April 18, 2001

1:30 p.m.

Harris Hall Main Floor



Commissioner Anna Morrison presided with Commissioners Bill Dwyer, Bobby Green, Sr., Peter Sorenson and Cindy Weeldreyer present.  County Administrator Bill Van Vactor, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.




a. ON THE RECORD HEARING/In the Matter of Hearing Arguments on an Appeal of a Hearings Official Reconsidered Decision Denying an Application for Rezoning Property from RR-5 to RR-2 (PA 00-5618/Stewart). (NBA & PM 2/21/01 & 4/4/01) (Jerry Kendall)


Morrison reported the nature and purpose of the hearing was that the decision is subject to plan amendment and rezoning criteria cited in the agenda cover memo, that attachments, evidence and testimony must be directed toward the approval criteria, and failure to raise an issue to enable a response may preclude an appeal to LUBA.  She said this was the opportunity for those present to enter information into the record in regards to the specifics around this particular issue and only persons who qualify as a party may appeal the Board’s decision to LUBA.  She called for any disclosures or ex parte contacts.


Weeldreyer noted that this project was in her district and she had received phone calls from people and made it clear that she would have to wait to take their information in this forum.  She said she had no information that would prejudice her in this case.


There were no conflicts of interest.


Jerry Kendall, Land Management, reported that Dwyer had missed one of the meetings.  He asked Dwyer to declare if he had the opportunity to review the record.


Dwyer declared that he had an opportunity to read the record and was up to date on the matter.


Kendall said this was an appeal for a rezone from RR5 to RR2 for Bruce Stewart, on 22 ˝ acres of land located near Mosby Creek. and Gearut Road.  He said this limited on-the-record hearing was centered on the only remaining appeal item that dealt with the Rural Comprehensive Plan, Goal 2, Policy 11 (determining the pattern of the development in the exception areas to ascertain the proper density), and affiliated with the Goal is ORDER 88-2-10-14 that gives guidelines on how Goal 2, Policy 11 is to be implemented.


Kendall reported that staff had generated an April 13, 2001 supplemental memo.  He noted the purpose of the memo was to brief the Board on past hearings official decisions.  He discussed a summary of each.  He noted one additional item that was recently brought to his attention.  He said that Bill Kloos, representing one of the neighbors in opposition, submitted for the record copies of documents from taxation that indicate the subject property consisting of four tax lots are under different ownership.  Kendall said he did not have time to address this issue.  He explained one is owned by Mr. Stewart, another is owned by Stewart & Sons, Inc. another is owned by the Halberts (who are related to the applicants) and the last is owned by another Stewart that is in the family.  He said the Board’s option to cure that procedural matter was to remand the issue back to the hearings official to clear up at his level, or hold an additional limited on-the-record hearing to hear the new testimony and resolve the issue at that point.  He said staff said if the applicant is the representative of all of the property owners, then the basic thrust of the application process is that the property owner know that it is his or her property being rezoned.  Kendall said since it was an incorporation of the family members and it was known, staff advised cleaning it up procedurally by either a remand or another hearing by the board.


Kendall announced who was a party to the action: the planning director, the applicant Mr. Stewart, his representative, Mr. Cornacchia and persons who qualified as parties before the hearings official listed on page 3 of his memo.


Sorenson noted a discrepancy with the parties of record.  He asked if all the parties of record received the notice of hearing.


Kendall responded he started with everyone who was a party of record before the hearings official and he had them all listed.  He added those who were a party made an appearance either in writing or in testimony as required in Lane Code Chapter 14.  He went back to the sign-up sheet and incorporated those as well as anyone who wrote in.


Wilson explained the critical issue was whether the list the Board had as parties was the all-inclusive list.  She said it appeared it was.


Kendall found names that the hearings official missed off the sign-up sheets and that was the reason for the discrepancy.


Commissioner Morrison opened the public hearing.


Steve Cornacchia, 180 E. 11th, Eugene, represented the applicants. With regard to the ownership of the properties, he explained that Mr. Stewart owns all of the properties (except for the Hartman property) that are included in the application, or entity thereof.  He noted the Hartman property was the property of Mr. Stewart's daughter, and had been included in the application at the start.  He didn’t believe this needed to be remanded to the hearings official or holding a new hearing.  He stated that Stewart, as the applicant, represents all of the owners of the property.  He said there would be no difference in the computation of properties as they are within the exception area.  He indicated no objection to anyone who came today to give testimony with the understanding that that testimony had to do with the board order and Goal 2, Policy 11.  He handed out packets to the Board containing the board order and interpretation. (These were already included in the record.)


Cornacchia noted the subject and the entire focus of the appeal was criteria.  He asked the Board to consider what the criterion was for rezoning a residential parcel in an exception area.  He said they believed the Board had answered that question in the past and until recently, the answer had been applied consistently and fairly to applications to Lane County for these types of rezonings.  He noted that in this case, the Lane County hearings official had taken it upon himself to answer that question differently, inconsistent with the direction of the Board of Commissioners.


Cornacchia stated he and his applicant agreed that the hearings official must apply judgment to whether or not the applicant had demonstrated that the applicable criteria had been met.  He said it was a case about the hearings official applying his judgment as to what the criteria was and applying his value judgments to his interpretation of that criteria.  He said determining compliance with criteria was the hearings official’s job, while determining what constitutes the criteria was the Board’s decision. He noted in this case, the hearings official decided that the criteria should be something different than that determined by the Lane County Board of Commissioners.  He explained the Lane County Rural Comprehensive Plan provides the criteria for determining the zoning and acreage size for developed and committed areas.  He said that Goal 2, Policy 11 of the Rural Comprehensive Plan provides the criteria for determining the zoning and the size.


Cornacchia noted the Board of Commissioners approved ORDER 88-2-10-14 in 1988, including three interpretations on giving direction to applicants.  He explained each interpretation states a description of all physical development of an exception area. He said an interpretation includes examples of a trend of physical development such as average parcel size, parcel density, number of vacant lots, etc.  He said the hearings official took the position that he had the authority to analyze the physical development and make a value judgment regarding sizes of parcels.  He added the interpretation all stated that the examination of the development pattern should be done with a view to examining the development of an entire exception area and not just an isolated group of parcels within the exception area.  He noted that nowhere within the interpretation did the criteria provide any standards for judging the size of parcels against one another or providing that certain parcels are considered while other parcels are not.


Interpretation number 2, Cornacchia noted, explains how the determination is made, and whether or not the proposed zoning density was consistent with the Goal 2, Policy 11 criteria, representing existing development patterns.  He said they comply with the existing development patterns of the area.  Cornacchia noted the interpretation did not provide or direct that parcels of a certain size not be included in the computation.  He said the hearings official decided that he would not allow all of the parcels in the exception area to be counted and included in the computation.  Cornacchia said the hearings official decided that 10 parcels of one-half acre size should not be included because they were smaller than other parcels in the area that were in the five-acre parcel size.  He believed the hearings official’s action in this regard was in error.


Cornacchia said they had argued to the hearings official that his decision was inconsistent and departure from the board order and past practice of Lane County regarding rezoning applications of this nature. He said the hearings official acknowledged that fact and his response to the argument was that he did it before and all the past decisions were decided consistently with board order.  He said the hearings official acknowledged that past practice since 1988 based upon the interpretation included in the board order was to include all parcels of the required exception areas of average parcel size.


Cornacchia said in reviewing the staff report initially with this matter, the report made no mention regarding the sizes of the parcels in the three exception areas. He said the problem with this rezoning was that it was not until the application went to the hearings official that the analysis and the decision to remove the smaller parcels occurred.  He noted it was during public hearing on the application that an opponent raised the issue and suggested to the hearings official that the smaller parcels not be counted.  He said the applicant should not be placed in situations where at the end of the process the rules and the standards change based upon an opponent’s argument and the hearings official's personal value judgment.  He said the appeal was about criteria, certainty and fairness. He asked that this application be evaluated under the same standards and policies that all others had been, which are laid out in Goal 2, Policy 11 and the interpretations of the criteria.  He added the applicant did not have the opportunity to argue in front of the Board about the policy, and noted if the Board was to change the policy, it should be done after this application, and judging this application on the criteria that existed before it.


Cornacchia asked the Board reverse the hearings official’s decision and grant the requested rezoning based upon the following:  that the hearings official’s decision is inconsistent with Board Order 88-2-10-14; that the hearings official does not have the authority to eliminate parcels within an exception area from a mathematical computation; that including all parcels in the mathematical computation in this application results in an average parcel size that is consistent with RR2 zoning, and that the applicant had fulfilled all applicable criteria necessary to support RR2 zoning on the subject property.


Sally Hartman, 34324 Stewart Hills, stated she owned tax lot 105.  She added her father did not own it, but it was included with the properties and she wanted it included from the very beginning.  She has five acres and wanted to put another building on it but couldn’t because it is zoned RR5.


JC Huggins, 35010 Geroutle Road, objected to the application because of the additional traffic it would cause.  He was also afraid of fire protection and what might happen in the future.


Cornacchia noted the only issue they were discussing today was Goal 2, Policy 11 , and that traffic, septic or floodplain could not be discussed without prejudice to his client.


Wilson noted when the Board elected to hear this matter, they elected a limited testimony hearing.  She noted the Board could have elected to have a broader hearing.  She said they could move to a broader hearing at a subsequent date because both sides needed to have a fair opportunity to be prepared and offer rebuttal.  She added the Board had announced that it would be limited issue testimony on the record.


Jo Ann Huggins (not an eligible participant), 35010 Garoutle, stated she and her husband were aware of this hearing as they were sent notices, but it didn’t state that this appeal was limited.


Shirley Ebberts (not an eligible participant), 34974 Garoutle, indicated she was not sent a notice.  She said Gerout was designated a scenic highway and they get interest from bikers and hikers.  She said if they keep subdividing the land, the area would become a city.  She didn’t want this rezoning to pass as it might lead to others.


Cliff Edwards,  34348 Stewart Hill Lane, stated that Stewart had already split the property into five-acre parcels.  He noted that Stewart did not have all evidence in the record five days prior to this meeting.


John W. Gayney (not an eligible participant), 34336 Garoutle, stated he was the direct neighbor on both sides of the Stewarts' property.  He said he owns five acres and chose the area because it is a countryside and quiet.  He passed around pictures showing the Stewarts had posted signs about game preserves on this property.  He added the Stewarts were trying to sell their home on one side of his property that has five acres.  He said most of the neighbors are opposed to this project.


Green noted there was submission of pictures and he didn’t know if it meant new information or evidence, or if it was relevant to the testimony.


Wilson responded it did not appear that it was relevant to the testimony and would not be accepted into the record.


Sorenson did not agree with Wilson's comment.  He said pictures showing density were totally relevant to the hearing.


Wilson noted it was a Board decision as to whether or not the pictures reflect density.  She said it was new evidence and if the Board believed it was relevant to the Goal 2 discussion, it would be acceptable; if it was not relevant to the Goal 2 interpretation, it would not be part of the record.


Morrison and Weeldreyer did not think the pictures were pertinent.  Dwyer said he did not have a problem with it.  There was consensus that the pictures were not pertinent information and would not be entered into the record.


Marston Margon (not an eligible participant), 77712 Mosby Creek Road, suggested the Board be careful before they reduce density and its impact to a mathematical formula.  He noted the mathematical formula uses “should” and it is not mandatory and does not say “shall.”  He said this had been a cumulative impact that had been going on and the character of the neighborhood had changed.  He said the Board has the obligation to make sure that certain amenities in the surrounding neighborhoods are maintained, otherwise their property values would go down.  He said the Board needed to go back to revise and reform a planning system.


Guy Oliver (not an eligible participant), 34358 Stir Hills Lane, said when the first hearing took place, he was fighting to get the title to this property.  He noted that the title had changed but he still doesn’t receive any information from the mailings.  He stated that Mosby Creek was the deciding separation as to what was happening.  He said farmland on the east side of Mosby Creek should remain that way with the larger parcels, and added he didn’t think one well would be able to accommodate seven new homes.


David Kalai, said there would be water problems if this project were to be built and the land would become useless.


Glen Taylor, 34460 Garoutle Road, apologized to Weeldreyer about how negative he was to her.  He noted with the criteria, they showed tax lot numbers, not legal parcels.  He mentioned that the acreage listed for him was a tax number, it was not a total of acreage.  He read a letter into the record.  He said Stewart’s plan was for profitability.


Gary Ackley, P. O. Box 725, Cottage Grove, stated he represented Carolyn Colson.  He suggested to the Board that there is a basis to deny this application and revisit Goal 2, Policy 11 in the future. He noted that Exhibit A listed criteria and it discussed densities of 1, 2, 5 or 10 acres shall be applied to represent existing development patterns and to limit problems resulting from a negative evaluation of any of the above criteria.  He said that the hearings official had picked one criterion and in using the word “any” that it is sufficient.  He said the trend of the area is five-acre and not two-acre parcels. His concern was that his client owns tax lot 100 that is the lot north of the parcel of the applicant.  He said to the west of the proposed development was also a tax lot 100.  He stated it was a different tax lot 100 than that of his client.  He understood that to be owned by Georgia Pacific and he didn’t know if Georgia Pacific got notice of this proceeding.


Weeldreyer asked if the issue of tax lots versus list of parcels would be something to consider.


Wilson responded that it was a new issue being raised.  She said the choices could be remanding it to the hearings official to draw a conclusion or setting an additional hearing for the opportunity of parties to come in and present evidence so parties would have an opportunity to cleanly resolve the issue.


Dwyer disagreed with Wilson.  He said the specifics of the law discussed densities of 2, 5 and 10 acres and the fact that it referred to parcels, not tax lots. 


Taylor noted there were names of property owners who had not owned the properties in question for nine or ten years.


Bill Kloos, P. O. Box 11906, Eugene, represented Guy Oliver.  He echoed Weeldreyer's and Dwyer’s comments.  He said everyone needed to know what the goal posts are and they don’t know exactly what they are because there is ambiguity.  He noted it first showed up with the board order in 1988 and the hearings official had trouble because he didn’t know what the goal posts were because of those ambiguities.  He said the basic standard is in Policy 11 saying densities of 1, 2, 5 or 10 acres shall be applied to represent existing development patterns and limiting problems resulting from a negative evaluation of any of the above criteria.  He said the key phrase was "existing development patterns."  He said the Board adopted the 1988 policy interpretation that was useful and complex and answered the problems at the time, but new problems had come up.  He said looking at big exception areas and seeing what the existing development pattern is would make sense to do the mathematical formula across the entire exception area representing existing development patterns.


There being no one else signed up to speak, Commissioner Morrison closed the public hearing.


Weeldreyer believed people have private property rights and the key issue for her was the word “should” and how it is determined through a mathematical process.  She noted according to 1988 policy, they needed to look at the three contiguous exception areas to see the existing development patterns.  She noted two of the areas had high density and the others didn’t.  She said if they were going to change the rules, they should not penalize someone in the middle of the process.


Dwyer said the case was not made for him.  He noted that many of the homes on Mosby Creek were there before there were any land use laws related to density.  He indicated serious concerns about this issue and the hearings official had made the right decision when he said it changes the character of the neighborhood and didn’t include parcels south on Mosby Creek because it was a totally different neighborhood and there needed to be a boundary.  He said they have to give people what they expected to get when they bought their property, maintaining the integrity and the continuity of the neighborhood unless there was a public benefit for expansion.


Sorenson noted the hearings official found there were two distinct development patterns on the west side of the creek, where the ten parcels averaged .54 acres each and the second nine parcels averaged 4.9 acres.  He said the hearings official ruled that the patterns of development would be dramatically altered if higher density were allowed east of Mosby Creek.  He explained the proposal was denied at the hearings official level because a two-acre designation would have represented a spike in the development pattern of high-density rural residential land transitioning into low density rural residential followed by large resource tracts.  He wanted the Board to have some discretion allowed for the decision of the hearings official.  He voted to uphold the hearings official.


Green supported the applicant’s request to have the zone change as they proved their case.  He agreed the policy might be outdated but the rules should not be changed in the middle of the process.


Morrison also supported the applicant’s request to change the zoning.  She agreed it was not the appropriate time to pull the application in the middle of the process.


Dwyer said if the Board allows this to go through, that the rural character of Mosby Creek would not exist.  He said this needed to be denied to uphold the hearings official’s opinion and the policy needed to be made clearer as to what their goals are.


MOTION: to uphold the hearings official’s decision.


Weeldreyer MOVED, Dwyer SECONDED.


VOTE: 3-2 (Morrison, Green dissenting).


Kendall reported he would be returning with an order.








Doug Harcleroad, District Attorney, reported that they received notice today that they would be receiving a $600,000 community development block grant to build the new child advocacy center in combination with other funds and land.


There being no further business, Commissioner Morrison recessed the meeting into Executive Session  at 5:50 p.m.



Melissa Zimmer

Recording Secretary