1990-07533-Minutes for Meeting February 28,1990 Recorded 3/16/1990
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PUBLIC HEARING
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SURFACE MINING ORDINANCE
~iSIRS
DESCHUTES COUNTY BOARD OF Comm
February 28, 19 9 t, F
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Chair Throop reconvened the meeting at 11:10 a.m. Board members
in attendance were Dick Maudlin, Tom Throop and Lois Bristow
Prante. Also present were Karen Green, Community Development
Department Director; George Read, Planning Director; and Bruce
White, Assistant Legal Counsel.
Chair Throop opened the public hearing. Karen Green gave the staff
report indicating the changes made to the February 15 draft and
incorporated into the February 26 draft of the ordinance. She said
they had made a number of relatively minor style changes which she
would not go through, but that she would go through the substantive
changes:
On page 1 and 2, they changed the definitions of noise and dust
sensitive uses to the exact language of the Department of
Environmental Quality (DEQ) rules.
On page 2, for clarification they added the definition of
"processing" which was taken from the statute that governed the
Department of Geology and Mineral Industries (DOGAMI's) operations.
On page 4, there was a clarification in the "purpose" statement to
indicate that where the County was trying to balance the
conflicting interests of mining and adjacent property, it would be
done in accordance with Goal 5.
On page 4, provisions of the site specific ESEE analysis had been
broadened to note that the ordinance did not apply to preexisting
and nonconforming sites. The last sentence of that paragraph had
been added to clarify that if there was a conflict between the site
specific ESEE analysis and the standards in the ordinance, the site
specific ESEE analysis would control.
On page 5, Section 5, paragraph (B), they clarified that the
conditional use standards being applied were only those in this
ordinance and not the other conditional use standards that appeared
elsewhere in the zoning ordinance.
On Page 9, they reorganized the screening section to put the
performance standard earlier in the section, and they clarified
that the actual performance standard was that they had to screen
to no greater extent than what was described in this screening
section.
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160-1747
On Pages 11 and 12, paragraph E, concerning effects on streams and
drainage, they changed the language to say that the drainage
couldn't be changed in a manner that substantially interfered with
the drainage patterns on adjoining property. She said the
Department of Land Conservation and Development (DLCD) had concerns
about the clarity of this language, and that Brent Lake would
address the issue when he testified. She said the language that
DLCD was proposing was perfectly acceptable to the staff.
On page 13 and 14, paragraph J, (b), #3, they added some language
indicating that the County would assist the miner in identifying
the surrounding property owners who would need to be notified of
the blasting by providing the miners with copies of the zoning maps
or allowing them to look at the zoning maps to find the people
within the one-half mile notification area. They also added
language requiring that the notice include a statement that if the
owner was not the occupant of the concerned property, that the
owner was required to notify the tenant of the blasting. She felt
this notice would satisfy the miner's obligation to give notice in
a manner calculated to provide actual notice.
On page 14, paragraph L, the current version included some minor
change indicating that the protection which the miner was required
to afford fish and wildlife habitat was that protection identified
for fish and wildlife in the ESEE analysis. She said there had
been concerns that if this was done, it would probably violate
Goal 5 by providing the potential for an ESEE analysis much later
on in the process which was not allowed. Commissioner Throop
questioned why in some cases performance was tied to the ordinance
if it wasn't spelled out in the ESEE, but that in the case of fish
and wildlife, if it wasn't spelled out in the ESEE, it wouldn't be
covered. Karen Green said that if existing fish and wildlife
values had not been identified in the ESEE analysis, there would
be nothing in the record to protect. She said the ESEE should
always say how the resource was to be protected, and she felt they
all did. Karen Green said they had considered handling new fish
and wildlife resources (i.e. elk herd that had moved) with a
"discovery" provision, but they realized it had a much broader
application than just discoveries made through surface mining but
should also apply to any development that might discover a new
resource or the moving of a resource. She said they felt they
needed to handle those situations by a separate ordinance which
would apply across-the-board. She said they might need to put a
list of protection measures back into this section in case there
were sites where the mitigation measures or protection measures
were not spelled out in the ESEE.
On page 16, section 14, regarding conditional use criteria, they
added a phrase at the beginning to clarify for the miners that the
conditional use criteria they had to meet were just the ones in
this Ordinance and not everything in Article 8.
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On pages 18 and 19, section 16, they clarified that the ordinance
did not apply to preexisting and nonconforming sites to the extent
they were not expanded.
From Page 23, Section 22 through the end of ordinance, they added
new provisions due to the staff's recommendation and the Board's
decision on how treat certain sites without surface mining zoning,
i.e. Highway Division and County sites for stockpiling, storage,
and processing and sites owned by irrigation districts where the
material was borrowed to be placed in canals. It contained a list
of additions to the uses permitted conditionally in various zones
and those uses now included two new uses: (1) on-site uses that
were personal or farm or forest use or irrigation canal
maintenance; (2) storage, stockpiling and processing in connection
with a highway or road construction project. These would be sites
that would not require surface mining zoning, but would be allowed
conditionally in the underlying zone. The conditions were set
forth later in the sections. She said before this hearing, Frank
Parisi had asked her about the conditional use criteria applicable
to batch plants in these unzoned construction sites. She had
thought they had made the same conditions applicable to those batch
plants as to batch plants in surface mining zones, however upon
further review of page 28, section 38 paragraph B, she realized
that reference to those conditions had been left off and would need
to be added. It should say that if they wanted a batch plant at
one of the unzoned construction sites, they would need a
conditional use permit, and the conditions would be the same as the
conditions applicable to batch plants anywhere else.
Brent Lake, Field Representative for the DLCD, 2146 NE 4th, Bend,
submitted copies of a letter from Susan Brody, Director of the
Department of Land Conservation and Development, to the Board. He
restated that the second paragraph indicated that as they reviewed
our plan, they would be receiving additional comments which DLCD
would have to reconsider. So they were looking at the ordinance
with the information they had today, but later on they might have
to make an adjustment if additional information became available.
They were also making the assumption when addressing the ordinance
that any standards, footage, etc. in the ESEE analysis were
justified in the ESEE analysis. He complimented Karen Green and
her staff for the excellent job they had done in developing the
ordinance that had clear and objective standards required under
Goal 5, while also working with all of the involved parties. He
said DLCD supported the ordinance with the exception of two minor
areas which they felt needed clarification.
First DLCD had concern over language on page 22, subsection 8,
regarding the surface mining impact area zone. They felt that it
was unclear what would be done in the area between 1/4 mile and 1/2
mile. Even though subsection 8 (B) explained that if someone
wanted to build a house within that 1/4 mile to 1/2 mile area, they
could only do so as long as they could prove that the miner could
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still meet the standards, DLCD felt the statement should be
clearer. Karen Green said the object of this section was not to
bring a house and a crusher any closer together than 1/4 mile. So
if there was an existing processing site where a crusher would be
located as approved in the ESEE analysis, a house could not be
built closer than 1/4 of a mile. If someone wanted to put a house
within 1/2 mile of a crusher, they would have to demonstrate that
the crusher could still meet DEQ standards with the house that
close. She said it was a reciprocal standard and, therefore, the
same situation would exist if the crusher was being placed near an
existing house. If there was an existing house, the crusher could
not come closer than 1/4 mile of the house, and if it was to be
placed within 1/2 mile, there would have to be a noise report
indicating that it could meet all of the DEQ standards before it
could be located there. Commissioner Throop asked if there was a
parcel that was wholly within the 1/4, and therefore could not be
built on which might constitute a "taking." Karen Green said there
was a possibility that a "claim of taking" would be made. The case
law indicated that if you had removed all beneficial use of the
property, you probably had made a "taking." Brent Lake pointed out
that there was language in the ordinance that the owner could sign
an agreement that they would not object to the noise from the
mining operation if they wanted to build anyway, so there was still
an option for the property owner.
Brent Lake said the second item that DLCD was concerned with was
on Page 11 under "Streams and Drainages." They felt that the
language "substantially interferes with" was not a clear and
objective standard. They suggested the language, "Unless agreed
to in writing, by the adjoining property owner(s), existing natural
drainages on the site shall not be changed in a manner which
results in a change in drainage patterns on adjoining property
or..." He said there might be instances when the change in
drainage would be of benefit to the adjoining property owners.
Commissioner Throop said that on behalf of the Board and the
County, he appreciated the attention that DLCD had given Deschutes
County throughout the process so far.
Frank Parisi, attorney for Bob Coats and OCAPA, testified that they
were very pleased with the current ordinance. He commended the
Board of Commissioners for authorizing the staff to spend as much
time on it as they had. He gave credit to the staff for listening
to them when they tried to explain what the industry needed to
survive. Karen Green acknowledged they she and George Read had
been educated about some of the items in previous drafts of the
ordinance which weren't realistic given how the operations were
actually run. Frank Parisi indicated that there were still a
couple of areas he would like clarified. In Section 14 regarding
the 1/2 mile, 1/4 mile buffer areas, he said they assumed that the
buffer areas were justifiable, but the zoning maps had not been
available for them to specifically check each site to see if they
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could comply with the ordinance on all of their sites. He
expressed the fear that there might be new sites where they
couldn't crush or process on the site, and where there also
wouldn't be rural industrial property close enough to place the
crusher or processor there. Karen Green said there were maps
currently available that they could use. George Read said that he
had checked some of the more controversial sites, and that the 1/4
mile standard was obtainable except for some very small sites. He
used as an example the Klippel Acres site when the only time they
could not meet the standard was when mining was occurring on the
middle of the site which was where the crusher/processor would have
to be located in order to meet the 1/4 mile standard.
Frank Parisi said that one of the big advances that Goal 5 made
over the Federal EIS was that under Goal 5 you had to do the
inventory and decide which resources to protect up front. He said
when it pertained to fish and wildlife, the County could not have
an incomplete or generic ESEE analysis, and then a couple of years
later try to fix it. He said there was a legal case regarding this
issue called Collins v. LCDC where they tried to protect historical
resources by setting up a commission which could decide later what
to do. It didn't comply with Goal 5 because they didn't complete
the inventory at the beginning and had been given discretion to do
whatever they wanted later. He felt that the situation where the
data might change between the time the ESEE analysis was done and
the mine would open could be dealt with during the periodic review.
He said that when the periodic review was amended to allow an
opportunity to update more rapidly than every seven years, it would
take care of the problem. He also commented that he felt the
effects of rural residential development on fish and wildlife
should have been looked at, not just the effects that surface
mining would have on fish and wildlife. He said that rural
residential development could destroy wildlife in ways that surface
mining might only temporarily disturb the wildlife.
Karen Green said that the intent in drafting the ordinance was not
to treat the standards for protection of fish and wildlife values
differently. She said where the detail in the presentation at the
time of the ESEE hearings was sufficient to identify the values
and identify the protection measures, i.e., buffering, screening,
and fish and wildlife habitat protection measure, they were placed
in the ESEE and were fairly comprehensive. Where they didn't have
that level of detail on any category, including fish and wildlife,
the ESEE analysis wasn't very specific, and the intention was that
they would move to the standards in the ordinance that would apply
at the time of site plan review. She said it appeared they did not
have the same level of standards for fish and wildlife protection
during site plan review that there was in the case of screening,
etc. She said it was not an intentional move on their part to
treat fish and wildlife differently. She felt that all of the
identified fish and wild life habitat had been very specifically
addressed in all of the cases she could remember, but that in the
event they weren't, she felt there should be performance standards
specified in the ordinance for sites which were not specifically
or particularly enough addressed in the ESEE analysis.
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Robert L. Coats, miner, said he felt everyone had done a good job
on the ordinance, and that he was very satisfied with the final
draft. He felt that the mining industry could operate under the
ordinance and plan for the future. He thanked the Board of
Commissioners for their role. He felt the planning process was
workable, and he felt Deschutes County would be a leader in that
process.
William Miller, Central Oregon Pumice, expressed his concern that
processing was still not allowed as a conditional use in a surface
mining zone. Karen Green said that it was addressed in the
definition of processing where there was a note indicating that if
an operator wanted to process material into a secondary product
i.e. building products, it would be allowed in an industrial zone.
So in order to have the processing on the mining site, he would
have to apply for industrial zoning for an acre or so where he
wanted to place his plant. Mr. Miller felt this procedure was too
cumbersome, and that miners should be allowed to do the processing
as a conditional use. Commissioner Prante asked how difficult it
was to get industrial zoning. George Read said that the burden of
proof for a rural industrial zone was that the type of use was
resource dependent and that it wasn't economically possible to move
the resource to a processing site in a local industrial zone.
Mr. Miller said that was an additional step and asked why they
didn't make it simple for the miner. Karen Green said that staff
had drafted the language the way they did because the processing
that he was referring to was an industrial use, and Goal 5 did not
require the County to site an industrial use on property zoned
surface mining. George Read said the County would have to make a
specific goal exception and go through another complete process in
addition to the Goal 5 process in order to site that type of use
in a surface mining zone. He pointed out that it was only at last
year's legislature that batch plants and concrete plants were even
allowed in surface mining zones. Commissioner Throop suggested
that Mr. Miller consider attempting to have a change made at the
state legislature. George Read explained that there was a
difference in the Comprehensive Plan in the type of exception that
the County would have to take to the statewide planning goals in
the case of an industrial use. The types of uses allowed in
surface mining zones were specified in the state law and didn't
include the types of uses that Mr. Miller wanted. Karen Green said
that state law presently made a distinction between batch plants
and other industrial uses by allowing them in resource zones. She
said the bottom line was that state law did not permit the County
to allow other industrial type uses in resource zones, so they were
trying to make it possible another way by allowing application of
industrial zoning on part of the surface mining zoned property.
She told Mr. Miller that if he wanted a "kitty litter" plant at one
of his surface mining sites, he would need to make a zone change
and plan amendment application to designate one portion of that
site as industrial when he came in for surface mining designation
or site plan review. Mr. Miller felt this process was too
complicated. Karen Green said he might want to go to the
legislature and convince them to do for him what they did for the
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aggregate industry when they allowed batch plants in resource
zones.
Commissioner Maudlin questioned language on page 4 Section 3, C,
where it allowed one temporary or portable residence to be placed
on the site when it was necessary to house a caretaker or night
watchman. He said he had no objection to that when surface mining
was in progress, but he felt the language would allow a temporary
residence to be left at the site forever. Karen Green said this
language had been in the ordinance for some time without a problem,
but she felt there might be more restrictive language that could
be used. George Read said he felt language could be changed to be
only in conjunction with an ongoing surface mining operation.
Karen Green said they might also want to allow temporary housing
on sites which had been reclaimed but still had pits deep enough
to be a safety hazard. She felt the language could be tied to a
need and which would solve the problem.
Chair Throop announced that the Board would have a work session on
this ordinance on Tuesday, March 6 from 3 p.m. to 4 p.m., where
they would be discussing what the final version should be. The
Board would adopt the ordinance with the final package at the end
of the entire surface mining land use process at the end of March.
He said the record was closed for verbal testimony at the end of
today's public hearing and the deadline for written testimony had
been last week.
Commissioner Prante told Mr. Miller that if he wanted support from
the Deschutes County Planning Commission or the Board of
Commissioners in making changes at the state legislature, that the
County would be glad to write letter.
There being no one else who wished to testify, Chair Throop closed
the public hearing.
DESC TES COUNTY BO OF COMMISSIONERS
ois tow Prante, Commissioner
Tom Throo , Chair
YWMalin4,o~mmissioner
BOCC:alb
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