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1991-20185-Minutes for Meeting July 01,1991 Recorded 7/11/1991i '1c;�0noRW ri 1 sl -020185 ')M �7, 1, 0107 .0005 WORK SESSION MINUTES DESCHUTES COUNTY BOARD OF CON X§§. WR „�, ,_ 2: July 1, 1991`` ' `` � Chairman Maudlin called the meeting to order at 10 a.m. Board members in attendance were Dick Maudlin, Tom Throop, Nancy Pope Schlangen. Also present were: Bruce White, Assistant Legal Counsel; Brad Chalfant, Property Management Specialist; Frank Moore, Director of Mental Health; Florence Torrigino, Health Services Administrator; Julie Dotson, Mental Health Services; Dianna Pickett, Health Department; Karen Green, Director of Community Development Department; Dave Leslie, Community Development Department Planner; and Larry Rice, Director of Public Works. 1. REOPENED PUBLIC HEARING AND DECISION WHETHER OR NOT TO REZONE COUNTY SITE 541 (KMB ENTERPRISES) FROM FLOOD PLAIN TO SURFACE MINING AND TO AMEND THE COUNTY'S COMPREHENSIVE PLAN FROM AGRICULTURE TO SURFACE MINING. Before the Board was the reopening of a public hearing concerning a proposed surface mining designation for property owned by KMB Enterprises (site # 541). Dave Leslie provided the staff report. Staff recommendation was that the Board not rezone the site for surface mining since the noise report did not clearly evaluate all aspects of a mining operation that would occur at this site. He also stated that there were some questions about the amount of noise and reduction of noise that would be needed to meet DEQ standards. Commissioner Tom Throop asked whether there were any conservation easement public access requirements along Squaw Creek. Dave Leslie responded that there was a conservation easement on both sides of the creek from the high water mark, landward 10 feet, and that strip included public access. Upon opening the public hearing, Chairman Maudlin stated that this hearing had been scheduled only for a decision, but because other information had been received, the hearing was being reopened to allow this information to be disclosed. He stated that anyone else who wished to add further information could do so at this time. Commissioner Schlangen was asked to disclose her contact with Fish & Wildlife. Commissioner Schlangen stated that she contacted Fish and Wildlife because of her concern that there was a lack of a plan being presented for fish and wildlife. Norm Behrens of Fish and Wildlife had told her that a plan could benefit the wildlife habitat. The ponds, if they were constructed properly, could enhance fish life ,an if vegetation in the area is correctly planted, could be 'j for, IV- ""-,t� o. 010'7 0006 deer and other animals. Mr. Behrens also recommended that cattle grazing not be allowed. The site in question was in the flood plain, and the Oregon Department of Fish and Wildlife felt that some of the vegetation would help hold back damage that could occur during a flood. Commissioner Schlangen disclosed that this was the information she received from Mr. Behrens and that Fish and Wildlife indicated they would be glad to work with Mr. Cyrus on a plan. Commissioner Schlangen stated that she also had one contact with Mr. Cyrus, but that all she had told him was she had talked with Mr. Behrens, that the hearing would be reopened, and that he could provide testimony. Commissioner Throop asked for the context of the contact with Mr. Cyrus. Commissioner Schlangen stated that Mr. Cyrus called to see if they could talk, and she informed him that she could only talk about process and the process was that she had contacted Fish and Wildlife and that the hearing would be reopened today at 10 a.m. Max Merrill, attorney representing KMB Enterprises, testified that the issue of noise had just recently arisen and that he had not had a chance to do a complete study prior to the original hearing. He stated that the engineer who wrote the report was present at the hearing and that he had taken some additional readings to present to the Board. Commissioner Throop asked whether noise was even a standard issue with surface mine hearings, and Bruce White stated that it was an issue. Mr. Merrill stated that when the staff report came out at the time of the original hearing, there were no issues raised about the noise levels. Those concerns came out next to the last staff report and that was the first time he was aware that noise levels were an issue. Commissioner Throop asked if there was a state statute or rule that required operation of this kind to meet certain noise standards. He also questioned if it was a part of state law or DOGAMI deliberation. Dave Leslie stated that he did not believe it was part of DOGAMI deliberations but that state law required any new industrial site meet certain noise standards. There always has been existing law that was potentially enforceable by surrounding home owners. Mr. Merrill stated that the noise issue would be dealt with when they actually made site plan application. If the zone change was not approved, then the noise factor would not be applicable. Commissioner Throop asked if the noise issue was normally PAGE 2 BOARD MINUTES: 7/1/91 0107 0007 dealt with at the time the inventory and zone change decisions were made or if the issue was normally dealt with at site plan review. Dave Leslie said it was difficult to make a decision on a zone change if there was an uncertainty about meeting the noise standards. Historically, it has been done both ways on a site -by -site basis. There have been cases where the issue was dealt with at site plan review. In those instances, there was no guarantee that a site which had been zoned for surface mining could operate. Dave Leslie felt it was better for the applicant and the County to analyze these issues before a decision to rezone was made. Chairman Maudlin said that during the original testimony on site 541 and the final decision, there was no mention of any noise level. This was brought to the Board after the fact. August 10, 1989, was the original hearing, and October 11, 1989, was the decision. The noise level factor was not addressed at these times. The noise level issue came out when the request went to LUBA. Dave Leslie affirmed that this was the case. Also, an additional factor is that subsequent to the Board's original decision, the platting of the Rim at Aspen Lake Subdivision occurred which raised the issue of noise to a higher level of concern. Another factor is that the DEQ has been reducing their role in doing noise work and the County has been gaining expertise. The County is now in the position to provide greater technical information than in 1989. Bruce White stated that one of the reasons the Board had decided to reopen the hearing was because of the change of circumstances regarding the platting of the Rim at Aspen Lakes Subdivision and with the potential of houses closer to the site. Karen Green raised a procedural issue. She stated that the original hearing was open to any and all issues by Board choice. When the Board elected to reopen the hearing for today, it was limited to allowing Commissioner Schlangen to put on the record what her conference had been with Fish and Wildlife and for people who wished to comment and respond to that testimony to do so but not to reopen it in its entirety. Ms. Green stated that her concern was that the Community Development Department would have to go back and reevaluate the testimony received today if new noise evidence from the sound engineer were introduced. That would then need to be reevaluated and brought back to the Board. Therefore, this could be an endless process. The end of July is the deadline for returning the Coats and Cyrus sites to LCDC for acknowledgement. Ms. Green recommended that the Board limit PAGE 3 BOARD MINUTES: 7/1/91 010'7 0008 the testimony to responding specifically to what Commissioner Schlangen put on the record. Chairman Maudlin asked if anyone present wished to speak regarding fish and wildlife information. Bruce White asked Commissioner Schlangen if there was any discussion about present fish and wildlife values in her discussion with Mr. Behrens. Commissioner Schlangen stated the conversation was regarding how to enhance current resources with vegetation. Tygh Redfield of 68860 Goodrich Road, Sisters, Oregon stated that due to the nature of the development, there would be no shortage of any additional wildlife ponds because of the amount of water that is being developed for the overall project. The golf course will have many ponds and there are many irrigation ponds in that area. He stated that there is no shortage of wildlife enhancement in the area. Bonnie Albert, 68923 Bradley Road, Sisters, Oregon stated she was familiar with the area being proposed for surface mining as she had irrigated this area for ten years. She is also familiar with the top soil in this proposed area. Her neighbor, Opal Thompson, adjoins the development and owns 360 acres and has lived there 55 years. She also remembers the entire valley flooded. In 1980, the area flooded in this manner. Ms. Albert stated that flooding does not always stay within the creek. She submitted various pictures showing the high water as well as pictures of the area at the present time showing test holes dug by Mr. Cyrus. Chairman Maudlin called to Ms. Albert's attention the fact that the discussion was about the fish and wildlife recommendations and that her comments needed to be specific to that guideline. Ms. Albert stated that her interpretation of the fish and wildlife was the proposed ponds. Because of the manner in which she has seen water come through the valley, she feels that a major flood could occur every seven years. Her concern is with the ponds and the possible flooding every seven years plus a 16 percent chance of a flood every year. She felt that the fish could be damaged as the ponds picked up aggregate from the inflow to the first pond and then out of the pond. Being no further testimony, the public hearing was closed. SCHLANGEN: I would like to move that we not zone site 541 for surface mining, that we maintain the 540,000 cubic yard resource in the Deschutes County inventory, and that planning staff prepare the ESEE report that shows site 541 does not comply with goal 5 because mitigation PAGE 4 BOARD MINUTES: 7/1/91 010'7 0009 has not been sufficiently addressed. THROOP: Second Discussion on the motion followed. Commissioner Schlangen stated that her great concern was for the ecological impact of the ponds. She also did not know how long it would take for vegetation to come back or for the wildlife to reappear, but at this time, was not convinced that the ponds would be an asset. Commissioner Throop stated that the record is insufficient to support findings that the negative environmental consequences can be mitigated and that the noise and water quality regulations can be met. He also felt that there was a potential for further degradation of other Goal 5 resources, namely fish and wildlife areas and habitats, and insufficient evidence in the record to indicate that any of these could be mitigated. He also noted that there were conflicts with uses as well, primarily rural residential uses. Chairman Maudlin stated that a concern he has with the site is the undisputed testimony regarding sound levels. The dispute arises at the staff level but is a matter that was not brought up during the public hearing. It appears after reading the staff report that the ponds can be developed whether it is zoned for surface mining or not. Dave Leslie stated it would require approval and a conditional use permit to excavate material in a flood plain. It would not necessarily need to be zoned surface mining. Chairman Maudlin stated ponds could be put in if a certain standard were met and that up to 50,000 cubic yards could be taken out and used on site. Dave Leslie stated that noise standards would still have to be met but that they would not be reviewed with the same process as for surface mining. Commissioner Throop stated that if the site was not zoned for surface mining, an application for a conditional use permit to excavate for material to be used on site was a permissible application to be made. He stressed again that the material must be used on site, cannot be processed on site, and does require a conditional use permit. Regarding noise, the analysis to date is insufficient to determine that the DEQ noise regulations can be met. The burden of proof is not on opponents but is on the applicant to show that the noise standards can be met. It is clear from the information that there is not sufficient information from the applicant that the noise standards can be met. PAGE 5 BOARD MINUTES: 7/1/91 0107 0010 Commissioner Schlangen indicated she was not satisfied with the data that was presented by DSA. With the houses in close proximity, noise and dust levels was a concern. VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 2. WEEKLY WARRANT VOUCHERS BATCH 1 (S84,118.59) FROM 6/28/91 Before the Board was a nunc pro tunc request for payment of weekly warrant vouchers in the amount of $84,118.59. THROOP: I'll move approval subject to review. SCHLANGEN: Second approval VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES 3. ORDER 91-091 DISTRIBUTING LAND SALE REVENUES Before the Board was a nunc pro tunc action on Order No. 91- 091, distributing land use funds. SCHLANGEN: I move signature of Order 91-091. THROOP: Second VOTE: THROOP: YES SCHLANGEN: YES MAUDLIN: YES DESCHUT4S COUNTY BOARD OF COMMISSIONERS •rom Throop' issione Nancy Pop Schl gen, Commissio r Di Mau lin, C airman BOCC/mmh PAGE 6 BOARD MINUTES: 7/1/91