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1984-90251-Minutes for Meeting November 07,1984 Recorded 12/13/1984VOL 62 PAGE 133 DESCHUTES COUNTY BOARD OF COMMISSIONERS ('^s. nt� 3_.FC 13 Pl':: 4: 3., NOVEMBER 7, 1984 ROSE & ASSOCIATES APPEAL HFA,RIN`G yry Chairman Young called the meeting to order at 7:00 P.M. Commissioner Prante and Commissioner Tuttle were also present. Chairman Young asked if there were any challenges to the right of the Board to conduct this hearing. Chairman Young explained that the hearing will be on the record. Chairman Young opened the hearing. Commissioner Tuttle stated that he has viewed the site from the road way but has not walked the site. Commissioner Prante stated that she has also viewed the site. Chairman Young said that he viewed the site eight or nine years ago. George Read, Planning Staff, explained that this is an appeal of the Hearings Officer's decision to allow a zone change from Surface Mining Reserve (SMR) to Surface Mining (SM) on a twenty acre parcel of property, located approximately 1/4 mile south of the intersection of Knott Road and Arnold Market Road. The Hearings Officer's decision was to approve the zone change based upon numerous findings. The primary issues are that of the ability to allow active surface mining on the site for the purpose of rock, which will be crushed on the site to be used as aggregate. This is a zone change and there will be a subsequent site plan review hearing, which will review the specifics of the mining operation. The Hearings Officer's decision approved the application with the following conditions: 1) That no mining occur except in accordance with the County approved site and reclamation plan; 2) That the applicant meet all Department of Environmental Quality and County air and noise standards; 3) That the applicant obtain a road approach permit from the Deschutes County Public Works Department; 4) That the active mining will be limited in duration to 30 days per year and must not be done during the months of May through September; 5) That active mining will not commence prior to 8:00 A.M. and will cease prior to 6:00 P.M. and no active mining will be conducted on Sundays. Mr. Read continued that the Planning Staff concurs with the findings and decision of the Hearings Officer and felt the decision supported the staff report. Mr. Read explained that he has received one letter in addition to the letters received at the prior hearings regarding this request. Mr. Read said that the letter is in opposition to this request and marked it an exhibit of the record. Owen Panner, on behalf of the immediate neighbors, said they have stipulated to this appeal on the record with the applicant. Mr. Panner stated that part of the record was the Comprehensive Plan and the hearings for the Comprehensive Plan. Mr. Panner stated that the history of the Comprehensive Plan is essential to this decision. Mr. Panner stated that the area involved has always been agricultural lands before the zoning laws went into affect. It was at first 20 Agriculture and then Exclusive Farm Use and at the time of the Comprehensive Plan there have been real MEETING MINUTES — PAGE 1 controversies about it. Mr. Panner stated before the applicant has made a conditional mine dirt. Throughout the hearings on the there was never any reference to aggregate, crushing, or rock being on the site. Mr. P time the request was heard by planning comm was rejected, based generally upon the natu surrounding area, and the limitations on th the elements in that area if you begin to o Mr. Panner stated that as the hearings cont insisted that this should be zoned surface stated that the property was zoned surface purpose of the Comprehensive Plan. Mr. Pan vas 62 FACE 134 that in each instance use application to Comprehensive Plan no reference to rock anner stated that each issions the application re of the area, the e ability to control pen up that ground. inued, the applicants mining. Mr. Panner mining reserve, for the ner stated that the Comprehensive Plan references the tact that surface mining reserve zones will be expected to be mined at some time in the future. Against that there is precautionary language that makes it clear that it may never be mined under certain circumstances. The Compreheneisve Plan makes it clear that in order to change the zone to surface mining, there has to be a showing of public need to meet the next five years requirements, showing it is in the public interest, and there has to be a site plan and a reclamation plan approved as a condition of moving it into surface mining. Mr. Panner said that after it was sent to LUBA as a surface mining reserve with these restrictive requirements, the applicant appealed and attempted again to have it converted to surface mining. The applicant opposed the language that left it surface mining reserve and indicated that if it were ever to be converted it would require a special showing because of the high conflict that had already developed. Mr. Panner said that this language makes it clear that it is not anticipated that this area would have to be mined. Mr. Panner said that before the zoning laws were ever passed and during the Comprehensive Plan time period when it was in exclusive farm use, numerous properties were developed, including good breeding farms of excellent animals. After the Comprehensive Plan was adopted, people developed property based upon the protection set forth in the Comprehensive Plan. Mr. Panner said that as you look at the area you will notice that there is a very high cliff to the south and west of the proposed area. That cliff wraps around onto some of the property in a fashion that is very sheltered from the winter southwest winds. That cliff and the flat below furnish wintering areas for deer, coyotes, bob cat, red tailed hawks, and gold and bald eagles. The area below and above are very sandy and that sand blows easily. Mr. Panner stated that the area is very fragile and this has been noted by Planning Commissions and County Commissions before. It is fragile because of the way the wind blows. Mr. Panner stated that there was testimony in all previous hearings regarding the wildlife. Mr. Panner stated that this application came along in about April, 1983 including 20 acres to be rezoned from surface mining reserve to surface mining. Mr. Panner said that 20 acres is a small part of the 400 plus acres zoned surface mining reserve. In the application for the 20 acres there is only been a study done on an area of 200' by 2001. Mr. Panner said the only expert testimony given at the last hearing MEETING MINUTES - PAGE 2 VOL 62 PACE 135 was by a very good geologist, Mr. Bunker, who testified that you can't tell even how deep that rock goes or whether it is any different from rock that is all over the east side. Mr. Panner said that the study on the 200 x 200 foot area is being used to start a 20 acre mining situation, which has to be nothing but a movement into converting the whole area from surface mining reserve to surface mining for the purpose of dirt mining. To put a rock crusher in on this site which was never contemplated at the time of any hearing until this application raised some serious questions. The staff indicated that the need was based upon a County contract, which has long since expired. The notice that went out indicated to these people that they didn't need to worry much about it. According to the experts who testified in connection with dusting, blasting, shooting, rock crushing on the site for 30 days is in absolute violation of the noise ordinances of both the County and DEQ. In the record it is not even contested by the applicant that they meet this except Mr. Coats testified that he always meets the DEQ requirements. Mr. Panner said the record shows that Mr. Coats has been in violation with DEQ in the past. Mr. Panner said there is evidence that makes it clear that it would take 30 days for the DEQ to figure out whether they were violating the noise requirements. Mr. Panner said that it has been the regular practice of the county on some occasions to make certain this site plan hearing is held before the zone change hearing is held. The staff called a site plan hearing before the zone change hearing was held last November and the purpose of that, as the Comprehensive Plan indicates, is to give the neighbors an opportunity to know what is going to happen. Mr. Panner said the only person to show up was the applicant's attorney. There were a number of questions as to how this operation was going to run and the attorney could not answer. Mr. Panner said that there was no indication as to how this operation would run. The Comprehensive Plan requires that in order to change from surface mining reserve to surface mining, you must take into account the environmental considerations, the neighbors interest, and the other things affected by this. There is no way the record in this case can justify a grant of this application. Mr. Panner continued that another requirement of the Comprhensive Plan is that the need must be for the next five years. The need shown here is the contract between the County and Mr. Coats for 25,000 tons. Mr. Panner said that they are fully aware that Mr. Coats contracts with the County and sells rock, and undoubtedly if he is able to mine close to the County pit, the County will get a better price. Mr. Panner said that there is a lot of contact between Mr. Coats, the applicant and the County in connection with this application, putting tremendous pressure on the staff. Mr. Panner stated that this site has to be needed for the next five years, not for just one contract. When you change property to surface mining, you are supposed to mine and get off the property. Mr. Panner said the other requirement in the plan is that there be an analysis of all other resources that are available. Mr. Panner said that this is complicated by Mr. Coats reversal of the County in the Coats case involving the last mining application where they raised questions about the Comprehensive Plan and Goal 5. The MEETING MINUTES - PAGE 3 ' VOL 62 FAGc 136 result is that the applicant has to meet all of the Goal 5 requirements. Mr. Panner said that we are in a position where all of the resources have to be re -analyzed. The testimony in the record is that there are eleven other areas on the east side that have comparable rock to this. The only questions raised about that is whether those sites were available, could they be mined, and were they already zoned surface mining reserve. This is not the test of the Comprehensive Plan. The question is could they be or should they be. Mr. Panner said that what has happened is as a matter of convenience. Everybody has said since the landfill is there already and the people are already being bothered, lets add a little bit more and put a rock crusher in for 30 days so that there won't be enough time for DEQ to test them on the air and noise regulation, but enough to establish a right to do whatever they want. Mr. Panner said that the Board has not done this but it is the way it appears to all of them. The neighbors of that landfill have been good neighbors. Many of them moved there before the landfill and many after. Mr. Panner said that everyone has lived with that landfill, in spite of the numerous legal violations that have occured out there, as far as taking care of the landfill goes. Mr. Panner said there is testimony in the record about the wells in the area. The wells are 800 feet deep. There is no testing or evaluation about the effect on the wells in the immediate area. This is an extremely serious application and has been hard fought. Mr. Panner said that the Hearings Officer's decision reflects a complete failure to analyze any interest of the neighbors. Mr. Panner said that if the Board accepts the concept that the County needs this and it will be cheaper rock and gravel, it will be a serious legal error. Mr. Panner said that if you read the staff report and record you will see there is no evidence on which to base a finding of five year need, site plan and reclamation plan, where the resource is needed, and public interest isn't even touched. Mr. Panner asked those people who are here against this project to raise their hands. He estimated approximately 50 people where at the meeting. Pat Rogers, 60500 Arnold Market Road, said that they have been fighting this for a long time. When the question came up to change the zone to surface mining reserve, they were told it was strictly an identification of resource, that it was no closer to becoming a mine than in the past. Ms. Rogers said that the land there is quite fragile. Rick Ergenbright, 60380 Arnold Market Road, said he is located within one mile of the proposed site. Mr. Ergenbright said that he is a free lance travel photographer and writer and Bend has been his home for a little over a year. Mr. Ergenbright said that the area they selected to build a home is quiet, little traffic, air is clean with no dust, smoke, smog obstructing the view of the mountains, which he photographs almost daily. Mr. Ergenbright said that they are thrilled by seeing a tremendous variety of birds and wildlife on a regular basis. Frequently, endangered species, such as bald and golden eagles are seen. Mr. Ergenbright entered two photos of a golden eagle taken two weeks ago. Mr. MEETING MINUTES - PAGE 4 ! YOL 62 PAGE 137 Ergenbright said that the environment of this area is its greater future asset. Its beauty, clean air, and abundence of wildlife are rare commodities that they all cherish and attract visitors, future residents, and money to the community. Southeast Bend represents the best of these commodities and perhaps the greatest growth potential in the area. Mr. Ergenbright concluded that the community stands to lose far more than ever gained by construction of a rock crushing plant in one of its most desirable areas. If the intent of the law is indeed to protect the rights of the majority it serves over the economic greed of a few, this request will be denied. Tony S. Smith, 61281 Larson Road, brought some pictures and strongly urged anyone interested in this to go to the same old ancient river bed along the cliff of Knott Pit and look at the sand pits there. The mining was allowed under very strict circumstances and by conditions of approval. Mr. Smith said this has been going for over eight years now. The County has not issued a permit, but they have a permit from the State Department of Geology. Mr. Smith said you can look 18 feet down where they dug out the dirt and they are hauling in rock to cover it up. Mr. Smith said that the dust there is tremendous and there is nothing controlling what is happening there. The current operator can mine whenever he wants to, the pit is wide open and is a mud puddle in the winter. Mr. Smith urged the Board to look at this area. John R. Dick, 60384 Arnold Market Road, said he lives approximately .8 miles from the area in question. Mr. Dick said that eight years ago, he built a two level log house. He suffered the first two years trying to drill a well. There property owners share a well, which was drilled 810 feet deep. Mr. Dick said that this well is very fragile and geologists will agree that this is lava rock we are dealing with. Mr. Dick said that his greatest fear would be the blasting which could cause the concrete to collapse and the costs would be thousands of dollars to repair. Mr. Dick expressed his concern about the damage that may be done to the wells in the area. Mr. Dick continued that before he purchased his property a permit to mine cinders was applied for but was not approved. Mr. Dick stated that if this application is approved he will also apply for a permit to mine cinders out of the butte on his property. Gary Campbell said that he is one of the closest neighbors to the parcel. Mr. Campbell submitted a petition signed by people in Deschutes County who do not live in the immediate area but who have the same feeling as the immediate neighbors about the zone change. Mr. Campbell said that his initial plans were to expand his home but he would not put money into it because of the pending application. Dell Jones, 20194 Murphy Road, said that she hiked around Shevlin Park and saw numerous dump trucks on the road. Ms. Jones stated that she did not want the trucks created from this mining on this MEETING MINUTES - PAGE 5 VOL 62 FACE 230 already busy road. Karol Ayres, 1648 Bear Creek Road, said that she did not live in the area but is concerned about the truck traffic on her busy road. Ms. Ayres said that for the last three years Deschutes Redi-Mix, as a contractor to the County, has used Bear Creek Road as a major arterial to transport gravel from Shevlin Park Pit to Knott Pit. Ms. Ayres asked where the rock will be stockpiled and which roads would be used to transport it. Chairman Young asked for testimony for those opposed to the appeal of this application. Robert Lovlien, representing Rose and Associates, stated that he will not be presenting new evidence but present evidence established in the record of the Hearings Officer. Mr. Lovlien explained the nature of the request is to change the zone from surface mining reserve (established in 1979) to surface mining, which will allow surface mining to occur on the site. Mr. Lovlien said that the application is for a 20 acre parcel (the minimum lot size in the underlying zone, EFU-20) of a 200 X 200 foot site per the site reclamation plan that was submitted. Mr. Lovlien said that conditions placed on the application by the Hearings Officer would allow the resource to be removed only 30 days per year with the hours and days of operation restricted. The aggregate material removed could not exceed 25,000 cubic yards per year. Mr. Lovlien stated that they have identified the operator as Deschutes Redi-Mix and feel that Deschutes County would be the ultimate user of this material. Mr. Lovlien continued that the Hearings Officer has set out exactly which sections of the zoning Ordinance need to be addressed and the policies of the Comprehensive Plan to be addressed. The Hearings Officer recommended the zone change be approved with conditions, which is consistent with the Planning Staff's recommendation. Mr. Lovlien said that there are only four houses within 1/4 mile of the site and approximately eight homes within 1/2 mile. Mr. Lovlien asked that the application be reviewed in accordance with applicable standards of the Comprhensive Plan and zoning Ordinance. Mr. Lovlien continued that the question of wildlife had been raised at the prior hearing. The Hearings Officer made specific findings that operation of this mine would not adversely affect the wildlife patterns in the area. Deschutes Redi-Mix has said the reason for a site east of the Deschutes River is to serve Deschutes County with material ultimately going to Knott Pit. Mr. Lovlien continued that the Hearings Officer said the applicant had addressed the question of pollution control and there would be sufficient water applied by existing equipment available to Mr. Coats to reduce dust and erosion from wind. Mr. Lovlien said the fact the primary reason for requesting the SMR designation during the Comprehensive Plan was the presence of select fill material within the site. The Hearings Officer found that regardless of the nature of previous applications, this application must rest on its relation to the criteria as applies to aggregate and surface mines for that product. Mr. Lovlien asked that this application MEETING MINUTES - PAGE 6 VOL 62 FAcf 133 be weighed on criteria set out in the Comprehensive Plan and Zoning Ordinance as it applies to the aggregate resource. Mr. Lovlien said the Century West had conducted a study which identified resource on the site. Mr. Lovlien said that the 200 X 200 foot site is the only site they are asking for site plan approval from the County. Mr. Lovlien continued that the Hearings Officer addressed each policy of the Comprehensive Plan as it relates to this application. This site would be the only site east of the Deschutes River that would be zoned for, and allow the removal of aggregate material. Mr. Lovlien urged the Board's review of the Century West test of the parcel which identified the source of material needed for a contract with Deschutes County. Mr. Lovlien stated that the issue raised about the applicant pressuring or steadily contacting the staff is not true. Mr. Lovlien stated that the need of this resource has been demonstrated, an ultimate user, source for it to be stored, and there is a continued need for aggregate material by the County. Mr. Lovlien stated that the source for the rock for Deshcutes County had been hauled from Shevlin Park to Knott Pit and this site would significantly reduce traffic through those areas of concern. Mr. Lovlien asked the Board to review the criteria of the county ordinance. Chairman Young asked for rebuttal. Owen Panner stated that one of the conditions of a zone change under the Comprehensive Plan is that a site plan (including reclamation plan) must be approved as a condition to the zone change. Mr. Panner said that the Hearings Officer has recommended a conditional zone change. The necessity for the joint decision is that you cannot make a decision on public need and interest and on the environment without knowing exactly what the operation is going to be. Mr. Panner said that in the hearing on November, 1983 the testimony was limited to Mr. Coats and this is not enough basis for the Hearings Officer to make findings consistent with the general conclusions in the comprehensive plan. Mr. Panner said that there is no irrigation water avaliable to this site and the whole area is fragile. Mr. Panner said that once the brush is taken off that ground, it immediately starts to blow. Mr. Panner said that the DEQ Officer testified that the 600 horse power rock crusher with the hammer on it cannot meet the DEQ requirements in that area. Mr. Panner continued that this is a growing area and the only real area that Bend can grow into and it needs environmental protection. Mr. Panner said that there is no testimony in the record from the applicant about the environmental protection. Mr. Panner stated that if you believe this zone change is for only a 200 X 200 foot area, you should accept the applicant's request. Mr. Panner said that Mr. Coats has contracts regularly with the County putting an additional burden on the staff and on the Commissioners to evaluate this very objectively. Ms. Rogers said that when they met for the neighborhood meeting, Mr. Lovlien was the only person to appear for the applicant and they asked him if they would just be after this one site and he MEETING MINUTES - PAGE 7 VOLfit FACE A0 said this was just the first. Ms. Rogers said this meeting was the meeting where the tape was lost. Tony Smith stated that before any decisions are made the Board should check to see the results of prior permit applications that have been granted and what has happened to them subsequently. Being no further business, Chairman Young closed the hearing. Commissioner Prante assured Mr. Panner that the contact between the County and the applicant is not a factor in this request. Commissioner Prante continued that there is a continuing need for aggregate for L.I.D.'s by the County. Commissioner Prante asked Mr. Lovlien how the applicant would address the sound standards of DEQ within the 30 day operating allowance. Mr. Lovlien said that there are new techniques of blasting that do comply with DEQ. Mr. Lovlien said that there was also testimony from DEQ about the types of noise mitigation techniques that are available to meet these standards. Commissioner Prante asked how the effect of this operation on wildlife will be monitoried. Mr. Lovlien stated that because of the 30 day operation period and because of being at a base of a high cliff, wildlife should not be adversely affected. Commissioner Tuttle asked Mr. Lovlien how many tons of rock in that 200 X 200 foot site is expected to be mined? Mr. Lovlien said that they anticipate enought to fulfill the contract of 25,000 tons. Commissioner Tuttle asked if the conditions of the zone change were not met would the property revert back to surface mining reserve? Mr. Lovlien thought this would be the result. Commissioner Tuttle asked Mr. Panner that on the Goal 5 process in view of the Coats vs. Deschutes County decision, what is his concept on what would need to be done to fulfill the Goal 5 process. Mr. Panner said that a re -analysis of the resources needs to be done because everything was based upon the same information available during the Comprehensive Plan process. Commissioner Tuttle recommended that the appropriate way to proceed would be to allow briefs from the parties together with findings to be drafted by each party. It was the concensus of the Board for the parties to submit MEETING MINUTES - PAGE 8 VOL 62 PAGE 141 simultaneous briefs and within five days the Board will announce a date for a decision. DESCHUTES COUNTY BOARD OF COMMISSIONERS fiL VALB T A. Y NG, AIR Q LO S RISTOW PRANTE, COMMISSIONER LAURkNCE A: TUTT'�E, COMMISSIONER /ae MEETING MINUTES - PAGE 9