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1990-02415-Minutes for Meeting January 17,1990 Recorded 1/26/199090-02415 PUBLIC HEARING MINUTES SURFACE MINING ORDINANCE 89-011 I t 19) - 1180 DESCHUTES COUNTY BOARD OF COMMISSIONERS January 17, 1990 Chair Throop opened the public hearing at 1:35 p.m. Board members in attendance were Dick Maudlin, Tom Throop and Lois Bristow Prante. Also present were Karen Green, Community Development Director; George Read, Planning Director; and Bruce White, Assistance Legal Counsel. Chair Throop announced that the Board would be leaving the record open through the close of business on Wednesday, February 7, 1990, for written testimony; and that after the oral testimony was given today, the public hearing would be continued to 11 a.m. on February 7, 1990, for additional oral testimony. George Read gave the staff report. He said this was the second public hearing on the draft surface mining zoning ordinance which also included the surface mining impact area combining zone which affected uses on property within one half mile of SM zoned property. He said at the previous hearing there had been considerable written and oral testimony which had been taken into consideration when rewriting the current draft. The section regarding excavation that had been attached to the back of the previous draft had been removed from the ordinance. He said one of the major changes in the ordinance was the removal of the specific use standards which had been incorporated into the general operation standards of the ordinance. He said that crushing, which had been originally proposed as an outright use, had been moved to the conditional use section. Any site specific restrictions that the Board placed on individual surface mines as part of the ESEE analysis hearings would be imposed in addition to the surface mining ordinance, or if the Board's restrictions were more lenient than the ordinance, they would prevail over the ordinance. He said the statutory language defining surface mining and determining what would be regulated by the Counties was changed by the legislature in their last session. They required Counties to regulate resource lands with 1,000 cu yds of material and more. The present county ordinance regulated sites with 2,500 cu yds of material and more. One other issue that had been left out of the earlier draft of the ordinance was where batch plants and concrete plants should be allowed. The statutory language changed to say that batch plants and concrete plants had to be located at least two miles from PAGE 1 MINUTES: 1/17/90 , t.10 ° 1181 vineyards. So the County used this two-mile limit for the minimum distance from residences as well. He said this limit was restrictive but that those uses were generally considered industrial uses, and there was industrial zoned land available in the county. Where someone could show that the use was dependent upon a resource, they could apply for a limited use combining zone. He said the staff felt that this process allowed flexibility in the location of batch plants and also provided protection for the neighborhoods. He said they viewed it as a separate process from the ESEE analysis and Goal 5 analysis that had been done in zoning the property SM. He said that each site should be considered on its own individual merits. He said he had received letters from the Department of Environmental Quality, Oregon Department of Fish & Wildlife, and Oregon Department of Transportation Parks and Recreation. They substantially stated concurrence with the revised ordinance. Brent Lake, Department of Land Conservation and Development, said he appreciated that the Board was leaving the record open for an additional three weeks. He said they would have a recommendation for the County that could work out some of the differences that have appeared at the hearings. He said the DLCD would grant the county an extension of time for an additional month to the end of February for the submission of its SM package. He said the revised ordinance was far superior to the previous draft. William Miller, Central Oregon Pumice Company, #1 NW Greenwood, Bend, said he appreciated having more time to make comments. His first question was regarding pg 5, item F where it allowed the processing of aggregate into asphalt or portland cement as a conditional use. He asked why the processing of other minerals was not listed as a conditional use. He used the example of processing pumice into soap on the site. George Read said under the ordinance it would not be allowed without applying for the Rural Industrial Zone which could be approved as a limited use combining zone. Mr. Miller felt that the processing of any minerals should be allowed as a conditional use. Commissioner Maudlin asked why the processing of aggregate into asphalt should be allowed as a conditional use. George Read said the initial draft did not include it, however, the State Highway Division located those types of plants in conjunction with Highway projects, so it was added as a legitimate and historic use. Also for the first time, the legislature specifically allowed aggregate processing into asphalt in resource zones, so the staff felt it should be added to the ordinance for discussion. He personally felt processing plants were more appropriately located in industrial zones, except for the historic highway project use. However, he was not sure that the Board had the latitude to deviate from the state statute without taking an exception to the statewide planning goals. PAGE 2 MINUTES: 1/17/90 0(j 1182 Mr. Miller's second issue was on screening. He said screening was expensive. Commissioner Maudlin pointed out that the ordinance said that if the topography was such that screening wouldn't do any good, he wouldn't have to screen. Mr. Miller's next questioned what the benefits were of being a preexisting site. George Read told him that unless the operation was expanded beyond what was covered by a state or county permit, it would not have to comply with the ordinance. Commissioner Maudlin questioned what "produced" and "products" meant in Page 4, Section 3, D. George Read said the mineral became a "product" when something was done to the mineral to make it different. Karen Green felt the intention of the word "product" here was to mean the mineral product crushed down to a certain size or screened to a certain size rather than a secondary product such as cement, concrete, asphalt or cinder blocks. However, she said the terminology was not clear and needed to be refined. Frank Parisi, 520 SW Yamhill, Portland, OR 97204, said he was the attorney for the Oregon Concrete and Aggregate Producers Association and R. L. Coats. He said he was the attorney who filed the appeal on Deschutes County's acknowledgement. He and his clients wanted to be in a position where they didn't have to make any further appeals in Deschutes County. He said the current draft ordinance was a tremendous step forward from the previous draft, and there were now clear and objective standards in most cases. However, he did not agree with the noise standard which was a distance standard. What they wanted was a performance standard. He said that if there was a distance standard of a one-half or two mile set back, they would need to have a half or a whole section before there could be any mining. They would prefer performance standards, i.e. for a crushing or processing operation, the performance standard could be, for example, "no more than 10 dba above the ambient noise level." He said on some sites that might mean a building would have to be built around the crusher. He said this would give the miners a specific standard to deal with. Mr. Parisi said everyone needed to keep asking themselves whether the new ordinance would allow any new surface mining sites. He said if the end result of the ordinance was no new sites, then the ordinance did not work. Mr. Parisi said he did not feel that the language in the ordinance stated clearly that the ESEE analysis always controlled over the ordinance. Karen Green agreed that language should be added to say that in the event there was a conflict between the site specific set backs specified in the ESEE analysis and the Ordinance standards, that the ESEE analysis standards would control. PAGE 3 MINUTES: 1/17/90 100 1183 Mr. Parisi said the Comprehensive Plan Policies adopted one year ago were more consistent with the prior draft of the ordinance and needed to be revised also. Karen Green said staff was in the process of reviewing the Goals and Policies which were adopted a year ago for conformance with this draft. She said the Board would be adopting them again in February and that a public hearing might be scheduled if there was enough interest. Mr. Parisi said he understood that the county couldn't do reclamation and that only the Department of Geology and Mineral Industries (DOGAMI) could. Karen Green said it was the County's intention that the standards for the County and DOGAMI be the same, and that the County would work cooperatively with DOGAMI on a joint site and reclamation planning process. DOGAMI would be involved in the technical, mining technique part of the operation, with the County being involved in the traditional land use aspects of reclamation. She said it would be a part of DOGAMI's reclamation permit process. George Read said the County had had meetings with DOGAMI regarding the criteria. DOGAMI was asked if they felt their reclamation authority preempted Deschutes County's regulations in any of these areas, and they said no. He said that DOGAMI felt that at least 50% of the responsibility was the county's. He also said that the statute required the county to regulate reclamation on everything 1,000 cu yds and above that was not regulated by DOGAMI, meaning sites with 1,000 cu yds but less than 5,000 cu yds of material. Mr. Parisi felt that if the County expected mine operators to pay for damage done to the roads due to the mining operation, that in order to be fair, the same requirement should be imposed on all businesses, i.e. Safeway stores and lumber mills. He said any assessment should be based on actual deterioration not presumed or predicted deterioration. Mr. Parisi said that the set back requirements should be reciprocal. He felt that when a buffer was created between a mining operation and a subdivision, all parties should have to move back the same distance. George Read said that they had tried to make the set backs identical. Mr. Parisi asked about the two mile set back for processing. George Read said that would be an exception. Mr. Parisi asked a hypothetical question. If the ESEE analysis on a given site allowed mining subject to certain restrictions under 3 (c) , and a homeowner wanted to build a home in a way which was inconsistent with the ESEE analysis, would the prospective homeowner have to seek an amendment to the comprehensive plan to change the ESEE analysis? George Read said that an ESEE analysis would have to be done as part of the site plan review in the surface mining area impact zone. Karen Green restated that if a property owner wanted to put a home where it had been prohibited by an ESEE analysis, the property owner would have to provide a new PAGE 4 MINUTES: 1/17/90 00 - 1184 ESEE analysis indicating that the mining operation could continue and meet all of its requirements (i.e. noise and dust levels) with the home at that site. Robert L. Coats, mining operator, testified that he felt the new draft ordinance was an improvement over the original, but he still felt that it was too restrictive. He said that processing was necessary at the surface mining site in order for it to be economical and should be allowed outright. He gave the example of a hard rock mine where they had to drill and shoot the rock which would break out into big pieces which couldn't be moved to an industrial site for processing. However, in a gravel operation, he said it could be moved to an industrial site for processing. He felt there should be just one permit from the beginning that would authorize everything that would be allowed on the site. He did not feel that it was economically feasible for a site to be developed without knowing whether the processing permit would be authorized later on. He said with these restrictions there wouldn't be any new mines opening up in the county. He felt the five acre limit for the mining site wasn't large enough for a crusher, asphalt plant, and concrete plant. George Read pointed out that the five acre limit was only for the pit, and that all of the other items Mr. Coats listed were exempted from the five acre limit. He said there was no limit on the size of the entire operation. Karen Green said that Mr. Coats' concern had been specifically addressed on page 15 where it stated that if the mining techniques normally associated with that type of mining required a larger extraction site size, an exception could be requested. Commissioner Maudlin said the County wanted mine operators to mine only five acres at a time, then to reclaim it and open up another five acres, etc. Commissioner Maudlin said that they did not want 30 or 60 acre holes in the ground. Ted Keener, property appraiser, testified that he appreciated the changes made in the new draft. He felt that any combining zone should be recorded on all of the affected parcels so that when someone contemplated buying the parcels, it would show up in a title search. He also felt that if the mine was within 250 to 1,000 feet of homes, the hours of operation should be 8 a.m. to 5 p.m. He would like to see screening and washing as conditional uses also since they could create as much noise as crushing. Robert Windlinx, mine owner, testified that he felt the ordinance was very complicated, and he didn't understand most of it. He said his operation did a little more than 1,000 cu yds a year. He was concerned that all the land within one-half mile of the pit was excluded from tree harvests. George Read said that a site plan review would be done for a proposed use in the surface mining zone, and if it could be determined that the proposed use wouldn't be negatively impacted by the surface mining zone, the proposed use would be allowed. Mr. Windlinx asked if he could change a surface PAGE 5 MINUTES: 1/17/90 I()U - 1185 mining zone back to RR-10 after it was reclaimed? Commissioner Throop said yes, and that it was part of the reclamation process to determine what the future use of the property would be, and then zone the site appropriately. Mr. Windlinx asked whether there would be a public hearing if this type of zone change was requested. George Read said that any time discretion was exercised in a land use decision, a public hearing would be required. Randy Davis, Geologist for the State Highway Division, was testifying for the state as a surface mining operator. He had six questions regarding language interpretation. 1. On pages 5 & 6, Section 6, B and C. Mr. Davis was confused since "B" referred to 250' from a noise or dust sensitive use and "C" referred to storage and processing not allowed closer than 1/4 mile. He felt that any surface mining activity would create noise and dust, so he didn't understand when the 250' set back would apply. George Read said he would discuss it with him more extensively at another time. 2. Page 6, Section (d). Mr. Davis was not aware of what the ESEE analysis and formal recommendations were on the State Highway sites. Commissioner Throop said the document was not finished, and he would be sent a copy when it was completed. Karen Green said that minutes of the decision meetings were now available. 3. Page 10, (c). Mr. Davis asked if this section meant that aggregate stockpiles didn't need to be screened. George Read said the ordinance did not require that stockpiles be screened. Mr. Davis suggested that the stockpiles might be used to help screen some of the activity on the site. 4. Page 19, Section 13, D, (b). Mr. Davis asked if the Highway Department still had to get a conditional use permit when they did temporary highway projects. George Read said they would still need a conditional use permit. Karen Green said it was necessary since the temporary plant might be located where they couldn't otherwise put a plant. Commissioner Maudlin said that when the surface mining process began, processing meant extraction, blasting, crushing, etc.; and now he felt it meant making black top. George Read said that up until October of last year when the state law went into effect, batch plants and concrete plants were not allowed under state statute in resource zones, and, therefore, the original draft ordinance didn't allow them. The statute was changed and now allows batch plants and concrete plants, so they have been included in the current draft ordinance as a conditional use. Karen Green said they would attempt to clarify the language before the next hearing. George Read reminded the Board that the County had to amend its surface mining zoning ordinance about three years ago PAGE 6 MINUTES: 1/17/90 !U0 1186 in order to remove batch plants and processing plants because they weren't allowed under state statute at that time. 5. Page 20, Section 15(b). Mr. Davis asked what "exemption" referred to here. Karen Green said it meant you would not be subject to DOGAMI regulations. George Read said that if a site was mined prior to 1972, there was one type of exemption, and another type of exemption if it was mined prior to 1975, and then there were other types of exemptions regarding the extent that mining had occurred on the property. He said there were various permits that were site specific on each type of operation. 6. Page 20, Section (e). Mr. Davis asked what constituted an expansion or alteration of the preexisting surface mining use? For example, if they had a 40 acre site which had a valid DOGAMI operating permit covering the total 40 acres, but they had only opened up 3 acres of it, did the language mean they could mine the whole 40 acres and still be exempt from the ordinance. George Read said that the determination of the preexisting limits of the site was very difficult and very site specific and would be looked at based upon the extent of the permit. George Read said that if DOGAMI wouldn't require an additional reclamation plan, a new reclamation plan, or an expansion of a reclamation plan for the area, then they would not be subject additional regulation. Mr. Davis asked whether they would be covered by the ordinance if they had a preexisting permit covering one acre, and they disturbed the area 500 yds from the preexisting boundary? George Read said the County's ordinance was worded exactly as the state statute, and therefore if DOGAMI required a permit, the County would also. George Read said when they expanded beyond one acre, it became a surface mine, which would require a permit and compliance with the ordinance. Mr. Davis said DOGAMI wouldn't require it under those circumstances. He said that DOGAMI wouldn't require a permit unless they went over 5,000 cu yds of material. George Read said the state statute said exactly what DOGAMI rules said regarding what constituted surface mining, except that the state statute required Counties to regulate the mining of 1,000 cu yds or more of material. There was no one else who wished to testify. PAGE 7 MINUTES: 1/17/90 ' ` ~r~r~ ~-118? Commissioner Throop continued the public hearing until February 7, 1990, at 11 a.m. and said the Board would accept written comments until 5 p.m. on February 7, 1990. DESCHUTES COUNTY BOARD OF COMMISSIONERS Lois Bristo Prante, Commissioner Tom hroop, C j r Dick Maudlin, Commissioner BOCC:alb PAGE 8 MINUTES: 1/17/90