BOARD OF COMMISSIONERS
July 30, 2003
Commissionersí Conference Room
Commissioner Peter Sorenson presided with Commissioners Bobby Green, Sr., Tom Lininger and Anna Morrison present. Bill Dwyer was excused for the afternoon portion. Acting County Administrator Dave Garnick, Assistant County Counsel Stephen Vorhes, and Recording Secretary Melissa Zimmer were also present.
13. PUBLIC HEARINGS
a. SECOND READING AND SETTING THIRD READING AND PUBLIC HEARING/Ordinance PA 1191/In the Matter of Adopting Amendments to the Rural Comprehensive Plan and the Coburg Comprehensive Plan to Enlarge the Coburg Urban Growth Boundary and Redesignate Affected Lands from a Rural Comprehensive Plan Designation of Agricultural Lands to a City Plan Designation of Parks, Recreation and Open Space and Rezone These Affected Lands from a Lane Code Chapter 16 District of EFU-40 to a Lane Code Chapter 10 District of Public Reserve; Adopting Savings and Severability Clauses and Declaring an Emergency (File PA 03-5277; City of Coburg) (Third Reading & Public Hearing: August 27, 2003, 1:30 pm). (NBA & PM 7/16/03).
MOTION: to approve a Second Reading and Setting a Third Reading and Public Hearing on Ordinance PA 1191, for August 27, 2003, 1:30 p.m.
Morrison MOVED, Lininger SECONDED.
VOTE: 4-0 (Dwyer excused).
14. COMMISSIONERS' BUSINESS
a. SECOND READING AND DELIBERATION/Ordinance 12-03/In the Matter of Amending Lane Code Chapter 15 to Establish a Last Resort Policy for Right-of-Way Herbicide Application (LC 15.500-15.530) (NBA & PM 7/16/03).
Vorhes indicated the changes were made and the changed ordinance was distributed to the Board when it was read two weeks ago.
Green asked about the lack of specificity that Terry Witt had made in public comment.
Marc Kardell, Assistant County Counsel, responded there is case law that says it is problematic to rely on law from outside your own jurisdiction. He said one way to handle that is to occasionally update the statute. He said if someone were to make a claim that a lot had changed since they adopted it, there is no real evidence that they intended to adopt any future changes and if they want it included, it has to be taken care of. Kardell noted there is an annual review process. He noted it was more of third parties or citizens being told that they are in violation of the law. He said they are directing staff to look at the lists and abide by them and that is something staff could do.
Green asked if it put them more or less at risk for potential liability by not having the specificity in it.
Kardell suggested they could ask staff when they make their annual report to bring that information in.
Lininger commented if they enacted Dwyerís version of the ordinance that it would be the most progressive ordinance in Oregon regarding the use of herbicides.
Green asked if it would be better to have specificity instead of assumption.
Lininger stated he would be amenable to that change but didnít want to cause any delay in the passage of this. He asked if they could still make this change without having another reading.
Kardell responded they could make specific changes and read them today. He added they could move this forward two weeks.
Lininger stated he would have no problem to that change.
Dwyer said his intent is to have staff review the list as part of the annual review process. He said if they make that intent clear, he didnít see delaying this. He wanted to make sound public policy based on the common good. He said they have no control over what people perceive to be damage or the cause and they need to defend that. He thought chemicals did well in society in terms of being able to increase productivity. He said they never mentioned the health costs associated with spraying.
MOTION: to adopt Ordinance 12-03.
Dwyer MOVED, Sorenson SECONDED.
Morrison wanted clarification about legal liabilities. She didnít want to adopt something for the County to be put into a liability situation that legally they would not be able to defend.
Kardell thought this was enforceable today but what happens in the future they donít know. He noted they could be sued with a change in the list.
Green didnít want to delay the motion, but he wanted something that is responsible. He wanted the costs associated with the annual report and he hoped it would become part of the annual report. He wanted that language to be put into the ordinance.
Lininger wanted Greenís support of the ordinance. He suggested making two changes to the ordinance: add Greenís modification and incorporating Greenís concern on page 1537, (4)(a) where it says the product contains none of the following substances (all references to list maintained by other jurisdictions, referred to the list in effect at the time of enactment of this ordinance). He said it could be brought back and expanded.
Dwyer said it was his intent to have staff do it. He withdrew his motion. Sorenson withdrew his second. He wanted to move his amendments as described. He thought they were more scribner changes than substantive and didnít see a need for a delay.
Sorenson wanted to make the changes on August 11.
Kardell said with referencing the list, he wasnít sure they had an answer that was rock solid. He said it didnít hurt to err on the side of moving it for two weeks. He said by adding todayís date was not a substantive change.
Vorhes explained it is a requirement that comes out of the charter for any ordinance adopted by the Board. He said if it is a substantive change, the potential is the ordinance would have no legal effect. He said the charter requires the reading of an ordinance with 13 days between the readings as changed. He thought they could run into problems by using subsequently changed lists or other resources. He said if the intent of the list is to be adopted in this ordinance that is in effect on the date of the adoption of the ordinance, is not a substantive change. He said the Board has to decide if they want to take the risk to adopt it today, or take the 13 days, providing that period of time so any change included in the ordinance doesnít run the risk of having no legal effect.
Sorenson commented that enacting the ordinance today with the changes that have been suggested that are relatively minor could be processed on their normal calendar.
Vorhes said the annual cost language change that was made to the record keeping provisions of 15.525 was not in the annual reporting section. He added if they want to add it to the annual reporting section, they have to make a change. He said the changes were minor but the risks exist. He said the changes should be made to be clear in front of the Board and then have another reading in 13 days. He still thought there was risk if there was language added that the lists utilized were the lists in effect on a certain given date. He thought the risk was low if that was the only change.
Dwyer wanted to make changes that were probable. He wanted to comply with other language or similar laws that were already in effect instead of creating new language. He wanted to move forward.
Green wanted to err on the side of caution and make sure the ordinance is as defensible as possible. He wanted the list to be in the annual report.
Lininger recommended instead of the use of "some herbicides" to state that the County is determined that some herbicides, if used inappropriately be included.
Sorenson wanted the effective date to be included in the ordinance.
Kardell noted Liningerís recommendation was to be put in parentheses after 4 a. He said he would insert the words in this section. He noted there were lists under both 4 and 5.
Lininger just wanted it listed under 4.
Kardell was going to put it in subsection 4 on 1537 as Lininger suggested.
Lininger recommended language: "referred to the list in effect at the time of enactment of this ordinance."Vorhes suggested listing "in effect" on a date. He noted it would go into effect 30 days after they enacted the ordinance.
Sorenson suggested August 11, 2003.
Sorenson said they would include the language "known, likely or probable for pesticides." He said the language should be in 4. a) 3. He added the last change is 15.525 and 15.530, the record keeping versus the annual reporting.
Vorhes suggested the first part of the report should state the quantity concentration of herbicide product applied, and then in the listing that is applied, add in the costs. He noted that was a report on what they did. He added the later report is an indication of how much herbicide reduction occurred to go along with record keeping.
Sorenson suggested bringing this back for a continued deliberation.
Vorhes indicated a revision of the ordinance had been made. He went over the changes.
MOTION: to approve a Second Reading and Setting a Third Reading and Deliberation for Ordinance 12-03 for August 12, 2003.
Dwyer MOVED, Green SECONDED.
15. CORRESPONDENCE TO THE BOARD
16. COMMISSIONERS' ANNOUNCEMENTS
17. OTHER BUSINESS
There being no further business, Commissioner Sorenson adjourned the meeting at 3:15 p.m.