JOINT BOARD OF COMMISSIONERS/

PLANNING COMMISSION MEETING

PUBLIC HEARING

July 21, 2009

7:00 p.m.

Harris Hall Main Floor

APPROVED 8/18/2009

 

Lisa Arkin presided with  Lane County Planning Commission Members:  Bob Noble, Jozef Siekel-Zdzienicki, John Sullivan, Nancy Nichols, Todd Johnson, Steve Dignam.  Tony McCown and Howard Shapiro were excused.

 

Commissioner Pete Sorenson presided with Commissioners Bill Dwyer, Rob Handy and Faye Stewart.  Bill Fleenor was excused.  County Administrator Jeff Spartz, Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.

 

a. SECOND READING AND PUBLIC HEARING/Ordinance No. 2-09/In the Matter of Amending Chapter 13 of Lane Code to Revise and Add Definitions and Provisions Pertaining to Lawfully Established Units of Land, Partitioning Land, Property Line Adjustments and Validation of Units of Land (LC 13.010, 13.030, and 13.450) (PA 09-5350). (NBA & PM 07/7/09).

 

b. SECOND READING AND PUBLIC HEARING/Ordinance No. 3-09/In the Matter of Amending Chapter 14 of Lane Code to Revise Land Use Permit and Zone Change Application Review and Appeal Procedures (LC 14.100, 14.110, 14.300, 14.400, 14.500, 14.510, 14.515, 14.520, 14.525, 14.535 and 14.600) (Planning File No. PA 09-5351). (NBA & PM 07/7/09).

 

Lindsey Eichner, Land Management, stated that this is a proposal for text amendments to Lane Code Chapter 13.  She indicated that the proposed amendments would add text specifically to property line adjustments and validation of units of land ensuring that Lane County is consistent with state law. She added that the proposal includes definitions to be modified and added to coincide with the proposed amendments.  She noted that the ordinance is the same version the Board of Commissioners gave to staff in April with   minor changes to ensure it is consistent with state law.  She recalled at the same meeting the Board also directed staff to schedule this joint hearing.  She noted in attachment 2, the staff proposed changes, section 1,  3.450 (b) saying it is referred to LC 16.450 (3)(c) for exceptions.  She indicated that it is supposed to be Chapter 13 and not Chapter 16.

 

Eichner explained how they process property line adjustments.  She said Lane Code states if someone applies for a legal lot verification and the property has not ever had a property line adjustment made to it, it is either noticed as a final land use decision or stays as an administrative decision.  She said if a property owner applies for a legal lot verification and a property line adjustment has been made to that property some time in the past, it is required by Lane Code that it is noticed as a final land use decision.  She said staff has concerns how Lane County will process property line adjustments with this proposal.  She noted in the memo staff has laid out three main options:  Option 1, every property line adjustment that is processed is an administrative decision and that no notice is sent to the neighbors and there is no opportunity to appeal; Option 2, some property line adjustments are administrative decisions and the rest are processed as planning director approval that are noticed to the neighbors and there is an opportunity to appeal; Option 3, for all property line adjustments that are completed are processed as planning director approval and noticed with the opportunity for appeal. 

 

Eichner stated that staff has suggested Option 2,  giving both the property owner and the planning director options in how to process; assuming that the planning director approval decision takes more time along with the costs of sending notice so the fee would be more expensive than an administrative decision.  She added in the memo, staff has laid out four options for the Planning Commission and the  Board for tonight: Option 1, to recommend and adopt the proposed ordinance as is; Option 2 to recommend and adopt the proposed amendment with revisions determined by the Board as necessary; Option 3, to recommend and direct staff to work with stakeholders and interested parties on further revisions or Option 4, do not adopt any of the proposed changes at this time.  She indicated that staff originally recommended Option 2, but since then has received comments and is changing their recommendation to Option 3 that states that the Planning Commission and the Board direct staff to work with stakeholders and interested parties on further revisions.

 

Deanna Harris, Land Management, explained that this proposal is related to Chapter 14 application review and appeal procedures.  She recalled in April the Board directed staff to proceed with the process of the authorís proposed code amendments.  She indicated that the primary author is Jim Just, Goal One Coalition.  She added the other interested parties are Lane County Planning Department and Lane County Home Builders Association.  She said the Board of Commissioners and the Planning Commission are being asked to review amendments to the code that would affect four processes:  1) to change the way the planning director decisions are made, reviewed and processed; 2) eliminate hearings official appeals, reconsiderations and modifications; 3) eliminate appeals to the Board and 4) change the way the Board might review hearings official decisions.  She stated that staff along with counsel has identified some of the implications of the proposal if it is adopted in its current form.  She indicated that there are 16 issues that were reviewed. She said that staff originally identified Option 2 as their recommendation for action but since then they have received comments that reflect participantsí wishes to extend to the review and action of the amendment.  She stated that staff believes that in order to work out some of the disconnects and come to a more workable product, they changed their recommendation to Option 3, to direct staff, stakeholders and interested parties to get to a more refined product.

 

Sorenson stated that this hearing is being held to take public testimony.  In the event a decision is reached, it is subject to plan amendment and rezoning criteria set aside in the agenda cover memorandum.  Evidence and testimony must be directed to the approval criteria and failure to raise an issue to enable a response may preclude an appeal to LUBA.  He indicated that this is an opportunity for those present to enter information into the record.  Only persons who qualify as parties may appeal the decision to the LUBA.

 

Commissioner Sorenson opened the Public Hearing.

 

Jim Just, Goal One Coalition, Eugene, stated that adopting Ordinance 2-09 would bring an end to years of contention and litigation and would bring Lane Code into compliance with current state law.  He said it would eliminate the risk property owners currently take  when adjusting property lines and property line adjustments should be simple, cheap and sure.  He supported adoption of the ordinance in its current form.  He said staff proposed  revision of the language and they would not object to the staff proposals that would move sections around and make conforming amendments to Chapter 16.  He added that they object to the new sections that would make property line adjustments ministerial decisions.  He didnít believe those provisions were either good policy or that they comply with state law and they donít agree that property line adjustments either require or should be accompanied by concurrent legal lot verifications.  He thought it would make the process more complicated and more expensive.  With regard to Chapter 14, the fees for an appeal of a decision made without an initial public hearing, Just said they are capped by state law at $250, but fees for an appeal of a decision resulting from the initial public hearing to the higher body are not so restricted.  He recalled over the past decade many jurisdictions under fiscal constraints have increased their appeal fees. He noted during the 2003 legislative session, they proposed a fix to the problem that priced citizens out of the process.  He added that Goal One introduced legislation that would cap those fees at $250. He said that legislation didnít go anywhere.  He recommended streamlining and expediting the entire decision making the process cheaper and faster for everyone.  He noted that ORS 215,221 authorizes counties to do what is being proposed to make a hearings official decision the final decision of the County.  He added that it authorizes the Board of Commissioners to call the decision at its discretion.  He said they find the current system unacceptable and they urged the Board to fix it.  He said they have no objection with adopting the proposals with the revisions proposed by staff in their letters.  He stated they had no objection to keeping the public process open and letting more people participate in the process.  He added that they donít want to make it an open ended process.  He wanted staff to prepare a working draft incorporating the changes proposed by staff and proposed by Goal One and be willing to accept comments addressed to the draft.

 

Dan Terrell, Bill Kloos Office, Eugene, said he is not representing any clients.  He said they have had an interest in working with DLCD and a wide range of interested parties in helping governments craft effective, clear land use regulations that donít have unintended consequences.  He commented that he supports both ordinances but thinks they both need more work.  He encouraged the Planning Commission and the Board of Commissioners to direct staff to continue working with various interested parties. 

 

Robert Emmons, Fall Creek, stated for the past two years Goal One Coalition and Landwatch Lane County have been working with County Counsel, Land Management Division staff and developer consultants to amend Chapter 13 regarding property line adjustments and Chapter 14 regarding the appeals process. He said they were satisfied that their proposal to amend Chapter 13 will bring Lane Countyís property line adjustment procedure into compliance with state law and that their proposed Chapter 14 amendment streamlines the appeals procedure.  He commented that the proposal is faster, fairer and more equitable to all Lane County citizens.  He said on behalf of Goal One and Lane County citizens at large and Landwatch Lane County, he urged the Board to direct staff to prepare a final version of both of these amendments that reflect the concerns of staff and County Counsel. 

 

Mike Evans, Planning Consultant, Springfield, said with regard to Chapter 13, the property line adjustment procedure has gone on for years.  He agreed with Jim Just that the original Ordinance 2-09 was the language agreed upon between Landwatch, Goal One, Dan Terrell, and Bill Kloos, He noted that the committee and staff participation was adequate to fix the property line adjustment issue.  He said with legal lot verifications and property line adjustments; there needs to be new legal lot verifications to wrap things up.  He commented that it is a time consuming awkward process for staff and it is expensive for applicants and that wasnít addressed in the first draft.  He thought it didnít need to be part of the ordinance, that it could be addressed separately.  He noted that property line adjustments could cost in excess of $10,000.  He said if the Board and Planning Commission decide to extend this, it could be cleaned up and made better.  He cautioned everyone not to make it too complicated.  He thought they should stick to the original version.  With regard to Chapter 14 changes, he thought the process could be streamlined.  He agreed with what has been said by Goal One and Landwatch that the costs are extreme.  He was concerned about the loss of an opportunity for access to the Board of Commissioners.  He said the process needs to be open where they can go to the Board and make a request to consider whether the Board wants to hear the appeal.    He thought they should retain the hearings official procedure, as it was important for the applicants and opponents.  He thought changes could occur and if everyone is on board, they could have the opportunity to work out a process that is more streamlined, understandable and less expensive for both the appellant and the applicant.

 

Jim Belknap, Broker, Territorial Land Company, Cottage Grove, said they are a rural land brokerage firm.  He thought Chapter 13 needed more time to be reviewed.  He said the Board will be requiring staff to do an extensive review of the documents and actions that will come before the Board. He didnít think it was fair for review to be done for a $250 fee for the Chapter 14 amendment.  He thought they will open a Pandora ís Box of problems for multiple appeals.  He said staff will be buried in processing appeals so the average applicant for a land use partition will wait the 150 period and they wonít get an answer and their choice will be to go to circuit court to get a writ of mandamus or to wait it out.  He thought they were creating a problem that they could avoid.  He commented that the process is expensive but he didnít think it was fair to expect the landowner and County to incur $12,000 in fees to prepare a competent application to bring to staff to fund their review for a $250 appeal fee.  He noted the people opposed to the action get a chance to object for free.  He thought this needed to be sent back to staff and review what the fee structure will be to evaluate the appeals.  With regard to Chapter 13, he said he supported the initial proposal that came out.  He thought they could do better, but what has evolved is cumbersome and confusing.  He also thought they needed an administrative review process. He indicated that Benton County has a four page code that addresses property line adjustment and a two page application.  He added they are sorted out at a lower level with a simpler process and he thought that was what they needed to go to.  He thought neighbors should be given the opportunity to comment.

 

Thom Lanfaer, Planning Consultant, Eugene, commented that maintaining an up-to-date set of code provisions is an important function for the planning process and that too often it falls to the bottom of the priority list.  He said this is a big step and needs to be done carefully because they want to end up with a good product.  He said in speaking with other land use professionals, he didnít hear objections about developing a good process for reviewing property line adjustments.  He thought the draft was a good start and close to a finished product.  He requested the Board and Planning Commission go with Option 3, allowing additional time for a more detailed review on some of the proposals that were in the staff report.  He stated that the housekeeping provisions seem necessary to make sure the code is internally consistent between Chapter 13 and Chapter 16.  He said the other variety of options staff has presented needs a closer review or they could end up with unintended consequences.  For Chapter 14, he supported staffís recommendation for Option 3 to allow more time for review..  He commented that Chapter 14 is critical for the functioning of the land use process since it governs all the land use decisions in Lane County.  He said the ordinance proposed tonight falls short of being a fair and efficient process for everyone.  He supported the removal of the director hearing procedure from the code.  He recalled in participating on a staff level in the 10 of the 14 director hearings every held in Lane County, he has a good perspective and he didnít believe they were efficient.  He thought they were time consuming and costly.  He thought a better process would be to allow the planning director to bounce the application to the hearings official and have the hearings official conduct the hearing.  He thought the reconsideration process for the planning director and hearings official should be left intact.  He said that it is a useful tool to make a more efficient decision and to correct some errors that are made in the process.   He commented that the elimination of the procedure for bringing appeals of the hearings official decision to the Board doesnít seem appropriate.  He added that it appears to rely on ex- parte contacts to get the Board to review a decision.  He didnít think that was the transparency they wanted to build into the code. He thought they could change the ordinance to reduce the product time and cost to applicants, appellants and staff.

 

Jim Mann, Eugene, stated that he had analyzed the proposed amendments to Lane Code Chapters 13 and 14 and he provided recommendations.  He commented that his recommendations are based on 30 years of experience working for the public as a land use planner and writing land use codes.  He added that it is based on his experience as a land use consultant advising clients in land use matters. He said with Chapter 13, the first recommendation is to carry over the boundary line adjustment and the lot validation requirements from ORS 92 to put into Lane Code.  He recommended the Board adopts that part of the proposal.  He added in addition to the changes required by ORS, staff proposes adopting additional requirements that are intended to help process boundary line adjustments and lot validations.  He believed that some of the requirements might unintentionally over regulate the process and assistance from other stakeholders could be provided to help staff solve the problems and complete an acceptable draft of the code changes.  He asked not to adopt the staff recommendations and direct staff to work with stakeholders to develop the improvements.  With regard to the changes in Chapter 14, he said the proposed amendment would eliminate the process for citizens to appeal a hearings official decision to the Board, but the Board on its own initiative would have the ability to call up and review a hearings official decision.  He stated the problem with that proposal is that there are no criteria for guiding the Board for when it should call up and review such decision.  He said this potentially creates two problems:  special interest groups and others would be encouraged to enter through a back door and make ex parte contacts with the Board in order to get them to review a hearings official decision and some hearings official decisions could be appealed directly to the state without Board review and prior agreement with the findings.  He said the state is not required to give deference to interpretations of local codes if the interpretations are not adopted by elected officials.  He added that eliminating appeals to the Board as proposed opens the door for the state and not Lane County to interpret Lane County land use requirements.  He recommended they do not adopt this part of the proposal.  He said these hearings are infrequent, have not encountered unusual problems and have resulted in good decision making.  He didnít see the need to delete this option if there are delays in the process.  He added the delays are often the result of the application sitting in the planning office for 90 days before it is picked up to be reviewed and that is where the emphasis needs to be placed in speeding up the process.  He thought changes are inevitable.  He indicated that it has been a while since the codes have been updated.  He thought there is work that could be adopted and things that could be done to be improved to come up with an acceptable code by working with the stakeholders.

 

There being no one else signed up to speak, Commissioner Sorenson closed the Public  Hearing for the Board of Commissioners.

 

There being no one else signed up to speak, Chair Arkin closed the Public Hearing for the Planning Commission.

 

Siekel-Zdzienicki noted that based on the testimony, most people want Option 3. He suggested they adopt Option 3 for both Chapter 13 and Chapter 14.  He wanted to see the stakeholders well defined.

 

Stewart agreed with Siekel-Zdzienicki to go back and do more work so it is well defined and more streamlined.  He wanted to take three or four processes to define a property line as it has been used for years to see if it is a more simplified process. With regard to Chapter 14, he thought there were areas that could be agreed upon.  He didnít want to streamline Chapter 14 so far that it takes out flexibility.  He thought it was good to have a re-review by a hearings official to work with the concerns that were addressed.  He also wanted to work on reducing costs.

 

Arkin agreed that there should be streamlining of the chapters.  She supported going forward with current stakeholders correcting the language for Chapter 13 and Chapter 14.

 

With regard to Chapter 14, Noble recalled that Sullivan stated it wasnít their place to get into the fee structure issue.  He commented that the Countyís fees are some of the highest in the state and it sets an obstruction for participation.  He encouraged the Board to look at something that is fair and reasonable with a more modest approach.

 

Dignam asked if staff recommended they leave the record open if they approved Option 3.

 

Vorhes explained that the simple way to allow the stakeholders and not have to restart with a notice and hearing on changes would be to leave the record open.  He said to keep this process moving, they should keep the record open.  He added a report could go to both bodies as they move toward deliberations.

 

MOTION: to move that the Planning Commission keeps the record open and that staff should be directed to work with stakeholders and interested parties on further revisions to the proposal.  This applies to both proposed ordinances.

 

Dignam MOVED, Sullivan SECONDED.

 

Dignam noted the principles staff should consider as they are moving forward are:  the lot line verifications and property line adjustments and the appeals process. He added that they should allow some flexibility depending on the specific circumstances.  He said they do not want a rigid system.  He said Goal 1 says there needs to be opportunity for citizen involvement.  He stated that staff has made it clear that the system they already have has opportunity for citizen involvement and they are already meeting that requirement.  He added that not all citizen involvement by definition is going to be better.  He noted that according to Lane County Legal Counsel, their code is consistent with state law.  He said they have time to allow further processing of these ordinances.  He concurred with comments that they need to try to simplify the process.  He didnít believe that simple land use actions like a property line adjustment should require a tremendous amount of process.  He noted that a property owner is a citizen as well and he commented that sometimes they lose track of that when they are trying to protect the rights of others.

 

Sullivan stated the simplicity issue for Chapter 13 is critical.  He added that flexibility is important and he has mixed feelings about taking away the planning director hearing.  He thought it was important that the Board of Commissioners look through the process.  He added that taking the Board of Commissioners out of the appeal process was not a good idea.  He said they are not in the business of reducing fees but there is something that could be done with fees. He thought time would give stakeholders options to give to the Planning Department for this and for fees in general.

 

Nichols hoped the stakeholders would keep in mind reducing the time and cost when they are working on the overall goals and getting the wording right.  She wanted efficiency and what it would cost in staff time.  She thought cost was important.

 

Siekel-Zdzienicki asked if there was a sliding scale for the process.  He stated that if an issue is complex or simple, the fee is the same.  He didnít think it was fair.

 

Eichner explained that currently for legal lot verification, they have three different fees.  He indicated that they review them by deed and the deed history of the property is how they determine if a parcel was lawfully created or not.  She said the more deeds staff have to review, the more expensive it gets.  She said if this is adopted, they will come back to the Board with proposed fees.

 

Harris indicated they donít have a sliding scale for the appeals process but they have an option where they refund a significant amount of money if the Board declines to hear the hearing.  She noted for a total appeal fee for a land use decision to go from planning director to hearings official to the Board, an applicant would have paid $3,740.  She added that if the Board declined to hear, the Planning Department would refund the applicant $2,248.

 

 

Siekel-Zdzienicki supported Option 3 for both Chapter 13 and Chapter 14.

 

Johnson also supported the motion. He thought the interested parties were well represented.  He encouraged the Board to consider some timelines.  He noted it was the second time they reviewed this issue and it is not something people are comfortable with.

 

Sorenson thought the Planning Commission could set a date when there was something ready for them to review.  He thought the Planning Commission should work on this independent of the Boardís schedule.

 

Vorhes thought they should enlist stakeholders, starting that process in mid-August..  He asked people to sign up if they were interested to get notice for the work session or a meeting with staff on both of the code changes.  He said if they leave the record open, people could speak to what is currently proposed and what people think about the changes that come from the stakeholder discussion. 

 

Sullivan encouraged the Planning Commission to turn this office to the Board of Commissioners now and then the Board would come back to the Planning Commission at their next regular meeting to let them know what the timeline looks like.  He said they could then set a date and close the record.

 

Eichner indicated if the Board wanted a joint meeting with the Planning Commission that the first available date would be November 3.

 

Dignam modified his motion to close the record on September 29 and he would keep the rest of the  motion as is.

 

Sullivan SECONDED.

 

VOTE: 7-0.

 

MOTION: to approve a Second Reading and Setting a Third Reading and Public Hearing for October 21, 2009 and to close the record on September 29 for Ordinance No. 2-09.

 

Dwyer MOVED, Stewart SECONDED.

 

Handy wanted this to be a focused group.  He wanted them to work with the author to continue this process forward so they can have a conclusion that will hold up.

 

Stewart commented that what they are doing will improve the process but it is not the ultimate end to fixing problems in Lane County.  He explained that their codes are complex and need to be updated and improved.  He thought if they could work on improving their codes, it will improve what they are trying to do.  He said they need to gain efficiencies.

 

Dwyer indicated that he would not support anything that would take the Board out of the process.

 

VOTE: 4-0.

 

MOTION: to approve a Second Reading and Setting a Third Reading and Public Hearing for October 21, 2009 and to close the record on September 29 for Ordinance No. 3-09.

 

Dwyer MOVED, Stewart SECONDED.

 

VOTE 4-0.

 

Chair Arkin adjourned the Planning Commission at 8:25 p.m.

 

There being no further business, Commissioner Sorenson adjourned the meeting at 8:25 p.m.

 

Melissa Zimmer

Recording Secretary