BOARD OF COMMISSIONERS'

REGULAR MEETING

September 3, 2008

10:00 a.m.

Commissioners' Conference Room

APPROVED 9/17/2008

Commissioner Faye Stewart presided with Commissioners Bill Dwyer, Bill Fleenor, Bobby Green, Sr. and Peter Sorenson present.  County Administrator Jeff Spartz, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.

1. ADJUSTMENTS TO THE AGENDA

Executive Session will take place at 11:30 a.m. time certain.  Fleenor requested item 3.F.1) be pulled from the Consent Calendar.

2. PUBLIC COMMENTS

Jim Seaberry, Eugene, indicated the last time he was before the Board, he sent an e-mail to the Board on the Board’s changing a law to dissolve a district from the Metropolitan Wastewater Service District without a vote of the people.  He recalled in 1972 the Boundary Commission was formed and then the Metro Plan came to be.   He added after that the Metropolitan Wastewater Management Commission was formed.  He said the boundaries were formed up to the city limits, not up to Santa Clara/River Road.  He indicated that the City of Eugene formed local improvement districts in the area outside of their city limits.  He recalled that he was assessed for sewer lines and was forced to be hooked up to the sewer.  He stated that was declared illegal by the Appellate Court.  He said if the Board wants to take back building permits in that area, they have to be careful and question that without the Board being on the service district if they could properly represent the people at the time they had the permits.

John Dotson, Eugene, discussed paragraph 3 of Stephen Vorhes, Assistant County Counsel’s memorandum.  He commented that Vorhes was offered legislative counsel assistance through Senator Walker.  Dotson said Walker introduced SB 417(a), the removal of the Boundary Commission.  He said Walker’s interpretation is different.  Dotson said in Walker’s view, the Board of Commissioners is the proper authority to stand for the petitions under unfinished business where the County residents are affected.  He thought when the Boundary Commission did this, they were in total error.

Stewart asked if Dotson was an attorney or if these were his opinions.

Dotson responded that these were his personal opinions and were founded on the reading of Supreme Court rulings and the memorandums.

Jim Gillette, Eugene, encouraged the Board to have his first case tried first.  He asked about the County policy for violations and alleged violations.  He asked if County Counsel’s purpose was to make sure things were kept legal and fair or to win at any cost.  He thought County Counsel should make the staff do their job properly.  He said he wants to avoid a battle.  He asked the Board to show him where he is wrong.  He stated that he has been honest.  He thinks he is right and he won’t quit.  He asked the Board to prove him wrong or end this.

Charlie Tibbits, Western Environment Law Center, Eugene, commended the work the Board of Commissioners had done with them for the past 18 months in moving the issue of field burning to the front.  He commented that the issue has moved along well and the governor now recognizes the importance of the issue.  He indicated that the issue today is about the governor not ending field burning quickly enough.  He urged the Board to end field burning as soon as possible.  He urged the Board to stick with Paul Holvey and Floyd Prozanski’s bill because the public health of people does not need to suffer any longer.  He didn’t want to wait for a couple of years, he wanted field burning to be ended now.

3. CONSENT CALENDAR

A. Approval of Minutes:

April 17, 2007, Work Session, 9:00 a.m.

April 18, 2007, Regular Meeting, 9:00 a.m.

February 12, 2008, JEO, 6:00 p.m.

May 13, 2008, JEO, 12:00 Noon

July 9, 2008, Regular Meeting, following HACSA

July 22, 2008, Work Session, Noon

July 23, 2008, Regular Meeting, 9:00 a.m.

B. Health and Human Services

1) ORDER 08-9-3-1/In the Matter of Appointing One Member to Fill a Vacancy on the Mental Health Advisory/Local Alcohol and Drug Planning Committee.

2) ORDER 08-9-3-2/In the Matter of Appointing Two Members and Re-Appointing One Member to the Public Health Advisory Committee.

C. Management Services

1) ORDER 08-9-3-3/In the Matter of Authorizing the Sale of Surplus County Owned Real Property for $1,201 to Charles and Pula Rasler (Map No. 18-15-33-00-00108, Adjacent to 42145 Big Fall Creek Road, Fall Creek).

D. Public Safety

1) ORDER 08-9-3-4/In the Matter of Ratifying Execution by the County Administrator of Modification 8 to Intergovernmental Agreement 047-9 Between the Federal Bureau of Prisons and Lane County to Increase the Per Diem Daily Rates.

E. Public Works

1) ORDER 08-9-3-5/In the Matter of Amending the Intergovernmental Agreement with the City of Eugene to Extend the Expiration Date for Cooperative Services Regarding the National Pollutant Discharge Elimination System (NPDES) Phase II permit held by the County.

2) ORDER 08-9-3-6/In the Matter of Accepting a Dedication of Land to be Used as a Public Road Easement for County Road No. 846 (Lorane Highway) (18-04-14).

F. County Administration

1) ORDER 08-9-3-7/In the Matter of Allocating Funding for the FY 08-09 Association of Oregon Counties Dues from the General Fund and the Road Fund.

G. County Counsel

1) ORDER 08-9-3-8/In the Matter of Settling Claims of Jennifer and Mark Reese.

H. Human Resources

1) ORDER 08-9-3-9/In the Matter of Approving Benefit and Compensation Changes for Non-Represented Employees.

MOTION: to approve the balance of the Consent Calendar.

Fleenor MOVED, Dwyer SECONDED.

VOTE; 5-0.

3. F. 1)

MOTION: to approve ORDER 08-9-3-7.

Dwyer MOVED, Green SECONDED.

VOTE: 3-2 (Fleenor, Sorenson dissenting).

4. EMERGENCY BUSINESS

None.

5. COMMISSIONERS' REMONSTRANCE

Green acknowledged support of FEMA staff.  He recalled in 2005 New Orleans was hit by hurricane Katrina.  He indicated there was limited flooding with this current storm.  He said his family evacuated and came through okay.

6. RESOLUTIONS

a. RESOLUTION 08-9-3-10/In the Matter of Recognizing September 2008 as Local Infant Mortality Awareness Month.

MOTION: to approve RESOLUTION 08-9-3-10.

Stewart read the resolution into the record.

Fleenor MOVED, Dwyer SECONDED.

VOTE: 5-0.

7. COMMISSIONERS' BUSINESS

a. REPORT/CVALCO Semi-Annual Report.

Kari Westlund, CVALCO, distributed the Semi-Annual Report. (Copy in file).  She recalled that she reports to the Board of Commissions each six month period.  She reported that for every dollar the County has invested in CVALCO,  they are returning $52 dollars in return.  She indicated they made a change in the visitor information services formula this year.  She reported that all program areas performed well.

With regard to page 4, Westlund indicated in 2007 Lane County visitors brought  $573.7 million into the Lane County economy related to the visitor industry.  She added it involved more than 7,500 jobs associated with travel and tourism.  She indicated that number was a four percent increase from the previous year in overall visitor spending.  She reported the total room tax for the program year ended July 30, was up 9.4 percent.  She indicated for occupancy, they only saw about a 2.9 percent increase.  She added that there were new rooms that came into the market and the hotel operators were able to maintain rates even though the economy was softening this year.  She noted that even though The Three Rivers Hotel in Florence is not subject to County taxation, they are providing revenue every quarter based on the basis of their hotel cash revenues and supporting the overall destination marketing efforts like all the other hotels through tax collection.

Westlund reported that Amtrak ridership is up 8.9 percent.  She added that air arrivals are up seven percent for the program year.  She commented that there is uncertainty in the future around air service.

Westlund reported that they had budgeted to do a dual cover guide as their new design for advertising.  She said they are having their guides placed in the Portland International Airport.  She reported that they worked with 16 different AAA agencies on a program for Lane County.  She said they worked on a project called Travel Channel Europe.  She reported that it is part of a 13 episode series that will run for three years in Europe.

With regard to page 12, Westlund reported that visitor services were off from the past two years but are still in the normal range.  She said they struggle to drive traffic downtown to their visitor information center.  She added they are looking at ways to get the visitor center to I-5, closer to traffic.  She reported that membership had a great year with 114 new memberships.  She added their memberships remains over 600 members.

Westlund stated that integrated marketing is a relational data base that all of their information is in about their members and the attributes of Lane County.  She indicated that data base drives their website and their publications.  She stated they changed how they measure visits to the website.  She added they also upgraded their servers and their phone systems.

b. REPORT/Update on Lane County Annual Ryegrass Straw Conversion to Renewable Energy Study.

Mike McKenzie-Bahr, Economic Development, recalled the County applied for this grant in December.  He stated that they were awarded the project and it began in April.  He explained that this is to conduct a feasibility study to identify near term viable options for adding economic value to annual ryegrass straw for renewable energy and fuel production, creating an alternative to field burning.  He indicated they are two-thirds the way completed with the study.  He noted there is an interim report that will be coming at the end of September.  He reported that it is technically feasible to convert grass straw into renewable energy through the conversion processes they are reviewing.  He indicated that all of their lab tests have been completed.  He added they are looking for financial viability in three stages:  from field to whatever the facility is; within the facility and what has to happen on the field if they take grass off instead of burning it.  He hoped they could identify alternative solutions through the process that makes financial sense.  He added that they are raising more issues that will need to get addressed.  He noted under timing and implementation, the draft report will coincide with the request from the Oregon Department of Agriculture.  He added that it is based on an invitation from the House Committee on Agriculture and Natural Resources to secure $350,000 from the legislature’s Emergency Board to prepare a business plan for specific renewable energy projects based on using annual ryegrass straw as a field source.  He stated that the business plan would address overcoming the financial issues they raised in their feasibility study.

McKenzie-Bahr indicated there has been a request from the Emergency Board asking if Lane County supports the application from the Department of Agriculture.  He requested a letter from the chair to be sent to the Emergency Board.

Fleenor supported sending the letter, although he said it might not pan out to be economically feasible. 

Dwyer stated that he had concerns.  He noted that other communities had done away with field burning without a jumpstart from government.  He commented that the government has regulatory powers and they need to use the powers.  He added that the free market will take care of itself once it is government regulated.  He stated they have to regulate the obnoxious practice out of existence.

Sorenson suggested sending a letter to make their support clear for the continued assistance from the Department of Agriculture. He added that their economic development work in no way changes the Board’s commitment they have voted on to urge the state to ban field burning.  He said they want to be clear they don’t want to impede Holvey’s legislation, they want it to go forward and are supportive of the legislation. He added they are maintaining their previous position in urging the  legislative assembly to adopt a ban. He thought they should pursue the legislative route simultaneously with economic development potential.

Dwyer concurred with Sorenson’s comments. He supported any letter that enumerated the points that Sorenson made.

Stewart supported the direction in trying to make it a reality.

Sorenson suggested that Alex Cuyler, Intergovernmental Relations Manager and McKenzie-Bahr draft a letter to be brought to the Legislative Committee meeting.

c. REPORT/Department of Environmental Quality (DEQ) Briefing on Field Burning Legislation Concept.

Andy Ginsburg, Oregon Department of Environmental Quality, recalled in 2007 Rep. Paul Holvey proposed legislation that would have banned field burning and regulated other types of burning in Oregon.  He said that bill received a hearing in the Health Care Committee and passed the committee.  He added there was testimony about economic impacts of banning field burning.  He noted it did not pass from the Agriculture and National Resources Committee.

With regard to health effects of field burning, Ginsburg said there was discussion in 2007 about how smoke from field burning contributes or doesn’t contribute to violations of federal air quality standards.  He added that the federal government has set up the standard for smoke based on a 24 hour average.  He noted that field burning has a high concentration of smoke for an hour or two, there is not a concentration that is over the 24 hour average.  He added that field burning doesn’t take place in the winter and that is when they have other inversions.  He indicated in 2007, field burning wasn’t a primary contributor to violations of the federal standard.  He noted that there is evidence that short term exposure of high concentrations of smoke can be health hazards for people with sensitivity to asthma or other respiratory conditions and for the children and elderly.

Ginsburg noted that after the 2007 session, they received a letter from Commissioner Stewart asking the Environmental Quality Commission to look at administratively banning or restricting field burning.  He had the Department of Justice evaluate the existing statutes.  He indicated there are two pathways in the current statute where the Environmental Quality Commission could restrict field burning without new legislation:  if they made a finding that field burning constitutes an extreme danger to public health or safety and that danger constitutes an emergency.  He indicated that there wasn’t a lot of legislative history about what it means.  He said if it was for safety, the maximum amount of time the commission could ban field burning would be up to one season.  He thought it would be a high risk scenario to go forward with legal exposure.  He added that it would be a factual finding the commission would make that could be challenged in court.  He noted the other avenue under the current statute is if the commission made a finding that there are economically viable and environmentally acceptable alternatives to field burning, it could reduce the number of acres that would be burned if they found more alternatives were available.  He noted that could be a finding of fact that could be challenged and it would require the commission to have knowledge about alternatives.

Ginsburg reported what farmers are currently doing is rotating fields and every field is getting burned but less frequently.  He said if they were to reduce the number of acres burned, they might find that different alternatives are necessary. 

Ginsburg noted that after the Department of Justice reviewed this, they advised the Environmental Quality Commission that the DEQ didn’t have the facts to support their findings that they would need to do additional studies and they didn’t know if they would be able to prevail.  He said the Department of Justice directed them to go to the 2008 Special Legislative Session to request funding to do the research needed to support the findings.  He added that they made the request but did not get the funding.  He noted in preparation for the 2009 legislative session, the governor’s office asked if they should request funding to do the studies to take an administrative action under existing statutes to restrict field burning or to introduce legislation that would phase down field burning.  He indicated the response was to introduce legislation instead of continuing with more studies on health effects or alternatives.  He noted there was no direction about the length of a phase down or how far a phase down would go until last week when they received direction from the governor’s office that the phase down would be to zero in 2011.  He indicated that it is a two year phase down.

Ginsburg explained that the most important provision is in ORS 468(a).610 on page 1. (Copy in file).  He indicated the total acreage for burning would start at 65,000 acres and work down to zero by 2011.  He noted there is an exception:  in the event of a disease outbreak infestation or a concern about irreparable damage to the land that would result in an extreme hardship.  He indicated that it would require the Environment Quality Commission to make a finding that they have an emergency situation and would allow a temporary authorization for burning.

Ginsburg noted that SB 235 was passed that authorized the commission to regulate emissions from agriculture to the extent necessary to comply with the Federal Clean Air Act.  He said it was passed because the Environmental Protection Agency received a petition from a coalition of environmental organizations claiming that Oregon’s air quality program was insufficient because they had a blanket exemption for agriculture.  He said they asked the EPA to withdraw Oregon’s authority to run the Clean Air Act programs.  He said the EPA agreed with that analysis as to the Department of Justice.  He said SB 235 regulates agriculture if needed to comply with the federal Clear Air Act.  He indicated the field burning statutes are separate specific authority for the commission to regulate field burning.  He said it wasn’t clear under SB 235 whether the commission could regulate field burning beyond what was laid out in the field burning statute if needed to comply with the Clean Air Act.

Ginsburg indicated in a new section, the DEQ would be directed to evaluate all of the open burning programs in Oregon, whether the program is run by a local agency, tribal agency, state agency, federal government or another state.  He said it would not give the department new authority to override the decisions of the other agencies, but it would allow them to get a handle on the overall picture on how all the programs would fit together.

Ginsberg commented that the pilot feasibility study for straw conversion to renewable energy remains important if they are going to phase out field burning.  He indicated that currently there is no market for rye grass straw in the southern valley and it would be important for legislation to move forward with research and development to have alternatives that would make it more viable for farmers to comply with the ban on burning.  He stated the DEQ supports the project and is prepared to support the request of the Emergency Board.

Sorenson asked why they would want to phase down instead of an immediate ban.

Ginsburg responded that this was the governor’s proposal.  He recalled the original phase down was over eight years from 180,000 acres to 40,000 acres.  He indicated that was to allow time for alternatives to be put into place.  He added a three year phase down to zero is rapid regarding the shifts that will have to occur with the industry.  He added by the time the 2009 session is over, they will be in the 2009 field burning season. He said it would be hard to implement any changes at that late date administratively and that was why the governor thought to introduce this as legislation.

Green asked what DEQ could do administratively.

Ginsburg stated the commission has the authority to restrict field burning further under existing statutes, but they don’t think they have the evidence to support their findings.  He added if they made such findings it would likely be challenged.  He noted the commission has adopted a smoke management plan and the Department of Agriculture implements it.  He stated that things could be done to improve the current implementation of the program but it is dependent on accurate meteorological predictions.  He added the weather changes rapidly and when the ODA authorizes a burning, it is at the last minute and it makes it difficult to notify the public.  He commented that even under ideal conditions where the wind is blowing away from populated areas, it is blowing toward rural areas.   

8. COUNTY ADMINISTRATION

a. Announcements

None.

9. COUNTY COUNSEL

a. DISCUSSION/Boundary Commission Annexation Petitions.

Vorhes disagreed with Dotson’s previous comments. He said the situation discussed two and a half years ago is the same now.  He recalled that in each of the cases when the petitions were presented to the Boundary Commission the Board of Commissioners was also advised of it.  He said in each of the cases they did the analysis, looked at the petitions and considered if there were the requisite number of electors objecting to the approved annexations.  He noted that there were none. He said the Boundary Commission thought they were done with the petitions.  He recalled that Dotson asked how SB 417 affects these and under Section 4, it describes what happens to unfinished business before the Boundary Commission.  He said in all of the cases the petitions were relating to an annexation to the City of Eugene.  He added that if there is anything unfinished under the statute that has been cited to the Board of Commissioners as authority for calling an election, it takes a certification from the Boundary Commission.  He explained that the role of the Board of Commissioners on calling an election on an approved annexation depends on the certification by the Boundary Commission, or if it is an unfinished certification by the city that there were the requisite number of objectors filing an objection to that approved annexation.

Fleenor stated that there was previous testimony from Senator Walker (who co-sponsored SB 417(a)) that indicated the Boundary Commission or the Board of Commissioners could stand in lieu of the Boundary Commission for unfinished business.  He asked at the time when the petitioners submitted the petitions, if the Boundary Commission was in existence and if the Boundary Commission was required to hear the testimony and process the petitions.  He said the Boundary declared they had no intention of doing that, they went out of business and the unfinished business was never completed. He asked why the Board of Commissioners couldn’t take this on, process this and give the citizens the proper involvement.

Vorhes responded that if it is not unfinished business, the Boundary Commission did not have the requisite number of objectors under the statute of ORS 199.505 to certify. He said the Boundary Commission looked at the objectors in the affected area and checked with Lane County Elections to confirm the objectors and advised the Boundary Commission of the results.  He added in each case there was nothing left for the Boundary Commission to do on those petitions.  He indicated that none of the signers of the petition lived in the area affected.

Fleenor commented that in the transition period, the benefit should go to the citizen, not to a technical interpretation of the legislation.

Vorhes recalled that in each case, the approved annexation was to become final unless there was a certification and an election called for under the statute that was in place at the time.  He indicated there were a number of annexations that are final and have been approved.  He said the challenge to the Boundary Commission could have come in each of those cases at that point in time.

Fleenor asked if they wanted to review the petitions to see if there were sufficient petitioners certified and if found that there were, what would happen.

Vorhes said the time for challenging it judicially has come and gone.  He said under the transition provisions of SB 417; the certification action authority now rests with the cities if those are still unfinished.

Jim Seaberry, Eugene, stated the petitions that were given to the Boundary Commission, did not come before the Boundary Commission and they don’t appear in the minutes of any of the Boundary Commission meetings.  He indicated they were responded to by Paula Taylor, they were never before the Lane County Boundary Commission.  He said they weren’t talking about an elector or a person annexing his piece of property.  He asked if they would allow one elector to speak for all of the stakeholders on the streets they were addressing on the petition.

Vorhes said the statute calls for objections by electors.  He said the Boundary Commission had to look at all signers of the petitions to determine if they met what the statute called for.

Seaberry said it falls back to the Board of Commissioners as they are the representatives of the people who live along the streets.  He said they were the County streets that were annexed in.

Fleenor wanted to provide appropriate citizen involvement.  He said if they have to be very lenient in interpretation, he would prefer to do that if they could legally do it.  He said if they are absolutely blocked legislatively, he would understand.  He asked if they could use citizen involvement.  He asked if there was any opportunity to review the petitions to verify they had sufficient numbers of electors.  He asked if the Board of Commissioners could provide guidance about an elector or if it was a legal interpretation.

Vorhes stated it is a legal interpretation.  He disagreed that reading this statute in a way that a person with an interest in a property affected by the annexation could have an ability to trigger an election.  He commented that if that was what the legislature intended, and if that was what the Boundary Commissioner was given the authority to do, that is what the legislature would have said.

Fleenor asked how they could get a definitive ruling on this.  He asked if there was a way to look at this from a different set of eyes to verify what Vorhes is saying is exactly what it is.

Vorhes said there are two separate statutes.  He said the statute in place at the time the petitions were submitted to the Boundary Commission, were reviewed by the Boundary Commission staff and that language called for electors in the affected territory.  He said electors are defined by the Constitution.

Fleenor noted the Lane County Boundary Commission made the interpretation that these were not appropriate electors, therefore there were not sufficient signatures and that was why it never came before the Boundary Commission.

Vorhes said there was not a basis for the Boundary Commission to take action to certify to the Board of Commissioners that there was a need for an election.  He said as he told the Board two and a half years ago, it is for the Boundary Commission initially to make that determination and unless and until they certify that there is a requisite number of objectors, under that statute, there is not a role for the Board of Commissioners to call for an election.

Fleenor asked if they could possibly look to see if there were sufficient objectors.  He thought it would satisfy people’s interest.  He said they should allow the citizens have their say in court.  He wanted to reconfirm whether the objectors were out and if they were out, then they would be finished with this.

Seaberry didn’t want to see the Board of Commissioners wasting time as they would get to the same amount of electors.  He said that wasn’t the problem.  He indicated the problem was an elector or two cannot speak for the annexation of the streets and roads.  He stated they are stakeholders, not electors.  He said it was the stakeholders who they were petitioning for. He said the Boundary Commission never saw the petitions.  He said the Boundary Commission didn’t say they didn’t have sufficient electors because they didn’t see the petitions.

Fleenor requested that this be continued to allow him to spend time with Vorhes and Seaberry so he can understand the mechanics and then come back to the Board to see if they can have a resolution.

Stewart thought it was clear what the legislature and the statute says but he would be willing to review it.

Green thought Senator Walker should be a part of the conversation to find out what her intent was.

Sorenson thought additional time should be spent on this.  He agreed with Vorhes that an elector is a specific word in the Oregon Revised Statutes.

10. COMMISSIONERS' ANNOUNCEMENTS

None.

11. EXECUTIVE SESSION as per ORS 192.660

Per ORS 192.660(2)(e) for deliberations with property negotiations and PER ORS 192.660 (2)(h) for consulting with counsel on litigation.  

12. OTHER BUSINESS

There being no further business, Commissioner Stewart recessed the meeting into Executive Session at 11:40 a.m.

Melissa Zimmer

Recording Secretary