BOARD OF COMMISSIONERS'
September 27, 1994
Commissioners' Conference Room
Chair Jerry Rust presided with Steve Cornacchia, Ellie Dumdi and Jack Roberts present. Marie Frazier excused. Sharon Giles, Recording Secretary.
13. COMMISSIONERS' ANNOUNCEMENTS
14. PUBLIC HEARINGS
a. PUBLIC HEARING AND ORDER 94-9-27-19/In the Matter of Considering an Appeal of Road Construction Standards in a Facility Permit for Access to a Proposed Non-Forest Dwelling Pursuant to L.C. 15.900(8) (East 43rd Street/Vern Egge).
Roy Burns provided a brief review of this item (see material on file).
Rust opened the Public Hearing.
Cindy Land, 2705 East 43rd, stated that she was against creating a substandard roadway. She distributed a petition from all of the residents living on East 43rd, remarking that all of them were against the roadway being created substandard, but were unable to attend today because they were working. Land stated that she was not opposed to growth or to building a roadway, explaining that they were willing to create the right-of-way that is necessary within guidelines, including a guarantee of their status quo. Land indicated that due to the slope of the area, at least four vehicles slid off the roadway last winter. She remarked that there were better ways to provide a safer roadway.
Ron Land, 2705 East 43rd, reviewed the history of this matter. He indicated that Mr. Egge acquired the property after the Conditional Use Permit was granted along with its conditions. Land stated that there are two approved road plans. He stressed that the road as it is does not meet County standards. Land emphasized that they have never refused to sell additional right-of-way to Mr. Egge.
Larry Thorp, attorney for Egge, presented an overview of how this matter has unfolded. He stated that in December of 1990, the County approved a permit for a dwelling on Egge's property, which included the condition that a facility permit be obtained for creation of access onto a county or public road. Thorp explained that in September of 1991, Egge began to build the road and when the Lands objected, the County issued a stop work order as no facility permit had been obtained. He indicated that Egge subsequently applied for a facility permit and received a letter from the County about which he asked for clarification. Thorp stated that Egge received a response in January of 1992 which informed him that he could not build the road within the right-of-way as it existed. He remarked that between January and the fall of 1993, Egge hired a surveyor/engineer to try to design a road within the right-of-way, but both plans that were submitted required additional right-of-way acquisition. Thorp observed the Public Hearing which was held in January of 1994 to determine whether the road was a public road, although the County had already issued a stop work order to Egge for working in a public right-of-way. He indicated that the Board determined that it was a public road. Thorp commented that, in the interim, County planning staff had advised Egge that the design which would use his property within the 30-foot right-of-way would only allow for a 16-foot road bed, which would only allow three dwellings in that area and, therefore, he would not be able to get permits on his four or five lots if the road was built to that standard. Thorp referred to a letter from the Lands' attorney indicating that the Lands do not want development in that area. He stressed that the issue is what to do to get access to this property. Thorp summarized that there are two legal issues: 1) One dealing with the Order granted in 1990 for the residence, which only required a facility permit for access onto East 43rd, noting that improvement of East 43rd was a new condition which has been unilaterally imposed by staff; and 2) One dealing with whether or not, as a condition of granting a building permit, a party can be compelled to build one-quarter mile of public road. Thorp requested that the Board direct staff to authorize the facility permit for access onto East 43rd and allow Egge to apply for and obtain a building permit without the need for the improvement of East 43rd Street.
Responding to a series of questions from Cornacchia, Thorp indicated that it was his understanding that Condition Number 2 has nothing to do with the improvement of East 43rd Street, but has to do with access onto East 43rd Street; however, he continued that staff's position seems to be that it has the authority to require the facility permit to construct East 43rd Street independently of that condition. Thorp confirmed that his client had thought he had approved plans, but then the County came forward saying that East 43rd had never been accepted by the County, at which time the Board did go through the process of accepting it. Continuing, Thorp explained that work was commenced prior to the determination of East 43rd as a public road, although Egge was working under that assumption that it was a public road as it was so identified on assessor's maps. Thorp stated that his client had commenced work on East 43rd because there was no road at all present there.
Responding to Cornacchia's questions, Lloyd Holtcamp, Senior Engineering Associate for Lane County, explained that it is necessary to get a facility permit for work on a public road and the County became involved in Egge's work on East 43rd after being notified (by Mrs. Land) of the work on the road. After lengthy discussion, Holtcamp agreed that Egge could build his house without improving East 43rd Street, although possibly having to return the portion he had worked on to preconstruction conditions. Cornacchia concluded that the action today has nothing to do with the ability to build the house, but deals with the need for a facility permit if Egge desires to improve East 43rd Street.
Responding to Rust, Stephen Vorhes, Assistant County Counsel, stated that the building permit may simply say to comply with all applicable regulations, which could open the question of whether there is a requirement to improve an unopened right-of-way in order to use it for access.
Jeff Savage, 542 Panda Loop, stated that he is a landowner at the bottom of the hill. He observed that the opposition is not affected by this section of road and none of the opposition is willing to bring their road up to county standards. Savage stressed that the current condition of East 43rd is that it is 8 feet wide, containing two ruts for each tire. He emphasized that there needs to be some kind of middle ground where this road can be built reasonably to make it safe.
Cindy Land spoke again, indicating that the critical issue is that the road, until it was illegally opened, was a deer trail and, without the construction that was done on it, Egge would not have been able to get to his property.
Thorp explained that it was the interference of the Lands and the confusion on the part of Lane County staff as to whether East 43rd was a public road that has caused this problem to escalate. Responding to Cornacchia, Thorp stressed that it is his belief that Egge can use his property without the need to improve East 43rd.
Ron Land commented that the road was constructed illegally and without a permit which is why they had complained to the County.
Rust closed the Public Hearing.
Responding to Roberts and Cornacchia, Stephen Vorhes, Assistant County Counsel, confirmed that he believes Lane County does have the authority to require as a condition of a facility permit that East 43rd be improved. Vorhes stated that the question is whether by approving the facility permit to connect to a public road, and opening that road to the traffic that driveway will generate, does/can that create a need for improvement of that public road to a standard that will bear the traffic generated by that driveway. He indicated that he believes that provisions within Lane Code, Chapter 15 (15.205 and 15.225), provide the authority for the director to look at what the nature of the road is and whether it can stand up to traffic that the access will generate.
Roberts indicated his support for the Public Works recommendation. Cornacchia concurred. Responding to Dumdi, Holtcamp indicated that the requirement is for the section of road that was unopened, approximately one-half mile, before getting to the section of road that was opened.
Rust re-opened the Public Hearing.
Thorp stressed that at the time the work was done, the road had not been determined to be a county road. Cornacchia observed that Egge's actions were based on the theory that the road was a public road.
Rust closed the Public Hearing.
MOTION: Approval of the Order. Roberts MOVED, Cornacchia SECONDED. VOTE: 4-0.
b. SECOND READING AND PUBLIC HEARING/Ordinance No. PA 1062/In the Matter of Renaming Ernest Bridge to Earnest Bridge.
Rust read this ordinance into the record and opened the Public Hearing. There being no one present who wished to testify, Rust closed the Public Hearing.
MOTION: Approval of the Ordinance. Cornacchia MOVED, Roberts SECONDED. The Secretary polled the Board. VOTE: Cornacchia, Dumdi and Rust AYE, Roberts NAY.
15. OTHER BUSINESS
a. ON THE RECORD HEARING AND ORDER 94-9-27-20/In the Matter of Hearing Arguments on an Appeal of a Hearings Official Decision Affirming the Planning Director's Denial of a Vested Right (File PA 0434-93; Applicant/Appellant: Hildebrand).
Mike Copely, Associate Planner, briefly reviewed this item for the Board (see material on file). He explained that the parties of record include Conrad Hildebrand, Ethel Carlson and the Planning Director. Cornacchia mentioned that he had hoped to hear from either the estate or the property owner in order to get information on the intent of the estate. No ex parte contacts were declared. Rust opened the Public Hearing.
Conrad Hildebrand, 24787 Lavell Road, Junction City, indicated that he was Ethel Carlson's brother-in-law. He provided a brief history, stating that the subject land was homesteaded in 1898. Hildebrand remarked that the elder Carlsons assumed ownership and began living on the property in 1948. He indicated that "Grandpa" Carlson died in 1982 and "Grandma" died in 1984. Hildebrand noted that "Grandma" had executed a "Life Rights Deed," which he read into the record. He stated that the "Deed" conveyed the property to Carl Carlson (her son) for his life; and, upon his death, to his surviving spouse for her life; and, upon her death, fee simple to Norman Carlson and Marvin Carlson (grandsons), as tenants-in-common, each holding an equal, undivided interest. Hildebrand continued that the mobile home on the property was removed in 1986, the same year that Carl Carlson died in a truck wreck. He remarked that this left the life rights to his wife, Ethel Carlson. Hildebrand stated that it took the next seven years to settle the estate. He indicated that Mrs. Carlson eventually bought out both sons' interest in the property and paid the back taxes ($14,000) and attorneys' fees ($12-$14,000) for settling the estate. Noting that he couldn't comment on Carl Carlson's intentions upon removal of the mobile home, Hildebrand stated that it was Ethel Carlson's intention to re-establish a home on the property.
Responding to Rust, Hildebrand stated that he goes to the property about once a month. He indicated that he had attempted to secure the property with a chain and lock, has cleaned up previous dumping, and cleaned up and burned wood debris. Rust closed the Public Hearing.
Cornacchia stressed that in order to make the case for an exception, testimony from representatives of the estate with regard to intent in the discontinuation of the non-conforming use would be needed as there is no evidence in the record. Copely observed that Ethel Carlson was invited to appear, but elected to let Mr. Hildebrand represent her. Dumdi asked that this matter be continued in order to hear from Mrs. Carlson. Roberts indicated that he was inclined to say this situation doesn't meet the test, noting that it is more difficult in cases of mobile homes to show clear evidence of intent to go back. Rust remarked that he was in favor of hearing from Mrs. Carlson, noting that it would be important to show evidence with regard to there having been an active interest in occupying and managing the property during the interim.
MOTION: Continue this matter until October 26, 1994, at 1:30 in Harris Hall. Rust MOVED, Dumdi SECONDED. VOTE: 3-1, Roberts dissenting.
b. FIRST READING AND SETTING SECOND READING AND PUBLIC HEARING/Ordinance No. 7-94/In the Matter of Amending Chapter 4 of Lane Code to Revise the Lane County Transient Room Tax to Include Recreational Vehicle Parks (LC 4.100) (Second Reading and Public Hearing: October 11, 1994, 10:00 a.m., Harris Hall Main Floor).
MOTION: Approval of the First Reading and Setting Second Reading and Public Hearing for October 11, 1994, at 10:00 a.m. in Harris Hall. Cornacchia MOVED, Dumdi SECONDED. VOTE: 3-1, Roberts dissenting.
c. Rust presented the BLM plaque regarding the Row River Trail to Bob Keefer, Parks Department.
There being no further business, this meeting adjourned at 2:50 p.m.