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HomeMy WebLinkAbout2011-03-09 Work Session Minutes 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 MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, MARCH 9, 2011 ___________________________ Present were Commissioners Tammy Baney, Alan Unger and Tony DeBone. Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy County Administrator; George Read, Terri Payne, Todd Cleveland and Nick Lelack, Community Development; Laurie Craghead, County Counsel, via conference call; and approximately sixty other citizens, including media representative Hillary Borrud of the Bulletin. Chair Baney opened the meeting at 1:30 p.m. 1. Review and Discussion of Ordinance No. 2008-019 (established procedures under Oregon Rule to minimize groundwater pollution in South Deschutes County). Tom Anderson and Todd Cleveland gave an overview of the item, which has been discussed at length over the past two years. Mr. Anderson had prepared background information via a staff report including some history, which he referenced at this time. There are three options: rescind the Ordinance; suspend the Ordinance for a period of time; or leave things as they are. If the Ordinance is rescinded or suspended, the State rules do not change under Section 130, which precludes his department from permitting any septic system that is likely to have a negative environmental effect. If the process stays the same and someone does not agree, they would appeal to the DEQ. Commissioner Unger said, to restate the issue, that the County, working for the State, may require a nitrate reducing system, so the property owner could appeal to the State. The State can decide at that point what might be allowable. Minutes of Board of Commissioners’ Work Session Wednesday, March 9, 2011 Page 1 of 11 Pages Minutes of Board of Commissioners’ Work Session Wednesday, March 9, 2011 Page 2 of 11 Pages Commissioner DeBone stated he talked to Mr. Allen of the DEQ today, and he referred to the requirement not to pollute the groundwater. That is where they start. The County would evaluate the property and lean towards a nitrogen reducing system. He sent out a statement today asking for a step back, and asking DEQ for more direction. There is a citizen group meeting with the DEQ and they want to come up with a solution. He wants to be sure the rivers are kept safe, but he is not sure this is the way to do it, through this Ordinance. Mr. Anderson had prepared a chart showing the options and values associated with each potential solution, which he reviewed at this time. He noted that most people in the room would support a repeal. It is important to treat all people the same. A change in the Ordinance may result in inconsistencies in how properties were evaluated over the past couple of years. Compromise is important in order to work with other agencies and community groups to find a middle ground. The environment needs to be protected, both the rivers and the ground. The most protective option is to require the most stringent rules for all. The highest degree of nitrate reduction would therefore protect the environment more, not considering the cost. There is ongoing litigation over the County’s enforcement of the Ordinance. This takes time and money. The appeal authority if rescinded will be with the DEQ. Saving money for property owners and public agencies needs to be considered. It may take some time for the DEQ and advisory committee to come up with solutions on how to protect the groundwater. If no measures are in place in the interim, that could be a lost opportunity to protect the environment. Mr. Anderson gave an overview of the consequences of the three options. Commissioner DeBone said that the high-level goal is protection of the environment. Sewering may work in some areas but not all, and it would not be inexpensive. The committee thought the water is migrating differently. Some areas may not be affected while others might be. This would be a goal that needs as few obstacles as possible. Minutes of Board of Commissioners’ Work Session Wednesday, March 9, 2011 Page 3 of 11 Pages Commissioner Unger said all of the ranking standards are important. Suspending the Ordinance may help towards community goodwill and preserving funding. The County did its best to look at the State’s rules. He understands that the science said there is a problem in the whole study area and the public needs guidance on what to do next. The Ordinance tells the public how the State rules are to be enforced. The County has done what it could, but has passed it to the DEQ to really look at the situation and to move forward with some solutions. The ability to sewer outside of UGB or cluster systems were not something the DEQ wanted to accept at the time. They seem more open to working through these now. His biggest concern is the river being more reactive than the groundwater. The river will react more quickly and problems will show up there first. The lots along the rivers are the biggest problem. The groundwater does migrate to the rivers. If the rule was suspended, perhaps the DEQ could decide how to handle this; and also may allow for other options to be examined for sewering or other possibilities. There will be a financial impact with sewering as well. Things have changed a little bit, but how it has changed is not known entirely. The DEQ needs some time to figure it out. He supports suspending it for six months. He asked how many applications for sewer permits have come in. Todd Cleveland said that there have been maybe 50 or 60 the past year. Thirty-six were retrofits for failed systems, and they obtained rebates to help with the cost of the new systems. Chair Baney stated that fourteen years were allowed to work on Goal 11 and for the DEQ to buy into changes, since the County is an agent of the State. All of the future potential problems with water quality are not known. Long-term solutions are needed as well as short-term. She keeps coming back to this being repealed, but that does not change anything on the ground. A whole lot will not change if the Ordinance is repealed. The County is an agent of the State and State rules would still have to be followed. She would like to see residents not having the added costs of appealing to the DEQ. If site evaluations have to take place, she would like to work in unison with the DEQ at that time. Both agencies should be present. Minutes of Board of Commissioners’ Work Session Wednesday, March 9, 2011 Page 4 of 11 Pages Mr. Cleveland said he is the only staff person and there are 700 or 800 permits a year, and he has to work over the entire County. It would be hard to coordinate this particular aspect with the DEQ and could result in delays for citizens. Chair Baney said there would be added costs to appeal to the DEQ if the Ordinance is suspended or repealed. She would like to see a better process without added fees. She would also like have some kind of a notification since a standard system may not be good forever. The DEQ dictates the systems that are used. The DEQ along with USGS decided on what needed to be treated and to what level. The DEQ’s stake in this needs to be less of a monopoly. Not everyone would be able to be hooked up to a sewer, and it will be expensive anyway. It is a huge issue, but she does not want the community to think it can go back the way it was. Commissioner DeBone thinks it is about an $8,000 add-on to have a nitrate reducing system. He wants to see the Ordinance repealed to go to a new beginning. The reality is there is a measurable loading problem, but the committee and the DEQ need to agree upon some solutions. There is no way that anyone can justify a standard system in a flood plain. Chair Baney said that she does not support suspending this, because she thinks no matter what the County does, the process will be the same. State rules have to be followed. Commissioner Unger stated that suspending would maybe have the DEQ show what their next step is. This would give them a time to show how they plan to handle the process. The challenge is that the DEQ is not giving specific answers on how to work out the problems with this issue. Commissioner DeBone asked what the Ordinance provides. Chair Baney makes the role of the County and the DEQ clearer, but she feels the same process is to be followed whether it is in place at all. Not having the Ordinance could add costs to the property owner because DEQ will add an appeal fee. Commissioner DeBone said the map is well studied. If the professional opinion is that a nitrate-reducing system is important, people can appeal. There is a cost to appeal but some may not find it necessary. He does not think this cost is a heavy burden. Minutes of Board of Commissioners’ Work Session Wednesday, March 9, 2011 Page 5 of 11 Pages Commissioner Unger stated the Ordinance seems to say that the County believes per the USGS report that there is a nitrate issue, and adding more is an problem that needs to be addressed. If you look at the geology, there is an issue in the whole study area. The DEQ worked with the USGS on this study. Chair Baney said that the process is the same whether there is an Ordinance. What happens if someone comes in the door and wants to put in a system? The public waterways have to be protected and a certain standard of treatment is required by the DEQ. Since then it has been confusing and costly to defend this, when it actually will remain the same with or without the Ordinance. She feels that this should be repealed, and it would be important to state that there is a risk involved and additional costs for a DEQ appeal. The same process would apply, including site evaluation. Commissioner DeBone would like to start a new conversation with the DEQ. Commissioner Unger would like to see this as a next step. Chair Baney could recommend that they do not charge an appeal fee, but it is set by the State. Mr. Anderson stated that if the Ordinance had not been adopted, the appeal structure was the same. The Ordinance saves the cost of appeals to the DEQ. The DEQ would expect to get their fee to pay for their costs. If appeals come in that are upheld or overturned, they set precedence. If the DEQ seems to be landing in a certain spot on specific areas, it will be easier to determine how it might go. Over time there may be fewer appeals. Chair Baney said that she is proud of staff. The County has tried again and again to try to get direction from the DEQ. She hopes this can happen and soon. She has been naïve in thinking that they would step up and clarify their opinions. Commissioner DeBone does not feel there has been any real wrongdoing, as it was based on what was available. He supports the work staff has done. This is not unique to this area. Density is a driver in how things need to happen. Chair Baney stated that this is a basin issue, and does not involve the entire County. She would like to make sure that proper disclosures are provided to potential property buyers in that area, with the associated costs. Minutes of Board of Commissioners’ Work Session Wednesday, March 9, 2011 Page 6 of 11 Pages Mr. Cleveland said the DEQ appeal costs vary from $600 to over $2,000, depending on the appeal and variance requested. Mr. Anderson said they would work with DEQ as best they can and will try to head off an appeal or conflict. Chair Baney would like to see a way to get around part of this. The Commissioners asked that staff move forward to prepare the proper documents to repeal Ordinance No. 2008-019. 2. Comprehensive Plan Review & Update. Terri Payne clarified that at the last work session, she had explained that there are minimum lot sizes than in other parts of the State, but this does not include unirrigated land, which has to meet State standards. Under energy resources, Goal 13, she said that this has to do with conserving conventional resources such as oil. It is an energy drain to have subdivisions too far out. Alternative energy is also a part of this, such as geothermal, wind and solar. Some people are concerned about the impacts of alternative energy. Section 2.8.1 is another place where the County could set an example in conservation. Section 2.8.15 looks at the passive solar code, with a complicated formula, but there are some fixes that might make this work better. Chair Baney asked how specific this should be. Ms. Payne stated that ultimately it is a policy decision. There are many policies in the existing plan that should be removed. Chair Baney would like to be able to encourage support of certain things. Ms. Payne stated that some nonprofits or other agencies are applying for grants and it helps to have the support of the local governments. Environmental quality is based on Goal 6, to manage land to keep it safe. The only air quality issues questioned had to do with mining and burning, which are handled through other agencies. There were a lot of comments on noxious weed control. Green or sustainable design of buildings is a big thing, and recycling talks about County facilities. The Planning Commission made recommendations a couple of years ago to the Board of Commissioners regarding recycling in buildings. Minutes of Board of Commissioners’ Work Session Wednesday, March 9, 2011 Page 7 of 11 Pages Commissioner Unger stated that the City of Bend had some air shed issues. He asked how the County can work with the cities on these issues. Ms. Payne said that the Bend 2030 Plan includes a lot of content on air quality. Urban areas have much different air quality issues than rural areas. Laurie Craghead asked about the woodstove issues. Commissioner Unger said that the cities have had air quality issues to deal with, much of which results from the use of woodstoves. Ms. Craghead stated that the County has an Ordinance regarding woodstove requirements. Dave Kanner asked how similar the language in Goal 3 is to the comp plan update regarding recycling. Ms. Payne said they head the same direction. There was little public interest in surface mining changes. Policy 2.10.3 will look at a few things such as imported materials. Commissioner Unger feels that the DOGAMI standards apply. Mr. Lelack said that Vice Chair Brown is very interested in how to develop a plan around surface mining. Ms. Payne said that the use of many of the locations pre-date land use laws. George Read stated that the definition of mining varies. It was a big deal when it was developed years ago. Commissioner Unger said that the plan to handle this type of land is just not there. Ms. Craghead noted that the Latham case is about to come back on appeal as well. Ms. Payne said regarding the Historic Landmarks Commission, there is support but not many changes. Mr. Kanner asked if a contract could be drafted with the cities to handle situations as they arise. Mr. Lelack said the County does not have a Landmarks Commission. The cities may seek grants regarding properties that are in the urban reserve, which are technically within the County. Chapter 5 has no goals or policies, but there are some specific recommendations for amendments. No quasi-judicial or property-specific changes will be part of the plan. Minutes of Board of Commissioners’ Work Session Wednesday, March 9, 2011 Page 8 of 11 Pages All of the definitions that were in zoning code have the same meaning as in the comprehensive plan. In addition, agri-tourism is defined as being in conjunction with farm use or is used to supplement farm use. Wildlife inventory has been updated and should be revised. Section 5.5 has to do with landscape management, areas of special concern and so on. Those are generally public lands. Hydroelectric is prohibited in some areas. Section 5.7 has to do with wilderness, usually managed by federal or state agencies. Surface mining inventory lists some that are considered non-significant. A court case challenged the law and those can now be listed as significant. This would be part of the Goal 5 review. Wording on cultural and historic issues was felt to be archaic, and was updated with the help of the Historic Landmarks Commission. There was a request to amend this list to include the Tumalo diversion dam, and this was incorporated. Mr. Lelack stated that they have been asked to add all national registered lands to the list. Mr. Kanner asked about table 5.39. He said that there are a few that he is familiar with that are not shown. The preamble was initiated by the Planning Commission, which is behind the table of contents in Chapter 1. Ms. Payne tried to incorporate their comments where appropriate. A staff report will be generated at least a week before the first public hearing on the comprehensive plan update. A copy of the comprehensive plan will be available for review. People can bring a laptop and refer to the document electronically as well. The meetings are being put in local papers as display ads, as well as getting some radio or television time. Some radio interviews have taken place. A press release is also planned, and an e-mail went out to interested parties. All groups that have an interest in land use are getting information on this. It can also be copied off the County website. Minutes of Board of Commissioners’ Work Session Wednesday, March 9, 2011 Page 9 of 11 Pages 3. Update of Commissioners’ Meetings and Schedules. Commissioner Unger is taking part in a Deschutes Water Alliance presentation tonight in La Pine. He will be in Salem on Friday, and his name is being forwarded regarding an appointment to the Oregon Workforce Investment Board by the Oregon Association of Counties. Commissioner DeBone went to Salem to support SB 83, and met briefly with Representatives Conger and Whisnant. Chair Baney stated that she was not able to get into the Supreme Court proceedings in Washington, DC. There was a huge waiting line and a small seating area. She attended NACo legislative visits and separate visits with legislators Merkley, Wyden, Wu, and DeFazio and/or their staff to talk about secure rural schools funding and environmental issues. The nationwide campaign for secure rural schools is coming apart. There are 749 counties involved. Representative Walden said there needs to be offsets, so she is not sure how this is going to develop. NACo may need to take a larger leadership role. She and others will meet in the next few weeks to determine what this looks like. She also attended a session on redistricting, which was very interesting. 4. Other Items. Chair Baney asked about the request for public records relating to the Marla Rae contract, which is a separate issue from the Grand Jury case. Mr. Kanner explained that Ms. Rae, a consultant, did an evaluation of the District Attorney’s office some years ago. Her twelve-page report has been released to the Bulletin, but a request to the District Attorney for notes and backup material was made by the Bulletin as well. The District Attorney has had this request for about a week but has not yet responded. Minutes of Board of Commissioners’ Work Session Wednesday, March 9, 2011 Page 10 of 11 Pages BANEY: The Board of Commissioners directs County Counsel to release the Marla Rae report and pertinent notes and backup materials to the Bend Bulletin as requested, with redactions as necessary. UNGER: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. _________________________________ Before the Board was a Public Hearing on the Inclusion of Properties Other than those Zoned EFU in the Wildlife Habitat Conservation Program. This item was continued from the morning business meeting. Erik Kropp said he spoke with Scot Langton regarding whether some road districts would be affected by this program, and the reply was that it affects all taxing districts. Under the current program, only EFU land is eligible. This would expand the program to properties that are zoned forest land, for those who apply for the program and are subsequently approved by the ODF&W. Therefore, the impact of the change is unknown. Commissioner DeBone said that there is the possibility in the future to change this program if there are unintended consequences, an inability of the ODF&W to administer the program, or other problems. Commissioner Unger said that the ODF&W wants to keep a quality program and does not want to overextend what can be done. Chair Baney closed the hearing at this time. Staff was directed to develop an appropriate resolution. Being no further discussion, the meeting adjourned at 3:55 p.m.