JOINT BOARD OF COMMISSIONERSí/

LANE COUNTY PLANNING COMMISSION MEETING

November 21, 2006

5:30 p.m.

Commissionersí Conference Room

APPROVED 1/10/07

 

Commissioner Bill Dwyer presided with Commissioners Bobby Green, Sr., Anna Morrison and Faye Stewart present.Peter Sorenson was excused.Recording Secretary Melissa Zimmer was also present.

 

Planning Commission Members Present: Lisa Arkin, Ed Becker, James Carmichael, Steve Dignam, Todd Johnson, Nancy Nichols, Jozef Siekiel-Zoziencicki and John Sullivan.

 

Specific Instructions to the Board of Commissioners Pertaining to How the Planning Commission Can be of a Greater Service to the County

 

Dwyer thought the members of the Planning Commission were doing a good job.

 

Stewart said he reads the Planning Commission minutes and on occasion listens to the tapes.He was concerned about the treatment the public receives when they come to the meeting.He added he was concerned about how professionals were treated when they make testimony on different cases.He said no matter how the Planning Commission agrees or disagrees with what they are saying, they should be treated with respect.He commented that sometimes it was hard for him to follow the decision that was made from the Planning Commission.He said with the Dennis marginal lands claim, one of the comments is there is state criteria that needs to be followed and when someone makes the comment that that property could be farmed,it was not the criteria that was supposed to be used to make a decision.It was hard for him because they were making a denial on their thinking the land could be farmed or that state law says there was a period of time when it had to be farmed or a certain income level had to be met. He was concerned as he couldnít follow the recommendation from the Planning Commission through the regulations that were reviewed when they looked at the decision.He commented that whether or not they think a tree can grow on a piece of property is not the point, the question is does it meet the productivity requirements that are placed on the criteria.

 

Morrison commented that she had followed the meetings closely.She had been called by some of the Planning Commission members about their frustrations.She shared the same concerns that the Planning Commissionís job is to look at the application against the criteria they are supposed evaluate.She commented that they are supposed to leave their personal bias at the door.She stated by listening to the tapes and reading the written minutes, that was not happening.She said they look to the Planning Commission to do a lot of the review work because it is technical.She wanted to take the recommendations and move forward, but when they are looking at the costs involved because of the appeals and they have to defend it, it concerns her.She didnít want to do the job she wants the Planning Commission to do for her, because she has to spend the additional time reading the technical information in order to decipher what the Planning Commission did.She indicated that some of the comments denying something need written findings to support what they are saying.She said when they couldnít do that, it was troubling.She noted they have vacancies coming up and she wanted to see balance brought back to the Planning Commission.

 

Green recalled asking the question about the staff and the Planning Commissionís recommendation of one application that was different than what staff recommended.He said they denied it and staff approved it. He said the recommendation was that they approve the staff recommendation.He didnít expect the Planning Commission to be a ďrubber stamp committee,Ē but if they are looking at state land use laws and the goals that have to be met, based on the criteria, staff looks at it with a technical eye.He is not sure how the Planning Commission views it.He wanted to see why they didnít think something did or did not meet the criteria.That was missing for him.He indicated the Delta Sand and Gravel application is coming up.He noted the Eugene Planning Commission reviewed it and denied it based on air and dust.He said the Lane County Planning Commission reviewed it and denied it on several other points.He stated he relies on the work the Planning Commission does because it helps their argument if they have a challenge.He commented that the burden of proof is on the applicant and it has to be based on evidence.He added the opposition doesnít have that burden of proof.He said he went through the process of interviewing Planning Commissioner candidates who were interested and it was all overturned at the day of the board meeting by a commissioner who had three votes in advance and brought in his own slate of candidates.He asked if those Planning Commissioners didnít want to be appointed then they shouldnít have accepted the position.He said when he reads some of the comments that came back, it doesnít sound like an application of the law.He asked how this made sound public policy for the public good.He didnít think staffís recommendation should be that far from the Planning Commission if they are talking about the same information.

 

Dwyer said he didnít always agree with staff but respects the way the system is supposed to work.He hoped the motives for the people serving are to make the system work, not be a stumbling block, and allowing the types of development the law permits under the codes and criteria and not find ways to subvert the will.He said the Planning Commission has to make sure the decision they make is in good faith and it could be defended.

 

Dignam asked if the Board of Commissioners wanted them to establish findings.He said that was something they didnít have a lot of training in, and he would need the training.

 

Green commented that once they reached their decision it should be based on something.He indicated the applicant usually writes the findings.

 

Becker commented that the current process doesnít allow for independent review.He said the only information they are receiving is from the applicantís paid consultants.He added no County employee or representative goes out and checks the information they get.He said a lot of the time it is contrary to what the neighbors say.He wanted someone who was independent to look at the property to see whether the criteria are really being met.

 

Morrison asked who would be willing to accept if it were truly independent.

 

Becker thought the County needed to require the applicant put a deposit down.He wanted the County to hire an independent non-aligned consultant to do the environmental analysis, someone not being paid directly by the applicant.He thought that was critical, because they were getting information directly from the applicantís paid consultants.

 

Morrison asked if the independent review could still be challenged.

 

Becker thought it could be challenged but would be stronger because it is not being paid directly by the applicant and the County would be overseeing the process.

 

Stewart commented that a lot of the time emotions come into play and neighbors donít always present the correct side of the story.

 

Becker stated there was skepticism by some of them on the environmental information they are receiving regarding the marginal land applications.

 

Nichols thought the process could be like going through an escrow when a fee is paid for an appraiser and the bank chooses the appraiser.She commented this was a similar situation.

 

Carmichael didnít think they would be able to change the process to get deposits set down.He said they would naturally bring bias to the decision making process.He said as long as the final argument in their deliberations is clearly delineated and put into the minutes and presented to staff, then they would have a picture of where their decision making process came from.He said as they grow as a group they could continue training and make better decisions.He didnít think the Board was getting a clear picture of their deliberative process.He thought as long as their comments were clear from whatever point of view they came from, he didnít think they could be open for appeal at the level they currently are.He hoped the Board would take their comments and use them in a positive fashion.

 

Morrison commented a lot of the statements are made with no concrete evidence to support them.

 

Becker stated he wished he could go out to visually inspect the land.

 

Dwyer said if they started that policy, they could get into more trouble.He thought as part of the minutes, if they ask questions and there are no answers to those questions, they need to be highlighted for the Board, expressing what it was they asked and what they didnít get.

 

Siekiel-Zoziencicki recalled that they were told they cannot go out on a property, they could just drive by. He thought it was improper that the Board of Commissioners received the Planning Commission minutes before they could be approved.He thought it was a malfunction in the system.

 

Dignam commented that an independent review was not unanimous or was the consensus of the Planning Commission.He thought because it is not an independent review, does not mean they should be impugning the reputation of the firm doing the review.He commented that often times they are credible firms.He said as Planning Commissioners they have every right to assign either more or less credibility to their decision but they donít need to be erring that publicly regarding whether or not the firm had done its job in an honest and professional manner.He commented that being closer to the law was not good enough; they needed to follow the law.He wanted to see the rest of the committee strive to follow the law.

 

Dwyer thought if they had doubts about the testimony to vote what it was they believed.

 

Arkin thought in all of the deliberations, that they have taken care to read the material and listen to the testimony.She said they consider the record and question when it is necessary if the information was not enough to make a decision.She commented that if there was not enough information then it was the case of the applicant not meeting the burden of proof or to waive conflicting evidence with witnesses.She said as volunteers they are doing their best and she was confident the group was doing its very best.She thought they could use training if the Board of Commissioners wanted them to develop findings or more clearly state their conclusions.She thought they apply considerable scrutiny the best they can with the information they are given.She commented that it sometimes comes down to the applicant not adequately proving their point and sometimes it is difficult approving an application.She wasnít confident their full deliberations and the crux of what caused them to vote one way or the other is communicated fully to the Board of Commissioners.She thought if any of the Planning Commission had questions about information in the record, they could write them down and get them to the Board.Her concerns are that their most salient points are not reaching the Board.She added what concerned them most was not always reflected in a staff report to the Board.

 

Morrison recommended the Planning Commission listen to the tapes.She said in listening to the tapes they could determine whether what is articulated is what they really want the Board of Commissioners to have.

 

Johnston asked if it would be helpful if someone from the Planning Commission accompanied staff.He thought it would be easier and staff wouldnít be caught in the middle of things.

 

Dwyer thought that was a good idea, as they could get the minority and majority view.

 

Morrison wasnít opposed to the idea but the meetings are at 1:30 p.m., and the members of the Planning Commission work.She thought there would be a difficulty for people to attend the meetings and it could pose a problem.

 

Johnston suggested that they discuss it on their side to explore it further.

 

Green agreed with the idea.He thought they should get the breadth of the summary of their discussion.He said when he reads the minutes there is sometimes a lengthy discussion about a criteria that is not part of their decision.He thought it would be helpful for the Board of Commissioners to put down what was not working with the Planning Commission.With regard to an independent review, he said they would pass the costs on because the County doesnít have the money.He didnít know how to define ďindependent.ĒHe said it is the applicantís job to make sure they are meeting all the guidelines.He said it is their clientís investment and it is in their best interest to get the best people in front of the Planning Commission.He added if they were not satisfied with the testimony, that they should probe deeper into the information.He said if they were still not convinced, they could ask for more information.He said they have to make sure they are asking questions as long as it is leading to the state requirements.

 

Arkin asked if it was helpful for the Board to have three to five bullet points that support their decision.She said sometimes she sees the recording of their vote but didnít see how they reached their decision.

 

Green indicated that would make things easier for him.

 

Carmichael stated he got on the Planning Commission because he wanted to participate in making Lane County a better place to live.He thought it had been very fulfilling.He thought meeting with the Board of Commissioners was important.He thought they should come out of the meeting with a conceptual consensus to look at the law instead of their own opinions and be ready to back up their comments.He thought they needed to be more polite to expert witnesses and to people providing testimony and to staff.He indicated they needed to provide more accurate deliberative comments when they vote.He said having made the bullet points, he hoped the minute takers and staff will be prepared to take those bullet points to the Board when the minutes are viewed.He said staff and the Planning Commission need to be more accurate in their comments and the way they are delivered.He thought the Planning Commission could then be of better service to the Board of Commissioners.

 

Dwyer commented the minutes need to be more timely and should be available at their next meeting for approval.

 

Howe indicated they had a problem with contracting for the minutes recording and that had been fixed.He said their expectation is that the minutes will be adopted within thirty days.

 

Carmichael thought if there were unanswered questions or concerns about bias from people who provide testimony, those should be part of the bullet points that they provide during the deliberations and are provided to the Board of Commissioners.He added thee Board will decide if they have merit or not.

 

Becker asked the commissioners who could actually visit the sites.

 

Dwyer said it creates a dilemma to visit the sites because both sides need to be present and everyone needs to see the exact same thing at the exact same time.

 

Becker recalled that on previous planning commissions he was on he was expected to go out and visit the site to be more familiar with it and to understand the issues.He was surprised that they were told they couldnít visit the site.He commented that the same system only allows for the applicantís paid consultants to go on the property and to look at the land.

 

Stewart asked if it was a court decision that established state law or if it was Lane County specific.

 

Howe responded that it was trespass law.He wasnít sure how relevant access to the property is in evaluating the criteria.

 

Green said it creates a perception of bias.

 

Morrison commented that it depends on who the applicant is as to the familiarity of the people on the Board.

 

Becker responded that the issue is the criteria they are dealing with on the marginal lands issues.He stated it is soil information and soil survey.He said it wasnít a good indicator of what the site quality is of the entire area.†† He said the problem is they are getting close calls by the paid consultants.He said there was margin for error.He thought they needed a full evaluation by an independent person to understand what marginal land is.

 

Green encouraged the Planning Commission to be just as diligent for those who are opposed to the application as they are to the paid consultants.He said they should challenge some of the information when they come in with no documentation or scientific analysis.He said they could ask them how they came to their conclusion.He said they have to balance the whole process.He said if the applicant is trying to make a case and they dismiss all of their information and they have another group come in and their records are inconsistent, further analysis would show the records are not being compared fairly, but they are utilizing some of the information sometimes to make a decision.He encouraged the commission to be diligent on those types of claims for those who are not in support and find out how they got their information to understand their rationale.

 

Becker indicated he does a lot of environmental analysis.He said it is the peopleís process.He said the Board makes the rules and they could easily require the applicant to put a deposit down and hire from a list of independent experts.†† He said they donít create the money stream between the application, the applicant and the consultants doing the environmental analysis.He said they have to break it by creating an independent contractor who is paid by the County who collects the money from the applicant.He thought the process was flawed.

 

Arkin noted there had been public hearings where the attorney for the applicant has suggested that they discredit any testimony from the public, especially if someone comes to state they had seen the land logged but they are not provided with any logging records.She said if the public comes to a public hearing they have an obligation to consider what they are saying even though they are not a paid consultant and they may not be allowed on the land.

 

Morrison said part of their job is to pull the fact from fiction.

 

Siekiel-Zoziencicki said they have a certain amount of knowledge about certain things.He asked how much that could be introduced to his own thinking. He said they were being accused of fiction.

 

Green said they bring to the table what they have, but the decision points need to be based on what the law says.

 

Siekiel-Zoziencicki asked if he had a valid question if it could influence his thinking.He commented when some of these issues come up, he has the background in it.

 

Dwyer commented that if his life experience is dictating to him that they have some legitimate concerns, he is entitled to utilize his experience.

 

Sullivan said they need to be better versed on why expert testimony is accepted versus their expert judgment.He said it was a big issue and as a result of sometimes questioning expert testimony, all of them insert expert judgment and that is when they get into trouble.

 

Dwyer said they need to be able to support the Planning Commissionís decision.

 

Sullivan stated they needed to better articulate the why or why not and the applicable criteria met during testimony instead of them asserting their opinions over expert testimony.He was frustrated they had not been able to get a person from Florence to serve on the committee.He thought it would be helpful for the Board of Commissioners to have an advisory committee made up of an attorney, Landwatch and they could be on an annual search looking for the people who have the interest/qualifications to advise them on planning.He thought it was important to recognize that if they are going to present bullet points, they are written out and given to the minutes person as opposed to articulating it.He thought they could do a better job of training themselves.He said they need to better equip themselves on how to make these decisions as opposed to relying on Howe to tell them.He asked for the liaison to the Planning Commission to once a quarter spends 30 minutes with them spelling out the issues.†† He wanted the Board to adopt some methodology to follow that.He said they have the responsibility to follow the methodology that Carmichael spelled out: doing a better job of how they listen as opposed to listening to testimony.

 

Dwyer said the Planning Commission doesnít support staff, staff is there to support them.He said they get to the decision independent and staff could agree.He said the Board of Commissioners has to decide whether they go with the Planning Commission or staff.

 

Sullivan thought it was beneficial if they disagreed with staff on certain points.He said it forces staff to do a better job.He commented that of all the things the Board does, the most difficult is land use because everyone believes they have private property rights but they donít want to acknowledge the fact they need their rights protected by the services the County would provide.He commented that most people donít want to come to grips with the fact that the common good outweighs the individual good.He said they are dealing with the same problems.He encouraged the Board that when they select someone for the Planning Commission they have someone who is really interested in the position.

 

Morrison said the majority of the advisory boards and commissions do the interviewing of the applicants that had applied.She said they would make their recommendation to the Board and they will review it and either agree or not.She recalled the Planning Commission was processed like that.She said it then changed and it became the responsibility of two commissioners to do that.She indicated when she interviewed the applicants, she them know about the time commitment that it takes in order to understand because land use law is complicated.

 

Sullivan outlined what had been discussed:

 

                    The Board asked the Planning Commission to be more polite to those individuals who provide testimony, whether experts or members of the public.

 

                    The Planning Commission will be more polite to staff and each other.

 

                    There was a request for the Planning Commission to be as diligent in questioning those in favor as those opposed to an application.

 

                    The Planning Commission is to deal more consistently with the law and not so much with their opinions, and to be able to back up their opinions with fact.

 

                    The Planning Commissionís deliberative comments that are passed onto staff be provided with written bullet points.

 

                    That staff (with a member of the Planning Commission) provide the same written bullet points to the Board of Commissioners when those meetings occur.

 

                    The Planning Commission asked that more timely minutes be provided to everyone involved in the process.

 

                    The Planning Commission asked for a quarterly meeting with at least the liaison from the Board of Commissioners to see the process where they are at.

 

Dwyer indicated the Planning Commission requested a more objective analysis that was not tied to the people they were paying.

 

There being no further business, Commissioner Dwyer adjourned the meeting at 7:10 p.m.

 

 

 

Melissa Zimmer

Recording Secretary

 

 

 

 

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