JOINT BOARD OF COMMISSIONERS'/
ELECTED OFFICIALSí MEETING
November 1, 2006
Harris Hall Main Floor
Commissioner Bill Dwyer presided with Commissioners Bobby Green, Sr., Anna
Morrison, Peter Sorenson and Faye Stewart present.
Commissioner Bill Dwyer presided with Commissioners Bobby Green, Sr., Anna
Morrison, Peter Sorenson and Faye Stewart 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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Kelly asked if the LUBA rule addressed the issue of testimony and
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
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
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
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.
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
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
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
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
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
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
Bob Houston, Oregon Department of Geology, stated he wrote the
Bettman asked for
Bettman asked without the additional acreage how long the entity would be
able to continue producing the same amount of product.
Emily Jerome, Counsel for the City of
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
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
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
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
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
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)
Mayor Piercy took their counselís recommendation on this and she voted
Due to the late hour, Howe suggested they get the date set for the next
Kelly asked Cornacchia if he could give his full presentation in 40
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
Sorenson MOVED, Green SECONDED.
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.
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.
TO THE BOARD
being no further business, Commissioner Dwyer adjourned the meeting of the Lane
County Board of Commissioners at 9:15 p.m.
Piercy adjourned the meeting of the Eugene City Council at 9:15 p.m.