BOARD OF COMMISSIONERS'
April 4, 2001
Harris Hall Main Floor
Commissioner Anna Morrison presided with Commissioners Bobby Green, Sr., Peter Sorenson and Cindy Weeldreyer present. Bill Dwyer was excused. County Administrator Bill Van Vactor, Assistant County Counsel Stephen Vorhes, and Recording Secretary Melissa Zimmer were also present.
13. PUBLIC HEARINGS
a. SECOND READING AND PUBLIC HEARING/Ordinance PA 1161/In the Matter of Amending the Rural Comprehensive Plan to Redesignate Land From “Agricultural Land” to “Nonresource” and Rezone That Land From “E-40/ Exclusive Farm Use” to “RR-10/SR (Rural Residential With Site Review),” and Adopting Savings and Severability Clauses (File PA 00-5508; Van Duyn).
Jerry Kendall, Land Management, reported the subject is a 278 acre property. He noted several properties had gone non-resource adjacent to this property. He said the property was a result of several lot line adjustments with surrounding zoning. He explained that to the north is the exclusive farm use F-2 and rural residential with a non-resource plan designation. He added to the east is E-40 farm use, to the south are three small F-2 lots and to the west is E-40.
On the referral comments received, Kendall noted there was some initial concern by DLCD and the City of Coburg. He reported those concerns had been resolved.
Kendall explained the approval criteria for a non-resource application is in Lane Code 16.406 and 16.252, and the land should not have been zoned resource and did not fit the definition of farm or forest land. He said the applicant supplied an aquifer study because it was in a water quantity and quality area. He noted the Planning Commission unanimously recommended approval, and due to Goal 5 resources on the site, staff recommended that a site review suffix be added to the zone portion to implement the conditions from the ESEE analysis in Exhibit C of the ordinance. He said it included maintaining a wildlife corridor centered on the two intermittent streams on the property and because the subdivision lot owners on the subject property would be prohibited from controlling their wells, a public water system would need to be approved by the Boundary Commission. He added there would be a prohibition against pasturing or grazing animals within the wildlife corridor, and tree covering needed to be maintain over the streams. He noted because they received comment from Coburg Rural and Fire, the SR would require that the community water system have adequate facility for fire suppression as part of that system. He submitted a letter from the City of Coburg stating they had no objections. (Copy in file).
Sorenson asked Kendall about the DLCD objections in their letter dated August 25, 2000.
Kendall recalled there were two primary objections: whether there was a farm management unit within the 278-acre property and the soils being used. He noted from the farm’s consultant report that 36% is within the definition of Class 1-4 soils, only one of the soils could be used, but it was so disbursed within the soil classification that it was unusable. He added that DLCD commented there was enough water to irrigate the land. He noted that the consultant stated the soil was unresponsive to irrigation or more productive farm use.
Morrison noted on page 5 the two objections from DLCD had been adequately addressed and they were comfortable with the additional information they received.
Morrison stated the decision was subject to plan amendment and rezoning criteria cited in the agenda cover memo and the attachments. She said 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 noted this was the opportunity for those present to enter information into the record and only persons who qualify as a party may appeal a Board decision to LUBA. She asked for the disclosure of ex-parte contacts.
There were none.
Commissioner Morrison opened the Public Hearing.
Bill Kloos, representing the applicant, Van Duyn Land Company, said they filed their application last year and there had been two hearings before the Planning Commission. He said they had three experts working with them, EGR Associations (for the adequacy of the aquifer to supply enough water for domestic water system), Paul Dey (agricultural economist and expert on grazing) and Gary Kitzro (to examine the soils). He said they wanted the land to be done like the rest of the neighbors, planned to non-resource and zoned to RR10, matching the neighborhood. He added there would be a single water system that would be designed to work with the City of Coburg Fire District and hook up to the other community fire systems in the area.
Kloos stated that LCDC recognizes that when land is bad and doesn't meet the definition of farm or forest, it could be zoned rural residential. He noted Lane County has a record of making designations when justified. He said with DLCD, they took the planning commission version of the document and sent it to them. He said they received a letter back (August 2000) that raised two issues. He said they dealt with Goal 3, agricultural lands, and DLCD conceded it was not forest land, but there were four parts to the definition of agricultural lands and they took issue with two of them. He said by the time DLCD received the report, they had drilled a well. He said DLCD said if there was water for domestic use, they would have water for irrigation. He said they had Paul Dey generate a second report and that was sent to DLCD. He said the only soils that were potentially agricultural were the Dixon Philomath Hazel soils. He noted Dey’s supplemental report said, based on the federal data on soils, those were not more productive by adding water. He added the other issue that DLCD raised was the farm unit test for agricultural land and they noted the lands were bad adjacent to good lands in the same farm unit.
Kloos noted there were issues with the City of Coburg, including potential impact of their water system, traffic and suitability for septic. He said those issues were addressed and the major part was the aquifer study by EGR & Associates. He said they gave the study to the City of Coburg and the adjacent community water systems in the area and Lane County. He reported that the City of Coburg’s engineer noted there would be no problem to the city’s water system. He added the City of Coburg submitted a letter withdrawing their objections.
Kloos explained he spoke with the City of Coburg Fire District and they coordinated the design of the water system and it is reflected in a recommendation condition by the planning commission that appears in Exhibit C of the ordinance.
Kloos noted if this ordinance were approved, the next step would be a tentative subdivision plat for the boundary commission. He said there were a number of conditions stated in Exhibit C to the ordinance.
Donald A. Nelson, 33855 Van Duyn Road, stated he moved on his property 15 years ago and he was the president of Country View Water System. He had taken a neutral position and hoped that all of the concerns were addressed about the inadequate private water system.
Donald Harkins, 91000 Ridge View, President, Country View Estates Water Systems, stated he was neutral about this development. He noted that Kloos and Van Duyn Land Company had been helpful in providing information all along the course of this ordinance. They had been concerned about fire suppression and were happy to see that Kloos and the City of Coburg had been working together.
There being no one else signed up to speak, Commissioner Morrison closed the Public Hearing.
MOTION: to adopt Ordinance 1161 with Exhibits A, B and C and adoptions of Exhibits D and E that reflect the changes that were part of staff’s recommendation, along with site review.
Weeldreyer MOVED, Green SECONDED.
Kendall noted on page 47 of the proposed findings, Section 6. t., could be stricken verbally. He said they were to be supplemental findings if issues were raised at the public hearing.
Sorenson stated he would vote no because they are taking the issue of agricultural land way too lightly. He noted this property had been grazed for a number of years and he saw it as erosion of the need to protect the valley.
Vorhes stated the motion was to tentatively approve. He said the nature of the hearing didn’t lend itself for any additional changes to the findings. He said they could take action and approve the ordinance.
ROLL CALL VOTE: 3-1 (Sorenson dissenting).
b. SECOND READING AND PUBLIC HEARING/Ordinance PA 1159/In the Matter of Amending the Rural Comprehensive Plan to Redesignate Land From "Agricultural" to "Rural", Rezone That Land From "E-30/Exclusive Farm Use" to "RR-5/Rural Residential", Adopting an Exception to Statewide Planning Goals 3 and 4; and Adopting Savings and Severability Clauses (File PA 98-5351; White)
Morrison said this decision is subject to plan amendment and rezoning criteria cited in the agenda cover memo and attachment and evidence and testimony must be directed towards the approval criteria. She said failure to raise an issue to enable a response may preclude an appeal to LUBA and this was the opportunity for those present to enter information into the record and only persons who qualify as a party may appeal Board decision to LUBA.
Kendall reported the property is on the east side of Prairie Road and north of Meadowview. He added the application was submitted in November 1998 and it is a plan amendment and zone change with exceptions needing to be taken to farm and forest rules. He noted there is an agricultural building, septic system and a mobile home on the property. He explained there used to be a home on this property that was purchased from the County in the 1980’s as part of a road widening process of Prairie Road and the single family dwelling (that was too close to the right of way) was removed in 1984. He noted the current owner purchased the property from the County in 1990. He said there was a memo in the property file dated November 1986 from a land management staff person stating that no replacement rights existed for the house that was destroyed as the window of replacement rights was for one year. He noted the mobile home was placed on the property without county permits. He said the permits were denied because there wasn’t a vested right where money was built up to finish the project. He said the project was finished when the single family home was built and the planning director denied that, with an appeal to the hearings official and it was denied again. He said in 1998 the owner applied for a non-farm dwelling application through a hearing official and there was a blend of the current application. He noted Land Management issued a permit for a building that was for storage only. He said the primary job for the applicant is to show that in going to rural residential, they would have to take an exception to the forest and farm rule. He said the forest rule is not a problem, as there are no capabilities in the soil for raising timber. He noted that would have to be added to the findings. He said the downfall of the application is that the developed and committed working paper that the Board uses states that there should be at least two adjoining sides with a property of this size where agricultural experts say that much surrounding build up at this large parcel size makes the property impracticable for resource use. He said this property fails that test. He added another factor was the property could not be used for farm use and the history mentioned that it was utilized for the raising, stabling and training of horses and that is permitted farm use by state law.
Kendall said approval of this zone change would not commit adjacent nearby resource land to non-resource uses and in staff’s opinion--if this was approved--the property to the north and south could become rural residential under the same logic used in this application. He stated that staff was recommending denial.
Brent Reed, Agent for Darwin White, 1257 High Street, explained that Darwin White is self-employed and raises horses on the subject site. He said White has seven mares and runs a small palette manufacturing business which employs one part-time person. He noted the staff report made reference to an illegal mobile home and they did not contest that fact. He said that was the house he wanted to keep on the property. Reed explained in 1990 White purchased the property believing he could have another dwelling on the property, using the same portion of a site where the former house was. He noted everything was on the property but a legal house. He agreed that White should have checked the files, but it might not have been evident when he purchased the property. Reed noted that White paid taxes on a house in the early 90’s that was not there.
Reed said they believe White’s situation meets Goals 3 and 4 exception criteria under two provisions: irrevocably committed exception criteria and the physically developed exception criteria. He noted under the irrevocably committed criteria, physically developed is included under OAR 660.04.028(5) that included the addition of physically developed land. He added this sets forth criteria that takes in irrevocably committed criteria such as surrounding uses, impacts, development, neighborhood characteristics (natural or manmade features) including a creek that takes up one-third of the property and other relevant factors. He believed the findings documented and addressed each criterion adequately to grant White the zone change.
Reed noted the surrounding parcels varied in use. He said the parcels to the north are zoned E-30 and the properties to the west are zoned E-40. He added that seven of the eight parcels to the north have a house. He said that five of the eight parcels were less than three acres in size. He noted the other neighbors did not object to White having a home on the property or the plan amendment and zone change. He said the soils on the site are the same as those within the exception area. He noted the best area on the property contained the Class 3 soils.
Reed noted if this plan amendment were granted, no further dividing would be available to White. He said it is 8.85 acres, zoned RR5. He said based upon their findings and testimony, the property does meet irrevocably committed exception criteria due to the small parcels that surround it and the actual amount of usable agricultural land. He noted the soils on the property were considered high value, but only about one-third of the soils would be available for intensive agricultural use, which is where White keeps his horses. He added the land use change would not conflict with adjacent farm use and the only part of the property to be developed would be an area that was already developed. He said they believe that Goal 2, Policy 11 (on page 17 of the findings document) was addressed properly, even though staff did not believe so. He said they believe they met the basic criteria for approval as the property is surrounded on three sides by small lots, and two of the three EFU properties that are adjacent are also substandard in size, and the owner of tax lot 303 did not have objections. He added White did not purchase the site to be a developer, but to have a place to keep his horses. He said White needs a dwelling on the property to provide security for the animals, and requested the Board’s approval. He noted the Lane County Planning Commission and the neighbors agreed that this should be approved.
Morrison opened up the Public Hearing. There being no one signed up to speak, she closed the Public Hearing.
Concerning the palette business, Kendall reported he had received a telephone complaint from a neighbor. (Photos were distributed showing palettes on the property). He agreed with Reed that this was a tough case in which to make a decision. He noted the applicant did not address the ORS section that requires looking at the definition of farm use, making an argument that the property couldn’t be used. He added there was admittance that farm use takes place with the stabling and training of the horses. He noted the property didn’t meet the physically developed argument because the ORS clearly state that Goal 4 resource uses could not be used to justify a physically-developed argument. He didn’t agree with the addressing of Rural Comprehensive Plan, Goal 2, Policy 11. He said (per the Board Order), that a calculation of total acreage of rural residential land divided by parcels to obtain average parcel size was needed. He said if the Board approved this, it would need to be added to the findings along with the addressment of the farm use in the exception criteria.
Morrison stated she agreed with staff to deny this application.
MOTION: to tentatively deny the application of file PA 5351 and direct staff to prepare an order with appropriate findings for final action.
Morrison MOVED, Sorenson SECONDED.
14. COMMISSIONERS' ANNOUNCEMENTS
Weeldreyer announced she was working with the animal users at the fairground facilities. She said it was not this Board’s intent to eliminate the use of animals at the fairgrounds. She said the fairgrounds was working out the details to be in compliance with the Clean Water Act and have fairgrounds activities without any general fund support.
Van Vactor noted this was an exclusive issue for the Fair Board, not the Board of Commissioners.
15. OTHER BUSINESS
There being no further business, Commissioner Morrison recessed the meeting at 3:20 p.m.