BOARD OF COMMISSIONERS'
April 15, 2009
Harris Hall Main Floor
Commissioner Peter Sorenson presided with Commissioners Bill Dwyer, Bill Fleenor, Rob Handy, and Faye Stewart present. County Administrator Jeff Spartz, County Counsel Liane Richardson and Recording Secretary Melissa Zimmer were also present.
8. PUBLIC HEARINGS
a. ON THE RECORD HEARING/In the Matter of Hearing Arguments on an Appeal of a Hearings Officialís Reconsideration Decision Approving in Part, and Denying in Part, an Application for a Recreational Vehicle, Boat, and Self-Storage Facility in the Rural Residential Zone (RR-5), Map and Tax Lot T18-R03-S24 TL 4600 (File No. PA 07-6721/McCabe). (Marsha Miller, Public Works Director; and Rafael Sebba, Associate Planner)
Rafael Sebba, Land Management, recalled on April 1 the Board continued the hearing in order to verify whether or not the applicant intends on participating. He said that yesterday staff distributed a memo to the Board indicating that neither the applicant nor his representative will be participating in this hearing. He said this memo also included a letter submitted by James Spickerman, the applicantís representative.
Sebba said the subject property is a five acre parcel located one mile east of Goshen on the south side of Highway 58, within the Rural Residential Zone. He said this application is for a recreational vehicle and self-storage facility that includes 31,000 square feet of RV boat storage units and 47,000 square feet of self-storage units with the total floor area of over 79,000 square feet. He noted that the application was made under two separate provisions of the Rural Residential Zone. He said the recreational vehicle and boat storage provision is in 16.294. He said there are two hearing officials decisions. He said the initial decision denied the entire facility affirming the planning directorís denial. He indicated that the appellant argues that this is the correct decision. He indicated that the decision looked at the size of the facility, the clientele, what is allowed in other zones and statewide planning Goal 14 and OARS that implement Goal 14. He said the hearings official weighed a variety of factors and found the proposed facility is urban in nature and contrary to the purpose of the Rural Residential Zone. He indicated that it is commercial in character and the facility size canít exceed 3,500 square feet in the Rural Commercial Zone. He added the hearings official then reconsidered this decision on appeal by the applicant. He said his reconsideration approved the RV boat storage componenet of the facility and denied the self-storage component. He said in this decision the hearings official agreed with the applicantís arguments that for RV and boat storage in the Rural Residential Zone, they only looked at the language of the provision in 16.294 (r) and the approval criteria in 16.295. He said if it complies with the plain language in the approval criteria, the size doesnít matter. He added as a part of the reconsidered decision, the hearingsí official seemed convinced that this type of storage is more appropriately considered industrial instead of commercial and the reconsidered decision still denied the self-storage component. He indicated that component was applied for under a different provision that directly references the purpose statement of the Rural Residential Zone. He said that enabled the hearings official to use some of his initial arguments finding that the self-storage component is an urban use, not consistent with the purpose statement of the Rural Residential Zone. He noted the applicant didnít appeal this part of the decision. He said the reconsidered opionin was appealed by an area resident and it is now before the Board. He asked if the Board was more inclined to agree with the appeallant in the initial decision, that an analsyis is necessary to determine if an RV boat storage facility is rural or urban. He added that size, character and likely clientele are among the relative factors, and if so, Motion A is recommended. He added if the Board was inclined to agree with the applicant and the hearings officialís reconsidred decision that the language of the Rural Residential Zone is clear that there is no inherent size limitations for RV and boat storage facilities in the Rural Residential Zone, then Motion B is recommended. He indicated that an interpretation of the code may be necessary.
Sorenson indicated the argument is limited to issues raised in appeal and evidence in the record. He said participation is limited to persons identified in ORDER 09-2-18-10. He asked for any ex parte contacts.
There were no ex parte contacts.
Mike Farthing, Eugene, stated he represents the appellant Cecil Saxon. He said Saxon lives in the area of the property and he owns properties in the area. He said it is an important matter for the Board and the Rural Residential Zones throughout the County. He said the applicant sought to construct a self-storage unit with RV and boat storage on a five acre parcel. He said nearly two acres is the building alone. He noted his applicant has a similar facility on 42nd Avenue. He added that this is an urban facility. He said the County has made three decisions: the director denied it, the hearings official denied it on September 2 and then the hearings official approved it on January 5. He is asking the Board to reverse the January decision by the hearings official and affirm the directors and the original hearing official decision. He said he would draft findings that will be sustainable at LUBA. He said this is being put in a Rural Residential Zone and it is inconsistent with other uses allowed in the Rural Residential Zone. He agreed with Spickermanís suggestion that the code needs to be changed and it needs a size limitation on these types of facilities. He didnít believe that needed to be done today. He said there is no definition for RV boat storage in the code. He recalled in the January 5 decision, the hearings official confined his decision to the criteria in Lane Code Section 16.295(5). He said in his September 2 decision, where he talked about Goal 14 and LUBA criteria, he talked about the reasons why he denied it. He said those are all good reasons and that is what he is asking the Board to confirm. He said the real issue is whether or not urban uses will be allowed in Rural Residential Zones.
There being no one else signed up to speak, Commissioner Sorenson closed the Public Hearing.
MOTION: to move Option A.
Dwyer MOVED, Stewart SECONDED.
9. PUBLIC WORKS
a. ORDER 09-4-15-11/In the Matter of Electing Whether or Not to Hear Arguments on an Appeal of a Hearings Official's Decision affirming the Planning Directorís approval of a Forest Template Dwelling (file PA 08-5840/Cowan).
Jerry Kendall, Land Management, explained that this is an appeal of a template dwelling. He said there are two portions to approving a template dwelling. He noted one is (5), dealing with the template parcel count and it is not the subject of the present appeal. He indicated that it was decided upon at the hearing official level. He said the only aspect in the appeal is (8), the siting standards. He noted the subject property is map 20-02-33 Tax Lot 201, 15.9 acres, located on the north side of Dorena Lake, four miles east of Cottage Grove.
Kendall recalled that the Planning Director approved the application. Kendall added that the hearing official on appeal approved the application and he affirmed his decision when that decision came out. He noted that the appeal is on the siting standards only. He indicated that the code requires the standards of (8) (a) and (b) state the subject dwelling has to be located near other dwellings on other tracts, minimal intrusion at the forested areas, a set back of at least 100 feet from F2 and EFU zoned land and that the amount of forest land used to site road surface corridors and the structures be minimized. He indicated that those standards are to be balanced against the requirement of (c) and (e) that deal with fuel break requirements and road standards. He said the Board is not to decide the merits of the specific case, but to decide per Lane Code 14.600 whether they should elect to hear this matter. He reported that there are four standards. He noted one standard is asking whether the issue is of countywide significance. He checked the meaning of significance in the dictionary. He said the meaning is it has the quality of being important, of consequence and the quality of being statistically significant. He didnít recall an appeal of this matter on siting standards coming before the Board of Commissioners. He added that this is a site specific analysis. He said that goes into the second standard of whether the issue of siting standards in this case will reoccur with frequency and if there is a need for policy guidance. He said Land Management thinks it is site specific driven. He added that both the Planning Director and hearing official have examined the two locations of argument. Kendall did not think it would reoccur with frequency because it is site-specific driven and every property is different. He noted another standard is that there is no unique environmental resource to be found on this property and neither the Planning Director nor the hearing official recommends review. He said the Boardís option is to either hear the appeal on the record, to not hear the arguments on appeal and affirm the hearing officialís decision and expressly agree with his interpretation of local law in this case; siting standard law or to not hear arguments on the appeal and remain silent on the hearing officialís decision and interpretation. He said staff recommended Option 2, including a sanction of how the hearings official interpreted (8) of the F2 ordinance. He noted that Mr. Canfield wanted to submit documents to the Board during Public Comment. Kendall indicated that they were already in the record.
Vorhes explained that the difficulty with the public comment is that it presents the potential for ex parte contact and additional evidence that is not already in the record. He added that if this is already in the record, that the risk of harm or foul that could bring this back to the Board on a procedural error is low. He said in this case if the Board already has the material and it is already in the record, the Board has had access to the record based on the appeal coming to the Board. He didnít see a significant procedural error issue. He reiterated the focus today is whether to heal the appeal or not, not the merits or substance of the decision
MOTION: to not hear the appeal and to remain silent on the hearing officialís decision for ORDER 09-4-15-11.
Dwyer MOVED, Stewart SECONDED.
Dwyer commented that this was the most logical way to proceed.
Handy stated that the soils are a unique environmental resource. He said they have to look at what soils are involved. He wasnít sure at a policy level that they have been looking at it close enough. He wanted to see what they are doing at the County on an economic development level, looking at the fact that they have finite resources and making sure they site things appropriately. He wanted to find a balance between the fact that people have property rights that he supports and that they need to be forward thinking about the soils and how they approach what they pave over, build on and where they cluster. He thought they should hear this.
Stewart believed the hearing official weighed all the information on what the impact would be to the resource. He believed the hearing official made the correct decision to try to limit the extent of the resource, not knowing if there are other options to bring a road in. He thought the information resource activity that had taken place on the resource is less in the proposed site by the applicant than the appellant. He believed the hearing official made the right decision.
Sorenson thought the Board should hear this on the record appeal. He said the issue is whether or not the Board wants to have a discretionary appeal or not. He thought it would be helpful to give the parties an additional procedural step if they wanted it. He said it wouldnít be a hearing on opening it up to new evidence; it would be a hearing on the record. He thought they should have an opportunity to review this.
VOTE: 3-2 (Sorenson, Handy dissenting).
Kendall said they have to change the order. He noted in the order on number 2, he wanted to omit: and adopted by the Board of County Commissioners. On page 3, with findings, number 15, they would omit the first sentence and leave it as the hearing officialís decision is affirmed by the Board of Commissioners.
b. DISCUSSION/Response Letter to City of Springfield Regarding Impact of Lane County Coordinated Population Study by PSU on Safe Harbor and Pending Post Acknowledgement Plan Amendments (PAPA).
Laird recalled on Tuesday April 7 he was before the Board to discuss a letter they received from Springfield on March 20 regarding Safe Harbor population forecasting Metro Plan amendments their city council was to hear. He attended the meeting on April 6. He asked the record to be opened for two weeks in order for this Board to comment into the record. He said he would need comments by this Friday. He wrote a draft letter for review and if the Board approves, he will submit it into the record.
Handy went through the edits. He said they are looking to retain their authority to coordinate the population forecast and state that they are a committed partner with the two urban cities to find a way where they need to be as soon as possible and he believed the comments in the letter will get them there.
Stewart stated that he wouldnít support the motion. He didnít agree with the items in the letter. He never saw the numbers from Portland State University and has not seen a report. He was not comfortable with this.
Vorhes indicated that he has seen the edited version in a cleaned up version where all of the changes were accepted. He made additional recommendations that might make some of the suggestions to Springfield clearer. (Copy in file). He said this is a call for the Board on what they want to say to the Springfield City Council as they are considering an amendment to the Metro Plan that the County will have to co-adopt to make it effective. He asked the Board to indicate if they have a preference in the second to last paragraph if they want to keep the July 2009 date.
Handy said their intention is to move this forward. He asked what happens if they miss that date.
MOTION: to move the amended suggestion by Vorhes to the amended version of the draft minus the bolded language be approved.
Handy MOVED, Fleenor SECONDED.
Sorenson indicated it should be on board letterhead.
VOTE: 4-1 (Stewart dissenting).
c. ORDER 09-4-15-12/In the Matter of Approving the City of Springfield's Request for a Letter of Support for an Oregon Department of Transportation Grant Submittal for the Springfield-Eugene Bicycle Viaduct.
Celia Barry, Public Works, explained that this item is identical to what was reviewed at the Metropolitan Policy Committee at the last meeting that was approved without a discussion. She stated that it is a letter of support for the Oregon Transportation Departmentís submittal of a transportation enhancement grant to add a bicycle viaduct between Eugene and Springfield on the south bike path. She stated the grant needs to be submitted by Friday.
MOTION: to approve ORDER 09-4-15-12.
Dwyer MOVED, Fleenor SECONDED.
10. COUNTY COUNSEL
11. PERFORMANCE AUDITOR
Stewart Bolinger, Performance Auditor, indicated that the next time they meet he will have a full report. He indicated that he is meeting with Public Works tomorrow.
12. COUNTY ADMINISTRATION
13. CORRESPONDENCE TO THE BOARD
14. COMMISSIONERS' ANNOUNCEMENTS
Stewart reported that he attended a Wastewater Commission Meeting and they made a
recommendation of an 18 percent rate increase.
Sorenson reported that he and Fleenor attended a geo economic summit meeting with Spartz and Mike McKenzie-Bahr.
Spartz stated that he received an e-mail from staff that the governor is coming to the Riverstone Clinic on Monday morning.
16. EXECUTIVE SESSION as per ORS 192.660
Per ORS 192.660(L) for the purpose of discussing pending litigation.
17. OTHER BUSINESS
Sorenson commented that the agendas are getting bigger. He said they will be looking at re-mails on what items they want in the future and to make a list. He thought they were getting too many things on the agenda.
There being no further business, Commissioner Sorenson recessed into Executive Session at 5:50 p.m.