HomeMy WebLinkAboutCorrespondence Miscellaneous 7/7/2004
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THORP
PURDY
JEWETI &'
URNESS
WILKINSON. P.e.
A nORNEY~ AT LA W
G. Dall;d Jewat
IOIII'IAltLOWROAl', SUITE 300
SPRJNGFIElD~ OrtEGON 97477
PHON!;: (541) 747-3354
FAX: (541) 747.3367
,'uly 7, 2004
E-MAil ADDRESS:
djewelt@lhorp.purdy,com
MAKV1l'O. SANj)ERS (l'll2.1977)
JACK ~.llvaY (1923.1979)
)lI.I.~, GOLD8>l (1951.1991)
TO:
Sl sie Smith @ (541) 726-2309
Lln Goodwin @ (541) 736-1021
CLIENT NO.:
FROM:
NUMBER OF PAGES:
4~4-122
Lt urence E. Thorp
:3t:.
(Including this Cover Sheet)
COMMENTS: Please see nttacl,ed letter dated July 7, 2004 and enclosure.
*******.******...**************~*.********************.***********************
If you have any questions or this ITansn ission is not clearly received, please can (541) 747-3354.
Thank you.
x
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Date Received
JUL 07,b~
Planner: BJ
JUL-07-2004 15:24 FROM:
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P. 2/35
THORP
plDU)Y
JEWEtT &
URNESS
WILKINSON, Pc.
- XITOR~EYS ArLAW
1011 HARI.OW ROAD. SUTI' Jon
SI'I\lNnFIF.LD,OREGO:< 97477
PHOH.; (541) 747,3354
FAX; {541 )'747.33()7
July 7,2004
E-MAIL ADDRESS:
Ilhorp@thorp.purdy Com
LauI":rIr:t: E, Thorp
M^R\'I~O. SA.~l)...kS (11)12-11)77)
JAn:.D U'liEL't (J9'23-1IJ7EJ)
JILLf'~ GOWSN (/9;1.19911
VIA FACSIMILE TO: (541) 726-23l '9
Susie L. Smith I
Melrorolitan Wastewater Managcmcnfl Commission
225 5' Street II
Springfield, OR 97477
VIA F ACSTMILE TO: (541) 736.1C I
Len Good\\in
City of Springfield Public Works
225 5th Street
Springfield, OR 97477
Date Received
JUL o7,orf
Planner: BJ
Rc: Home Builders v. City of Spril '. ifield
LUBA No, 2004-090
Our File No. 434,122
Dear Susie lUld Len:
Enclosed you will find a copy of the B) llebuildcr's response to the Motion to Dismiss the
Homebuilder's appeal to the Land Use] loard of Appeal. As you can see. the Homebuilder's are
basically arguing that at least a portion (fMWMC's Facility Plan should be treated as a land use
decision under Goal II.
The Land Usc Board of Appeals rules I" not provide for a reply to the Homebuilder's response.
However, they do not prohibit filing a '( ply either, LUBA generally acts very quickly on
motions and unless a reply is receive b f LUBA before it makes a decision, the reply would be
meaningless. .
Although it may be possible to resPonl'fo many of the issues raised by the Homcbuilders, I am
not convinced that it would be a good l e of resources lo do so. I believe that the Bomebuilders
h~vc raised at Ic.ast enough, ofa questl( concerning the status oflhe Facilities Plan thaI tUBA
wIll.want to review the entire record f1') the City and get complete bnefs before It deCides
whether it has jurisdiction. Neverthele 51, if you would like us to prepare a reply, you should
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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) 340.:8596
FAX (54' )343.8702
E'MAIL 8ILLKLOOS@LANDUSEOREGON.COM
July 2, 2004
Land Use Board of Appeals
550 Capitol St. NE, Suite 235
Salem, OR 97301-2552
Re: Home Builders v. City ofSpr ngfield, 'LUBA No. 2004-090
Dear LUBA:
Enclosed for filing arc the original and )ne copy of Petitioner's Memorandum in response to
Motion to Dismiss, Copies hav~ been: .rved on the parties ofr~cord, The Motion to Dismiss
was a bit sketchy, Petitioners anticipat ~ the pO$~ibjlity of tiling a reply in the event the City
replies to the enclosed.
J (
cc: Meg Kieran
Larry Thorp
Client
JUL-07-2004 15:24 FROM:
TO: 541 7361021
P. 4/36
, \
.,-~"
LAW OFFICE OF BILL KLOOS, PC
OREGON LAND USE LAW
576 OLIVE STREET, SUITE 300
EUGENE, OR 97401
PO BOX 1 1906
EUGENE, OR 97440
TEL (541) 343.8596
FAX (541) 343,8702
E-MAIL BILLKLOOS@LANDUSEOREGON.COM
July 2, 2U04
<.
Land Use Board of Appeals
550 Capitol St. NE, Suite 235
Salem, OR 97301-2552
Re; Home Builders v, CilY of Spr ngfield, LUBA No, 2004-090
Dear LUBA:
Enclosed forrefcl'ence I:>Y LUBA in COl nection with the appeal above is a copy oftheMWMC
2004 Facilities Plan,
j!~
cc: (w/o encl.)
Meg Kieran
Larry Thorp
Client
Date Res~ved.'
JUL 0 7, at
Planner: BJ
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BEFORE THE LI.ND USE BOARD OF APPEALS
OF TH1~ STATE OF OREGON
.'
HOME BUILDERS ASSOCIATImi OF
LANE COUNTY, and HOME BUll DERS
CONSTRUCTION COMPANY,
)
)
)'
)
)
)
) , LUBA No. 2004-090
) (MWMC 2004 Facilities Plan
) Springfield Res, 04-19)
)
)
) PETITIONERS' RESPONSE
) , TO MOTION TO DISMISS
)
)
)
)
)
)
Petitioners,
v.
CITY OF SPRINGFIELD,
Respondent;
and
THE METROPOLITAN WASTE\\~TER
MANAGEMENT COMMISSION,
Intervenor-Responde 11.
25
Petitioners ("Home Builders') file this memorandum in support ofLUBA '.
26
jurisdiction and in opposition to Ref pondents' Motion to Dismiss, Respondents asked
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tUBA to delay the filing of the rec( rd in this matter. "Then tliey filed their motion
28
supported by nothing but [he tWO-pi ge re~olution adopting the plan that is at issue.
29
.'
LUBA needs at least the most basic documents relate'd 10 the plan to make the
jurisdictional call raised by the motbn, We append those 'documents here. Under
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separate copy we are forwarding to ~UBA a copy of the adopted plan that is at issue
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here: the MWMC2004 Facilities Pan.
l. Introduction.
Petitioners believe LUBA hiS jurisdiction to 'review the city's approval of the
MWMC 2004 Facilities Plan, whicl is the major partofv.:hat the City did in Res. No. 04-
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19. Although the City erroneously f, i1edto handle the adoption as ,a"land use. decision,"
2 the plan is correc,tly 9haracterized as j refinement plan or an amendmenrro a refinement
3 plan of the Eugene Springfield Metri poritan Area'Generdl' Plan ("Metro Plan ") or as an
4 implementing regulation of the Metr I Plan. Picking the correct label for the plan might
5 be vexing, since the City has refused to help by disavowing its land use pedigree. But the
6 correct label is immaterial if LUBA ,an correctly characterize the plan as elaborating
7 upon or implementing the Metro Pl~~. To make the characterization, LUBA needs to
B exarriine the framework Of state law 'or the plan, in particular the Goal II Rule, and the
, '
9 Metro Plan and its related refinemcr t plans, in particular the Public Facilities and
10 Services Plan ("PFSP"}. rfthe city s adoption of any part of the plan is a land use
11 decision, tben jurisdiction is proper :t tUBA, and remand will be required on the merits,
12 because the city failed to adopt the e 1actmcnt,through land use decision making
13 procedures, which would be those al"plicab\c to post-acknowledgment plan amendments,
14 See ORS 197.610-197.625; see Resllfaven Memorial Parkv. City of Eugene, 39 Or
15 LUBA 282, aff'd 175 Or App 419, < 8 P3d 1229 (200i)(remanding Eugene's. open
, ' '
16 waterway ordinance because it was, I,n,ew land use regulation for which the post,-
17 r''''i.Jlcknowledgrnent process was not fC'llowed); Home Builders Assn. of Lane County v. City
'.......1
IB :!if:.oIEugene, 41 Or LUBA 453 (1002;\remanding Eug~ne's amendments to its tree cutting
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...19 ,iordinancq, which was an existing la'ld use regulation).
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21 :J2(s not a land use decision." That isvhat ORS 223.314 says, However, the exemption
Home Builders agrees that" I plan or list adopted p~rsuant to ORS 223.309>1> >I> >I>
",
22 from land use d~cision making that s carved out by ORS 223.314 is very narrow. It is
23 limited to the list of projects or elen ents of the plan that describe tbe capital projects that
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.1 JUL -07-2004 15: 24 FROM:
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may be SDC funded, as well as the e ;timated costs and timing of those projects. The text
2 and contex.t of the statutory scheme I lake it clear that public facility planning in general,
,
3 including its pohcy,rnaking elemen~ about what projects are needed for a planning
4 period, remains within the scope of! md use decision making. This is evident from the
5 statutory mandate for public facility )1ans in ORS 197.172, Statewide Planning Goal II,
6 and the Goal 11 Rule which implem :nts both.. It is also clear from legislative history of
7 ORS 2;23.314 thatthe general facili~' planning process thilfptecedes the SDC project list
8 is to remain a part of tbe la1)d use de :,isio)1 makingproc::css.
9 The title of.the decision challenged here correctly recognizes two discrete
10 clements that the City has'rolled int< a single: (1) "Approv'ing the MWMC 2004
II Facilities Plan;" and (2) "Adopting t le 20~year project list." Part (2) is likely exempt
12 from LUBAreview under the excep :ion stated in ORS 223.314. Part (I) is the product of
13 a traditional public facility planning exercise for wastewater facilities, which is a land use
14 decision that LUBA has jurisdiction to review, as explained more fully below.
15 tUBA should deny the m"oti in to dismiss pecause it has jurisdiction to review
16 part of the decision- indeed most 0 . the decision. Becaus~ the City has 'opted to fold the
17 SDC project list work into a single (ocument with its public facility planning work,
18 LUBA will have to draw the ORS 2 D.314 jUrisdictional line in its review' on the merits.
19 Petitioners doubt there will be mud argument about where to draw the line. But that is a
, ..
20' question that can be addressed after briefing the merits based on the full record..
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Background Facts.'
The City draws its summary of relevant factS from the two-pages of Resolution
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'23"~ No, 04-19. The City recites facts th It are recited in the Resolution. The Resolution,
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however, asserts facts with reference to original documents. The original documents
2 have not been provided to LUBA by th~ City. Petitioners and LUBA have no way to
,. verify the facts asserted. Petitioners, therefore, object to the city's summary of the facts,
4 and offer the following, which,is bas :d on documents provided here.
5 The decision challenged here is Springfield'Resolution No. 04-19, a copy of
6 which is attacbed as Exhibit A hereto I. The Resolution "I!I!' v -'ed the MWMC 2004
7 Facilities Plan, and it adopted the 2( -year project list contained in the plan. .A copy of.
8 the plan, which is hefty, has been fOI warded separately to:LUBA.
9 The IMWMC 2004 F acilities'lan initially was a product of the Metropolitan
10 Wastewater ManagementCommissi m ("MWMC"). The MWMC was created by the
II three Metro jurisdictions by interg01 crnmental agreement'("IGA") under ORS Chapter
12 190.'A copy. of the Restated and Ar.JendedIGA (1998) appears as Exhibit B hereto. The
13 MWMC fomlally adopted the MWf.< C 2004 Facilities Plan, including the 20-year project
14 list, by Resolution 04-04 on May 6; 1004. 'The plan was then forWarded to each of the
15 three Metro jurisdictions (Springfiel:l, Eugene and Lane County) forreview ,and
16 approval. Springfield was the first (fth~ three jurisdictions to approve the plan.,
17 Springtield's approval is the subject of this appeal.
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rhc overall, purpose of the ^' WMC 2004 Facilities Plan is stated in the Executive
Summary at ES-I :
"This Facilities Plan, prcpar~d for the Metropolitan Wastewater'
Management Commission (1 il:WMC), is the result of a comprehensive
evaluation of the regional w Istewatcr treallnentfacilities serving the,
Eugene-Springfield metropCilitan area [Eugene-Springfield Water
I'ollution Control Facility (\ 'SPCF), major pump stations and,
interceptors, the Biosolids ~ anagement Facility (BMF), the Biocycle
Farm, and the Seasonallndt'strial Waste Facility (SIWF)]. * * * *
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In. Aspects of facility planninl: and financing that are excluded from the scope of
"land use decisions" reviewable b r LUBA are few and narrow. They include "'C
"projec~ timing and financing pn visions of public facility plans" (ORS CJ)
197.712(2)(e); OAR 660-011-00058)) and the "plan or list" of projects to be funded .~
via SDCs, as well as the cost a.nd f iming oftheSDC projects (ORS 223.309, 223.314). ~
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"This newly developed MWl1C Facilities Plan is intended to identify
facility enhancements and ex )ansions that are needed to serve the
community's wastewater nee js through 202S.'~
The more specific "goals anc objectives" ofthe MWMC 2001 Facilities Plan
8
project are stated at page 1-9 to 10 0 'the plan:
"The goals ofthis Facilities II'lan are to build on the previous planning
cfforts that have been ongoitg since 1969 in ordcrto develop a practical
and cost-effective set of capi :al improvements necessary to meet
community needs and mininum environmental standards for all MWMC
facilities for the next 20 yell.! i. The Facilities Plan pre'sents comprehensive
and defensible identification and evaluation of available capital.
improvement strategy altem;.,tives, and recommendations that:
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r'. 3~~ The requirement for local gc vernmcnt public facilitiesplann4Jg is found in
Gl'
401":' Statewide Planning Goalll.
.
Accommodate projected growth in Eugene-Springfield through 2025
.
Provide thc efficiency ot solving multiple dry and wet weather issues
· Maximize the WPCF's e~isting investment in assets by incorporating
performance and capacit ( improving retrofits where possible instead
of new facilities
. Meetminimum cnvirolll ~ental standards for the WiIlamette River
.
Provide regulatory certa oty and protection from liabilities associated
with noncompliance wit\ requirements
· Mitigate negative neight orhood impacts such as odors and visual
, impacts of the treatmenl facilities'~
It is a so found in the Goal 11 Rule, OAR Chapter 660,
,"\
4(::; Division II. It is also ihdirectly ba: ed in ORS 197.712, which sets parameters for the
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Goal II Rule.
Let's start-with the statute,w lich gives direction to 'the LCDC.\ ORS 197.712
providcs, in relevant part: (emphasis added)
"(2) By the adoption of new ~oals or rules, or the application,
interpretation or amendment )f existing goals or rules, the Land
Conservation and developme at Commission shall implement an of the
following:
". .. * *
"(e) A city or county shall.de velop aod adopt a public facility plan for
areas within an urban growtl boundary containi!lg a population greater
than 2,500 persons. The pub'ic facility plan shaH include rough cost
estimates for public projects needed to provide sewer, water and,
transportation for the land u!fs contemplated in the,comprehensive plan .
and land use regulations. PrAjecttiming alldfinancing provisions of public
facility plans shall nOI be co lsidered land. use decisions."
LCDC's Goal J I Rule reflws the "timing and financing" exception from the
statute verbatim. OAR 660-011-00 15(8).says:
"'Land Use Decisions'; In a lcordance with ORS J97.712(2)(e), project
timing and financing provisi )Os of public facility ,plans shall not be
considered land use decisionf as specified under ORS 197.015(10)."
OAR 660-011-0025(3) elaborates o! the "timing" part of the exception. Although the'
timing of public facilities is to be p< rt ofthe plan, the rule says:
, .
. '
"Anticipatcd timing provisic ns for public facilities are not considered land
use decisions as specified in ORS 1 97.712(2)(e), and, therefore, cannot be
thebasis \>fappeal under ms 197,610(1) and (2) or 197.835(4)."
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31< OAR 660-0 I 1-0035(2) elaborates 0 1 the "financing" part of the exception. Although the
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92..1 On its face, ORS 197.712 is a directve to the LCDC. thus does ootapply directly. Port of St.
'''''''Helens v. Land Conservation and I. evelopment Com 'n., 165 Or App.487, 996 P2d 1014
, (2000).
"
.
"F inancing provisions are n. ,t considercd land use decisions as specified in
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ORS 197,712(2)(e) and, then fore, cannot be the basis of appeal under
ORS 197.610(1) and (2) or 1')7,835(4)."
5
The balance oftbe public facility ph rmingprocess, including'that which is reflected in
the MWMC 2004 faciliries Plan, is, ) part of the foundation of the land use planning and'
6
decision making process, appeals of whicb go to LUBA,
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II
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IV. Adoption of the MWMC 2( 04 Facilities Plan, as distinct from the adoption of
the 20-year project list, was a lanll use deCision subJect'to LUBA jurisdiction.
A. A public facility pia 1 must precede the approval of an SDC project
list.
14
ORS 223.309(1) sets the base framework for planning work to be done prior to
adoption oflist of projects that may :>e funded with "imprClvement fee revenues" - that is,
15
SDCs, .' ORS 223.309( I) provides: .
"Prior to the estabiishmcnt 0:- a system development charge by ordinance
.or resolution, a local govem rlent shall prepare a capital improvement
plan, public facilities plan, n .astcr plan or comparable plan that includes a
list of the capital improvemf ;'Its that the local government intends to fund,
in whole or in part, with rev( nucs from an improvement fee and the
estimated cost, timing and p.\TCentagc of costs eligible to be funded with
revenues from the improvenent fee for each improvement."
The text and context of this anguage state the obvious. PGE v, Bureau of Labor .
..
.,
and Industries, 317 Or 606, 610" 12,859 P2d 1143 (19"93). The text of the language
above requires a public facilities pI< n, or iis equivalent. The context for this language is
(he balance of the land use law frarr ework for public facility planning. Oregon land use
law requires that local governments formulate public facility plans. Public facility plans
, ' . "0
come in many shapes and sizes, but they meet the requirements of the Goal II Rule and ~
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are components'ofthe comprehensi 'e plans that alllocal governments must prepare. (.)
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government prepares its "309 list" (fprojects that it intends to fund in whole ?r in part ~
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Section 309(1) anticipates that the plblic facility plan be in'placebefore tbeJocal
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withSDC charges. The 309 list is n( ,t created out of whole cloth. Putting a project on
. (
2 the 3091ist means that the local gOV( rnment is electing to fund an otherwise authorized
3 capital project wholly or partially vi< SDC funding sources. Before the project can be put
4 on the 309 list, the local government must have done the planning work and made the
5, policy choices necessary to justify d, :veloping the project in the first place.2 That
6 planning work is the.public facilities plan, or whatever the jurisdiction ,wants to name it.
7 Here'the planning word was done in the MWMC 2004 Facilities Plan,
8 Petitioners believe that"LUR ~ can resolve this issue based on the text and context
9 of!he statute, We would add, howe' '~r, tbat the legislative ~istory ofORS 223.309 is in
I 0 acc~rd with petitioners' position - tI at the public facilities planning that precedes ,and
II authorizes the projects put on the 30 I list results in land use decisions. ORS 223.309 was
I,''',
Il originally enacted in 1989 part ofth,: first incarnation of the SDC statute. See 1989
13 Oregon Laws, Chapter 449, Section '6, a copy of which appears as Exhibit C hereto, It
14 shows that Chapter 449 was approvl d as HB 3224; House Bill 3224 was the subject of a
15 ,public hearing before the Senate Co nmittee on Government Operations and Elections on
16 May 26, 1989. An excerpt of the Minutes of that hearing are attached as Exhibit D
17 hereto. Charlie Hales, ofth'e Home Builders Associati~nofMetropolitan Portland,
.
18 explained to the Committee the ne\\! SDC 'legislation represented a consensus between
19 local government and the housing il dustry. Exhibit D at 2, line 299. BJ. Smith of the
20 ~t.League of Oregon Cities also suppoied the legislation. Exhibit D at 2, line 139. Senator
.,/...., , . .
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".
21 ';x~pringer, a member of the Committ, :e, raised the issue of the relationship between the
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Z.:::" ") It's baseball season; so a baseballml lliphor might be seasonally appropriate. You have to go
- . ~past tirst base before you go to second. The.309 list is second base; the p1Jblic facility plan is first
',-",base: LUBA is the first base umpire, a though it is not allowed t,o make calls at second base.
, Peiili!lner are looking for a tirst,base c; 11.
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309 list and facility planning that pr< :edes the final listing. The Minutes, Exhibit D at 3,
2
line 418, show the following discuss on between Senator Springer and Mr. Hales:
3
4
5
6
7
8
9
10
11
12
13
"SEN. SPRINGER: in sect! on 6 i am concerned about a plan, which is
defined to mean a capital iml rovement plan, a public facility plan, master
plan or comparable plan is n( t going to be subject to review under a
nonnalland use review proce ss. Why are we doing that'!
MR. HALES: It is our inter tion that the plan that outlines the
expenditure of SDC moriey a nd other capital improvement funds would be
an implementing ordinance f)r the local govemmentscomprehensive plan.
The comprensive plan adopt! on and modification would remain under
ORS 497 [sic 197]." ,
.
This characterization, offered at the 'big bang'~ of SDC legislation for Oregon, fits with
14
Petitioners' argument here about ho' ~ the statutes should be read. The facility pli!ffiling
15
that generates the list of future proje :ts, from which the 309 list is culled, remains firmly
\6
a part of land use decision making tl at is appealable toLUBA. To argue otherwise, that
17
is, to argue that by putting a capital project on tbe 309 list, all the planning that lead up to
18
the conclusion that the projcct is nel dedis exempt from rcview by LUBA as a land use
decision, would be to let the tail wal; the dog? It would negate the validity of IJoal 11
19
20
Rule, the goal and the statute that dr ,ve the rule, and the ~tatutes that define and require
21
comprehensive planning and refinellent planning.
I'
B. The MWMC 2004 } 7ciJities Plan is a land use decision because it
meets the statutory definit' on of a land use decision, because it is a
refinement plan, amendml nt to a rcfincment plan, or implementing
regulation, and because it '5 a public facility plan in the meaning of OAR
Chapter 660, Chapter 11.
A decision is a statutory lane. use decision if it meets the statutory test in ORS
..J;}:
/;[97.015(10), Failure to follow ,the I 'Tocedures for making a land use decision, and
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,'!refusing to apply 3 land use label to a decision is not determinative of whet her a decision
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,~js a land.use decision. See Resl-Ha 'en Memorial Park \I, City of Eugene, 39 Or LUBA
.,,;
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10
282, aJrd 175 Or App 419, 28 P3d 1 ~29 (2001)(remanding Eugene's open waterway
2 ordinance because it was a new land use regulation for which the post-acknowledgment
. ,
3 process ,,:as nOt followed); Home B~ ilders Assn. of Lane County v. City of Eugene, 41 Or
4 LUBA 453 (2002)(remanding Euge~ e's amendments to its tree cutting ordinance, which
5 was an existing land use regulation).LUBA needs to look at the'meritsofthedecision
. I
6 and the legal framework i~ which th : decision was made.
7 (1) The MWMC 2004 F, ~ciliries Plan is a public facility plan or an
8 amendment to a public faci lity plan in the meaning of the Goalll Rule, OAR
9 . Division 660,' Chapter] h .
10
11 ' The Goalll Rule defin~s wi at is a pubiicfacility plan. OAR 660"011.-0005(1)
12 says:
,
\J
14
15
16
17
18
J9
20
21
"Public Facilities Plan": A pllblic facility ,plan is a support document or
documents to a comprehensi Ie plan. The facility plan describes the water,
sewer and transportation facijlities which are to support the land uses
designated in the appropriatc acknowledged comprehensive plans within
an urban growth boundary c"ntaining a population greater than 2,500. .
Certain elements of the publ c facility plan also shall be adopted as part of
i th~ comprehensive plan, as s )ecifiedin OAR 660-1 1-045.
Petitioners believe that the]. 'WMC 2004 Facilities Plan is within the definition
22 above and at least parts of it were re ~uiTedby OAR 660-11-045 to be incorporated into
23 the comprehensive plan.
24 The Goal II Rule specifies t J.e contents of a public facilities plan, and these
25 contents are present in the MWMC; 004 Facilities Plan. OAR 660-011-0010(1) says:
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,"The public facility plan sha 1 contain the following items:
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(a) An inventory and genera assessment of the condition of all the
significant public facility sy: terns which support the land uses designated
, in the acknowledged compff hensive plan;
(b) A list of the significantp Jblic facilitY projects'which are to support the'
land uses designated in the a ;knowledged comprehensive plan, Public
. JUL"07-2004 15:27 FROM:
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1 facility project descriptions 0' specifications of these projects as
, 2 necessary;
3
4 (c) Rough cost estimates of e lch public facility project;
S
6 (d) A map or written descript on of each public facility project's general
7 location or service area;
8
9 (e) Policy statement(s) or urblngrowth management agreement
10 identifying the provider ofea:b public facility system. rfthere is more
11 than one provider with the at thority to provide the "system within the area
12 covered by the public facilit) plan, then the provider of each project shall
13 be designated;
14
15 (f) An estimate of when each facility project will be needed; and
\6
17 (g) A discussion of the pro vi lers existing funding mechanisms and the
18 ability of these and possible ,lew mechanisms to fund tbe development of
19 each public facility project o' system."
20
21 Each of the required elements ofa ")Ublic facility plan" is present in the decision that is
22 the subject of this appeal. An overv ew of the contents of each of the ten chapters in the
23 . plan appears at page 1-12 of the pial.. Taking the requirements of the Rule as set out
24 above:
25
(II)
The inventory and gf neral ,assessment of the existing Metro wastewater
26 system appears in Chapter 3. See in particular the assessment ofthe conveyance system
27 at 3-5 and the assessment of the trc2 tmen! system components in Table 3.2.4-1
28
(b)
The facility altemati'es to accommodate demand in the Metro area
"29 described and analy'zed in Chapter (. The recommended facility plan is laid out in
~ :
30 .Cpapter 7, including a ltStlng of pro. ects and costs. The recommended projects are
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31 ,:'~\Immarized in Table the "20-year PIroject List" at the'end of Chapter 7.
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(c)" The rough costs estil lates for each recommended project appear in
1:~
33' ,,~hapter 7.
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(d) The plan is replete wi 'h maps and graphics showing the location of
2 existing and planned MWMC faciliti es in the Metro Area in relation to zoning, land uses,
3 and just about any imaginable relev<at variables. There are lots of color glossies,
. '
4
(e)
MWMC provides wa.tewater treatment for the three Metro jurisdictions
5 under an IGA, the most recent incan ation of which is referenced in the MWMC2004
6 Facilities Plan. and is included'here 1S an exhibit.
7
(I)
The phasing and imp cmcntation schedule for the recommended plan is
8' described in detail in Chapter 7.7 at )agc 7-13 of the plan,
9
(g)
Chapter 8 in the plan jiscusses existing and potential funding mechanisms
10 10 implement the plan,
II The balance of the Goal II I.ule addresses in.a lot more detail what information is
12 supposed to be in a public facilities ,.llan. Petitioners believe th'ebulk of that detail
n appears in'the plan. Those are fin.e I ,oints that are not particularly relevant here. Here the,
14 question is the threshold question of whether the plan is a public facility plan in the
15 meaning of the Rule; notwhether th: plan is, completely up to snuff. This plan has all the
16 elements required by the Rule for a lUblic facility plan. It.is one. Under the rule parts of
17 the plan must be included in the con 'prehensive plan. That make's the plan a land use
18 decision.
19
'. 20
'f J 21
22
- 2)
,
2~~
25
(2) The MWMC 2004 F Jcilities Plan Is an application or a ,refinement of
'(;; Metro Plan or an alllendment or a refinement ,of the Public FaciLities
~~ and Services Plan. . "'C
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~. The Metro Plan is the basic ~iding land use policy docu~ent for the Metro ar;~
Ij)s a framework plan that is supple nented by more detailed refinement ~lans. ~
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R.-:~!inemcnt plans include functiona plans sueh as for sewers. Metro PLan (Feb 2002) ~
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1-5.
2 The Metro Plan discusses "P lblic Facilities and Services" at.III-G- L It
J recognizes that the MWMC provide: urban fa.cilitiesand services to the MeJro area. The
4 Metro Plan incorporates the Public )'acilities and Services Plan into the Metro Plan as a
5 refinement plan. Metro Plan at III-O-l. "As required by Goal II, the Public Facilities
6 and Services Plan identifies and shoil's the genera] location of the water, wastewater * *
7 · projects needed to serve land with n the urban growth boundary," ld, Based on this
8 language from the Metro Plan it wo lid appear that the MWMC 2004'Facilities Plan does
9 what the Metro Plan s'lys the PFSC is supposed to do for wastewater planning for the
10 Metro area,
II The most recent acknowledl ed version of the Public Facilities and Services Plan
12 (PFSP) was adopted in 2001 as part of periodic review. The new language adopted with
13 it was absorbed into the Part III-G (f the Metro Plan. This language acknowledges the
14 MWMC as the provider of Metro wlstewater services. But, what is absent from the
15 version of the PFSP adopted in 200 I is the MWMC element of the facility plan. For
16 example, the PFSP contains an asse;smenl of wastewater facilities in Eugene and
17 Springfield, See PFSP at 82-83, A ld it cpntains a list of planned wastewater projects for
18 Eugene and Springfield. See PFSP at 28, Tables 3 and 4, But the PFSP is silent about
19 the larger, MWMC wastewater faciities.There was a hole left in the 200] PFSP. That
,
20 T hole is neatly filled by the MWMC ,004 Facilities Plan: This plan should be treated for
~.(.: "
21 .;:twhat it is, an element of the PFSP f If the MWMC facilities.
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23 .~. LUBA should looks at the cmtents of the plan at issue here, see it for what it is,
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14
and elaboration of the Metro Plan fo' those large scale wastewater facilities that that
2 provided by the MWMC, find it to b: a land use decision, and determine that it has,
3 jurisdiction. That should resolve the matter on the ments,as, ifil in land use decision it
4 can't be defended because it was not processed as a land use decision.
5 Dated ihis 2nd dayofJuly, 2004.
6
7
8
9
10
II
12
l3
Respectfully submitted, . ·
ICE OF BILL KLOOS, PC'
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05/'20/04 IB1.' 15: 23 FAl 541 7. :363
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SI'FLll CITY MGRS OFFI (
RESOLUTION
NO. '''-19
A RESOLUTION OF THE CI'IY OF ~PRJNGFIELD COMMON COUNCIL APPROVING
THE MWMC 2004 FACILITIES PI.A~ AND ADOPTING THE 20-YEAR PROJECT LIST,
I
WHEREAS, on February 9, 1977, th ~ City of Springfield, the CIty of Eugene. and Lane
County (the Governing Bodies) ant" ed Inir:l an intergovernmental agreement (I(;lA)
Which established the Metropolitan \ >'astewater Management Commission (MWMC) as
an ORS Chapter 190 entity responsi )Ie to construct, ,operate, and maintain regional
wastewaterfaciliti,es; and, '
, 'C
WHEREAS, the regional wastewatel facilities, which Include the Eugene-Springfield
Water Pollution Control Facility 0/'JP1 ;F), the Biosolids Management Facility (BMF).
Blocycle Farm (BF), ,the Seasonal In :lus1rlaJ Waste Facility (SIWF), several regronal
wastewater pump stations and regio lal conveyance system, were designed and
constructed in the early and mld-19E Os with a projected design life of 20 years; and,
WHEREAS. the MWMC has un_derta (en several plans and studies. between 1996 and
2001 to determine short- and long-te rm regional wastewater facllltles Improvements
needed to provide adequate wastew !tertreatment capacity and meet all applicable
regulatory permit requirements, inor~ ~Ing but not limited to the MWMC Master Plan,
1997, the Biasolids Management PIc n, 1997, and the Wet Weather Flow Management
Plan, 2001 (VVWFMP); and.
WHEREAS, the MWMC enacted Rei :olutlon 02-05, authorizing the execution of a
contract wfth CH2M HILL, .Inc. for pre fessional services for an MINMC predesign study
and facilities plan ~pdate (Project no P60010); and
WHEREAS, the MWMC enacted Re: ,olutlon 03-11, amending the professlGnal.servlces .
contract with CH2M Hill, Inc. to incl Jde technical support for: (a) MWMC's system
development charges (SDC) method)logy update, and (b) evaluation of the best use of
MWMC's SIWF p'roperty for facilities planning purposes, and (e) MWMC's 2004
Faculties Plan adoption process; and., .
,...: .
WHEREAS, applicable adoptee! MWi lie goals. policies and management strategies,
~uch as those contained in the FY 0;-04 Regional Wastewater Program Budget, the
;I/)fINFMP and the Blosolids Manager:'lent Plan, along with the requirements of the .
:MWMC National Pollutant Discharge elimInation System (NPDES) permit issued by the ~
pragon Department of Environment" I Qual,ity (DEQ) in May, 2002, the "DEQ GUidelines>
Jprthe Preparation of Facilities Plans and EnvIronmental Reports for Community "m
~yvastewater Projects,. (1999) (DEQ I ;uidelines), and MWMC guidance provided the (.)
fo~ndation an~ direction for the ~W11IC 2004 Facllttles Plan (attached hereto Bnd. by a:Q)
,thiS reference Incorporated herein); and, .
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P. 20/36
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SPFLD CITY alGRS OFFIC.
RESoT-UnON 04-19
'NHEREAS. the MWMC 2004 Facilil,es Plan analyses show thai capital improVements (',
contained in the 2Q..Year ProJeot Llsi Included in the MWMC 2004 Facilities Plan need
to be Implemented in accordance wi h the 20-Year Project Ust Schedule In order to
achIeve the regulatory compliance a ld capacity obJectlv~ stated in the MWMC2004 '
FaellItles Plan; and, , '..
'NHEREAS, theMWMC 2004 FacllHes Plan and 20-Year Project List have been
prepared, in part, to provide the pubic facilities plan and list of capital improv.ements
tnat srerequired by ORS 223.309(1: priorto:ttie establishment of a system
development charge: and .
WHEREAS public meetings and MIJ\ Me work se$Sions were oonducte.tto p~vlde,
guidance on preparation ofthe draftlMWMC 2004 Facilities !='Ian on November 24,
2003, January 8, .2004, and March 3 , 2004; and
WHEREAS, pUblic hearings were nt ticed and cori~ucted by the MWMC to !,!ccept and
consider public comment on the dral ~ MINMC 2004 Facilities Plan on April 22, 2004 and
May 8, 2004; and . . .,
WHEREAS, on May 6, 2004 MWMC enacted Resolution 04-04 adopting the MWMC
2004 Facilities' Plan and Zo:.Vear Prt ject list; and '
WH~R~S, the Sprin'gfiel~ City cOu lcll conducted apubnc hearing on the M\NMC (..
2204 Facirlties Plan and the 2Q..Yelill Project List on MCIY 17, 2004; and ,
\lVHEREAS,. the SprIngfield City Cou leil has reviewed al'ld considered testimony from
the public: and discussed the MINMC 2004 Facilities PItt!" and20.Year Project Us!.
NOW, Tl:iEREFORE, BE IT RESOL' 'ED by thet Common Council t1fthe City of
Springfield as follows: The Ccmmor Council of the City of Springfield approvestJW
MlNMC 2004 Facllities. Plan and her, !by adopts the 20- Year ProJeot1.1st.. " . '.. :
This Resolution, shall take effect upo I adoption ,by the City Council and approval by'the
. Mayor. '
: ~
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Adopted by the Common Council aI' he City of Springfield the ~ day ot May, 2004....,.:..
by a VOCmfOl: llI1dpas ' . ' '"'"
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RES T -A TED AND A MEN 0 E 0 A G R E e MEN T
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METROPOLITAN WASTE'~ATER MANAGEMENT COMMISSION /
THIS AGREEMENT was entered into the 9th day of February, 1977, by the City of
SPRINGFIELD and the City of EUGE ~E. municIpal corporations of the State of
Oregon, and LANE COUNTY, a politi :al subdivision of the State of Oregon. herein
referred to as Governing Bodies. Th l Agreement was previously amended January 4,
, 978, February 16, 1982 and July 19 1991 which amendments have been
incorporated herein. '
R I: C I TAL S : ,
L The Governing Bodies have adopted the plan;of land use development known as
the 1990 General Plan and have desi ~nated in the plan a projected urban seNiee
area which includes the two cities an! 'certain unincorporated a.reas surrounding the
cities and which lies entirely within th l county.,
2. The projected urban service area as now or hereafter designated, Is a
metropolitan area because of its urbe" character and the close intefrelationship
between the two cities and all parts c I the area.
3, The urban character of the area r lakes high quality sewage treatment necessary.
4. Federal funding policy requires sqwage treatment and disposal in the projected
urban service area to be provided on a unified, metropolitan basis.
5. In order to plan for sewerage on 1 unified basis in the projected urqan seNice
area, the cities and the countY enterell Into an agreement January 8, 1974,
establishing the Metropolitan Sewer A :1visory Commission.
6. The Eugene-Springfield Metropoli an Area Waste Treatment Management
Alternatives plan, which has been pre ,ared for the Lane Council of Governments
under Environmental Protection Act S ~ction 208 provisions, shall serve as a basis for
developing a unified sewerage systen within the projected urban service area.
7. The cities have the authority undt r their charters to provide for all aspects of
sewerage, are providing it presently fe r parties within ,their'respeClive boundaries, and
are 9.0ncerned that it be provided ade ~uately in their environs so as to prevent health
hazards. " '
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,8~'i The county, while not presently pI :>vlding sewemge, has the authority under its
. c~~rter to do so, has extel:\Sive duties under state Jaws regarding public sanitation,
;', -. .a~cf is concerned, about hi:1zards to plIblic health that arise ffom inadequate sewerage
.' L-iii~the area ,
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(
a. Each Governing Body shall 81 ,point to the Commission one (1) elected official
of that Governing Body.
b. The City Council of Eugene, ! hall appoint two (2) additional members to the
Commission. The City Council of Sp ingfield and the Lane County Commissioners
shall each appoint one additional m' -mber to the Commission,.
c. Members of the Commission ,hall serve for the term set by the Commission in
its bylaws and at the pleasure of the Governing Body appointing that member. . .
d. A quorum of the COmmission shall be five (5) members providing at least one
member appointed by each Govemi 19 Body is present. Decisions of the Commission
shall require a majority vote of the eiltire membership unless otherwise provided in
this Agreement. .
5. Bvlaws:. The Commission shall c dopt a set of bylaws governing its conduct. The
bylaws shall:
a. Establi'sh times and places of meetings.
b. Establish a central office for tlie Commission which shall have a mailing
address, a .telephone and a complel ~ set of recofds of the Commission, be the main
place where information about the C :lmmission can be obtained, and be under the
charge of the design.ated agent of tt e Commlsslon.._ .
c. Prescribe officers of the Coml nission, including president and other officers to
be elected by the Commission from among its members. The president shall see that .
meetings of the Commission are cOllducted in accofd'ance with the bylaws.
6. Meetinas: Meetings of the Comi ;ission shall be held regularly at times and.
places designated in the bylaws. .
7. Functions of Govemino Bodies: The Governing Bodies shall continue,to p,erform
, the following functions: . , .
a. Billing and collection of char9 es.
b. Provide local sewage collecth.n (sewers beyond those specified in Appendix
"A".) ,
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fJij d. Establish local annexation an I growth policies.
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, ;, ..~~~: Obliaations of Govemino Bodie!: The ~oveming Bodies shall assume the ,
~f0110wing obligations: .
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a. Forward to the Commission its share of revenues as specified in the adopted
financing plan,
b. Adopt, as a minimum, the, Cor.tmission's standards 10r construction and
maintenance of sewage' collection sy! tems and for pretreatment requirements for
industrial and other 'waste~. .
.
c. Adopt user charges required b { 40 CFR 35.929 in. an amount not less than
adopted by the Commission, .
d. Provide the Commission with en annual report of revenues and expenses
related to regional sewerage facilities. .".
e, Establish service area boundaljies and provide for:,adjustment thereto as
necessary to en'su~e that service is pr Jvided only to areas within the taxing district; to
users cUlTently being served or to wh)m contractual service commitments have been
made who are outside the taxing dist ict; and to any other areas outside the taxing
district to which service may be exler ded In conformity with Fundamental Principle B "
Growth Management in the Urban Se vice Area (Pages; II-B-1 through 11-8-9) and
Public Utilities Services and Facilities, Element G (Pages; III-G-l through III-G-?) of the
Metropolitan Area General Plan, as ar nended. .
(
9. Caoacitv: The initial capacity 10r I he sewage treatment plant shall be based on
the 'established population equivalent estimates for the entire metropolitan area, When
the sewage loading into the treatmen: plant becomes 85% of the initial design '
capacity the Commission shall institu e a program to expand and/or upgrade the
treatment system beyond the initial d ~sign capacity.,
10, Grants and Loans: The Commiss on shall apply for grants and loans for funds to
achieve the objectives of this Agreem 3nt and to carry out'an adequate program of .
sewerage for the projected urban ser lice area.' "
"
11. Contrac:t~: The COmmission may enter into contracts fOf technical assistance and
for construction of facilities to achieVE the objectives .of this Agreement and to provide' '
necessary sewerage hi the area.
12. Hearin9s; The Commission may :onduct hearings on!complaints from any rate
payer who is aggrieved by rules of th 3 CommIssion, by sewerage rules, regulation's,
policies, or practices of the Govemln!J Bodies, or by any aspect of the sewerage
operations of the GovernIng Bodies. . Rate payer means any person or entity
..r~sponsible for the payment of any cllarge or fee imp9sed on behalf of the
~Qommi~ion. The Commission shall provide in its bylaws for advance notice and for
~?nduct of the hearings. After the helring, the Commission shall submit toths "
, :Govemlng Bodies and to the compla r'tant its findings and recommendations
l;~gardlng the com'plaint ,. "
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63% by Eugene, 24% by Springfield. and 13% by Lane County, subject to budgetary
limitations of the Governing Bodies.
14. Budaet: The Commission shall ~ repare an annual and 'necessary supplemental
budgets in'accordance wit~ itsbylav 'so The Commission may make expenditures or
incur obligations only wjthin limits S6 I by the budget. The Commission budgets shall
not be effective until ratified by the <; overning Bodies.' '
15. ,Recomm~ndations: Upon recorrmendation of the Commission, the Governing
Bodies shall:
a. Establish sewerage policies.
b. Provide the personnel and se vices necessary fOf the operation and
maintenance of the regional sewera~ e system at the expense of the Commis~ion.
c. Adopt a system of sewer usel charges and connection fees. In the case of
user charges required by 40 CFR 35 929, the chargesadoptedshaJl be not. less than
those recommended by the Commi~ sion. ' , '
d. Levy and collect the charges severally.
e. Apportion funds that the GOVI :ming Bodies receive for sewerage in accordance
, With the Commission'sadopted,finatPcial'plan.' 0,
f. Provide funds for capital impfc 'vementsto the sewerage system' in accordance
with the Cdmmission's adopted finamcial plan. '
16. Modification and Terminatjon: Tl,is Agreement shallcontinue until mOdifi,ed by
unanimous consent of the Govemint, Bodies. A Governing Boay may terminate its
participation in the Agreement by 3C days written notice at any time prior to bond
authorization. Thereafter, one year's 9.dvance notice, of tE!rmlnationmust be prOVided
to the other, Governing Bodies. If thE parties 'are unable to agree on the division of
assets and liabilities betwe.en' the pa ties. the dispute shall I)e referred to a board of
arbitration for its decision concemlnm the division. The Board shall'have five .
members. a judge of the Circuit CoL rt of Lane County to be selected by the chief ,
judge of the Court, a representative )ftheState Department of Enviroru.fIsntal Quality
to be selected by the director of the department, and one fepreSentalive who I'las 'not
served on"the Commission from each goveming body to be sele,cted by the'
respective governing' bodies. '.
r 'U
,~..17. Reconsideration and Mediatlqn. Ifon'e or more of the Governing Bodies obJectS' g?
~):.to any action proposed or taken by he Commission, including any action taken . ~(j)
T#ursuant to Appendix B, the Govern ng Body objecting to the ~ctlo~;sh~1 request that (,)
;lhe Commission reconsider such ac Ion by derlVering a written request therefor to the ~
,\:~@ommission. The Commission shal put such action on its agenda for '
r~nsideration at any Commission neeting withIn 45 days after receipt of the request ,~
~~r reconsideration. Except as proVi:led below, if a Governing Body objects to the 0
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Commission's action after reconsidel ation by the Commission, the Goveming Body
may refer the matter to the Metropoli an ~olicy Committee (MPC) for mediation In
accordance :with any procedure ado~ ted by MPC. . If a resolution of the matter has
noi been reached previously, MPC sllall, within 45 days after referral of the matter to
MPC, make a written recommendatio n for resolution of the matter to the Governing
Bodies for thejr consideration. MPC' l recommendation shall be advisory only and
shall not be binding on the Governln, J Bodies, Except as provided below, the
CommissiOA's action shall take effect only after all Governing Bodies are in
agreement. If the action objected to is the Co~mlssion's adoption of user rates
required by 40 CFR 35.929, the reco!""Se of an objecting Goveming Body is limited to
submitting the matter to the Commls:iion for reconsideration. The Commission's
decision on reconsideration shall be inal. '
IN WITNESS WHEREOF, the unc ersigned, by authority of their fespective
Governing Bodies have executed the within Agreement.
DATE:
Lj /1/ 5o'A'
CIlY OF SPRINGFIELD, a Municipal
Corporation of the State of Oregon
By ~l;lt~l,(A- t~.0.'-"</'
TIt/e: City "'anager ~ J
(
DATE:
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CIlY OF EUGENE, a Municipal
Corprratio~ ~f the :t~te of Oregon .
cff ~i~ C;u.-
" Title: City Mananpr
DATE:
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LANE COUNTY, A Political SubdiviSion
of the State of Oregon
v..{/.~~~ 4' (?j~
litle: County Administrator
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BEFORE THE LIJID USE BOARD OF APPEALS
OF TH)~ STATE OF OREGON
HOME BUILDERS ASSOCIATIOl'I OF
LANE COUNTY, and HOME BUll DERS
CONSTRUCTION COMPANY,
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PETITIONERS'RESPONSE
TO MOTION TO DISMISS
Petitioners,
v.
LUBA No. 2004-090
(MWMC 2004 Facilities Plan
Springfield Res. 04~ 19)
CITY OF SPRINGFIELD,
Respondent,
and
THE METROPOLITAN WASTEWATER
MANAGEMENT COMMISSION.
Intervenor-Responde It.
25
Petitioners (UHomeBuilders ') file this memorandum in support ofLUBA
26
jurisdiction and in opposition to Re! pondents' Motion to Dismiss. Respondents asked
27
LUBA to delay lhe filing of the rec( rd in this matter. Then they filed their motion
28
supported by nothing but the two-prge resolution adopting theplan thai is at issue.
29
LUBA needs at least the most basic documents related to the plan to make the
30
jurisdictional call raised by the moti )n. We append those documents here. Under
31
separatc copy we are forwarding to ~UBAa copy of the adopted plan that is at issue'
32 ,t~ here: the MWMC 2004 Faciliries Pan.
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Introduction.
Petitioners believe LUBA his jurisdiction to review the city's approval ofthe
35,';;' MWMC 2004 Facilities PLan, whic1 is the major part of what the City did in Res. No. 04-
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19. Although the City erroneously n Ued to handle the adoption ,as .a "land .use decision,"
the plan is correctly 9~aracterized as j refinement plan or an amendmenrto a refiIiement
plan of the Eugene SpringfieLd MefrLp61itaii Area"Generi:i[ Plan ("Metro Plan ") or as an
implementing regulation of the Metr ,PLan. Picking the correct label for thc plan might
be vexing, since the City has refused to help by disavowing its land use pedigree. But the
correct label is immaterial if LUBA . ~an corrcctly characterize the plan as elaborating
upon or implementing the Metro PlQ,. To make the characterization, LUBA needs to
examine the framework of state law 'or the plan, in particular the Goal II Rule,and the
Metro Plan and its related refinemcr t plans, in particular the Public Facilities and
Services Plan ("PFSP "). If the city s adpptiol] of any part of the, plan is a land use
decision, then jurisdiction is proper; ,t tUBA, and remand will be required on the merits,
because the eity failed to adopt the e ~actment through land use decision making
procedures, which would be those a) 'plicablc to post-acknowledgment plan amendments,
See ORS 197.610-197.625; see Resl Haven Memorial Porb. City ofEugene,39 Or
LUBA 282, aff'd 17S Or App 419," 8 P3d 1229 (2001)(remanding Eugene's open
watcrway ordinance because it was, I new land use regulation for which the post-
acknowledgment process was not fo ilowed); Home Builders Assn. of Lane County v. Ciry
ojEugene, 41 Or LUBA 453.(2002) :remanding Eugene's amendments to its tree cutting
ordinance, which was an existing lallJd use regulation).
,Home Builders agrees that" I plan or list adopted pursuant to ORS 223.309 * * * ~
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is not a land use decision." That is 'vhat ORS 223.314 says. However, the exemption "~
(.)
from land use decision making that s carved out by ORS 223.314 is very narrow. It is ~
limited to the list of projects or elen ents of the plan that describe the capital projects that 2
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may be SDC funded, as well as the e itimated costs and timing of those projects. The,text
2 and context of the statutory scheme make it clear that public facility planning in general,
3 including its policy making element! about what projects are needed for a planning
4 period, remains within the scope of Illld use decision making. ,This is evident from the
5 statutory mandate for public facility llans in ORSI97.172; Statewide Planning Goal I J,
6 and the Goal 11 Rule' which implem ,nts both,: It is also clear from legislative history of
7 ORS 273.314 that the general facili~' planning process thafprecedes 'the SDC project list
s is to remain a part of the la1)d use dc :ision' making pr09css.
9 The title of the decision challenged here correctly recognizes two discrete
10 clements that the City has rolled intI a single: (1) "Approving the MWMC2004
11 Facilities Plan;" and (2) "Adopting lJe 20-yearproject list." 'Part (2) is likely exempt
12 from LUBA review under the excep:ion stated in ORS 223.314. ,Part (I) is the product of
13 a traditional public facility planning exercise for wastewater facilities, which is a land use,
14 decision that LUBA has jurisdictior,to review, as explained more fully below.
15 LUBA should deny the moll :into dismiss ,because ,it has jurisdiction to review
16 partofthe decisioIi - indeed most o' the decision. Because the City has opted to fold th~
17 SDC project list work into a single, ,ocument with its public facility planning work,
18 LUBA will have to draw the ORS 2B,314jurisdictionallinein its review,on the merits.
19 Petitioners doubt there will be mucl ' argument about where to draw the line. . But that is a
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20 1,'Question that can be addressed after briefing the merits based on ,the full record:
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21 t'5II. Background Facts.
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'22 ~L The City draws its summary of relevant facts from the two-pages of Resolution
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have not been provided to LUBA by the City. Petitioners and LUBA have no way to, )
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however, asserts facts with reference to original documents. The original dOCuments
2
3
verify the f;lcts asserted. Petitioners; therefore, object to the eity's summary of the facts,
I
11\
4 and offer the following, which is bas :d on documents provided here.
5 The decision challenged here is Springfield Resolution No. 04-19, a copy of
6 which is attached as Exhibit A hereto '. The Resolution approved the MWMC 2004
7 Fac'iliries Plan. and it adopted the 2( -year project list contained in the plan. A copy of
8 the plan, which is hefty, has been fo) warded separately to LUBA.
9 TheMWMC 2004 Facilities DI~~ 'initially was a product of the Metropolitan '
10 Wastewater Management Commissi)tl ("MWMC"). The MWMC was created by the
11 three Metro jurisdictions by interg01 emmental agreement ("IGA") under ORS,Chapter
12 190, A copy of the Restated and Ar.lended rGA (1998) appears as ExhibitBhereto. The,
13 MWMC fom13l1y adopted the MWk'C 2004 Facilities Plan, including the 20-year project
14 list, by Resolution 04-04 on May 6, 2004, The plan was then forwarded to each of the
15 three Metro jurisdictions (Springfiel j, Eugene and Lane County) for review and'
16 approval. Springfield was the first' fthe three jurisdictions to approve the plan.
17 Springtield's approval is thesubjecl of this appeal.
18 The overall purpose of the Iv WMC 20Q4Facilities {'Ian is stated in the Executive
19 Summary at ES-l :
20
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"This faCilities Plan, prcpar I,d for the Metropolitan Wastewater
Management Commission (1 ,1WMC), is the result of a comprehensive
evaluation of the regional w lstewatcr treatment facilities serving the
Eugene-Springfield metropclitan area [Eugene-Springfield Water
Pollution Control Facility (\ rSPCF), major pump stations and
interceptors, the Biosolids:r-. :anagement Facility (BMF), the Biocycie
Fann, and the Seasonallndt strialWilste F~cility (SIWF)). * * * *
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m. Aspects of facility planninr and financing that are excluded from the scope of
"land use decisions" reviewable b r LUBA are few and narrow. They include
"project timing and financing prt visions of public facility plans" (ORS ,
197.712(2)(e); OAR 660-011-00058)) and the "plan or list" of projects to be funded
via SDCs, as well as the cost and f .ming of the SDC projects (ORS 223.309, 223.314).
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"This newly developed MWl lie Facilities Plan is intended to identify
facility enhancements and ex )ansions that are needed to serve the
community's wastewater neds through 2025."
The more specific "goals an( objectives" of the MWMC 2004 Facilities Plan
8
project are stated at page 1-9 to 10 0 f the plan:
"The goals of this Facilities j'lan are to build on the previous planning
efforts that have been ongoir g since 1969 in order to develop a practical
and cost-effective set of cap; :al improvements necessary to meet
community needs and mii1.irr urn environmental standards for all MWMC
facilities for the next 20 YCaJ l. The Facilities Plan presents comprehensive
and defensible identification and evaluation ofavailabJe capital
improvement strategy altem;.tives, and recommcndations that:
. Accommodate projected growth'in Eugene-Springfield through 2025
. Provide thc efficiency of solving multiple dry and wet weather issues
· ,Maximize the WPCF's e dsting investment in assets by incorporating
performance and capacit ' improving retrofits where possible instead
of new facilities
· Meet minimum environNental standards 'for the Willamette River
. Provide regulatory certai lty and protection from liabilities associated
with noncompliance wit!, requirements
· Mitigate negative neight orhood impacts such as odors and visual
impacts of the treatment facilities"
The requirement for local gc vemmcnt public facilities plarming is found in
Statewide Plarming Goal II. It is also found in the Goal 11 Rule, OAR Chapter 660,
, ,
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Division II. It is also indirectly bal ed in ORS 197.7i2, which sets parameters for the
5
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Goal II Rule.
2
Let's start with the statute, W lich gives direction to the LCDC.' ORS 197.712
3
provides, in relevant part: (emphasis ad.ded)
"(2) By the adoption of new ~oals or rules, or the application,
interpretation or amendment )f existing goals or rules, the Land
Conservation and developmc at' Commission shall implement all of the
following:
u..,,, * $:
"(e) A city or county shall d( velop and adopt a public facility plan for
areas within an urban growll boundary containing a population greater
than 2,500 persons. The pub; ic facility plan shall include rough cost
estimates for public projects nceded to provide sewer, water and
transportation for the land U1 :s contemplated in the comprehensive plan
and land use regulations. Pn ieclliming andfinancing provisions of publiC
facility plans shall not be co, !sidered land use,decisions."
LCDC's Goal 11 Rule reflec:s the "timing and financing" exception from the
20
statute verbatim. OAR 660-011-0015(8) says:
21
22,
23
24
25
"'Land Use Decisions': In al cordance with ORS 197.712(2)(e), project
timing and financing provisi los of public facility plans shall not be
considered land use decisior~ as specified under ORS 197.015(10)."
OAR 660-011-0025(3) elaborates 01 the "timing" part of the exception. Although the
26
timing of public facilities is to be, p, rt of the plan, the rulc says:
"Anticipatcd timing provisi( ns for public facilities are not considered land
usc decisions as specified in ORS 197.712(2)(e), and, therefore, cannot be
the basis of appeal under Of,S 197.610(1) and (2) or 197.835(4)."
27
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29
30
31
OAR 660-011-0035(2) elaborates 0,,\ the "financing': part ofthe exception. Although the
financing of public facilities is to be part of the plan, the rule says:
32
I,
33,~" "Financing provisions are n( t considered land. use decisions as specified in
.d~
~' I On its' face, ORS 197.712 is a directJ ve to the LCDC, thus does not apply directly. PorlofSI.
~4 Helens v. Land Conservation and E"evelopment Com'n, 165 Or App 487, 996 P2d 1014
~~. (2000).
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ORS 197.712(2)(e) and, then fore, cannot be the baSis of appeal under
ORS 197.610(1) and (2) or 1 ;7.835(4)."
The balance of the public facility pI, l1Ilingprocess, including that which is reflected in
5
the MWMC 2004 Facilities Plan. is ,I part of the foundation of the land use planning and
6
decision making process, appeals of which go to LUBA.
7
8
9
10
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IV. Adoption of the MWMC 2( 04 Facilities Plan, as distinct from the adoption of
the 20.year project list, was a lanl J use decision subject to LUBA jurisdiction, .
A. A public facility pia I must precede the ap'proval of an SDC project
list.
.!
ORS 223.309( I) sets the bas c framework for planning work to be done prior to
14
adoption oflist of projects that may )e funded with "improvement fee revenues" - that is,
15
SDCs, ORS 223.309(1) provides:
16
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"
"Prior to the establishment 0: a system development charge by ordinance
or resolution, a local governr r1ent shaH prepare a capital improvement
plan, public facilities plan, n ,aster plan or comparable plan that includes a
list of the capital improveme tits that the local government intends to fund,
in whole or in part, with reVl nues from an improvement fee and the
estimated cost, (j,ming and p,rcentage of cnsts eligible to be funded with
revenues from the improverr .::nt fee for each improvement."
The text and context of this; anguage state the obvious. PGE v. Bureau of Labor
25
and Industries. 317 Or 606, 610-]2, 859P2d 1143 (1993). The text of the language
26
above requires a public facilities pia n, or its equivalent. The context for this language is
27
[he balance of the land use law frarr.ework for public facility planning. Oregon land use
28
law requires that local governments fonnulate public. facility plans. Public facility plans ,
. . '"
come in many shapes and sizes, but they meet the requirements of the Goal] I Rule and-g
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government prepares its "309 list" (f projects ,that it intends to fund in whole or in part rci
o
are components of the comprehensi 'e plans thaI all local governments must prepare.
Section 309(1) anticipates that the r ublic facility plan be in place before tbe local
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capital project wholly or partially vi< SDC funding sources. Before the project can be pu: /f1); p.
on the 309 list, the local government must have done the planning work and made the )1;1/1 !.,
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TO:541 7361021
with SDC charges. The 309 list is n( t created out of whole cloth. Putting a project on
2
3
4
5
policy choiccs necessary to justify d, :veloping the project in the first place: That
6
planning work is the public facilities plan, or whatever the jurisdiction wants to name it.
7
Here the planning word was done in the MWMC 2004 Facilities Plan,
8
Pctitioners believe that LUB. ~ can resolve this issue based on the text and context
9 ,of the statute. We would add, howe 'er, that the legislative history ofORS 223.309 is in
10 accord with petitioners' position - tl at the public facilities planning that precedes and
II authorizes the projects.put on the 30) list results in land use decisions. ORS 223.309 was
12 originally enacted in 1989 part ofth,: first incarnation ofthe SDC statute. See 1989
13 Oregon Laws, Chapter 449, Scction6, a copy of which appears as Exhibit C hereto. It
14 shows that Chapter 449 was approv( d asHB 3224. House Bill 3224 was the subject ofa
15 public hcaring before the Senate Co nmittee on Government Operations and Elections on
16 May 26,1989. An excerpt of the Minutes of that hearing are attached as Exhibit D
17 hereto: Charlie Hales, of the Home Builders Association ofMetropolilan Portland,
18 explained to the Committee the new SDC legislation represented a consensus between
19 local government and the housing iT dustry. Exhibit D at 2, line 299. BJ. Smith of the
,'.,
20 ,~~eague of Oregon Cities also suppo ,ted the legislation. Exhibit D at 2, line 139. Senator
;, )
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21 ~pringer, a member of the Committ, :e, raised the issue of the rclationship between the
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:;.'- It's baseball season, so a baseball mllaphor might be seasonally appropriate. You have to go '
..past first base before you go to second. The 309 list is second base; the public facility plan is first
;.base: LUBA is the first base umpire, a though it is not allowed to make calls at second base.
lShl;lioner are looking for a first-base co n. "
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309 list and facility planning.that PC( cedes ,the final listing. The Minutes, Exhibit D at 3,
2 line 418, show the following discuss ,on between Senator Springer and Mr. Hales:
3 "SEN. SPRINGER: in secr..on 6 I am concerned about a plan, which is
4 defined to mean a capital iml rovement plan, a public facility plan, master
5 plan or comparable plan is nl ,t gojng.to be subject to review under a
6 nonnalland use review proc' $S, Why are we doing that'1
7 MR. HALES: It is our inter tion that the plan that outl(nes the
8 expenditure ofSDC money :nd other capital improvement funds would be
9 an implementing ordinance t)r the local govemments comprehensive. plan.
10 The comprensive plan adopt' on and modification would remain under
11 ORS 497 [sic 197]."
12
13 This characterization, offered at the' 'big bang'; of SDC legislation for Oregon, fits with
;1
14 Petitioners' argument hcrc about ho v the statutes should be read. The facility planning
15 that generates the list of future proje:ts, from which the 309 list is culled, remains firnlly
16 a part of land use decision making t1:at is appeal~ble to LUBA. To arguc otherwise, that
17 is, 10 argue that by putting a capital lroject on the 309 list, all the planning that lead up to
18 the conclusion that the project is net ded is exempt from review.by LuBA as a land use
19 decision, would be to iet the tail ~a;; the dog.) It would negate the validity of Goal II
20 Rule, the goal and the statute that dJ :vc the rule, and the statutes that define and require
, . ~
21 comprehensive planning and refinellent planning.
22
23
24
25
26
27
28
B. The MWMC 2004 } lcilities Plan is a land use decision because it
meets the statutory definit on of a land use decision, because it is a
refinement plan, amendmlnt to a refinement plan, or Implementing
regulation, and because it ,'~ n public facility plan in the meaning of OAR
Chapter 660. Chapter 11.
, A decision is a statutory lan, I use decision if it meets the statl!tory test in ORS
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,29 5:197.015(J 0), Failure to follow the I'rocedures for making,'a land use decision, and
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! 30 ,{crefusing to apply a land use label to a decision is not detenninative of whether a decision
''''.''
"31 :::'is a land use decision. See Rest-Ha 'en Memorial.Park v. City of Eugene, 39 Or LUBA
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282, ajj"d 175 Or App 419, 28 P3d 1129 (2001)(remanding Eugene's open waterway
2 ordinance ,because it was a new land use regulation for which the post-acknowledgment
3 process was not followed); Home Bkilders Assn, of Lane County v. City of Eugene, 41 Or
4 LUBA 453 (2002)(rcmanding Euger e'samendmentsto its tree cutting, ordinance, which
5 was an existing land use regulation). LUBA neecls to, look at the merits of the decision
6 and the legal ,framework in which th ; decision was made.
7 (1) The MWMC 2004 Fdcilities Plan Is a public facility plan or an
8 amendment to a public faci lity plan in the meaning of the Goal 11 Rule, OAR
9 DiviSion 660, Chapter ll. ' " ,:,
10
11 The Goal 11 Rulc defines wi at is a public facility plan. OAR 660-0 11 ~0005( I)
12 says:
13 "Public Facilities Plan": A p11blicfacility plan is a support document or
14 documents to a comprehensi 'e plan. The facility plan describes the water,
15 sewennd transportation facWties which are to support the land uses
16 designated in the appropriate acknowledged cvn'l',,,hensive plans within ,
17 an urban grOWth boundary cl,ntaining a population greaterthan 2,500.
18 Certain elements of the publ c facility plan also shall be adopted as part of
19 the ~omprehensive plan, as s~ecified in OAR 660-11-045. '
20
2 I Petitioners believe that the}. 'WMC 2004 Facilities Plan is within the definition
22 above and at least parts of it were re ~uired by OAR 660-1 )-045 to be incorporated into
23 the,comprehensivc plan.
24 Tbe Goal II Rule specifies, 11e contents of a public facilities plan, and these
25 contents are present in the MWMC; 004 Facilities Plan. OAR 660-011-0010(1) says:
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(b) A list of the significant j: ~blic facility projects which are to support the
land uses designated in the a ;knowledged comprehensive plan, Public '
"The public facility plan sha II contain the following items:
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(a) An inventory and genera assessment'ofthe condition of all the
significant public facility sy: tems which support the land uses designated
in the acknowledged c'ompn hensive plan;
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11
I facility project descriptions o' specitications of these projects as
2 necessary;
3
4 (c) Rough cost estimates of e lch public facility project;
5
6 (d) A map or written descripl ion of each public faciiity project's general
7 location or service \\rea;
8
9 (e) Policy statement(s) or urtan growth management agreement
10 identifying the providerof el cb public facility system. If there is more
11 than one provider with the allthority to provide the system within the area
12 covered by the public faeiJi~. plan, then the provider of each project shall
13 be designated;
14
J5 (I) An cstimate of when eac1 I facility project will be needed; and
16
17 (g) A discussion of the provi ier's existing funding mechanisms and the
18 ability of these and possible /lew mechanisms to fund the development of
19 each public facility project 0 ' system,"
20
21 Each of the required elements ofa "mblic facility plan" is present in the decision that is
22 the subject of this appeaL An overY ew of the contents of each of the ten chapters in the
23 plan appears at pagel-i2 of the phil,. Taking the requirements of the Rule as set out
24 abovc:
25
(a)
The inventory and g( neralassessment of the existing Metro wastewater
26 system app~ars in Chapter 3, See in particular the assessment of the conveyance system
27 at 3.5 and the assessment of the trea tmen! system components in Table 3.2.4-1
2&
(b)
The facility altemati1 es to accommodate demand in the Metro area
'29 described and analyzed in Chapter (. The recommended facility plan is laid out in
30 . Chapter 7; including a listing of pro. ects and costs: The r~commended projects are
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31'~'surrimari7;ed in Table the "20-year Plrojcct List" at the end of Chapter 7.
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12
(d) The plan is replete wi:h maps and graphics showing the location of
2 existing and planned MWMC facilit es in the Metro Area in relation to zoning, land uses,
3 and just about any imaginable relev.11t variables. There are lots of color glossies.
4
(e)
MWMC provides wa'tewater treatment for the three Metro jurisdictions
5 under an IGA, the most recentincanation of whiCh is'referenced in the MWMC 2004
6 Facilities Plan, and is included here as an exhibit.
7
(I)
The phasing and imp cmentation schedule for the recommended plan is
8 described in detail in Chapter 7.7 at )age 7-13 of the plan,
9
(g)
ChapterS in the plan discusses existing and 'potential funding mechanisms
\0 to implement the plan.
II The balance'ofthe Goal I I I.ule addresses in a lot more detail what information is
12 supposed to be in a public facilities flan. Petitioilers believe 'the bulk of that detail
13 appears in the plan. Those are fine Joints that are not particularly relevant here. Here the
14 question is the threshold question 01 whcther the plan is a public facility plan i,n the
15 meaning of the Rule, not whether to: plan is completely up to snuff. This plan hasall the
16 clements required by the Rule fora 'lJublic facility plan. It is one. Under the rule parts of
17 the plan must be included in the con iprehensive plan. That makes the plan a land use
18 decision.
19 (2) The MWMC 2004 F lciliti~. Plan Is an application or a'refinl\ment of
20 M erio Plan or an all.endment or a refinement of the Public Facilities
.~ .' . imd Services Plan.
21 -~,
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-' It'il' a framework plan that is supple nented by more detailed refinement plans. " Q) to-
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R~finement plans include functiona plans such as for sewers. Metro PLan (Feb 2002) aL$ ::::>
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1-5.
2 The Metro Plan discusses "P Iblic Facilities and Services" at.III-G-I. It
, '
3 recognizes that the MWMC provide: urban facilities and services to the Metro area. The
4 Metro Plan incorporates thc Public ; ~acilities and Services,Plan into the Metro Plan as a
5 refinement plan. Metro Plan atIII.(J-l. "As required by Goal II, the Public Facilities
6 and Services Plan identifies and sho;>,ls the general location of the water, wastewater * *
7 · projects needed to serve land w,ith n the urban growth boundary." Jd. Based on this
8 language from the Metro Plan it wo lid appear that the MWMC 2004 Facilities Plan does
9 what the Metro Pian saynhe PFSC is supposed to do for wastewater plarwing for the
10 Mctro area~
11' The most recent acknowled~,:d version of the Public Facilities and Services Plan
12 (PFSP) was adopted in 2001 as part of periodic review. The new language adopted with
13 it was absorbed into the Part m-G c f the Metro Plan. This language acknowledges the
14 MWMC as the provider of Metro w lstewater services. But, what is absent from the
15 version ofthe PFSP adopted in 200 I is the MWMC element of the facility plan. For
16 ,ex.ample, the PFSP contains an asse ,sment of wastewater facilities in Eugene and
17 Springfield. See PFSP at 82-83. A ld it contains a list of planned wastewater projects for
18 Eugene and Springfield. See PFSP at 28, Tables 3 and 4. But the PFSP is silent about
19 the larger, MWMC wastewater faci ities. There was a hole left in the 200 I PFSP. That
20 hole is ncatly filled by the MWMC ,'004 Facilities Plan. This plan should be treated for
21 what it is, an element of the PFSP f lr the MWMC facilities,
, 22' V. , Conclusion
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P. 18'='5
14
and, elaboration of the Metro Plan fo' those large scale wastewater facilities that that
2 provided by the MWMC, fInd it to b: a land use decision, anddetennine that it has
3 jurisdiction. That should resolve the matter on the merits"as, ifit is a land use decision it
4 can '( be defended bccause it was not processed as a land use deCision.
5 Dated this 2nd day of July, 2004.
6
7
8
9
10
11
12
13
Respectfully submitted,
B'
ICE OF BILL KLOOS, PC
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05/20/00 JB\' 15'23 FAX 541 7. J363
TO:541 7361021
Si'FLl> CUT llGRS OfFI~ ,
RESOLUTION
NO. 04..-19
A RESOLUTION OF THE CI1Y OF~PRINGFleLD COMMON COUNCil APPROVINt;
THE MVVMC 2004 FACILITIES PlA ~ AND ADOPTING THE 20-YEAR PROJECT LIST,
WHEREAS, on February 9, 1977, th ~ City of Springfield. the City of Eugene, and Lane .
County (the Governing Bodies),ente -ed Inlo an intergovernmental agreement (IGA) ,
Which established the Metropolitan \ IIastewater Management CommIssion (MWMC) as
an ORS Chapter 190 entity responsi ~Ie to construct, operate, and rn<lintaln regional '
was1ewaterfacilities; and, '
.'
. ,.
WHEREAS, ltll~ regional wastewate, facllltles, which Include the Eugene-Springfield
Water Pollution Control Facility 0f'JP' ~F), tne Biosolids Management Facility (BMF),
Blocycle Farm (BF), the Seasonal In :tustr1al Waste Facility (SIWF), several regional
wastewater pump stations and regio \al conveyance system, weredeslgned and
constr:ucled in the early imd mlct-19fOIl with a protected design life of20 years; anli,
WHEREAS, the MWMC has underta<en s'everal plans and studies. between 1996 and
2001 to determine short- and long-te rm re9ional wastewater fllcllltles Improvements
neected to provide adequate wastew iter ~eatment capactty and meet all applicable
regulatory permit requirements, inolt.lCling but not limited to the MWMC Master Plan,
1997, the Biosolids Management Pl( n, 1997, and the Wet Weather Flow Management
Plan, 2001 (VVV\lFMP); and,
WHEREAS, the MWMC enactedRe :olullon 02-05,Quthorizing the execution of a
contract wfth CH2M HILL, Inc. for pn rfessional seNices for an MWMC predesign study
and facilities plan ~pdats (Project no PB0010); and
"
WHEREAS, the MWMC enacted Rei ,olullon 03-11, amending the profe~lenal>servlces
contract With CH2M HILL, Ino. to incl Jde technical support for: (a) MWMC's system '
development charges (SDC) methOt'09Y update, and (b) evaluation ofthe best use of
MWMC's SIWF property for facilities lanning purposes,:and (0) MWMC's 2004
Faoillties Plan adoption process; an , ' .. .
WHEREAS, applicable adopted MW IIC goals, policies and management strategies,
such as those contained in the FY Oi-04 Regional Wastewater Program Budget, the
WNFMP and the Blosolids ManagenJent Plan, along with the requirements of the
MWMCNatii?nal Pollutant Discharge ElimInation System (NPDES) pennit issued' by the
"},," ,'iq~!1?~,.~e.p~rtment of Environment, I Qual,ity (DEQ) in ,May, 2002, the "DEQ Guidelines
. for the Preparation of Facilities Plans and Environmental Reports for Community
Waste~ater. Projects,. (1999) (DEQ I,uidelines), and MVv'MC guidance provided the
foundation and dlrection for the MWf> Ie 2004 Facilities Plan (attached herato and. by
. this.L~~ere"'.<<7_,illC?orporated herein); ;; nd ',,'
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EXHIBIT A
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P. 20<5
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SPPLD CIn lIGRS OFFIC.
RESOLUTlON 04~19
WHEREAS, the MWMC 2004 Facililes Plan analyses show that capital improvements (..
contained ill the 20-Year Prl?Jeot US1 Included in the MWMC 2004 Facllltles Plan neect
to be Implemented in accordance wi h the 20~Year Project Ust Schedule In order to
achIeve the regulatory compliance a let capacity objectives stated in the MWMC2004
facllltles Plan;.and; -
WHEREAS, theMWMC 2004 FacllH es Pfan and 20.Year Project List have been
preparect, in part, to provide the pub jc facllltles plan and list of capital improv.ements
t~at are required by ORS 223.309(1 prior,to the establisHment of a system
development charge;' and '
WHEREAS public meetrngs and W MC work sessions were conductec:l to pravlde.
guidance on. preparation ofthe draft MWMC 2004 Facllities Plan on November 24;
2003, January e, 2004, and March 3:, 2004; and
WHEREAS, public hearings were nt tice~ and eondu9ted by the MWMC to accept ;and
consider public comment on the dra~~ M\NMC 2p04'Facifrtles Plan on Api'i122, 2004 and
May 6, 2004; and ' .
WHER~S,on May 6, 2004 MWMC enacted Resolution 04-04 adopting the MWMC
2004 Facili;ties Plan and Zo-Year Pre ject List; .and
WH~~~S. the Springfield CityCou lell conducted a pubfi~ hearing on the MWMC ( '.
2204 Facirlties Plan and the 2D-Yea, Project List on May 17, 2004; ane!
WHEREAS, the Sprlngfield City Cou lcil has reviewed and considered testimony from
thepub/ic and dlseussedthe MWMC 20~ Facilities Plan and 20-Yaar Project Ust.
NOW, TtiEREFORE,SE IT RESOl' rED by the Common Council of the City of
Springfield as follows:, The Commer Council oftha City of Springfielctapp~e.stJ1,e ';'
MWMC 2004 FadlitiesPlan and heHby adopts, the 20-Year ProJeol1.1sL". , .
This Resolutipn shall take effect up,o 1 adoption by the City Council and approval by the
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Adopted by the Common Council at he City of,Springfield the E!!; day 0' May. 2004.
-by a vot8-~BJJ4 ~~. .
'~~'MaYOr ~.:-~ <./ ~ - " . Date R.eceived
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R E'S TAT E DA N 0 AM ENDED A G R E E MEN T
METROPOLITAN WASTE'NATER MANAGEMENT COMMISSION /
THIS AGREEMENT was entered into the 9th day of February, 1977, by the City of
SPRINGFIELD and the City of EUGE~E, municipal corporations of the State of
Oregon, and LANE COUNTY, a politi :al subdivision of the State of Oregon. herein
referred to as Governing Bodies. Th ~ Agreement was previously amended January 4,
'978, February' 6, '982 and July 19, 1991 which amendments have been
incorporated herein.
R :~ C I TAL S :
, , The Governing Bodies have adOllted the plan of land use development known as
the'990 General Plan and have desi }nated in the plan a projected urban service
area which includes the two cities an I certain unincorporated areas surrounding the
cities and which lies entirely within th l county. .
2. The projected urban service area as now or hereafter designated, Is a
metropolitan area because of its urba, character and the close interrelationship
between the two cities and all parts cJ the area.
3. The urban character of the area r lakes high quality sewage treatment necessary.
4. Federal funding policy requires S< lwage treatment and disposal in the projected
urban service area to be provided on a unified, metropolitan basis.
5, In order to plan for sewerage On I unified basis in the projected urqan service
area, the cities and the county entered Into an agreement January 8, 1974,
establishing the Metropolitan Sewer A ::lvisory Commission.
6. The Eugene-Springfield Metropoli an Area Waste Treatment Management
Alternatives plan, which has been prepared for the Lane Council of Governments
under Environmental Protection Act S; lction 208 provisions, shall serve as a basis for
developing a unified sewerage systen within the projected urban service area.
7. The cities have the authOrity unde r their charters to pr~v1de for all aspects of
sewerage, are providing it presently fc ( parties within their respective boundaries, and
are concerned that it be provided ade wately in their environs so as to prevent health
hazards.
8. The county, while not presently pI :>v1ding sewerage. 'has the authority under its
charter to do so, has exten.sive duties under state laws regarding public sanitation.
1., .~~d Js.~n,ce.~~.~out hazards'to pL blic health that arise from inadequate sewerage
' .~!;,'IO the area: ',< :,\",\
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I
P. 22<"6
(
a. Each Governing Body shall allpoint to the Commission one (1) elected official
of that Goveming Body.
b. The City Council of Eugene, ~ hall appoint two (2) additional members to the
Commission. The City Council of Sp ingfield and the Lane County Commissioners
shall each appoint one additional member to the Commission.
c, Members of the Commission ,hall serve for the term set by the Commission in
its bylaws and at the pleasure of the Governing Body appointing that member.
d. A quorum of the Commission shall be five (5) members providing at least one
member appointed by each Govemi 19 Body is present. Decisions of the Commission
shall require a majority vote of the elltire membership unless otherwise provided in
this Agreement.
5. Bvlaws: The Commission shall c dopt a set of bylaws governing its conduct. The
bylaws shall:
a. Establish times and places 01 meetings.
b. Establish a central office for t Ie Commis~ion which shall have a mailing
address, a telephone and a comple13 set of records of the Commission, be the main
place where information about the C~mmission can be obtained, and be under the
charge of the designated agent of ttle Commlsslon.._ " , "_,,, , " .. ,
c. Prescribe' officers 'Of the ComJnission, including president and other officers to
be elected by the Commission from among its members. The president shall see that
meetings of the Commission are cOllducted in accordance with the bylaws.
6. Meetinos: Meetings of the Comllission shall be held regularly at times and
places designated in the bylaws. '
7. Functions of Govemino Bodies: The Goveming Bodies shall continue to perform
the following functions: . ,
a. Billing and collection of chargas.
b. Provide local sewage collectilln (sewers beyond those ~pecified in Appendix
"A".)
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c. Provide customer contact.
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:~:., d. Establish local annexation an I growth policies.
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.;".8,; Oblioations of Govemina Bodie!,: The Governing Bodies shall assume the .
:!~lIowing 9bligations: . Date Recelvedc
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a. Forward to the Commission its share of revenues as specified in the adopted
financing plan.
b. Adopt, as a minimum, the Commission's standards for construction and
maintenance of sewage collection sy! tems and for pretreatment requirements for
industrial and other wastes.
c. Adopt user charges required b { 40 CFR 35.929 in an amount not less than
adopted by the Commission.
d. Provide the Commission with. n annual report of revenues and expenses
related to regional sewerage facilities. .
e, Establish service area bounda~ies and provide for adjustment thereto as
necessary to enSllfe that service is pr )vided only to areas within the taxing district; to
'users currently being served or to wh)m contractual service commitments have been
made who are outside the taxing dist ict; and to any other areas outside the taxing
district to which service may be exter ded In conformity with Fundamental Principle B
Growth Management in the Urban Se vice Area (Pages: II-B~1 through II-B-9) and
Public Utilities Services and Facilities, Element G (Pages: III-G-1 through III-G-?) of the
Metropolitan Area General Plan, as ar 1ended.
(
9. Caoacitv: The initial capacity for 1 1e sewage treatment plant shall be based on
the established population equivalent estimates for the entire metropolitan area. When
the sewage loading into the trealmen plant becomes 85% of the initial design
capacity the Commission shall institu :e a program to expand and/or upgrade the
treatment system beyond the initial d ~sign capacity.
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1 O. Grants and Loans: The Com miss on shall apply for grants and loans for funds to
achieve the objectives ,of this Agreerr: snt and to carry out an adequate program of
sewerage for the projected urban ser lice area
11. Contracts: The Commission may enter, into' contracts for technical assistance and
for construction of facilities to achieVE the objectives 'of this Agreement and to provide
necess8/}' sewerage in the area.
12. Hearings: The Co'~mission may :onduct hearings on complaints from any rate
payer who is aggriev~ by rules of th ~ Commission, by sewerage rules, regulations,
policies, or practices of the Govemln! I Bodies, or by any aspect of the sewerage
operations of the Governing Bodies. ~Rate payer means any person or entity "'C
responsible for the payment of any cllarge or fee imposed on behalf of the Q)
Commission. The Commission shall )rovide in Its bylawS for advance notice and for .=:::
cqnduct of the hearings. After the he. ring, the Commission shall submit to the ~
G.9yemlng Bodies and to the complainant its findings and recommendations Q)
regarding the complaint a:
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;0 13.~:lnitial Exoenses: The administrati Ie or other expenses of the 'Commission prior t6 hi
'.:' the:'~doption of the financial plan and receipt of revenues therefrom shall be borne Cll
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63% by Eugene, 24% by Springfield, and 13% by Lane County, subject to budgetary
limitations of the Governing Bodies.
, 4. Budaer: The Commission shall ~ repare an annual and necessary supplemental
budgets in accordance witl;l its bylav's. The Commission may make expenditures or
incur obligations only within limits sel by the budget. The, Commission budgets shall
not be effective until ratified by the <; overning Bodies.
'5. ,Recommendations: Upon reCOfT mendation of the Commission, the Governing
Bodies shall:
a. Establish s9werage policies.
b. Provide the personnel and se vices necessary for the operation and
maintenance of the regional sewera~ e system at the expense of the Commission,
c. Adopt a system of sewer usel charges and connection fees. In the case of
user charges required by 40 CFR 35 ,929. the charges adopted shall be not. less than
those recommended by the Commission. '
d. Levy and collect the charges severally.
e. Apporti<:>n funds that the GOVI ming Bodies receive for sewerage in accordance
with the Commission's adopted fin81lcial plan.
, .: "':~r.~
1. Provide funds for capital imprc 'vements to the sewerage system in accordance
with the Commission's adopted finallcial plan.
, 6. Modification and Termination: Tllis Agreement shall continue until'modified by
unanimous consent of the Goveminc I Bodies. A, Governing Body may terminate its
participation in the Agreement by 3d days written notice at any time prior to bond
authorization. Thereafter, one year's advance notice of termination must be provided
to the other Goveming Bodies. If the parties are unable to agree on the division of '
assets and liabilities between the pa ties, the dispute shall be referred to a board of
arbitration for its decision concemlnlO the division. The Board shall have five
members. a judge of the Circuit Col rt of Lane County to be selected by the chief
judge of the Court, a representative )f the State Department of Environmental Quality
to be selected by the director of the department; and one representative who has not
served on the Commission from eaCl governing body to be selected by the
, ~e~pective goveming b,odies.
. ~..
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1f,Reconsideration and Mediatiqn, If one or more of the Governing Bodies objects ~
t<,?any action proposed or taken by he Commission. including any action taken .~
, p~rsuant to Appendix B. the Govern ng Body objecting to the action shall request tha~
t~eCommission reconsider such ac Jon by derlVering a written request therefor to the Q)
- Co.mmission. The Commission shaJ put such action on its agenda for ,0:
reConsideration at any Comrnission neeting w1thh'l 45 days after recelpt of the request))
'for reconsideration. Except as provi:led below. if a Governing Body objects to the <<s
a
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P. 25/36
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. .
Commission's action after reconsidel allon by the Commission, the Governing Body
may refer the matter to the Metropoli an Policy Committee (MPC) for mediation In
accordance with any procedure adol led by MPC. ' If a resolution of the matter has
not been reached previously, MPC sllall, within 45 days after referral of the matter to
MPC, make a written recommendatic n for resolution of the matter to the Governing
Bodies for their consideration. 'MPC' I recommendation shall be advisory only and
shall not be binding on the Governln I Bodies. Except as provided below, the
CommissiOR'S action shall take effect only after all Goveming Bodies are in
agreement. If the action objected to is the Cor)'lmlssion's adoption of user rates'
required by 40 CFR ~5.929, the reCOllrse of an objecting 'Goveming Body is limited to
submitting the matlerto the Commls;ion for reconsideration. .The Commission's
, decision on reconsideration shall be inal.
IN WITNESS WHEREOF, the unc ersigned, by authority of their respective
Governing Bodies hava executed the within Agreement.
DATE:
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DATE:
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CITY OF SPRINGAELD, a Municipal
Corporation of the State of Oregon
By {)''LL:l-C4", t~~7(/'
Title: City Manager '-- )
, CIlY OF EUGENE, a Municipal
Corp1ratio~ ~f the ;t~te of Oregon
ci~\i~c;L .
'Title: r.itv M~n~~p..
LANE COUNlY. A Political Subdivision
of the State of Oregon
wtl~~... a' (L(~
nUe: County Administrator
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P. 26/3;
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~PPENDIX DAu
E'LJGENE-SPRINGFIELD METROPOLITAN'
SEWEFJAGE MASTER PLAN
This Appendix defines the regior al sewerage facilities necessary to provide for
the wastewater trealment and dispos 3.1 needs'of the Eugene-Springfield metropolitan
area.
Service shall be provided only Yo thin the projected urban service area. Facilities' '
shall be designed and constructed tl, that end, but may be constructed either inside
or outside the projeCted urban serviC3 area. ' ,
, .
The facilities shall be an integrat,ld system which in its entirety will comprise the
regional sewerage system for the Eu Jene-Springfield metropolitan area, The regional
sewerage system and relatedactivitil ,sshall include only the following: ' ,
I. New Facilities.
A. A r4?gionaJ seVfage trealmer t facility located at 410 ,River Avenue"Eugene,
Oregon, 97404.
B.,AII sewers, 24 inches and Ii rger in diameter, required to transport
wastewater to the regional sewage tr latmerilfacility, including:
,. The "East Bank Intercep or".
2. The "River Road/Santa ( lara Interceptors".
II. Existing Sewer Facilities.
" A. The existing ,sewage treatm mt facilities owned by the cities of Eugene and
Springfield. ' "
~~~~..
B, The existing gravity sewers, pump stations, pressure mains and other
appurtenances owned by the cities 0' Eugene and Springfield, from the points at
which the sewer lines first become 2' inches or larger in'diameter to the existing
treatmentfacilities described in Sectilln II-A above. '
III. Related Activities.
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.~ The cost-effective sewer rehabiliti Ition of the existing collection systems as
'gElfined by the sewer system evaluati >n surveys. '
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I PPENDIX "B"
EUGENE-SPAI 'JGFIELD METROPOLITAN
SEWERAGE: FINANCING CRITERIA
, ,
The Commission shall finance its functions as follows:
A. The non-federal share of capit II costs associated with the implementation of
the sewerage master plan set forth in Appendix A shall be financed by a capital
construction bond authorization. .
The capital construction bond sh all be authorized by a district-wide bond election
through the use of a county service c istrict. Bonds sold shall be repaid by a uniform
district-wide tax. The Governing 80dhs ag(ee specifically ,that the county service ,
district shall be authorized and estab ished to provide regional sewerage facilities by
contracting with the Commission to c )nstruct, maintain and operate such facilities as
set forth in the Agreement. ,
Bond sale proceeds may also bE advanced to the COmmission to provide interim
financing of the f~deral share of such capital costs when an Environmental Protection
Agency grant has been awarded to II Ie Commission to cover such costs; the work
associated with such costs has been completed and payment to the contractor
therefor has been approved by the C )mmission; a request for reimbursement of the
federal share of such costs has been submitted to the Environmental Protection
,"' Agency and timely payment.to. the CI 'mmission's construction contractor would be
prevented due to a temporary delay i, theava,Hability of federal funds.
8. Administrative, operational an<: maintenances expenses related to regional
sewerage facilities shall be financed t lrouQh a uniform district-wide monthly fee to be
levied on all users,
C. Outstanding bonded indebted less for existing facilities of the Cities of Eugene
and Springfield described in Appendi ( A shall continue to be amortized by the
respective cities, The Commission sh III provide funds to one or both cities for retiring
bonds in order to establiSh equality b stween all lisers of the regional sewerage
facilities. At such time as the outstanc ing bonded indebtedness of the cities for
existing facilities is satisfied, and equdlity is established, the ownership of such
facilities shall revert to the Commissic n.
L
D. Connection fees, considering' Iifferent types of usage shall be levied on all
new service connections following thE date specified in the detailed financial plan
developed by the Commission. The flie will be calculated annually and will be based -c
upon obtaining equality between the lewly connected users and the previously Q)
connected users for their total contrib Jtions toward the regional treatment facilities. .~
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P. 28'31;
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Revenue from the fee shall be used in the manner provided in the detailed financial
plan developed by the Commission,
E. If current users are outsidett e taxing boundaries of the County Service
District, each shall pay, through a u'er charge or other method, amounts equivalent
to thaI paid by properties within the taxing district for the regional sewerage,system.
F. ConRectionlees, as previous 'I described in "0', for the regional sewerage
facilities shall be charged uniformly ',hroughout,the service area. ' .
G. The Commissiol') may develc p other revenue generating techniques with
approval of the Governing Bodies.
H. Excess revenue generated Ire 1m fees shall be used to pay expens.es and debts
of the Commission. In addition, with the approval of the Governing Bodies, the
Commission may use excess revem es to establish a reconstruction fund. . '
The Commission shall develop and Implement the ,fee system as soon aspracticaJ.
The fee structure, anticipated revenu ~s and estimated expenses for the 20 year' ,
design life of the regional sewerage acilities shall be adopted by the Commission as
the financial plan.
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O~GON
to be t....ated as a Federal Association.... d. ~ned '
in ORS 722.004; and .
, (b) For the purpose. of ORS 715.025 on,', the
term "bank" shall not include a company th :,
(A) Engage. only in credit card operatio .
(8) Does not accept demand deposit.,; or d. posits
that the depositor may withdraw. by cheek s ,milar
means for payment to third part.es or othe ;
(C) Does not accept any savings or ti e d, posits
of less than $100,000;
(D) Does not perinit any depositor, redu:e the
balance of fund. on deposit'in any aceo t be). w the
sum of $100,000, unl.... the account is losed;
(E) Maintains only one office th I acee! t.,; de.
posit.,;; and
(F) Doe. not engage in the busi ess of making,
commercial loan..
(2) "Bank holding company" m n. any eo npany
that i. a bank holding company u er the pro i.sion.
of tbe federal Bank Holding Co pany Act o' 195G,
as amended. 12 V.S.C. 1841. et . .
(3) "Company" mean. an e tity that is ,com-
pany under the fed.ra1 Bank olding Compa; 'Y Act
of 1956, as am.nd.d. 12 V.S.C. 1S41..t seq. '
SECTION 2. ORS 716,04 is am.nded to J ead:
716.040. (l) Not less t n five p.rsonS VI 00 are
citi~ens of the United Sta .. and r..idents ,f this
state maya.ssociate tbe lves by articles oj incor.
poration to form a corp ration to b. know I as a
"mutual savingli bank." e articles of meorp 'ration
shall be executed in d plicate, signed and 'erilied
by the incorporators d fil.d in the, office of the
director.
(2) The articlee 0 incorporation .hall spe :ify:
(a) The name by hich the savings bank :, a to be
known. .
(b) The place ere its busine," is to bl trans;
acted, naming the ity or town and eoUJlty,
(c) Th. nam occupation, ....id..nc. an I pOlt~
office address of ach incorporator.
(d) The ler of its existence, which ma'j be per,
petual. "
(e) The . which each incorporator w:11 eon.
tribute in c to tbe initial guaranty fund, ,nd the
expense a. provided in ORS 716.0;0 and
716.070.
(f) 'The board of directors of the savinx bank
composed of not less than five incorporato , who
shall se e until their successors are r gularly
elect.d d qualified. '
(3) he articles of incorpontion sh I also
.ontai the infonnation required unde, ORS
60.131
[()J (4) The article. of incorporation a.' 00 may
contain any lawful provisions for the r.guh ,tion of
the bu.sineS$. for the conduct of, the aft'ai" of the
saving,; bank, [or] defining and regulating t Ie pow,
.1'$ of ,the directors or eliminating or limit ng the
personal liability of directors to the exle 1t per~
milled under ORS 00.047 (2)(e).'
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TO: 541 7361021 ,
P. 29/36
LAWS 1989
Chap, 449
CHAPTER 448
^p'proved by the Governor June 'no 19&9
F,led in tho office or s.cretary or SlllLe June 1.8. 1~8~
AN ACT
HB 3279
'Relati';g to,wildlife; amending ORS 49
Be It Enacted by the People of be State of
Oregon: ' .' / '
SECTION 1. ORS 498.126 I. ,mended 10 read:
498.126.,(1) No per.on shall: '
(a) Hunt game mammals or game bird. from or
with the aid .of an aircraft.
(b) Transmit from an airc to a person not in
the aircraft information re ding the locatlon of
any game mammals or gambirds.
(c) Otherwile use an . era.l\ to assist another
perSOn in hunting or I eating game mammal. Or
ga.me birds for the purp sa of hUJlting.
(2) No person .h I hunt 3llY game mammal
within [six] eight urs after having been trans,
ported by aircraft or. from any place other than a
{pl""e d..ilJflaied, y the. commwion] recognized
airport that the IA.ronautie. Division of the De-
partment of Transportation h.... licensed as a
public use ai 1"1, registered .... a personal Wle
airpOrt or' incally exempted from licensing
or registrat' n.
(3) Eve pilot .hall maintain a log book that
shows the names and addresses of . ~ __. J of the
persons ansported. point of departure. point of
destination. time and date of .ach Oight that the pi.
lot mak.s ,in an aircraft within this state to trans,
pci'rt a person to Or from any place to hunt. The log
book is lubjeet to inspection by any person author,
ized to .nforce the wildlife laws.
AJ>provod by tho Governor Jun. Z'I. 19~9
Flled.in the ornee or Sc<:retary of Staltl June 28, 1989
CHAPTER 449 /
.<...
AN ACT !fB 322.
Reli.ting to system d.velopment charges.
Be It Enacted by the People of the State of
Ongon:
SECTi'oN 1. The purpose of this 1989 Act is to
provide ,a Uniform framework for the imposition of
system'deyelopment cherges by local government.,;
for sp.cified purposes and to establish that such fees
may b. us~d only for capital improvements.
SECTION 2. As used in this 1989 Act:
(1)(1.) .Capital improvement" means facilities Or
aS$ets used for the following: ,
(A) Water supply. treatment and distribution;
(B) Waste water coll.ction, transmission,' treat.
ment and disposal;
615
Date Received
, JUL 0 7 I~
pj~~~l~~ BJ
OREGON LAWS'1989
share to the cOst of existing facilities. The methol:
ology for, establishing such fc.s shall bc available for'
public insp.ct;~n., , I
(2) Improvcment fees shall bc established bv Or,
dinanc. or resolution setting forth a' mcthodolo~'
that considers the cost of proj.cted capi tal improve.
ments n..ded to incr.asc, th., capacity of the systen?s
to which the fee is related. The m.thodology for es,
tab]i.hinll' such fe.s sha]1 be availabl. for public ih.
sp.ction, , ' I
(3) Th. ordinancc or resolution that cstablishes
an improvcment f.. shall also provide for a credit
against such fee for the construction of a q..alifi~d
public improvement. A "qualifi.d p..blic jmprov~,
ment" mca.n$ one -that is: " I
, (a) Requir.d 'as a condition of rcsidential devel,
opment approval; ,I
(b) Identified, in thc plan adopt.d pursuant to
.ection 6 of this 1989 Act;, and '
, ' (c) Not located on or contiguous to' property th,t
i. the .ubject of re.idential d.velopment approval.
(4) If a qualified p..b]ic improv.ment is partia]},'
located on and partially located off prop.rty that is
the subj.ct of th.residential development approval,
the credit shall be only for the cost of thc portioh
of the improvement not located on or wholly contig,
UOWl to the property. Th. credit"provided for b}'
subsection (3) of this s.ction shall b. on]v for the
improvement f.. charged for th., typc or' improve,
m.nt b.ing constructed and .shall not .xceed such
improv..ment f.. ev.n if the cost of the capita! ini.
provem.nt 'exceeds the applicable improv..m..nt f..~,
This .ubs.ction .haJI not prohibit a unit of gov..rrJ.
m.nt from providing a greater c""dit, or from prJ
viding a credjt for a capital improvement not
identified in the plan adopt.d pUl"lluant to ...ction 6
' of thi. 1989 Act, Or from pro,viding a share of th~
eost or Guch impro,vement by other means, if a, unit
of gO_\Ternrnent, so chooses. , ,,' I
,(5) No IQga) action intended to contest th'i
~.thodology ,used for calculating a systemdeveloPj
ment charge shsll be fil.d after 60 days follOWing
adoption or modification of the syst.m development
'charge ordinance or resolution by the local govcrn
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JUL"07"2004 15:31 FROM:
Chap. 449
(C) Drainage and flood control;
(D) Transportation; Or .
(E) Parks and r.creation,
(b) "Capital improvem.nt" does not inclu Ie coSts
of the oparation or routine maintenance 01 capital
improvements. .
(2) "Improvement fee" means a fee for c ~sts, as.
sociated with capital improvem..nts to I,e: eon.
structed. '
(3) "ReirrlbW'sem.nt r.e" m.ans a fee fc r costs
associated' with capital improvem.nts alrea Iy con.
structed or under constructio-n.
(4)(a) "Syst.m d.velopm.nt charge" meal <S are"
imhursC'ment fee, an improvement fee or a C Hnbina.
tion thereof assessed Or coll.cted' at the ,ime' of
increased 'usag~ of a capital improvement It issu-
Once of a, development permit, building P,e 'mit Or
connection to the capital improvement. Sys :em de,
velopment charge include. that portion of I seWer
or wat.r system connection charge that' is ~eater
than the amou.nt necessary to r.iinb..rse the unit of
local 'government for it.$averagc cost of inli 3ecting
and installing connections ~ith \vatet: and st:; Wet" fa.
cilities.
(b) .System development charg.'" does not in.
clude any fecs assess.d' or. collect.d Wi part of a loca]
improvem..nt district or a charge in lieu of . local
improvem.nt district assessment, or the ,:o.t of
complying with requirements or condition. i nposed
,upon a land use decision.
SEcnON 3. (1) Local governments are luthor.
ized ,to establish system dev.lopment charg,., but
thc revenues produc.d therefrom shall b.. elOOended
only in accordanc. with, thi. 1989 Act, If , ]ocal
government e>=pends anx such reV"enues in vi >la'tion
of the limitations d..crlbed in section 5 of th s 1989
Act, the local governm.nt shall replace the, m sspent
amO\1nt with' moneys derived from other s )urces.
Replacement, moneys .hall be deposited in 1 fund
designated for. ,the systemd.velopment chao ge re,
venues not later'than on. year following a d .termi.
nation that the funds w.,.., missp.nt.
(2) Local gOVernments shall adopt adminis :rstive
rev-iewITocedures by which any' cjtiz~n or ot ler in.
tereste, 'person may challenge an .xp.ndit U"e of
system (lev.lopm.nt charge r.venue., Such proce.
dur... .hall provide that such a challeng. m.lSt b.
filed Within two yeal's of the exp.nditur. of t Ie sys-
tem dev.lopm.nt' charge r.venu.s. The deci, COil of
the local government shall be reviewed only, s pro-
vided in'ORS 34.010 to 34.100.snd not otherw se.
SECTION 4. (1) Reimbursement fee. sh ill be
establish..d by ordinanc. or. ...so]ution settin~forth
,a methodolo~" that considers the cost of the e . sting
facility Or facilities, prior contributions by . isting
users, the val... of u.nused capacity" rateonskinS'
principle. .mploy.d to finance publicly owne,capi.
tal improvements and other relevant factors d.nti.,
fi.d..by,the"loca!igov.rnm.nt imposing the f..,. The
'inetlioaolo/W'Slkll"pro'mote the objective of uture
syst..rri useMi contributing no mol'. than an eqt itable
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SECTION 0. (1) R.imbur.ement f.es shall be
sp.nt only on capital improvements associate<! witH
th.,syst.ms for which the fe.s are' assessed inelud!
ing 'expenditu.r.. r.lating to repayment of ihd.btJI
ecln.....
(2) Improvem.nt f.e. shall b. spent only On ca-I
pacity increasing capital improvem.nts, including
.xpenditures relating to repaym.nt of debt for such
improvements, A.n increase in system capacity, may
b., establish.d if a capita] improvem.nt incl'eases the
level of performance Or s.rvice provided by existing
facilities Or provides n.w facilities. The portion ofl
.uch improvements funded ~o~nt fees d
must be r.lated to current Or e
(3) System development charges s a I not l)e ex.
, pend.d for costa aSS<lciated with theJE/tnllJ'7ction of
,bCf
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"
dREGON LAWS 1989
Chap. 451
administrative office facilities that are more I han an
incidental part of other capital improvements '
(4) Any capital improvement beIng funded wholly
or in part with system development charge r,venues
shall be included in the p~an adopte~ by l local
government punuant to sectIon 6 of thIs 198'1 Act,
(5) Notwithstanding subsections (1) and (2) of
this section, system development charge r, 'venues
may be expended on the direct ,costa of co:' nplying
with the provisions of this 1989 Act, includ Ing the
costs of developing system development charge
methodologies and providing an annual acc lunting
of sy:rtem development charge expenditures.
SECTION 6_ (1) Mer July I, 1991, aI'r local
government which has adopted a system ,evelop-
ment charge by ordinance or resolution sh LlI pre.
pare a capital improvement plan, puhlic !: ,eilities
plan, maner plan or comparable plan which 11,'ts the
capital improvements that may be funded v.lth 1m.
provement fee revenues and the estimated C)st and
timing for each improvement.
(2) A local government that has prepar..o a plan
described in suhsection (1) of this sec.tion jy mod-
ifY such plan at any time.
SECTION 7. System development cluu-g reven,
ues shall be deposited in accounts design. ted for
such moneys. The local gQvernment .hall prt vide an
annual accounting for system development ~harges'
ahowing the total amount of system devei'opment
charge rovenues collected for each system I nd the'
projects that were funded.
SECTION 8. (1) This,1989 Act shall ap11y only
to system development charges in effect on" ,r after
July 1, 1991.
(2) The provisions of this 1989 Act shall not bs
applicable if they Ill"G construed to impair bo ld obU,
gations ror which system development chug,. have
been pledged or to impair the ability of lo~al gov.,
ernrnents to issue new bonda or other finan :ing 1lJI'
provided by law for i...~.., ements allowed un ter this
1989 Act.
SECTION 9. The adoption of a system, evelop.
ment charge, or it. plan as provided for in s( ction 6
of this 1989 Act, or any modification thereto i. not,
a land use decision pursuant to ORB chapter 197. .
SECTION 10. Sections 1 to 9 of this ,lct are
added to and made a part of ORS 223:205 to ~23.295.
, Approvod by lh. Governor June 'rT. 1989
Filed in lh. OffiCl8 or Secre1.8ry or Slate June 28, H ~9
CHAPTER 4SO
AN ACT
lIB 3432
Relating to Iicens.. fees; amending ORB 671.6 iO.
B.. It Enacted. by the People of the Sf ate of
Oregon: '. ~r c ,r~'
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SECTiON 1. ORS 671.650 is amended to read:
671.650. (1) The annual landscape contractor's Ii,
cense fees .hall be established by the board and
shall not exceed [$25] $30.
(2) The annual landscaping bUsiness fee shall not
exceed [$65] $75.
(3) The license fee for an out-of.state landscaping
business operating in Oregon shall be the same as
for an Oregon landscaping business as provided In
subsection (2) of this section.
Ap'proved by lh. Gov.,no, June 27. 1989
f,lod in the onice of Socretary of Slat< June ZS. 1989
CHAPTER 451
AN ACT
HB 3246
Relating to telephone solicitation; creating new pro-
visiona; and amending ORS 646.608. '
Be It Enacted by the People of the Slat.. of
Oregon:
SEC"I'10N 1, As used in sections 1 to 3 of this
1989 Act,unle.... the context otherwise requires:
(1) "Charitable organization" means an organ-
ization organized for charitable purposes a.s dcfined
in oas 128.801. '
(2) "Party" means a residential telephone cus,
tomer of a telecommunications company.
(3) "I'elephone solicitation" melU1ll the solicita.
tion by t<!lephone by any person of a party at the
residence of the party for the purpose of encouraging
the party to purchase property, gooda or services, or
make a donation. ''Telephone solicitation- does not
include:
(a) Calls made in response to a request Or in.
quiry by the called party; ,
(b) Call. made by a charitable organi%ll.tion. a
public agency or volunteeI'll on behalf of the organ-
lzation or agency to members of the organization or
agency or to persons who have donated or expressed
an' interest in donating goods, services or real estate;
'(c) Call. limited' to polling or soliciting the ex,
pression of ideal5l~ opinions or votes; or
(d) Business to bueiness contacts.
SECl'ION 2. A person is in violation of oas
646.608 (1)(bb) if the person engag.. in the telephone
solicitation of a party and that party is identified in
the party's telephone directory as s party that does
not wish to receive any telephone solicitation. For
purposes of this section, "telephone solicitation" also
does OO,t include a person soliciting business from
prospective purchasers who have previously pur.
chased ,from the person making the solicitation or
~he business enterprise for which the pe~n is cal!,
mg.
617
SECl'ION 3. (1) The Public Utility Commission
shall by rule'require that teleconununications com.
panies inform partie. ,of the ~visions of thiS. .1989d
Act. Notification may be by; uate ReceIve
JUL 07,01'
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May 26, 1989
8:00 a.m.
Hearing Room B
Salem, Oregon
MEMBERS PRESENT:'
STAFF' PRESENT:
WITNESSES:
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P. 32/3C
S~TE COMMITTEE ON
GOVERNMEN1 OPERATIONS'AND ELECTIO~S,
Measures Heard: SB l194-PH/WS,
HB 3224-PH/WS, HB 2770-PH/WS,
HB JlJ5-PH, HB JOl7-PR/WS
Tapes 130, 131
SEN: GLUm OTTO, CHAIRMAN
SEN: JUBmm
SEN. JME CEASE, VICE CHAIR
SEN. C.'T. "CUB" HOUCK
SEN. DICK SPRINGER
GAIL RYtER, COMMITTEE ADMINISTRATOR
JUDY 5a1'osHI, COMMITTEERESEARCBER
JOAN GRE EN, . COMMITTEE ASSISTANT '
GARY HOI~IDAY, CITY OF ALBANY, FINANCE DIRECTOR
DAN ANt ERSON, SECDRITY PACIFIC BANK, FINANCE
o THENT, VICE PRESIDENT AND MANAGER '
,FRANK B WNER, OREGON BANKERS ASSOCIATION
NANCY ,'ETERSON, O~N STATE REPRESENTATIVE,
' 01 RrC'!' 52
DONALD , HOUSING AUTHORITY OF PORTLAND ,
'LEN LanFRANCO, OREGON NEWSPAPER" PUBLISHERS
ASS )clATION
JIM IRVI ~E, OREGON STATE HOMEBUILDERS ASSOCIATION .
CHARLIE' HALES,' HOKEBOILDERS ' ASSOCIATION,
'M.E'I!fPOLITAN OREGON "
B~ J., TH, LEAGUE OF OR.EGON CITIES
'MARGE DRY, CITY OF PORTLAND
JODI PIT U:" HOUSING AUTHORITY OF PORTLAND
JOHN McG, lW,HOOSING AUTHORITY OFPORTLANo, RESIDENT
GARY LaV\OEY, MAPLE-MALLORY PROJEcT, MANAGER .
PETER GR JNDFOSSEN, HOOSING AUTHORITY OP PORTL1\ND
----------------------------------------------------------------------
TRESE MINUTES PARAPRRASE ANI JOR SDMMARIZE STATEMENTSMAoE DORING THIS
MEETING. TEXT ENCLOSEO IN )OOTATION MARKS REPORTS A SPEAKER'S EXACT
WORDS . FOR COMPLETE CONTEN1 S OF THE PROCEEDINGS, PLEASE REFER TO THE
TAPES.' ;
------~_._------------------._----------------------------------------
."T~E"l3.Q,,;SIDE A
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Meeting called to order at B :07 a.m, as a subcommittee
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Date Receivecl
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Senate Committee On Government
Operations & Elections
May 26. 1989
problem' in other counti,!s?
MR. GRUNDFOSSEN: I don": know.
PUBLIC HEARING
HB 3224 RELATING TO SYSTEM D.,:."VELOPMENT CHARGES
062 JIM IRVINE, OREGON STATE HOMEBOILDERS ASSOCIATION: The homebuilders
perspective is that HB 3224, is a good piece ,of legislation that
resolves the long la;ting concern, between the homebuilders
representatives and th! local government as related to system
development charges (SOl). HB 3224 deals with the issue of SOC and
insures that th~ will le put into the infrastructure and capital
. improvements;.: roads:, 101 Iter, sewer and park development as the
monies 'are collected.
.lOl
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139
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MAR~E ,KAFOlJRY, CITY Of ::'ORTLAND: Spoke in support of HB 322~. 1i!2.
llli incorporates, a cer:ain set of principals. Local governments
retain the m:al\imumfle> ibility on financing capitol improvements
'to infra,structure systems., Equity must be preserved between
existing residents and new systems users. SDC revenue should be
spent only on the purpo;es for which they are collected and local
government should be held accountable for how and where they will
\ be spent. Statutory language should reflect' the differences
between a' reimburseme It or' an equitable buy-in SDC and an
improvement or impact fEe SOC and the methodology used to Calculate
SDC'should be fair and~rational and subject to public review and
challenge. The spe~ifi methodologies that local governments would
use would be a matt~r 0 local control and not defined in statute.
B. J. SMITH; LEAGUE OF :lREGON CITIES: Discussed the complexity of
SOC's, the challenge was to. create a uniform framework that would
take all of those SDC' 5 for all sizes of communities, facing
different financial situations and different types of
infrastructure and come up with a bill. We tried to focus on how
~he SOC methodology anc cost structu~~ should b~ conStructed and
open to public review and we allowed time for cities to come into
compliance with all of the restrictions, mandates and
authorizations of the.b: 11. . Discussed synopsis of HB 3224, EXHIBIT
E'. .
299 CHARLIE HALES, BOMEBUIL lERS ASSOCIATION, METROPOLITAN PORTLAND: HB
ID.!. represents consens IS between: local government and the housing
~ndustry.. The bill.will prOvide :tertainty to iv~ryone, the money
. , ,,:,~J.l:~~s~e~~,.~,n SDC's 1.'111 be spent on capital improveme~M, d~Poliived
..' 7f:.govemments can enact and use SOC's ,as provided by th\!q\:lifnk\Ri~1
352' CH:' iOTTo: Expressed apJ.reciation of the groups working d.!tJ~ Q~;<<r
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Senate Committee On Government
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May 26. 1989
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problems and presenting a united package instead of the Legislature
acting the role of mediator.
372 SEN. SPRINGER: What pertion limits legal action~ to 60: days of
appeal?
MR. HALES: Lns. 39-41 en p,g. 2.
380 SEN. SPRINGER: Was it' :aid that it ,is somewhere specified that a
writ of review is the ~lly way to ini~iate such a legal challenge?
MS. SMITH; '{es on pg. :;. Ins. 10-11. '
395 'SEN. SPRINGER: Where Hill this go in the' ORS? If it is not
appropriately cross-referenced it can create a trap. '
MS. SMITB:: On pg., 3. bs. 35-36, it was offer,ed with counsel the
suggestion that this b~ placed in ORS 223.205. '
418 SEN. SPRINGER: In section 6 I am concerned about a plan; which is
defined.to mean a'capitil improvement plan, a public facility plan.
master. plan or comparab.e plan is not going to be sub.jectto review
under ,a normal ,land 'usfreview process. Why are we doin.9 'that?
MR. HALES: It is our' ,ntention that the plan that outlines the
expenditure of'SDC mone f and other capi t'al improveme'nt funds would
be an" implementin'g ordinance for the local governments
comprehensive plan,. The compr'ehensive plan adoption and
modif ieation ,would remi'in under ORS 497. '
468 SEN. SPRINGER: Has, tle Department of Land Conservation and
,Development been invol 'ed' in that discussi'on. are' they, aware of
this?,
MR. BALES: I know they ire aware of the legislation, they have not
contacted us with any (~ncerns regarding it.
TAPt:: 130, SIDE'B
. ,
WORK ,SESSION
"
028 MOTION: SEN. BOOCK MOVED BB 322,4 TO THE FLOOR WITB"A DO PASS
RECOMMENDATION. .
032 SEN. SPRINGER: I appreciate the c~:lOsensus process, but I am
concerned that no ones?oke to me prior to the hearin9 if it is as
important as it is said to be. I have questions that have not been
adequately resolved~ .
osi
VOTE: MOTION cARR :ED.4-L ' (VOTING NO:
:" ,OTTO WILL LEAD, THE PLOOR DISCtlSSION.
. ~".~n r<I\.: : '
SEN. SPRINGER). CH.
Date Received
. JUL 0 7/(~ '
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CERT :FICA TE OF SERVICE
2
3
I hereby certify that on the date :tated below, I served a true and correct copy of this
Memorandum by first class mail on the following person(s):
4
5 Meg Kieran
Harold, Leahy & Kieran
'6 223A Street, Suite D
7 Springfield, OR 97477
Laurence E, Thorp
Thorp, Purdy et al.
1011 Harlow Rd., Suite 300
Springfield, OR 97477
8
9
10 Dated July 2. 2004.
Attorney for Respondent
Attorney for Intervenor
II
12
13
14
15
16
IBiJ oos
Attorney for Petitioners
CER' 'IFICATE OF FILING
L KLOOS, P~ J
,/~
By:
I hereby certify that on July 2, 2004, I filed the original of this Memorandu, together with
two copies, with the Land Use Board of Appeals, 550 Capitol St. N.E., Suite 235, Salem, OR
17
18 97310-2552, by first class mail.
19 Daled July 2, 2004.
20
21
22
23
24
25
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28 CERTIFICATE OF SERVICE AND FIUN:;
Date Received
JUL 07/oJ
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