BOARD OF COMMISSIONERS’
August 25, 2010
Harris Hall Main Floor
Commissioner Bill Fleenor presided with Commissioners Bill Dwyer, Rob Handy, Pete Sorenson and Faye Stewart. County Administrator Jeff Spartz, County Counsel Liane Richardson and Recording Secretary Melissa Zimmer were also present.
10. PUBLIC HEARINGS
a. NINTH READING, PUBLIC HEARING AND POSSIBLE ACTION/Ordinance No. PA 1249/In the Matter of Co-Adopting the Florence Comprehensive Plan 'Realization 2020 and Applicable Refinement Plans to Complete Periodic Review for the Urbanizable Area Outside Florence City Limits and Within the Urban Growth Boundary and Adopting Savings and Severability Clauses (File No. PA 08-5142, Florence) (NBA & PM 9/17/08; 10/1/08; 12/10/08; 4/08/09; 7/22/09, 12/2/09, 2/17/10, 5/19/10).
b. EIGHTH READING, PUBLIC HEARING AND POSSIBLE ACTION/Ordinance No. 7-08/In the Matter Of Amending Chapter 10 of Lane Code To Revise and Add Provisions for the Interim Urbanizing Combining District (/U) Applicable Within the Florence Urban Growth Boundary (LC 10.122-10, 10.122-13, 10.122-14, 10.122-15, 10.122-30, 10.122-31) (File No. PA 08-5142, Florence) (NBA & PM 11/05/08; 12/10/08; 04/08/09; 7/22/09; 12/2/09, 2/17/10, 5/19/10).
Stephanie Schulz, Land Management, explained that the Board has continued this Public Hearing from May 19, 2010 on Ordinance No 1249 and Ordinance No 7-08. She distributed additional information. (Copy in file). She reported that since May 19, the city of Florence has proceeded with implementation of a groundwater and monitoring study program under federal grant funding from the Environmental Protection Agency to the Siuslaw Estuary Partnership. She indicated that Lane County Environmental Services staff is participating in the study coordinated by the city of Florence and the Heceta Water District under Board approved IGA adopted by separate action on May 19, 2010. She said the IGA describes the testing and monitoring program for collecting up-to-date data on the current situation to inform any future measures or regulations for groundwater protection.
Schulz noted that this application was submitted to the Board for co-adoption of the Comprehensive Plan Realization 2020, a city of Florence periodic review work task. She said it has been under review by the Board for co-adoption since 2008. She noted on August 12, 2010, Florence sent notice of completed work Task Number 8 to the DLCD and they are requesting acknowledgment of completion of the task for application only within the city limits. She indicated in order for Realization 2020 to have applicability within the UGB of Florence, the Board would need to co-adopt the Realization 2020 Comprehensive Plan. She added that until such time the 1988 Florence Comprehensive Plan is the one in effect in County jurisdiction in the UGB. She said the Board could make a decision today. She indicated there is additional direction for staff for revisions or the need to consider the recent input into the process for discussions with the city of Florence. She noted they will schedule additional readings for a date certain.
Commissioner Fleenor opened the Public Hearings.
Daniel Stotter, Corvallis, stated that in his opinion, this is the most important mechanism the County has for any input into annexation. He noted there is no longer a Boundary Commission. He said the language the Board set in the Comp Plan is the most important way legally to have input to annexation. He suggested a continued dialogue to get it right. He submitted proposed language for modifications that would get them there. He wanted to delete the background section. He indicated the Board has received inaccurate testimony. He noted the author of the North Florence Dunal Aquifer Study has testified that it is inaccurate and the septic system problems the city of Florence admits has not been documented. He indicated the background section has no legal force or effect. He stated that there is a need to modify the policy for annexation Policy Number One. He noted there is already a mechanism for dealing with health hazard abatements and they should follow the statute. He suggested having Lane County and the city of Florence both make findings. He thought it was a good safeguard for the County to look at health hazards. He said they have no findings of any septic problems at all and that is a matter record. He said they are dealing with a situation where they are trying to have checks and balances in place in case there ever is harm. He said if there is harm, there is a state statute that deals with health hazard abatement. He indicated the city has suggested (and they agree) that only consent forms of annexation should be used. He said they modified that by noting where there is triple majority consent; there should also be the requirement of a majority of the electors registered within the territory proposed to be annexed. He said the reason for having the electors involved is that they don’t want to see a small number of very wealthy property developers pushing an annexation agenda on the electors of Lane County. He noted one of the policies he identified in Item 3 suggests that lands within the UGB “shall” eventually be annexed and he proposed changing it to” may.” He said there are circumstances where lands within the UGB are not appropriate for annexation and “may” is a more appropriate use.
Mike Van, Florence, said his concern is the city of Florence’s staff report and proposed language in Attachment B characterizes the North Florence Dunal Aquifer Study and the sole source aquifer language. His fear is that there doesn’t seem to be any division in the analysis if a septic tank fails. He added it is the same as current septic approvals that have been redefined and developed by the State DEQ and the Lane County Sanitation Department. He said they are high quality and efficient systems. His concern with the city staff’s report is that they continue to mischaracterize findings of the North Florence Dunal Aquifer study. He added that if they put bad information in print and it becomes part of a public document, it becomes the law and that was their concern. He wanted to make sure they have scientific standards for how things are judged.
There being no one else signed up to speak, Commissioner Fleenor closed the Public Hearing.
Dwyer asked Van how he would modify the language to address his scientific language concerns.
Van responded that if the city of Florence staff would review the North Florence Dunal Aquifer Study and adopt the language in the letter that Mike Lilly prepared, they would have no problem with it. He said the conclusion of Ralph Christensen (the primary author of the Florence Dunal Aquifer Study) is as long as they keep the density below 2.9 units per acre, there is not a problem. He noted the new septic systems and the type of soil there are sited on are sufficient and it will not create a problem. He indicated there is no place in their comp plan that addresses that issue. He noted the language in the letter would suffice if they would adopt the language.
Vorhes said the letter and the proposal from Stotter is to delete the language that is currently proposed for adoption and part of the ordinance in front of the board is the background information by Van and his lawyer in the letter. He noted the background section proposed for adoption is something that doesn’t need to be in the plan.
Fleenor stated he was concerned about the correspondence he received from Mayor Brubaker connected to the record. He said Brubaker states he has received no response from the Board of Commissioners. He thought there was a communication issue. He said he has spent time with the mayor and city manager about his concerns and there have been numerous e-mails with high level specificity with what he wants to see moving forward. He recalled the Board of Commissioners had given recommended language to the city council. He apologized to the city if they had not been clear enough as to what they were requesting. He commented that this will have long term effects for the citizens in the UGB. He thought they needed to be precise as to what it is going to take to move the 2020 Realization Plan forward.
Stewart said they should delete the information in Chapter 6 as was presented from Stotter. He and Fleenor met with the Mayor and the chair of the water district. He thought there was general consensus for language for annexation. He asked if it was much different than what is being presented by Stotter.
Fleenor indicated that they discussed the requirement for the city of Florence to enter into an IGA with the Heceta Water District. He recalled that during the meeting they found there was good will on both sides between the city and the water district to come up with an IGA. He acknowledged his position with respect to insisting upon language within the 2020 Plan mandating that the city reach an IGA with Heceta was not appropriate. He withdrew that as one of his concerns. He wanted to see stronger language either within the ordinance or the 2020 Plan that specifies there would be no forced annexation unless there is a public health rationale. He indicated the majority of consensus language that Mayor Brubaker was proposing would be of interest to him but he wanted a higher level of specificity with references to ORS 222. He said that Vorhes looked into the different statutes and they cannot find any reference to majority of consensus. He wanted to make sure there was no misinterpretation of their intention with respect to some sort of majority of consent, either double or triple. He said they are looking for fair representation.
Vorhes provided a copy of the pertinent ORS 222 sections. He said the difference between the proposal from Stotter is he adds a layer of elector consent to the triple majority to ORS 222.170. He asked if it was residents, not landowners who would be interested in voting and being involved. He said the landowners would be in the majority for calculations. He said the proposal and letter from the city with the background information is not a significant difference. He said the Mayor thought eliminating the language might be something the council would entertain.
Stewart heard the current policy in Florence is that they would only consider annexation by request from the property owner. He thought the only time they would be in that position is if they declared an emergency or public health directive from the state. He asked if they could have a clear language that stated unless it was a directed emergency that the only annexation is a request by the individual.
Fleenor was concerned about forced annexation. He said the only thing that is stopping Florence from forced annexation is Resolution 6 that they refer to in the ordinance. He was concerned if the resolution is changed in the future, then the citizens who have not been annexed have no protection. He wanted to insert language that offers the citizens an opportunity to participate in a democratic process in having the electors registered within the territory provide that level of protection.
Schulz recalled there was an April 6, 2010 letter the city had written to the Board responding to suggesting language and what they have agreed to. She said they agreed to remove the background information. She indicated the council would support the following policy language: Annexation of territory to the city of Florence other than to address health hazards per ORS 222.840 shall utilize an annexation method allowable by state law that requires a majority of consents. She indicated that is a sentence the city has previously agreed to.
Fleenor wanted to drill down using Oregon Regulatory Statutes to determine what that means. He said they are asking for more specificity with how that particular statute will be played out.
Handy thought Stotter’s idea was a good one, as it gets at all the issues in that they want to refer it to state statutes and to add additional language at the County so there is no misinterpretation of who the electors are. He was prepared today as a compromise to ask Vorhes to take some of Stotter’s language to add to the statute language and to bring it back to the Board for review . He said they can then send it to the city of Florence for their consideration as a way to move forward.
Sorenson wanted the city to respond to his questions. He said on August 23, Stotter sent an e-mail to Vorhes and Schulz, Exhibit 68 in the proceeding. He said Stotter makes three major points: to delete the background section, as there were inaccurate statements made about the North Florence Dunal Aquifer Study and he realized the testimony was divided on this point. He said Stotter wanted to modify the amendments for Chapter 14 concerning annexation policies to require the consent of a majority of electors registered within the territory proposed to be annexed. He said the third was to modify the background section for the urban growth boundary policy to read that Oregon Statewide Planning Goals identified by land within the UGB, outside the city limits as urbanizable lands that may eventually be annexed to cities and provided with municipal services in accordance with state law. He wanted to make the comments to the city.
Vorhes said the Board could incorporate those changes into their ordinance today and setting it for a subsequent reading and continued public hearing, leaving the record open so everyone can talk about what the ordinance should say and about the changes to the ordinance.
Fleenor thought there could be a motion to delete the background section for Chapter 6, air, land, water quality and modify the amendments suggested for Chapter 14 under Policy 1, as suggested by Stotter and to modify the proposed background section for the UGB, where they take it to “may” and have it drafted into their ordinance and set it out for a public hearing in two weeks.
Vorhes said this way they would give the indication of where the majority of the Board is headed or is considering going. He was comfortable with what the motion says so far. He noted reference to ORS 199.490 as the triple majority for the consent procedure is a Boundary Commission statute, not a city annexation statute. He noted ORS 222.170 is the triple majority under the city statutes. He said if the Board is comfortable with a motion with the correct reference statutorily, they could go with that.
MOTION: to approve a Ninth Reading with revisions incorporating the changes suggested by Stotter and Setting a Tenth Reading and Public Hearing for Ordinance PA 1249 for September 15, 2010 at 1:30 p.m., keeping the record open, including the changes for the Ninth Reading and move the Eighth Reading and setting a Ninth Reading and Public Hearing and possible action for Ordinance 7-09 for September 5.
Sorenson MOVED, Dwyer SECONDED.
Stewart asked if the city had to revisit this at their city council meeting and adopt it.
Vorhes said they have adopted an ordinance that included a background statement. He added that they have adopted some language around annexation, but they haven’t formally acted on the additional proposal made in April and May. He indicated they started their periodic review on the portion inside the city limits but there will be a need to come back with co-adoption on the portion outside the city and inside the UGB. He hoped staff would talk to the Board about their comfort level and what they might need.
c. PUBLIC HEARING AND ORDER 10-8-25-3/In the Matter of the Surrender of Portions of Pioneer Parkway East (Co. Rd. 2151); Pioneer Parkway West (Co. Rd. 2150); Hayden Bridge Way (Co. Rd. 667); Harlow Road (Co. Rd. 439); Wayside Lane (Co. Rd 1642); and Game Farm Road (Co. Rd. 3) to the City of Springfield.
Mike Jackson, Public Works, reported the city of Springfield has requested a surrender for certain portions of County roads in the Springfield area. He added they are primarily around the new hospital. He recalled that this was a part of the Lane County CIP project in 2005/2006. He indicated the surrender will transfer the maintenance, improvement and development responsibilities to the city. He stated that posting notices for the surrender has been completed.
Commissioner Handy opened the Public Hearing. There being no one signed up to speak, he closed the Public Hearing.
Dwyer explained the County is fulfilling their obligation.
MOTION: to approve ORDER 10-8-25-3.
Dwyer MOVED, Sorenson SECONDED.
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 People’s 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 – 2010 ANX-2).
Assistant County Counsel Andy Clark explained this is the third continuation of the hearing. He said they have left the record open until today. He stated that the Board wanted more time to consider issues they thought were relevant and that was why this was rolled over. He reviewed the issue on whether there is an overarching authority the Board has over election matters and whether that authority might override statutory authority. He didn’t find anything that clearly indicates the Board of Commissioners has the authority to act contrary to what a statute regarding elections might provide. He said performing elections in the state is a state function and the Secretary of State is in charge. He added the Board has a role to play in County elections. He said the role of the Board is to refer it on for election if they feel the statute criteria have been met. He said it is the only entity that can refer something to a County election.
Fleenor said he asked for a resolution from EPUD, specifically asking them to have the Board forward this to an election. He asked if Legal Counsel received the resolution.
Clark responded that he was not aware they received the resolution. He said the statute provides that once the body decides that Chapter 261 has been satisfied, then the Board’s role is to refer it onto Elections. He indicated they have a judgment making function initially as to whether or not the statute is met.
Dwyer commented that this fails the smell test.
Fleenor asked what their options would be if they take no action.
Clark said they have to have a hearing today.
Commissioner Fleenor opened the Public Hearing.
Jay Clifton, Eugene, stated he is representing EPUD. He said this is a project that was initiated in cooperation with County Counsel. He believed that this is the only mechanism involved. He said there are no indications that he is aware of that the Board of Commissioners play a role in EPUD’s decision to initiate an annexation or the property owner’s vote. He said Elections need direction. He thought Assessment and Taxation may have to also be involved. He indicated the resolution refers to processing an action by the Board of Commissioners. He noted the statute is clear that the direction is to direct that it be put on the ballot. He wasn’t aware of any reasons why there would be any other action to be taken by this Board.
Tina Batori, Eugene, stated she is not a customer of EPUD. She believes that all 1200 EPUD customers who are not in the voting district should be annexed into the district. She was in opposition to this EPUD request for annexation. She commented that those who are serving in the public’s interest should be careful in their actions so as not to appear to have conflicts of interest. She said the action proposed by the EPUD Board would be considered egregiously inappropriate. She asked why a public board administering millions of dollars of public money be held to a lesser standard when they propose an issue that is an advantage for one board member. She didn’t think they should. She asked the Board not remain silent on this.
Sandra Bishop, Eugene, opposed putting on the ballot the annexation request by EPUD for a single residential property. She said the boundary issues were settled by the original vote creating the PUD. She said there was a public vote and contractual agreements at the time of formation of the public utility. She indicated the question is whether action on the part of the Lane County Commissioners violates the contractual agreements with the original private utility or the vote from the public who voted to put the boundaries in place originally. She asked if the Board of Commissioners had any authority on doing anything that facilitates a boundary change. She noted that PUD’s predate boundary commissions. She asked if County Counsel had checked with the PUC to see if there are any public utility commission opinions or orders that would affect the boundary changes. She said the EPUD request for an annexation for an election is erroneously based on ORS 261.046. She said it is not true. She added there are specific provisions in ORS 198. She noted that all district formation or change of organization proceedings shall be initiated, conducted and completed as provided by ORS 198.705 to 198.555. She said there needs to be consideration under 198.795, jurisdictions over formation or changes. She didn’t believe that had been done to see if there are local plans that could be affected. She thought the Board had too many unanswered questions and this is precedent setting. She thought to let this go forward for one residential property is ethically suspect at the least and the Board needs to do their due diligence to make sure they are not violating any ethics provisions.
There being no one else signed up to speak, Commissioner Fleenor closed the Public Hearing and the record.
Sorenson asked if they could request the district and County staff to provide answers to their questions. He asked if they are under a deadline.
Clark responded the deadline is September 2, as that is the last date any matter can be set for the November 2 election.
Fleenor indicated the PUC has no involvement and it is a separate process. He asked if there was any agreement to move this matter forward.
Sorenson asked if the Board had to do what the law says as opposed to having discretion to determine whether the criteria has been met.
Clark said if the Board of Commissioners finds that Chapter 261 has been complied with and the minimal criteria there have been met, then the statute says the Board shall forward it onto Elections. He thought the Board had limited discretion in the case to determine whether the statute has been met and complied with. He said once the Board has decided that, discretion is over and the statute indicates they shall refer it forward for an election.
Fleenor asked what the recourse is to EPUD if the Board either does nothing or decides affirmatively no.
Clark said it could rest with a mandamus act against the County to ask a judge to force it to act in accordance with the statute.
Handy wanted to have EPUD work at pushing this to the next election cycle, including more residents in the proposal so it meets the statutes but it gets to some of the common sense issues.
Stewart asked Clark if in his opinion any of the criteria had changed this week.
Clark indicated that nothing has changed.
Stewart didn’t agree on how this was going. He said he can’t deny this when he has been told the criteria has been met and they shall make the decision. He thought that this could become one of the items of the legislative agenda to move forward as a change in the future.
MOTION: to send this matter to a special election on November 2.
Stewart MOVED. MOTION DIES FOR LACK OF A SECOND.
11. COUNTY ADMINISTRATION
Spartz indicated they need funding for the proposed town hall meeting on September 29 on the future of the Fairgrounds and the Events Center. He noted that the cost is about $4,000 for a thorough preparation. He said he is authorizing Amber Fossen, Public Information, to spend the money. He added the money is coming from the Board community outreach fund.
MOTION: to move that County Administration submit a board order to be put on the Consent Calendar for up to $4,000 from the Board outreach for the Fairground related issues.
Sorenson MOVED, Handy SECONDED.
Handy asked if this was for one meeting or a framework for a number of meetings.
Spartz said this is the cost for the meeting for September 29.
Stewart asked if this was something the agenda team should discuss. He said when this first came up, it seemed like it was for a couple of commissioners in their district to get public input. He thought it was valuable for the whole Board to be involved. He thought they should invite the Fair Board to be present and have a work session for the Board.
Fleenor indicated that was their intent.
VOTE: 4-0. (Dwyer out of room).
Spartz said it was not clear to staff regarding the outcome of the Economic Summit Meeting they held at LCC. He wanted majority direction to direct staff on how to proceed. He noted each department has created a list of internal priorities. He said they have not had a priority setting session yet across all departments to rank all programs. He directed departments to work to increase their lapse rate to five percent for this fiscal year that should generate several million dollars into the general fund. With regard to further program modifications or reductions, he indicated that direction needs to come from the Board.
Fleenor wanted the agenda team to discuss this today to determine when they can bring this back.
b. REPORT/Oregon Legislative Priorities for 2011 Session.
Alex Culyer, Intergovernmental Relations Manager, distributed supportive materials for his discussion. (Copy in file). He recalled in the 2009 Legislative Session, Lane County had four priority items the County took the lead on. He added several of their priorities were not able to move forward and those will come back as another discussion for the legislative priorities. He outlined 11 items for the Board. (Copy in file).
MOTION: to approve all of the legislative priorities for January 2011 as presented.
Dwyer MOVED, Stewart SECONDED.
Handy thought the process last year went well. He said they had concerns from the public regarding pesticides drift and whether they want to see large buffer zones for residents. He has been asked what kind of incentives they can look at the state level, in that they are trying to support the local agriculture industry, manufactured homes and around mom and pop fairness issues with manufactured home parks. With regard to transportation, he thought they are missing a solid rail policy. He asked if there were things on a policy level and economic development issues that fit in. He wanted Cuyler to bring this back to see where it might fight in.
Cuyler said in developing Item F, he was aware that Handy asked Richardson to prepare a letter. She shared a draft with him and he edited it after speaking with Spartz. His intention is if the Board directs him to be one of the priorities, then it could be a lead in to that issue. He noted the packet talks about a non-binding agreement about the people who were working on HB3057 from last session on the urban renewal district.
12. COUNTY COUNSEL
13. COMMISSIONERS' ANNOUNCEMENTS
Sorenson announced the visit of 29 women with disabilities from around the world who came to Eugene for a conference. He and Stewart attended a meeting in Portland with the Secretary of Agriculture.
Handy recalled last week the Board made a motion to set a Ninth reading for Ordinance PA 1260, amending the Eugene Metro Plan around Springfield Public Service Plan, stormwater issues. He said it is coming back for next week. He thought it would be best to consider doing a read and roll with the idea they won’t be deliberating on the no net increase and a way to signal to their partners in Springfield that they are not taking any action or major action.
Spartz indicated that public testimony will be taken but no action is contemplated except for rolling to a future date.
14. EXECUTIVE SESSION as per ORS 192.660
15. OTHER BUSINESS
There being no further business, Commissioner Handy adjourned the meeting at 4:00 p.m.