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1990-09628-Minutes for Meeting February 07,1990 Recorded 4/5/199014 1 90-09628 IOU - 18 51 MINUTES DESCHUTES COUNTY BOARD OF COMMISSION February 7, 1990 t F Chair Throop called the meeting to order at 10 a m.6 ~ard members in attendance were Dick Maudlin, Tom Throop, and -tow Prante. Also present were Rick Isham, County Legal Counsel.' 1. CONSENT AGENDA Consent agenda items before the Board were: #1, signature of authorization for County Counsel to sell two acres of water rights from County land; #2, signature of Tax Refund Order 90-022; #3, postponed; #4, signature of Development Agreement for Bend Bowmen Site Plan for Indoor/Outdoor Archery Range; #5, appointments of Ron Schmidt and Dave Hellbusch to Building Codes Board of Appeals; #6, reappointments of Jim Bussard and Loren Irving to Deschutes Mitigation and Enhancement Committee; and #7, signature of SELP Loan project for new heating and air conditioning system for the Justice Building. PRANTE: Move consent agenda with exception of item 3. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 2. HAZARDOUS MATERIAL STORAGE BUILDING Before the Board was award of the contract for construction of the Hazardous Material Storage Building to the low bidder, Francis Construction Company of Redmond for $29,536.60. The 28' x 40' storage building would be built at the County Public Work compound. MAUDLIN: I move award of bid to Duane Francis Construction in the amount of $29,536. PRANTE: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 3. WEEKLY WARRANT VOUCHERS Before the Board were weekly bills in the amount of $206,021.33. PAGE 1 MINUTES: 2/7/90 9{' 1 0 18 5 2 PRANTE: Move approval upon review. MAUDLIN: Second VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 4. DEVELOPMENT AGREEMENT WITH GREAT WESTERN BANK Before the Board was signature of a Development Agreement with Great Western Bank, a Savings Bank, for the expansion of an existing mobile home park. PRANTE: I move signature. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 5. MP-89-34 FOR THE WRIGHTS Before the Board was signature of a Minor Partition MP-89-34 to create one additional parcel off S.W. McVey Avenue for the Wrights. PRANTE: Move signature. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES 6. CITY PLAT FOR STARBRIGHT ESTATES SUBDIVISION PHASE II Before the Board was signature of a city plat for Starbright Estates Subdivision, Phase II. PRANTE: Move signature. MAUDLIN: Second. VOTE: PRANTE: YES THROOP: YES MAUDLIN: YES Chair Throop recessed the Board meeting until 11 a.m. PAGE 2 MINUTES: 2/7/90 100 - 1853 Chair Throop reconvened the meeting at 11 a.m.. Board members in attendance were Tom Throop, Dick Maudlin and Lois Bristow Prante. Also present was Karen Green, Community Development Director. 7. CONTINUED PUBLIC HEARING ON SURFACE MINING ORDINANCE 89-011 Chair Throop opened the public hearing that was continued from January 17, 1990, and asked for a staff report. Karen Green reported that written comments had not been received from the Department of Land Conservation and Development. They had promised the comments by February 9, 1990. There would also be additional written comments coming in from a couple of attorneys for miners. She said she felt these comments would be very helpful and would result in an improved final draft ordinance. Because of the additional material that was still coming in, and because she felt it would be helpful for staff to meet with at least DLCD staff again, she recommended to the Board that they take verbal testimony at today's public hearing, but that they continue the public hearing again to allow time for all of the final comments to be made before producing a new draft. Commissioner Throop announced that today's public hearing would be continued until 11 a.m. on Wednesday, February 28, 1990, when additional verbal testimony would be taken. Written comments would be allowed until February 21, 1990, at 5 p.m. He said another draft of the ordinance would be available on Friday, February 23 or Monday, February 26, 1990, which would incorporate everything that had been discussed and submitted up to that point. Those interested in obtaining the draft were asked to call the Community Development Department on the 23rd to make arrangements to get a copy of the draft. He said that after the final public hearing on the 28th, a final draft of the ordinance would be submitted to the Board for a decision. Karen Green said written comments had been received from Mr. Miller, Ed Sullivan on behalf of his clients who were neighbors of miners, DOGAMI, Frank Schnitzer, and that extensive oral comments had been received from Nancy Craven representing Bend Aggregate, Frank Parisi representing Mr. Coats and OCAPA, Dick Angstrom who was Executive Director of OCAPA, and possibly one other letter which she couldn't immediately recall. Karen Green said there had been comments made which would be draft of the ordinance: (1) A the beginning of the ordinance between the standards in the specific to sites which were se n a number of common, general incorporated into the next paragraph would be placed at clarifying the relationship ordinance and the standards t by the Board during the ESEE PAGE 3 MINUTES: 2/7/90 100 - 1854 process. It would state that the ordinance standards would apply unless the site specific ESEE analysis and findings done by the Board of Commissioners were different, in which case the ESEE would control. (2) Operating standards would be reorganized since they were not clear. She said she would prefer to have a flow chart attached to the ordinance which would show how a miner would walk through the procedure, i.e. what permits they would need and when they would need to make applications, etc. (3) A couple of sections did not state clearly enough the Goal 5 process and might be in conflict with it. Those sections would be removed or reworded. She used as an example the language about bringing in new information regarding fish and wildlife values long after the ESEE process. She said they had hoped to have the flexibility at site plan review to consider potential new information concerning fish and wildlife habitat which had not been available at the time of the ESEE analysis, either because it wasn't presented by the Fish and Wildlife Department or because it was new information, such as a new species or new habitat. She said they would not be able to handle the situation in this manner because it would, in fact, defer the ESEE to a later date, which would be a problem under Goal 5 Administrative Rules. Instead of that language, they were trying to develop a "Discovery Ordinance" which would probably be separate from the Surface Mining Ordinance. It would say that in any case where a land use permit was issued, if a new Goal 5 protected resource was discovered which was not previously known about, the County would have the ability to put a stop to or regulate in some way the activity that might threaten the resource until it could be identified and determined whether it needed to be placed in the comprehensive plan. She gave the example of an archeological site that wasn't on the inventory which might be discovered when a miner bladed his excavation site. A "Discovery Ordinance" would allow the County to put a temporary stop to that activity until it could be determined whether the site needed to be protected and placed on the inventory of archeological resources. She felt this was the only provision that had been pointed out which would violate Goal 5. She felt the County was in a defensible position on the remainder of the ordinance. Karen Green said the remainder of the comments were on specific sections of the ordinance. She said there was still some controversy and discussion concerning crushing, processing, and asphalt batch plant locations. She said the testimony had covered both extremes of whether batch plants should be allowed outright, conditionally, or whether they should not be allowed in surface mining zones without going through an industrial zone change, or only be located in an industrial zone. She said they were still looking at this issue and were waiting for DLCD comments before making a final PAGE 4 MINUTES: 2/7/90 ioo - 1855 decision. She said that the attorneys she had spoken with had agreed that Goal 5, itself, did not require that the County allow batch plants in a surface mining zone, and they were not a Goal 5 protected resource. She said the County had not been permitted to allow batch plants outright for a long time, but the state statute had recently been changed. She said the current draft ordinance allowed batch plants as a conditional use. The County could have required that they be placed only in an industrial zone, so this language was basically a compromise position. Commissioner Maudlin questioned the draft language that said no processing operation would be approved if the processing site was located within two miles of a noise or dust sensitive use. Karen Green said that processing was allowed as a conditional use, and that this was one of the prohibitions placed on the conditional use. She said the language came from the state law which allowed no processing within two miles of a vineyard, and they decided to use a similar set back for dwellings and other noise and dust sensitive uses feeling that if vineyards were entitled to that type of protection, people should be as well. Commissioner Maudlin expressed concern over why the ordinance allowed crushing within a quarter mile or one half mile of dwellings but would not allow a batch plant within two miles. He felt that crushing would be much more of a concern to surrounding dwellings than a batch plant. Karen Green said that the industry representatives had also claimed that crushing might have a higher impact than batch plants. She said the reason the County made the distinction was because the state legislature had made the distinction between batch plants and other types of processing and, in fact, did not allow batch plants in resource zones until 1989. There had apparently been a legislative finding that asphalt batch plants were a potentially polluting, high impact industrial use which should require different rules. The industry was representing that this was not the case. She said the issue was still unresolved, and she wanted to see DLCD comments before coming to the Board with a specific proposal. She said the rest of the comments related to clarifying language or making language more objective. Commissioner Maudlin had a concern about what "processing" was and what "products" were in various sections of the ordinance. Karen Green said it was on their list of items to clarify. Commissioner Maudlin questioned language which allowed screening, washing and sizing of mineral and aggregate material as a use permitted outright, while under a conditional use permit, the ordinance only allowed crushing PAGE 5 MINUTES: 2/7/90 !A» - 1 856 of mineral and aggregate materials. He felt that screening would normally come after the crushing. He used the example of a river rock site where crushing was not allowed. He said the rock would have had to be hauled to where it could be crushed and then screened. Karen Green said the industry representatives had also brought up this point. She said it varied depending on the resource, i.e. on one of Mr. Clark's pumice sites, he was screening pumice which wasn't going to be crushed, and the screening was taking place at the excavation site. She said the steps changed position depending upon the resource. In hard rock mining, if you had to transport the material here and there to get the different steps accomplished, it wouldn't be feasible to mine. She said they would try to clarify the language using what they had learned about the differences in resource handling. Commissioner Throop said State Highway Division representatives testified that they felt the screening, washing, and sizing of material was a natural part of the mining proces and would not need an extra look beyond the surface mining zoning. However, when a crushing operation or more industrial type activity was added, there needed to be an extra look. He still felt there was quite a difference between screening/washing and crushing. Karen Green said she envisioned that when a miner came in to the County for a permit or permission to operate, they would not have to go through multiple permit steps with long periods of time between steps. She would expect them to be informed of what permits they needed and things that needed to be brought in to support those permit requests, so that the whole process could be done at the same time. For example, if a miner wanted to screen and crush on the same site, one would be a conditional use and one would require a site plan review, which could all be done in the same process. Commissioner Throop questioned whether crushing activity and batch plants should be outright permitted uses which would only be subject to conditions during the site plan process. He felt there might be sites where that kind of activity would not be compatible with other uses in the area. Karen Green pointed out that the Board would have already made the determination that crushing was not allowed on these types of sites during the ESEE analysis, and therefore the Ordinance language would not apply to these sites since the ESEE findings would control. She said the industry felt that if they could meet the performance standards that were set for them, i.e., DEQ noise and dust standards, that batch plants and crushing should be allowed, albeit conditionally. She said the industry already knew that if their crusher could not meet DEQ noise standards, they couldn't operate regardless of where it was located. PAGE 6 MINUTES: 2/7/90 J-00 - 1857 Commissioner Maudlin questioned the hours of operation being limited to 7 a.m. to 6 p.m, Monday through Friday. He felt that surface mining was primarily done in the summer when the daylight hours were longer, and that they should be able to start up their equipment at 6 a.m. and stop operation at 8 p.m. Karen Green said that restrictions were already in place on operating before 7 a.m. through DEQ standards and the current county noise ordinance. She said they had received a number of complaints about a plant in town that would start operation at 6 a.m. in the morning, and the plant had been cited. She said property owners surrounding mining sites had indicated that the 7 a.m. to 6 p.m hours of operation were critical for their peace of mind. She also pointed out that those restrictive hours applied only to the sites which were within 1/2 mile of a dwelling; all other sites could operate 6 a.m. to 10 p.m. Commissioner Throop asked if there was any testimony from the audience. Bill Miller, Central Oregon Pumice, asked when the next draft would be available. Commissioner Throop said it would be available on Friday February 23, 1990. Karen Green asked that Mr. Miller call the office before coming in to make sure it was available. Commissioner Maudlin said there had been previous testimony from the industry requesting noise criteria and wondered why that had not been changed in the ordinance. Karen Green said there had been ongoing debate concerning whether the County should set a specific distance set back to protect from sound impact, or whether the County should set performance standards such as decimal levels. She said it had been a source of frustration for them since the industry had changed their minds about which way they wanted it to be a couple of times. First they wanted performance standards, then they wanted the specificity and clarity of a set distance, and now they were saying they preferred to have a performance standard. She said the County wanted to have a clearly defined surface mining zone and a clearly defined impact zone. Having specific set back distances would facilitate that. If performance standards were used, as the industry was now suggesting, the County would have to wait until the site plan review for the miners to bring in a report from their sound engineer with the sound imprint boundary. At that point, the County would have to make an adjustment to the surface mining zone and impact zone. She did not feel that would be beneficial to anyone and would leave an uncertainty as to where the zone would be located in the future. PAGE 7 MINUTES: 2/7/90 J,00 - 18 58 Commissioner Maudlin asked if the miners weren't required to meet certain noise standards regardless of the setbacks. Karen Green said their equipment could not exceed certain DEQ decibel levels at certain distances. She said the County's ordinance went beyond DEQ in protecting dwellings and other dust and noise sensitive uses. Commissioner Maudlin was concerned about a possible "Discovery Ordinance" where it might pertain to wildlife because wild life could move from one area to another. Karen Green said that the Department of Fish and Wildlife used as an example, the local elk herd which had migrated in the last 10 years to different locations. Therefore what may have been their winter range a year ago, could be different in a couple of years. She was hoping that five years from now, if someone wanted to mine a site where the elk herd was currently wintering, they would be able to bring the new information into the process at that time, even though it had not been the situation at the time of the ESEE analysis. Commissioner Maudlin asked if there was any evidence that deer and elk herds or birds were being destroyed because they had to move from one place to another. Karen Green said she felt testimony to that effect had been given during this process from Norm Behrens, local wildlife biologist. There being no further testimony, Commissioner Throop continued the public hearing until 11 a.m. on Wednesday, February 28, 1990. DESCHUTES COUNTY BOARD OF COMMISSIONERS Lois ri QtOWYP~' mmissioner //PVi(4 /~O Tom Throop, Chair D Maudlin, Commissioner BOCC:alb PAGE 8 MINUTES: 2/7/90