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May 6, 1998

REGULAR MEETING BOARD OF COUNTY COMMISSIONERS

Harris Hall Main Floor 1:00 p.m.

Chair Steve Cornacchia presided, with Ellie Dumdi, Bobby Green, Sr., Peter Sorenson, and Cindy Weeldreyer present. County Administrator Bill Van Vactor, Assistant County Counsel Stephen Vorhes, Donald Maddox, Senior Planner Michael Copely, and Recording Secretary Kimberly Young were also present.

12. PUBLIC HEARINGS

a. CONTINUED PUBLIC HEARING AND ORDER 98-2-11-15/In the Matter of Certification of Final Assessments for Improvements to Irving Road from River Road to Highway 99 and Setting Lien Values Against Adjacent Properties

Mr. Maddox said that the board continued the public hearing from February 11, 1998, to review two issues: 1) the possibility of including the urban road assessment improvement project into the assessment deferral program; and 2) the methodologies of spreading assessable costs to the benefiting properties.

Mr. Maddox reviewed the history of the project, noting it had been constructed. He said this was the final step in the assessment process. He said the deferral program was initiated by the County subsequent to the original order to construct the project, so the project was not included in the program. He also said were the program applied to the project, there would be approximately $50,132.55 subject to deferment.

Mr. Maddox reviewed responses from Eugene, Portland, Springfield, and Washington County to a survey regarding their assessment methodologies.

The Board viewed overheads presented by staff. The first overhead (Exhibit X) depicted a map of a property affected by the Irving Road project illustrating the impact of spreading assessable costs on a per square foot basis; the second overhead (Exhibit Y) depicted the same property and illustrated the impact of assessing the costs among the lots created from the original tax lot; the third overhead (Exhibit Z) depicted the Ryan Meadows Third Addition adjacent to Irving Road, in which four of six lots were "flag staff" lots with a flag staff of only 6.5 feet in width, and illustrated the impact of assessing the costs on an equal distribution basis and 60-foot minimum frontage basis.

Mr. Maddox reported that the developer of Ryan Meadows, Steve Lee, had assured the property owners within the Third Addition that he will pay the assessment levied against individual lots when the County determined the final assessment because, in error, the liens against the properties were not declared when the properties were sold.

Mr. Maddox referred the board to the four possible options for actions outlined in the agenda packet: 1) certification of final assessments in accordance with the assessment policy in place at the time the project was initiated as per Option A, Exhibit A; 2) certification of final assessments as per Option B, Exhibit A, which incorporated the current assessment policy including the deferral provisions; 3) extend the public hearing to continue the policy discussion; and 4) refer the policy discussion to the Finance and Audit Committee for additional consideration.

Mr. Cornacchia asked if current assessment policies addressed the sharing of the assessment on flag staff lots. Mr. Maddox said no; the current policy was that the assessment was levied according to the amount of front footage for individual lots. He cautioned that changing the policy at this time could have implications beyond the immediate case and could affect other properties involved in the Irving Road improvement. He estimated that there were approximately 20 flag staff lots affected by the project. Mr. Cornacchia suggested that there was another policy decision the board must make related to flag staffs.

Mr. Maddox recommended the board adopt option 2 for Irving road. He recommended that the board also refer the related policy discussion to the Finance and Audit Committee.

Responding to a question from Mr. Green, Mr. Maddox clarified that Mr. Lee's offer to pay the assessments was not incorporated in option 2 because it was a private matter.

Mr. Cornacchia opened the public hearing. There being no requests to speak, Mr. Cornacchia closed the public hearing.

Ms. Dumdi supported option 2 as the most reasonable and equitable approach.

Ms. Weeldreyer suggested the board adopt Mr. Maddox's recommendation that the policy discussion be pursued further, given her belief there would be more such situations.

Mr. Green supported option 2.

The board agreed by consensus to refer the policy discussion regarding flag staffs to the Finance and Audit Committee.

MOTION: to adopt option 2 in the matter of certification of final assessments for improvements to Irving Road from River Road to Highway 99.

Commissioner Dumdi MOVED, Commissioner Green SECONDED.

VOTE: 5-0.

b. ORDINANCE PA 1111/In the Matter of Amending the Rural Comprehensive Plan to Redesignate Land from "Forest" to "Rural" and Rezoning that Land from "F-2/Impacted Forest Land" to "RR-5/SR" ("Rural Residential 5 with Site Review"), Adopting Exceptions to Statewide Planning Goals 3 and 4; and Adopting Savings and Severability Clauses (File PA 2418-97; Jewett)

Mr. Cornacchia read Ordinance PA 1111 by title. He said the decision made by the board would be subject to Plan Amendment and Rezoning criteria cited in the agenda cover memorandum and attachments. He said all evidence and testimony should be directed toward the approval criteria and that failure to raise an issue to enable a response could preclude an appeal to the Land Use Board of Appeals (LUBA). He said that only persons who submitted information into the record or who qualified as a "party" could appeal a board decision to LUBA.

Mr. Cornacchia called for ex parte contacts or conflicts of interest. Ms. Weeldreyer announced that she had met with Mr. Jewett approximately three years ago to discuss his development plans, and had also discussed the issue periodically with members of the McKenzie Watershed Council. She said that those discussions would not prejudice her decision.

Michael Copely, Land Management Division, referred the board to an overhead illustrating the notice map. He described the size of the parcel in question and its location. He said that approval of the proposal would extend an existing rural residential area.

Mr. Copely said that the Planning Commission held a public hearing on the matter in November 1997, held the matter over to a second meeting in December 1997, deliberated, and agreed to recommend approval of the proposal.

Mr. Copely noted that no referral response had been received from the Oregon Department of Land Conservation and Development.

Mr. Copely reported that, in response to testimony received, the applicant proposed a site review suffix be attached to the property as part of the rezoning. Staff concurred with that proposal, which was incorporated into the application before the board. Responding to a question from Mr. Cornacchia, Mr. Copely said that site review could include conditions that address issues such as riparian vegetation enhancement.

Mr. Copely said that the change in zone from F-2 to RR-5 would reduce by half the riparian setback on the property from 100 feet to 50 feet. The applicant had previously applied for a riparian modification variance in the F-2 zone for a home site, and that application was denied because the 100-foot riparian area both filled up the property and extended into the setback of Deerhorn Road. If the application was successful in obtaining the rezoning, the riparian setback would be pulled back by 50 feet and there would arguably be room for a building site in the 20 to 40 feet remaining between the riparian setback and the Deerhorn Road setback.

Mr. Copely noted that there was testimony in the record from the Oregon Department of Fish and Wildlife (ODFW) that there was insufficient room to build on the property even with the 50-foot riparian setback. He added that the property's location along the river had attracted considerable attention from landowners and interest groups. The record included testimony from the previous riparian variance proceeding.

Mr. Copely said that the site was subject to flood constraints and had a record of flooding. Any building on the property would have to comply with the County's Floodplain Special Use Permit Regulations, and the applicant was proposing a building type that would mitigate flood hazard.

Mr. Copely noted the inclusion in the agenda packet of two letters of testimony from the Bureau of Land Management (BLM), an adjacent property owner; one letter, dated May 16, 1997, in response to an inquiry from the property owner, indicated BLM was not interested in purchasing the property. The second letter indicated BLM believed site development would be injurious to its property.

Mr. Copely reviewed options for action: 1) adopt the ordinance without site review; 2) adopt the ordinance with site review; and 3) deny the ordinance. He recommended option 2 if the board believed the criteria were met. Regarding the question of whether the property met the board-established guidelines for committed lands, Mr. Copely said that the property was small enough to qualify and was a separate legal lot, another part of the standard. He said that did not compel the board to adopt the proposal if there were other reasons to deny it.

Ms. Weeldreyer asked Mr. Vorhes if the decision before the board relied on the developed and committed exception. Mr. Vorhes said yes.

Ms. Weeldreyer asked if issues such as septic concerns, traffic impact, and access to the site were relevant to the land use decision, or if such issues were addressed by site review. Mr. Vorhes said such issues could be addressed by site review. He hesitated to say the issues had no relevance to the land use decisions without closer examination of the criteria.

Responding to a question from Mr. Sorenson regarding criteria to be considered, Mr. Copely said that the criteria involved were plan amendment criteria, and were cited in the findings on page 9 of Exhibit C. Additional criteria were included in the Oregon Administrative Rules (OARs) and in the Lane Code. Those criteria were also addressed in the findings.

Responding to a question from Mr. Sorenson, Mr. Copely said that if the board adopted the ordinance, it would be adopting the findings. Mr. Sorenson asked if the criteria related to the Statewide goals had been appropriately evaluated as required by Lane Code and included within the subject planning documentation. Mr. Copely said that staff found that the goals were complied with. Mr. Sorenson said that he was attempting to determine how to balance the conflicts between goals. Mr. Copely said that there were certain critical criteria the board needed to evaluate. In this case, the board was considering an exception to the OARs, a key issue. He referred the board to the State criteria cited in the findings in Exhibit C, pages 14 through 20, and said the board was compelled to apply them because the OARs had the force of law. He suggested that some criteria were more relevant to the application than others. Mr. Copely said that essentially, the issue before the board was whether the property should be removed from the resource base.

Mr. Sorenson asked if the property's location along the McKenzie River was a factor. Mr. Copely said that was a variable the board could consider because there were policies in the Rural Comprehensive Plan related to natural hazards, water resources, and recreational requirements. Responding to a follow-up question from Mr. Cornacchia, Mr. Copely said that there were no County policies or criteria specific to a property's location along a river, although there were County policies and regulatory ordinances related to riparian management and preservation, water quality, and water resources.

Ms. Weeldreyer said that she assumed concurrence with the Planning Commission did not mean that the property was immediately buildable, but must go through the development and permitting processes. Mr. Copely agreed. He noted the additional process created by site review.

Mr. Copely clarified that the applicant was not seeking a nonresource designation, but rather a committed lands designation, which indicated the property, by virtue of its surroundings and location, could not reasonably used for resource purposes.

Mr. Cornacchia opened the public hearing.

Thomas Miller, 682 Woodcrest Drive, Springfield, represented the applicant, Howard and May Jane Jewett. He distributed copies of the three resource maps included in the agenda packet to board members. (See material on file.)

Mr. Miller said the site in question was small, complex, and much misunderstood by many different people. He said that while the site currently had a 100-foot setback and could not be developed, the Class I stream regulations allow the property owner to remove vegetation from 42 feet of the site without a permit. Responding to a question from Mr. Cornacchia, Mr. Miller cited Lane Code 16.253(b)(i) in support of his statement.

Mr. Miller said the riparian zone on the property was nearly devoid of vegetation, and the site contained no major trees in the riparian setback zone. The site was sandy and susceptible to natural erosion. He said that the maps illustrated that the site had at one time extended farther into the river. Mr. Miller said that he attempted to develop a plan to enhance the site. He believed that the option of riparian enhancement addressed objections that the development would threaten fish habitat and further erode the site.

Mr. Cornacchia asked Mr. Miller if he anticipated the applicant would file a variance request to encroach into the 50-foot riparian zone. Mr. Miller said no.

Mr. Miller said that the only remaining open-ended question was the septic service to the site. He had the soils on the site tested, and they would be appropriate for a bottomless sand filter system. He suggested that meant no drain field was required, easily meeting the 100-foot separation required from the well located next door.

Mr. Miller said that Mr. Jewett had purchased a property with tremendous constraints. He would not sell the property to anyone who did not want to build a pier and beam house. Mr. Miller speculated such a purchaser would be someone who wanted to live in a river environment, not someone who wanted a big green lawn that reached the river.

Responding to a question from Ms. Weeldreyer, Mr. Miller said that he was unable to explain the mechanics of the bottomless sand filter but experts maintained that they worked. Several such systems were successfully installed in the area of the McKenzie River.

Mr. Sorenson referred to the map illustrating the Vegetative Survey and Proposed Riparian Enhancement Plan (Attachment G) and asked if it accurately portrayed the boundaries of the property. Mr. Miller clarified that the side channel shown on the map was considered the McKenzie River, and the edge of the river was the property boundary. The property did not include any portion of the island. He had included the boundaries as partitioned in 1957 to demonstrate what occurred to the property over time as the side channel shifted.

Mr. Sorenson asked Mr. Miller what criteria justified the proposed change. Mr. Miller said that while he was not an attorney, he had strong values about property rights, and the property in question was privately owned, not public open space, and it would not be public open space if it remained as F-2 land. He said that the property was no longer in a natural state and "needed help." Mr. Miller said that the property was initially included in the County's exception areas until 1,000 Friends of Oregon had challenged the County and it was then excluded. Mr. Miller maintained that many of the excluded parcels were eventually added to the exception areas but "this one was looked over." He believed the County intended the site to be excepted because it was a legal lot. The riparian setback and road setback for the F-2 zoning removed the ability of the owner to use the property, which he considered a taking. Mr. Sorenson suggested the same would be true if the property were rezoned RR-5. Mr. Miller responded that if the property were rezoned RR-5, the property owner would have the opportunity to use the site for one rural residence after going through the relevant development processes.

Mr. Sorenson asked what the property was currently used for. Mr. Miller responded that the property was vacant. He confirmed that there were no documented resources on the property such as open space, wildlife, or cultural or historic resources. A neighbor had anecdotally indicated that he had participated with high school biology classes releasing trout at the site and had never seen a single fish return. Responding to a follow-up question from Mr. Sorenson, Mr. Miller said that he could agree that given the presence of the river, there were documented resources near the property.

Responding to a question from Mr. Cornacchia, Mr. Miller confirmed that the property contained western red cedars, and the property owner did not propose to plant any conifers in the riparian zone.

In conclusion, Mr. Miller said that he had examined the site carefully and attempted to develop a plan that protected the remaining vegetation while accommodating a pier and beam house in an environmentally sensitive, attractive manner. He said that the riparian plan would increase fish habitat and create a visual buffer from the river.

Responding to a question from Ms. Weeldreyer, Mr. Miller confirmed that the property owner had previously discussed adding a deed restriction regarding the type of construction but did not consider that was necessary now, given the site review process.

Robin Gage, 41006 Deerhorn Road, said her property was across the street from the property in question. She stated that the proposal in question was opposed by all offering testimony at the two previous hearings, with the exception of Mr. Miller, the seller of the property, and the buyer. Those opposed to the proposal were highly credentialed and diverse.

Ms. Gage said that rezoning of property was intended to be done in a manner not contrary to the public interest. She said that biologists of the Oregon Department of Fish and Wildlife had offered testimony that the site was on an important and unusual side channel of the McKenzie River that represented an important spawning ground. She noted that Lane County employee Bill Sage observed at the initial public hearing that the entire parcel was in the riparian zone, the public right-of-way, or both. The applicant acknowledged the parcel was in the floodplain, and in fact had recently flooded. She said those were among the reasons to deny the application.

Ms. Gage addressed inaccuracies in the application and findings. She said that when the applicant looked for average lot sizes to justify the requested zoning, he had to go across the river to find similarly sized parcels. None of the properties on the same side of the river were as small.

Ms. Gage disagreed with the conclusion on page 24 of the findings of fact that no habitat for sensitive bird species existed on the property. She questioned the conclusion on page 30 of the application for the plan amendment and zone change that no sensitive habitat sites had been identified on or near the property, and asked where the information came from. She said that the adjacent BLM property was sensitive for bald eagle habitat. Ms. Gage asked if BLM biologists had been consulted. She asked how the application could state that BLM had identified its adjacent property as "an area of critical environmental concern" while stating that there was no sensitive bird habitat on or near the property.

Ms. Gage said that the maps included in the meeting packet were inaccurate as to her property's boundaries. She had sent a corrected map with documentation; that was noted in the text but not on the maps.

Ms. Gage referred to page 13 of the findings of fact, which stated neither the adjacent properties were engaged, or planned to be engaged, in forest management. She pointed out that the BLM was actively engaged in forest management on its land. She said that while the applicant argued the site was adjacent to rural residential land, it was equally or more adjacent to forest land.

Ms. Gage said that she had purchased her property because it was forest land and adjacent to BLM land. She said she bought the property to protect it and enhance it for wildlife and forest. She said that the proposal, if granted, would affect her adversely. The building would adversely affect the land and nearby residents.

Ms. Gage said that the applicant stated the McKenzie River Trust was not interested in purchasing the site. She had spoken to a member of the trust, who indicated the trust had been interested but could not afford the owner's price for the property. She had confirmed those remarks with the individual earlier that day. The trust was interested in having the property in public ownership for riparian protection purposes, and had facilitated a meeting with BLM with that goal. The owner was offered an alternative piece of property.

Ms. Gage said that the site had been considerably degraded by the removal of native plants and bulldozing and graveling done to accommodate a driveway. She believed that without further degradation, the site could be allowed to heal. She asked the board to deny the application.

Ms. Gage referred the board to testimony offered by former Lane County Planning Commissioner George Grier, who maintained that the intention of the Rural Comprehensive Plan was to limit current and future residential areas to typical historical densities and locations, resulting in limited impacts on resource lands and values. She suggested that to approve the rezoning was a violation of the plan's intent. She believed the application, if approved, could represent a significant legal precedent.

Mark Wade, Oregon Department of Fish and Wildlife, identified himself as the district biologist for Eastern Lane County. He said he would address the effects of the rezoning on fish habitat; the suitability of the site for rural residential zoning; and the issue of "taking" earlier raised by the applicant's representative.

Mr. Wade said that he had been a fish biologist for ODFW for 20 years. The area adjacent to the site was a side channel of the McKenzie River. He said that ODFW continued to be concerned that residential development at the site would degrade important fish habitat. Mr. Wade noted that the applicant's representative had offered, as rebuttal to his testimony to the Lane County Planning Commission, observations of the adjacent land owner that he had never seen salmon or trout spawning in the area. He concurred with that observation. Mr. Wade said that it was not spawning habitat, but was important rearing habitat for spring Chinook, rainbow trout, and cutthroat trout. He emphasized the importance of back channels to small fish. He said that residential development at this site would not end trout and salmon production in the McKenzie River, but ODFW believed the cumulative effects of such development was very detrimental to fish and wildlife habitat.

Responding to a question from Mr. Cornacchia, Mr. Wade did not think the ordinary high water mark shown on the applicant's maps were accurate. He said that he had reviewed the site and was qualified to establish the ordinary high water mark on the site. Mr. Cornacchia said that the applicant intended to enhance the riparian area, and he questioned how the riparian plan would degrade the habitat of the side channel. Mr. Wade said that he did not think the plan itself would degrade the habitat. In such cases, where the channel has migrated to the south, it was likely to continue to migrate and come closer to the house. He doubted that the property owner would let the house fall into the water and would instead install revetment. Mr. Cornacchia pointed out that there were houses all the way along the river. Mr. Wade responded that most were not as close to the river and most did not have revetments. Mr. Cornacchia asked if other properties would not be similar affected by a change in the channel location. Mr. Wade did not think the problem was applicable to other sites given the location of the property in question. He specified that his concerns were about future degradation. He said that while the planting of riparian vegetation was commendable, vegetation would grow on the site without the need for a planting plan if the applicant would stop running a bulldozer across it.

Mr. Wade did not think the applicant had accurately portrayed the suitability of the site for residential development. The maps submitted by the applicant incorrectly showed both the ordinary high water line and 50-foot riparian setback. He showed the board a photograph of the site taken on January 8, 1998, at a river flow of 6,000 cfs; an arrow on the photograph was pointing to a vine maple tree standing in water. Mr. Wade said that 6,000 cfs was not ordinary high water at this location. Ordinary high water would be several feet up the bank, as demonstrated by the presence of reed canary grass. He had also circled the vine maple on a copy of the applicant's riparian planting plan, at about elevation 625. Ordinary high water at this location was at elevation 624. Mr. Wade said that the point where the applicant indicated ordinary high water was under several feet of water at a flow of 6,200 cfs.

Mr. Wade showed the commission an overhead illustrating the impact of the ordinary high water mark of elevation 624 on the site. He said that would reduce the buildable area on the lot by one-third, eliminating the possibility of a deck and possibly precluding construction without further variance.

Regarding the issue of takings, Mr. Wade said that Mr. Miller had argued that testimony from federal and state personnel was not factual and instead represented general opposition to residential development along the McKenzie River. Mr. Miller had further argued that Lane County should not "take" private property for scenic resources. Mr. Wade said that as an individual he was concerned about the takings issues and it was an issue yet to be resolved in the United States. However, in this case, Mr. Jewett, who is a real estate broker, acquired interest in the property in February 1995. The parcel was zoned F-2 when Mr. Jewett acquired it. Lane County restrictions limiting removal of riparian vegetation and development in riparian areas dated to 1992, and it was reasonable to assume that a real estate broker who lived on the McKenzie River himself was aware of the regulations. Mr. Wade asked that the regulations and zoning in place when Mr. Jewett acquired the property continue. He said that Mr. Jewett accepted the risk when he chose to speculate on the property. Mr. Wade did not see how denying a change in zoning could be reasonably construed as a taking. He asked the board to deny the application.

Responding to a question from Mr. Sorenson regarding his credentials, Mr. Wade said that he was a graduate of Oregon State University with a fisheries degree, had a master's degree in fisheries from OSU, had worked for ODFW on steelhead research in the Willamette Valley for 11 years, had served as the Assistant District Biologist in Springfield for the past ten years with oversight of the McKenzie River, and now was Acting District Fish Biologist.

Mr. Sorenson asked Mr. Wade how juvenile fish using the side channel could be impacted by development on the property. Mr. Wade responded that the fish could be affected by human activity on the site not anticipated at this time. He said that future owners were not committed to the plan before the board, and generally as time went on people living along the river decided they needed a shed, needed to build a retaining wall, or needed to remove trees that were planted in the riparian area to enjoy a clearer view of the river. Mr. Wade said that there were many ways that the terrestrial area interacted with the river.
Richard McCutcheon, representing the McKenzie Fly Fishers, reiterated the objections previously expressed by his organization regarding the proposal. Regarding the issue of taking by ordinance or by zoning, Mr. McCutcheon said that the United States Supreme Court rejected that argument many years ago in the case Euclid versus Ambler Realty.

Emily Rice, BLM's McKenzie Resource Area Manager, said she wished to clarify some information regarding the parcel owned by BLM adjacent to the property in question. She believed the property was misrepresented in the board's findings. Ms. Rice said that the tract zoned F-1 near the parcel in question was considered through a matrix land use allocation to be managed for timber production. The tract directly adjacent to the property was in the riparian reserve, a subset of the matrix. It was unlikely that the property north of Deerhorn Road would be managed for timber harvest because the area was wet and the river moved around. However, Ms. Rice said, in contradiction to the reference to page 13 of the board's findings, BLM considered management of riparian areas to be forest resource management. She noted that the values for riparian areas were very high. Ms. Rice added that the applicant had never contacted BLM to request information on the resource uses on the BLM property in order to describe them. She said that references in the original application to the effect that the property was an Area of Critical Environmental Concern or water management area were inaccurate.

Referring to page 18 of the findings, Ms. Rice said that in her opinion, there was no natural or manmade impediment between the property and adjacent resource land as argued by the applicant. She said that allowing a home site to be located so close to BLM did not encourage local landowners to work with BLM to manage its lands as directed by its land use plans.

Regarding the issue of why BLM did not purchase the property in question, Ms. Rice said that the federal government had a process for screening parcels for their values. When the property was screened, it had insufficiently high values to justify the purchase. However, BLM's lack of interest in acquiring the parcel did not mean BLM thought it did not have high riparian resource values.

Ms. Weeldreyer noted that she and Ms. Rice had viewed the site on a raft trip taken by the McKenzie Watershed Council. She said that in the council's discussion of recreation sites for future development, the informal BLM boat landing adjacent to the property in question was identified for such development. Ms. Rice responded that there was a very informal landing at that site without sanitation or actual facilities, and the BLM hoped to mitigate the sanitation issue and users' impacts on vegetation with the addition of sanitation facilities and parking barriers. She added that the site was used by a few individuals at limited times of the year.

Ms. Weeldreyer referred to the concern expressed by Ms. Rice about the proximity of the development proposed by the applicant to BLM land, and asked how she would respond to the takings issue of not purchasing the property to reduce that interface in the long-term development of the BLM site as a public access to the McKenzie river site. Ms. Rice said that she did not view the issue as a takings issue. The site was designated F-2 and served as a good buffer between rural residential and lands managed for forestry. She questioned how BLM would be "taking" something that was already zoned F-2. Ms. Weeldreyer pointed out that the applicant was arguing it was erroneously zoned F-2 and should have been zoned rural residential to reflect the zoning pattern along Deerhorn Road. Ms. Rice said that BLM was concerned about the proposal from both a recreation point of view and the impact on the riparian area. She emphasized the small amount of area consumed by the informal boat landing.

Mr. Cornacchia asked Mr. Miller for rebuttal.

Mr. Miller said it was not clear to him if Mr. Wade was speaking on behalf of ODFW.

Mr. Miller said that essentially, Mr. Wade attacked the County's ability to determine the ordinary high water mark on the site. Don Nichols and Bill Sage of the County had been on the site twice. Mr. Cornacchia asked if that was documented in the application. Mr. Miller said yes. He said that there were detailed maps made by the County that he had relied on in the application.

Mr. Miller asserted that Mr. Wade had not identified the correct vine maple on the map when he showed the board the photograph of the maple in the water.

Mr. Miller asserted that the information he had employed in the application regarding BLM's management plans for its property was taken from public testimony in the F-2 hearing process.

Ms. Weeldreyer asked if Mr. Miller would revise the board's findings to indicate that BLM's land was in use for timber management, including the riparian area. Mr. Miller said yes. Mr. Cornacchia said that at this time, the finding was erroneous. He said that it appears if the finding was revised a Goal 5 conflict occurred. If there was forest resource management adjacent to the property, he believed there was another step in the process. Mr. Copely said that the applicant would be expected to explain those activities and provide reasoning as to how the proposed use would not conflict with resource management, or how those conflicts would be mitigated. He recommended that the board instruct the applicant to prepare supplemental findings if the board concurred the finding was in error.

Mr. Miller responded to testimony offered by Ms. Rice regarding the drainage way that he had argued separated the property in question from BLM's property. He maintained that it appeared on the topographic map and "it was a fairly significant" drainage swale located roughly between the two properties. He said that it was sufficiently significant to serve as "some sort of a barrier," at least a barrier to pedestrians.

Mr. Miller wondered why there was no documentation from BLM or ODFW regarding the environmental impacts of the boat landing on the river or the riparian area.

Mr. Cornacchia asked Mr. Copely to identify the documentation prepared by the County related to the ordinary high water mark. Mr. Copely referred the board to the proceedings attached to the packet related to PA 3100-95, the applicant's previous application for a modification to the Class I stream riparian regulations.

Mr. Cornacchia asked if Bill Sage of Lane County had primary responsibility for establishing ordinary high water for the County, and the requisite training and experience to do so. Mr. Copely said that he was unable to speak to Mr. Sage's credentials, but he had been central to the County's riparian management efforts. He added that with respect to the property in question, there may some room for a difference of opinion. Mr. Copely referred the board to the slide of the property prepared by Mr. Sage. He said that the slide demonstrated ordinary high water as of October 31, 1995, which was placed at the upper bank of what was referred to as the lower terrace. That bank may or may not be overtopped by the river. Mr. Sage fixed the boundary for purposes of establishing the 100-foot setback area for the proceedings before the Hearings Official.

Mr. Cornacchia asked what the topographic line was for ordinary high water. Mr. Copely estimated it was at elevation 619. Mr. Cornacchia noted that the topographic line in the application indicated the bank at an elevation at 620, a slight difference. Mr. Copely said that he had spoken to Mr. Sage about the property, and he had indicated there may be reason to believe the lower terrace could be part of the ordinary high water. He did not know if the location of the ordinary high water line was material to the proceeding, because it was a variable that would be addressed through site review.

Mr. Cornacchia said that the issue of ordinary high water was critical for him because if Mr. Wade were correct, he did not see how a house could be constructed on the property without intruding on the riparian area. If Mr. Sage was correct, he was comfortable with the application because he believed that the riparian vegetation ordinance would protect the river. Mr. Copely suggested that Mr. Sage could be asked to attend the meeting, or the matter could be held over. Mr. Cornacchia said he did not want to give Mr. Sage another opportunity to come back and say, 'well, maybe I could have done this differently'; he was willing to rely on the statements before him and was comfortable with Mr. Sage's work as reflected in past records.

Mr. Copely said that he would tend to rely on Mr. Sage; in addition, Mr. Nichols had also been on the property and had fixed the 100-year flood elevation at 621 or 622, which was by definition above ordinary high water. He believed the staff work supported the map reflecting Mr. Sage's measurements. Mr. Copely added that even if the ordinary high water line moved at some point, the applicant was compelled to comply with that in terms of the 50-foot setback. If the line moved south, the setback moved south, and the applicant may not be able to the build on the property. He reiterated that the issue was not relevant to the question of whether the site should be granted an exception. He said that it frequently happened that land divisions resulted in unbuildable lots. The County, by approving the amendment, was not approving a building plan for the site. Mr. Cornacchia said that at the same time, a court of equity would never compel a useless act; that meant the County should not be rezoning properties that could never be developed as the land owner desired if other circumstances would preclude such opportunities. He agreed that it might not be the key criteria, but was still relevant. Cornacchia said staff felt the same or would not have recommended site review. Mr. Copely agreed. He said that he had reservations about the proposal but believed the applicant was "going into this with his eyes open" and was forewarned that site might not be buildable.

Ms. Weeldreyer asked Mr. Vorhes for an opinion. Mr. Vorhes noted his concurrence with Mr. Copely and said that the fulcrum of the issue was whether the land was irrevocably committed to nonresource use. He said that there were other processes to deal with the location and design of the building, and it was premature to attempt to fix those at this point.

Mr. Cornacchia asked Mr. Wade if he wished to comment. Mr. Wade pointed out on the slide prepared by Mr. Sage the location of the elevation labeled "Flood Stage 12-8-95." He said that was close to what he believed to be ordinary high water mark, a flow of approximately 13,000 cfs. Mr. Wade also referred the board to the elevation of 832 shown for the debris and sediment area and said it indicated a 60-year event in the McKenzie River. He suggested that either the 100-year flood map was in error, or the applicant was using a different base elevation. Mr. Wade believed the material prepared by Mr. Sage supported his remarks and that Mr. Sage would agree if he reexamined the data.
Mr. Cornacchia closed the public hearing.

Ms. Weeldreyer said that she concurred with the zone change request because of the size of the parcel, the development history of the parcel, and the history of the exceptions process. She agreed with the staff recommendation that the parcel was not resource land and was more appropriately used for residential development. She supported the staff recommendation for site review to address the other issues that had arisen in testimony. Ms. Weeldreyer also supported the preparation of supplemental findings regarding the nature of the adjacent BLM land.

Mr. Green said that the proposal satisfied relevant County policies and state law. He said that it was not the County's job to make the property buildable. The property owner would have to take the risk. Mr. Green said that when staff recommended site review, it was generally not comfortable with the proposal.

Ms. Dumdi concurred with Mr. Green's statements but said that she was not sure that rezoning the site for residential uses was wise, given the location of the property and the issues related to the floodplain and adjacent properties. She did not support the application.

Mr. Sorenson said that he was impressed by the testimony offered by the ODFW related to the impact of development on the river and fish habitat. He did not support the application.

Mr. Cornacchia noted the lack of federal or state programs or expectations related to anadromous fisheries above the dam. He said that federal and state agencies "had written off" the upper McKenzie River for habitat, at least for the time being. However, he concurred about the importance of side channels for a variety of different fish in fry stage. That led to his concern about the ordinary high water mark. Mr. Cornacchia said that Mr. Wade's experience and education was largely related to fishes, not establishing high water marks. However, that was the task specifically assigned to Mr. Sage and Mr. Nichols, and in this instance he was inclined to rely on their expertise.

Mr. Cornacchia said that he believed that the testimony offered by Mr. Wade regarding future impacts was somewhat speculative about the lack of performance from landowners about the rules governing development on the river. He acknowledged the validity of Mr. Wade's concerns and said that he had floated the same section of the river and viewed the lawns extending to the river. However, the board could not base its decisions about such speculations.

Mr. Cornacchia reiterated that if Mr. Wade had correctly identified the ordinary high water mark he would be concerned about the proposal, even though he believed the parcel met the criteria for developed and committed lands. He concurred with the planning commission and staff recommendation.

MOTION: To tentatively approve Ordinance PA 1111 with exhibits A and B, and adoption of Exhibit C as drafted, and to direct the applicant's representative to prepare supplemental findings to bring back to the board for a third reading and final action.

Commissioner Weeldreyer MOVED, Commissioner Green SECONDED.

Ms. Weeldreyer reiterated her concerns about whether the lot could be built upon, but she did believe the applicant had made the case the property was not resource land.

VOTE: 3-2; Ms. Dumdi and Mr. Sorenson voting no.

13. COUNTY ADMINISTRATOR'S ANNOUNCEMENTS

Mr. Van Vactor said that a legislative interim committee would like a representative of the Association of Oregon Counties (AOC) and a representative of Associated Oregon Industries to cochair a review of public contracting processes. Bill Penhallow of AOC had contacted him and asked him to represent AOC. He asked the board members for their thoughts on the request. He believed the effort could be beneficial to the County and other Oregon counties in the long-run. The board indicated that Mr. Van Vactor should do what seemed best to him.

14. EXECUTIVE SESSION as per ORS 192.660

None.

The meeting adjourned at 4:00 p.m.

Kimberly Young, Recording Secretary

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