Loading...
33-312-Order Recorded 10/5/1979VOL IN THE BOARD OF COUNTY COMMISSIONERS OF THE STATE OF OREGON FOR DESCHUTES COUNTY In the Matter of CU-79-9, ) FINDINGS OF FACT, Tumalo Irrigation District, ) CONCLUSIONS OF LAW Applicant. ) AND ORDER. 33 FACE 312 This matter came before the regular term of the Board of County Commissioners on September 25, 1979, on an appeal pursuant to County Procedural Ordinance PL-9, by the Tumalo Irrigation District, from the Decision of June 27, 1979, by the Deschutes County Planning Commission, denying conditional use permit application CU-79-9. The hearing was duly noticed. Monte Kennedy, Esq.represented the appli- cant, and Max Merrill, Esq. represented parties in opposition to the application within the zone of notification. Argument having been heard on the record, Exhibits 1 through 9 having been received from the Planning Director, considered, and Exhibits A through V having been received from the applicant and considered, and the Board being fully advised, has found and decided as follows: FINDINGS OF FACT The Board of County Commissioners hereby adopts the Findings of Fact of the Deschutes County Planning Commission dated July 25, 1979, attached hereto and incor- ported herein by reference, and makes the following additional findings: 1. The site of the proposed surface mine is within 700 feet of the Tumalo Grade School. The Board takes judicial notice that the sounds of the surface mine and air pollution emanating therefrom, would in the natural course of events travel to the Tumalo Grade School. The applicant has failed to show that the effects of this noise and air pollution would be neutralized by the construction of the school, its siting, or the natural features of the land between the proposed mining site and the grade school. Accordingly, it is concluded that the proposed mining activity would create noise disrupting the operation of the grade school, and the air pollution generated PAGE -1- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER 'vol. 33 PAGE 313 thereby would create an unhealthful condition for students attending the school. In addition, the applicant has not convinced the Board that it will prevent these effects in the operation of its proposed surface mine. 2. The parties proposing the application presented information that the pro- posed mining activity would harm them by creating dust, noise, and glare from the lights that would illuminate the site during night operations, and an unsightly condition that would substantially reduce the value of the surrounding property for residential use. The applicant failed to establish that it had any program to render the adverse impact of the use on property values, livability, and permiss- ible development of the surrounding area to be minimal. In order to sustain its burden of proof in this regard, the applicant would have to have shown how it could muffle the sound of its machinery to a level not substantially greater than the sounds produced by the traffic on Highway 20 as heard from the property within the zone of notification; it would have to have shown the availability of water and spray equipment sufficient to have prevented the drifting of dust from the site and to neighboring residential neighborhoods, and would have to have shown how it could screen the operation from view by all residences within the zone of notifica- tion. Furthermore, it would have to have shown the ability to realize a security system that would adequately protect the neighbors' children and pets from the truck traffic generated by the operation, and which would make the work site inaccess- ible to them. 3. Although the applicant expressed a willingness to reclaim the site after mining in accordance with a state-approved reclamation plan, the finish grade shown in Exhibit 6 of two to one would create a nuisance in respect to the surrounding residential uses. Considering the proximity of the surrounding residential uses and the accessibility of the site, the applicant would have to have shown a plan to restore the surface to a slope not substantially different than that existing prior to the mining, in order to have an acceptable reclamation plan. PAGE -2- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER s VOL `33 ?Au 314 4. It would be necessary to operate mining equipment on the site from 6:00 AM to 10:00 PM almost every day for two years, in order to complete the proposed excava- tion and reclamation. Considering the proximity of residential use, and taking administrative notice of the level of noise generated by earth moving equipment, and considering the failure of applicant to demonstrate any workable means for pro- tecting surrounding residents from this noise, it is concluded that the proposed mining would have a substantially disruptive effect on the surrounding residential uses. This noise would constitute a nuisance as to the surrounding residential prop- erty. It would interfere with the operation of Tumalo School during the day, and the peace, rest, and repose of the neighbors in the morning and evening hours. The applicant would have to have shown how it intended to neutralize the expected machin- ery noise in order to have its application approved. Based upon the above findings of fact, the Board adopts the Planning Commission's legal conclusions as follows: 1. The applicant has failed to sustain its burden of proof as required by County Zoning Ordinance PL-5 to the effect that the proposed location, size, design, and operating characteristics of the surface mine would have a minimal adverse impact on the property value, livability, and permissible development of the surrounding area. 2. That the applicant has failed to comply with Uniform Procedural Ordinance PL-9 in that it has failed to show that the proposed use is in compliance with the Deschutes County Comprehensive Plan, applicable County ordinances, and statewide planning goals. DECISION: For the reasons set forth above, conditional use application CU-79-9 is denied. DATED and ENTERED October .5- , 1979. Distribution: County Counsel Tumalo Irrigation District Monte Kennedy, Esq. Max Merrill, Esq. Century West Engineering Planning Director PAGE -3- FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER C f W"/ ROBERT C. PAULSON, JR., Commissioner girl VOL. tN WE 315 DESCHUTES COUNTY PLANNING COMMISSION DECISION AND FINDINGS Appeal. Hearing: June 27, 1979 File No: CU 79-9 Applicant : Tumalo Irrigation District Request: Conditional Use Permit to allow the operation of a Surface mine excavation site in an A-1, Exclusive Agriculture zone. Location: Approximately 1 mile northwest of Tumalo, 1,000 feet north of Hwy 20, or more specifically Tax Lot 400, Township 16S, Range 12 E, Section 30. The following findings and conclusions are based on the exhibits and evidence introduced at the Public Hearing held June 27, 1979. Burden Of Proof: In order for the Planning Commission to approve a Conditional Use request of the nature at hand, the applicable provisions of PL-5, Article 7, Section 7.015 must be considered. 1. That the location, size, design, and operating characteristics of the proposed use are such that it will have minimal adverse impact on the property value, livability and permissable development of the surrounding area. Consideration shall be given to compatibility in terms of size, coverage,•and density of the proposed use; to the alteration of traffic patterns and the capacity of surrounding streets and to any other relevant impact of the proposed use. 2. That the site planning of the proposed use will, as far as reasonably possible, provide an aesthetically pleasing and functional environment to the highest degree consistent with the nature of the use and the given setting. 3. If the use is permitted outright in another zone, that there is substantial reason for locating the use in an area where it is only conditionally allowed, as opposed to the zone area where it is permitted outright. 4. That the proposed use will be consistent with the purposes of the Deschutes County Zoning Ordinance, the Comprehensive Plan, Statewide Goals, and any other statues, ordinances, or policies that may be applicable. The Planning Commission must further find that the applicable provisions of PL-9, Uniform Procedure Ordinance, Section 6.000, Burden of Proof, has been complied with: If The applicant shall in all cases establish: a. Conformance with the Comprehensive Plan;and b. Conformance with all applicable statues; and c. Conformance with all applicable ordinance provisions setting forth the various criteria to be employed for rezoning, conditional uses and variances, and d. Conformance with statewide planning goals wherever the are determined to be applicable. ! s ' Decisions and Findings r VOL Tumalo Irrigation District CU-79-9 Page 2 FTNDTNr,S I. The Applicant has failed to sustain his burden of proof set forth in PL-5, that the location, size, design, and operating characteristics would have minimal adverse impact on the property value, livability, and permissable development of the surrounding area. The subject property is 50 acres in size, of which the proposed aggregate excavation site will be located on the southwest 10 acres. To the south west corner of the proposed excavation site is a horse training arena and property to the northwest and east are aggregate excavation sites, some current, and property to the north and west is vacant. The property surrounding the proposed 50 acre tract is currently zoned A-1, Exclusive Agriculture. The subject property has Class V and VII soils along with an existing excavation pit. The property is not on Farm Tax Deferral but is desig- nated on the Deschutes County Comprehensive Plan as Intensive Agriculture. The Applicant proposes access to the property from Highway 20 and plans a reclamation project after the excavation and processing has been completed. The Applicant proposes to submit a plan to be approved by the State Department of Geology and Mineral Industries and which will include the planting of grass. The Applicant's represents1tive, Century West Engineering Company, indicated the depth of the excavation would be approximately 12' in the entire 10 acre piece and would replace the topsoil and such initially removed to the level of the site after excavation and it is upon this that the grass was to be planted. The Applicant proposed to have the operating hours from 6:00 AM in the morning to 10:00 PM in the evening and would endeavor to control the noise and dust emission, the latter to be pursuant to the requirements of the DEQ. The Applicant also requested the stockpiling of the pro- cessed aggregate for a period of one year after the excavation was completed. In its opening statement, the Applicant's representative, Century West Engineering Company, stated that the Applicant had contacted the people affected and within the radius of noticfication and that there was approval of the excavation was completed. There was ample evidence of the adverse impact the 6:00 AM to 10:00 PM operation would have by the noise and dust upon their livability and lifestyle. There was no refutation of this by property owners who purportedly gave their approval to the proposed use to the Applicant prior to the Public Hearing. The absence of their names and appearance at the Public Hearing added nothing to the Applicant's cause. Decisions and Findings Tumalo Irrigation District kVOL 33 w 317 CU-79-9 Page 3 It appeared to be the Planning Commission that the Tumalo Irrigation District, being a public corporation, took too much for granted and further complicated itsdoings by incurring an engineering expense and in effect letting a contract for the removal and processing before any Public Hearing. The uncontradicted statements of two of the property owners were that the District had in effect acquiesced in granting the right to a contractor to sell and commit himself prior to any Public Hearing. To have known or even acknowledged what was an obvious commitment by the contractor to sell the aggregate for a sum of many thousands of dollars is inex- cusable and makes a mockery of the hearings process. The mere planting of grass after the excavation of 10 to 12 feet of aggregate upon the floor, without any landscaping, shrubs, or trees as part of the reclamation project is such a very bare minimum that is almost in the same vein as initially stated by the Applicant's represent- ative namely, he believed there would be no probliiael in the approval of the requested use and consequently did not concern himself with the minutiae of a presentation. II. The ance PL-9 ning Depar applicable applicant in the at tment's xep Ordinances d Statew ly with the Uniform utely nothing subse ompliance with the de Planninq Goals. Procedure Ordin- uent to the Plan- omprehensive Plan, The only written material submitted by the Applicant was a brief one- page letter dated February 23, 1979, explaining the nature of the request and the steps to reduce "objectionable effects from the site" by limiting the hours of operation from 6:OOAM to 10:00PM and requiring the excavation and processing to be completed in one year with the stockpiling of the processed aggregate on the site for an additional period of one year; also the reclamation plan approval by the State Department of Geology and Mineral Industries, and some self-serving declaration that the proposed use was in conformance with the Comp- rehensive Plan and the Statewide Planning Goals. No written material whatsoever was submitted of the Planning Department, March 14, nor pr on April 24. This is not in compliance with the Ordinance to the Tumalo Irrigation District because it would not be in the public interest and good after the Staff Report for to the Public Hearing and to ma_- an exception is a public use corporation of the County. SUMMARIZATION: The burden of proof criteria for the requested Conditional Use Permit for the operation of a surface mine excavation site has not been sustained by the Applicant nor has there been compliance with the Uniform Procedure Ordinance relating to written briefs showing compliance with the Comprehensive Plan and Statewide Planning Goals. failed to com there is abso ort showing Decisions and Findings fVOL Tumalo Irrigation District CU 79-9 Page 4 DECISION : The request is denied for the reasons aforesaid. DATED July l~'_ 1979 Respec ly Submitted Ted m h Deschutes County Planning Commission Chairman GC/ep cc: File Tumalo Irrigation District Century West Engineering Mr. Martin Winch j %E318