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HomeMy WebLinkAboutPlan, Final DLCD 2/6/2006 "~I 'Vregon Theodore R KulongoSki, Governor' Department of Land Conservation and Development 635 Capitol Street NE;Suite 150 Salem, Oregon 97301-2524 Phone: (503) 373-0050 First Floor/Coastal Fax: (503) 378-6033 Second Floor/Director's Office: (503) 378-5518 Web Address: http)/www.oregon.gov/LCD NOTICE OF ADOPTED AMENDMENT ~ February 7 Z006 TO: Subscribers to Notice of Adopted Plan or Land Use Regulation Amendments . FROM: Mara Ulloa, Plan Amendment Program Specialist SUBJECT: City of Eugene/Springfield Plan Amendment DLCD File Number 002-04R The Department of Land Conservation and Development (DLCD) received the attached notice of adoption. A copy of the adopted plan amendment is available for review at the DLeD office in Salem and the local government office. Appeal Procedures' . DLCD ACKNOWLEDGMENT or DEADLINE TO APPEAL: February 22, 2006 This amendment was submitted to DLCD for review 45 days prior to adoption. Pursuant to ORS 197.830 (Z)(b) only persons who participated in the local government proceedings leading to adoption of the amendment are eligible to appeal this decision to the Land Use' Board of Appeals (LUBA). If you wish to appeal, you must file a notice of intent to appeal with the Land Use Board of Appeals (LUBA) no later than'ZI days from the date the decision was mailed to you by the local government. If you have questions, check with the local government to determine the appeal deadline. Copies of the notice of intent to appeal mustbe served upon the local government and others who received written notice of the fmal decision from the local govenrinent. The notice of intent to appeal must be served and filed in the form and manner prescribed by LUBA,(OAR Chapter 661, Division 10). Please call LUBA at 503-373-1265"ifyou have questions about appeal procedures. *NOTE: THE APPEAL DEADLINE IS BASED UPON THE DA TE THE-DECISION . . WAS MAILED BY LOCAL GOVERNMENT. A DECISION MAY HAVE BEEN MAILED TO YOU ON A DIFFERENT DATE THAN IT WAS MAILED TO DLCD. AS A RESULT YOUR APPEAL DEADLINE MAYBE EARLIER THAN THE ABOVE DATE SPECIFIED. Cc: Gloria Gardiner, DLCD Urban Planning Specialist M~guerite Nabeta, DLCD Regional Representative Stephanie Schult, City of Eugene/Springfield Date Received FEBO 6 200111): , , <paa> ya/ Planner: BJ J~. ':::,Y FORM 2 D LCD NOTICE OF ADOPTION DEPT OF This rorm must be mailed to OLCD within 5 workin~ daYS after thennal decision per ORS 197.610, OAR Chapter 660- Oirision 18 (See reverse side for submittal reauiremeD~) FEB 0 2 2006 LAND CONSERVATION AND DEVELOPMENT . Jurisdiction: kn<L..('h[)Y\-1"'lJ\ Local File No.: Or~'I'\~Y\c~~N~o .-J (Ifno number, use Il9ne) Date of Adoption: ,:-T"I\ ....\,,\.I/".>.~ ~n()b Date Mailed: '-...\o..~~~ ~\ 1~()f'\f- v~tinde.9ln) . u orsemJ'~~ Date the Notice of Proposed Amendment was mail~ to DLCD: ~?' _ Comprehensive Plan Text Amendment Comprehen~ve Plan Map Amendment _ Land Use Regulation Amendment _ Zoning Map Amendment . , _ New Land Use Regulation $ Other. J"<e.YV\o. V\A Re,,,,\?,,n<1" .).. '!I-erJ,Jn3 . (please specify Type ofActiOll) 0 ~ .l0o. .. .. . . PA!~ Summarize the adopted amendment. Do not use technical terms. Do.not write "See Attached.' -,- Responding to the LUBA Remand of Provisions in Ordinance No. PA 1209 and Amending . . _ that Ordinance by Adoption of a New Exhibit 'B' Showing Modifications to the Eugene- . . Springfield Metropolitan Area Public Facilities and Services Plan; Adopting Savings and -'- Severability Clauses; and Declaring an Emergency Describe how the adopted amendment diffen. from the proposed amendment. If it is the same, write "Same." If you 'did not give notice for the proposed amendment, write "Nt A." wit::>. I R.... ""'^ ~A. Plan Map Changed from: "'; A. Zone Map Changed from: rvl f- Location: t=: u91 e..Vle..-Sf+l J.. }(\.e:t r-o Specify Density: Previous: - Applicable Statewide Planning Goals: I.?... I I Was an Exception Adopted? Yes: No: )/ to ""' to Acres Involved: . New: - Date Received OLCDFileNo.: _/')0"... o+tlJ11f~) (iZ3 DB) ---;:-:::;:; li ;G ltllJ~--' Planner: BJ- < . . . Did the Department 9fLand Co~ervation and Development ,receive a notice of Proposed AmendrnentFORTY FIVE (451 davs nrior to the first evidentiarv hearin~. Yes: _ No:..x. Irno, do the S1atewide Planning Goals apply. Yes: -X Yes: X No: If rio, 'did The Emergency Circumstances Require immediate adoption. .. LLl1S.t>- R~.l>ND . Affect~ State o~ Federal Agencies, Local Governments or Special Districts: '" W All C _\ C;:, 1 ~ ~I'\ ~ <~r\"')~\"'\~ . D~~ .. . . LoCalContact:~~;(.~~\.p~~ AreaCode+PhoneNumber~4 0 6-o..~'lS-& Address: I ~ ~ _ <tfk.A,. V (J. City:. E. I ~ ..... "- ' ZipCode+4:~1 ~~G\?!... EmaiIAddress:~(...l...I..~U.l.l.al.le.or.l.! No: ADOPTION SmJMITTAL REQUIREMENTS. . This form mnst be mailed to DLCD within 5 workinl!" davs after the final decision 'per ORS 197.610, OAR Chapter 660 - Division 18. i' L Send this Form and TWO (2\ Conies of the Adonted Amendment to: ATTENTION: PLAN AMENDMENT SPECIALIST DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT 635 CAPITOL STREET NE, SUITE 150 SALEM, OREGON 97301-2540 2. Submit TWO (2) copies the adopted material, if copies are bounded please submit TWO (2) complete copies of docwnents and maps. 3. . Please Note: Adopted J,llaterials must be sent to DLCD not later than FIVE (5) working days following the date of the final decision on the amendment. I . 4. Submittal of this Notice of Adoption must include the texl of the amendment plus adopted findings and supplementary information. . 5. The deadline to appeal will not be extended if you submit this notice of adoption within five . working days of the final decision. Appeals to LUBA maybe filed within TWENTY-ONE (21) days of the date, the "Notice of Adoption" is sent to DLCO. 6. In addition to sending the "Notice of Adoption" to DLCD, you must notify persons who participated in the local hearing and requested notice of the fmal decision. · .. . d 7. Need More Copies? You can.c~pythis form on to 8-1I?xll green paJ;)W@; 6@.Jt~lye DLCD Office at (503)373-0050;. or Fax your request to:(503) 378-5518; or E~I6'~OO'\JJ'i request to Mara.U1Ioa@State.or.us- AlTENTION: PLAN AMENDMENT SPEClt\Lrst. . I J:\pa\paa\fonm\f0rm2_~doc Planner: BJ. .: PASSED BEFORE THE BOARD OF COUNTY COMMISSIONERS OF LANE COUNTY, OREGON ) IN THE MATTER OF RESPONDING TO THE,LUBA ') REMAND OF PROVISIONS IN ORDINANCE NO. P A 1209 ) AND AMENDING THAT ORDINANCE BY ADOPTION ) OF A NEW EXHIBIT"B" SHOWING MODlFlCA nONS ORDINANCE No. PA 1230 . ) 'TO THE EUGENE-SPRINGFIELD METROPOLITAN AREA ) PUBliC FACILITIES AND SERVICES PLAN; ADOPTING ) SAVINGS AND SEVERABILITY CLAUSES; AND ) DECLARING AN EMERGENCY WHEREAS, the Eugene,-Springfield Metropolitan Area General Plan (Metro Plan) identifies the Eugene-Springfield Metropolitan Area Public Fac/lilies and Services Plan (Public Facilities and&rvices Plan) as a refmement pIan which founs the basis for the Public Facilities and Services Element of the Metro Plan and guides the provisiQn of public facilities and services in the metropolitan area; and WHEREAS, the Public Facilities ami Services Plan selVes the goals, objectives and policies of the Metro Plan by addressing the provision of public facilities and services within the urban growth bound- ary (UGB), services to areas outside the UGB, locating and managing public facilities outside the UGB, and financing public facilities; and WHEREAS, in July and August of 2004, amendments ta the Metro Plan and the Public Facilities and Services Plan were adopted at the request of the Metropolitan Wastewater Management Commission (MWMC) to reflect updated information on facilities and improvement projects needed ta meet state and federal discharge reqk._~_"ts, specifically Qn August 25, the Board of Commissioners adopted Ordinance No. PA 1209 and amended the Metro Plan and Public Facilities ami Services Plan as set forth in Exlnbits "A" and "B" to that ordinance, action that was identical to enactments of the Springfield and Eugene city councils; and WHEREAS, those actions were appealed to the Oregon Land Use Board of Appeals (LUBA) and on September 2, 2005, LUBA issued.its decision upholding the local b-' __=.ont actions on most of the issues raised by the petitioners, hut remanding the actions based on one issue as described in the staff report and LUBA decision attached as Exhibit "A'" and incorpomted herem, and directing only that the three ju- risdictionS describe Project 300 with greater specificity and consider descnlling Projects 30 I and 302 with greater specificity in the Public Facilities and Services Plan to comply with Statewide Planning Goal II and the Goal II Rule; and WHEREAS, in response to the LUBA remand, a new Exlnbit "B", which is attached hereto and incorpomted herein, has been prepared containing the additional detail and specificity for Project 300, 301 and 302 ta CQmply with the Goal II Rule as directed or suggested by LUBA and descnCed more fully in the staff reports accompanying this ordinance, and Ordinance No. PA 1209 should be amended by replac- ing the Exhibit "B" attached tQ that ordinance with the Exhibit "B" attached hereto, which is based on the same evidence and record that was before the Board when it acted on Ordinance No. PA 1209; and WHEREAS, the MWMC will be unable to proceed with timely construction necessary to m";'t the new and more stringent discharge permit requirements imposed by the state Department of Environ- mental Quality (DEQ) if the revisions to the Public Facilities and Services Plan as effected by Ordinance No. PA 1209 and amended herein do not become immediately effective; and ?rdin~ce ~o. PA 1230 -I~the Matter ofR~onding to t~e LUB~ Re~and o.fProvisions in O:dinance No. PA 12nn~"~dReceived 109 that Ordmance by AdoptIOn ofa New Exhlblt "B" Showmg Mo(ilficatlOns tathe Eugene-Spnngfield MetrQPoliia~e~'flfc Facilities .and Services Plan; Adopting Savings all~ Severability Cb.uses~ and Declaring an Emergency Page I of2 :~j1\N 5ll011~J ___ ___._J _ Planner: BJ WHEREAS, the Board of County. Commissioners has conducted a puhlic hearing and is now ready to take action based upon the evidence and testimony already in the record as well as the evidence and testimony presented at the public hearing held in the matter of amending Ordinance No. PA 1209 and the Public Facilities and Services Plail to address the LUBA remand. NOW THEREfORE; the Board of County Commissioners of Lane County ordains as follows: Section 1. Based on the above recitals and findings, which are hereby adopted, Ordin,mce No. P A 1209 is hereby amended by replacing the Exhibit"B" attached IQ it with the Exlnbit "B" attached hereto, which is hereby adopted as an l..'_N.h~_t to the Eugene--Sprlngfield Metropolitan Area Public Facilities and Services Plan to be utilized as described in that Qrdinance. Section 2. Except as amended herein, all other provisions of Ordinance No. PA 1209 and the at- tachments thereto, shall remain in full force and effect fulction 3. The .Board specifically finds that in order for MWMC to proceed with timely construc- tion necessary to comply with state and federal discharge permit requirements and achieve manda- tary compliance with certain regulatory requi...__:" by the year 2010, an immediate effective date is necessary for this Ordinance. FURTHER, the priQ': designations and provisions repealed by this Ordinance shall remain in full force and effect to authorize prosecution of persons in violation thereof prior to the effective date of this Ordinance. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, sneh portion shall be deemed a sepa- rate, distinct and independent provision and .such holding shall not affect the Vlllidity of the remaining por- tions hereof. . An emergency is hereby declared to exist and this Ordinance, being enacted by the Board in the exercise of its police power for the purpase of meeting such emergency and for the immediate preservation of the public peace, health and safety, shall take effect immediately upon adoption. . ENACTED this2 LfJ day Of~ 2006. ~ ~if-r. :Chair, Lan~county Board O~ioners l11eeJ''l:~ (2'J1rn.~; Recording Secretary lor this ~g of the Board APPROVED AS TO FORM Date 1- '! - :16lr:lill. lne County ~. ____ ( ~ if "f". _ f&,.. I . o lCEOF GALCOuN1EL Or~inance No. PA 1230-1ri the MatterOfR~spon~ing.to the LUBA Remand ofProvi~ions in '~rdinance No. PA9atJ3mBeceived ing that Ordinance by Adopti-on ofa New Exhibit "B" Showing Modifications to the Eugene-Springfi~/d Metropolitan Area Pllblic Facilities and Services Plan; Adopting Savings and Severability Clauses; and Declaring an Emergency JA N 2 5 200\lo -: ~, Page 2 of2 Planner: BJ EXHIBIT A MEMORANDUM City of Springfield To: From: Springfield Mayor and City Council Meg Kieran, Office of the City Attorney Greg Mott, Plarming Manager Susie Smith, Environmental Services Manager December 23, 2005[ J Land Use Board of Appeals (LUBA) Lim' 'Public Facilities and Services Plan (pFSP Management Commission (MWMC) Re Date: . Subject: ISSUE AND PURPOSE: The.purpose of this memo and the pro ose to fulfill the roJect descriptions in the ady in the record. of the . g the ordinance onservation and the waste requireme projects to pro vironmental Quality (DEQ) imposed new and more . s on the regional wastewater treatment facilities. process for new wet weather flow management ive evaluation of the existing system was needed to ge permit requirements. The result of this evaluation is C Facilities Plan detennined that the existing regional fficient capacity to meet state and federal discharge . 144--$160 million (in 2004 dollars) in capital improvement pacity for growth through 2025. . The acknowledged Ian. and 2001 PFSP (the Land Use Plans) did not inClude the capital improvement projects iliat would be needed to meet state and federal discharge requirements through the year 2025. The Land Use Plans needed to be updated .to include all existing regional Date Received DEe 2 3 2005, "-' Planner: BJ " (PFSP) Incorporating a..ctropolitan Wastewater Management Corrunission v,iWMC) Regional Wastewater Facilities Projects ,12/23/2005 Page 2 I wastewater facilities and planned regional wastewater projects, so that the MWMC Facilities Plan would be consistent with them. Therefore, in 2004, MWMC proposed several changes to the Metro Plan and PFSP. The proposed changes to the PESP included adding three tables (4a, 4b and 16a) to describe the projects recommended by the MWMC Facilities Plan and their projected cost and timing, and modifying Map 2 to show the locatio fthe planned projectsl. Table 4a listed three anticipated wastewater treatment system proje . ec WPCF Treatment Project; Project 301, Residuals Treatment Project; and P cial Reuse Project. Table lib listed three anticipated collection sysle .ec. iIlakenzie Pump Station; Project 304, Screw Pwnp'Station; and P. , Gle tation. Map 2 depicted the general physical locations of these proj able 1 . ate of the cost of each project and its estimated:comple~on The Springfield City Council adopted the proposed am Metro Plan and PFSP on July 19, 2004 by Ordinance Nos and Lane County adopted similar ordinances adopting id with the Adopted Amendments and filed: appeals with L 2004. HBA APPEAL TO LURA: LURA'S DECISION: the Cities and County that Project 300 (wpCF er specificity. LUBA suggested that the Cities for Projects 301 (Residuals Treatment see if greater specificity was warranted, revised. otinsel and staff recommend four modifications to the d Amendments is attached, with the recommended format (Attachment 2). recommends the addition of Proj ects 300A to 3001 to ressly r~quired by LUBA as to Project 300. Although not commends the addition of Projects 301A, 30lB, 302A and 302B'. I ! I A new Map 2': was inserted to show the location of the existing regional wastewater system. 2 Other changes were recommended, but they werr not part of the appeal to LUBA. Date Race ived bEe :l 3 200b~ Planner: BJ " (PFSP) Incorporaling, . Facilities Projects . , .ropolitan Wastewale~ Management Conu'nlSS101., }WMC) ReglOnal Wastewater 12/23/2005 . Page 3 Staff believes these additions are advisaBle in light ofLUBA's directive to re-evaluate Projects 301 and 302. I 2) MaDs 2 and 2a. Staffrecommends that Map 2 be modified to depict all of the . projects and sub-projects, including the projects shown on Map 2 of e 2001 PFSP. Map 2a, contained in the Adopted Amendments, was misprinted. Staff also en at Map 2a be replaced with the correcrmap (from the Technical Background Re own in Attachment 2 to this memo are the "misprinted" maps and . ncl son with the corrected maps depicted in Attachment I, 3) Table 16a. Because additional sub-pro' recommends that corresponding additionS be made to timing estimatesare set forthforeach sub-project. Th 302 are lower than they were in the Adopted Ameridmen improvement projects recommended by the MWMC Facili term is defined in the Oregon AdIIlinistra,tive Rules gov Therefore, it is not appropriate for the cost of those capital i in the PFSP. ' 4) Chanl!es to the Text. Staffreco "Treatmerif' discussion on page 4 of the rem projects. Staff also recomm'ends adding a d' capacity, following the "Conveyance"dic 011-0020(2) requires that a public facility Although the data regarding capacity: as c ed . Adopted Amendments were not ili y coul Therefore, an explicit descriptio capacity All of the evidence required before the Cities and Co additional analysis, docum ting that the Adopted Amendments to the of the following have occurred: I) the )at least 3 ys have passed since the ordinance was e County had adopted similar ordinances. Because the nts, the first condition has not been met. Therefore, the Plans are not in effect. opting a new ordinance that modifies the previous isions immediately effective3 so that MWMC has the s from DEQ and permits from the City of Eugene to 3 The Council that, even if tlie remand revisions are immediately effeclive, they will not be acknowledged unn I periods have again passed. Therefore; interim permit approvals will not be issued pursuant to an acknow ed Metro Plan or PFSP. However, staff believes that any risk created by the lack of an acknowledged plan is outweighed by the danger ofMWMC not being able to meet its permit requirements. . . . .. . Date Received DEe 2 3 2005.1 Planner: BJ (PFSP) Incorporating h....(ropolitanWastewater ~anagemenl Commission \-..WMe) Regional Wa.stew~ter. Facilities Projects 1212312005 Page 4 \ commence needed construction projects ?ver then>ext several months. Construction must begin promptly in order to achieve mandatory regulatory compliance by the year 2010. .,Any delay now would affect all future stages of construc!ion, including funding, designing the projects, bidding the projects and, finally, constructing them. Unlessthe projects are completed on schedule, MWMC could violate its NPDES pennit: . . I RECOMMENDATION AND REQUESTED ACfION: Legal Counsel and staff recommend that the Council ado expanded MWMC facility projects descriptions in resp that makes the remand revisions effective upon adopti Therefore, Council is requested to consider lidoption following the public hearing on January 17,2006. Date Received DEe 2 3 lODe;' Planner: 8J " I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 , 22 23 '24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 4S ~.--...... SEP - 6 2005 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON , HOME BUlliDERS ASSOClA TION OF LANE COUNTY and HOME BUILDERS CONSTRUCTION COMPANY, . Petitioners, " vs. CITY,OF SPRINGFIELD, CITY OF EUGENE and LANE COUNTY, "Respondents, , and "I METROPOLITAN W ASTEW ATER MANAGEMENT COMMISSION, Intervenor-Respondent. LUBA Nos. 2004-118,2004-122, 2004-126,2004-127 and 2004-142 'I SEP02'05 Pt1 1:19 LUBA FINAL OPlNION AND ORDER . Appeal from City of Springfield,' City of Eugene and Lane County. Bill Kloos, Eugene, filed the petition for review and argued on behalf of petitioner. With him 'on the brief was the Law Office of Bill Kloos, PC. Meg E. Kieran, Springfield, filed a joint response brief and argued on behalf of respondent City of Springfield. With her on the brief was Harold, Leahy and Kieran. Emily N. Jerome, Eugene, filed a joint response brief and argued on behalf of respondent City of Eugene. With her on the brief were Jerome Lidzand Harrang Long Gary . 'r. Rudnick, PC. !i , . (i Stephen L. V orhes, Assistant coUnty Counsel, Eugene, filed a joint response brief and argued on behalf of respondent Lane County. G. David Jewett, Springfield, filed a joint response brief and argued on behalf of intervenorcrespondent. With him on tlie brief was Thorp Purdy Jewett Urness Wilkerson, PC. Page 1 Date Received ~ltr I) 6 lfffl151 l.. ~ .J Pfanner:BJ . I 2 3 4 5 6 7 HOLSTUN, Board Member; DAVIES, Board Chair; BASSHAM, Board Member, ., participated in the decision. ': REMANDED 09/02/2005 You are entitled to judicial reView of this Order. Judicial review is governed by the provisions ofORS 197.850. .:' . Date Received SEP 0 6 200~ Planner: BJ Page 2 ., Opinion by Holstun. 7 INTRODUCTION I 8 The Metropolitan Wastewater Management Commission (MWMC), which was .1 9 created by an intergovernmental agreement between the cities and county, adopted a MWMC 10 Facilities Plan for the Eugene-Sprfugfield Wastewater Treatment Facilities (MWMC .1 A list and explanation of the more important acr~nyms and abbreviated document titles that we. use in this opinion is set out below in alphabetical order to provide a single point of reference to assist in keeping up with them. . , . Metro Plan. The Eugene-Springfield Metropolitan Area. General Plan (Metro Plan), along with numerous refinement plans, is the comprehensive plan for the cities of Eugene and Springfield and the urban area of Lan. County. Citations in this opinion to the Metro Plan are to. the Metro Plan as amended through 2002. The Metro Plan defines refinement plan, as follows: /, "Refinement plan: A detailed examination of the service needs and land use issues of a specific area., topic, or public facility. Refinement plans of the Metro Plan can include specific neighborhood plans, special area plans, Qr functional plans (such as TransPlan) that address a specific metro Plan element or sub-element on acity-Wide or regional basis:" Metro Plan V-So I ! .MWMC: The Metropolitan Wasiewater Management Commission. An entity that was created by an int,,!;". ....mental agreement between the cities of Eugene and Springfield and Lane County, to manage and operate a regional wo.,w...... coUcetion and treatment system. MWMc Facilities Plan. The Metropolitan Wastewater Management Commission Facilities .Plan for the Eugene-Springfield Regional Wastewater Treatment Facilities, which was adopted in 2004. The city and courity decisions adopting the MWMC Facilities Plan are the subject of this appeal. . 'PFSP, The Eugene-Springfield Public Facilities and Services Plan (PFSP) .is a Metro Plan. refinement plan that was adopted to comply with the requirements of Statewide P.lanning Goal 11 (public Facilities and Services). City and county decisions adopting amendments to the . PFSP and Metro Plan, which are related to the MWMC Facilities Plan, are the subject of a differentLUBA appeal, LUBA Nos. 2004'090, 2004-105, and 2004-114. Page 3 Date Received SEP 0 6 20~ Planner: BJ I Facilities Plan) on May 6, 2005. Thereafter, the cities and county adopted that MWMC 2 Facilities Plan. Those decisions were appealed to LOOA. In a separate decision issued this 3 ,date, we dismiss thilt appeal and explain the relationship between that consolidated appeal 4 and this consolidated appeal. HBA of Lane County v. City of Springfield, City of Eugene and \ " 5 . Lane Co., _ Or LUBA _ (LOOk Nos. 2004-090, 2004-105 and 2004-114). For the I 6 reasons explained in that opiriion, we conclude that the MWMC Facilities Plan was not 7 adopted by the cities and county to colnPly With Goal II (public Facilities and Services) or 8 the Goal II administrative role at OAR chapter 660, division II. We agreed with the cities 9 and county that the MWMC Facilities Plan was adopted for other purposes and, therefore, the 10 decisions adopting that MWMC Facilities Plan are not land use decisions. " , 11 In reaching our conclusion that ,the decisions adopting the MWMC Facilities Plan are 12 not land 'use decisions, we explained that the related decisions that are before us in this appeal I . 13 are land use decisions. The land use d~cisions that are before us in this consolidated appeal ,~ . 14 are the cities' and county's attempt to amend the Metro Plan and PFSP so that the. public 15 facilities that are called for in the MWMC Facilities Plan can be constructed. The PFSP is 16 the cities' and county's Goalll public facility plan. The regionalsewerage collection and 17 treatment facilities that are recommended in the MWMC Facilities Plan were not identified in 18 the PFSP when the MWMC Facilities Plan was adopted. In adopting the disputed PFSP and 19 Metro Plan amendments, we understajId the cities and county to have been attempting to 20 amend their Goal II public facilities :plan so that it will be consistent with the MWMC 'I , 21 .Facilities Plan and the projects that are recommended in the MWMC Facilities Plan can be I . 22 constructed consistently with .the amended PFSP and Metro Plan. 23 FIRST ASSIGNMENT OF: ERRORl 24 The question presented in the first assignment of error is whether the Metro Plan and 25 PFSP amendments that have been adopted by respondents are sufficient to comply with the 26 public facility planning requirements i1nposed by Goal 11 and the Land Conservation and Page 4 . Date Received SEP 06 200.51 L1 Planner: BJ .. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ~1 .) Development Commission's (LCDC's) Goal II administrative. rule, OAR chapter 660, division II. The dispute under the:first assignment of eITor concerns a number of new , regional wastewater collection and treatment system improvement projects that are included for the first time in the Metro Plan and the PFSP by the challenged amendments.2 Petitioners ' contend that the identification and description of those improvement proj~cts in the PFSP and Metro Plan amendments is too gener-d, and that far more specificity is required under the Goal 11 rule. All parties agree that the six improvement projects listed in the PFSP and \ . " Metro Plan amendments. wer~ derived from a . larger more detailed lisi of improvement projects in the MWMC Facilities. Plan. We illustrate below the manner in which those improvement projects are listed and described in the MWMC Facilities Plan and PFSP and Metro' Plan amendments, before turning to the relevant . provisions of the Goal 11 administrative rule and the parties' arguments. A. MWMC Facilities Plan, Improvem~nt Projects Forty-six regional wastewater facility improvement projects, in 13 separate phases, are listed in Table 7.7-2 of the MWMC Facilities Plan, along with the estimated cost of each project. Table 7.7-2 is almost six pages long. We set out one of the six pages (Record 2073) ~I . , on the following page to illustrate the)eveI of detail in the listing of facility improvement . projects, and their costs, in the MWM(Facilities Plan. The MWMC Facilities Plan actually . , " goes further and includes 24 "Project Fact Sheets".that provide more detailed descriptions of . each project. Record 2113-36. To illustrate, we have also included the project fact sheet page that 'describes the "South Aeration Basin Improvements" and "Outfall Mixing Zone 22 . Study" projects. Record 2114. 23 2 The. PFSP that resp~ndents adopted in 2001, along with related provisions in the Metro Plan iiself, . propos.ed improvements to the local portions Of the wastewater collection system, but proposed no regional wastewater system improvement projects. Page 5 Date Received SEP 06 20051 !_~ Planner: BJ lABlE 7.7.2 RacommendBd Project Ph8st\g Plar\ 'MIl Capllal Cost. Eslilules MYoIifCFllCiItl..Pla~ ElII/_Spt/n95erd Phale South'aoratlonbBstn outfaa mbdng zona .ludy , T,J7Wmry conslrucPon management I....... FiberOpIloWlrIng Illge"" ImprciVementt; Pbm t (2OOSJ2OoB) Secondary Clarifier F_.:,~.~........:"':.Part . . RIvW",""", Improyemenb BlocycJe Farm. Part 2 -. . GBTBulIdIng ,;,,,,,,,.....\W- ~elISludpe ThlollenIng) OdQftM Nt Treatmmt B:parisIon.Part 1 e_ Fwm . OlslribUDon ,E'qutpme'nt WWFWP Update i , " VWldl:;J.~.RE'RDOC 1 2 Page 6 ~~t1on Add ftap rGod. anoxic teI~ and IhWbUbble d1~, Aen'lovt hydrauUo restrfcllOOlIn bath aoulh and north b851ns (&fIJul'nt gmea).lrdudea 'ulure primary efRuonl now control oatn Jot' both north IlIld IOUIh blaR. . Updal~ 199.. UxJng Zone Stucl)'to-lM:countfor addNol1ziltOO mgd (approxfrnale) bankatdtooulfall capac1ty and torct'II:u.gn to tho . . WZametle River morphology Illat may have occurred 5ltlCll t~ lasl 81udywaa Condu.cted .- ModuIar;pece at WPCF M 5lan to men.g. oonalnlcUon ~I cOPbal proje<l> . lnstaD wiring betwoen BMF and WPCF OiO$Sler mbdng lmprovemsnb tor ftxlsting three d1gesl8rs Phass 1 SUbtotal Baffle,add InkllenGtgy diS$!pal~ cbonge (I~~.wen. CONllrUOt outboatit~~. Qnciretrrifii-sticllOO hfiat1Orb-~ng eight clariJI&rr,en'_~, ,..__,.....'._ conduc$ed In two plUta, each part COMl&ling of Jour oIarI~ From exfsllng MNMC FY ow04 '8udgeL- RegionalWulewaler. Program< I..~.,._~"._,~ to lrMIMC Iran Eugene revls9dfrom $228K 10 S330K 11 Feliruary 2004 ISO."".. .$e.l""P-:.-' -_118105:.P'..1inO bf3l1l6 Add 8 '1hIrd gravity bell thickener (GaT) l'Ii1h 88SOCIatid aI grade b1JldJng. Assumes aqdlUonaJ baselfl.M1 rJoor spac:o, Is not wquftd. Tw6 14--loot Wameter, 30 foot.taD-b/osCnlbber tow&rlor aIi' eoDedad from two primary C1arilier-eef.t:8twelb aIid fa1ihtllms and nBW_.dgs~!l9 ~~ . Four how reeb:'04' 610eyde Farm , EvatuBlerecently CO}lecfed ooIIet1Ion 5)'S1erri bowmonllotlng data, Update Md /Un coneonon ay:Jlem model, and confirm 'orniVbe) COTNey and treat approach .1.RI:coMNEHtlalPWt CO$'l.E;~t~ m $~.(JOO.ooa $160,000 $100,000 $10,000 .$2.000,000 $1$......00 -.. FY~ ~o,ooo $30<!.900 $2,600,000 $2,300,000 . $26<1,000 $26<I.O!JO t.,s 2073 Date Received SEP 0 6 200~} Planner:. BJ. ~ r"'~"'''''"'''''MI'!i\ilIiJ1lijilJ!IllllbJ.UIIIiI.'''.'"'''''jNJ~I-'''''l~~'~'''''''-'''''..".","..."."I"liIoo....i.Olol!"'..,,....... I I ! .j i ., 2114 ...;,~.~:,.y~". 1 2 ProJect Name: Descrlptlon: Justification: Prol9Ct DrlV8t; ProJoct Trigger: lype' 01 Project Estimated ProJect Cost (2004 DDIIat$~ Phasing: preject Name: Desc"":'Uon: Saultl AeratJo~ Basin Improv~enls Add step feed, anoxic selectors, end IJne bubble d1f1USGl1llo aouth sereUon basin. Remove hydraulic restrictions In bolh south and noM aeraUon basins (effluont gates:). 1noIudss future primary sHluenl llow control gales for both north and.outh aaraUOn basins. 1not....Ih. dry..._ .Ofallon basin lreolmen! capacity to 65 mgd wIIh r..poet 10 ammblllo (lo., wllh n1lrfilca1lon) IU1d I1or....1ho .lI8telned Q.... On B weekty basls) wet waalMr Ireatmenl capacfty. to 130"mgd. . NPDEs penpll in<:II!d&s l!mf!lOl1ia.llmh requiring nl1rlll:8tlon in mY we_, and expansion o} wel weather capaclty 10 troat wet weather flows 10 meet NPDES monlhlyond w.olcly suapended .ollds Umlts. . M"""'.." monlh dry w..ther now 0125 mgcl ,.qulrlng nhrllll:ellon. M.y flows ~d temperatures, co,u/d ~lr8 the USe of the tOUlh aeratJPn basins In COlIjUncUon wflh the north ael'Btlqn basins. .Peak wet weather flo'm above 103 mgd requJre- hydraulic n'IOcMc'aUona. 5O'h CopacIty; 50% Plllfonnarn:e $6,900,000 Budgeted 10' FY2004J05 OUlf;>lI Mlxfng ZDn. Study . Update 1994 Mbdng Zone Stu~ 10 account for add/Uonal1QO mgd (~Ie) benl<Sld. Oulfall.capeclly IU1d for che~ I. the Wilamolte RMir mot?hology \hi!.' rr.ey have OC(:urred since Ole last study was conducted JuctltJe8tlon: ., Project Driver. PrD/<ct Trigger: iype of ProJect 1 OQ% Perfo~a~ EsUmaled Project Cost $150.000 (2004.Dollars): Phasing: Budgeted for FY2004105 Page 7 " . . Date Received SEP 06 200il Planner: BJ <<---... , ~. / Read together, Table 7.7.2 and the individual "Project Fact Sheets" present a detailed 2 description of the recommended public facility projects in the MWMC Facilities Plan. 3 B. The PFSP and Metro Plan Amendments 4 The PFSP and Metro Plan Amendments list only six regional wastewater system 5 improvement projects. Those projects and their estimated costs and completion dates are .set 6 out in Tables 4a, 4b and l6a which appear at Record 643 and 646 and are set out below. 7 8 Table 4a 9 MWMC Wastewater Treatment System Improvement Projects 10 ., Project Project.N ame/Description . Number. 300 301 302 WPCF Treatment Project ~esiduals Treatment Proiect keneficial Reuse Project 11 12 Table 4b 13 MWMC Primary Collection System hnprovement Projects 14 Proj ect . . Number ProjectName~escription 303 304 Willakenzie Pump Stiition Screw PumP Station - blenwoodPumpStiition 305 15 .16 . Page 8 Date Received Sf? 0 6 2ll05! Planner: BJ .j ~ j I Table 16a 2 MWMC Wastewater Treatment and, Collection System Improvements, Rough Cost 3 Estimate, and Timing Estimate 4 ./ Project ProjectName/Description I Cost" Estimated Number ($000) Completion Year 300 I WPCF Treatment Project I $120,500 2025 301 I Residuals Treatment I $6,000 2018 Project 302 I Beneficial Reuse Project I $25,000 2018 303 I WiIlakenzie Pwnp Station I $6,000 2010 304 I Screw PUmp Station I $2,000 2010 J 305 I Glenwood Pwnp Station I $500 2012 J 5 6 c. The Goalll Rule 7 It is a tedious exercise, but we begin by reviewing the key sections of LCDC' s Goal . 8 II rule. That exercise is necessary, becauSe there is nothing in Goal II or the Goal II rule 9 that clearly and expressly supports either respondents"or petitioners' position conCerning the 10 requisite level of specificity that must be included in a public facility plan project list. II However, there are provisions in the Goal II rule that suggest significantly more specificity 12 is required than the cities and'county included in the Metro Plan and PFSP amendments that 13 are before us in this appeal. 14 We begin with the definitions of "public facility," "public facility project," and . 15 "public facility systems.,,3 These definitions are not particularly helpful in answering the 3 OAR 660-0 11 ~0005 is the Goal II rule definition section, and it provides the following relevant definitions: '''Public Facility': A public facility includes water, sewer; and transportation facilities, but does not include buildings, structures or equipment incidental to the direct operation of tbose facilities." OAR 660-011-0005(5). Page 9 "'Public Facility Project': A public facility project is the construction. or reconstruction of a water, sewer, or transportation facility within a public fa<:i1ity.system that is funded or utilized by members ofthe general public." OAR 660-01 1-0005(6). Date ReceivE3d SEP 06 2005-1 . , Planner: BJ " ,I / ' - , I question that must be answered under this assignment of error.. The OAR 660-011-0005(6) 2 definition of public facility project gives no hint tegarding the required level of specificity 3 when local governments "list" and "describe" public facility projects, as required by OAR 4. .660-011-0020(2). Similarly, the OAR 660-011-0005(5) definition of public facility provides 5 . no real guidance regarding how to go abeut listingiildividual. public facility projects, . 6 although it does specifY that incidental "buildings, structures, or. ~quipment:' are not 7 included.4 Finally, the definition of public facility systems is notparticuiarly helpful either, 8 but it does explain that a sanitaIysewer system is a collection of facilities and is made up of a 9 treatment system and a collection system. 10 We turn next to OAR 660-0Il-001O(1)(b) which requires that a Goal 11 public 11 facilities plan mustinclude: 12 "A list of the significant public facility projects which are to support the land 13 uses designated in the acknowl~dged comprehensive plan [md p ]ublic facility 14 project descriptions or specifications of these projects as necessary[.]" 15 (Emphasis' added.) 16 OAR 660-011-0020(2) and (3) elaborate on the "list of' .. significant public facility . 17 . projects" that is required by OAR 660~OIl-OI0(1)(b) and 660-011-0045. . Petitioners and 18 respondents draw opposite conclusions from these sections of the rule. OAR 660-011-0020 "'Public Facility Systems': Public facility systems are those facilities of a particular type that combine to p~ovide water, sewer or tr:a,nsportation 5~ices.' .. "For purposes of this division, public facility systems are lililited to the following: u. . . * * "(b) Sanitary sewer: "(A) Treatment facilities system; "(B) Primary collection system."OAR'660-011'0005(7). . . ... . 4 While a parking garage, a security guard s-lructliie;.arid'iliWIi moWing eqilipinent would seem. to tit easily . . within lhe meaning of "incidental bundings; structurMor;eqilipment,".the ulthiiule'SCope of this qualification on the definition of public facility is unclear. .. .. Page 10 Date Received SEP 06 20QS; Planner: BJ . , - 1 specifically addresses the inventory and the list of public facility projects that must be 2 included in a Goal II public facility plan.l OAR 660-011-0020(2) calls for identification of 3 "significant public facility projects" and requires that respondents "list the title of the project 4 and describe each project facility project in tenns of the type of facility, service area, and 5 facility capacity.~' OAR 660-011-0020(3) expressly recognizes that "project descriptions" 6 may ne.ed to be changed later during more detailed planning and construction phases. OAR 7 660-011-020(3) goes on to require that Goal 11 public facility plans "anticipate 0 . 0 changes . ~ . 8 as specified in OAR 660-011-0045." As relevant here, OAR 660-011-0045 does two things.6 5 OAR 660-011-0020 provides, in part "(2) The public facility plan shan identify significant public facility projects which ll!:e to support the land uses designated in the acknowledged comprehensive plan. The public facility plan shall list the title of the project and describe each public facility project in tenns of the type offacility, service area, and facility capacity. "(3) Project descriptions within the facility plan may require modifications based on . subsequent environmental impact studies, design studies, facility master plans, capital . improvement programs, or site availability. The public facility plan should anticipate these changes as specified in OAR 660-011-0045." (Emphasis added.) · OAR 660-011-0045(2), (3) and (4) provide: "(2) Certain public facility project descriptions, location or service area designations will . necessarily change as a result of subsequent design studies, capital improvement programs, environmental impact studies, and changes in potential sources of funding. It I. not the intent of this division to: "(a) Either prohibit projects not included in the public facility plans for. which unanticipated funding has been obtained; "(b) Preclude project .pecification and locntion decisions made according to .the National Environmental Policy Act; or .. "(c) Subject administrative and' technical changes to the facility plan to' ORS 197.610(1) and (2) or 197.835(4). '~(3) The public facility plan inay allow for the. following modifications to projects without amendment to the public facility plan: "(a) Administrative changes are those modifications to a public facility project . which are minor in nature and do not significantly impact the project's general description, location, sizing, capacity, or other general characteristic of the project; D*R~ Page II :S'8P ~ (6 0-5 P~anner: BJ r" .'/ 1 First, OAR 660-011-0045(2) expressly recognizes that the OAR 660-011-0020(2) Goal 11 2 public facility plan project list and description will likely have to be changed to accommodate 3 (1) projects that receive unanticipated funding in the future, (2) changes required by the 4 National Environmental Policy Act, and (3) administrative and technical changes. Second, 5 OAR 660-011-0045(3) explains when those future changes can occur without amending the 6 . Goal 11 public facilities plan, and OAR 660-011-0045(4)identifies when those future 7 changes will require a Goal 11 public facilities plan ainendment. 8 The elements that must be included in. a public facility plan are set out in OAR 660- . . 9 011-0010.7 There are a .number of required elements. For purposes of petitioners' first "(b) Technical and environmental changcs,are those modifications to a public facility project which are made pursuant to 'final engineering' on a project or those that result from the fuidings of an Environmental.Assessment or BnvirQnmentallmpact Statem~nt conducted WIder regulatiQns implementing the procedural provisions of the NatiQnal Environmental Policy Act Qf 1969 (40 eFR Parts 1500-1508) or any fedeml or State of Oregon agency project development regulations consisient.with that Act and its regulations. "(c) Public facility project changes made pursuant to subsection (3)(b) of this rule are subject to the administrative procedures and review and appeal provisions of the regulations controlling the study (40 CFR Parts 1500- 1508 or similar regulations) and. are not subject to lbe administrative procedures or review or appeal provisions of ORS Chapter 197, or OAR Chapter 660 Division 18. . . "(4) Land use amendments are those modifications or amendments to the list, location or provider of, public facility projects, which significantly impact a public facility project identified in lbe cQmprehensive plan and which do not qualifY under subsection (3)(a) or (b) of this rule. Amendments made pursuant to this subsection are subject to the administrative procedures and review and appeal provisions accorded 'land use decisions' in ORS Chapter 197 and those set forth in OAR Chapter 660 Division'18." 1 iu relevani, OAR 660-011-010 provides: "(I) The public facility plan shall cOntain the following items: n(a) An inventory and general assessment"ofthe condition of ail the significant public facility systems which support the land uses designated in the acknowledged comprehensive plan; . neb) 'A list ofthe significant public facility projects which are to support the land uses designated in the acknowledged compreherisive plan. Public facility project descriptions or specifications of these projects as necessal)'; ,..........~._A1'ii . Date R~\'I~ SiEiP ~~ ~: Planner: BJ Page 12 ~- 1 assigrunent of error, the key elements are the list of significant public facilities projects, and 2 rough cost estimates for those projects. OAR 660-011-0010(1)(b) and (c). OAR 660-011- 3 00 I 0(3) is also potentially significant. That rule makes it ~lear that if there are existing 4 planning docwnents that meet "all or some of the requirements" of OAR chapter 660, 5 division 11, those other existing planni,ng documents may be "incorporated by reference into 6 the public facility plan" that is required by the rule. In that event, only the referenced and 7 incorporated parts of such eXisting plans become part of the Goal. 1 I public facility plan. S Petitioners and respondents read the Goal 1\ rule to pennit very different levels of 9 specificity in the facility" project list that is required under OAR 660-011-0020(2). Petitioners' \ 0 argue: 11 "The six 'projects' added to the PFSP in Tables 4a and 4b are really categories 12 of multiple discrete construction projects. One can't tell from the list of six, 13 because the PFSP amendments are so cryptic. The six 'projects," with their "(c) Rough cost ~imates ofeach public facility project; "(d) A map or written description of each public facility project's general location or service area; . "(e) Policy statement(s) or urban growth management agreement identifYing the provider of each public facility system. If there is I)lore than orie provider' with the authority to provide the system within the area covered by the public facility plan, then the provider Qf each project shall be designated; "(f) An estimate of when each facility project will be needed; and "(g) A dis.cussion of the provider;s existing funding mechanisms and the ability of these and possible new mechanisms to fund the development of each pub Iic facility project or system.. . CCt **. . "(3) It is not the purpose of this division to .cause duplication of or to supplant existing applicable facility plans and programs. Where an or part of an acknowledged comprehensive plan, facility master plan either of the local jurisdiction or appropriate special district, capital improvement program, regional functional plan, similar plan or any combination of such. plans !!leets all .or some of the requirements of this division, those plans, or programs may be incorporated by reference mto the public facility plan required by lhis division. Only those referenced portions of such documents shan be .considered to be a part of the public facility plan and shall be subject to the administrative procedures of this division and ORS Chapter 197." Date Received SEP 06' 20lcl t_l Page 13 Planner: BJ " . 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21. 22 .23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 1 2 3 4 ~-, total of only 18 words of project titles and descriptions are opaque, or nearly. so, in the PFSP. What is really going to happen ovef the 20-year period is Unclear from the PFSP. Instead, it is spelled out in Chapter 7 of the MWMC 2004 Facilities Plan, which is disclaimed as a land use plan. "The list of six categories of projects in Tables 4a. and 4b needs to be broken down into the approximately four dozen construction projects that are .. contained in the six categories. These are. the 'projects' anticipated by the Rule.. The Rule requires an identification of 'projects' in the plan, not categories of projects. The projects have been identified in the MWMC 2004 Facilities Plan, but that is not the land use plan, according to the Respondents. "If LUBA would entertain rroding that the six categories of projects are ~projects' in the meaning of the [Goalll] Rule, then tUBA should be just as willing to find that a single projeCt listing would be ok, too. It would be a very small step to go from the list of 6 to a list of I projeCt, described as 'upgrades to MWMC wastewater conveyance and treatment facilities.' Neither the current approach nor a single mega project description is what the rule anticipates." Petition for Review 17. Respondents counter: ."Petitioners' i..;".l',,,;ation of the Goal 11 rules inserts words into the rules that are not there. Petitioners construe. the tetm 'list of significant public facility projects' in OAR 660-0ll-0010(1)(b) to mean 'detailed list' of 'each and every' public facility proj eCl In addition, Petitioners insert the word 'discrete' into the definition of public facility projeCt, which is 'the conStruction and reconstruction of a water, sewer or transportation facility within a public facility system.' The rule does'not i?clude the word 'discrete.' "Looking at the plain meaning of the words, Websters II New College Dictionary (Hough Miflliin Co; 2001) defines 'significant' in relevant part as: 'having or expressing a meaning: meaningful; momentous; important.' The term 'facility' is defined as something created to serve a particular function. Thus, the requirement that the land use plan include a 'list of significant public facility projects,' (where 'projects' is defined in the rule as the construction of or reconstruction of a facility) requires local governments to identify important or meaningful construction or reconstruction improvements to particular facility systems in terms of their function. "The six project titles named in the 2004 PFSP tables satisfy this requirement. They are representative of particular meaningful functions and geographic areas in the regional wastewater treatment and collection systems. Nothing more is required by OAR 660-01l-0010(1)(b)." Respondents' Brief24. Date Received. SEP 0 6 200:$ P'anner: BJ . Page 14 . ,- v We are unable to agree completely with either petitioners or respondents. Petitioners' argume!lt that the Goal I 1 public facility plan project list and description that is required by OAR 660-.011 -0010(1)(b) and 660cOl 1-0020(2) must be exactly the same as the project list that is included in the MWMC Facilities Plan finds no support in the text of the Goal II rule. As respondents correctly note, both of those sectionS of the rule include the adjective "significant," and petitioners make no attempt to .argue that all of the public facility projects in the MWMC Facilities plan are sigclflcant.& . Petitioilersalso' make no attempt to differentiate among the six projects that are listed in Tables 4a and 4b. With regard to Projects 303; 304 and 305, we note there are three projects listed in Table 7.7-2 that seem to correspond exactly or very closely with both the description and costs listed in Tables 4a and 4b for those three projects.9 Absent a more developed and focused argument from petitioners concerning Projects 303, 304 and 305, we reject petitioners' challenge to the adeqUacy of the 13. listing and description of those projects. 14 On the other hand, respondents make no attempt to explain why the concept of 15 '~public facility projects" should be dramatically different in the MWMC Facilities Plan and 16 the Goal II public facilities plan. Even if the Goal 11 public facilities plan u'p",ao..'lS at a 17 more general regional level, the cryptic reference to "WPCF Treatment Project" in Project 18 300 does not suffice as an adequate description for a significant public facility project that in · That would probably be difficult to do. One of the public faciiity projects listed on the page from Table . . 7.7-2 included . earlier in this opinion lists a $10,000 "Fiber Optic Wiring" project Without deciding the question here, that hardly seems like a "significant public facility projecf' that must be separately listed and described in a Goal II'public facility plan. Other listings of public facility projects in Table 7.7-2 include . listings for MWMC Facility Plan updates. Record 2073-77. It seems somewhat questionable that those are accurately cla"ified as "significant public facility projects." . . . .' Phase 2 projects include a project entitled "Screw Pump Station Expansion," which is described' as "Install 5" pump to increase capacity.from 84 to 99 mgd;" with an estimated cost of"$I,700,000." Record 2074.. Phase 2 also .includes another project entitled "Willakenzie Pump Station Expansion," Which is described as "install four. additional .14>mgd pwnps to increase capacity from 80 to 135 mgd,'" with an estimated cost of "$6;000,000." . !d. Finally, Phase 7 includes a project entitled "Glenwood Pump Station Upgrade," .which is described as "fromexistiilg MWMC FY 03/04 Budget - Regional Wastewater Program,'" with an estimated ~ost of"S500,OOO." Record 2075. ... . Page 15 . Date Received SEP 0 6 ZO~ . Planner: BJ , " . ] fact is made up of a large number of individual projects in the MWMC Facilities Plan. Those 2 individual' projects will be constructed in a number of different phases over a IS year period :'3 at a total cost of $]20 million. We agree with petitioners that, at a minimum, Project 300 4 must be broken doWn into its significant public facility project components. While that 5 bre.akdown does not necessarily need to match the project detail and specificity that is 6 provided in theMWMC Facilities Plan; we agree with petitioners that the cUrrent Project 300. 7 description is either meaningless or describes a number of significant public facilities projects 8 that are set out in the MWMCFacilities Plan. We particularly agree with petitioners that the 9 OAR 660-0] 1-0045(3) and (4) provisions that describe when and how future public facility ] 0 project changes must be reflected in Goal 11 public facility plan amen~ents are ] ] meaningless if such a broad and general listing and description is pennissible under OAR ]2 660-01 ]-00 I O(l)(b) and 660-0] 1-0020(2). 13 Because we must remand the challenged decisions so that respondents may more 14 specifically list and describe the significant public facility projects that are now grouped as 15 Project 300 in any event, we do not consider whether additional specificity is required for ] 6 . Projects 30 I and 302.. The parties have not directed their arguments specifically at those 17. projects and we have some question about the particular projec1s in the MWMC Facilities' . 18 Plan that make up ProjeC1s 301 and 302. However, it appears as though further breakdowns 19 are possible and maybe required; under the Goal II rule for Projects 30 I and 302 as well. On 20 remand respondents must consider that question. 21 The further detail that will be required on remand to separately list the significant 22 public facility projects in Project 300 afld the further detail that may be required to separately . . . . . 23 . list any separate significant public facility projects in ProjectJOl and 301 will resolve one of 24 petitiohers' objections concerning the cost estimates. Petitiohers als.o object that the 25 estimated total cost offacilities in t1)e MWMC Facilities Plan is$l44 ~ilIion, whereas the ..26 . estimated total in PFSP Table 16a.is approximately $160miljion. ~~SPT1mtf1im:tNed Page 16 SEP 0 6 20q~'; Planner: BJ . '0' J 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 .27 28 .- the $160 million figure includes the cost of a possible DEQ required improvement that is not included in the MWlYfC Facilities Plan:total. We do not understand petitioners to dispute that explanation. We do not consider petitioners' arguments concerning cost estimates further. The fust assignment of error is sustained with regard to Projects 300, 301 and 302 and denied with regard to Project 303, 304 and 305. SECOND ASSIGNMENT OF ERROR In their second assignment of error, petitioners contend the challenged decisions violate Goal 2 (Land Use Planning) because the 2025 planning period identified in the Metro Plan andPFSP amendments for the recommendeC:! wastewater treatment facility improvements is different from the planning period specified elsewhere in the Metro Plan for other planning purposes. Petitioners cite nothing in the statewide planning goals that mandates that planning periodS for different planning considerations must in aU cases be identical. Without further argument from petitioners regarding why these different planiring periods constitute a conflict that amounts to a violation of Goal 2, we deny the second assignment of error. lU1KD ASSIGNMENT OF ERROR Petitioners' argument under the third assignment of error relies in part on new Metro Plan policy G.9, which provides: "Wastewater conveyance lind treatment shall be provided to meet the needs of projected growth inside the urban growth boundary that are capable 'of complying with. regulatory r~quirements governing beneficial' reuse or discharge of effluent and beneficial reuse or disposal of residuals." Record 18. Petitioners contend that while the disputed PFSP and Metro Plan amendments propose facility improvements that will dramatically. increase the MWMC regional wastewater treatment and disposal capacity, respondents "have ignored + · · the need for collection capacity that will allow dev.elopment of undeveloped or underdeveloped areas in the [urban growth boundary]." Petition for Review 25. According to petitioners,thisfailure means the Page 17 Date Received SEP 0 6 200~\ Planner: BJ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 . 33 I . 1 challenged PFSP and Metro Plan Jendrnents lack the "adequate basis in fact" that is (I required by Goal 2 and are inadequate to comply with Goal II. Respondents explain that the larger wastewater collection, treatment and reuse system is made up of a primary collection s~stem which begins with private laterals that convey , wastewater from private properties to the cities'collection systems which in turn convey that .. ~ . wastewater to the MWMCsystem of,collection pipes and pumping stations. The MWMC collection pipes convey that wastewa~er to the regional water pollution control facility, a biosolids facility and a beneficial reusJ facility. Respondents go on to respond to petitioners' argumentas follow.;: "Collection system improvement projects are included in Table 4b and 16a and are pump station improve':'lents. Tables 3 and 4 of the 2001 PFSP also describe planned collection ~em projects. The Executive SummaIY of the MWMC Facilities Plan describes the conveyance system; Chapter 3 also describes the condition of the existing wastewater conveyance system; Section 5.41 describes the design cap,acity of the conveyance system; and SectioiI 7.1.2 recommends conveyance system improvements. The recommended conveyance system improvements are the Willakenzie Pwnp .Station, the .. Glenwood Pump Station and the Screw Pump Station, which are included in the PFSP Tables 4b and 16a. iiThere are no recommended projects related' to sewer pipes. Hence, no such projects are contained in Tables 4b and 16a. In fact, Section 7.1.1 of the MwMC Facilities Plan expressly states that additional conveyance system iinprovements are not necessary. "Petitioners do not, and cannot explain how the above descriptions, findings and explanations in the reco~d and the list" of pump station improvement projects are not adequate to serve the existing aild future collection needs of . the service area. As such, the Board should deny Petitioners' third assignment ofenor." Respondents' Brief37-38 (citations and footnote omitted). . .We are not sure we understand petitioners' argument. They s.eem to be arguing that " more collection pipes or improved collection pipes will be needed to utilize the extra treatment capacity that the disputed PFSP and Metro Plan amendments,recommend. We understana respondents to contend that with the wastewater treatment system improvements that are recommended in the PFSP and Metro plan amendrnentsand the MWMCFacilities ., Plan, no further improvements in the collection system ate needed. . Other than possibly Date Received SEP 0 6 20~ Planner: BJ Page 18 , ., " " 1 disagreeing With respondents' contention, petitioners offer no reason to question it. Without 2 a more developed argument from petitioners under their third assignment of error. we agree 3 . with respondents that it does not present an additional basis for remand. 4 The third assignment of error is denied. 5 Respondents' decisio~ are remJnded. . 1 Page 19 Date Received SEP 0 6 200L~, Planner: BJ- .' " . Certificate of Mailing :I , I hereby certify that I served the foregoing Final Opinion and Order for LDBA No. 2004. 118/122/126/127/142 on September 2,2005, by mailing to said parties or their attorney a true copy thereOf contained in a sealed envelopb with postage prepaid addressed to said parties or their attorney as follows: . 'I Bill Kloos . Law Office of Bill Kloos PO Box 11906 Eugene, OR 97440 Emily N. Jerome Harrang Long Gary Rudnick PC 360 E 10th Avenue, Suite 300 Eugene, OR 97401 G. David Jewett Thorp Purdy Jewett Urness & Wilkinson PC 1011 Harlow" Road Suite 300 . ~: . Springfield, OR 97477 ': . Meg Kieran Harold Leahy & Kieran 233 A Street Suite D Springfield, OR 97477 Stephen L. V omes Assistant County COWlSel 125 E. 8th Street Eugene, OR 97401 ,. l ,I I Dated this 2nd day of September, 2005: Ii KeJly Burgess Paralegal ~.;';t-;. ,- \'. Dat'aeceived '/--.K~sti~,. SEP 06 zaae) , AdImIDstrative SpeCialist ~ .J Planner: BJ . .' . -;1 'I ., EXHIBIT B PROPOSED CHANGES TO THE PUBLIC FACILITIES AND SERVICES PLAN (PFSP) 1. Modify the text preceding existing Table 3 to read as follows: " Planned Wastewater System Improvements Planned wastewater system improvetb.ent projects are listed in tables_3 4, 4a and 4b. The general location ofthese facilities is shown in Map 2: Planned Wastewater Facilities, and Map 2a: Existing Wastewater Collection and Treatment Systems. (NOTE: This map presently exists as Map 6 in the Te~hnical Background Report: Existing Conditions andAlternatives and should be incorporated without change.] II 2. Insert, following Table 4, Tables 4a and 4b, as follows: !I Pfe;jeet NlImberPROJ ECT# 300 300A 300B 300e 300D 300E 300F I II II 300G 300E 3001 Table 4a MWMc: Wastewater Treatment System Improvement Projects. JTejeet Nama q;)e"'9~p~od_ PROJECT NAME WPCF Treatment Project Preliminarv Treatment Primary Treatmen~ SecondarY Treatment I Disinfection/Outfall, .1 Biosolids Trealmenti: Filtration PROJECT DESCRIPTION Includes several construction Dacka\!es desilmed to mana\!e and treat wastewater at.the WPCF to the vear ~ Increase oreliminarv treatment caoacitv of headwork. to meet antichzated 2025 l1eak wet weather flows Enhance exislin\! nriourv clarifiers and add orimarv S11-,1:J'?~ thickenin!! facilities to increase orimarv treatment caoacitv to meet anticipateQ'Q~M wet weatherflowl> Convert aerati~n basins. enhance existin\! secondarY clarifiers. and add secondary clarifiers to increase secondarv treatment caoacitv to meet anticioated neak wet weather flows I Conv:rt disinfection system. and increase bankside outfall_ c.aoacltv . 1 Increase digestion canacitv bv enhancine exislin!! dil!esters and sludge thickening capacity and/or adding a dig;ej;Jer Add filtration and build related infrastructure and sunnort facilities I Reuse Facilities Expand effluent reuse canacity I Odor Control Exnmld and/or add odor control facilities I Flow Manal!ernent I Pipinl!. numnrnl! and related i~~f.(\-Vel~ Facilities allow parallel opcration ofpnmarv and secondm'v treatrnent Ordinance No. P1- 1230 - Exhibit B Page I of7 j!:t' 06 200,5J I ., Planner: BJ , " . II .',1 facilities I 301 Residuals Treatment Includes several construction Dackal!es desil!ned to Proiect manal!e and treat residuals. ,. 30lA La~oon Rehabilitation Rehabilitate lagoons at Biosolids Management Facilitv I 30lB I Comoosting Facilitv; Exnand comoostin~ facility at Biosolids Management .. I Facilitv. I. I Beneficial Reuse _. 302 Includes several construction nackal!es desil!ned to Prolect ,I epiand reuse of effluent., I 302A I Biocvc1eFarru ) Exnimd biosolids land annlication .area I 302B I Effluent Reuse . Exnand effluent reuse at Biocvcle Farm (inc1udinl!.former Seasonal Industrial Waste site) - ------ . .-.-- Tahle.4h MWMC Pnmary Collection System hnprovemerit Projects I I I I Project Nwnber 303 304 305 . Project NarnelDescription Willakenzie PUmp Station Screw Pump Station Glenwood PUmll Station 3. Modify Map 2 to show Projects 300 through 305, and insert Map 2a. , . . Ordinance No. PA 1230 - Exhibit B Page 2 of? . Date Received SEP 06 ZOQffi Planner: BJ ) , , . . --- 4. Modify Chapter IV. Of the Public Facilities and Services Plan, by modifying the subdivision entitled "Wilstewater System condition Assessment" (presently on page 82) to read as follows: Wastewat~r System Condition Assessment Treatment: MWlIfC Wastewater Treatment System . . MWMC existing infraStructure is monitored for problems that need to be addressed . during operational and maintenance activities. MWMChas ongoing progrllIIlli to help plan for and implement equipmentrePlacemeljtand major rehabilitation of existing systems. With these on going progrilms used ~o detect existing problems, the . infrastructure can be maintained and preserved to help extend its useful life for future .. I . r : years. I,i I '. ] In March of2003, MWMC hired CH2M HILL "to evaluate and plan for regional wastewater capital improvements that will sert.e the Eugene/Springfield urban growth boundary into year 2025. MWMC will need to implement the recommended. improvements to meet regulatory requirements based on projected pollution loads and flows. CH2M HILL as part of its work to evaluate and plan for regional wastewater improvements has prepared a technical memo related to "Flow and Load Projections" dated April 12, 2004. This historical 'and projected information is being used to plan for needed MWMC capital improvement,s based on engineering evaluation metho~!!y Received comparing technology options. It is estimatedthat approximately $160 million'ttt'iM't SE? 0 6 20liJJ . Ordinance No. PA 1230 - Exhibit B Page 3 of? Planner: BJ , . . . (in 2004 dollars) are needed for MWMCprojects to address regulatory requirements and growth through year 2025. . . The Water Pollution Control Facilitv'IWPCFl. located on River Avenue in Eugene. reolaced the seoarate olants oreviouslv owned and ooerated bvEul!:eneand SorilwfieJrl. Its fWICtion is to meet the reeion's needs for.increased seweraee service and ensure comDliance with the facility's NPDES discharl!:e Dermit. The Residuals Treatment Proiect is located at the Biosolids Manaeement Facilitv IBMF) on Awbrev Lane in Lane County. TIle BMF's function is to store. further stabilize. and drv dieested biosolirls rp,ceived from ihe WPCF. The Beneficial Reuse Proiect is located at the Biocvcle Farm alone Hil!bwav 99 in Lane. County. The Biocycle Farm's function is to aooly biosolids from the adiacent BMF to Qonlar trees. which absorb the water and nutrients contained in the biosolids. Convevance: Conveyance capacity and inflow and infiltration (III) ratios are important criteria by which to assess the performance of a',wastewater collection system. Conveyance capacity is a function of adequate pipe sizing and measures a system's ability to move effluent . . efficiently. Inflow and infiltration ratios express the amoWltof stormwater entering a sewer system through defective pipes and pipe joints, or through the cross connection of stormwater lines, combined sewers, catch basins, or manhole covers. Such extraneous stormwater entering the wastewater system unnecessarily burdens both conveyance and treatment facilities. . Canacitv: .)"he canacitv of the wastewater sYStem is exoressed in four measures: averaee flow. oeak flow. biOChemical oxyeen demand (BOD) and total susoended solids ITSS). The svstem's current canacities and oroiected 2025 needed caoacities are: Caoacitv Measure /j. veralle flQw Peak flow BOQ I TSS Current 49 mg!i 175 mgd 66.000 Ibs/dav 71,600Ibs/day I i~~ mgg 277I1lll.q 74.000 Ibs/dav . 87.600 Ibs/dav Proiects 300 throueh 305. described in Tables 4a and 4b. are desiQlled to work together to increase the overall system canacities to meet the oroiected 2025 need. 5. Modify Chapter IV. Of the Public Facilities and Services Plan, by modifying the discussion of wastewater, in the subdivision entitled "Long-Term Service A "aUability Within Urbanizable Areas" (presently on page 97) to read as follows: 1. There are no areas within the,metropolitan UOB that will be difficult to serve with ~astewater facilities over the long-term (six to 20 years) ass~ming that Ali1ll2rte Received mfrastructure speclficahons and requrrements of the developmg area can"1!l~' Ordinance No. P A 1230 - Exhibit B Page 4 of7 SEP 06 20OS:i Planner: BJ . . ~ addressed. Appropriate engirieering design practices must be used during the development and expansion into sensitive areas that are approved for development (ex. - hillside cbnstruction, etc.). Expansion ofthe existing collection system will be necessary to meet demands of growth over this time period. 2. Based on 2003 analysis, the Eugene-Springfield metropolitan area treatment. facilities will require facility improvements to address both dry and wet weather regulatory requirements relating to pollutant loads and wastewater flows. . Regional and local wastewater improvements to the collection and treatment systems are being planned fo~ and will be implemented to allow for growth within the UGB and for regulatOl)' compliance. I 6. Add Table 16a following Table 16, as follows: 'I 'I . ,i Table 16a MWMC Wastewater Treatment and Collection System Improvements, Rough Cost Estimatt\, and Timing Estimate 300 WPCF Treatment Proiect 2025 300A Prelimin!ID' Treatment ($12.8) 2010 300B Prirnarx-Treatment ($4.8) 2012 300C I Secondary Treatm_ent ($24.7) I 2017 300D I Disinfection/Outfall, J$5.6) 1 2010 3JlOE I ]3iosolids Treatment -1$18J) 2013 300F I Filtration - ($20.2) 2020 I 3000 I Reuse Facilities. (Wi.) 2018 I 300H I Odor Control ($6.9) 2012 I 3001 I Flow Management Facilities (UlJ 2010 I 301 I Residuals Treatment Project $&,0095.~ 2018 I ,301A 1 Lazoon Rehabilitation __($4.5) 2Jl:12 I -. -----. --- 30lB I COffi12ostinf( Facilitv' ($.7) 2QJ7 I 302 I Beneficial Reuse Pro.ieet $25,0994.6 2018 I I 302A I Biocvcle Fann ($0.6) 2.Q08 I I 302B I Effluent Reuse ($.4J I I 2017 I 303 . I Willakenzie Pump Station I $6~-OOG I 2010. I 304 I Serew Puinp Station I $2.;OOG 1 2010 I 305 I Glen wood Pump Station I $0.500 I 2012 I i TOTAL: 'I i U3M *Cost estimated in 2004 dollars 7. Add a new.chapter to the Public Facilities and Services Plan, to b.nJwAtene""an/~..a VI., reading as follows: :1 Udt~ n VI;01V~ Ordinance No. PA 1230 - Exhibit B PageS of7 SEP 0 6 20Gsl Planner: BJ . . . . VI. Amendments to the PI;!n This chapter describes the method to be used in the event it becomes necessary or appropriate to modify the text, tables.or the maps contained in the Public Facilities and Services Plan ("the Plan''). Flexibility of the Plan Certain public facility project descriptions, location or service area designations will necessarily change as a result of subsequent design studies, capital improvement programs, environmental impact studies and changes in potential sources of funding. The Plan is not designed to either prohibit projects not included in the plan for which unanticipated funding has been obtaiD.ed, preclude project specification and location decisions made according to the National Environmental Policy Act, or subject administrative and technical changesto the plan to post-acknowledgement review or review by the Land Use Board Of Appeals. For the purposes of this Plan, two types of modifications are identified. : il A. Modifications requiring, amendment of the Plan. The following modifications require amendment of the Plan: 1. Amendments, which include those modifications or changes (as represented by Table 16a) to the location or provider of public facility projects which significantly impact a public facility project identified in the cv'ut'.~hensive plan, and which do not qualify as administrative or technical and enviromhental changes, as defined below. Amendments are subject to the administrative procedures and review and appeal procedures applicable to land use decisions. 2. Adoption of capital improvement program project lists by any service provider does not reqUire modification of this Plan unless the requirementS of subparagraph 1 abo'Ve are met. . .. , B. Modifications pennitted without amendment of the Plan. The following modifications 40 not require amendment of this Plan: I. Administrative changes are those modifications to a public facility proj ect which are minor in nature and do not significantly impact the project's general description, location, sizing, capacity or other general characteristic of the project. Technical and environinental changes are those modifications to a public facility project which are made pursuant to "final engineering" on a project or those which result from the findings of an Environmental Assessment or Environmental Impact Statement conducted under regulations implementing the procedural provisions of the National EnviroeaY~ Received Ordinance No. PA 1230 - Exhibi~B Page 6 of7 SEP 06 200?} Planner: BJ 2. . . .... Policy Act of! 969 or ~y federal or slate agency project development regulations consistent Witli that Act and its regulations. Process for making Changes A. Administrative and Technica(!~or. Environmental Changes. Any jurisdiction may make an administrative or technical and environmental change, as defmed herein, by forwarding to each jurisdidtion covered by this Plan, and to the Lane Council of Govemments a copy of the!resolution or other final action of the governing board of the jurisdiction authorizing.the change. ~ . B. Amendments For purposes of processing ~endments, as defined herein, such amendments are divided into two classes. . a. Type I Amendments mclude amendments to the text of the Plan, or to a list, location or provid~ of public facility projects which significantly impact a public facility project identified herein, which project serves more than one jurisdiction. b. Type II amendments include amendments to a list, location or provider of public facility projectS which significantly impact a public facility project identified herein, which project serves only the jurisdiction proposing the amendment. . C. Processing Amendments Any of the adopting agenciesi(Laile County, Eugene, or Springfield) may initiate an amendment to this plan at any time on their own motion or on behalf of a citizen. :I. a. Type I amendments shall be forwarded to the planriing commissions ofthe respective agencies arid, following their recommendation, shall be considered by the governing boards of all agencies. If a Type I amendment is not adopted by all agencies, the amendment shall be referred.to MPC for C!'nflictresolution. Subsequent failure by agencies to adopt an MPC-negoti~ted proposal shall defeat the proposed amendment. If an amendment is adopted, all agencies shall adopt substantively identical ordinances b. Type II amendrtlents ~hall be forwarded to the Planning Commission of .the initiating agency and, following their recommendation, shall be considered by the go~eming board of the initiating agency. .,!' " Ordinance No. PA 1230" ExhibitB Page 7 of7 Date Rece\ved SE? 0 6 loq~: Planner: BJ