April 9, 2008

1:30 p.m.

Commissioners’ Conference Room

APPROVED 4/30/2008


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




a. ORDER 08-4-9-10/In the Matter of Adopting Supplemental Findings to Ordinance No. PA 1237 Amending the Rural Comprehensive Plan to Redesignate Land From "Agricultural" to "Marginal Land" and Rezoning that Land from "E-40/Exclusive Farm Use" to "ML/SR" ("Marginal Land With Site Review") (file PA 05-5985; Ogle).


Green explained that this decision is subject to plan amendment and rezoning criteria sited in the agenda cover memo and attachments.  He indicated that evidence and testimony must be directed toward the approval criteria and failure to raise an issue to enable a response may preclude an appeal to LUBA.  He said it was an opportunity for submission of information and appeal.  He said it was the opportunity for those present to enter information into the record and only people as qualified as a party may appeal a Board decision to LUBA.


Green asked if there were any ex parte contacts.


There were none.


Commissioner Green opened the Public Hearing.


(Stewart arrived at 1:45 p.m.)


Steve Cornacchia, Eugene, stated he represented Brad Ogle, the applicant.  Cornacchia said they concur with everything in the staff report.  He noted that during this week some neighbors raised the issue that there had been property  interest conveyances since this had first been filed.  He said the application was filed twice by the previous lawyer.  He indicated it was approved by the Board of Commissioners and appealed to LUBA.  Cornacchia said the lawyer for Ogle didn’t inform him it was appealed and he consummated the transaction with him and a party named Wolf.  Cornaachia said Wolf sold his portion of the property and the Childs own the other half. He added that Mr. Fields sold 30 acres of the property to the City of Eugene for continuation of the Ridgeline Trail.   Cornacchia indicated the only way the transaction could have occurred was for that property to have a marginal lands designation.  He added the marginal lands designation would create legal lots on all of the properties.  He said in addition to Mr. Fields’ interest, Ogle (the original landowner) has an option agreement to purchase back one of the lots after it is rezoned.  He placed into the record the transaction documents between Wolf and Ogle.  He said the expectation of the Wolfs were clear, to obtain the marginal lands rezoning. 


Cornacchia said even if they didn’t have the signed statements in the file, they questioned if it was a relevant issue that could be raised.  He commented that if there are issues, there is a time they are supposed to be raised and those transactions were all in place  He said the relevancy of this hearing is established by the Court of Appeals.  Cornacchia stated that the Court of Appeals said Lane County had done everything right in this case except for one matter and that was a technical error. He noted that marginal lands applications require the applicant go through an arduous test that provides opportunity for questioning.   He indicated the tests are related to the productivity of forestland and farmland.  He noted in this case, LUBA and the Court of Appeals said the County came to right conclusion.  He added on the use of 1983 log prices, the Court of Appeals said when the County approved this, the information necessary to meet the fourth productivity test was actually put in the record.  They used 1983 log prices to determine the forest capability and they also used 1978 to 1982 prices and those were put into the record.  He commented that the lawyer doing the findings thought the 1997 memorandum using 1983 prices was controlled.  He said the attorney only put in that evidence for support in the findings of fact, even though the evidence was in the record.  He said that LUBA noted it and because it was in the record, there was evidence to support findings.  He said the Court of Appeals found they had to be clear and show exactly what the evidence was to support the findings.  He said they had the right evidence, it just wasn’t in the findings.  Cornacchia said they came back to the Board with the same evidence to put into the record.  He said it narrows what their opponent could say.  He said the Court of Appeals affirmed it was the right evidence.


Cornacchia believed the issue was narrow and specific to the 1983 log prices.  He said they have done everything the Court of Appeals has asked and there is no evidence in the record and no reason for a denial by Lane County.


Jerry Kendall, Land Management, indicated that this is a remand and the only item before the Board is the Court of Appeals directive to look at prices preceding 1983 and that was what the consultant has done.  He added they only needed to meet three of the five years, but they had 1978 to 1982 inclusive and came out below the $10,000 limit of the highest being 1980: $7,318 gross income, and the lowest in 1982: $5,143. He noted it was in the original record but not in the findings and with this hearing, they are moving it into the findings.


Sorenson asked why they were holding a hearing.


Vorhes said they are having this because the applicant asked for a hearing so there would be an opportunity for people to address the issue that was remanded and how the evidence stacks up to the analysis and how it meets the criteria, given the ruling from the Court of Appeals and LUBA in the remand to the County.  He noted the language was part of the decision of the Court of Appeals:  was the subject property not managed as part of a forest operation capable of producing an average gross cycle of $10,000 in annual growth income during three of the five calendar years preceding January 1, 1983.  He said the evidence was in the record.


Leslie Hildreth, Eugene, said she was one of the parties who filed the appeal of the Board of Commissioners to LUBA and then to the Court of Appeals.  She said she was neutral.  She read a letter addressing the procedure.


Jim Just, Eugene, Goal 1 Coalition, commented that nothing in law requires them to limit the scope of the hearing.  He said it looks like the property was transferred to Wolf in 2004.  He said there was a question on whether the applicant had the authority to do it.  He said it wasn’t clear in the record that they wanted to go ahead with this.  He added that there have been illegal property line adjustments in the case and they rubber stamped this without taking a closer look. He thought the County should take another look to see how the productivity reports are done to meet standards. He asked for the hearing to be continued and the record to be re-opened.  He said he didn’t know what configurations of the property looked like.  He added there was uncertainty about the income determination.  He wanted to ask for an expert from the Oregon Department of Forestry to explain how the figures should be recrafted.


Fleenor asked since this was approved by the Board in 2006 and upheld except for one part, if they were legally able to apply different standards that were not found in violation.


Vorhes said the application is governed by the standards in place at the time the application was made.  He said the issue of forest methodology was an issue argued at LUBA and the Court of Appeals and the Court of Appeals disagreed with the petitioners that the methodology had a role to place in this decision.  He noted the 50 year cycle was issued at LUBA and the Court of Appeals and they affirmed the County’s use of the cycle. He added what the Court of Appeals disagreed with was the use of log prices in a finding that relied on log prices from 1983 as opposed to log prices or the ability to generate $10,000 in gross annual income for three of five of the years prior to January 1, 1983.  He stated that was the only issue that LUBA remanded to the County.  He commented that opening this up could create more problems for the County overall.


Just commented that if the County wants to defend its decision, all it needs to do is to address the minimum requirement of the remand order.  He added there is nothing that prevents a local government from looking more broadly.  He thought the productivity analysis was so flawed it got the DLCD’s attention and they took steps to ensure it would never happen again.  He said the methodology didn’t comply with ODF’s specified methodology and the report has been approved by ODF.


Cornacchia said Just is not a lawyer or a forester and he made statements about the law that are not true.  He said none of Just’s comments were supported by a single case statute or administrative rule.  Cornacchia said Just is thinking there are new rules at the Department of Forestry to deal with forest productivity that the Court had already said do not apply to this.  Corncacchia commented that Just did not provide any evidence that would support a decision of a denial.  He said the opponents were given a fair chance to provide all of their criticism to the Board of Commissioners of the application to show how the application would not meet the criteria. He stated that they have met every criteria, neighbor and opponent challenge and judicial challenge and it is affirmed by the Court of Appeals.  He said the Board can’t ignore the law.


Kendall indicated that Goal 1 entered a letter into the record. 


Fleenor asked how often they reopened the record and used the opportunity to submit an opportunity for an applicant to a higher standard.


Vorhes said he had not seen it happen.  He said there is a principle involved called the law of the case that will support a county or city’s decision to limit the focus to the issues left after the litigation has run its course.  He said there was no authority for reopening the record


There being no one else signed up to speak, Commission Stewart closed the Public Hearing.


MOTION: to approve ORDER 08-4-9-10.


Green MOVED, Stewart SECONDED.


Green commented that this conversation was a display of dodge ball.  He said they discussed this previously and there was an opponent that objected to the date that showed the income after 1983.  He said they went back and put the income test before 1983, as that was asked.  He indicated that LUBA and the Court of Appeals recognized that.  He stated that Just’s testimony had no basis for their decision making and it didn’t meet the test.  He was offended by the submission of testimony that none of the commissioners had an opportunity to review.  He saw it as a tactic to delay this matter.  He supported this because the Court of Appeals and LUBA remanded this back to the Board of Commissioners for a final decision and that is what they should be making their decision on.


Stewart agreed with the applicant’s comments that there is no evidence produced to the contrary to the supplemental information to back up to take back to the court.  He said there was ample time to do that and nothing was presented to the Board today. 


Fleenor said they are embarking on something that could put the County in a difficult position both financially and with resources.  He doesn’t like making decisions based on resources.  He didn’t think they should take the risk of prolonging this only to come back to where they are.  He supported the motion.


Sorenson said when they schedule a public hearing and people submit things, they should have an opportunity to read what they submit.  He said he would be a no vote.


Dwyer couldn’t make a judgment because he didn’t see what was submitted and he voted no on this from the beginning.


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


b. PUBLIC HEARING & ORDER 08-4-9-11/In the Matter of Commenting to the Oregon Department of Transportation (ODOT) on Region 2/Area 5 Project Funding Proposals for Connect Oregon II.


Celia Barry, Public Works, reported that this item last came before the Board on October 31, 2007 when they provided letters of support for the Connect Oregon applicants who requested them.  She said this item is to listen to testimony on the five applications.  She indicated the Board is to rate the applications on a tier system and to rank them one through five in priority order with one being the highest priority  She recalled it is a $100 million funding program for air, rail, marine and transit transportation projects. She noted the funding source is issuance by state lottery revenue bonds.  She indicated the purpose of the program is to stimulate economic development in the state by promoting connections as well as transit to move people to their jobs.  She added that this is the second year of the program and $10 million will come to ODOT Region 2.  She recalled in the first part of the program in 2006, $9.5 million came to Lane County and that funded Lane Transit District’s Pioneer Parkway EM X project and a Eugene Airport air cargo facility improvement project. She noted they have one application for each mode and two for transit.  She said the projects are the Creswell Hobby Field Airport fire suppression system, the Eugene Train Depot transit access and circulation improvements, the LTD Veneta partnership on a transit center in Veneta, the Port of Siuslaw Maple Street Landing and dock improvements and the Union Pacific Railroad switching yard rail crossover in Eugene.


Barry said the tier instructions are summarized on Page 2 (copy in file).  She indicated that staff recommendations for both the tier and the rating are in Exhibit A to the proposed Board order attached to the cover memo.  She noted the recommendations they are making are consistent with what the Roads Advisory Committee recommended at their March 19 meeting. She indicated the Metropolitan Policy Committee will be acting on this tomorrow.  She added the staff for the MPO area voted on recommended rankings that are consistent with those reflected in the board order exhibit.  She said the recommendation was for the two Eugene projects plus submitting a letter of support for the Lane Transit District Veneta transit project. She noted if the MPC accepts the staff recommendation; it will be consistent with what County staff is recommending the Board approve.


Barry said they are asking for the Board recommendations.  She added on Friday Commissioner Stewart is scheduled to attend the ODOT Region 2 all area meeting with the Board’s recommendation.  She indicated Lane County’s projects total $2.5 million or 25 percent of the $10 million minimum that is supposed to come to Region 2.


Commissioner Stewart opened the Public Hearing.


Ric Ingham, City of Veneta, applauded the work the County staff had done.  He said he sat through the Roads Advisory Committee meeting and he thought the projects did well.  He supported the rankings of the Roads Advisory Committee.   He indicated the City of Veneta and the Lane Transit project is a partnership and the City of Veneta has had in its comp plan for six years.  He indicated it is to enhance a park and ride facility and to build bus shelters to encourage a greater ridership. He stated that it is a major economic development project. He commented that they are a city without a defined business district and without a downtown.  He said the transit center is a piece of the overall downtown project they have undertaken.  He said the proposed site is on ODOT surplus property and they have been in negotiations with ODOT to acquire the property.  He said it is likely to be funded and they could complete the acquisition of the site.


Tom Schwetz, LTD, reported they would be adding additional runs to take advantage of the project and it would make transit a more effective option.


Mayor Kitty Piercy, City of Eugene, stated the City of Eugene is requesting the Board’s support of the Connect Oregon II grant application for improvements to the Eugene passenger rail depot. She said the project will contribute to their objective of building a strong multi-modal transportation hub that will serve the whole region.  She said they are committed to providing intermodal linkages and have identified the Eugene depot as an important site to provide those links.  She explained that the Eugene depot is a terminal for Amtrak’s interstate passenger rail service.  She added that it is designated as the southern terminas of Amtrak’s high speed rail system serving the Willamette Valley north of Vancouver and it provides regional bus services that connect passengers with passenger to rail services at the depot.  She said they believe the proposed improvements to the depot will significantly improve intermodal linkages by increasing the efficiency of connections between Amtrak and the local and regional transit providers and providing enhanced board facilities for Amtrak passengers. She added that increasing efficiency and reducing intermodal conflicts within the depot site will reduce transportation costs for regional and local transit providers.  She said it will encourage and facilitate community both to and from Eugene and the region.  She said although the depot project will be providing over eight times the minimum matching funds required under Connect Oregon II, with the design of the project already underway, the city needs to secure non-federal matching funds to construct the depot improvements so the Connect Oregon grant funds would provide the means to leverage federal funds.  She asked the Board for support of the depot project.  She stated the project is ready to go and it will create a transit gateway to major northwest cities to and from Eugene.  She commented that this is an example of multi-nodes that are important to all of the region and the state.


Brock Nelson, Union Pacific, explained that their project is designed to improve fluidity in and out of their yard for arriving and departing trains. He said it is difficult to quantify some of the benefits.  He said a project of that type will have network improvements and positive benefits on a variety of fronts.  He noted it will allow the main line through town to be clear that will enhance and improve their passenger service, freight service and fewer times crossings are blocked.  He added it is less time for locomotives to be idling emissions and noise.  He said it would improve the movement of transportation through Eugene.


Jamon Kent, Creswell, he said that County staff was easy to work with and it was a good process.   He said the Creswell Airport is trying to be an economic development site for the area.  He noted they are currently under a moratorium by the state fire marshal and they cannot do any more development until they have water for fire suppression for the buildings.  He indicated the funds would help get water to the site so they could open the airport for business.


There being no one else signed up to speak, Commissioner Stewart closed the Public Hearing.


MOTION: to approve ORDER 08-4-9-11.


Fleenor MOVED, Green SECONDED.


Stewart stated the projects are all priority projects and he will do his best to represent them as all high priority.


VOTE: 5-0.




a. REPORT BACK Coordinated Population Forecast 2030-2035.


Fleenor requested they roll this item.  He said they received information and he wasn’t given sufficient time to review this and he wouldn’t have been prepared to deliberate on the issues.


There was consensus to roll this to April 30, but public comments would be taken today. Stewart reported that the Board received comment last night from Ed Moore.




Mia Nelson, Lowell, indicated staff recommended Options 3 and 8.  She said since those won’t work, she discussed Options 2 and 5.  She provided a memo to the Board. (Copy in file).  She indicated that Winterbrook agreed that the overall County forecast exceeding the state OEA forecast without good reason is unacceptable. She commented that the individual city forecasts are insufficient because there isn’t a rationale for those forecasts.  She indicated that Winterbrook asked that a professional economist revisit the LCOG forecast and put in the missing justification.  She asked who was going to pay for the resurrection.  She noted that Option 2 has Lane County picking up LCOG’s report. She indicated that after two years LCOG hasn’t produced anything defensible.  She said the reason the report is flawed is that the whole foundation is missing. She commented that you start with results and try to finish putting in the reasons later. She noted that Lane County was being asked to pick off where LCOG left off.  She thought Option 5 was the only one that made sense. She wanted LCOG to hand over the raw historical data and have the professionals start over with standard methodology. She thought it would be the fastest and most cost effective.  She wanted a clean slate with Option 5.


Warren Weathers, Mayor of Lowell, asked the Board to adopt LCOG’s forecast.  He asked Lane County to expedite the inclusion of the forecast in the County’s Comprehensive Plan. He said according to the DLCD the forecast meets requirements of state law and regulations.  He said Lowell has been working on this issue since 2006 and the forecast coordinated by LCOG is finished and ready to adopt into the County plan without further delay.  He said it is important to Lowell.  He said they are trying to attract jobs and families to the community.  He said they need the forecast so they could react to population changes and community opportunities. He commented that the population forecast coordinated by LCOG has already been paid for by LCOG members and meets state requirements.  He urged the Board to adopt it and put it in the comp plan.  He noted that the City of Lowell is prepared to spend their share if the adoption is appealed based on coordinating forecasting data.


Dwyer wanted staff to analyze the letter from DLCD and get a response to their letter.


Jerry Valencia, Lowell, supported the UGB letter. He commented that Lowell wants to move in a different direction to be prepared for growth in all cities.  He said that all cities asked the Board to adopt the projections.


Fleenor noted that DLCD said they couldn’t support Option 3 and Option 8.


Mona Lindstromberg Veneta, stated she commented this morning about the lack of coordination and the formulation of LCOG’s population projections given the recent legislative action regarding the cities of Eugene and Springfield.  She also commented on the inadequacy of the information provided by DLCD.  She noted that attached to the staff report were comments by several small cities regarding the proposed population projections solicited by County staff. 


Doug Dupriest, Eugene, stated he represents Shade Tree.  He said the Board has to decide how to develop a population forecast.  He said the small cities wish to get a new population forecast and allocations in place soon and they urged the County to adopt LCOG’s report.  He asked if the County wanted to put time and money into attempting to develop a justification for LCOG’s numbers.  He said this would require reverse engineering.  He asked if an expert could come up with an adequate rationale.  He added if it couldn’t be done, then the County would have to start over or the County could adopt the consultant’s best attempt at an after the fact justification that would be appealed to LUBA.  He said that LUBA would decide whether the new justification meets all applicable real criteria including using accurate information and correct and verifiable models.  He thought it would be impossible to meet all of the criteria.  He said if LUBA were to remand, the County would have to start over and the small cities would still not have their population allocations. He said the Board has to choose whether to start with a result or let the process lead to the result.


Bill Grile, represented the City of Springfield.  He said their recommendation is to go with the safe harbor approach.  He commented that no matter what population figure they come up with they would be wrong because it is not a precise science.  He indicated the advantage of going with the safe harbor approach for Springfield is it allows them to continue the work they are doing to meet their obligations within two years to provide the 20 year buildable lands for residential housing.  He suggested coming back piece by piece with amendments to the plans to implement and make the land use decision.  He indicated that Springfield would be willing to cover the cost for the safe harbor for Springfield. He recommended asking counsel if the safe harbor approach would allow the County to go five percent above the OEA. 


Chuck Spies, Lowell, read a letter into the record.




a. DISCUSSION/Lane Transit District Update and Proposed Federal Charter Rules.


Green reported that the Board received an e-mail by the FTA.  He was concerned about the impact it would have on the Olympic Trials.


Andy Vobora, LTD, said part of his responsibility is to plan special event services and help event planners.  He said rules had always existed and the main change that occurred with the rule revision is that the pool of providers has gotten bigger.  He said it allows anyone to provide service.  He noted there were 25 bidders He indicated that what has changed is Oregon Coachways, was purchased by a larger firm out of Seattle and there is a renewed interest in these types of event services.  He said they are going through the process under the new rules to notify the project providers to see if there is interest.  He noted they put out a bid for the Eugene Marathon and they were interested in doing the afternoon piece of work.  He didn’t know if they could do that under the new rules.  He reported with the Olympic Trials, they have private providers providing pieces of the service already.  He added that they put in a petition to the FTA and they were told it would be ruled on by April 30.  He indicated there was discussion between DeFazio’s office and the FTA administrator.  He said currently it gets posted to an internet website and private providers could comment and FTA will make a ruling.  He was hoping they could get an exemption under this process.  He said they are ready to go as they have done a lot of planning and work.


Green asked if a letter from the Board would be supportive.


Vobora said the FTA didn’t want support from Eugene.  He thought there was support and the local organizing committee sent a letter to the senator and DeFazio’s office.  He said the FTA is in a tough position.  He said they would be there for support.  He said LTD can carry 100 people on their buses and the other company has about 55 seats. He hoped LTD could have influence on adjustments.




Dwyer announced that his grandson was born yesterday.


Fleenor announced his community dialogue at Robbie’s Windowbox Café in  Veneta.


Green indicated that tomorrow night is the Art of the Heart fundraiser for Head Start.


Stewart reported that he gave a presentation to the Eugene City Council about Lane County’s financial status and how they are preparing for next year’s budget.  He attended the EPUD meeting and they brought up the conversation about the Short Mountain methane agreement they have.  He said the EPUD Board gave direction to Mr. Lambe to terminate the agreement. Stewart indicated they have seen methane production decrease in the facility.  He noted the Board was willing to put in new technology to find a different way to deal with waste streams.










There being no further business, Commissioner Stewart recessed the meeting into Executive Session at 4:00 p.m.



Melissa Zimmer

Recording Secretary