July 21, 2009

5:30 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 was excused.


Board of Commissioners Present:  Pete Sorenson, Chair, 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).


Chapter 13


Lindsey Eichner, Land Management, explained that this is a proposal for text amendments for Lane Code Chapter 13. She noted the proposed amendments would add text specifically for the property line adjustments and validations of unit of land, ensuring Lane Code is consistent with state law.  She added that this proposal also includes definitions to be modified and added so it coincides with the proposed text amendments.  She noted this is the same version the Board gave to Land Management in April with minor amendments so it specifically coincided with state law.  She indicated that staff set out four options for the Planning Commission and the Board:  Option 1 to recommend and adopt the proposed ordinance; Option 2 to recommend and adopt the proposed amendments with revisions determined by the Board after necessary additional readings; Option 3 to recommend and direct staff to work with stakeholders and interested parties on further revisions and report back to the Board and Option 4 to not adopt any of the proposed changes at this time.  She indicated that staff recommended Option 2 in the original memo, but since that date they have received comments (both written and oral) from interested parties wishing to work with staff on further revising the proposed amendments.  She added that staff agreed and they are formally changing their staff recommendation to Option 3, to be directed to work with interested parties and the author and report back to the Board.


Sullivan indicated that staff made a strong recommendation for Option 2 based on several issues.  He stated the proposal could have significant financial affects on both property owners and surveyors.  He asked if Option 3 didnít have the same effect.


Eichner responded that it would also have the same effect. She noted if the Board chooses Option 3, they would take long range planning staff to work on this.  She added the resources for this would be current planning staff.  She explained that they have different funding to fund their planners. 


Sullivan asked if this amendment is approved,  if the proposal would have significant financial effects to the property owners.


Eichner thought it might.


Sullivan commented that no matter what they would recommend, they would be putting a significant financial impact to the department and a drain on staff.


Vorhes stated that it would depend on how the regulations finally look and what is required.  He added that it would depend on what fee the Board sets for the process that is adopted.  He said if they compare the current cost of legal lot verifications to what could be the cost of a property line adjustment proceeding, there might be a significant change.


Sullivan stated that as a commission, they try not to get involved in fees. He said they would discount that option when they make their decision.


Johnson asked if there were any interested parties who object to working together to refine the work.


Eichner responded that she did not receive full objection.  She indicated that she received a letter from Dan Terrell who is one of the authors of the Chapter 13 amendment and an e-mail from Pam Whyte from Weyerhaeuser and both were asking for additional time to work with staff on revisions. 


Vorhes recalled that he had seen a few letters that have come in.  He indicated that all of the letters pick from staff recommendations to change the text that is attached to the ordinance.  He added suggested additional changes that might be helpful to discuss. 


Sorenson received a letter dated July 18 from Kent Baker, President of Professional Land Surveyors of Oregon, Midwest Chapter.  He said the letter states that members of PLSO have been working with Lane County for a number of years making suggestions that might affect land surveyors and the public.  The letter also said the new changes to Lane Code will affect the way they do business in the County.  Sorenson indicated that Baker said as an organization they needed more time to evaluate how the changes will affect their clients.  Sorenson indicated they agreed the changes being made to Chapter 13 of Lane Code were needed but the way the County processes and reviews the land use applications was something they needed more time to study.  He noted the letter was sent to all the commissioners.


Stewart asked Eichner if she looked at other counties and how they did property line adjustments and if they complied with the Philips case.


Eichner said she looked at Klamath, Coos, Washington, Jackson, Clackamas, Benton, Multnomah and Douglas counties and all of their currently adopted properly line adjustment ordinances.  She stated that was where she came up with the three options for processing property line adjustments. 


Stewart indicated that he had been provided with documents from Benton County and their total property line adjustments are on four pages.  He noted that Lane County has 30 pages.  He asked if they could streamline the process and still meet the concerns of the law.  He recalled that before the Philips case, Benton Countyís process was only two pages. He wanted to make things easier for people to understand and he asked if they could do that.  He was concerned about the cost.


Eichner thought they could work with the interested parties and come up with an easier way to do things.


Dignam indicated that when they do a revision and update to the policies it is because of problems staff had encountered or complaints from the public. He asked what was driving this revision.


Eichner replied that they were directed by the Board of Commissioners to process the proposed amendments. She said there has been a history with property owners and interested parties in the local area of regulating property line adjustments.  She recalled there was a task force put together in early 2000 that was asked to review this.  She stated what resulted was the portion of Lane Code Chapter 13 that describes legal lot verifications and  notice for property line adjustments.


Vorhes explained that it involved property that had a property line adjustment already done to it. He noted that prior to that ,legal lot verifications were tentative decisions.  He said there was a history and the Land Management Task Force reviewed how they did legal lot verifications and how they addressed property line adjustments.  He recalled that the Task Force recommended the limited process to address legal lot verifications that involved property line adjustments.  He indicated that was appealed to LUBA and put on hold to see if there were other ways to address the issue.


Dignam asked if they solicited input from the realtors in Lane County.


Dwyer received a letter from Jim Welsh.


Eichner stated that she didnít mail this to any specific real estate agents.  She indicated that she sent it to land use consultants and land use attorneys they work with on a regular basis and to surveyors in the area.  She added that they also noticed it in the newspaper.


Nichols asked if there was a way of addressing legally created one acre lots within the RR 5 Zone because it is commercial.  She asked if there was a way to prevent that from happening.


Eichner responded that the language she proposed discussed parcel size in relation to potential uses on vacant land.  She indicated that she took the language from other counties and their property line adjustment ordinances.  She thought it was reasonable where there were zones that didnít have minimum lot sizes  She noted their minimum lot size requirement is that they have to show that the size allows for one of the allowed uses in that zone.  She didnít think through a property line adjustment that they could prohibit a request for a zone change.


Vorhes explained that it was beyond the scope of what this is designed to address in having some connection to an action when there is a division of land.  He indicated that  what happened under the commercial zone wasnít prohibited. 


Arkin discussed page 4, the fourth paragraph.  She indicated that Land Management doesnít track the application for a legal lot verification differently.  She said staff couldnít bring information on applications with simple cases and the value of land.  She stated it is important they align with rules with the new state mandates and lot line adjustments properly in the code so they can be verified for future landowners.  She said they would know what to expect with their land.  She thought it was an important issue.


Siekel-Zdzienicki asked if the lots were already smaller than the proposed zoning. He asked if  they should allow smaller lots for property line adjustments.


Eichner recalled that this was an issue raised at LUBA numerous times and some case law has gone back and forth on the issue


Vorhes indicated that the most recent litigation was the Philips case that led to the legislation in the 2008 special session that articulated that principle.  He noted the Philips case litigated the issue of creating a property line adjustment that is a unit of land smaller than the minimum lot size for the zone in that case.  He stated the legislation authorized it.


Kent Howe, Land Management, noted the legislature adopted HB3629 that articulated  that one or both of the abutting properties are smaller than the minimum lot size or parcel for the applicable zone before the property line adjustment and after the adjustment.  He noted that the legislation is permissive for substandard parcels and allowing them to make property line adjustments that are not consistent with the minimum land division size of the zone.


Nobel indicated that there will be circumstances where the problem could be easily solved with a legal lot adjustment and no resulting problem or consequence other than it fixes the problem.  He added that someone could want to manipulate an outcome that is advantageous to creating another buildable lot that is an unreasonable expectation.    He asked if they approve Option 3, if the proposal is to apply an ordinance where one size fits all and every legal lot adjustment goes through the review process. He asked  if there was a way to assess the circumstances where they could be applied to a certain circumstance instead of a complicated approach. He said he would favor an approach if the option is adopted to work further on this.  He asked if it could be embedded in the code to have two different approaches.


Eichner said she tried to go that route in the staffís recommended revision.  She said there could be an administrative process to process simple property line adjustments and a complex process that would require notice.  She thought it might need to be revised more.


Dignam thought the application was difficult to understand.  He asked if one of the objectives was to increase citizen involvement.


Vorhes explained that part of the discussion is around how much citizen involvement should be involved in property line adjustments.  He said they should figure out how Lane County deals with property line adjustments. He commented that citizen involvement depends on how the Planning Commission and Board resolve some of the policy choices.  He indicated that any unit of land that has been involved in a property line adjustment needs a legal lot verification involving notice and an opportunity for a hearing before a decision is made.


Johnson asked about the timing and any exposure the County might have in continuing to use the current system.


Vorhes commented that what they are doing is not inconsistent with state law.  He said they have two LUBA appeals pending and he doesnít know the outcome.  He has been comfortable on how they are doing business and that they comply with state law.  He thought the risk was low. 


Eichner indicated November 3 would be the next available time for a joint meeting.  She added if the Board goes with Option 3, they discussed holding a work session with interested parties in August and September.  She stated that she will bring back a written report in November.


Chapter 14


Deanna Harris, Land Management, explained that this ordinance proposal is related to Chapter 14, covering the application review and the appeal procedures.  She recalled at the end of April, the Board guided staff to proceed with the process to eliminate the hearings official appeals, reconsiderations and modifications; eliminate appeals to the Board and to 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 proposals if they are adopted as submitted.  She noted there are about 16 issues that were reviewed and discussed in her policy and analysis discussion in her staff report. (Copy in file).  She identified Option 2 as their recommendation for action.  She added since then they have received written comments that reflect participants wishing to extend the review and action by the Planning Commission and the Board of Commissioners.  She said that in order to work out some of the disconnects and to make it a more workable product, they changed their recommendation to Option 3, to direct stakeholders, staff and participants to get to a more refined product. 


Nobel noted that one change is to eliminate appeals to the  Board.  He said on page 14 of the packet, there is an elected board review procedure and the Board could choose to be part of the process.  He asked of the Board wanted to be part of the process.


Dwyer responded that they take them on a case-by-case basis. 


Stewart received correspondence from Merle Weiner.  He read the letter into the record.  He wanted to streamline the process that is effective and works.  He said the appeal process in Lane County is expensive and it is driving the permit fees up.  He noted that Lane County doesnít recover the cost of an appeal.  He said it is clear that statutory law says the first appeal is $250 and they are already losing money.  He added that if they continue to do this process without collecting the $3,500 to come to the Board, they will be further in the hole.  He indicated that it shifts the burden to the applicant who has to pay for the process.  He wanted to make the process work and be fair for everyone.  He wanted to find a way where they donít shift the burden of the cost over to one specific person in the process. 


Sullivan said if they were to adopt the recommendation of Option 3, there were issues that need to be discussed.  He agreed that as soon as they do things too simply, they take the flexibility out.   He was concerned that the hearings officer decision could become the final decision because of time. He recalled his recommendation at that time was to caution the Board of Commissioners against taking that route because it takes them out of the policy decision capabilities.  He added that the commissioners are elected and the hearingís official is not.  He didnít think the fee issue should be part of the conversation from the Planning Commission standpoint.


Johnson asked if there were any interested parties suggesting that they think this work product is ready to go or that revisions are necessary.  He asked if they wait on this if there was any exposure to the County by not making changes.


Harris responded that there were no straight objections.  She indicated that they have heard some of the verbal conversations from consultants that they wanted more time.  She added it was also reflected in the comment letters they received to get to a more refined product that would be more workable for everyone.


Vorhes didnít think there was anything pending or critical for the County to change the process that is currently in place.


Dwyer hoped that whatever they do, that they do it right.  He said if people donít feel like they are being heard or have an opportunity to give input, they wonít have a good product.  He wanted to be deliberate and take the time to get everyoneís input and then they can make their decision.


Harris indicated that staff could schedule an interested parties work session to include stakeholders and participants if that is what the Board decides.


Siekel-Zdzienicki asked how the stakeholders are chosen.


Harris said they have compiled a list of  the land use consultants and surveyors they  regularly deal with.  She added that they did a legal notice in The Register Guard and they contacted the Home Builders Association.


Arkin said if they move into a stakeholder process they could balance requirements for participation.  She was looking for a balance to streamline the process


Arkin recessed the meeting at 6:45 p.m. for the Lane County Planning Commission.


Commissioner Sorenson recessed the meeting for the Lane County Board of Commissioners at 6:45 p.m.



Melissa Zimmer

Recording Secretary