1992-14302-Minutes for Meeting April 20,1992 Recorded 4/27/199292-14302 0115-0275
PUBLIC HEARING MINUTES
BEND AGGREGATE NOISE VARIANCE
DESCHUTES COUNTY BOARD OF COMMISSIONERS
April 20, 1992 ,'�;`' ' �� r,� ti' L' _''
C01 IN' r Y C1_ r K
Chairman Maudlin called the meeting to order at 10:04 a.m. Board
members in attendance were: Dick Maudlin, Tom Throop and Nancy
Pope Schlangen. Also present were: Rick Isham, County Counsel and
Dave Leslie, Planner.
The purpose of this public hearing was to take testimony on a
variance application submitted by Bend Aggregate and Paving. The
applicant requested a variance to the hours of operation to allow
the operation of a hot mix asphalt plant, equipment and trucks
between the hours of 3 a.m. and 7 a.m. from April 20, 1992 to
June 30, 1992, at their property located at 64543 Highway 20 W.
Chairman Maudlin opened the public hearing and asked for a staff
report. Rick Isham gave the staff report which is attached to
these minutes.
Jim Curl, 64543 Highway 20, Bend, OR 97701, testified as the
applicant for this variance. He read the attached March 23, 1992,
letter into the record. He said after discussions with County
Counsel, he requested that the starting hour move up to 3 a.m. from
the 4 a.m. requested in this letter since there was a possibility
they might need to start this early. He then read the attached
March 27, 1992, letter into the record. Since this request was
made, they experimented holding the hot mix overnight. It hadn't
worked in the past since the asphalt mix generated its own heat
when it was stored for a long time, making it hard and unusable.
This time they put some turbine oil lines from their circulating
pump over to the bottom of the silo and experimented with mixing
temperature, and they were able to mix the asphalt on 4:30 p.m. on
last Thursday night and at 4:00 a.m. the next morning the mix was
still usable. So they anticipated they would be able to mix the
night before, so the only noise which would be outside of the
allowed hours would be two -three trucks, getting the mix and taking
it to the site. This was a new development of which neither the
Commissioners nor the neighbors were aware. The only times when
this would not work were on Monday mornings (since the Contractor
would be working Sunday night), or in case of an emergency because
of the weather when they wouldn't know ahead of time whether the
hot mix would be needed. Until the job was actually started, they
would not know how long it was going to take to patch the water
line trench, so that they could be off the street by 7 a.m.
Rick Isham pointed out that the period of the request was much
longer than the actual approximately 20 days needed, since it was
not possible to determine in advance which days the hot mix would
be needed.
KEY¢
PAGE 1 MINUTES: 4-20-92
0115-02'76
Jim Curl said that based upon an approximate 100 feet of trench to
patch per day, he estimated it would take 20 days to do the job.
He said they didn't want to disturb anyone in the early morning
hours, but didn't see any way around it on Monday mornings.
Commissioner Throop asked if he had talked with any of the people
in the Tumalo neighborhood about this proposal. Mr. Curl said they
had not held a neighborhood meeting, but he had had informal
discussions with people at the Tumalo Store. He had a letter of
support from a neighbor lady, and there were a couple of people in
the audience who came to support the requested variance.
Commissioner Schlangen wanted to verify that the variance was just
for the hot plant on Monday mornings and just for the trucks on
Tuesday through Friday mornings. Mr. Curl said that was correct
since they were not going to work weekends.
Commissioner Throop said he had been told by a Tumalo area resident
that the start up of the plant was very loud, but after the start
up, the operation of the plant was not nearly so loud. Mr. Curl
said he hadn't detected any more noise on the start up of the plant
than from the operational noise. The only way he could tell that
the plant was operating was to look out his window and see the
steam plume. He did not hear any increase in the noise level when
it started.
Chairman Maudlin asked how much asphalt they would be hauling a day
to take care of the 100-120 feet of water line work a day. Mr.
Curl said about 20 tons or two trucks. He couldn't imagine needed
more than three trucks at the outside. Chairman Maudlin asked if
on Mondays when they needed to start early, if they would continue
to operate the remainder of the day. Mr. Curl said they would
continue to work a normal work schedule in addition to the early
morning time.
Bob Mitchel, 64404 Coor Avenue, Bend, 97701, testified that he
lived right across the street from the hot plant and had for 30
years. He said when the hot plant started up, it had the same
noise level all day. He said it was "not that annoying." The most
annoying sounds where the trucks using their Jake breaks, but were
not necessarily Bend Aggregate trucks. The hot plant had never
woken up members of his family when it was in operation.
Donald Cross, 19937 Elm Lane, Bend, 97701, read the attached
testimony.
Commissioner Throop asked Mr. Cross if the window of operation for
the hot plant could be narrowed, and if it would only occur on one
day a week (Monday mornings), would that be acceptable to him on a
short term basis? Mr. Cross said it was possible if the conditions
were in writing and the variance would be revoked if they violated
the conditions, and the applicant signed the agreement. He
PAGE 2 MINUTES: 4-20-92
0115-0277
expressed great concern for what impact this level of noise would
have on the members of the Tumalo community, especially the
children. He said there was no evidence concerning the ongoing
noise level and what affect it could have on people. He didn't
want his community to be a noise test case. He played a tape of
the noise from outside his home which was approximately 1/2 mile
from the Bend Aggregate plant. He had purchased a noise meter and
at the levels he recorded, Federal Law would require ear plugs. He
pointed out the loud beeping of the equipment when backing up which
registered 98 decibels.
Dick Heinz, 19939 Fir Lane, Bend, 97701, testified that he lived
about 1/2 block closer to the river than Mr. Cross and was close to
the canyon wall which acted as a "sounding board." He said the hot
plant had a very high starting noise level. The steam or noise
sounded like a jet airplane taking off. Occasionally, when his
windows were partially opened, they would rattle from this noise.
He felt the public had a right to peace and quiet. He was
extremely opposed to any variance to grant operation during the
early morning hours. He suggested Bend Aggregate use the time from
7 p.m. to 10 p.m. to get the work done, or extend the hours of
operation to 11 p.m. if necessary, but not to the morning hours.
He felt a period of 2-1/2 months was excessive when they were
actually only going to need to operate for 20 days. He wanted more
specifics in the request. Concerning Rob Mitchel's testimony, he
pointed out that his family was or had been employed by Bend
Aggregate.
Commissioner Throop asked if he would be willing to be a member of
a small working group to see if an agreement could be worked out
which would accomplish everyone's objectives to the greatest degree
possible? Mr. Heinz said he would.
Chairman Maudlin pointed out that if a variance was granted, it
would be in writing and would contain specific provisions for
operation. He said the County was not going to make an open-ended
commitment on any variance.
Bernie Hayes, 20746 Livengood Way, Bend 97701, testified on behalf
of Pierett Brothers who were the prime contractors on the project
in question. The project was a City of Bend water line extension
which was going down the center median strip on 3rd Street (Hwy 97)
from approximately Hayes Avenue to Cleveland or Mckinley. Since it
was a state highway, the state dictated the terms under which the
work could be done. One of the terms was that by 7 a.m. each
morning, the section being worked on had to be permanently paved
and open to traffic. They would not accept a temporary closure.
The term of the contract was for 60 days, and they didn't know
exactly how long the project would take. They had to deal with
unknown conditions which were seven to ten feet underground. There
were undoubtedly areas of solid rock which would impact the rate of
progress. There were numerous utilities under this street, and the
PAGE 3 MINUTES: 4-20-92
0115-02'78
existing maps did not outline precisely where they were, which
could produce problems or delays. The asphalt work had to be done
from 4 a.m. to 7 a.m. because that was the last phase of the
operation.
Commissioner Throop asked when he might have a clearer picture of
the time frame needed. Mr. Hayes said they would never be
absolutely certain of the daily progress, but he felt after they
had worked on the project for a couple of days, they could estimate
more closely what the overall time schedule would be. They would
start the project that evening, and it was to the contractor's
advantage to get the project done as quickly as possible. They
would need the first batches of asphalt tomorrow morning to patch
the work they did this evening.
Chairman Maudlin said that if they encountered sewer or other
lines, they might only be able to go 10 feet in one evening. Mr.
Hayes said they dug up a sample area to determine what utilities
were in that area, however none of the utilities were where they
were supposed to be. Chairman Maudlin asked if they patched this
sample area. Mr. Hayes said they didn't since they broke out a
sidewalk area for the sample. Chairman Maudlin asked if they had
just dug a ten foot strip and found problems and could go no
further that evening, would the state require that asphalt be
brought out between 4 a.m. and 7 a.m. to patch this strip. Mr.
Hayes said they would, but he didn't anticipate that happening very
often. Concerning the lack of more notice before this project was
to start, Mr. Hayes said that after this water line work was
completed, the State was going to resurface Third Street, so the
State was anxious for the project to more forward.
Dick Heinz asked if a 20 -foot square was dug out, and they found a
problem which could not be resolved by 7 a.m., would the area have
to be filled up and patched and dug out again the next day? Mr.
Hayes said yes, they would. The street had to be open for traffic
at 7 a.m.
Jim Curl clarified that the equipment which had back up alarms
(beeps) would not be used during the early morning time requested
in the variance. The trucks would only pull into the silo, open
the gate, and the material would drop into the trucks. The trucks
did not have back up alarms.
Commissioner Throop said he felt the parties were getting
reasonably close to an workable accommodation and suggested that
this public hearing be recessed for 15 minutes, so the parties
could meet informally with the Board to narrow the issues and
perhaps reach an agreement. The Board agreed to recess the public
hearing so the parties could meet.
The meeting was reconvened, and the public hearing was closed.
PAGE 4 MINUTES: 4-20-92
0115-02'79
THROOP: I'll move that County Counsel draft by 3:00 p.m. this
afternoon an operating procedure which describes that 30
working days will be provided for the operation of
equipment outside the 7 a.m. to 10 p.m. window; that on
Mondays of those 30 days, the batch plant will also have
the opportunity to operate; and then if there is an
emergency that requires the operation of the batch plant
other than a Monday, that Mr. Curl will make contact with
Mr. Heinz, and if that isn't resolved at that point, that
the two of them will make contact with one member of the
Board, and if its not resolved at that point, then we'll
hold an emergency meeting of the Board to get this
resolved in order to facilitate this project.
SCHLANGEN: Tom, the only thing you left out is that we do
grant the variance to Bend Aggregate with the
following conditions.
THROOP: That's definitely a friendly amendment. On Tuesday
through Friday, we're assuming that it's primarily truck
operations.
SCHLANGEN: With my amendment, I second it.
THROOP: And that's subject to review this afternoon.
VOTE: THROOP: YES
SCHLANGEN: YES
MAUDLIN: YES
DATED this � day of , 1992, by the Board of
Commissioners of Deschutes Co y, OregoAi.
TEST:
Recording Secretary
PAGE 5 MINUTES: 4-20-92
Tom
, y--.;ommi s s .y,oner
Nancy Popt hlangen, Commissvioner
ick Md'u lixt, Ch6irman
r
0115-0280
STAFF REPORT
APPLICANT: Bend Aggregate and Paving
64543 Highway 20, W.
Bend, Oregon
The applicant has requested a variance to the hours of operation to
allow the operation of a hot mix asphalt plant, equipment and
trucks between the hours of 3:00 a.m. and 7:00 a.m. from April 20,
1992 to June 30, 1992, at property located at 64543 Highway 20, W.,
Bend, Oregon, see attachment "A." The standards and criteria
applicable to the application are Chapter 8.08, Deschutes County
Code; Chapter 467, Oregon Revised Statutes; and Title 22, Deschutes
County Code.
Staff contact is Marlene Heck, Board of County Commissioners
Office, 1130 NW Harriman, Bend, Oregon.
Public hearing is scheduled for 10:00 a.m., Monday, April 20, 1992,
in the Board of County Commissioners conference room, 1130 NW
Harriman, Bend, Oregon.
APPLICABLE REGULATIONS
Deschutes County Code 8.08.080 provides:
8.08.080 variances.
The board of county commissioners may grant personal
nonassignable variances of expressly limited duration and
covering a defined geographical area from the operation
of this chapter after public hearing following the
procedures of Division 1 of Title 18 of this code and
satisfy the variance burden of proof under the current
county zoning ordinance. In addition to the standards
provided therein, the board of commissioners shall apply
the relevant provisions of Oregon Revised Statutes
Section 467.060.
ORS 467.060 provides:
467.060 Issuance, revocation or modification of
specific variances; grounds.
(1) The Environmental Quality Commission by order
may grant specific variances from the particular
requirements of any rule or standard to such specific
persons or class of persons or such specific noise
emission source, upon such conditions as it may consider
necessary to protect the public health, safety and
welfare. The specific variance may be limited in
duration. The commission shall grant a specific variance
only if it finds that strict compliance with the rule or
standard is inappropriate because:
4
0115-0281
(a) Conditions exist that are beyond the control of
the persons applying for the variance;
(b) Special circumstances render strict compliance
unreasonable, unduly burdensome or impractical due to
special physical conditions or cause;
(c) Strict compliance would result in substantial
curtailment or closing down of a business, plant or
operation; or
(d) No other alternative facility or method of
operating is yet available.
(2) The commission by rule may delegate to the
Department of Environmental Quality, on such conditions
as the commission may find appropriate, the power to
grant variances and to make the finding required by
subsection (1) of this section to justify any such
variance.
(3) In determining whether or not a variance shall
be granted, the commission or the department shall
consider the equities involved and the advantages and
disadvantages to residents and to the person conducting
the activity for which the variance is sought.
(4) A variance may be revoked or modified by the
commission. The commission may revoke or modify a
variance if it finds:
(a) Violation of one or more conditions of the
variance;
(b) Material misrepresentation of fact in the
variance application or other representations of the
variance holder;
(c) Material change in any of the circumstances
relied upon by the commission or department in granting
the variance; or
(d) A material change or absence of any of the
circumstances set forth in paragraphs (a) to (d) of
subsection (1) of this section.
(5) The procedure for denial, modification, or
revocation of a variance shall be the procedure for a
contested case as provided in ORS 183.310 to 183.550.
Necessity for a Variance
A variance is required because the hours of operation of the
machinery and equipment is prohibited pursuant to Section 8.08.030,
Deschutes County Code.
A report has been filed by Bend Aggregate and Paving relative to
the variance request, see attachment "B." Noise levels measured at
the intersection of Riverview Avenue and Cedar Lane, northeast of
Highway 20 across from the plant, measured on March 27, 1992,
indicated a noise level of 50-55 dBA with at least one car in sight
on Highway 20. Traffic noise on Highway 20 at that location was
measured between 60 and 70 dBA.
0115-0282
According to the report, DEQ allowable noise limits from 10:00 p.m.
to 7:00 a.m. are L1 60 dBA, L10 55 dBA, and L50 50 dBA.
The necessity for operating at the hours requested are that paving
on Third Street in the City of Bend is required to occur during the
nighttime hours and be completed prior to 7:00 each morning.
Recommendation
Staff finds that due to the necessity of paving during hours when
the operation of the equipment would be prohibited, the applicant
has no control over the hours of operation in order to accomplish
the public work project. These circumstances render a strict
compliance with the noise standards applicable to this application
as being unduly burdensome and impractical, and that there is no
other way to produce the hot mix asphalt for the Third Street
paving project without operating the plant during the hours
requested.
Staff recommends that the variance application be approved as
requested.
DATED: April 13, 1992.
%R*h . Isham,
utes County Legal Counsel
PH13NE 382-2103
WE DELIVER -
CRUSHED ROCK
CONCRETE
AGGREGATE
MASON ZAND
FILL MATERIALS
March 23. 1992
A-TrA-<--&vA &-(u? "A "
0115-028364
543 HWy. 20 W.
BEND AGGREGATE & PAVING CO.
BEND. OREGON 97701-9058
Deschutes County Commssioner
'Dick Maudlin. Chairman
1130 N W Harriman
Bend OR 97701
WE INSTALL -
ASPHALTIC
CONCRETE
PENETRATION
MACADAM
CMULSIIrIEO
WEARING
SURFACES
RECE111E
MAR 2 4 1992
ARS'd ------------
Pursuant to Deschutes County Noise Control Ordinance. Paragraph
8.08.080 Variances. Bend Aggregate & Paving Co.. requests a
variance to operate the Tumalo asphalt plant before 7:00 a.m. on
weekdays. We are a subcontractor to Pieratt Bros.. on the City
of Bend Third Street Waterline Project. We will be furnishing
and installing the hot mix asphalt to patch the trench for the
Job. The. specifications call for working only between 7:00 p.m.
and 7:00 a.m. with all open trench to be patched before 7:00 a.m.
We anticipate this work to take approximately 20 days. depending
of course on the prime contractor's schedule. Until the job
begins we really don't know what time we will need to start the
order to complete the work by 7:00 a.m.. but our best guess is
4:00 a.m. plus or minus.
We would appreciate your attention to this request at your
earliest convenience.
Very truly yours,
BEND AGGREGATE & PAVING CO.
James M. Curl
iMC:Io
let. mdIn
Nancy Popp Schlangen
Tom Throop
PHONE 302-2103
WE DELIVER -
CRUSHED ROCK
CONCRETE
AGGREGATE
MABON SAND
'ILL MATERIALS
( (3r' 0115_n 64543 HWY. 20 W.
V E D
BEND AGGREGATE & PAVING CO.WE ^INSTALL -
MAR 3 0 19 a..LTIC
BEND. OREGON 9770:-9058 �/-�7C/D NCR- E
PENETRATION
MACADAM
EMULSIfIEO
WEARING
SURFACES
March 27, 1992
Dick Maudlin. Chairman
Deschutes County Commissioner
1130 N W Harriman
Bend. Oregon 97701
Re: Bend Aggregate & Paving Co.. variance request (Deschutes
County Noise Control Ordinance). Additional information
requested by Karen Green.
DEQ- ALLOWABLE NOISE LIMITS:
7 AM - 10 PM
L 1 75 dBA
L 10 60 dBA
L 50 55 dBA
10 PM - 7 AM
60 dBA
55 dBA
50 dBA
Measured noise levels at C/O Riverview Avenue and Cedar Lane (N E
of Highway 20 across from Tumalo plant) measured 1S min. at 7:30
a.m.. 3-27-92.
Traffic Noise. Hwy 20 - 60 - 70 + dBA
Asphalt Plant. with at least one car in sight
on Hwy - 50 - 55 dBA
Besides asphalt plant vehicular traffic would involve
approximately 2 - 3 trucks exiting onto Hwy 20 to Bend.
Our best estimate of start time and duration of operation is
addressed in March 23. 1992. letter to County Commissioners.
Due to the general contractor's anticipated start date in
approximately 2 weeks. your earliest possible attention to this
request would be appreciated
Very truly yours.
BEND AGGREGATE & PAVING CO-
Jame
O.
James M. Curl
JMC:10
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