BOARD OF COMMISSIONERS'
WORK SESSION
January 23, 2007
9:00 a.m.
Commissioners' Conference Room
APPROVED 2/21/07
Commissioner Faye
Stewart presided with Commissioners Bill Dwyer, Bill Fleenor, Bobby Green, Sr.
and Peter Sorenson present. County
Administrator Bill Van Vactor, Assistant County Counsel Stephen Vorhes and
Recording Secretary Melissa Zimmer were also present.
A. ADJUSTMENTS
TO THE AGENDA
None.
B. PUBLIC
COMMENTS
Katherine Ford, Eugene, said she is a member of the Willamette
Animal Guild (WAG) and a member of the No Kill Community Coalition. She said it is necessary that there is an
affordable and accessible low cost spay neuter clinic available in the area for
the concept of no kill to succeed. She
said the WAG plans to do that by following the Humane Alliance Model of high
volume spay neuter. She said they will
maximize their fixed costs of rent, salaries and insurance by permitting 25 to
30 surgeries per day. She said it would
be accomplished with one veterinarian in the beginning. She said they hope to increase to two vets who
will double their output and only increase their costs by the salary and
insurance of the second vet. She said
they would be able to offer their services for an average of $35 for cats and
$70 for dogs. She said they plan to
raise revenue with fund raising events and grant requests. She indicated their goal is no kill in Lane
County. She said they want to work with
LCARA to make the administration of the system an easier scenario. She wanted to work with the commissioners in
partnership.
Diana Robertson, Eugene, stated she was on the steering committee
of the No Kill Community Coalition. She
discussed the success of a no kill shelter in other cities. She thanked Commissioner Green for
expressing his discomfort with the actual term “no kill.” She indicated they
wanted to adopt a resolution that would make it clear to the community and
LCARA that each animal could safely, and in a fiscally responsible way, be
saved. She said they would appreciate a no kill or low kill term. She said what matters is what happens at the
shelters, which should have a positive work environment.
Green commented that if they say no kill, it should mean no kill. He said if they euthanize one animal, it
sends the wrong message and is not consistent with the philosophy. He was willing to work with their goals but
wanted to be straight with people--if they mean no kill, it is indeed no kill.
Jill Winans, Eugene, said their model is the Humane Alliance Clinic in Asheville,
North Carolina. She indicated that spay
and neuter is essential to the no kill concept and is the most important factor
because no shelter will ever be big enough to handle the over population of
companion animals. She estimated there
are about 160,000 animals in Lane County that people consider their own, of
those about two thirds are spayed, leaving 53,333 unaltered. She said there are 30 vet clinics in the
phone book, each doing on average five spay or neuter surgeries daily, which is
about 39,000 surgeries yearly, with 14,333 animals unaltered and continuing to
breed. She said using the Human
Alliance as a model, the WAG Clinic hopes to have a staff of four vets altering
20,000 animals per year. She said that
amount would make a difference. She
indicated that WAG has chosen a fixed location with a full time clinic using
paid staff and a shuttle system to reach outlying areas.
Lesa Fisher, Eugene, said they transport animals to save the lives of the animals. She said their transports have involved five
other agencies. For services, they
promote not killing cats at LCARA because of lack of kennel sources. She noted they have been making interagency
transfers of LCARA cats.
Starly Pupke, reported that with the establishment of the Petsmart adoption program in
early October, they have transferred all of the cats and their adoption packets
on a weekly basis from LCARA to the Petsmart store. She said it has involved over 35 transfers and many volunteer
hours leading to the successful adoption of over more than 50 cats. She noted there have been six agencies, 60
transports, 206 cats and countless volunteers in the past three months. She wanted the Board to adopt a no kill
philosophy at Lane County.
C. COMMISSIONERS'
REMONSTRANCE
Sorenson stated that
last Friday he asked the Oregon Legislature to look at reforming the unintended
consequences of Measure 37. He received
a response back that only 10 percent of all Measure 37 claims involve building
a single house on property owned by the petitioner. He hoped the legislature would try to reform the unintended
consequences.
D. EXECUTIVE
SESSION as per ORS 192.660
None.
E. PUBLIC
HEARINGS/MEASURE 37 CLAIMS
Stewart explained
that all Ballot Measure 37 claims set for hearing and consideration will be reviewed
in a single hearing. He said this would
allow anyone the opportunity to speak on any claim set for the public
hearing. He added written testimony may
also be submitted. He indicated by
signing up on the sign up sheets, they will have placed themselves on a list
that if the claim waiver gets approved and a further land use application is
submitted, then they will be notified of the submittal and opportunities to
speak on the development of the property.
He explained the testimony at today’s hearing should be limited to the
issues relevant to Measure 37 claims:
ownership, reduction in value from restrictive land use regulations, and
exempt regulations. He added the criteria
for determining the validity of a Measure 37 claim in Lane County are found in
Lane Code Chapter 2.700 to 2.770. He
said the claims either appear to be valid or more information is needed to
determine their validity. He noted the
first category involves claims that appear valid and contain proposals for
waivers of the current land use regulations.
He said the second category involves claims that have issues where the
claimants did not submit enough information for staff to determine the validity
of the claim. He said the Board would
consider those claims to be considered separately. He said the Board will act upon the rest of the listed claims
with one motion. He added if the Board
determines that a claim is valid and waives the current land use regulations,
the claimant may submit a land use application to develop the property at a
later date. He said notice regarding a
land use application to develop the property will be sent at the time to all
who submit testimony during the Measure 37 claim, and request notice using the
comment testimony form. He said issues
addressing the proposed development such as water, sanitation and traffic will
be addressed at a later date.
Kent Howe, Land
Management, explained they are providing an opportunity for citizens to comment
on 28 claims. He said staff mailed
notice to the property owners within 1500 feet on January 5, 2007. He said that staff had concluded the
analysis of the pertinent Measure 37 requirements of the 28 claims and
summarized that information in the staff reports. He said the analysis addresses the requirements of ownership,
date of acquisition, the current zoning, the zoning regulation at the time of
acquisition, and some form of competent analysis of fair market value reduction
resulting from the land use regulations that have been applied to the property
since the owner’s acquisition. He noted
on those claims that did not provide an appraisal, the County Administrator has waived the appraisal because they
had provided a competent analysis of value reduction such as a real estate
broker’s opinion of comparative sales.
He indicated that Table 1 had a summary of claims, the staff analysis
and the recommendations. (Copy in file).
Commissioner Stewart
opened the Public Hearing. He asked if
there were any ex parte contacts or any conflicts of interest.
Stewart declared
that one of the applicants today is his second cousin, Bud Stewart.
Mike Reeder, Eugene, stated he represented George
Hinnenkamp.
George Hinnenkamp, stated he bought the property in 1964 and
it was turned over to him completely in 1967.
Stewart said it
appeared that Hinnenkamp sold the piece of property and through court got it
back in 1979. He thought the title was
broken.
Hinnenkamp recalled
the person didn’t make a down payment.
Vorhes explained
that the state had acted on the claim and concluded that the date of the land
sale contract foreclosure reacquisition is the new acquisition date for the
current owner and waived only to that point.
He said there was a possibility that the Circuit Court would decide the
issue. He said there is another Circuit
Court case in another county that had decided in a different situation that the
land sale contract seller has no interest in the property under Measure 37.
Reeder stated that
no money was transacted. He explained
that the contract entered into in 1979 was a contract with no money paid and
there was strict foreclosure on the property in late 1979. He said the contract was only open for seven
months and no payment was received. He
gave the Board and Vorhes their analysis of the land sale contract doctrine as
provided by the Oregon Supreme Court.
He recalled that this Measure 37 claim had come before the Board before
and during the hearing the question of this land sale contract came up and Vorhes
explained his position. He said they
sent a letter to the state explaining why they think their position on the land
sale contract issue is erroneous.
Reeder said the
state has said a land sale contract is a transfer of ownership. He said when the Supreme Court has held that,
it had been in circumstances where a vendor (the original landowner) conveys
the property to the vendee through the contract and the vendee sells to another
party. He said in order to protect an innocent third party purchaser from a
mortgage or other encumbrance, the courts have said in this case, the vendor
only has bare legal title. He said in
this case there is not an innocent third party purchaser. He said according to the Oregon Supreme
Court cases, the vendor in a land sales contract still retains interest in the
property. He said it is like a lessor
and a lessee, where the lessor has control and occupies the property. He said just because the lessor doesn’t have
control of the property at the moment doesn’t mean that they are not an owner
for real property purposes or for Measure 37.
He said a land use contract is similar.
He said that Measure 37 is broad enough to allow that the present owner
of the property or any interest therein includes a vendor in a land sale
contract. He added that Measure 37 by
its own terms has no continuous ownership requirement. He said in this case there is no continuous
ownership requirement. He noted that
Hinnenkamp acquired the property prior to land use regulations and he is now
the present owner of the property. He
said those two things are what are required under Measure 37. He said that George Hinnenkamp is the owner
of the property today, in 1966 and continuously as defined by the Oregon
Supreme Court.
Sorenson recalled
that Vorhes said there was a circuit court ruling that held that a land sales
contract seller has no interest for purposes of Measure 37.
Vorhes said there
was a single page letter opinion from Klamath County Circuit that denied a
motion for summary judgment on the basis that the judge’s ruling doesn’t make
sense that a person holding a vendor’s interest in a land sales contract is an
owner for the purposes of Measure 37.
He said that was the conclusion the judge reached in denying that
applicant’s request for a summary judgment where the state had reached a
similar conclusion involving Hinnenkamp.
He wasn’t aware of an appellate ruling on that case.
Sorenson asked if
that was binding on this case.
Vorhes said it is
not binding except as the Board interprets the statute. He said they could use it as an aid in
interpreting the statute and they could use the other cases cited. He said they have to reach the conclusion on
what their authority to waive under the statute is and the language in the
statute is waiver to allow for an use permitted at the time the owner acquired
the property. He said the Board has to
determine when the owner acquired the property under the measure. He said there is debate on the steps the contract
seller needed to take to get the property back. He noted it was necessary for him to go to circuit court. He said
the memorandum of contract spoke of a price of $232,000. He said the suit and the judgments only
mentioned a claim of $222,000. He
didn’t know if any money transferred and didn’t know if it made a difference. He commented that was an uncertainty of
Measure 37. He said the contract took
judicial action to have the owner reacquire the property for the failure to pay
the security that the owner held at the time the contract started.
Green recalled the
owner had a warranty deed for the property in 1966 that has been recorded. He stated the owner conveyed the property to
a third party in 1979. He asked why
they had to go through a court action to regain something that he claimed he never
really did release.
Reeder explained the
response was like a person who had property through adverse possession. He said you can have an interest in the
property through adverse possession, but you have to go through the judicial
process to do so. He said it was similar to a rental situation. He said it doesn’t mean interest is lost in
the property. Reeder said the text of
the Measure 37 defines an owner. He said
the Oregon Supreme Court cases are clear on this matter. He said the Klamath County case was not
binding on this jurisdiction. He
indicated they were appealing to the state on this case.
Green asked if
Hinnenkamp could have gotten a loan when the property was conveyed to the third
party.
Reeder said that
Hinnenkamp retained legal title to the property and that is why the courts have
made the distinction between innocent third party purchasers because the vendor
could encumber the property and the innocent third party purchaser who bought
from the vendee could be stuck with the mortgage through no fault of their own.
Green thought if
that was the case it causes a question of who was the rightful owner.
Reeder said there
are many ownership methods. He didn’t
think there was a clear-cut answer in Measure 37.
Ted Stevens, Eugene, discussed the Hinnenkamp claim. He thanked
the Board for denying Hinnenkamp’s initial claim. He commented that the issues they raised last year were disposed
of by two carefully crafted affidavits that were signed two months after the
denial of the initial claim (Exhibit 1).
He supports the position of County staff regarding the acquisition
date. He thought it should be December
21, 1979 instead of the date in 1966.
He contended that the land use contract and the subsequent reacquisition
through foreclosure break the chain of continuous ownership and they should use
the 1979 date. He said the State of
Oregon in consideration of Hinnenkamp’s claim has elected to use the December
21, 1979 date. He thought the Board had
no choice but to approve this, but if they have to approve it, he hoped they
would use the 1979 date.
Bill Lewis, Springfield, said he has owned his property since 1968. He wanted to make three parcels out of the
lot of approximately 14 acres. He said
when they bought the land in 1968 it was unzoned. He went to all of the hearings when they were rezoning and
requested an RR classification. He said
they were told that would be okay, but when they took the papers back to the
County, it came back as F2. He said
they had gone through the process about two or three times. He said the state has approved his claim they
filed on June 22. His 180 days were up
before Christmas. He recalled at the time
he purchased the property, the lot sizes were 6,000 and it could be divided. He said his claim has been continuous title
with his wife’s name on the deed since they bought the property in 1968. He indicated that it was transferred to her
trust in 1991 but her name never came off the deed.
Lenae Masters, Sandy, Oregon, spoke on the Howard Measure
37 claim. She said there has been
continuous ownership by the family since the early 30’s. She indicated that it was originally
purchased by George Howard, her great
grandfather. She said it was passed to her grandfather, Vincent Howard, Sr., who passed half to their mother Marjorie
Howard Bancroft in the early 1960’s.
She added when her mother died in 1979, it passed to her and her two
sisters. She said it had been used for
camping and living. She stated the land was passed through inheritance and
belonged in the family for over 75 years.
She said there has been development on Collard Lake Road but their 80
acres have not been able to be divided, or to put a home on it due to changes
in zoning. She said the zoning had
changed since their family purchased the property. She indicated at first there was no zoning and later it was zoned
F2 with 20 acres per dwelling. Now it
is zoned 80 acres. She wanted the land
to be divided into 20 acre lots. She
stated there were few trees on the land and it would be questionable to state
that it is currently forest land. She said
they are not asking to build houses on the land, just to divide it. She said the diminished value of their land
due to the more restrictive zoning is $1,040,000. She requested the Board either reimburse them for the loss of
value or disregard the more restrictive zoning and allow them to divide the
land into 20 acre parcels.
Brenda Black, Eugene, stated she was against the Haffner
claim. She was not notified by the state and was unable to oppose the Haffner
claim for their intent to subdivide to one acre parcels. She said the state agreed to this. She wanted to go on record with the Board of
Commissioners because she couldn’t be in standing with the state because she
was never notified. She added that
other neighbors were also not notified by the state.
Fleenor asked if due
process was a criteria by which they assess a Measure 37 claim.
Vorhes responded
that they have included a hearing process so they give people an opportunity to
speak, but they have provisions in
their procedures that recognize that it is possible that people will not get
notice and they don’t hold that as a basis for denying a claim. He said the criteria for approval or denial
of a claim are the criteria that are contained in the measure itself. He said it is not clear whether the measure
has those types of constitutional implications for neighbors. He said the earliest challenge to the
measure included some of the same issues
and the circuit court judge ruled that it was a problem and the Supreme Court
disagreed.
Stewart stated that
it was being recommended that the Haffner claim only be granted to Wesley and
not the wife. He said for Wesley that
date would be to 1972 and the wife’s date would be 1986.
Terry Worthylake, Carson City, Nevada, said he wanted to move ahead with lowering
the restrictions on his property so he could build a home. He said he acquired tax lot 603 on South
Canary Road in 1976 from his father so he would have a place to retire. He wants to build on the property. He urged the Board to lower the restrictions
so he can build.
Stewart noted that
staff recommended that they waive Worthylake to 2005 because in 1997 he
quitclaimed the property to his daughter and in 2005 his daughter quitclaimed
it back.
Merilee Bancroft, Portland,
spoke on the Masters claim. She
said when there was a moratorium on the property in 1983, it prevented Lane
County from issuing building or sanitation permits, within the Clearlake
Watershed due to health and safety concerns.
She said the fact the moratorium was removed was proof that no health
safety threats could be used to exclude properties inside the Clearlake
Watershed Zone from a Measure 37 claim.
She hoped the Board would
approve the Measure 37 claim in its entirety.
Trudi Sletager, Creswell, spoke on the Stewart claim. She wanted the commercial uses to be struck
from the Measure 37 claim. She received
a notice from the State of Oregon. She
said she is filing a Measure 37 claim and they don’t want a commercial use for
their property. She said she purchased
her property when a covenant was enforced and so did the Stewarts.
Fleenor asked how
CCR’s are dealt with in a Measure 37 claim.
Vorhes said at some
level it could impact the analysis of the reduction in value and what is
attributable to regulations, versus other factors that might limit the property
development scenarios that are provided as a basis for the reduction
value. With regard to a waiver, he
said there was nothing they could do that would affect that. He said if there
is still some reduction in value, they are faced with the choice of paying or
not.
Leonard Sletager, said he has property adjacent to the
Stewart property. He stated he doesn’t
have objection to Stewart applying for the Measure 37 claim for residential use
but disagrees about commercial use.
Fleenor asked if
they are able to factor out commercial versus residential applications.
Vorhes said they
have to focus on the regulations that are alleged to have reduced the value. That is what the Board needs to look at in
terms of waiver of the County regulations.
He said even if the County regulations are waived as to commercial uses
or any other use within a zone, if there are other factors that will limit the
use of that property (such as a CC&R), that is more of a private matter, and
come into play at some time. He noted for the purposes of the County
regulations, they have to focus on what has alleged to have reduced the value
and restricted the use as far as the County regulations are concerned. He said they have not limited the waiver in
any way because it is unclear under the measure how much authority there is to
do that.
Green asked if it
was a permitted use or if it was already zoned commercial. He asked if they were to remove it, if it
would trigger another Measure 37 claim.
Vorhes said they
would need to find out the reduction in value and how attributable it is to one
or another claimed use that could have occurred under previous
regulations. He commented that irrespective
of what CCR’s might have come into place since then to limit the uses, the
analysis (under current regulations)
state there are certain uses that are not allowed. He said if there is that difference and a difference in the
value, the waiver under the measure says to allow the property owner to use the
property in a manner that could have been used when they acquired the property.
He said the claim could come in circuit court that the Board continued to apply
a regulation that prohibits commercial use in a manner that is not supported by
the measure. He said they could be
subject to a claim for compensation for that portion of the original
claim.
Steve Cornacchia, Eugene, stated he represented four
claimants. With regard to Harold and
Roxanee Rutherford, he said the claim should be listed as PA 6190 and not 6191 as
was on the website. He also represented
John McNutt, PA 6191, LeSalles and
Sandra Stewart, PA 6211 and Vena Dilley, PA 6348. He noted he had read the staff report and the order, and was in agreement
with all four. With regard to the
Stewarts, he said the issue was commercial use. He said it was represented that CCR’s were in place against this
property. He indicated they were at one time but at this point they no longer
exist. He said in earlier years the
CCR’s stated that if 75 percent of the neighbors desired to remove the CCR’s
against their property, it could be done and it was done. He indicated at this point those CCR’s don’t
exist. He said if the Board has issues
with that and wishes to give additional information, they could get a title
report, but it is an additional expense on the part of the claimant. He added that CCR’s are a private matter
between the parties and are not part of
the Measure 37 consideration. He indicated
at the time the applicant obtained their interest in the property, they could
have made commercial use of the property.
He said the primary focus of his clients is residential. He said in 1971 when they obtained interest
in the property, commercial use was allowed and they included it in the
claim. He said that staff determined
that both commercial and residential uses could be made on the property at the
time the claimants obtained their interest.
He said they provided an appraisal that was based upon residential
use. He said they had demonstrated that
they had a significant diminution in value without considering commercial uses.
Millie Graves, Veneta, spoke about the Purkerson
claim. She lives near the property and
they received no notice. She heard a
rumor about a housing development in her area and how it would impact the
school. She said the property is zoned
F1 Non Impacted Forest and contains approximately 92 acres. She said the landowner wants to divide the
property into lots that contain less than 80 acres with a dwelling on each
lot. She had no objections to their
putting a house on their property. She
noted on timberland there is always the possibility of fire. She said in some cases people could be
financially responsible if the fire spreads and damages another person’s
property. She wasn’t in favor of a
housing development.
Lee Omlid, Florence, stated he filed claims on behalf
of Johnston, Buley and Lucchesi. He
understood that waivers would be granted to Johnston and Buley.
Preston Nydam, Creswell, spoke on the Cully property. He stated he was against it. He commented that leaving the zoning the way
it is will not affect the property’s worth. He stated that half
of the property is swampland and what they want to do with it is not physically
possible. He said it floods every
year. He heard that Cully sold the
property to Tony Chapman.
Stewart indicated
that the Cully application is being pulled and the recommendation is to deny
the claim because the ownership transferred to an LLC in 2005.
Vorhes indicated in
the Cully matter there is not clear track of ownership tracing to the current
owner to show what ownership interests the family has that restrict the use and
reduce the value to the earliest family member.
James Bowers, Cottage Grove, stated he was the agent for
his parents and wanted to be on record.
Jim Babson, Land Watch, Eugene, commented that the
statewide land use planning goals were adopted in 1975 and of the 28 properties
today, 13 have dates of ownership after that.
He said Goals 3 and 4 restricted
land divisions and dwellings on farm and forest land apply directly to their
property when they acquired it. He
thought those claims should be denied on that basis.
Green asked what
evidence Babson had to substantiate the allegations.
Babson said the
analysis of state staff reports and the
final report cite January 25, 1975 as when Goal 3 and 4 become effective and
that applied directly to properties acquired after that. He said Worthylake had a date of 2005;
Stapleton 1987; Cully 1999; Keeney 2004; Haffner; 1986; Garvin 1999 and Buley
2003.
Stewart indicated
they were not waiving those claimants past those dates.
Babson asked why
they would grant a waiver back to 2003.
Dwyer said the law
for Measure 37 sets out a standard that gives several choices. He said any subsequent effort to develop
will make them comply and those dates will become pertinent.
Aimie Garvin, Eugene, stated the property has been in her
family since 1936. She said title
passed to her in 1999 but there was continuous ownership of the family. She indicated it was part of her husband’s
inheritance and they want to build a house on the small lot and retire
there. She noted at one time her father
in law had a permit for the property.
Vorhes said whether
or not the claim is valid, they look at how long the family owned the property
for determining whether compensation would be possible under the measure. He explained it was the analysis of
reduction in value that leads to the conclusion that the choice of the Board is
to pay compensation under that analysis, waive or choose not to apply the regulations
to allow the present owner the ability to develop the property in a manner the
present owner could have done at the time the present owner acquired the
property.
Fleenor said he
would be willing to waive this back to 1948, as this was the reason why Measure
37 was passed.
Paulette Richards, said she owns property within 1500 feet of
the Rutherford property. She said it is
zoned F2 impacted forest land. She had
a question about continuous ownership.
She was confused about the deed.
She said there was a conveyance of some portion of the property and she
wanted to know which portion of tax lot 1200 was conveyed and to whom. She didn’t think fair market was being
considered for vacant land with no electricity or roads into the property. She
claimed the residents of Paradise Drive value their privacy and the quiet
country lifestyle as did the Rutherfords.
She said adding 25 more homes on the hillside will impact the current
residents on well water and will create a potential for soil erosion. She urged a temporary suspension of the
Measure 37 claims to give the legislative assembly time to work on some reform.
Carl Hingley, stated he is the applicant. He didn’t have the resources to have a full
scale appraisal done on his property
since they aren’t looking for compensation. He said the state
approved his claim. He said he
is protecting his rights.
Stewart said they
needed more information on the value loss.
He asked if he could meet the requirements of the county administrator:
a market analysis from a professional in the field and could show the market loss.
He thought then the Board might be in favor of waiving.
Hingley said he
didn’t know about the valuation problem.
George Heilig, Corvallis, stated he appeared on behalf of
the Haffner application. He reviewed
the staff report and supports its analysis that it is a valid claim. He reviewed the order and it is consistent
with the order the State of Oregon issued and it correctly identifies the
different dates of acquisition for the co-owners of the property.
Leslie Wolf, Eugene, spoke on the Haffner claim. She was against the claim. She did not receive notice from the
state. She asked the Board to take into
account Land Watch and others who are
against the claim.
Jerry Kerns, spoke on the Le Salles Stewart claim. He said he was neutral on this matter. He said his property is the northern boundary. He said in reviewing this, it appeared that
only tax lot 113 is the subject of the Measure 37 claim. He added that tax lots 114 and 123 were
included. He noted that tax lot 123 is
already 4.9 acres so it is not subject to the RR 10 zoning. He asked how they could come up with a $2
million loss of revenue.
Fleenor asked what
provisions there were in Measure 37 for authenticating the valuation.
Vorhes responded
that there was little to go on with Measure 37. He said it is a matter for the Board to determine in each case if
there is enough proof sufficient in a decision and if there was enough evidence
a reasonable mind or a business person would use or rely on in the conduct of
their business. He said there has to be
some basis to conclude the County’s restrictive regulations have reduced the
value. How much the value is reduced is
something the Board has struggled with. He said the state looks at the evidence
and declares there has been a reduction in value.
Van Vactor said
(describing the range of what is adequate information) is that at the high end
there is a certified appraiser, and at the low end there is the landowner’s
personal opinion. He said they had accepted
real estate brokers that did a comparative analysis of actual sales and relate
that to the regulation as the minimum threshold.
There being no one
else signed up to speak, Commissioner Stewart, recessed the meeting at 12:05
p.m.
(The meeting reconvened
at 1:30 p.m.)
Van Vactor said on
the Hingley claim he spoke with the claimant and he is planning on submitting
more information. He recommended
withholding any action until the appraisal information is submitted.
Sorenson suggested
that they split the claims and take half in the morning and the other half in
the afternoon so they could focus on groups at a time.
Green thought it
went well for the first time. He
concern was when people came up to speak they didn’t all mention which claim
they were talking about. He thought
staff did a good job on the summary of the claims. He thought they needed to be consistent and to let people speak.
Dwyer thought if any
commissioner had a problem with any of the claims they should pull it off, approve the balance, then deal with the issues one by one.
Stewart reiterated
that Cully was pulled. He said that
Hingley was asked for more time to provide the evaluation. He noted that ownership for Hallett was
unclear. He added that for Cully they
would base it on the state. He added
for Hingley, Gass and Hallett additional information is needed. He asked if they should be given 30 days to
supply additional information.
1. In the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of Providing Just Compensation (PA05-6397, Cully). (PULLED)
2. In the Matter of
Considering a Ballot Measure 37 Claim and Deciding Whether to Modify, Remove or
Not Apply Restrictive Land Use Regulations in Lieu of Providing Just
Compensation (PA05-6816, Hingley).
3. In the Matter
of/Considering a Ballot Measure 37 Claim and Deciding Whether to Modify, Remove
or Not Apply Restrictive Land Use Regulations in Lieu Of Providing Just
Compensation (Pa06-5082, Gass).
4. ORDER 07-1-23-1/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA 06-6114 Hallett).
5. ORDER 07-1-23-2/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA05-6369, Raloa Keeney).
6. ORDER 07-1-23-3/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA05-6611, Ralph Keeney).
7. ORDER 07-1-23-4/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA05-6806 Lucchesi).
8. ORDER 07-1-23-5/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6094, Stapleton).
9. ORDER 07-1-23-6/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6112, Hinnenkamp Trust).
10. ORDER 07-1-23-7/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6113, Lee).
11. ORDER 07-1-23-8/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (06-6139 Lewis).
12. ORDER 07-1-23-9/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6191, Rutherford).
13. ORDER 07-1-23-10/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6191, McNutt).
14. ORDER 07-1-23-11/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6211, LaSells).
15. ORDER 07-1-23-12/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6213, Johnston).
16. ORDER 07-1-23-13/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6246, Buley).
17. ORDER 07-1-23-14/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6254, Worthylake).
18. ORDER 07-1-23-15/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6276, Haffner).
19. ORDER 07-1-23-16/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6293, Purkerson).
20. ORDER 07-1-23-17/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6296, Weber2).
21. ORDER 07-1-23-18/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to Modify,
Remove or Not Apply Restrictive Land Use Regulations in Lieu of Providing Just
Compensation (PA06-6301, Strickland).
22. ORDER 07-1-23-19/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6307, Bowers2).
23. ORDER 07-1-23-20/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6315, Williams).
24. ORDER 07-1-23-21/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6316, Garvin).
25. ORDER 07-1-23-22/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6344, Jones).
26. ORDER 07-1-23-23/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6348, Dilley).
27. ORDER 07-1-23-24/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-5051, Masters).
28. ORDER 07-1-23-25/In
the Matter of Considering a Ballot Measure 37 Claim and Deciding Whether to
Modify, Remove or Not Apply Restrictive Land Use Regulations in Lieu of
Providing Just Compensation (PA06-6176, Hansen).
MOTION: to adopt the balance of the Measure 37 claims and accept the
recommendations of staff for numbers 5 through 28 with the issues so noted on
the sheet.
Green MOVED, Dwyer
SECONDED.
Green said they
tried to set this up so they could expedite some of the hearings. He said they had taken care of the three
that were in question based upon the evidence.
He indicated there were some issues remaining but it would be nothing
that would keep them from adopting the balance. He noted in the past they have adopted many of the Measure 37
claims based on the same recommendations and consistent criteria.
Dwyer commented that
the Hinnenkamp claim is not accepting the interpretation of the state. He said if they go with the recommendations
they will become a defendant in any action against the state. He asked how they should act.
Vorhes explained
that it is unclear where the Hinnenkamp case would come out in circuit
court. He said if they get pulled in,
they would need to provide the record but what participation the County would
be involved in could range from a costly defense to a limited monitoring of the
defense that the state is making on the same issue around the ownership interest
of a contract seller under Measure 37.
He said the ultimate authority to pay compensation and waive still rests
with the Board of Commissioners when it relates to County regulations.
Sorenson stated the
inclusion of the Hinnenkamp claim is problematic for him. He said they heard commentary from Mr.
Stevens for the date of acquisition and the fact it is a land sales contract,
the sellers and their rights are not protected under Measure 37.
Fleenor asked what
the difference was between the Hinnenkamp and Garvin cases with respect to the
waiver and setting precedent.
Vorhes explained
that the analysis in the Garvin case is that the two dates relate to the issue
of compensation date and waiver date.
He said the acquisition by the family occurred in earlier times and they
had held an ownership interest in the property since that time. He added as to the present owner to which a
waiver would go, the acquisition date is 1999.
He said that sets up different owners and different acquisition dates
than the Hinnenkamp, but the analysis is the same in that in the Hinnenkamp
case the family acquisition was early but then the family ownership stopped
when the land sales contract was entered into.
The ownership by Hinnenkamp was reacquired when the land sale contract
was foreclosed and that becomes the acquisition date for the compensation and
for the purposes of the waiver.
Dwyer wanted to
accept staff’s recommendation with the exception of Garvin, Hinnenkamp and
Worthylake.
Green amended his
motion.
Dwyer seconded the
amended motion.
Sorenson asked about
the Hanson claim. He said there was an
issue regarding two other tax lots.
Vorhes said the
proposed order only speaks to tax lots 300 and 500 for purposes of analysis for
compensation and for the waiver and recommends approving the waiver for those
two tax lots only.
VOTE: 5-0.
Vorhes indicated the
motion skipped over number 4. He asked
how the Board wanted to vote for the portion of the claim that was valid.
MOTION: to approve
ORDER 07-1-23-1.
Dwyer MOVED, Green
SECONDED.
VOTE: 5-0.
With regard to
Hinnenkamp, Sorenson said they should deny the application because of the land
sales contract issue that is separate from the acquisition date issue.
MOTION: to deny ORDER 07-1-23-6.
Sorenson MOVED,
Dwyer SECONDED.
Sorenson wanted to
keep it clear that they were denying the claim.
Green didn’t support
the motion. He wanted the argument
around the date versus the denial of the claim.
Dwyer concurred that
the 1979 date runs some risk. He said
the state concluded that there was a break and there was a land sales contract
that created a break. He stated that
Hinnenkamp alleges that no money changed places from 1967 to 1979 which he
thought was possible, but not practical.
He didn’t support the motion because he said there is no doubt that
Hinnenkamp owns the land, the only question is the chain of ownership from 1967
to present or from 1979 to present. He
said the state chose 1979. He said the
Hinnenkamps have a suit against the state and if they take the same position
they will become part of that. He said
the state had made the decision based on the reasonableness of their doubts
that they can come to the same conclusion.
Fleenor asked
if there was a possibility that
Hinnenkamp would provide them with an extension of the 180 days that would
allow the state to work the case through so then they could make a
determination after the state has rendered its decision.
Vorhes indicated
they were past the 180 days. He said they could ask if there was a willingness
on behalf of the claimant to waive the 180 days to allow the state’s position
to be litigated in this claim. He
didn’t know what the outcome of the question would lead to and if they would
agree to that type of extension.
Stewart commented
that the state had already said the date was 1979 and they are defending
it. He said if they lose and Lane
County is a party that they will lose too.
He said if they accept the claim to 1967 and the court comes back to
1979, they hadn’t lost anything and the waiver would only be good to 1979. He didn’t think Lane County should be a
party to it.
Fleenor thought
Hinnenkamp and Garvin were similar with precedent.
Vorhes explained
there are factual differences between Hinnenkamp and Garvin. He said in Hinnenkamp there was a seller who
reacquired an ownership interest in the property. He added there is the concept that if the basis for granting a
waiver is their conclusion around the ownership interest of a land sales
contract, then the seller is sufficient for purposes of a Measure 37 claim to
get a waiver or compensation, they will see the issue come up in other similar situations
where an interest could be alleged and an indication of some ownership may
continue. He said they might face it in
other cases where there is a land sales contract. He said the question becomes what (if any) ownership interest
under Measure 37 does the contract seller have. He said in the Garvin case, those were actually deeds from one
party to another party so there was no land sales contract. He said he could review this case and
explore the risk in the different courses of action.
Sorenson suggested
taking a vote on the motion and if it is denied, to direct staff to contact the
applicants and ask them if they would waive the 180 day period until 60 days
after the state issues its ruling and staff could report back.
VOTE: 1-4 (Dwyer, Green, Fleenor, Stewart
dissenting) MOTION FAILED.
MOTION: to have staff contact Hinnenkamp or his
representative to see if they would be willing to waive the 180 day time period
and dispose of it after the state rules.
Sorenson MOVED,
Fleenor SECONDED.
VOTE: 5-0.
Dwyer thought they
should approve the Worthylake claim as it meets with the intent of the ballot
measure. He wanted to keep with the
spirit of Ballot Measure 37.
MOTION: to approve ORDER 07-1-23-14 to waive
back to 1976.
Dwyer MOVED, Green
SECONDED.
Sorenson said they
didn’t know why the transfer took place.
He thought he should get the waiver to 2005, not 1971.
Dwyer commented that
Measure 37 discusses family and family members. He indicated that Worthylake quitclaimed the deed to his daughter
and that was in the spirit of Measure 37.
Green agreed with
Dwyer that given the land use laws, that 2005 was too restrictive. He thought going back to 1971 gives them
more options.
Vorhes said the 1971
date is the date the parents acquired an interest in the property. He indicated Worthylake acquired an interest
in 1976 and he deeded it to another family member. He said if they are going to waive back, there is a distinction
between 1971 and 1976. He said in 1976
Terry and Beverly Worthylake acquired the property from his parents.
Dwyer wanted to
amend the motion to go back to 1976,
taking care of part of the risk.
Vorhes asked for
direction in the future on claim analysis.
He indicted this is a different way of approaching a claim than what
they had been recommending.
Green said if they
are going to be consistent, they need to keep it correct. He agreed about the
intent of the claim but he wanted to be consistent.
Fleenor said he had
compassion for the Worthylake situation but he didn’t want to set a precedent
that could be misused as they move forward.
He didn’t support the motion.
Dwyer said the real
intent of Ballot Measure 37 was to help people like Worthylake. He said he would again be deprived of being
able to use his property in a way and a manner that he was able to do when he
acquired it.
Green asked the
agenda team to schedule time with Floyd Prozanski to discuss why this law is
being complicated by the unintended consequences. He said for future claims they have to give Vorhes
direction. He wanted the legislative
committee to work with Prozanski on how the measure could be flawed.
Dwyer thought they
could be sued by Worthylake and if he prevailed the County could be sued and
have to pay legal fees.
Vorhes said there
have been cases that have drawn the distinction between acquisition for
purposes of compensation and acquisition for purposes of waiver. He thought the risk was lower, but they
could sue.
Stewart hoped in the
land use process there would be the opportunity for Worthylake to rezone this
from F1 to F2 to accommodate a home.
VOTE: 1–4 (Green, Stewart, Fleenor, Sorenson) MOTION FAILED.
MOTION: to approve
ORDER 07-1-23-14 to 2005.
Green MOVED, Fleenor
SECONDED.
VOTE: 4-1 (Dwyer dissenting).
Sorenson asked if the
Garvin claim was a land sale contract.
Vorhes responded that it transfers within the
family similar to the Worthylake claim.
He said in Garvin there were warranty deeds. He said the current owner had it and then conveyed to Robert
Garvin, Sr., and Robert Garvin, Sr.,
conveyed it back to Robert, Jr. and Amy (the present owners) in August
of 1999. He said the date of waiver and the testimony given went back further
than was identified in the staff report.
He said it was 1948 when the family acquired interest in the property. He added it was conveyed among family
members. He commented that the present
owners acquired the property in 1999 and that is the recommendation of the
waiver date. He said part of the issue
is similar to the Worthylake, if there is a previous ownership that conveyed
out and then it is conveyed back, if that break in the ownership creates a new
acquisition date for purposes of the measure.
He said their analysis is that it does.
He said the waiver language speaks to waiving to allow the owner to use the
property for a use permitted at the time the owner acquired the property.
Fleenor asked if previous Measure 37 hearings
had similar situations.
Vorhes replied they had family member
conveyances where they had gone to the most recent conveyance date as the
waiver date for purposes of compensation
He recommended the waiver to only the most recent acquisition date.
MOTION: to move approval of the staff recommendation to 1999 for ORDER 07-1-23-21.
Green MOVED, Fleenor
SECONDED.
Green commented that this stayed in the
family and is consistent with what they had just done previously. He said they are treating all of these that
fall under this category the same.
Dwyer thought they should be doing something
different and they are doing something consistently wrong. He said they are not talking about a large
land subdivision, they are talking about the true intent of Ballot Measure 37
and why so many people voted the way they did.
VOTE: 4-1 (Dwyer dissenting).
Dwyer requested to find out how many claims
there are that involve a transfer within the family and not to a limited
liability.
Fleenor thought the procedure worked well but
he wanted to systematically take public comment starting with one to the
end. He said it was difficult for him to
stay focused.
Van Vactor suggested taking one batch at 9:00
a.m. and a batch at 1:30 p.m. and send notices for morning or afternoon.
Sorenson recommended hearing each claim
separate every ten minutes.
Green thought the process went well for the
first time.
Stewart agreed to take half of the claims in
the morning and half in the afternoon.
He said to put an individual time on each claim couldn’t feasibly work.
He wanted the flexibility to spend more time on a claim.
Fleenor wanted a sign up sheet per claim so
they could sequence the public easier.
Sorenson wanted to take these in order of
claim, not in order of the witness.
Van Vactor suggested taking the sign up sheet
by the claim in sequence to see how it works for the February 13 meeting.
Stewart said they would take testimony by
claim until it is completed.
Vorhes suggested having a form to clearly ask
what claim they are speaking on. He
noted the Board has had hearings on several items in the past with a separate
sign up sheet and people don’t always sign up for the one they think they are
supposed to sign up for. He added they
would come up with a better score sheet.
Van Vactor asked if the Board wanted Steve
Hopkins to go through the existing claims to see how many have the family
member connection. He asked what impact
that would have on the department.
Howe said because it is written in the record
of each claim, it would require going through 300 claims to identify whether it
was a transfer within the family or not.
He said they could do it.
Stewart was willing to have the department
review the claims.
Sorenson was in favor of doing it as they
have learned a lot since they adopted their initial Measure 37 claim.
Howe said it was a workload issue. He asked
if they could do this in July.
Green did not agree with that.
Howe didn’t know where they would get
additional labor resources.
Van Vactor said he would meet with Howe, Jeff
Towery and Vorhes to see if they could develop something. He didn’t want to interfere with anyone’s
work load.
F. COMMISSIONERS'
ANNOUNCEMENTS
Dwyer announced that he wouldn’t be present at the Human Rights Meeting
as he has a Riverstone Meeting. He
added that Sorenson won’t be present.
Sorenson announced that he would be involved with the Energy Forum in
Harris Hall.
Green distributed information about justice and public safety around
parole and probation. He stated that
Cottage Grove was awarded host to the National Triathlon in July 2007 and 2008.
G. COMMISSIONERS'
BUSINESS
ORDER 07-1-23-26 Designating Interim Signature Authority for the Lane County Fairgrounds
Stewart indicated they had two more resignations from the Fair
Board. He said Warren Wong, Director, needs
a second person to sign checks. He said
it had been brought to his attention that this Board could direct Van Vactor to
do that.
MOTION: to authorize Bill Van Vactor to co-sign checks so they could facilitate
the every day operations of the Fairgrounds until they sort this out .
Dwyer MOVED, Fleenor SECONDED.
VOTE : 5-0.
H. EMERGENCY
BUSINESS
None.
There being no
further business, Commissioner Stewart adjourned the meeting at 3:00 p.m.
Melissa Zimmer
Recording Secretary