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HomeMy WebLinkAboutCorrespondence Miscellaneous 6/22/2004 I. ~ Home Builders ASS II C I,A T ION of Lane County June 22, 2004 Mayor Torrey and Councilors Eugene City Council 777 Pearl Street Eugene, Oregon 97401 Mayor Leiken and Councilors Springfield City Council 225 5th Street Springfield, Oregon 97477 Commission President Green and Commissioners Lane County Board of Commissioners 125 East 8th Street Eugene, Oregon 97401 Re: Proposed Comp Plan and Public Facilities and Services Plan Amendments , Dear Mayors; Councilors;. and Commissioners; Most of the issues of concern to the Home Builders Association have been presented in my May 6 letter to the joint planning commissions. This letter will elaborate of Goal '2 issues and the appeals process. qoal 2 ~ Land Use Planning Goal 2 involves process. The first consideration is the 'adequacy of the process by which the public provides review and comment to the elected officials prior to their decisions, The second consideration is that the planning process assures an adequate factual basis for such decisions and actions, The first issue is the adequacy of the process by which the public provides review and comment to thy elected officials prior to their decisions, Providing notice to the public ,involves much'more than simply publishing the relevant hearing dates so the public knows when to submit their comments. Jtinvolves the adequacy ofthe infonnatiof'\...i R . . 'd" provided to the public during the process so the public is aware of the proposals anllNlte ecslve make meaningful comments to the elected officials, JUN 22 ,GJ4 Planner: BJ 2053 Laura Street Springfield, OR 97~n (541) 484-5352 FAX: (541) 484-5386 MWMC staff essentially relies on two things to support the public process that was used. The first is that required meeting notices were placed in the local newspapers informing the public of the hearings. However, today's Register Guard is an example of the type of notice provided for the public hearings. Under the Calendar Section in the local section of the Register Guard, page D2, residents of Eugene would read: Joint Meeting of Eugene City Council, Springfield City Council, Lane County Board of Commissioners - 6 p.m" Library Meeting Room, Springfield City Hall, 225 N. 5th Street. 682-5017. Residents who checked under Lane County in the Calendar would find: Board of Commissioners - 5:30 p,m. joint meeting with Eugene and Springfield City Councils, Library Meeting Room, Springfield City Hall, 225 N. 5th Street. Presentation of ACTSO certificates; work session and public hearing on amendments to Metropolitan General Plan public facilities element. Residents who checked under Springfield would receive no notice at all of the public hearing or that their council was meeting. Eugene residents would know there was a meeting but have no notice of its subject or the fact there was a public hearing. Residents who checked to see what the county commissioners had on their schedule would receive the most information, but certainly not information that would alert them to the proposed approval of $160 million of wastewater projects. Other than two limited references to the proposed projects (one in the Springfield Beat and one in the similar section for Eugene) in the Register Guard, there has not been a story in either of the local papers discussing the proposed projects. The wastewater projects proposed by MWMC are of a monetary scope that has never been built with local money in the metro area before. A good-sized article in the local papers or other media coverage would be appropriate given the size ofthe proposed projects, The public can not be expected to provide comments if they don't know there is something to comment about. MWMC staff has indicated that MWMC itselfhas held public meetings and public hearings on the projects. MWMC holds its meetings and hearings at 7:30 A.M, On more than one occasion, the General Manager of MWMC has justified holding the meetings and hearings early in the morning because no one attends MWMC meetings, Again, the public has to know there is a reason to attend before they are going to show up. However, another reason that people do not show up is that the public does not follow the activities ofMWMC in the same way that they follow the activities of the planning commissions and the elected officials. A large segment of persons active in the , community follows the land use process diligently because it knows that that is where the public discussion of community projects typically begins, Date Receiv9d JUN 2 2 I o~ Plannet: Bo;~ The second problem involves the information that has been available to the public about the comp plan and PFSP amendments themselves. As we have previously pointed out, the actual amendments to the comp plan and PFSP do not discuss the proposed projects with sufficient specificity to allow the public to understand what projects are being proposed. Are they the projects in the proposed MWMC Facility Plan? If so, why not make that clear to people who are looking at either the staff materials or the amendments themselves? The only reference in the staff materials for the planning commission hearings that made any note to the MWMC Facilities Plan is found under the tirst section, entitled Issues, It says that the amendments are being proposed for five reasons. Reason #3 is to "reflect current conditions and planned regional wastewater facilities consistent with the MWMC Facilities Plan." There is nothing in that sentence that would suggest to the public that the proposed projects in the comp plan and PFSP amendments are the same projects being proposed in the proposed MWMC facilities Plan. Instead, the opposite impression is given - that the MWMC Facility Plan is an adopted document and the proposed amendments are intended to make the new proposed projects consistent with the existing Plan. At the time of the joint planning commission public hearing on April 20, 2004, the proposed MWMC Facility Plan - a very large and technical document - was not yet available for the public to review, let alone to digest and comment upon. However, even now, it is not clear what projects are being proposed in the comp plan and PFSP amendments. For example, the proposed MWMC Facility Plan and 20-Year Project list is being submitted to the elected officials and adopted through a totally different process that does not involve the planning commissions at all. If the proposed projects in the amendments betore the elected officials tonight are essentially large buckets made up of the actual projects in the MWMC Facility Plan, why not use the comp plan process to discuss the actual projects? Instead, MWMC is using a bifurcated process. MWMC sent the proposed Facility Plan and its projects directly to the elected officials for adoption, bypassing the planning commissions, Springfield city council adopted the Facility Plan and 20- Year Project List before the planning commissions began their consideration of the proposed amendments. How is the public supposed to understand what projects are being proposed in the comp plan and PFSP amendments if the projects that are presumably the subject of the amendments are being adopted through a different process entirely? Bifurcating the process also makes public comment more difficult. Instead of having two public hearings, there have been five public hearings on these projects - two public hearings before the joint planning commissions and the joint elected officials on the amendments, and three public hearings before the three groups of elected officials on the Facility Plan. Because the issues are different in the amendments than the facility plan, the public had to participate in both processcs rather than a single process. Thf'lil.!i:5.e ' difficult the process becomes, the more the public is discouraged from participWilKe Received JUN 2 ~o~ Planner: BJ Lastly, it is not clear that MWMC intends for the planning commission to recommend specific projects to the elected officials through the comp plan amendment process had the public wished to comment on them. MWMC also suggests that the Goal 2 needs are met because of the use of Citizens Advisory Committees (CAe) throughout the planning process. A CAC met in 1977 to look at the Biosolids Management Plan. That was seven years ago. In 1998, a CAC met to look at the issue of wet weather flow. That was six years ago. In 2004, a CAC was created to look at the SDC methodology, but it was not their purpose to look at or comment on the facility plan projects, In short, the CACs have not provided any recent review of the projects being proposed by MWMC. The Appeals Process If members of the public, for one reason or another, are sufficiently opposed to all or part of the proposed projects to seek judicial remedy, where exactly do they go? MWMC contends that the specific projects (i.e, disposal of dry tonnage ofbiosolid waste at a poplar plantation inside the UGB, forexample) do not need to be included in the comp plan or PFSP amendments. IfMWMC is correct, concerned neighbors could not seek relief from LUBA after the adoption of the comp plan and PFSP amendments because the amendments do not discuss projects of that specificity. Another possibility would be an appeal of the adoption of the Facility Plan and 20- Year Project List to LUBA on the basis that the decision is a land use decision, The Home Builders Association and the Homebuilders Construction Company have filed such an appeal against the City of Springfield after it adopted the Facility Plan, Springfield and MWMC, as an intervenor, have filed a Motion to Dismiss, The rationale behind the Motion to Dismiss is explained as follows: Here, the decision at issue is a facilities plan and capital improvement plan enacted under the provisions of ORS 223,297 et seq (the system development charge statutes). Such plans are specifically excluded from LUBA's jurisdiction by the provisions ofORS 223.314. Consequently, LUBA does not have jurisdiction over this matter. Is MWMC suggesting that the road to appeal the disposal ofbiosolid wastes at the poplar plantation would be by challenging the system development charge by writ of review? Surely not. If not by way of LUBA and not by way of challenging the SDC, then how? Or is MWMC suggesting that the public has no remedy if projects are adopted to which members of the public object? ' MWMC's past practice has been to have the elected officials adopt the projects as part of the budget process. 4 In 2002, MWMC directed staff to prepare a 20 year estimate of capital needs, given that the design life of the water pollution control facility would be reached by 2004, When that analysis was completed, and reviewed by MWMC as part of its ordinary budget process for FY 2002-03, the capital needs were estimated at about $105 million, including the,$36 million that remained in the previous planning efforts. This year's MWMC budget contains $13 million of capital improvements, none of which have received any public scrutiny or review by the elected officials except through the budget process. The only time that those projects were adopted by the elected officials was through the budget process, Presumably the governing bodies do not want the public to have to appeal their budgets in order for the public to have a remedy for a specific wastewater project. The appropriate place for the public to apply for a remedy after the adoption of wastewater projects is LUBA. To the extent that the jurisdictions attempt to shut off that remedy, the more difficult the process becomes for everyone - the public aI1d the governing bodies alike. The simple solution is to eliminate the bifurcated adoption process ofthe wastewater projects and follow the land use amendment process under OAR 660-011-000 to 660- 011-0065. Start over and let the public review the projects through the planning commissions and ultimately the elected officials, It may take a total of a couple of additional months, but the process is done as the state legislature intended. I have heard persons from MWMC say that they do not want to have the projects adopted through the comp plan amendment process because thcy don't want to have to do a comp plan amendment cvery time they change a project. The Goal I I process only requires amendments for significant public facility projects. If the change is insignificant, the amendment is not necessary. If the project is significant, the public should be given the opportunity to weigh in on it if they choose to do so. Last evening, the Springfield City Council had the following item on their agenda: ORDINANCE NO, I - AN ORDINANCE AMENDING THE EUGENE- SPRINGFIELD METROPOLITAN AREA PUBLIC FACILITIES AND SERVICES PLAN (PFSP), TABLE 8 AND MAP 4: PLANNED ELECTRICAL FACILITIES TO SHOW A NEW I 15KV TRANSMISSION LINE FROM THE MARCOLA SUBSTATION SITE TO THE LAURA STREET SUBSTATION, AND ADOPTING A SEVERABILITY CLAUSE, If Springfield Utility Board can act to amend the PFSF when it is appropriate to do so, presumably MWMC can also, A desire to ,avoid compliance with the Goal I) requirements for the sake of convenience is not a justification for depriving the public of their right to review and comment on public facility projects. Date Received JUN 22 IOL( 5 Planner: BJ I want to make it clear that the Home Builders Association is not trying to prevent MWMC from constructing needed projects. Our wastewater infrastructure is crucial to the livability of the community, However, we also do not accept the idea that the proposal of$160 million of projects should not receive adequate public review and comment. Bring the public along in this process and it may reduce any negative reaction to the 57% to 67% rate increases that will be necessary over the next five years to fund the first $109 million of projects. Thank you for your consideration of our issues, Sincerely, !~X~ ~~ Roxie Cuellar Director of Government Affairs Date Received JUN 2 2/ o~ Planner: BJ 6 t .' 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 June 22,2004 Metro Area Elected Officials 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 June 22, 2004 Joint.Public Hearing Dear Elected Officials: 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 amendments are found in several locations: . State statutes apply, Statutes always apply to local governments' land use decisions. McKav Creek Valley Assoc. v, Washinf!ton COlllltv, 18 Or LUBA 71, 75 (1989) (acknowledgment of plan and code leaves statutes directly applicable). . Statewide Planning Goals. ORS I 97. I 75(2)(a). . LCDC Rules implementing the statutes and the goals 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 o.fSunnyside Neighborhood League v. Ed, of Comr's o/Clackamas County, 280 Or 3,13 (1977); ORS 197.015(5). 2. Planning Period: The 2025 planning horizon for the Wastewater Primary Collection System is inconsistent with and not coordinated with the planning period for the balance of the Metro Plan. Both the Metro Plan and the Public Facilities and Services Plan (PFSP) amendments propose a , I The proposed amendmenls, if adopted, will be post-acknowledgment plan amendments (PAPAs), Fl\'r./il<l>Is BIOliee;ved of the final decision of each local government on this matter, as required by ORS 197,61S, UC1lti nti JUN 2 2 I D~ Planner: BJ Metro Area Planning Commissions April 20, 2004 Page 2 of7 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 ]97.015(5) is: "Comprehensive plan" means a generalized, coordinated land use map and policy statement of the governing body of a local government that interrelates all functional and natural systems and activities relating to the use oflands, 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 terms 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 any area, activity or use, A plan is "coordinated" when the needs of all levels of governments, 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 the meaning of the definition if different functional parts of the plan have conflicting planning time frames, 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 ORS 197.712(2)(e). It provides: "A city or county shall develop and adopt a public facility plan for areas within an urban growth boundary containing a population greater than 2,500 persons, The public facility plan shall include rough cost estimates for public projects needed to provide sewer, water and transportation for 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 or baskets of projects, Presumably, the individual projects would be worked out administratively. 4. LCDC Rules relating to public facility planning. The public facilities statute and Statewide Planning Goal II are implemented throQate Recel'ved LCDC's Division II Rule - OAR 660-011-0000, , JUN 2 2 ( Dr Planner: 'BJ Metro Area Planning Commissions April 20, 2004 Page 3 of7 (a) Contents of "public facility plan." OAR 660-011-00 I 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 land uses designated in the acknowledged comprehensive plan. Public facility project descriptions or specifications of these projects as necessary; (c) Rough cost estimates of each public facility project; (d) A map or written description of each public facility project's general location or servIce area; (e) Policy statement(s) or urban growth management agreement identifying the provider of each public facility system. If there 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 designated; (t) 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 should 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: I. The amendments need to include an inventory and general assessment of the condition of all the significant aspects of the wastewater treatment system. The required evaluative information is missing. OAR 660-011-0010(l)(a), 2. A "list of significant public facility projects" needed to support the land uses designated in the Metro Plan is needed, OAR 660-011-00 I 0(1 )(b), No project list is proposed for the plan. Instead, categones of projects are proposed. This obfuscates the ultimate policy choices that Goal 2 and Goal II 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 timefTame, which would violate this rule. 3. Cost estimates need to be by project, not by categories of projects, OAR 660-011- 00 I 0(1 )(c). Date Received JUN 22 ( D~ Planner: BJ Metro Area Planning Commissions April 20, 2004 Page 4 of7 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 660-011-0010(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 660-011-00 I 0(1 )(g). Again, a project list is the 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 listed in OAR 660-011- 0010(3) contains such an inventory, that inventory may be incorporated by reference. The inventory shall include: (a) Mapped location of the 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 660-0 11-0020( I). This inventory would provide the baseline for planning. It does not appear to be within the scope of the proposed amendments. The plan must include a list of specific proposed projects, OAR 660-011-0020(2), There is no list of projects proposed, Approval of categories of projects would mean that the governing bodies are not making ultimate policy choices, Rather, they would be writing quasi-blank checks, Date Rece\\fed , JUN '1.2 ,o~ P\anner: BJ Metro Area Planning Commissions April 20, 2004 Page 5 of? (c) Timing of required projects. OAR 660-011-0025 requires that the plan include a general estimate of timing of projects, The Rule states: "(I) The public facilities plan shall include a general estimate of the 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 arterial or intersection reaching a maximum vehicle-per-day standard, Development 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 of time and may be tied to the availability of long-term funding. The timing of projects may also be tied to specific years, "(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 tenn, 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, service 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,712(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 of projects, it is not possible to comply with the rule. (d) Need for rough cost estimates of specific projects. Date Received JUN 2 2 (()~ Planner: BJ . , Metro Area Planning Commissions April 20, 2004 Page 6 of7 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 syktem. 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 ofthe 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 of the 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. If there 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 designated." . " Date Received JUN 2 2 loq Planner: BJ . . Metro Area Planning Commissions April 20, 2004 Page 7 of? The minimum requirement for inclusion in the comprehensive plan is the list of project titles and a map of the projects' location or servicc 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 infrastructure, 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 of the requirements of the LCDC Rule. Thank you for your consideration, ~s~tlC\~ Bill Kloos - cc: Roxie Cuellar Date Received JUN 2 2, oq Planner: BJ