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HomeMy WebLinkAboutCC Minutes - 06/18/08 Work SessionM I N U T E S Eugene City Council McNutt Room—City Hall—777 Pearl Street Eugene, Oregon June 18, 2008 Noon COUNCILORS PRESENT: Bonny Bettman, Chris Pryor, Betty Taylor, Jennifer Solomon (via telephone), George Poling, Andrea Ortiz, Mike Clark, Alan Zelenka. Her Honor Mayor Kitty Piercy called the work session of the Eugene City Council to order. She indicated that Mr. Zelenka wished to make a motion before the action item was considered. Mr. Zelenka said the council had delayed the public hearing on the alley and street vacation for the arena, but because there was no August public hearing that meant the date would be sometime in September, which was late for the hearing as the council would be making decisions around that time. He felt it would be appropriate to schedule it in July, but to take action more coincident with the conditional use permit (CUP) process which was moving forward. Mr. Zelenka, seconded by Mr. Poling, moved to set a public hearing date on July 21, 2008, for consideration of the right-of-way vacation requests made by the Uni- versity of Oregon. Ms. Bettman said the original public hearing was scheduled when students were available and they would not be on campus in July. She questioned why the hearing could not be held in September or October when students would be available. She also pointed out that five public hearings were already scheduled for July 21. Mr. Zelenka said the process was moving forward and could potentially be completed by the time students returned, so delaying until late September or October would probably negate construction starting on the arena until the next season. He said the alley vacation was located in the middle of the proposed arena. Ms. Bettman asked if the alley vacation was a quasi-judicial proceeding and, if so, could the council receive guidance on conversations related to it. City Attorney Emily Jerome said that particular alley vacation, tied closely to a development, would be considered a land use decision and quasi-judicial. She advised the council to be cautious and avoid conversations related to the subject. Ms. Piercy asked if there was a problem discussing the hearing, but not how councilors might vote on the matter. Ms. Jerome said the issues to be concerned about were related to the criteria and in the case of the alley vacation the single criterion was whether it was in the City and public’s best interests. She said scheduling a hearing and discussing logistics was not problematic as long as councilors did not make statements that reflected how they might view the application. Mr. Zelenka asked how the council could discuss how to move forward with all the components of the arena project without having ex parté contacts. Ms. Jerome said she would provide written guidelines for the council. She stressed the importance of not acting in a way that indicated a position with respect to whether MINUTES—Eugene City Council June 18, 2008 Page 1 Work Session it was in the public’s interest to vacate the alleyway. She said if councilors felt that any contacts might be considered ex parté, the remedy was to disclose them for the record before the hearing so the public could respond to them. Mr. Clark asked at what point the council needed to be concerned about discussing the arena. Ms. Jerome said that occurred at the point at which the council became aware it would be making a decision on the matter. Ms. Taylor asked if it would be evidence of bias to vote on the motion following Mr. Zelenka’s explanation that it would help construction on the area occur sooner. Ms. Jerome said that would not be a problem; councilors could vote to consider the matter without indicating a position in support or opposition. Ms. Bettman did not understand how councilors could participate in a discussion in a way that facilitated moving forward with the arena since the arena was predicated on vacation of the alleyway. She asked if a councilor could participate by stating they had revealed bias. Ms. Jerome said she was not aware of the entire arena process, but would research that and provide guidance. She saw no problem voting on the question of scheduling a public hearing and assisting citizens and the applicant in their efforts to arrive at a mutually acceptable agreement; that did not reflect a bias. The motion passed unanimously, 8:0. A. ACTION: – An Ordinance Adding Sections 9.4770 Through 9.4790 Water Quality Protected Waterways to the Eugene Code, 1971 that Establish a Water Quality Overlay Zone; Amending Sections 9.0500, 9.1040, 9.7055, 9.7205, 9.7305, 9.7820, 9.8005, 9.8025, 9.8030, 9.8055, 9.8215, 9.8220, 9.8320, 9.8325, 9.8415, 9.8470, 9.8472, 9.8474, 9.8515, 9.8520, 9.8855, and 9.8865 of that Code; Repealing Ordinance No. 20194 and Sections 6.650, 6.655, 6.660, 6.665, and 6.670 of that Code; Adopting the Water Quality Waterways Map; Amending the Eugene Overlay Zone Map; Adopting a Severability Clause; and Providing an Effective Date. City Manager Jon Ruiz introduced Therese Walch, Public Works, to make the presentation. Ms. Walch stated that three people had testified at a public hearing on May 19 and 23 and pieces of written testimony had been received on the proposed Water Quality Protected Waterways. She said the agenda packet contained the testimony, staff responses and recommended modifications to the ordinance based on the testimony. She said the proposal originated with council-adopted policy in the form of the stormwater management plan, which included direction to integrate the beneficial functions of waterways into the City’s stormwater system, including adoption of setback protection measures. She said the Clean Water Act was also a driver with respect to total maximum daily loads (TMDL). She said numerous management strategies were already being employed by the stormwater program; the setback protections would fill gaps. Ms. Walch used a map to illustrate that adopted Goal 5 protections already provided a considerable amount of water quality benefit and there would be significant administrative difficulty in trying to apply setbacks in addition to those existing through Goal 5. She said the current proposal would apply to 13.6 miles of waterways instead of 90 miles to fill the gaps in water quality protection. She said the complexity of the ordinance reflects staff’s efforts to balance protection of water quality with the ability of owners to utilize their properties for their intended use. MINUTES—Eugene City Council June 18, 2008 Page 2 Work Session Mr. Clark wondered what it would cost to purchase conservation easements on the properties impacted by the proposal. He asked if there were other options similar to purchasing easements that would mitigate impact other than regulating top of bank and protection setbacks. He was interested in ways to protect water quality without impacting property owners. He disagreed with staff’s conclusion that the regulations would not cause a reduction in property value. He pointed out there was also no evidence that the remedy would actually succeed at increasing water quality. He said everyone valued cleaner waterways, but the cost was being imposed on a very few property owners and that was unfair. Ms. Walch said it was difficult to measure the impact of one strategy in isolation given the variables in the watershed; however, the City would continue to monitor water quality and a successful outcome of the proposal, all other things being equal, would be no worsening of water quality. She noted the proposal was to protect, not improve, water quality. Mr. Pryor asked for clarification on how the proposal would affect current property owners. Ms. Walch said the proposal was modeled on Goal 5 in that existing impacts, such as structures and landscaping, would be grandfathered in; owners could continue with those uses but new uses would be limited. She said the owner could utilize the property for its intended use, but in a manner that protected water quality. Mr. Pryor liked Amendment C related to telecommunications. He asked for an explanation of the additional reporting requirements under Option C1. Ms. Walch explained that the difference between options C1 and C2 with respect to telecommunications was with respect to water quality mitigation. If an existing satellite dish had a small foundation that needed to be enlarged, the lost water quality would need to be mitigated. She said administrative rules were being developed to lay the framework for quantifying the impact and the mitigation actions which could be taken. Mr. Zelenka reiterated that the proposal was a water protection ordinance, not a water quality enhancement ordinance. He believed that the various measures would cumulatively enhance water quality. He said it was less expensive to address water quality at this point tha treating it at the other end. He felt it was unreason- able for people whose property abutted a waterway to have an expectation that there would be no impact on the property; there were responsibilities that accompanied owning such property. He asked why certain waterways on the map were not being recommended for protection. Ms. Walch said those waterways in the West Eugene wetlands area were covered by the wetland conservation plan and policies and it was logical to honor those. Mr. Zelenka commended staff for a well done proposal. Ms. Bettman pointed out a typographical error on page 152. She said the reference should be to effective date. She asked to what extent the waterways were currently polluted. Ms. Walch said the waterways on the map were either not meeting state standards or drained into a waterway that was not meeting state standards. Ms. Bettman said that meant the proposal would maintain the pollution status quo and perhaps not become more polluted. Ms. Walch said that was not the intent; the proposal would prevent further pollution and combined with all of the other strategies was intended over time to improve water quality. Ms. Bettman asserted that the ordinance would not reverse existing pollution and because it was bundled with other practices its specific benefit could not be delineated. She asked if the waterways would be monitored and a baseline for pollution established before the ordinance was implemented. Ms. Walch said MINUTES—Eugene City Council June 18, 2008 Page 3 Work Session the monitoring that had occurred over the past 11 years would continue; that included monitoring stations on Amazon Creek as well as the Willamette River, but no new monitoring stations were planned within all of the waterways. Ms. Bettman asked if the cost of implementing the ordinance would be paid from the stormwater fund. Ms. Walch said implementing the Water Quality Protected Waterways could be accomplished within existing resources in Planning and Development and Public Works. Ms. Bettman asked what share of existing resources would be used to implement the ordinance. She wanted a specific number. Ms. Walch said additional resource impact had not been quantified because implementa- tion would use existing resources. Ms. Bettman asked who had appealed the original ordinance to the Land Use Board of Appeals (LUBA). Ms. Jerome said that it may have been multiple parties, one of which was Rest Haven Cemetery. She said the current proposal had not attracted the same level of controversy. Mr. Poling asked how mitigation could be accomplished by a property owner, such as a telecommunications company which needed to increase the size of a satellite dish base, if the property was already fully developed. Ms. Walch said the details of mitigation were not yet developed, but there could be options such as using adjoining property or property owned by a public agency, or payment in lieu of. Ms. Taylor felt the ordinance did not do enough and preferred something similar to the ordinance remanded by LUBA or purchasing buffer zones. She asked what would happen if the ordinance was not adopted. Ms. Walch said staff would meet with the Department of Environmental Quality to consider what other options might be available to the City. Ms. Taylor said she could understand not requiring a property owner to tear down a house, but was very disturbed about exempting landscaped areas, which she felt could be easily returned to a natural state to avoid the use of chemicals. She said there was nothing to prevent people from planting more landscaping. Ms. Walch said the ordinance was written to exempt landscaped areas in response to testimony received from the public. Ms. Ortiz said residents of River Road and Santa Clara were interested in natural bioswales under the minor code amendments process and asked how that related to the proposed ordinance. Ms. Jerome said it would depend on whether or not waterways in that area were included on the map, but she would need to research the matter. Ms. Walch clarified that the ordinance would apply to waterways that were within the City limits and to specific properties outside the City limits but within the urban growth boundary upon annexation. Ms. Solomon appreciated Mr. Clark’s discussion of purchasing conservation easements as an ordinance. She was concerned about decisions that would be made in the administrative rules process and hoped for more time to consider that. She asked if a property owner could rebuild a house as it was if it burned down. Ms. Walch said the house could be rebuilt. Ms. Solomon said she was still not convinced the ordinance was good policy. MINUTES—Eugene City Council June 18, 2008 Page 4 Work Session Mr. Clark said there was restoration work being done along Spring Creek currently. He said the ordinance would affect what property owners would be able to do with their property in the future. Ms. Walch clarified that Spring Creek and Flat Creek were covered by Goal 5 and not included in the ordinance. Mr. Clark asked if it was possible to quantify and compare the benefits and costs of the ordinance to other potential mitigation factors. He related his recent experience with the annual Willamette River clean-up and the amount of trash that was removed from the water and the banks. He said the comparative value of implementing the ordinance versus purchasing conservation easements versus ending illegal camping on the riverbank was not being discussed. He was not certain the ordinance was the best approach. Mr. Pryor did not see an either/or situation with respect to protection strategies. His support of the proposed ordinance was based on the real benefits to be realized and the degree of mitigation flexibility. He said people who purchased property along a waterway needed to recognize the responsibility that entailed, but the City should balance protection with the rights of owners to use their properties as intended. He asked how the ordinance would impact the buildable land survey. Ms. Jerome said that was quantified in terms of acreage under the Goal 9 and Goal 10 findings. Mr. Pryor, seconded by Ms. Bettman, moved to direct the City Manager to return the ordinance with the revisions described in attachments C-1, D and E. Ms. Bettman said it was good public policy to protect waterways and enhance water quality. She said if she felt the cumulative effect of the ordinance would accomplish that she would be supportive, but she did not see a benefit that outweighed the chaos that would occur on affected properties. She preferred to see money from the stormwater fund used to acquire easements. Ms. Bettman, seconded by Mr. Clark, moved to substitute a motion to direct the City Manager to return to the council with a scope of the cost of acquiring ease- ments before moving forward with the ordinance. Ms. Ortiz said she could support either motion although she questioned how the City would proceed if there were not willing sellers. She remarked that not all people who lived along waterways were contributing to pollution and most recognized the responsibility of living along a waterway and many used organic gardening practices. Mr. Zelenka agreed with Ms. Ortiz’s remarks and said he could support either motion. The motion to substitute passed unanimously, 8:0. The main motion as substituted passed unanimously, 8:0. B. EXECUTIVE SESSION Pursuant to Oregon Revised Statute 192.660(2)(e), Mayor Piercy called the Eugene City Council into executive session to discuss real property transactions. Mayor Piercy adjourned the work session and moved the council into public session. MINUTES—Eugene City Council June 18, 2008 Page 5 Work Session Ms. Bettman, seconded by Mr. Clark, moved to direct the City Manager to let the option on the Green property expire and to continue with due diligence to acquire the property for public parks, habitat and water quality values and bring any pro- posal back to the City Council in executive session for consideration. Motion passed unanimously, 8:0. The meeting adjourned at 1:40 p.m. Respectfully submitted, Jon Ruiz City Manager (Recorded by Lynn Taylor) MINUTES—Eugene City Council June 18, 2008 Page 6 Work Session