JOINT WORK SESSION WITH
LANE COUNTY PLANNING COMMISSION
April 10, 2001
6:00 p.m. Work Session
Harris Hall Main Floor
Commissioner Anna Morrison presided with Commissioners Bill Dwyer, Bobby Green, Sr., Peter Sorenson and Cindy Weeldreyer present. County Administrator Bill Van Vactor, Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.
Chair Chris Clemow, Jacque Betz, Clay Myers, Mark Herbert, Juanita Kirkham, Marion Esty, Don Clarke, Heidi Pollock, Co-Chair.
1. PUBLIC COMMENT/Lane County Planning Commission Recommendations Regarding the Proposed Critical Habitat Conservation Zone (LC 16.299) in Response to the Endangered Species Act Listing of Salmonids in Lane County.
Kent Howe, Land Management, noted that on October 31, 2000, the Spring Chinook working group had a work session with the Board of Commissioners that resulted in the Board directing staff to conduct public hearings with the Lane County Planning Commission on the proposed response to the Endangered Species Act (ESA) listing of salmonids in Lane County.
He added in November, the Lane County Planning Commission conducted three public hearings and in December, January and February there were two work sessions where they deliberated, resulting in a recommendation to the Board of Commissioners on the Critical Habitat Conservation Zone. He said the recommendation was presented in a work session for the Board of Commissioners on March 13, 2001. He explained at the work session, they discussed the zone, the ESA, Ballot Measure 7 and funding for implementation of the proposed ordinance. He said the Board requested that staff send out the Planning Commission recommendation for review by the scientific community, allowing the planning commissionís recommendation to be further reviewed and commented on, resulting in a joint meeting of the board and planning commission.
Howe reported they sent out 100 information packets to people who had participated in the process before the planning commission. He said they would allow oral comment and the Lane County Planning Commission to further deliberate on their recommendation.
Chris Clemow opened Public Comment for the Lane County Planning Commission.
Commissioner Morrison opened Public Comment for the Board of Commissioners.
Steve Cornacchia, 180 E. 11th, Eugene, said that before the Board voted, they should have as many questions answered as possible. He asked about the County's responsibility under the ordinance, as well as costs.
Dale Riddle, representing Aaron Jones and Seneca Companies, P. O. Box 851, Eugene, urged the Board and the planning commission to reject the draft ordinance. He didnít believe the County would be subject to liability under the Endangered Species Act. He said it was wise to protect the fish, but if the Board went forward, they would need to be honest with the landowners of Lane County.
Ralph Christenson, EGR Associations, 2535 B, Prairie Road, stated the ordinance needed work. He wanted to make sure fish were saved. He said complying with NMFS didnít mean that would happen. He said the rivers are being maintained for small and large mouth bass that eat salmon and the food salmon eat. He said focusing on just saving the riparian habitat is wrong. He said the ordinance needed to be carefully crafted to send the proper social and regulatory message.
Al Couper, 2258 Harris Street, Eugene, stated the ordinance was difficult to read, and it violates the tenant that the regular public needs to understand what is written. He urged the Board to edit the ordinance.
Shane Hughes, President, EGR, 2535 B Prairie Road, Eugene, submitted a letter. (Copy in file.) He said protecting salmon was a worthy cause. He said the ordinance did not achieve its goal and lacked consistent standards and definitions. He said the ordinance was too broad and would be expensive for the County and public to implement. He asked the Board to look at issues and costs that would be incurred if they adopt the ordinance.
Mike Farthing, 767 Willamette, Eugene was concerned about the impact on private citizens. He noted that Lane County's ordinance does not authorize specific activities that would constitute a take under the ESA. He said there is no expectation that a state or local governmentĎs grant of a development permit had been satisfied. He urged the Board to have county counsel review these conclusions. He said existing riparian and other regulations that control Lane Countyís waterways are restrictive and onerous. He urged the Board to review the ten-year-old code to make it current with LCDC regulations.
Harry Taylor, P.O. Box 1420, Veneta, voiced concern about the ordinance. He questioned if it was beneficial to be first when there is a chance of losing. He added the ordinance is hard to read and follow. He questioned the Countyís limited staff and budget capabilities for review and enforcement. He noted there were other ordinances that could be amended. He said it was important for the County to develop reasonable and achievable objectives. He said there are no incentives for the objectives to be met by most landowners. He questioned why farm and forest uses were exempt if the objective was to protect fish. He urged the Board to use caution.
Andy Clark, 975 Oak Street, Eugene, stated liability was not present for the County. He said there was a limited instance of County exposure, where a permit would be in violation of the ESA.
Mike Evans, 1071 Harlow Road, Springfield, concurred with the other speakers. He recommended using the current riparian code and conform it with Goal 5. He said they should protect fish through a Goal 5 update, and the 200-foot setback need not be met.
Tom Linniger, P.O. Box 30, Vida, said he and his neighbor have concerns. He said the proposed ordinance needed more flexibility in the hardship provision under the variance section, Section 7. He reiterated that the draft ordinance was hard to comprehend. He wanted plainer language that would invite broader participation. He suggested financial incentives to spread the burden of salmon recovery over a wider group.
Herb Pearson, stated he is a landowner on the McKenzie for 30 years. He was concerned about what this would do to his property.
Carolyn Adams, 84645 Proden Lane, Pleasant Hill, stated she had riverfront property on the Willamette, below Dexter Dam. She said there would be a lot of regulation. She was grateful this work had gone in to protecting the river. She supported the Upper Willamette Spring Chinook Group's comments. She said there needed to be large-scale public outreach to educate people on treating the river right. She wanted a new zoning concept that was an overlay with guidelines and clear language.
Doug Powell, 40431 Jasper Lowell Road, Fall Creek, stated he was an affected property owner. He reported he attended all of the planning commission meetings. He concurred with what had been discussed.
Norm Maxwell, 79550 Fire Road, Loraine, said going against the ordinance was a step in the right direction.
Nina Lovinger, 40093 Little Fall Creek Road, Fall Creek, stated the purpose of the critical habitat conservation zone should be to restore and enhance riparian areas above the current status to promote a comeback of threatened species. She said the planning commission ignored the evidence for larger setbacks, opting for a minimum amount from a single, scientific document. She urged the Board to support a 200-foot setback that allowed no variances or encroachments into the 100-foot high water mark of all Class 1-fishbearing streams in Lane County. She noted that monitoring development, compliance and enforcement of rules and laws is important to protecting critical habitat. She said there is too little monitoring and lack of enforcement. She added that public education is an important component of critical habitat.
Bill Mishofksy, representing Oregonians in Action, stated the regulations are excessive. He said they are concerned about NMFS and wanted to share concerns with the Board. He said the group believes that the focus on watersheds is minor compared with ocean conditions, predators, and hatchery practices. He said their concern was the listing of the salmon by NMFS, as it is badly flawed. He said ocean conditions are the underlying problem.
Joan Howard, 49150 McKenzie, Nimrod, said the proposed changes to the Lane County Riparian Land Use Code 16.299 had been developed without the input of affected property owners. She wanted to know if the land use code was adopted, how it quantifies existing populations of bull trout and coastal Coho. She said the Nimrod Association Neighbors expressed opposition to several provisions. She noted the 1,250 square foot maximum footprint limit on already developed lots was blatantly unfair and not required by the ESA.
Joseph Zdzienicki, 1025 Taylor, Eugene, stated the 75 foot setback was not enough. He said Land Management has too much discretion and there was bias in the rule.
Paul Reed, East Lane Soil and Water Conservation District, 1600 Valley River Drive, Eugene, stated they did an extensive review of the version 5 documents. He said the 75-foot depth might not be adequate to ensure properly functioning conditions. He said a variance would increase workload and cost. He noted that East Lane Soil and Water District is the local management agency for implementation of Senate Bill 1010-- the Agricultural Water Quality Management Act. He said they are drafting agricultural water quality management area plans for the upper Willamette and Southern Willamette District. He said education was essential to get water quality problems corrected.
Warren Weathers, 29 S. Alder, Lowell, stated it wasnít fair for the voters to adopt something before the legislature completed its work.
Ed Kemp, was present on behalf of the McKenzie River Chamber of Commerce. He noted over a two-year period, they have played a role in the rural comprehensive plan review. He said the recently-released draft rule came as a surprise and could affect every piece of property in rural Lane County. He noted the plan had not been explained, discussed or refined in any public meetings. He recommended the Board refrain from further consideration. He said protection of fish population could be made with a few easily-understandable revisions to the existing riparian code. He said they would support adjustments to the current code to include erosion and sediment control. He said offering incentives would be more effective than the current rule, which was fundamentally flawed.
Steven Clark, 2550 Madison, Eugene, said the wider issue was trying to create biological connections in corridors as part of the Goal 5 Rule. He noted the document came out of a riparian ordinance review and it was the consensus that the existing riparian ordinance didnít address Goal 5 and biological corridors and connections. He was not happy with the current proposal and urged a tiered system with a safety factor.
Les Blum, 42296 Holdon Lane, Leaburg, concurred that the ordinance was hard to read.
David Oswald, 40803 Deerhorn Road, Springfield, agreed with Kemp. He said the ordinance was too extreme and a 200-foot setback was too far. He said people who put sediment into the river should be punished.
There being no one further signed up to speak, Commissioner Morrison closed public comment for the Board of Commissioners.
Chair Clemow closed public comment for the Lane County Planning Commission and opened the meeting for additional comment and subsequent recommendations (as a planning commission) to the Board.
Jacque Betz stated the packet was difficult to read. She wondered why they were doing this, since they had an existing riparian management plan. She said if there were problems, those should be fixed. She added it was costing time and money for the planning department and she was concerned about the effect on landowners.
Mark Herbert wanted to know if there was a legal issue and if there would be any liability by the County to take legal action to protect itself under the 4(d) Rule. He added they needed a lot of information about the riparian zone effect on salmon, because riparian zones and management were contributing factors. He said further deliberation by the planning commission would not make for a better recommendation than what was submitted to the Board of Commissioners.
Don Clarke said they have to determine if there is a legal issue. He agreed the final document was wordy and technical. He said that farming, forest, sand and gravel operations, predators, dams and fishing are all major contributors to the decline of salmon. He noted the scientific documents balanced the information and arrived at a workable and reasonable solution. He said they recommended tax incentives and agreed with Herbert that tonight's information was the same. He heard nothing that would change his recommendation to the Board.
Heidi Pollock stated this had been the most challenging and frustrating project she had ever worked on. She suggested fine-tuning some of the written rules. She recommended no action on the ordinance.
Clemow stated the Board had given the planning commission direction to proceed with the study. He said they were trying to protect the County from a third party lawsuit in a NMFS defined take, and potential Ballot Measure 7 litigation. He said what they had presented was an attempt to address this, with consensus to forward it to the Board with their recommendation. He noted there could be revisions, but asked the Board to make a decision tonight to continue it, table it or put it on hold.
MOTION: to submit the ordinance and forward it to the Board of Commissioners as written.
Myers MOVED, Clarke SECONDED.
VOTE: 5-2 (Betz, Pollock dissenting).
Sorenson asked if the federal government was requiring this, because Measure 7 excluded federal requirements from the responsibility of local governments to either avoid the regulation or pay for the cost.
Vorhes stated that if Measure 7 becomes valid, a court ultimately would decide the question. He said one question that would need to be addressed was whether this was a regulation that implements a requirement of federal law.
Sorenson asked if there were citizen action against the County for granting permits, what the Countyís liability would be under the ESA.
Vorhes responded that none of the testimony is no risk and the letter says the risk would be remote, but it is conceivable claims could be made. He said it is impossible to say there would be no risk or that there is no way a claim could be made for what they are currently doing, or under new regulations.
Sorenson asked if counsel had a recommendation for the Board.
Vorhes said a policy decision needed to be made. He indicated there are a variety of policy considerations in addition to the legal issues. He noted that Lane County had undertaken addressing Goal 5 with the ongoing periodic review function, and that the decision invokes as much policy as legal, and an outcome is not ultimately compelled by legal consideration.
Sorenson asked what other counties had done with Measure 7 while implementing the ESA.
Vorhes indicated he was not aware of any counties doing anything comparagble to seek protection under the ESA. Most counties are waiting to see what happens with Measure 7 before proceeding into this area.
Howe reported that Clackamas and Clatsop counties submitted ordinances for review by NFMS under the 4(d) Rule.
Dwyer commented that the plight of the salmon was not due to one entity, but everyone has a responsibility. He said the federal government is bound by their laws for the class of streams, and the state has different rules, so the private sector and federal government have different impacts on the same habitat. He noted the dams were built without recognizing that fish needed to get back to their spawning ground and it precipitated the problem. He said the County needed to be careful because of Measure 7. He said something needed to be written in a format that the average person could read. He suggested waiting to see what happened with Measure 7.
Weeldreyer stated that, in reviewing the material, correspondence and conversations, the ordinance (as it is written) is broad. She said the vast majority she represents live on some of the fish bearing streams. She said the ordinance is not understandable to ordinary people. She wanted to review Lane Countyís existing riparian zone and focus the planning staff in that direction. She added it was not clear it should be done now, and if Measure 7 is ruled unconstitutional, there needed to be balance. She said they need to be fair to property owners. Her recommendation to staff would be to wait.
Green said that, given that Measure 7 is still uncertain, he preferred to do nothing.
Morrison said there are salmon issues that need to be addressed. She did not think that NFMS knew what they were doing. She read an exerpt from the OZCMA letter dated February 25, 2000 that suggested starting over with the 4(d) Rule. She reported receiving calls from constituents asking the Board not act. She said this needed to be put on hold until issues with Measure 7 and the 4(d) Rule are resolved.
Weeldreyer was not comfortable with doing nothing. She suggested having staff look at the existing riparian ordinance in terms of erosion and sediment deposited into fish-bearing streams.
Howe explained the process started in 1999 with the Spring Chinook Working Group and the McKenzie Watershed Council wanting a review of the riparian ordinance. He said they started the review and the Board added the periodic review to the riparian revision as part of the Goal 5 requirements. He noted the work program with the state for periodic review was never revised and they do not need to do anything with the Goal 5 periodic review for riparian areas. He said it was done so that whatever they did, it would meet the Goal 5 riparian requirements. He said they do not have Goal 5 state requirements now.
Morrison asked why they were going forward if they arenít required to do so.
Howe responded when they started in 1999, it was because of periodic review community rule requirements and there was public input regarding the development along river frontages. He said that is when the McKenzie Watershed Council wanted to review the riparian ordinance. He said it wasnít in regard to Goal 5 but to the community rule. He noted a lot had happened since January 1999 because of the 4(d) Rule and Ballot Measure 7.
Dwyer said whatever the Board accepts, they have to be committed. He said there are so many uncertainties he would rather have direction from NFMS, since they are at fault.
Sorenson said that doing nothing was a bad idea. He wanted to monitor and have experts review the ordinance. He liked incentives and said they should keep trying to solve the problem.
Green requested staff continue on the work plan.
Morrison noted that the commissioners wanted to hold this until they know what happens with state and federal issues.
MOTION: to reject the Planning Commissionís recommendation.
Green MOVED, Dwyer SECONDED.
VOTE: 4-1 (Sorenson dissenting).
Weeldreyer hoped staff could look at the current riparian ordinance and improve that without cost to staff or citizens.
There being no further business, Clemow adjourned the meeting of the Lane County Planning Commission at 8:35 p.m.
There being no further business, Morrison adjourned the meeting of the Lane County Board of Commissioners at 8:35 p.m.
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