BOARD OF COMMISSIONERS'

REGULAR MEETING

May 23, 2007

9:00 a.m.

Commissioners’ Conference Room

APPROVED 1/7/2009

 

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

 

1. ADJUSTMENTS TO THE AGENDA

 

There will be an Emergency Business item.  Stewart added 6 b. to set up an account for people having trouble paying for permit fees.  Sorenson requested a separate discussion for 3 c.1).  Green added 6 c. regarding the airport application in Veneta.

 

2. PUBLIC COMMENTS

 

Zachary Vishinoff, Eugene, asked the Board to make a statement about the Olympics.  He commented that Lane County is the road to Beijing.  He said human rights are important.  He thought they needed to pass a resolution saying the Olympics are about good things.  He said they needed more discussion about activism and free speech.  With regard to the fairgrounds, he urged the Board to have a hearing process so farmers could be heard.

 

Chris Hansen, Youth Services, said he works as a volunteer at the Serbu Center in the weightlifting program.  He said there is a list of things parents could do for their children.  He said they need to introduce them to people of excellence.  He urged the Board to support the increase in volunteer efforts and financial encouragement in support of DYS.  He stated that it would pay great dividends.

 

3. CONSENT CALENDAR

 

A. Approval of Minutes

 

B. Assessment and Taxation

 

1) ORDER 07-5-23-1/In the Matter of Amending Chapter 60 of the Lane Manual to Revise Certain Fees Charged by the Department of Assessment and Taxation (LM 60.845).

 

C. County Counsel

 

1) ORDER 07-5-23-2/In the Matter of Amending Chapter 3 of the Lane Manual to Add the Facilities Committee as a Standing Committee (LM 3.515).

 

D. Management Services

 

1) ORDER 07-5-23-3/In the Matter of Authorizing the Sale of Surplus County Owned Real Property for $5,920 to Betty K. Taylor, Former Owner of Record (Map No. 15-04-32-43-09600, 230 Cedar St., Junction City).

 

E. Public Works

 

1) ORDER 07-5-23-4/In the Matter of Entering Into a Revenue Agreement With ODOT For Right of Way & Survey Services in an Amount Not to Exceed $130,000.

 

F. Youth Services

 

1) ORDER 07-5-23-5/In the Matter of Authorizing Youth Services to Develop and Submit a Grant Application to the U.S. Department of Labor for Youthful Offender Registered Apprenticeship, Alternative Education, and Project Expansion Grants in the Amount of $1 million.

 

MOTION: to approve the balance of the Consent Calendar.

 

Dwyer MOVED, Fleenor SECONDED

 

VOTE: 5-0.

 

C. 1)

 

Sorenson said the board order makes legal the Facilities Committee as a standing committee.  He asked about having the Technology Management Team and the Facilities Committee include the same people or department.  He noted the Director of Management Services is on the Facilities Committee. 

 

Dwyer said that he and Fleenor sit on both of the committees.  He added that the TMT meets at the call of the chair.  He said the Facilities Committee is an ongoing process where they have a certain amount for capital improvements and they try to meet the most immediate needs. He thought it was working and didn’t want to change.

 

Fleenor said the number of meetings and participants would be the same.  He didn’t think there was an advantage to changing.

 

Sorenson asked if the Facilities Committee could take adding a citizen to the committee.

 

Dwyer indicated they would put it on the next Facilities Committee agenda for discussion.

 

MOTION: to approve ORDER 07-5-23-2.

 

Dwyer MOVED, Green SECONDED.

 

Fleenor asked if the Board had the ability to add one lay citizen.

 

Green thought that would be the discussion at the Faculties Committee.

 

Fleenor suggested adding one lay citizen to the motion.

 

Dwyer agreed to amend his motion.  Green agreed to amend his second.

 

Fleenor said it would reflect Lane Manual 3.515(1)(b)(4), to add one lay citizen who is not a vendor for a two year term ending January 31.

 

VOTE: 5-0.

 

4. EMERGENCY BUSINESS

 

ORDER 07-5-23-10 Approving the Receipt of Title II Funds for the Lane County Work Camp and the Department of Youth Services' Juvenile Forest Work Team for FY 06-07 and Authorizing the County Administrator to Sign the Required Task Orders and Modification Agreements

 

Dave Garnick, Budget and Finance Manager, recalled that this was the sixth year they have done this and the order needs to be approved to bill BLM and the Forest Service for work they have been performing since July.

 

MOTION: to approve ORDER 07-5-23-10

 

Dwyer MOVED, Green SECONDED.

 

VOTE: 5-0.

 

ORDER 07-5-23-11 Authorizing Youth Services Developing and Submitting a Grant Application to the United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention for Building Protective Factors to Combat Juvenile Delinquency Grants in the Amount of $500,000 to 3,000,000 and Acceptance of the Grant is Awarded.

 

MOTION: to approve ORDER 07-5-23-11.

 

Dwyer MOVED, Sorenson SECONDED.

 

VOTE: 5-0.

 

5. COMMISSIONERS' REMONSTRANCE

 

Sorenson announced that on July 19 at 6:00 p.m. Mobility International U.S.A. is holding a fundraiser.

 

6. COMMISSIONERS' BUSINESS

 

a. ORDER 07-5-23-6/In the Matter of Ratifying the FY 07-08 Regional Wastewater Program Budget and Capital Improvements Program as Approved by the Metropolitan Wastewater Management Commission (MWMC).

 

Susie Smith, MWMC, stated that in accordance with the MWMC, this is the annual fiscal year operating budget and capital improvement program for ratification.  She reported that it is a status quo budget.  She added the operating budget is up about 5.5 percent and they are proceeding in accordance with the 2004 Facilities Plan adopted by MWMC and the partner governing bodies that leads to a $76 million CIP for FY 07/08.  She reported that they had a successful issuance of the first revenue bonds in November 2006 and the funding for the CIP is coming in as anticipated.  She added that the budget is showing an issuance next year of an additional $50 million revenue bond.  She explained that from a cash flow perspective, they won’t need the additional money until next fiscal year, but they budget for the full amount of the projects in the year they begin.  She added that they are budgeted for about $76 million in projects next year.  She stated the budget that has been adopted by MWMC and ratified by the City of Eugene last week provides for all of the contributions to reserves and provides for the net coverage that are required by the bond conveyance and advised by their financial advisors.  She indicated that staffing is stable and they are not adding any new program areas.  She said staffing was up on the Eugene side.  She said some reallocations based on increased demands from the regional side is a 1.5 FTE increase.  She added that overall the staffing increases billed to the regional wastewater program is over 2 FTE.

 

Fleenor asked if there is anything in the budget that would correct the distribution of the waste lines to the treatment facility that would reduce the amount of storm water infiltration and the overload of the treatment plant from the fairgrounds.

 

Pete Ruffier, City of Eugene, explained that there are two issues with the fairgrounds.  He said the contribution of stormwater flow from the fairground facility into the collection system, one is a local issue.  He said there is an increased probability during the wet weather period that the inflow will cause a back up in the local collection system resulting in flooding of streets or basements due to the contribution.  With regard to the budget pieces, he said the activity efforts to reduce infiltration and inflow are largely local.  He said those are not budget issues for the regional wastewater program, they are handled by the two cities separately.  He added the capital program is largely intended to expand their peak wet weather flow capacity but it is intended to work in conjunction with ongoing activities of the two cities.

 

Fleenor asked if the goal was to make the waste treatment plant larger to compensate for the infiltrate.

 

Smith responded that their permit and the two city ordinances require them not to take stormwater.  She added that stormwater is not a permitted discharge to the waste water treatment.  She noted that MWMC and the two cities are partners in the wet weather flow management plan adopted in 2001.  She indicated that it is being updated.  She said the amount of rehabilitation in the pipes funded through the local side and implemented in the local CIP’s is what is modeled to be reasonable for the bang for the buck they could get to get the stormwater out.  She added that there is a limit to the effectiveness to continue to replace pipes when there is not very much groundwater going into the basin.   She noted the plans they have adopted and they are implementing from the two cities and MWMC are intended to provide the best cost effective mix of getting the ground water out and building adequate treatment capacity.  She added that they have the same problem on the Springfield side.

 

Smith reported that MWMC is moving forward with an implementation plan to reduce thermal load and to have mitigation measures not related to the facility, but in compliance with the law.  She indicated the 2004 CIP has them implementing the reclaim water reuse program that will take 10 million gallons per day out of the river.

 

Fleenor asked why they are limited with the fairground restrictions.

 

Smith responded that stormwater is not permitted into the sanitary sewer system from the fairgrounds or anywhere else.  She added that the fairgrounds have a stormwater problem and discharge.  She indicated that the fairgrounds are not being singled out.

 

Ruffier explained that the stormwater from the fairgrounds discharges in the Amazon Canal and there was a notice of intent to sue filed against the fairgrounds under the Clean Water Act for contamination of the Amazon due to fecal material that was contributed during the livestock events.  He indicated that they looked at how to treat stormwater and the conclusion was that it wasn’t cost effective to put in treatment systems or permitting stormwater discharges to the sanitary sewer systems.

 

Sorenson asked what the County’s role with MWMC was now that major costs have been paid.

 

Smith reported that the County service district completed its work.  She added that they have completed a financial plan that does not envision in the long term using the County or service district for a financing mechanism and that was why the County was involved.  With regard to participation in MWMC, she said the County isn’t on the permit, the discharge permit is issued to MWMC and the two cities. She indicated that the two cities are completely liable and responsible for maintaining the collection system in the unincorporated areas. 

 

MOTION: to approve ORDER 07-5-23-6.

 

Green MOVED, Sorenson SECONDED.

 

Fleenor didn’t support this because of the fairgrounds issue.  He said there has to be a message sent that they need to have logic, reason and science by process, not politics.  He was not happy.

 

Stewart commented the CIP projects they are working on are ahead of schedule and a majority has been under budget.  He added that they have kept employee and operating costs less than the County’s.  He urged Fleenor to spend more time on this.  He asked Fleenor to be a representative on the committee so he could find out what a great organization it is.

 

VOTE: 4-1 (Fleenor dissenting).

 

b. Permit Fees

 

Stewart asked if the Board was interested in a fund to help citizens having trouble paying for permits.  He said a gentleman made an appeal during Measure 37 cases stating he couldn’t afford the $850.  He added he knows people who have compliance issues.  He asked if they could assist people with a fund and criteria..

 

Dwyer thought they could develop a modified hardship criteria as it relates to Measure 37, not to other matters.  He wanted to have staff explore a bona fide waiver and the process for bringing the waiver before the Board and set aside $2,000 into a fund that would go for those types of waivers.  He thought by doing that they wouldn’t deprive anyone from their legal rights that would cause a hardship.

 

Stewart agreed.

 

Dwyer said he would give $1,000 out of discretionary money toward the public fund.

 

Stewart stated if he had the funds available he would do the same.

 

Sorenson was in favor of a policy change to allow them to use an income test for these types of waivers.  He wanted a report back on setting up the fee waivers.

 

Van Vactor recommended this get sent to Finance and Audit. 

 

c. Airport Application in Veneta

 

Green recalled that Con Magnuson came in asking about the status of his application for the airport.  He thought they had given direction for this to be taken care of.  He asked what the last status was.

 

Kent Howe, Land Management, explained that for the work program for this year, the Board directed them to deal with amendments to the Eugene Springfield Metro Plan periodic review and the Comprehensive Plans for Coburg, Veneta, Junction City and Florence Comprehensive plans.  He added they also have the industrial buildable lands study that was completed.  He said they have been working on insurance for the floodplain zones, adoption of the Eugene Airport safety zone overlay and code amendments for the statutory updates that have occurred in 2002, 2005 and those that will occur this year..  He commented that currently he has no control over the long range planning work plan because of Measure 37.  He said so they could meet the time frame of Measure 37 claims, he had to pull the long range planning staff to process those.  He said they have not worked on codifying the legislative updates toward the airport planning for private airports or the floodplain community rating system.  He said that had been put on hold.  He indicated a position came vacant and will have another position available due to a retirement.  He doesn’t have the capacity at this time to do additional projects they have in the work program because of displacement of Measure 37.  He recalled the private airport rule was adopted about six years ago and requires jurisdictions to comply with it at their next periodic review.  He said it is on the list but Measure 37 came along.

 

Dwyer asked if they could grant Magnuson a variance so he could operate his airport.

 

Howe said the process will be to implement the rule the state adopted that would do the planning for all small private airports in Lane County.  He indicated it is a comprehensive effort, not applicable to an individual airport.  He said it is recommended they do it at the Board’s next periodic review.  He said if they could get replacement funding for the video lottery revenue, they will be able to take care of this after Measure 37 claims. 

 

Green brought this up because the Magnuson item was well before Measure 37 and the issue became highlighted when the Board reviewed the work plan and began to prioritize projects.  He added that video lottery money wasn’t allocated to help assist the work plan.  He didn’t think it was fair to the applicant to wait until they finish with Measure 37 claims.  He asked the Board to direct staff to complete this application within six months.

 

MOTION: to direct staff to complete the Magnuson application by 2008.

 

Green MOVED, Dwyer SECONDED.

 

Green said his intent was to highlight to the Board the consequences of their choices when they make decisions.  He raised this issue when they went through the work plan.  He stated that it is the Board’s work plan.  He said Magnuson’s claim came before there were any Measure 37 claims.  He heard that video lottery was not an appropriate source of revenue.  He said it doesn’t mean the problem has gone away.  He thought they should send a letter to Magnuson to say they can’t do the work.  His concern is that they have an applicant who is not getting served.  He thought they should be able to address this issue.

 

Howe indicated that he was presenting to Finance and Audit tomorrow for more staff resources so they could have the capacity to do the work program.

 

Green said if Finance and Audit doesn’t make a positive recommendation, then he asked the Board chair to draft a letter to people who are waiting for the process to be completed and make them aware the County is not doing that kind of work any more.

 

Stewart stated that he was frustrated with the process.  He said up until February of this year they only had one person doing Measure 37 claims.  He said for the past three months they have taken staff to process the claims.  He thought because they had an increase in work load they should increase staff because citizens are paying for the processing the applications.  He thought they should increase staff and do work in a timely manner.

 

VOTE: 5-0.

 

7. COMMITTEE REPORTS

 

Legislative Committee

 

a. UPDATE/Legislative Committee.

 

Tony Bieda, Intergovernmental Relations Manager, said they have been waiting to hear the content of the federal legislation and what the emergency supplemental bill will be.  He said there will be a conference call today with senators to announce the content of the funding in the emergency supplemental bill that Congress is expected to act on tomorrow and Friday and forward to the President before the Memorial Day weekend.  He thought the amount would be 80 percent of one year.

 

Bieda recalled the Oregon legislative assembly took a tour of five counties in southwestern Oregon severely affected by the loss of federal timber payments.   He said since that time they were moving ahead with ideas.  He said a proposal produced by AOC that the legislature set aside $20 million additional in the next biennium to help assist the counties either confronting a terminal condition or a crisis condition.  He said $8 million would help out Coos, Curry and Josephine counties giving notice they are planning to give back some of the services they perform to the state.  He said the remainder $12 million would be accessible by other counties affected by the downturn in the federal timber payments.

 

8. COUNTY ADMINISTRATION

 

a. Announcements

 

None.

 

b. ORDER 07-5-23-7/In the Matter of Approving and Delegating Authority to the County Administrator to Execute a Memorandum of Understanding Between the Nature Conservancy and Lane County for Assistance in Assessing and Negotiating the Wildish Property Offer.

 

Jim Johnson, Project Manager for Wildish Land Acquisition Project, recalled that when he came to the Board in February, they discussed the change in the relationship between the County and the Nature Conservancy.  He said they were a willing partner in the acquisition.  He recommended and the Board agreed that the Nature Conservancy become the lead organization in the acquisition.  He said the motion said to negotiate a memorandum of understanding with the Nature Conservancy and describe the respective relationship and responsibilities of the parties.  He said this is a draft Memorandum of Understanding between the two organizations.  He added the Board has a letter from the Wildish Company wanting recognition for the memorandum of understanding.  He noted that they would prefer the County not contemplate the use of the tool of condemnation of eminent domain in the acquisition of the property. He said the Memorandum of Understanding with the Nature Conservancy specifically says the mutual understanding of both parties is that tool is not available.  He added that the company is asking for recognition of 700 acres of the 1,200 as a sand and gravel resource.  He said if the County purchases that part,  the company’s total inventory of sand and gravel resources is diminished.  He indicated that at some point in the future they might ask for a change in the land use application.  He said the motion specifically states that Lane County will timely process any land use application that deals with the replacement of that supply. 

 

Dwyer asked why they needed the memorandum of understanding or the second motion.

 

Johnson recalled that in February the Board preferred that the Nature Conservancy take over as the lead agency.  He said it would be necessary to outline the responsibilities of both the County and the Nature Conservancy in the acquisition and how it works.

 

Fleenor asked if they could eliminate bullet number six.  He didn’t want to give up rights they currently have.

 

Johnson said it could impact their working relationship with the company.  He said they went into this with a mutual understanding that the property would be a resource and asset to the County’s park system.  He said they offered the property to the County.  He indicated that there are some practical problems with the County in dealing with condemnation. 

 

Wilson said if they had language like this in the agreement, there would be positive benefit.  She said it would mean the ongoing discussions that occurred involved the County, the Nature Conservancy and Wildish.  She said if they had pre-established they weren’t planning on using condemnation as a tool, it would mean that they could protect all of the discussions from being treated by a Court as the initial offer under Measure 7.  She thought it was a way of addressing this to facilitate the good working relationship in this negotiation and still protect the long term interest, should condemnation be down the road if it fell apart.

 

Sorenson asked why they couldn’t use condemnation.

 

Johnson said the agreement is with Lane County and they could put the clause in this agreement.  He added it has been recognized that Lane County first received the letter from the company and they have a lead role and they decided to put the language in their agreement.

 

Green was comfortable with both parts.  He thought they should craft language that spells out what their intent is.  He wanted to look at it prospectively.  He wanted a paper trail showing their intent.

 

Johnson said for whatever reason if the deal falls apart, there is no agreement or language like this.

 

Fleenor agreed with Green’s recommendation.  He wanted to know when the deal falls apart and if there was language that explained the conditions.

 

Johnson said they don’t because they are giving the responsibility to the Nature Conservancy.  He added that there is another Memorandum of Understanding between the Nature Conservancy and the Wildish Company which they are not a party of that outlines the relationship and the series of steps that will occur between the agency and the company.  He indicated an appraisal will get done and an option agreement gets signed and they try to raise money to pay the purchase price.  He said if the appraisal comes back with a low number and the company is not interested in selling for that amount, then they don’t have a deal.  He added if they can’t reach an agreement on the option amount, then they don’t have a deal.

 

Stewart was comfortable with what had been presented.  He appreciated the Nature Conservancy wanting to be the lead organization.  He indicated that the County doesn’t have the money to acquire the land.  He said the memorandum spells out funding and acquisition.  He believed it was in the County’s best interest to move forward with this opportunity. He didn’t want to use condemnation, he wanted to do something that was mutually agreed upon.

 

Green wanted to direct legal counsel to develop language that would state what the Board’s intent was based upon their discussion.

 

Dwyer wanted an admission from the company that the Board never treated them unfairly and never delayed anything.  He said they haven’t had any problems with the company and they followed the rules as best as they can.  He wanted to reflect the language in motion 2.

 

MOTION: to approve ORDER 07-5-23-7 to authorize the County Administrator  to sign a Memorandum of Understanding with the Nature Conservancy in a substantially similar form as presented in Attachment 1 with the following recommended changes on page 3, section 3, paragraph F to include a caveat of intent.

 

Fleenor MOVED, Green SECONDED.

 

Sorenson didn’t think they should make the decision to take out the authority of the County to use its rights on behalf of its citizens.  He didn’t think they were protecting the public’s rights.

 

VOTE: 4-1 (Sorenson dissenting).

 

MOTION: to approve the second motion with the understanding they are delegating authority to the County Administrator to capture the intent of the Board.

 

Johnson recommended in motion 2 the Board could state the adequate supply is necessary, that there will be a loss and the Wildish Company recognizes a long term historical relationship, mutual cooperation and the timely processing of past applications.

 

Green moved Johnson’s recommendations.

 

Dwyer SECONDED.

 

Fleenor amended striking out “Therefore Lane County will timely process any land use applications and forego part 3.  He said they would just have part 1 and part 2.

 

Green thought the language was clear as it was and it was asking them to do what they have always done. 

 

Fleenor substituted his amendment to substitute that Lane County will continue to process land use applications in a timely manner.

 

Green agreed to the amendment.

 

Dwyer SECONDED.

 

VOTE: 4-1 (Sorenson dissenting).

 

 

c. ORDER 07-5-23-8/In the Matter of Awarding Funding for Projects Selected Through the 2007 Economic Development RFP General Allocation Cycle.

 

Mike McKenzie-Bahr, Economic Development, reported that this is the second time this has appeared before the Board.  He said it is awarding of the general allocation cycle of video lottery dollars for County departments.  He recalled the last time he was in front of the Board he was asked if there would be enough people in the Sheriff’s Department and Department of Youth Services to participate in the programs if Budget 2 occurs.  He indicated the answer was yes.

 

Joe Pishoneri, Sheriff’s Office, said they met with LCC staff instructors regarding continuing the program.  He indicated that they will bring the education program to the inmates and track them as they come into the community.

 

McKenzie-Bahr said another question was whether the video conferencing project could be scaled to fit within the remaining $28,000.  He responded that the answer was yes.  He said the video conferencing unit for Harris Hall is being removed from Fleenor’s fund ($1,000) and the jail has about $5,000 going into the project.  He added another question dealt with Land Management and their options.  He said video lottery will be up an additional $232,000 and only 50 percent could go to the program.  He noted that they have about $115,000 if it were referred back to EDSC to discuss a proposal with Land Management that could fit within the criteria, and then during the fiscal year they could decide whether to allocate the dollars in this fiscal year or carry them over to next fiscal year.

 

MOTION: to approve ORDER 07-5-23-8.

 

Green MOVED, Sorenson SECONDED.

 

VOTE: 4-0. (Dwyer out of room).

 

d. ORDER 07-5-23-9/In the Matter of Issuance of Industrial Development Revenue Bonds by the State of Oregon to Swanson Group, Inc., and Swanson Group Mfg LCC.

 

McKenzie-Bahr reported that this is to support the expansion of Swanson Group through issues to industrial development revenue bonds from the state.  He said the state requires the local jurisdiction to pass a resolution that fits with land use policy.  He indicated that there is no cost to the County.

 

MOTION: to approve ORDER 07-5-23-9.

 

Green MOVED, Sorenson SECONDED.

 

VOTE: 4-0. (Dwyer out of room).

 

9. PUBLIC WORKS

 

a. REPORT/Regarding the Costs of Public Benefit Facility Permit Fees as Defined in Lane Manual 60.851. (PULLED)

 

b. EIGHTH READING AND DELIBERATION/Ordinance 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 Code225 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 & 5/1/07).

 

(The following took place in the afternoon).

 

Kent Howe, Land Management, recalled that on May 1 the Board almost completed Step 3.  He indicated they left off at the impact of noise.

 

Is there a conflict due to noise?

 

Howe indicated there was agreement in the record that there is an impact from noise.  He noted Exhibit C (copy in file) has the noise mitigation proposal for all of the zones and what it would do within each zone. 

 

MOTION: that there is a conflict due to noise.

 

Dwyer MOVED, Fleenor SECONDED.

 

Sorenson asked if they were putting anything into the record on why they are coming to the view that noise is a conflict.

 

Dwyer stated he made his motion based on the record.

 

Schulz indicated in the staff memo that was written for the joint hearing, there were lists of the exhibits where noise was addressed.  

 

Assistant County Counsel Stephen Vorhes stated it would take revisions to address the Board’s deliberations and the evidence that came in at the hearing. 

 

Dwyer stated the record shows the operation already mitigates against noise.  He said they are moving the operation and moving the noise. He said there is a conflict and it could be mitigated based on current operation.  He noted there was nothing in the record that indicates the noise spreads beyond 1500 feet. He commented that it was already noisy  because of the Beltline.

 

Sorenson stated that both the applicant and opponents have conducted sound impact analysis and the firm that was retained by the applicant determined that the DEQ noise standards would be exceeded and approved uses within the noise limit boundary could be affected.   He indicated there was a conflict and both planning commissions found unanimously that there was a conflict due to noise.

 

VOTE: 4-0 (Green out of room).

 

 

 

MOTION: that there is no factual information in the record that indicates that the noise conflict extends 1500 feet from the expansion area.

 

Dwyer MOVED, Fleenor SECONDED.

 

Fleenor asked if there was any information in the record that it extends beyond 1500 feet.

 

Schulz stated there had been some letters submitted by people stating the noise is critical.  She indicated that many of those are from further out.  She added that there had been no studies.  She noted the expert testimony provided on noise was from DSA, the consultant for the applicant and Exhibit 49 has the revised analysis and zone of impact that is reflected in the conditions and the map.  She said the map was changed through the process in response to input. She stated from the opposition, exhibits and reports by Arthur Noxen, Acoustical Engineer, raised issues with the study methodology but he did not conduct any studies. She noted there are several exhibits by Noxen in the record.  

 

Sorenson thought there was nothing in the record that measures the sound beyond what the experts had measured.  He noted an expert had critiqued what the other expert did and found that the report was not valid.  

 

Howe reported that 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 stated at this point in time, the record establishes that they do not have factual information that indicates substantial conflicts between the 1500 foot distances.

 

VOTE: 4-1 (Sorenson dissenting).

 

MOTION: that there is factual information in the record that shows the noise conflict can be minimized through the applicant’s proposed conditions.

 

Dwyer MOVED, Green SECONDED.

 

Fleenor asked about the definition of minimized. 

 

Vorhes indicated in the definition of minimize a conflict in Goal 5, Mineral and Aggregate Rule, it says “ Minimized” means to reduce an identified conflict to a level that is no longer significant.  He said for those types of conflicts addressed by local, state or federal standards such as the DEQ standards for noise and dust levels to “minimize a conflict” means to ensure conformance to the applicable standard.

 

Fleenor asked what the standard of significant was.

 

Vorhes stated there is debate on what significant really means.  He said in the context of minimizing conflicts, it is defined by being able to ensure compliance with applicable standards, then it meets the standards.  He said it is not eliminated.  He added the significant standard is where there is some judgment involved in terms of how much it recognizes there is going to be some noise.

 

Fleenor asked how the quality of life would factor in.

 

Vorhes commented that depends on the baseline on where the noise comes from and how it fits in with the quality of life.    He said it means more than no noise.

 

Fleenor thought they should make sure they are not exposing the community to a life long reduction in quality of life.

 

Dwyer stated there were no sound walls along Beltline.  He said the sound is measured by the highway and not the ditch.  He said the conditions that they put on as part of an operational plan would be reviewed under LC 16.217.  He said they retain the ability to act.

 

Sorenson stated they have to recognize when they talk about noise issues, the noise of cars are excluded from the noise requirement.  He commented that the noise is not a background noise, it is a foreground noise.  He didn’t think this noise was allowed under Oregon law.

 

VOTE: 4-1 (Sorenson dissenting).

 

Step 4

 

Should mining be allowed?

 

Howe explained that Step 4 was only necessary if in their prior determinations of the various conflicts of traffic, groundwater, wetlands flooding, agriculture practices, dust and noise, if any they found were not able to be minimized by the conditions being proposed, then they would need to go to Step 4. He stated the way he recorded the Board’s votes on the various impacts is that they determined that all of the impacts could be minimized and they don’t have to go to Step 4 and the ESEE analysis was not necessary.

 

Step 5

 

Howe stated Step 5 deals with potential new conflicting uses.  He said instead of looking at how the aggregate facility may impact the surrounding area, it is what new potential uses might be developed that could impact the aggregate site.  He said in this analysis, the record doesn’t have any information that establishes that there are new uses that would pose a potential significant impact to the aggregate operation.  He said they could address Step 5. 

Sorenson asked what a potential new conflicting use was.

 

Howe responded that a potential new conflicting use was an examination of the uses that are permitted outright or conditionally by the zones surrounding the property.  He added there is the examination of the existing permanent uses within the impact area.  He said if those uses occupy their sites and make it unlikely that other uses would be allowed in the zoning, findings to that affect should be adopted and no further analysis of conflicting uses is necessary for those sites.  He said if they are already developed, they are precluding new uses coming in.  He noted if they had infill of residential areas that would be the potential new uses that could come into the site.  He didn’t believe the record established any potential new uses that could impact the aggregate facility.

 

MOTION: that there are no potential new conflicts. 

 

Fleenor MOVED, Dwyer SECONDED.

 

Howe explained the way the rule provides guidance in examining the permanent uses in the impact area, if the uses occupy the sites and makes it unlikely that other uses allowed by zoning would occur, then finding to that affect should be adopted and no further analysis of conflicted uses is necessary for these sites.  He said the issue is whether or not those residences would impact the gravel mine operation.  He  said if the County determines this is a significant site and they minimize the conflicts, then they would be providing a protective regulation to the new resource that would be added to Lane County’s inventory of aggregate resource sites.  

 

VOTE: 5-0.

 

Step 7

 

Schulz distributed the criteria and procedures for the rezoning and the Rural Comp Plan Amendment under Step 6 and the set back variance criteria under Lane Code 16.217.

 

Vorhes explained that Step 6 and Step 7 are together because once they make a determination that under the rule mining is allowed, they want to craft  a program to allow mining.  He said they have applied the Lane Code under a rule to allow mining.

 

Schulz distributed a new Exhibit 219, showing the final cross section of the proposed aquaclude that is under discussion for the variance.

 

Howe explained that the applicant had requested a variance to the setback requirements of the code for purposes of the excavation.  He indicated the variance would make it possible to allow the construction of a low permeability barrier, also called the aquaclude, within the setback area that would be designed and built to eliminate the flow of groundwater from the surrounding land and into the pit created by the aggregate mining.  He noted the code requirements for a setback variance are that the director can grant an administrative variance to decrease a setback upon showing that the eventual utilization of the site is compatible with a smaller setback up to the following minimums:  50 feet from the boundary of any non-residential zone or the right of way of an existing street or road or 100 feet from the boundary of a residential area.  He added that the director could grant an administrative variance to waive the setback from adjoining property in the sand and gravel rock product zone if no flood hazard will result.  He said the setback area may be excavated to reduce the elevation thereof to the grade of an adjoining public street or road or the excavation may be conducted within the setback area under a plan approved by the director through an administrative variance whereby the excavated area will be refilled with other materials which will neither decompose nor pollute underground waters.  He indicated the applicant is proposing to construct the low permeability barrier within the setback proceeding ahead of the mining extraction to the west at a distance of 400 feet of any excavation activity.  He noted the barrier is proposed to be at least 12 feet wide at the bottom and slope upward through the upper aquifer at a slope ratio that could vary from one to five to two to one to the original ground surface and the request for a placement with the setback area is to ensure its separation from the excavated aggregate pit and to place the barrier’s outer edge as close as possible to the surrounding outside shallow aquifer.

 

Dwyer asked if the variance was in the public’s interest.

 

Howe responded that Lane Code 16. 217 7(b) explains that the variance needs to conform to the following criteria:  is not in conflict with the general purpose and intent of the zone; there are exceptional or ordinary circumstances applicable to the property involved; the denial of their request would result in undue and unreasonable property loss to the applicant; the variance will not be detrimental to the public welfare, nor injurious to the property or improvements of other owners of other property.  He noted the staff recommendation is that the gravel extraction is not ordinarily conducted in close proximity to urban populated areas.  He said they are recommending there would be a detriment to the public welfare as indicated in the neighborhood testimony and the record has information as to why it would be conflicting.  He said if the Board agrees the variance is appropriate, then it would affect the program and the conditions that will be implementing the mining program that the Board is responsible for.

 

MOTION: to move that the variance is appropriate.

 

Dwyer MOVED, Green SECONDED.

 

Vorhes explained because they contemplate to be some of the groundwater effects, they proposed this type of a solution to that problem and putting it as close to the adjacent properties as they can with the variance will get the protection in place and still provide those kinds of consequences and results.

 

Sorenson asked if there was a considerable impact on how the variance could be granted.

 

Howe said there is information in the record that discusses if this variance is authorized, it would allow the operation to get too close and it would impact the neighboring properties in a detrimental fashion pursuant to the variance criteria.  He said if they don’t allow the variance, then they met the setbacks as required. 

 

Green commented that if they don’t allow the variance,  it could be a detriment to the public and could be injurious.

 

Fleenor asked if they grant a variance if the citizens have any recourse in the event it is found to be detrimental as they move forward.

 

Vorhes stated it would be part of the Board’s decision.  He indicated that it would depend on what the perceived detriment the public or citizens have around the granting of this variance and having the aquaclude closer to the boundary.  He said if having the operation closer would have a different effect than the effects they had already analyzed of the mining area that is included in this area. He noted it is all part of the mining area as they were resolving conflicts.  

 

Fleenor asked if they grant a variance and the aquaclude fails, if they had sheltered the application from any subsequent lawsuits from the neighborhood.  He asked if they had recourse as a county with respect to cease and desist if their aquaclude fails.

 

Vorhes explained it has to do with how its failure relates to the assumptions or requirements of the Board and the decision they reach.  He indicated that there might be circumstances that no one foresaw that might get in the way of the functioning of the aquaclude.  He added that as part of the deliberations on minimizing conflicts and the concerns that were there as to groundwater and the aquaclude and how it is going to function, it would be possible that a failure is related to the conditions or a failure to meet the conditions..

 

Dwyer thought they would write into their operating agreement that if it could be factually demonstrated that the failure of the aquaclude resulting from what they said would happen to grant this variance, that they have recourse.  He said they would allow them to operate and still protect the public by getting assurances from the operator that if there is scientific proof that demonstrates that there are some impacts that result from the variance and the aquaclude failure, they would have the recourse to deal with it at that time.  

 

Vorhes added there were other regulatory agencies involved.  He noted that DOGAMI will play a roll on how the operation functions. 

 

MOTION: to move forward on the conditions that the applicant put forward on the variance and the factual provisions.  

 

Dwyer wanted a provision that allows them to revisit this.

 

Howe responded that under the groundwater provisions they get to that, but they could craft language that relates to the variance.

 

Dwyer MOVED, Green SECONDED.

 

Stewart asked if it included the variance and the conditions to minimize conflicts.

 

Dwyer stated they were included.

 

Sorenson stated his reading of the Lane Code requires the planning director to make those decisions and the decisions weren’t made.  He was a no. 

 

Vorhes explained that procedurally this was brought because it affects analysis of the conflicts of Goal 5.  He said taking a position on the variance makes sense to include it with the rezoning and the plan amendments and the analysis on Goal 5 because it is all part of the same operation.  He noted it doesn’t apply until the rezoning decision has been made.  He said the area is not currently subject to the provision of Lane Code.  He wanted to give the Board an opportunity to weigh in on the variance.  He added as part of the action on this application to amend the Metro Plan to include it as Goal 5 inventory and to rezone it as part of the program to allow mining under the Goal 5 Rule, it would be part of the decision.  He noted it was a piece of the proposal that was submitted as part of the application on how this operation would function.  He thought there was authority of the Board to take action on that part of the program to allow mining in this circumstance.  

 

Fleenor thought they were getting more for their vote than if they allowed the director to do it.  He supported this.

 

VOTE: 4-1 (Sorenson dissenting).

 

MOTION: to amend the Metro Plan to rezone 72 acres from agriculture to sand and gravel.

 

Howe said they should consider where they are in the larger process with the City of Eugene and Lane County.  He asked whether the Board wanted to take a tentative vote, making a recommendation going back to the City of Eugene.  He recalled the City of Eugene didn’t get past the beginning and the County has completed this discussion.  He said the Board needs to determine if this is the time to engage with the City of Eugene before going to MPC.  He noted that part of the reason they wanted to wait was to determine the conditions the County was going to impose so they understood minimization and addressing the impacts.  He said they could give that information.

 

MOTION: to tentatively approve Ordinance PA 1238, subject to a joint elected officials meeting. 

 

Green MOVED,  Dwyer SECONDED.

 

Dwyer stated they have to make their decision and give it to the City of Eugene.

 

Vorhes said in these cases they take tentative action and direct staff to work with the applicant to redraft the findings and conditions and come back for final action.    He said it gives time to talk to the counterparts.

 

VOTE: 4-1 (Sorenson dissenting)

 

Howe indicated there was tentative action to direct staff to work with the applicant to develop the findings in support of the proposal and they will come back with those findings and conditions that they will deliberate on and take final action on a later date.  

 

Vorhes indicated they would work with the agenda team to set a date.

 

Fleenor asked if they should wait until after the City of Eugene deliberates.

 

Howe stated the City of Eugene deliberated and they directed their staff to develop the findings to come back for final action that it is not a significant site.  

 

Van Vactor stated that Stephanie Schulz and Kent Howe would summarize what the Board did on all of the conditions and a memo to the Eugene Planning Department.   He said their planning department could present it to the Eugene City Council to see if there is a change in position.

 

Green was in agreement.  

 

Stewart indicated that Schulz would prepare a brief summary of what they accomplished and it could be sent to the City of Eugene and Eugene could take it as advised..

 

 

 

c. THIRD READING AND DELIBERATION Ordinance PA 1241/In the Matter of Amending the Rural Comprehensive Plan (RCP) and Veneta Comprehensive Plan Maps to Expand the Veneta Urban Growth Boundary to Include .36 Acre of Land; Redesignate That Land From a RCP Designation of ‘Forest’ to a Veneta Plan Designation of ‘Medium Density Residential’; Concurrently Rezone That Land From Lane Code (LC) Chapter 16 ‘F2 - Impacted Forest Lands’ To LC Chapter 10 ‘RR - Rural Residential’; and Adopting Savings and Severability Clauses. (File No. PA 06-7487; City Of Veneta) (NBA & PM 4/18/07 & 5/9/07).

 

Van Vactor stated that Ric Ingram, Mayor of Veneta, hoped the Board could take action today.

 

Dwyer indicated he received two letters:  one from the city manager and one from a city councilor asking that they approved this ordinance.

 

MOTION: to adopt Ordinance PA 1241.

 

Fleenor MOVED, Dwyer SECONDED.

 

Sorenson asked if there was any opposition.

 

Stewart indicated that one person spoke at the hearing was opposed.  

 

ROLL CALL VOTE: 5-0.

 

 

There being no further business, Commissioner Stewart recessed the meeting at 12:10 p.m.

 

 

 

Melissa Zimmer

Recording Secretary