January 9, 2002

1:30 p.m.

Commissioners’ Conference Room

APPROVED 3/13/02




a.  SECOND READING AND PUBLIC HEARING/Ordinance PA 1167/Amending the Rural Comprehensive Plan to Redesignate Land from "Rural" to "Commercial", Rezone That Land from "RR-5/Rural Residential" to "CR/Rural Commercial"; and Adopting Savings and Severability Clauses (File PA 00-6460; Fruichantie).


Dwyer explained the nature and the purpose of the hearing is that the decision is subject to plan amendment and rezoning criteria cited in the agenda cover memo and attachments and evidence and testimony must be directed toward the approval criteria.  He added that failure to raise an issue to enable a response might preclude an appeal to LUBA.  He noted this was an opportunity to enter information into the record and only persons who qualify as a party may appeal a decision to LUBA.


Dwyer asked for any ex-parte contacts.


There were no ex-parte contacts from the Board.


Jerry Kendall, Land Management, stated he gave the Board an original cover memo dated November 26, with revised findings dated December 21.  He noted the subject property is located adjacent to the southwest of Hobby Field near Creswell.  With regard to his original cover memo, Kendall said there was staff concern for plan amendments, as there needs to be support and not conflict with rural comprehensive plan policies and state law.  He noted originally, there was a concern over Rural Comprehensive Plan, Goal 2, Policy 11b that states: “The commercial designation shall be applied to existing uses and/or tracts presently zoned for commercial activities.”  He said the revised findings concur with Land Management’s perspective on the policy that it is time specific, pertaining to the 1984 acknowledgment period and therefore there is no conflict with the goal and it had been resolved in staff’s perspective.  He added with regard to the Oregon Administrative Rule that develops committed areas, the applicant originally sought to address Option 2 a.  He noted that the zone designation should limit uses to those that are the existing land uses on the exception site. He noted that Option 2 b. was addressed.  He said their Goal 14 concerns had vanished.  He said staff supports the proposal.


Commissioner Dwyer opened up the Public Hearing.


With regard to the property, Eban Fodor, Fruichantie’s representative, stated the owner had held regular auctions for several years and the County asked him to stop because they thought it was a commercial use.  He noted auctions are allowed uses for residences.  He stated Lane County asked the owner to seek appropriate zoning.  Fodor said the appropriate zoning would be rural commercial that would allow Fruichantie to continue the auction operations.  He added besides holding an auction, the owner wanted to have landscaping supplies.  He said this was a nuisance property and Fruichantie took pride in cleaning it up.  Fodor noted it was not a good residential property, but it should be zoned commercial.  He added the rezoning was compatible with the surroundings and no resource lands were directly adjacent.  He said there was no impact to the parcel to the south.  With regard to traffic impacts, Fodor said the County asked them to do a worst-case scenario for the property.  It was found to have no significant impact on the transportation structure.  He noted the Planning Commission supported their application and that staff recommended passing this.


Commissioner Dwyer opened up the Public Hearing.


Jerry Fruichantie stated he owns Florence Landscaping Excavation.  He said he built a nursery in Florence.  He wanted to locate his nursery on the property.


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


MOTION: to adopt Ordinance PA 1167.


Weeldreyer MOVED, Morrison SECONDED.






Morrison stated the Board received a letter from Eugene Sand and Gravel regarding a request to reconsider their application.  She asked that this be put on the agenda for reconsideration within the next two weeks to discuss the situation.


MOTION: to put on the agenda to reconsider the action by which the Board failed to find there was a significant resource.


Morrison MOVED, Weeldreyer SECONDED.


Sorenson stated it was injurious to the record of the land use case to have a discussion without providing public notice.  He stated the Board previously voted to have a continued discussion of this matter.  He said it was out of order to bring this up in this context.


Dwyer said the motion to reconsider is a debatable motion and it has to be made by someone who was on the prevailing side.  He said if the original motion was debatable, then the motion to reconsider acts like nothing had ever happened.  He said the whole question is now back on the table.  He said in fairness to everyone, if they are going to reconsider something, they need to have enough time in a meeting to do it.  He was not in favor of the motion to reconsider.


Vorhes stated the motion to consider was not made,  it was a motion to put on the agenda

so that the issue could be taken up.  He recommended notifying everyone that the letter had come in and the Board would consider it at another meeting so people could respond to the letter and on the issue of reconsideration, before the Board takes action.  He said setting the date to reconsider could be taken up in a couple of weeks, and that would provide enough time to send out notice to everyone of the letter and the request.


Sorenson said today they have a motion in a contested land use case without public notice.  He raised a point of order that this was not appropriate.  He said it endangers the record of the case.


Green asked if having something put on the agenda required a motion.


Vorhes explained that the direction the last time the Board took this up was to come back with an order and findings to reflect the tentative action of the Board, and at the time that was set was to come back in the first week of February.  He said with regard to notice, there is no legal requirement except for the notice of public meeting that will occur.   He noted the letter that came to the Board raises an issue for staff for direction from the Board on what to do with the request.  He said it wasn’t a legal notice issue that would preclude the Board from setting this matter on an agenda in the future and then providing notice to everyone to address the Board on the issue of reconsideration.


Dwyer stated at the appropriate time there would be a motion made (when staff brings this back to report) to reconsider the action which directed them to prepare findings of denial. He said the action to reconsider under the rules, is like nothing ever happened.  He said they would be taking back the significance question and going through the rest of the issues.  He said they need to be prepared to go through the materials and start to hear the arguments on the rest of the issues.


Sorenson there are rules and notice has to be given.  He said they had given notice to the public today that they are going to have commissioner’s announcements, but they have to observe the requirements of the land use laws.


Dwyer said all of the issues would be out in the open and from a point of practicality, Morrison was announcing that she intends to move a motion of reconsideration at the time that staff is directed to give a report.  He was not in favor of it.


Sorenson said they were deliberating.  He believed that staff should not respond to letters that are outside the scope of the record until such time until the Board legally deliberates, that would include a notice to the public that they were having the deliberation and then if the Board wanted to open the record and have motions to reconsider or any other act, it could be done.  He thought this discussion was about deliberations in a contested land use case.


Weeldreyer said if they are going to reconsider the matter, to make the best and highest use to get in time and money resources. 


Vorhes said this discussion was about when the Board would put this on the agenda.  He said it wasn’t put on the agenda for February 6 until the agenda is set, a week before February 6. He noted it was a projected date that the notice would occur.  He said his concern was since there was a chance of a reconsideration, they have a letter that had come to them and what should be provided in the way of an opportunity for people to respond to the letter before the Board decides the issue of reconsideration.  He said if there needs to be notice given to all of the parties and an opportunity to respond to the letter request to the Board, they need to know that so notice could go out.


Sorenson asked if the hearing record was open as a result of the Board’s action.


Vorhes asked the Board if it should be re-opened so there is the opportunity for people to respond.

Dwyer said they had to open the record to be fair.

Sorenson said the agenda team should schedule this item on the Board agenda as soon as possible.  He said that would give public notice.  He requested putting this on the agenda for next Tuesday.

Dwyer stated he wanted to add a topic to the agenda called “Correspondence to the Board” as that would be the appropriate place to deal with the correspondence.  He stated that all commissioners would receive a copy of the letters in the packet.


Vorhes suggested having the discussion on Eugene Sand and Gravel for next week.


Dwyer explained they would put the matter on the agenda for next week with a request for reconsideration and a discussion of the letter.


Morrison announced she met with Governor Kitzhaber about his budget cuts.


Dwyer announced they had their Animal Control meeting and it was well attended.  He said the next meeting would be on January 23.  He said he would prepare a report.  He stated the State of the City would be today at 4:00 p.m.

Due to her illness, Weeldreyer stated she didn’t receive a formal letter for the chair to send to the McKenzie Watershed Council asking for their help in coordinating the flooding issue in Thurston.  She wanted to take it Thursday night to their meeting.


Van Vactor stated he would take care of it.


There being no further business, Commissioner Dwyer adjourned the meeting at 3:40 p.m.



Melissa Zimmer

Recording Secretary