approved Approved 10/27/99
October 6, 1999
BOARD OF COMMISSIONERS' REGULAR MEETING
Harris Hall Main Floor - 1:30 p.m.
Commissioner Bobby Green, Sr., presided with Commissioners Bill Dwyer, Anna Morrison, Peter Sorenson and Cindy Weeldreyer present. County Administrator Bill Van Vactor, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.
14. COMMISSIONERS' ANNOUNCEMENTS
15. PUBLIC HEARINGS
a. SECOND READING AND PUBLIC HEARING Ordinance PA 1138 Amending the Rural Comprehensive Plan to Redesignate Land from "Agricultural" to "Rural" and Rezoning that Land from "E-40/Exclusive Farm Use" to "RR-2/Rural Residential"; and Adopting Savings and Severability Clauses (file PA 98-1782; Waymire).
Jerry Kendall, Land Management, passed out handouts that he received in opposition. He also passed out an aerial photo and a referral memo from LCOG. (Copies in file.)
Kendall reported the subject property is 14.18 acres and is located in the Marcola area, west of the Shadow Hills subdivision. He noted that exclusive farm use zoning is found around most of the subject property. He stated that exceptions to resource and goals are governed by OAR 660.004028, and the burden by law is on the applicant to show the utilization of the subject property for resource use (Goal 3 and 4.) He added it is theoretically impracticable and is done through an analysis of surrounding lands and the subject property. He noted in reaching a conclusion, that the subject property could not conduct farm forest uses because the property is physically developed by non Goal 3 uses (farm uses) or that development on adjacent lands rendered the subject property irrevocably committed to non-resource uses.
Kendall noted that the applicant takes the position that the subdivision to the east and dwellings on EFU land (north of the subject property) meet the test in that the surrounding dwellings render the subject property impractical for resource use on three sides. He reported that staff states the position that counting resource dwellings is not supported by subsection 2080 of the OAR or a past Board Order done in 1996 for a previous planning action, (Ordinance PA 1093) or by comments from LUBA on case PA 229-95. He noted that all of the citations state that dwellings on resource land are not to be counted in the standard test. He added staff concluded that at best, only one side is developed with residences and that is the Shadow Hills subdivision to the east. He said all of the property on which the dwellings are located, (on farm zoned lands) are receiving farm or forest tax deferral, so it is more improbable that people who are conducting similar resource uses will object to the identical uses that occurred on the subject property.
Kendall said with regard to the property being developed for non-farm uses, the applicant states the combination of poor drainage and subsequent soil limitation isolates the availability of the eastern portion of the property for raising operations that occur on properties to the south and west. He added the application cites the lack of water available in the summer and no irrigation rights are found on the property. He noted there are documents in the record supporting staffs position that poor drainage could be reasonably dealt with. He noted only 35% of the soils on the subject property have the potential need for tiling and only when they are saturated with water. He said the floodway easement could be as easily used for farm use as for residential use. He added the subject property has irrigation rights for 2.5 acre feet of water annually, and the water right had been in effect since 1985. He said the property has 85% high value soils and it has been receiving farm tax deferrals since 1985. He added what was not addressed by the applicant is subsection 2803 of the Oregon Administrative Rules, that requires documentation as farm uses, identified in ORS 215.203, that constitutes farm use is impracticable on the subject property. He noted that Goal 3 (rural comprehensive plan agricultural goal, policies 3 and 8) was omitted from the submittal. He said that policy 3 is to reserve the use of best agricultural soils exclusively for agricultural purposes and policy 8 provides maximum protection to agricultural activities by minimizing residential activities that conflict with such use. He added whenever possible, planning goals, policies and regulations should be interpreted in favor of agricultural activities and they have not been addressed by the applicant. He reported that staff maintains that the proposal is not supported by facts in the record and facts justify retention of the current zoning.
Dwyer asked if it was possible to obtain the file from the assessors office on their plans on farming.
Kendall responded they were originally archived and they have been disposed of.
Sorenson asked if there was any applicable threshold in determining whether farm uses are impracticable and asked if the LUBA decision is binding on the outcome of this case, because the facts are similar.
Stephen Vorhes, Assistant County Counsel, responded that in a legal sense, the case is not binding except it articulates an interpretation of the Administrative Rule and the Oregon statutes that are applicable to this case. He said you can look at the facts on this application as they relate to all of the factors in the rule in making a judgment in this case. He noted the Waymire decision has been remanded to the County.
Green noted the agenda notice did not include "and adopt an exception to Statewide Planning Goals 3 and 4" and it needs to be inserted.
Green stated that this decision is subject to the planned amendment and rezoning criteria cited in the agenda cover memo. He added that evidence and testimony must be directed toward the approval criteria and failure to raise an issue to enable a response may preclude an appeal to LUBA, and this is the opportunity for those to enter information into the record and only persons who qualify as a party may appeal the Board decision to LUBA. He asked for disclosure by Board members for any ex parte contacts.
All commissioners declared they had no ex parte contacts.
Commissioner Green opened up the Public Hearing.
Larry Reed, Jim Griffith & Associates, reported the subject site is Lot 7, Block 1, of the first edition of a subdivision called Mountain Shadows subdivision. He noted it is zoned exclusive farm use E 40, meaning the 14 acre parcel is a legal non-conforming lot that doesnt meet the lot size standard for a conforming EFU lot. He noted the existing property is developed with a single family dwelling, and a connected two car garage. He added it has a sanitary sewer disposal by an onsite sewage drain field. He noted the balance of the property in the rear is open fields that is fenced, and further to the west is flat grass-covered ground with a drainage ditch. He said even though the land is classified as Type 2, it is not the best soil in Lane County. He added the bulk of land at the site is too wet in the fall, winter and early spring to do anything with, and too dry in the late summer and early fall without irrigation to grow anything significant. He said there was no historic use of the land in the area. He said they believe the site meets the criteria for an agricultural goal exception, but is better used for five or six rural residential houses, than as agricultural farmlands. He noted there are two parts of the application before the Board, one is the statewide planning goal exception to the Rural Comprehensive Plan Amendment and the second is the rezoning application. He said the County staff report dated January 12, 1999, indicated that the RCP exception and zoning map amendment had only two things that needed clarification. He said with the agricultural goal exception criteria, further analysis needed to be provided regarding the possible combination of the subject site with the farm land that has the intervening lot with different ownership to the south. He noted the second issue was the rezoning criteria, and since then they have withdrawn the request for R1 and are only requesting R2.
Reed commented that the planning commission discussion did not cover how or why the site did or did not meet the established state and county criteria. He said they made their decision on personal beliefs, ignoring the written criteria. He added there was discussion about potable water being a problem without explaining why his clients two water studies were incorrect. He said there was also a discussion about the sewage drain fields being a problem without stating why. He stated it led to the planning commissions statement that the site therefore was unbuildable for roads and houses. He noted it was an assumption that did not exist and was not true. He added there were personal statements made by planning commissioners that indicated they didnt believe that any additional rural residential should be allowed anywhere in the County, or if allowed, it should only be approved if it was 5 acres or more in size. He said the planning commission discussion was more in the nature of making Lane County policy changes than discussion of the current approval criteria. He said after the planning commission public hearing, Mr. Waymire notified the County planning staff and requested that the rural residential lot size of one acre be withdrawn. He noted the crux of the case is the impracticability of using the 14 acres, dealing with agricultural soils, (water rights and drainage) the farm deferral and the surrounding land use as it pertains to the Oregon Administrative Rule and County policy.
Reed noted the staff report talked about water rights and it was new information to the Waymires that they had any water rights at all. He said the Waymires purchased the site in 1994 and their title documents made no mention of having water rights. He said in checking with the watermaster, it was confirmed as indicated in the staff report that a water appropriation is still on the books. He noted the surface water withdrawal point is east of the highway on the golf course property, 1200 feet from Waymires site. He added no easements exist to pipe agricultural irrigation water from the river to the subject site and the 70 acres on the water rights map (that was filed with the 1952 water appropriation) is the same site as Mountain Shadow subdivision. He said the Waymires (unaware of the 1952 water rights) have never used the water and it does not appear that anyone else had used the water appropriation. He noted that Oregon Water Rights Law provides if water right or appropriation is not used within five years, it is lost. He said it was the watermasters opinion and the water rights examiner that the water rights no longer exists. They stated Waymire could try to use it and if no one objected, they wouldnt disconnect his water, but in doing so, he would have to negotiate an easement with the golf course, a crossing permit from the state and a permit from the County to bring it to the right of way to his property at considerable cost.
Reed reported that with regard to drainage, staff stated on page 5, that because the site is not flooded by the Mohawk River, there is no problem with the high water table, and that statement is not true. He said the Lane County agricultural soils books indicate that agricultural capability classes are defined (he quoted from the book.) He noted Waymire had a soil scientist and engineer look at the soils, independent of each other. He said there were holes dug three to five feet deep, for soil profiles that were taken in early Spring. He stated that both indicated that the shallow drainage ditches had helped drain the surface water from the area, but the ditch needed to be deepened to a minimum of four to five feet for the drain tile to work effectively.
Reed commented the other issue raised by staff was farm deferral. He noted it had never come up before in discussions with County staff until this case. He said it appears to be irrelevant to the criteria and the case cited by staff is out of context and not the same factual situation as what is present. He added the farm deferral is not specifically required by statute or Oregon Administrative Rules.
Nancy Waymire, 90394 Shadows Drive, Springfield, stated she moved to Shadows Drive in 1995 and the hay on the property was all ready to be cut. She noted that year they netted $1,262.08 off of cutting the hay, but there were no expenses because the previous owner paid for the seeding. She said in 1996 they netted $792 on the hay. She noted the cost of bailing hay went from $30 per ton to $35 and from $10 per ton to stack the hay to $20 per ton. She said they knew they couldnt make the $1,200 (net) to keep the farm deferment and went to Lane County on October 29, 1996 and spoke with Rita Woodward (Farm Forest Clerk) and Waymire asked for an estimate at that time on what it would cost to take their land out of land deferment because they knew they were not going to make enough money to legitimately keep the farm deferment. She said Woodward said in January 1997, all farm deferments were going to be audited and the ones not legitimately making the $1,200 per year would be taken out of farm deferment. She said Woodward suggested at that time to wait for the audit process. Waymire stated they had waited for 2½ years and have not heard anything else about the audit. She noted in 1998 they made a profit on their hay of $255.98 and did not bale the last five acres because there wasnt enough hay. She added in 1999, they gave the hay away as there is not enough money to pay to have the hay worked with. She said they intend to keep the field mowed to keep the blackberries down. She said in 1997, they investigated turning their acreage into ginseng and joined the Pacific Rim Ginseng Growers Association. She said they purchased what was needed to grow it and when they plowed the land, they found the land was dry and they paid to have the channel deepened. She said her property turned out to be too wet for ginseng. She said they investigated the idea of growing Kiwi but there is no Kiwi processing plant in Oregon. She said they have tried every avenue to try to grow something and that is why she is asking for the 12 acres to be rezoned, so they can put five to six houses on their property.
Dwyer asked if they bought the property as a farm.
Waymire replied she knew they had farm deferment on it when they bought it.
Dwyer asked if she bought it for the intent of solely making a living off of it.
Waymire responded no, but they thought they could keep the farm deferment because the previous people had hay on it.
Reed noted the site is only 12 acres, but even on pasture land that is used to grow hay, there are portions on this site that could not be grown. He noted it appears that staff is using the argument concerning the surrounding lots being E 40. He said nothing in Oregon Administrative Rules states that the land surrounding an exception parcel must be zoned residential before it can be looked at in terms of the criteria under the statute. He said the existing adjacent users may have farm deferrals, but he doesnt believe the adjoining properties are in farming. He added most of the surrounding properties are in forest deferral. He noted the parcels are small, under 14 acres and under different ownerships and they believed they addressed the parcel size and ownership pattern of the area, required by the criteria. He added County policy states that parcels with dwellings on two adjoining sides are impracticable from a farm management of 15 acres or less and impracticable for forest management at 20 acres or less. He said they believe they meet that criteria as there is nothing that he can find in the County policy that says if the surrounding parcels have to be rural residential to make the point that they are small lot under different ownership and all have homes on them. He said he believes the whole criteria needs to be looked at in its context as describing the surrounding land use patterns. He noted the EFU parcels are not in agricultural production, there is a single access through residential subdivision to get to the land, the subject site is in the midst of a non-conforming EFU lot and residential subdivision and it is not well connected to any large farm or agricultural operations in the area. He stated they believe they meet the criteria because it is impracticable to farm and the land would be better used for five or six houses. He added they believe this specific site (given its access and other limitations) is better used for this purpose than keeping it an agricultural production.
Weeldreyer asked if the Board approved the application, if the adjacent properties would also make another case. She wondered if the Board would be urbanizing the section across from the Springfield Golf Course.
Reed responded in some terms the answer was yes, but he said in terms of the criteria, the only other parcel that would meet this is the lot to the north.
Weeldreyer asked Kendall if the staff recommendation still remains the same regard opposing the water rights issue.
Kendall stated he wanted additional time to evaluate the whole picture. He said the owner represented there were no water rights and he discovered the opposite.
Tom C. Veltman, 90376 Shadows Drive, stated he has a statement of concern signed by over 50 residents of the Shadows Drive, and other interested parties who are expressing opposition to the proposed zoning change and request the Board of County Commissioners deny the request as presented in the file PA 98-1782, for the following reasons. He said there is a concern for water quality and quantity, based on the well test included in the file and the fact that there has been seven other well replacements over the last few years. He said they think it is a limited resource in the aquifer and further development will adversely affect all area residents. He added the flood zone development (based on the flooding of 1996) will expand damage to the surrounding neighborhood. He said he has had contact with the State Bureau of Lands and this ditch and excavation required a permit and there was no evidence of any permit that was issued. He noted the subject property is bounded by two other 15 acre parcels north and south, and to the west there is an additional 25 acres that would start a domino effect. He said it is a concern in that it is creating a non-rural environment with additional demands on water, sewage and traffic. He noted on January 19, a hearing was held and reconsideration was also held on February 2, with the Lane County Planning Commission recommending denial of this zoning change. He added the residents and other interested parties (who have signed the associated memo) also request that the Board deny this request.
Jack Scott, 90373 Shadows Drive, Springfield, stated he has lived in the area for 30 years and they had flooding and he has had to move out twice. He added there is definitely a water problem, and he is on his second well.
Morrison asked Scott what his position was when the subdivision went in.
Scott responded he was showing the property and there were only six or eight houses there at that time and he was interested in five acres.
Reed commented with regard to Mr. Veltman, the issue of water quality and quantity was raised. Reed noted that Veltman stated there were two aquifer studies as part of the initial application, one done by Pacific Hydrogeology and another one by pulling all of the water logs in the area and seeing what the average depth and water rate of output is according to the water reports. Reed said it is his understanding that the Mohawk Valley has a number of aquifers separated by layers of clay. He added it is true that people who have drilled wells (that only tapped into the upper aquifer) have had to deepen their wells, and once they have had to punch through the first aquifer into the deeper ones, those wells hadnt had any problems. He said with regard to flooding, the property is outside of the flood zone and Waymires property did not flood in the 1996 floods.
Jack Waymire, 90394 Shadows Drive, reported with regard to the flood of 1996, the water came up to his driveway and it stopped. He added the back of his property sits 2½ feet above the general flood area. He noted the bottom of the ditch is the floodplain. He said there was a foot of water on Shadows Drive, but his property did not flood.
Reed said with regard to the depth of the ditches, he was not talking about the one that runs along the south property line, he was talking about the ditch that runs north and south. He added the ditch along the south part of the property does provide drainage for the subdivision and the road. He said with regard to the domino effect of the surrounding properties, the other properties need to meet the criteria, and there is only one other parcel to the north that would qualify for the exception. He noted with the septic drain fields, they had a soil scientist from EGR do a report in the Spring, and looked at the drain field situation and determined that most of the site could have drain fields. He said they believe the site could accommodate a septic drain field. He said with regard to Mr. Scotts discussion of flooding and the ditch to the south, the water reports were addressed as part of the aquifer study that was done. He said the rebuttal comments were more anecdotal and they meet the requirement and he thinks the property should be rezoned.
Weeldreyer requested newer data available regarding the flood maps after the 1996 flood.
Kendall responded the map they have in the record is the latest edition.
There being no one else signed up to speak, Commissioner Green closed the Public Hearing.
Weeldreyer asked after all the information that came in today, to address the issues from a staffs perspective.
Kendall responded the petitions he had not seen, he said the consultant had submitted an engineering water study and the staff did not take issue with that. He added if the others wanted to hire a counter-expert regarding the water study, they could. He commented that he doesnt agree that the domino effect will occur as he looks at the criteria for the Oregon Administrative Rules.
Weeldreyer asked if there was anything in their documents that addresses additional development in a flood prone area causing further damage to existing properties because of backed up water.
Vorhes responded if she is asking whether or not they have enough to conclude that the statements are factual or a basis of acting with conditions, in response to that concern, it is a more difficult question.
Weeldreyer asked if it went through and four or five houses were put on the parcel, would there be steps that could be taken as part of the planning of the dwellings that would limit the amount of flood damage to existing properties.
Kendall responded that there would have to be special use permits in the flood plain for each dwelling.
Green asked about Goal 3 and how impracticable was being defined.
Kendall responded that it means not demonstratably impracticable, but theoretically impracticable to do farming on the subject property.
Dwyer asked if the Waymires bought the property with the expectation that they couldnt farm it and they were going to develop the land. He noted people want farm deferrals because they dont want to pay taxes.
Sorenson stated he didnt believe that the applicant had met his burden of proof in the case. He said there was credible testimony from neighbors giving testimony about the flooding, proximity of their wells and the possibility that they would be damaged by increased density in the area. He said he believes the issue of agricultural use, is against the interest of the applicant. He said their interest doesnt meet the standard and thinks the Board should uphold the planning commissions decision.
Morrison said she didnt agree with the planning commissions decision. She added in January the planning commission didnt come to a decision, they wanted it referred to the Board. She noted with the water quality/quantity issue, there were demands on the applicant to supply the information and they had done that. She added the flood damage issue raised by the homeowners was outside of the flood plain. She said with regard to the farm crop issue, she sympathized with the Waymires as she tried to utilize small parcels of land and sometimes it is not practical to grow crops.
Weeldreyer stated she thought the applicant had made a strong case for the challenges that this parcel has for being able to keep it in agricultural production. She said the concerns about water quantity and quality are not warranted as there is not enough information to counter the information that was provided by the water reports that are in the record. She stated she has concerns that this would be a domino effect for this part of the valley. She said she will vote to approve this application because the body of evidence with the criteria that needs to be used falls in favor of the applicant.
Dwyer stated he will not vote to support this as the applicants did not make their case.
Green agreed with comment about the domino effect. He said he was troubled about the impracticality because it wasnt profitable. He noted the laws and rules allow them to make an application for change and the Board has to judge it based on the criteria. He added given the testimony, he will support the applicants request.
Sorenson said one of the factors that leads him to voting against this is the issue of profitability, impracticability, and economic profitability and that nothing justifies the applicants statement that this is in fact meeting that test.
Dwyer noted that there is testimony in the record that the land could be for farm profitability.
Vorhes requested the Board to consider the staff recommendation and the agenda cover as there were certain areas where the findings that were attached to the ordinance are deficient and to consider whether they want to give the applicant the opportunity to bolster those findings and address the areas that have been identified as not having been addressed in the findings document that is attached to the ordinance. He said with OAR 66004028, the agricultural lands policies in the rural comprehensive plan and the Goal 5 wetlands, are the ones that are highlighted in the staff memo. He recommended before the Board took final action, to take tentative action to approve this and direct the applicant to make the necessary changes to the findings and bring it back to the Board for final action.
MOTION: to move tentative approval of the application with the request that the applicant add additional information to the findings and have it come back to the Board for final action at a later time.
Weeldreyer MOVED, Morrison SECONDED.
VOTE: 3-2 (Dwyer, Sorenson dissenting).
b. THIRD READING AND SETTING FOURTH READING AND DELIBERATION Ordinance PA 1133 Amending the West Eugene Wetlands Plan by Adopting New and Revised Plan Policies Related to the Criteria for Wetland Designations, and Adopting a Severability Clause (Fourth Reading and Deliberation, Wednesday, November 3, 1999).
Sorenson reported the City of Eugene and Lane County have tentatively set up a committee. He said they have held one additional meeting since the public hearing and they did not conclude their work. He noted there are 37 areas in the West Eugene Wetlands that must be designated for restoration, development or protection according to a recent Army Corps of Engineers directive. He added that they are extending the time to December 31, 2000, for local jurisdictions to agree upon those designations.
MOTION: to approve THIRD READING AND SETTING FOURTH READING AND DELIBERATION/Ordinance PA 1133.
Sorenson MOVED, Morrison SECONDED.
Green noted the Fourth Reading will be held on November 3, 1999.
16. EMERGENCY BUSINESS
ORDER 99-10-6-16 Temporary Closing Richardson Upriver Road from Milepost 2.0 to Milepost 3.3.
Ollie Snowden, Public Works, stated this closure was as a result of the Austa fire. He noted that Richardson, Upriver Road parallels the Siuslaw River on the north side and Highway 126 parallels on the south side. He said there is a section about 1.3 miles long next to Richardson Upriver that burned all of the vegetation on that section of the road. He stated the Department of Forestry is urging them strongly to consider closing this section of the road during the winter. He noted there are likely to be slides or severe erosion over the next number of months that could pose a threat to Richardson Upriver Road. He asked the Board to close the road from Milepost 2.0 to Milepost 3.3 (150 feet west of the Austa Covered Bridge.) He noted that Lane Code actually gives the director of the department the authority to close it on a temporary basis.
Dwyer asked how many people would be impacted by the closure. He said if the road was going to be closed for any length of time, there should be a public hearing as a lot of people use the road.
Snowden responded there were no residences on that stretch of road. He said they are closing the road at a boat ramp and it is a low volume road. He said he expected Roseburg Lumber will want to do salvage operations and they will issue a facility permit to allow them to do the salvage operations. He said they are recommending that the road be closed to the general public.
Morrison stated she did not have a problem with the temporary closing. She said for a safety issue this is the way to go.
Weeldreyer concurred with Morrison.
Sorenson asked when the order expired.
Snowden stated it expires when a director of the department determines that the slide danger has been reduced and it would be opened again. He added they would do that in consultation with the Department of Forestry.
Dwyer said if Roseburg Lumber could use the road then the public should be able to use the road. He said he had problems giving the department a free run deciding when it should be closed.
Weeldreyer stated she was voting in support of the order because she has the faith and confidence with the County engineers.
Sorenson asked why the Public Works director doesnt use his authority to close the road if it is an emergency, and close it.
Snowden stated it could be done , but his concern is they would put temporary barricades up. He said anyone that wanted to use the road would pull the barricade off to the side and it becomes a maintenance operation for them to continually check the barricades. He said they want to put a gate in.
Green asked the commissioners who were opposing this order if they were willing to accept the liability for any danger or accident that happens on the road.
Dwyer said they are treading on the public if the Board doesnt allow a public hearing in terms of gating a public road.
Sorenson noted that what bothers him is the fact that authority from the director of Public Works had not been exercised to close the road. He said he wouldnt mind doing it under the normal course of business, but not as an emergency basis.
Van Vactor noted the director for Public Works had closed the roads whenever there had been an emergency circumstance and they had always reported to the Board of County Commissioners and the Board generally ratifies the closure and extends it. He said the concern is that it was raised late in the agenda. He suggested to have the Public Works director temporary close the road now.
Snowden reported the road is now closed.
MOTION: to approve Order 99-10-6-16 until it is no longer a hazard.
Morrison MOVED, Weeldreyer SECONDED.
VOTE: 3-2. (Dwyer, Sorenson dissenting)
There being no further business, Commissioner Green recessed the meeting into Executive Session at 3:45 p.m.
Melissa Zimmer, Recording Secretary
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