Grant County Court minutes from March 7, 2018:

Pursuant to notice made to the newspaper of general circulation throughout Grant County, the radio station, county website, and e-mail distribution list, a special meeting of the County Court was held at the County Courthouse in Canyon City, OR.

10:50 am -- Call to Order. Present were Judge Scott W. Myers, Commissioners Jim Hamsher and Boyd Britton, Administrative Assistant Laurie Wright, Planning Director Hilary McNary, Planning Assistant Shannon Springer, Judy Kerr, Ken Holliday, Shaun Robertson, Rick Henslee and Art Brenner. A Pledge of Allegiance was given to the United States Flag. The invocation was given by Commissioner Britton.

AGENDA. MSP: Myers/Hamsher -- to accept the agenda as presented.

MINUTES. MSP: Myers/Hamsher -- to approve the February 21st minutes as presented.

11:02 am Patrick Knight and Tim Rynearson entered.

PLANNING DEPARTMENT HEARING. Judge Myers opened the public hearing at 11:03 am. Planning Director Hilary McNary offered to conduct the hearing and asked those in attendance to introduce themselves.

McNary advised there is a quorum of the governing body in attendance and summarized the application received from the Oregon Department of Transportation (ODOT) to establish a significant aggregate site. McNary asked if any member of the court had a conflict or any ex parte contact. Myers said the only contact he had was with Mr. Brenner this morning in which he told him where the County Courtroom was located, but that was all. Britton reported he was a member of the Southeast Area Commission on Transportation (SEACT), but had no conflict. All court members reported they have no conflicts of interest in this matter. McNary summarized the request from ODOT and the statutes and administrative rules that are applicable. This application was reviewed on two separate dates by the Planning Commission in which public testimony was taken and it was moved, seconded and passed unanimously to forward the application to the County Court. Several criteria related to the quality and quantity of aggregate had to be met for this site to be deemed a significant aggregate site and McNary explained these and said the site met the necessary criteria. McNary discussed three levels of protection for the aggregate site against uses that could conflict with mining or operation of the site. The potential conflicting uses were identified as dwelling uses and recreational uses. She discussed the different levels of protection the Planning Commission considered. McNary read the requirements of the level of protection selected by the Planning Commission and the Planning Commission recommendation to the Court and audience. Commissioner Hamsher asked what the current criteria are in the area for establishment of dwellings. McNary explained the current criteria in the underlying Primary Forest Zone.

McNary opened the floor to testimony:

Proponent testimony: Patrick Knight of ODOT said McNary has done a good job of explaining their position so far. He expressed his willingness to answer any questions.

Opponent testimony: Art Brenner opposes this application and said he owns the land around the rock pit site and if this ordinance passes he will have no rights to his land and feels that if this were an emergency the proper applications would have been filed prior to this. Hamsher asked how long Brenner had owned the property. Brenner stated since 2005 and he currently owns 871 acres in the area. Rick Henslee spoke in opposition to the application and said there is no need for this site. Henslee said two miles from this site the State has another site. He urged the Court to deny the application or send it back to the Planning Commission for further review. Ken Holliday asked what this process was going to be called (adverse possession, condemnation, etc?). Britton said the process for ODOT to acquire the rock pit site was already completed and it was a condemnation action. Judy Kerr asked if research was ever conducted on the effect to the Dale water supply. McNary said in the previous application from 2016 concerns regarding the water supply were discussed and ODOT advised they would monitor the site before and after blasting if requested and if there was any disruption in the water supply they would do whatever was necessary to keep the water flowing. Ken Holliday spoke in opposition to the application. Holliday wanted to know what benefit ODOT would receive from owning this site. Knight said the location of the site was one benefit.

Neutral testimony: Shaun Robertson wished to speak about three different portions of this application. The first was Goal 5 which pertains to significant resource use and expressed his concern that this could be applied to other natural resources in which landowners rights could be reduced or terminated. Robertson’s second concern was regarding statements contained within the report submitted by the Planning Commission. Robertson advised he is not impugning the Planning Department or Commission because this is a very complicated issue they are trying to interpret and define. Robertson pointed out some items in the report that he believes need further clarification. The last item Robertson wanted to bring up was to remind the court about past conversations the Court has held with regard to possible ordinances related to eminent domain or condemnation of private property, loss of private property from the tax rolls and limitations of private property rights related to requested land uses within the County.. Robertson believes it is extremely important for the Court to have documents to use as guidance for discussions such as this.

Hamsher asked the ODOT representatives what the benefit was to the State to condemn this property rather than lease it or if this was the only option. McNary advised there will be time at the end of the hearing for discussion and questions and asked for proponent/opponent rebuttal.

Proponent rebuttal: Knight said ODOT has done everything necessary within the law to obtain this site and the cost of the aggregate is much less when the State owns a site. Tim Rynearson of ODOT advised they typically prefer to own their sites so they can provide sites to private contractors for their use. This allows for more competitive bids from contractors from out of the local area. Rynearson summarized ODOT’s position on why they wished to own their own aggregate sites.

Opponent rebuttal: Brenner said he thinks ODOT can apply for a conditional use permit rather than take over his land. Henslee asked the Court to stand between the State and private property owners and said no more private property needs to be taken off the tax rolls.

Neutral rebuttal: Robertson stated he understands ODOT’s position, but the biggest issue he sees is the loss of private property use and private benefit.

McNary called for summation from each party:

Knight of ODOT said they have followed all the requirements of law to apply for this application and this site is necessary to maintain Highway 395 and other local highways.

Art Brenner advised ODOT doesn’t care about landowners and ODOT isn’t going to allow anything to be built there including a hunting camp. Brenner doesn’t believe what they say unless it’s in writing. Henslee feels an ordinance needs to be put into place to protect landowner’s rights in cases such as this. Robertson also urged the Court to take their time and deliberate this issue more fully.

Ken Holliday believes this is a procedural issue and wants to know why this is before the Court now instead of when the condemnation occurred. Hamsher said Holliday brought up a good point and also advised he believes these issues should come before the Court early on. Hamsher explained his position and that he thinks landowners should be able to have the same uses as they would normally. McNary told the Court she discussed the different options for the level of protection of the aggregate site with the aggregate specialist at DLCD and based upon their recommendation she reported back to the Planning Commission. She said the Court could make the decision to send this back to the Planning Commission for further research and review. Britton asked why the State didn’t think about entering into leases for aggregate sites like the County does. Knight said he isn’t involved in those decisions so he can’t provide an answer to that. Britton suggested ODOT be more transparent and keep the County Court more informed. Knight stated ODOT has gotten away from conditional use permits and focuses on having Goal 5 Significant Site designation on its own aggregate sites. Hamsher expressed his opinion that the State did not pay Mr. Brenner a fair amount for the original condemnation based on the value of the rock and he would like to see something in writing protecting Brenner’s rights. Robertson said Grant County has always been a leader in this State and the Court should not be afraid to select an option for a level of protection for the aggregate site that no one has done before. He also urged the Court to begin working on a new ordinance to guide or govern proposed land uses requested within the County. Hamsher asked if all of today’s concerns were brought up at the Planning Commission hearings and McNary said they were. McNary told the Court they had the authority that the Planning Commission does not, to hire a land use attorney to review and present a defensible designation for a 5c level of protection for the aggregate site different than what other sites have been granted. MSP: Myers/Hamsher – to close the hearing and move forward with deliberations. The hearing was closed at 12:37 pm.

Judge Myers said the Court members are obligated to represent the citizens of Grant County and because it appears that other sites are available near to this one there doesn’t seem to be anything special about this particular site. Hamsher agreed with Myers.

MSP: Hamsher/Myers -- to send this application back to the Planning Commission with specific instructions to attempt to justify a 5C designation and to authorize the Planning Department staff to utilize legal counsel.

Shaun Robertson suggested a Court member meet with ODOT to discuss the possibility of developing an easement that may solve the issues without going through this process over and over. Hamsher also agreed that an easement might be a good solution.

12:50 pm -- Adjourned.

Respectfully Submitted,

Laurie Wright

Administrative Assistant

**** Please note the court minutes are a summary of the court proceedings. An audio recording of each court session is available, after approval of the minutes, by contacting Laurie Wright at 541-575-0059 or ****

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