BOARD OF COMMISSIONERS'

WORK SESSION

May 1, 2007

1:30 p.m.

Harris Hall Main Floor

APPROVED 7/25/07

 

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

 

C. PUBLIC WORKS

 

a. SEVENTH READING AND DELIBERATION Ordinance No. PA 1238/In the Matter of Amending the Lane County Rural Comprehensive Plan to Revise the “Significant Mineral and Aggregate Resources Inventory;” Metro Plan Redesignation from “Agriculture” to “Sand and Gravel”; Rezoning from “E30/Exclusive Farm Use Zone” to “SG/Sand, Gravel & Rock Products Zone”; to Allow Mining on 72.31 Acres of Land Pursuant to Lane Code 12.225 and 16.252 and the Goal 5 Oregon Administrative Rules (OAR 660-023); and Adopting Savings and Severability Clauses (file no. PA 05-6151, Delta Property Co.) (NBA & PM 10/18/06, 11/1/06, 12/12/06, 2/14/07, 3/14/07 & 4/18/07).

 

Kent Howe, Land Management, explained the first step is to determine if the post acknowledgement plan amendment information is adequate.  He said if it is, they would determine whether it was a significant site.  He recalled that on April 18 the Eugene City Council moved to direct staff to prepare a resolution that finds there is not sufficient evidence that a significant resource exists on the subject site consistent with the attached draft findings.  He added they did an amendment to an ordinance instead of a resolution.  He said a second motion was made to move to direct that the findings could not be supported because on further review there was sufficient evidence that there were significant resources on the site, and they asked the city manager to schedule a work session for continued deliberations on the remaining issues. Howe reported the vote on the substitute motion failed and that moved them to the original motion and it passed.  He said it was a tie and the mayor broke the tie, so the formal action taken by the City of Eugene was that their finding was the site does not meet the significance test in the Goal 5 Rule.  He indicated that was the end of their action.

 

Fleenor asked if the City of Eugene was asked to prepare a final resolution with the findings of significance before the Board of Commissioners deliberates.

 

Howe stated that was a policy call by the Board.  He said they could decide whether they want to wait, knowing the City of Eugene has taken a formal motion that a resolution will be put before them with findings that states it is not a significant site.  He indicated the Board of Commissioners could wait for that in a final format or they could proceed today.

 

Sorenson asked what the role of the Board of Commissioners is if the City of Eugene voted that there was insufficient evidence that a significant resource exists.

 

Howe explained that this is located within the Metro Plan and the Metro Plan Amendment procedures are involved.  He said the Board of Commissioners and the Eugene City Council for this proposed action have to adopt identical revisions for the plan amendment to occur.  He said that Eugene took action that gives the Board of Commissioners an indication where the City is.  He added that the Board of Commissioners should start down the process of the analysis. He said it might get to the same point that Eugene did on the determination of significance.  He added if it does not, he recommended the Board go through the process of the Goal 5 Rule to its completion.  He said if the Board gets to the point where they determine that they have a significant site and the impacts have been minimized, then the Board of Commissioners will have to come to a yes.  He noted the Eugene City Council is at no and for the Metro Plan Amendment procedures they would go to MPC.   He said if the Board of Commissioners determines that it is a significant site but down the process of determining impacts they are not minimized, they would go through the ESEE analysis and conclude they can’t be minimized or if they are minimized, there is still an impact and elect not to protect the site.  He indicated then the Board of Commissioners and Eugene City Council would have to come to no and that would be the end.

 

Dwyer recalled that this was not an expansion.  He indicated it was a source of aggregate that would allow the present company to continue at its current rate.  He thought they should move forward and follow the facts.

 

Green concurred with Dwyer to do what they have to, as they don’t have control with the City of Eugene.

 

Dwyer asked what happened with an objective third party.

 

Howe responded that the City of Eugene didn’t entertain that idea.

 

Dwyer stated that the City of Eugene didn’t want any evidence that might support the fact that there is a significant resource.  He said it shows the City of Eugene wanted to stop the process.  He said Eugene knows there is gravel 400 feet down.

 

Howe explained they know the result of the City’s deliberation on the determination of significance.  He said they don’t know what the County’s determination would be and what the ultimate answer would be.   He said if the County goes to yes and the item was appealed to LUBA, LUBA would look to what the City of Eugene and Lane County did and possibly remand the decision. He added that it could go back to the City to go through the process.

 

Dwyer stated they need to get the report that the City wasn’t interested so they will have a report for a basis for their determination of significance that would satisfy Fleenor or any other skeptic and it would be able to be a tool for LUBA to analyze when they make their decision on whether to remand.  He indicated the decision is going to be based on facts and if the City of Eugene refused to listen to the facts because they were afraid where the facts may lead, then the County would be in good standing.

 

Vorhes said if the Board of Commissioners were to reopen the record and take in additional evidence and testimony at this stage and the City doesn’t have that in front of their decision making body because they have not reopened the record to consider the evidence, their decision will be judged on the evidence in front of them, not other evidence that has been presented to this Board.  He said on an appeal to LUBA on the City’s decision, if that is a final land use decision, the review of the decision will be the evidence of record before the City at the time of their decision.  He said if this Board decides to reopen the record, having additional evidence and testimony presented, they could do it but they would create additional process risks if they could come to a conclusion based on the evidence in record.  He suggested the Board act on the process that is pending in front of the Board and shape the discussion later with the City on where it goes and if the City concludes that they don’t want to move further, then it could come back to the Board.  He indicated at some point the Board needs to take action on this application.

 

Green and Stewart concurred on moving forward with the process.

 

Step 1

 

Howe explained that Step 1 is to determine if the post acknowledgement plan information is adequate.  He said it is the step that constitutes the essential completeness check for the post acknowledgment plan amendment.  He said it isn’t whether all of the approval criteria are met or are approvable; it is if all the criteria had been addressed. He indicated it was staff’s recommendation that they had addressed all of the criteria and they have a complete application.

 

MOTION:  to accept the staff recommendation that all requirements of Step 1 have been met.

 

Dwyer MOVED, Green SECONDED.

 

VOTE:  5-0.

 

Step 2

 

Howe explained that Step 2 determines if the resource site is significant.  He stated that an aggregate site shall be considered significant if adequate information regarding the quantity, quality and location of the site demonstrates that the site meets any one of the following criteria:  the rock meets ODOT specification for base rock for air degradation, abrasion and sodium sulfate soundness and the estimated amount of material is more than 2 million tons; or if the site is in an area where there would not be more than 35 percent of the mining area consisting of soils classed as 2 or 1, unless the average in the rule refers to it as width of the aggregate layer within the mining area exceeds 60 feet.  He said the significance is determined if there is 2 million tons that meet ODOT specifications and if they in an area of agriculture soils that are of high quality, then it has to be at least 60 feet in depth.

 

Green indicated that the record shows it is 70.5 feet and it meets the standards.

 

MOTION:  to accept staff’s recommendation that it is at 70.5 feet and meets the ODOT standard for aggregate.

 

Green MOVED, Dwyer SECONDED.

 

VOTE:  4-1 (Sorenson dissenting).

 

Step 3

 

Howe said this is to determine if conflicts from mining could be minimized.  He indicated a progression of things must happen in this step:  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, potential conflicts from the proposed mining on the existing uses must be identified and potential conflicts must be evaluated to determine whether they can be minimized.  He noted that if they can be minimized, then mining shall be allowed at the site.  He added if it is determined that there are no conflicts or those conflicts could be minimized, then they proceed to Step 5.  He said if it is determined there are conflicts that could not be minimized, they would go to Step 4.

 

Dwyer stated they have an existing company and they are not changing their practices; they are continuing operations.  He said the conflict is not with the gravel company; it would be with the hospital.  He said the City of Eugene has no problem with loading up the interchange with ambulances.

 

Fleenor said the gravel operations would be getting closer to an established community.  He had concerns about noise and dust.

 

Sorenson thought there was a conflict with traffic.

 

Stewart indicated there is an existing operation.  He asked if the existing operation had any conflicts.

 

Stephanie Schulz, Land Management, indicated that the conflict due to traffic would be increased.

 

Dwyer stated the record showed they would not be increasing traffic and there was no conflict with traffic.

 

Green asked what the potential conflict was with traffic.

 

Howe explained that potential conflicts under this category are those to local roads for access and egress to the mining site within one mile of the entrance of the mining site unless a greater distance is necessary in order to include the intersection with the nearest arterial identified in the transportation plan.  He said that conflicts shall be determined based on clear and objective standards regarding site distances, road capacity, cross section elements, horizontal and vertical alignment and similar items in the transportation plan and implementing ordinances He said such standards for trucks associated with the mining operation shall be equivalent to standards to other trucks of equivalent size, weight and capacity to haul other materials.

 

Green stated on the record there is no increase in the product delivery services associated with the proposed use of the expansion area.  He said it appears that the applicant had met the test as it relates to traffic.

 

Howe indicated that the Department of Public Works Transportation Planning came to the conclusion that a traffic impact analysis was not necessary because there isn’t a change in the traffic loading of that area as a result of this proposed amendment.  He said if the Board finds that this impact is not a significant conflict, there are no conditions on it.  He said if they find an impact, then the applicant needs to show how they are going to minimize the impact.  He added if they can demonstrate how they are minimizing the impact, then they go on to the next step. He indicated that the impact analysis has been completed.

 

Vorhes said in looking at the scope of the application and the proposal as it was presented to the Board, if there was an approval amendment to make it clear that it is based on the represented level of operation and type of operation, then that is the assumption on which the findings were based.  He said there could be a piece of the equation that would state if there is a significant change in the operation from what was in the application that brought the amendment to approval, that it needs to be addressed as a separate amendment.  He added there is a way to address that in the rule.  He indicated there might be conditions that if there are necessary things to be included in order to assure that significant conflicts are minimized to the point where they are no longer significant, those things could be included as well as conditions of approval.  He noted there were some that had been brought forward from the Planning Commission action.

 

Dwyer said they are going on the faith with current operations, current traffic volume, the conflicts associated with it and if they could be mitigated.  He indicated according to their transportation department and the record, their concerns have been addressed.

 

Sorenson asked if the planning commission dealt with traffic in their deliberations.

 

Stewart recalled that both planning commissions said there was no impact beyond 1500 feet.

 

Howe said the record shows there is no conflict of traffic.  He said this presumes that because there is no change other than the resource based from the existing operation, that there aren’t additional impacts.

 

Schulz noted part of the County engineer’s waiver was a consideration that there are planned improvements in that area approved in their transportation plan.

 

MOTION:  to move the recommendation that there is no traffic conflicts.

 

Green MOVED, Dwyer SECONDED.

 

VOTE:  4-1 (Sorenson dissenting).

 

Howe stated there was nothing in the record that established that there are conflicts that extend beyond 1500 feet.  He said that is an action the Board needs to take.

 

Groundwater Conflicts

 

Schulz said conflicts for groundwater are not addressed by local state or federal standards.  She said they don’t have a threshold that some of the other conflicts do.  She said groundwater deals with construction of the groundwater barrier and aquaclude.  She said the planning commissions found unanimously that there was a conflict due to groundwater.  She said the aquaclude low permeability barrier was proposed as mitigation and the aquaclude was found on one part to not minimize the conflict and that was the opposite recommendation. She said staff recommends that the aquaclude would minimize the conflict.

 

MOTION:  to state that there is a conflict due to groundwater.

 

Sorenson MOVED, Fleenor SECONDED.

 

Dwyer thought there was a conflict but the record showed the conflict could be mitigated.

 

Green stated the applicant has the burden of proof.  He agreed there was a conflict due to groundwater, but the applicant has to address the conflict, to minimize it.

 

VOTE:  5-0.

 

Is there factual information in the record that indicates that the groundwater conflict extends beyond 1500 feet from the boundary of the expansion area?

 

Schulz indicated there was significant analysis in the record in the actual application reviewing the function of the groundwater with or without the aquaclude.

 

Dwyer stated there was a conflict with the groundwater but it showed that it could be mitigated with the aquaclude.  He thought the mitigation and the aquaclude were sufficient.

 

Dwyer recalled if there were any impacts as a result, that the applicant would rectify them.

 

MOTION:  that there is factual information in the record that indicates a groundwater conflict extends beyond 1500 feet from the boundary of the expansion area.

 

Sorenson MOVED, Fleenor SECONDED.

 

VOTE:  5-0.

 

Can the conflict due to the groundwater be minimized through the condition proposed by the applicant to a level of no significance?

 

MOTION:  to move that the record shows that the plan for minimizing the conflict could be minimized.

 

Dwyer MOVED, Green SECONDED.

 

Stewart asked if the record showed there would be monitoring wells to make sure the aquaclude was working and the groundwater is not affected.  He asked if that could be added.

 

Schulz responded that question had not been proposed.  She noted that the design of the aquaclude was revised through the process.

 

VOTE:  3-2 (Fleenor, Sorenson dissenting).

 

Was there a conflict due to wetlands or sensitive habitat?

 

Schulz noted for wetlands there is the western boundary of the expansion site in the Metro Goal 5 Inventory as a Category D wetland.  She said there are setbacks and the aquaclude will be developed outside.  She noted that both planning commissions found that there was a conflict on wetlands, one commission said it could be minimized, the other said it couldn’t.  She indicated the protection criteria was a DLCD criteria on the wetlands under Goal 5.  She said the setbacks would be further out with the aquaclude than with the Goal 5 wetland setbacks.  She stated that staff recommendation is that it is minimized with the setbacks.

 

MOTION:  that there is a conflict with wetlands.

 

Dwyer MOVED, Green SECONDED.

 

Stewart noted page 1313 in the wetlands conflicts stated that no conflict could be analyzed as part of this PABA application for site E 57 in the quarry pit.  He asked if there was not a conflict.

 

Schulz responded that they had not completed the Goal 5 natural resources adoption at the Board for those areas between the city limits and the urban growth boundary.

 

Sorenson asked if the phrase "the conflict extends beyond 1500 feet from the boundary of the expansion area" means within 1500 feet.

 

Howe indicated that under Step 1 of the process if there is a conflict due to wetlands, it would be in the impact area as measured out to 1500 feet for every one of the conflicts they are reviewing. He added there is a second question that asks if there was information in the record that demonstrates that the conflict actually extends beyond 1500 feet.

 

Dwyer stated his motion referred to the wetlands within 1500 feet.

 

VOTE:  5-0.

 

Is there factual information in the record that indicates the wetlands or sensitive habitat conflicts extends beyond 1500 feet of the boundary expansion area?

 

Stewart stated staff said no.

 

MOTION:  to move that the wetlands or sensitive habitat conflict does not expand beyond 1500 feet and they adopt the staff findings.

 

Dwyer MOVED, Fleenor SECONDED.

 

VOTE:  4-1 (Sorenson dissenting).

 

Can the conflict due to the wetlands or sensitive habitat be minimized through the conditions proposed by the applicant to a level that meets the DLCD removal permit requirements of OAR 141-85.

 

MOTION:  to move the conflicts could be minimized.

 

Dwyer MOVED, Green SECONDED.

 

VOTE:  3-2 (Sorenson, Fleenor dissenting).

 

Is there a conflict due to flooding?

 

Sorenson thought there was a conflict.

 

Howe said there is a theory under the FEMA regulations that if they are doing fill, then they would have an impact on flooding, but if they are excavating, they are not.  He commented they could be minimizing future flooding impacts.

 

Stewart indicated that the Lane County Planning Commission stated there was a conflict due to flooding and the Eugene Planning Commission stated there wasn’t.  He said the Lane County and Eugene Planning Commissions said the conflict couldn’t be minimized.

 

MOTION:  to move that there is no conflict due to flooding.

 

Fleenor MOVED, Dwyer SECONDED.

 

Green indicated that the report from EGR concludes that the method of mining does not impede flooding. 

 

VOTE:  4-1 (Sorenson dissenting).

 

Is there a conflict due to agricultural practices?

 

Howe explained that under agricultural, the standards are different.  He noted under the Goal 3 Rule, it won’t force a significant change in accepted farm use nor increase the cost to conduct farming significantly.  He stated that was the standard for how the test is made.

 

With regard to the findings, Schulz reported that both planning commissions found that there was a conflict within the impact area and Lane County voted that the conflicts with agricultural practices could not be minimized and the Eugene Planning Commission had the opposite finding.  She said that staff thought the conflicts could be minimized.

 

MOTION:  that there is a conflict for agricultural practices.

 

Fleenor MOVED, Sorenson SECONDED.

 

VOTE:  2-3 (Dwyer, Green, Stewart dissenting).  MOTION FAILS.

 

Is there factual information on the record that indicates that the impact of agricultural practices extends beyond the 1500 feet from the boundary of the expansion area?

 

MOTION:  to move there is no impact beyond the 1500 feet boundary area.

 

Dwyer MOVED, Fleenor SECONDED.

 

VOTE:  4-1 (Sorenson dissenting).

 

Can the conflict due to agricultural practices be minimized through applicant’s proposed conditions to a level that would not force a significant change in accepted farm use nor increase the cost to conduct farming significantly?

 

Stewart indicated the agricultural practices standard is found under the provisions of ORS 215.296. He commented that the use of the property as a gravel operation will preclude the use of the property for farming.  He said it could not be minimized.

 

Dwyer stated they were discussing the economic impact on those uses after this was allowed.

 

Stewart understood they weren’t discussing the farming the rock pit would displace, they were talking about the farming within the 1500 foot boundary that is next to the operation and if the operation could be minimized on the neighboring property.

 

Dwyer stated the record showed the neighbor came in and testified in favor of it and it hadn’t caused him any significant increase.  Dwyer didn’t think it would be significant.

 

Fleenor thought it should be the conflict due to surrounding agricultural practices being minimized.  He thought the terminology of the sentence could be better if they put "surrounding agricultural practices" or "the cost to conduct surrounding farming significantly."

 

Green asked if they had the flexibility to do wordsmithing.

 

Vorhes said the rule is a benchmark for the decision making.  He noted what the rule says regarding conflicts is "conflicts with agricultural practices."  He added when they are looking at conflicts the rule describes, they are looking at conflicts beyond the mining area.  He said the assumption is the mining is going to happen and when and if it does, what conflicts will occur within 1500 feet of the mining area that is the area of the property that is subject to change.  He added there is the ability to go beyond the first 1500 feet from the perimeter of the mining to look if there is factual evidence in the record that establishes that doing the mining within the mining area creates impacts or conflicts with accepted land uses beyond the first 1500 foot area.  He added it goes as far as they can with evidence that states there are those kinds of impacts and they have to be significant.  He said the analysis is driven by the rule again and it discusses the test that is excerpted out of the statute and looks at whether this mining would force a significant change in farm or forest practices on surrounding lands devoted to farm or forest use or would significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use.  He said that was the test the Board would need to make findings on and address in their deliberations: are there conflicts that rise to this level and if so, what are some of the mitigation measures the applicant had proposed to address those conflicts, if any.

 

Dwyer recalled the people farming that surround the mine said there would be no conflict as a result of this operation.

 

MOTION:  that the practices could be minimized.

 

Green MOVED, Dwyer SECONDED.

 

Vorhes explained for the rule language, all it states is "conflicts with agricultural practices."  He said the main testimony for impacts to farmers located closest to this operation is in the area that would be mined.  He said they would go beyond that 1500 feet or further if there are facts showing impacts to agriculture.  He said if they identify conflicts with agricultural practices, the way they determine whether it is minimized or not is they look at the statutory language and they determine whether they can with the measures proposed.  He added if the conflicts don’t rise to the level of forcing a significant change or significantly increase the cost of agricultural practices, that is where the surrounding language comes from.  He noted the surrounding area for analysis starts at identifying the impact area and that is measured from the perimeter of the proposed new mining operation and the rule starts with a baseline of 1500 feet.  He noted some conflicts could go beyond the 1500 feet and the rule allows for that.  He said if they have the evidence to establish it does, they analyze the impacts and conflicts and what could be done to minimize those conflicts and make them no longer significant.

 

VOTE:  4-1 (Sorenson dissenting).

 

Is there a conflict due to dust?

 

Schulz indicated that dust was identified as a conflict on the project and that the conflict could not be minimized to a level meeting the standards set by LRAPA.

 

Dwyer asked if that was the case, how they were able to currently operate.

 

Schulz said they currently meet their permit.  She indicated there was discussion and input on this topic and dust and noise were the highest conflicted items and that was how the planning commissions voted.  She reported the votes were Lane County 3-2 (one abstention) and Eugene 3-2 that the conflict could not be minimized.

 

Howe explained when it comes dust, there is an agency standard and the rule says if the proposal meets the standards required by the agency, then the conflict is minimized.

 

Dwyer asked if the proposal met the standards required by the agency.

 

Howe said it did.  He added what the record establishes is what they are proposing to do will fall within the standards of the LRAPA discharge permits for dust.

 

Green asked if there had been any evidence on the record to show the level of complaints or citations that LRAPA had issued.

 

Howe said the record has information about the alleged complaints to LRAPA.  He recalled that one of the complaints had to do with spraying that didn’t occur on a winter freezing day and upon LRAPA doing their investigation, they dismissed the allegation because it would have frozen if they would have sprayed for their dust abatement efforts.  He added another complaint was dismissed because it wasn’t at the location, it was at another Delta operation.

 

Green asked in absence of LRAPA who regulated air quality in the other 35 counties.

 

Howe responded that it is the DEQ.

 

Green asked if LRAPA took an official position in the record.

 

Dwyer stated the new application does not exceed the discharge permit for LRAPA.

 

Green indicated that LRAPA stated on the record that it does not exceed their level.  He asked if that information was on the record, how both planning commissions could get to a situation that it couldn’t be minimized.

 

Vorhes said the test for minimization in the rule is for those types of conflicts addressed by local, state or federal standards such as DEQ.  He added for noise and dust levels, to “minimize a conflict” means to ensure conformance to the applicable standard.  He indicated that part of the debate was around how good was this company in staying within the requirements and what are the violations with the current operations.  He noted in the final analysis they look to what is the potential and could they comply with the rule.  He said if the Board concludes they had shown enough to state they could comply with the standard, they could reach the conclusion they would minimize the conflict.

 

Howe indicated there was additional information that was provided to the elected bodies that was not available for the planning commissions that showed how they were watering where the extraction was taking place.

 

Fleenor thought there would be a conflict with dust initially that does not exist today.

 

MOTION:  that there is a conflict due to dust.

 

Fleenor MOVED, Green SECONDED.

 

VOTE:  5-0.

 

Is there factual information on the record that indicates that the dust conflict extends beyond 1500 feet from the boundary of the expansion area?

 

Schulz reported a conflict with dust that could not be minimized was the planning commission recommendation.   She said in looking through the minutes of the joint continued public hearing held in January, windrows diagrams were provided that show where the wind comes from.  She said there were different experts with different diagrams.

 

Fleenor stated since they had determined there was a conflict due to dust, he said there was a likelihood that a wind would blow dust 1500 feet from the boundary. 

 

MOTION:  that there is a conflict with dust that extends beyond 1500 feet.

 

Fleenor MOVED, Sorenson SECONDED.

 

Dwyer asked what the record showed.

 

Howe said there were a number of reasons why the planning commissions thought dust wasn’t minimized.  He said they can’t find in the record whether they thought it extended beyond 1500 feet.

 

Fleenor modified his motion that the record reflects that there is no indication that the dust would extend beyond 1500 feet.

 

Fleenor MOVED, Sorenson SECONDED.

 

VOTE:  4-1 (Sorenson dissenting).

 

MOTION:  to move that the conflict can be minimized.

 

Green MOVED, Dwyer SECONDED.

 

Green indicated there was another document in their files from the environmental assessment corporation.  He said it talks about the examination of the complete LRAPA files for Delta Sand and Gravel that did not show any complaints from residents from the southwest, west or northwest of the existing operation.  He said there was some concern raised by one member of both planning commissions that had expressed some skepticism about LRAPA’s ability to respond.  He added the record also showed that any time there was an issue of compliance with LRAPA, the same was true with the applicant’s behavior to respond to any issues to show the owners of the operation are responsive to it.  He supported the motion.

 

VOTE:  4-1 (Sorenson dissenting).

 

MOVE:  to continue deliberation to May 23, 2007.

 

Sorenson MOVED, Fleenor SECONDED.

 

VOTE:  5-0.

 

There being no further business, Commissioner Fleenor recessed the meeting at 3:30 p.m.

 

Melissa Zimmer

Recording Secretary