BOARD OF COMMISSIONERS'
REGULAR MEETING
April 28, 2010
1:30 p.m.
Harris Hall Main Floor
APPROVED 2-2-2011

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

11. PUBLIC HEARINGS

a. SECOND READING AND PUBLIC HEARING AND POSSIBLE ACTION/Ordinance No. Pa 1269/Amending the Rural Comprehensive Plan to Redesignate Land From “Industrial” to "Residential" and Rezoning that Land from "RI/RCP, Rural Industrial” to “RR-5/RCP, Rural Residential”; and Adopting Savings and Severability Clauses (File Pa 08-5793: Hastings) (NBA & PM 4/14/10).

Fleenor stated that this decision is subject to plan amendment and rezoning criteria sited in the agenda cover memo and attachments and evidence and testimony must be directed toward the approval criteria and failure to raise an issue to enable a response may preclude an appeal to LUBA.  He indicated this was the time for those present to enter information into the record.  He said only persons who qualify as a party may appeal the Board’s decision to LUBA.

He asked for any Ex Parte contacts.

There were none.

Rafael Seba, Land Management, explained the proposal before the Board is a minor Rural Comp Plan amendment and zone change for a 9/10 acre property located 3 miles north of Springfield, south of the intersection of Marcola and Sunderman Roads.  He said the subject property is owned by Deborah Hastings who is represented by Steve Cornacchia.  He said the subject property was used as a small cabinet manufacturing shop and residence for the shop owner.  He added the earliest documentation of the uses was a 1970 building permit issued for the shop addition.  He said M2 light industrial zone was first applied to the property in 1980, based on the existing cabinet shop.   He said the property remained M2 until 2002 when its zoning was changed to Rural Industrial during the County’s Rural Comprehensive Plan Periodic Review Program.  He said the applicant now proposes to change the plan amendment and zoning from Industrial to Residential in order to reflect the uses on the property.  He noted on February 2, 2010 the Lane County Planning Commission held a Public Hearing on the proposal and the Planning Commission forwarded a unanimous decision for approval.  He noted that no parties have objected to the request.  He said that Lane County Transportation Planning has determined that a traffic impact analysis was unnecessary because the area would generate no more traffic than the existing zone.  He added that no other comments on the proposal have been submitted.  He said based on the application and the applicant’s findings, the proposal appears to be justified and it is desirable, appropriate and proper given the existing residential use on the property and the character of the surrounding area.  He said the proposal also meets the criteria for a minor Rural Comprehensive Plan amendment and zone change and does not conflict with state and local goals.  He stated that staff recommends approval of the zone change.

Commissioner Fleenor opened the Public Hearing.

Steve Cornacchia, Eugene, stated that he represents the applicant.  He said they are lowering the use instead of intensifying it.  He said the applicants have been living on the property for 40 years.  He said the County has acknowledged its existence through other processes.  He said they have to maintain the industrial use to meet requirements for residential use.  He said they can live on the property if they are the owner/operator.  He noted in this case both of their occupations would take them off the property.  He said there are five residential zoned properties within a half mile area.  He stated it made sense to make this residential as opposed to industrial.  He believed they have met all the criteria and have appropriate findings to support the application.

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

Dwyer stated he won’t support it.  He thought it was industrial from the beginning and there was no permitted residence.

MOTION: to adopt Ordinance PA 1269.

Stewart MOVED, Sorenson SECONDED.

Fleenor thought it seemed logical to approve it, as it is consistent with the surrounding area.

Handy thought the goal was reasonable but he was troubled due to a lack of permit.

ROLL CALL VOTE: 3-2 (Dwyer, Handy dissenting).

b. THIRD READING AND CONTINUED PUBLIC HEARING AND POSSIBLE ACTION/Ordinance No. PA 1270/In the Matter of Taking a Goal 2 Reasons Exception To Goal 11 (Public Facilities And Services) and Amending The Lane County Rural Comprehensive Plan Goal 11 Policies to Allow Extraterritorial Extension of Wastewater Service Outside the Junction City Urban Growth Boundary (UGB) to Provide Wastewater Service to Lands Inside the Junction City UGB And to Allow Connection of Wastewater Service to Specific Rural Properties Affected By Extension of Wastewater Service to Serve Lands Inside the UGB. (File No. PA 10-5054; Applicant: City of Junction City ) (NBA & PM 3/17 & 3/30).

Stephanie Schulz, Land Management, recalled at the conclusion of testimony on March 31, 2010, the Board kept the record open and set a Third Reading and Public Hearing for April 28 in order to provide additional time for affected property owners to submit additional materials to support requests to the wastewater pipe.  She said Gary Banton, owner of Lane Truck Body, Inc. submitted additional material and Attachment 2  (copy in file) is a summary and permit history for tax lot 300 (Banton’s property) and tax lot 400, adjacent tax lot to the north.  She added that no other submittals were received from other affected property owners.  She said if the Board wanted to add properties to the exhibit attached to the ordinance, they would need to revise the list of tax lots, add property in and bring back to the Board for an additional reading and action.

Assistant County Counsel Stephen Vorhes noted at this point the ordinance does not include the Banton findings.  He said if the Board wants it as part of the ordinance for final action, he said it would need to be the direction in this reading and then move a subsequent reading to put the Board in a position to actually adopt an ordinance that would include the property.

Fleenor asked if it was a fact whether or not they had a building permit.  He said they are considering whether this property would be able to connect to the waste system .  He asked if they don’t include them whether the property owner is out the opportunity.  He asked even if they were to move forward with a legitimate building permit if they would be able to connect in this ordinance.

Vorhes responded that unless they came back to take the same kind of exception that was taken for the other properties, it is the same basis.  He noted the building issue is a side issue. He said the issue is does the extension of the pipe in some way affect the ability to provide onsite sewage disposal to this property and whether it has circumstances similar to the other properties.  He  added that if it is demonstrated to constitute a health hazard or a public health hazard sufficient to meet the administrative rule that deals with the circumstances, they could approve an extension of a sewer pipe outside of an urban growth boundary to serve rural properties.

Fleenor asked if there currently was a septic system on the property.

Vorhes indicated that there wasn’t one.  He said there was approval for septic on this property that has been issued.  He said they have service currently by using the system to the north of the property that was part of this at one time.  He said they  have an agreement with the property owner to the north to utilize their septic system and the concern is that if it goes away,  if it would create a health hazard.

Handy commented that he is troubled by this as he was with the earlier situation.

Commissioner Fleenor opened the Public Hearing.

Gary Banton, Junction City, stated he owns Lane Truck Body.  He said he bought the property in 1988.  He said the main building has always been there.  He said after he bought it, he wanted to put on a second building on the back end of the property.  He applied for the permits and worked with the contractor but along the way he found out he couldn’t do manufacturing because it wasn’t zoned for it.  He decided not to build the building.  He said the main building was built in the 60’s.  He didn’t know about building permits.  He stated there is a bathroom on the property in the main building.  He said he has approval for a sand filter system but his property is only 90 feet wide and at the time he was using the property to the north.  He said the main problem is building a sand filter on such a small property.  He said if he loses the sewer system, he won’t have any sewer service.  He wanted to hook up to the sewer.

Jeff Haag, Junction City, recalled that he had testified in the past on Banton’s behalf.  He explained at that time his property had been two parcels and that is how he got the septic hook up the way it is.  He said the hook up of the properties was part of the settlement agreement from Junction City on the UGB problem.  He said the initial part was to protect Banton’s livelihood because the north of the property where he shares the septic will be lost to ODOT for the widening of Mill Iron Road.  He commented that this was an honest effort to circumvent problems before they happen. 

Fleenor said they facilitated this in good faith to include those properties and if he would have known there was going to be an exception, he would have made a different decision.  He said he will support this based on the fact they negotiated this in good faith.

Dwyer said he wasn’t opposed.  He wasn’t part of the agreement but he thought some of this should have been done when the negotiation took place.  He didn’t want to penalize Banton.

Bruce Anderson, Junction City, said he heard on March 31 there was a complaint during the Lane County Planning Commission process.  He testified there were complaints the County was looking into.  He indicated that Stephanie Schulz denied the complaints took place.  He said the complaints go back to 2003 and one complaint was to close him down. 

Carrie Connelly, City Attorney, Junction City, urged adoption as soon as possible.

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

Dwyer thought there was an opportunity to hook up to a system that is not as costly as a sand filter system and to give Banton more flexibility.  He said there was a commitment made by people in good faith that the property would be included.

Vorhes recalled the settlement agreement set up a process by which the city would include the properties in the urban growth boundary if they made those kinds of justifications or provide  services to these properties. He said they have to meet the legal requirements.

MOTION:  to move to direct staff to amend the order to include tax lot 300, map 16-04-20, for Garry Banton and set a Third Reading and Public Hearing for May 12.

Stewart said with the testimony and written documents they have concerns about the size and limitations of the current property for the availability of onsite septic system, concerns about the potential of contamination of the drainage ditches in which the septic system would contain between the two ditches and in Attachment 2, a concern about the statement that if not enough area is available for a sand filter, a holding tank would be required.

Stewart MOVED, Dwyer SECONDED.

Dwyer commented that just because he supports this motion does not mean he will support this in the end.

VOTE:  5-0.

c. PUBLIC HEARING, SETTING THE FINAL HEARING AND ORDER 10-4-28-12/ In the Matter of Annexing Territory Identified as Identified as Map 17-15-09 Tax Lots 1100, 1101, 1200, 1300, 1400, 1500, 1600, and 1700; 17-15-10 tax lots 1502 and 1600; 17-15-16 tax lots 1300, 1304, and 1037; and Portions of the McKenzie River and Deerhorn Road, to McKenzie Fire and Rescue Under ORS 198.855(3) (File No. F MK 2010 – ANX 1, King, et al.) (Final Hearing 5/19/10).

Schulz explained that this annexation request was initiated by the property owner with full consent as authorized by Oregon Revised Statutes ORS 198.855(3), including 13 tax lots with three separate ownerships.  She said the proposed annexation is located in the McKenzie Valley along Deerhorn Road south of the McKenzie River in the community of Leaburg.  She noted that Deerhorn Road connects to the McKenzie Highway near the Hendricks Bridge State Wayside.  She noted the parcels being annexed are undeveloped forest land.  She indicated that one tax lot is zoned F1 Non-Impacted Forest Land, five tax lots are zoned F2 Impacted Forest Lands and eight of the tax lots are split zoned between F1 and F2.  She reported that the parcels are not located within any city or urban growth boundary.  She said adjacent portions of the McKenzie River and Deerhorn Road have been included in the modified legal description at the request of McKenzie Fire and Rescue in order to insure no gaps in the service area.  She said adjacent properties to the proposed annexation area are also zoned F1 and F2 to the east and south and to the southwest there are Rural Residential zoned properties in RR1 acre and RR10 acre zoning.  She noted that McKenzie Fire and Rescue serves other properties in the area and the parcels requested for annexation in the McKenzie River and Deerhorn Road are adjacent to existing district boundaries.

Schulz said the owners have applied for forest dwelling approvals within the annexation area.  She noted January 29, 2010 was the date the application was submitted and March 15 the application was declared complete and a letter was sent to the applicant and the two hearing dates were set according to ORS 198 process.  She said on April 13 the dates of both hearings were posted in the Public Service Building and on the meeting room door, published in The Register Guard and mailed to all owners of property within 750 feet of the annexation area.  She added that agencies and other interested parties were notified.  She indicated a second legal notice was published in The Register Guard on April 23.  She said today is the Public Hearing to take testimony and to announce the effective date upon approval, May 19, the date of the final hearing.

Schulz explained that the decision criteria for the proposal are from ORS 198 and Board Order 07-12-12-19.  She noted: 1) the land is not within a district formed under the same principle act and this annexation area is not currently within any rural fire protection district and therefore the criteria is met 2) The affected territory can reasonably be served by a facility or services provided by a district and the McKenzie Fire and Rescue Board provides a resolution indicating that this criteria is met. 3) No land included in the affected territory will be removed if the land is benefitted.  She explained that once the surrounding parcels to the northeast and west contain dwellings and are already within the McKenzie Fire and Rescue District, this annexation area would allow an area without protection to be connected to those properties already within the district providing future forest dwellings, fire response and rescue services that would be appropriate and necessary for life safety. 4) The boundary change must be consistent with the Lane County Rural Comprehensive Plan and other adopted land use regulations or agreements  as required by the County.  She said the Lane County Rural Comprehensive Plan is the applicable plan, the annexation area is designated forest in the Rural Comp Plan and zoned F2 Impacted Forest Lands and F1 Non-Impacted Forest Lands.   She said the provision of rural level of fire protection to future forest dwellings is consistent with plan policy 4a and 4b of Goal 11 of the Public Facilities and services element of the Rural Comp Plan that acknowledges the rural level of fire service as appropriate for forest dwellings.  She said under Lane Code Chapter 16.211 (8)(c)(ii) there is a requirement for forest dwellings to receive such fire protection.  She indicated there is a choice for being within a district or developing their own fire protection plan. She stated the owners of the properties have requested the annexation to the fire protection district as the means of providing structural fire protection to future forest dwellings.

Schulz indicated that staff believes the applicant has showed consistency with the decision criteria and recommends the Board approve the request.  She said the Board order will be enacted when it is signed and the filing of the order will result in the annexation to be part of the district with taxation in 2011.  She added that  any future forest dwellings would come under the fire protection district.  She said the annexed territory would continue to receive timber land fire suppression coverage from the East Lane District of the Department of Forestry.

Commissioner Fleenor opened the Public Hearing.

Don Nickell, Cottage Grove, applied for an application for the petitioner.  He said since they applied for this, they do have special use approval for a majority of the parcels that are being applied for in this annexation.  He noted for parcel 1304, (next to the river) they want to apply for annexation to complete the gap in the surrounding area already being serviced by the fire and rescue district.  He said this is an infill of their providing service in this area.  He said they are trying to make sure that everyone has the ability to have a safe environment when they apply for their dwellings.

Darren Bucich, Fire Chief, McKenzie Fire Rescue, Walterville, was in support.  He said this fills a gap.

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

Schulz noted that the property to the south is also owned by one of the applicants that owns the annexation area.  She said one of the owners of the property being requested also owns additional lands that have not been requested to be brought in.  She assumed that the property owner has decided which property to bring in to the fire protection district.

MOTION: to approve ORDER 10-4-28-12.

Stewart MOVED, Sorenson SECONDED.

VOTE:  4-1 (Dwyer dissenting).

12. EXECUTIVE SESSION as per ORS 192.660

None.

13. OTHER BUSINESS

None.

There being no further business, Commissioner Fleenor adjourned the meeting at 3:05 p.m.

Melissa Zimmer
Recording Secretary