July 8, 1998
REGULAR MEETING-BOARD OF COUNTY COMMISSIONERS
1:30 p.m. Harris Hall Main Floor
Commissioner Steve Cornacchia presided with Commissioners Ellie Dumdi, Bobby Green, Sr., Peter Sorenson and Cindy Weeldreyer present. County Administrator Bill Van Vactor, County Counsel Steve Vorhes and Recording Secretary Melissa Zimmer were also present.
11. COMMISSIONERS' ANNOUNCEMENTS
12. PUBLIC HEARINGS
a. SECOND READING AND PUBLIC HEARING/Ordinance No. 3-98/In the Matter of Amending Chapter 14 of Lane Code to Revise Various Provisions of the Land Use Application and Appeal Procedures, Make Other Housekeeping Changes to Quasi-Judicial Land Use Hearing Rules, and Adopting an Emergency Clause.
Jim Mann, Planning Department, stated the changes that are proposed for Lane Code Chapter 14 would bring the land use application review process into compliance with the State laws in a more efficient and timely manner. He said the first category of change would affect the time lines that applications are reviewed, from 120 days to 150 days and the review and acceptance period would be 30 days. He added the other change that would take place would be that once an appeal is received, the director's decision, or an application is accepted, the process would take 35 days to get to a hearing. He said that another change would give the planning director the ability to take an application without a hearing and to elect to have that go directly to the hearings official for a hearing. He said a policy issue that needs to be looked at is whether the director can elect to have a hearing himself. He said if the director's decision at a hearing is to appeal, the appeal of the hearings official would be on the record. He said that at an evidentiary hearing with the director, information could be put into the record, and the hearing and decision would be done in a more timely manner.
Kent Howe, Planning Department, commented that he sees this proposal as three boxes, the application acceptance box, the processing of the decision box and appeal process. He said that Land Management is developing a standardized checklist so applicants know exactly what is to be expected, and a deadline chart (see handout) that fits in the process which will take 21 days. He said that weekly appeal dates are being scheduled with the hearings official which will gain time in the processing of appeals. He said there will be a more critical group review in accepting applications. He said these administrative changes will move toward improving performance and production in processing applications.
Cornacchia opened Public Hearing. No one had signed up to speak, so he closed the Public Hearing.
MOTION: to accept ORDINANCE No. 3-98.
Weeldreyer MOVED, Green SECONDED.
ROLL CALL VOTE: 5-0.
b. THIRD READING AND PUBLIC HEARING/Ordinance PA 1116/In the Matter of Amending the Rural Comprehensive Plan to Redesignate Land From "Agriculture" to "Natural Resource: Mineral" and Rezoning That Land From "E-30/Exclusive Farm Use" to "SG/Sand, Gravel & Rock Products", and Adopting Savings and Severability Clauses (file PA 2191-97; Egge).
Howe explained that Goal 5 is complex. He said a work session was held with the Board of Commissioners on December 11, 1996 and after the Rule and Goal 5 was in place, the Rule expanded from three pages to 33 pages. He added that little has been done with the Rule, and that Washington County processed a quarry under the Rule. He said there were no court cases or legal guidance, as this was the first ordinance in the state for sand and gravel. He presented an overhead which showed a schematic and outline process in determining whether an aggregate resource site is significant and the reasonable and practical measures to be identified to minimize identifying conflicts. He added that rules on this conflict are very explicit, and where an aggregate site is significant and conflicts are minimized according to the conflicting use considerations of the rule, mining is allowed. He said where conflicts remain unminimized an ESEE (Environmental, Social, Economic, Energy) analysis that considers the rule is required. He said that it is a reduced version of the Goal 5 analysis. He added that local government must demonstrate that the amendment to the local comprehensive plan complies with the statewide goals and guidelines. He said that once mining is allowed and amending the comprehensive plan is made, the Goal 5 process shifts to deciding how to regulate new uses that may conflict with the decision to allow the mining at the aggregate resource site. He said this step requires an ESEE analysis to address potential conflicting uses offsite. He said the final step would be to develop a program to implement the local government's decision and at that time, the decision making process is complete except for adopting appropriate amendment language, amending the maps and the comprehensive plan and modifying the County's land use regulations as necessary to implement the County's decision.
Bill Sage, Land Management, explained that the Board received two addendums since the agenda cover memo was received. He said the first addendum included a submittal by the applicant in response to the ten conditions and finding of fact that were enclosed in Exhibit "C" of the ordinance itself. He said that there was also a letter from Wildish Land Company which commented on the condition of Funke Road and how the road will be treated. He said the second addendum came to address some of the issues and revised some of the conditions of approval. He said it had an ordinance and new exhibits attached to it. (Most revised, see copy on file.) He said the planning commission made a recommendation for the Board to accept the data and proceed. He added there are three options for making a decision regarding the ordinance; it can be allowed without any limitations, certain limitations, or prohibit it. He said a determination is made to see if it is in conflict. He said that the applicant's position was there were no conflicts. He said the staff went out (as required by the OAR) and canvassed the agencies that have responsibilities in other sections of land use or administrative rules and statutes to get comments, and with the City of Coburg and adjacent property owners and one special interest group. He said what came out of the process were ten different conflicting uses that were identified and those ten are found in Exhibit "C" (see copy on file).
Cornacchia questioned what constitutes a conflict: because someone says it is, or
people have questioned it.
Sage said conflicts include noise, dust, trespass and Goal 5 resources. (All sites that are inventories that the County has adopted, in this case 1984 Rural Comprehensive Plan.) He said three came up in this category including the McKenzie River, an Historical House on Coburg Road which is on the Historical Structures Listing and an archeological site, and under Goal 3, irrigation wells on properties to the north.
Cornacchia questioned the conflict that had been identified in the existence of the wells.
Sage stated that they examined the water system to see if there is a potential to allow contamination of any kind of product into the wells that would affect the irrigation systems, the quality of water or the municipal water source for Coburg.
Cornacchia stated that he was having a hard time determining that there is really a conflict other than somebody saying their might be one. He said that he is trying to match the conditions to actual conflicts or evidence in the record. He said the existing operation has not shown that it is impacting other wells or other parts of the county, he said that he can't find any conflict in the record.
Sorenson asked if an agency, property owner, interested party or staff can suggest that a conflict exists and if so, then does a conflict exist, or does the Board have to make that finding? He also asked Mr. Sage if there was a conflict, or does the Board think the practical measure would be to minimize them. He added that is what the findings and conditions in Exhibit "C" do.
Sorenson also questioned a "potential conflict," as opposed to just "a conflict."
Sage explained that under the OAR, existing conflicts are the ones that were lawfully established before the need of a permit. He said that with the new potential conflicts, the applicant does an ESEE analysis to determine that in the zones that are there, what permitted or conditional uses could be allowed and would there be a conflict between those uses and the operation. He said with the new potential conflict, the focus is on protecting the operation.
Cornacchia said that Sage responded inconsistently on the first part. He said that he sees conditions on existing uses that are potential conflicts. He said that it appears that conditions are being put on both existing known conflicts and potential conflicts that exist. He said his question is the same, how can conditions be put on potential conflicts that are not established by some kind of evidence other than someone's opinion. He asked what in the OAR gave that authority.
Sage stated that he couldn't pinpoint anything to give him the authority to determine conflict. He also said if local government shall look beyond 1500 feet they would find that there is evidence or facts in the record that shows that there is something there (the Coburg water source). He said that in the absence of an ESEE analysis, what staff did was an error on the side of protecting the Goal 5 and Goal 3 resources that were identified. He said it was a position they weren't comfortable in, but they had responsibility to bring the full record to the Board.
Steve Vorhes, County Counsel, said with the understanding that if there are conflicting uses under Step 3, there would be uses existing or approved uses within the impact area that are identified as conflicting and by conflicting, the Rule says "a use or activity that is subject to land use regulation that would interfere with or be adversely affected by mining or processing activities at a mineral or aggregate resource site." He said that assuming the Board concludes there are conflicting uses existing and approved, if the Board can conclude that there are measures to be taken to minimize the conflict adequately, there is not a need for an ESEE report for the consequences of allowing the mining and the consequences of allowing the conflicting uses in reaching a decision to allow the mining. He said that assuming you have reached that point and made a decision that there are conflicting uses existing then approved conflicting uses and measures can be used to minimize the conflicts and there is not a need for an ESEE analysis to those uses, and the mining is to be allowed. He added that you get to the stage of potential uses not existing, not already approved but potential uses that could conflict with the mining. He said at that point if you identify some conflicting potential uses or, if you conclude there are; under the Rule the necessity is to go through the ESEE analysis of the consequences of allowing those uses on the mining. He added that there are several decision points which ultimately are for the Board to make. He said that at this point the record has developed areas where people, agencies, and interested parties have identified things that they think are either existing or approved uses that conflict with the mining or potential uses that could conflict with the mining. He said that ultimately the Board needs to make a decision on whether there are enough conditions to minimize those conflicts and if there are conditions that minimize those conflicts, the other issue is potential uses that will create conflicts, driving a need for an ESEE analysis.
Sage stated that the next step is for the Board, if it feels comfortable in proceeding without an ESEE analysis, to make a determination on whether or not the existing potential conflicting uses require some kind of measures to minimize them. He said that in Exhibit "C" the particular issues and conflicts are identified and how to deal with them. He said six previously had been discussed between the applicant, staff and the planning commission and there is no agreement on either the fact they exist or how to deal with them. He said the first was the McKenzie River which comes into the Goal 5 resources. He said that four different agencies have commented on the riparian corridor and what they consider to be the steps needed in order to protect it. He said there are three choices, based on the existing zone and the zone that is being proposed at the sand and gravel zone. He said the EFU zone which is existing zone, has a riparian setback area that goes to a depth of 100 feet and regulates removal and alterations within the area. He said that the sand and gravel zone does not have a riparian setback standard. He said that staff has given three options in the agenda cover memo (see attachment), one is to exclude an area, 150 feet designated by the agency's protection, the second is to rezone the three tax lots from EFU to sand and gravel but to place a site review suffix on it. (He said that staff also recommend the procedure where the ordinary high water mark would be established and documented.) The third option would be to rezone from EFU to sand and gravel without any protections and without minimizing any of the existing conflicts. He said that the second condition was the Jacob Stores Historical House, where there are three setbacks, one in 1994 which was recognized by the Board, the Planning Commission's recommendation of 500 feet, and the applicant's condition of 250 feet. He added that the third condition was the archeological site. He said that the applicant asked the Board to put in a finding into the record saying that there is no significance to that site and no conflict. He said that the staff is recommending that the Board take a more prudent position and not address the significance of the site, since it is in the Oregon Parks and Recreation Department.
Howe stated with regard to an ESEE analysis, if existing conflicts are identified but can be minimized, that determination by the local government alleviates the need for an ESEE analysis. He said on the potential conflicts, the rule is explicit and says, you have to have an ESEE analysis. He said the one qualification of the rule is on potential conflicts, you don't have to do an ESEE analysis if your choice is to not allow the sand and gravel operation.
Commissioner Cornacchia recessed the meeting to return at 3:15 p.m. Commissioner Green was not present after 3:15 p.m.
Regarding ex parte contacts, Sorenson stated that he received a letter from Glen Gordon on this issue. He told Mr. Gordon he would look into the matter by reading all materials. He also said that he knows Mr. Thorp, the attorney for applicant because he is also a lawyer, but had not spoken with him on this matter. He added that in 1994 he was an Oregon State Senator and was concerned about the appropriate balance between environmental protection and the needs of the aggregate industry. He convened a meeting of the Lane County state legislative delegation to meet with the local sand and gravel mining industry to discuss simplification of the sand and gravel industry in 1994, and none would disqualify him.
Weeldreyer stated that she knew Mr. Egge but had not had any direct conversations about this matter with him and added that she is a member of the McKenzie Watershed Council and followed this issue to the Board. She said with regard to ex parte contacts, none had limited her ability to be objective on this matter.
Dumdi said that she knows Mr. Egge personally and has had no discussion on this topic with him.
Cornacchia stated that he knows Mr. Egge and Mr. Thorpe, and Mr. Egge has given him campaign contributions. He said that a request has been received on the matter from Mr. Thorpe that Mr. Sage be removed as the planner on this item because of the applicant and Mr. Thorpe's concerns about his approach.
Commissioner Cornacchia opened Public Hearing.
Larry Thorpe, attorney for applicant Vern Egge, introduced Mr. Egge and spent time discussing the process with Mr. Sage and the working relationship that the County has with its land use oversight role and Oregon Department of Geology & Mineral Industries' (DOGAMI) role as the regulator of sand and gravel mining. He said that he came to talk about a number of the conditions since previous information had been submitted. He said that Mr. Egge can take the revision that the staff has now provided. He said there were several issues with respect to those conditions, but there were two fundamental conditions, one being ground water monitoring and the depth of excavation, the other is various setbacks.
Verne Egge, Owner and Operator of Egge Sand and Gravel, stated that he has been at the same location off Coburg Road since 1965. He said with the increased construction in the area his business has grown to 300 sand and gravel acres and 100 pieces of construction equipment, and between 70 and 80 employees. He said the employees make between $12 to $25 per hour plus benefits. He said that he is asking to rezone 110 acres of property that he currently owns to a sand and gravel zone. He said the public needs his products and the pits supply the raw materials for construction projects and concrete materials for construction throughout the area. He said that he has tried to minimize the impact to the surrounding area by building a berm, adding grass and planting fir and pine trees along Coburg Road to make it more aesthetically appealing. He added that he planted an orchard of over 100 fruit trees between Coburg Road and the pit operation to be more aesthetically appealing. He said the rock crusher he owns is located 20 feet below existing gravel, thereby reducing noise and will stay in the same location, no other equipment will be used. He said that he keeps a watering truck at all times to keep the dust down. He said he wants the Board to look at the setbacks the County is requiring and what he is proposing. He said he is in agreement to the 150 foot setback for the McKenzie River and agrees to the 150 foot setback to Coburg Road. He added that the County, with its calculations for the setbacks and reduced digging cap, would make him lose 6 million yards of valuable aggregate. He said the loss would be calculated and $2.00 per cubic yard and would reduce the life of the pit by two years.
Thorpe explained the ESEE analysis and how it relates to this situation. He recalled that in 1977 Lane County Code adopted extensive regulations to Goal 5 resources. He said that these are resources that are in conflict with other uses and activities but recognized as being valuable and must be protected from other activities and outside influences. He said that the regulation addressed the point where the land use regulatory scheme ends with the County's involvement and the mining regulatory scheme under the control of DOGAMI begins.
Cornacchia questioned whether DOGAMI will require an operational plan for this expansion or a modification to the existing operation plan. He asked if the basis on which they require this plan takes into account impacts on adjoining properties and water tables and if it was the responsibility of the state.
Thorpe said the state regulatory scheme for mining says either the County does it or DOGAMI does it. He said that in Lane County both have been doing it since 1973. He said in 1971 the legislature created DOGAMI's responsibility and it said that DOGAMI has regulatory responsibility, however counties which have adopted ordinances before July 1, 1972, retain that authority and DOGAMI doesn't have it. He said Lane County had the ordinance, but the statute said that if after June 30, 1972 an existing ordinance was repealed, it had to be approved by DOGAMI before the County could assume responsibility. He said Lane County's ordinance was repealed July 21, 1972 and a new ordinance was put into the code. He said that Lane County's regulatory responsibility has never been recognized by DOGAMI. He added that the sand and gravel operators are being regulated by both State and County.
Larry Reid, Jim Griffith & Associates, 700 County Club Road, Eugene, said that his company prepared the application and all documentation. He presented information on the overhead projector regarding setbacks.
Carrie Patterson, 90901 Coburg Road, she said that does not live adjacent to Mr. Egge. She said that she is asking the zone change be denied until Mr. Egge has satisfied all of the requirements ensuring responsible development to his property. She said he has the right to develop his property but not at the expense of natural resources, local community and neighboring landowners. She said she knows of one piece of farm property on the east side of Coburg Road just north of his current operation and their well went dry the year after he expanded his gravel pit. She urged the Board to move forward cautiously and make sure the community and Mr. Egge come to some kind of an agreement so the community doesn't end up with polluted water, and it is a fair and equitable agreement for everyone concerned.
Mary Ann Klostis, Owner, Jacobs Spores Home, gave a history of the community and her home. She indicated that she is planning on renovating the home which suffered a fire. She added that the person she bought the house from professionally restores historic homes and has information about the house. She said the home was placed on the National Historic Register in 1975 and is still on the National Historic Register. She said that she has done work on the grounds, inside the house is in the phase of getting all of the documents ready to rebuild the house. She said they will renovate the house so it can be kept on the National Historic Register.
Nancy Liebowitz, Department of Fish and Wildlife, spoke about the multiple species of fish that would be affected by the setback. She also said there is wildlife species that use the river, the flood plane and the adjacent uplands for nesting, breeding, feeding and movement quarters. She said the Department of Fish and Wildlife supports the Planning Department's recommendations to buffer and protect riparian and wildlife quarters along the McKenzie and the County has the responsibility to protect the McKenzie River and its flood plane from conflicting uses. She said they support the proposed setbacks which appear in the July 6, 1998 addendum.
Thorpe added that this would be a transitory use for Egge and the mining would be gone within a few years and the pit may be a lake, a park or some other use
Commissioner Cornacchia closed the Public Hearing.
Cornacchia said the first step would be to determine if the resource site is significant. Then the next step would be to determine if a mining conflict could be minimized. He agreed that it was significant and it should be mined, but if there are conflicts, they need to be addressed.
Cornacchia said that the Board could jump to step five, which is the condition which staff has determined, based on their identification of conflicts, which need to be in place to minimize those conflicts. He is recommending to go through list 1 to 9.
Conditions 1 through 9 (Does not include 4 & 5, which the applicant has made no objection to.)
Condition 1. McKenzie Riparian Setback Area Protections - options given, A, B, C - "B" is what is being recommended by staff and agreed to by the applicant; Cornacchia suggested that for Condition 1, that language of "B" be approved. Cornacchia stated that what "B" would do would rezone the lots to SG with a Site Review Suffix which continues the 100 foot riparian vegetation setback. Everything done there has to comply with Lane Code Class 1 Stream Riparian Regulations. The 50 feet cannot be excavated but can be used for business purposes. Recommended by staff, agreed to by applicant. All commissioners tended to agree.
Condition 2. Jacob Spores Historical House - Cornacchia is willing to go with 250 feet, Weeldreyer at first was in agreement with the Planning Commission's recommendation of 500 feet, but due to time it would take to revert back to its historical condition, and the testimony by applicant stated that the mining operation would be over and done with and land would be reclaimed by that time, she is in agreement with the 250 feet that has been recommended. Sorenson is more comfortable with Planning Commission's recommendation, Dumdi is for 250 feet.
Condition 3. Significance of the "archaeological site." - Applicant is asking that this be dropped completely, staff is saying that this really needs to be left with the State and the County shouldn't be taking a position one way or the other. Cornacchia was comfortable with staff position on this one, all were in agreement.
Condition 4 & 5 not objected to.
Condition 6 & 7 Property line setbacks - Cornacchia stated that he would be willing to eliminate the requirements of setbacks on the individual lots that are all going to be turned into the pit. To stick with this, Cornacchia felt, shows a lack of common sense, the interior lots are going to be rezoned to sand and gravel, interior lots (Mr. Egge would like all ownership which includes two residences) to also include no boundary, he didn't think that that could be waived, Cornacchia's feeling is that the Code says "any zone." Cornacchia said to leave 6. "As is;" except the Board takes out "all interior lots set backs." All commissioners tended to agree.
Condition 7 & 8 Aquifer and wellhead protections - from what Cornacchia had heard, the only evidence given to the Board that was substantive was a letter from Burgeson-Boese & Associates, Inc. Cornacchia believed that those elements were contrary to Mr. Christenson's position. The remainder of the letter is consistent with Mr. Christenson's position. Cornacchia said personally that he couldn't find an actual conflict existing. He found it is overly zealous that the regulator required it without a better evidentiary showing of the conflict. He also noted the fact that Mr. Egge has been there since 1965 and impacting the water table for 30 years, yet he [Cornacchia] heard no evidence whatsoever that those operations are impacting aquifers, wells or anything else in that area. He said his preference is to eliminate all the conditions of 7 & 8.
Sorenson questioned Vorhes about the status of the issue on whether there is a conflict.
Vorhes stated that ultimately the Board needs to make the choice on what has been heard in all of the evidence that convinces them to support a finding that there is a conflict.
Sorenson stated that if the Board finds there is no conflict because that is what the evidence shows, then the Board is prohibited from placing any conditions on the aquifer and wellhead protections.
Vorhes stated the conditions are designed as a mechanism to minimize conflicts, so the conditions depend on a conflict in order to impose it.
Sorenson said that there was no conflict between the operation of this particular sand and gravel operation and the surrounding aquifer and wellhead. He said the Board is then is prohibited from placing restrictions on the applicant.
Vorhes stated the conditions are a way of dealing with the conflicts and reaching a
conclusion and reasonable measures that can be taken to minimize those conflicts. He said
if there is no conflict, you don't proceed with the next step. He said the rule doesn't
provide another vehicle to look at the conditions.
Sorenson stated that he heard testimony about fear, things that might cause alarm, but he didn't hear the testimony of the conflict. He said that there was another State agency that has an existing statutory purpose to provide inspection and monitoring of the sand and gravel industry.
Cornacchia wanted to offer to the Board that in the event that this is passed, that notice is given to the Department of Geology and Minerals that the Board has said they will not be in the operations plan business and the Board's expectation is that the agency will, and they need to be moving on it. Cornacchia stated that he would sign the letter.
Cornacchia stated on this particular item they are not going to require an operations plan to deal with aquifer and wellhead protections, that is what 7 & 8 are about. He is recommending eliminating 7 & 8, because there is no conflict. All commissioners tended to agree.
9. Funke Road - Cornacchia stated that the recommendation that deals with Wildish's objection to a vacation (both vacate, or turn it into a public access road and both take care of it) is the best idea of this whole application. He recommended adoption of the alternative conditions. All commissioners tended to agree.
Thorpe stated that it was an either and/or, vacate or make it a public road but is still possible to vacate it.
Cornacchia said the motion would include the requirement that the applicant would prepare appropriate findings of fact on each of these tentative board decisions and provide the appropriate findings of fact that tie the evidence of the record to the particular condition. All of it would then be brought back to the Board, so there would not be a final decision today. He said the Board would wait for the findings, Mr. Thorpe would work with Mr. Vorhes as an overseer and that as a package the revised findings would be brought back to the Board with the ordinance approving the plan and zone change at the appropriate time.
MOTION: to tentatively approve the rezoning request with the discussed changes and modifications to the planning commission and staff recommendations as discussed by the Board. Final approval would then await preparation of findings of fact by the applicant, approval by legal counsel and return to the Board in a package with the ordinance.
Weeldreyer MOVED, Dumdi SECONDED.
13. OTHER BUSINESS
Van Vactor stated there were two assignments: one is for Snowden is to report back on London Road, the second is for Mr. Thorpe to return back with findings. He added that there is an Intergovernmental Agreement with the University of Oregon with regard to Hayward Field, and five days a year it can be made available to Lane County for non-profit use. The County has never used it, but other groups have used and there is a request from the Oregon Track Club to use the County's days.
Cornacchia said that the next meeting will be on Tuesday, July 14 in the morning and there will be no Wednesday meeting.
There being no further business, Commissioner Cornacchia adjourned the meeting at 5:23 p.m.
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