BOARD OF COMMISSIONERS'

REGULAR MEETING

February 18, 2004

1:30 p.m.

Commissioners' Conference Room

APPROVED 3/10/04

 

Commissioner Bobby Green, Sr., presided with Commissioners Bill Dwyer, Don Hampton, Anna Morrison and Peter Sorenson present.County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.

 

#15.PUBLIC HEARINGS

 

a.SECOND READING AND PUBLIC HEARING/Ordinance PA 1195/In the Matter of Amending the Rural Comprehensive Plan to Redesignate Land From "Forest" to "Agricultural" and Rezoning That Land From "F-2/Impacted Forest Lands" to "E-25/Exclusive Farm Use"; and Adopting Savings and Severability Clauses (File PA 03-5269; Laurelwood Academy). (NBA & PM 1/14/04).

 

Jerry Kendall, Land Management, explained that this application is for a plan amendment re-zone.He added it was not a review of any subsequent special use permits that might occur, only review of plan amendment and zone change criteria for a 20-acre parcel located in a separate legal lot within a larger 100 plus acre parcel, across from the Cascade Mill on Jasper Road.

 

Kendall noted the 20-acre lot contains 17 acres in orchard and pasture use with three acres covered by deciduous trees.He said the Planning Commission heard this item on December 2, 2003 and voted unanimously to approve the proposal.He said, historically, when Land Management has brought before the Board changes of one resource zone to another, they look at the historic use of the property, focusing on the area of comp plan acknowledgment in 1984 and what the use of the property was then, and what it is now. He said there is evidence in the record that the subject property has been receiving farm deferral but the taxation records didnít go back that far.He said they have evidence in a letter from Assessment and Taxation that it appears farm deferral was received in the subject property area in 1995 and 1996.He noted the remainder of the 55 acres of the parent parcel (that is not subject to this zone change) is in forest deferral.

 

Kendall explained that at the planning commission level this application was routine.He noted that yesterday and the day before they received two submittals from Landwatch Lane County that stated objections to the proposal.

 

Kendall thought the impetus of the opposition is that forest use of the property could no longer occur.He commented that wasnít true because in the farm zone under permitted uses 3. b) is the raising and harvesting of timber.He noted the rezoning wouldnít necessarily preclude continued forest use of the property.He added there was discussion of a 20 acre standard for when a property no longer meets the definition of commercial forest and in the forest working paper the Board had by ordinance (Ordinance 84-9-12-3) deemed in the comp plan that it was a 50-acre standard.

 

Kendall indicated there was some discussion about soils that have no rating for forest capability and that they should be given some rating.He said Landwatch in this case had taken a forestry document and put in cubic foot acre ratings for soils that had no rating.He said when he calculated for cubic feet per acre, he gets 44.37 cubic feet per acre, a per-year average below the 50 cubic feet standard cited in the ordinance.

 

Kendall said there was discussion about the proposed use of the property that the applicant stated at the planning commission level would be for a private school.He stated that legally they were not reviewing any special use permit at this point.He noted in the current F-2 zone, one could have a television station, as there are intensive uses that are allowed in the resource, but for staff there is no legal nexus between concern on what is going to happen subsequent to the plan amendment rezone regarding special use permits.He noted the opposition also cited that the best agricultural lands should be reserved exclusively for agricultural purposes.He said agricultural purposes could still occur when the zone change happens and that 28% of the property is the best soils.He added a vast majority of the subject property is not prime soils.

 

Dwyer asked if there was a problem with improper lot line adjustments.

 

Kendall responded there was an argument that had been brought up previously on whether the lot line adjustments that occurred on the 100 plus acre parent parcel were made.He added one of the adjustments made was the subject 20-acre parcel.He stated that Landwatch is arguing that those adjustments go beyond their understanding of what state law mandates in terms of adjustment of a common boundary line.He indicated it has been Land Managementís position that it doesnít.He said that it is Land Managementís position that the lot line adjustments were lawful.

 

Green explained that this is a decision that is subject to the plan amendment and rezoning criteria cited in the agenda cover memo.He said that evidence and testimony must be directed toward the approval criteria.He stated that failure to raise an issue to enable a response may preclude an appeal to LUBA.He noted this was an opportunity for people who are present to enter information into the record.He said they had received some correspondence.He stated that only persons who qualify as a party may appeal the Board decision to LUBA.

 

Green asked for any ex parte conflicts.

 

There were none.

 

Commissioner Green opened up the Public Hearing.

 

Mike Evans, Planning Consultant, 1071 Harlow Road, Springfield, represented the owner of the property, Laurelwood Academy.He didnít believe a plan amendment or zone change was necessary to deal with the status of a legal lot.He said part of a parcel could be rezoned.It was his position that it is a legal lot.He noted there was a property line adjustment done between this property and the adjacent property in 2002.He added there was a legal lot determination and the lot line adjustment was included in a land use decision, and notification was mailed out with that decision on May 3, 2003.He noted that mailing of notice confirmed the legal lot determination and line lot adjustment for this property.

 

Evans indicated the rezoning criteria is what the land is used for now and what it had been used for in the past.He noted the Board adopted an Errors and Omissions policy on December 17, 2003 that provided different circumstances where they could ask for a rezoning of property or a plan amendment and would be provided a special procedure to correct errors.He noted that one of those errors was at the time the zoning occurred in 1984, the F-2 zone allowed all uses within the forest zone and within the agricultural zone.He added that changed, so now it is appropriate for pieces of property that have historic use of agricultural to fall under the forest category and uses allowed there.

 

Evans noted the property has a history of farm use and it was under a farm deferral for 1995 and 1996.He said at that time there were 40 acres that were under farm deferral.He said the property is presently used for agriculture like it was in 1984.He noted there is an aerial photo that was taken in 1982 of the property that matches the current photo.He said the land is used for pasture and a portion of the property within the last four or five years has been converted to orchard use, consisting of 170 fruit and nut trees.He said he used the 1997 Soil Ratings for Forestry and Agricultural that was put together by LCOG and Land Management Division with DLCD.He said that is the basis they review when they are evaluating lands for farm and forest use.He noted that Goal 3 is how the land is to be evaluated.He noted that this hadnít been forestland in the past and had been more suited to agricultural uses.

 

With regard to the anticipated use of the property, Evans was asked what the intended use was.He explained the owners are Laurelwood Academy and they intended to build a school on the property.He noted that Laurelwood Academy is affiliated with the Seventh Day Adventist Church.He added it is a work-study school from grades seven through twelve.He said they hoped to move the school from Gaston, Oregon to this location.He noted that policy 13 of Goal 2 states that no county policy shall be construed to exclude specially permitted non-farm uses as defined by law.He said allowing an use on agricultural permitted by ORS isnít contrary to Lane County policy and provides conformance with Lane County policy under that category.He noted at the Planning Commission they received a unanimous recommendation for approval.

 

Evans stated the property line adjustment was included in a notice relating to the establishment of a dwelling on the property in 2002.His position was that it was already final and this would not impact that.

 

Kendall commented that even if it wasnít previously approved, it had been incorporated into the findings.He noted the adjusted legal lot is involved.

 

Sorenson read a portion of the letter from Landwatch regarding lot line adjustments.

 

Don Nichols, Land Management, recalled that Lane Countyís policy had always been that they do not regulate property line adjustment.He noted they make sure when there is a property line adjustment that affects legal lots, they move the common boundary line as required by ORS. He added they do legal lots after the property line adjustments.He said they review the property line adjustments and previous legal lots.He added that property line adjustments have two requirements:there had to be a property line adjustment deed and less than 10 acres in size.He said they review those and they make a preliminary finding and it stays that way until such time as notice is sent out showing the property line adjustment.

 

Sorenson asked what errors Lane County made that had to be corrected.

 

Evans responded that the property was originally zoned as FF20, an old zone with no comparison to what they are doing currently.He said in 1984 the F2 zone had a provision where they could either apply the standards in the F2 zone, or if a property was used for agriculture purposes, that could be applied by the standards that existed in the agricultural zone.He said because of that opportunity, the County didnít have to be careful about applying the exact correct zone to any particular piece or portion of property.He said the policy in 1984 said one of the primary purposes is to recognize the errors in initial zones.

 

Sorenson asked what the criteria is for recognition of an error

 

Evans commented if he were to zone the property today, the 1997 publication of standards indicated that none of the soils on the property are rated forest production, they are all agricultural.He added the property historically had been used for agricultural and those factors, together when following Goal 3 and 4 procedures, lean toward the designation of the property as agricultural.He thought there was an error in the previous zoning.

 

Dwyer noted that rules and definitions change but the properties donít change.He said the question is, Does this use conform to the use prior to 1984?††

 

Commissioner Green opened up the Public Hearing.

 

Jim Just, Executive Director of Goal 1 Coalition, represented Landwatch Lane County and Robert Emmons.He said a lot line adjustment was necessary in conjunction with this application for a plan amendment zone change.He noted the main criteria is whether there was an error and whether it complied with the comp plan.He said it was impossible to address those questions unless they know what the boundaries and characteristics of the property are and the uses that take place on the properties.He said they have to know what the lot lines are.He said in their opinion, legal lot determination has nothing to do with the lot line adjustment, assuming that the legal lot determination in this case was a final decision in 2002.He added that there is nothing in the legal lot determination that spoke to a lot line adjustment.He said it was not noticed that the legal lot determination addressed any lot line adjustments.He added the materials in the packet for the 2002 decision referred to a lot line adjustment and the definition of legal lot in Lane Code.He said a lot or parcel lawfully created remains a discrete lot or parcel.He said it doesnít state that it ceases to be a legal lot.He stated that moving a property line has nothing to do with the status of a legal lot.He said there is nothing in the legal lot determination process that addresses the requirements of the statute that require replats.He noted ORS 92.190 authorizes local governments to adopt regulations for doing lot line adjustments and if they do so, they donít have to use replat procedures.He added, having failed to adopt those; by default Lane County must use the replat procedures because no decision was made pertaining to any lot line adjustments on this parcel.He said it is their position that the lot lines on the subject parcel are the ones that existed prior to the alleged lot line adjustment.He said the characteristics had not been identified and the plan amendment should be approved.

 

Sorenson asked if there had to be a surveyed property line boundary around the property before they could identify what the property is that is being asked to be rezoned.

 

Just responded the argument that is being made is that the subject property is more suited to farm use than forest use.He said that is based on putting a line around a piece of land.

 

Robert Emmons, 40093 Little Fall Creek, commented that in relation to the actual on the ground characteristics of this property, the actual piece of land in question is riparian, wooded with wetlands, waterways and backwaters.He noted there is a piece that is being referred to that is close to the road, but by and large the majority of the property is a good subject for critical habitat conservation zone.He thought it was unfortunate that they couldnít consider it as criteria for the intended use.He said that Landwatch would have no difficulty with supporting a rezone to general farm use.He said they support the continuance of forest uses.He noted the intent is to build a school.He said that he had to take Evansí word that the school will continue agricultural use.He recommended that the Board go out and take a look at the property to get the feel for it.He thought a school was an inappropriate use.††

 

Sorenson stated the Board was told they couldnít go out and visit the site unless staff and the parties conducted it so they all get to see the same thing.He asked about the description of the property.

 

Emmons responded that he hadnít seen all of the property; he based his knowledge on passing by the property.

 

Nichols noted that Mr. Just had good comments and that staff should have a response.He said the first comment was that previous notice sent out about a special use permit in 2002 did not indicate at all that there was a property line adjustment.Nichols stated he has a copy of the notice and fact finding.He said the fact finding indicated there was five legal lots on one page and the finding of fact on page four states the actual deed. He said it stated it was a property line adjustment saying that it would be a final legal lot.He noted that was one parcel of the property line adjustment that occurred and this is the second parcel that is the same deed that is being recorded that has not been changed.He said they received a final legal lot based on the notice that was sent out in 2002.He said the County has a procedure for doing property line adjustments and legal lots.He added that they have fine-tuned how they do it and what they are doing meets the letter of the law.

 

Green asked if legal lots were regulated in other counties.

 

Nichols responded they were.He said legal lots are sent through a notice being sent out.He said the Board had directed them to change how they do legal lots

 

Hampton asked why Lane County didnít regulate this if other counties did.

 

Nichols said in the past Lane County didnít want to start regulating property line adjustments.He said the Land Management director at that time decided it was something they didnít want to get involved with.He noted it had been brought before the Board and each time they deemed it not necessary to regulate it.

 

Dwyer asked if they didnít change the zoning what would be permitted to be built.

 

Kendall responded towers and fire stations could be built, water intake facilities, caretaker residence for parks are also under permitted uses.He added campgrounds, television microwave radio communication facilities, utility facilities or electric transmission lines could also be built.

 

Sorenson asked if there was testimony in the planning commission record about the land use that existed prior to 1984.

 

Kendall responded the applicant has an aerial photograph dated from the early eighties showing the current use, which was pasture and orchards.He added there is also three acres of deciduous trees.

 

Evans stated that in the record there is a 1982 and a 2002 photograph.He added the two photos do compare.He said the photos show open farmland that is being proposed for zoning.He didnít know why there was any question as to the legal description or the description of the area for rezoning because they have the photographs and legal description for the property, an LCOG soils map with the property outlined, an assessorís map and a survey map.He said there is no question where the property exists.He noted when Emmons was describing the property; it was not the particular ownership they are discussing.He noted that these 20 acres are owned independently and a lot of what Emmons was describing was outside the 20 acres.

 

Evans agreed with county staff with regard to notice that was provided.He said regarding the replatting procedures, it was taken out of context because the discussion on replat procedures is a provision under ORS that says the counties may have something other than re-plat procedures that could be used.

 

Dwyer commented that most of the riparian area that Emmons discussed was not on the property.

 

Commissioner Green closed the Public Hearing.

 

Hampton thought in the future they should decide Lane County would regulate property line adjustments, as that is half of the argument about the property considerations they have to deal with.

 

Dwyer said that prior to 1984 the rules that were changed regarding forestry and farm werenít changed.He said they left it in forestry instead of picking it up as farmland.He said the omission was Lane Countyís doing, not from the applicant.

 

Sorenson suggested the Board visit the property so they could see what was included.

 

Dwyer concurred that they should visit the property to examine the land

 

MOTION:to roll this item for a Third Reading and Deliberation for Ordinance PA 1195 on March 31, 2004 and setting a site visit before the next reading.

 

Hampton MOVED, Sorenson SECONDED.

 

Kendall requested that the record be left open for written comments.

 

Green thought the applicant had met the test.

 

VOTE:3-2 (Green, Morrison dissenting).

 

b.SECOND READING AND PUBLIC HEARING/Ordinance PA 1194/In the Matter of Amending the Lane County General Plan Policies (An Element of the Lane County Rural Comprehensive Plan) by Revising Goal Two Policies 4, 10, 11, 15, 16, 21 And 27; Plan Designations and Zoning Designations for Seventeen Unincorporated Rural Communities in the Siuslaw Watershed and the Long Tom Watershed to Comply With Such Amendments; and Adopting Savings and Severability Clauses (NBA & PM 2/4/04).

 

Bill Sage, Land Management, reported the ordinance is second of five related to the periodic review work program for the Siuslaw and the Long Tom Watersheds.He noted the first one was adopting the conformity determination amendment process that they are going to be using.He noted the second ordinance is Ordinance 1194.He noted there are five parts to the ordinance and they are changing Goal 2 policies and Policy 10 and 11 to designate 17 communities from what they had in 1984 to rural community status and setting the densities for residential development that would reflect what is currently there, with a few exceptions.

 

With regard to Policy 15 and 16, Sage said that Policy 15 deals with the McKenzie and Policy 16 deals with the other policies with the other watersheds.He noted they are stating there are certain development processes for residential and industrial land and public facilities that will happen inside the lands that were already developed for those purposes in 1984.

 

Sage said Policy 21 is an advisory policy, where they are saying there are Oregon statutes that state you can develop a destination resort, site specific, if you go through the process and take an exception to Goal 8.

 

With regard to Policy 27, Sage noted the Board acted on an ordinance and order when they adopted the conformity determination.He said they were cleaning up some of the language in the policy that they adopted in December so they donít go to an errors and omissions application, they go to a conformity determination application.He said two more ordinances were going to come in March and the fifth ordinance will be brought in April that will rezone 70 properties to new destinations.

 

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

 

MOTION:to move to adopt Ordinance PA 1194.

 

Morrison MOVED, Dwyer SECONDED.

 

ROLL CALL VOTE: 5-0.

 

16.COMMISSIONERS' ANNOUNCEMENTS

 

None.

 

17.CORRESPONDENCE TO THE BOARD

 

None.

 

18.OTHER BUSINESS

 

None.

 

There being no further business, Commissioner Green adjourned the meeting at 3:10 p.m.

 

Melissa Zimmer

Recording Secretary