1999-991-Ordinance No. 99-019 Recorded 10/7/1999VOL: CJ1999
PAGE: 991
RECORDED DOCUMENT
STATE OF OREGON
COUNTY OF DESCHUTES
CJ1999-991 - Vol -Page Printed: 10/08/1999 14:55:24
DO NOT REMOVE THIS CERTIFICATE
(This certificate constitutes a part of the original instrument in accordance with
ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect
the admissibility of the original instrument into evidence in any legal proceeding.)
I hereby certify that the attached instrument was received
and duly recorded in Deschutes County records:
DATE AND TIME:
DOCUMENT TYPE:
Oct. 7, 1999; 10:54 a.m.
Ordinance (CJ)
NUMBER OF PAGES: 26
MARY SUE PENHOLLOW
DESCHUTES COUNTY CLERK
KE U CHED
0 81999
REVIEWED
0 FORM
GOb� E REVISW REVCOMM-
REVIEWED
f3wx-j
LEGAL COUNSEL
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending PL -20, Deschutes County * 99 OCT -7 AM 10: 54
Year 2000 Comprehensive Plan, Revising the * MARY SUE r't N N 0 L L 0 W
Mineral and Aggregate Resource Inventory for * COUNTY CLERK
E R K
Deschutes County, and Declaring an Emergency. /
C
il ���- 97
ORDINANCE NO. 99-019
WHEREAS, tax lot 700 in Section 18 of Township 21 South, Range 11 East, Willamette
Meridian (the subject site), is designated as Forest under the County's Comprehensive Plan and is zoned
as Forest Use under the County's Zoning Ordinance; and
WHEREAS, Cary Matthews has proposed a Plan Amendment to PL -20, File No. PA -98-11, to
add the subject property to the County inventory of significant mineral and aggregate resources; and
WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with
applicable law, has recommended denial of the proposed Plan Amendment; and
WHEREAS, after notice was given and hearing conducted on June 3, 1999 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. AMENDMENT. PL -20, the Deschutes County Year 2000 Comprehensive Plan, is
amended to add tax lot 700 in Section 18 of Township 21 South, Range 1 I East, Willamette Meridian, as
Site No. 601 to the County inventory of significant mineral and aggregate resources as set forth in
Exhibit "A," attached hereto and incorporated herein by this reference. The effect of adopting Exhibit
"A" is to amend the County Goal 5 inventory of mineral and aggregate sites adopted as Exhibit "G" to
Ordinance No. 9.0-025, as previously amended, to describe the location, quantity and quality of the
resource at Site No. 601.
Section 2. FINDINGS. The Board adopts the Decision of Deschutes County Board of
Commissioners, attached hereto as Exhibit "B," and incorporated herein by reference, and the findings
set forth in Ordinance 90-025 in support of its decision in Section 1 above.
PAGE 1 OF 2 - ORDINANCE NO. 99-019 (9/29/99)
Section 3. 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 Af day of September, 1999.
i
Mu;&Ad-i,
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 99-019 (9/29/99)
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EXHIBIT "B"
DECISION OF DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBERS:
APPLICANT:
PROPERTY OWNER:
PA-98-11/ZC-98-5
La Pine Redi Mix, Inc.
P.O. Box 632
La Pine, Oregon 97739
Troy Matthews
P.O. Box 532
La Pine, Oregon 97739
ATTORNEY: Robert S. Lovlien
Bryant Lovlien & Jarvis
P.O. Box 1151
Bend, Oregon 97709
REQUEST: The applicant is requesting approval of a plan amendment and
zone change from Forest Use (F-1) to Surface Mining (SM) in
order to include in the county's inventory of significant mineral
and aggregate resources a 20 -acre parcel located north of LaPine,
one-half mile south of the intersection of U.S. Highway 97 and the
LaPine State Recreation Road and one-quarter mile east of the
highway.
STAFF REVIEWER: Barbara J. Rich, Associate Planner
HEARING DATES: February 16 and March 16, 1999
RECORD CLOSED: March 30, 1999
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.04, Title, Purpose and Definitions
* Section 18.04.395, Definition - Exploration (for minerals)
2. Chapter 18.36, Forest (F-1) Zone
* Section 18.36.020, Uses permitted outright
3. Chapter 18.52, Surface Mining Zone — SM
* Section 18.52.030, Uses Permitted Outright
4. Chapter 18.136, Amendments
* Section 18.136.020, Rezoning Standards
B. Title. 22 of the Deschutes County Code, the Development Procedures Ordinance
La Pine Redi Mix, Inc. Exhibit "B"
PA-98-11/ZC-98-5 Page —t_ of 40
Page 1 Ordinance gq-pIq
1. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances or record extensions
C. The Deschutes County Year 2000 Comprehensive Plan, Surface Mining Element
D. Oregon Administrative Rules, Chapter 660
* Division 12, Transportation Planning
* Division 15, Statewide Planning Goals and Guidelines
* Division 23, Procedures and Requirements for Complying with Goal 5
II. FINDINGS OF FACT:
A. Location: The subject property does not have an assigned address. It is located north of
La Pine, approximately one-half mile south of the intersection of U.S. Highway 97 and
La Pine State Recreation Road and approximately one-quarter mile east of the highway.
The property is further identified as Tax Lot 700 on Assessor's Map #21-11.
B. Zoning and Plan Designation: The subject property is zoned Forest Use (F-1) and is
designated Forest on the comprehensive plan map. The property also is located in three
combining zones: Wildlife Area (WA), Landscape Management (LM) and Surface
Mining Impact Area (SMIA).
C. Site Description: The subject property is 20 acres in size, is level, has been cleared of
vegetation and has no structures. A gravel road crosses the subject property to serve
properties to the south, including the adjacent existing surface mining Sites 426 and 427
included in the county's inventory of significant mineral and aggregate resource sites.
D. Surrounding Zoning and Land Uses: The subject property is surrounded on the north,
east and west by lands zoned F-1 and owned and managed by the United States
Department of Agriculture, Forest Service (hereafter "USFS'). There are three privately -
owned parcels to the south. One is zoned F-1. The other two parcels are SM Sites 426
and 427. Site 426 is owned by La Pine Redi Mix and currently is being mined. Site 427 is
owned by William Bagley, is currently being mined and is developed with an on-site
caretaker's residence. The record indicates the material being mined on Sites 426 and
427 is the same material that is on the subject property.
E. Procedural History: The subject application was submitted on December 11, 1998, and
was accepted by the county as complete on January 8, 1999. Under ORS 215.428(6) plan
amendments are not subject to the 150 -day time period for issuance of a final local land
use decision. Oregon Administrative Rules (OAR) 660, Division 23, establishes
standards and procedures for complying with Goal 5. OAR 660-023-0180 addresses
mineral and aggregate resource sites in particular. OAR 660-023-0180(4) provides that
local government post -acknowledgment plan amendment decisions concerning aggregate
sites must be issued within 180 days of the date the application is accepted as complete.
Therefore, this application is subject to a 180 -day period which would expire on July 6,
1999.
La Pine Redi Mix, Inc.
PA-98-11/ZC-98-5 Exhibit
Page 2 Page � of . 4
Ordinance 99-01
The initial public hearing on the application was held on February 16, 1999. The hearing
was continued at the applicant's request to March 16, 1999. Therefore, under Section
22.24.140(E) the 180 -day period was tolled for the 30 days of the continuance and the
180 -day period now expires on August 4, 1999. At the continued hearing, the Hearings
Officer received testimony and evidence, left the written record open to March 23, 1999,
allowed staff through March 30, 1999, to submit written comments. The record closed on
March 30, 1999.
The Hearings Officer issued her Decision dated April 30, 1999 and mailed May 3, 1999
denying the applicant's proposed plan amendment and zone change from F1 to SM. On
May 6, 1999, pursuant to D.C.C. 22.28.050, the Board of County Commissioners called
up for review the Hearings Officer's Decision. A de novo hearing was held on June 3,
1999 at 9:00 a.m.
F. Proposal: The applicant is requesting approval of a plan amendment and zone change
from F-1 to SM in order to include the subject property on the county's inventory of
significant mineral and aggregate resource sites so that it may be mined.
G. Public/Private Agency Comments: The Planning Division sent written notice of the
applicant's proposal to a number of public and private agencies. The record includes
comments on the proposal from: the Deschutes County Road Department (hereafter
"road department'), Property Address Coordinator and Sheriffs Office; the Oregon
Department of Water Resources, Watermaster-District 11; the Oregon Department of
Geology and Mineral Industries ("DOGAMI"); the Oregon Department of Transportation
("ODOT'); the Oregon Department of Fish and Wildlife ("ODFW ); the Oregon State
Police ("OSP'); the Oregon Department of Land Conservation and Development
("DLCD'); and the USFS. These comments are included in the record and are addressed
in the findings below.
H. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicant's proposal to the owners of record of all property located within 2,640
feet of the subject property. In addition, notice of the public hearing was published in the
"Bend Bulletin" newspaper and the subject property was posted with a notice of
proposed land use action sign. As of the date the record closed, the county had received
no letters in response to these notices. The only person testifying at the public hearings
was the applicant's attorney.'
III. CONCLUSIONS OF LAW:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.36, Forest Use Zone (F-1)
a. Section 18.36.020, Uses permitted outright.
The following uses and their accessory uses are permitted outright,
subject to applicable siting criteria set forth in this chapter and any
other applicable provisions of this title.
',The application includes a November 5,1998, letter from the Cascade Meadows RV Resort stating
it has no objection to the applicant's proposal. This letter constitutes the only public comment on
the proposal.
La Pine Redi Mix, Inc. .,
PA-98-11/ZC-98-5 Exhibit $
Page 3 Page of ZO
Ordinance a1'0jq
H. Exploration for mineral and aggregate resources as defined in
Oregon Revised Statutes chapter 517.
FINDINGS: The applicant has requested approval of a plan amendment and zone change for the
subject property from F-1 to SM in order to include the property on the county's inventory of
significant mineral and aggregate resource sites so, that it may be mined in conjunction with the
contiguous SM Site 426 in the same ownership. The only surface mining activity permitted in
the F-1 Zone is "exploration," defined in Section 18.04.395 as activities conducted to determine
the presence, location and quality of a resource but excluding prospecting, processing or off -
premises sales or use. Thus, the applicant's proposed mining of the subject property is not
permitted in the F-1 Zone, necessitating the requested plan amendment and zone change to SM.
2. Chapter 18.136, Amendments
a. Section 18.136.020, Rezoning standards.
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by rezoning the property. Factors to be
demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and
the change is consistent with the Plan's introductory statement
and goals.
FINDINGS: The Board finds the following goals and policies in the surface mining element of
comprehensive plan are relevant to this application:
Surface Mining Goals and Policies (pages 150-155)
GOAL: To protect and utilize appropriately, within the framework
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.
FINDINGS: The applicant proposes to protect the mineral and aggregate resource on the subject
property by obtaining a plan amendment and zone change to include the subject property on the
inventory of significant mineral and aggregate resource sites, rezoning the property to SM and
preparing and obtaining approval of a surface mining site plan. In addition, if the subject
property is zoned SM, a SMIA Zone would be placed on property within one-half mile of the
SM Zone boundary to minimize impacts from mining on the property. Therefore, the Board
finds the application is consistent with this goal.
Surface Mining Identification and Designation (page 151)
6. Land use decisions of the County shall be based upon balanced consideration
of the location, availability and value of mineral and aggregate resources,
and conflicting resources and uses as designated in the Comprehensive Plan.
La Pine Redi Mix, Inc. -,, g r
PA-98-11/ZC-98-5 Exhibit
Page 4 Page of ZO
Ordinance 9q -01q
FINDINGS: The Board finds the applicant's proposal is consistent with this plan policy because
the applicant is requesting approval of a plan amendment and zone change to include the subject
property in the county's inventory of significant mineral and aggregate resources through the
Goal 5 process which includes consideration of the factors listed in this policy.
8. Sufficient SM (Surface Mining) zoning shall be maintained by the County to
satisfy, at a minimum, the demand for mineral and aggregate resources of
the County as reflected by the data contained in the comprehensive plan.
The County shall not deny SM zoning for any mineral and aggregate
resource site for the sole reason that the demand of the County for that
resource has been satisfied by the SM zoning of other sites.
FINDINGS: The Board finds the applicant's proposal is consistent with this plan policy because
the applicant proposes a plan amendment and zone change that would include the subject
property in the county's inventory of significant mineral and aggregate resources in order to
meet a demand for the resource found on the property.
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 resolution (ESEE) process
results in a determination that the resource is of sufficient importance
relative to conflicting resources and uses, if any, to require protection.
FINDINGS: The Board finds the applicant's proposal is consistent with this plan policy because
the applicant proposes a plan amendment and zone change to include the subject property in the
inventory of significant mineral and aggregate resources based upon information concerning the
location, type, quantity and quality of the resource, discussed in detail in the findings below. As
also discussed below, a conflicting resource has been identified, but we have concluded no Goal
5 ESEE analysis is required for the subject property to resolve that conflict.
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.
FINDINGS: The Board finds the applicant's proposal is consistent with this plan policy because
the applicant proposes a plan amendment and zone change to include the subject property in the
county's inventory of significant mineral and aggregate resources and to rezone it to SM to allow
it to be mined. As discussed in detail in the findings below, the applicant's proposal has been
evaluated pursuant to the applicable Goal 5 administrative rules.
Forest Lands (page 136)
GOAL: To conserve forest lands for forest uses.
FINDINGS: The Board finds the applicant's proposal is consistent with this goal because forest
uses are permitted outright in the SM Zone under Section 18.52.030(B). Although the subject
La Pine Recti Mix, Inc. bn
PA-98-11/ZC-98-5 Exhibit
Page 5 Page $ -p
Ordinance '99-011
property has been cleared of all timber, the property nevertheless can be replanted following
reclamation of any mine site and forest use can be the subsequent use on the property.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: Section 18.52.010 sets forth the purposes of the SM Zone as follows:
A. To implement the goals and policies of the Comprehensive Plan;
B. To allow the development and use of identified deposits of mineral and
aggregate resources consistent with Statewide Planning Goal 5;
C. To protect the health and safety of the public and of residents of property
adjoining surface mines, and the value of uses and natural resources
Identified in the Comprehensive Plan as conflicting with surface mines,
subject to Goal 5;
D. To provide that all land and water resources affected by surface mining
operations within the county receive the protection and reclamation
necessary for their intended subsequent use; and
E. To provide for cooperation between private parties and governmental
entities in order to carry out the purposes of this title, the Comprehensive
Plan and state and federal regulations.
The Board finds the applicant's proposal is consistent with this purpose statement because the
proposed plan amendment and zone change to include the subject property on the county's
inventory of significant mineral and aggregate resources would protect the resource on the
subject property and allow it to be mined if mining is allowed following conflicting use and
ESEE analyses conducted pursuant to Goal 5 and its administrative rules. As discussed in the
findings below, a conflicting resource has been identified but I have concluded no Goal 5 ESEE
analysis is required for the subject property to resolve that conflict.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
1. The availability and efficiency of providing necessary
public services and facilities.
2. The impacts on surrounding land use will be consistent
with the specific goals and policies contained within the
Comprehensive Plan.
FINDINGS: The Board finds the applicant's proposal is or can be consistent with this policy. As
discussed in detail in the findings below, the proposed plan amendment and zone change will not
have an impact on the availability and efficiency of providing necessary public services and
facilities. In addition, a conflicting resource has been identified but we have found no Goal 5
ESEE is required for the subject property to resolve that conflict. Finally, if mining is approved
on the subject property impacts from mining on surrounding land uses will also be addressed
through surface mining site plan approval.
La Pine Redi Mix, Inc. �'Ii
PA-98-11/ZC-98-5 Exhibit '�
Page 6 Page �� of 2°
Ordinance q9-oiq
D. That there has been a change in circumstances since the
property was last zoned, or a mistake was made in the zoning
of the property in question.
FINDINGS: The Board finds this policy requires the applicant to prove either that the existing
zoning of the property was a mistake or that there has been a change in circumstances since the
original zoning justifying the proposed rezoning. .
1. Chane in Circumstances. The applicant argues there has been a change in circumstances
since the subject property was zoned F-1 consisting of the applicant's obtaining a geotechnical
report detailing the quantity and quality of the mineral and aggregate resource material on the
subject property and demonstrating the resource is sufficiently significant to justify its inclusion
in the county's inventory of significant mineral and aggregate resource sites. The Board concurs
that the applicant has supplied detailed information concerning the location, quantity and quality
of the resource on the site -- information that apparently was not available when the subject
property was zoned F-1.
For the foregoing reasons, the Board finds the applicant has met his burden of proving the
proposed plan amendment and zone change satisfy the criteria in Section 18.136.020.
B. Oregon Administrative Rules
1. OAR 660, Division 23, Procedures and Requirements for Complying With
Goal 5
FINDINGS: In 1996, the Land Conservation and Development Commission (LCDC) adopted
new Goal 5 administrative rules. The new rules are found in OAR 660, Division 23 and replace
the rules found in OAR 660, Division 16. OAR 660-023-0250 describes the applicability of the
new rules in pertinent part as follows:
(1) This division replaces OAR 660, division 16, except with regard to cultural
resources, and certain PAPAs [post -acknowledgment plan amendments] and
periodic review work tasks described in sections (2) and (4) of this rule. Local
governments shall follow the procedures and requirements of this division or
OAR 660, Division 16, whichever is applicable, in the adoption or
amendment of all plan or land use regulations pertaining to Goal 5
resources. The requirements of Goal 5 do not apply to land use decisions
made pursuant to acknowledged comprehensive plans and land use
regulations.
(2) The requirements of this division are applicable to PAPAS initiated on or
after September 1, 1996. OAR 660, Division 16 applies to PAPAS initiated
prior to September 1, 1996. For purposes of this section "initiated" means
that the local government has deemed the PAPA application to be complete.
(3) Local governments are not required to apply Goal 5 in consideration of a
PAPA unless the PAPA affects a Goal 5 resource. For purposes of this
section, a PAPA would affect a Goal 5 resource only M.
(a) The PAPA creates or amends a resource list or a portion of an
acknowledged plan or land use regulation adopted In order to protect
La Pine Redi Mix, Inc. Exhibit "W'
PA-98-1I/ZC-98-5 Page } of
Page 7 Ordinance qq'°I9
a significant Goal 5 resource or to address specific requirements of
Goal 5; ...
The subject plan amendment and zone change application is a "PAPA" which would amend the
comprehensive plan to add the subject property to the county's inventory of significant mineral
and aggregate resource sites. As discussed above, the application was accepted as complete on
January 8, 1999. Therefore, the Board finds the new Goal 5 administrative rules in OAR 660,
Division 23 apply to this application.
The new administrative rules establish standards and procedures for identifying and protecting
Goal 5 resources. OAR 660-023-0180 addresses mineral and aggregate resources in particular.
Subsection (2) of the section describes the procedures and standards for inventorying mineral
and aggregate resources and Subsection (3) establishes standards for determining if a site is
"significant." Subsection (7) describes the applicability of the new rules to PAPAS as follows:
Local governments shall amend the comprehensive plan and land use regulations to
include procedures and requirements consistent with this rule for the consideration
of PAPAs concerning aggregate resources. Until such local regulations are adopted,
the procedures and requirements of this rule shall be directly applied to local
government consideration of a PAPA concerning mining authorization, unless the
local plan contains specific criteria regarding the consideration of a PAPA
proposing to add a site to the list of significant aggregate sites, provided:
(a) Such regulations were acknowledged subsequent to 1989; and
(b) Such regulations shall be amended to conform to the requirements of this
rule at the next scheduled periodic review, except as provided under OAR
660-023-0250(7).
The record indicates the county has not amended its plan or land use regulations to incorporate
the new Goal 5 rules. Therefore, the Board finds the new rules directly apply to the subject
application.
OAR 660-023-0030(1) requires the county to adopt an inventory of significant resource sites for
each Goal 5 resource and provides that for a quasi-judicial PAPA for a particular site "a local
government may rely on information submitted by the applicant." The rule requires the county to
determine the significance of the site based upon the information submitted on the site's quality,
quantity and location, and provides in pertinent part:
When a local government determines that a particular resource site is significant,
the local government shall include the site on a list of significant Goal 5 resources
adopted as part of the comprehensive plan or land use regulation. Local
governments shall complete the Goal 5 process for all sites included on the resource
list... Local governments may determine that a particular resource site is not
significant, provided they maintain a record of that determination. Local
governments shall not proceed with the Goal 5 process for such sites and shall not
regulate land uses in order to protect such sites under Goal 5.
OAR 660-023-0180(3)(a) establishes the standards for determining whether a mineral and
aggregate resource site is "significant" for purposes of including it in the inventory and provides
in pertinent part:
�� n
LA -9n Recti Mix,
i SInc Exhibit �'
Page
Page 8 �-- of
Ordinance 91-01q
(3) An aggregate resource shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource
demonstrates that the site meets any one of the criteria in subsections (a)
through (c) of this section, .. :
(a) A representative set of samples of aggregate material in the deposit on
the site meets Oregon, Department of Transportation (ODOT)
specifications for base rock for air degradation, abrasion, and sodium
sulfate soundness, and the estimated amount of material is more than
2,000,000 tons in the Willamette Valley, or 100,000 tons outside the
Willamette Valley;
(b) The material meets local government standards establishing a lower
threshold for significance than subsection (a) of this section; or
(c) The aggregate site is on an inventory of significant aggregate sites in
an acknowledged plan on the applicable date of this rule.
Thus, the subject property may be found to be a "significant" resource site if it satisfies any one
of these criteria.
1. Paragraph (a). This paragraph deems "significant" those mineral and aggregate sites that
contain at least 100,000 tons of material meeting ODOT specifications for road construction
base rock. The applicant concedes that the resource on the subject property does not meet the
standards.
2. Paragraph (c). The subject property is not on the County's inventory of significant mineral
and aggregate resource sites and therefore does not qualify as "significant" under this criterion.
3. Paragraph 02). The applicant submitted a geotechnical report prepared by Century West
Engineering that concludes that the resource on the property includes approximately 479,000
cubic yards of material, based on the limits of the equipment to dig holes, consisting of the
following:
a. 5.5 to 13 feet of light to medium brown sand with pumice suitable for "general fill
material"; and
b. Black sand and gravel from 13 feet to at least 25 feet in depth, suitable for "DEQ filter
sand, DEQ pea gravel, and PCC -IE (Portland Concrete Cement) concrete".
There is a letter in the record from Brent Lake, Field Representative for DLCD, which addresses
the issue of OAR 660-023-0180(3)(a). That letter reads as follows:
"It has come to my attention that there is some confusion regarding the department's
administrative rule regarding mineral and aggregate resources. OAR 660-023-
0180(3)(a), which includes the criteria for determining whether an aggregate site is
"significant" under Goal 5, describes specifications for base rock. However, these
specifications cannot be used for other mineral resources such as sand. This was most
likely an oversight when the rule was adopted, because it was not the department's
intention to not allow for the mining of other tykes of resources. In fact, sand is
specifically included in the definition of "aggregate" in OAR 660-023-0180(1)(a).
La Pine Redi Mix, Inc. %1-54/
PA-98-11/ZC-98-5 Exhibit
Page 9 Page of 20
Ordinance 99-01
Under OAR 660-023-0180(3)(b), we believe that there are two ways Deschutes County
can provide for determining the significance of mineral and aggregate resources other
than hard rock. The first is for the County to make findings for a specific site that the
ODOT standards apply. The other way is for Deschutes County to adopt an ordinance
adopting the appropriate ODOT standards. I am attaching the current ODOT standards
for your information. As long as these standards are clear and objective and are applied
consistently to similar sites, the department will support this action."
As indicated, that letter was accompanied by ODOT's standards for PCC aggregate. Dave
Kirkland, a Century West Engineering Technician, testified that the material on the subject site
does meet the ODOT tests for PCC aggregate, as those standards appear in the record.
The Board specifically finds that aggregate material which meets the standards required for PCC
aggregate, as those standards have been adopted by ODOT, is a significant resource under the
standards set forth in OAR 660-023-0180(3)(b).
In addition, Dave Kirkland of Century West Engineering further testified that the material on the
subject property meets standards for Department of Environmental Quality filter sand and pea
gravel, used primarily in conjunction with sand filters. The record supports the conclusion that
the material from the subject property does meet appropriate DEQ standards for filter sand and
pea gravel, as evidenced by the SIEVE Analysis that is part of the record, and as identified by
Dave Kirkland.
The Board specifically finds that these DEQ requirements for filter sand and pea gravel for use
with sand filters does establish that the resource is a significant resource under the requirements
of OAR 660-023.0180(3)(b).
The Board specifically adopts, by reference, the ODOT standards for PCC aggregate and the
DEQ standards for filter sand and pea gravel and finds that materials that meet those standards
are a significant resource. The record clearly establishes that there is adequate quantity and
quality of the resource on the subject property. The location of the property is also significant
since the primary area of utilization for the DEQ filter sand and pea gravel is in southern
Deschutes County for use in sand filter systems. The resource is also significant in that this is
the only site where DEQ filter sand and pea gravel is available within Deschutes County.
The Board finds that the adoption of these standards by the County by reference is appropriate
under OAR 660-023-0180(3)(b). The rule clearly contemplates that a lower threshhold for
significance can be adopted, other than the ODOT standard for highway base rock. This
material is significant in Deschutes County for use in PCC and is significant for its use in the
construction and operation of DEQ -approved sand filter systems. .
OAR 660-023-0180(4) provides:
(4) For significant mineral and aggregate sites, local governments shall decide
whether mining is permitted. For a PAPA application involving a significant
aggregate site, the process for this decision is set out in subsections (a)
through (g) of this section. For a PAPA involving a significant aggregate site,
a local government must complete the process within 180 days after receipt
of a complete application that is consistent with section (6) of this rale. The
process for reaching decisions about aggregate mining Is as follows:
La Pine Redi Mix, Inc.
Exhibit
PA-98-11/ZC-98-5
Page 10 10 2DPage of
Ordinance
29-oi9
(a) The local government shall determine an impact area for the purpose
of identifying conflicts with proposed mining and processing
activities. The impact area shall be large enough to include uses listed
in subsection (b) of this section and shall be limited to 1,500 feet from
the boundaries of the mining area, except where factual information
indicates significant potential conflicts beyond this distance. For a
proposed expansion of an existing aggregate site, the impact area shall
be measured from the perimeter of the proposed expansion area
rather than the boundaries of the existing aggregate site and shall not
Include the existing aggregate site.
FINDINGS: Chapter 18.56 establishes the SMIA Zone in order to identify the impact area
around surface mines. Section 18.56.020 provides the SMIA Zone applies to all property within
one-half mile of the boundary of a surface mining zone. However, this area is in conflict with the
provisions of OAR 660-023-0030(4)(a) establishing a maximum impact area measured 1,500
feet from the surface mine boundaries in the absence of site-specific evidence that a larger
impact area is required. The Board finds there is no evidence in the record that "significant
potential conflicts" exist beyond 1,500 feet from the boundaries of the subject property. In fact,
the record indicates the subject property is surrounded by lands managed for forest uses and two
operating surface mines, and the nearest noise- or dust -sensitive uses -- i.e., dwellings -- to the
subject property are located at least one mile from the property in the Cascade Meadows RV
Resort.
(b) The local government shall determine existing or approved land uses
within the impact area that will be adversely affected by proposed
mining operations and shall specify the predicted conflicts. For
purposes of this section, "approved land uses" are dwellings allowed
by a residential zone on existing platted lots and other uses for which
conditional or final approvals have been granted by the local
government. For determination of conflicts from proposed mining of
a significant aggregate site, the local government shall limit its
consideration to the following:
(A) Conflicts due to noise, dust, or other discharges with regard to
those existing and approved uses and associated activities (e.g.,
houses and schools) that are sensitive to such discharges;
FINDINGS: The record indicates the surrounding properties within the 1,500 -foot impact area
are zoned F-1 and SM. Both zones permit outright or conditionally a variety of land uses,
including dwellings. The SM Zone permits outright a caretaker residence. The F-1 Zone permits
single-family dwellings. As discussed above, the record indicates there is a caretaker's residence
on one of the adjacent SM -zoned parcels.
For purposes of the SM and SMIA Zones, Sections 18.04.330 and 18.04.775 define dust -and -
noise -sensitive uses, respectively, as follows:
La Pine Redi Mix, Inc. Exhibit bl'
PA-98-11/ZC-98-5
Page 11 Page _.1� Of �
Ordinance 99-01q
"Dust -sensitive use" means real property normally used as a residence, school,
church, hospital or similar use. Property used in industrial or agricultural activities
is not "dust -sensitive" unless it meets the above criteria in more than an incidental
manner. Accessory uses such as garages and workshops do not constitute
dust -sensitive uses.
"Noise -sensitive use" means real property normally used for sleeping or normally
used as schools, churches, hospitals or public libraries. Property used in industrial
or agricultural activities is not "noise -sensitive" unless it meets the above criteria in
more than an incidental manner. Accessory uses such as garages or workshops do
not constitute noise -sensitive uses.
The Staff Report states, and the Board concurs, that the only dust- or noise -sensitive uses
permitted in the adjacent SM and F-1 Zones are dwellings. We also concur with staff that the
existing caretaker's residence should not be considered a noise- or dust -sensitive use because by
definition such residences are connected with and located close to a mining operation and
therefore presumably will not cause conflicts with the mining operation.
(B) Potential conflicts to local roads used for access and egress to
the mining site within one mile of the entrance to the mining
site unless a greater distance is necessary in order to include
the intersection with the nearest arterial identified in the local
transportation plan. Conflicts shall be determined based on
clear and objective standards regarding sight distances, road
capacity, cross section elements, horizontal and vertical
alignment, and similar items in the transportation plan and
implementing ordinances. Such standards for trucks associated
with the mining operation shall be equivalent to standards for
other trucks of equivalent size, weight, and capacity that haul
other materials;
FINDINGS: The applicant proposes to mine the subject property in conjunction with SM Site
426 and proposes to use the same access road to the subject property as currently is being used
for access to Sites 426 and 427. The record indicates the applicant has a current USFS road use
permit that will allow access to the subject property as well as to the adjacent mines. Comments
in the record from the road department, ODOT and OSP indicate no anticipated problems from
continuing surface mining truck traffic on the USFS access road, La Pine State Recreation Road
or its intersection with Highway 97.
(D) Conflicts with other Goal 5 resource sites within the impact
area that are shown on an acknowledged list of significant
resources and for which the requirements of Goal 5 have been
completed at the time the PAPA is initiated;
La Pine Redi Mix, Inc. %%,b„
PA-98-11/ZC-98-5 Exhibit - -
Page 12 Page —12 -- of
Ordinance 99-019
FINDINGS: The record indicates the subject property lies within a mule deer migration route
designated on the acknowledged comprehensive plan. The subject property is included in a WA
Zone to protect this resource. The record includes a February 16, 1999, letter from Steven
George of ODFW expressing no concerns with the applicant's proposal as long as any approval
of surface mining on the property is subject to the same conditions described in an August 10,
1989, letter from ODFW and imposed on the adjacent SM Sites 426 and 427. The record
includes a copy of the August 10, 1989, letter which recommends conditions of approval
including no blasting or crushing between December 1 and April 30, security closure of the site
when it is not being operated, and a reclamation plan including reseeding with specific plant
materials that would improve big game habitat.
(E) Conflicts with agricultural practices;
FINDINGS: Farm uses are permitted in both the adjacent F-1 and SM Zones. However, the
record indicates there are no farms uses currently occurring on adjacent parcels. As discussed
above, farm use is not considered a noise- or dust -sensitive use.
(F) Other conflicts for which consideration is necessary in order to
carry out ordinances that supersede Oregon Department of
Geology and Mineral Industries (DOGAMI) regulations
pursuant to ORS 517.780;
FINDINGS: The Board finds this factor is not applicable since the record indicates the county
does not have any code language that supersedes DOGAhII regulations.
(c) The local government shall determine reasonable and practicable
measures that would minimize the conflicts identified under
subsection (b) of this section. To determine whether proposed
measures would minimize conflicts to agricultural practices, the
requirements of ORS 215.296 shall be followed rather than the
requirements of this section. If reasonable and practicable measures
are identified to minimize all identified conflicts, mining shall be
allowed at the site and subsection (d) of this section is not applicable.
If identified conflicts cannot be minimized, subsection (d) of this
section applies.
FINDINGS: As discussed above, the only identified conflicting use or resource in the impact
area is the designated deer migration corridor. Based upon ODFW's comments in the record,
discussed above, the Board finds imposition of the same conditions on surface mining the
subject property as were imposed on adjacent SM Sites 426 and 427 constitutes "reasonable and
practical measures" to minimize conflicts under this paragraph. These measures include winter
activity restrictions, security closure of the site when not operating and reclamation by reseeding
with plant materials improving big game habitat.
La Pine Redi Mix, Inc. .X �
PA-98-11/ZC-98-5 Exhibit
Page 13 Page t3 of 2O
Ordinance 99-019
(d) The local government shall determine any significant conflicts
identified under the requirements of subsection (c) of this section that
cannot be minimized. Based on these conflicts only, local government
shall determine the ESEE consequences of either allowing, limiting, or
not allowing mining at the site. Local governments shall reach this
decision by weighing these. ESEE consequences, with consideration of
the following:
FINDINGS: As discussed above, the Board has found the only conflicting use or resource
within the impact area is the designated deer migration corridor, and ODFW's comments
indicate imposition of the same conditions of approval on surface mining the subject site as were
imposed on adjacent SM Sites 426 and 427 will be sufficient to minimize conflicts with surface
mining on the subject property. Therefore, we find it is not necessary to undertake an ESEE
analysis for the subject property under this paragraph.
(e) Where mining is allowed, the plan and implementing ordinances shall
be amended to allow such mining. Any required measures to minimize
conflicts, including special conditions and procedures regulating
mining, shall be clear and objective. Additional land use review (e.g.,
site plan review), if required by the local government, shall not exceed
the minimum review necessary to assure compliance with these
requirements and shall not provide opportunities to deny mining for
reasons unrelated to these requirements, or to attach additional
approval requirements, except with regard to mining or processing
activities:
FINDINGS: The Board will need to adopt ordinances amending the comprehensive plan, and
the applicant will be required to obtain approval of a surface mining site plan pursuant to
Chapter 18.52.
(f) Where mining is allowed, the local government shall determine the
post -mining use and provide for this use in the comprehensive plan
and land use regulations. For significant aggregate sites on Class I, H
and Unique farmland, local governments shall adopt plan and land
use regulations to limit post -mining use to farm uses under ORS
215.203, uses listed under ORS 215.213(1) or 215.283(1), and fish and
wildlife habitat uses, including wetland mitigation banking. Local
governments shall coordinate with DOGA H regarding the regulation
and reclamation of mineral and aggregate sites, except where exempt
under ORS 517.780.
FINDINGS: The applicant has specifically identified the appropriate post -mining use of the
subject property. The applicant states the property will be revegetated during reclamation.
La Pine Redi Mix, Inc. Exhibit "81'
PA-98-11/ZC-98-5
of
Page 14- Page .�1�..— z°
Ordinance �-O� --
(g) Local governments shall allow a currently approved aggregate
processing operation at an existing site to process material from a new
or expansion site without requiring a reauthorization of the existing
processing operation unless limits on such processing were established
at the time it was approved by the local government.
FINDINGS: The record indicates the existing surface mine on SM Site 426 is allowed to
process material. Therefore, the Board finds processing of material from the subject property can
take place on Site 426.
(5) Local governments shall follow the standard ESEE process in OAR 660-023-
0040 and 660-023-0050 to determine whether to allow, limit, or prevent new
conflicting uses within the impact area of a significant mineral and aggregate
site. (This requirement does not apply if, under section (4) of this rule, the
local government decides that mining will not be authorized at the site.)
FINDINGS: As discussed above, the Board has found the only identified conflict with surface
mining on the subject property is the designated deer migration corridor, and comments in the
record from ODFW indicate these conflicts can be minimized with imposition of the same
conditions of approval on surface mining the subject property as were imposed on adjacent SM
Sites 426 and 427. Therefore, we find no ESEE analysis is required.
(6) In order to determine whether information in a PAPA submittal concerning
an aggregate site is adequate, local government shall follow the requirements
of this section rather than OAR 660-23-030(3). An application for a PAPA
concerning a significant aggregate site shall be adequate if it includes:
(a) Information regarding quantity, quality, and location sufficient to
determine whether the standards and conditions in section (3) of this
rule are satisfied;
FINDINGS: The applicant submitted a geotechnical report and additional evidence indicating
the location, quantity and quality of the mineral and aggregate material on the subject property.
The Board finds the information submitted by the applicant is sufficient to demonstrate the
resource on the subject property meets the significance standards in OAR 660-023-0180(3).
(b) A conceptual site reclamation plan (NOTE: Final approval of
reclamation plans resides with DOGAM rather than local
governments, except as provided in ORS 517.780);
FINDINGS: The applicant submitted a written DOGAMI site reclamation plan with the
application.
(c) A traffic impact assessment within one mile of the entrance to the
mining area pursuant to section 4(b)(B) of this rule;
La Pine Red Mix, Inc. Exhibit k1bn - --
PA-98-11/ZC 98-5
Page 15 Page_ d
Ordinance gq-D�9
FINDINGS: The applicant did not submit a formal traffic impact assessment. The applicant
argues mining the subject property will not increase existing traffic on the access road because
the subject property will be mined when the material on the adjacent Site 426 is depleted. In
other words, the existing truck traffic generated by the applicant's existing surface mine will
simply shift from Site 426 to the subject property with no additional truck trips. Comments from
ODOT and the road department in the record express no concerns with the traffic impacts from
this site. In addition, the applicant submitted evidence from OSP that there have been few
accidents at the intersection of La Pine State Recreation Road and Highway 97 and that none
involved a "commercial" vehicle. The applicant also submitted a letter from Wes Gronemyer, a
retired state transportation specialist and weighmaster, stating his opinion that the sight distance
at the La Pine State Recreation Road/Highway 97 intersection is "excellent."
(d) Proposals to minimize any conflicts with existing uses preliminarily
Identified by the applicant within a 1,500 foot impact area; and,
FINDINGS: The applicant proposes to minimize potential conflicts between mining on the
subject property and the designated deer migration corridor by implementing the ODFW
conditions imposed on adjacent SM Sites 426 and 427.
(e) A site plan indicating the location, hours of operation, and other
pertinent information for all proposed mining and associated uses.
FINDINGS: The applicant was not required to, and did not submit, a surface mining. site plan
with the subject application. The applicant will be required to obtain surface mining site plan
approval before mining the site.
2. OAR 660, Division 12, Transportation Planning Rule
a. OAR 660-012-060, Plan and Land Use Regulation Amendments.
(1) Amendments to functional plan, 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.
La Pine Redi Mix, Inc. it gn
PA-98-11/ZC-98-5 Exhibit
Page 16 Page Of, 20
Ordinance 9? -019
(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
(d) Would reduce the level of service of the facility below
the minimum acceptable level identified in the TSP.
FINDINGS: The Board finds this rule is applicable to the applicant's proposal because it
involves an amendment to an acknowledged plan. As discussed above, the evidence in the record
indicates traffic impacts from mining the subject property will not exceed existing impacts from
mining on the adjacent SM Site 426 in the same ownership, and will not exceed the capacity of
the access road, La Pine State Recreation Road or its intersection with Highway 97. Therefore,
we find the applicant's proposal will not "significantly affect" a transportation facility.
2. OAR 660, Division 15, Statewide Planning Goals and Guidelines
FINDINGS: The Board makes the following findings. concerning the proposal's compliance
with the applicable statewide land use planning goals:
Goal 1, Citizen Involvement. The Board finds this goal is met because the county provided
notice of proposed plan amendment and zone change to the public through individual notice to
affected property owners, posting of the subject property with a notice of proposed land use
action sign, and notice of the public hearing in the `Bend Bulletin" newspaper. In addition, a
public hearing was held on the proposed plan amendment before the Board. The Board's
decision and the staff report provide the public with information concerning the proposed plan
amendment.
Goal 2, Land Use Planning. The Board findsthis goal is met because at least one public
hearing has been held on the proposed plan amendment and zone change.
Goal 3, Agricultural Lands. The Board finds this goal is not applicable because the subject
property is not zoned or designated for agriculture.
Goal 4, Forest Lands. The Board finds the applicant's proposal is consistent with this goal
because although the subject property has been cleared of all vegetation and is proposed for
surface mining, the site can be revegetated during and after reclamation of the mined area. In
addition, forest practices can continue on the subject property and adjacent properties within the
�l d
La Pine Redi blixS
, Inc. Exhibit - -
PA-98-11/ZC-98-5 Page —�— ofi a—
Page 17 Ordinance gg"019
SMIA without interference from the mine operation because forest practices are not considered
noise- or dust -sensitive uses.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The Board finds the
applicant's proposal is consistent with this goal because it would add the subject property to the
county's Goal 5 inventory of significant mineral and aggregate resource sites in order to protect
it and allow it to be mined. In addition, any mining on the site would be subject to restrictions
designed to protect the identified deer migration corridor within which the subject property is
located.
Goal 6, Air, Water and Land Resources Quality. The Board finds the applicant's proposal
satisfies this goal. Any surface mining on the subject property will be subject to regulation by
DEQ pursuant to its water and air quality standards.
Goal 7, Areas Subject to Natural Disasters and Hazards. The Board finds this goal is not
applicable because the subject property is not located in a known natural disaster or hazard area.
Goal 8, Recreational Needs. The Board finds this goal is not applicable because the proposed
plan amendment and zone change do not reduce or eliminate any opportunities for recreational
facilities either on the subject property or in the impact area.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the
state for a variety of economic activities. The Board finds this goal is met because the proposed
plan amendment and zone change would place the subject property on the county's inventory of
significant mineral and aggregate resources in order for it to be mined. The designation of the
subject property for surface mining will provide sand and gravel material for sand filter septic
system construction in the southern Deschutes County area.
r Goal 10, Housing. The Board finds this goal is not applicable because the applicant's proposal
will not have any effect on the supply of needed housing.
Goal 11, Public Facilities and Services. This goal is to provide for the timely, orderly and
efficient development of public facilities and services. The Board finds the applicant's proposal
is consistent with this goal because the proposed plan amendment and zone change will allow
the subject property to be mined so that the material on the property can be used for the
construction of sand filter septic systems, and mining the site will not unduly burden existing
public facilities.
Goal 12, Transportation. The Board finds this goal is met because the applicant's proposed
plan amendment and zone change will not result in traffic impacts significantly affecting a
transportation facility.
Goal 13, Energy Conservation. The Board finds the applicant's proposal is consistent with this
goal because adding the subject property to the county's inventory of significant mineral and
II
La pine Redi h iix, Inc. Exhibit % I B
PA-9841/ZC-98-5 Page /_ Of 30 _
Page 18- Ordinance _ 9 -oi
aggregate resources will take advantage of existing processing facilities and transportation routes
established by the adjacent SM Site 426.
Goal 14, Urbanization. The Board finds this goal is not applicable because the applicant's
proposal does not affect property within an urban growth boundary and does not promote the
urbanization of rural land.
Goals 15 through 19. The Board finds these goals, which address river, ocean, and estuarine
resources, are not applicable because the subject property is not located in or adjacent to any
such areas or resources.
IV. CONCLUSIONARY FINDINGS:
The Board has found the applicant has demonstrated the mineral and aggregate resource on the
subject property is "significant" under OAR 660-023-0180(3), and therefore the subject property
does qualify under the new Goal 5 rules for inclusion in the county's inventory of significant
mineral and aggregate resources.
V. DECISION:
Based upon the foregoing Findings of Fact and Conclusions of Law, the Board hereby
APPROVES the applicant's proposed plan amendment and zone change from F-1 to SM to add
the subject property to the county's inventory of significant mineral and aggregate resources.
Dated this 4Q8 day o 1999.
Mailed this o?t'I day of 1999.
w, --/L
COMMISSIONS
THIS DECISION BECOMES FINAL TWENTY-ONE (21) DAYS AFTER MAILING
UNLESS TIMELY APPEALED.
%15 it .
La Pine Redi Mix, Inc. Exhibit
PA 98-11/ZC-98-5 page � 0-011?
Page 19 ordinance
C
Community Development Department
117 NW Lafayette Avenue • Bend, Oregon - 97701-1925
(541) 388-6575
CERTIFICATE OF SERVICE BY MAIL FAX 385-1764
Planning Division
Budding Safety Division
Environm_e__n_ tal Health Division
I certify that the attached Findings and Decision before the Board of County
Commissioners of Deschutes County, July 28, 1999, was deposited into the mail on July
29, 1999, with first class postage paid, to the following persons or parties:
La Pine Redi Mix, Inc.
PO Box 632
La Pine, OR 97739
Robert S. Loviien
Bryant, Lovlien & Jarvis
PO Box 1151
Bend, OR 97709
By mailing, regular mail, postage prepaid.
DATED this 291" day of July, 1999.
Christy Ma ' I, Secretary
Quality Services Performed with Pride
of 128 3
�" �D
p�ti1A/I.Ep�
��
lye. v
Exhibit
Page — 24 : 04 D
Ordinance,'`q `0�