July 24, 1996
BOARD OF COMMISSIONERS' REGULAR MEETING
Harris Hall Main Floor - 1:30 a.m.
Chair Bobby Green, Sr. presided with Steve Cornacchia, Ellie Dumdi, Jerry Rust and Cindy Weeldreyer present. Zoanne Gilstrap, Recording Secretary.
14. COMMISSIONERS' ANNOUNCEMENTS
Weeldreyer stated that she thought yesterday's leadership meeting went very well and found it to be very encouraging.
Dumdi reported that she received LCDC approval of the Periodic Review Work Program.
15. PUBLIC HEARINGS
a. PUBLIC HEARING AND ORDER 96-7-24-28/In the Matter of Certification of Assessments for Improvements to River Road from River Loop #2 to Carthage Avenue.
Don Maddox, Public Works, stated that this public hearing was the last step in the process in levying the special assessments for the River Road improvement project from River Loop #2 to Carthage Avenue. He reported that the affected adjacent property on which special assessments are to be levied was notified in writing. Maddox noted that staff received no written objections. He noted that staff did receive one or two phone calls, mainly on a questioning basis.
Green opened the public hearing at 1:36 p.m.
Ronald Francola, 4148 Midstone Court, Eugene, Oregon, distributed a handout, including pictures. Francola said there was no question as far as the overall improvement to the community and the widening of the road. He noted, however, that his property was affected negatively by the road improvement. Francola stated that the property in question is at 4259 and 4269 River Road. He explained that it is a townhouse type dwelling. Francola said when the road was widened, he lost substantial parking in front of these three bedroom condos. Francola stated that he has found it to be very difficult to rent a three-bedroom place that only has parking for one vehicle. He said there is no street parking on River Road or on the adjoining street. He stated that this has had a considerable negative impact because he cannot find tenants for these units. Francola explained that prior to this expansion, there was a concrete driveway in front of this property. He stated in addition to being assessed for the property improvement, he has lost money on his rentals.
Green asked if his market value went down.
Francola stated he did not know.
Green closed the public hearing at 1:45 p.m.
Rust asked Maddox if he thought exempting Francola would be warranted given the facts that were presented.
Maddox replied that the assessments proposed to be levied were in accordance with the County's assessment policy at the time this project was initiated. He said the issue as to parking and proximity to the front of the structure was a consideration in the acquisition process. Maddox said acquisition of right-of-way was necessary to construct a project and, included in that exercise, is an analysis as to the impact on the remainder due to their taking. He said if there was any loss, it would have been included in the acquisition compensation. Maddox stated that Francola's issue was something that would have been addressed in the real estate acquisition process and, if they did acquire some from him, then they would have negotiated settlement with the owner.
Cornacchia stated that he thought that it would be inappropriate for the majority to take the action that Rust suggested because the majority has said that adjacent properties are benefitted and will be addressed.
Dumdi remarked that staff has been directed to address this issue and come back before the Board with a proposed policy change. She stated that she believed they may be seeing a change in policy when it does come back.
MOTION: Approval of the Order with the Board finding that Francola was adversely affected and, thus, exempting him.
Rust MOVED, Dumdi SECONDED.
Steve Vorhes, Assistant Legal Counsel, stated that by this action on this order, they are determining what properties are specially benefitted. He said one of the cautions raised by picking the property out of overall policies was that it raised some question about the application on other properties who may or may not have similar situations.
Green stated that if this action is taken without having a broader policy discussion, it not only will be contested later but could open up a floodgate for future assessment.
Rust withdrew the motion.
MOTION: Approval of the Order.
Cornacchia MOVED, Dumdi SECONDED. The Secretary polled the Board.
VOTE: 2 Ayes, 3 Nays.
Cornacchia explained that he has used his no vote as an expression of concern and to prompt a policy discussion further down the road. He said that because there are two other no votes, he would switch his vote so that the Board will be consistent with policy. He stressed that it does not mean that he agrees.
Dumdi said that in order for Cornacchia to remain consistent with his belief, she would change her vote and his vote could remain.
MOTION: Approval of the Order.
Cornacchia MOVED, Dumdi SECONDED.
VOTE: 3 Ayes, 2 Nays with Commissioners Cornacchia and Weeldreyer dissenting.
Dumdi requested further information on property values and possible negative impacts.
Cornacchia asked to find out where that policy discussion is right now. He believed it was at the Roads Advisory Committee.
b. PUBLIC HEARING AND ORDER 96-7-24-29/In the Matter of Adopting Additional Supplemental Findings Supporting Ordinance No. PA 951 on Remand from the Oregon Land Use Board of Appeals (File PA 3399-87; Overholser/Mathews).
Kent Howe, Land Management, explained that the notice requirements of Lane Code, Chapter 14, were met and said the legal ad was published on July 2, the property notices were mailed on July 2, and on July 10 the property was posted. Howe said Lane Code has a provision requiring that a poster "22" by "28" identifying the time, date, place, file number and where more information can be received be posted and reported that the requirement was completed. He noted, however, that this property is removed from where normal access is available and said, therefore, they went to where there is a locked gate which is the access to the property and posted this notice at the locked gate. He said that it is not on the subject property but said that it was conspicuously posted where people would see it. Howe remarked that it was the best posting that could be done. Howe stated that this was not a state requirement but was in Lane Code only. He explained that this provision was actually for initial applications and not for appeals of director decisions. Howe stated that this was not an initial application. He reported that having done all that previously, last month the Board directed staff to post and re-notice the properties for today's hearing. Howe said that as far as staff is concerned, all technical issues with regard to notice requirements have been met.
Howe stated that the original application was made in November of 1987. He said the Lane County Planning Commission recommended conditional approval in February of 1988. Howe noted that they identified three conditions that they felt should be dealt with: a seismic test, development of a blasting program and development of a well monitoring program. He said on February 8, 1989, the application was scheduled to come before the Board with those conditions of approval being addressed. However, he said the Supreme Court made a decision regarding forest land in late 1988 of which this property is subject to and basically postponed that coming before the Board of Commissioners. Howe stated that in May 1992, after the Forest Land Rule relating to this application was adopted, this application then came back to the Board of County Commissioners. He said the Board adopted the ordinance, approving the plan amendment and zone change for the quarry. Howe remarked that that decision was appealed to LUBA. He said this application once again came before the Board and was adopted. He stated that that decision was then appealed to LUBA. Howe reported that in 1992, LUBA remanded the County's decision, finding that the Goal 5 analysis was unclear as to what was really part of the record and what was not. He stated that at the applicant's request, in December of 1995 that record was clarified, brought before the Board with supplemental findings and the Board again adopted those findings in support of the ordinance and again that was appealed to LUBA which resulted in LUBA remanding their second final opinion and order stating that the County did not identify specific findings to support the decision with respect to two main issues: impact on big game and the quantity of the resource available. Howe said that today the applicant has provided the supplemental information (see material on file) and added that supplemental findings have been prepared by the applicant to respond to the order of remand. Howe stated that staff recommended that this order be adopted.
Brad Palmer, 77591 Pitcher Lane, stated that he objected to notice again because the subject parcel itself was not posted per Chapter 14 of Lane Code. Palmer said that all that was done was that 14 days before this hearing, a notice was placed very inconspicuously on property that the applicant did not own, at the base of a hill far off Quaglia Road and they contend that is insufficient. In addition, he said the notice referred to rezoning of tax lot 605 and said tax lot 605 was not dealt within the ordinance or in the findings and, therefore, he contends that it was improperly noticed. Palmer also stated that the map was not accurate.
Joe Leahy, Harold & Leahy, Suite D, 223 North A, Springfield, on behalf of applicant, stated they are not opposed to a continuance if neighbors want to be heard in this matter. He said the issues are on the impact of big game and the resources available. Leahy remarked that if there is approval today and LUBA sustains that approval, this applicant will have to come back through the County decision making process as far as the land use process to obtain a site review where there will be issues raised about how many hours a day they can work, how many days a week they can work, visual impact, noise impacts, dust, anything at all in terms of the use of the site for the quarry. He stressed that this particular approval does not allow that use to start. Leahy noted that use would not start without a site review by the County and approval of that site review as well as approval of the Department of Geology and Mineral Industries of the State of Oregon.
Rust asked Leahy if he believed his client was willing to take this risk as far as the notice requirement being met.
Leahy responded in the negative and Rust then suggested that this be postponed.
Steve Vorhes, Assistant County Counsel, said that if there are people here today, they obviously heard about the meeting. He stated that the technicality about the notice may not be an issue for remand.
Howe said he could present an overhead of the property showing that there are no public roads or access to the property. Weeldreyer stated that she has been there and knew this to be true.
MOTION: That requirements of Lane Code to adequately notice and post were met.
Rust MOVED, Cornacchia SECONDED. VOTE: 5-0.
Green opened the public hearing.
Palmer added written material to record (see material on file). He stated that it was his contention that the findings did not support the amendment. Palmer reported that the biologist report was incomplete and did not consider all big game. He commented that he also contends that the parcel contains a developed wetlands and stated that they have retained a consultant who found the property did meet three federal criteria for wetlands and said that wetlands are obliged to be protected by the Board. He said that there were no findings that deal with the property as wetlands. Palmer also said that the proper type of test drilling was not done as far as rock core drilling (see material on file). He stated that he was concerned that they plan to sever Pitcher Lane and said the findings do not deal with that issue.
Donna Dennis, 77742 Quaglia Road, Cottage Grove, distributed a picture of her driveway to be included as part of the record and said that the notice was posted at the end of this driveway which was not used except by her family. She stated that she was given right-of-way to that driveway 17 years and said that it was always meant to be a driveway and not a road. She said it was a dead-end and was within 100 feet from the front of her house. She said, in addition, no one has ever checked her well.
Wanda Dennis, 77742 Quaglia Road, Cottage Grove, said she measured the driveway and it is eight feet wide. She stated that she was given a 20-foot easement in 1979. Dennis reported that someone came down the driveway in a big cat, told her he had an easement and graded her brush pile over her ditch. She said she believed that person was here today.
Callena True, 77742 Quaglia Road, Cottage Grove, said she does not want the road because, in addition to her niece being there a lot, she babysits and does not want to see any of the children injured. True added that while she waits for her school bus, dump trucks go by and said there was not enough room for two cars, let alone a school bus and dump trucks.
Kurt Munsell, 77741 Quaglia Road, Cottage Grove, stated that he saw no notice. He said he can see the quarry from his house and when he thinks of blasting, does not want to continue living there. He stated that he does not mind people making a living but felt that this was not an appropriate spot due to the width of the road and the living situations on Quaglia Road.
Jeanne Adair, 77752 Quaglia Road, Cottage Grove, stated that she is also on the proposed access road and said that she has a three-year-old that plays out there. Adair commented that she felt it would be very dangerous. In addition, she said she is concerned about dust, noise pollution and blasting. Adair stated that this is a family neighborhood. She said the driving will be right in front of her front door.
Kurt Adair, 77752 Quaglia Road, Cottage Grove, reiterated that there are a lot of families living there and said it is used as a driveway and not a road.
Richard Baker, 77778 Quaglia Road, Cottage Grove, stated that he believed that this hearing should be opened up as there are a lot of new people in area that should be included in hearing and decision.
Marvin Fowler, 78092 Mosby Creek Road, Cottage Grove, stated that the rock quarry site is behind his property with only one parcel of land between the two. He said he was worried about his well because he just had to redrill it due to problems. He stated that if there is blasting back there, there would be problems with dust and deer leaving the area as well as the ducks and geese. Fowler said his wife has allergies and they would be forced to move from their home of more than 30 years.
Dick Harris, 78112 Mosby Creek Road, Cottage Grove, Oregon, stated that he was concerned about wells and said there is a small junkyard across the street and next to the river which had just recently been rezoned heavy industrial and, if the Board allows the quarry to go through, he will be between the two and does not want to see that happen.
Sid Gonzalaz, 77285 Quaglia Road, Cottage Grove, said he has spoken to neighbors about how peaceful it is out there and stated that several neighbors have talked about leaving the area if a quarry goes through. He stated that the primary issue is that the LUBA requirements have not been met and expressed his opposition to this zoning change.
Berta Jarrard, 77882 Quaglia Road, Cottage Grove. Gonzalez stated that he would like to speak for her she is 79 years old and could not attend. He said that one thing she wanted him to express was the big game issue and the way the natural wildlife in the area would be affected.
Leahy asked that the record remain open for seven days so that they can prepare a response to the Palmer document. He stated that it was the clients intent to utilize his property within the land use laws of Lane Code. Leahy reported that his client does have legal access along that "driveway." He said that there will be an opportunity to look at this access, the dust, blasting and other concerns at the site review. Leahy noted that there have been two studies done relating to the blasting and referred to two reports and stated that there has been a considerable amount of time and effort devoted to that topic (see material on file).
Rust suggested leaving it open for seven days and that after the seventh day, they then each are given three more days to have access to each other material.
Palmer objected to the record remaining open for seven days and said that would allow the applicant to introduce materials to which they could not respond. He stated that by letting the record remain open, the applicant would be able to rearrange the findings, introduce new evidence and prejudice their rights.
Vorhes said it was appropriate for Leahy to ask to respond to what has been submitted to the Board in this hearing but it needs to be closed at some point.
Leahy said Rusts proposal was fine with him. He stated that he would not have asked for the seven days except that he did not see Palmer's material until 20 minutes ago. Leahy stated that it could be left open for seven days and anyone could add anything for the next three business days.
Green closed the public hearing at 3:01 p.m.
MOTION: To carry this item over to August 21, 1996 at 1:30 p.m. in Harris Hall and to keep the written record open for a period of seven days with three working days after that to view the materials.
Rust MOVED, Dumdi SECONDED.
Recess at 3:06 p.m. to reconvene at 3:25 p.m.
16. OTHER BUSINESS
a. ORDER 96-7-2-1/In the Matter of Approving an Intergovernmental Agreement with the City of Florence Regarding Delegation of Planning and Building Regulation Functions in Conjunction with a Contract Zoning Request (Morales).
Green announced that he has received additional written comments and letters and stated that they have been included as part of the record.
Copely distributed additional written testimony. Copely stated that this item was rolled over from July 2 at the request of Dumdi. He explained that the agreement originated from a plan amendment that the Board adopted last February within the Florence urban growth boundary for what would ultimately be a contract zoning request. Copely noted that the agreement presented today in the form of an order was the necessary precursor to a contract zoning application being made for the hearing's official. He said this application is on hold pending the Board's decision on the agreement. He remarked that the agreement is an administrative mechanism where if an applicant is successful in getting a contract zone on their property, then certain city regulations may apply within the designated area and explained it as a mini-urban transition agreement.
Dumdi stated that her concern was for negative impact on property owners and what this rezone would do as far as property that had been in continuous use for many years. She said that although they had asked the two parties to get together several months ago to work this out, there has been no mutually agreed resolution between the two parties. Dumdi reported that after taking action in February to approve the rezone, she heard loudly and clearly from some of the impacted property owners and stated that was the reason she asked for the reconsideration.
Rust said that you cannot always please all property owners. He noted that this property owner went through all the reasonable and necessary steps.
Cornacchia remarked that the reason the Board suggested and asked for a possible resolution-finding exercise was because they acknowledged that this new use would have a significant impact on the existing use. He stated that the burden does lie with the new property owner to show compatibility. Cornacchia said his position then as well as now is that the proponent and the City have not shown compatibility. Cornacchia commented that he feels that if Florence believes that this is the best thing for the community of Florence, then they should take the action. He stated that the City of Florence should receive the impact of that decision because the proponent of the application could go to the City to move it forward if the Board were to deny it. Cornacchia said he believed the City of Florence and the community should be the ones having this debate.
Dumdi stated that the gun club has been on the property continuously since the late 1920s and this change in zoning and use of adjacent property would have a significant impact on them.
Weeldreyer said that she has the same concern as Dumdi as far as the grand fathered activity. She remarked that the city is growing out to reach that property and, in that regard, she echoed Cornacchias comments that this should be a community discussion within the community of Florence. Weeldreyer stated that for that reason she would be supportive of the position that Cornacchia and Dumdi have taken.
John Theilacker, Florence, said it was his belief that the Commissioners' decision on the issue of whether this should be zoned industrial or residential has already been taken up under the previous hearing and said the Board has co-adopted the comprehensive plan, changing it from industrial to residential. He said he believed that the Siuslaw Rod & Gun Club, as the adjoining landowner and as a preexisting non-conforming use under the zoning, was concerned about residential use adjacent to their existing use. He asked if the Board was rethinking their decision as far as adoption of the comprehensive plan.
Rust responded that the Board has already adopted that order and therefore has co-adopted the comprehensive plan amendment. He explained that what was at issue today was whether or not to proceed with the contract for the annexation.
Steve Vorhes, County Counsel, explained that the ordinance has been adopted and became effective, thus a plan amendment has already been done. He explained that in order to undo that, they would have to repeal that ordinance, perhaps by addressing the criteria for the decision. Vorhes further explained that the Intergovernmental Agreement would delegate authority to the City of Florence to administer zoning if the zoning is changed.
Cornacchia said by a 4-1 vote, this Board approved a change of land use and now, to not allow that use to occur on subsequent actions necessary to effect it seemed to run afoul of due process.
Vorhes said there is some potential for that but stated there are also some processes that are available for the property owner.
Dumdi offered a suggestion for the two property owners to work together to create some kind of buffer and to make this buffer a requirement by including it in the Intergovernmental Agreement.
Vorhes cautioned about adding conditions to the Intergovernmental Agreement but suggested articulating in that agreement some of the Board's concerns. He noted that the Intergovernmental Agreement actually delegates authority to the City of Florence to administer their zoning code.
Rust asked if a cover letter could be signed by the Board chair expressing the Board's lingering concerns and their request for mitigation steps to be taken as well as to say that the Board does want the City to consider that in their administration of the rezoning.
Copely stated that the plan amendment is a done deal and said the contract zoning agreement is that extra step that the County does for cities upon request to allow the cities to develop property under city regulations and then annex it. Copely said that basically the agreement before them today was simply the Board saying they would allow the City of Florence to apply their regulations, if they are successful in getting that contract zone on the property. He explained that getting the contract zone on the property is something that will happen after today before the county hearing's official if the Board approves the agreement. Copely commented that as far as modifying the agreement to reflect Board concerns, there might be some benefit in providing instructions to the record to go to the hearing's official with respect to the contract zone, concerning buffering.
Theilacker said the City of Florence did initiate meetings between the applicant and Siuslaw Rod & Gun Club at the request of the Board and tried to pursue that process. He remarked that when they saw that it was stalling, they came back and approached the Board with direction for the Board to move forward, indicating that these landowners could not agree. Theilacker said that the City did support the application and said he would recommit today as Community Development Director that as part of the ongoing development process, the City is committed to addressing issues identified between these incompatible land uses through the Oregon land use laws as provided.
Weeldreyer asked if there was willing to have a buffer between the properties.
Theilacker said that is a question for the applicant but indicated the City's willingness to consider a type of buffer or to recommend buffering or even further design considerations. He stated that there are a number of mitigation possibilities that the city has and he would ask that the County continue to apply its code and regulations toward the Siuslaw Rod & Gun Club use.
Dumdi said she was concerned about the impacts but stated she would support this order.
Cornacchia said his position remains the same but asked Rust to include as a part of the motion, the letter referenced regarding Board concerns. He said it is an expression of Board concern that the hearings official must take into account during processing on his part and that he believed the hearing's official has the ability to place certain requirements on development of property. Cornacchia stressed that he does not want to hear years from now that the gun club was run out because these neighbors would now say their use is incompatible with the gun club's use of their property. He said that to prevent that from happening, there needs to be buffering or something happening on that property to diminish that potential.
Copely said a letter will be prepared and submitted to chair. The letter will address mitigating compatibility and buffering and will be signed by the chair.
MOTION: Approval of the Order as amended to include reference of the letter.
Rust MOVED, Green SECONDED.
VOTE: 4-1 with Cornacchia dissenting.
b. SIXTH READING, DELIBERATION AND ACTION/Ordinance PA 1083/In the Matter of Amending the Eugene-Springfield Metro Area General Plan to Modify Policy 2, Section III.G., to Provide for the Extension of Sanitary Sewer Service from the Eugene-Springfield Metropolitan Area to the Lane County Short Mountain Landfill Site and Govern Similar Extensions to Other Sites, and Adopting an Exception to LCDC Goal 11; and Adopting Savings and Severability Clauses.
c. SIXTH READING, DELIBERATION AND ACTION/Ordinance PA 1084/In the Matter of Amending the Rural Comprehensive Plan to Add a Policy Governing the Extension of Sanitary Sewer Service from the Eugene-Springfield Metropolitan Area to the Lane County Short Mountain Landfill Site, and Adopting an Exception to LCDC Goal 11; and Adopting Savings and Severability Clauses.
Green read Ordinance PA 1083 and Ordinance PA 1084 into the record.
Copely gave a brief update and distributed a memorandum prepared by Craig Star. Copely referred to a memorandum dated the August 18, 1996 from Kohl with respect to the last meeting on this when the Board requested additional information on an alternative disposal procedure for the leachate.
Ken Kohl, Land Management, stated that they did have the requested evaluation. He reported that staff has requested from Osmotek and Environmental Technologies cost and performance data on the Osmotek system and have received a cost proposal for the treatment equipment. Kohl stated that they have performed a full cost estimate using both the Osmotek information and previous cost estimates for treatment alternatives that were done as part of the leachate management plan.
Cornacchia said the debate right now centered on two areas: cost and viability of the technology. He stated that there is a difference of opinion on cost as far as present value of pipeline and present value of on-site treatment. Cornacchia noted that there was also the issue of disposal costs.
Kohl stated that he estimates the cost of the pipeline including disposal of stored leachate to be approximately $6 million and the cost of the Osmotek proposal plus trucking of the on-site stored leachate to be approximately $14 million. He reported that based on Osmotek's proposal, the cost of Osmotek technology and the trucking would be approximately $11 million.
Cornacchia suggested having a third party look at the figures to determine who is right. He stated that for the sake of exercise he would take the position of accepting Osmotek's numbers. Cornacchia remarked that even with Osmotek's numbers there is still a $3.5 million difference between the pipeline and the Osmotek system.
Rust stated that they have a 60-day permit with DEQ to pump that disposal material. He suggested pumping as much as possible because it is approximately six miles outside the Urban Growth Boundary and said there could easily be legal problems occurring that could prevent the County from exercising the pipeline option. He reported that CH2M Hill is performing an evaluation of this Osmotek cell and suggested having them look at the numbers while in the meantime pump quickly as much of the material out as possible.
Cornacchia said he is concerned about what Osmotek can provide and said he is adamantly opposed to possibly recreating a million-dollar albatross by taking untested, unverified technology and basically, rolling the dice. He said there is no verified record that it is working and has DEQ approval. Cornacchia asked if performance bonds could give protection against failure of new technology.
Vorhes replied in the negative and stated that there might be a certain amount of protection but not a guarantee. He said there would be a fair amount of litigation over the terms of that performance bond, assuming there could be agreement on the terms of the performance bond going into the project.
Dumdi asked where the DEQ was on these various proposals as far as what they were willing to accept.
Kohl reported that they have approved the submitted pipeline plan. He stated that they have asked them to submit an interim leachate plan with regard to trucking the disposal by the end of this month.
Cornacchia said Rust's suggestion may work as an interim leachate plan to the DEQ by providing the opportunity to get the pipeline built, and that in the meantime, a request could be made of CH2M Hill to review the set of numbers.
Bill Snyder, Osmotek, stated that there were a number of assumptions that both estimates were based on and said with regard to the issue of the leachate already on site, he was not invited to address that issue. He said one option would be to design for a greater amount which would not only account for peak flow of leachate but would also allow for treatment of what is already on site. He said there are a number of options as far as disposal of that on-site leachate. Snyder stated that the cost estimates they have right now are based on assumptions and said the design and engineering has not been completed to form specific costs. He agreed with Rust as far as a third party evaluation of the two competing systems.
A decision was made to get all the numbers and let a third party evaluate them. Staff was directed to construct a letter to CH2M Hill or some other disinterested third party, asking them to review the technology and the cost and then to report back to the Board with those numbers.
MOTION: Approval of the Sixth Reading and Setting Seventh Reading, Deliberation and Action on Ordinance PA 1083 and Ordinance PA 1084 on August 13, 1996 in Harris Hall at 1:30 p.m.
Cornacchia MOVED, Dumdi SECONDED. VOTE: 5-0.
There being no further business, this meeting was adjourned at 4:47 p.m.
Zoanne Gilstrap, Recording Secretary
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