BOARD OF COMMISSIONERS'
February 11, 2004
Commissioners' Conference Room
Commissioner Bobby Green, Sr., presided with Commissioners Bill Dwyer, Don Hampton, Anna Morrison and Peter Sorenson present.† County Administrator Bill Van Vactor, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.
1.† ADJUSTMENTS TO THE AGENDA
Morrison requested an item that was discussed at AOC on Monday be put under Commissionersí Business.† Dwyer requested a letter to the E-Board also be put under Commissionersí Business.
2.† PUBLIC COMMENTS
Bruce Tate, 465 Hunsaker Road, Eugene, stated he owns a piece of property at 88780 Fisher Road.† He wanted to put a house on the property and had applied for an agricultural permit, which he received.† He said since he received the permit, the County stated they would take a portion of his land and also his driveway.† He noted his land runs 1,323 feet on the east side and has a u-shaped driveway coming off Royal onto Fisher.† He didnít want to lose his driveway with no place to enter his property.
Mona Lindstromberg, 87140 Territorial, Veneta, stated in 1996 a moratorium on development was put into effect by the City of Veneta because of an inadequate water and sewer system.† She said that moratorium was lifted a couple of years ago.† She noted since then there has been rapid development.† She said there was a recent attempt by the city to grant itself a blanket variance to its own wetland protection ordinance.† She noted that Veneta residents were suffering from increased flooding from excess runoff due to poorly planned and executed development.† She requested the Board do what it can to make sure that its constituents do not suffer the affects of Venetaís lack of judgment.
3.† EMERGENCY BUSINESS
4.† COMMISSIONERS' REMONSTRANCE
Dwyer commented that Home Rule only applies within city boundaries.† With regard to ambulance service, he said state law pre-empts Home Rule and directs them the responsibility of determining the boundaries.† He noted the Santa Clara Fire District was something negotiated with the City of Eugene.† He added Lane County didnít meddle in the Peace Health decision even though the impact is of a regional nature.† He noted Lane County contributed $5.2 million toward the roadway even though the city changed the zoning. He said they need to work together.
Sorenson reported The Register-Guard of February 11, 2004, editorialized that Representative Jeff Kruse passed the 100-day mark living out of his district.† He wanted the Board to put on its agenda a period of time to confer with legal counsel about what role Lane County government has in trying to effectuate the Oregon Constitution that requires state legislators to live in their districts.
Wilson said if the Board wanted to make that an assignment, she would be willing to work on that.
Sorenson wanted to not only define what role county government has but also what role the Board of Commissioners might have with the legislative delegation.† He thought there could be things the legislators could do separate from what county government could do.
a.† RESOLUTION 04-2-11-1/In the Matter of Proclaiming the Week of February 9, 2004 as Family Resource Center Week.
MOTION:† to approve RESOLUTION 04-2-11-1.
Morrison MOVED, Hampton SECONDED.
Green read the resolution into the record.
6.† COMMISSIONERS' BUSINESS
a.† AOC Report.
Morrison explained the legislative group met on Monday.† She noted that a special task force was formed last spring regarding government relations around tribal negotiations, and they have had continuing discussions.† She stated a representative from California is attempting to get NACo to pass a resolution and to start the movement toward federal legislation on having counties and local governments more involved in compacts that are negotiated in the state.† She noted there is a special workshop in Washington, D.C. and she and Colleen MacLeod will be attending for Oregon.† She discussed a document that will be presented in Washington, D.C. (copy in file).† She requested the Board read the document and submit any comments to her.† She said if they did put together a resolution, it would not be acted on until July at the annual NACo meeting.
b.† Letter to E-Board to Restore the Oregon Health Plan Plus Benefits and Gambling Addiction Services.
Dwyer read the letter into the record.† He wanted the letter to be sent to the Board.
MOTION:† to move to send the letter to the E-Board.
Dwyer MOVED, Sorenson SECONDED.
Tony Bieda, Intergovernmental Relations, indicated in the Lane County delegation, the only E-Board member that has a district in Lane County is Senator Messerle.† He said he would send the letter to all the members of the emergency board who come from other parts of the state.
Dwyer said his motion would be to send it to all members of the E-Board.
Morrison suggested tweaking the letter.
7.† COMMITTEE REPORTS
a.† REPORT BACK/Lane Metro Partnership Proposal.
Jack Roberts, Lane Metro Partnership, reiterated that they are recommending that Lane County agrees to pay $15,000 toward the study with the total cost not to exceed $50,000.† He said they are asking the Cities of Springfield and Eugene to match Lane Countyís contribution.† He added they were asking Lane County to be the lead agency to put this together.† He said they are recommending that the study be contracted out instead of asking staff to undertake it.
Dwyer asked what information they based all their reports on.
Roberts responded the information they received was the testimony of people who appeared at the five publicly-held hearings.† He said issues were raised about adequacy of land supply.† He said they recommended an inventory be done and recommended the Board follow up on it.† He said they were suggesting that under the land use laws, there is a requirement of local governments to ensure there is an adequate land supply for commercial, industrial and residential lands.† He said they have reason to believe it had not been meet in the past and asked the Board to accept the responsibility.
Dwyer commented there was a provision in the law requiring them to do a natural resource study and they hadnít been able to find the money to do this study.
Sorenson asked why the private sector wasnít paying for the study.
Roberts responded that when it would be delivered that people would complain that there was a vested interest in the private sector paying for the study.
Sorenson asked why they needed to do a study of industrial lands when they have unused industrial park space.
Roberts stated they had to have capacity in outlying areas to market the entire county.† He didnít think there was evidence they could meet the land supply if† there was not available land in the metro area.
Hampton thought there should be partnerships where the private sector puts up money.† He encouraged the outlying areas to be included.
Green said it would be up to the Board to ensure the product is what they are asking for.† He didnít see any problem with public agencies funding it.
Dwyer said the natural resources study was important and he wanted to find a way to do it.
Green explained the motion before the Board was about industrial lands.† He said if they want to have a discussion about how and when to fund the natural resource study, they need to give the assignment to the agenda team and they will have the discussion.
VOTE: 4-1 (Sorenson dissenting).
Dwyer asked the agenda team to flag the issue on how they could move forward with other studies that are required.
8.† COUNTY ADMINISTRATION
9.† PUBLIC WORKS
a.† RESOLUTION AND ORDER 04-2-11-2/In the Matter of Acquiring Fee or Other Interests in Certain Real Properties or Portions Thereof for the Reconstruction and Improvement of Royal Avenue (County Road No. 28) at Fisher Road (County Road No. 668) Intersection.
Frank Simas, Public Works, explained that this project would normally be on the consent calendar but since the Board hadnít received information on the project, he wanted to show the Board what was being proposed.† He noted the project location is at the intersection of Royal and Fisher.† He said both roads are local collector roads.† He noted the average daily traffic is 2,500 vehicles per day on both roads.† He indicated the predominant turning movement is from Royal to Fisher.† He added it serves as a shortcut from Greenhill to West 11th.† He stated the particular location had experienced 12 accidents since 1988 and has been on the capital improvements program as a safety improvement.† He said they want to construct this later in the spring.
Simas noted that with the accidents they had, nine had involved cars proceeding westbound on Royal and ending up at the dead-end.† He added one of the accidents was a fatal one.† He said they had three accidents that involved cars proceeding north on Fisher and running off the end of Fisher instead of completing the turn to head to the east back toward Greenhill.
Simas explained the project is proposed to create a 35-mile-per-hour curve and will have an elevation to facilitate cars wanting to make movement in that location.† He said that Royal Avenue will be brought in to make a 90-degree intersection with Fisher and Royal in order to provide the site distance and safety in that area.† He noted the estimated construction cost for the project is about $250,000 but the right-of-way costs might be slightly higher than anticipated.† He added the total cost would be around $290,000.
Dwyer thought that roundabouts could save property acquisition and impacts on drainfields.† He asked why they didnít discuss roundabouts as a design concept.
Mike Russell, Public Works, noted the predominate movement is a left-hand turn and not straight through.† He said when they looked at what they could do, the idea was to make the predominate move as free as possible.† He said in order to do that, their recommendation was to make it a 35-mile-per-hour curve.
Morrison was opposed to a roundabout.† She didnít think it could be handled in the dark.
Dwyer asked if they could find a cheaper and more practical way to deal with this issue.† He wanted the project scaled back.
Russell indicated they could go back and review the accidents that had occurred where people are going straight through to find out why they missed the turn. He thought if they put the roundabout there it would solve the problem of missing it.† He noted the board order today authorized the acquiring of right-of-way.† He said they could deal with that issue today and come back with more of a refined design with options.
Dwyer was concerned they were authorizing right-of-way for a design.
Hampton asked if they lighted the intersection if it would reduce accidents.
Russell responded the Countyís policy is to construct lighting as part of the general construction project but someone has to agree to take over the lighting cost for maintenance and they hadnít identified an agency.
MOTION:† to approve† RESOLUTION AND ORDER 04-2-11-2.
Morrison MOVED, Green SECONDED.
Sorenson asked what the alternative would be if they didnít go ahead with this.
Russell stated they could go back to staff to look at a roundabout option.† He added they could come back to the Board and compare the two.
Green commented he heard that roundabouts didnít work.† He asked why they should come back with a roundabout.
Simas noted the properties that would be affected would be the same in constructing a roundabout.
Dwyer didnít think the engineers discussed the roundabout option in a serious way.† He wanted the cheapest design that would address the safety issue.
Hampton was concerned that it was premature to purchase the right-of-way when there is no clear indication of what they were going to do.† He wanted more information to concur that this was the best design.
VOTE: 2-3 (Hampton, Dwyer; Sorenson dissenting). MOTION FAILED.
Sorenson said he voted no because he wanted to wait a week for them to talk to the engineer.
b.† ORDER 04-2-11-3/In the Matter of Amending Chapter 60 of Lane Manual to Revise Land Management Division County Surveyors Office Fees (LM 60.853 and 60.854), Effective July 1, 2004.
Dwyer noted this came to the Finance and Audit Committee and they examined the fees and how they related to the overall delivery of the services.
Morrison recommended that these fees be approved.
MOTION: to approve ORDER 04-2-11-3.
Dwyer MOVED, Morrison SECONDED.
c.† FOURTH READING AND DELIBERATION/Ordinance PA 1188/In the Matter of Amending the Lane County Rural Comprehensive Plan to Revise the ďSignificant Mineral and Aggregate Resources InventoryĒ, Redesignate from ďForestĒ to ďNatural Resource: MineralĒ, Rezone from ďF-1/Non-Impacted Forest LandsĒ to ďQM/Quarry and Mine OperationsĒ and Allow Mining for 40 Acres of Land Pursuant to Lane Code 16.400 and 16.252 and the Goal 5 Oregon Administrative Rules (OAR 660-023), and Adopting Savings and Severability Clauses (File PA 98-5144; B.J. Equipment Company). (NBA & PM 3/19/03 & 4/30/03)
Thom Lanfear, Land Management, explained they left off at Step 4 where staff was presenting a report addressing the documents that came in after the public hearing in April.† He noted they got as far as the conflicts due to noise and discharges.
Lanfear stated the next step would be for the Board to go through the Goal 5 steps and deliberate on each part to determine if the information is adequate, if the resource site is significant, and to address the conflicts on impact area issues.†† He said they discussed the noise issue, where the houses are, and what type of distance the noise is traveling.† He noted there was a question asked by a Board member on what the distance to the closest house was.† He said the latest number they have is 2,112 feet,† taken by the applicantís sound engineer using a GPS device at the nearest house and from the center of the existing mining area that is close to the southern boundary of the property.† He said some of the interpretive issues for the Board that had been raised are whether that is to be considered a new noise source or an existing noise source that determines whether the noise has to comply with the ambient degradation rule.† He said there was an issue raised and the record indicates it is an existing source.
Lanfear noted the Goal 5 Rule has a section where they try to determine that conflicts are minimized.† He said a set of impacts they look at are due to conflicts to dust and noise, called discharges.
Impacts to Local Roads
Lanfear stated the primary issues are the roads being used.† He noted that Cedarcroft Road is a public road off a local road and the impacts to that road have been calculated.† He said it is suggested by staff that some pavement overlay occur prior to the use of the road by the gravel company because it will degrade the road surface by use of the project.† He added that Bear Creek Road is also used to get to Cloverdale Road and it is recommended by staff that there should be a payment made to the County to cover the cost of the overlay when it is needed.† He said the issue before the Board is whether this is an appropriate exaction for the use that is being proposed and how much money should be paid and when.
Green asked how they would determine the cost.
Lanfear responded the issue for the applicant is whether they could require it at all.† He said the rule calls out certain characteristics of local roads that are under view with this rule.† He stated they are recommending to the Board that a condition, which is attached, requires the pavement being taken care of.
Tom Stinchfield, Public Works, explained the County pavement lab did an analysis in March 1999 and compared the impacts of existing traffic with the quarry traffic on Cedarcroft and Bear Creek Road. †He said the result of that was a recommendation that Cedarcroft get a 2-Ĺ inch overlay before the quarry operated.† He noted the difference with Bear Creek is that it is a county collector and the pavement conditions are better there. He added the lab predicted an impact to that road over time but their preference would be to have the overlay done later by the County when the pavement conditions warrant it.† He said they are recommending there be a payment made instead of the applicant putting down asphalt.
Sorenson asked what the number of trucks was that they based the need for the overlay on.
Stinchfield responded they use the assumptions in the applicantís traffic report that was 80 trucks per day, 250 working days per year, 40 loaded trips, and 40 unloaded trips to be loaded up to legal limits, fully loaded at 10-yard loads.† He added they assumed that most of the trucks were 10-yard dump trucks and four or five per day were with trailers.
Sorenson asked if the payment issue was contested between the applicant and the opponents on the repaving of the road.
Vorhes explained it is more of a contention between the applicant and staff.
Sorenson asked if they were recommending the payment.
Vorhes said his reading of the rule is that there is an opportunity for the Board to address the impact to the road from the traffic that is generated by the approval if the Board approves this change to the comp plan.† He noted the level of the impact is up to the Board.† He said there is justification for some contribution to the roads.† He thought the analysis of staff on what it is and how much it should be is reasonable.
Sorenson asked if there was a requirement of a posting of a bond to pay for the likely additional cost to the County road system if this were approved.
Vorhes responded only if the Board were to elect to use that as a method to address the payment for the costs of the road.† He said it is not generally or specifically required under the Goal 5 Mineral and Aggregate Rule but it could be part of the† Boardís findings to minimize a conflict in terms of the impact on the proposal on public roads.† He said if the Board wanted to structure it in that way, they could include that.
Sorenson asked how the County would be paid.
Lanfear noted the proposed condition as written requests up-front payment for Cedarcroft Road before operation begins and some money to be paid into the county funds within five years for Bear Creek Road.
Stinchfield noted for Cedarcroft the 15% estimate with engineering is $14,375, and for Bear Creek the payment with engineering is $39,100.
Vorhes explained the proposed condition in the packet and part of the proposed findings attached to the order states to mitigate impacts on Cedarcroft, the applicant will pay to Lane County the sum of $12,500 no later than one year after commencement of operation.† He said the applicant shall pay the sum of $17,000 to Lane County to mitigate impact to Bear Creek Road within five years of commencement of operation.† He noted this was the applicantís proposed condition.
Morrison asked if this was a one-time-only fee.
Lanfear responded it was a one-time fee.
Stinchfield noted staffís proposal was that this was a one-time analysis and is a 20-year pavement design consistent with their pavement design methods and consistent with what the Board had previously done.† He noted the 10-yard dump trucks would be 52,000 pounds gross weight loaded and the multi-unit 15-yard belly dumps would be at 80,000 pounds, based on legal access loads of 18,000 pounds per single load or 34,000 for dual axle.
Dwyer asked how they rationalize the exaction issue.
Vorhes said it comes down to the analysis of how does this specific proposal and the change in use in this specific area affect that particular roadway, recognizing that the background analysis of what the deterioration of† that road would be is something that would be covered by the taxes that are paid.† He added it is a focus on this particular area and how the change could affect it instead of the more general broad aspect that the road mile taxes are designed.
Bear Creek/Bradford S Intersection
Lanfear said there is currently a site distance problem that had been raised in the record.† He noted something needs to happen at that intersection to improve the site distance or request that the state look at reducing the speed limit along the stretch of road so the site distance would be adequate.† He said the intersection has been cleaned up since the start of the process but it doesnít meet the ASHTO standards.† He said there are comments in the record from the landowner on the corner that is objecting to this on the basis that if the road intersection has to be widened, it might impact their septic system that is nearby.† He noted it was not caused by this proposal; it was an existing situation that might make it worse at that intersection.† He asked the Board what they should do for that issue.† He said they hadnít recommended any conditions.
Dwyer asked if they should ask the Speed Control Board for a variance in this matter.
Stinchfield said they wouldnít be asking for a variance but for them to issue an order to create a new speed zone there.† He thought it was possible to do that but one problem is that it is approaching Cloverdale Road and the state wants to establish speed zones that are a half-mile long.† He said their proposal would have to be for most of Bear Creek Road for it to be long enough to meet their criteria.† He said they need to study the speeds of existing traffic to see if a reduction in speed is consistent with how the road is being used.† He added there is an ďIntersection AheadĒ sign, coming down Bear Creek, approaching Bradford South.† He thought they could look at a supplement to that signing and look at the curvature to consider some kind of speed device.† He didnít know if the state would lower the speed zone.† He said they could use signage that combines a curve with an intersection.
Green asked if not for this application, how would they fix the problem and who would be responsible.
Stinchfield said they would do what they had done: cutting the brush back for visibility.† He said ultimately it is the Countyís responsibility if it is determined improvements are needed.
Dwyer said they need to fix the problem whether or not the application goes forward.† He said if there is a safety issue, they need to address it.† He said it was unreasonable to put all of the responsibility on the applicant if the project is allowed.
Traffic Impact Analysis
Lanfear noted there is disagreement about when the 20-year period should begin and end.† He said the application came in 1998 and the applicant had provided a 20-year analysis from that date forward.† He said the opponents wanted to see it for 20 years from now.† He indicated the general principle is they address the requirements in effect at the time they make the application and they are looking at the 20-year analysis as covering the appropriate time period.
Sorenson asked why they couldnít put the requirement of looking at the analysis when the rock is starting to move.† He asked why they should have arbitrary dates that canít be predicted.
Vorhes said the study is necessary for the Board to determine whether there is compliance with the criteria as part of the decision making.† He said they need to know the result of the analysis in order to reach the conclusion regarding the criteria of approval under the Administrative Rule.† He noted the time frame would need to be known and addressed by all the parties in advance of the Boardís decision.† He said if there is an interest in establishing a date different than what the applicant has addressed, they might want to discuss what that date should be.† He added they should reopen the record so that could be addressed by the applicant and everyone else to know that is the window of opportunity that should be the focus for the Board to analyze and review the record and make a decision on the criteria for approval.
Lanfear noted they need to review what is being approved.† He said what is being requested is to run 80 trucks a day.† He said the way the conditions are written, there is limitations placed on this approval, that there would not be the ability for the applicant to run 500 trucks per day without being in violation.
Vorhes commented that if the Board thinks it needs to be different, it might be worthwhile to reopen the record and allow people to give the analysis so they can review it and determine if there is compliance with the applicable criteria.† He added the period of study may utilize some of the same information that was utilized for purposes of analyzing the impact on the road structure, but there are different calculations and analysis.† He added they might not be able to use all of the same information.
Sorenson asked what the Board had to decide on this issue.
Lanfear responded the issue for the Board is whether there is an impact to the level of service on the roads within the 20-year time period.† He said Goal 12 pushes it instead of Goal 5 criteria for conflicts to local roads.
Vorhes said they need to know what the conflict is in order to articulate findings, or for the Board to decide there is and what it would take to minimize it.
Sorenson asked if they used the numbers the applicants submitted, if there would be any reason to do a higher number.
Stinchfield noted what is in the record is the analysis through 2018 showing the level of service is okay at the Cedarcroft/Bear Creek and at Bear Creek and Cloverdale.† He said they are predicted to be for all movements the level of service A or B.† He said the analysis was done based on assuming growth rates from Cloverdale Road.† He noted the quarry operation impacts are structural, not congestion related because of the small number of vehicles involved.
Lanfear noted that the level of service for intersections includes the number of vehicles and how they move on the road.† He stated it wasnít tied to the exact issue of payment overlay.
Dwyer commented they could find that the standard for the level of service has been met because they control any expansion regarding the number of trips.† He added the size of the quarry itself limits future capacity without another application.† With regard to weight, he could also find that there might be an impact on Cedarcroft but there will be an impact on Bear Creek to a lesser extent because it is a major arterial instead of a local collector, so the standards of construction are different.† He said it was built originally to a higher standard than a local road.† He asked what they could reasonably do to maintain that standard beyond degradation that they could directly attribute to the applicant in excess of what he already pays in weight mile fees.† He thought the issue had been addressed.
Conflicts with Goal 5 Resource Sites
Lanfear noted the opponents are raising issues that there are riparian resources that need protection in the area.† He said the Goal 5 Rule contains specific language that if they are going to look at the resources, they have to be on an existing county inventory.† He said their riparian maps were from 1980 and do not show any riparian streams within the impact area or near the quarry itself.† He noted there are wetlands identified on the state inventory that are considered part of the county inventory and are limited to a small water crossing of the haul road.† He stated there wasnít any proposal to alter that road surface across the wetland area.† He said they hadnít identified any impact to the wetland as part of this process.
Sorenson asked if the staff memo addresses whether or not there is a conflict with riparian resources.
Vorhes said it is the identification of a Class 1 stream as the acknowledged list of significant resources that the current Rural Comprehensive Plan identifies as Goal 5 riparian resources to be protected.† He said there are riparian resources along Class 1 streams.† He said that is the way the policies in the Rural Comprehensive Plan and the inventory of riparian resources† were identified when the Rural Comprehensive Plan was acknowledged.† He added if there is not a Class 1 stream within the impact area by definition or by operation of the Rural Comprehensive Plan, the description of† what the riparian Goal 5 resources protected by that plan results in the conclusion that there are none in the impact area because there are no Class 1 streams.† He said that was the indicator that the Rural Comprehensive Plan uses to find the riparian resources within Lane County that are then subject to the riparian regulations in Lane Code that design the protection program under Goal 5 for those riparian resources.† He added that the Goal 5 Rule for mineral and aggregate resources that has specific language that tells the Board how to address conflicts with other Goal 5 resource sites governs this.† He said it looks only to those within the impact area that are shown on an acknowledged list of significant resources.† He said they have to go to the Rural Comprehensive Plan to get the list. He noted it was the map that was acknowledged in the early 80ís about Lane Countyís Goal 5 riparian resource inventory, and that is the limit of the Goal 5 Mineral and Aggregate Rule that says those are the resources that are looked at and because there are not Class 1 streams within the impact area, limits the review for riparian resources.
Sorenson asked if the 1996 amendment to the Goal 5 Rule applied.
Lanfear noted when they were coming up with the changes to the Goal 5 Rule in 1996, Lane County was just entering periodic review.† He said they were not directed to the new goal rule provisions during periodic review.†
Vorhes stated those provisions that related to riparian resources are not applicable because of what Lanfear described.† He said the provisions that describe how to address this application for a post acknowledgement plan amendment for mineral and aggregate uses are subject to the 1996 amendments to the Goal 5 Rule that relate to mineral and aggregate resources that define the parameters of the conflicts with other Goal 5 resources the Board needs to address in the context of the application.
Dwyer commented as this relates to significance and the impact area, they are outside the 1,500 feet.† He added that they are limited except where factual information indicates significant conflicts beyond that distance.† He asked where in the record it showed a significant conflict beyond that distance as it relates to the riparian area.
Lanfear stated there were none close by.
Recessed at 12:00 p.m.
Returned at 1:30 p.m.
Green asked if there were any ex parte contacts from the Board.
Green stated he had not received any written mail or e-mail.
Dwyer stated he received an e-mail.† He said he didnít read or respond to it.† He said he chastised the person for sending it to him.
Morrison stated she had none.
Hampton stated he received an e-mail but he did not read it.
Sorenson stated he received an e-mail, he read it and he received an e-mail from Dwyer about his response to the e-mail.
Issue of Impacts to Upper Willamette Spring Chinook
Lanfear stated it doesnít appear to be addressed in the Goal 5 Rule.† He said that Lane County doesnít have an inventory that lists this.† He said indirectly they get to the Class 1 streams and riparian resources.† He said whether there is a take or potential harm to the Spring Chinook is something that is regulated by the National Marine Fisheries Service and doesnít have any liberty to cause any harm to the fish regardless of what the county does with this application.† He noted the applicant has submitted a report by EGR & Associates that claims there is no impact to water resources in the area.
Sorenson asked if there was a requirement that the applicant must be in compliance with all applicable laws.
Vorhes responded that it was not a specific criteria under the Goal 5 Mineral and Aggregate Rule, but as a practical matter, he has to be in compliance with applicable laws.
Lanfear explained as a result of the Eugene Sand and Gravel decision going to LUBA, they found that it preempts all of the local regulations, even the plan amendment requirements.† He said they have to follow the Goal 5 Rule and they canít tack on local criteria.
Sorenson asked if the County by approving this is getting into a conflict with the listed or threatened endangered species.
Vorhes noted the difficulty they have is they donít have a means under the Goal 5 Mineral and Aggregate Rule to look at the question of whether the County issuing the permit will violate the Endangered Species Act.
Sorenson asked if the approval of an aggregate or mineral application is an action that is governed by county or federal law.
Vorhes responded to the extent the federal law covers a take in whatever fashion it occurs, there is a possibility that someone could make a claim that because of the county permit there was a take.† He said what was difficult to establish and make stick is when another actorís conduct might ultimately be the result. He added there are some circumstances that could have arrived where conditions of the county permit might be the contributing part of a take.† He said DOGAMI might get into those kinds of issues under the Mineral and Aggregate Rule of Goal 5.† He indicated† the Board must find compliance or a set of regulations on the Endangered Species Act and whether the issue of the permit will result in the take is not one of the criteria for approval of this.
Sorenson noted that Lanfear mentioned in his memo that the applicant presents the argument that they must evaluate the potential harm to the Upper Willamette Spring Chinook.† He asked if there were any facts to support that.
Lanfear responded that Exhibit 174 is where that is presented (page 31, copy in file).† He said it claims that the impact to local streams may violate the Endangered Species Act Rule.† He noted the Spring Chinook is listed as threatened under the Act and requires conservation and recovery of habitat and any action by local governments may degrade the water quality and might result in harm to the species.† He said that Lane County failed to address the required ESA protection of habitat when it failed to adopt the proposed Critical Habitat Conservation Zone in 2001.† He added it would have addressed the requirements of the Goal 5 Rule.† He noted the rule changed in 1996 and Lane County was not required to address the rule at that time and the Board has deferred the decision on that habitat conservation zone.
Sorenson asked if this was an example where the fish would be brought up on a case -by-case basis.
Vorhes commented that one of the reasons the regulations were developed was to seek to provide some protection under the Endangered Species Act.† He didnít think it was the only driving force for it.† He said the Boardís action doesnít necessarily affect or reflect on this particular application because the Goal 5 Mineral and Aggregate Rule, the place where the analysis starts and stops, governs it.† He said by having those regulations in place may not have had anything to do with this application. He said they have the limitations of what they can look at in this application.
Sorenson asked if there was any dispute about the status and the presence of the fish.
Lanfear responded he didnít see anything in the record that documents the presence of the fish in the stream on the property.
Green stated there was no evidence to support the opponents and would support the applicantís statement.† He noted there was no evidence for the conflict.
Sorenson took the view that on the matter of the application of the law, the presence of federally listed endangered species or the Endangered Species Act would be something they should require compliance with.† He didnít hear any evidence to support the view that there is Upper Willamette Spring Chinook† present.
Conflicts with Agricultural Practices
Lanfear indicated there is discussion in the record of a holly farm at the end of Cedarcroft Road.† He said this gets back to the issue of whether it is within the impact area or not.† He noted it is not within the impact area of the mining but would be impacted from dust created from the haul road.† He stated there were no specific details provided about the holly farm.† He noted there was substantial material entered into the record from the Eugene Sand and Gravel record about dust studies.† He said there were situations where dust from gravel roads could impact the production of farm produce and holly.†† He said there wasnít anything in the record to identify whether this is within the impact area or a significant change in the cost of doing the farming or in the practice of operating the farm.† He said without that it is hard to find a conflict that needs to be minimized.
Dwyer commented it is out of the immediate area they need to consider.† He said the record shows that the dust (if it were created) would be created by the haul road and not by the operation.† He added that the paving would mitigate some of the impacts of the dust.†
Green supported this.
Sorenson found that the presence of the mining activity does extend to the haul road, that the haul road is near the† mining area and that the measures that had been discussed to mitigate the impact on the production of the holly would find that the impact on the holly farm had not been demonstrated.† He commented that the testimony in the record is insufficient to trigger a conflict with that agricultural practice.
Lanfear explained this is the only property in the immediate vicinity of the quarry that is zoned for agricultural use.† He said there is a letter submitted by the new owner of the property that has a lack of detail that is similar to the one on the holly farm (Exhibit 192, copy in file).† He said they plan to plant several acres of grapes on the property and have concern about dust and the effect it will have on the grapes they plan to harvest for wine.† He added they have livestock and it might have an adverse impact on reproduction, health and well-being of the animals.† He said there wasnít much information.† He noted it wasnít an agricultural activity that was currently taking place.† He added there wasnít much in the record in the way of demonstration that there is a lot of dust being produced by the quarry mining site itself and most of the discussion of the dust in the record is about the haul road.† He didnít see evidence in the record that the dust from the mining would affect any on-going farming on the property.
Sorenson asked what the conflict was with agricultural farming because there is no vineyard.
Lanfear didnít believe there was a conflict.† He noted this was placed in the record by the owner of the property maintaing there is a conflict.† He said staffís position is that it is not a conflict that has risen to the level that could be addressed because there is a lack of information.† He said there are Class 3 soils suitable for agricultural and the owner plans on actively farming the property and will be growing grapes and raising livestock.† He added the dust that would affect this would not come from the mining but from haul road dust.
Sorenson found that the requirements would have to include a discussion of any conflicts with agricultural practices.† He found that the property was within the impact area but didnít see a conflict with current agricultural practices.
Dwyer and Green agreed.
Lanfear noted the need for an ESEE analysis would come up if they found conflicts that are not minimized and then they would have to address the ESEE analysis.
2 a, Page 4, Significance of Resource
Green found there was a significant resource.
Dwyer commented there was nothing in the record to state that it wasnít a significant resource.
Sorenson asked if there were other items in the record concerning the significance of the resource.
Lanfear responded that Exhibit 168 stated that Mr. Biacho raised an issue with the classification of soils.† He recalled they are to use the NRCS soil survey for Lane County.† He indicated that survey and Mr. Biacho were using soil ratings by the Department of Forestry and these were not the same system classification.† He noted they couldnít find any evidence in the soil survey that there were Class 1 or Class 2 soils on the property where mining is to occur.
Sorenson asked if the quality and quantity of the rock met ODOT standards.
Lanfear noted there is a document attached to the ordinance, (a study from Century West Engineering Corporation) which documents the rock on the property meets ODOT specifications.† He estimated the amount of material to be 2,560,000 tons.
Sorenson found there was a significant resource on the property.
Sorenson thought the main issue is what the impact area is.† He noted the applicant had introduced an issue of where the mining begins and ends.† He said the rule says it is the mining area and the issue is how they get to the determination of what that is.† He said if they find the mining area is small, then the impacts will be small.† He thought the impact of the mining under the OAR is all or any part of the process of mining.† He said it is including processing and the processing is not limited to crushing, washing, milling and screening.† He thought the haul road was part of the mining area and he said they will have to see what the mining area is.† He added by having a private haul road that is attached to the rest of the mining area, it becomes part of the overall mining operation
Lanfear noted there is a letter from DOGAMI in the record that states hauling the rock out is not processing.† He said they call it "load out."† He added in the definition of processing, it doesnít mention transportation.† He said that mining has certain parts to it:† the actual extraction of the mineral from the ground, the processing of the mineral, transportation and load out.
Dwyer commented the conflict didnít occur until the trucks got down to Cedarcroft.† He noted there was a plan in the record for the applicant to mitigate the dust and other things associated with the haul aspect.
Lanfear stated that a main issue for the Board is to decide whether they are required to do that.† He noted the applicant had voluntarily offered to control dust on that stretch of road by applying some material to keep the dust control substance.† He stated on the staff level it is not required by the rule unless they determine that hauling out of material to the public road fits under the definition of mining area or processing.
Sorenson asked if blasting was part of mining.
Lanfear stated it is in the record.
Sorenson noted that mining is defined as the extraction and processing of the minerals and thinks the haul road is part of the mining operation.
Vorhes noted the applicant views the impact area to be limited to the mining site and not the transportation to be used as the haul road.
Green supported that.
Vorhes commented the rule talks of terms of conflicts from proposed mining. He noted that includes all or any part of the process of mining by the removal of† overburden and extraction of natural mineral deposits thereby exposed by any method including open pit mining operations, auger mining operations, processing, surface impacts of underground mining, production of surface mining refuse and the construction of adjacent or offsite pits, except those constructed for use as access road.† He said that transporting the materials from the mining hole in the ground is the issue of where and how you fit it into the definition of mining.
Sorenson stated that mining area includes where the materials are moved around on the property or under the control of the people who are running the mining operation.
Dwyer didnít agree with Sorenson.† He said the mining operation starts at the mine, not where the road meets the mine.
Green agreed.† He noted on page 5, the administrative rule limits the review of those conflicts produced at the mining area and it limits the review of any transportation conflicts to those road elements specified in the rule.
Sorenson asked about the term "mining" that Lanfear used on page 5 of the staff memo.
Lanfear responded that in the Goal 5 Rule it is defined in OAR and the mining area is the area of the site within which mining is permitted or proposed excluding undisturbed buffer areas or areas on a parcel where mining is not authorized.† He stated that was the specific definition.
Green stated there are no conflicts that needed to be minimized, outside of the one the applicant had offered with mitigation.
Morrison added the mining didnít include the haul road.
B 1 Conflicts Due to Noise, Dust and Other Discharges
Morrison agreed with staff.
Dwyer commented that the applicant had to minimize noise.† He asked how they were going to create a berm between the exposed sides of the hill.† He noted that practice itself minimized the conflict from noise and dust.
Lanfear explained the applicantís engineer described the five to ten decibel reduction in noise working behind a berm.† He said there were some issues raised in the Daly Standlee report that it would then cause it to reflect off.† He believed the applicantís engineer started the analysis by measuring sound at the existing Saginaw site that has the rock wall reflecting capability.† He believed they had addressed that issue.† He said they made some analysis on site using some equipment that shows that the noise is reduced below the DEQ requirements without putting on the extra reduction in sound from the berm.
Sorenson stated the burden of proof is on the applicant to prove conformance to the DEQ noise regulations.† He didnít believe the applicants had met their burden of proof because of the critique of the noise study that Mr. Noxon did for the applicants.† He said a Mr. Standlee performed the critique.† He said in his opinion, Standlee said the study Noxon did does not sufficiently quantify the noise that could be expected to radiate from the quarry.† Standlee added the study conducted by Noxon would not be enough to demonstrate compliance with DEQ regulations.† He noted among the reasons that Standlee found was because Noxon used the Saginaw quarry crushing equipment that was expected to be used at the Bradford quarry.† He said, however, the noise level provided for that equipment is less than that typically found by Standlee in his engineering firm.† He added that Noxon didnít consider the ambient noise radiating from any sources typically found at a quarry such as a rock drill, dozier, front end loaders and blasting.† He said that noise wasnít considered and the applicants couldnít meet the DEQ rule.
Green noted there was consensus with the staff on the noise discharge.
Haul Road Dust
Green noted it is not found in the area.
Green noted it is not part of the consideration under the Goal 5 Rule.
Lanfear stated there is a condition attached that requires dust abatement to the gravel on the road.
Mining Area for Dust
Lanfear said the Board needs to determine if there are conflicts from dust and noise in the mining area.† He noted there was nothing in the record quantitative on the dust being generated offsite.† He said there is an LRAPA permit that has been issued for this site.† He added they have to comply with the LRAPA standards.† He said there was nothing in the way of evidence suggesting that dust in compliance with LRAPA standards travels outward to any great distance to anything nearby since there is mostly forest practices occurring nearby.
Green agreed with the staff position that there is not a sufficient amount of information in the record to have this issue not go forward.
Sorenson asked where the record is on the mining area dust.† He asked who had the burden of proof.
Lanfear responded the applicant has the burden of addressing the criteria.† He said the objections have to be raised with enough specificity so the applicant can address the issue.† He said there is discussion in the record of having to go through the LRAPA permitting process to operate the mine.† He said the rule states that if the conflict is identified, it is considered minimized if dealt with within a local state or federal standard that applies to that conflict.† He said there is a standard that LRAPA imposes and if they bring the level into conformance with that, then they have minimized the conflict.
Sorenson asked where in the record the applicant had demonstrated they would control the dust in the mining area.
Lanfear responded that on page 5 of Exhibit 189 a) the applicant discusses dust from the haul road.† He added there is mention of the prevailing north and northwestern winds.
Sorenson asked if there was any burden the applicant had on dust.
Vorhes responded they have to give the information that shows what the conflicts are and what evidence there is establishing that there is a conflict.†† He said beyond that, they are responding to objections or issues raised with sufficient specificity.† He added in order to convince the decision maker that those objections should not be sustained, there is a need to bring forward the evidence and testimony that responds to those objections.
Lanfear noted the issue of dust that is raised in the record is focused on the haul road and not directed at dust coming from the mining area.
MOTION: to approve a Fourth Reading and Setting a Fifth Reading and Deliberation for Ordinance PA 1188 on February 25, 2004.
Morrison MOVED, Dwyer SECONDED.
d.† ORDER 04-2-4-8/In the Matter of Certification of Final Assessments for Improvements to River Road (County Road Number 200) Between Mile Post 7.747 and Mile Post 7.366 and Setting Lien Values Against Properties. (NBA & PM 1/7/04)
Frank Simas, Public Works, reported he went back and reviewed all the materials from the assessment process.† He noted when they originally came to the Board in July 2002, the Board directed staff to do an evaluation of the two methods of assessing the abutting owners for the project.† He said the two alternatives were the City of Eugeneís assessment policy, and Lane Code Chapter 15.† He said they came back in October 2002 and at that time the Board directed them to go ahead and do the assessments under Lane Code Chapter 15.
Simas noted an issue that came up at the hearing last week was the issue of deferral of assessments.† He mentioned there were some proposed amendments to Lane Codeís assessment procedure coming before the Board within the next two months.† He noted the amendments are generally modeled after the City of Eugeneís, with the exception that the City of Eugene assesses for a portion of the pavement and for storm drainage.† He added they recover more of the costs than Lane County does.† He noted in the existing policy they have the issue of deferral assessments and there were two properties they were looking at.† He noted under the existing policy if a property does not take access from the arterial, then the assessment is deferred.† He said being deferred means it is still accruing interest at the rate of seven percent and it is still a lien on the property but it is not required to be paid off until the property takes access or it is extinguished at the end of 20 years.
Simas stated the proposed Lane Code amendments would have a provision whereby it was modeled on the City of Eugeneís policy where large frontage parcels could take advantage of the deferral.† He said the way it is currently written, it would be required for the property to have at least 200 feet of frontage before it could trigger the deferral of the assessments and then the 100 feet adjacent to a dwelling would be eligible to be deferred.† He said he went back through the assessments for the River Road project and there are two properties that would be eligible under the new policy that are not now.† He said the parcels are Mr. Malcomís property and the Dike property.† He said they have slightly more than 200 feet of frontage.† He noted that about 110 feet on each property could be deferred instead of having to be paid immediately.
Simas noted another issue they were looking into was the engineering costs.† He said on this particular project, the notices had gone out to the property owners, and the board order that was approved had stated that the assessments were to include the engineering and administrative fee of 25%.† He said it should have read approximately 25%.† He noted for this project the bid price from the contractor was favorable so the amount of the assessment improvements was lower than anticipated but the administrative engineering fees that went into it were still the same.† He noted the administrative fee was 28% for the River Road project.
Dwyer asked what the actual amount of the administrative amount was on a project like this.
Simas responded they had gone across the county system and identified those items that are related to sidewalk, curb and gutter construction and on this matter it was 28%.† He said it would have been a lower percent had the bid come in higher.† He said costs are fixed and the engineering is the same.† He added until they know what the construction actual bid prices are going to be, they donít know the percentage for the administrative fees.
Morrison was concerned that if they do this (depending upon the policy that comes in the future) that they would have to go back on other projects and they would get requests from those people.† She was not in favor of waiting on this and wouldnít support the motion.
Dwyer commented the new policy was more beneficial.† He said that holding this until they adopt a new policy was what he was supporting.† He added they would adopt the provisions under the new policy and they are not retroactive.
Kardell said the Board could defer this action until the Board considers any new policy proposals and makes a decision on those.
Green stated that if they hold this over, he didnít think it would provide much of an advantage to some of the property owners because there would still be a deferral on the property plus a seven percent interest rate.
Sorenson was concerned about the changing policy, as other properties were assessed under the old policy.† He said the roads are for other people to go through where these people live.† He was against landowners having to pay when they didnít take access from the road.
Dwyer stated he would be voting against this.† He said they need to implement the new policy, be prospective and allow people to participate and limit the administrative fee to 25%.
MOTION: to approve† ORDER 04-2-4-8.
Morrison MOVED, Green SECONDED.
VOTE: 2-3 (Dwyer, Sorenson and Hampton dissenting). MOTION FAILED.
Dwyer recommended that Public Works brings back the new policy that would be prospective that includes any action taken after the policy and limiting it to a 25% administrative fee.† He added they canít waive the assessments because the precedent they would set would be a greater damage.
Simas noted a draw back of letting these go too long is that they have been recorded as pending liens against the properties.† He noted there are 130 parcels on Irvington that are in a similar situation. He said it is inconvenient to the owners of the property if they go to refinance or sell the property, it could cause a problem.
Green didnít know of a solution.
Van Vactor suggested separating the assessments from the new assessment policy and bringing it back to the Board.
10.† CONSENT CALENDAR
A.† Approval of Minutes:
May 1, 2003, Special Board Work Session
May 6, 2003, Work Session, Following Board of Health
July 30, 2003, Regular Meeting, 9:00 a.m.
July 30, 2003, Regular Meeting, 1:30 p.m.
December 10, 2003, Regular Meeting, 9:00 a.m.
December 10, 2003, Regular Meeting, 1:30 p.m.
December 17, 2003, Regular Meeting, 9:00 a.m.
January 14, 2004, Regular Meeting, 9:00 a.m.
January 14, 2004, Regular Meeting, 1:30 p.m.
B.† Public Works
1)† ORDER 04-2-11-4/In the Matter of Awarding a Contract to United Rentals in the Amount of $80,000.00, for the Purchase of One (1), Used Truck-Mounted Bridge Inspection Crane.
MOTION: to approve the Consent Calendar..
Dwyer MOVED, Hampton SECONDED.
VOTE: 4-0 (Morrison excused).
11.† CHILDREN AND FAMILIES
a.† RESOLUTION AND ORDER 04-2-11-5/In the Matter of Appointing Crystal Argetsinger, Amanda Layton, and Tricia Lynch and Reappointing Elaine Walters and Bruce Abel to the Lane County Commission on Children and Families.
MOTION: to approve Resolution and Order 04-2-11-5.
Dwyer MOVED, Hampton SECONDED.
VOTE: 4-0 (Morrison excused).
12.† HEALTH AND HUMAN SERVICES
a.† ORDER 04-2-11-6/In the Matter of Delegating Authority to the County Administrator as an Authorized Representative to Sign Applications to Medicare and Medicaid Related to Mental Health Services.
Rob Rockstroh, Health and Human Services, explained since 1997 they had done these automatically.† He said they had just received notice that they have to be turned around by February 15.
Dwyer MOVED, Hampton, SECONDED.
VOTE: 4-0 (Morrison excused).
13.† CORRESPONDENCE TO THE BOARD
14.† COMMISSIONERS' ANNOUNCEMENTS
Green announced the Head Start art exhibit.
Dwyer announced there would be an MPC meeting this week.
15.† EXECUTIVE SESSION as per ORS 192.660
To take place after the meeting.
16.† OTHER BUSINESS
There being no further business, Commissioner Green recessed the meeting into Executive Session at 3:30 p.m.