Loading...
HomeMy WebLinkAboutItem 1: JEO Meeting: Delta Sand & Gravel ECC UGENE ITY OUNCIL AIS GENDA TEM UMMARY Joint Elected Officials Meeting: Delta Sand and Gravel Meeting Date: January 16, 2007 Agenda Item Number: 1 Department: Planning and Development Staff Contact: Kurt Yeiter www.eugene-or.gov Contact Telephone Number: 541-682-8379 ISSUE STATEMENT Delta Sand and Gravel applied to the County for an expansion of their quarry operations. That application required review and approval by both the County and the City for a Metro Plan diagram amendment. Separate straw votes by the two governing bodies resulted in different tentative conclusions (the County favoring approval of the application; the City favoring rejection). This meeting was scheduled in response to a September 20, 2007 letter from the chair of the Lane County Board of Commissioners. In the letter, the board states that the final City Council decision could be more informed with information about the County Commissioners’ tentative action, including the conditions on the operation that are designed to minimize the impacts of mining on neighboring residents, and the draft findings in support of the board’s action. This joint meeting allows the County to have further discussion with the Eugene City Council regarding their decision and the additional information. BACKGROUND The state’s planning rules governing natural resource protections (the “Goal 5” rules) provide a process in OAR 660-023for recognizing significant aggregate resources. The rules define when a site is to be considered a Goal 5 significant resource, and lists areas of potential impact that must be reviewed when a significant aggregate resource is found to exist on a site. The Goal 5 rule evaluation criteria for an amendment to an approved comprehensive plan, such as the Metro Plan, are separated into seven analytical steps: Step 1. Determine if the application information is adequate. Step 2. Determine if the resource site is significant. Step 3. Determine if conflicts from mining can be minimized. Step 4. Weigh the economic, social, environmental, and energy (“ESEE”) consequences of un-minimized conflicts and determine whether to allow mining. Step 5. Determine the ESEE consequences of potential new conflicting uses within the impact area. F:\CMO\2008 Council Agendas\M080116\S0801161.DOC1 Step 6. Determine if the County’s rezoning requirements (LC16.252) are met, and if the variance setback request should be granted under LC 16.271(7). [Only the County board will consider and make the decision on the rezoning and variance.] Step 7. Develop a program to allow mining if all the above steps are positive. Delta Sand and Gravel requested that the Lane County Goal 5 Inventory for Significant Mineral and Aggregate Sites be amended to include the subject property. Their request would allow mining of the expansion site, and includes two administrative variances to the setback provisions in the Lane County code. In conjunction with the amendment to the Lane County Goal 5 Inventory, the site’s Metro Plan land use designation is proposed to be changed from “Agriculture” to “Sand and Gravel” and the zoning changed from “Exclusive Farm Use Zone (E- 30)” to “Sand, Gravel & Rock Products Zone (SG-RCP).” The applicants chose not to prepare an ESEE analysis. They contend that the potential impacts of their operation as conditioned by the County permit process are satisfactorily mitigated to satisfy the Goal 5 criteria. The subject site is located outside the Eugene Urban Growth Boundary, but because the site is located within the Metro Plan boundary, the Metro Plan amendment requires approval from both the City and County to become effective. If the Metro Plan amendment is approved, then approval of the subsequent zone change, variances, and conditions of approval falls solely to the County. After a joint public hearing was held in late 2006 and additional testimony was gathered in early 2007, the City Council began its deliberations. The council stopped at an early stage (Step 2 in the list, above) because, in a straw vote, the majority of the council could not find that there were significant aggregate resources, as defined by the state’s Goal 5 rules, located on the expansion site. This determination would result in the City’s denial of the application. The City Council chose not to continue the discussion of the other applicable criteria, but left that possibility open, depending upon the decision reached by the County. The County board, in a straw vote, found favorably on all aspects of the application. The County board’s discussions also refined the draft conditions of approval that would be imposed by the County if the application were approved (see the second attachment to Attachment A for the revised conditions). To become effective, the final decisions of both the City of Eugene and Lane County must be identical. If the final decisions are not identical, the proposed Metro Plan amendment will be referred to the Metropolitan Policy Committee (MPC) for additional study, conflict resolution, and recommendation back to the governing bodies. Since the City and County seem headed towards different decisions, City staff recommends that the council’s final decision contain findings on all the applicable criteria to expedite MPC review and any appeals that may follow. Final action and review of findings would occur at a later date. Attached to Commissioner Stewart’s letter (Attachment A) are the topical criteria that State Goal 5 rules require for aggregate resource sites, a summary of the County board’s and the City Council’s straw decisions on these criteria, the County’s draft conditions of approval, the County’s draft findings in support of the application, and minutes of the County board’s deliberations on this application. F:\CMO\2008 Council Agendas\M080116\S0801161.DOC RELATED CITY POLICIES The Metro Plan provides this definition: Sand and Gravel. This category includes existing and future aggregate processing and extraction areas. Aggregateextraction and processing is allowed in designated areas subject to Metro Plan policies,applicable state and federal regulations, and local regulations. For new extraction areas,reclamation plans required by the State of Oregon and Lane County provide a valuable means ofassuring that environmental considerations, such as re-vegetation, are addressed. It is importantto monitor the demand for aggregate to ensure an adequate supply of this vital non-renewableresource is available to meet metropolitan needs. These Metro Plan policies apply: Sand and gravel sites identified as significant by theMetro Plan shall be protected in accordance with the requirements of the Goal 5 Rule. (Metro Plan page III-C-11) When development is allowed to occur in the floodway or floodway fringe, local regulations shall control such development in order to minimize the potential danger to life and property. Within the UGB, development should result in in-filling of partially developed land. Outside the UGB, areas affected by the floodway and floodway fringe shall be protected for their agricultural and sand and gravel resource values, their open space and recreational potential, and their value to water resources. (Metro Plan page III-C-16) COUNCIL OPTIONS No formal action is requested of the City Council at this meeting. This meeting is for discussion purposes only. A City Council meeting will be scheduled for a later date at which time the council action will be recommended and options presented. CITY MANAGER’S RECOMMENDATION The City Manager will bring back to the council at a future meeting a recommended decision with draft findings. At that meeting, the council will be offered several options, including the following: 1.A proposed final decision denying the application with proposed findings addressing all of the applicable criteria. 2.A proposed final decision that is consistent with the council’s tentative decision and that is based solely on the determination that there are not significant aggregate resources on site. 3.The County’s draft findings in support of the application, included here as Attachment A, part 3. F:\CMO\2008 Council Agendas\M080116\S0801161.DOC3 SUGGESTED MOTION Not applicable. ATTACHMENTS A. Letter from Faye Stewart, Chair, Lane County Board of Commissioners, dated September 20, 2007, including: Attachment 1: Deliberation Straw Vote (reflecting Goal 5 criteria) Attachment 2: Conditions to Minimize Impacts for inclusion of in the Plan to Allow Mining (draft) Attachment 3: Draft [County] Findings in Support of [County] Ordinance No. PA 1238 Attachment 4: May 1, 2007 Minutes of Board of Commissioners Deliberation Meeting Attachment 5: May 23, 2007 Minutes of Board of Commissioners Deliberation Meeting B. City Council Minutes of February 21, 2007 C. City Council Minutes of April 18, 2007 FOR MORE INFORMATION Staff Contact: Kurt Yeiter, Senior Planner Telephone: (541) 682-8379 Staff E-Mail: Kurt.M.Yeiter@ci.eugene.or.us F:\CMO\2008 Council Agendas\M080116\S0801161.DOC ATTACHMENT B B. WORK SESSION: Delta Sand and Gravel Metro Plan Amendment Mayor Piercy asked if any councilors needed to declare ex parte contacts or conflicts of interest. Mr. Clark indicated that prior to his being seated as a councilor he had reviewed the record and had attended the other hearings as a spectator. While he did not believe he had a conflict or a potential conflict of any kind, he was acquainted with one of the neighbors involved in the issue. He said he had spoken of the issue with his friend, but he did not believe anything of substance had transpired nor had he engaged in any further conversations with his friend since being seated on the council. Mr. Zelenka noted that he had also familiarized himself with the record and attended the public hearing as he had also not been seated on the council when this was first initiated. Ms. Taylor stated for the record that she had asked the Lane Regional Air Protection Agency (LRAPA) to send information about complaints that had been received and she had been present at LRAPA meetings at which area residents had complained regarding the activities of Delta Sand and Gravel. Kurt Yeiter, Principal Planner for the Planning and Development Department (PDD), stated for the record that after Ms. Taylor’s contacts had become known to staff the PDD had advertised it to all of the parties involved during the public review process and those parties were given an opportunity to respond. He believed it was no longer a conflict. City Manager Taylor said Mr. Yeiter would review where the process was in time with the council. He noted the record had been closed and the County was in charge of the process. Mr. Yeiter explained that this was the first opportunity for an elected body to deliberate the application from Delta Sand and Gravel for a Metro Plan amendment, zone change, and variances to allow an expansion of its existing operation. He noted it was located just outside of the Urban Growth Boundary (UGB) but just inside the Metro Plan boundary. This required that the amendment had to be approved or denied by both the City and the County. He said the zone change, the variance, and the opportunity to impose conditions rested with the County and this would be deliberated after the Lane County Board of MINUTES—Eugene City Council February 21, 2007 Page 1 Work Session Commissioners heard from the City Council. He reviewed the timeline for the process, noting that the last comments from Douglas DuPriest, attorney for the organized opposition, and Steve Cornacchia, attorney for Delta Sand and Gravel were included in the last packet the City Council had received. He related that during the public review period a series of questions from Ms. Bettman had been submitted, but the staff timeframe was short and staff had answered the questions it was able to respond to. Mr. Yeiter stressed that the decision should be based upon the record. He said the City would provide general recommendations to the County, so that as much as the council could come to agreement regarding where the potential conflicts were and what the conflicts were that were not minimized or mitigated the council could then forward its input to the Board of Commissioners. He underscored that the process was well-regulated by state law. He cited the proposed gravel extraction versus housing as an example of a potential conflict. He said the councilors then needed to decide if the conflicts were minimized. He related that state law required that where there were existing regulations that dealt with impacts or conflicts that those regulations would serve as the threshold for minimization and if the application and proposed use would meet those thresholds, they were by definition minimized. Mr. Yeiter welcomed Kent Howe, Lane County Planning Director, and Stephanie Schulz, Project Manager for Lane County Public Works. He also noted that City Attorney Emily Jerome was present to provide legal counsel. Mr. Zelenka asked Mr. Yeiter to review the Lane County Planning Commission’s conflicts and the Eugene Planning Commission’s conflicts that commissioners felt were not mitigated. Mr. Yeiter noted he had prepared a summary, Attachment E in the packet. He stated that both commissions felt the information was adequate, but the Eugene commission felt the site qualified as a significant aggregate resource and the County commission found that the sampling method was inadequate. He reported that both commissions found that potential conflicts having to do with dust, noise, groundwater, wetlands and sensitive habitat, and agriculture existed. He summarized the Eugene Planning Commission’s findings which were that the impact that was not minimized was dust. He related that the County had found there would be no impact to traffic and this was not challenged through the planning commission process. Ms. Bettman noted that the materials indicated that if the County and the City could not agree on the impacts and minimization efforts the issue would go to the Metropolitan Policy Committee (MPC) for dispute resolution. She considered this to be a “very undesirable” outcome of the process. She was uncertain how the MPC would address such an issue, given that the consortium included the City of Coburg, Lane Transit District (LTD), and the City of Springfield and those members had not been at the hearings nor had they reviewed all of the materials. Mr. Yeiter responded that both the City and the County code indicated that the decisions in order to become effective must be the same but the codes did not define ‘same.’ He said legal counsel for both entities extrapolated from the codes that the two should be unified in whether the amendment was approved or denied, but the findings could be different. He explained that staff recommended a straw vote at this time because it would allow the City and the County to “go back and forth.” He conveyed staff’s desire for as much detail as possible. Ms. Jerome clarified the staff recommendation. She said one of the ways the County proposed that certain impacts be minimized was through the imposition of conditions that only the County could impose. She averred that she would not want to see the council take specific action until the council had specific assurances or could see that the County was heading in a direction that would accommodate the minimization conditions the councilors desired to be imposed. She believed the PA05-6151: Delta Sand & Gravel Deliberation Votes – Metro Plan Amendment and Rezone worksheet County staff had prepared MINUTES—Eugene City Council February 21, 2007 Page 2 Work Session presented the issues in a reasonable logical order. She wanted, to the extent the councilors could provide real direction, to ensure that whatever decision the council made was most defensible and addressed all of the criteria and rules. She indicated her preference to gain direction from council, to work with staff, and then draft a decision for the council to review in order to make sure it reflected the council’s direction. In response to a question from Mayor Piercy, Mr. Yeiter indicated that if the council was unable to come to a conclusion on an issue, staff would take that as questions to bring before the county. Ms. Bettman declared that she had a “major problem” with Lane County’s decision to waive the requirement for a Traffic Impact Analysis (TIA). Ms. Solomon expressed hope that the council would not make this issue “unnecessarily excruciating” for anyone involved. She felt the information that had been provided was thorough and the councilors had been allowed adequate time to digest the information. She wanted to have a thoughtful and deliberative discussion that would move toward resolution in a timely fashion. Mr. Yeiter stated that Step 1 on the worksheet asked if the Post-Acknowledgement Plan Amendment (PAPA) information was adequate. Ms. Bettman reiterated her feeling that a TIA was necessary in terms of information needed for a decision to be made. She disagreed with the assumption that the actual production would not increase. She believed there could be impacts to local transportation infrastructure. She also thought an Economic, Social, Environmental, and Energy (ESEE) assessment should be conducted. She averred that the sampling had been performed in a way that mixed aggregates so that even though the quantity was established, the quantity of the standard that was to be fulfilled was inadequate because of this mixing. She doubted whether the resource was significant. Mayor Piercy noted that the Eugene Planning Commission had unanimously agreed that the PAPA was adequate and that the Lane County Planning Commission had voted 4:2 that the PAPA was adequate. In response to a question from Mr. Zelenka, Mr. Yeiter stated that the planning commissions had found there to be enough information upon which to base a decision. He said even if the majority found there was adequate information, the issues could be raised under each topic. Mr. Clark surmised that the commissions had ascertained there was sufficient information without the TIA. He asked what the legal standard was for adequacy of information. Ms. Jerome explained that the OAR listed five factors for adequacy. She cited an attachment to the staff report from the date of the hearing and noted that it had listed the OAR criteria. She stated that the planning commission, based on county staff recommendations, found that there was enough information in current plans about that area and this had been deemed sufficient. Mayor Piercy called for a straw vote. Straw vote: the information in the PAPA was deemed adequate by a 5:3 vote; Ms. Ortiz, Ms. Bettman, and Ms. Taylor voting no. Mr. Yeiter explained that Step 2 on the worksheet referred to the quality and quantity of the aggregate resource. He recalled the substantial testimony from the geologist regarding whether the site qualified as a substantial resource and as a Goal 5 resource. MINUTES—Eugene City Council February 21, 2007 Page 3 Work Session Mayor Piercy noted that the Eugene Planning Commission had indicated by a 3:2 vote that it considered the site to contain significant material and the Lane County Planning Commission had indicated their feeling that the site was an inadequate resource by a 4:2 vote. Ms. Bettman asserted that the significance of the resource was important because it would be used to justify and rationalize the loss of the “grade 1 farmland” and to determine if the expansion of the gravel operation was “worth” the noise and dust to the agricultural and residential uses that were around the property. She did not think the resource was significant enough to justify or rationalize the impacts. Mr. Yeiter pointed out that the elected bodies had received more information in that regard than the first hearings of the planning commissions had. Mr. Poling asked how much of the area contained the “grade one” soil. Ms. Schulz responded that the area primarily featured Class 2 quality soils. Mr. Poling asked if the samplings had been conducted according to the criteria for such a process. Mr. Howe replied that the American Association of State Highway and Transportation Officials (AASTO) American Society for Testing and Materials (ASTM) handbook had guided the determination of the quantity and quality of the aggregate materials. He underscored that this was the journal/textbook for conducting such samplings. Mr. Poling said in looking at this as a civil action in which a determination would be based on the preponderance of evidence that would be 50 percent plus one, given that three samples were taken even inclusion of the one sample that had been conducted by someone that was not recognized as an expert there were two samples that indicated the resources were adequate. Mr. Clark asked what weight testimony from someone who was not considered an expert should be given. Ms. Jerome replied that it was up to the elected officials to make a decision that a reasonable person would make. Mayor Piercy called for a straw vote on the determination of whether the resource site was significant. Straw vote: the vote on whether the resource site was significant was a tie, 4:4; Mr. Poling, Mr. Pryor, Ms. Solomon, and Mr. Clark voting yes and Mr. Zelenka, Ms. Ortiz, Ms. Taylor, and Ms. Bettman voting no. Mayor Piercy voted no and the vote failed. Mr. Yeiter noted that Step 3, which sought to determine if identified conflicts from mining could be minimized to acceptable levels of no significant impact, was split into seven areas of potential conflict: traffic, groundwater, wetlands and sensitive habitat, flooding, agricultural practices, dust, and noise. He suggested the council address the impacts individually. Regarding traffic, he pointed out that a TIA could be required at a future point as the area experienced increased development and the gravel operation potentially experienced an increase in production. Mr. Pryor observed that it was questionable as to whether the application would affect traffic intensity. He surmised that the application sought to extend the lifetime of the mining application and not necessarily to increase production. He believed the potential traffic impacts could be dealt with at a later point. He reiterated that as it related to this application, market conditions were not a factor. MINUTES—Eugene City Council February 21, 2007 Page 4 Work Session Ms. Bettman felt the council was relying on the applicant’s assertion that traffic was not a factor. She opined that this was not good government. She said with every development there was an assumption that it would impact traffic. She felt that otherwise the City of Eugene would end up “holding the bill” for whatever kinds of upgrades or improvements that would need to occur because of the traffic impact. She averred that a TIA was just a part of conducting due diligence. Mr. Clark said while Ms. Bettman referred to this item as the council was relying on information from the applicant, he would be relying on the unanimous consent of both planning commissions to guide his decision. Mr. Yeiter noted that there were three questions under Traffic and the City could find a conflict due to traffic but it could also find such a conflict could be minimized through the imposition of conditions. In response to a question from Mr. Clark, Mr. Yeiter affirmed that the planning commissions had not challenged the County’s assertion that a TIA was not needed because of the consistency of production. Mr. Zelenka surmised that this was because production would not be increased at this time. He pointed out that unless there was a conditional use that would dictate that production would stay at that level, it could change. He said if the gravel operation decided to double production there would be a concurrent doubling of traffic. He did not see how they could make this assumption without making a conditional use provision. Ms. Jerome stated that the first step would be to determine the impact area, which could not be more than 1,500 feet from the proposed expansion area boundary unless there were circumstances that warranted the consideration of a larger area. She noted that both planning commissions had found 1,500 feet to be the appropriate area. Mr. Zelenka indicated he would vote that this was a conflict because there was no indication that a conditional use was being considered and no TIA to indicate otherwise. Mr. Clark ascertained from Ms. Jerome that the council was to determine whether there was a current conflict as opposed to a conflict over a period of time. He related that he had some concern regarding the future of the company. He said if the current owners sold the business there would be no way to know how the future owners would choose to operate the business at this point. He did not know if the council could make this decision based on this potential. Ms. Jerome commented that this pointed to the importance of making conditions. She did not think the council could make a final decision without knowing where the County was going with respect to those decisions. Mr. Yeiter pointed out that aside from the county mining permits, production levels were also regulated by LRAPA and other agencies. Ms. Bettman, seconded by Ms. Taylor, moved to extend the meeting by five minutes. The motion failed, 6:2; Ms. Bettman and Ms. Taylor voting in favor. Mayor Piercy adjourned the meeting at 1:31 p.m. MINUTES—Eugene City Council February 21, 2007 Page 5 Work Session ATTACHMENT C M I N U T E S Eugene City Council Work Session McNutt Room—Eugene City Hall April 18, 2007 Noon COUNCILORS PRESENT: Andrea Ortiz, Chris Pryor, Betty Taylor, Bonny Bettman, George Poling, Jennifer Solomon, Mike Clark, Alan Zelenka. C. WORK SESSION: Delta Sand and Gravel Metro Plan Amendment City Manager Taylor introduced Principal Planner Kurt Yeiter and City Attorney Emily Jerome to discuss more definitive direction regarding the City’s review and decision-making on the Delta Sand and Gravel request for a Metro Plan amendment. Mr. Yeiter said that staff was requesting affirmation from the council that its decision was being imple- mented appropriately. He reviewed the council’s previous actions, which determined by straw poll that the application was complete and the site was not a significant resource by Goal 5 standards. He said that draft findings were included with the agenda item summary, which outlined the council’s options. He noted that the Lane County Board of Commissioners had met that morning and voted to postpone the issue until its May 1 meeting. He noted that Kent Howe and Stephanie Schulz of Lane County Planning Division were available to answer questions. Ms. Bettman commented that a major issue was Delta Sand and Gravel’s claim that there would be no increase in production and therefore no increase in the number of trucks. She said that should be reflected in the findings. She asked what the outcome would be if the City and County did not agree on whether there was a significant resource and, if they did agree, whether the applicant would refine the testing and sampling procedures and resubmit them. Ms. Jerome said that code provisions regarding the Metro Plan process did not clearly answer that type of question. She said those scenarios had been discussed with County staff and legal counsel and the interpretation of the code provision that the decisions had to be identical was that the decisions had to agree but the reasons for them as expressed in findings did not need to match. She said the Metropolitan Policy Committee would step in if the City and County decisions were not in agreement. Ms. Bettman asked if making a determination on the basis of significant resource precluded deliberation on other items. Ms. Jerome said that on direction from the council, staff would prepare an ordinance that did not become effective until identical decisions were reached. She believed that until the ordinances were finally in effect, the council did have the opportunity to continue to deliberate. She said the process would end when both the City and County decisions were in agreement. MINUTES—Eugene City Council April 18, 2007 Page 1 Work Session City Manager Taylor said staff was recommending for the council’s consideration what was believed to be the most efficient way, based on the straw polls, to put the measure before the County. Mr. Pryor commented that the council would not need to deliberate the criteria if it knew that the application would be denied. Mr. Yeiter said staff was not recommending that the council continue with deliberation of the criteria. He said the County might continue to deliberate. Mr. Pryor said it did not make sense to spend time deliberating on something for which the outcome had already been determined. He said the County’s deliberations should be with the knowledge that from the City’s standpoint the application was denied. Ms. Jerome pointed out that in some cases the council was advised to conduct the thorough process because from a legal perspective, defending a denial was less difficult if each basis for denial had been addressed. She said the effort that would be involved in analyzing all of the criteria in this instance might not be worth the benefit and it was possible the County could proceed through the criteria and provide the analysis. She said waiting to see what the County’s outcome would be was a sound policy decision for the council. Mr. Clark asked if an appeal was possible if the City denied on sufficiency of resource and the County denied on a different basis and how would the appellate body deal with that contradiction. Ms. Jerome said City and County staff would work together to ensure that the actions, which would be in the form of ordinances, were the same. She said the respective findings would likely look different. Mr. Clark asked if denial on the basis of sufficiency of resource had been upheld in the past. Ms. Jerome said there was no precedent in the courts, but she felt there was a basis to justify the finding. Ms. Solomon said she was disturbed by the reluctance to move forward on the application in a forthright and honest manner and give the applicant all of the process that was due. Regarding the issue of resource, she believed the applicant followed all of the protocol established in State statutes and passed all of the tests. She reminded the council that it could approve with conditions and that could include strategies to ensure there was no increase in production. She believed that Delta Sand and Gravel would be willing to adhere to those conditions as it had been willing to respond to all questions during the process. She reminded the council that Delta Sand and Gravel was a local business that provided good jobs for the community and the City of Eugene was a consumer of its products. If it was shut down, the City would suffer the consequences of increased prices. Mr. Zelenka supported denying the application on the resource issue but did not understand why the council would not go through the process as there were other, more problematic issues, such as noise and dust. Mr. Yeiter said based on feedback on the County, which conducted more sand and gravel operation reviews, the process would involve between 20 and 30 hours of council deliberation to reach the same conclusion. He said it was the council’s policy and scheduling choice whether to go through the entire process if the site did not qualify. Mr. Zelenka asked if the applicant could appeal to the Land Use Board of Appeals (LUBA) if both the City and County denied the application. Ms. Jerome said the appeal could also go above LUBA, but local decision-making would end at that point. She said LUBA could also remand the issue or if a decision became final the applicant could reapply. Mr. Clark said it strained at the idea of common sense that there was not sufficiency of resource at the site, which was only yards away from the site of decades of operation and production. MINUTES—Eugene City Council April 18, 2007 Page 2 Work Session Ms. Bettman said the operation was not being shut down as the applicant indicated ten years worth of aggregate remained. She shared Mr. Zelenka’s concerns about deliberating the other criteria as some of them would weigh heavily for denial of the application. She asked if the council could act on the significant resource issue with a plan to deliberate on the other criteria at a later date, perhaps following action by the County. Ms. Jerome said the County would prefer to have the City deliberate all of the criteria and was willing to postpone action until that occurred. She said legally the council could establish the plan to deliberate at a later date but was not certain how it would proceed on a practical basis. Ms. Bettman said she was only willing to take that extraordinary step if the council was willing to vote in favor of a six-hour workshop to deliberate the entire packet. Mr. Pryor said as an individual councilor he was in favor of the application, but the decision would be made by the body. He agreed with Ms. Solomon that some issues could be mitigated, but not the question of sufficiency of resource. He felt it would be unfair to deliberate further and hold out hope to the applicant that perhaps a different conclusion might be reached. Mr. Poling found it disappointing that the application was being denied without fully exploring the issues. He reminded councilors that based on the information available, the Department of Geology and Mineral Industries (DOGAMI) determined that Delta Sand and Gravel and Oregon Department of Transportation (ODOT) consultants’ testing had underestimated the amount of resource. He noted that the Eugene Planning Commission agreed that the existence of a significant resource had been demonstrated, but an uncertified person had disagreed. He pointed out that the site was located between the current production site and the river, making it unlikely there would be no resource in that area. He said a preponderance of the scientific evidence and a recommendation from the Planning Commission indicated that there was a significant resource available. He would not support the findings and felt it was a disservice to the process to declare the issue dead at this point. Ms. Bettman stated there was no guarantee where the river would deposit its resources and that did not meet ODOT’s criteria for its aggregate. She asked if ODOT tested or sampled the site. Ms. Schulz replied that ODOT did not test, but reviewed the tests that were conducted. Ms. Bettman said she did not base her conclusions on opposition to the application; she felt the applicant’s sampling and testing was inadequate because it mixed high and low quality material and averaged the quality of the aggregate to demonstrate that the standard had been met. She did not think that was an accepted way to determine if there was a significant resource of the particular aggregate that met the standard. Mr. Howe clarified that ODOT did conduct sampling in addition to the applicant and verified the applicant’s sampling. He said DOGAMI reviewed both ODOT and the applicant’s sampling and verified that they were done correctly and according to AASHTO provisions. He commented that under the standard practice for sampling aggregate, there were specific provisions that addressed how sampling was done. He referred to information in the packet identified as Exhibit 33, which specifically allowed the combination of samples from various locations to be reviewed for their overall ability to meet standards. He said samples were not required to be taken from one specific location and or prohibited from being combined with materials from other locations. He said the applicant’s methodology was entirely acceptable. MINUTES—Eugene City Council April 18, 2007 Page 3 Work Session Ms. Ortiz, seconded by Mr. Pryor, moved to direct staff to prepare a resolution that finds there is not sufficient evidence that a significant resource exists on the subject site consistent with the attached draft findings. Mr. Clark asked if all of the official agencies involved in the process stated the applicant had conducted appropriate testing and verified the results and the Planning Commission agreed the testing was acceptable and a majority agreed there was a sufficiency of resource. Mr. Yeiter said that was correct, but the findings as prepared by staff determined that the applicant’s methodology mixed such high quality materials with lower quality material that it was unacceptable. Mr. Clark asked if the applicant’s methodology met ODOT standards. Mr. Yeiter said it did. Mr. Pryor said he was proceeding on the assumption that no one would be changing their vote from the 5:4 straw poll taken previously and the application would fail. No one indicated they would change. Ms. Bettman said that findings needed to be consistent with the Metro Plan and the significance of resource according to the plan was not the same as ODOT’s standards. She said the plan required both quantity and quality. She would support the motion. City Manager Taylor asked that the language of the motion be changed from resolution to ordinance at the request of legal counsel. Ms. Ortiz and Mr. Pryor agreed to accept the revised language as a friendly amendment. Mr. Poling, seconded by Ms. Solomon, moved that the findings could not be sup- ported because on further review there was sufficient evidence that there was sig- nificant resource on the site and to direct the city manager to schedule work ses- sions for continued deliberations on the remaining issues. The substitute motion failed, 5:3; Mr. Poling, Ms. Solomon and Mr. Clark voting in favor. The vote on the main motion was tied, 4:4; voting in support were Ms. Ortiz, Ms. Bettman, Ms. Taylor and Mr. Zelenka and in opposition were Mr. Poling, Mr. Pryor, Mr. Clark and Ms Solomon. Mayor Piercy voted in favor and the motion passed. The meeting adjourned at 1:20 p.m. MINUTES—Eugene City Council April 18, 2007 Page 4 Work Session