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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