Loading...
2000-1057-Ordinance No. 2000-035 Recorded 12/19/2000VOL: CJ2000 PAGE: 1057 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02000-1057 * Vol -Page Printed: 12/21/2000 15:00:00 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: Dec. 19, 2000; 2:10 p.m. Ordinance (CJ) NUMBER OF PAGES: 29 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK MICROFIt,WD DEC 2 7 2000 KEY NCH D DE 1 000 ej�0D/�7REVIFJNED G COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON a.. o An Ordinance Amending Title 23 of thern *-,: Deschutes County Code Revising the o c -a ESEE Analysis for Surface Mining Site No. 496 * x 177 w and Declaring an Emergency ORDINANCE NO. 2000-035 c� WHEREAS, tax lot 500 in Township 19 South, Range 14 East, Willamette Meridian (the subject property) encompasses 120 acres zoned Surface Mining (SM) and designated on the Comprehensive Plan map for Surface Mining (SM) and is located within a Wildlife Area (WA) Combining Zone; and WHEREAS, the subject property is listed as Site No. 496 on the County's inventory of mineral and aggregate resource sites; and WHEREAS, Hap Taylor & Sons has proposed a Plan Amendment to Title 23 of the Deschutes County Code, file number PA -00-8 to adopt a revised Conflict Analysis and ESEE Findings and Decision for the subject property for the purposes of incorporating revisions to winter operating conditions regarding surface mining operations in a portion of the North Paulina Deer Winter Range; and WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with applicable law, has recommended approval of the proposed Plan Amendment to Title 23 as set forth in the attached Exhibit B, and WHEREAS, after notice was given and hearing conducted on December 13, 2000, in accordance with applicable law, the Board of County Commissioners has considered the Hearings Officer's recommendation and testimony at the hearing and has entered a decision in PA -00-8 approving the proposed plan amendment; and WHEREAS, the Oregon Department of Fish and Wildlife had reviewed the subject proposal and is in agreement with the proposal and with this decision; WHEREAS, in order to amend the Comprehensive Plan and to give effect to the board's approval, it is necessary to adopt the Plan Amendment by an ordinance; now, therefore THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. The Resource Element of Title 23 of the Deschutes County Code is amended to amend the Conflict Analysis and ESEE Findings and Decision for the subject property, as set forth in the attached Exhibit "A," incorporated herein by this reference, with additions underlined and deletions in str'kethreaqh-. Page 1 of 2- ORDINANCE NO. 2000-035 (12/13/00) Section 2. 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 of0. AS�51*�- Recording Secretary BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, GON LINDA L. SWEARINGEN, air DENNIS R. LUK , Commissi er TOM DEWOLF, Commis 'o er Page 1 of 2- ORDINANCE NO. 2000-035 (12/13/00) 0 Conflict Analysis and ESEE Findings and Decision Site No. 496 Site Number 496, occupying tax lot 500 in Township 19 South, Range 14 E.W.M., Section 4, came before the Deschutes County Hearings Officer for hearing on May 24, 1994. On July 28, 1994, the Deschutes County Land use Hearings Officer made a preliminary decision (Findings, Recommendation and Decision; County File Nos. PA -94-2 and ZC-94-2) on this site. The site came before the Board of County Commissioners (Board) for hearing on September 12, 1994. By adoption of these findings and this decision, the Board confirms and ratifies that recommendation and decision. The purpose of the 1994 hearing before the Board was to determine whether the subject site, listed on the County's inventory of aggregate sites and should be classified under the County's comprehensive plan and zoning regulations as "SM" or Surface Mining. For the reasons given below, the Board determines that this site should be so classified. In 2000, the owner applied to amend the Program to Meet the Goal set forth in this ESEE and the site plan for this site to expand permissible mining activities during the winter months on the site. Specifically, the applicant sought approval to allow general mining operations (extraction, hauling, stockpiling, washing and screening) in accordance with the recornmendation of the Oregon Department of Fish and Wildlife. The Hearings Officer approved the revisions to the ESEE Program to Meet the Goal and the revised site plan. The Hearings Officer"; decision was not appealed, and on December 13, 2000, the Board held a de novo hearing on the plan amendment. The Board approved the plan amendment and this ESEE, with revision to reflect the changes made following the 2000 application, was amended and adopted by Ordinance 2000- 0035. PRELIMINARY FINDINGS Site Number 496 comprises approximately 120 acres and is located on the old Bend - Burns Highway roughly two miles west of the east end of the road, just east of the site of the Horse Ridge grade on Highway 20. The site is owned by Hap Taylor & Sons, Inc. and is currently zoned EFU-HR, Exclusive Farm Use (Horse Ridge Subzone) and WA, Wildlife Area. Adjacent land is zoned EFU, SM, LM and WA. Most of the surrounding land is owned by the Bureau of Land Management. Deschutes County has previously determined that an area within one-half mile of a mining site constitutes the impact area surrounding a mining site. This determination has been accepted by the Department of Land Conservation and Development (DLCD) as evidenced by DLCD's acknowledgement of the County's comprehensive plan with respect to Goal 5. Existing or possible uses within this impact area must be considered when determining whether or not any conflicts with mining exist. Uses within the impact area for the subject parcel include historic surface mining by ODOT on tax lot #600 (also known as county site no. 405), located immediately adjacent to the applicant's property. Uses on tax lot #700 to the east include those uses permitted in an EFU zone, including farming and grazing. Page 1—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 The subject property and surrounding lands lie within a deer winter range that is designated on the County's comprehensive plan maps. The surface pit known as the "Moon pit" is located approximately three miles to the east of the subject property, on the north side of Highway 20. The Moon pit is adjacent to an abandoned BLM owned mining site. The County is presently studying the feasibility of siting a new solid waste landfill in this area, as the County's Knott Road landfill is nearing capacity. No specific property has been identified as a landfill site. Geotechnical evidence suggests that Site 496 contains approximately 1,800,000 cubic yards of sand and gravel select fill resources. The Deschutes County Land Use Hearings Officer has recommended that Site 496 be included on the Deschutes County Goal 5 Mineral and Aggregate inventory. Based upon the site's quantity and quality of an identified source of mineral and aggregate resources, a hearing was held by the Board to determine whether to zone this site under statewide planning goal 5 to protect the mineral and aggregate resource. APPLICABLE CRITERIA Criteria applicable to this decision are Statewide Planning Goal 5, its implementing rule, OAR 660-16-000, and the Deschutes County Year 2000 Comprehensive Plan regarding surface mining goals and policies. HEARING AND EXHIBITS Prior to the hearings on this site, staff reports and a pared an a Conflict Analysis and ESEE Findings and Conclusions (ESEE) were Y)repared setting forth the site's aggregate resources and conflicting resource and land use values. The reports and the ESEE, ,.,s� fn ediflea Piens, - 4th her which were entered into the record at the hearings before the Board on September 12, 1994 and December 20, 2000, The ESEE identified conflicting resources and uses and their impacts, evaluated the economic, social, energy, and environmental consequences of protecting the mineral and aggregate resource or in the alternative, protecting the conflicting values or uses_ as fellews: ESEE FINDINGS AND CONCLUSIONS SITE NO. 496 1. Inventory. The County's Goal 5 mineral and aggregate inventory establishes that the site has 1,800,000 cubic yards of sand and gravel which appear capable of meeting the Oregon Department of Transportation (ODOT) standards for select fill and which are needed for use as fill material for building construction sites throughout the Bernd area. 2. Site Characteristics. This site is generally level, natural range land with a lower elevated drainage area near the south property boundary. Bordering the site is a large reclaimed gravel pit, formerly an active mining site operated by ODOT, which runs parallel to the road. The site is naturally vegetated with juniper and sagebrush. The Old Bend -Burns Highway bisects the site. There are no utilities or improvements on the site. The road to Page 2—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 the subject site is paved. Land in the surrounding area consists of undeveloped rangeland with no dwellings or other uses within one-half mile. 3. Conflicts anal,. a. Conflicts Resource Conflicts. 1. Wildlife. The Department of Fish and Wildlife has identified this site for deer winter range. The resource element of the County's comprehensive plan shows the site to fall within the designated deer winter range. The County finds that winter wildlife habitat for deer is a significant Goal 5 resource, in conflict in certain instances with zoning for surface mining. Full protection of the deer winter habitat resource wed could preclude zoning for surface mining operations as surface mining results in the destruction of deer winter habitat, alters the topography to create deep holds where deer may become trapped by predators, and causes noise, dust emissions and an increased human presence which make the area less suitable for use as deer habitat. In other surface mining sites in the County located within deer winter range areas, the Board has determined, with advice from ODFW, that surface mining conflicts with deer winter range were of such magnitude as to require closure of such surface mining sites during winter months. With regard to this site, the Board finds, based upon a study conducted by ODFW in 1995, that the conflicts between wintering deer and surface mining activities in the northwesterly area of the North Paulina WA zone (where this site is located) are such that a blanket restriction need not apply to sites falling within that area. The ODFW findings are set forth in a document entitled "ODFW Proposed Changes to Surface Mining Operating Guidelines in Zoned Big Game Winter Ranges" (referred to hereinafter as the "1995 Study"). In the 1995 Study, ODFW analyzed the conflict with surface mining presented. wintering deer in a subarea of the North Paulina deer winter range east of Highw�97 and the Bend Urban Area, south of the Redmond Urban Area and north of Highway 20. The subiect site falls in the northeast of that area. ODFW concluded, as set forth in testimony before the Planning Commission on September 28, 1995 and in its written report submitted to the Planning Commission and this Board, that conflicts between deer and surface mining activity in this area are less severe in the winter months than conflicts in other deer winter range areas in the County. This is due to a combination of (1) lower development pressures and lower expected development densities in this area than in other designated winter deer ranges- and 2 less frequency of use by deer of this portion of the North Paulina deer winter range in good weather, as measured against the management objective for each area. In particular, ODFW concluded that unlike other deer winter ranges in the County deer are usually Page 3—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 present in this portion of the North Paulina range only when winter weather conditions become severe. These factors enabled ODFW to recommend to the County in the 1995 Study that conflicts between surface mining and deer winter range in this northwesterly area of the North Paulina deer winter range could be managed under a plan that prohibited mining activities only when weather factors indicate that deer will need to use the areas or that such numbers of deer are observed using the area that suspension of mining activities is warranted. Based upon the 1995 Study and ODFW's conclusions drawn from four years of monitoring the area around and including the site, the applicant requests that the winter operating prohibition be lifted with respect to all mining operations except drilling, blasting or crushing. As set forth in a letter dated March 14, 2000 ODFW determined that from December through April, general mining operations at the site including extraction, haulin , stockpiling and washing and screening of rock would have; minimal adverse effects on the wintering deer population and could therefore be allowed during the winter months. The Board adopts as its findings the findings of ODFW referenced above. Further discussion of the specific program for balancing the conflicting uses will be set forth in the section of this ESEE document entitled "Program to Meet the Goal." Land Use Conflicts. Land uses on the EFU-HR (Exclusive Farm Use – Horse Ridge) and SM (Surface Mining) zones surrounding the site are set forth in Title 18 of the County Code:. The County finds that given the impacts of noise, dust, traffic, and physical scarring of the landscape associated with surface mining, all allowed uses in the EFU zone are conflicting in that full protection of those uses would preclude zoning for surface mining. Farm and forest uses are conflicting uses in the sense that those uses can not occupy the same space as surface mining activities on the site. In addition, farm uses on adjacent property involving livestock operations can be a conflicting use. The County finds that none of the conflicting allowed or conditional uses currently exist at the site or within the impact area. Further, the County finds that such uses, with the exception of livestock grazing, are unlikely to occur due to the remote location. of the site and the fact that most of the surrounding land is in public ownership. The County also finds that the large minimum lot size of 320 acres and the large size of existing, adjacent lots will prevent dense residential development near the site. Resource Conflicts Protection of Mineral and Aggregate Resource 4. Economic Consequences. The County finds that the economic consequence of protecting the mineral and aggregate resource, in conflict with other natural resources, is difficult to Page 4—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 measure. Deer winter habitat does not have any economic value attached to it. Deer generate indirect economic benefits to the County when hunters travel to hunt the deer and when tourists travel to the County to hunt deer. Additionally, a few tourists or local residence might travel to the subject property to view wildlife. 5. Social Consequences. The County finds that the social consequences of protecting the mineral and aggregate resource over the natural resources would be negative. Surface mining would have negative impacts on wildlife. Given that few people live in the area, the social consequences would be felt primarily by those travelling Highway 20 who might be deprived of wildlife viewing opportunities. 6. Environmental Consequences. The County finds that allowing surface mining activities would have adverse environmental consequences on deer habitat. Surface mining activities would reduce the available cover and forage at the site, which would cause increased competition among deer for the remaining forage and cover. Some wildlife would be forced to leave the area to find other food sources and cover, thus adding more competition in other areas for these resources. Increased truck traffic associated with mining activities increase the mortality rate for the area's wildlife. In some cases, over the long term, surface mining can be beneficial to environmental values in that it gives an opportunity for a site already desecrated by the actions of man or otherwise lacking in natural values to be improved as part of the reclamation process. There is no evidence to suggest that this is one of those instances. 7. Energy Consequences. The County finds that the energy consequences of protecting the mineral and aggregate resource, over the other natural resources, would be to increase the energy consumption at the site due to fuel expenditures needed to run the heavy equipment and processing equipment and to transport select fill to its end use and to return to the site with loads of material for crushing. Such energy use would be bound to occur, in any event. Mineral and aggregate resources are needed for use in the County. Failure to protect the mineral and aggregate resources at this site would mean that such energy use would occur elsewhere. This site is conveniently located near the rapidly growing eastside of Bend, where most fill material will be needed. Travel from this location to the eastside of Bend may occur without passing through the center of Bend, as presently done by trucks from mines located to the west of Bend. This fact will enable trucks to conserve energy, as they will not be required to stop and start for the numerous traffic lights in the Bend community. Protection of Conflicting Goal 5 Resources 8. Economic Consequences. Protection of the natural resources would preclude mining at the site. Deer winter habitat is in limited supply and the proposed surface mine would cause displacement of wildlife and increased competition in remaining unaffected areas. The County finds that, as reflected in the goals and policies statement of the County comprehensive plan, the County consumes 2 million cubic yards of mineral and aggregate Page 5—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 materials each year. Under the laws of supply and demand, failure to protect sufficient amounts of mineral and aggregate for the 20 -year planning cycle will result in an increased cost in aggregate resources. Increases in mineral and aggregate costs would in turn result in increased construction costs. To the extent that minerals and aggregate would need to be hauled in from outside the area, the cost of minerals and aggregate would be increased by haulage costs, which the County finds to be at a rate of 22 cents per cubic yard per miles. The County finds there to be a total of 73,538,000 cubic yards of sand, gravel and rock in the County, accounting for the inventoried amount of sand, gravel and rock and the amount of those materials located at sites within the urban growth boundary. The County finds that virtually all sites have either resource or land use conflicts with surface mining. Consequently, if more than 46% of the aggregate sites were to be eliminated due to resource conflicts, the County would not have preserved sufficient aggregate to meet its needs. The County finds that this particular site, standing alone, is not essential to meeting the County's mineral and aggregate needs; however it also recognizes that if enough other sites are eliminated due to conflicts, it could be. Furthermore, the County recognizes the importance of preserving mineral and aggregate resources for highway maintenance and construction and finds that failure to protect such sites located along Highway 20 would result in increased costs for maintenance and construction on Highway 20 east of Bend. While the select fill at this site is presently intended for use in the building construction business, it would also be available for use as select fill on highway projects. The County finds that mineral and aggregate resources are a commodity with a market value. Failure to allow mining of such resources would prevent the value of such resources being realized by the local economy. Although the number of jobs represented by the local aggregate industry is small in number, mining jobs tend to pay at higher rates than those found in the service sector. The select fill from this site will, however, be used in construction work in the Bend area. The construction trades pay higher wage rates than paid in the service sector and are an important part of the local economy. Finally, the County finds that the economic impact of failing to preserve sufficient mineral and aggregate reserves is not readily mitigated. Mineral and aggregate resources are location dependent and are finite resources. 9. Social Consequences. Preserving the conflicting natural resources at the site could have negative effects on the general welfare of the County if insufficient amounts of mineral and aggregate are preserved. Regardless of the amount of supply readily available, there will always be a demand for mineral and aggregate resources. The County's roads would still need improvement and maintenance. Select fill would still be needed by the local building industry. A deterioration of the County's roads and streets would negatively impact the livability and quality of life in Deschutes County. A lack of need fill would force major changes in methods of construction and might prevent construction of some Page 6—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 projects. The County also recognizes the social consequences of increased building costs that can result from a shortage of readily available mineral and aggregate resources. 10. Environmental Consequences. Protection of the conflicting natural resources would preclude mining at the site. The noise, traffic, human presence and disruption of habitat associated with surface mining is inimical to the protection of scenic views and deer and antelope habitat. Therefore, protection of the natural resources by precluding mining would have positive environmental consequences. As with the mineral and aggregate resource, wildlife resources are limited by locational factors. Wildlife habitat is continually shrinking in the face of increased development. 11. Energy Consequences. As mentioned above, the energy consequences of protecting the natural resource values of this site and other like it along the Highway 20 corridor would involve increased haulage distances. The County finds that protection of natural resource values at the site would have negative energy consequences. 12. Relative Values of the Conflicting Resources. The County finds that the conflicting natural resource and the mineral and aggregate resource are important relative to one another. Both resources are finite and locationally dependent. Mineral and aggregate resources are in limited supply in the County and there is a need for the mineral and aggregate resources along the Highway 20 corridor for highway maintenance and construction and fill for construction sites. Deer habitat is continually being lost to new development. Therefore, the County finds that both the mineral and aggregate resource and the conflicting natural resources should be protected. Accordingly the County finds that under OAR 660-16-010(3) protection of the mineral and aggregate resource shall be limited by protection of the natural resources. Conflicting Uses Protection of Aggregate and Mineral Resource 13. Economic Consequences. The economic consequences of protecting the mineral and aggregate resource relates to the impacts of surface mining on adjacent uses, the value of mineral and aggregate as a commercial commodity and the impacts of protecting employment in the mining industry and the development opportunities foregone by development of the site. While the impacts of surface mining may in individual cases have a short term impact on property values of surrounding properties, trend analysis from the tax assessor's records of specific parcels either adjacent to or within one-half mile of both existing and potential surface mines indicates that there were no drastic fluctuations in these property values. This same analysis shows that there has been no appreciable decline in sales of these or similar types of properties. The most significant impact to surrounding property owners would be if regulations to protect the mineral and aggregate resource were enacted that would make surrounding properties unbuildable. Page 7—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 Allowing surface mining activities at this site could have some short-term negative impacts on the ability to utilize this property for other uses. However, nothing indicates that such uses are likely to occur, given the remoteness of the site. Nothing indicates that such uses would have a higher economic value than use of this site for surface mining. There is no shortage of land in the County available for development for the uses allowed in the EFU zone, while the supply of mineral and aggregate resources in the County is in short supply. Furthermore, surface mining is a transitional use, and after reclamation the land surface would then become available for other uses. 14. Social Consequences. Preserving this site for the production of mineral and aggregate resources would have a major impact on the quality of life associated with the other land uses in the area. The impacts of noise, fugitive dust emissions, and increased truck traffic would negatively impact the livability and scenic quality of the surrounding area. Such impacts may be mitigated, however, through environmental controls on the mining operation. Such controls are imposed, by the County, by ordinance and through site plan review of mining operations. The County finds that the negative social consequences of mining activity are low in this case due to the fact that there are few existing land use conflicts. Additionally, it is likely that few such conflicting uses will arise in the future, due to the zoning and public ownership of surrounding lands. 15. Energy Consequences. The County finds that preserving this site for the production of minerals would have overall positive energy consequences. As stated above, the energy consumed on site by mining equipment is likely to occur at some mining site, in any event, as there is a basic need for such resources. Haul distances to Highway 20 repair jobs or construction projects, in the area, would be minimized. To the extent that surface mining would preclude or discourage development of the surrounding rural lands, the energy consequences would likewise be positive. 16. Environmental Consequences. The County finds that protecting the site for mining would have negative environmental consequences for the same reasons given under paragraph 14 above. The County further finds that such impacts can be mitigated. Protection of Conflicting Land Uses 17. Economic Consequences. With the exception of geothermal development and farm and forest uses, all uses in the surrounding zoning designations are classed as noise; sensitive uses for purposes of DEQ noise regulations. Farm uses may be noise sensitive uses in certain situations, such as with livestock operations. Protection of such surrounding conflicting uses can have the effect of precluding or limiting further surface mining activity due to noise regulations. Likewise, dust, traffic and aesthetic impacts place constraints on surface mining operations amongst conflicting land uses. While the elimination of part or all of any one site (except R.L. Coat's site No. 308 in 17- 12-18 of 10 million cubic yards) would not significantly impact the total supply of Page 8—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 mineral and aggregate in Deschutes County, if every site with conflicting uses were eliminated for that reason, Deschutes County would be unable to meet its mineral and aggregate needs. Almost every mineral and aggregate site has some degree of conflict with surrounding land uses. In light of that fact, each aggregate site takes on importance, as cumulatively, individual sites with conflicts could be eliminated and prevent the County from meeting its mineral and aggregate needs. 18. Social Consequences. The County finds that the social consequences of allowing incompatible development to preclude the use of all or part of this site would be the same as those under the Goal 5 discussion above. 19. Environmental Consequences. The environmental consequences of protecting surrounding land uses is mixed. Protecting the conflicting land uses could well preclude mining at the site. This would have positive environmental consequences in that the noise, dust, traffic, and aesthetic impacts associated with surface mining would be prevented. However, protecting the conflicting land uses, especially in a site such as this that is largely undeveloped, can also have negative environmental impacts. Thus, if surrounding areas become developed, they, too, can have a detrimental impact on wildlife habitat, reducing the overall supply of food and cover and increasing competition for adjoining undeveloped habitat. 20. Energy Consequences. Allowing development that would preclude or curtail mining at this and other sites along the Highway 20 corridor would create greater energy consumption because the mineral and aggregate resources for upkeep and improvement of Highway 20 would have to come from sites located further away. Furthermore, increased development at this remote site would increase energy use from those living in or patronizing the allowed uses. Such development would likely lead to a long term energy commitment because of the live span of such development. 21. Relative Values of Aggregate Use and Conflicting Uses. Based upon the analysis of the ESEE consequences of protecting the identified conflicting uses and protecting the mineral and aggregate resource and the relative weight of the conflicting uses and the mineral resource, the County finds that with respect to existing development both the mineral resource and the conflicting resources and uses are important relative to one another. The aggregate has importance due to its limited availability in the County and its location near its point of use, Highway 20. Existing conflicting uses, if any, are important in that they represent an economic commitment to development of individual pieces of private property with economic value and expectations. Accordingly, the County finds that, pursuant to OAR 660-16-010, it will limit the use of the mineral resource at the site in favor of the conflicting resources. Potential development in the impact area is not significant enough to be considered to be a use that would limit the use of the aggregate resource at this site. Page 9—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 Program to Meet the Goal 22. The Board finds that, in order to protect both the aggregate resource and the conflicting resources and uses, the site will be zoned for surface mining, subject to the following ESEE conditions: (a) Setbacks shall be required for potential conflicting residential and other development; (b) Noise and visual impacts shall be mitigated by buffering and screening; (c) Hours of operation shall be consistent with DEQ standards and applicable county ordinances; (d) Drilling, blasting and crushing shall be discontinued, on-site, December 1 through April 30. Other general mining operations, including extraction haulin sg tockpiling washine rock and screening of rock, however, shall be permitted subject to Section 18.52.110(Il, Hours of Operation, of the Deschutes County Code. (e) Roads on-site shall be blocked from December 1 through April 30 to prevent access by the general public. Access roads shall be removed when mining operations are completed. (f) Reclamation shall meet ODFW recommendations, DOGAMI requirements and applicable county ordinances. The County finds that processing on site will be allowed from May 1 through November 30 each year. Conflicting Resources 23. The County finds that surface mining use of the site will be limited by conflicting Goal 5 resource considerations by the provisions for screening and buffering to mitigate noise and visual impact. The County further finds that the winter- -elesur-e-ef cessation of drilling, blasting and crushing of the site during winter months will offer protection for deer and antelope herds. The County finds that the screening and buffering ESEE requirements are met by the screening and buffering requirements in the Deschutes County zoning ordinance. The County finds that such mitigation will not prevent the County from achieving its goal, since the site will be allowed to be mined. The County finds that the winter elesum cessation of drilling, blasting and crushing will not be unduly restrictive; sioee it eaeur-s at the time ef the year- when read eenstmefien and the eywavati 84age 0 f ming e€ tmeks will be allewed. Mineral Resource 24. The County will protect the mineral and aggregate resource by zoning the site SM to allow for surface mining activities. The County finds that Deschutes County Zoning Ordinance allows mining activities such as extraction, processing, crushing, batching, and Page 10—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 other mining -dependent uses as permitted or conditional uses and activities in the zone. Conflicting uses, such as residential uses that would irretrievably commit surface area to other uses and otherwise conflict with surface mining are not allowed uses in the zone. Agricultural and forest service uses are allowed in recognition that such uses can occur without irretrievably committing the property to uses other than surface mining. In this manner the surface area of the mineral and aggregate resource is protected against establishment of uses that would prevent mining of the mineral and aggregate in the future. Such protection advances the goal of protection of sufficient mineral and aggregate resources to meet the County's mineral and aggregate needs. 25. The County finds that imposition of the Surface Mining Impact Area (SMIA) combining zone as a one-half mile buffer surrounding the SM zone, as set forth in the Deschutes County Zoning Ordinance, will further protect the mineral and aggregate resource and the County so zones the one-half mile area surrounding the SM zone. The County finds that the SMIA zone limits conflicting uses as follows: (a) New conflicting "noise -sensitive" and "dust -sensitive" uses, such as single-family dwellings, may be sited closer than one-half mile to a SM zone only if the applicant has signed a waiver of remonstrance precluding protest of any surface mining activities; and (b) In all cases new conflicting "noise -sensitive" and "dust -sensitive" uses are prevented from locating any closer than 250 feet to an SM zone or one --quarter mile from a processing site, whichever is further. The County finds that these provisions satisfy the ESEE condition that residential and other development be subject to setbacks. The County finds that such a provision is sufficient to protect the mineral and aggregate resource from conflicting future development. 26. The County finds that, in combination with the action taken on other mineral and aggregate sites, zoning the site for surface mining and protecting the site from future surrounding conflicting land uses, the County's goal of preserving sufficient aggregate resources to meet the needs of the County have been met. Land Uses 27. Existing conflicting land uses are protected by the requirement that newly sited surface mines or expansion of existing surface mines meet screening requirements, setback requirements, noise standards, adhere to limits on maximum area of surface disturbance and other limitations. Page 11—ESEE Findings and Decisions—Site 496 EXHIBIT A Ordinance No. 2000-035 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: PA -00-8 and SP -00-32 APPLICANT/ Hap Taylor & Sons OWNER 62975 Boyd Acres Road Bend, Oregon 97701 APPLICANT'S Nancy Craven ATTORNEY: Laura Craska Cooper Ball Janik LLP 15 SW Colorado, Suite 260 Bend, Oregon 97702 REQUEST: A plan amendment to amend the Environmental, Social, Economic and Energy (ESEE) analysis for Surface Mining Site No. 496 for changes to the operation of the mining site in the winter months, from December 114 to April 301" of each winter season. The applicant is also requesting approval to amend the site plan for surface mining operations on this site to reflect the proposed changes to the ESEE analysis. STAFF REVIEWER: Catharine Tilton, Associate Planner HEARING DATE: Tuesday, September 19, 2000 RECORD CLOSED: Tuesday, September 19, 2000 I. APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, Deschutes County Zoning Ordinance A. B. Chapter 18.52, Surface Mining zone. *Section 18.52.040 Uses permitted outright subject to site plan review *Section 18.52.050 Conditional uses permitted *Section 18.42.070 Site plan review *Section 18.52.090 Minimum use setbacks *Section 18.52.110 General operation standards Chapter 18.88, Wildlife Area combining zone *Section 18.88.030 Uses permitted outright *Section 18.88.040 Uses permitted Conditionally A': y O L�%;I ;. �., of iL rn :., DES TF' HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 Exhibit 3 - Page 1 Page .— of Ordinance Deschutes County Year 2000 Comprehensive Plan, ESEE analysis for site no. 496 Oregon Administrative Rules (OAR) Chapter 660, Division 23, Procedures and Requirements for Complying with Goal 5. OAR 660-023-0180, Mineral and aggregate resources II. BASIC FINDINGS OF FACT: A. LOCATION: The subject property has an assigned address of 25255 Horse Ridge Frontage Road, Bend, approximately fourteen miles east of Bend, and is identified as Tax Lot 500 on Deschutes County Assessor's map 19-14-00. The property is also identified as Surface Mining Site 496 on the County's Comprehensive Plan inventory of significant mineral and aggregate resource sites. B. ZONING: The subject property is zoned Surface Mining (SM) with a Wildlife Area (WA) combining zone. Surrounding the property is a Surface Mining Impact Area Combining Zone (SMIA) extending one-half mile from the surface mining site. C. LOT OF RECORD: The County has recognized the subject property as a legal lot of record through the issuance of land use permits. D. SITE DESCRIPTION: The configuration of the site is an upside-down L -shaped -lot approximately 120 acres in size and is bisected by Horse Ridge Frontage Road. According to the ESEE for Surface Mining Site 496, the County's Goal 5 mineral and aggregate inventory establishes that the site has approximately 1,800,000 cubic yards of sand and gravel of select fill resources. Topography of the property is relatively level and vegetated with juniper and sagebrush. Current use of the site for mining operations is limited to a single area near the Horse Ridge Frontage Road, and as observed during an August 31, 2000 site visit, includes extraction, stockpiling, and hauling the material out. The only development staff observed on the site is a fenced -off area near the entrance to the site and a fence along a portion of the Frontage Road. E. SURROUNDING LAND USES: Surrounding land uses to the north, east, and west include an approximate 9,128 -acre parcel owned by the federal government and managed by the Bureau of Land Management (BLM). To the south are Surface Mining Site 405 (which is an inactive ODOT mine) and Surface Mining site 600. Located southeast of the property is a mixture of county owned and privately owned land. With the exception of the two surface mines, sites 405 and 600, which are zoned Surface Mining (SM), the surrounding zoning in the area is Exclusive Farm Use—Horse Ridge East (EFUHR) Subzone. Uses in the area include surface mine activities interspersed with open space and rangeland. F. BACKGROUND: The subject surface mine has received the following land use approvals: PA -94-2 and ZC-94-2, approved by the Board of Commissioners (Board) via the adoption of three ordinances (Ordinances 94-050, 94-051, and 94-052) in 1994, resulted HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 Exhibit Page 2 Page _2=_ of Ordinance '2006'03r in changing the zone of the subject property from EFUHR to SM.' Ordinance 94-051 adopted, in part, the ESEE for site 496. Under the section heading, "ESEE Findings and Conclusions, Site 496" subsection 3, "Conflicts analysis" states that the "Department of Fish and Wildlife has identified this site for deer winter range. The resource element of the County's comprehensive plan shows the site to fall within a designated deer winter range." This subsection 3 further identified that the winter wildlife habitat for deer is a significant Goal 5 resource in conflict with zoning for surface mining. Under subsection 12, "Relative Values of the Conflicting Resources," the county found that the conflicting natural resource and the mineral and aggregate resource are important relative to one another and that "both the mineral and aggregate resource and conflicting natural resources should be protected." As a result, in the "Program to Meet the Goal" contained in the ESEE for site 496, ESEE condition (d) states, "operation of rock crushing equipment and mining operations shall be discontinued, on-site, from December 1 through April 30" and Condition (e) requires, in part, that on-site roads "shall be blocked from December 1 through April 30 to prevent access by the general public." Further, under "Conflicting Resources," subsection 23 the County found that the "winter closure of the site will offer protection for deer and antelope herds" and " ... that the winter closure will not be unduly restrictive, since it occurs at a time of the year when road construction and the excavation stage of building construction projects are not underway and some loading and unloading of trucks will be allowed." Unlike the adjacent Surface Mining Site 600 located to the south, however, the Board did not adopt and incorporate in the ESEE for Site 496 the Oregon Department of Fish and Wildlife's (ODFW) undated winter operating guidelines entitled, ODFW Proposed Changes to Surface Mine Operating Guidelines in Zoned Big Game Winter Ranges.2 SP -94-69 and CU -94-97, approved by the County in 1995, allowed the applicant to conduct surface mining activities at the site including crushing, but not blasting. Approval was subject to 20 conditions. Relative to this application, Condition 1(d) required that "operation of rock crushing equipment and mining operations shall be discontinued; on-site, from December 1 through April 30" and Condition 1(e) required the on-site roads to be blocked from December 1 through April 30 to prevent access by the general public. In addition, Condition 5 states, "Between December 1 through April 'Ordinance 94-050 is an "Ordinance Amending PL -20, Deschutes County Year 2000 Comprehensive Plan, Revising the Mineral and Aggregate Resource Inventory for Deschutes County and Declaring and (sic) Emergency." Ordinance 94-051 is an "Ordinance Amending PL -20, Deschutes County Comprehensive Plan Map, Changing the Surface Mining Plan Designation on Certain Property in Deschutes County to Surface Mining, and Declaring an Emergency." Ordinance 94-052 is an "Ordinance Amending Title 18, the Deschutes County Zoning Map, Changing the Zone Designation from EFU to SM on Certain Property in Deschutes County, and Declaring an Emergency." 2 In the "Program to Meet the Goal" contained in the ESEE for surface mining site 600, Condition (d) prohibited site operations to occur from December 1 through April 30 except when specific winter operating guidelines, involving snow measurements and deer counts specified by ODFW, are met. According to the applicant's Burden of Proof, the winter operating guidelines established by ODFW were not in place until 1995, after PA -94-2 and ZC-94-2 and related ordinances were approved. HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 Exhibit Page 3 Page-. _. of Ordinance-' 30 permitted activity on site is limited to the loading of stockpiles material from the northern corner of the area formerly mined by ODOT on tax lot #600. Waste rock material may also be unloaded in this same area." Further, under section "L. Fish and Wildlife Protection" on page 14 of the Findings and Decision for SP -94-69 and CU -94- 97, staff states, in part, the following: If the county and ODFW agree at closure is not necessarily required habitat area the applicant would be procedure whereby an amendment considered. i later date that complete winter 7 this particular big game winter provided with a land use review o the winter closure could be G. PROPOSAL: The applicant is requesting approval to amend the comprehensive plan ESEE findings and the surface mining site plan for Site 496 by adopting ODFW's winter operating guidelines into the ESEE and permitting "all mining activities allowed by DCC 18.52 during the winter months except crushing and blasting." Specific primary activities proposed during the winter months from December 1 through April 30 include loading, unloading, and transportation of stockpiled material. The applicant is also requesting approval to amend the site plan for surface mining operations on this site to reflect the proposed changes to the ESEE analysis. H. PUBLIC AGENCY COMMENTS: The Planning Division sent notice of the proposal to several public agencies and received the following response from the Oregon Department of Fish and Wildlife: Oregon Department of Fish and Wlldlife: We have reviewed the applicants "Statement In Support of Application." We concur with the applicants proposed changes and conclusions. The following agencies either had no comments or did not respond: Deschutes County Assessors Office, County Road Department, County Sheriffs Office, Watermaster, Property Address Coordinator, Cascade Natural Gas Company, Pacific Power and Light, U.S. West Communications, Department of Environmental Quality, Department of Geology and Mineral Industries, Oregon Department of Land Conservation and Development, Oregon Department of Transportation and the Bureau of Land Management. PUBLIC NOTICE AND COMMENTS: The Planning Division mailed notice of this application to all property owners within 250 feet of the subject property and a Land Use Action Sign was posted on the property on July 27, 2000. The Planning Division received no public comments. Notice of the public hearing was also published in the "Bend Bulletin" newspaper on July 30, 2000. No members of the public testified at the public hearing and no written comments were received from members of the public as of the date the record closed. REVIEW PERIOD: Deschutes County Code types of applications that are exempt from the comprehensive plan amendments, such as HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 Page 4 (DCC) Section 22.20.040(D), lists several 150 -day time limit, including quasi-judicial the subject application. Further, in a Lxhibit Page -.— of A - Ordinance ZP.?—`0-3t0' previous decision issued by staff for a similar application to amend the ESEE and winter operating guidelines for Surface Mining Site 404 located to the east of the subject properties, (file numbers PA -99-8, SP -99-52, and MA -99-7), staff found that the 150 -day period does not apply to the site plan application because the site plan application cannot be approved without approval of the requested plan amendment.' Although the 150 -day time period does not apply to the subject applications, OAR 660-023-0180(4), requires the County to complete the local land use process for a post -acknowledgment plan amendment concerning a significant mineral and aggregate resource site within 180 days of the date the plan amendment application was deemed complete. Therefore, the 180 -day period applies and began on July 23, 2000, and expires on January 20, 2001. III. CONCLUSIONS OF LAW: TITLE 18 OF THE DESCHUTES COUNTY CODE, COUNTY ZONING A. Chapter 18.52, Surface Mining Zone MINIM 1T71 • • _ • - . The following uses are permitted outright subject to site plan review as provided in this section: A. Extraction of minerals. B. Stockpiling and storage of minerals. C. Screening, washing and sizing of minerals. D. Sale of minerals and mineral products extracted and produced on the parcel or contiguous parcels in the same ownership. E. Buildings, structures apparatus, equipment and appurtenances necessary for the above uses to be carried on. B. The following uses are permitted subject to site plan review and the setbacks, standards and conditions set forth in section 18.52.090, 18.52.110 and 18.52.140, respectively, and are not subject to the conditions in chapter 18.128: 1. Expansion or replacement of a preexisting legal dwelling. 3 Specifically, the Hearings Officer found with regards to the applicability of the 150 -day time period in PA - 99 -8, SP -99-52, and MA -99-7: Under ORS 215.428(6), the 150 -day period for issuance of a final local land use decision does not apply to applications to amend an acknowledged comprehensive plan. Because the site plan application cannot be approved without approval of the requested plan amendment, the Hearings Officer rinds the 150 -day period under ORS 215.428 also does not apply to the site plan application. HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 L.Ahibit Page 5 Page of Ae . Ordinance _'t�3 2. Crushing of mineral and aggregate materials on sites designated for crushing in the ESEE analysis in the surface mining element of the Comprehensive Plan. 3. Sale of minerals and mineral products extracted or produced on parcels other than the subject parcel or contiguous parcels in the same ownership. 4. Batching and blending of mineral and aggregate into asphaltic concrete or Portland Cement Concrete. FINDING: The subject site is zoned SM and has operated as a surface mine since 1995 when the County issued a "Surface Mining Use Permit" for the site. The 1995 site plan approval (SP -94-69) allowed the applicant to conduct those mining activities listed in Section 18.52.040 above and Conditional Use approval (CU -94-97) allowed for the crushing of mineral and aggregate materials. The applicant is not proposing to change the types of uses provided for under the existing site plan and conditional use permits. Instead, the applicant is proposing a change in the timing that these activities can occur. Specifically, the applicant proposes to modify the ESEE findings and site plan to allow general mining operations, including loading, unloading, and transportation of stockpiled material, throughout the winter months consistent with the recommendations of ODFW. The applicant is proposing to amend the surface mining operations to include the winter months from December 1 through April 30. The applicant is currently prohibited, via the ESEE conditions and the conditions imposed on SP -94-69 and CU -94-97, to operate rock crushing equipment and mining operations from December 1 through April 30. (The applicant can, however, per Condition 5 of SP -94-69 and CU -94-97, stockpile material and unload waste rock material in the northern corner of the area formerly mined by ODOT on tax lot 600 between December 1 through April 30.) C. Section 18.52.070. Site plan review. Site plan review and final approval of a site plan shall be required before the commencement of any use which requires site plan review under section 18.52.040 and 18.52.050(B), and before any expansion of a preexisting or nonconforming FINDING: The applicant received site plan approval for mining operations at Surface Mining Site 496 under SP -94-69, which addresses the winter mining operations at the site. The applicant is proposing to amend the site plan to reflect, and be consistent with, the proposed amendments to the ESEE findings related to winter operations at the surface mine. d. Section 18.52.090. Minimum use setbacks. A. Except as otherwise provided in this section, all surface mining activities and uses, including structures, shall be located and conducted at least 250 feet from a noise -sensitive or dust -sensitive use or structure ... HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 Page 6 Fagg Ordlr.ance �3� B. Storage and processing of mineral and aggregate material, and storage of operational equipment which creates noise and dust, shall not be allowed closer than one-quarter mile from any noise or dust sensitive use or structure existing on the effective date of Ordinance No. 90-014.. . FINDING: According to the ESEE for site 496 and the Findings and Decision for SP - 94 -69 and CU -94-97, no dwellings exist within one-half mile of the surface mine. In addition, any noise and dust sensitive uses within one-half mile of the surface mine applied for after the effective date of the three ordinances that changed the zoning of the subject property to Surface Mining in 1994, would be subject to review under the Surface Mining Impact Area zone; thereby affording protection to surface mining operations at the site. The applicant, therefore, meets this criterion. e. Section 18.52.110. General operation standards. FINDING: This section establishes the operating standards for surface mining activity on site. 496, including access, screening, air quality, erosion control, streams and drainage, equipment removal, flood plain, noise, hours of operations, drilling and blasting, extraction site size, fish and wildlife protection, surface water management, storage of equipment, security plan, and the site's ESEE analysis. The operational standards for site 496 were reviewed and approved under permits SP -94-69 and CU -94- 97. The effect of the applicant's proposal to amend the winter operating guidelines is limited to the fish and wildlife protection standard listed in subsection L of the General operation standards, which states, in part, the following: L. Fish and Wildlife Protection. 1. Fish and wildlife values and habitat required by the site-specific ESEE analysis to be conserved and protected are conserved and protected by use of methods including, but not limited to: Seasonal operations and access road closures; retention of or creation of vegetative cover and riparian habitat, and erection of fencing or other barriers to protect wildlife from steep extraction site slopes. Surface Mining Site 496 is located in the North Paulina deer winter range. The ESEE findings for site 496 include restrictions on mining activities during the winter months. Specifically, Conditions (d) and (e) of the ESEE state: (d) Operation of rock crushing equipment and mining operations shall be discontinued, on-site, from December 1 through April 30. (e) Roads on-site shall be blocked from prevent access by the general public. when mining operations are completed. HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 Page 7 December 1 through April 30 to Access roads shall be removed Ordinance ?S"" The applicant proposes to amend the ESEE findings and site plan for Site 496 by modifying the winter operation limitations to conform to the recommendations of ODFW. Specific amendments to the winter operating guidelines include amending ESEE condition (d) as follows:° (d) Drilling, blasting and crushing shall be discontinued, on-site, from December 1 through April 30. Other general mining operations, including extraction, hauling, stockpiling, washing rock and screening of rock, however, shall be permitted without restriction during these winter months. Comments received from ODFW state its approval of the above change to the winter mining operations and the Hearings Officer finds that ODFW is the appropriate agency whose expertise should be relied upon to ensure adequate protection of the Goal 5 wildlife resource in the North Paulina deer winter range. However, Section 18.52.11 0(l) provides limitations to the hours of operations at surface mining sites. Specifically, Section 18.52.11 0(l) states the following: 1. Hours of Operation. 1. Mineral and aggregate extraction, processing and equipment operation /s limited to the following operating hours: a. Surface mining sites located within one-half mile of any noise -sensitive or dust -sensitive use or structure existing on the effective date of Ordinance No. 90-014: 7:00 a.m. to 6:00 p.m. - Monday through Friday and 8:00 a.m. to 5:00 p.m. - Saturday. b. All other sites: 7:00 a.m. to 10:00 p.m. - Monday through Saturday. 2. No surface mining activity shall be conducted on Sundays or the following legal holidays: New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Day. To meet the Hours of Operations criteria contained in Section 18.52.110(1), staff recommended and the Hearings Officer finds that the following change to the applicant's proposal is necessary (changes are in bold and underlined): (d) Drilling, blasting and crushing shall be discontinued, on-site, from December 1 through April 30. Other general mining operations, including extraction, hauling, stockpiling, washing rock and screening of rock, however, shall be permitted-witheut is#iefieA subject to Section 18.52.1100). Hours of 02eratlon. of the Deschutes County Code. With the above changes to the applicant's proposal and in light of the support from ODFW that the proposed amendment will continue to result in adequate protection of the resource, the Hearings Officer finds this criterion is met. ` The applicant does not propose changes to ESEE Condition (e) regarding the closure of on-site roads. HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 >,;;;i,ji Page 8r'ag3 of Ordinance 240.LtlS' B. Chapter 18.88, Wildlife Area Combining Zone. a. Section 18.88.030. Uses permitted outriaht. b. Section 18.88.040. Uses permitted conditionally. FINDING: These sections provide that the uses permitted outright and conditionally in the underlying SM zone are also permitted in the WA zone. The existing surface mining operations at Site 496 were approved under SP -94-69 and CU-94-97and, therefore, are allowed in the WA zone. The applicant does not propose any changes to the types of uses allowed on the subject property; the applicant proposes to change the timing in which the winter operations can occur at the site. Therefore, the applicant's proposal meets these criteria. • :: 1.1 • .1•. . d. Section 18.88.070. Fence standards FINDING: The applicant is not proposing a new dwelling or fence as part of this application. Therefore, these criteria are not applicable. A. DESCHUTES COUNTY YEAR 2000 COMPREHENSIVE PLAN 1. Surface Mining Chapter. pages 144-155. The Surface Mining chapter of the County's Comprehensive Plan contains "Surface Mining Goals and Policies" in order to address the "projected demand for aggregate material in view of the available material ...." The applicant proposes to amend the Comprehensive Plan by revising the site-specific ESEE analysis and findings for Site 496 to reflect modified winter operating guidelines. The applicable sections of the surface mining goals and policies are addressed below. 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. FINDING: The applicant's proposal is consistent with this goal because the property is zoned SM, which sets out to protect the mineral and aggregate resources at Site 496. In addition, in zoning the subject property SM, the Board found in the ESEE for Site 496 that the conflicting natural resource and the mineral and aggregate resource are important relative to one another and therefore, "both the mineral and aggregate resource and conflicting natural resources should be protected." As a result, the ESEE for 496, under the "Program to Meet the Goal" discontinued mining operations from HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 Page 9 Page of �— ordinance -Q,�S December 1 through April 30. The applicant is seeking flexibility, with the approval of ODFW, of mining operations during the winter months that will minimize adverse impacts on the wintering deer in the North Paulina deer winter range. With ODFW's support for the applicant's proposal to modify the ESEE and site plan to allow for general mining operations during the winter months, the Hearings Officer finds that this goal is met. Policy. 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. FINDING: In designating Site 496 Surface Mining Zone, the ESEE for Site 496 took into account the location, availability and value of mineral and aggregate resources, and conflicting resources, and provided a balance, through the "Program to Meet the Goal," between the mining use and the wildlife resources. The applicant proposes to change winter operating restrictions at Site 496 by allowing surface mining activities to occur from December 1 to April 30 subject to the specifications of ODFW. With ODFW's concurrence with the applicant's proposed modifications to the ESEE, the Hearings Officer finds that a continued balance between the surface mining use and the wildlife resources can be achieved at this site and, therefore, this goal is met. Policy: 20. The County may establish additional standards and procedures to minimize visual Impact, nolse, air and water pollution, natural and operating hazards and other environmental Impacts of the extraction and processing of the Impact area, where required as a result of a site-speciflc Goal 5 ESEE analysis. The County shall adopt and apply more stringent operating standards, If required by a site-specific Goal 5 ESEE analysis, where lands in the Impact area are zoned residential, landscape management, wildlife or other similar overlay zones, or where such Impact area has particularly sensitive resources or uses Identified In the comprehensive plan, such as wildlife nesting or spawning sites or Intensive recreational uses. FINDING: The subject surface mine is located in the WA Combining Zone because the property is located within the North Paulina deer winter range. The site-specific ESEE conditions for Site 496, currently require the applicant to discontinue the on-site operation of rock crushing equipment and mining operations from December 1 through April 30. The applicant is requesting flexibility in surface mining operations during the winter months to allow "general" mining operations, including extraction, hauling, stockpiling, washing rock and screening of rock." The Hearings Officer finds that it is appropriate to rely on the expertise of ODFW in determining whether the applicant's proposed modifications to the winter operating limitations for Site 496 will adequately protect wintering deer in the North Paulina deer winter range. Based upon ODFW's concurrence HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 Page 10 Page-- of 4 Ordinance .� with the applicant's proposal, the Hearings Officer finds the applicant's proposal is consistent with this policy. 2. Fish and Wildlife Chapter. pages 156-160 FINDINGS: The county's comprehensive plan contains a Fish and Wildlife chapter within the resource element that includes goals and policies also intended to implement Goal 5. GOALS: 1. To conserve and protect existing fish and wildlife areas. 2. To maintain all species at optimum levels to prevent serious depletion of indigenous species. 3. To develop and manage the lands and waters of this County in a manner that will enhance, where possible, the production and public enjoyment of wildlife. 4. To develop and maintain public access to lands and waters and the wildlife resources thereon. 5. To maintain wildlife diversity and habitats that support the wildlife diversity in the County. FINDINGS: The county has established the WA Zone to implement these goals. The subject property is located within the WA Zone because it lies within the North Paulina deer winter range. POLICIES: 1. In light of the need to protect deer winter range and to be consistent with plan policies restricting rural sprawl, the Metollus, North Paulina, Tumalo and Grizzly deer winter ranges shall be protected by special zones. The winter ranges shall be designated on the Big Game Habitat -Wildlife Area Combining Zone Map contained In this plan's resource element.... FINDINGS: The North Paulina deer winter range is protected by the WA Zone and the ESEE findings for Site 496 include special winter operating limitations to protect wintering deer within the North Paulina deer winter range. 10. The County shall notify the Oregon Department of Fish and Wildlife of all land use applications for lands located In the WA Combining Zone or the Sensitive Bird and Mammal Overlay Zone. FINDINGS: The Planning Division notified ODFW of the applicant's proposals and the record includes comments from ODFW. HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 Page 11 Wage -.4--.. of Ordinance ? M -!:.43s 3. Site -Specific ESEE Analysis for Site 496 FINDINGS: The "Conflict Analysis and ESEE Findings and Decision" for Site 496 was adopted through Ordinance 94-051 on November 2. 1994. This decision states in part, in the Conflicts Analysis for wildlife, the following: The County rinds that winter wildlife habitat for deer is a significant Goal 5 resource, in conflict with zoning for surface mining. Full protection of the deer winter habitat resource would preclude zoning for surface mining as surface mining results in the destruction of deer winter habitat, alters the topography to create deep holes where deer may become trapped by predators, and causes noise, dust emissions and an increased human presence which make the area less suitable for use as deer habitat." The "Program to Meet the Goal," in the ESEE for site 496, under item 22, subsection (d), states that the "operation of rock crushing equipment and mining operations shall be discontinued, on-site, from December 1 through April 30." The applicant proposes flexibility in winter mining operations to allow general mining operations (while discontinuing drilling, blasting and crushing). Comments received from ODFW state their concurrence with the applicant's proposal. The Hearings Officer finds that ODFW is the appropriate agency to rely on the expertise in determining whether the proposed modifications will adequately protect the wintering deer. However, the Hearings Officer finds that in addition to the proposed amendments listed above, another minor change to the ESEE for Site 496 needs to be made. Specifically, under item 23 of the "Conflicting Resources" (the new language is identified in bold underline): Conflicting Resources 23. The County finds that surface mining use of the site will be limited by conflicting Goal 5 resource considerations by the provisions for screening and buffering to mitigate noise and visual impact. The County further finds that the WietefelesW cessation of drilling, blasting and crushing at the site during -winter months will offer protection for deer and antelope herds. The County finds that the screening and buffering ESEE requirements are met by the screening and buffering requirements in the Deschutes County zoning ordinance. The County finds that such mitigation will not prevent the County from achieving its goal, since the site will be allowed to be mined. The County finds that the winter elesere cessation of drilling b_ lasting and — crushing in will not be unduly restrictive, Rleading 9f tFUSkS will be allewed. HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 "' !lUt Page 12 page -L;-- -- of . Ordinance 200ft-f-935' Further, condition 1(d) of the Conditions of Approval for SP -94-69 will need to be changed to reflect, and be consistent with, the proposed modifications to the winter operating guidelines in the ESEE for Site 496 and should be amended as follows:5 "(d) Drilling, blasting and crushing shall be discontinued, on-site, from December 1 through April 30. Other general mining operations, including extraction, hauling, stockpiling, washing rock and screening of rock, however, shall be permitted -subject to Section 18.52.110(1), Hours of Operation, of the Deschutes County Code." Based upon ODFW's concurrence with the applicant's proposal, the Hearings Officer finds that the modifications to winter mining operations for Site 496 will provide adequate protection for the North Paulina deer winter range resource while also protecting and preserving the mineral and aggregate resource on Site 496, consistent with Goal 5. C. Oregon Administrative Rules (OAR) Chapter 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 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. 5 Currently, Condition 1(d) of SP -94-69 states the following: 1. The applicant shall follow and meet all requirements of the site-specific ESEE analysis: d. Operation of rock crushing equipment and mining operations shall be discontinued, on- site, from December 1 through April 30. L,tiliiJi-- HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 — Page 13 Page of Jfo— Ordinance .e *2 (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 if: (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 a significant Goal 5 resource or to address specific requirements of Goal 5; ... The subject plan amendment is a Post Acknowledgement Plan Amendment (PAPA) which would amend the comprehensive plan to modify the ESEE findings for the subject property included on the county's inventory of significant mineral and aggregate resource sites. The application was accepted as complete on July 23, 2000 and, therefore, 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 (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 County has not amended its plan or land use regulations to incorporate the new Goal 5 rules. Therefore, the rules directly apply to the subject application. However, in a previous finding by the Hearings Officer for a similar plan amendment application located east of the subject property that also proposed modifications to the winter operating guidelines (PA -99-8), the Hearings Officer found that the applicability of this section of the rule is limited. Specifically, the Hearings Officer found: "However, l rind their application is limited because the subject property already is listed in the county's inventory of significant mineral and aggregate resources and the comprehensive plan already contains a conflicting use analysis, ESEE analysis and findings and a program to HEARINGS OFFICER DECISION PA -00-8 and SP-00-32te?M //Page 14 Page� -�2-Ordin achieve the goal for Site 404 which include the winter operating limitations at issue in these applications. l find the only provision of OAR 660-023-0180 that is applicable to the applicant's proposal is subsection (4)(e), which provides in pertinent part as follows: 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 . .." ..4 In the present case, a similar finding is appropriate for the subject application. The subject Surface Mining Site 496 is listed on the County's inventory list of significant mineral and aggregate resources and the comprehensive plan contains a conflicting use analysis, ESEE analysis and findings and a program to achieve the goal for Site 496 which includes the winter operating limitations. In addition, the Hearings Officer finds the "special conditions and procedures regulating mining" that limit winter operations on Site 496 to protect the North Paulina deer winter range resource are clear and objective and describe specific actions the applicant must take to conduct winter mining operations. Proposed changes to modify the winter mining operations also remain clear and objective. The proposed modifications will not exceed the minimum review or conditions required to assure compliance with Goal 5 and the administrative rules and will not deny mining for reasons unrelated to these requirements or attach additional approval requirements. IV. DECISION: Based on the ODFW's concurrence with the applicant's proposal and the above analysis, the Hearings Officer APPROVES the amendment to the comprehensive plan ESEE findings and the site plan for Site 496 as follows: The ESEE Findings and Decision for Site 496 attached to Ordinance 94-051 and included in the comprehensive plan, and the site plan for Site 496, shall be amended to include the following language replacing and superseding current winter operating limitation language: (d) Drilling, blasting and crushing shall be discontinued, on-site, from December 1 through April 30. Other general mining operations, including extraction, hauling, stockpiling, washing rock and screening of rock, however, shall be HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 .:.Mbit 3— - Page 15 Page _J_5L - Of _/k_ 3s; Ordinance U= - permitted -subject to Section 18.52.110(1), Hours of Operation, of the Deschutes County Code. 2. The ESEE Findings and Decision for Site 496 attached to Ordinance 94-051 and included in the comprehensive plan also shall be amended to include the following language, with the new language in bold underline, replacing and superseding the current language: Conflicting Resources 23. The County finds that surface mining use of the site will be limited by conflicting Goal 5 resource considerations by the provisions for screening and buffering to mitigate noise and visual impact. The County further finds that the cessation of drilling, blasting and crushing at the site during winter months will offer protection for deer and antelope herds. The County finds that the screening and buffering ESEE requirements are met by the screening and buffering requirements in the Deschutes County zoning ordinance. The County finds that such mitigation will not prevent the County from achieving its goal, since the site will be allowed to be mined. The County finds that the winter eleswre cessation of dri111ng. blasting and grushina will not be unduly restrictive, GiRGe *1 e8ebIF8 at 1118 01*18 Of the All other restrictions established for this site under the Conflict Analysis and ESEE Findings and Decision for Site 496 and the Conditions of Approval for SP -94-69 and CU - 94 -97 remain in place. DATED this J?"—day of October, 2000. MAILED this today of October, 2000. � M. is, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. HEARINGS OFFICER DECISION PA -00-8 and SP -00-32 P190 Jk Of Page 16 Ordinance ?P-60 �