July 14, 2004

1:30 p.m.

Commissioners' Conference Room

APPROVED 5/18/05


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




a. SECOND READING AND PUBLIC HEARING/Ordinance No. PA 1210/In the Matter of  Amending the Rural Comprehensive Plan to Redesignate Land From "Agricultural" to "Marginal  Land" and Rezoning That Land From "E-40/Exclusive Farm Use" to "Ml/Marginal Land", and Adopting Savings and Severability Clauses (File PA 02-5838; Ogle). (NBA & PM 6/23/04)


Green explained they would hold the Public Hearing, but would reserve deliberations until there is a report that comes back and until Bill Dwyer could participate.


Green explained this decision is subject to the plan amendment and rezoning criteria sited in the agenda cover memo and attachments and any other supplemental material.  He said evidence and testimony must be directed toward the approval criteria and failure to raise an issue to enable a response may preclude appeal to LUBA.  He said this was an opportunity for those present to enter information into the record and only persons who qualify as a party may appeal Board decisions to LUBA.


Green asked for any ex parte contacts.


There were no ex parte contacts.


Jerry Kendall, Land Management, reported the packet had two attachments missing: the Lane County Planning Commission staff report and the Planning Commission minutes.  He commented the staff report was outdated as more information came out since it was generated.  He said the minutes had been re-entered into the record and attached to the supplement.


Kendall noted the subject property is located approximately one-half mile northwest of Blanton Road and Lorane Highway.  He said since the early 70’s it was one parcel composed of 113 acres.  He indicated in 1992 the single owner of the tract applied for a marshlands designation on the entire 113 acres and later scaled it back to the top 40 acres.  He added in 1994 they partitioned the property into two parcels and placed one home on each portion of the marginal lands.  He said the proposal before the Board is to rezone the subject property in the attached area on the 73 remaining acres into marginal lands.  He said if it is successful, they could divide into 20-acre pieces and get five parcels out of 113 acres or if during the subdivision phase they show that the adjacent resource land qualifies as marginal lands, they could go down to 10-acre pieces and get 13 parcels.  He said because of the aquifer study that is part of the findings, it came out with the result that there is only enough water for nine parcels total, with one home on each of the entire 113 acres.


Kendall explained that the marginal lands test is a two-tiered test.  He said the first test is the income test.  He said they look at five years from 1978 on and look to see if any three of those years the subject property was part of a farm operation that grossed $20,000.  He indicated by affidavit that was shown not to be the case.   With regard to forest operation, he said they need to show that either the property or the entire 113-acre tract in the five-year period was not capable of grossing more than $10,000 in forest operation.  He said the conclusion of the forester was that they could only gross $5,597.  He noted there was debate over whether to use 1983 prices or current timber prices and whether or not tree species was to be evaluated.  He said they used 1983 prices for the guideline and a 50-year cycle.  He said that qualifies on the farm and forest income test.  He said the second test is the productivity test and they look at the proposed marginal land for this portion of the test to see if it has agricultural productivity soils in the range of 5 to 8 that is on the poor side.  He said that it turned out that 100% is either Class 6 or 8 and that qualifies.  He noted for each portion of the two parcels that are divided, each portion of the two remaining portions of the parcel (under 40 acres) has less than 85 cubic feet per acre per year productivity in merchantable timber.   He added that merchantable timber is defined in part as of commercial quality, acceptable to buyers and saleable.  He said the forester concluded that because of lack of water for irrigation, prohibitive costs of installing that and the market prices for other timber, that Douglas Fir was in highest demand as merchantable timber.  He said the other tree species were not considered merchantable timber.


Kendall noted the aquifer study proved up to a capability of nine parcels that averages 500 gallons per day, which is an acceptable rate.  He indicated the Planning Commission held one hearing and one public meeting and they recommended 9-0 to recommend to the Board approval of this request.


Commissioner Green opened the Public Hearing.


Mike Farthing, Eugene, explained that draft findings are in the packet and that is what describes the approval findings.  He said they address the marginal lands criteria and the County’s plan amendment criteria.  He said they are addressing that this plan amendment is necessary to provide the implementation of adopted plan policies.  He noted Lane County’s Comprehensive Plan states farm and/or forestland can be designated as marginal lands if the applicant satisfies ORS 197.247 as it existed in 1991.  He stated the findings have those criteria on page 6.  He said the applicant addressed those criteria.  He said there is the income test and that is $10,000 over gross sales for forest and $20,000 during the five-year period from 1978 to 1983, and they addressed the soils test of soils capability both farm and forest.   He said that is where the 85 cubic feet per acre per year figure comes from.


Farthing said it is a statutory standard that flows from Lane County’s policies through the statute to their application.  He said they addressed the real issues in this matter.  He said there is no conflicting substantive evidence on water or forest.  He noted that Mr. Just submitted a lot of information but it is conjecture and arguments that they have addressed in the findings.  He said it is marginal lands and what the legislature contemplated as margin lands in 1978 and what the County contemplated when they adopted the policy.  He said the land doesn’t support farm and forest as it is not prime lands; it is marginal resource land.


With regard to the standard for water, Sorenson asked how much water was for the standard that had to be met


Roger Christenson, Eugene, reported there are no standards that are in the ordinance or in statute that have a certain set amount of water that has to be demonstrated.  He noted there are County standards for demonstrating water in places where water is marginal.  He said there has to be evidence that there is sufficient water there and the water supply is not going to adversely impact the people who are around the property.  He explained the basic standard they look at is the amount of water that is necessary to sustain a standard home dwelling.  He noted that comes out to be about 350 gallons per day.  He said they also look at the recharge to see if there is sufficient recharge in the system.


Jim Just, Eugene, stated he is the representative for Landwatch Lane County and the Goal 1 Coalition.  He indicated that there had been new material submitted and he requested that the record be left open for seven days to provide additional testimony.  He said the criteria pertaining to marginal lands are in statute and the interpretation of those provisions is to no deference.  He said a primary issue is the meaning of merchantable timber.  He said they think it means any forest tree species that is suitable for the production of lumber sheeting or any other commercial forest product and that was any species other than Douglas Fir.  He said the value of merchantable timber is not an issue.  He noted on page 8, he said they calculated the productivity potential of the two tax lots and both proposed units of proposed marginal lands are capable of producing substantially in excess of 85 cubic feet per acre per year threshold.  With regard to the income test, he noted on page 12 of their testimony, they produced two tables calculating productivity over a 60 and 50-year growth cycle using 2004 and 1994 timber prices.  He said it has been suggested that they have to use 1983 prices.  He said it doesn’t make sense and it wasn’t reasonable.


Sorenson asked if they left the record open for submission of additional written materials, he was interested in hearing about the price test issue of the 1978 through 1982 time period that is in the statute.


Jesse Ulloa stated he lives south and adjacent to the subject property.  He thought the County would rather have the taxes on current property than 1983 figures.  His biggest concern was the water.  He noted he only has 7 ˝ gallons per minute that is less than the recommended amount.  He said his well is 200 feet from the subject property.  He was also concerned about sewage coming down onto his property.


Kendall noted there had been a request for a continuance of this matter.


Farthing wanted at least two weeks to get back to the Board.  He said they would address the merchantable timber issue and the testimony they heard today.  He added that ponderosa pine is another issue .  He commented that 7 ˝ gallons per minute is a good well.


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


Kendall indicated this would come back to the Board on August 25.  He suggested leaving the record open until July 28 for any party to comment on any aspect.  He added there would be another two weeks for the comments to the first period, until August 11.  He said August 18 would be for Farthing’s final rebuttal.


MOTION: to approve a  Second Reading and Setting a Third Reading and Deliberation for Ordinance No. PA 1210 on August 25, 2004.


Sorenson MOVED, Morrison SECONDED.


VOTE: 4-0.




b. SECOND READING AND PUBLIC HEARING/Ordinance 1504/In the Matter of Amending Chapter 18 of Lane Code to Adjust the West/Central and Northwest/Central Ambulance Service Area Boundaries and to Update the Ambulance Service Area Plan. (NBA & PM 6/30/04)


Rob Rockstroh, Health and Human Services, reported that this is an agreement among the providers and it is a technical zoning change as the maps were redrawn.  He added this was agreed to by all of the providers and something they wanted to do.  He said they needed to change Lane Code at the same time.


Stephen Vorhes, Assistant County Counsel, explained there are some language changes that describe and clarify more of the authority to change the boundaries in the future.  He noted that annexation was one of the considerations.


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


MOTION: to adopt Ordinance 1504.


Morrison MOVED, Hampton SECONDED.






Morrison said she would be at the NACo conference starting tomorrow afternoon.  She said she would be late for next week’s meeting.  With regard to the 4th of July activities, she thought they needed to be excited about the work that some of the communities put into the activities.


Green noted that tomorrow they meet as a Board with the Fair Board at the fairgrounds.  He said that Sorenson would be excused.  He said he had been accepted into a leadership program and he would be going to Portland.  He announced that the 2004 Junior Olympics Opening Ceremony is two weeks from today at Hayward Field.  He noted that there would be about 3,000 athletes.


Hampton announced that the Bohemia Mining Days and Blackberry Jam were coming up.










There being no further business, Commissioner Green adjourned the meeting at 2:50 p.m.


Melissa Zimmer

Recording Secretary