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2008-869-Minutes for Meeting April 23,2008 Recorded 10/1/2008DESCHUTES COUNTY OFFICIAL RECORDS r} ~n~uQ,Q~~ Q6 NANCY BLANKENSHIP, COUNTY CLERK CU COMMISSIONERS' JOURNAL 10/0112008 08;36;22 AM 111111111111111111111111111111111 2008-869 Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ora MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, APRIL 23, 2008 Present were Commissioners Dennis R. Luke, Tammy Melton and Michael M. Daly. Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy County Administrator; Mark Pilliod and Laurie Craghead, Legal Counsel; Tom Anderson, Catherine Morrow, Todd Cleveland, Dan Haldeman, Sher Buckner, George Read and Barbara Rich, Community Development Department; Marty Wynne, Finance; and approximately twenty other citizens, including representatives of the media. Chair Luke opened the meeting at 1:30 p.m. 1. Progress Report from South County Financial Assistance Advisory Committee. Robert Ray, speaking for the South County Financial Advisory Committee and reading from a document, reported that the Committee came up with several points to present to the Board. Some of these points are: limiting access to funds makes no sense. The ten-year timeline is too limited. Sales are too uncertain and limiting. The funds need to be available before Pahlisch exercises its options. Commissioner Luke said that it could be used to pay debt service on a bond. All funds from land sales should be used for groundwater protection, first in South County then elsewhere in the County. Metered growth should be considered, and giving incentives to stall development of individually owned lots. Commissioner Daly asked if this means landowners will be asked to agree not to develop their property. Mr. Ray replied that they could be asked to move their projected timeline to a later date, and maybe offer a reduction in fees or other incentives. Minutes of Administrative Work Session Wednesday, April 23, 2008 Page 1 of 10 Pages Mr. Ray stated that any intelligent recommendation is moot without the inclusion of Klamath County. Development is more aggressive in Deschutes County, but there is no fence at the county line. All holes in the boat need to be repaired. The Committee suggests that there be a sewer summit, with representatives from the DEQ, DLCD, Klamath County and Community Development. All parties should look at the affected areas, analyze where properties can be connected to existing systems, or eventually become part of La Pine, or can develop small systems, or whether individual systems are the only option. In regard to access to information, it seems to take a lot of inquiries to get answers. The Committee needs more information on demographics. This should have been provided at the beginning. The Committee needs clarification of funding available, restrictions and requirements. He said that sewering language is too vague, and residents needs to be more involved to address the participation aspect. Residents have not been involved and should have been from the start. Mr. Ray said that a copy of the statement would be available next Wednesday after all the members have signed off. He feels the charge given was vague, and they don't know exactly what is expected of them. Commissioner Luke stated that suggestions are welcome. It isn't just the sewer, but other options that may come forward that make sense. Mr. Ray asked that Tom Anderson or Barbara Rich attend the meetings. He added that they need clarification on what areas can be sewered and what kind of help they can get, and the demographics are critical. About 39% are seniors or on fixed income. Commissioner Melton said that DLCD is looking at this as individual lot owners. Commissioner Luke stated that he hoped the committee would come back and say that some percentage of the money should be used for loans and some for other needs, but the committee seems to be more concerned about the amount. Commissioner Daly noted that he feels the committee has gotten off track; the use comes later. Commissioner Melton stated that a housing study was done some years ago, and she wondered if it would include the demographic information. Ms. Morrow replied that the census includes this. The affordable housing study covered a very broad spectrum of topics. Minutes of Administrative Work Session Wednesday, April 23, 2008 Page 2 of 10 Pages Mr. Ray said that some may have a regular system now and may need an ATT system later, but the sewer may come in at some point. When the system finally fails, can they hook up then. This could lead to more of an issue and more cost. There is a problem that exists now, but what if it isn't an issue ten years from now. Commissioner Melton stated that the agencies have to go with the best information available. The Commissioners are not scientists. If there was a firm recommendation on the grandfathered and new systems, that would take care of a lot of them. The next piece is, if a standard system is working okay, then what? What about when it fails? What goes in then? Mr. Ray said that they would look at areas that can be easily sewered first, then the ATT systems. Commissioner Melton added perhaps it could be linked into a sewer system. Mr. Ray stated that Arenco has one with that capability now. The tank is still used, but the affluent goes to the sewer. It can be upgraded with one additional filter. Commissioner Melton noted that this should be added to the options. Mr. Ray said that they don't want to cut out any green options, like composting toilets and using gray water. Deschutes County can be on the forefront of this. However, La Pine Special Sewer District does not want the senior center using a green system. Commissioner Daly said that the grandfathered language needs updating as to what should be allowed or can be upgraded, but the committee needs to decide how much it is worth. The committee's charge is the monetary part. He added that the new systems cost more; and asked if these people would be entitled to some funding. Mr. Ray said that if they can afford it, they shouldn't get any money. Commissioner Melton asked how the language could be made clear enough that this would be any system that reduces nitrates to a certain level. Dan Haldeman said that composting toilets are allowed by the DEQ, but a regular system is required for gray water. Mr. Ray said that the group meets again in a week to talk about grandfathered systems and so on. Commissioner Luke said there usually is a series of e-mails and postings regarding meeting and minutes. Mr. Kanner stated that agendas should have had the time and place on them. Under law, a notice of the day and subject is sufficient and is not a violation of public meetings law. This was a rookie mistake, and the Board can just ratify the actions and minutes of prior meetings. Minutes of Administrative Work Session Wednesday, April 23, 2008 Page 3 of 10 Pages Individuals on committee are not liable unless they were guilty of neglect of duty. Commissioner Melton asked if the committee had any questions. Mr. Ray said they just wanted clarification on a couple of points. Mr. Kanner stated that there will be a bond issue for 911 and Oregon State Police building, and there is still money in the fund for the project, so they could add $3 million to the groundwater issue. Debt service could be covered for a while. They'll need a decision soon whether to add this. Mr. Wynne said that they can put something together until almost the bond sale date. They are trying to close before the end of the fiscal year. The official statement advertises bonds a couple of years before the Resolution is needed. Commissioner Melton observed that she feels the timeframe is too tight and she'd like more information on how the funds would be spetn. 2. Follow-up Discussion regarding Local Rule. Dave Kanner said he has spoken with each Commissioner and have gotten a lot of public input. He feels the Commissioners should talk with each other instead. He added that he and staff tried to determine what the Board needs in terms of language and policy implications. Staff reviewed all input and tried to distill what the major themes are. (See attached handout that references various comments and input from citizens) 1. Do nothing. 2. There is no problem. 3. Staff is dishonest and incompetent. It does not matter at all whether there is additional permit revenue. CDD provides services based on demand/ it should not be a profit center. Do only what is needed based on demand. 4. Sewers. They have tried to rewrite language to include sewers as an option. As a side note, Mr. Kanner said that a sanitary authority or sewer districts are a possibility. He had a conversation with Doug Wright of DLCD. They could create a sanitary authority, which requires a vote, covering all of the areas of south County not currently served by a sewer system. They then would have one authority rather than multiple districts. Statutory solutions to overcome this are possible. Minutes of Administrative Work Session Wednesday, April 23, 2008 Page 4 of 10 Pages They could create a sanitary authority and give the voters a tax rate, and funds could be added to the pot of money to use on areas that are not suitable for a sewer system. The current statute seems to indicate that those funds have to be used on sewer systems only. And at this point the areas are only within urban growth boundaries or urban unincorporated communities. This would require a Goal 11 exception process. Commissioner Daly stated that this idea came from Judy Forsythe, so citizens should know that they actually do read comments. Other points brought up were affordability issues and an inspection regimen. The following ideas are a result of a brainstorming meeting of staff; the hope is to stimulate discussion on the issues. 1. This option would turn the problem over to DEQ. They will not allow nothing to happen. Catherine Morrow stated that if the County doesn't do it, DEQ would institute a geographic rule. Commissioner Daly stated that Joanie Hammond of DEQ said that is exactly what would happen. Commissioner Luke added that decisions would be made in Salem and not much input will be allowed. His dealings over the years with DEQ have not been positive; much of what they do is based on politics. When asked about a staff recommendation, he said that local control is always better than control from elsewhere. Residents will find it much easier to get access to local government. Commissioner Melton stated the County is in an economic downturn and doesn't have staff capacity to handle this project. There is so much more than this issue. It might be better to let DEQ take the lead. Commissioner Luke said that she is assuming that the legislature will care. They will not fund DEQ to do this. Commissioner Melton thinks they will because the County has funds for the project. Commissioner Daly said that it would be great to turn this over to someone else, but it is a County problem. DEQ does not care how much it costs people. Some bad decisions have been made by DEQ that cost a lot more than they should have just because they had the power to do it. Commissioner Luke agreed. Minutes of Administrative Work Session Wednesday, April 23, 2008 Page 5 of 10 Pages Commissioner Melton asked if part of the money can be used for forming a sewer district. Commissioner Luke said Oregon Water Wonderland had to do its own with the help of federal grants. Commissioner Melton feels that they are looking to the County to put this together. Commissioner Luke said forming a sewer district requires a vote. Laurie Craghead said it is a separate government entity and they have to form it. Commissioner Melton thinks the DEQ will help to get them funding. Commissioners Luke and Daly have both had dealings with the DEQ for many years and feel it is not going to happen. There are no grants to do this available for individuals or small groups anymore. The County may be able to help with some of it but there is not enough money to do it all. Commissioner Melton stated that she feels this is too big for the County, and the $35 million could be used for leverage when working with DEQ. It will be a burden to staff and will be an ongoing problem. Mr. Kanner said that creation of a sewer district is a county land use decision and the county will have to deal with it anyway. Commissioner Luke said that the congressional delegation can be approached with a plan and assistance requested. DEQ would have to support these efforts. He is certain that the legislature will not address this issue. Ed Criss said that they went over a map with DEQ and asked for their reasoning. Arenco also talked about how private money can help. If the DEQ is running the process, the County funds could pay the debt service for design-build programs. 2. This option would just require it on new buildings. Although it is easier to implement, it doesn't solve the problem; in fact, that is the smallest part of the problem. The number of lots is much smaller. The problem is existing, improperly functioning septic systems. Commissioner Luke said that it does not make sense to allow any system to go in that is not nitrate reducing. Commissioner Melton stated that she has difficulty with this idea. Commissioner Daly said that he initially thought this would work. Mr. Anderson stated that anything put in earlier than 2006 would apply, so some of them are fairly new. Minutes of Administrative Work Session Wednesday, April 23, 2008 Page 6 of 10 Pages Some are very old; many were installed in the 1970's. Perhaps the Committee could make a recommendation as to how to handle grandfathered systems and whether those owners should get some kind of incentive. Commissioner Melton stated that it would be important to know if capacity is there to handle additional lots. Mr. Anderson said that property owners are being provided with information that the standard system may not be the best way to go; that discussions are taking place about sewering and newer types of systems. Dave Kanner noted that a sewer district or authority can only take place if there is no practicable alternative. Commissioner Luke said that the Board seems to feel that the grandfathering should go away, and wants feedback from the Committee on this issue. 3. In regard to inspections, there is no easy way to do a visual inspection. Perhaps five a year are obviously failing. Commissioner Luke emphasized that trespass needs to be a part of the scope unless there is an obvious health hazard. Mr. Kanner said that instead of a ten-year timeframe, perhaps having property change hands would trigger the upgrade, if it is still available at that point. The Committee should provide input on this. There are about 6,400 lots affected by local rule, and sales have been about 500 a year; however, that has slowed considerably this past year. Commissioner Luke said that this requirement will take away the option of sewering as they may just wait until the property sells instead. Commissioner Daly would like to eliminate the time limit entirely; using time of sale or a building permit would take care of about 500 properties a year. Those who can't afford it can live out their lives in their homes without worrying about it. Mr. Kanner said staff was unanimous that an inspection regimen is intriguing but won't work. Staff's biggest concern is creating some mechanism to track sales so they know when the upgrade should take place. Tom Anderson added that this would have to be required under state regulations, requiring a legislative change. The Association of Realtors would lobby against this as it can be seen as another inhibitor to a sale. Minutes of Administrative Work Session Wednesday, April 23, 2008 Page 7 of 10 Pages From a staff perspective, whether time of sale or extending the time frame, the science is not precise enough to know when pollution reaches the point of no return. The longer the time frame, the greater the risk that some drinking water sources will become contaminated. But there are benefits to having a finite point to have action happen. Should the rule pass, the Assessor's system would flag the lots and something would have to happen for the title company to clear the property. This is something that is already in place when there has been a Code enforcement action. Commissioner Melton asked for input on how the funds would be allocated in this situation. 4. Another option is to extend the timeframe to fifteen years. There was a lot of testimony on this and the pro's on this are strong. But the biggest con is that at this time some newer systems don't require much, but may in the future. There is also the possibility to encourage upgrades sooner rather than later, through incentives. The biggest concern is the variable treatment standards. Mr. Anderson stated that the level of nitrate reduction has been analyzed, and since everyone contributes to the problem, all should be part of the solution. There are critical areas where water levels are higher, or are close to the river, or are older, where a change out should occur right away. Other areas have deeper groundwater and a 35% reduction is all that would be required. There are other choices besides replacing the entire system. Barbara Rich added that there are some that have variable treatment standards and that may be all that is needed in certain locations. The DEQ requires that the system has to shut down if it is not operating properly. It cannot discharge if it is not treated. 5. Another point was waiting for the Committee to make recommendations. Alternatively, the Committee could be put on hold until if or when the rule is adopted. Mr. Kanner asked if this would apply to all new construction including grandfathered ones now, with the question being reimbursement. There was consensus of the Board, with the only question being compensation at some point. Commissioner Daly said that cluster systems do not treat nitrates anyway, they just combine individual systems into one. And Goal 11 still has to be addressed. Minutes of Administrative Work Session Wednesday, April 23, 2008 Page 8 of 10 Pages 6. Another option is to refer it to the voters, even though it would be Countywide. It was felt that the Commissioners are elected to make decisions and not necessarily refer it to the voters. Commissioner Daly said that points #2 and #3 are similar. There are different types of new development, since some may already have a permit in place. Others may have nothing in place. The question is whether there should be any kind of reimbursement. He asked if demographic information used to decide the income level; the Census is already eight years old. Mr. Ray said that properties have lost 25% of their value lately. Even old information would be helpful as a starting point. Commissioner Melton stated that a housing study was done as well. Commissioner Daly asked if funds would be allocated based on age groups. Mr. Kanner stated that money can be provided in the form of a loan, with a repayment requirement when the property changes hands. Mr. Ray said that the cost of an NDR system would be about $300,000, and the water could be used on lawns, etc. It will even address pharmaceuticals. Commissioner Daly said there is still a cost to install the piping. Ms. Morrow stated it is all about Goal 11. Commissioner Melton stated there could be a round-table discussion to investigate options. Commissioner Luke sated that the Committee can only provide what it feels is clear. It is important that staff be able to be prepared in advance of meeting with the Committee. The only question the Board is asking is whether some reimbursement is appropriate. He said it comes down to a neighborhood sitting down and figuring out if they want a sewer system and whether there is support for it. For instance, the Road Department meets with interested citizens, giving them information on road improvements, and then there is a preliminary vote. Mr. Ray said the map referred to in the DEQ information showing flood plains, etc. would help to get this issue before the public. Commissioner Daly asked how that relates to using the funding. Mr. Ray feels this will help to localize the issue. Minutes of Administrative Work Session Wednesday, April 23, 2008 Page 9 of 10 Pages After a lengthy conversation, it was decided that the Committee has several items to discuss and report back to the Commissioners, including the grandfathering aspect. 3. Other Items. None were offered. Being no further discussion, the meeting adjourned at 4: 40 p.m. DATED this 23rd Day of April 2008 for the Deschutes County Board of Commissioners. D nnis R. Luke, hair ammy a y) qelton, Vice Chair ATTEST: Recording Secretary Minutes of Administrative Work Session Wednesday, April 23, 2008 Page 10 of 10 Pages Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 P.M., WEDNESDAY, APRIL 23, 2008 1. Progress Report from South County Financial Assistance Advisory Committee - David Inbody 2. Follow-up Discussion regarding Local Rule 3. Other Items PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), pending or threatened litigation; or ORS 192.660(2) (b), personnel issues Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherlvise indicated. If you have questions regarding a meeting, please call 388-6572. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. p 1. co t m E co x cu L Y LO C O t a 4 Q v It 1, O N N ce a ~ !JS t V,`~ u, _ M r M h A r T w ~ ~ Cr r ~ l ~ tlvl~ ; x i'K , v '~a c~ ~ 1n ~ o a~ i s o 0.0 . E (a z 4 ~Q ? Vi s LV 3 9, Cr5 CL v L ~ co x '-J L O C L a V C 4k N O Q S N~ V~ Q D ~ - U l- r N !'t L o • ro Z a MAJOR PUBLIC TESTIMONY THEMES (Oral & Written, Through 04/08 1. Do Nothing. "Majority" of citizens are opposed and BoC should respect their wishes. Let local citizens decide how to address the problem. 2. There is No Problem. Nitrates are not a health concern. (And even if they are) the science of the groundwater study is flawed/inaccurate. 3. Staff is Dishonest/Incompetent County is only doing this for the money. 4. Sewers. Better long-term solution. Pharmaceuticals + other pathogens. 5. Affordability. Too many in S. County cannot afford to upgrade. This will bankrupt people and put them out of their homes. 6 Inspection Regimen. Address the problem via an inspection pgm. That focuses on older systems and problem areas. Extend to 15 years. Policy Choice Do Nothing Has the effect retaining the on-site inspection nroQram.l Pros Cons Klamath Co. may be included in a Delays timely action. Possible that no geographic rule action is taken if legislature does not provide add't'1 DEQ resources Groundwater protection is ultimately Lost or reduced coordination with other DEQ's responsibility statewide land-use planning goals. Shifts cost burden to state Possible abdication of BoC responsibility to make a local decision at the local level Allows DEQ to do their own public Lose coordination between land-use, env. involvement process health & building as well as other public values identified in RPS Responds to some public feedback that DEQ has repeatedly expressed support for DEQ would do a better job of groundwater the County's right to develop a local protection than county solution. Shifts liabilities, enforcement DEQ focus on red lots possibly at odds responsibilities and appeals to the state w/work plan Frees up county staff to work on other ro ects + programs Possibly use revenue from new neighborhood for other purposes identified by RPS Coordination between on-site program and water pollution control facilities program #l: of turning the gw protection issue back over to DEQ. (Staff recommends Policy Choice #2: Apply Only to New Construction Postpone action on existing systems. (Buyout of G'fathered Approvals?)* Pros Cons Rules don't change for current residents Doesn't solve the problem Reduces the financial assistance need. New construction is the smallest part of the Frees up new neighborhood for other pollution load. (Existing development is purposes. Allows more time to create the largest) financial assistance p s if needed Implementation is easy. OAR 340 already requires nitrate reduction for much new construction. Reflects a portion of public will Policy Choice #3: Inspection Regimen Rewrite ordinance to require inspection of all existing systems. Require immediate upgrade of any system not functioning properly. Begin inspections in areas w/greatest need of nitrate reduction. Inspect 20% of all systems every year. (Require upgrade at time of sale?)* Pros Cons Responsive to public testimony Properly functioning systems are the largest contributors to the pollution load Incremental yearly education Not possible to determine if a system is functioning properly with a visual surface inspection. This would require an intrusive, non-voluntary inspection. Tracks problems over time and catches Potential for confrontation between problem early inspectors and property owners Clear path to getting all systems changed DEQ regulation already requires out replacement of failing systems. for inspections. Where would it come from? Policy Choice #4: Extend Time Period to 15 Years Pros Cons Responsive to public testimony Longer time frame allows pollution to get worse, in which case it may not solve the problem Allows more time for alternative (less Possibly sends a message that the problem expensive?) technologies to become is not urgent available Allows more time to develop financial May eliminate variable treatment standards assistance resources and incentives Allows neighborhoods more time to pursue sewer *Front-loaded financial incentives could make longer time frame more attractive Policy Choice #5: Postpone Action Until After FAC Presents Recommendations Items marked with * in previous policy choices are items the board asked the F.A.C. to examine. Pros Cons Other policy choices may be influenced by FAC recommendations can be FAC recommendations implemented by rule/resolution or retroactively after local rule is adopted. Opp'ty for add't'1 public input Postponement cannot be indefinite (can't send a message that FAC can go on working forever.) May want to codify some FAC W/o firm deadline, continues to tap staff & recommendations. (Could be done via resources separate ordinance) *Alternatively, FAC can be put on hold until after a decision on local rule Policy Choice #6: Refer the Ordinance to the Voters. Pros Cons Strong likelihood it will be referred BoC appears to abdicate its ethical and anyway legal responsibility to make the decision on this issue. Opp'ty to educate entire county on this Establishes very bad precedent for similar issue controversial issues in the future A definitive answer: If approved it's final. Voter apathy: Most voters outside of S. If repealed DEQ probably steps in and County don't know or, in some cases, care declares a GMA about the issue.