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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
The meeting adjourned at 4:00 p.m.
Kimberly Young, Recording Secretary
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