September 3, 2008
Stewart presided with Commissioners Bill Dwyer, Bill Fleenor, Bobby Green, Sr.
and Peter Sorenson present. County
Administrator Jeff Spartz, County Counsel Teresa Wilson and Recording Secretary
Melissa Zimmer were also present.
TO THE AGENDA
Executive Session will take place at 11:30 a.m. time certain.
Fleenor requested item 3.F.1) be pulled from the Consent Calendar.
Jim Seaberry, Eugene, indicated the last time he was before the Board, he sent an
e-mail to the Board on the Boardís changing a law to dissolve a district from
the Metropolitan Wastewater Service District without a vote of the people.
He recalled in 1972 the Boundary Commission was formed and then the Metro
Plan came to be. He added after that the Metropolitan Wastewater
Management Commission was formed. He
said the boundaries were formed up to the city limits, not up to Santa
Clara/River Road. He indicated that
the City of Eugene formed local improvement districts in the area outside of
their city limits. He recalled that
he was assessed for sewer lines and was forced to be hooked up to the sewer.
He stated that was declared illegal by the Appellate Court.
He said if the Board wants to take back building permits in that area,
they have to be careful and question that without the Board being on the service
district if they could properly represent the people at the time they had the
John Dotson, Eugene, discussed paragraph 3 of Stephen Vorhes, Assistant County
Counselís memorandum. He
commented that Vorhes was offered legislative counsel assistance through Senator
Walker. Dotson said Walker
introduced SB 417(a), the removal of the Boundary Commission.
He said Walkerís interpretation is different.
Dotson said in Walkerís view, the Board of Commissioners is the proper
authority to stand for the petitions under unfinished business where the County
residents are affected. He thought
when the Boundary Commission did this, they were in total error.
Stewart asked if Dotson was an attorney or if these were his opinions.
Dotson responded that these were his personal opinions and were founded on
the reading of Supreme Court rulings and the memorandums.
Jim Gillette, Eugene, encouraged the Board to have his first case tried first.
He asked about the County policy for violations and alleged violations.
He asked if County Counselís purpose was to make sure things were kept
legal and fair or to win at any cost. He
thought County Counsel should make the staff do their job properly.
He said he wants to avoid a battle.
He asked the Board to show him where he is wrong.
He stated that he has been honest. He
thinks he is right and he wonít quit. He
asked the Board to prove him wrong or end this.
Charlie Tibbits, Western Environment Law Center, Eugene, commended
the work the Board of Commissioners had done with them for the past 18 months in
moving the issue of field burning to the front. He commented that the issue has moved along well and the
governor now recognizes the importance of the issue.
He indicated that the issue today is about the governor not ending field
burning quickly enough. He urged
the Board to end field burning as soon as possible. He urged the Board to stick with Paul Holvey and Floyd
Prozanskiís bill because the public health of people does not need to suffer
any longer. He didnít want to
wait for a couple of years, he wanted field burning to be ended now.
A. Approval of
April 17, 2007,
Work Session, 9:00 a.m.
April 18, 2007,
Regular Meeting, 9:00 a.m.
February 12, 2008,
JEO, 6:00 p.m.
May 13, 2008, JEO,
July 9, 2008,
Regular Meeting, following HACSA
July 22, 2008, Work
July 23, 2008,
Regular Meeting, 9:00 a.m.
B. Health and Human
1) ORDER 08-9-3-1/In
the Matter of Appointing One Member to Fill a Vacancy on the Mental Health
Advisory/Local Alcohol and Drug Planning Committee.
2) ORDER 08-9-3-2/In
the Matter of Appointing Two Members and Re-Appointing One Member to the Public
Health Advisory Committee.
1) ORDER 08-9-3-3/In
the Matter of Authorizing the Sale of Surplus County Owned Real Property for
$1,201 to Charles and Pula Rasler (Map No. 18-15-33-00-00108, Adjacent to 42145
Big Fall Creek Road, Fall Creek).
D. Public Safety
1) ORDER 08-9-3-4/In
the Matter of Ratifying Execution by the County Administrator of Modification 8
to Intergovernmental Agreement 047-9 Between the Federal Bureau of Prisons and
Lane County to Increase the Per Diem Daily Rates.
E. Public Works
1) ORDER 08-9-3-5/In
the Matter of Amending the Intergovernmental Agreement with the City of Eugene
to Extend the Expiration Date for Cooperative Services Regarding the National
Pollutant Discharge Elimination System (NPDES) Phase II permit held by the
2) ORDER 08-9-3-6/In
the Matter of Accepting a Dedication of Land to be Used as a Public Road
Easement for County Road No. 846 (Lorane Highway) (18-04-14).
1) ORDER 08-9-3-7/In
the Matter of Allocating Funding for the FY 08-09 Association of Oregon Counties
Dues from the General Fund and the Road Fund.
G. County Counsel
1) ORDER 08-9-3-8/In
the Matter of Settling Claims of Jennifer and Mark Reese.
H. Human Resources
1) ORDER 08-9-3-9/In
the Matter of Approving Benefit and Compensation Changes for Non-Represented
to approve the balance of the Consent Calendar.
3. F. 1)
to approve ORDER 08-9-3-7.
Dwyer MOVED, Green
3-2 (Fleenor, Sorenson dissenting).
support of FEMA staff. He recalled
in 2005 New Orleans was hit by hurricane Katrina.
He indicated there was limited flooding with this current storm.
He said his family evacuated and came through okay.
a. RESOLUTION 08-9-3-10/In
the Matter of Recognizing September 2008 as Local Infant Mortality Awareness
to approve RESOLUTION 08-9-3-10.
Stewart read the
resolution into the record.
CVALCO, distributed the Semi-Annual Report. (Copy in file).
She recalled that she reports to the Board of Commissions each six month
period. She reported that for every
dollar the County has invested in CVALCO, they
are returning $52 dollars in return. She
indicated they made a change in the visitor information services formula this
year. She reported that all program
areas performed well.
With regard to page
4, Westlund indicated in 2007 Lane County visitors brought $573.7
million into the Lane County economy related to the visitor industry.
She added it involved more than 7,500 jobs associated with travel and
tourism. She indicated that number
was a four percent increase from the previous year in overall visitor spending.
She reported the total room tax for the program year ended July 30, was
up 9.4 percent. She indicated for occupancy, they only saw about a 2.9
percent increase. She added that
there were new rooms that came into the market and the hotel operators were able
to maintain rates even though the economy was softening this year.
She noted that even though The Three Rivers Hotel in Florence is not
subject to County taxation, they are providing revenue every quarter based on
the basis of their hotel cash revenues and supporting the overall destination
marketing efforts like all the other hotels through tax collection.
that Amtrak ridership is up 8.9 percent. She
added that air arrivals are up seven percent for the program year.
She commented that there is uncertainty in the future around air service.
that they had budgeted to do a dual cover guide as their new design for
advertising. She said they are
having their guides placed in the Portland International Airport.
She reported that they worked with 16 different AAA agencies on a program
for Lane County. She said they
worked on a project called Travel Channel Europe.
She reported that it is part of a 13 episode series that will run for
three years in Europe.
With regard to page
12, Westlund reported that visitor services were off from the past two years but
are still in the normal range. She
said they struggle to drive traffic downtown to their visitor information
center. She added they are looking
at ways to get the visitor center to I-5, closer to traffic.
She reported that membership had a great year with 114 new memberships.
She added their memberships remains over 600 members.
that integrated marketing is a relational data base that all of their
information is in about their members and the attributes of Lane County.
She indicated that data base drives their website and their publications.
She stated they changed how they measure visits to the website.
She added they also upgraded their servers and their phone systems.
b. REPORT/Update on
Lane County Annual Ryegrass Straw Conversion to Renewable Energy Study.
Economic Development, recalled the County applied for this grant in December.
He stated that they were awarded the project and it began in April.
He explained that this is to conduct a feasibility study to identify near
term viable options for adding economic value to annual ryegrass straw for
renewable energy and fuel production, creating an alternative to field burning.
He indicated they are two-thirds the way completed with the study.
He noted there is an interim report that will be coming at the end of
September. He reported that it is
technically feasible to convert grass straw into renewable energy through the
conversion processes they are reviewing. He
indicated that all of their lab tests have been completed.
He added they are looking for financial viability in three stages:
from field to whatever the facility is; within the facility and what has
to happen on the field if they take grass off instead of burning it. He hoped they could identify alternative solutions through
the process that makes financial sense. He
added that they are raising more issues that will need to get addressed.
He noted under timing and implementation, the draft report will coincide
with the request from the Oregon Department of Agriculture.
He added that it is based on an invitation from the House Committee on
Agriculture and Natural Resources to secure $350,000 from the legislatureís
Emergency Board to prepare a business plan for specific renewable energy
projects based on using annual ryegrass straw as a field source.
He stated that the business plan would address overcoming the financial
issues they raised in their feasibility study.
indicated there has been a request from the Emergency Board asking if Lane
County supports the application from the Department of Agriculture.
He requested a letter from the chair to be sent to the Emergency Board.
sending the letter, although he said it might not pan out to be economically
Dwyer stated that
he had concerns. He noted that
other communities had done away with field burning without a jumpstart from
government. He commented that the
government has regulatory powers and they need to use the powers.
He added that the free market will take care of itself once it is
government regulated. He stated
they have to regulate the obnoxious practice out of existence.
sending a letter to make their support clear for the continued assistance from
the Department of Agriculture. He added that their economic development work in
no way changes the Boardís commitment they have voted on to urge the state to
ban field burning. He said they
want to be clear they donít want to impede Holveyís legislation, they want
it to go forward and are supportive of the legislation. He added they are
maintaining their previous position in urging the
legislative assembly to adopt a ban. He thought they should pursue the
legislative route simultaneously with economic development potential.
with Sorensonís comments. He supported any letter that enumerated the points
that Sorenson made.
the direction in trying to make it a reality.
that Alex Cuyler, Intergovernmental Relations Manager and McKenzie-Bahr draft a
letter to be brought to the Legislative Committee meeting.
REPORT/Department of Environmental Quality (DEQ) Briefing on Field Burning
Oregon Department of Environmental Quality, recalled in 2007 Rep. Paul Holvey
proposed legislation that would have banned field burning and regulated other
types of burning in Oregon. He said
that bill received a hearing in the Health Care Committee and passed the
committee. He added there was
testimony about economic impacts of banning field burning. He noted it did not pass from the Agriculture and National
With regard to
health effects of field burning, Ginsburg said there was discussion in 2007
about how smoke from field burning contributes or doesnít contribute to
violations of federal air quality standards.
He added that the federal government has set up the standard for smoke
based on a 24 hour average. He
noted that field burning has a high concentration of smoke for an hour or two,
there is not a concentration that is over the 24 hour average.
He added that field burning doesnít take place in the winter and that
is when they have other inversions. He
indicated in 2007, field burning wasnít a primary contributor to violations of
the federal standard. He noted that
there is evidence that short term exposure of high concentrations of smoke can
be health hazards for people with sensitivity to asthma or other respiratory
conditions and for the children and elderly.
Ginsburg noted that
after the 2007 session, they received a letter from Commissioner Stewart asking
the Environmental Quality Commission to look at administratively banning or
restricting field burning. He had
the Department of Justice evaluate the existing statutes. He indicated there are two pathways in the current statute
where the Environmental Quality Commission could restrict field burning without
new legislation: if they made a
finding that field burning constitutes an extreme danger to public health or
safety and that danger constitutes an emergency.
He indicated that there wasnít a lot of legislative history about what
it means. He said if it was for
safety, the maximum amount of time the commission could ban field burning would
be up to one season. He thought it
would be a high risk scenario to go forward with legal exposure. He added that it would be a factual finding the commission
would make that could be challenged in court.
He noted the other avenue under the current statute is if the commission
made a finding that there are economically viable and environmentally acceptable
alternatives to field burning, it could reduce the number of acres that would be
burned if they found more alternatives were available.
He noted that could be a finding of fact that could be challenged and it
would require the commission to have knowledge about alternatives.
what farmers are currently doing is rotating fields and every field is getting
burned but less frequently. He said
if they were to reduce the number of acres burned, they might find that
different alternatives are necessary.
Ginsburg noted that
after the Department of Justice reviewed this, they advised the Environmental
Quality Commission that the DEQ didnít have the facts to support their
findings that they would need to do additional studies and they didnít know if
they would be able to prevail. He
said the Department of Justice directed them to go to the 2008 Special
Legislative Session to request funding to do the research needed to support the
findings. He added that they made
the request but did not get the funding. He
noted in preparation for the 2009 legislative session, the governorís office
asked if they should request funding to do the studies to take an administrative
action under existing statutes to restrict field burning or to introduce
legislation that would phase down field burning.
He indicated the response was to introduce legislation instead of
continuing with more studies on health effects or alternatives. He noted there was no direction about the length of a phase
down or how far a phase down would go until last week when they received
direction from the governorís office that the phase down would be to zero in
2011. He indicated that it is a two
year phase down.
that the most important provision is in ORS 468(a).610 on page 1. (Copy in
file). He indicated the total
acreage for burning would start at 65,000 acres and work down to zero by 2011.
He noted there is an exception: in
the event of a disease outbreak infestation or a concern about irreparable
damage to the land that would result in an extreme hardship.
He indicated that it would require the Environment Quality Commission to
make a finding that they have an emergency situation and would allow a temporary
authorization for burning.
Ginsburg noted that
SB 235 was passed that authorized the commission to regulate emissions from
agriculture to the extent necessary to comply with the Federal Clean Air Act.
He said it was passed because the Environmental Protection Agency
received a petition from a coalition of environmental organizations claiming
that Oregonís air quality program was insufficient because they had a blanket
exemption for agriculture. He said
they asked the EPA to withdraw Oregonís authority to run the Clean Air Act
programs. He said the EPA agreed with that analysis as to the
Department of Justice. He said SB
235 regulates agriculture if needed to comply with the federal Clear Air Act.
He indicated the field burning statutes are separate specific authority
for the commission to regulate field burning.
He said it wasnít clear under SB 235 whether the commission could
regulate field burning beyond what was laid out in the field burning statute if
needed to comply with the Clean Air Act.
in a new section, the DEQ would be directed to evaluate all of the open burning
programs in Oregon, whether the program is run by a local agency, tribal agency,
state agency, federal government or another state. He said it would not give the department new authority to
override the decisions of the other agencies, but it would allow them to get a
handle on the overall picture on how all the programs would fit together.
that the pilot feasibility study for straw conversion to renewable energy
remains important if they are going to phase out field burning.
He indicated that currently there is no market for rye grass straw in the
southern valley and it would be important for legislation to move forward with
research and development to have alternatives that would make it more viable for
farmers to comply with the ban on burning.
He stated the DEQ supports the project and is prepared to support the
request of the Emergency Board.
Sorenson asked why
they would want to phase down instead of an immediate ban.
that this was the governorís proposal. He
recalled the original phase down was over eight years from 180,000 acres to
40,000 acres. He indicated that was
to allow time for alternatives to be put into place. He added a three year phase down to zero is rapid regarding
the shifts that will have to occur with the industry. He added by the time the 2009 session is over, they will be
in the 2009 field burning season. He said it would be hard to implement any
changes at that late date administratively and that was why the governor thought
to introduce this as legislation.
Green asked what
DEQ could do administratively.
Ginsburg stated the
commission has the authority to restrict field burning further under existing
statutes, but they donít think they have the evidence to support their
findings. He added if they made
such findings it would likely be challenged.
He noted the commission has adopted a smoke management plan and the
Department of Agriculture implements it. He
stated that things could be done to improve the current implementation of the
program but it is dependent on accurate meteorological predictions.
He added the weather changes rapidly and when the ODA authorizes a
burning, it is at the last minute and it makes it difficult to notify the
public. He commented that even under ideal conditions where the wind
is blowing away from populated areas, it is blowing toward rural areas.
DISCUSSION/Boundary Commission Annexation Petitions.
with Dotsonís previous comments. He said the situation discussed two and a
half years ago is the same now. He
recalled that in each of the cases when the petitions were presented to the
Boundary Commission the Board of Commissioners was also advised of it.
He said in each of the cases they did the analysis, looked at the
petitions and considered if there were the requisite number of electors
objecting to the approved annexations. He
noted that there were none. He said the Boundary Commission thought they were
done with the petitions. He
recalled that Dotson asked how SB 417 affects these and under Section 4, it
describes what happens to unfinished business before the Boundary Commission.
He said in all of the cases the petitions were relating to an annexation
to the City of Eugene. He added
that if there is anything unfinished under the statute that has been cited to
the Board of Commissioners as authority for calling an election, it takes a
certification from the Boundary Commission.
He explained that the role of the Board of Commissioners on calling an
election on an approved annexation depends on the certification by the Boundary
Commission, or if it is an unfinished certification by the city that there were
the requisite number of objectors filing an objection to that approved
Fleenor stated that
there was previous testimony from Senator Walker (who co-sponsored SB 417(a))
that indicated the Boundary Commission or the Board of Commissioners could stand
in lieu of the Boundary Commission for unfinished business.
He asked at the time when the petitioners submitted the petitions, if the
Boundary Commission was in existence and if the Boundary Commission was required
to hear the testimony and process the petitions.
He said the Boundary declared they had no intention of doing that, they
went out of business and the unfinished business was never completed. He asked
why the Board of Commissioners couldnít take this on, process this and give
the citizens the proper involvement.
that if it is not unfinished business, the Boundary Commission did not have the
requisite number of objectors under the statute of ORS 199.505 to certify. He
said the Boundary Commission looked at the objectors in the affected area and
checked with Lane County Elections to confirm the objectors and advised the
Boundary Commission of the results. He
added in each case there was nothing left for the Boundary Commission to do on
those petitions. He indicated that
none of the signers of the petition lived in the area affected.
that in the transition period, the benefit should go to the citizen, not to a
technical interpretation of the legislation.
that in each case, the approved annexation was to become final unless there was
a certification and an election called for under the statute that was in place
at the time. He indicated there
were a number of annexations that are final and have been approved.
He said the challenge to the Boundary Commission could have come in each
of those cases at that point in time.
Fleenor asked if
they wanted to review the petitions to see if there were sufficient petitioners
certified and if found that there were, what would happen.
Vorhes said the
time for challenging it judicially has come and gone. He said under the transition provisions of SB 417; the
certification action authority now rests with the cities if those are still
Eugene, stated the petitions that were given to the Boundary Commission, did not
come before the Boundary Commission and they donít appear in the minutes of
any of the Boundary Commission meetings. He
indicated they were responded to by Paula Taylor, they were never before the
Lane County Boundary Commission. He
said they werenít talking about an elector or a person annexing his piece of
property. He asked if they would allow one elector to speak for all of
the stakeholders on the streets they were addressing on the petition.
Vorhes said the
statute calls for objections by electors. He
said the Boundary Commission had to look at all signers of the petitions to
determine if they met what the statute called for.
Seaberry said it
falls back to the Board of Commissioners as they are the representatives of the
people who live along the streets. He
said they were the County streets that were annexed in.
Fleenor wanted to
provide appropriate citizen involvement. He
said if they have to be very lenient in interpretation, he would prefer to do
that if they could legally do it. He
said if they are absolutely blocked legislatively, he would understand.
He asked if they could use citizen involvement.
He asked if there was any opportunity to review the petitions to verify
they had sufficient numbers of electors. He
asked if the Board of Commissioners could provide guidance about an elector or
if it was a legal interpretation.
Vorhes stated it is
a legal interpretation. He
disagreed that reading this statute in a way that a person with an interest in a
property affected by the annexation could have an ability to trigger an
election. He commented that if that
was what the legislature intended, and if that was what the Boundary
Commissioner was given the authority to do, that is what the legislature would
Fleenor asked how
they could get a definitive ruling on this.
He asked if there was a way to look at this from a different set of eyes
to verify what Vorhes is saying is exactly what it is.
Vorhes said there
are two separate statutes. He said
the statute in place at the time the petitions were submitted to the Boundary
Commission, were reviewed by the Boundary Commission staff and that language
called for electors in the affected territory.
He said electors are defined by the Constitution.
Fleenor noted the
Lane County Boundary Commission made the interpretation that these were not
appropriate electors, therefore there were not sufficient signatures and that
was why it never came before the Boundary Commission.
Vorhes said there
was not a basis for the Boundary Commission to take action to certify to the
Board of Commissioners that there was a need for an election.
He said as he told the Board two and a half years ago, it is for the
Boundary Commission initially to make that determination and unless and until
they certify that there is a requisite number of objectors, under that statute,
there is not a role for the Board of Commissioners to call for an election.
Fleenor asked if
they could possibly look to see if there were sufficient objectors.
He thought it would satisfy peopleís interest.
He said they should allow the citizens have their say in court.
He wanted to reconfirm whether the objectors were out and if they were
out, then they would be finished with this.
want to see the Board of Commissioners wasting time as they would get to the
same amount of electors. He said
that wasnít the problem. He
indicated the problem was an elector or two cannot speak for the annexation of
the streets and roads. He stated
they are stakeholders, not electors. He
said it was the stakeholders who they were petitioning for. He said the Boundary
Commission never saw the petitions. He
said the Boundary Commission didnít say they didnít have sufficient electors
because they didnít see the petitions.
that this be continued to allow him to spend time with Vorhes and Seaberry so he
can understand the mechanics and then come back to the Board to see if they can
have a resolution.
Stewart thought it
was clear what the legislature and the statute says but he would be willing to
Senator Walker should be a part of the conversation to find out what her intent
additional time should be spent on this. He
agreed with Vorhes that an elector is a specific word in the Oregon Revised
SESSION as per ORS 192.660
Per ORS 192.660(2)(e) for deliberations with property negotiations and PER
ORS 192.660 (2)(h) for consulting with counsel on litigation.
There being no further business, Commissioner Stewart recessed the meeting into Executive Session at 11:40 a.m.