BOARD OF COMMISSIONERS'
REGULAR MEETING
April 27, 2011
1:30 p.m.
Harris Hall Main Floor

APPROVED 6/22/2011

Commissioner Faye Stewart presided with Commissioners Jay Bozievich, Rob Handy, Sid Leiken and Pete Sorenson present.  County Administrator Liane Richardson, County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.

12.  PUBLIC HEARING

a. 
PUBLIC HEARING / ORDER 11-4-27-13/In the Matter of the Proposed Surrender of a Portion of Harvey Road (County Road Number 1088) to the City of Creswell.

Mike Jackson, Surveyor, said this is a surrender for a portion of  Harvey Road.  He added the measurement is.34 mile.  He said they want to surrender this to the city of Creswell.  He recalled that the school district originally requested this  be on their CIP project list for improvements.  He recalled in 2007 the Board approved the Harvey Road improvements to the CIP list. He said after the completion of the construction and all the other work, Harvey Road was to be surrendered to them.  He noted in 2010 the city annexed that portion of Harvey Road in order to make way for the surrender and at the beginning of 2011 the city formally requested surrender by resolution 2011-02.  He indicated that all legal notices have been posted and provided per ORS 373.270.

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

MOTION: to approve ORDER 11-4-27-13.

Leiken MOVED, Sorenson SECONDED.

VOTE:  5-0.

13.  PUBLIC WORKS

a. 
ORDER 11-4-27-14/In the Matter of Amending a Contract for Construction Management/General Contractor (CMGC) Services with Chambers Construction Co. for the Public Works Customer Service Center to Include the Guaranteed Maximum Price (GMP).

Tanya Heaton,  Public Works, said they are taking the next and final step in the contracting portion of the Customer Service Center.  She recalled that Public Works has been working on this project for about two years.  She indicated they have come to the Board discussing the progress nine times.  She noted the project budget has moved through the development process.  She reported it is currently at $6.2 million for the remodel of the south portion of the North Delta Garage (previously known as Qwest).  She indicated a bond was sold including $5.2 million for the non road fund eligible portion of the project.  She added $1 million is budgeted for the road fund eligible costs.  She noted at the end, Value Engineering was used to reduce the project to fit the budget.  She added the items that were removed will be prioritized and may be added back when bids come in and the excess budget is noticeable.  She said the GMP for the construction is $4.590 million.  She indicated that it has been extensively reviewed by the project team, architects and construction management team. She added there are several alternatives that will be bid over and above the GMP in case the bids come in lower.   She noted that one includes improvements to the roof that would allow solar equipment to be added onto it.  She said the current estimate for the roof is $190,000 and it is not in the GMP.  She said when they designed the project, they wanted to reach the LEED Silver Rating and through the analysis and development of the design, they are now at a LEED certified rating. 

Handy was disappointed about solar dropping off the project.  He asked what the options are to get it back at this stage.

Heaton said they have the options.  She indicated that it will be bid.  She added the solar panels on the roof are not what they are bidding.  She said they are bidding improvements to the roof that could hold solar.  She added they would have to decide if that was a road fund eligible cost.

MOTION: to approve ORDER 11-4-27-14.

Bozievich MOVED, Leiken SECONDED.

Handy said he will support this today, but he is starting to have second thoughts about some aspects.  He wants to see solar move ahead.

VOTE: 5-0.

b.  ORDER 11-4-27-15/ In the Matter of Electing Whether or Not to Hear Arguments on an Appeal of a Hearings Official's Decision affirming the Planning Director’s Approval of a Site Review for a Quarry Mining Operation (File PA 07-5298/Overholser)

Jerry Kendall, Land Management, explained that this is an elect to hear for an appeal of a proposal.  He indicated the proposal is a quarry mining operation that per Lane Code (before it could operate) required a site review by the Planning Director.  He said the proposal  is 20,000 cubic yards extraction per year.  He noted the property is approximately 18 acres in size and is zoned quarry mining.  He added the property is located approximately two miles south of the city of Cottage Grove.  He said the appeal was filed under an Option 2 appeal to the Board where the lesser fee was paid by selecting that option.  He said the appellants and opponents of the quarry, Families for a Quarry Free Neighborhood, are stating through that option that they wish the Board not to elect to hear the item and let it proceed onto LUBA.

Kendall explained that Lane Code Chapter 14 was changed in December  of 2009 to allow the option and part of the balance of having two options available is when they pay the lower fee, they can go directly to LUBA.  He said the standard for Lane Code for which the Board needs to examine the proposal on elect to hear is found in Lane Code 14.600(3).  He noted the first general statement is that the Board cannot elect to hear the item if it has gone over the 150 day ORS timeline requirements.   He recalled the application is from 2007.  He said it was held as a Planning Director Evidentiary Hearing at the time it was submitted.  He added the record at the Planning Director evidentiary level closed on October 31, 2008.  He noted in-between that time there were waivers granted by the applicant Overholser,(represented by the attorney Joseph Leahy) to allow more submittals into the record.  He said after the record closed, it took until March 2010 to get the Planning Director decision out.  He added after the Planning Director decision was granted there was legal review that took another six months and then the Director decision was issued.  He said the Hearings Official’s decision was set up and rendered in March 2011.

Kendall explained one appeal is a procedural appeal and the other is substantive.  He said in terms of the procedural appeal, it was complicated in that in mid stream of the whole process, Lane Code Chapter 14 was revised by the Board in December 2009.  He added that it was after the Planning Director Evidentiary Hearing was held.  He noted that resulted in legal confusion when the Planning Director evidentiary decision was appealed by the applicant, because they disagreed with the imposed conditions.  He said that Dan Stotter wanted his parties to be able to participate in an on the record official hearing. He indicated that according to the old code, it stated that if the Planning Director conducted an evidentiary hearing, (which they did) that unless it is appealed, they are shut out participating at the Hearings Official  level.  He noted that Lane Code had already changed by the time it came before the Hearings Official and Stotter wanted his clients to be a party and the Hearings Official had to make a ruling.  He indicated the Hearings Official stayed with the old code in this regard, ruling that if they selected to do a de novo hearing, (which the current code requires on appeal of a Planning Director) it would set the applicant unfairly back and would prejudice him.  He added that the Hearings Official didn’t feel the appellants (the opponents) were necessarily prejudiced because all of their comments were put into the record at the Planning Director stage and he took note of that in his decision.  He ruled that Stotter’s clients were not party at the Hearings Official level.    He said for the Board to determine whether or not to hear, they folded in the recommendation of Option 1 that the Board specifically agree with the Hearings Official decision and specifically and expressly agree with all of his rulings.  He noted for the Board, (as the adopters of Lane Code) there is case law that states it is not necessarily adequate enough for the Hearings Official to make that ruling.

Kendall explained that the second phase in the appeal is more substantive.  He said they objected to the connection when the Hearings  Official modified the conditions of approval from what the Planning Director had first decided upon; the connection between the approval standards of the site review criteria. 

With regard to the four standards, Kendall said if the Board determines that any apply, they are directed by Lane Code to elect to hear the item.  He said if none apply, then the Board is directed by the code not to.  He said the first standard asks if it is of countywide significance.  He indicated in staff’s estimation it is not.  He noted on the procedural level the change in Lane Code 14 is specific to this item.  He wasn’t aware of any other Planning Director Evidentiary Hearing that will be appealed  and be in front of the Board with this particular dilemma of a change of Chapter 14 midstream in the process.  He said for the substantive criteria of the nexus between the criteria and the conditions, it is site specific designed for this proposal.  He said it is not of countywide significance, only site specific. 

Kendall noted the second standard asks if the issue will reoccur with frequency and if there is a need for policy guidance.  He indicated the answer is similar to the answer above in that it will not reoccur with frequency in that the change in Lane Code procedure is not going to occur in the way it did in this manner.  He stated there will be no need for policy guidance by the Board if they expressly agree with the Hearings Official’s opinion and his ruling on the lack of party status for Stotter’s opponents, Families for a Quarry Free Neighborhood.

Kendall explained the last two standards ask if it is a unique environmental resource and it is not.  He said the Code asks if the Hearings Official or Planning Director recommends review and neither of them have.   He attached a clarifying memo from the Hearings Official stating because there was some ambiguity in the original affirmation of his condition, that he is not expressly asking the Board to review this.

Stewart was comfortable with staff’s recommendation.

Vorhes explained that appellants in this case recommend review.  He said what is not clear is the Board could review the appeal, make a decision and decide whether to hear arguments on the appeal in a formal way in front of the Board, or act on the appeal without hearing the arguments.  He noted the order in front of the Board selects the option to review to appeal the decision.  He indicated the materials are all in the packet that have been provided by both sides.  He said the four main criteria listed help make a determination on whether the Board should hear arguments further, to schedule another hearing on them or they have enough to say what they will do with the appeal and act on it now, instead of hearing further arguments.   He said the distinction between review and not review is where the argument is.  He said the Board has all the materials submitted by both sides in front of them to decide what to do.  He said the order states they are not going to conduct a further hearing on this, they are going to affirm the Hearings Official decision and expressly agree with the interpretations and let them go to LUBA to debate whether they are right or wrong.

Sorenson stated that he favors Option 2.

MOTION: to approve Option 2 for ORDER 11-4-27-15.

Sorenson MOVED, Handy SECONDED.

Stewart thought they followed the Hearings Official process and agreed that his interpretation was correct.

Kendall explained that they held a Planning Director Evidentiary Hearing and under the new Lane Code, it is no longer an option.  He said under the old code, it said if they held a Planning Director Evidentiary Hearing, then if they appeal it to the Hearings Official, only the people who appeal can participate and it is an on the record hearing.  He noted under the new code, there is no option for a Planning Director Evidentiary Hearing and any appeal of a Planning Director Hearing is a de novo hearing in front of the Hearings Official that means anyone can raise any issue and anyone can participate or appeal that decision.  He commented that the Hearings Official was stuck with the dilemma that the code had changed before his hearing and he needed to make that ruling.  He said because of the time and effort spent by both the applicant and the opponents, that with all of the testimony there was afforded equal opportunity to all people.  He noted with the expressly agree option, (because the Board authored Lane Code 14) there will be stronger legal weight if they choose  Option 1, to expressly agree how the Hearing’s Official handled it and if it is appealed to the state, there is case law that supports that the Board in this case expressly agreed with how the Hearings Official ruled on that procedural issue.  He added that because the Board was the authors of the code, in front of LUBA it has more legal weight than if they didn’t agree expressly and affirmed the decision and let it go onto LUBA without a stamp of approval by the Board on the procedural issue.

Stewart thought the recommendation that staff was making was the correct recommendation.

Kendall recalled the Hearings Official ruled in the procedural issue that if he would have gone with the new Chapter 14 and it would have been a de novo appeal, then he would be prejudicing the applicant.

Leiken believed Option 1 was the correct option because the Board adopted the code that was written at the time.  He said when it was first filed in 2007, that it was the correct way to move forward.  He thought based on the facts and the dates set forth, they have to work on those dates, knowing the Board at the time adopted what was in the Lane Code, that the applicants were going by.

Sorenson asked what authority the Board had to adopt for the interpretation of state law listed in Option 1.

Vorhes said when it comes to acting on the Hearings Official’s decision, the Board has the authority they need to act on the decision.  He said the decision includes interpretation of state law.  He said on the appeal, the interpretation question is different than what it might be on the appeal of local codes.  He noted the concept of deference could come into play that the reviewing body may defer to the County’s interpretation as long as it is plausible. He said the test for interpretation of state law comes down to asking if it is reasonable.

Kendall commented that the focus of the Hearings Official’s interpretation of state law was ORS governing timelines for application processing and how they were over the timeline.  He said for the implementing ordinances it is the Hearings Official’s interpretation on how to handle the change in the Chapter 14 ordinance.

Bozievich supported Option 2 to move it onto LUBA.  He thought it was one of a kind appeal and they don’ t need to have a hearing at the  Board level.  He asked if this was a quasi judicial action.

Vorhes said it is quasi judicial.  He said the Board should declare if they have any conflicts.

Bozievich said there were none.

Handy had none.

 Leiken and Sorenson had none.

Stewart stated that he had conversations with landowners over the past four years about noise and traffic.  He didn’t talk with the applicant about concerns about the project.

Kendall said if the Board decides to go with Option 2, to inform staff when they come back with the order which four standards they can disagree with so it could be modified in the order.

Kendall said he will have to come back with an order and modify the rezoning and the chair will sign off on those four items.

Leiken was in agreement with going with Option 2 if that is the will of the Board.

Stewart believed the Hearings Official decided correctly.  He supported Option 2 and will support the motion.

VOTE:  5-0.

c.         THIRD READING AND SETTING FOURTH READING / CONTINUED PUBLIC HEARING/In the Matter of Amending the Eugene-Springfield Metropolitan Area General Plan (Metro Plan) to Adopt the Springfield 2030 Refinement Plan Residential Land and Housing Element and to Establish a Separate Springfield Urban Growth Boundary (UGB) Pursuant to ORS 197.304 and Adopting Savings and Severability Clauses. (Applicant: City of Springfield; File No. PA 09-6018) (Fourth Reading and Public Hearing, May 16, 2011, 7:00 p.m., Springfield City Council Chambers)

Stewart said they needed this reading so they could clean the County’s record to match the city of Springfield.

Vorhes explained that Springfield is still engaged in conversations with the Home Builders and there may be more additions to the land use and housing element and the study itself to reflect some of the discussions that are taking place. 

MOTION: to approve a Third Reading and Setting a Fourth Reading and Continued Public Hearing for Ordinance PA 1274 on May 16, 2011 at 7:00 p.m.

Leiken MOVED, Bozievich SECONDED.

VOTE:  5-0.

14.  COMMISSIONERS’ ANNOUNCEMENTS

Stewart congratulated the Riverstone Clinic.  He said they had a wonderful grand opening.  He thanked Nancy Golden for her help and Senator Wyden for finding time in his schedule to participate.  He also thanked staff for all of their hard work.

15.  EXECUTIVE SESSION as per ORS 192.660
(Commissioners’ Conference Room)

None.

16.  OTHER BUSINESS

None.

There being no further business, Commissioner adjourned the meeting at 2:40 p.m.

Melissa Zimmer
Recording Secretary