July 26, 1995
BOARD OF COMMISSIONERS' REGULAR MEETING
Harris Hall Main Floor - 1:30 p.m.
Vice-Chair Cindy Weeldreyer convened the meeting at 1:37 p.m. with Commissioners Steve Cornacchia, Bobby Green Sr., and Jerry Rust present. Excused: Ellie Dumdi. Leslie Barrett, Recording Secretary.
12. COMMISSIONERS ANNOUNCEMENTS
Commissioners' announcements were held earlier in the day.
13. PUBLIC HEARING
a. PUBLIC HEARING AND ORDER 95-7-26-27/In the Matter of Reconveying Mabel Park to Willamette Industries, Inc.
Bob Keefer, Parks Manager, explained the purpose of the hearing would be to allow the public to speak to the Board about any objections to the County returning Mabel Park to Willamette Industries. Keefer indicated that most parks managers are "empire builders," stating that they do not like to give away land once it has been received and that they like to take care of what they have. Keefer said it was unfortunate that over the years, the County has not been able to maintain some of the properties they have received in the past.
Keefer said that Mabel Park was received in 1968 from Willamette Industries for a public picnic site, and the County has not been able to maintain it. Keefer said the park was received prior to the development of the BLM park at Shotgun Creek, which is only about a mile to a mile and one-half away. He noted that Shotgun Creek was developed in 1977. Keefer then distributed a map of the Mabel Creek/Shotgun Creek area.
The Mabel Park location had picnic facilities on site until the late 70s or early 80s, at which time the County removed facilities or they were destroyed by vandals. He referred to Parcel 2 on the map that is part of the access road to the parcel (a 40 right-of-way to the abandoned Weyerhaeuser Railroad Line). Keefer said that only Parcel 1 was being dealt with at present, as road vacation and additional negotiations with residents along the road are needed on Parcel 2.
Keefer indicated that County staff was recommending the reconveyance of Mabel Park to Willamette Industries. Keefer indicated that Willamette Industries does not plan to develop the parcel at this time, but to protect it. Keefer said there was a lot of trespass in that area, fire danger, and a lot of four wheel drive degradation of that site. He stated that Willamette Industries plans to do what they can to minimize that impact.
Keefer said that Parcel 2 would be brought to the Board at a later date, and indicated that County staff were working with the other property owners in the area to determine its best use. Keefer completed his presentation by noting that when the Board had approved the Parks 2000 plan a couple of years ago, that Parks staff realized the need to continue downsizing their operations to meet staffing and funding levels. Mabel Park is one of the sites that was recognized as surplus and should be reconveyed.
Weeldreyer opened the Public Hearing at 1:38 p.m.
Todd Schwartz, Box 995, Marcola, testified in favor of the proposed reconveyance. Schwartz reported there were significant incidents of illicit drug use in the area of Mabel Park, and activities such as discharging firearms after dark. He stated he had spoken with County Sheriffs deputies and the Department of Forestry personnel who patrol for fire. Because of the parks remote location (from a major road), it is difficult for them to monitor regularly. Schwartz said that Shotgun Creek is only 1.5 miles away, with a resident living close to the park, and a gate across the park road. He said it was a beautiful park that is well controlled. Schwartz said there was environmental damage at Mabel Park, as there is a lot of traffic through the stream in that area. Schwartz recommended that Parcel 2 also be reconveyed in the future.
Weeldreyer closed the Public Hearing at 1:39 p.m.
MOTION: Approval of the Order. Cornacchia MOVED, Green SECONDED. VOTE: 4-0. Van Vactor commented that this was an example of government downsizing and recognizes the fiscal reality of Lane County government being unable to maintain all their parks.
b. SECOND READING AND PUBLIC HEARING/Ordinance PA 1076/In the Matter of Amending the Rural Comprehensive Plan to Redesignate Land from "Forest" to "Rural," Rezoning that Land From "F-2/Impacted Forest Land" to "RR-10/Rural Residential 10," and Taking Exceptions to Statewide Planning Goals 3 and 4; and Adopting Savings and Severability Clauses (file PA 0658-95 Morrissey)(NBA & PM 7/5/95)
Michael Copely, Associate Planner, stated that staff was recommending rolling the Public Hearing to August 23, 1:30 p.m. to allow the necessary period of time following reading of the new title. Copely said the new title emerges from modifications to the findings and referred the Board to Exhibit C of the Ordinance.
Copely indicated there was one person signed up to testify, and deferred to Legal Counsel on taking testimony from the individual. Copely indicated another hearing would be required on August 23. Copely said that there was also written testimony, if the Board wished to hear testimony today.
It was the consensus of the Board to hear the testimony all at one time. Evan Fodor, who had signed up to testify, stated he would pass on testimony until August 23. Assistant Legal Counsel Steve Vorhes offered the recommendation that the Board continue the hearing until August 23. After a brief discussion, Weeldreyer opened the public hearing at 1:45 p.m. MOTION: Continue the hearing until 1:30 p.m. on August 23 in Harris Hall. Rust MOVED, Cornacchia SECONDED. VOTE: 4-0.
c. SECOND READING AND PUBLIC HEARING/Ordinance PA 1073/In the Matter of Amending the Rural Comprehensive Plan to Redesignate Land from "Forest" to "Marginal Land" and Rezoning that Land from "F-2/Impacted Forest Land" to "ML/Marginal Land;" and Adopting Savings and Severability Clauses (file PA 3322-94; Aster)(NBA & PM 6/28/95)
Michael Copely indicated to members of the public in attendance that there were a limited supply of copies of the Board packet available at the back table. Copely then indicated correspondence for the record. He said correspondence had been received and distributed from Mr. Brownlee and Mr. Whittington. Copely indicated three additional items that had been distributed -- letters from Donna Rose, Mr. and Mrs. Woxell and Sue Wolling.
Copely referred to the Aster site shown on a slide presentation, indicating that the property is 107 acres. Copely said that the request for marginal lands is a special purpose designation and a zone allowable to counties that elect to do marginal lands provisions pursuant to state law. The marginal lands designation allows for low density or large parcel development on lands that are shown to be of limited or no value for resource production. Copely directed the Boards attention to staff notes, but said he would not go into detail about them at this time.
Copely indicated the criteria under which the proposal was being reviewed. The marginal lands criteria are found in the 1991 state statutes (197-247), but are no longer listed in the 1993 statutes. Copely indicated that the County was still permitted to use the 1991 marginal land statutes. Copely reported that Lane Code Chapter 16-400, 16-252, and 16-214 apply to this request.
Cornacchia inquired if the marginal land designation carried with it a particular lot size. Copely responded that the minimums in the marginal land zone are ten or twenty acre parcels. Cornacchia asked if the Board had conclusions about the availability of water in the designated area, and if they approved the ordinance, could they set a minimum lot size of twenty acres. Copely said he was uncertain if the zone authorizes the Board to do that and asked Legal Counsel for a clarification. Copely remarked that the Board could put a site review suffix on the property, and instruct through site review that that application occur during time of land division.
Assistant Legal Counsel Steve Vorhes stated a provision was included in the zone provisions that authorizes conditions. Vorhes then said that historically, as a practical manner when those kinds of concerns have arisen, those kinds of restrictions have been typically included in direction for site review criteria.
Vorhes recommended to Weeldreyer that she review the procedure that would be followed prior to opening the public hearing for the benefit of the audience. Weeldreyer explained the procedure and asked for disclosure of Board member ex parte contact. No ex parte contacts were disclosed.
Weeldreyer opened the public hearing at 1:53 p.m. She explained to the audience that anyone testifying needed to state their name and address for the record, and said that testimony was limited to no more than five minutes for each person. Weeldreyer asked the audience to try to offer unduplicated testimony, rather than restating points made by previous people.
Al Couper, 2258 Harris, Eugene, stated he was representing Ed Aster. Couper requested that Dumdi be allowed time to listen to the tapes, as she was unable to
attend todays meeting. Couper gave some background information on activities to date regarding the requested Ordinance.
Couper reiterated that marginal lands designation is a resource designation, indicating that it was expected that testimony would be heard that this property could grow trees. He said that would not decide the issue, but a question of whether it is prime or very good land for growing trees, stating there was objective criteria listed in the statutes and Lane Code. Couper indicated that this land is not "super" land for growing trees. Couper referred the Board to the Erickson case which they had previously won.
Couper told the Board that they would probably hear testimony that this is land capable of growing trees, and that it is good or excellent. He recommended to the Board that they regard that sort of testimony as personal opinion, saying it would be relevant in a legislative, policy-making context. Couper referred to ORS 197.247-1-a as the place where the essence of marginal lands could be found. Couper said the statute had two parts: 1) was the property managed for forestry or farming during a certain five year window (i.e., 1978-1982); and 2) the capability of the soil.
Couper remarked that the Erickson case he had mentioned earlier, clarified some of the grammar, stating that if it was found that the property was not managed, then you do not move to the second part of the statute. Couper said that through testimony of the neighbors, they would show that the property was not managed.
Couper indicated that the statute does not directly define management, but there is legislative history and dictionary definitions pointing to meaning "human intervention, direction or control." Couper said it was uncontested at the Planning Commission Hearing that the property was not managed for farming during that five year window. He said that with forestry, you could have a property that was being managed with nothing happening on the ground, except the trees are growing. Couper said this was the primary case, and reiterated that the neighbors had previously testified that if the property had been managed, it would have produced more timber.
Couper said that they would also like to offer testimony on the second part of the statute regarding the farming test. Regarding prior harvest, Couper reported that the property was logged in 1989-90 by Roseboro Lumber. Timber volumes, reported by Roseboro Lumber, included timber off an additional ten acre parcel, which was several miles away. Couper said that if the entire volume was attributed to Asters property, and if they doubled the price (using existing prices when property was logged), the amount was still $1,600 under the limit. Discussion followed.
Couper said that he would be relying on the expert testimony of Gary Thompson, Forester, stating he has between 25 and 30 years of experience.
Couper stated that the statutory test is two-tiered. The first part must be passed by every applicant, and then the second tier requires one of three, two of which are parcelization tests and one is productivity. Couper said they had chosen the productivity rating. Referring to the statutory criteria on marginal lands, Couper said it was strictly a mathematical computation and the test is met. Couper then commented on Lane Code criteria in regard to a plan and zone change, stating they were covered in the paperwork that the Board had previously been given. He indicated water was one issue and there was a "sort-of" issue with traffic, speaking on the traffic capacity of McBeth Road. Considering the traffic engineers rating, McBeth Road is capable of handling the projected increased traffic level.
Couper indicated that Ralph Christensen would be speaking on the water issue. He was the County Hydrologist in the early 80s when the County delineated water quantity limited areas. This property does lie in a water quantity limited area, requiring an aquifer test that has been conducted. Couper stated that Christensens conclusion matched the criteria, that there is adequate water to supply this development without long term degradation of the aquifer.
Weeldreyer asked that the remaining two presenters speaking for the applicant take no longer than five minutes total for their testimony, as Coupers presentation had already taken fifteen minutes. Gary L. Thompson, 2650 Garfield, Eugene, stated that he was a forester since 1972, that his vita was in the record and that he has been in the area since 1975.
Thompson said he had done a comparable site cruise of adjoining forest lands to try to establish what volume was there prior to harvesting and to evaluate what the site classifications were. He said that the parcel was broken into three pieces. One piece is very good forest land, and should be managed for forest purposes. Thompson stated the majority is in marginal land classifications, with some being in a classification that is only good for grasslands. The productivity capability of the combined three parcels can be examined on three bases. Thompson stated that he reviewed all three: 1) soils SCS classification of what can be considered as an estimated volume production; 2) a measurement of adjoining stands and look at aerial photos; and 3) theoretical assumption of tree size and spacing based on a fifty-year or ninety year rotation. Thompson reviewed the evaluations in detail, stating that the property meets the criteria for marginal lands. Discussion followed on logging rotations based on forty or fifty years and forest management practices.
Weeldreyer indicated that she had stopped the timer while the Commissioners asked questions, and stated there was a minute and a half left for Mr. Christensens testimony. Weeldreyer also said that the applicant would have time for rebuttal at the end of the session.
Ralph Christensen, Prairie Road, Eugene stated he would offer any unfinished testimony in rebuttal, if it was appropriate. He then stated that, pursuant to Lane Code, an aquifer test was conducted. Christensen said that enough water was located. He said he was well aware of the water problems on McBeth Road. Referring to page eight of the Board packet, Christensen said that historically the McBeth Road area has had water problems. He then referred to the map on page nine of the Board packet, stating that the Aster well was a long distance from the McBeth area. This well would be used to supply water in a community water system. Christensen said that when water quality and quantity limited areas were adopted, they were adopted because of the proper geology, zoning and distribution of size and layout of lots.
Cornacchia inquired if the well in this particular location would have no impact on the water sources of neighboring lots. Christensen said that could not be said as a certainty. He then explained that it is potentially possible to pump the wells and measure the draw-down in another well. Christensen further remarked that the use of this well would not have an impact on those who live on McBeth Road because the top of the hill is an aquifer recharge area and this well is in an aquifer discharge area. Christensen said that it was "near nil" that this well would have an impact on the McBeth Road area. He did say that another well within 300-400 of this one might show a response. Christensen said that at the time of the test, two other wells were looked at with a "no response" from the other wells.
Rust inquired about the timetable from pumping and testing measuring an adjacent well. Christensen said that all measurements are taken before the pump test begins, then the well is turned on. Within fifteen to twenty minutes of beginning the pump test, they go back to the other wells. Christensen stated this continues as long as pumping continues and then continues about half-time the pumping went on (e.g., if the pumping went on for 24 hours, an additional 12 hours of checking well recovery would occur after pumping). This additional checking would ensure that there is no delayed response in refilling wells.
Weeldreyer stated that the applicants testimony had just concluded, and then reviewed the order of upcoming testimony: 1) persons in favor of applicants proposal; 2) testimony from others; 3) additional comments from staff, and 4) an opportunity for rebuttal by the applicant. Weeldreyer clarified the status of those signed up to offer testimony at the hearing. As there was no one signed up to speak on behalf of the applicants proposal, Weeldreyer indicated that opponents would be allowed to speak, citing a five minute or less period for each persons testimony.
Ann Woeste, 84487 Murdock Road, said she lived in the neighborhood of the proposed development and that she was a member of the Spencer Butte membership association. Woeste indicated that 190 families are members of the neighborhood group in that area, but stated she was speaking as an individual, although she reflects many of their concerns. Woeste indicated a formal position has not been taken by the group, but that one was planned.
Woeste stated that she has numerous concerns about water, and has appeared before the Board on a previous occasion. Woeste said that there was some inconsistency from Christensen regarding the water resource for the Spencer Butte area. She had been previously told that the water did not come from individual, small parcels, but from the coastal range. Woeste also indicated that there was a fracture zone, and no water table in the area, which makes it hard to say what will happen to an adjacent well, when a well some distance away might be impacted because of the fracture zone.
Woeste further remarked that she was concerned with the zoning and increased density in this area, inviting the Commissioners to drive out into the area or check their planning records for increases in density. Woeste said she was also worried about a precedent being set declaring land as marginal lands, when very little forestry land in Lane County has been formally managed over the years. She encouraged the Board to be very careful about this, so that developers cannot follow this marginal land precedent.
Woeste indicated that she had "thinned" seven acres of her land last year for chips and a few mill logs, and made a profit of $10,000 on a 50/50 split, stating she did not feel her property was very good, and she still had $20,000 of timber on it.
Eben Fodor, 394 E. 32nd Avenue, Eugene, stated he was present as President of Friends of Eugene. Fodor showed a cover of the States Tourism/Travel Guide, which states: "Oregon -- Things Look Different Here." He said there were no pages of subdivisions in the entire booklet, stating that apparently subdivisions do not bring tourists to the state. Fodor stated that the high quality, natural environment here was outstanding, and the reason that Oregon looks "different" is being blessed with the wonderful natural heritage and a "fantastic, marvelous" state land use program that protects our rural lands. Fodor said that the state distinguishes rural lands from urban lands and places them in either a farm or forest category.
Fodor stated a need to value our farm and forest lands, saying we need food and our agricultural lands are declining rapidly in the state. He commented that the Willamette Valley is the most productive agricultural area of the state. Fodor said that forest lands provide timber, which is an essential resource from which our homes are built, and that Lane County has some of the most productive timber lands within the United States. Fodor stated that it is a mistake to believe that land needs to be developed to be productive. He felt there was greater value to residents of the area to keep this land as farm and forest land.
Fodor continued, speaking about the development costs for this land (seven lots). He indicated that some Oregon counties have calculated the traffic impact fee for rural land development, citing Washington County as an example. Fodor said that they have determined that it costs $6,000 per new home in the costs of new roads associated with that home. He said it was probably close to that same figure here in Lane County, which will add $42,000 to the County taxpayer tab as "unpaid."
Fodor stated his preference to leave the land as productive farm and forest land for the aesthetic value and no additional costs to the County taxpayers for road development. Fodor concluded that he saw no compelling reason to convert this parcel of land to a subdivision, and asked the Commissioners to reject the concept of marginal lands in Lane County.
Shea Bajaj, 1815 West 17th Street, Eugene, said he has lived in Eugene for the past eight years. He stated he lived here for the quality of environment. Bajaj said that he likes to ride his bike on McBeth Road and Fox Hollow and has found it painful over the past few years to see the increased new developments. He said he has seen a large increase in the number of deer and other wild animals killed alongside the road in this area, and stated it is "paining my heart." Bajaj stated that the new developments are squeezing some of the natural wildlife habitats, particularly along McBeth Road.
Tricia Clark-McDowell, 84540 McBeth Road, Eugene, stated she had previously testified twice before against the rezone of Mr. Asters property to marginal lands, stating she had read off long lists of figures on the history of water problems in the McBeth Road area the other times she had testified. Clark-McDowell said she wanted to bring the Boards attention to Seely Lane, which was a "catastrophic testimony to intensive rural subdivision in a water-limited area." She stated that the proposed Aster development borders this area.
Clark-McDowell reported that owners along Seely Lane had drilled as deep as 800, with an average well depth of 500 for an average of a "pitiful three gallons per minute." She remarked that many of the residents have to haul water from town, and lose water regularly as their neighbors drill to find scarce water. Clark-McDowell indicated that there were many water problems for residents all along McBeth Road and bordering the east boundary of Asters land. She stated that one resident had "twelve gallons per minute of arsenic laden water at 485;" and that another woman
had lost her well when a neighbor drilled, and that her water supply was solely from water collected in 55 gallon barrels from her roof.
Clark-McDowell stated that she realized that water is only one of the issues, but wanted to bring it to the Boards attention. She then appealed to Commissioners not to set a precedent to allow "beautiful and productive forest land" to be clear-cut, left unplanted, and then redesignate the property as marginal lands.
Clark-McDowell continued stating her concerns saying that McBeth was a "narrow, winding country road" with no shoulders. She stated this was a popular road for bicyclists, runners and walkers and expressed concern about the increase in traffic from this planned development and others that would follow. Clark-McDowell stated that the potential increase of traffic was a concern, and that the 1,000 vehicles per hour capacity stated for the road "was a joke." She pleaded with Commissioners to protect the rural lands, and asked them to consider all the information.
Charles R. Oliver, 29933 Fox Hollow Road, Eugene, stated he had lived in the area for eighteen years. He said that Fox Hollow Road is just over the hill from where the property is to be developed. Oliver commented on his habit of hiking through the woods in this area, stating that this is a "richly forested area." He reported that he had watched the area be clear-cut, the stumps removed, piled and slash burned. Oliver stated he remembers thinking that someone was going to "plant some nice trees and have a nice farm," but that property has never been replanted. He said that was a concern for him, as it has been over five years since the property was clear-cut.
Oliver said the entire area was "highly productive forest area," and was concerned about a precedent being set with property being developed in this nature. He remarked about the bicyclist who had testified about the harm that has been done to deer and other wildlife. Oliver stated his concern was for the bicyclist, that the road was "very narrow, no shoulders, and has foliage growing down to the road itself." He said that bicyclists have a hard time with motorists and he was concerned about increasing the traffic level. Oliver stated this was "definitely not marginal lands."
Liam Sherlock, 935 Oak Street, Suite A, Eugene stated he was the attorney representing the McBeth Road neighbors on this issue. He referred to written testimony that he distributed. He said he was going to focus his comments on the issue of the management of the lands and the productive capability. Sherlock said there is no statutory definition of the term. He asked the Commissioners to look at the practical realities of what happens on forest lands.
Sherlock referred to an affidavit by Kevin Burge, Land Use Coordinator for the Oregon Department of Forestry, in response to an inquiry made by a McBeth Road neighbor regarding what a reasonable management practice would be for a thirty year old stand of trees. Sherlock quoted Burge: "To my knowledge, this lack of entry argument has never been used to justify a marginal lands designation; and in a forestry context, it does not make sense to use this reasoning. The most productive forest lands in the world still have periods longer than five years when nothing, but growth happens." Sherlock continued by stating that the majority of Lane County could be considered marginal lands by using lack of entry as justification.
Sherlock also quoted Robert Thompson, Service Forester for Western Lane District of the Oregon Department of Forestry: "This lack of management activity during a five year period, in and of itself, does not strike me as evidence of mismanagement or non-management of the stand."
Sherlock continued by quoting from an affidavit by Charles Ogle, the owner of the property preceding Mr. Aster: "Even if the stand needed to be intensively managed during that time, I would not have been able to afford such practices because of severe economic recession in the construction and timber industries made it highly questionable whether my efforts would have been worthwhile."
Sherlock read a confirming statement from the Lane County Extension Forester: "Based on my knowledge of Lane County small woodland owners, I can safely say that very little intensive management, such as thinning, pruning and fertilization was done by them in the 78-82 period."
Sherlock commented that if the previous owner had used this land for mining, grazing, farming or some other non-forest related activity, the management issue would perhaps have been relevant in this context. Instead, the previous owners have historically regarded the land as productive forest land and managed it as such in accordance with the Lane County standards and practices for small woodland owners.
Sherlock stated he would also like to address the productivity and income issues and commented that the marginal land laws and LUBA requires objective determinations of income based on forest lands productive capability, using reasonable forest management practices. He also reported that past timber sale receipts did not indicate productive capability.
Sherlock said that regarding Gary Thompsons site exams, he did not reveal where he did his analysis, so the findings could not be verified. He also said Thompson had only measured six trees, three trees from each site class, and only assumed 57 trees per acre in his analysis. Sherlock said that he checked with several foresters, and learned that a conservative estimate of the average stocking level is 300 trees per acre initially, and 150 trees at harvest. He said that if Thompson had used the industry standard, as confirmed to Sherlock by Willamette Industries foresters, the Douglas Fir Simulator Model for estimating productive capability of forest lands would have shown that using 30 acres of the parcel would have out-performed the $10,000 minimum required as annual production.
Sherlock remarked on the cubic foot conversion, stating that using the applicants own figures and converting it to board feet (per standard conversion tables and using a 70-80 year rotation and a conservative estimate of $500 per thousand stumpage), it would come up with at least $20,000 annually. Sherlock stated that all the comments he had made were documented in the record. He then asked if there were questions.
Cornacchia inquired if he had done calculations based on forty and fifty year rotations, rather than seventy and eighty. Sherlock said that they had not, but would be glad to do so.
Bill Jenkins, 84773 McBeth Road, indicated he had testified previously about this issue. Jenkins spoke about Coupers earlier comment that he had proved there was no management on this land. Jenkins stated that was not what he had proved. He indicated that he had proved there would have been higher yield with more intensive management.
Jenkins stated that Linda Pauly had organized the opposition to the zoning change because they wanted to see that the land use laws were obeyed. Jenkins stated the land was zoned forest land, and that the parcel is good productive forest land. He said that when the land use laws were implemented, it met the tests, and Jenkins indicated that he believes the land continues to do so.
Jenkins stated that Aster was well aware that the land was zoned Forest Land (F-2) when he bought it, and that he had no reasonable expectation at the time of purchase to proceed with this particular course of action. Jenkins inquired why a citizens group should be forced to organize and spend their own money to see that existing laws are enforced. Jenkins asked why Lane County still had a marginal lands designation, saying that the State of Oregon repealed the law in 1993. Jenkins said that Lane County is one of only two counties who retain "this vague and poorly worded law."
Jenkins expressed his concern that as a carpenter and a small woodlot owner, he is concerned about the future of Lane Countys forest lands. He said that the maintenance of the timber base was at stake. Jenkins referred to a recent "Register-Guard" article on a USDA report and quoted: "enough land was converted from
natural resource use to residential development in Oregon between 1982 through 1992 to cover an area almost twice the size of Portland."
Jenkins stated that the biggest concern of area residents is the critical water problem, as it is a designated "water quantity limited area." Jenkins indicated neighbors raised similar concerns when Seely Lane developments were proposed. He continued by saying there are now numerous properties that have never been developed due to drilling as many as four wells that are "dry holes," one being directly adjacent to Asters property. He cited a well on 18-04-26, tax lot 900 that went dry when a new well was drilled on 18-04-26, lot 1600. Jenkins said that these properties are within the boundary of the proposed Aster development. Jenkins said there are documented examples in the record of new wells impacting existing wells.
Jenkins commented that Christensen had said the wells are geographically isolated from each other, but the pattern continues where one person drills and another persons well dries up. Jenkins also said that no one had discussed the impact of wells on Chezem Road that are downstream. He said that if accurate predictions could be made of water, oil and minerals, there would be no dry holes. Jenkins said there were no certainties in the quest for ground water, and encouraged the Board to reject the application.
Matt Ginsberg, 29585 Fox Hollow Road, said that Asters attorney had indicated that management was the major argument. Ginsberg said that the testimony heard today was mostly a secondary argument about water use. He stated he wanted to "second Liams (Sherlock) comments" about the viability of what Asters attorney said regarding their primary motivation for rezoning the land as marginal use, e.g., that it had not been managed.
Ginsberg said that Sherlocks report had included a long list of foresters who said there was no real reason to manage forest land near to harvesting, and wanted to add Asters forester (Gary Thompson) to that list. Ginsberg reported that when Cornacchia had asked if there was any reason to go in and manage the property, Thompson had indicated there was not any reason. Ginsberg stated his opinion that the forest management issue regarding this property was a weak one.
Roy Keene, 1475 Mesa, Eugene, stated he was a forestry consultant and a director for a non-profit forestry foundation opposed to the "deforestry" of Oregon. Keene distributed a picture that was a historical look at the property. Keene commented on the history of logging, based on the skid marks and many roads winding through the property. Keene also asked the Board to note the resiliency of the property to recover repeatedly, of its own accord (i.e., without human help), to grow trees.
Keene spoke about a second set of pictures showing the forest around the Aster tract, and asked the Board to note that there are many more than 57 trees per acre. He also said that the forests around the Aster tract were "dense and vital, and certainly capable of regenerating" on their own. Keene said that Sherlocks testimony had shown that the property was capable of producing a minimum, required income.
Keene commented on an earlier memo that the foundation had placed in the record, the applicant said the members of the foundation were conclusionary because they had said that Mr. Thompsons work was seriously flawed. Keene encouraged the Board to review the record submitted by Sherlock for the commentary by Charles Chambers regarding the yield tables. Keene said that Chambers created the yield table that Thompson had used. Keene indicated that he personally knows Chambers and indicated that Chambers works as a consultant for the Washington Department of Natural Resources. Keene reiterated that he would like the Board to read Chambers commentary in its entirety to see what the foundation had originally objected to.
Keene referred to the Attebury Northwest Species Yield Tables previously mentioned by Thompson, and then read a statement from Thompsons January 30 report: "I measured several trees in the area surrounding Asters property to determine what the site index really is on the property." Keene said that Thompson concluded that the field data "indicates that the SCS information is in error." Keene continued by saying that he submits this is conclusionary based on the basis of only several trees.
Keene then referred to a McCardle Yield Table regarding the measurement of site index: "For base 50 Douglas Fir and Western Hemlock, the site height trees should be ten trees of largest diameter from a group of fifty. For all other cases, site height is determined as the average height of dominant and co-dominant trees." Keene continued reading, and then summarized that this implies if the SCS site indexes are disregarded as the objective guideline for determining yields and productivity, that more than a few trees need to be measured in order to be anything other than conclusionary.
Keene stated he had assisted Lane County in 1980-81 to create the correlation between acres and site productivity as a test for how small an acreage could be and produce a minimum amount of income. Keene stated that the table is still being used and encouraged the Commissioners and the Lane County Planning Department staff to abide by that original condition and to honor it. Keene cautioned against setting a (marginal lands) precedent to carry forward. He concluded his remarks by stating there would be strong opposition reported to the media, and indicated that the County would be responsible for the deterioration of Oregons future forests.
Linda Pauly, 84773 McBeth Road, said she had already testified in the record, but had a few additional comments regarding transportation and the number of trips per day estimated earlier by Couper. She stated the estimate did not seem accurate to her, as she has done research on this type of development. Pauly said she was a landscape planner and designer. She said that the average "ex-urban" commuter per household is two wage earners per household, with at least four trips per day. Using that figure, multiplying that times seven residences would equal twenty-eight trips per day. Pauly says these ex-urban commuters usually have to travel through suburban neighborhoods, stating this would impact traffic on South Willamette where the traffic jams up. She referred the Commissioners to the Portland study printed in the January issue of the "American Society of Planners Journal." Pauly concluded by stating that she is opposed to the Aster development.
Wendell Whittington, 795 West 26th, Eugene, stated he appreciated the opportunity to speak with the Commissioners. Whittington stated he considers himself neutral in the development process. He said his comments would address what has happened in the past.
Whittington stated he settled on his property in 1935. He requested a picture of the property showing the subdivision. Whittington stated that parcel 900 was subdivided in 1928 and was not shown on the map that was displayed, but belongs to his brother. He showed an area where his sister lives. Whittington indicated that both those parcels have timber on them, but one portion in between did not have timber on it when he arrived in Oregon in 1935. He stated that this is a rocky ridge. He said they built a house there, and started to dig a well, but with the "first blow of the pick discovered that was not very malleable soil." Whittington stated they moved the house up to where his sister lives, and dug a well that was about 20 deep and 5 wide, then augured down to 93 with a 4" auger, but did not find any more water.
Whittington said that his brother came back from the war and built a house, drilled a well (two dry holes), and then found water near the north boundary, utilizing a suction pump. He continued that in August 1953, another well driller came in and went through the hard sand. He drilled 80 deep and still used a suction pump. He used that for nineteen years. Whittington then reported that in June, of this year, it was found that the property across the road, was actually two properties and they were divided. A well was drilled and hit the same vein as Whittingtons sister-in-law has on tax lot 900 property about three-tenths of a mile away. Whittington said that when he heard about this, he phoned the Watermaster. The Watermaster indicated that nearest well he could find was about a mile away. Whittington continued giving examples of water problems, "burned" submersible pumps and deep drilling required to find water.
Whittington suggested that this area could solve water problems by becoming EWEB customers and having water delivered. On the tree issue, Whittington commented that it was likely that some of the owners of the proposed subdivision would plant trees for decorative purposes and that some of them would be fir.
Weeldreyer thanked all those who came to testify to the Board, and announced that a ten minute break was needed.
The meeting recessed at 3:15 p.m. and resumed at 3:32 p.m.
Weeldreyer announced five to seven minutes for applicant rebuttal to the testimony given at the Public Hearing.
Al Couper had a procedural request to have ten days to submit written response to material that had not been seen prior to the days public hearing. Couper also requested ten minutes to be divided among Mr. Aster, Mr. Christensen, and Mr. Thompson for the rebuttal.
Green requested a process clarification, as Couper had earlier asked for an opportunity for Dumdi to hear the tapes of the hearing, as she was not able to attend the days session, and inquired if a decision was necessary today.
Cornacchia stated that it was his perception that the Board was not compelled to include Dumdi in the deliberations regarding this item, but also stated that as a matter of course, that when a Commissioner makes a request to delay a decision for an opportunity to hear the tapes, that has been granted. Cornacchia said that Dumdi had not made such a request, and that he was comfortable with the four remaining Commissioners making a determination.
Rust added that another issue was that Couper had requested an additional ten days to respond to new material. Rust stated that this was a bit more problematic for him, as previous opportunities had been available for rebuttal and debate. Rust inquired what was there about the "new" material presented today that could not be responded to by the team of people during the rebuttal time.
Couper said that the most significant issue was that no one on Asters team had seen the material (distributed earlier in the session by Liam Sherlock) before. Rust inquired what the new material was, and what was there about the nature of the material that made it difficult.
Couper responded that there was quite a bit of technical material presented, and that they did not know what was in it because they had not seen it. Couper also stated that he believed there was a legal right to have a continuance of at least seven days to respond. Couper stated that the real problem was that it was new material for them. Rust responded, stating that he was not trying to say it was an unreasonable request, but searching for some clarity.
Rust inquired of Legal Counsel about the right of a seven day extension, if requested. Steve Vorhes responded that the quasi-judicial procedures laid out in ORS 197.763 have provisions in them for continuance, but did not think it was automatic, but there was an opportunity to request that the record remain open for a period of seven days. Vorhes continued that there was debate whether that was at the first or last evidentiary hearing, and stated there was not a clear reading on that. Vorhes also indicated that the Board might want to hear more from the applicants counsel.
Cornacchia stated he would listen to the applicants counsel, and also said that he had difficulty with the petition. Cornacchia commented that he felt it was inappropriate to have new material brought in at the last minute.
Cornacchia commented to Couper that he saw conclusions and legal assumptions and analysis by the neighbors group (in the written material under discussion), but indicated the only technical material he saw was what Keene had testified about, challenging the manner in which Thompson had arrived at his conclusion.
Couper responded that the applicant did not want to overburden the Commissioners time or agenda, and stated he would like to preserve his request for the record and said that they would do whatever was convenient. Rust inquired if the attorney had given the applicant a copy of the material. Couper stated that they might have one now, but had not received one until the applicants attorney asked for one.
Cornacchia expressed the concern was the same for one letter, and was about setting a precedent of asking for continuations and keeping the process going because they had not seen something that had been given to the Commissioners. Cornacchia indicated to Couper that this material was fairly extensive, but nothing on the "water" issue that he (Cornacchia) was most interested in. He said it was hard for him to believe that Mr. Thompson could not respond today on the other issue about the manner in which the analysis was done. Discussion continued.
Liam Sherlock stated that much of the information in the document under discussion, and that had been distributed today, had just been received. He stated that it was the intent to compile the most objective body of data and analysis that would allow the Board to make the best judgment possible on this case. Sherlock apologized for the last minute information, but stated he did not have control of the timing of the material.
Ed Aster, 85109 Chezem Road, Eugene, thanked the Commissioners for the opportunity to address the Board on the project. Aster stated that he had shown the County planners that he had met the criteria to approve marginal land use. He indicated that they had given their approval with no objections.
Aster indicated that the well that will be used on the small development logs over fifty gallons per minute. He stated the well is over 100 years old and had been run 24 hours/day for over 50 years to provide water to a huge chicken operation at the bottom of the property. Aster said he was committed to responsible use of that resource in creating a community water system that will not affect the McBeth neighbors.
Aster said that of the Chezem neighbors, he had just learned that one who had tried to build a barn was unable to do so because he kept hitting water, finding two or three springs. Aster stated that they have a lot of water, and are more than willing to invest the funds necessary to create a community system and pump it to the back acreage.
Aster responded to one of the specialists that had spoken earlier, stating that he had not clear-cut the property. Aster stated that he bought the property after it had been clear-cut, and that it was a "mess...a horrendous, 107 acre slash pile." Aster indicated his family had invested over $200,000 to responsibly clean up the mess, moving very little topsoil, pushing the slash into large piles. He stated that he believed they were very responsible in doing so.
Aster responded to the question on traffic density. He stated that they were looking at four, ten-lot and three, twenty-lot parcels, for a total of seven lots. He said that if you estimated an average family size, that would be an additional thirty-five people on the properties. Aster stated that he has lived in the country for fifteen years, and said he could guarantee that someone who lives "out in the boonies the way we do, you dont make four trips per day." He said that the type of density spoken about is unrealistic because individuals will not make four trips a day into town.
Aster responded to Fodors comments re: $6,000 per lot for road costs, applies to Washington County, which is the most densely populated county in Oregon. Aster said that this road will be a country road, and stated he understands that this has been an emotional situation for a lot of people. He stated that he had tried to present all information to those involved in a responsible, professional way, and reiterated that he was talking about a total of seven homes on a 107 acre tract. Aster also reiterated that he intended to take water from the bottom of the property and pump it up in creating a responsible community, and placing restrictions on the water system that the buyers would have to live with.
Aster said that he thought he had complied with all the rules and regulations set forth by the legislature, and asked that the Commissioners approve the request for marginal lands.
Weeldreyer indicated there were five minutes left for the other two experts to provide rebuttal. Christensen commented on the water problem on Seely Lane, stating it was at the top of the ridge and was an entirely different situation. He said that the water is designated to come from the bottom of the hill where it has already been demonstrated that it is available. Christensen said that they do want to be protective of the water, and that is why they have set up the system to be from the bottom of the property. He continued by saying it would be inappropriate to base a decision on water on someone elses water problems in another place.
Christensen commented on the term "quantity limited area," saying that it does not mean that the area does not have a water supply, but lets a "red flag" go up to ensure that the water supply is checked prior to a zone change or the land use proposal. He said this has been done, and asked for other questions. Weeldreyer asked if the well to be utilized for the community system had a record to support the water supply. Christensen said that it was an evidentiary report, an anecdotal record, but not a well log.
Weeldreyer asked if a well that pumped 50 gallons per minute was enough of a flow to sustain a development of seven homes. Christensen responded that 50 gallons per minute exceeds the minimum by about five times based on the system that is planned. He said it was thought that it would be proper to have a responsible use of water in the neighborhood, e.g., the type of landscaping that does not require a lot of water use.
Weeldreyer questioned the fracture zone that was brought up in testimony that may not have shown up in the pump test, but would probably not impact another well that is geographically located some distance away. Christensen stated that all the water in that area is running through fracture systems. He said that you do not always pick up the influence of a well on the well that is closest to it. Christensen said that a fifty gallon/per minute well is a lot of water, particularly in this area. He indicated that there had to be a considerable fracture system, interconnecting pretty well in order to get that amount of water to flow through it.
Weeldreyer indicated that in another part of her district, a water expert had testified that taking out the Westfir Dam may not have an impact on the Westfir municipal water system, and the next summer there was a water problem. She said knowing that these kinds of things do happen, she inquired about a contingency plan developed for the buyers of the properties if this well did fail in the future. Christensen said that there are contingency plans, that it is easier for seven people to find another supply than for one individual who needs to drill a new well.
Christensen said there were two wells on the bottom of the property. One was pump tested and they watched the other, finding that it had an adequate supply of water to supply all needs of the subdivision and Mr. Asters house. Christensen said there was a third well at Asters house, which can supply his house if necessary. He said the two wells at the bottom of the hill could both be used for the development, allowing one for a backup, and indicated that they are not too "terribly well connected because it didnt respond very well to a pump test." Christensen said if the water is used in a responsible manner for the seven sites, rather than irrigating the 107 acres as agricultural ground, not that much water will be utilized and the well will not be taxed as it was when the property contained a chicken farm.
Cornacchia asked who would be designing the water system, inquiring if it would be Christensens firm. Christensen responded that had not yet been decided, but they would like it to be their firm. Cornacchia inquired if Christensen had an ownership in this property. Christensen said that he did not. He explained that he made decisions that he felt were appropriate, but the decisions were made in concert with the owner of the property.
Weeldreyer announced that there were nearly four minutes left for Mr. Thompsons rebuttal. Thompson thanked the Commissioners for having faith in his ability to respond as a professional. He stated he had not seen the data presented by Sherlock, and would like to have a chance to review the material in order to respond to it.
Thompson said that normal stocking when planting trees, is about 300 trees per acre, allowing approximately 12 spacing. He continued that when trees reached maturity, they would vary in spacing between 20-25 per tree. Thompson reported that when he had indicated there would be about 57 trees on the average, with the average diameter and height, that was based on that spacing of 25 between each tree. He stated this was indicative of adjoining stands and what he knows, as a professional, occurs on a stand that has reached maturity.
Rust inquired how old the adjoining trees were. Thompson responded that the trees on the east side were an older stand, 85-90 years old and the trees on the south and west varied in ages. He commented on the earlier remark that 45-50 site trees were needed to evaluate site classification by saying that on an overall average that would be nice to be able to take a sample that size. Thompson said that if you are knowledgeable about what you are doing, you can take a good look at the trees, select the most dominant trees, most indicative of what the very best tree can do on that site situation, drill that tree and find out what its age bracket was at breast height, which is what he did, and compare that with the site curves. Thompson agreed that he only took a few site trees, but carefully selected the ones that he chose.
Thompson commented that if a timber cruise is being done on a parcel, he will take several site trees throughout the entire stand to find where the average is. In this particular case, he looked at the best case scenario. He said the trees were anywhere from a log and a quarter to two and a quarter logs high. Thompson said he based his estimate of recovery on this concept and gave further details. Thompson said his data and field evaluations were not flawed. He stated that he is a degreed forester, and has been in this business since 1972. Thompson gave additional details on his forestry background and how he approached his work.
Rust asked Thompson about a December 19, 1994, memo discussion on marginal lands classification, where he stated he had developed a systematic timber cruise with plots spaced 200 x 200. Thompson said that was correct. Rust inquired further about picking the best trees. Thompson said there were two things done: 1) a plot sample to find what the volumes were on a per acre basis on the average (spacing); 2) selection of the best looking trees as he was going through that to determine the best site class.
Rust inquired if Thompson had taken a circular plot. Thompson responded that there were different ways to do that: a strip cruise (measuring every tree 33 on either side of you); and in this case he did a variable plot (a prism method); and Keene had earlier referred to a fifth acre plot (count every tree within a fifth acre size). Thompson said that all of these were sound methods of cruising. Rust then queried Thompson on how many trees per acre he actually measured. Thompson responded that it would vary.
Rust asked how many plots were taken. Thompson replied that there were 18 on the east side, but could not remember how many on the other side. Rust asked if he had the raw data, and whether it would be appropriate to request that. Thompson responded that it would be appropriate, but did not think Rust would come up with an analysis. Rust stated that he would like to see the raw data, and Thompson indicated that he would deliver it.
Discussion continued on the age of the timber harvested on the site, and choosing an average age of 40 years. Thompson said that an average age of 40 years of the trees on Asters property would be a good estimate. Rust indicated that the age of trees cut, and the age of the rotation figures into the equation when figuring dollar amounts used when applying the marginal lands designation. Thompson further commented on tree ages, and his background at estimating what a particular type of tree, at a certain age, will do growing on a particular type of soil. Thompson said that this parcel was not a Site II classification, which would have yielded more trees per acre and larger trees. Thompson stated that his professional reputation was important to him.
Rust said that during the course of these proceedings, he had allowed himself to become confused with the issue of volume and capability, and volume based on harvest and capability. Rust stated he was trying to be careful in sorting out that information. Thompson agreed that capability was one thing and volume recovered is another. Rust stated that the Commissioners were also concerned about their professional integrity and how they reached their decision.
Weeldreyer closed the public hearing at 4:08 p.m.
Cornacchia stated he had been trying to think on dual tracks, while listening to testimony and think about the request for extension. He stated he had come to a conclusion of how he would vote if he needed to make a decision today. Cornacchia indicated the conclusion was motivated initially by concern for water sources, and stated he was not so concerned about Aster being able to meet the needs of the seven purchasers, but the impact of those purchasers water use on the outlying residents.
Cornacchia reported that the Commissioners have heard for some time that there are water problems in this area, and have had testimony about this problem over the past six to seven years. Cornacchia stated that due to Christensens response that he could not guarantee that this would not impact other properties, that he went back to the original issue of whether this could be considered marginal land. He said, in his own mind, he put a higher burden on the applicant to meet that marginal lands test because of his concerns about the water. His vote would be to deny the application, because of his extreme concern of a precedent setting, or policy setting, that lack of entry is enough to meet the test on whether or not the property has been managed for that purpose for those four or five years.
Cornacchia continued by referring to Thompsons affirmative answer to his query about getting this volume without any management from the standpoint of human entry got him to think about entry and lack of management. When the Board talked about entry and lack of management, he was a part of that, and said that he was really thinking about agricultural land in that situation, where land lays fallow for four to six years, no furrows, planting or irrigation, and it would be easy for him to conclude that in that situation the land was not managed.
Cornacchia indicated it was problematic to take the same scenario and apply it to forest lands and opens up the possibility of every tract of forest land in the County being found to meet the marginal lands test, because you dont have to go to income if you can prove that you didnt manage it. Cornacchia stated that this land has been harvested several times, and one recently. He continued that a common sense approach would lead to a conclusion of management, which then lets him reject marginal lands in his own thinking, and then moving on to income.
Cornacchia said that this time there is not uncontroverted testimony, and has heard testimony today that says what the Board was given was brought about erroneously or the results are conclusionary. Cornacchia reported that Thompson had provided the parameters of his limitations, i.e., having to look at slash piles, which then applies theory and assumption. He said that this is what a forestry consultant would have to do, but does not leave a true certainty of the capability of the land because of those constraints. Cornacchia said that since the capability and volume thresholds are so close, he leans to letting the applicant respond to the material, not to the whole new case, but limit the opportunity for response to the Sherlock document.
Rust agreed with Cornacchias approach. He indicated he also would like to leave the record open. Rust said he was not going to the income test issue, but focusing on the first statutory test of whether the property was managed. Rust agreed that for the vast majority of forest land within the state and county, that there were large blocks of time exceeding five years in which a stand is not entered. Rust said that typically some planting occurs, then some pre-commercial thinning after a period of time, and perhaps some commercial thinning and then final harvest. Rust stated that the record shows it is a false test to say that if the land has not been entered or "actively managed" for five years, that it is therefore marginal land. He agreed with Cornacchia that this was not what was contemplated when the marginal lands term was adopted.
Rust said he wanted to speak on the applicants definition of management, indicating a couple of things that do not require active human intervention (e.g., record keeping, rotation management). Rust said he had heard that these were 40 year old trees that were harvested, and stated that there are 50 year cycles of management, and 90 years. Rust indicated that with rotation management, if you are a passive manager, it would not be atypical to see land that had not been entered at all for fifty years, citing an example of timber that had burned, come back naturally, and was now being harvested. Rust indicated that was not uncommon, and that it would be difficult to get the idea past the Board that just because property had not been entered for five years with some type of active management, that of itself gave a marginal land designation. He continued by saying that allowing such a marginal land designation would drive a huge wedge in the land use planning and zoning as tens of thousands of acres of forest land would be immediately eligible as marginal lands. Rust indicated that he would be very willing to allow the applicant to respond to the opposition arguments and to be able to create a record in response to that, and would vote to postpone the final decision.
Green indicated he had not asked many questions during the proceeding and had tried to be a good listener. He stated he was willing to keep the record open for ten days to give the applicant a chance to respond to this material. Green indicated he was struggling in terms of individual property rights issue and their ability to develop it the way they see fit. He reported that there was a letter in the packet from Kevin Burch (Land Use Planning Coordinator, Department of Forestry), and told the applicant that he would be interested in his response to the Burch letter, and the lack of entry argument never being used to justify a marginal lands designation. The Burch letter said that the marginal lands designation based on a lack of entry argument sets a precedent that the Department of Forestry strongly opposes. Green said he has some concerns about the issue and reiterated his request for response regarding the lack of entry argument. Green indicated he was willing to support the direction of the Board.
Weeldreyer concurred with points made by Board members. She stated she is a strong believer in private property rights and believes that that right extends to the property line and impacts that your property has on your surrounding neighbors. Weeldreyer expressed her concern about the water issue and mentioned a prior commitment by the Board prior to her serving as a member, regarding no change in zoning that would allow higher density because of the water issue in that area, until EWEB services can be brought to the area and solving the water problem.
Weeldreyer stated that as the Commissioner for the district, she felt an obligation to take into consideration the private property rights, but also the needs of the community and area that they live in. She said she was in support of allowing this to remain open for ten days to allow a response by the applicant to the information that arrived late.
Cornacchia asked a process question. Vorhes responded that their choices ranged along a spectrum from continuing the hearing to allow for another hearing, which he did not believe the Board was obligated to do, to leaving the record open for the period of time to allow written response, which the Board can consider when the Ordinance comes to the Board for a subsequent reading and final action or deliberation. Cornacchia stated he was thinking about going ten days, with the opportunity for Dumdi to participate if she listens to the tapes and reads all the materials, which would broaden their perspective, and give opportunities for a variety of opinions and discussion in subsequent deliberations.
Weeldreyer inquired if the Board wanted to continue the hearing to allow additional public testimony or to receive a written response from the applicant and deliberations. Green indicated he would like to limit that to a written response.
MOTION: Carry this for final decision until 1:30 p.m. on Wednesday, August 23, and ten days from today is the time for written only, and in response (written only rebuttal response) only to the formal application from the opponents attorney. Rust MOVED, Green SECONDED. VOTE: 4-0.
Weeldreyer set a third reading for August 23 at 1:30 p.m.
Cornacchia requested a work session on marginal lands within the next three months, as the Board had originally made a "one size fits all" for all resource land. He indicated that it had become very apparent to him today that there are different scenarios for agricultural land and forest land. Cornacchia stated he was a strong proponent of marginal lands, but wanted more definition that would help individuals make their decision on property purchase and land use applications. Van Vactor indicated that it was his recommendation that Land Management staff meet with some technical experts regarding this arena.
There being no further business, the meeting was adjourned at 4:33 p.m.
Leslie Barrett, Recording Secretary