November 5, 1996
BOARD OF COMMISSIONERS' WORK SESSION
Harris Hall Main Floor - 1:30 p.m.
Chair Bobby Green, Sr. presided with Steve Cornacchia, Ellie Dumdi, Jerry Rust and Cindy Weeldreyer present. Sharon Giles, Recording Secretary.
1. ADJUSTMENTS TO THE AGENDA
Roger McGuckin, John Cole and Kent Howe were present at the end of the meeting to ask the Board for clarification of previous direction. Cornacchia explained that he was asking for a staff exercise detailing the pros and cons of returning the building side of urban transition back to Lane County, along with staff recommendations. There was agreement that this issue would come back before the Board in late January or early February. In addition, Howe indicated to Weeldreyer that staff would provide information on the RV issue to Rust and Weeldreyer, followed by a decision on whether to present the matter to the full Board.
2. PUBLIC COMMENTS
Katherine Wilson, 93323 River Road, Junction City, reported that an arsonist recently burned down her great-grandfathers milk barn adjoining Browns Landing Park. She stated that she is here to petition the Board to close that abandoned park for the following reasons: 1) The park is located on a right of way of the U.S. Corp. of Engineers for emergency flood control and cannot be developed, nor was it ever granted permission to be there; 2) It was accessed by the public across farmland owned by a person who did not want the park there and would not grant easements; 3) It has been the scene of vandalism, crime, etc.; 4) It is a serious public health concern as it lacks sanitary facilities; and 5) It has recently been a campsite for transients who set illegal fires and leave vehicles and trash. Wilson explained that there is a County boat launch facility within one mile of this park and during the process of its creation, the landowners were promised Browns Landing would be closed. She expressed concern that Bob Keefer, Parks Manager, has a conflict of interest regarding closing Browns Landing. Wilson stated that after speaking to Keefer on two occasions, Lane County officials were notified that she was in some sort of violation of County regulations, both of which were not true. Wilson submitted a petition for closure of Browns Landing. There was a consensus to send Keefer a copy of the petition and ask for a report back at the Boards next scheduled meeting and also to have Keefer respond directly to Wilson. Keefer was also directed to provide a map of the location.
3. COMMISSIONERS' ANNOUNCEMENTS
Weeldreyer indicated that she has sent out letters to county Chambers of Commerce regarding potential door prizes for the upcoming AOC Conference.
Dumdi remarked that she had helped dedicate the opening of Willamette Street last Friday and she presented a brick from the construction to Green.
Green reported that he had worked in the exhibit area at the Black Meeting Planners Convention which he attended with the Convention and Visitors Association. He indicated that several people are now coming to Eugene this weekend to look over the area/facilities.
Dumdi and the Board expressed sympathy to the Forest Service and the community of Oakridge for the losses in the recent arson fire.
4. EXECUTIVE SESSION as per ORS 192.660
To be held tomorrow.
5. COUNTY ADMINISTRATION
6. PUBLIC WORKS
a. ON THE RECORD HEARING/Hearing Argument on the Appeal of a Hearings Official Decision Affirming the Planning Director's Denial of a Request to Allow a Dwelling Within an Impacted Forest Land Zone District (F2/RCP) on a Parcel Identified as Tax Lot 100 of Assessor's Map 17-02-03 (PA 1990-92; Bruce Morgan).
Bill Sage, Associate Planner, reviewed this item for the Board (see copy of report on file). He discussed the status, the record, the issues and staffs recommendations on material included in the two addendums. Responding to Cornacchia, Sage stated that there is one easement in staffs opinion, with a 60-foot portion and a 40-foot portion.
Green opened the public hearing and reviewed the rules for the hearing. With regard to ex parte contacts, Weeldreyer indicated she has no new ones since her last declaration. Cornacchia assured participants that the Board has read the documents.
Joe Leahy, 223 North A, Suite D, Springfield, speaking as attorney for the applicant, Bruce Morgan, asked for 10 minutes for his presentation and a minute for rebuttal. He asked that the Board reverse the Hearings Officials decision. Leahy stressed that the issue is simple as Bruce Morgan does have an easement. He noted that included with the original application was Bruce Morgans deed, that both the deed and the partition map show the easement, and each subsequent conveyance has described the easement. Leahy stated that Hearings Official Darnielle did his own investigation and determined that the doctrine of merger caused the easement to go away. He explained that Morgan chose the Circuit Court option and that the easements were what was before the Circuit Court, which ruled in his favor. Leahy reported that Morgan had been encouraged to go to Circuit Court and Hearings Official Meacham disagreed with the Courts decision which enforced Morgans easement. He stressed that it is inappropriate for a hearings official to say that an easement presented, which has been determined as valid by the Lane County Circuit Court, is invalid. Leahy indicated that the record in this case includes the recorded deed and a partition map, which were sufficient for the planning department to approve the application. He emphasized the right of the Circuit Court to make a determination, noting that it is a more appropriate place for a decision regarding the doctrine of merger. Leahy summarized that the documents and court records in front of the Board are sufficient to prove Morgans case.
Referring to Cornacchia regarding the flow chart, Leahy expressed his belief that there is one easement. Cornacchia received clarification that an easement was granted to tax lot 100 over both tax lots 104 and 105. Cornacchia continued that the Strunks transferred the three properties in 1978 and 1981 and the dominant estate is tax lot 100. Cornacchia remarked that in 1982, Strunk took back tax lot 104 which the Harts own now. Joe Trudeau, associate attorney with Leahy, confirmed that from 1982 through February of 1987, Strunk only owned tax lots 100 and 104. Cornacchia indicated that the Doctrine of Merger requires that all subservient estates be merged with the dominant estate for the easement to be extinguished. Trudeau stated that there was never any point after 1981 when all three tax lots were together under the same ownership. Responding to Cornacchia, Trudeau remarked that Hearings Official Darnielles response was that there was no court decision to that effect on specific facts and that Hearings Official Meacham went the with same reasoning. Trudeau continued that if the Harts had continued their appeal of the Circuit Court case to the Court of Appeals, there might be a case; but the court system would be the appropriate forum for that type of case rather than the commissioners and/or LUBA. Trudeau confirmed that the Circuit Court can use court cases from other states.
Patricia Guggenmos, 90639 Sunderman Road, stated that she was the legal owner of Tax Lot 105 and requested that the Board not reverse the hearings officials ruling. She indicated that she has never been aware that there was a legal easement above tax lot 105, but only a roadway. Guggenmos remarked that she doesnt understand how it can be one easement when there are widths of 60 feet and 40 feet. She commented that she knew of the easement from Sunderman Road across the bottom of tax lot 105 to the Harts and to the Morgans. Guggenmos stressed that if the Board reverses the decision, then she would request that there be a specific and clear explanation of what maintenance is as she believes Morgan should be solely responsible as he will be the only one who uses it. She noted that she has expressed her other concerns in writing, especially regarding the earth and trees above her house. Responding to Cornacchia, Guggenmos indicated that she purchased the property in July, 1995 when litigation was already occurring and she was not privy to the litigation, but Halladays, her seller, was. She stated that the Halladays didnt call it an easement, but rather a right-of-way.
Monique Schmidt, 90639 Sunderman Road, stated that she is the daughter of Mrs. Guggenmos. She indicated that her parents have not been able to participate previously and offered support for her mothers position. Schmidt explained that she was the one that actually located the home for her parents and that in talking to her real estate agent, they were given the information that there was one easement from Sunderman Road up the driveway, where it splits and turns and goes to the Hart and Morgan properties. She indicated that there was no discussion of what they were told was called a "right of way," which is a separate road that breaks off and comes across tax lots 104 and 105. Schmidt stressed that these are two separate roads and in all of the maps they were given by the real estate agent they were described separately. She emphasized that if the Morgans are granted an easement, there will be problems with slides and she fears they may lose their home. Schmidt urged the Board not to grant permanent access to Morgan.
Kevin Paige Hart, 90633 Sunderman Road, indicated that she was the owner of tax lot 104 and she distributed information to the Board (see material on file) which Stephen Vorhes, Assistant County Counsel, indicated was appropriate as there was an opportunity to present new evidence as it relates to any other new evidence and the reopened record, as the Board allowed the record to be opened to take the additional evidence from the courts. She explained that Halladay bought first, but closed last and was told that tax lot 100 was BLM property. Hart continued that the Harts bought second and assumed Murphys land sale contract with Strunk and were told that the road in question was a way to get back to the power lines for repair. She encouraged the Board to look at the information carefully, noting that Judge Brewer knew what he was doing and that Meacham interpreted the decision appropriately. Hart noted that the easement will cease to exist if she sells her property. She stressed that the requirements for the application have not been met and that surveys need to be complete. Rust observed that Hart has had problems with escrow, but asked how she explains the deed that grants the easement. Hart stated that information/research in her lawyers file will show that Strunk never had the right to grant any easement and that the only properly created easement is the 40-foot easement that Morgan has on the road to his home that has a maintenance agreement on it. Green stated that the land sale contract notes that the seller makes no additional warranties with respect to the easement, explaining that it is prudent to do a lot of investigation before assuming a contract. Hart indicated that she did ask questions and asked for pertinent documents but did not receive anything until closing.
Leahy stated that this is the first opportunity he has had to look at Harts documents. He remarked that the Halladays and the Harts were parties to the Circuit Court litigation where the decision was made that Morgan had a right to access to his property, based on the deeds that gave Morgan that access. Leahy explained that one of the documents just turned in by Mrs. Hart is her title report, which she initialed. He pointed out that exception number six says "road easements 60 feet wide and 40 feet wide as shown on partition plat recorded January 12, 1978." Leahy also stated that the title report to the Guggenmos lists the easements and the pending court action. He stressed that matters relating to real property and interests therein are not matters that should be litigated in front of the Lane County Hearings Officials or the Lane County Board of Commissioners. Leahy asked the Board to deal with the specific issues in this case. With regard to the Guggenmos, he explained that there is a document indicating that the road is to be maintained by the property owners; and there is a principle of law that if someone goes to Court, a road owner is required to maintain a road in proportion to his or her use. Leahy emphasized that Morgan has no objection to the imposition of a condition by the Board requiring him to maintain the road in proportion to his use and that Morgan will be a good neighbor with respect to the trees and the slides, however he is not responsible for those. Responding to Cornacchia, Sage stated that a new facility permit will not be required for Morgan as there is already a road there, but that the road will be re-inspected under the conditions of the original facility permit. Vorhes explained that a facility permit is only for the connection of the private access road onto Sunderman Road. Cornacchia asked where the protection would be regarding slides. Vorhes indicated that that is part and parcel of the land that is involved in the road and he is not sure staff would get into the level of engineering that would be required for County roads. Rust observed that if a landowner could show direct linkage, then that could have a civil claim. Sage noted that Morgan complies with the original partition criteria. Cornacchia indicated that he was interested in knowing if there are any protections that can be provided by the Board, but noted that it sounds like it is necessary to rely upon civil action.
Green closed the public hearing.
MOTION: To tentatively overturn the Hearings Official and affirm the Planning Directors original approval in 1992 and incorporate the original findings into the record, with Leahys help, and return to the Board with a final order. Rust MOVED, Cornacchia SECONDED. Cornacchia remarked that the Boards issue here is access, noting the need to do some interpretations today for the future. He offered that, prior to the first lot of any subdivision selling, the doctrine of merger cannot apply and work needs to be done with regard to the period of time between division and lots potentially being taken back. Rust remarked that if someone has a recorded deed with an easement, that should be sufficient for Land Management to grant permits. Cornacchia stated that he hopes a message goes back to the Hearings Official to stick to the facts presented, noting that a lot of grief has been caused based on the Hearings Officials action. Sage was asked to send a message back to the Board regarding how Lane County may have the opportunity to provide protection to the other party with regard to slides. Weeldreyer thanked the Board for the reconsideration.
7. REVIEW ASSIGNMENTS
Not done today.
8. EMERGENCY BUSINESS
There being no further business, this meeting adjourned at 3:30 p.m.
Sharon Giles, Recording Secretary
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