Dunes City Council       M I N U T E S

Special Meeting – March 15, 2007 - 7:00 P.M.

City Hall - 82877 Spruce St.
Westlake, OR 97439

COUNCILORS PRESENT:            Mayor Sheldon Meyer, Peter Howison, Richard Koehler, Susie Navetta, Bob Petersdorf, John Scott

COUNCILORS ABSENT:  David Bellemore (excused)

OTHERS PRESENT:  Joanne Hickey, Gary Darnielle (Staff); Lee Riechel (Planning Commission)

1.      CALL TO ORDER

         Mayor Sheldon Meyer called the meeting of the Dunes City Council to order at 7:00 p.m.

         City Recorder Joanne Hickey called the roll, noted the absence of Councilor David Bellemore, and stated that a quorum was present.

         Councilors joined in the Pledge of Allegiance.

2.      RESOLUTION 3-15-07

         Mayor Meyer announced that the Council would consider Resolution 3-15-07, A RESOLUTION ADOPTING AN AMENDED DUNES CITY FEE SCHEDULE FOR ACTIVITIES REQUIRING PERMITS.  He referred to agenda support material that included the Resolution and proposed fee schedule.

         Councilor Bob Petersdorf moved, seconded by Councilor John Scott, to adopt Resolution 3-15-07, A RESOLUTION ADOPTING AN AMENDED DUNES CITY FEE SCHEDULE FOR ACTIVITIES REQUIRING PERMITS.  The motion was adopted unanimously, 5:0.

3.      UNFINISHED/OLD BUSINESS

         A.      Evidentiary Hearing – Little Woahink Drive

               Mayor Meyer opened an Evidentiary Hearing regarding erosion of soil into Little Woahink Lake previously considered at the February 8 Regular Meeting of the Council.

                  City Attorney Gary Darnielle said a violation of City Code Section 159.040 was being considered, as follows:

                              No graded or excavated surface shall be left or abandoned without vegetation for more than one year.

                  Mr. Darnielle suggested that testimony regarding the violation had been completed during the time of its previous consideration.  He proposed that the Council consider the possibility of reaching an agreement, stipulating that a violation had occurred and imposing a fine. 

                  Councilor Peter Howison said he was concerned that owners of the property in question had taken no action for more than a year from when they were informed that a violation had occurred.  He read from a November 2005 report of City Engineer Michael McAllister indicating that it had been agreed that the owners would hire a local contractor to inspect and maintain erosion control measures on the road during each storm event and every 48-hours otherwise.  He read from a later report indicating that the agreement had not been kept, but that the owners had cleaned out catch basins and applied hay to exposed areas. 

                  Councilor Howison said a process for imposing a fine for violating the City Code was in place and that he believed it should be followed, especially since the violation was flagrant and long-term.

                  Councilor Petersdorf reported that, as Chairperson of the Road Commission, he had been actively involved with the issue and had visited the property numerous times.  He said he believed the owners had done everything asked by the City.  He said official abatement procedures for the property had never been invoked.

                  Councilor Howison said he believed there was an egregious violation involved that that a severe penalty should be imposed.

                  Councilor Scott said it appeared that the owners were ready to admit that they were lax in complying with the rules and he supported seeking a stipulated agreement as described by Mr. Darnielle.  He said his personal observation during storms on three different occasions was that runoff from the road into Little Woahink Lake was not significant.

                  Councilor Howison said the City Council had rarely imposed a fine for violation of an ordinance but that the developers involved in this incident were well aware of the requirement that cleared land must be re-vegetated and had done nothing.  He said he believed a daily fine should be imposed for the time from one year after the violation was first reported and when corrective actions was taken.

                  Councilor Susie Navetta said she believed the Council should become more aggressive in seeking compliance with the requirement for re-vegetating cleared property.

                  Mr. Darnielle said the Council had two options:  (1) Follow a procedure that would find the property owner had violated a Code provision and impose a fine.  (2) Seek a stipulated agreement in which the property owner agreed that a violation had occurred and was willing to pay a negotiated fine.  He said the advantage of the second option was that it eliminated the possibility of litigation and did not require that the City prove that a violation had occurred and how long it had gone unabated.

                  Councilor Richard Koehler reported that he had taken photographs of the excavated roadway and that he believed no more than ten percent of the exposed area had been covered with hay.

                  Councilor Petersdorf said he believed the only violation that had occurred was that the property owners had not re-seeded the exposed area.

                  Councilor Howison stated that when the City Attorney had discussed the matter with counsel for the property owner, abatement should have begun, but nothing had happened for almost one-year.  He suggested that negotiations for a stipulated agreement begin with a proposed fine of $22,000, calculated at $120/day since September 1.

                  Councilor Howison expressed concern that Dunes City ordinances were not being followed by many residents.  He said that if developers were allowed not to follow the rules, it would set a bad example for other citizens.

                  Councilor Petersdorf said he believed the proposal of Councilor Howison was overreacting to a situation that involved only not seeding exposed areas of a construction site.  He said water was not running off the road.  He said “turmoil” created by the Dunes City construction moratorium was a major factor in the delay of the development project and that it was unfair to expect that the road would be completed, if the project would not be built.

                  Councilor Howison said his proposal was based on the principle of needing to follow established rules.

                  Councilor Koehler said his major concern was that the property was abandoned without providing for ground cover vegetation for more than a year.

                  Councilor Navetta said she was concerned that since the property owners had not followed the rules before, there was no assurance that they would if they again started work on the development project.

                  Councilor Petersdorf said that the only thing the owners had not done was reseed excavated property and that he believed a person’s word should be honored.

                  Councilor Navetta said that reports made to the Council suggested that neighbors of the property and users of the lake did not believe the property owners had done everything that could be done to protect the property and lake.

                  Councilor Petersdorf suggested that erosion and sedimentation that occurred in the area of the property could have also been caused by a nearby logging operation, roadwork done by Lane County, or effects from neighboring property owners.

                  Mayor Meyer said he agreed that the property owner had not done what should have been done in connection with the cleared area, but that the City had also not done what it should have done by initiating abatement proceedings and being more serious in following up on its requirements.  He said he was not suggesting that there be no fine imposed, but that it should not be set so high that it would “break the bank.”

                  Councilor Scott said it was important that any work on the development project in the future would be closely monitored through permitting processes and required inspections.  He said he supported settlement of the issue and moving forward with a stipulated agreement.

                  Mr. Darnielle said it would be appropriate for the representative of the property owner to make an offer about conditions for a stipulated agreement.  He said Councilors should insist that admission of a violation having taken place be included and that enough of a penalty be set that would serve as a deterrent to similar violations in the future.

                  Councilor Howison asked for suggestions that would avoid similar situations arising in the future.

                  Mr. Darnielle said the tact that the City had taken to enforce its ordinances was more lenient that it could have been.  He suggested that if a similar situation ever again occurred, “day one” of when a violation began should be clearly established.  He said the City Council should direct that a notice of violation be officially sent, giving a deadline for rectifying the problem and that established fines for the violation be clearly stated.

                  A female voice from the audience said she did not believe it was appropriate that the City was unable to seek redress for the major erosion and sedimentation that had occurred during the first winter the property in question was only protected by “plastic fences." 

                  Michael Farthing, 767 Willamette Street, Eugene, stated that he represented the owners of the property in question.  He said his clients favored a stipulated agreement to settle the matter at hand because it was a technical, not egregious violation and had not caused significant harm.  He said it would be important to avoid having all parties “dive into” the City Code to figure out what should have been done, when, and where.  He said his clients would be willing to pay a modest fine that could be used as precedent for other violations based on their seriousness.  He said $20,000 was far too high a fine and would be contested by his clients.  He said the written agreement would include stipulations of what would be done to the property over the next six to nine months.

                  Mr. Farthing said that regardless of what happened with his client’s Planned Unit Development application, it had approval for an 11-lot subdivision on the site and would proceed with its development.

                  Councilor Petersdorf moved, seconded by Councilor Scott, that the City Council authorize a stipulated agreement with owners of the Little Woahink Drive property that included imposing a fine of $2,500 for not reseeding excavated areas within one-year.

                  Councilor Navetta said she did not believe the suggested fine was high enough.

                  Councilor Petersdorf said he believed the fine should be appropriate to the violation in order to set a precedent for future violations.

                  Councilor Howison said he agreed with Councilor Petersdorf, but that the issue at hand involved persons of means and that an example should be made to ensure that future violations not be encouraged.

                  Councilor Koehler said that the proposed fine was less than ten percent of the fine that would be imposed at $120/day because the property had been unseeded and abandoned for over a year.

                  Councilor Koehler moved, seconded by Councilor Navetta, to amend the motion to set the fine at $15,000.

                  Councilor Petersdorf said the property and road had not been abandoned and that he could not agree to the proposed amendment of his motion.

                  Mr. Darnielle recommended that the motion be declared out of order because the maker of the original motion would not accept the amendment and it had the effect of changing the intent of the original motion.

                  Mayor Meyer declared the motion to amend out of order.

                  Councilor Scott said he was concerned that cooperation between the City and developers had become increasingly strained and he believed a stipulated agreement should be attempted to avoid litigation.  He said he favored a lower fine to avoid expensive litigation.

                  Councilor Petersdorf stated that the Road Commission had notified the Planning Commission when it had found the violation being considered.  He said the Planning Commission had not followed the recommendation of the Road Commission not to accept any applications related to development of property accessed by the road until the problem was corrected. 

                  Councilor Howison expressed a hope that a compromise on the level of fine to be levied could be reached.

                  The motion to authorize a stipulated agreement and impose a fine of $2,500 was defeated, 2:3, with Councilors Petersdorf and Scott voting to approve.

                  Councilor Howison moved that the City Council authorize a stipulated agreement with owners of the Little Woahink Drive property that included imposing a fine of $5,000 for not reseeding excavated areas within one-year.

                  Mayor Meyer determined that there was no one willing to second the motion and it was not considered.

                  Councilor Scott moved, seconded by Councilor Petersdorf, to table the matter of a stipulated agreement with owners of the Little Woahink Drive property and to invite representatives of the parties involved to return with a proposal to be considered by the Council at its Regular Meeting in April.

                  Councilor Petersdorf said he believed the motion was an example of the City Council postponing action, doing nothing, and creating an impossible Agenda.

                  The motion was defeated, 1:4, with Councilor Scott voting to approve.

                  Councilor Howison moved, seconded by Councilor Navetta, that the City Council authorize a stipulated agreement with owners of the Little Woahink Drive property that included imposing a fine of $10,000 for not reseeding excavated areas within one-year.

                  Ms. Hickey recommended that the Council consider that setting the fine too high could result in legal action that would cost the City more than it would gain from the fine.

                  Councilor Howison said he was uncomfortable adopting the motion without a consensus of members of the Council.  He said he did not know if its proposed fine would result in litigation and that he wanted to reconsider the action, if it did.

                  Councilor Scott said he was concerned about setting a high fine because litigation would require that the violation caused harm and danger and that he was not sure it was possible to do so.  He said the issue was that the excavated land had not been reseeded and that a fine based on that violation should be considered.

                  Councilor Howison said the issue at hand was an example of why the City needed an enforcement officer and should institute policies that would avoid having similar issues require action by the Council.

                  Mr. Darnielle said that he could provide a sample of a clearly defined enforcement process at the next meeting of the Council.

                  The motion was adopted, 3:2, with Councilors Petersdorf and Scott voting no.

                  Mayor Meyer declared a recess in the meeting.

   4. PUBLIC HEARINGS

            A. The Wood on Little Woahink Planned Unit Development

                  Mayor Meyer reconvened a Public Hearing on the Little Woahink Planned Unit Development (PUD) continued from the March 8 meeting.  He referred to his previous recital of the legal rights of the applicants, criteria for approval of the application, requirements for submissions to enable appeal to the Oregon Land Use Board of Appeals (LUBA), and provisions for holding open the record of the hearing on the request of any participant.

                  Mayor Meyer asked Councilors to state any conflict of interest or ex parte discussion regarding the application that had taken place since it was previously considered.

                  Councilor Scott said it was appropriate that he state he was a licensed real estate broker who could deal with properties similar to that involved in the application.  He stated that neither he nor his company had had any contact or conversations with the applicant.

                  Mark Chernaik, no address provided, stated that he had been engaged by the Council to provide an evaluation of the application under consideration.  He referred to his report dated March 13, 2007, and reviewed conditions he recommended for approval of the application:

1.      The applicant shall maintain a conservation easement along the perimeter of the property that preserves existing vegetation within 100 feet of Little Woahink Lake.

2.      The applicant shall use a mathematical model to predict the likely impact of land use changes on water quality in Little Woahink Lake.  In use of the model, the applicant should use P-loading coefficients that represent both conservative (reasonable foreseeable maximum) and generous (justifiable minimum) values.  The applicant may first use a zero-dimensional 'Vollenweider-type' mathematical model to predict the likely impact of land use changes on water quality the Little Woahink Lake.  If doing so reveals that the proposed PUD might adversely impact water quality in Little Woahink Lake, the applicant shall use a two-dimensional mathematical model (i.e. CE-QUAL-W2) to predict the likely impact of land use changes on water quality in Little Woahink Lake.

3.      The applicant shall include in the CC&R's a requirement that lot owners shall not convert more that 10% of the total area of vegetative cover from native landscapes into residential lawns and gardens.

4.      The applicant shall redesign the stormwater system to provide preliminary stormwater treatment prior to discharge into Little Woahink Lake by using a series of upland bio-retention cells.  In doing so, the applicant's design team shall consult with experts possessing demonstrated experience in the use of ecological features to minimize nutrient releases from residential development.

                  Councilor Scott said the report of Mr. Chernaik showed the lack of an on-site evaluation of the property in question because of its description of it as “undisturbed,” whereas it had been logged at least twice and that re-grown trees were nearing a maturity.

                  In response to a question of Councilor Scott, Mr. Chernaik explained that the proposed mathematical model would incorporate the size and shape of the lake; and measure water quality, inflow, and outflow characteristics to determine the effects of residential development on its shore.

                  Councilor Scott suggested that the marshy, sediment-basin character of Little Woahink Lake made it unique and not likely to fit within the parameters of such an analysis.

                  Mr. Darnielle asked if the proposed mathematical model used established standards to measure its analysis.  Mr. Chernaik replied that no such standards were available and that use of the model would produce data on which an evaluation of impacts could be conducted.

                  Councilors, members of the audience, and Mr. Chernaik discussed the purpose, use, and value of the proposed mathematical model at length.

                  Michael Farthing, 767 Willamette Street, Eugene, stated that he represented the applicant, Darren Kronberger.  He said he appreciated the presentation of Mr. Chernaik.  He said standards for residential development established in the Dunes City Code should be used in evaluating the application, not data accumulated by a mathematical mode. 

                  Councilor Howison said he questioned the assertion of Mr. Farthing that Dunes City was unable to use standards established in its Comprehensive Plan in evaluating a subdivision plan.  Mr. Farthing stated that his point was established in Oregon Statutes and case law.

                  Shane Hughes, 2535-B Prairie Road, Eugene, stated that he represented E.G.R. and Associates, civil engineers for the PUD applicants.  He thanked Mr. Chernaik for providing him with a copy of his report in advance of the meeting.  He identified what he said were errors that needed correction and spoke at some length of his experience and expertise in designing wastewater treatment systems.

                  Mr. Hughes made a presentation of details of the treatment system proposed for the PUD.  He described groundwater flow characteristics and the effects of various filtering systems.  He stated that no standards were established for water conditions raised by Mr. Chernaik and that data produced by a mathematical model, though of importance and interest, could not be used to judge an application.  He described what he characterized as the “high flush rate” of Little Woahink Lake.

                  Mr. Hughes said the applicant had no objection to some recommended conditions for approval – 100-foot buffer, limiting lawn and garden use, and re-design of the stormwater system.  He said the mathematical model proposed was unnecessary and would be inordinately expensive.  He said he objected to an assumption that he and his firm were unqualified to design and install a wastewater treatment system.

                  Daniel Olmstead , 2535-B Prairie Road, Eugene, stated that he had redesigned the stormwater for the proposed PUD based on concerns raised.  He reviewed diagrams of the system and described its use of infiltration trenches, baffles, oil separation processes, roadside ditches, distribution piping, and bio-retention cells.

                  Councilors discussed the presentation.

                  Mr. Hughes described the design and use of dry wells on individual properties in the development.

                  Mr. Farthing said the applicant was prepared to revise its requirements for property owner's CC&R, and to accept a traffic study report that had been prepared.

                  Mayor Meyer invited others to testify.

                  Christine May, no address provided, said she objected to the use of the traffic study report prepared in connection with the application because it never discussed Little Woahink Drive.  She said Councilors were aware of the opposition to the application and encouraged them to “do the right thing.”

                  John Stead, no address provided, said he commended the applicant for its efforts to resolve concerns raised about the proposed PUD.  He distributed copies of a letter stating specific concerns and reviewed his contentions regarding requirements for the use of water from Woahink Lake, as proposed by the applicant.  He said many regulations regarding such use had not been addressed.

                  Mayor Meyer invited representatives of the applicant to make rebuttal of testimony.

                  Mr. Farthing stated that meeting regulations related to Dunes City water rights for Woahink Lake would be addressed in the normal course of application procedures.  He said the engineering firm engaged by the applicant was well qualified and familiar with Oregon requirements in that regard.

                  Mayor Meyer determined there were no further requests to testify and closed the Public Hearing.  He invited Councilors to deliberation regarding the application.

                  Councilor Howison said he appreciated the large amount of new information gained regarding application issues.

                  Councilor Scott said he agreed and commended the applicant for its presentations.

                  Councilor Petersdorf described the construction of Little Woahink Drive and stated that it had been designed to accommodate traffic increased from any potential development with which it was connected.  He said efforts to create more stringent traffic safety measures had been thwarted by standards for such changes set by Lane County.

                  Councilors discussed the application at length and appeared to come to agreement that possible conditions for approval should be identified, appropriately expressed by the City Attorney, and serve as the basis for further discussion and a decision regarding the application at the next meeting of the Council.  Topics of conditions for approval were suggested, as follows:

1.      Conditions recommended by the Planning Commission

2.      Limitations on lawns and gardens

3.      Issues related to the water supply and septic systems

4.      Common area provisions

5.      Stormwater infrastructure maintenance by home owners association

6.      Use of native plants that not require fertilizers

7.      Removal and hauling of vegetation

8.      Stormwater dry wells for individual homes

9.      Setback requirements

10.     Delineation of water requests and storage

11.     Use of fire suppression sprinkler systems for individual homes

12.     Traffic issues and number of lots

13.     Water quality issues

                  Mayor Meyer stated that Council deliberation regarding the Little Woahink PUD application would be continued to the April Regular Meeting.

   5.      OTHER MATTERS

            Mayor Meyer reported the results of the March 13, 2007, special election on Dunes City Measure 20-128, Voter Approval for City Moratorium on Construction or Land Development.  He said 62 percent of registered voters had cast ballots with 349 (57.5%) voting “yes,” 258 (42.5%) voting “no.”  He said any future moratorium would require citizen approval.

            Mayor Meyer stated that the Council needed to appoint a liaison representative to meetings of the Lane Council of Governments Board of Directors.

            Following discussion of the value and inconvenience of the meetings, there appeared to be no volunteer to serve.

            The meeting adjourned “before 11:00 p.m.”

                        (Recorded by Dan Lindstrom)