HomeMy WebLinkAboutComments CAO 5/6/2004
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MEMO~NDUM OFFICE OF CITY ATTORNEY
I
DATE: May 6, 2004
TO: Springfield Planning Commission
Eugene Planning Commission
Lane County Planning Commission
FROM: Meg Kieran
Springfield City Attorney
SUBJECT: Metro Plan amendments; Public Facilities and
Services Plan amendments; response to material
submitted by Home Builders Assqciation at April
20, 2004 public hearing
Home Builders Association submitted written materials into the
record of. the above proceeding. MWMC submits this response.
1. Applicable standards.
Mr. Kloos states, without specificity, that "[s]tate statutes
apply." Certainly, this proceeding is governed, in part, by
state statutes, particularly, those provisions of ORS Chapter 197
that govern post-acknowledgment plan amendments. In addition,
the amendments must be consistent with applicable statewide
planning goals. The LCDC 'administrative rules implement the
statewide planning goals. In addition, the proposed plan
amendments must be consistent with existing, acknowledged plan
provision.
2. Planning Horizon'.
Home Builders states that the use of the 2025 planning horizon
for the PFSP list of wastewater treatment and collection
facilities is inconsistent with the existing Metro Plan
provisions. Home Builders is incorrect.
First, the existing PSFP, dated December 200l,incluctes projects
that extend out 20 years from that time. For, example, the
introductory text to the project lists contained in the existing
Plan states: "Long-term projects are anticipated to be built in
six to 20 years_." (PFSP, P.28). That horizon would extend to
2021. EWEB! s list includes, as long-term projects, waten8fAto...ce',ved
improvements 218 through 237, none of which has a date ~~v rlC
specific than the six to 20 year reference quoted above. MAY 06,0*
Planner: BJ
Second, the Department of Environmental Quality guidelines
recommend that sewer treatment facilities should be planned and
constructed for a 20.-year population projection period.
The planning horizon in the amendments is appropriate for the
nature of the planned facilities. Sewer treatment facilities
should be constructed with long range planning goals.
3. The proposed PFSP amendments are a project list as required by
state statutes and implementing regulations.
Home Builders insists that the proposed PFSP amendments,
particularly the proposed new tables, are not a "project list"
within the meaning of ~tate statutes and regulations. Home
Builders argument is without merit. The proposed sanitary sewer
project list is comparable to the existing project lists in the
PFSP by Springfield Utility Board, EWEB and the other
participating jurisidictions' lists. The proposed list also
complies with the LCDC's Goal 11 implementing administrative
rules.
OAR 660-001-0005(6) defines "public facility project" as follows:
"A public facility project is the construction or
reconstruction of a water, sewer, or transp~rtation
facility within a public facility system that is funded
or utilized by members of the public."
Public facility system, as it relates to sanitary sewers, are
limited to the following: a) treatment facility system; and/or b)
primary collection system. (OAR 660.-011-0005 (7)) .
Proposed Table 16a lists six treatment facility system projects:
WPCF Treatment Project; Residual Treatment Project; and
Beneficial Reuse Project. It also includes three pump stations
(i. e., collection system proj ects): WillakenziePump Station,
Screw Pump Station and Glenwood Pump Station. This list complies
with both the statute and the administrative rule definition of
"proj ect list."
In their oral testimony Home Builders stated that a more
appropriate list of projects for PFSP purposes would be MWMC's
20-year project list that is included in MWMC's 2004 Facilities
Plan. MWMC adopted the 2004 Facil~ties Plan and 20-year.project
list to satisfy DEQ requirements for facilities planning and to
comply with the requirements of ORS 223.309(1) that a facilities
plan and list of proposed capital improvements be adopted prior
to the establishment of a system development charge.
ORS 223.314 provides:
"The establishment, modification or implementation of a *** a
plan or list adopted pursuant to ORS 223.309, or any modification
of a plan or list, is not a land use decision pursuant to ORS
Chapter 195 and 197."
Therefore, requiring the inclusion of MWMC's 20-year project list
in the PFSP would be inappropriate.
4. The proposed amendments comply with ,applicable
administrative rules; both the Metro Plan and PFSP,
with the proposed changes, satisfy all planning
requirements.
A. Public Facility Plan.
Home Builders' recitation of various. Oregon Administrative Rules
that govern public facilities plans assumes that the proposed
amendments are the complete plan. They are not. The complete
plan is the entire Metro Plan Chapter III, Section G and the
complete PFSP. Read in context, the Metro Plan and the PFSP
include all the requirements recited by Home Builders from OAR
660-011-0010. The existing PFSP was e~acted and acknowledged as
in compliance with the statewide planning goals in 2002 as part
of the region's comprehensive plan periodic review process. Even
without the proposed amendments, the PFSP has been found, by
virtue of being acknowledged, in compliance with Goal 11. The
proposed amendments only bolster and augment the existing plan,
they do not remove any critical elements of the plan.
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The complete
the existing
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inventory required by subsection (1) (a) is found in
PFSP.,
The plan includes a project list. ' The proposed amendments, read
in the context of the existing plan, include a "list of
significant public facility projects." Any contention that it
does not is merely a restatement of Home Builders' earlier
argument that the propqsed project list is not a "project list,"
as they would define it.
The plan includes cost estimates. The required "rough cost
estimates" are defined as "approximate costs expressed in
current-year (year closest to the p'eriod of public fac'ility plan
development) dollars. It is not intended that project cost
estimates be as exact as is required for budgeting purposes."
OAR 660-011-0005(2). The cost estimates provided are sufficient
to satisfy the rule.
the r~~t~dEte~pived
present: W\'rPl) (jOlfOr
Again, by looking at the entire PFSP as amended,
the requirements ,cited by Home Builders are also
Planner: BJ
the projects; an estimate of when each project will be needed;
and a discussion of the possible funding mechanisms for each
proj ect.
B. Inventory.
The PFSP as amended by the proposed amendments includes a
complete inventory of the region's sanitary sewer system. Again,
Home Builders attempts to restate its "project list" is not a
"project list" argument. 'Clearly, the existing list, which
passed muster prior to the proposed amendments without the
addition of the new projects, satisfied LCDC's definition of
"project list." It is hard to imagine how the addition of
projects somehow makes an already sufficiently descriptive list
no longer 'sufficient within the meaning of the rule.
C. Timinq.
Home Builders argument here is not really about timing, but about
the definition of "project list:" "Where, as here, the proposal
is to approve categories of projects, rather than a list of
projects, it is not possible to comply with the rule." (Home
Builders letter, p.5). MWMC has respo~ded to that argument
above.
D. Rouqh Cost Estimates.
As explained above, the cost estimates ,provided in proposed Table
l6a satisfy the rule's definition of rough cost estimates.
E. Elements of the comprehensive plan.
Home Builders again re-state their unsupported "project list"
argument: "Agail).,- a project listing is required, not a
description of categories of projects." The Metro Plan and PFSP,
as amended, satisfy OAR 660-011-0045.
Conclusion.
The proposed amendments comply with state statutes, statewide
planning goals, and the administrative rules that implement Goal
11. The proposed amendments to Chapter III, Section G, and
Chapter IV of the Metro Plan are necessary additions concerning
proposed improvement and capacity to the conveyance and treatment
facilities. This information should have been included with the
recently adopted amendments to Chapter III that occurred as a
requirement of periodic Review. The amendments to the PFSP are
also a compilation of information that should have been included
with the adoption of the PFSP in 2001. Such additional
information has no effect on policies of the Plan ei~tEffh9~~ed-
MAY 06
PI~nn~r' ~ I'
to public facilities or other chapters other than to demonstrate
that these urban facilities will be constructed to accommodate
planned build-out within Eugene's and Springfield's urban growth
boundary. These amendments therefore satisfy the Metro Plan
amendment cr.i teria of approval that requires internal
consistency. '
N:\CITY\MWMC\Response to Home Builders..wpd
Date Received
MAY 0 6, of
Planner: BJ
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LAW OFFICE OF BILL KLOOS, PC
OREGON LAND USE LAW
576 OLIVE STREET, SUITE 300
EUGENE, OR 97401
PO BOX 11906
EUGENE, OR 97440
TEL (541)343-8596
FAX (541) 343-8702
E.MAIL BILLKLOOS@LANDUSEOREGON,COM
, April 20, 2004
Metro Area Planning,Commissions
c/o Lane Council of Governments
99 East Broadway, Suite 400
Eugene, OR 97401
,
Re: Metro Plan Text Amendments; Public Facilities and Services Plan Amendments
April 20, 2004 Joint Public Hearing
Dear Commission Members:
Please accept this letter on behalf of the Home Builders Association of Lane County and its'
subsidiary, the Home Builders Construction Company, I '
1. What standards apply. '
The standards that apply to these proposed plan amendme?ts are found in several locations:
o State statutes apply. Statutes always apply to local:goverrunents' land use'decisions.
McKav Creek Vallev Assoc. v. WashinfTton Countv;' 18 Or LUBA 71, 75 (1989) ,
(acknowledgment of plan and code leaves statutes girectly applicable). .
o Statewide Planning Goals. ORS 197.175(2)(a).
· LCDC Rules implementing the statutes and the gOl\ls apply, for the same reasons that the
statutes and goals apply.
· Acknowledged, unamended plan provisions apply to plan amendments, because plans
have to be internally consistent. South of Sunnyside Neighb~rhood League v, Bd. of
Comr's of Clackamas County, 280 Or 3, 13 (1977);'ORS 197.015(5).
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2. Planning Period: The 2025 planning horizon for the Wastewater Primary Collection
f .
System is inconsistent with and not coordinated with th~ planning period for the balance of
the Metro Plan.
Both the Metro Plan and the Public Facilities and Services :,Plan (PFSP) amendments propose a
. ~.
1 The proposed amendments, if adopted, will be post-acknowledgmen; Plan:!amendme~\s (PAPAs).. MJ)afa,Seceived
of the final decision of each local ~oveTWl'''nt on this maller, as required by ORS 197,61:5. A. _., L _ ......l.~"""""- ,(,
" ", " f~ u.:e ~ U'0-/6'1
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'" ~Planner: BJ
)
Metro Area Planning Commissions
April 20, 2004
Page 20f 8
2025 plan horizon for the planning for treatment facilities. With these amendments the
comprehesive plan will not be integrated and, in fact, will have inconsistencies. That's because
the exiting plans have a 2015 planning horizon. A comprehensive plan, by definition, must be
coordinated, integrated, and internally consistent. The definition of "comprehensive plan" in
ORS 197.015(5) is:
"Comprehensive plan" means a generalized, coordinated land use map and policy
statement of the governing body of a local govermvent that interrelates all functional
and natural systems and activities relating to the us,~ of lands, including but not limited
to sewer and water systems, transportation systems; educational facilities, recreational
facilities, and natural resources and air and water quality management programs.
"Comprehensive" means all-inclusive, both in tems of the geographic area covered and
functional and natural activities and systems occurring in the area covered by the plan.
"General natUre" means a summary of policies and "proposals in broad categories and
does not necessarily indicate specific locations of ally area, activity or use. A plan is
"coordinated" when the needs of all levels of goveriunents, semipublic and private
agencies and the citizens of Oregon have been considered and accommodated as much
as possible. "Land" includes water, both surface and subsurface, and the air."
A comprehensive plan really can't be "coordinated" in themeaning'ofthe definition if
different functional parts of the plan have conflicting plaolling time frames.
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3. State statutes regarding public facilities planning, ORs 197.712(2)(e), requires a
project list, which is not in the proposed amendments. :
The statute that sets the stage for public facility plans is OJ3.S 197.712(2)(e). It provides:
"A city or county shall develop and adopt a public f[icility plan for. areas within
an urban growth boundary containing a population greater than 2,500 persons.
The public facility plan shall inciude rough cost estimates for public projects
needed to provide sewer, water and transportation fqr the land uses
contemplated in the comprehensive plan and land use regulations. Project timing
and financing provisions of public facility plans shall not be considered land use
decisions." , .
It is worth noting that the statute anticipates a list of projects. The proposed amendments do
not include a list of project. Instead, the amendments would include categories'ofbaskets of
projects. Presumably, the individual projects would be worked out administratively.
4. LCDC Rules relatiug to public facility planning. .
The pU,blic facilities, statute and Statewide Planning Goal II, are implemented thro~h the , '
LCDC s DIVISIon II Rule - OAR 660-011-0000.' .' uate Received
MAY 0 6 t ()~
Planner: BJ
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Metro Area Planning Commissions
April 20, 2004
Page 3 of8
(a) Contents of "publicfacility plan."
OAR 660-011 ~001 0 defines the contents of a public facility plan. The definition is:
"(I) The public facility plan shall contain the following items:
(a) An inventory and general assessment of the condition of all the significant
public facility systems which support the land uses designated in the
acknowledged comprehensive plan;
(b) A list of the significant public facility projects which are to support the lmid
uses designated in the acknowledged comprehensive plan. Public facility project
descriptions or specifications of these projects as riecessary;
(c) Rough cost estimates of each public facility project;
(d) A map or written description of each public facility project's general location
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or servIce area;
(e) Policy statement(s) or urban growth management agreement identifying the
provider of each public facility system. If there is ~ore than one provider with
the authority.to provide the system within the area covered by the public facility
plan, then the provider of each project shall be designated;
(f) An estimate of when each facility project will be needed; and
(g) A discussion of the provider's existing funding mechanisms and the ability
of these and possible new mechanisms to fund the development of each public
facility project or system."
The proposal is to bolster the existing PFSP to include "the required components for the area's
wastewater treatment system. The amendments made sh041d be double checked against the
required list of contents above. At first glance, it would appear that the proposed amendments
fall short of meeting the minimum required contents in the following respects:
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1. The amendments need to include an inventory and general assessment of the condition
of all the sigilificant aspects of the wastewater treauneni system. The required
evaluative information is missing. OAR 660-011-001O(1)(a)."
2. A "list of significant public facility projects" needed to support the land uses"
designated in the Metro Plan is needed. OAR 660-011-001O(1)(b). No project list is
proposed for the plan. Instead, categories of project~ are proposed. This obfuscates
the ultimate policy choices that Goal 2 and Goal 11 require to be reflected in the plan.
Furthermore, the projects are to support the land use'designations in the plan. Those
designations have a 2015 planning horizon. The proposal is to designate projects for a
longer timeframe; which would violate this rule.
3. Cost estimates need to be by project, not by categori9s of projects.
0010(1)( c).
OAR ffafe- Received
MAY 06 ( 6~
Planner: BJ
'f'
Metro Area Planning Commissions
April 20, 2004
Page 4 of8
4. Each project needs to be mapped. OAR 660-011-0010(1)( d). Without a. project
listing, the mapping requirement can't be met.
5. An estimate is needed of when each project will be needed. OAR 660-011-001O(1)(f).
Absent a project list, this requirement can't be complied with.
6. A discussion of the funding mechanisms and prospects for funding for each project.
OAR 660-011-001O(1)(g). Again, a project list islthe starting point for this discussion.
(b) Need for inventory of existing facilities and need for future projects.
OAR. 660-011-0020 requires establishes inventory requirements and the need for a list of
future projects. The Rule provides:
"(I) The public facility plan shall include an inventory of significant public
facility systems. Where the acknowledged comprehensive plan, background
document or one or more of the plans or programs 1,isted in OAR 6600011-
00 I 0(3) contains such an inventory, that inventory may be incorporated by
reference. The inventory shall include:
(a) Mapped location ofthe facility or service area;
(b) Facility capacity or size; and
(c) General assessment of condition of the facility (e.g.., very good, good, fair,
poor, very poor).
(2) The public facility plan shall identify significant public facility projects
which are to support the land uses designated in the 'acknowledged
comprehensive plan. The public facility plan shall list the title of the project and
describe each public facility project in terms of the type of facility, service area,
and facility capacity.' .
(3) Project descriptions within the facility plan may require modifications based.
on subsequent environmental impact studies, design.studies, facility master
plans, capital improvement programs, or site availability. The public facility
plan should anticipate these changes as specified in OAR 660-011-0045."
An inventory of existing facilities is needed, in terms of mapped location, capacity, and
condition. OAR 660-011-0020(1). This inventory would provide the baseline for planning. It
does not appear to be within the scope of the proposed ame~dments.
The plan must include a list of specific proposed projects. OM 660-011-0020(2). There is no
list.of projects proposed. Approval of categories of projects ;~ould mean that the governing
bodies are not making ultimate policy choices. Rather, they \yould be writing qu'\fi\-bliJ!k R " d
checks. ..Uale ecelve
MAY 0 6 [ o~
Planner: BJ
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Metro Area Planning Commissions
Apri] 20, 2004
Page 5 of8
(c) Timing of required projects.
OAR 660-01 ]-0025 requires that the plan include a general estimate of timing of projects. The
Ru]e states:
"(I) The public facilities plan shall include a genera] estimate ofthe timing for.
the planned public facility projects. This timing component of the public
. facilities plan can be met in several ways depending on whether the project is
anticipated in the short term or long term. The timing of projects may be related
directly to population growth, e.g., the expansion or new construction of water
treatment facilities. Other facility projects can be related to a measure of the
. facility's service level being met or exceeded, e.g., a major arteria] or
intersection reaching a maximum vehicle-per_day standard. Deve]opment of
other projects may be:more long term and tied neither to specific population
levels nor measures of service levels, e.g., sewer projects to correct infiltration
and inflow problems. These projects can take place over a long period oftime
and may be tied to the avai]ability of long-term funding. The timing of projects
may also be tied to specific yeats.
"(2) Given the different methods used to estimate the timing of public facilities,
the public facility plan shall identifY projects as occurring in either the short
term or long term, based on those factors which are related to project
development. For those projects designated for development in the short term,
the public facility plan shall identifY an approximate year for development. For
those projects designated for development over the long term, the public
facility plan shall provide a general estimate as to when the need for project
development would exist, e.g., population level, s'ervice level standards, etc.
Timing provisions for public facility projects shall be consistent with the
acknowledged comprehensive plan's projected growth estimates. The public
facility plan shall consider the relationships between facilities in providing for
development.
"(3) Anticipated timing provisions for public facilities are not considered land
use decisions as specified in ORS.7]2(2)(e), and; therefore, cannot.be the basis
of appeal under ORS 197.610(1) and (2) or 197.835(4)." .
Although the timing analysis does not have to be precise under the Rule, it does have to be
. .
specific to projects. Where, as here, the proposal is to approve categories of projects, rather
than a list <if projects, it is not possible to comply with the rule. .
(d)
Need for rough cost estimates of specific projects.
Date Received
MAY 0 6 D~
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Planner: BJ
Metro Area Planning Commissions
April 20, 2004
Page 6 of8
OAR 660-011-0030 requires the plan to include rough cost estimates for projects listed in the
plan. The Rule provides:
"(I) The public facility plan shall include rough cost estimates for those sewer;
water, and transportation public facility projects identified in the facility plan.
The intent of these rough cost estimates is to:
'(a) Provide an estimate of the fiscal requirements to support the land use
designations in the acknowledged comprehensive plan; and
(b) For use by the facility provider in reviewing the provider's existing funding
mechanisms (e.g., general funds, general obligation and revenue bonds, local
improvement district, system development charges, etc.) and possible
alternative funding mechanisms. In addition to including rough cost estimates
for each project, the facility plan shall include a discussion of the provider's
existing funding mechanisms and the ability of these and possible new
mechanisms to fund the development of each public facility project or system.
These funding mechanisms may also be described in terms of general
guidelines or local policies. .
"(2) Anticipated financing provisions are not considered land use decisions as
specified in ORS 197.712(2)(e) and, therefore, cannot be the basis of appeal
under ORS 197.610(1) and (2) or 197 .835(4)."
Again, the failure of the proposed plan amendments to list individual projects in the plan
precludes compliance with this rule. The rule only requires "rough" cost estimates, but the
estimates have to be by project, not large groups of projects.
(e) Required elements of the comprehensive plan.
OAR 660-011-0045 requires that certain elements of the public facilities plan be made a part
. of the plan itself. The Rule requires: .
,
"(I) The governing body of the city or county responsible for development
of the public facility plan shall adopt the plan as a supporting document to
the jurisdiction's comprehensive plan and shall also adopt as part ofthe
comprehensive plan:
(a) The list of public facility project titles, excluding (if the jurisdiction so
chooses) the descriptions or specifications of those projects; .
(b) A map or written description of the public facility projects' locations or
service areas as specified in sections (2) and (3) of this rule; and
(c) The policy(ies) or urban growth management agreement designating the
provider of each public facility system. Ifthere is more than one provider
with the authority to provide the system within the area covered by the.' "
public facility plan, then the provider of each project shall be designateclj)ate ReCeiVed
MAYO 6 I of
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" Metro Area Planning Commissions
April 20, 2004
Page 70f8
The minimum requirement for inclusion in the comprehensive plan is the list ofproject titles
and a map ofthe projects' location or service areas. Again, a project listing is required, not a
description of categories of projects.
In summary, it appears that the proposed amendments conflict with the structure of the Metro
Plan because they are for a different, longer time frame. As such, they can't be demonstrated
to consist of the projects needed to implement the land use designations in the. plan. They
implement something more than what the plan provides for.
More significantly, it appears that the amendments are too skinny. The target for the
amendments should be to provide, as a part of the PFSP and the Metro Plan the information
that the LCDC Rules require be a part of any element of a public facilities plan. The essential
information that is missing is baseline information on the existing irifrastructure, its location,
and its condition, and a listing of specific projects proposed, their location, their rough.cost,
and their approximate timing.
As a starting point, the Planning Commissions might ask staff to analyze their proposed
amendments in light ofthe requirements ofthe LCDC Rule.
Thank you for your consideration.
Sinc
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cc: Roxie Cuellar
Date Received.
MAY 0 6( D~
Planner: BJ