December 12, 2001

1:30 p.m.

Commissioners' Conference Room

PASSED 1/16/02


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




a. PUBLIC HEARING AND ORDER 01-12-12-13/In the Matter of the Surrender of a Portion of Coburg Industrial Way, County Road Number 2032, to the City of Coburg.


Bob Ezell, Land Management, noted the purpose of this order is to transfer jurisdiction of a portion of Coburg Industrial Way, County Road 2032, to the City of Coburg.  He said the initial proposal to the Board was a letter from Jack Harris, City of Coburg and by a formal resolution from the city.  He stated the letter explained there was a 21-acre tract of wetland that was donated to the city and their vision is to have this as an interpretive center.  He stated they had provided public notice of the proceedings as required by law.  He knew of no objections to the proposal.  He added that Ollie Snowden, Director, Public Works is in support of transfer of the jurisdiction of the road.  He said it is an agreement with the city-county road partnership agreement of July 28, 2000.


Sorenson asked if this was a surrender of a county road and if there was a deed restriction to use it for the purposes intended.


Ezell responded that the road was initially dedicated to the public by a subdivision plat that states it is a public road dedication, so there are no restrictions.  He noted there is a 21-acre tract that is wetlands and this road abuts it.  The letter from Jack Harris explained they want to use the road for a working area and support road to the wetlands.


Vorhes stated they could craft something in the order so that it establishes a condition.  They don’t transfer by deed with the surrenders. They were saying the county has jurisdiction over the road and takes care of the road as a road and is the governing agency.  He said in this proceeding the County gives jurisdiction to the city.  In the past there had been no conditions.  He added there might be a way to articulate in the order some condition to eliminate the city changing the use by not surrendering jurisdiction.


Weeldreyer was opposed to a restriction.  She stated the city had a legitimate use.


Dwyer stated this was already a public road and within the city limits.  He noted it dead ends at wetlands.  He had no problems with it.


Commissioner Morrison opened up the Public Hearing.  There being no one else signed up to speak, she closed the Public Hearing.


MOTION: to approve ORDER 01-12-12-13.


Weeldreyer MOVED, Dwyer SECONDED.


VOTE:  5-0.


b. SECOND READING AND PUBLIC HEARING/Ordinance PA 1166/Amending the Rural Comprehensive Plan to Redesignate Land from “Forest” to “Rural”, Rezone that Land from “F-2 Impacted Forest Lands” to “RR-5/Rural Residential”, Adopting an Exception to Statewide Planning Goals 3 and 4; and Adopting Savings and Severability Clauses (File PA 99-6389; Johnson)


Jerry Kendall, Land Management, explained this property is composed of 20 acres, located approximately northwest of Fern Ridge Reservoir on Paradise Drive.  It contains a single-family dwelling and a barn.  He noted a Class 1 stream called Inman Creek splits the property.  He added the soils are resource use in the good range.


With regard to forest capability, Kendall commented that a little less than half has a good rating for Douglas fir capability, (150 to 178 cubic feet per acre per year production).  The only soils on the property that do not have any forest capability are along the two streams.


With regard to adjacent zoning on the perimeter of the subject property, Kendall noted 38.5% of the zoning was rural residential and the remainder is F2.  He noted the vast majority of the F2 land found south of the subject property is in forest tax deferral, indicating forest use and timber management.  He noted the letters in the file had been submitted by DLCD, Department of Forestry and OSU, commenting that the subject property has resource capability. He stated the Planning Commission voted to approve this application by a vote of 6-1 and relayed to the Board that the state agents had not been out to the subject property, whereas the forestry consultant had.


Regarding the approval standards, Kendall explained the applicant was taking an exception to the farm and forest goal via a developed and committed argument.  He has to show that surrounding lands render the subject property impracticable for resource use.  He added committed exceptions to Goal 3 are not justified by the mere presence of adjacent residential development without evidence of conflicts or an explanation of why development and the subject property renders farm use impracticable.  He stated that staff could not find any documentation showing the surrounding adjacent development rendered the subject property impracticable for resource use.  He noted the second aspect of the applicant’s arguments (per state law) is that the subject property is physically developed with non-goal uses to  where it cannot be used for resource use.  He said that was the house itself.  He said 19 acres of the subject property is receiving forest tax deferral.   He stated the third aspect of the argument is that farm and forest use of the subject property itself is impracticable.


Kendall noted the Department of Forestry visited the site last month and took measurements.  They concluded that the site index is in the good range (140 to 150) feet of the best trees of the acreage south of the creek.


Kendall provided a submittal from the Department of Forestry.  He followed up the Department of Forestry’s letter with a phone call to Bob Johnson and his focus was on the property south of the creek bed area for forestland.  He noted there was good soil potential in the northwest and northeast portion of the property.  He added the letters from the extension agency strongly refute the testimony by the applicant and part of the Planning Commission.  He noted for those reasons, staff found that the file record did not support approval and recommended denial. 


Kendall stated he received a letter from Rich Fairbanks indicating he wanted to view the site.  He said the owner of the property refused to let Fairbanks have access to the property.  He also received a letter from Nina Lovinger requesting a continuance of the record so she may view the materials distributed to the Board within the last day.


Commissioner Morrison opened up the Public Hearing.


Harry Taylor, P. O. Box 1420, Veneta, stated he represented Les and Carol Johnson.  He said the request is a plan amendment and zone change from forestry to rural land F2 to RR5 Zoning.  He said the property is 20 acres in size and located in Western Lane County.  He explained it was a request that was started by Tom Miller two years ago that got up to the Planning Commission but Miller did not follow through.  He said this went to the Planning Commission and they recommended approval.


Taylor noted the only resource potential is a couple of acres in the northwest corner and a few acres in the southeast corner.  He noted the parcels in the area have some degree of forest use but most of the area is rural residential.  He added the area next to them was F2, impacted forestland.  He said the area they were asked to be placed with is about 300 acres of developed and committed lands.


Taylor thought the request was moderate in scope for RR5--allowing three additional residences.  He thought that staff’s negative response is philosophical versus real world in what the land would support and what it is capable of.  He believed that they had made their case and the property is committed.  He noted that OAR 660.040028 allows an exception to a goal when adjacent uses and other relevant factors make uses allowed by the goal impracticable, but not impossible.  He added it was not a non-resource application.


Taylor said it was his position that simply having Class 1 to 4 soils does not always require the property be retained as farm or forest land.  He said they made that point to the Planning Commission.  He added that neither staff, Department of Forestry nor the extension agent had viewed the property.  He said since that time the Department of Forestry had gone out to perform a site review.  He said they relied on a number of factors: the small size of the property, the irregular configuration, the streams, the soil types, the wetness conditions, slopes, riparian areas, lack of water rights, isolation of a majority of other properties from other farm and forest uses.  He stated they had relied on two reports in the packet:  Paul Dey for agriculture and Bob Booth for forestry.  He noted they both concluded that the property is impracticable for farm or forest use as required by the state goals.   He said Goal 3 is requiring Class 1 through Class 4 soils to be considered as agriculture and it takes into account the Agricultural Land Use Policy 215, 243, that requires agricultural lands be open lands for agricultural uses and they are an efficient means of conserving resources.  He noted the property and surrounding areas were not using large blocks of land for agriculture.  He stated the expansion of urban development into rural areas increases costs of community services and there are no urban services required to serve it.    He said the EFU zoning would limit the use of agriculture lands and the property was not zoned exclusive farm use.


Taylor stated under the statute, the Agricultural Land Use Policy 215, 203 defines farm use as the current employment of land for the primary purpose of raising, harvesting or selling crops and livestock for a profit.


With regard to Goal 4, Taylor stated it requires the conservation of forest land based to protect the state’s economy by making possible economically efficient forest practices that assure continuous growth and harvesting of tree species.  He noted according to a report from Bob Booth, the property is not suited nor could be made suitable for growing forest crops.  He said it is their position that changing this property to RR5 would not significantly impact current or future use.  He said they recorded a farm forest management agreement that waives the right of anyone who would live there in the future to object to farm or forest practices.


Taylor noted EGR Associations had conducted an aquifer test.  They found that adequate water is present for residential development at that density.  He stated in conclusion, the proposed RR5 zoning is consistent with the well-established development pattern of the area.  He added there are no large actively managed farm forest parcels in the vicinity.  The subject property is constrained by a variety of factors. He said the site-specific evidence had been prepared and supports the committed nature of the property to RR use.  It is impracticable to use this for farm or forest use as envisioned by the goals.  He asked for the Board’s approval on this matter.


Robert W. Booth, Forestry Consultant, 3227 Queens East, Eugene, stated he had visited the site several times.  His opinion was that it was not practical to manage this as forestland because of the lot being fragmented and the site index measurements he took on the property.  He measured a low productivity for forestry.  He said it didn’t make growing pine in the current market a practical option.  His opinion (based on onsite inspection) was that some areas would grow trees of poor quality.  He said it would take at least a 60-year rotation to generate an even age stand for clear cut or final harvest.  He said it was practical to perform a commercial forest operation.


Paul Dey, Dexter, OSU Agent, noted a typographical error in the material submitted, on Table 1 on page 2.  In the table he listed the USDA classes of soil and inadvertently noted the clay loam as Class 1 soil and there is no soil on the property that is Class 1, it was Class 6 (non-agricultural soils).  He said they looked at the deferral aspect for agricultural and it is based on gross sales, not net.  He looked at the soils maps and the letters.  He thought they were agricultural soils. He looked at it as a farmer would look at it, and the material from the OSU extension agency refuted his report.  He said most of the material was related to the nature of soils.  He asked if it was practicable to produce on that soil relative to the property itself and to the surrounding lands that are developed and committed.  It was his conclusion that even through there are agricultural soils present the actual use capability of the land is such that there are too many negative factors that impinge on the opportunity to operate.  He said he saw a large piece of land that was cut up into small blocks (rural residential) and if a farmer wanted to farm adjacent land, it was impossible because it was already committed to rural residential.  He said the land has F2 zoning, (predominantly brush) and it would be impracticable because of the tremendous capital investment that would be required to remove the brush.  He would not recommend the property as a prudent investment for someone who wanted to make a profit from agricultural production.


Rich Fairbanks, 3729 Wheeler Road, Pleasant Hill, stated he represented Landwatch Lane County.  He called the applicant and asked for permission to examine the property.  He said the argument on forestry hinged on the operability of property and he couldn’t tell without walking around the property.  He stated the applicant denied permission to go onto the property.  He read the letter from the 1000 Friends of Eugene into the record. (Copy in file).


Paulette Richards, left photos for Jerry Kendall that are in the record.


Harold Rutherford, 24997 Paradise Drive, stated he lived across from the subject property for 39 years.  He noted it was hard to harvest timber near the creek.  He said he couldn’t make money from farming.  He was neutral on the ordinance.


Kendall stated the letter from 1000 Friends of Eugene, was the Rural Residential Rule and they see this application as started prior to the change of the law.  He thought it would withstand an appeal on that issue.  He was in agreement with the remainder of the items in the letter.  He noted on his staff report that it was not a net income test per LUBA, but a gross income test.  He encouraged the Board to read the submittals from the Department of Forestry and OSU.  He stated that Rutherford’s property was probably zoned F2 because he owned an adjacent tax lot of 59 acres adjacent to the southwest of lot 1201.  He said the Department of Forestry gave him an aerial photo from 1986 showing his clear cutting of forestland on lot 1200 for timberland.  He noted there was a request for a continuance and if the Board granted the same, he has timelines for deliberation.  Sorenson stated on page 10 of the report, that because of the areas of deficiencies listed, staff maintains the burden of proof in taking exception to Goals 3 and 4 had not been met and, as such, approval of the proposal was not supported.  He asked what made that determination.


Kendall responded he focused on the requirements that there was no solid evidence in the file record that surrounding dwellings make forest or farm use of the subject property impracticable, that the subject property itself is not physically developed with non-Goal 3 or 4 uses to the point where it can’t be used, and that the subject property itself could be used for farm and forest use.  He was relying on OSU and Department of Forestry for that.


Regarding Fairbanks’ request for access to the property, Taylor said Fairbanks’ demeanor and conduct speak for themselves.  He said they were not compelled or required and would not give the access to the property.  He said they don’t know Fairbanks' qualifications.  He noted the Department of Forestry was an unbiased state agency that made a view of the property and submitted their report.  That would be relied on by staff, and then they would be in agreement.  He said this application was filed and the same PA number under a 1999 application and was processed prior to October 2000.  He said all the standards discussed were not applicable.  He wanted Rutherford to discuss use of his larger pieces of property for farm and forestry and the applicability of that on the subject 20 acres. With regard to Kendall’s comments about three reasons why this should be denied (including no evidence of surrounding dwellings) he said they indicated (and it is in the record) that there are dwellings on the one side of the property.  He said part of the property is developed, but they were not saying the whole property was developed.  He said it was a combination of developed and committed lands.


Taylor noted Kendall’s point was that the subject property could not be used for farm or forestry. He thinks their farm and forest experts had more than adequately addressed the impracticability of the property.  He believed this property should be developed and committed.  He requested a continuance to respond to the 1000 Friends of Eugene letter.


Rutherford responded the piece of property he was referring to was strictly dry land farming on the 20 acres.


There being no one else signed up to speak, Commissioner Morrison closed the Public Hearing


Kendall suggested leaving the record open for two weeks until December 26, for any party to comment on any aspect including the new submittals, up to January 9 for any party to respond to the prior submittals.  Taylor would have up to January 23 for his final rebuttal and the record would close at that time.  He would return to the Board on February 6, 2002.


MOTION: to move to give the applicant a chance to respond to the 1000 Friends of Eugene letter.


Dwyer MOVED, Sorenson SECONDED.


VOTE: 4-0 (Green out of room).


c. SECOND READING AND PUBLIC HEARING/Ordinance No. 12-01/Amending Chapter 4 of Lane Code to Revise the Definition of Rental or Renting to Limit the Rental Fee Exclusion to Fees or Charges for Refueling (LC 4.205)


Rich Fay, Parks, stated they were proposing a change in the ordinance language, from excluder of fees (for optional services including but not limited to additional insurance coverage and refueling charges) to excluded fees for refueling charges.  He noted he monitored the car rental reports since last February and at least three firms had regularly taken significant exemptions out of the amount due.  He added one firm included exclusions for not for profit government gross sales, vehicle detailing and miscellaneous fees.  He said that three firms had regularly taken between 10 and 32% for exemptions.  He believed the car rental firms taking the large exemptions are receiving an inappropriate advantage due to the loophole in the car rental tax ordinance.  He noted the exemptions amounted to $1,321,000 for the fiscal year 01 and that converted to $132,000 lost in revenues.


Morrison noted this came from the Finance and Audit Committee with their full recommendation for approval.


Commissioner Morrison opened up the Public Hearing.


Jim Arscott, 3346 Storey Blvd, stated Enterprise Rent-A-Car employed him.  He said this would impact the customer who would have to rent for reasons that they don’t choose to (i.e., an accident or car in for service).  He added they don’t have an option for protection other than choosing to accept any additional insurance.  He said the customers are totally unaware what the Lane County tax charges are for and the charge increases if the didn’t carry collision insurance.  He didn’t think it was fair to target the customers.  He asked the Board to go back to exempting customers who had been in an unfortunate position of having to rent cars.


Weeldreyer asked if it would be helpful if Lane County provided information that explained the tax on the rental car. She recommended Melinda Kletzok meet with Rich Fay to publish brochures explaining the taxes.


Arscott stated that would be a great idea.


MOTION: to adopt Ordinance 12-01.


Dwyer MOVED, Sorenson SECONDED.


ROLL CALL VOTE: 4-0 (Green not present).








a. ORDER 01-12-12-14/In the Matter of Adjusting the Salaries of Elected Officials.


Was not voted on.


b. ORDER 01-12-12-15/In the Matter of Amending the Salary Range for the Classification of Captain in the Sheriff's Office.


Cheryl McCawley explained the packet outlined the reasons why they are proposing the increase in this classification.  She stated the Sheriff considers the Captain a critical position both in corrections and police services as well as the Chief Deputy position.  She said they attempted to recruit for the position in the past few years due to retirements.  Their efforts were not successful.  She noted the labor market had loosened since 2000 but the last recruitment for this position in the past few months gave them few applicants and not enough to make a decision.  She said they were dealing with a salary issue and the three organizations considered when they negotiate with LCPOA are Washington, Clackamas and Marion Counties.   She said two of the counties pay over $100,000 for their Chief Deputy Captain and one pays $88,000 She noted they were looking for a seasoned person for this position.  They found that recruitment was not bringing in people.


Dwyer asked if the action they took in deferring the Sheriff’s raise had any bearing on this.


Wilson responded that the Lane Manual description for the elected official compensation board indicates that when the elected official compensation board considers the Sheriff’s salary, the Sheriff should not be paid less than anyone else in the organization.  She noted the Board could set the captain’s salary and the board order would be more recent than the board order that adopted the description of responsibilities for the compensation board.  She said the Lane Manual description would not be an impediment to the Board.  She added the state statute didn’t apply because Lane County has a home rule charter.  She suggested changing the effective date from December 31, to January 1, 2002 because of the possibility of a charge of illegal expenditure.  She said the state legislature had changed the liability where there was wanton or willful disregard of duty or malfeasance.  She said changing the date to January 1, 2002 gives additional protection.


MOTION: to approve ORDER 01-12-12-15 with the effective date as of January 1, 2002.


Weeldreyer MOVED, Green SECONDED.


VOTE: 5-0.


Sorenson noted the Lane County Elected Officials Compensation Board had made a report to the Budget Committee but the Budget Committee didn’t make a recommendation to the Board.  He asked if the Board could take up this matter as a matter of law.


Wilson responded from a budgetary standpoint, the Board has the authority to change budgets without the action of the Budget Committee as long as they do not exceed ten percent of any particular fund.  She said the salaries of all the elected officials come from the general fund.  She said the Lane Manual provision they adopted directs that the compensation board make a report to the budget committee and they fulfilled their duty.  She didn’t think there was any legal requirement that the Budget Committee must take action on an elected official.  She added if the Board did take action, nothing should be accepted until after January 1.


Wilson stated the Compensation Board would meet again in the year 2002 and will deliver another recommendation to the Budget Committee.


There being no further business, Commissioner Morrison recessed the meeting into Executive Session at 3:45 p.m.


Melissa Zimmer

Recording Secretary