BOARD OF COMMISSIONERSí
REGULAR MEETING

August 18, 2010
1:30 p.m.
Harris Hall Main Floor
APPROVED 9-15-2010

Commissioner Bill Fleenor presided with Commissioners Bill Dwyer, Rob Handy, Pete Sorenson and Faye Stewart present. County Administrator Jeff Spartz, County Counsel Liane Richardson and Recording Secretary Melissa Zimmer were also present.

12. PUBLIC HEARINGS

a. SECOND READING AND PUBLIC HEARING/Ordinance No. 6-10/In the Matter of Amending Chapters 13, 14, and 16 Of Lane Code to Add and Revise Definitions and Other Provisions to Be Consistent with Oregon Revised Statutes and Oregon Administrative Rules and to Make Certain Correction and Clarification Revisions (LC 13.010, 14.015, 14.050, 14.170, 16.090, 16.210, 16.211, 16.212, 16.213, 16.214, 16.233, 16.238, 16.243, 16.246, 16.250, 16.252, 16.258, 16.264, 16.290, 16.292) (File No. Pa 10-5133 and PA 10-5259). (NBA & 8/3/10)

Rafael Sebba, Land Management, explained that this ordinance consists of both legislative and housekeeping amendments to Lane Code Chapters 13, 14 and 16. He stated the legislative amendments will update Lane Code to be consistent with changes to the Oregon Revised Statutes and Administrative Rules enacted between 2003 and 2009. He reported that the Lane County Planning Commission held a Public Hearing on March 2, 2010 for the legislative amendments and recommended adoption. He indicated the housekeeping amendments involved clarification and updates that are minor and do not involve changes in County policy. He noted on May 18, 2010, the Planning Commission held a Public Hearing for the housekeeping amendments and recommended Board approval. He indicated staff thought it would be more efficient to combine the legislative and housekeeping amendments into one ordinance for Board consideration. He noted on July 29, 2010 notice was published in The Register Guard and notice was sent to interested agencies. He added that a Ballot Measure 56 notice was sent to owners of rural industrial properties within the Coast Fork and Middle Fork Willamette Watersheds to notify the property owners of the proposed legislative amendments that will no longer allow new wrecking yards in the Rural Industrial Zones. He noted the First Reading was on August 3, 2010. He added that one comment has been received regarding the wrecking yard issue.

Fleenor explained that the decision before the Board on the ordinance is subject to code amendments and criteria sited in the agenda cover memo and attachments. He said that evidence and testimony must be directed toward the approval criteria. He said this is an opportunity for those present to enter information into the record. Only persons who qualify as a party may appeal the Boardís decision to LUBA. He asked if there were any ex parte contacts.

There were none.

Stephanie Schulz, Land Management, reported that the supplemental memo responding to commissionersí requests at the First Reading was distributed last Friday. She said in responding to Dwyerís request, they provided the new private use Airport Overlay Zone classification in Lane Code in which the Board adopted in 2008, LC 16.296. She noted that five private use airports in Lane County (including the airport northwest of Veneta) are recognized in this section of the code. She said additional information was also provided in a supplemental memo in response to Handyís request regarding the issues listed by the Planning Commission for staff to highlight for the Boardís consideration. She said the Planning Commissionersí concerns were the definition of biomass, lack of language clarity, the newly created Oregon statute and the new opportunities that allow for biofuel production by local farmers in both EFU Zones, Exclusive Farm Use, and Marginal Lands Zones in the County. She noted that no specific direction was given to staff on language for that item. She said in closing the discussion the Planning Commission felt the farm community had thoroughly vetted these issues at the state level. She added the Planning Commission also directed staff to provide specific source documentation for a new tax assessment that were not available when lot divisions include open space dedication. She said the ORS 308(a) source document was presented in the first packet.

Commissioner Fleenor opened the Public Hearing.

Annette Mayer, Creswell, stated she needed clarification. She wanted to make sure the changes donít affect existing wrecking yards.

Sebba stated this was only for new wrecking yards.

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

MOTION: to adopt Ordinance No. 6-10.

Sorenson MOVED, Stewart SECONDED.

ROLL CALL VOTE: 5-0.

b. EIGHTH READING/PUBLIC HEARING/Ordinance No. PA 1260/In the Matter of Amending the Eugene-Springfield Metropolitan Area General Plan (Metro Plan) Consistent With Policy G.3 In Chapter III, Section G, Public Facilities and Services Element; Amending Table 6, Table 18, Table 19, Map 3 and Map 8 of the Public Facilities and Services Plan (PFSP); and Adopting Savings and Severability Clauses (Metro Plan Amendment) (Applicant; Springfield) (NBA & PM 7/8/09;7/22/09, 8/5/09, 8/26/09, 10/20/09, 11/4/09, & 2/3/10).

Fleenor explained that any decision regarding this ordinance is subject to the code amendment criteria sited in the agenda cover memo and attachments. Any evidence and testimony must be directed toward the approval criteria. He said this is an opportunity for those present to enter information into the record. He said only persons who qualify as a party may appeal the Boardís decision to LUBA. He asked if there were any ex parte contacts with the Board of Commissioners.

There were none.

Schulz recalled on October 20, 2009 the Board held a Fifth Reading on the concurrent Metro Plan and Public Facilities and Plan Amendment to update the city of Springfieldís project list and tables of significant stormwater facilities. She recalled at the Fifth Reading some of the Board members expressed concerns that the recent addendum did not adequately address concerns for protecting downstream property owners and specific citizens involved in previous discussions had not had the opportunity to review the adopted policy amendment. She noted on November 4, 2009, the Board held a Sixth Reading to allow review of packet material missing from the previous session and to hear input from County staff. She noted at that meeting staff expressed some of the complexities   of inserting ďno net increaseĒ language into Springfieldís Stormwater Management Plan and the difficulties of implementing such policies at the County level. She said on February 3, 2010 the Board held a Seventh Reading. She recalled the Springfield City Council had passed two revised ordinances to adopt the stormwater projects within the city and leave off projects shown on the Springfield PFSF maps in the UGB areas. She said the city structured their ordinances to approve only the projects within the city limits unless the Board adopts County Ordinance PA 1260, in which case the city action would be superseded by the County ordinance. She indicated that city staff expressed concern at that time that property owners outside of the city limits may face an increased risk of flooding if the County chooses not to adopt the proposed amendment because the projects located outside of the city limits as listed in the current Public Facilities and Services Plan are deemed inadequate. She said since the Seventh Reading on July 19, 2010, Springfield City Council held a Public Hearing and a revised Addendum 1 was adopted by the city council following the conclusion of the hearing. She said the amendment was developed in consultation of several downstream property owners who have all expressed their support of the amendment to the city council. She indicated a copy of the amendment entitled ďStormwater Management Plan Addendum 1Ē is enclosed in the packet. She reported the city of Springfield believes they have addressed the concerns within its control that were raised by the Board of Commissioners during the prior readings of the proposed ordinance. She said the city is requesting the Board proceed with Ordinance PA 1260.  She stated the County staff has reviewed the Public Facilities and Plan Amendment and are supportive of co-adoption by the Board. She indicated the amendment contains multiple flood control projects that would protect County residents from existing flooding and risks. She said the project list contains multiple water quality projects that would improve existing water quality deficiencies. She added that staff is also supportive of the cityís recent addendum to their recent stormwater management plan. She said although the Board has expressed to desire more stringent stormwater management policies throughout the County, staff feels this is beyond the scope of Springfieldís Public Facilities and Services Plan ordinance before the Board today. She indicated that County staff will be returning to the Board on August 25 for a work session for developing and funding stormwater objectives of the Board. She said should the Board defer their decision on this ordinance until after the work session or further time is needed, the city has voiced that they would be amenable to rolling this matter forward to a Ninth Reading in February, 2011.

Commissioner Fleenor opened the Public Hearing. There being no one signed up to speak, he closed the Public Hearing.

Dwyer commented that the addendum goes a long way to allay his concerns about dumping water on someoneís property. He said their concern was about people outside of the city. He was prepared to act on this.

MOTION: to approve an Eighth Reading and Setting a Ninth Reading, keeping the record open until September 1, 2010 at 1:30 p.m. for Ordinance PA 1260.

Handy MOVED, Sorenson SECONDED.

VOTE: 5-0.

c. PUBLIC HEARING AND ORDER 10-8-18-9/In the Matter of Legalizing a Portion of Hamm Road (County Road Number 715 1/2), Located in Sections 15 and 16, Township 19 South, Range 4 West of the Willamette Meridian and Adopting Findings of Fact (19-04-15 & 16) (NBA & PM 7/17/10).

Mike Jackson, Land Management, recalled the Board had a Public Hearing on July 14, 2010 for the proposed legalization of a portion of Hamm Road. He said the Board asked for them to report back with answers to questions they had. He said since the July 14 Public Hearing, they have contacted the five citizens that came to the Public Hearing. He indicated they have sent them maps of the legal alignment and the as traveled alignment. He said they have also received updates of todayís meeting. He said they have not received any objections to the legalization, although they have received objections to any kind of construction. He commented that was the common theme, they didnít want the curves made safer. He stated that this is a hearing for the legalization and they are trying to show the intent of one road.

Bill Morgan, Public Works, recalled a question asked was about the history of roadway improvement. He said the road is a rural major collector from Territorial to Creswell and Highway 99. He said they started improving it in the 90ís and sections closer to Territorial received modernization. He indicated  this 1.2 mile section was never approved because of funding. He added that because of all the curves in the road it is very costly. He reviewed the CIP the Board approves every year and there is no mention of this road being widened for capitalization either in the approved financially constrained list or the future projects list. He said it is clear to say that what they are doing is applying their preventative maintenance program, the same program on all 1,400 miles of roads in their system where they try to perform maintenance so they donít fall apart and they donít have costlier repairs in the future. He added this road is ready for an overlay. He said they have done chip seals in the past, but it is not going to provide the structural depth they need. He indicated they went through the record when they started looking at this overlay project. He said there is evidence in the packet that they met with property owners because in order to do any substantial curve widening there are environmental issues and right-of-way acquisition issues. He said when they met with the neighbors they determined it wasnít in the best interest to proceed with the major curve widening. He said they wrote back to them in December to let the neighbors know they are doing the typical preservation maintenance within the existing right-of-way. He added at that time they didnít know about the legalization issues. He said with regard to no new trucks, they went back into archives looking for information and they went back to 1967 and at that time it was closed to log trucks. He thought in 1967 the road was all gravel and in 1972 it was removed and replaced in 1973. He said they do not find anything else had been done since 1980. He thought as the section of roadway of Territorial to Creswell was improved, that the no through truck signs were removed.

Morgan said if the Board is interested in further pursuing restrictions on no through trucks, it is specified in ORS 818.040 and there are recommendations. He said they discussed the speed limits and provided information from ODOT about how there is an exact process to establish speeds. He said they reviewed the curves and where they think they can put additional signs, to advise the motoring public there are curves ahead, they can do that. He said they will look at each curve of the super elevation and the banking and they will make minor adjustments based on the designed speeds. He said none stand out of being out of spec.

Commissioner Fleenor opened the Public Hearing.

Charles Roberts, Creswell, said at some point the County changed the name of the road but they didnít tell him about it and he has two addresses. He said the main problem he has is that County employees do not have a lot of credibility in the county. He thought they were taking baby steps before the road is modernized. He said if the County does this slowly, the road happens. He thought the no truck sign should be back up. He said this isnít what the residents want.

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

Stewart indicted that he reviewed the CIP and has never seen anything to do with Hamm Road. He said they donít have the money to do an improvement project.

Morgan indicated they usually do shoulder rock enhancement and clean the ditches, but they do not reconstruct the road.

Stewart reiterated that they have a road that is not legalized. He indicated it is shown on the map that there is a house placed on the road that doesnít need to be there. He wanted to make sure that was all they are doing. He thought this should have been done a long time ago when the road was constructed but it wasnít.

Jackson stated the aerial photos show it has been in the same footprint for over 50 years. He said most of the deeds call to a County road and that is what needs to be established.

Morgan wanted the Board to consider the road as it is now: rural major collector, the prime access point between Territorial and Highway 99 or Creswell. He said if the Board wants them to come back separate from the legalization on the ups and downs of providing no through truck traffic, they would do it. He said others needed to be engaged.

Handy wanted a sign that stated: winding road 1.5 miles.

Morgan said for the signs they are proposing in the packet, they can (through the County traffic engineer) go out and put additional signing if they feel it will improve the safety. He said they have to go through the Oregon Department of Transportation for speed limits. He said they would have to start advertising this to all people who potentially use the road that it is a rural major collector and people using this for truck activity. He didnít know why the signs were removed. He asked the Board that if they donít want truck traffic, then he needs to be directed to come back with additional information.

MOTION: to approve ORDER 10-8-18-9.

Stewart MOVED, Sorenson SECONDED.

VOTE: 5-0.

d. PUBLIC HEARING AND ACTION/In the Matter of Holding a Public Hearing on the Request to Annex Territory, Identified as Map 18-05-06-30 Tax Lot 1805, to the Emerald Peopleís Utility District Under ORS 261.045 and 261.171 and Referring the Matter for a Special Election on November 2, 2010, General Election (File No. PU EP Ė 2010 ANX-2).

Commissioner Fleenor opened the Public Hearing.

Tina Batori, Eugene, stated she is not a customer of EPUD. She spoke in opposition to the proposed annexation election. She said she listened to the first hearing on the EPUD annexation request a couple of weeks ago. She wondered who was registered to vote at the property in question. She knew some of the information was public and she called Elections on August 4 to ask them. She asked who was registered to vote at 25226 Strawberry Lane in Veneta and how long they have been registered there. She said the answer was Alexander Burton Chappel has been registered to vote at the Strawberry Lane address since May 19, 2010. She indicated Strawberry Lane is the property that Patricia Chappel purchased and is the subject of the annexation request. Chappel stated that no one was living at that address. She asked who was registered to vote at 81311 Ridiculous Road in Veneta. She was told there are five people registered, none who is Patty Chappel. She said the Ridiculous Road address is where Chappel stated she lived when she came before the Board and it is part of the EPUD political district. Batori had asked who was registered at 88324 Vineyard Lane in Veneta. She said the answer is Patricia A. Chappel, who has been registered to vote there since November 1991. She noted the Vineyard Lane address is where Patti Chappel lived when she was elected to the EPUD Board eight years ago. She asked the Board of Commissioners how a public utility board can continue to keep a commissioner on the board that is no longer eligible for the office because she no longer lives in the voting district. She didnít know how they could justify spending money on an annexation vote that appears to be an attempt to get around the election laws.

Doug Schaller, Eugene, stated he is counsel for EPUD. He didnít have anything to add other than his take of the statute is that the legislature has provided a fast track procedure the Peopleís Utility Districts can avail themselves through a vote of the Board of Directors and that EPUD has sought to avail itself of that procedure. He said EPUD has passed a resolution and has presented the resolution to the commissioners. He said the statutory procedure is for the Board to call an election. With regard to the Strawberry Lane address, he indicated that Chappel is remodeling the house and does intend to live there at some point. He indicated the EPUD resolution is to the benefit of the people they serve and they can make that determination. He indicated that the statute shows the Board of Commissioners have to call an election.

Fleenor asked what the basis was for them to legally deny this.

Assistant County Counsel Andy Clark stated that Chapter 261 generally governs this process. He said it provides three methods to initiate annexation: by a resolution of the district; by petition of an affected property owner who want to be annexed into the PUD and by resolution of the Board of Commissioners. He said the procedures of Chapter 261 vary. He said the Board has to find compliance to Chapter 261, that the boundary of the property to be annexed is properly described. He said both of the criteria have been met.

Sorenson indicated there is one elector at the residence. He added that they have to make a decision that there are electors. He said there were no facts that there were electors at the address.

Clark noted that as of August 13 they have not had an elector on the property. He said it is not relevant to the Boardís role. He said as long as one is registered in the state, if they move they can register under the new address at any time including election day.

Sorenson asked what discretion they are trying to exercise.

Clark responded that the Board of Commissioners has discretion to do what they want. He said under the statute once they find the boundary is accurately described and that 198.722 has been met, then the Board shall refer the question onto the election.

Sorenson thought that EPUD was asking the Board to hold an election and when he reads their resolution, he doesnít see anything asking the Board to hold an election. He asked if they have to make a request for an election.

Clark didnít think so. He didnít think there was anything that suggests that an electorate needs to be more than one individual. He added by the time the election happens, there might be more than one elector. He said that Chapter 261 doesnít require that they request from the County that they forward it onto an election. He said it is primarily addressed in 261.141 that states annexation to an existing district may be initiated by resolution of the Board of Directors of that district. He indicated that it is minimal on what EPUD needs to do in order to initiate this annexation.

Fleenor asked what happens if they take no action.

Clark responded that if they take no action between now and September 2, they have effectively denied the application.

MOTION:  to consider this request at their next Board meeting next week.

Sorenson MOVED, Handy SECONDED.

Sorenson thought if they had additional time to consider this they are still actively considering this.

Handy wanted additional items for next week. He commented that it didnít make common sense. He wanted other properties included in this request.

Stewart agreed with comments that have been made. He didnít think this was a proper thing to do, to bring a property into a district for an EPUD board member. He asked for the minutes of EPUD because testimony led him to believe that this was a trial to see how they bring in the other 540 properties. He indicated the minutes clearly state that if someone wants to serve and they are not outside the boundary, but in the district, that they have a right to file to bring a piece of property into the district. He commented that information didnít sound like it was pertinent to what they are supposed to be dealing with. He thought this should be an example of what they give to Alex Cuyler for the state legislature to find out if this was an unintended consequence of what this law was passed for. He said if that is the direction that is taken, he wants the Board to ask the legislature to discuss this during the next legislative session.

Clarkís understanding of part of the issue with EPUD and the timing of this annexation is they recognize that there are a number of properties in the service area but not in the political boundary of the district. He said the intent is to square that up but the district  is waiting for the census numbers to come back. He asked if the intent is to bring this back and to keep the record open.

Sorenson wanted to keep the record open.

Clark said the hearing is not statutorily required but the omission by the statute is odd and given this Boardís interest, they have set it for a hearing. He stated the Board has to decide whether to refer this to Elections regardless if it set for a hearing or not.

Fleenor suggested for EPUD to pass another resolution for next week that says they want the Board of Commissioners to refer this for an election. He thought they could submit this to Elections without the Board having to be in the middle.

Clark said his interpretation of the statute is the Board of Commissioners has to refer the matter for an election.

Dwyer stated that if he made a motion, it would have been to postpone this indefinitely.

Fleenor asked why they would be bringing this back if there is no substantive change. He supported Dwyerís position that if there is not something different then they will be back where they started. He wanted to give EPUD the opportunity to present the Board with another resolution that might allow them a motion to be made.

Sorenson didnít think they have met the burden of this statute. He wanted to hold this over for one week.

VOTE: 4-1 (Dwyer dissenting).

13. PUBLIC WORKS 

a. THIRD READING AND DISCUSSION/Ordinance PA 1272/In the Matter of Amending the Eugene-Springfield Metropolitan Area Transportation Plan (TransPlan) to Adjust the Planning Period from Year 2015 to Year 2027, to Remove Completed Projects from the Project Lists, to make Related Amendments to the Eugene-Springfield Metropolitan Area General Plan , and Adopting a Severability Clause. (NBA & PM 6/17/2010 & 7/7/10).

Celia Barry, Public Works, recalled that there was a joint elected officials meeting on June 17 and at that meeting Handy submitted written comments into the record and then the Public Hearing was closed. She added the record was left open for staff responses. She said the Board of Commissioners moved to approve a Second Reading on July 7 and in that meeting, staff provided a response to the comments submitted by Handy and informed the Board of the Springfield City Councilís vote on the ordinance. She reported there was unanimous approval of what was approved by the joint elected officials at the June 17 meeting. She indicated the Board of Commissioners wanted to keep the record open to see what the city of Eugene did in their action. She noted on August 9 the Eugene City Council passed an amended ordinance. She said language that is listed in TransPlan for the West Eugene Parkway is no longer funded and is not listed in the programming document, the Regional Transportation Plan. She said the West Eugene Parkway may not be relied upon to support new development. She said there were three clauses in the amendment that the city of Eugene passed. She noted the first clause was that Sections 1 through 3 of the Eugene Ordinance wonít be effective unless both Springfield and Lane County adopt an identical amendment. She added it adds a new ordinance amendment Section 7 that adds a footnote to TransPlan explaining there is no funding for the West Eugene Parkway so it canít be relied upon for any new proposed development as a transportation facility providing adequately for transportation. She noted the third clause adds a new ordinance Section 8 that states the new Section 7 will only be effective if Lane County adopts an identical amendment. She indicated it was a gray area in whether it is a substantive change. She said if the Board wants to adopt the amendment, to hold a Fourth Reading.

Handy wanted another work session to bring this back, looking at the Metro Plan and TransPlan.

Barry said if they want a work session on the City Transportation System Plan, and the city of Springfield Comprehensive Plan, that she canít staff it because they are city issues.

Handy said DLCD asked the local jurisdictions to come back with their planned strategy in firming the language. He wanted a work session to debrief on what the various jurisdictions and planners are suggesting about how they are going to deal with a TransPlan that is not meeting their needs and is being looked at for some revisions and updates. He wanted more information on how the jurisdictions are going to respond to DLCD. He wanted a comprehensive discussion including the impacts of what happened at DLCD and how it might impact their looking at their Transplan and Metro Plan revisions and to have a more comprehensive work session.

Barry did not make that recommendation. She stated the report back to LCDC is to occur in March 2011 and in the last supplement she provided, she gave a calendar that gave all the planning efforts going on at MPC. She said they are developing materials for the September meeting for getting discussion around the multiple jurisdictions and what Eugene and Springfield are doing with transportation systems plan to address regional type of issues. She said those discussions are going on at MPC. She is not making a recommendation that they rehash all that information and create another work session. She indicated by passing this ordinance it will allow them to advance to the next step to get closer to meeting the deadlines.

Handy heard the city of Eugene responded to their invitation about long term plans and interest. He noted at the agenda team they noted that Mr. Whitman, head of DLCD will be coming down to have a work session with the Board and other cities. He recommended the order they do this in is to have their session first with Mr. Whitman and DLCD on the UGB and to schedule a work session with the city of Eugene planners who asked to have a work session like the one with the city of Springfield. He wanted to bring this back after they had those two work session.

Barry responded that if that is the direction the Board takes, they will need to do another legal notice.

MOTION: to approve a Third Reading and Setting a Fourth Reading and Discussion on October 20 at 1:30 p.m. for Ordinance PA 1272.

Handy MOVED.

Barry indicated the Public Hearing is closed and the record will remain open. She noted these are housekeeping changes and getting this done will allow them to move into the other areas that were approved by the joint elected officials on the work program that includes the analysis of land use that is being done and updating TSPís. She said those items will be when the Board can have a more substantive discussion about where they are going forward with greenhouse gas and climate change.

Vorhes asked if the motion is intending to include the change the Eugene City Council approved, recognizing if the idea is to fold amendments into this, it would entail some potential for needing to revisit the actions that Eugene and Springfield have taken on these housekeeping amendments. He added if they are not intending to change the ordinance on these items, then putting it off and doing something later that might adopt these changes, might not necessitate any additional action by Springfield or Eugene. He asked if the Board intends the new section action the Eugene City Council approved on August 9.

Fleenor said if they are holding this over, they should include the three different revisions the city of Eugene has passed. He asked the maker of the motion having those put into the ordinance so they donít have another requirement of a 13 day period.

Handy said if it simplifies things, they could consider it all at once when they have their overall comprehensive discussion. He was hesitant to send the message that by including it they are signaling they want to endorse it. He said he might have a different view if they are really housekeeping amendments.

Dwyer SECONDED.

Handy indicated the amendments from the city of Eugene are included in the motion. He added the record will be kept open.

VOTE: 5-0.

14. EXECUTIVE SESSION as per ORS 192.660 

None.

15.  OTHER BUSINESS 

None.

There being no further business, Commissioner Fleenor adjourned the meeting at 4:10 p.m.

Melissa Zimmer
Recording Secretary