think it has a distinction with Measure 37.He said Rosboro Lumber Company is the same.He provided other supplemental information.

 

Roseboro79

 

Dan Brenner stated he lives on the property across from Rosboro.He was worried about the valuation of the properties in Nimrod.He thought there would be an encumbrance to the neighborhood.

 

Eric Bergland stated he lives adjacent to Rosboro79.He commented the paperwork in their claim was outrageous.He stated there was no infrastructure to support the number of houses they want.He said Rosboro closed the bridge for safety reasons.He hoped the legislation would bring clarity as to the valuation of the properties.He supported staffís findings on this and hoped the Board denies the claim.

 

Rosboro81

 

Stewart said Reeder was asking for more time for Rosboro claims.

 

Roseboro83

 

George Fisher requested the Board consider just compensation in lieu of restrictive land use to the land bordered east and west in the McKenzie River area because it is sensitive.

 

Roseboro85

 

No one signed up to speak on the claim

 

Roseboro87

 

MOTION: to keep the record open to June 5 and a continued public hearing for Rosboro 79, 81, 83 and 87,

 

Dwyer MOVED.Fleenor SECONDED.

 

VOTE: 5-0.

 

Schlitz

 

No one signed up to speak on the claim.

 

Schultz

 

MOTION: to leave the record open to June 5 and continue the public hearing on June 20 for staff to evaluate additional information.

 

Dwyer MOVED, Fleenor SECONDED.

 

Harold Folts, Eugene, brought in a copy of the trust, set up specifically for estate planning purposes.

 

VOTE: 5-0.

 

Sea Lion Caves

 

Andy Slosher, Austin, Texas, stated this case was continued from May 8. They concurred with staffís recommendation.He requested the Board adopt the order today. He explained that Sea Lion Caves, Inc. has owned the property since 1932 and had owned it almost 40 years before SB 100.He said they have been paying taxes and have been a significant employer in the Florence, Oregon area for many years. He said they had many people prepare a Measure 37 waiver application that was reviewed by Land Management.He said there is no present intent to develop the property.He said the families who own want to preserve their waiver rights to do some type of improvements at a later date.He said even if the Board approves the waiver, the families know they will need state approval.

 

Sorenson asked how the new legislation affected the deadline for consideration of this claim.

 

Howe responded the extension the legislation granted with HB 3546 applies to the applications that were received in November and December of last year.He indicated this application was made on December 1 and the extension applies to this application for the purposes of determining whether it is a valid claim.

 

Fleenor asked if the opposition could submit testimony that would alter their decision.

 

Howe stated it comes down to date of acquisition and in this they are going back to the early 70ís for the family.He said it appears to be a valid claim.

 

Sly

 

This claim was asked to be put on hold.

 

Sorenson asked if they were putting the items on hold for a date certain for a status report.

 

Howe said he would bring a chart on June 20 they could discuss.He added some of the claims have asked to be put on hold indefinitely.

 

Stoneberg1

 

No one signed up to speak on the claim.

 

Stonebert2

 

No one signed up to speak on the claim..

 

Suess72

 

Howe indicated he had a conversation with Bill Kloos who represented the Suess claim. He said they requested a continuance.

 

MOTION: to leave the record open to June 5 and continue the public hearing to June 20 pursuant to the applicantís request.

 

Dwyer MOVED, Fleenor SECONDED.

 

Howe explained the quit claim deed information takes the claim back to1970 and the attorney representing the claimant thinks they can provide information to get the claim back to 1965 with additional deed information and requested they leave the record open.

 

VOTE: 5-0.

 

Bob Suess, Sr. stated in 1947 the land was proposed for a subdivision and a sewer district.He purchased the property in 1965 and later it was assigned to Scott & Suess Company.He added in 1966 he purchased his partnerís interest on a ten year buy out.He noted in 1970 he deeded that over to him.He indicated the original document reads H. Glenn Scott and C. Robert Suess.He indicated he lived in Washington State and it was a partnership and the wives were automatically included.He said they didnít have to be written into the deed.He indicated that is why Faye Scott was assigned off.He noted in 1966 they changed the company from Scott & Suess to Suess Company.

 

Linda Niemi, Blanton Heights, spoke on valuation.She said his claim states there has been a valuation reduction from $8.7 million to $1.2 million as a result of restrictive land use regulations.She disagreed with the valuation.She indicated his land was limited in its potential for development. She said in 1989 he submitted a plan to build 24 homes on five acre lots and he was denied.She added he was also denied in 1992 and the state land use board denied his claim in August 1993.She said there was no evidence of comparable properties. She asked for a denial of the claim and wanted it to be put on hold.

 

Kim Oí Day stated she is from Bill Kloos, office.She asked to hold the record open to give additional time to staff and to respond to the opposition.

 

Suess said the opposition doesnít challenge the ownership.He asked the Board to grant the waiver and give them an opportunity to go forward with plans for clustered development..He indicated they are surrounded by a development.

 

Titus

 

No one signed up to speak on the claim.

 

USR Company

 

Mike Reeder, Eugene, stated he represented USR Company, LLC, a singly owned LLC owned by Rosboro Lumber Company.He stated the staff report mentions there wasnít any deeds from Rosboro LLC to USR, LLC and he will provide that to staff.He said the issue is a first impression for the Board, where they are talking about the family of ownership.He said Rosboro is being converted to an LLC and that is not a new owner.He said the deed went from Roseboro Lumber Company, a general partnership to USR Company, LLC.He added it is owned solely by Rosboro Lumber Company, LLC.

 

MOTION: to keep the record open to July 5, with deliberations on June 20 pursuant to the information that staff hasnít had a chance to review it.

 

Dwyer MOVED, Sorenson SECONDED

 

VOTE: 5-0.

 

Vance

 

Dona Cork agreed with the recommendation.

 

Vandercook1

 

Vandercook2

 

Nancy Vandercook stated that she and her brother are the claimants.She indicated that an attorney is helping them.She thought there was a gap in information between her and the planner.She asked for a continuance.

 

MOTION: to leave the record open to June 12 with a public hearing on June 20.

 

Dwyer MOVED, Fleenor SECONDED.

 

VOTE: 5-0.

 

Whitaker

 

Mike Reeder represented the Whitaker property acquired by the claimant in 1963.He said it is 19 acres and there are two tax lots in question, tax lot 2000 and 2500.He submitted supplemental information. He indicated one of the tax lots in question, 7.5 acres is in the city limits of Coburg and he didnít include that portion of the tax lot in the claim.His comparative market analysis shows that.

 

MOTION: to leave the record open to June 5, with a public hearing on June 20.

 

Dwyer MOVED, Fleenor SECONDED.

 

VOTE: 5-0.

 

McBee

 

Mike Farthing stated Mr.McBee contacted him. He was confused as to what was required of him and he requested a continuance to June 5 to supplement the record and continuance of the public hearing to June 20.

 

MOTION: to leave the record open to June 5, with a public hearing on June 20, pursuant to the applicantís request.

 

Dwyer MOVED, Fleenor SECONDED.

 

VOTE: 5-0;

 

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

 

MOTION: to approve Anjun, Bales, Brice, Cochran286, Davidson98, Davidson269, Davidson301, Davidson304, Davidson305, Davidson306, Davidson307, Davidson308, Fisher, Laird, Lemert, Rennie, Roberts275, Schlitz, Sea Lion Caves, Stoneberg1, Stoneberg2, Titus, and Vance.

 

Green MOVED, Dwyer SECONDED.

 

Sorenson wanted to take a separate vote on the Sea Lion Caves and Lemert.

 

Green amended his motion for Sorensonís request.

 

Dwyer amended his second.

 

Howe said with Roberts275, they donít have an order.He wanted to continue the record for June 5.

 

MOTION to leave the record open to June 5, with a public hearing on June 20 for Roberts 275.

 

Green MOVED, Dwyer SECONDED.

 

VOTE; 5-0.

 

MOTION: to deny the claim for Batchelor and Cone Investments.

 

Green MOVED, Fleenor SECONDED.

 

VOTE: 5-0.

 

MOTION: to approve staffís recommendation for denial for Heceta Lake.

 

Fleenor MOVED, Dwyer SECONDED.

 

VOTE: 5-0.

 

MOTION: to accept staffís recommendation for denial for Mosby1.

 

Fleenor MOVED, Dwyer SECONDED.

 

With regard to Mosby1, Sorenson said he would support denying the claim.He said it was due to the failure of the applicant to provide the information necessary to make a decision, not his failure to pay the fee.

 

Fleenor modified his motion to state he would accept staffís recommendation based on the lack of ownership and valuation for Mosby1.

 

Dwyer amended his second. Dwyer thought it was offensive that Mosby1 didnít pay the filing fee.

 

With regard to the amended motion Green thought Sorensonís motion was more accurate, they failed to provide information necessary.He added part of the information is ownership, valuation and the fee.He said Sorensonís motion didnít call out the fee.

 

Dwyer supported Sorensonís recommendation.

 

Fleenor accepted staffís recommendation based on the applicant not providing enough information.

 

Sorenson didnít recommend the issue of the fee.

 

VOTE: 5-0.

 

Dwyer found it offensive that someone would apply for a Measure 37 claim and not provide information, not pay the fee and threaten the Board they would sue.

 

MOTION: to approve Lemert and Sea Lion Caves as recommended by staff.

 

Green MOVED, Dwyer SECONDED.

 

Sorenson voted no because of procedural reasons.He said the Board has the right to defer the consideration of the claims and if there are people who want to submit additional information, they have the authority to do it.

 

With regard to the Sea Lion Cave, Fleenor said they requested the applicant allow for additional time for the opposition to provide testimony.He said they were willing to do that and he thinks with the Sea Lion Caves they had provided the opposition with sufficient opportunity.He didnít see any question with the three criteria to judge it on.With regard to Lemert, he said there were three criteria that were met and he didnít think anything would change.

 

Dwyer said the Sea Lion Caves exercised their rights under Ballot Measure 37 so they donít preclude any future plans that may or may not develop.With regard to Lemert, he thought the claim was offensive as it would change the whole character of the area.He said he has to obey the law.

 

VOTE: 4-1 (Sorenson dissenting).

 

Sorenson asked if staff could follow up on having a Measure 37 wrap-up in the spring of next year so all of the questions could be answered.

 

Howe said the chart he referred to showed all the claims placed on hold for June 5.He said he would get a date in April from the Agenda Team for those to be continued to.

 

Sorenson asked if there would be any more Measure 37 claims between June 2007 and April 2008.

 

Howe didnít know with pending legislation and its referral to the voters. He said they had received zero claims since December 2.He commented the referral vote could result in claims coming in after the vote occurs.

 

There being no further business, Commissioner Stewart adjourned the meeting at 2:55 p.m.

 

 

Melissa Zimmer

Recording Secretary