2003-794-Ordinance No. 2003-019 Recorded 4/28/2003REVIEWED
1—
LEGAL COUNSEL
REVIEWED
CODE REVIEW COMMITTEE
DESCHUTES COUNTY OFFICIAL RECORDS
NANCY BLANKENSHIP, COUNTY CLERK V 1003.194
COMMISSIONERS' JOURNAL
04/28/2003 05;00; i7 PM
2900=00IF' 64
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Title 23, the Deschutes
County Comprehensive Plan, to Revise the Mineral * ORDINANCE NO. 2003-019
and Aggregate Resource Inventory for Deschutes
County, and Declaring an Emergency.
WHEREAS, tax lots 2000 and 2100 in Section 35 of Township 16 South, Range 11 East, Willamette
Meridian (the subject sites), are designated as Surface Mining under the County's Zoning Ordinance; and
WHEREAS, the subject properties are listed as Site Nos. 355 and 356 on the County's inventory of
mineral and aggregate resource sites, as set forth in Exhibit "G" to Ordinance No. 90-025; and
WHEREAS, Cascade Pumice, Inc. and Tumalo Irrigation District have proposed an amendment to Title
23, File Number PA -02-8, to delete the subject properties from the County's inventory of significant mineral
and aggregate resources; and
WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with
applicable law, approved the proposed amendment; and
WHEREAS, after notice was given and hearing conducted on April 23, 2003, before the Board of
County Commissioners in accordance with applicable law, and after reviewing all the evidence presented at the
public hearing, the Board agrees with the findings of the Hearings Officer; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. The Resource Management section of Title 23, the Deschutes County
Year 2000 Comprehensive Plan, is amended to delete surface mining site nos. 355 and 356 from the County's
Goal 5 inventory of mineral and aggregate sites as set forth in Exhibit "A," attached hereto and incorporated
herein by this reference with deletions shown in strip.
Section 2. FINDINGS. The Board adopts as its findings in support of this decision, the Decision of the
Deschutes County Hearings Officer, attached hereto as Exhibit "B," and by this reference incorporated herein.
PAGE 1 OF 2 - ORDINANCE NO. 2003-019 (04/23/03)
Section 3. EMERGENCY. This Ordinance being necessary for the immediate preservation of the
public peace, health and safety, an emergency is declated to exist, and this Ordinance takes effect on its passage.
DATED this 23rd day of April, 2003.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY OREGON
TO DEWOL , hair
DENNIS R. LUKE, om issioner
MI EL M. DALY, C missioner
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Tom DeWolf t/
Dennis R. Luke
Michael M. Daly (/
ATTEST:
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 2003-019 (04/23/03)
EXHIBIT "A"
23.100.070. Goal 5 Inventory.
(anal S Inventnry — Mineral and Aooreuate gitpc
SITE
NO.
LEGAL DESCRIPTION
NAME
TYPE
QUANTITY*
QUALITY
ACCESS/LOCATION
246
151010-00-00205, 207, 300,
302,303
Tewalt
S & G
10,000
Good
Hwy 20
248
151012-00-00100
Crus
Cinders
30.2 M
Excellent
Cloverdale Road
249
151025-00-02502 2505
RL Coats
Rock
250,000
ODOT S ecs
251
151211 -DO -01400, 151214-
AO -00800
Cherry
S & G
125,000
Good
252
151200-00-04700 04701
Thornburgh
Rock
2.5 M
Good
271
151036-00-00800
Deschutes County
S & G
2 M
Mixed
Haff in on Loop Road
273
151117-00-00100
Deschutes County
S & G
75,000
Excellent
Fryrear Rd/Redmond-
Sisters
274
151117-00-00700
Deschutes County
S & G
Excellent
F ear Road
275
151100-00-02400
Deschutes County
S & G
175,000
Good
F rear Landfill
277
151011-00-01100
Oregon State Hwy
S & G
100,000
ODOT Specs
278
151140 -AO -00901, 151211-
DO -01200
State of Oregon
S & G
18,000
ODOT Specs
282
171000-00-00100
Crown Pacific
Cinders
100.000
Fair
283
171000-00-00100
Crown Pacific
Cinders
50,000
Fair
288
17111.1-00-00700
Tumalo Irrigation
S & G
250,000
Good
292
171112-00-00900
RL Coats
S & G
326,000
ODOT Specs
293
17112-00-00500, 600, 700,
800
RL Coats
S & G
3 M
ODOT Specs
294
171113-00-00817
Bend Aggregate
S & G
777,000
Excellent
Klil2gel Acres/Bend
296
171100-00-02702
Crown Pacific
Cinders
100,000
Excellent
Shevlin Park/Johnson Rd
297
171123-00-00100
Crown Pacific
Cinders
60,000
Johnson Rd/Tumalo
303
171207-00-00300
Cascade Pumice
Pumice
750,000
Good
303
171207-00-00300
Cascade Pumice
S & G
10.000
Good
305
171206 -CO -00100
RL Coats
S & G
150.000
ODOT S ecs
306
171206 -BO -00700
RL Coats
S & G
313
171433-00-00600
Deschutes County
S & G
100,000
Good
313
171433-00-00600 120
Deschutes County
Storage
Dodds Road/Alfalfa
314
171332-00-01100
Deschutes County
Dirt
150,000
Good
315
140900-00-02100
Stott
Rock
93.454 tons
ODOT S ecs
Highway 20
316
140900-00-00202
Black Butte Ranch
S & G
7 M
Good
317
140900-00-01300
Willamette Ind
Cinders
1.2 M
Good
322
141200-00-01801
Fred Gunzner
S & G
1.5 M
Mixed
Lower
Brid e/Terrebonne
322
141200-00-01801
Gunzner
Diatomite
500,000
Good
Lower
Brid e/Terrebonne
324
141200-00-00702
ODVA
S & G
490,000
Good
Lower
Brid e/Terrebonne
326
141236-00-00300 301
US Bank Trust
S & G
1.5 M
Good
330
141328-00-00702 703
Larry Davis
Cinders
50,000
Good
331
141329-00-00100 103
EA Moore
Cinders
100,000
Good
332
141329-00-00102
RL Coats
Cinders
2 M
Good
Northwest
Wa /Terrebonne
333
141329-00-00104
Robinson
Cinders
2.7 M
Good
335
141333-00-00890
Erwin
Cinders
100 000
Excellent
Pershall Way/Redmond
336
141333-00-00400 500
US Bank Trust
Cinders
4.5 M
Good
Cinder Butte/Redmond
339
141132-00-01500
Deschutes County
Dirt
200,000
Fill
Goodard Loo Bend
341
161000-00-00106
Young & Morgan
S & G
1 M
Good
342
220900-00-00203
Crown Pacific
Cinders
200,000
Good
345
161000-00-01000
Crown Pacific
Cinders
50,000 1
Good
346
161000-00-01000
Crown Pacific I
Cinders
50,000 1
Good
Goal 5 Inventory — Mineral and Aggregate Sites
PAGE 1 OF 3 — EXHIBIT "A" TO ORDINANCE 2003-019 (04/23/03)
SITE
NO.
LEGAL DESCRIPTION
NAME
TYPE
QUANTITY*
QUALITY
ACCESS/LOCATION
347
161101-00-00300
Deschutes County
Dirt
10,000
Good
351
161112-00-01401 1700 2000
Gisler/Russell
Cinders
150,000
Good
Innes Mkt/Innes Butte
355
Pumice
350600
Good
356
Pumice
2-M
Good
357
161136-DO-00100, 161100-
00-10400 10300
Tumalo Irrigation
Cinders
1 M
Johnson Road/Tumalo
357
161136-DO-00100, 161100-
00-10400 10300
Tumalo Irrigation
S & G
500,000
Good
357
161136-DO-00100, 161100-
00-10400 10300
Tumalo Irrigation
Pumice
500,000
Good
358
161231-DO-01100
Gisler
S & G
100,000
ODOT Specs
Hwy 20/Tumalo
361
161222-CO-02800
Oregon State Hwv
Cinders
700,000
Good
366
161230-00-00000
Oregon State Hwy
S & G
40,000
ODOT Specs
368
161220-00-00200
Bend Aggregate
S & G
570,000
Excellent
Twin Bridges/Tumalo
370
161231-DO-00400
Bend Aggregate
Plant Site
Storage
379
181100-00-01600
Oregon State Hwv
S & G
500,000
ODOT Specs
381
181125-CO-12600, 181126-00-
01600
Pieratt Bros
Cinders
50,000
Good
390
181214-00-00500 100
Deschutes County
Dirt
2 M
Landfill
391
181221-00-00200
Central OR
Pumice
Cinders
500,000
Good
392
181223-00-00300
Rose
Rock
10 M Est
Mixed
392
181223-00-00300
Rose
Dirt
7.5 M
Good
393
181225-00-01400
LT Contractors
Cinders
12.5 M
Good
Arnold Mkt Rd/SE of
Bend
394
181200-00-04400 04411
Windlinx
Cinders
270,000
Coarse
Hwy 97/South of Bend
395
181200-00-04300
Oregon State Hwv
Cinders
100.000
Good
400
181300-00-04501 04502
Eric Coats
S & G
2.5 M
ODOT Specs
404
191400-00-00200
Moon
S & G
1.3 M
Good
404
191400-00-00200
Moon
Rock
800,000 - 2 M
Good
Hwy 20/East of Bend
405
191400-00-00600
Oregon State Hwy
Aggregate
50 000
ODOT Specs
408
191600-00-01500
RL Coats
S & G
3 M
Good
413
201500-00-01400
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
414
201500-00-01500
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
415
201716-00-00700
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
416
201716-00-00200
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
417
201716-00-00900
Deschutes County
S & G
1 30,000
Good/Excellent
Hwy 20/East of Bend
418
201716-00-01000
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
419
201716-00-01300
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
421
212000-00-00900
RL Coats
S & G
500,000
Excellent
Hwy 20/Tumalo
423
211106-CO-00700
Ray Rothbard
S & G
100,000
Good
426
211100-00-00702
La Pine Redi-Mix
S & G
1 M
Good
427
211100-00-00701
Bill Bagley
S & G
40.000
Good
431
221100-00-00600
Russell
Cinders/
Rock
12 M/1.2 M
Good
Finley Butte
432
221100-00-00500
State of Oregon
Cinders
160,000
Good
433
211300-00-00101
La Pine Pumice
Lump
Pumice
10 M
Excellent
441
150903-00-00300
Willamette Ind
S & G
11 M
Good
442
150909-00-00400
Willamette Ind
S & G
6 M
Good
443
150917-00-00600
Willamette Ind
Rock
150,000
Fair
453
161209 10-00-00600 301
Robert Fullhart
S & G
704,000
ODOT Specs
459
141131-00-05200
Deschutes County
Cinders
50,000
Good
461
141300-00-01500, 1501, 1502,
1503 1505
Nolan
S & G
350,000
Good
461
141200-00-01501, 1502, 1503, 1
1505 1600
Franklin Nolan
Diatomite
2 M
Good
PAGE 2 OF 3 — EXHIBIT "A" TO ORDINANCE 2003-019 (04/23/03)
Goal 5 Inventory — Mineral and Aggregate Sites
SITE
NO.
LEGAL DESCRIPTION
NAME
TYPE
QUANTITY*
QUALITY
ACCESS/LOCATION
465
141333-00-00900
Oregon State Hwy
Cinders
100,000
Good
466
141333-00-00600
Fred Elliott
Cinders
5.5 M
Good
467
141333-00-00601
Knorr Rock Co
Cinders
5 M
Good
469
141131-00-00100
Deschutes Countv
Cinders
2 M
Fair
475
151012-00-00600
Deschutes County
Cinders
200,000
Good
Cloverdale Road
482
151300-00-00103
Deschutes County
Dirt
2 M
Good
Ne us Landfill
488
161230-00-00100, 600, 2000,
2100
Bend Aggregate
S & G
400,000
ODOT Specs
496
191400-00-00500
Ta for
S & G
1.8 M
Mixed
Hwy 20
498
191400-00-02200
Oregon State Hwv
S & G
200,000
ODOT Specs
499
191533-00-00200
Oregon State Hwy
S & G
50,000
ODOT Specs
500
191500-00-00099
Oregon State Hwy
S & G
130,000
ODOT Specs
501
191500-00-01600
Oregon State LLwy
S & G
50,000
ODOT Specs
503
191600-00-01300
Ore on State Hwy
S & G
200,000
ODOT Specs
505
201600-00-00400
Oregon State Hwy
S & G
275.000
ODOT Specs
506
201600-00-00600 700 800
Oregon State Hwy
S & G
36,000
ODOT Specs
508
201700-00-01000
State of Oregon
S & G
100,000
ODOT Specs
515
201801-00-00100
Oregon State Hwy
S & G
100,000
ODOT Specs
522
211900-00-01000
Ore on State Hwy
S & G
300,000
ODOT Specs
524
212000-00-01900
Oregon State Hwy
S & G
300,000
ODOT Specs
528
222110-00-00600
Oregon State Hwy
S & G
45,000
ODOT Specs
529
221100-00-00300
Oregon State Hwy
S & G
31,000
ODOT Specs
533
222100-00-00800
Oregon State Hwy
S & G
1 M
ODOT Specs
541
141035-00-02000, 2100, 2200,
2300 2400 2500 2600
Cyrus
Aggregate
528,000
Good
Inc Portions of TL
1800/1900
542
151001-00-02700
Swarens
ARP -rep -ate
80 000
Good
543
151013-00-00100
Crus
ARere2ate
1.1 M
Good
600
191400-00-00700
Robinson
S & G
3.8 M
Good
Hwy 20/East of Bend
601
211100-00-00700
La Pine Redi Mix
S & G
479,000
DEO S ecs
Paulina Lake Road
* quantity in cubic yards unless noted
(Ord. 2003-019 § 1, 2003; Ord. 2002-005 § 1, 2002; Ord. 2001-047 § 4, 2001; Ord. 2001-038 § 2, 2001;
Ord. 2001-027 § 1, 2001; Ord. 2000-017 § 1, 2000; Ord. 99-028, 1999; Ord. 99-019, 1999; Ord. 96-076,
1996; Ord. 95-041, 1995; Ord. 94-050,1994; Ord. 90-025, 1990; PL -20, 1979)
PAGE 3 OF 3 — EXHIBIT "A" TO ORDINANCE 2003-019 (04/23/03)
EXHIBIT 8
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: PA-02-8/ZC-02-4
APPLICANT/
PROPERTY OWNER:
Cascade Pumice, Inc.
P.O. Box 1087
Bend, Oregon 97709 �.3 4 5 s�
Surface Mining Site 355 >
4
03�/
. 0
Tumalo Irrigation District m
�1A 2003
64697 Cook Avenue .
Bend, Oregon 97701 N MAILED
Surface Mining Site 356 DESCHUTES
"'
c+ COUNTY
ATTORNEY:
Sharon R. Smith
Bryant, Lovlien & Jarvis, P.C. Ze' LZOZro,
P.O. Box 1151
Bend, Oregon 97709
Attorney for applicants
REQUEST:
The applicants are requesting approval of a plan amendment and
zone change from SM to EFU, and for removal of the associated
SMIA combining zone, for two parcels consisting of 160 acres
located adjacent to Tumalo Reservoir Road north of Bend.
STAFF REVIEWER:
Paul Blikstad, Associate Planner
HEARING DATE: December 3, 2002
RECORD CLOSED: January 24, 2003
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.16, Exclusive Farm Use (EFU) Zone
* Section 18.16.020, Uses Permitted Outright
2. Chapter 18.52, Surface Mining (SM) Zone
* Section 18.52.0200, Termination of the Surface Mining Zoning and
Surrounding Surface Mining Impact Area Combining Zone
3. Chapter 18.136, Amendments
* Section 18.136.020, Rezoning Standards
B. Deschutes County Year 2000 Comprehensive Plan
TID/Cascade Pumice
PA-02-8/ZC-02-4
Page I
Exhibit 8
Page I— of 1
Ordinance y1,W
C. Oregon Administrative Rules (OAR) Chapter 660
1. Division 12, Transportation Planning Rule
* OAR 660-12-060, Plan and Land Use Regulation Amendments
2. OAR 660, Division 15, Statewide Planning Goals and Guidelines
3. Division 23, Procedures and Requirements for Complying with Goal 5
* OAR 660-23-0180, Mineral and Aggregate Resources
H. FINDINGS OF FACT:
A. Location: The subject property consists of two parcels, identified as Surface Mining
Sites 355 and 356, located adjacent to Tumalo Reservoir Road at its intersection with
Mock Road. SM Site 355 is further identified as Tax Lot 2000 on Deschutes County
Assessor's Map 16-11-35. SM Site 356 is further identified as Tax Lot 2100 on
Assessor's Map 16-11-35. The address for the subject property is 19150 Tumalo
Reservoir Road, Bend.
B. Zoning and Plan Designation: The subject property is designated and zoned Surface
Mining (SM) and Sites 355 and 356 are included in the inventory of significant mineral
and aggregate resources in the county's comprehensive plan Goal 5 element. The
Environmental, Social, Energy and Economic (ESEE) analysis in the comprehensive plan
indicates the resource is pumice.
C. Site Description: SM Sites 355 and 356 are contiguous and vacant. Site 355 (Tax Lot
2000) consists of 120 acres and Site 356 (Tax Lot 2100) consists of 40 acres. The
undisturbed areas of the property have a vegetative cover of scattered juniper trees and
native brush. The portions of the property previously mined for pumice have been
reclaimed and revegetated, with topography consisting of a central level area near the
center of the property surrounded by higher rolling hillsides. There is a pond near the
southwest corner of Site 356.
D. Surrounding Zoning and Land Uses: To the east the subject property abuts another
surface mine (SM Site 357) owned by applicant Cascade Pumice zoned SM. Associated
with this mining site and Sites 355 and 356 is a SMIA Zone that extends one-half mile
from the boundaries of the SM Zone. To the north is land zoned Multiple Use
Agricultural (MUA-10) and developed with small farms and rural residences. To the west
and south is land zoned Exclusive Farm Use-Tumalo/Redmond/Bend Subzone (EFU-
TRB) and developed with medium- to large-scale farms engaged in livestock grazing on
irrigated pasture and dry ground, as well as irrigated hay production. A Landscape
Management (LM) Combining Zone is located adjacent to both Tumalo Reservoir Road
and Tyler Road west of the subject property. All surrounding land is privately owned.
' The Staff Report states the subject property was erroneously described in the comprehensive plan as
located within the boundaries of the Tumalo Deer Winter Range, but that this error was corrected by
adoption of Ordinance No. 92-044 which deleted all references to the deer winter range in the ESEE
analysis for SM Sites 355 and 356.
TID/Cascade Pumice Exhibit Q
PA-02-8/ZC-02-4 Page �_ of 1 3
Page 2 9
Ordinance A003 -a19
E. Procedural History: In October 1993, the applicants requested site plan approval to
operate a surface mine on the subject property (SP -93-127). In February 1994, former
Hearings Officer Chris Eck issued a decision approving the site plan with conditions.
The hearings officer's decision was appealed on February 18, 1994. No decision having
been issued on the appeal by the Deschutes County Board of Commissioners, on
September 30, 1994 Cascade Pumice filed an action for a writ of mandamus in the
Deschutes County circuit court. On October 28, 1994 the board of commissioners issued
a decision denying the requested site plan approval. On November 15, 1994, Cascade
Pumice filed an appeal with the Land Use Board of Appeals. LUBA stayed the appeal
pending settlement negotiations.
On November 9, 1995, the parties executed a settlement agreement which resulted in the
board of commissioners issuing a "substitute decision" approving the requested surface
mining site plan subject to several conditions. Specifically, the decision required: 1) that
all mining on the subject property be completed within 4 years of the date the decision
became final; 2) that all reclamation be completed no later than five months after the
cessation of mining; and 3) that following the completion of mining and reclamation,
applicant Cascade Pumice apply to have the subject property "rezoned to a nonmining
designation consistent with the comprehensive plan designation for surrounding
properties." The "substitute decision" was issued on December 13, 1995. Therefore,
pursuant to the settlement agreement and decision, mining was to cease by December 13,
1999 and reclamation was to be completed by May 13, 2000. On February 23, 1996, the
county issued a surface mining use permit for the subject property.
The record includes a letter dated July 24, 2002, from applicant Cascade Pumice stating
that the removal of all pumice was completed in December of 1999 and reclamation was
completed in May of 2000. The subject plan amendment and zone change applications
were submitted on October 4, 2002. The county accepted these applications as complete
on November 4, 2002. The plan amendment and zone change applications are not subject
to the 150 -day period for issuance of a final local land use decision under ORS 215.427.
However, the applications are subject to a 180 -day period for issuance of a final decision
under the provisions of Oregon Administrative Rules (OAR) 660, Division 23, which
establish standards and procedures for adoption of post -acknowledgment plan
amendments concerning zsignificant mineral and aggregate sites. The 180 -day period
expires on May 5, 2003. The applicants also submitted concurrent applications for a
partition and for conditional use permits for three nonfarm dwellings. By letter dated
October 4, 2002, the applicants agreed to toll the 150 -day time period for the partition
and conditional use applications while the plan amendment and zone change applications
are being processed.
A public hearing on the plan amendment and zone change applications was held on
December 3, 2002. At the public hearing, the Hearings Officer left the written
evidentiary record open through December 23, 2002, and allowed the applicants through
December 30, 2002, to submit final argument pursuant to ORS 197.763. The Hearings
Officer conducted a site visit to the subject property and vicinity and issued a site visit
report on December 20, 2002. On that date, the Hearings Officer also issued an order
extending the written evidentiary record through December 30, 2002, and allowing the
applicants through January 6, 2003, to submit final argument. By letter dated December
20, 2002, the applicants requested that the written evidentiary record remain open
through January 20, 2003, to allow the applicants to consider whether to modify the
2 The last day of the extended 180 -day period falls on Saturday, May 3, 2003. Therefore, the 180 -day
period expires on Monday, May 5, 2003.
TID/Cascade Pumice Exhibit
PA-02-8/ZC-02-4 Page of 13
Page 3
Ordinance 2-003-01ct
application. By letter dated January 24, 2003, the applicants indicated they would not
submit a modification and waived the remaining argument period. The record closed on
that date. As of the date of this decision there remain 63 days in the 180 -day period.
F. Proposal: The applicants are requesting approval of a plan amendment and zone change
from SM to EFU-TRB for the subject property. The applicants' burden of proof states
mining and reclamation of SM Sites 355 and 356 have been completed. The burden of
proof also states applicant Cascade Pumice intends to partition Tax Lot 2000 into three
parcels and to obtain approval for a nonfarm dwelling on each parcel. The burden of
proof does not state applicant Tumalo Irrigation District's (TID's) plans for Tax Lot
2100. The Staff Report speculates TID may seek to divide Tax Lot 2100 into two parcels
and to obtain approval for a nonfarm dwelling on each parcel. The applicants also are
requesting that the SMIA Zone associated with SM Sites 355 and 356 be removed.
Finally, the applicants are requesting that the comprehensive plan be amended to remove
SM Sites 355 and 356 from the county's inventory of significant mineral and aggregate
resources.
G. Public/Private Agency Comments: The Planning Division mailed written notice of the
applicants' proposal to a number of public and private agencies and received responses
from: the Deschutes County Property Address Coordinator, Environmental Health
Division and Assessor; the Bend Fire Department; the Oregon Water Resources
Department, Watermaster-District 11; and the Oregon Department of Fish and Wildlife.
These comments are set forth verbatim at pages 3-4 of the Staff Report and/or are
included in the record. The following agencies did not respond to the notice: the
Deschutes County Road Department; the Oregon Departments of Transportation, Fish
and Wildlife and Geology and Mineral Industries (DOGAMI); Central Electric
Cooperative; and Pacific Power and Light.
H. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicants' proposal and the public hearing to the owners of record of all property
located within 750 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 in this matter
closed, the county had received no letters in response to these notices. Two members of
the public testified at the public hearing. Public comments are addressed in the findings
below.
I. Lot of Record: The Staff Report states the county recognizes the subject property as
constituting two legal lots of record.
M. CONCLUSIONS OF LAW:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.52, Surface Mining (SM) Zone
a. Section 18.52.200, Termination of the Surface Mining Zoning and
Surrounding Surface Mining Impact Area Combining Zone
A. When a surface mining site has been fully or partially mined,
and the operator demonstrates that a significant resource no
longer exists on the site, and that the site has been reclaimed in
accordance with the reclamation plan approved by DOGAMI
TID/Cascade Pumice or the reclamation provisions of this title, the property shall be
PA-02-8/ZC-02-4 Exhibit -
Page 4 page 44 of / 3
Ordinance -29 0-013
rezoned to the subsequent use zone identified in the surface
mining element of the Comprehensive Plan.
B. Concurrent with such rezoning, any surface mining impact
area combining zone which surrounds the rezoned surface
mining site shall be removed. Rezoning shall be subject to
chapter 18.136 and all other applicable sections of this title, the
Comprehensive Plan and Deschutes County Code Title 22, the
Uniform Development Procedures Ordinance.
FINDINGS: The county's comprehensive plan inventory of significant mineral and aggregate
resources describes SM Sites 355 and 356 as follows:
Site No.
Legal Description
Name
Type
Quantity
Quali
355
16-11-35-2100
Cascade
Pumice
750,000 to
Exclnt
Pumice
1 mill. cy
356
16-11-35-2000
Tumalo
Pumice
500,000 cy
Exclnt
Irrigation Dist.
The Hearings Officer finds Section 18.52.200 requires the applicants to demonstrate that three
conditions are met before the sites can be removed from the inventory and rezoned: 1) that the
sites have been fully or partially mined; 2) that a significant resource no longer exists on the
sites; and 3) that the sites have been reclaimed in accordance with the DOGAMI-approved
reclamation plan. Each of these conditions is discussed in the findings below.
1. Site Fully or Partially Mined. This provision authorizes removal of a site from the inventory
of significant mineral and aggregate resources if it has been fully or partially mined. The
applicants' evidence consists of a July 24, 2002, letter from Dugan Pearsall, president of
applicant Cascade Pumice, which states:
"This letter is to confirm that Cascade Pumice has completed the removal of
pumice aggregate from Deschutes County mining sites 355 and 356. Extraction
was completed in December 1999, with reclamation being completed in May of
2000. I have forwarded letters to you from DOGAMI that verify the work has
been completed. "
In addition, at the public hearing Mr. Pearsall testified Cascade Pumice removed approximately
3 million cubic yards of pumice from the subject property and 1.6 million cubic yards remain.
The Hearings Officer finds this evidence is sufficient to support a finding that Sites 355 and 356
have been "partially mined" and therefore the applicants have demonstrated compliance with this
criterion.
2. A significant resource no longer exists on the site This provision authorizes removal of a
site from the inventory of significant mineral and aggregate resources if mining of the site has
extracted enough of the resource so that a "significant" resource no longer exists warranting
protection through SM zoning. This Hearings Officer's previous decision in Stott (PA-98-12/ZC-
98-6) includes an extensive discussion of the standards for determining what constitutes a
"significant" resource. I found that neither Title 18 nor the comprehensive plan contains a
definition of "significant" for purposes of Section 18.52.200 or specific standards for
determining significance. I concluded that the Goal 5 administrative rules in OAR 660 Chapter
23 establish the applicable standards for determining whether to remove a surface mining site
TID/Cascade Pumice Q
PA-02-8/ZC-02-4 Exhibit
Page 5 page S of /3
Ordinance X003-0191
from an adopted Goal 5 inventory through a post -acknowledgment plan amendment ("PAPA")
such as that requested by the applicants. I adhere to that ruling here.
OAR 660-023-0180(3)(a) establishes standards for determining whether a site is "significant."
Subsection (3)(a) provides in pertinent part:
(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.
The resource on the subject property is pumice. The Hearings Officer is aware that pumice does
not meet MOT standards for base rock.3 And as discussed above the county has not established
a "significance" standard. The subject property does meet the criterion in paragraph (c) because
it is included in the county's inventory of significant mineral and aggregate sites that was
acknowledged prior to the effective date of the Goal 5 administrative rules in 1996. In addition,
as discussed above, Mr. Pearsall testified at the public hearing that approximately 1.6 million
cubic yards of pumice remain on the subject property. However, I made the following findings in
Stott:
"[Applying criterion (c)] ... would create a "Catch-22 " where, as here, the
applicant is seeking to remove a site from the inventory as no longer
'significant. ' Consequently, I find the 'significant' standard in paragraph (c)
should not be applied to PAPAS requesting removal of a site from an
acknowledged inventory."
The Hearings Officer also adheres to that finding. For these reasons, because the pumice
resource on the subject property does not meet MOT standards and the county has not
established standards for "significant" resources, I find the applicants have demonstrated a
significant resource no longer exists on the subject property.4
3. Site Reclamation. This provision authorizes removal of a site from the inventory of
significant mineral and aggregate resources if the site has been reclaimed in accordance with the
3 In Central Oregon, aggregate resources meeting ODOT standards typically consist of basalt.
4 The Hearings Officer notes this discussion of "significance" is only academic in light of the board of
county commissioners' December 1995 decision approving surface mining on the subject property on the
condition that all mining be completed within four years of that decision. In reaching the settlement
agreement that produced the board's decision, the parties clearly contemplated that mining would cease
on that date regardless of whether a significant resource remained on the site.
TID/Cascade Pumice Exhibit
PA-02-8/ZC-02-4
Page 6 Page - of 13
Ordinance o`4V3-0/9
reclamation plan approved by DOGAMI. The applicants' evidence concerning reclamation
consists of a November 12, 2002, letter from Robert Houston, a natural resource specialist at
DOGAMI. The letter states Site 356 has been reclaimed and that all of Site 355 has been
reclaimed except a one -acre area that is exempt from DOGAMI's reclamation requirements
because of its status as a "pre-existing site." Based upon this evidence, the Hearings Officer
finds the applicants have demonstrated the subject property has been reclaimed.
For the foregoing reasons, the Hearings Officer finds the applicants have demonstrated the
proposed plan amendment and zone change satisfy the requirements of Section 18.52.200, and
therefore the SM zoning designation of, and SMIA zoning designation associated with, SM Sites
355 and 356 should be removed.
2. Chapter 18.16, Exclusive Farm Use (EFU) Zone
a. Section 18.16.020, Uses Permitted Outright
The following uses and their accessory uses are permitted outright:
A. Farm use as defined in this title.
FINDINGS: The applicants propose to rezone the subject property from SM to EFU.5 As
discussed above, the applicants have submitted concurrent applications to partition the subject
property and to obtain conditional use approval for several nonfarm dwellings. Thus, the
applicants are not seeking to convert the subject property to farm use.
The subject property has experienced significant soil disturbance and topography change as the
result of mining and reclamation. For these reasons, at the public hearing the Hearings Officer
questioned why the applicants were not requesting approval to rezone the subject property to
MUA-10 like the land to the north that is developed with small "hobby" farms and rural
residences. However, members of the public who testified at the public hearing expressed
concern about the large number of potential lots that could be created on the subject property if it
were rezoned to NWA- 10. In addition, rezoning the subject property to NWA- 10 would require a
goal exception.b The applicants requested and were granted an extension of the written record to
consider submitting a modified application requesting MUA-10 zoning and a goal exception, but
ultimately declined to modify the application.
The record includes a computer-generated soils map created in conjunction with the pending
nonfarm dwelling applications that shows the subject property consists of the same five soil
types that occur on surrounding parcels zoned EFU and engaged in farm use. In addition, in the
Hearings Officer's site visit report, I made the following observations about the subject property
and vicinity:
7 observed that the area in the vicinity of the subject property to the east and
5 The aforementioned settlement agreement did not specify the ultimate zoning of the subject property
following completion of mining and reclamation.
6 The record indicates the subject property is not included in a designated exceptions area on the
Exceptions Area Maps produced by the county in 1977.
TID/Cascade Pumice B
PA-02-8/ZC-02-4 Exhibit
Page 7 Page Z of J 3
Ordinance 2 -01
south consists of rolling terrain and small- to medium -scale agricultural
operations consisting of livestock grazing and hay production... I observed that
the previously mined area has been contoured and replanted with grasses and
other native vegetation... I observed that much of the northwestern area of the
[subject] property is a level plateau that has not been mined and is covered with
native vegetation. I also observed medium- to large-scale farm operations to the
west of the subject property... It was my impression from my site visit that the
slopes in the reclaimed area on the subject property are not significantly steeper
than natural rolling terrain that exists in the much of the surrounding area
including cultivated pastures. "
In other words, I concluded from my site visit observations that in spite of the mining and
reclamation activity on the subject property, it resembles in slope and vegetation the surrounding
lands zoned EFU and engaged in farm use.
For the foregoing reasons, the Hearings Officer finds the applicants' proposal to rezone the
subject property to EFU is appropriate in light of the subject property's soils and topography and
the nature of the surrounding parcels.
3. 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: Staff finds that the following goals and policies in the surface mining element of
the Comprehensive plan are relevant to the application:
Surface Mining Goals and Policies (Chapter 23.100)
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.
The applicants propose to rezone the subject site from the SM to EFU. As discussed above, SM
Sites 355 and 356 were identified in both the county's inventory of significant mineral and
aggregate resources and ESEE analysis as containing 1,250,000 to 1,500,00 cubic yards of
pumice. The ESEE analysis concluded the resource should be protected by allowing mining with
conditions to minimize adverse impacts. As discussed above, following settlement negotiations
between the applicants and neighboring property owners, the board of county commissioners
issued a decision allowing surface mining for a four-year period. The board presumably
concluded this period was sufficient to extract the resource, and the aforementioned letter from
Cascade Pumice indicates the pumice was fully mined. Therefore, the Hearings Officer finds
rezoning the subject property to EFU satisfies this surface mining goal.
TID/Cascade Pumice
PA-02-8/ZC-02-4 Exhibit
Page 8 Page of 13
Ordinance �Qjq
Surface Mining Identification and Designation
C. 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.
FINDINGS: In the Hearings Officer's previous decision in Stott, I found that under the Goal 5
administrative rules in OAR 660 Division 23, the relative significance of a particular mineral and
aggregate site is not relevant in determining if the site should be on the inventory. Rather, the site
must be included on the inventory if it meets the threshold criteria for a "significant" site under
OAR 660-023-0180(3)(a). Because I have found the applicants have demonstrated the subject
property no longer contains a "significant" resource, I find this policy supports the applicants'
proposal to remove the subject property from the significant mineral and aggregate resources
inventory.
e. 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: In Stott, the Hearings Officer found that this policy signifies a site should not be
excluded from the inventory of significant mineral and aggregate sites simply because there are
other inventoried and SM -zoned sites that are meeting the county's demand for mineral and
aggregate resources. However, the Staff Report states, and I concur, that the county's
comprehensive plan provisions governing mineral and aggregate resources treat pumice
resources as less significant than aggregate material that meets ODOT specifications for road
building. That is because pumice typically is used for other purposes such as cat litter, cleanser
and for stone washing material. Nevertheless, I am aware that significant pumice resources
remain on the county's mineral and aggregate inventory. And in any case, as discussed above the
applicants have demonstrated the pumice resource on the subject property has been extracted.
Therefore, I find the applicants' proposal is consistent with this policy.
h. 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 proposal's compliance with the Goal 5 administrative rules is discussed in the
findings above. The Hearings Officer has found the subject property no longer contains a
"significant" resource and therefore it need not be retained on the county's inventory of
significant mineral and aggregate resources and its removal from the inventory is consistent with
this policy.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: Section 18.16.010 states the purpose of the EFU zone "is to preserve and maintain
agricultural lands and to serve as a sanctuary for farm uses." The applicants propose to rezone
the subject property from SM to EFU. The record indicates that before Tax Lots 2000 and 2100
were zoned SM in November of 1979, they were zoned A-1 -- Exclusive Agricultural (Tax Lot
2100), and A-1 and ARA -- Exclusive Agricultural — UBC — (Tax Lot 2000). The subject
property also was designated Agriculture on the County Comprehensive Plan map adopted in
TID/Cascade Pumice
PA-02-8/ZC-02-4 Page of _ 3�
Page 9
Ordir, nce 2-W3-019
1979. The zoning map in the record indicates the predominant zoning surrounding the subject
property is EFU. As discussed in the findings above, incorporated by reference herein, the
Hearings Officer has found EFU is the appropriate zone for the subject property considering its
soils and topography. Therefore, I find the applicants' proposal is consistent with the purpose of
the EFU Zone.
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 Hearings Officer finds the proposed zone change from SM to EFU will not
affect the availability and efficiency of providing necessary public services and facilities. Given
the existing development on parcels surrounding the subject property, I find public services such
as water, electricity, telephone, fire and police services are available and will be available to any
dwellings established on the subject property. Land uses on surrounding property include surface
mining, farm use and rural residences. As discussed above, the purpose of the EFU Zone is to
protect land for agricultural use. The purpose of the comprehensive plan goals and policies
implementing Goal 5 is to protect significant mineral and aggregate resources. I find rezoning
the subject property from SM to EFU will be consistent with these policies because there no
longer is a significant resource on the subject property, and uses permitted in the EFU Zone are
those that will not adversely impact surrounding farm operations. Any nonfarm dwellings
established on the subject property can be approved only if they meet the stringent criteria for
their approval in Chapter 18.16 of Title 18. Therefore, I find the applicants' proposal satisfies
this criterion.
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: There is no evidence in the record that the subject property's SM zoning was a
mistake. As discussed above, SM Sites 355 and 356 were included in the county's inventory of
significant mineral and aggregate resources because of the estimated quantity and quality of
pumice resource on the subject property. However, the Hearings Officer finds the applicants
have demonstrated there have been changes of circumstance since the subject property was
zoned SM. Specifically, the pumice resource has been extracted, reclamation has been
completed, and the board of county commissioners' December 1995 decision required the
applicants to obtain a rezoning of the subject property following completion of mining and
reclamation.
B. Oregon Administrative Rules
1. 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
TID/Cascade Pumice transportation facility shall assure that allowed land uses are
PA-02-8/ZC-02-4
Page 10 Exhibit
Page 10 of _/,3._,
Ordinance 3 —3-0!
consistent with the identified function, capacity, and level of
service of the facility. This shall be accomplished by either:
(a) Limiting allowed land uses to be consistent with the
planned function, capacity and level of service of the
transportation facility;
(b) Amending the TSP to provide transportation facilities
adequate to support the proposed land uses consistent
with the requirements of this division; or
(c) Altering land use designations, densities, or design
requirements to reduce demand for automobile travel
and meet travel needs through other modes.
(2) A plan or land use regulation amendment significantly affects
a transportation facility if it:
(a) Changes the functional classification of an existing or
planned transportation facility;
(b) Changes standards implementing a functional
classification system;
(c) Allows types or levels of land uses which would result in
levels of travel or access which are inconsistent with the
functional classification of a transportation facility; or
(d) Would reduce the level of service of the facility below
the minimum acceptable level identified in the TSP.
FINDINGS: The Hearings Officer finds this administrative rule applies to the applicant's
proposal because it requests an amendment to an acknowledged comprehensive plan. The Staff
Report states, and I concur, that the subject property, consisting of two tax lots, potentially can
be partitioned into five parcels, three on Tax Lot 2000 and two on Tax Lot 2100. In addition,
these five parcels potentially could be developed with 5 nonfarm dwellings. I am aware the
Institute of Transportation Engineers' Trip Generation Manual (ITE Manual) predicts each
single-family dwelling generates 9.5 vehicle trips per day. Therefore, at most, development of
the subject property with 5 nonfarm dwellings would add approximately 48 vehicle trips per day
to Tumalo Reservoir Road which the record indicates is a designated a rural collector road with a
design capacity of 1,000 to 5,000 vehicle trips per day. The Staff Report states the latest
available county road department traffic counts for Tumalo Reservoir Road indicate the road in
the vicinity of the subject property currently experiences only 246 vehicles per day. Therefore, I
find Tumalo Reservoir Road has more than sufficient capacity to handle the additional traffic
that would be generated by residential development of the subject property. Therefore, I find
rezoning the subject property from SM to EFU will not significantly affect a transportation
facility.
2. OAR 660, Division 15, Statewide Planning Goals and Guidelines
FINDINGS: The Hearings Officer makes the following findings concerning the proposal's
compliance with the statewide planning goals:
TID/Cascade Pumice
PA-02-8/ZC-02-4 Exhibit 8
Page 11 Page I I - of 13
Ordinance Ar9..3i-.QL4
Goal 1, Citizen Involvement. The Planning Division provided notice of the 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 published in the "Bend Bulletin" newspaper. In addition, a public hearing was
held on the proposed plan amendment.
Goal 2, Land Use Planning. Goals, policies and processes related to surface mining applications
are included in the comprehensive plan, the zoning ordinance and the Goal 5 administrative
rules. The application of the applicable processes and regulations is documented within this
decision and in the record.
Goal 3, Agricultural Lands. As discussed in the findings above, the Hearings Officer has found
the applicants' proposal is consistent with the goal of protecting agricultural land because it
would rezone the subject property from SM to EFU.
Goal 4, Forest Lands. The Hearings Officer finds this goal is not applicable to the applicants'
proposal because the subject property and surrounding lands do not constitute forest land.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The applicants'
proposal would remove SM Sites 355 and 356 from the county's inventory of significant mineral
and aggregate resource sites. However, as discussed above, the Hearings Officer has found the
subject property no longer has a significant pumice resource requiring Goal 5 protection through
SM zoning. Therefore, I find the applicants' proposal is consistent with Goal 5.
Goal 6, Air, Water and Land Resources Quality. The Hearings Officer finds rezoning the
subject property from SM to EFU will not impact the quality of the air, water, and land
resources.
Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds this goal
is not applicable to the applicants' proposal because the subject property is not located in a
known natural disaster or hazard area.
Goal 8, Recreational Needs. The Hearings Officer finds this goal is not applicable because the
proposed zone change from SM to EFU will not effect recreational needs or resources.
Goal 9, Economy of the State. The purpose of this goal is to provide adequate opportunities
throughout the state for a variety of economic activities. Because the pumice resource has been
extracted from SM Sites 355 and 356, the Hearings Officer finds removal of the subject property
from the county's inventory of significant mineral and aggregate resources will not have any
impacts on economic activities or opportunities.
Goal 10, Housing. The Hearings Officer finds the applicants' proposal is consistent with this
goal because rezoning the subject property from SM to EFU makes it possible for up to five new
dwellings to be developed on the subject property.
Goal 11, Public Facilities and Services. As discussed in the findings above, the Hearings
TID/Cascade Pumice
PA-02-8/ZC-02-4
Page 12
Exhibit
0
Page 1 of -13
Ordinar oo .2 -3 -C -Y`)
Officer has found necessary public facilities and services will be available to any dwellings
established on the subject property. In addition, I find the applicants' proposal will have no
adverse effect on the provision of public facilities and services to surrounding property.
Goal 12, Transportation. As discussed in the findings above, incorporated by reference herein,
the Hearings Officer has found the applicants' proposed zone change from SM to EFU will not
significantly affect a transportation facility. At most, residential development of the subject
property could generate an additional 48 vehicle trips per day on Tumalo Reservoir Road.
Goal 13, Energy Conservation. The Hearings Officer finds rezoning the subject property from
SM to EFU will have little if any effect on energy use or conservation since the pumice resource
has been extracted from the property, residential development of the property will utilize very
little energy compared to extraction of pumice through mining.
Goal 14, Urbanization. The Hearings Officer finds this goal is not applicable to the applicants'
proposal because the subject property is not located within an urban growth boundary and does
not promote the urbanization of rural land.
Goals 15 through 19. The Hearings Officer finds these goals, which address river, ocean, and
estuarine resources, are not applicable to the applicants' proposal because the subject property is
not located in or adjacent to any such areas or resources.
IV. DECISION:
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
RECOMMENDS APPROVAL of the applicants' requests to approve a plan amendment and
zone change from SM to EFU-TRB, to delete SM Sites 355 and 356 from the county's
comprehensive plan inventory of significant mineral and aggregate resources, and to delete the
SMIA Zone associated with SM Sites 355 and 356.
Dated this 4 L day of March, 2003.
Mailed this!�ZAday of March, 2003.
% J i
Karen H. Green, Hearings Officer
TID/Cascade Pumice
PA-02-8/ZC-02-4 Exhibit
Page 13 Page -13 of 0
Ordinance�q