November 12, 1996
BOARD OF COMMISSIONERS' WORK SESSION
Commissioners' Conference Room - 1:30 p.m.

Chair Bobby Green, Sr. presided with Steve Cornacchia, Ellie Dumdi, Jerry Rust and Cindy Weeldreyer present. Sharon Giles, Recording Secretary.

11. OTHER BUSINESS

a. ON THE RECORD HEARING/Hearing Argument on the Appeal of a Hearings Official Decision Affirming the Planning Director's Approval of a Request to Allow a Dwelling Within an Impacted Forest Land Zone District (F2/RCP) on a Parcel Identified as Tax Lot 802 of Assessor's Map 19-04-05 (PA 4374-92; Application: Fogelstrom; Appellant: Tarjoto).

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b. ON THE RECORD HEARING/Hearing Argument on the Appeal of a Hearings Official Decision Affirming the Planning Director' Approval of a Request to Allow a Dwelling Within an Impacted Forest Land Zone District (F2/RCP) on a Parcel Identified as Tax Lot 800 of Assessor's Map 19-04-05 (PA 4375-92; Applicant: Fogelstrom; Appellant: Tarjoto).

Bill Sage, Associate Planner, provided a brief review of this item (see material on file), including procedural issues. He indicated that the parties would consist of the applicant and the appellant and their representatives, along with the Planning Director and staff.

Dumdi indicated that she knows the Fogelstroms, but has not discussed this matter with them. There were no ex parte contacts declared by any commissioners.

Sage reviewed the three issues of countywide significance, noting that they are centered on two points: 1) was the subject parcel lawfully created; and 2) did Lane County require compliance with the applicable criteria and standards at the time that the applications were reviewed and approved.

Ed Sullivan, representing appellant Heru Tarjoto, asked to reserve three minutes for rebuttal. He briefly discussed the three issues. Sullivan stated that the first issue relates to which version, if any, of OAR 660-06 applies to this case and which ORS applies. He remarked that there are three candidates for the OAR application: the 1990 version, the 1992 version and the 1994 version. Sullivan argued that the 1994 version is relevant because it was done pursuant to state law and the decision was made by the hearings officer in 1994. He continued that the 1993 version of ORS 215.705-750 applies because they were preemptive. Sullivan also discussed the 1992 version, adopted December 10, 1992 which was applicable when this application was made. Finally, he stated that the 1990 version of the rules also applies. Sullivan summarized that under any version of those rules, the applicant loses because they cannot meet the requirements of that rule. He explained that the hearings official referred to a gap in the rules, between December 10, 1992 and January 3, 1993, wherein any applicant does not have the non-forest dwelling rule applicable to them. Sullivan stressed that there was no gap because of the way the rule was constructed.

Sullivan went on to the second issue of lawfully created parcels and the practices of the Land Management Division. He emphasized that the Board must look to both state law and Lane County code provisions. Sullivan offered disagreement with staff, noting that what the law says is applicable in this case. He added that this is the first time any public agency has seen this issue, thus Montane does not apply.

With regard to access creation, Sullivan stated that since 1955, ORS 92.014(2) says that no person shall create a street or way for the purpose of partitioning land without the county’s approval. He stressed that there has been no approval. Sullivan explained that since 1970, the County has been adopting and enforcing regulations regarding the creation of public and private streets or ways. Sullivan summarized that the parcels were created solely to provide access.

Mike Farthing, attorney for applicant, the Fogelstroms, stressed that there is only one real issue and that is the legal lot and property line adjustment policies of Lane County. He continued that the first issue regarding what law applies to these applications has been conclusively addressed by the hearings official and Sage. Farthing added that the third issue regarding creation of a street or road has also been conclusively addressed by the hearings official and Sage, indicating that the properties that are the subject of these appeals were not created through the partition process, but were legally created by deed or contract, thus the statute does not apply. With regard to lawfully created parcels, Farthing explained that the hearings official found that neither Lane County nor state law regulated the land transactions described here as Lane County did not adopt different land division regulations until March of 1975. He stated that by 1972, several legal lots were created without partition approval because none was required. Farther indicated that there are only two rules for property line adjustments: 1) no new parcel can be created, and 2) the parcel that is reduced in size between two parcels sharing a common boundary cannot be reduced below the minimum acreage required. Farthing remarked that the only questions are: 1) whether, between 1970 and 1972, did the conveyances to the Fogelstroms violate existing laws, and 2) between 1970 and 1991, were there any state and local requirements other than the two above that were applicable to property line adjustments, and 3) did the deed in 1976 from Fogelstrom Corporation to Norm and Donna Fogelstrom create new legal lots in addition to those created in 1971 and 1971. He stressed that the hearings official said no to all three questions, relying on policies and practices that have been in place since 1984 and are consistently applied by the Land Management Division. Farthing emphasized that the practices employed by Land Management comply with state and local law and are relatively simple, easy to apply and not overly restrictive. He stressed that they reflect general Board policy regarding land use which is to make the system as simple, flexible and responsive as possible within requirements of state law and LCDC regulations. Farthing summarized that there is no evidence in the record to indicate that a partition was required for any of the conveyances and he asked that the Board confirm what is being done every day regarding legal lots and lot line adjustments. Weeldreyer asked if it is common practice to apply for a verification of legal lot and then sell the property before notification is received. Sage responded that it does occur and usually both parties get the information before closing.

Sullivan indicated that the issue is whether practices used were correct under state law as it existed during that time, in addition to the County’s ordinance(s). Responding to Farthing, Sullivan stated that the "tip" was created to facilitate access, and that the same goes for the "L-shape" and the 1989 easement. He emphasized that state law has been such that whenever you create an easement for partitioning land, that easement requires city or county approval. Sullivan stressed that if there isn’t a public process, then there cannot be a binding legal lot verification, noting that no notice was given. He urged the Board to reverse the hearings official and deny the appeal. Responding to Cornacchia, Sullivan stated that he is suggesting that the creation of the access was for the purpose of partitioning property.

With regard to the nonforest dwelling rule, Rust stated that he believes it is persuasive that there were a lot of pending applications, so he finds that the rule didn’t apply and the appellant doesn’t prevail on that issue. He remarked that the appellant was persuasive on the other two issues, in that the boundary was never consecrated by Lane County and no approval was given was given for the right-of-way/access/easement and it sounds compelling that that was a necessary part for having a legal lot to access. Rust summarized that he would vote to overturn.

Cornacchia agreed with Rust on the issue of the applicable criteria and standards, stating, however, that regarding the issue of creation of the lot, it seems to focus on whether or not the 60-foot pieces were created for the purpose of partitioning property. Cornacchia explained that it all depends on how the statutes are read. He stressed that this is confusing and complex, but that he is going with his gut feeling that the work and analysis by staff and the hearings official is more in line with what the legislature had in mind. Cornacchia summarized that he is comfortable with staff reports and positions, and the recommendation that the hearings official’s decision be affirmed.

Dumdi remarked that this has passed the scrutiny of a lot of people at the local and state level and that she would vote to affirm the hearings official’s decision.

Weeldreyer emphasized that this is a very complex issue and there is overwhelming written record to indicate that these are legal lots. Green indicated his agreement with the applicant’s position on all issues.

With regard to the issue of private streets or ways, Rust clarified Cornacchia’s position that in 1970 and 1980, as long as you were not partitioning property, easements could be created without county approval. With regard to cases cited by the appellant, Stephen Vorhes, Assistant County Counsel, recalled that both cases involve situations where the landowner was creating/using a road to provide access to parcels that were being partitioned for subdivisions. He indicated that in both cases the courts held that the statute did apply as those roads were created for the purposes of the subdivision. Rust remarked that he was unclear whether or not, in the absence of a subdivision or partition, these easements/rights of way have to be formally approved by county governments.

MOTION: To tentatively affirm the hearings official’s decision on all issues and direct/request applicant to provide Findings of Fact. Cornacchia MOVED, Dumdi SECONDED. Rust requested copies of the two lawsuits referred to by appellant.

VOTE: 4-1, Rust dissenting.

There being no further business, this meeting adjourned at 2:30 p.m.

Sharon Giles, Recording Secretary

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