Florence Planning Commission
P.O. Box 340
Florence, Oregon 97439

RE: Resolution 01-01-09-04
Annexation of 52.85 acres located west of Highway 101 commencing immediately north of the city limits; Saubert, Merritt, Matthews, Sherman, Ryall, Higginson

Dear Commissioners:

We wish to first point out that it is not the responsibility of the City, or the Planning Staff, to prepare and present evidence which would justify a requested annexation or rezoning.  It is the responsibility of the applicant to ensure that all pertinent evidence and information is delivered to the Planning Commission.  With that in mind, we offer the following objections to this proposed annexation.

Request for Continuance - We are requesting a continuance of this hearing for the reasons set out below.  As the Commission is aware, every time a hearing is continued, it results in additional cost to the City.   In many instances, continuations can be prevented by ensuring adherence to regulations, such as adequate notice to the public - something that is essentially a clerical undertaking.  We are not unmindful of the inadequate staffing levels in the Planning Department, and assume that many of the errors and omissions indicated in these comments stem primarily from the staff’s overloaded schedules.  We believe that a recommendation from the Planning Commission for additional funding for the Planning Department would be the most efficient means of preventing these types of problems in the future.

Applicant’s Intent - This is a request for annexation and rezoning to Single Family Residential. Yet the Staff Report states “... the applicants’ intent is to eventually develop these site(s) consistent with the proposed Comp Plan designation of Limited  Industrial/ Commercial.”  The Staff Report also offers conclusions that certain criteria have been met, sometimes based on the assumption the rezoning is for Limited Industrial/Commercial zoning, sometimes for Single Family Residential Zoning.  It is our position that the applicant’s intent is irrelevant - the applicant cannot develop their property in a manner which is inconsistent with the existing zoning regulations.  If these parcels are rezoned to Single Family Residential, then the criteria used as a basis for this annexation and rezoning must relate only to that zoning.

Cost to Existing Residents of Florence - See attached Cost Analysis.  The Cost Analysis can be viewed in two ways: It either represents a “cost” to the existing taxpayers, or a “subsidy” to the developer.  Either way, these costs come out of our pockets, over and above any possible SDCs or taxes to be paid by the annexation petitioners/developers, a total of  $13,858,840 for all three annexations.  The cost of this annexation alone is $2,883,802.  Each Commissioner should carefully review the attached Cost Analysis before any decisions are made.  Each Commissioner needs to be aware of just how much their decisions may cost - or save - the City taxpayers.

Not mentioned in the Staff Report is the cost to the City of withdrawing this parcel from Heceta Water District or the Siuslaw Rural Fire Protection District.  The City must pay for a portion of a District’s outstanding debt service at the time of annexation.

Another expense which can logically be expected would be enforcement of the “sand blowing
ordinance” which the City recently enacted.  Currently, these parcels are responsible for any
problems which may accrue to their location next to an open dune.  If annexed, the City would be responsible for enforcing the “sand” ordinance, a cost which has not been considered.

Notice Requirements - The Notice of Public Hearing stated, “A copy of the staff report will be available at least 7 days prior to the hearing.”  The staff report was not available to the public until the afternoon of January 5, only 4-1/2 days before the hearing.  Additionally, the notice which was published in the Siuslaw News on December 9, 2000 was not the same as that which was mailed to affected agencies on December 7, 2000, nor the notice which was mailed to the public on December 11, 2000.

The hearing record should be held open to allow sufficient time for public comment.  Also see public agency notice deficiencies detailed below.

The proposed zoning to Single Family Residential, and annexation must meet certain criteria:

Statewide Land Use Goal 11 - Public Facilities and Services.   ... to plan and develop a timely, orderly and efficient arrangement of public facilities and services to serve as a framework for urban and rural development.

This standard requires the city to determine the need for adequate water supply facilities based on development plans and population projections, and to assure that the necessary facilities and services are available in advance of or concurrent with development.  (See Land Use Board of Appeals case 22 Or LUBA 369 (1991), Burghardt v. City of Molalla).  The showing of the availability of adequate services must be definitive, not merely feasible.  (See Land Use Board of Appeals case 22 Or LUBA 742 (1992), Southwood Homeowners Assoc. v. City of Philomouth).

The City’s Water Facilities Plan is merely feasible, not definitive.  Since the adoption of the Plan, the circumstances surrounding water supply have changed dramatically, and several alternative plans for location and number of wells have been put forth by the Florence Public Works Department.  No definitive plan has been adopted by the City.  No definitive resolution to the Clear Lake water supply problem has been found.  The most recent information available to the Planning Commission is that the County will be limiting Heceta Water District’s ability to withdraw water from Clear Lake to 1 mgd total.  The District presumably will provide customers inside the district boundaries with water before determining the amount available to sell to the City.  The City does not have an agreement with the District about provision of water to properties which are annexed to the City, and therefore the responsibility for water  will lie with the City.  The City cannot ensure that there is (or will be)
sufficient water for all the annexations that are being proposed on this date.

Statewide Land Use Goal 14 - Urbanization.  Conversion of urbanizable land to urban uses shall be based on consideration of:

     1.   Orderly, economic provision for public facilities and services

A. Notice.   The City has not provided sufficient notice to affected agencies.

The staff report states: “Affected agencies were also noticed.”  As of January 4, 2001, the only agencies which had received notice were: Lane County Boundary Commission, Lane County Land Management and Department of Land Conservation and Development.  Most of the pertinent government entities which should have received notice of this annexation hearing did not receive those notices until some time after January 4, if at all.  It has long been the custom of the City to notify affected public utilities and agencies and request their input so that the Planning Commission can have all information needed to make their decisions.  Although contrary to City policy, some agencies which were not notified as of January 4, 2001 include: Florence Public Works Department, Florence Police Department, Siuslaw Rural Fire Department, Central Lincoln PUD, Qwest Telephone, Heceta Water District, Siuslaw School District, Falcon Cable, Oregon Fish and Wildlife, Soil and Water Conservation Service, US Corps of Engineers, Lane County Transportation, Lane County Public Works, Oregon Division of State Lands, Oregon Department of Transportation and US Environmental Protection Agency (Sole Source Aquifer Designation).

It is exceedingly difficult for the Planning Commission to make an informed decision when all
affected public utilities have not had adequate opportunity to comment on the proposed annexation.  The hearing record should be held open until all affected agencies have received notice and have had adequate time to respond.

B. Water.  The City does not have sufficient water capacity to serve the proposed
annexation.

“The issue to be addressed at the time of annexation is whether these utility services have capacity to serve the proposed annexation.” (City Staff Report, 1/9/01, page 2)

While often characterizing this rezoning request as one for Limited Industrial/Commercial, the Staff Report clearly states: “Addition of a potential 40 employees would result in an additional demand which cannot be calculated at this time ...”  If the Commission is viewing this as a rezoning to Limited Industrial/Commercial, then the Commission has not been provided sufficient information to determine whether or not this annexation would overtax the City’s water supply capability.

While it would be more convenient to view this proposed annexation in isolation, the Commission must view this in the full context of the other two requests for annexation on the agenda tonight.  The combined effect of the addition of all three annexation proposals on the agenda (170 acres total) to the City cannot be ignored.

City has determined that it is in the city’s best interest to develop groundwater sources in order to meet future water needs.  The City’s Water Facilities Plan states that IF the existing plant facilities are “optimized”, (at a cost of at least $371,000) they could reliably produce 2.5 mgd.  The City has not instituted these “optimization” procedures, and there is no evidence in the record that the City wells can reliably produce 2.5 mgd today.

Even if the Commission could rely on the reported “average” production indicated in the Staff
Report of 2.2 mgd by existing City wells, it must be remembered:

1.  At least 10% of that production is lost to “unmetered” use;
2.  A certain percentage must be used to backwash the filters,
3.  Well production does not equate to usable water production,
4.  Production levels from dunal wells are notoriously unreliable, and
5.   Dunal wells ultimately produce less water over time, and have a relatively short          lifespan.

The City’s Water Facilities Plan prepared by Brown and Caldwell states: “The facility produces an average of 1.0 million gallons per day (mgd) with a peak capacity of 1.8 mgd.”

 The Staff Report indicates that our current population of 6,865 could be expected to create a demand for 1.29 mgd, and gives the impression that the City can produce 2.2 mgd, and purchase 1 mgd from Heceta.  This narrative might lead one to conclude that the City has the ability to provide 3.2 mgd to its residents.   These figures and calculations are misleading, overly simplistic, and ignore many factors.   Just in basic terms, if the current City population needs 1.29 mgd, and the wells can produce 2.2 mgd, then why would the City need to purchase .5 mgd from Heceta Water District during the summer?

A more realistic review of the City’s water capacity would include the following.  During summer months, the City regularly purchases in excess of .5 mgd from Heceta.  If the City’s peak capacity is 1.8 mgd, and the maximum which can be purchased from Heceta is 1.0 mgd, then the maximum peak capacity is 2.8 mgd.  Again, that figure must be adjusted to allow for “unmetered” use (10%).  (Note, the Water Facilities Plan (WFP) states that the City’s actual “unmetered” water use was 15.1% in the past.  Assumptions used in the FWP were 10%. It is entirely possible that the 10% figure is overly optimistic considering the age and condition of Florence’s water mains, and a higher number should be used when calculating water needs.) It appears that an optimistic level of usable water production available to the City right now is about 2.5 mgd.  A quick calculation (see attached Water Needs Analysis) can show the inadequacy of the existing system if these annexations are approved:

Estimated existing City water production            2.50 mgd
Estimated need after annexations                   -   2.95 mgd
           Water capacity shortfall                    (  .45 mgd)

The WFP  also states that in order to build a treatment capacity of 3.0 mgd, the City would have to expand the plant and add three more wells, at a cost to taxpayers of at least $1,065,000.  Again, it should be noted that “treatment capacity” does not equate to usable water produced.  A 3.0 mgd plant cannot produce 3.0 mgd of usable water to its customers.  A certain amount of the water will be lost to “unmetered” uses, and a certain amount must be retained in the system for back-flushing, storage, etc.  A 3.0 mgd treatment plant will not provide enough water for the proposed annexations.

The next step up in production is detailed in the WFP.   In order for the City to provide 4.7 mgd from wells, it would need to have at least 14 wells and spend over $11 million.  There is no evidence that the City has even seriously contemplated, much less approved, the expenditure of over $11 million for a 4.7 mgd facility.

The Staff Report states that the projected completion date for the new wells and plant expansion is “early 2002".  Unfortunately, time and funding often interfere with projected completion dates, and the 2001 completion date is speculative, at best.   The report does not state what the expected capacity of the “new wells and filters” will be in 2002.

The City does not currently have an agreement for withdrawal from Heceta Water District, which  therefore requires that the annexed area be withdrawn from Heceta Water District upon annexation, and water be provided by the City.  The report does not comment on what this would cost, or entail, or if it is even possible given the structure and pressure requirements of the City’s water distribution system.

C.   Sewer Facilities - The Staff Report has not adequately considered the future implications of the cost to existing residents.

While the sewer system reportedly currently has the capacity to serve 12,500, it should be kept in mind that the addition of the three annexations tonight effectively represent an increase in the City population of over 18%.  Looked at another way, this means that right now, the population inside city limits represents about 55% of the capacity of the sewage treatment plant.  The annexations will increase that to 65% - leaving us with only 35% of the capacity of our new plant left available for future growth.  Once we use up that 35%, we will have to pay for another expensive upgrade to the sewage treatment plant.

D.   Stormwater Management Facilities - The Staff Report has not addressed the potential threat to the North Florence Dunal Aquifer, a federally protected aquifer.

The Staff Report has not addressed the added potential of groundwater contamination of  the North Florence Dunal Aquifer.  The Stormwater Management Plan does deals only with surface water, not groundwater.  Some possible contaminants which would enter the groundwater: Accidental or intentional spills of pesticides, herbicides, motor oil, gasoline, pet wastes, paint and VOCs, etc.  The current laws do not require testing of drinking water for all possible (and known) contaminants from urban development.

E.   Streets and Sidewalks - No notice to ODOT.  Oregon Department of Transportation has not received notice of, or adequate opportunity to comment on, this annexation request.  No decisions should be made until this agency has had sufficient time to comment.

The Staff Report speaks of the Oak Street extension, with a signalized entrance onto Hwy 101, as though it were a “sure thing”.  The City has obtained funds for construction of Oak Street to 46th, but there is no funding available for extension to service these parcels, an endeavor which would require condemnation (purchase) of a considerable amount of private land and construction across federal property which is an open dune.  The Staff Report’s statements about the level of service the proposed street will provide (bike lanes, curbs, sidewalks, etc.) is speculative at best, and misleading at worst.  The prospects of Oak Street actually being completed to these parcels is so far off into the future that it should not even be considered.

F.   Fire Protection - No notice to affected agencies. The Siuslaw Valley Rural Fire Protection District has not received notice of, or adequate opportunity to comment on, this annexation request.  No decisions should be made until this agency has had sufficient time to comment.  Also, see attached comments re: cost to existing taxpayers.

G.   Power and Communications - No notice to affected agencies. Neither the Central Lincoln PUD, local cable company, or local telephone company has received notice of, or adequate opportunity to comment on, this annexation request.  No decisions should be
made until these agencies have had sufficient time to comment.  Also, see attached comments re: cost to existing taxpayers.

H.   Police Protection - No notice to affected agencies. The Florence Police Department has not received notice of, or adequate opportunity to comment on, this annexation request.  No decisions should be made until this agency has had sufficient time to comment.  Also, see attached comments re: cost to existing taxpayers.

This Staff Report clearly indicates that the City cannot provide adequate police protection at this time, other than “a very limited level of preventive law enforcement” and “emergency services.”

2.   Availability of sufficient land for the various uses to insure choices in the market place.  The Staff Reports offers no conclusion or finding that this annexation meets this criteria.  The Staff Report attempts to justify the annexation by referring to the proposed zoning in the draft Comp Plan.  This annexation must be evaluated on the basis of the 1988 Comp Plan, and the requested zone - Single Family Residential.  To make determinations based on information  as the Staff Report suggests would be to compare apples with oranges.  The “proposed” industrial/commercial use of these parcels is irrelevant - the Commission can only deal with what is actually before them, not “what if” or “maybe” or even “possibly”.  This is a request to rezone these parcels to Single Family Residential, plain and simple.

Adoption of findings which are based on references to the “proposed” uses of  Industrial/commercial is tantamount to sending a written invitation to lawyers to sue the City for misrepresentation.  These applicants are apparently being told that their parcels will eventually be rezoned (again) to industrial/commercial, as none have indicated they actually expect to use these parcels as Single Family Residential after annexation.   If the annexation goes forward, these parcels will be forced to bear the expense of hooking up to City sewer and water - to parcels which can only be used for (and sold as) Single Family Residential uses.  The Commission needs to carefully consider the ramifications to the City if the applicants have submitted this request for rezoning on the basis of that representation by staff (actual or implied), and then the draft Comp Plan succumbs to legal challenges and the properties cannot be rezoned to industrial/commercial.

The report also fails to discuss the dramatic devaluation of an existing buildable lot already inside the city limits when the “pool” of buildable lots is increased (from 124 lots currently) by adding (total of 560 in all three annexations) more potential lots.

The Staff Report states that an examination of the City map illustrates the need for additional land for single family residential development.  Staff appears to be confused between a need for choices of housing types for city residents and opportunities for developers, not necessarily the same thing.  What staff is trying to illustrate is their perceived need for more developable land - land which can be purchased in large chunks, subdivided and sold off at a tidy profit.  There is no stated need in the Comprehensive Plan (either the 1988 or proposed new plan) for development opportunities.  The need, if any, which must be addressed is for housing choices, not development opportunities. In that respect, Florence has sufficient residential land to provide for housing through development (124 empty lots) and development or re-development of existing underutilized residential parcels.  In fact, the staff developed the data for, and this Planning Commission approved, the statement in the new Comp Plan:  “... a good supply of vacant lots and unbuilt phases of approved residential subdivisions exist within the city.” (5/5/2000 Draft, page 3)

3.   LCDC goals or the acknowledged comprehensive plan. This rezoning does not comply with LCDC goals or the applicable 1988 Comprehensive Plan.  The Staff Report clearly states: “The Urban Service Area section of the Plan was written to control, as
much as possible, development in the Urban Service Area outside the City limits in a way which allowed redevelopment to city standards upon annexation, and which prevented density of development requiring extension of sewer service to areas of failing septic systems.”  Regardless of whether the staff believe the 1988 Plan to be outdated, it is the ruling authority in this instance, and the annexation request must comply with the existing standards as set out in the 1988 Comp Plan. If the petitioner wishes their application to be required to conform with the more “updated” version of the Comprehensive Plan, they must wait until it is formally adopted and acknowledged, and then re-apply.

The Staff Report states that” Objective 4 directs the City to encourage development to occur within the city limits with controlled outward growth.”  The report then goes on to justify this annexation based on the need for more industrial/commercial uses.  This annexation is to be rezoned Single Family Residential, and the Staff Report findings do not provide a basis for an affirmative finding by the Commission.

The Staff Report states that “Policy 5 states that medium to high density development shall be
allowed only if adequate water and sewer capacity is available and the proposed development meets all other criteria.”  Sufficient water capacity is not available at this time, and there is no evidence showing when it will be available.

Policy 5 and 7 - Again, this annexation is to be rezoned Single Family Residential, and the Staff Report findings do not provide a basis for an affirmative finding by the Commission.

For these reasons, this annexation request should be denied.

(signed)
Zane Ziemer, President

Attachments:
 December 9, 2000 Newspaper Notice
 Cost Analysis - Proposed Annexations
 Water Needs Analysis - Proposed Annexations
 Myths & Facts About Oregon’s Urban Growth Boundaries
 The Cost of Growth in Oregon: 1998 Report