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1995-44151-Ordinance No. 95-080 Recorded 12/21/1995REVIEWED g� -4411 13w� EL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES , An Ordinance Amending PL -20, Deschutes County Year 2000 Comprehensive Plan, Revising the Mineral and Aggregate Resource Inventory for Deschutes County, and Declaring an Emergency. ORDINANCE NO. 95-080 f 0148-16fg WHEREAS, tax lot 200 in Sections 1 and 12 of Township 19 South, Range 14 East, Willamette Meridian (the subject property) encompasses 440 acres zoned Surface Mining (SM) and Wildlife Area (WA) Combining under the County's Zoning Ordinance and is designated on the County's Comprehensive Plan map for Surface Mining (SM); and WHEREAS, Deschutes County has previously adopted as part of the Comprehensive Plan an inventory of mineral and aggregate resource sites, by Ordinance 90-025, including Exhibit G, a listing of sites with significant mineral resources; and WHEREAS the subject property is listed as Site No. 404 on the County's inventory of mineral and aggregate resource sites; and WHEREAS, Howard M. Day has proposed a Plan Amendment to PL -20, the Deschutes County Year 2000 Comprehensive Plan, to add 142,000 cubic yards of hard rock basalt regarding Mining Site No. 404 to the County inventory of Goal 5 mineral and aggregate resources and has submitted a geotechnical report documenting the location, quantity and quality of this resource material; and WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with applicable law, has recommended approval of the proposed Plan Amendment to PL -20; and WHEREAS, after notice was given and hearing conducted on December 20, 1995, in accordance with applicable law, the Board of County Commissioners has considered the Hearings Officer's recommendation; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. Inclusion of New Source on Mineral and Aggregate Inventory. That PL -20, the Deschutes County Year 2000 Comprehensive Plan, as amended, is further amended to amend the 1 -ORDINANCE 95-080 ISM /X,,C n ©�i.ivl vE C Z ���� 0148-1000 County's Goal 5 Inventory of Mineral and Aggregate Resources, as set forth in Exhibit G to Ordinance 90-025, as amended, to add 142,000 cubic yards of hard rock basalt located on the northern portion of tax lot 200 in Sections 1 and 2 of Township 19 South, Range 14 East, Willamette Meridian. Section 2. Findings in support of its decision. The Board adopts as its findings in support of this decision the following: (1) The general findings related to inventorying mineral and aggregate resources in the County set forth in Ordinance 95-025 and incorporated herein by reference; and (2) The findings from the staff report, attached hereto as Exhibit A, set forth in section W.A. of the staff report regarding inventorying of the subject aggregate material, which findings are incorporated herein by reference. Section 4. Repeal of Ordinances as Affecting Existing Liabilities. The repeal, express or implied of any ordinance, ordinance provisions, code section or any line of any map by this ordinance shall not release or extinguish any duty, condition, penalty, forfeiture, or liability incurred under such ordinance provision, code section or map feature unless a provision of this ordinance shall so expressly provide, and such ordinance repealed shall be treated as still remaining in force for the enforcement of such duty, condition, penalty, forfeiture, or liability, and for the purpose of authorizing the prosecution conviction and punishment of the person or persons who violated the repealed ordinance. Section 5. Emergency. This ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. DATED this� day of December, 1995. ST: Recording Secretary 2 -ORDINANCE 95-080 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON BARKY A SLAUGHTER, Chair PE L� RO ERT L. NIPPER, 0148-1661 DESCHUTES COUNTY PLANNING DIVISION y FILE NUMBER: PA -95-9 DATE: November 21, 1995 TIME: 7:00 P.M. PLACE: Room A, Juvenile Justice Building 1128 N.W. Harriman Bend, Oregon 97701 APPLICANT/ OWNER: Howard M. Day ENGINEER: James E. Bussard ATTORNEY: Nancy Craven REQUEST: The applicant is requesting a Comprehensive Plan Amendment to amend the ESEE for Site No. 404 to reflect additional mineral and aggregate resources on site and to adopt a winter operating program. STAFF CONTACT: David B. Leslie, Associate Planner I. LEGAL CRITERIA: 1. PL -20, the Deschutes County Year 2000 Comprehensive Plan. 2. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance: -Section 18.136.030, Rezoning Standards. 3. OAR 660-12-060, Plan and Land use Regulation Amendments 4. Oregon's Statewide Planning Goals. 5. Title 22 of the County Code, Procedures Ordinance. PA -95-9 Page 1 EXHIBIT A Page 6148-1662 II. PROCEDURE' This land use action is a quasi-judicial plan amendment that involves lands designated for surface mining use. DCC 22.28.030.(A) provides authority for the Hearings Officer to make a decision on certain quasi-judicial plan amendments. However, prior to becoming effective, a quasi-judicial plan amendment must be adopted by the Board of County Commissioners. In the absence of an appeal or a review initiated by the Board, DCC 22.28.030(B) requires the Board to adopt the Hearings Officer's decision without any further testimony. III. FINDINGS OF FACT: 1. LOCATION: The subject property is located near Horse Ridge and is approximately one mile from the mouth of Dry Canyon and approximately 18 miles east of Bend. The property is surrounded by BIM property and is accessed by a mile long gravelled road from Highway 20. The subject property is identified on Deschutes County Assessor's Map #19-14 as Tax Lot 1200. 2. ZONING AND COMPREHENSIVE PLAN DESIGNATION: The property encompasses 440 ares zoned Surface Mining (SM) and designated on the comprehensive plan map for Surface Mining (SM). The entire property is located within a Wildlife Area (WA) Combining Zone. 3. SITE DESCRIPTION: The property encompasses 440 acres located north of Highway 20. The entire property is surrounded by land managed by BIM. Surface mining operations occur on the northern and southern portions of the property under both DOGAMI (Oregon Department of Geology and Mineral Industries) and County permits. A majority of the northern portion of the site is generally level and has been cleared of native vegetation. Large earthen berms have been constructed with overburden material along the western and northern boundaries of this area. Surface mining activity on the southern portion of the site includes the blasting and excavation of hard basaltic rock from a localized area. This area is rises in elevation above the remainder of the property and includes a higher density of juniper. Crushing of the material excavated from this area and sizing of the mined resources occurs in a processing area on the northern portion of this mining site. A batch plant for asphaltic concrete has been approved for this mining site. PA -95-9 Page 2 0148-1663 An existing dwelling, a caretaker's ranch house, is located near the central eastern boundary on the south- ern portion of the property. 4. SURROUNDING PROPERTY: The subject property is surrounded by BIM property. The area known as the Badlands is to the northwest, Dry Canyon and the Horse Ridge Natural Area are located southwest. None of these geographic areas of interest are contiguous to the subject property. 5. REQUEST: The applicant is requesting that the County revise its inventory to reflect the presence of hard basaltic rock on the northern portion of the site. A geotechnical report prepared by the applicant's geotech- nical engineer estimates that between 95,000 to 190,000 cubic yards of material underlies the area previously mined for fill and aggregate. The applicant also proposes a revision to the ESEE for this mining site to adopt the winter operating program recommended by the Oregon Department of Fish and Wildlife (ODFW). The applicant submitted the following material in support of this application: 1. Application and fee. 2. Burden of Proof Statement 3. Exhibit 1, ordinances and land use decision pertaining to a plan amendment and zone change adopted earlier in 1995 for the southern 240 -acre portion of the site. 4. Exhibit 2, "Proposed Changes to Surface Mine Operating Guidelines in Zoned Big Game Ranges," prepared earlier this year by ODFW in consultation with planning staff and the Deschutes County Planning Commission. 5. Exhibit 3, geotechnical report entitled "Hard Rock Source Evaluation," prepared by Mark V. Herbert & Associates for the applicant. 6. AGENCY CON94ENTS: The Planning Division solicited comments from affected state and federal agencies. No comments were submitted to the Planning Division regarding this application. 7. PUBLIC COMMKNTS: No letters or comments were submitted from the public regarding these applications. PA -95-9 Page 3 0148-1664 IV. RWUIRED FINDINGS AND CONCLUSIONS: A. Comprehensive Plan Inventory Listing 1. The goal of the Surface Mining chapter of the comprehensive plan is: "To protect and utilize appropriately, within the frame- work established by Statewide Land Use Planning Goal 5 and its implementing administrative rules, the mineral and aggregate resources of Deschutes County, while minimizing the adverse impacts of mineral and aggregate extraction and processing upon the resource impact area." Staff Finding: Statewide Planning Goal 5 and its implementing rule, OAR Chapter 660, Division 16, require local governments to identify aggregate resources through an inventory of resource sites throughout the county and to determine the significance of a mineral resource site by evaluating the location, quantity and quality of a particular site. This application is being reviewed within the framework established by Statewide Land use Planning Goal 5 and its implementing admini- strative rules. The following plan policies, from the Surface Mining section of the Resource Management section of the Comprehensive Plan are applicable to review of this application: 10. A mineral and aggregate resource site not on the current inventory shall be placed on the inventory and zoned SM when the following conditions are met: (a) A report is provided verifying the location, type, quantity and quality of the resource; and (b) The Goal 5 conflict identification and resolu- tion (ESEE) process results in a determination that the resource is of sufficient importance relative to conflicting resources and uses, if any, to require protection. Staff Finding: The geotechnical report prepared by Mark V. Herbert & Associates for the applicant (Exhibit 3, Burden of Proof) indicates that the original 200 acre site (the northern portion of Site no. 404) contains from 95,000 to 190,000 cubic yards of hard basalt. The report concludes that the actual amount of material to be mined will be between these two estimates and indi- cates that the average estimate is 142,000 cubic yards. This material is generally found as a buried ridge PA -95-9 Page 4 0148-1665 beneath other mineral and aggregate resources on the site which have been partially mined. The report contains a map identifying the location of the hard rock. The report indicates that on the basis of sample testing this material will not meet ODOT specifications for highway pavement. However, the report states that "the rock can probably be used to produce a fair quali- ty, commercial grade base aggregate." The material will also be suitable for "fair to good quality drain rock" after it is crushed, according to the applicant's geotechnical report. The applicant submitted a proposed ESEE Findings and Decision to reflect the presence of the additional material described in the geotechnical report. This site is already used for mineral extraction and process- ing. The new material is located beneath other deposits partially mined already. The ESEE identifies that mining conflicts with deer use in this area during the winter months. No new conflicts with other Goal 5 resources will occur as a result of the newly discovered hard rock being mined. No changes in the program to meet the goal are required for the purpose of allowing this newly discovered hard rock material to be mined. As discussed below, mining activity is proposed during winter months in accordance with an operating program developed by ODFW. The mining of the hard basaltic rock in the area originally approved for surface mining will not alter the overall use of the property or the impacts from mining activity since mining, blasting and crushing are already permitted uses at this site. The revised ESEE Findings and Decision is attached as Exhibit A to this staff report and incorporated herein by this reference, for possible adoption by the Board of County Commissioners, as required by OAR 660-16-000. 11. The County shall identify and protect sites for the storage, extraction and processing of mineral and aggregate resources within the framework of Goal 5 and its implementing administrative rules. Staff Finding: This mining site has already been identified as being anappropriate location to conduct extraction, processing and storage of mineral and aggregate resources within the framework of Goal 5 and its implementing administrative rules. The applicant's proposal will increase the amount of hard rock material listed on the inventory as being available for mining. The day to day operations will be addressed in a site plan review currently being processed by planning staff. PA -95-9 Page 5 0148-1666 B. Comprehensive Plan ESEE Revision for Winter Operations and Goal 5 Compliance The applicant has submitted Exhibit 2, operating guide- lines prepared by ODFW, in support of his request to be permitted to operate during what is considered to be the "winter closure" period. The following plan policy is relevant to the applicant's proposal to operate during winter when criteria developed by ODFW are satisfied: 1124. Identified conflicts between mineral and aggregate resource sites and resources and uses in the impact area where the conflicting resources and uses have been determined to be of equal importance relative to the mineral and aggregate resource, shall be minimized by plans developed under the Goal 5 conflict resolution process and which utilize methods including, but not limited to: (a) Requiring the surface mining operator to comply with all applicable requirements of county, state and federal agencies; (b) Planning the development of lands in impact areas so as to minimize disruptions in the beneficial use of both the mineral and aggregate resource and the uses in the impact area. (c) Imposing appropriate conditions on land use permits and approvals." Staff Finding: The plan developed by ODFW was reviewed by the County Planning Commission in both a work session (July, 1995) and public hearing setting (September, 1995). The Commission recommended unanimous adoption of the plan after revisions suggested by the Commission were included in the program by ODFW. Currently this mining site is not allowed to be operated for mining activities during winter months. Material is permitted to be stockpiled at Highway 20 for hauling to Bend during the closure period. The proposed guidelines would permit any surface mining activity approved for other times of the year at this site to occur during the winter closure time of year, when certain criteria are met. The overall weather conditions in the winter range as determined by snowfall and the presence of deer in the vicinity of this particular mining site are the two criteria which will determine whether winter operations can occur. As described in Exhibit 2, snow depth will be measured at Hungary Flat near Bend and compared to the long term average snow depth. If the depth is less than 85% of the long term depth for that particular time of year PA -95-9 Page 6 0148-1667 then operations can be considered if the second criter- ia, deer presence, is satisfied. Four transects have been established near the mining site. Following ODFW protocol, if the number of deer counted along the transects is less than 20 operations would be allowed. Exhibit 2 explains these procedures in detail. The mining operator will need to request in writing that the County acknowledge winter operations can occur before operations can commence. The operator is requir- ed to demonstrate compliance with the ODFW program at the beginning and mid point of each month beginning in November and continuing through April. In the event winter conditions change rapidly and adverse impacts are foreseen if operations continue the County, at ODFW's request, can require that the operator shut down mining activities within 48 hours from the time of notifica- tion. The operating guidelines developed by ODFW are applica- ble only to a portion of the Northern•Paulina Winter deer range. The area is depicted on maps included in Exhibit 2. The guidelines will ensure protection of the conflicting use surrounding the mining site, winter deer habitat, if the properly followed. ODFW has determined that the overall management objective for the number of deer in the affected portion of the North Paulina winter range, will not be adversely affected by the proposed operating program. Other portions of the North Paulina range and other winter range areas, such as the Tumalo and Metolius winter ranges, are not included in this operating program. These other areas are smaller, have a greater degree of pressure from on going development and the pattern of future development nearby, and will continue to be fully protected by winter closure re- quirements in the site-specific ESEE analyses for mining sites located within those areas. The plan proposed by ODFW is therefore consistent with Goal 5 in fully protecting conflicting uses at different mining sites even while allowing for possible winter operations at this site. The operator will be required to comply with all requirements of the County and ODFW with respect winter time operations, as described in detail in Exhibit 2. The surrounding land is within the Surface Mining Impact Area for one half mile outside the mining site boundary. This land is managed by the Bureau of Land Management. Therefore, disruptions to the beneficial use of the mineral and aggregate resources and the uses in the impact area are expected to not change as a result of the adoption of the proposed winter operating plan. The operator will be required to comply with the Program to meet Goal 5 requirements described in the revised ESEE and site plan requirements will be included in a review PA -95-9 Page 7 3. currently being conducted by planning staff. Based on the foregoing findings, the comprehensive plan policy stated above will be met. Other Goals Staff Finding: Deschutes County addressed compliance with Land Use Goals, other than Goal 5, at the time that it adopted its surface mining inventory in 1990 (Ordi- nance No. 90-029). Those findings are general, but are appropriate for applying to the present plan amendment request. OAR 660-12-060, Plan and Land Use Regulation Amendment 660-12-060 (1) Amendments to functional plans, acknowledged comprehensive plans, and land use regulations which significantly affect a transportation facility shall assure that allowed land uses are consistent with the identified function, capacity, and level of service of the facility. This shall be accomplished by either: a. Limiting allowed land uses to be consistent with the planned function, capacity and level of service of the transportation facility; b. Amending the TSP to provide transportation facilities adequate to support the proposed land uses consistent with the requirements of this division; or C. Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (2) A plan or land use regulation amendment significantly affects a transportation facility if it: a. Changes the functional classification of an existing or planned transportation facility; b. Changes standards implementing a functional classification system; C. Allows types or levels of land uses which would result in levels of travel or access which are inconsistent with the functional classification of a transportation facility; or PA -95-9 Page 8 0148-1669 d. Would reduce the level of service of the facility below the minimum acceptable level identified in the TSP. (3) Determinations under section (1) and (2) of this rule shall be coordinated with affected transportation facility and service providers and other affected local governments. Staff Finding: The applicant's mine is the only property adjoining Highway 20 that will make significant use of the road. All other adjoining parcels are vacant at this time. The volume of traffic generated by the mining use has previously been estimated at 12 round trip truck trips per hour during maximum production, during mining operations. This application will not result in any change in the rate at which material is mined. If operations occur during the winter months it would extend the overall duration of activity but would not otherwise change the level of traffic onto Highway 20. This moderate level of traffic should not change the functional classification of the road or change standards implementing a functional classification system. The level of land use on the subject property is such that it will not result in levels of travel or access which are inconsistent with the functional classification of the facility nor will it reduce the level of service of the facility below the minimum acceptable level identified in the TSP. ODOT, the entity responsible for the roadway, was provided notice of the proposed activity, and did not comment on the application. 4. Title 22 of the County Code, Procedures Ordinance Chapter 22 of the County Code sets forth the procedures for processing applications. This application has been processed in accordance with the requirements set forth in the County Code with respect to notice, preparation of a staff report and record keeping. 5. Implementing Ordinances All comprehensive plan amendments must be adopted by the Board of County Commissioners by ordinance. Such ordinances will be prepared by the Planning Division and Legal Counsel if the Hearings Officer recommends approval of the proposed plan amendment to the Board of County Commissioners and approves the proposed plan amendment. PA -95-9 Page 9 CONCLUSION AND RECOMMENDATION: 0148-1s lU Based upon the findings above, it is recommended that the Hearing's Officer approve the applicant's request to amend the Comprehensive Plan by revising the ESEE for mining site no. 404. The ESEE revision will recognize the addition of 142,000 cubic yards of hard rock basalt on site and the opportunity to operate the site in accordance with guidelines developed by the Oregon Department of Fish and Wildlife. DBL:slr PA -95-9 Page 10