August 21, 2002

1:30 p.m.

Commissioners’ Conference Room

APPROVED 9/17/02


Commissioner Bill Dwyer presided with Commissioners Anna Morrison and Peter Sorenson present.  Bobby Green, Sr. was excused. Cindy Weeldreyer was present via telephone. County Administrator Bill Van Vactor, Assistant County Counsel Marc Kardell and Recording Secretary Melissa Zimmer were also present.




a.  PUBLIC HEARING AND ORDER 02-8-21-6/In the Matter of Authorizing the Acquisition of a Conservation Easement from Keith A. Crocker and Nancy G. Crocker Over Tax Lots 19-03-01-00-00100 and 19-03-01-00-213, and Amending Order No. 02-7-2-17.


Frank Simas, Public Works, reported the Crocker property is a 268-acre parcel lying south of the Short Mountain Landfill.  He noted the County has a need for the property for wetlands mitigation projects connected with Short Mountain Landfill as well as County road projects.


Simas explained Lane County currently has an option to purchase the property and on July 2, 2002 the Board authorized the County Administrator to exercise the option to purchase the property.  He said they plan to complete the purchase in two steps: the acquisition of the conservation easement, and acquiring the fee title to the remaining interest in the property.  He stated the conservation easement would give the County the necessary rights to construct the wetlands mitigation for Short Mountain and for road projects and will meet the criteria for eligible expenditure under the Title III of Secure Rural Schools and Community Self-Determination Act. 


Simas noted the acquisition of the easement requires that a public hearing be held.  He requested that the Order be approved authorizing the acquisition of the easement and directing staff to proceed with processing the purchase.


Commissioner Dwyer opened up the Public Hearing.  There being no one signed up to speak, he closed the Public Hearing.


MOTION: to approve ORDER 02-8-21-6.


Morrison MOVED, Sorenson SECONDED.


VOTE: 4-0.


b.  PUBLIC HEARING AND ORDER 02-8-21-7/In the Matter of the Acquisition of a Conservation Easement (Briggs).


Bill Sage, Land Management, recalled that six months ago the Board asked Assessment and Taxation and Land Management to examine a process for conservation easements and their tax credits for property owners.  He noted in this case, Richard Briggs currently has an easement with the Bureau of Land Management from 1999 to administer the easement in conjunction with the West Eugene Wetlands Management Plan.  He stated Briggs came with a second easement that is identical to the first, asking for the opportunity of tax credits from a conservation easement on his property. 


Sage explained the property is located north of Royal Avenue and the Amazon Diversion Canal and west of Greenhill.  He added it is 22 acres in size.  He noted there was another policy issue, the process to be used in the future.  He said they want to go through Lane Manual and Assessment and Taxation to process them in the future.


Sage noted Option 1 is to adopt the current conservation easement and Option 3 is to direct staff to bring an ordinance in the future that would have amendments to Lane Manual that would implement a process.


Commissioner Dwyer opened up the Public Hearing.


Dick Briggs, 30 W. 23rd Avenue, was concerned about the lower Amazon and where it floods.  He said he is restoring 22 acres of wetland.  He noted he did agricultural work on the land and worked with the BLM.  He said the BLM would manage the land.  He noted when he came to Assessment and Taxation they had no recognition that any conservation easement would reduce the value.  He said the purpose of the easement is to keep the area in open and undeveloped condition consistent with the natural resource corridor of the West Eugene Wetlands Plan.  He added it is to prevent the uses that would significantly impair the conservation value of the property.  He said A&T had sought clarification on whether this restriction would eliminate the farm deferral and give him a ten-year penalty.  He said there needs to be a minor change in the easement.  He recommended going to the second page and adding the words: “That it is not consistent with paragraph one.”  He said that is what he and the BLM worked out. 


Dwyer asked what they could do for a policy to allow him to recognize what he is doing by taking it out of farm deferral and still not be liable for taxes.  He said the conservation easement would enable him to do that.  He wanted to encourage people to have conservation easements and not penalize them. He said it was in the County’s best interest to grant those easements.


Briggs stated he wouldn’t be doing any extensive agriculture on the land except for wetlands restoration. He wanted to leave the land in deferral.


Morrison asked if the Attorney General’s office came back with an opinion contrary to leaving it in farm deferral, how it would impact today’s decision.


Gangle said they would collect back taxes on the property if the Attorney General comes back to say they would disqualify it from farm deferral because it was a change in use.  He said that Briggs could still get the benefit of the conservation easement.


Morrison suggested holding this until they receive a decision from the Attorney General.


Briggs said an appraisal for the easement is between $3,000 and $5,000.  He noted to write the easement is more than the appraisal and the land has to be maintained.  He said it is a win for the public.


Dwyer requested a copy of how the question was phrased on this matter from the Attorney General.


Briggs said the conservation easement is the primary tool the state had adopted for both state and counties and other entities to help provide open space.    


There being no one else signed up to speak, Commissioner Dwyer closed the public hearing.


Kardell explained they had been looking at adopting the BLM easement as Lane County’s which prohibits agricultural use.  He said it would probably be two months before they get a report back from the Attorney General’s office.  He learned that the issue was unresolved with back taxes on the property.  His suggestion was rolling this for three months to get an opinion and to adjust the language to handle the agricultural use.  He added Lane County could have a different easement than the BLM.


Dwyer stated the broader public policy about preserving the land far outweighs the value.  He suggested working on the right language so they have everything that could be reviewed by legal counsel.


Sorenson said due to the protection of the wetlands and the safety aspects with flooding, whatever Lane County could do to encourage this type of conservation easement was important.  He suggested that the Land Management task force work on issues relating to land use planning. He indicated he was comfortable with the delay, and suggested getting a progress report from legal counsel on the opinion.


Jeff Towery, Land Management, asked if Land Management Division should be involved with future conservation easements.   He added if that were the case, he would continue to work with A&T and County Counsel to draft appropriate Lane Manual language.


Dwyer said it should be part of the discussion of the Land Management task force.


Sorenson asked what the downside would be of putting this matter with A&T.  He thought if it was a tax matter, it should be handled by A& .


Gangle responded they have statutory obligations with this matter but don’t hold public hearings.


Towery noted this was a pilot project for Land Management’s involvement.  He said there were implementation issues with this.  He added there was no budget for the long-range planning issues.


Gangle added he also did not have the budget for this.


Towery said that Land Management would stay involved if that is what the Board wanted.


Dwyer stated the Board did want Land Management involved.


Weeldreyer thought it was important for both A&T and Land Management to be involved in these issues in the future.


Sorenson thought what Briggs was doing was a good thing.  He said it was important that both A&T and Land Management were involved in taking this as a pilot across the county.


Gangle asked about page 5 under alternatives and options, whether the direction to staff is to continue participation in wildlife habitat conservation management programs.  He noted the last session with the legislature, HB 3564 was passed and it created a conservation plan that ODFW would administer.  He said if Lane County doesn’t want to participate in that, the opt-out date is January 1, 2003.  He said Fish and Wildlife are in the process of rule-making on this and there are seven outstanding issues they had not decided on. He wanted to make the Board aware of this.


c.  CONTINUED PUBLIC HEARING & FINAL ORDER 02-8-14-7/In the Matter of Withdrawal of County Road Status (But Not the Public Road Status) From a Portion of Duncan Island Road (County Road Number 1357), Which Lies Between the Siuslaw River and the Duncan Slough, Approximately One Mile Southwest of its Connection With Bernhardt Creek Road, and Being Located in Section 15, Township 18 South, Range 11 West of the Willamette Meridian  (18-11-15). (NBA & PM 5/8/02, 6/26/02, & 8/14/02)


Bob Ezell, Land Management, reported that this came through to the Board by statute where it states the County road official might bring this issue before the Board, the withdrawal of a county road to a public road.  He said it requires that the public road official, Ollie Snowden, make a report and the effect on the landowners.  He said the effect on the landowners would be the transfer of maintenance from the County to the adjoining landowners.  He noted other criteria in Lane Manual, on page 3 of the agenda cover memo, the provisions of Lane Manual 15.410(7) limit the categories of roads to be considered for withdrawal and provide specific guidelines for Board consideration.  He noted the words  “may” and “shall” were an issue.  He said Exhibit C provides the categories.  He added the issue that applies is the dead-end road that serves four or fewer permanent residences.  He said in Section 7(e) the item that should be considered by the Board in reviewing the actions on a case-by-case basis is the need for public maintenance of the right-of-way.


Dwyer asked if Lane County withdraws the county road but not the public road status, if there was a need for an easement.


Ezell responded a public road would be in place and the maintenance by the County road department would cease.


Sorenson asked what the advantages and disadvantages were to county government to convert the current 800 feet of county road to public road.


Ezell said the only benefit had to do with maintenance and that was the issue raised by the Public Works director.  He added the Public Works Department requested this be brought up and presented to the Board.  He noted the Phelps had not objected to this but the Donaldsons did object. He said they wanted to maintain status quo so they could examine the development potential of their property. 


Commissioner Dwyer opened up the Public Hearing.


Lorin Phelps, 07891 Duncan Island Road, Mapleton, noted a county official suggested to his wife that the road as it is now designated parallels the river to the Donaldson property.  He said the significance is that he has the area divided into seven pastures and rotates them on a weekly basis between May 1 and October 1. He added that it is consistent with the agreement with NRCS and the easement.  He said if the Board approves this that it would inhibit pasture rotation and they would have to move fences.  He said if they have to remove all his gates he couldn’t continue his cattle operation.


Dwyer asked if something could be worked out between the Phelps and the Donaldsons.


Phelps responded they hadn’t discussed anything yet.  He said if the road access runs along the bank, it would require maintenance by someone.  He said at about the four mile marker there is intense erosion of the bank and any traffic going through would have to go through his property.  He thought county road access would be best but he wanted what staff originally recommended.  He said if this were approved there would be increased traffic and it would impact his moving fences and tree planting along the river.  Phelps wanted the abandonment of the road entirely.  He would be in agreement for an easement for the property that adjoins them. He said they wouldn’t have the public going through his property.


Nancy Phelps, 07891 Duncan Island, Mapleton, stated when the County came to them to vacate the road they were in approval.  She noted they had never thought of vacating the road until the County asked them to vacate it.  She believed in the right of property owners to get to their property.


Sandy Donaldson, 12820 Iron Rock, Victorville, CA, stated she owned 45 acres on the tip of Duncan Island.  She noted decisions about her property had been absent any notification and any ability to respond until after the fact.  She said there is an impression because she resides out of state that she is not interested in her property.  She added nothing was further from the truth.  She said prior to 1994, her former husband, her father and she worked on the property.  She had a cordial working relationship with the former owners.  She said her divorce and her ill father prevented her from visiting the property.  She found she could not access her property freely and it is restricted because the road had allowed going to pasture.  She noted a letter from Nancy and Lorin Phelps stated they believed all 304 acres on Duncan Island were theirs.  She added the road that runs through their property is a public road and they do not own that 60 feet of land.  She said they along with her are required to maintain it.  She requested the Board give as much weight to her property rights as to the Phelps.  She asked the Board to direct the Phelps to remove all gates and to contain their dogs and cattle so she could have unencumbered access to her property.


Jeff Conduit, 3500 U. S. Bank Tower, Portland, Attorney for Sandy Donaldson, said the portion of the County road that is asked to be removed is a short portion.  He said the County currently maintains all of Duncan Island Road to the east and the significant impact of the County of removing it from County road status isn’t there.  He noted that four years ago the issue of taking all of Duncan Island Road out of County road status came up before the Board and they decided to retain it in County road status.  He requested the Board either take the entire roadway out of County road status or leave it all in. He added the stretch of road is not going to save taxpayers dollars.  He said they were not sure what the best status of the road should be for them, whether it is County or public road or going to an easement.  They are in the process of figuring out what they could do with the property at the end of the road.  He said it might be best to sit down with the Phelps about coming to the Board jointly and working out an easement arrangement.  Their desire is for the County to maintain status quo that gives them bargaining room with the Phelps.  He noted the withdrawal of the section of the road from County road status does not change the fact that it is a public easement.  He said all of the concerns the Phelps have regarding access to the property still exists if it is a public or County road.  He said because it is a public road, his client could grate the road to her property.  He said there was a provision in Lane Code 15.410 that says that County road status should not be removed if it has the potential for denying right of access to some people.  He said the Phelps testified it wasn’t really the issue of County road status, it is the issue of the public road status.  He said taking this part of the road out of County road status would not save the taxpayers a substantial amount of money and would impair his client’s rights to develop the property.  He asked that the Board not make a decision yet until they have had an opportunity to see what they can do with the property.  They asked for it to remain status quo.


Kate Dangst, National Resources Conservation Service, stated they hold the wetland easement with the Phelps on their property.  She asked what the options were and how their wetlands would be affected. She said there is exclusive wetland use as a part of the easement and the cattle grazing had been approved as a compatible use.  She noted any changes on the road might affect their easement.


She stated for the past 4 ½ years she has been working in western Lane County and has had rights to go onto the Phelps’ property whenever needed for official business.  She stated she has never had problems with access.


Kardell stated that Public Works staff initially recommended the whole portion of the road be vacated assuming a private easement could be worked out.  He said staff would still have preferred that, but when sending out notice to the adjoining landowners found out that there were objections from the Donaldsons and thought just the County portion should be vacated to resolve the issue.


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


Morrison asked how long they should leave this matter status quo until they could determine the acreage.


Condit responded six months to a year.


Dwyer stated if nothing affirmative takes place that the proceeding stops automatically.


Ezell suggested going with Option 4, postponing this matter to a future date.


Dwyer suggested the Phelps work out with the Donaldsons what their property potential is and what it is the Phelps have with a report back in three months on their progress.


MOTION: to move for Option 4.


Morrison MOVED, Weeldreyer SECONDED.


VOTE: 4-0.








Peace Pole


Dwyer said a peace pole was requested to be put up indefinitely.  He thought David Suchart was the person who was most appropriate to assign this task.  He referred this matter to Suchart to see what was required and delaying this matter until there is a permanent solution.






There being no further business, Commissioner Dwyer adjourned the meeting at 3:15 p.m.



Melissa Zimmer

Recording Secretary