BOARD OF COMMISSIONERS'
June 18, 2008
Commissioners’ Conference Room
Commissioner Faye Stewart presided with Commissioners Bill Dwyer, Bill Fleenor Bobby Green, Sr., and Peter Sorenson present. County Administrator Jeff Spartz, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.
17. PUBLIC HEARINGS
a. PUBLIC HEARING AND FINAL ORDER 08-6-18-17/In the Matter of Renaming Dybbuks Way, a Public Road, to Dorena Mountain Road (20-02-34-21-02-03).
Mike Jackson, Land Management, explained that this is a road naming. He said his office received an application for the renaming per Lane Manual 15.020. He indicated that a public hearing is necessary when there are less than 100 percent of the owners of the abutting properties in favor. He said the reason for the change is that the street is difficult to spell and the new name would be more geographically representative of the area. He said they are asking for the name Dorena Mountain Road. He noted that proper notice had been posted and served.
Commissioner Stewart opened the Public Hearing. There being no one signed up to speak, he closed the Public Hearing.
MOTION: to approve 08-6-18-17.
Dwyer MOVED, Fleenor SECONDED.
b. PUBLIC HEARING AND ORDER 08-6-18-18/In the Matter of Adopting Supplemental Findings to Ordinance No. PA 1235 Amending the Rural Comprehensive Plan to Redesignate Land From “Forest” to “Marginal Land” and Rezoning That Land From “F-2/Impacted Forest Lands” to “ML/Marginal Lands” (file PA 04-6308; Dennis)
Jerry Kendall, Land Management, reported that Thom Lanfear originally staffed this application. He recalled the Board approved the marginal lands application on November 29, 2006 via Ordinance PA 1235. He said it was similar to the Ogle matter the Board heard in February 2008. He explained that this marginal lands case came through the appeals process first through LUBA that affirmed the County on all counts and to the Court of Appeals that found identical as to the Ogle case that the County’s findings utilized timber prices of 1983 for the 1991 version of ORS 197.247(1)(a). He indicated this claim was remanded on that item. He said statistics pre 1983 were nowhere to be found in the record for the Dennis application. He said the applicant obtained Marc Setchko, the consulting forester, to enter the data into the record attached to this order. He said Setchko found that the average gross income was below $10,000 for all five years and they only needed to do three of the five years. He indicated that gross income ranged from a low of $5,740 annual in 1982 to $8,167 annual in 1980. Kendall indicated the calculations are attached and staff is recommending with the current record that the Board adopt the supplemental findings by this order.
Stewart said this is a decision subject to plan amendment and rezoning criteria sited in the agenda cover memo and attachments and evidence and testimony must be directed toward approval criteria and failure to raise an issue to enable a response may preclude an appeal to LUBA. He indicated that now is the opportunity for submission of information into the record and only persons who qualify as a party may appeal a decision to LUBA.
Stewart asked if there were any ex parte contacts.
There were none.
Commissioner Stewart opened the Public Hearing.
Steve Cornacchia, Eugene, represented the applicant. He said they concur with staff and they believe the Board has everything in front of them to render a decision of approval in the matter. He explained the process for these types of applications is clear. He stated that each party is given an opportunity to put on evidence and rebut the evidence throughout the process. He indicated for this case, the applicants and the opponents have had three opportunities to present information and they have the responsibility by law to put forward their evidence and to provide reasoning for why the approval should be supported. He explained that the way the law works is they have to raise the issue or it is waived. He noted in this situation, all the issues were raised at the Board level. He said if issues weren’t previously raised, they can’t be brought in later to be argued. He added if either party is not happy with the Board’s findings, they can appeal to LUBA. He noted as an appellant, the Board of Appeals and the statutes demand they set out every argument before them and every argument that is not set out, is lost.. He said LUBA looks at both briefs and renders a decision. He added if one of the parties is not happy with that decision they could appeal it to the Court of Appeals and that happened in this case. He noted in this case, LUBA affirmed the Board’s decision. He said LUBA said the Board of Commissioners did everything correct. He added that the Court of Appeals said the County did everything correct except for one item. He noted in one of the tests when the calculations were made for forest capability, the County affirmed the earlier direction to all applicants that they use 1983 log prices. He said the 1983 log prices were used by the forester of the applicant to determine forest capability. He indicated LUBA and the Court of Appeals said Setchko’s methodology was correct and appropriate except he cannot use 1983 log prices. Cornacchia said both bodies could have remanded the decision or to reverse it. He said in this case LUBA did neither, they affirmed the Board’s decision and said it was right and sent it back to the Board for final disposition.
Cornacchia explained that the Court of Appeals said the Board was wrong and they remanded that one issue for further deliberations. He said if the Board is going to approve it, they have to approve it by using the methodology of five years of log prices. He indicated that the Court of Appeals’ direction to him and to the Board is that they must use the five year log prices and that was the exact argument raised by the opponents. He said in response they went back to Setchko, using 1978 to 1982 log prices. He stated they were confident the numbers were going to come out to meet the test because in their original application, the numbers they were using for the 1983 log prices were in the $5,000 range. Cornacchia added that in his letter, Setchko found: in 1978 the projected gross revenue would have been $6,210 per year; using 1979 prices, $7,800 per year and using 1980 prices, the amount would be $8,167. He noted in 1981 it was $7,815 and in 1982 the amount was $5,740. He said using the process and methodology that has been set by law by the Court of Appeals, they have to prove that they have used the five years of data. He indicated the property has a bare hillside with two areas of forested vegetation and at the top of the property there is a mixture of Douglas fir and white oak. He said in looking at the property, it had been a long time since anything had grown. He indicated the soils are predominately non-resource and they can’t grow crops. He commented that the best use of the land from an agricultural standpoint is grazing of cattle, but it hadn’t showed enough to support cows to render the $20,000 per year requirement for the agricultural site. He recalled on the one issue that is the subject for this hearing (1983 log prices or 1978 through 1982 log prices) they have fulfilled their burden and did what they had to by law. He stated that rendering a decision of approval would be lawful. He said they believe there is no evidence that could possibly refute what he said.
Martin Dreysbach, Fall Creek, said when this was initially brought up to the Planning Commission, they voted against it and he thought the Board should have followed what the Planning Commission recommended then and follow their recommendation for this hearing.
Jim Just, Goal 1 Coalition, disagreed with the applicant’s representative. He commented that the “fixed goal post rule” doesn’t apply to plan amendments. He indicated there has been a change in law since this was last brought before the Board. He said the Board is required by law to apply the law that was in effect at the time the petition was made. He said there was case law in Jackson County, in which there was the same situation. He noted that LUBA in the second case held that the plan amendments were not subject to the goal post rule and the local governing body is required to apply the law in effect at the time that decision was made. He thinks the law is clear and the law in this case governs the way that the forest inventory and the forest productive analysis are conducted. He added there were problems with the old rule and in this case the productivity test has to be redone in compliance with the new rule. He asked the Board to deny this claim.
Johnny Watson, Fall Creek, resubmitted three letters he had previous submitted. He wanted to reopen the file and not discuss just the narrow focus.
Tim McMahen, Fall Creek, said the property is surrounded by timber. He took pictures and said that one picture shows a clear cut.
T. Chomyn, Fall Creek, said her property is against the Dennis property. She commented that the hill is bald because it had been logged and there had been no attempt to re-tree the property. She asked the Board to look at the new administrative rule and issues and why the Planning Commission originally asked the Board of Commissioners to deny the 2006 case.
Vorhes noted that this is a remanded case that went to the Court of Appeals and they considered the issues and sent this back on the one issue. He wasn’t sure whatever new rules or statutes that had been adopted apply to this case because of the other aspects. He didn’t get to see the cases on this. He noted the issues about the analysis under the Goal 4 Rule were involved. He said there are issues involved in reopening areas of litigation that had been settled. He said when dealing with a matter of remand, the focus is different and it is not just the matter of new rules that have changed. He said they can’t pull in any new rules or information that might have applied initially in the action that might have lead to a different result or law. He said the remand is only on one issue. He noted there are situations where a remand issue does implicate conclusions reached in other areas of an application. He stated that making the case for having the ability in the scope of this remand to allow more evidence to come in on other criteria becomes more problematic.
Sorenson asked if the fixed goal post rule doesn’t apply to this because it is a plan amendment.
Vorhes said in the context of the application, when it was first submitted, the rule talked about reaching a final decision on that application while it is being processed by the local government. He noted in that context, a plan amendment is not within the parameters of what the rule is generally applicable to. He added for purposes of this case, (prior to this Board reaching a final decision and adopting the ordinance) it might be that rule or statutory changes could have affected the analysis and brought about a different decision had their claim occurred during that period of time. He said that once they reach a final decision and it gets appealed, it becomes a different landscape than the original application. He didn’t think the new OAR applied to this case. He noted the Goal 4 Rule was an issue in this appeal
Sorenson asked what Vorhes recommended.
Vorhes said he did not read the letter or rule that analyzed the cases that might lead to a different conclusion. He commented that there is significant risk of reopening the case and going into other sources that were not initially in play in this application. He added they adopted an ordinance that reached a conclusion and rezoned the property. He said without his reading the rule, he couldn’t give solid legal advice but he urged the Board not to take action based on his impression. He thought the Board should listen to the applicant’s rebuttal and then see how they want to proceed.
Dwyer thought the fixed goal post rule would apply, but he was not in favor of this application. He said there can’t be a law made that affects thinks retroactively. He added that they need to deal with the issue on whether or not they agree with LUBA that this is fixable or not.
Cornacchia agreed that the goal post rule doesn’t apply to plan amendments. He said the Board’s final decision has been made and it has been appealed. He noted in that period up until the Board made its decision, they could have said there was a new rule that needed to be addressed, but it wasn’t the case. He commented that the cases brought up by Mr. Just are relating to the decisions prior to appeal. He added that once the cases are appealed, they are not relevant and do not establish the doctrine he is trying to prove. He noted that Setchko’s calculations were done with the old and new administrative rule. He said Setchko is the expert and in this situation, the evidence the Board has is that even if the administrative rules were to apply, they are met and Setchko said they are met by his calculation in paragraph IV. He added that paragraph IV shows there is compliance with the rule. He said that each party has an opportunity to raise these things before the Board makes their decision. He believed the Board had all the evidence and the authority to approve this as presented.
Fleenor asked when Setchko evaluated the productivity of the land, if he took into consideration what could be there versus what is there.
Marc Stechko, Forester, stated he used the Lane County soils print out. He printed off the Goal 1 site goals and read them. He added that since so many fit in the 1997 Lane County soils, things were crossed out of the new rules. He said prior to that they didn’t have enough statistical data to put in productivity. He said 1987 to 1990 were the productivity figures in effect until 1997 when they published a new guide. He said whenever he used the word “none,” that Goal 1 said “none” does not mean zero. He said if he can used published numbers, they are irrefutable and that is what he used in this case. He said he addressed potential productivity. He said there is not enough stands of trees on the soil type to collect enough statistical data to publish a number. He indicated they are now using the 1989 estimates instead of the 1997 estimates. He said the new rules in Goal 4 crosses out everywhere it states NRCS data. He said that any substantiated data that is published will be used. He said they went back to Lane County published data as that is the only data available.
Cornacchia said their position is that they have provided the requisite professional testimony necessary to meet their burden. He added there have been issues raised outside of the normal course that they say are not relevant. He commented that even if they were relevant, they meet those tests. He believed the County will be easily affirmed if anyone was to appeal this and the Board will be found to have done the correct thing.
There being no one else signed up to speak, Commissioner Stewart closed the Public Hearing.
MOTION: to approve ORDER 08-6-18-18.
Green MOVED, Stewart SECONDED.
Green commented that the testimony had been said regarding focusing on the one issue and he didn’t hear anything that refuted it.
Stewart said the issue this was remanded back for had been met and it is clear.
VOTE: 3-2 (Dwyer, Sorenson dissenting).
Green reported that last night was the CVALCO annual dinner.
He noted there is a joint meeting on Monday with AOC and the League of
Oregon Cities and a meeting about the Governor’s Task Force.
Fleenor announced he will be taking a tour of the State Penitentiary as a member of the Junction City Advisory Committee. He noted that Chris Edwards will take his place at the regularly scheduled community dialogue in Junction City.
19. CORRESPONDENCE TO THE BOARD
20. OTHER BUSINESS
ORDER 08-6-18-1 Integrated Roadside Vegetation Management Program Annual Report for the 2007 Reporting Period
MOTION: to approve ORDER 08-6-18-1.
Dwyer MOVED, Fleenor SECONDED.
Stewart asked if there was a majority of the Board who wanted to schedule time on the agenda to hear his concerns.
Green said they shouldn’t be discussing something that had already been litigated.
Stewart said he wants to talk about the first incident. Stewart said Gillette believes he never received the opportunity to provide the evidence that he was not in violation of the voluntary order to comply. Stewart recalled Gillette was found guilty that he didn’t meet the timeline requirements to comply. Stewart thought staff, the neighbors and Gillette would be involved. Stewart didn’t know if there would be a different outcome other than they are honoring a request to give him his time.
Fleenor wanted to see the structure and time frame.
Stewart said he would present a proposed outline at the next meeting.
Dwyer said he would be willing to have a hearing on the technical aspects of the first application, where the Board changed the policy, where they granted amnesty and how they apply the rules on the narrow issue of when the clock started running. He didn’t want it to have any bearing on anything subsequent.
Green commented that he doesn’t think it will bear much fruit. He thought they should be cautious and they could be going down a slope for other people who have not given up on their issues.
Sorenson asked what the status was between Gillette and the County.
Wilson said the first matter on which the County got a judgment and tried to foreclose on his property ended up with a settlement where he paid the County $12,000 and that matter is over. She said if that is the matter where his first citation occurred, then the hearing wouldn’t have an impact on the matter in litigation.
Sorenson recommended visiting this after the litigation is concluded and then they could have a basis for a hearing.
Stewart said he and Spartz will put this matter together.
There being no further business, Commissioner Stewart adjourned the meeting at 5:00 p.m.