November 1, 2006

7:00 p.m.

Harris Hall Main Floor



 Commissioner Bill Dwyer presided with Commissioners Bobby Green, Sr., Anna Morrison, Peter Sorenson and Faye Stewart present.  Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.


Mayor Kitty Piercy presided for the meeting of the Eugene City Council with Councilors Bonny Bettman, David Kelly, Andrea Ortiz, Gary Pape, George Poling, Chris Pryor, Jennifer Solomon and Betty Taylor present.




a.         SECOND READING AND JOINT PUBLIC HEARING WITH CITY OF EUGENE/Ordinance No. PA 1238/In the Matter of Amending the Eugene/Springfield Metropolitan Area General Plan (Metro Plan) to Revise the Goal 5 Significant Mineral and Aggregate Resources Inventory, Redesignate From ďAgricultureĒ to ďSand & GravelĒ; Rezone From ďE30/Exclusive Farm Use ZoneĒ to ďSG/Sand, Gravel & Rock Products ZoneĒ and Allow Mining on 72.31 Acres of Land Pursuant to the Goal 5 Oregon Administrative Rules (OAR 660-023); and Adopting Savings and Severability Clauses (File Pa 05-6151; Delta Property Co.) (NBA & PM 10/18/06).


            Dwyer stated the purpose of the meeting is to consider and provide an opportunity for all parties to comment on the request for a Metro Plan amendment that affects 72.3 acres of land and would change the plan designation from agriculture to sand and gravel and rezone that land from exclusive farm use to sand and gravel and rock products for future mining of the expansion area.  He said because this application is for property that is located within the Eugene Springfield Metro Plan boundary, both the Eugene City Council and the Lane County Board of Commissioners are required to take action on the proposal.  He added because this application involves both a Metro Plan amendment and a rezoning, the de novo hearing procedures for the rezoning would be used to allow new testimony and evidence on the entire application.  He stated that all persons wanting to speak on the matter should sign up tonight to ensure their place in testimony.  He indicated that the sign up sheets would not be available at future meetings for additional people to sign up.  He noted that written testimony or evidence might be submitted until the record is closed.


            Dwyer asked if any of the Lane County Board of Commissioners or Eugene City Council had any ex parte contacts.


            Pape reported that he attended neighborhood meetings in the Santa Clara community.  He recalled there were discussions but none that were substantive.  He spoke with Mike Alltucker, President of Eugene Sand and Gravel, and Alltucker asked if he was going to be at this meeting.  Pape indicated he couldnít discuss any substantive issues with Alltucker.


            Sorenson announced that in conjunction with some political matters, he had a meeting with Kay Toolson.  Toolson wanted Sorenson to know that Delta was a good employer in the community.


            Dwyer received e-mails and letters from employees who might be affected by the change.  He received a letter from Kay Toolson of Monaco but he said none of the letters or e-mails would affect his decision.


            Mayor Piercy noted that the city councilors received a lot of e-mails and communications and they passed those on to be put into the record without taking them into consideration.  She said they were letting people know that was what they were doing.


            Dwyer asked if anyone wanted to respond to the ex parte disclosures or challenge any board member or city councilor hearing this matter due to bias or a conflict of interest.


            Doug DuPriest, Attorney, stated he represented Joel and Terese Narvo.  He raised a point of order about how the hearing was conducted.  DuPriest indicated that the city council and board would intend to take evidence.  He asked to address that issue for five minutes.  He said it affects whether they are supposed to take evidence at this hearing.  He thought this was an appropriate time to discuss the issue.  He informed Kent Howe, Land Management, prior to the hearing, that he intended to ask for this.


            Dwyer thought the appropriate time would be after Howe and Vorhes give their comments.


            Dwyer opened the meeting for the Lane County Board of Commissioners.


            Mayor Piercy opened the meeting for the Eugene City Council.


            Kent Howe, Land Management, explained there is substantial and significant difference in this type of an application than what most applications are in the County or the Eugene City Council reviews.  He said this was not an application that would be used to site an industrial use in an area that has residential areas around it.  He stated it was a rigorous application of Oregon Administrative Rule requirements regarding a non-renewable resource.  He indicated that it is a post acknowledgement plan amendment process governed by an administrative rule for mineral and aggregate.  He noted in this situation they have a non-renewable resource: sand and gravel and there is a process to determine whether it is significant or not.  He said if it is significant, the same type of application of the state protection measures go into play to protect the site and to allow the extraction of the resource.


            Howe indicated the process under the Goal 5 Rule is a six-step process.  He noted the first step constitutes a completeness check for a post acknowledgement plan amendment.  He said they had done that and they have a complete application.  He indicated that Step 2 is to determine if the resource site is significant.  He stated in determining the significance of the resource site, an aggregate site is considered significant if adequate information regarding the quantity and quality and location of the site demonstrates that it meets any one of the following criteria:  whether the rock meets the ODOT specifications for base rock and the estimated amount of material is more than 2 million tons. He added not more than 35 percent of the proposed mining area could consist of Class 1 and 2 soils unless the average width of the aggregate layer within the mining area exceeds 60 feet.


            Howe explained that after they determine whether it is a significant site or not, they determine if the conflicts from mining could be minimized.  He indicated the impact area must be defined and the impact area is limited to 1500 feet from the boundaries of the mining area except where factual information indicates substantial conflicts beyond this distance.  He added that existing uses within the impact area must be identified.  He said potential conflicts from the proposed mining on the existing uses must be identified.  He said the potential conflicts must be evaluated to determine whether they could be minimized.  He stated if it is determined that there are no conflicts, or that conflicts could be minimized, then mining shall be allowed at the site and then proceed to Step 5.  He said if it is determined that there are conflicts that could not be minimized, they would proceed to Step 4.


            Howe noted that Step 4 weighs the ESEE consequences if the conflicts have not been minimized.  He said that would be up to the elected officials whether the facts in the application are demonstrating that the conflicts that have been identified have been minimized or not.


            Howe stated Step 5 is the step where the ESEE consequences are analyzed on the potential new conflicting uses within the impact area. He said if a site is determined to be significant and the conflicts are minimized, in Step 5 they look at the surrounding uses that could happen in the future that might impact the sand and aggregate site.  He said through the ESEE evaluation of those potential impacts from surrounding uses, it will have to be determined whether to prohibit, limit or outright permit those conflicting uses.


            Howe said Step 6 is developing a program to allow the mining.  He indicated that once the elected officials have decided whether it is appropriate to add this site to the inventory in the Metro Plan for sand and gravel designation, then the Board of Commissioners only will determine the rezoning conformity with the Lane County Sand and Gravel Rocks Product Zone.  He said that is how the rule will be implemented that will allow the extraction of the aggregate at the site consistent with the statewide goals and the Lane County and Metro Plan requirements.


            Stephanie Schulz, Land Management, reported that the subject property is 72.31 acres located within the Eugene Springfield Metropolitan Plan Boundary outside the Eugene Urban Growth Boundary, north of Beltline Road, west of the Willamette River , in Township 17, Range 4, and Section 12.  She noted the criteria for a post acknowledgment plan amendment is found on page 4 and 5 of the staff report. (Copy in file).  She said the proposal must be found to be consistent with statewide planning goals and must keep the Metro Plan internally consistent and it must address the Goal 5 Mineral and Aggregate Rule for expanding an existing site.


            Schulz explained that the record in this matter would consist of the application and any supporting information, staff reports and supporting documents. She added that any material now listed in the staffís application file is being included in the record. She said that testimony and evidence offered at the hearing must be directed toward the criteria listed in the notice or to other criteria in the plan or land use regulations that the person believes applied to a decision on the application.  She noted that evidence admissible at this hearing would be that which is commonly relied upon by persons of reasonable prudence conducting their own affairs.  She said the burden of proof in this matter with regard to each particular factor position lies with the person who is proposing the position.  She said the general burden to support the application lies with the applicant and the hearing is being recorded on tape.


            Schulz reported that the Lane County and City of Eugene Planning Commissions conducted a public hearing over two nights: November 15, 2005 and January 17, 2006.  She noted the record remained open for the submittal of additional materials until March 31, 2006.  She added in joint public meetings held on July 25 and August 30, 2006, the planning commissions deliberated on the application and testimony to come to their recommendation.  She stated that both planning commissions are recommending denial for the reasons set forth under each step of the Goal 5 analysis process described in the staff memo to the ordinance and in the meeting minutes that are attached to the packet.


            Schulz noted in Step 1 adequacy of the information (page 6 of the staff report), the Lane County Planning Commission voted 4-2 and the Eugene Planning Commission found unanimously that there was adequate information submitted in the PAPA application.


            With Step 2, significance of the resources, (page 7 and 8 of the staff report) Schulz noted the determination of significance was tested on two criteria: quantity and quality.  She said both planning commissions agreed there was sufficient quantity to meet the significance criteria.  She noted the Lane County Planning Commission voted 4-2 that the sampling method for the quality analysis of the aggregate was inadequate to fully determine whether the resource met the second criteria.  She noted the Eugene Planning Commission voted 3-2 that the applicant demonstrated there is a significant mineral and aggregate resource at the site under both quality and quantity criteria.


            With Step 3, minimizing conflicts (page 8 of the staff report) Schulz said on the extent of the impacts and identified conflicts (pages 8 to 12 of the staff report), the planning commissions considered each conflict type, reviewing the extent of impact and the proposed minimization conditions for each conflict identified under Goal 5.  She noted that Exhibit C to the ordinance has the conditions proposed for inclusion in the plan to allow mining (if approved) that would ensure conformance with applicable local state or federal standards.  She said that both planning commissions found that none of the conflicts extend beyond the 1,500-foot minimum impact area as measured from the perimeter of the expansion site.  She indicated that both planning commissions found there were conflicts with noise, dust, groundwater, wetlands and sensitive habitat and agricultural practices.  She stated the Lane County Planning Commission additionally identified a conflict with flooding.


            Schulz explained that under the minimization of each of the identified conflicts, noise is addressed by the DEQ (page 12 of the staff report) noise regulations of OAR 340-35-035.  She noted that both planning commissions found unanimously that there is a conflict due to noise and that the noise conflict could be minimized to a level that meets the state DEQ standard.  She reported the Lane County Planning Commission vote was 3-2 with one abstention and the Eugene Planning Commission voted 3-2.


            With regard to dust conflicts (page 12 and 13 of the staff report); Schulz indicated they are addressed by DEQ emission standards applied by the Lane Regional Air Pollution Authority through their air contaminant discharge permit.  She said both of the planning commissions found unanimously that there is conflict due to dust that could not be minimized to a level that meets the DEQ admission standards applied by LRAPA.  She noted the Lane County Planning Commissionís vote was 3-2 with one abstention and the Eugene Planning Commission voted 3-2.


            Schulz noted on page 13 of the staff report with regard to flooding conflicts, the Lane County flood hazard requirements are found in Lane Code Section 16.244, the Floodplain Combining Zone. She indicated the Lane County Planning Commission voted 5-1 that there was a conflict due to flooding and they voted 4-2 that the conflict could not be minimized to meet the FEMA standard.  She noted the Eugene Planning Commission voted 3-2 that there was not a conflict due to flooding.


            With regard to the wetlands conflict, (page 13 of the staff report) Schulz indicated the wetlands protection criteria is generally addressed by a Division of State Lands fill removal permit requirement of OAR 141-85.  She reported that conflicts are likely to be minimized by demonstrating conformance with the DSL requirements.  She indicated that both planning commissions found a conflict to wetlands and Lane County ís vote was 4-2 and Eugene ís was 3-2.  She noted the Lane County Planning Commission voted 2-4 that impacts to wetlands could not be minimized.  She said the Eugene Planning Commission voted unanimously that conflicts with wetlands could be fully minimized.


            With regard to groundwater conflicts (page 14 of the staff report) Schulz indicated they are not addressed by any local, state or federal standards when developing a program to allow mining.  She added that coordination occurs between the Department of Oregon Geology and Mineral Industry (DOGAMI) as part of the interjurisdictional review in concurrence with the Oregon Water Resources Department. She added that the Mining Plan requires DOGAMI approval.  She said the applicant proposes to minimize the conflict with neighboring wells by completing a below grade low permeability barrier (also called an aquaclude) along the edge of the expansion area to impede the flow of groundwater into the pit that would be created by excavation of the site.  She stated that both planning commissions found unanimously that there was a conflict due to groundwater.  She added the low permeability barrier is proposed as mitigation and the applicant should map this specific proposed location for the low permeability barrier.  She said the Lane County Planning Commission voted 4-2 that the aquaclude would not minimize the conflict with groundwater to an adequate level.  She noted the Eugene Planning Commission found unanimously that the aquaclude would minimize conflicts with groundwater to an adequate level.


            For agricultural conflicts, (page 15 of the staff report) Schulz reported that minimization of conflicts with agriculture practices must be reviewed under the provisions of Oregon Revised Statutes number 215.296(1) to determine that the use will not either force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use or significantly increase the cost of accepted farm or forest practices on surrounding lands.  She noted that both planning commissions found that there was a conflict with agricultural practices.  She stated the Lane County Planning Commission vote was 4-2 and the Eugene Planning Commission was 3-2. She said the Eugene Planning Commission voted unanimously that the conflicts with agriculture practices could be minimized to a level that does not force a significant change in accepted farm use nor increase the cost to conduct farming significantly.  She noted the Lane County Planning Commission voted 4-2 that the conflicts with agricultural practices could not be minimized to a level that does not force a significant change.


            With regard to weighing the ESEE analysis, Schulz reported the joint planning commissions found adverse affects within the impact area.  She said they agreed that conflict due to dust was one conflict that could not be reduced below a significant level.  She stated in addition to dust, the Lane County Planning Commission found that conflicts could not be minimized for groundwater, wetlands and flooding.  She said depending upon the evidence provided in this proceeding with the elected officials, they would need to determine whether or not these impacts have been minimized.  She said if they had not, they might request that the applicant prepare an ESEE analysis in accordance with this section of the rule.


            Schulz said Step 5 is determining the consequences of new uses.  She noted no potential new uses were identified in the impact area by the planning commissions.  She said the site is adjacent to existing sand and gravel extraction and developed residential and agricultural zone property.  She reported they found there was no need for an ESEE analysis of potential new uses.


            With regard to Step 6 of the plan to allow mining, (page 16 to 20 of the staff report) Schulz said the Delta expansion site is outside of the metro urban growth boundary and Lane Code Chapter 16 zoning applies.  She explained the rezoning decision and the variance to Lane Code provisions falls to the Lane County Board of Commissioners for decision.  She indicated that the complete recommendations are on page 22 of the staff report.


            Kelly noted that at each of their seats was a packet of material from various people. He asked why it was placed there and what it was.


            Howe responded that the applicant placed those at their seats before the meeting started.


            Schulz distributed the materials that had come into the public record.


            Mayor Piercy opened the Public Hearing for the Eugene City Council.


            Commissioner Dwyer opened the Public Hearing for the Lane County Board of Commissioners.


            DuPriest asked if he could raise a procedural objection.


            Vorhes reported this related to the steps that were described.  He noted what would be done here through the Goal 5 mineral and aggregate rule gets to a decision on whether to allow mining.  He added the program that will implement that rule is through the rezoning decision that the Board of Commissioners will make.  He said the analysis of the Goal 5 Rule drives these bodies to speak to the rezoning and that is a de novo process that is driving this proceeding.


            DuPriest commented that this is an elaborate Goal 5 process and it is more complicated because of the two jurisdictions.  He noted in the Metro Plan there are provisions to discuss what happens on Metro Plan amendments and the need to hold joint hearings.  He reviewed the Metro Plan and the Eugene Code to figure out the appropriate process.  He said the City of Eugene and Lane County have two kinds of decisions to be made, a Comprehensive Plan amendment and a zone change.  He noted the Eugene Code said the governing bodyís decisions shall be based solely on the evidentiary record created before the planning commissions, no new evidence shall be allowed at the governing body joint hearing.  He understood this was a governing body joint hearing on the Comprehensive Plan amendment.  He reviewed Lane Code and it had the identical provision.  He said the plan amendment is to be based solely on the evidentiary record created before the planning commissions and no new evidence allowed at the governing body joint hearing.  He raised this issue by letter to Lane County and the response was they believed evidence was allowed on the zoning side.  He thought there was an easy way to solve any conflict between the planning and zoning process, to deal with the plan amendment first and if the plan amendment is approved, they could open the hearing up for new evidence and decide on the zoning.  He didnít think the record would be closed or a decision made tonight.  His request to the Eugene City Council and the Board of Commissioners is to take each of the processes in turn:  the plan amendment first, then use the procedure set for the plan amendment and when they get to the zone change, do the procedure for the zone change.


            DuPriest said he found in Lane Code Chapter 14 a section that says where a zone change is combined with a plan amendment, to follow the procedures of Chapter 12 and 14 for a plan amendment.  He said that Chapter 12 says no new evidence is allowed at the governing body joint hearing.  He said on the Lane County side there is not supposed to be any new evidence at the Comprehensive Plan amendment joint hearing, but it seemed to him that no new evidence had come in on the zoning.  With regard to the city zone change, he crossed it out based on what he heard planning director Howe say in his introductory remarks, that if the plan amendments are approved jointly, the Metro Plan is changed to allow the use, then the County regulations apply and it will be Lane County doing the zoning and they donít have to look at the city code provision on how the zoning is to be done, as it is a Lane County function.  He said the procedure in the Eugene Code for rezoning and whether they take evidence or not is irrelevant.  His request is to treat the plan amendment as an on the record hearing and when Lane County does zoning, then counsel could advise on whether there is new evidence to be brought in.


            Vorhes explained what were not pointed out were the portions of Lane Code Chapter 14 that provide for a de novo hearing on the rezoning.  He said the Goal 5 Mineral and Aggregate Rule and the process that governs it supercedes the Metro Plan and the rezoning process.  He noted the combination of steps that are included in the Goal 5 Mineral and Aggregate Rule includes developing a program to allow mining and there is a role that the city council and the Board play in the development of the mining program, through the resolution of conflicts and analysis.  He thought they were intertwined and it made sense to hold the hearings together, take new evidence, let everyone respond and provide whatever evidence they think is relevant to the application and proceed in that fashion.  He stated that ultimately it is a decision for each body to make.


            Dwyer indicated the Board had made a decision and if they were going to err, they would err on openness and inclusion and not by bifurcating the procedures.


            Kurt Yeiter, Eugene Planning, said he had contacted Emily Jerome, Attorney, and she had a conference with Vorhes and sent him an e-mail that they concurred on with the analysis. She recommended that the new evidence be allowed.


            Kelly asked if Step 3 and Step 5 in determining a conflict was relevant to the plan amendment but not the zone change.


            Vorhes said it was relevant to the plan amendment.  He noted out of that analysis might come conditions or limitations on the operation that will be implemented in the zone change decision.  He thought that was why they were intertwined.


            Kelly asked if the zone change decisions were made entirely by the Board of Commissioners.  He said if the Eugene City Council is intertwining themselves with a procedural error, then they donít need to be involved since they are not going to be discussing the zone change.


            Vorhes said what they discuss with conflict resolution contributes to the program to allow mining under the Goal 5 rule. He added to get to the decision on the plan amendment, that piece will assist the Board in their decision on what the rezoning should look like. He commented that they were intertwined and he didnít know how to separate then.


            Kelly said they could hold a deliberation on the plan amendment with the evidence on the record.  He didnít want to get into trouble.


            Kelly said there is a section of Lane Code Section 14 that says they could do a de novo on a zone change.  He asked if there is a preemption documented in a piece of state law that a layperson could understand.


            Vorhes responded the state law is the administrative rule that carefully crafts a process and limits consideration of the decision maker to those considerations in the rule.  He said the only conflicts they could look at is the one listed in the Goal 5 rule and that is the heart of the matter.  He noted with regard to the case law, that LUBA and Court of appeals told Lane County they could not apply their usual Rural Comp Plan amendment criteria and zoning criteria to deny or approve mining.  He stated the only thing that could be applied in terms of substantive criteria were the requirements of the Goal 5 mineral and aggregate rule.


            Kelly asked if the LUBA rule addressed the issue of testimony and evidence.


            Vorhes indicated that it was not a process issue at that point; it was a substantive issue of applicable criteria. He said the process issue was not presented to the Board because they were doing a plan and zone change under Chapter 14 that is de novo.  He said both the council and the board are faced with the same question on the Metro Plan amendment piece of the action and the codes say it is on the record.  He said both the council and the board have the authority to say notwithstanding that code provision they will take evidence as long as they provide adequate notice and opportunity for people to present their testimony and evidence.  He said if a debate is raised at LUBA or the Court of Appeals around the process that is used, the debate would be, if there were an error, how any substantial rights of the parties were prejudiced.  He said if adequate notice is provided of what the intention is and accepting the evidence and giving everyone time to respond, he was confident that a procedural error (if there is one that is raised) is not going to be a basis for remanding this.


            Bettman said it would be easier since the council doesnít weigh in on the zone change for them to just consider the discreet criteria in the Metro Plan amendment.  She heard that Chapter 14 allows for the zone change piece to have a de novo hearing.  She asked if the hearing would be limited to new evidence strictly on the zone change and not on the plan amendment.


            Vorhes cautioned about the difficulty of separating the evidence they hear on the zone change, making it clear that is not something they are going to consider.  He said that was a question about separating the processes or leaving them together.


            Bettman asked, if they wanted to follow the letter of the law and not consider new evidence at the hearing, or if they wanted to separate out the hearings so the Eugene City Council was only involved in the plan amendment hearing, what the procedure would be.


            Yeiter responded that to separate the zone change is more of a Lane County question.  He noted that separate hearings would have to be set up after the Metro Plan amendment questions.  He thought on subsequent hearings just on the Metro Plan the County only would deal with zone changes.  He indicated what had come up in a memo from Emily Jerome, Attorney, waived the risk of different actions.  He noted that one of the things she brought up was the practical issue of separating any evidence that is present and what is related to zoning or if there is discussion about previous testimony, was it entered before or could it be for new testimony.  He said because they are in a joint decision process, the codes donít match.  He added there would be risk if they tried excluding the new testimony.  His counsel thought on balance there would be less risk in accepting the new testimony and allow the hearing to be open.


            Bettman thought it would be impractical to separate the hearings but she thought it would be simple to move that they not accept new evidence at the hearing.  She asked if the city council did that if the County had to do the same.


            Vorhes said there could be a board decision point on the same issue that might come down differently.


            Bettman commented that for her the letter of the law was important by following the procedures that are set out in code.  She didnít hear a compelling argument to supersede those procedures.  She wanted to move that they not accept new evidence for the plan amendment.


            Pape stated the issue for him was discerning what evidence they should exclude if it was relevant to the zone change and not relevant to the Metro Plan amendment.  He thought it could prejudice their thoughts on the Metro Plan.


            Pryor said in looking at the City of Eugene ís proposed ordinance on the Metro Plan under Section 2, that what the city council would want to hear and have as evidence in order to consider an amendment for redesignation of specific lots is talking about rezoning the exact same lots.  He said it would be the same kind of evidence.  He didnít think there was anything he did not want to hear regarding the information on the redesignation and he thought the Metro Plan amendment and the redesignation would be a precedent for what they would want to consider in a zone change.  Regarding whether evidence should be admitted now versus working de novo, he wanted to know what others said on the issue.


            Green didnít think he could make a prudent decision unless he had all of the information.  He said since the burden of proof is on the applicant, they may have other information.  He was interested in hearing what they had to say and whatever information everyone needs to make the decision needed to be on the record.


            Steve Cornacchia, Eugene , represented the applicants.  He said the Administrative Rules make it clear that if the County and the City of Eugene have not adopted regulations that mirror the Goal 5 rules and regulations, then all of those considerations of the County and the city for rezones and plan amendments are pre-empted by that rule.  He noted there was a case that had gone to the Court of Appeals that is in the record that reflects the pre-emption of the statewide rules.  He commented that plan amendments and zone changes must have a demonstration that they are consistent with statewide planning goals.  He indicated in this case the only time they didnít do that is when they donít have an acknowledged plan.  He said the pre-emption states their rules donít apply, Goal 5 Rules do.  He stated they end up in the same situation where they have a rezone and a plan amendment requiring consistency with the planning goals.  He noted the planning goals are implemented by the administrative rules.  He said in this case Goal 5 is implemented by the administrative rules.  He asked how they could say they were not going to take new evidence and allow anyone to testify.  He commented that whenever anyone comes up to speak, it is characterized as new evidence.  He said if they could submit new materials that he would enter into the record that there was prejudice to the applicant.  He indicated the prejudice comes from the planning department.  He recalled that last week the lawyers met to discuss this issue and both jurisdictions agreed to hold this hearing in this manner.  He indicated that was relayed to him and as they prepared for the hearing, they did it on the basis there would be an open hearing of new evidence.  He said if they would have known the elected officials would have agreed otherwise, they would have made a different presentation.  He commented if the City of Eugene is concerned about procedural error and the negative impact on a party, then by following the suggestion of DuPriest, they will significantly negatively impact and prejudice the applicant.


            Cornacchia recalled when he was a commissioner they had never varied from a full evidentiary hearing and the community prides itself on being inclusive and allowing people to participate.  He asked why people shouldnít be included and why the issue was being raised.  He thought the elected officials would want to base their decision on as much information as possible from both sides and to limit that information is prejudicial.


            Bettman commented it is inconsistent with both the Eugene Code and the Lane County Code.  She indicated the hearing is based on the evidentiary record that was considered by the planning commissions.  She said anyone who speaks is speaking to that record and that is the evidence and testimony they are supposed to consider according to the existing Eugene Code and the Lane Code.  With regard to the staffís meeting and deciding that this is the way the hearing was going to go, she stated they asked their staff that very question and she received an e-mail from staff that stated the first decision by the elected bodies would be whether they would want to open up the hearing to accept new evidence if any is offered at the hearing.  She came to the meeting expecting to consider this question and vote whether they would be accepting new evidence or considering testimony on the existing record.


            MOTION:  to consider only testimony on the record that was offered to the Lane County and Eugene Planning Commissions.


            Bettman MOVED, Kelly SECONDED.


            Kelly asked Bettman to specifically cite Eugene Code 97740(4) as the reason to move the motion.


            Bettman accepted the amendment.


            Bettman commented that to her it was immaterial either way except they do have code language that limits testimony to the record in front of them.  She didnít know what the criteria for a zone change in Lane County would be because it is not a decision the city council would be involved in.  She indicated the plan amendment criteria is strictly that the amendment be consistent with relevant statewide planning goals and that it not make the Metro Plan internally inconsistent and that is the criteria she uses to evaluate the testimony.


            Kelly stated he thought they were set up because they didnít have their legal counsel present and they couldnít ask for advice.  He noted that Cornacchia indicated staff and the attorneys met last week and decided this was what they would do but that wasnít shared with the city council.  He recalled there was an e-mail from staff earlier in the week in response to a question he raised about what is a de novo hearing versus a hearing on the record that said it would be a decision they would make tonight.  He said it had nothing to do with the issue of being inclusive or listening to everyone, he was trying to read what it claims is in the cityís Municipal Code which is in the case of a plan amendment.  He indicated it stated: ďThe governing bodyís decision shall be based solely on the evidentiary record created before the planning commissions, no new evidence shall be allowed at the governing body joint hearing.Ē  He didnít have the benefit of the court case Cornacchia referred to and he didnít have the benefit of their legal counsel present.  He asked Yeiter to compare a Goal 5 aggregate hearing versus a regular plan amendment. 


            Yeiter responded that this was his first Goal 5 amendment hearing and in his ten years with the city he had not seen a Metro Plan amendment held without allowing new evidence at the hearing at the elected official level.  He noted with the advice that both counsels provided, there is a difference for Metro Plan amendments that are city initiated.  He noted that one of the issues raised by the applicant with regard to Goal 5 pre-empting local law was not part of the written correspondence he received from his counsel.


            Mayor Piercy said when they had the planning meeting, the issue was brought up and they had the advice from their legal counsel that this was the best way to handle the situation.  She understood from the legal opinion that that was a direction that was considered to be best.


            Pape commented the key issue for him is that he heard clearly the statutes and administrative rules for Goal 5 pre-empt what they may have in their codes with regard to criteria.  He asked if there was a procedure associated with aggregates in the codes and if it pre-empted their procedure.


            Vorhes said the procedural rules are not set out in the goal or administrative rule, they are the substantive criteria.  He said when they get to the city or county code on criteria for approval of a Metro Plan amendment, internal consistency goes away because of the pre-emption cases.  He noted one case involved Eugene Sand and Gravel and the other the applicant noted is Morse Bros. v. Columbia County.  He said those cases say the Goal 5 Rule on mineral and aggregate is the process and the substance for making determinations.  He said they have to go through the steps and they canít apply other Comprehensive Plan criteria or standards to the decision.  He indicated those cases donít deal with the process issue.


            Ortiz believed in people coming forward at a hearing but she wanted to stay within the law.


            Bettman said if their legal counsel took formal position on the issue of process that they should have been apprised of it.  She read the city council packet and the information provided by Lane County staff and it talks about the Metro Plan amendment criteria.  She didnít see the fact that Goal 5 supersedes the typical Metro Plan amendment criteria in which they are required to consider.  She said that counsel needs to be on record on whether or not they would accept new evidence.


            VOTE: 2-6 MOTION FAILED (Taylor and Bettman voted in favor).


            Kelly indicated he voted no because he didnít have a legal advisor present and he thought they would waste time and this would show up on appeal.


            Dwyer recalled they had the discussion today at the Board meeting and he brought it up.  He said the Board agreed to the rules.  He said the Board concurred they made the right decision.


            Bob Bricklund, Oregon Department of Geology, said their presence was requested by Lane County by the Board of Commissioners.  He indicated they submitted information into the record that had been provided to everyone.


            Bob Houston, Oregon Department of Geology, stated he wrote the quantity issue.


            Bettman asked for Houston to define overburden.


            Houston responded it is material that overlies the resource. He said it could be large rocks or clay deposits.


            Bettman asked without the additional acreage how long the entity would be able to continue producing the same amount of product. 


            Houston noted that is based off of market forces in the community.


            Morrison wanted Houston to summarize his letter that was submitted to staff.


            Houston recalled the letter submitted to staff explains the environment typical for the area where a meandering river deposits gravel in high and low flow regimes, what it looks like, how lateral the aggregate is and how consistent that is within the basin and the other excavations that are proximal to those locations.  He came up with a bank volume calculation on what is in the proposed extraction site of 53 acres.  He noted there is a difference in the total amount of tonnage in his estimation than the consultants.  He indicated that had to do with the conversion factor from cubic yards to tons.  He said the conversion factor they used at the department is 2.6 times per cubic yard.  He noted the conversion factor used by the consultant was 1.8 and that depends on what type of rock was weighed.  He indicated the 2.6 was given to them by Delta Sand and Gravel and that is what they used to estimate tonnage.  He said the total volume is around 7 million and the total tonnage is about 15 million tons.


            Emily Jerome, Counsel for the City of Eugene , explained there are three issues collectively before the elected officials.  She said both jurisdictions are being asked to amend the Goal 5 inventory that is similar to amending the Metro Plan.  She explained that amending the Metro Plan is subject to the same process as if they were doing a text amendment to the Metro Plan.  Jerome noted the second action the elected officials are asked to take is amending the Metro Plan diagram.  She added the third action is for the County only to do a zone change.  She indicated the first two actions are subject to a process that is governed by the Metro Plan itself and it is the same process for both jurisdictions.  She said they are instructed to accept no new evidence and those decisions are to be made on the record that has been prepared before the planning commission.  She understood the Countyís decision on the zone change in talking with Vorhes is the code with the County is clear that new evidence is to be taken and considered.


            Jerome explained this had come to the elected officials as a consolidated proceeding.  She said that all three questions had been looked at as one proceeding for the planning commission, with one staff report and a recommendation that applies to all of it.  She said it complicates things as the city council has two different types of processes to be dealt with.  She indicated in talking with Vorhes about the best approach, there are a couple of options.  She said if it stays as a consolidated process as it has been brought, they have a decision point.  She said there is a good argument that to accept new evidence on the whole package could be perceived by LUBA as a procedural or process error in accepting new evidence where the code says they wouldnít be accepting new evidence on the Metro Plan amendments.  She stated if they donít accept new evidence at all, there is a clear violation in the zone change process for the County.  She said they could try to accept new evidence but only consider the new evidence with respect to the zone change and they could try to sort out the record and pull out the new evidence and specifically reject that on the record.


            Jerome said to remedy any procedural error by accepting new evidence at the local level they could do a number of things to remedy that procedural error.  She said they do that by providing a full quasi-judicial process.  She said that would be following the rules about leaving the record open if someone requests it and allowing the applicant seven additional days for rebuttal.  She said that remedies a procedural error and they are confident that if all of those procedures are followed, if they choose to accept new evidence, they could defend that action at LUBA.  She didnít think it would be simple to defend a procedure where they pick and choose new evidence from new testimony and divide it that way.  She said that is why Vorhes advised the County that in this consolidated process it would be best to accept evidence on the whole package. She said if the city council wanted to disregard the new evidence they heard and accept only testimony on the record from hereon out, her recommendation would be to divide the matter and donít try to do it in one hearing.


            Pape asked why the city council was in this hearing.


            Jerome responded that the city council is required under the Metro Plan provision to make a decision with regard to the Metro Plan amendments.  She said they need to have a hearing to accept new testimony on the record and argument on what had already been in the record and allow people to address that.


            Bettman asked what the justification was around the original decision to have the consolidated process.  She thought it was inconsistent with their code and they had to make the accommodations in order to carry it forward and consolidate it.  She thought if they would have just gone with the council participating in the Metro Plan amendment and the County doing the zone change instead of consolidating it, it would have been simpler and consistent with their code.  She commented that this choice has put them in a compromised position of trying to accommodate a situation that is inconsistent with their own.  She asked if the County made the decision because it was more convenient.


            Vorhes said that had been the way it was approached at the planning commission.  He noted it was consolidated there and it wasnít a problem because they could take new evidence.  He said in terms of coming to the elected officials, he said it was a function of economy.  He stated that both the Board and the council need to address the Goal 5 Rule on the decision and it affects the rezoning decision even though there is talk about it as simply a Metro Plan amendment.  He indicated to add this to the inventory and to change the designation if the consensus of the elected officials is to approve the application and allow mining.  He said what is done in the Goal 5 Rule steps has implications for the rezoning decision.  He said separating them is not as simple a process. 


            Bettman indicated she didnít see any information in any packet superseding the Metro Plan process.  She said there are issues in the zoning change under the Goal 5 criteria that are applicable to the Metro Plan amendment and therefore County Counsel believes that the city council should be privy to those conversations. 


            Jerome thought it was more of a hierarchical issue.  She said they couldnít change the zoning unless it is consistent with the Metro Plan.  She said in this case the Metro Plan designation they are being asked to apply is directly related to a Goal 5 resource.  She wasnít familiar with the Countyís aggregate zoning but it is related to the Goal 5 issue.  She added if in fact it is to be considered a Goal 5 site eligible for mining and fitting under the Goal 5 rules, then it is appropriate to apply the designation and apply the zoning.  She said it made sense to consolidate the process up to this moment in time.  She said it becomes an issue because the council and the Board had regularly accepted new evidence in their joint hearings.  She thought they could remedy any legal problems and once they make that decision they will make sure it will be a defensible decision.


            Kelly recalled there was a motion made earlier by Bettman that was voted down.  He noted that vote took place without legal advice.  He recalled in the past the joint elected officials took new evidence on plan amendments as opposed to taking testimony on the record.  He asked how the joint elected officials took new evidence and complied with Eugene Code 97740 that says the decision must be based solely on the evidentiary record created before the planning commissions that no new evidence shall be allowed at the governing body joint hearing.


            Jerome recalled they were city or county initiated amendments.  She said there is a provision in the Metro Plan process that allows them to have the procedure they prefer when it is a city initiated plan amendment and the procedures that staff recalled where they accepted new evidence at the council level were city initiated.


            Kelly indicated that some people had noted that state procedures around Goal 5 aggregate trump the whole body of their local code and criteria they apply to plan amendments and the applicant in their application cited a Morse Bros. v Columbia County case.  He asked if that case had any bearing on whether or not they could accept new evidence.


            Jerome said in the process of the hearing she would have an opportunity to sort that out, as she doesnít have familiarity with it because they donít deal in the urban areas as city government with sand and gravel aggregate issues that often.  With regard to the Goal 5 process, she said the question they would look at is whether or not this site is appropriate under the Goal 5 Rules.  She noted if they donítí get past that then they are done.


            Kelly asked if the council could choose to bifurcate this hearing and take testimony only on the existing record since the Metro Plan amendment is all the city council has to decide on.


            Jerome commented that it was a matter of economy.  She said they could make the choice and ask people to come to two hearings for them to provide only testimony with respect to the first hearing on the Metro Plan issues.  She said they could sort out the testimony and argument on the record and evidence with respect to the zone change hearing that would happen at another time.  She noted the commissioners would have the difficult task of organizing which hearing submittals they could consider for one proceeding and block out the new evidence they received at the other.


            Kelly asked if the decision on the plan amendment could be made before they had a hearing on the zone change.


            MOTION: to have a hearing first solely on the plan amendment and they will take testimony on the existing record.


            Kelly MOVED, Bettman SECONDED.


            With regard to a joint hearing, Mayor Piercy believed it could be justified and could be done in compliance with their city policies and code.


            Jerome commented that considering the legal risks involved with both options, she recommended the approach they had started tonight.


            Bettman thought it would be easier to have a hearing on the record that was in front of the planning commission.  She thought they would be looking at the criteria as it applies to the Metro Plan amendment.


            Ortiz asked for clarification as to what they were going to be voting on.


            Kelly said his motion on the reading of the Eugene Code says the only matter that the Eugene City Council will decide on is based on the record so they should hold a hearing based on the record.


            Pape thought there could be information that was only relevant to the zoning change and could be prejudicial to the plan amendment and Goal 5.  He asked what would happen if LUBA or an appeal body find they acted on those improperly.


            Jerome didnít think they would run the risk.  She commented that the court trusts the city council to sort out the evidence and disregard what doesnít relate to the criteria in their decision.


            Green asked what the previous vote did that the city council took.


            Mayor Piercy said it was in opposition to the motion that was made by Bettman.  She noted this was a different motion that is before the council.


            VOTE; 4-5 (Pape, Piercy, Pryor, Poling and Solomon Dissenting) MOTION FAILED.


            Mayor Piercy took their counselís recommendation on this and she voted in opposition.


            Due to the late hour, Howe suggested they get the date set for the next meeting.


            Kelly asked Cornacchia if he could give his full presentation in 40 minutes.


            Cornacchia stated he was told that he would be given an hour.  He asked if they could start the hearing with everyone having read all of the record.  He said they could start at 7:00 p.m. at the next meeting with the process they set out. He preferred doing that.  He wanted to be heard with the opponents at the same time. He thought there would be more value to it.


            There was consensus to have a continuation of the public hearing to December 12, 2006, at 5:30 p.m.


            MOTION: to continue the hearing on Ordinance No. PA 1238 and keeping the record open to December 12, 2006 at 5:30 p.m. for the Board of County Commissioners.


            Sorenson MOVED, Green SECONDED.


            VOTE 5-0.


            MOTION: to continue the hearing to December 12, 2006, at 5:30 p.m., keeping the record open for the Eugene City Council.


            Bettman MOVED, Solomon SECONDED.


            VOTE: 8-0.


            MOTION: to approve a Second Reading and Setting a Third Reading and Deliberation on Ordinance No. PA 1238 and keeping the record open to December 12, 2006 at 5:30 p.m.


            Dwyer MOVED, Morrison SECONDED.


            VOTE: 5-0.











There being no further business, Commissioner Dwyer adjourned the meeting of the Lane County Board of Commissioners at 9:15 p.m.


Mayor Piercy adjourned the meeting of the Eugene City Council at 9:15 p.m.


Melissa Zimmer

Recording Secretary