2004-1473-Minutes for Meeting December 14,2004 Recorded 12/29/2004DESCHUTES COUNTY OFFICIAL RECORDS
vu 004.1413
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL 1��Zg�Z444 03;41:15 PM
111111111111111111111111111 IIII2004-1
DESCHUTES COUNTY CLERK
CERTIFICATE PAGE
-r- -
This page must be included
if document is re-recorded.
Do Not remove from original document.
�v�ES C
w �
0 { Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF DELIBERATIONS
DESCHUTES COUNTY BOARD OF COMMISSIONERS
TUESDAY, DECEMBER 14, 2004
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
The purpose of the hearing was to discuss File #A-04-8 (CU -02-102 and SP -02-
51), the Hearings Officer's decision denying conditional use and site plan
applications that propose to relocate certain existing solid waste disposal facilities
at the Knott Landfill to the 70 -acre North Development Area.
Present were Commissioners Dennis R. Luke, Tom DeWolf and Michael M. Daly.
Also present were Mark Pilliod and Laurie Craghead, Legal Counsel; Catharine
White and Kevin Harrison, Community Development; Timm Schimke, Solid Waste
Department; and five other citizens. No representatives of the media were present.
Chair Daly opened the meeting at 10:00 a.m.
Chair Daly read the opening statement at this time. (A copy is attached as Exhibit
A)
In regard to pre -hearing contacts, bias or ex parte contacts, or conflicts of interest,
Commissioner Luke stated that at the last Solid Waste Department update he spoke
with a representative of the Department of Environmental Quality. He asked them
if this were to go forward, how long might it take for a permit to be processed.
Commissioner DeWolf stated that a conflict of interest is defined as free perks. He
said he does have a bias, having worked on this issue for a long time. He said he
has studied the situation thoroughly and believes without question that the life of
the landfill needs to be maximized within all safe and healthy means available.
Ms. Craghead asked if this bias would prevent Commissioner DeWolf from being
able to make a judgment based upon the facts presented in the land use criteria.
Minutes of Deliberations — Knott Landfill Expansion Appeal
Tuesday, December 14, 2004 Page 1 of 8 Pages
Commissioner DeWolf indicated that he can make an unbiased decision based on
the criteria, keeping his intentions regarding the landfill in mind.
Commissioner Daly stated that he had lunch with Timm Schimke, the Director of
Solid Waste, and they did discuss some issues, primarily regarding future plans
dealing with rock. He said that he wanted to find out what had been discussed and
what had taken place before he became a Commissioner.
Chair Daly continued reading the opening statement. No written challenges or
challenges from the audience were offered.
Catharine White gave an overview of the staff report and the history of the issue.
The Hearings Officer found that the applicant could meet requirements with one
exception — the issuance of a DEQ permit. State statute language does not require
a DEQ permit prior to a conditional use permit being issued, but the Hearings
Officer found that the DEQ permit should be issued prior to the conditional use
permit.
One letter was received during the argument period from Julie Everhardt Wheeler.
A second letter was received on December 6 from the Marcottes, but it came in
after the final date. Therefore, the Board needs to decide whether to allow it into
the record.
Commissioner Luke said that a lot of evidence was presented in the June hearing
that had to do with the landfill but not the land use application. He asked that since
the letter was received late, which category does it fall into.
Ms. Craghead replied that the Board has to decide if it should even see it.
Commissioner DeWolf asked if they live within the notification area. Ms.
Craghead confirmed that they do.
Commissioner DeWolf said that he was not inclined to include it. Commissioner
Daly said that he already has read it. Commissioner DeWolf stated that he, too,
had read it, but it didn't have any real impact on his thinking of the specifics of the
case. But since it was received after the deadline, the rules need to be followed.
Ms. Craghead said that in regard to the Wheeler letter, it was to pertain only to the
legal argument, with no new information.
Minutes of Deliberations — Knott Landfill Expansion Appeal
Tuesday, December 14, 2004 Page 2 of 8 Pages
Commissioner Luke said he agreed with Commissioner DeWolf that there are rules
in place regarding the acceptance of evidence. If they got the mailings and knew
the dates, they had plenty of time to submit their letter in time. Commissioner
Daly agreed; that even though the Commissioners read it, the information can't be
considered.
Ms. Craghead said she needs to clarify an issue. Before the County knew of the
appeal to LUBA, the Board had decided to provide a new hearing. She heard
about the appeal on the same day. The only procedural thing the County could do
was to withdraw the decision for consideration. This is a new decision. The
information in the appeal can be taken into consideration for issues that need to be
decided.
Commissioner Luke said that the one question is in regard to the Hearings Officer
wanting the DEQ permit first. Ms. Craghead confirmed that was the only criteria
found lacking. Commissioner Luke added that there seems to be a difference of
opinion as to whether this is a legitimate concern.
Ms. Craghead stated that it was submitted to the Hearings Officer that there was no
distinction. At the time of the Hearings Officer's decision the County submitted
that the "catch 22" wasn't relevant; that under Oregon Revised Statutes if you can
get there under the conditional use permit you have to approve it, and get the DEQ
permit before it is built. The Hearings Officer didn't address that, but found for the
applicant on all of the other criteria. Legal Counsel recommended the hearing be
continued until the DEQ permit was obtained. At that time the hearing would be
re -noticed in order to address this one item. The only requirement is the land use
compatibility statement, which can be given to DEQ. It is up to them to accept it
as appropriate.
Mark Pilliod added that staff discussions with DEQ indicate they will proceed with
their process based on the land use compatibility statement, recognizing that the
statement is distinct from the issue before the Board today.
Commissioner Luke asked if there is a right to appeal the DEQ decision. Mr.
Pilliod confirmed there is.
Commissioner DeWolf asked when there might be an answer regarding the permit.
Mr. Pilliod said he doesn't know, but heard it can take up to five months. It
depends on the complexity of the case and whether they have to factor in public
comments, realizing there are three distinct permits that are consistent with the
uses that are proposed for the expansion area.
Minutes of Deliberations — Knott Landfill Expansion Appeal
Tuesday, December 14, 2004 Page 3 of 8 Pages
Ms. Craghead said this was discussed with the Hearings Officer. Commissioner
DeWolf stated there were a small number of assignments of error that were
sustained. The Hearings Officer found that the proposal would satisfy these
concerns. He suggested that the findings be clarified to cover all the bases.
Ms. Craghead said that staff came before the Board on December 6 to make sure it
was on the record that the Board had already received the complete record to
review. Ms. White stated that the Board was given the record on November 29,
with a detailed table of contents of the record.
Commissioner DeWolf asked what the next step should be. Ms. White pointed out
that it sounds as if the Board will need to make a decision whether to agree with
the Hearings Officer on the DEQ permit issue. There also is a little clean-up work
to be done by Legal Counsel.
Commissioner Luke stated that there is an opportunity to go to DEQ with the
current Hearings Officer decision. There are two County attorneys who agree on a
statement in opposition of the Hearings Officer's decision in this regard. He added
that the County doesn't need DEQ to make a decision. Somewhere along the line
the County needs to go on the record as to which side the County is taking.
Ms. Craghead left the room at this point.
Mr. Pilliod said the Board could wait to resume the hearing until the DEQ permit is
issued. At that time the Board could go through the list of items that it is felt the
Hearings Officer should have stated differently or more accurately, or where the
Board as governing body will need to interpret Code.
He added that the reason Ms. Craghead left the room was to get the list of items to
be addressed. It is felt that the Board can address them today to get them out of the
way. All of them are issues that Legal Counsel believes will help make 95% of the
Hearings Officer's decision more clear.
Commissioner Luke stated that he would like to see the Board go through the DEQ
process before making the land use decision, as long as Legal Counsel feels they
can apply to DEQ.
Mr. Pilliod said that after they go through the items this morning, he would
recommend a motion to continue the hearing. He agreed that there might be issues
that DEQ may consider in the permitting process that could suggest that the Board
reopening be broader than whether the permit was issued. He pointed out that
DEQ has distinct jurisdiction on this issue.
Minutes of Deliberations — Knott Landfill Expansion Appeal
Tuesday, December 14, 2004 Page 4 of 8 Pages
Ms. Craghead returned to the meeting.
Ms. Craghead said that on page 4(d) of the Hearings Officer's decision, all
dwellings were established after the landfill. She said she would provide tracked
changes to the Board.
On page 7, the summary, eventually they may revise this to remove denial of the
permit based on the DEQ permit.
On page 12, the scope of review, Ms. Craghead said that she wants to add that the
Board directed the Hearings Officer to hear the issue de novo to consider all
evidence. She also wanted to clarify that the hearing before the Hearings Officer
included the 2002 record, so that it includes the entire record. Also, it should be
clarified that this is not a matter of reversing or reaffirming a previous Hearings
Officer's decision. The Board didn't have a decision, so this is a brand new
decision.
On pages 12 through 15, an interpretation is made that "may be allowed" means
"may be established" Also added is the fact that under ORS 197.522, if you can
get there with conditions of approval, you have to approve it.
On page 16, there is no ambiguity between disposal site and land disposal site.
On page 20, under compost/recycling, more information was added that this is a
part of resource recovery. Also on page 20, there is the necessity of having an
administrative facility.
On page 21 regarding 18.128.120, before the Hearings Officer agreed that criteria
(a) through (e) were applicable, the applicant had agreed to that.
On page 22 regarding water pollution, more information was added that the
Hearings Officer stated somewhat that no evidence of chromium or other water
pollution was found at the site, or from this particular leachate pond.
Regarding the access road addressed on page 24, it is to be made clear why 27th
Street is an access road.
On page 25 regarding commercial composting, Hearings Officer Karen Green
agreed with the previous Hearings Officer that this is not a commercial use. It was
found that even if it were, it would still meet the criteria.
Minutes of Deliberations — Knott Landfill Expansion Appeal
Tuesday, December 14, 2004 Page 5 of 8 Pages
On page 27, regarding "least suitable", more information will be included that an
alternative site analysis is not necessary.
On page 28, facts will be corrected to indicate that public works is to the north, not
the west.
On page 32, regarding compost odor, a finding needs to be added that the
opponents didn't separate odors from the landfill from odors from composting.
They talked in generalities.
Mr. Pilliod recommended that the Board consider a finding that given the proposed
design for separate cells within a structure, as well as a different method by which
solid waste is delivered to the pit area, will also likely reduce the incidence of odor
from the operation, in part because it reduces the number of vehicles visiting the
pits. The pit area would also be narrower.
Ms. Craghead said that this goes to the odor issue, as well as the litter problem.
Ms. Craghead stated that clarification would be included about how household
hazardous waste is exempt from the hazardous waste definition.
Commissioner Luke clarified that after a decision is made, these items would be
included in the findings, depending upon the decision. Ms. Craghead confirmed
this.
Ms. Craghead said that the next item is whether to make a decision today or
continue the hearing, since LUBA is indicated the Board has to make the decision,
not the Hearings Officer.
If the Board decides to continue the hearing to a date uncertain, if the permit is
obtained a new notice would need to go out. The hearing would be a limited de
novo hearing. Mr. Pilliod stated that this would be on receiving the permit, and not
to revisit the DEQ decision which is DEQ's. It would be to address the argument
that the Board can't issue a conditional use permit until it receives notice that DEQ
has issued the permit.
LUKE: Move approval that the hearing be continued on a limited de novo
status on the issue of the submittal of the DEQ permit, with the date
being uncertain and with the hearing to be renoticed at that time.
DEWOLF: Second.
Minutes of Deliberations — Knott Landfill Expansion Appeal
Tuesday, December 14, 2004 Page 6 of 8 Pages
Commissioner Luke asked about the time frame for notification. Ms. Craghead
said a twenty -day notice is required.
Commissioner Luke asked that since this is a land use issue and the hearing would
be continued, what kind of contact should the Board have or not have with the
public. Ms. Craghead said that it is a quasi-judicial process and no contact is
allowed, and the Board is not allowed to respond to comments and questions.
(From the audience, not on the microphone). Could you please explain this?
Ms. Craghead reiterated that this means the Board cannot have ex parte contact,
but State law allows the Board to contact staff. No Board contact with the outside
public is allowed, but the public can contact staff, Catharine White. And this
contact must be only on whether the DEQ permit has been issued. Staff cannot act
as a conduit to the Board.
Testimony can be submitted on this single issue, but there is really nothing to
testify to. Once the permit is issued testimony can be presented only on whether it
has been issued. The DEQ decision will not be before the Board; just whether the
permit has been issued. DEQ will hold its own hearing on the permit issue.
Mr. Pilliod confirmed that the Board is not participating in that process. It is a
public process and people can comment to the DEQ on the DEQ's decision.
Commissioner Daly stated that the permit is just for the new facility and not for the
landfill. Ms. Craghead agreed. Commissioner Luke added that it is just for the
north area. Ms. Craghead stated that the Board doesn't do anything at this point;
staff does. The Board's motion continues the hearing until such time as the DEQ
permit is issued. Staff could proceed even if the Board decided today.
Commissioner Luke said that it is important for the Board to have full information
before making a decision, and the Board needs to know if the permit will be issued.
(An audience member wanted to ask a question. He was directed to speak to staff)
VOTE: DEWOLF: Yes.
LUKE: Yes.
DALY: Chair votes yes.
Minutes of Deliberations — Knott Landfill Expansion Appeal
Tuesday, December 14, 2004 Page 7 of 8 Pages
The hearing was continued until a date uncertain - likely four to six months - when
the Department of Environmental Quality has made its decision on whether to
issue the permit in question.
The deliberations concluded at 10:50 a.m.
DATED this 14th Day of December 2004 for the Deschutes County
Board of Commissioners.
ATTEST:
Recording Secretary
Attachments
D nnis R. Luke, roinmissioner
44A
Tom DeWolf, Commi
Exhibit A: Preliminary Statement (2 pages)
Exhibit B: Memorandum dated December 9, 2004 and other documents
submitted by Catharine White (60 pages)
Minutes of Deliberations — Knott Landfill Expansion Appeal
Tuesday, December 14, 2004 Page 8 of 8 Pages
PRELIMINARY STATEMENT IN APPEALS BEFORE THE BOARD
I. INTRODUCTION
A. This is an appeal being heard on -the -record of the Deschutes County
Hearings Officer's decision denying conditional use and site plan
applications that propose to relocate certain existing solid waste disposal
facilities at the Knott Landfill.
File numbers: A-04-8, CU -02-102 and SP -02-51
B. In those applications, the applicant proposes to establish a public
receiving station and materials recovery facility, a public recycling drop-off
center, an administration office and maintenance building, a household
hazardous waste facility, composting operations, two leachate
evaporation ponds, a material stockpile area, and a future landfill gas
cogeneration facility located north of the existing landfill in the North
Development Area.
II. BURDEN OF PROOF AND APPLICABLE CRITERIA
A. The applicant has the burden of proving that they are entitled to the land
use approval sought.
B. The standards applicable to the application before us are listed on
pages 1 through 3 of the Hearings Officer's decision dated October 14,
2004 and are posted on the wall.
III. HEARINGS PROCEDURE
A. Evidence to be reviewed by the Board.
The Board's decision on this application will be based upon the record
before the Hearings Officer, the Hearings Officer's decision, the Staff Report
and the final arguments submitted by the parties.
IV. ORDER OF PRESENTATION
A. Today is the date set by the Board for deliberations.
Page 1 of 2 -Chair's Opening Statement for Land Use Hearings
File: A-04-8, CU -02-102, SP -02-51
Date of Hearing: 12/14/04
Exhibit—R
Page __�_ of �_
B. Because the hearing is being heard on -the -record pursuant to DCC
22.32.030(E), the Board cannot take any oral evidence, argument or
comment other than staff comment based on the record. The Board
cannot consider any new factual information—only what is contained in
the record.
C. The order of presentation was previously determined, in part, by the
Board in Order 2004-087, in the setting of an November 30, 2004
deadline for parties to submit their written arguments allowed under DCC
22.32.030(E)(4).
D. Today, the Board will hear from Staff only.
V. PRE -HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS
A. Do any of the Commissioners have any ex -parte contacts, prior hearing
observations; biases; or conflicts of interest to declare? If so, please
state the nature and extent of those.
B. No written challenges for ex -parte contacts, bias, conflicts of interest to
any commissioner's ability to hear this appeal were submitted prior to this
hearing. Given, however, that it would be difficult for a party to know what
ex -parte contacts, bias or conflicts of interest the Commissioners may or
may not declare until these deliberations, parties who wish to submit a
challenge on that basis may do so now.
(Hearing no challenges, I shall proceed.)
Page 2 of 2 -Chair's Opening Statement for Land Use Hearings
File: A-04-8, CU -02-102, SP -02-51
Date of Hearing: 12/14/04
Exhibit
Page of �_
Memorandum
To: Board of County Commissioners
From: Catharine White, Associate Planner (ext. 6719; email: cathyw@deschutes.org�
CC: Kevin Harrison, Principal Planner
Date: 12/9/04
Re: Review of the Hearings Officer's decision denying conditional use and site plan applications
that propose to relocate certain existing solid waste disposal facilities at the Knott Landfill to
the70-acre North Development Area.
(File: A-04-8 (CU -02-102 and SP -02-51)
The Board is scheduled to deliberate on the Hearings Officer's decision that denied the
Conditional Use and Site Plan applications previously approved by the Hearings Officer in 2003 to
relocate landfill -related facilities to the North Development Area on December 14, 2004 at 10:00 a.m.
Staff has provided background information below and a summary of issues.
L BACKGROUND
In response to an appeal filed by property owners, Gretchen Grivel and Thomas Hemberger, who did
not receive notice of the 2003 Hearings Officer's decision that approved a Conditional Use and Site
Plan review to relocate landfill -related facilities to the North Development Area' (file CU-02-102/SP-
02-51), the Board issued Order No. 2004-042, which accepted Ms. Grivel's and Mr. Hemberger's
appeal and ordered a Hearings Officer to hear the appeal de novo.
The Hearings Officer (Karen Green) held a public hearing on June 16, 2004 and issued her decision
on October 14, 2004. The Hearings Officer denied the applications "due to the applicant's failure to
obtain a DEQ permit for the proposed solid waste disposal site." The Hearings Officer found (see
page 7 of the decision):
The Hearings Officer has considered the evidence in the record, including the record
of the 2003 decision, as well as appellants' and opponents' claims of error. / have
found the proposed solid waste disposal site satisfies, or with the imposition of
conditions of approval can satisfy, all but one of the applicable conditional use and
site plan approval criteria. / have found the county's EFU Zone provisions clearly
issued l have found the conditional use permit cannot be approved. However, / have
included in this decision findings on all other applicable criteria to assist the board
when it hears this appeal. [Emphasis added.]
' The north development area consists of about 70 acres north and adjacent to the existing landfill in the EFU-
TRB zone. The proposed facilities include: a public receiving station/materials recovery facility, a public
recycling drop-off center, an administration office/maintenance building, a household hazardous waste facility,
composting operations, two leachate evaporation ponds, a material stockpile area, and a future landfill gas__ -------
cogeneration
_____cogeneration facility. Exhibit Qj
Page I of to Q
Within the 12 -day appeal period of mailing the Hearings Officer's decision, the Board issued Order
No. 2004-087, that called up for review the Hearings Officer's decision. The Board ordered the public
hearing to be heard on -the -record on December 14, 2004 and the order setout the timeline for
submittal of written arguments. The Notice of Public Hearing and the Board's Order were mailed out
on October 26, 2004 to all parties who participated before the Hearings Officer.
The deadline for submittal of written arguments by all parties was November 30, 2004. The Planning
Division received one letter dated November 27, 2004 from Julie Eberhard -Wheeler by the
November 3e deadline 2 In addition to Ms. Eberhard -Wheeler's letter, the Planning Division
received a letter on December 6, 2004 from Karen and Robert Marcotte who live south of the landfill
on Rickard Road and who oppose the expansion of the landfill (see attached letter). The Marcotte's
letter was received outside the deadline to submit written arguments and the Board, therefore, will
need to decide whether to allow this evidence into the record, which is discussed in more detail
below.
The Board is scheduled to hear the appeal on December 14, 2004 at 10:00 a.m. On November 29,
2004 staff presented the entire record before the Board that included a detailed list containing the
contents of the Knott Landfill Record (see attached list) and informed the Board the record is
available for their review at the Planning Division office. The Hearings Officer's decision is also
attached and, includes among others, a detailed procedural history of the case as well as her findings
and conclusions of law.
II. ISSUES
• DEQ Permit:
The Hearings Officer concluded differently than the 2003 Hearings Officer's decision and found that
the failure to obtain a DEQ permit for the solid waste disposal site required denial of the application.
The Hearings Officer's decision discusses this issue in detail on pages 12 —15 of her decision. The
basis of the Hearings Officer's findings on this issue turned on the language used in the Zoning
Ordinance, Title 18, relative to establishing uses in the Exclusive Farm Use zone (EFU}—the
Hearings Officer distinguishes the County code language from the statute language in ORS 215.296
in establishing uses in the EFU zone as stated below (see page 14 of the decision):
The Hearings Officer finds the threshold question under PGE v. BOU is whether the
language in Section 18.16.013(8) is ambiguous. The answer to that question turns on
the text and context of the provision. I note at the outset that this section was derived,
but differs from, ORS 215.283(2)(k), which provides.
(2) The following nonfarm uses may be established. subject
to the approval of the governing body or its designee in any area
zoned for ezc7us—tv—elarm use -subject -to -ORS-215:296:
2 Ms. Eberhard -Wheeler's letter was not date stamped; however, we assume the letter was timely filed at the
Commissioner's office due to the November 27, 2004 date of the letter.
• Page 2
Exhibit 6
Page Zof Cp (�
(k) A site for the disposal of solid waste approved by the
governing body of a city or county or both and for which a
permit has been granted under ORS 459.245 by the Department
of Environmental Quality together with equipment, facilities or
buildings necessary for its operation. (Emphasis added.)
When the county incorporated this use into the list of conditional uses permitted in the
EFU Zones, it changed the phrase "may be established" to "may be allowed. " Neither
"allowed" nor "established" is defined in Title 18. The ordinary meaning of these terms
is different. Webster's New World Dictionary defines "allowed"in part as `10 permit, to
let have. "It defines "establish"in part as '10 set up, found, institute. " In the context of
the ordinance language at issue, the Hearings Officer finds the difference in
terminology is signfcant. Under the statutory language the DEQ permit would be a
prerequisite to actual establishment of the solid waste disposal site — i.e., construction
— whereas under the ordinance language the permit would be a prerequisite to the
allowance — i.e., the issuance of a conditional use permit. In other words, under the
statutory language approval could be conditioned on obtaining the DEQ permit
before construction. Under the ordinance language the DEQ permit is required
before the conditional use permit is issued. [Emphasis added.]
Staff recommends the Hearings Officer's legal interpretation of the code and statute above should be
referred to legal counsel for review and advice. However, staff believes the Board can agree and
affirm the Hearings Officer's interpretation of the code or disagree with the Hearings Officer's
interpretation and make new findings.
• Marcotte's Letter
As discussed above, Karen and Robert Marcotte's letter was received on December 6, 2004, which
is after the Board -designated due date for written arguments of November 30, 2004. According to
the Certificate of Mailing, the Marcotte's were mailed the Board's order, 2004-087, that advised them
of the timeframe to submit comments. Because the letter was submitted after the due date for written
arguments and it appears to contain new evidence (effects of the landfill on their dog kennel), the
Board will need to make a decision on whether to allow this letter into the record.
• Other Issues
The Board should also affirm or deny the Hearings Officer's findings on the other appellant's
assignment of errors addressed in the decision.
Attachments:
- i nronnn mune
- Hearings Officer's Decision dated October 14, 2004
- Julie Eberhard -Wheeler letter dated November 27, 2004
- Marcotte's letter dated December 6, 2004
- Contents of the Knott Landfill record
• Page 3
Exhibit
Page 2 of 1p O
LOCATION MAPS
Exhibit
Page _� of (p C>
Legend
QT.A. 18121 x0000100
' Bend Cay Limits / UGB
Bend City Limits/ UGB
EFUTRB - Exclusive Farm Use T—IIIR--1-/11erta Sulnpne
SM - Suda Mining
'g 4 UAR10 - UrWn Area Reserve - 10 Acre Minimum
Knott Landfill
0 580 60
Feet
Map Scale 1 13.920
oexnum warty NY:�.
mar �Me
May 06, 200E
Exhibit_
Page �__ of (o O
r
FXyI w co
- - - - -
fl Lt 8 d171 335 - - - - - -I =
_ — - - _ _ - - - - - _ - - - _ - -- R R
I I — — — — — — — — — --— — — — — IM -2-n, _ _ — — ,-;ms o+a wuntin — — _ _ _ — — — — — — — — — — — -'
I I
II I I I
1 ,<
�
C��
o
uj
LU
ZD I • • • • i \ �I ��\ 4
Clit
I • • • `y
F- I H • • • !! 11
VLn
,1
�J �N,-
4
I 1 0� IIS
------- —
e,p ♦ :mc \ � I i� Y � i � Se
___
pdoo
* ~ ---------
h- srL11—r,sr,-.k.-- --r- — — � �„,• mar 1 — —
II •I I I ' � I
S— — — .�- i'Sn1 4L ry
a ua
�C I I SI LI 811th, 33s
�g
tX
J
X E! j 1
(
cis
Exhibit
Page Sp —of(00
•
•
Exhibit
Page--I—of(oO
HEARINGS OFFICER'S DECISION
A-04-8 (CU -02-102 and SP -02-51)
Exhibit
Page S of ��
DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS:
APPLICANT/
PROPERTY OWNER:
A-04-8 (CU -02-102 and SP -02-51)
Deschutes County
Department of Solid Waste
Timm Schitg, Director
61000 S.E. 27 Street.
Bend, Oregon 97702
APPLICANT'S AGENT: Karen Swirsky
David Evans and Associates, Inc.
709 N.W. Wall Street, Suite 102
Bend, Oregon 97701
APPLICANT'S
ATTORNEYS:
U
Mark Pilliod
Laurie Craghead
Deschutes County Office of Legal Counsel
1300 N.W. Wall Street, Suite 200
Bend, Oregon 97701
APPELLANTS: Gretchen Grivel and Thomas Hernberger
21680 McGilvray
Bend, Oregon 97702
APPELLANTS'
ATTORNEY: Andrew H. Stamp
Kruse Mercantile Professional Suites, Suite 9
4248 Galewood Street
Lake Oswego, Oregon 97035
REQUEST: Appellants appeal from a hearings officer's 2003 decision
approving the applicant's request for conditional use and site plan
approval to relocate certain existing solid waste disposal facilities
at the Knott Landfill to a 70 -acre portion of the 365 -acre county -
owned parcel adjacent to the existing landfill. The proposed project
site is zoned EFU-TRB.
STAFF REVIEWER: Catharine White, Associate Planner
HEARING DATES: November 9, 2002, and June 16, 2004
RECORD CLOSED: August 4, 2004
L APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Zoning Ordinance
1. Chapter 18.04, Title, Purpose and Definitions
* Section 18.04.030, Definitions
Knott Landfill
CU-02-102/SP-02-51
1
Exhibit_
Page q of (p b
2. Chapter 18.16, Exclusive Farm Use Zone
* Section 18.16.031, Nonresidential Conditional Uses on Nonhigh Value
Farmland Only
* Section 18.16.040, Limitations on Conditional Uses
* Section 18.16.060, Dimensional Standards
* Section 18.16.070, Yards
2. Chapter 18.52, Surface Mining Zone
* Section 18.52.030, Uses Permitted Outright
3. Chapter 18.56, Surface Mining Impact Area
* Section 18.56.020, Location
* Section 18.56.050, Conditional Uses Permitted
* Section 18.56.070, Setbacks
4. Chapter 18.128, Conditional Use
* Section 18.128.015, General Standards Governing Conditional Uses
* Section 18.128.120, Landfill, Solid Waste Disposal Site
5. Chapter 18.116, Supplementary Provisions
* Section 18.116.030, Off-street Parking and Loading
* Section 18.116.031, Bicycle Parking
6. Chapter 18.124, Site Plan Review
* Section 18.124.060, Approval Criteria
* Section 18.124.070, Required Minimum Standards
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.32, Appeals
* Section 22.32.010, Who May Appeal
* Section 22.32.015, Filing Appeals
* Section 22.32.020, Notice of Appeal
* Scope of Review
C. Oregon Revised Statutes
1. Chapter 215, County Planning, Zoning, Housing Codes
* ORS 215.283, Uses Permitted in Exclusive Farm Use Zones in Nonmarginal
---- 7 ands -Counties -- — ----- -
* ORS 215.296, Standards for Approval of Certain Uses in Exclusive Farm
Use Zones; Violation of Standards; Complaint; Penalties; Exceptions to
Standards
* ORS 215.416, Permit Applications, Fees, Consolidated Procedures,
Hearings, Notice, Approval Criteria, Decision Without Hearing
Knott Landfill
CU-02-102/SP-02-51
2
Exhibit
Page _SQ_ of Ca Q
2. Chapter 459, Solid Waste Management
* ORS 459.005, Definitions
D. Oregon Administrative Rules
1. Chapter 340, Solid Waste: General Provisions
* OAR 340-093-0030, Definitions
2. Chapter 661, Land Use Board of Appeals
* OAR 661-010-0021, Withdrawal of Decision for Reconsideration
* OAR 661-010-0070, Final Order of Board
IL FINDINGS OF FACT:
A. Location: The subject property, consisting of a 365 -acre parcel owned by the county, is
located north and east of the intersection of S.E. 27a' Street/Knott Road and Rickard
Road. It is further identified as Tax Lots 100 and 100A on Deschutes County Assessor's
Map 18-12-14.1 The portion of the subject property proposed for relocation of existing
landfill activities is called the North Development Area (hereafter "project area") and
consists of 70 acres of Tax Lot 100. Comments from the county's Property Address
Coordinator indicate the project area will have an assigned address of 61050 S.E. 27a'
Street, Bend. The subject property is located both within and outside the Bend City
Limits.
B. Zoning and Plan Designation: The 365 -acre subject property is comprised of two tax
lots (Tax Lots 100 and 100A on Deschutes County Assessor's Map 18-12-14) and has
three zoning designations. Tax Lot 100A is within the Bend City Limits, is zoned Public
Facilities (PF), and is developed with the county's Public Works Department facilities.
Tax Lot 100 is located in the county outside the city limits. The southern portion of Tax
Lot 100 is zoned Surface Mining (SM) and includes a portion of the current Knott
Landfill operations. (The remainder of the landfill is located on the Tax Lots 500 and 503
that are zoned SM and located to the south of Tax Lot 100.) The northern portion of Tax
Lot 100 is zoned Exclusive Farm Use-Tumalo/RedmondBend Subzone (EFU-TRB) and
includes the project site.
C. Site Description: The subject property is 365 acres in size and irregular in shape. It has
varied topography and vegetation. Tax Lot 100A abuts 27'd Street and is developed with
the county's Public Works Department facilities, including office, shop and maintenance
--
__--buildings, parking and outdoor vehicle storage _areas—The_EF-U-zoned-portion _of_Tax Lot_ -
' Although the tax lot map included in the record does not show a Tax Lot 100A, the applicant's burden
of proof states the Assessor's Office has designated the county's Public Works Department property with
that tax lot number.
Knott Landfill
CU-02-102/SP-02-51
3
Exhibit (�
Page �_ of
100 including the project area is vacant with the exception of road improvements
constructed for the applicant's proposal. This portion of Tax Lot 100 is covered with
native vegetation including scattered juniper trees and native brush and grasses.
D. Surrounding Zoning and Land Uses: Land surrounding the subject property includes a
mixture of public and private land inside and outside the Bend City Limits and developed
with a broad mixture of uses. To the north and northwest are two EFU-zoned tax lots
together comprising 640 acres and owned by the State of Oregon. Both tax lots are vacant
and unirrigated. To the west between the subject property and 27a' Street is Tax Lot 102
occupied by the Central Electric Cooperative (CEC) headquarters and zoned EFU. Most
of the western boundary of the subject property abuts 276 Street. Further to the west
across 27th Street are tax lots zoned Urban Area Reserve (UAR-10). One of the larger tax
lots is developed with the High Desert Middle School. Another large tax lot is owned by
the Bend Metro Parks and Recreation District and planned for public park development.
The remaining UAR-10 lots are developed with small-scale farms, rural residences, a dog
kennel and a veterinary clinic.
To the east are a number of privately owned EFU-zoned tax lots ranging in size from 20
to 40 acres. None of these parcels is irrigated and most are vacant. Two of the abutting
parcels to the east are developed with dwellings (Tax Lot 801 on Deschutes County
Assessor's Map 18-12-13 and Tax Lot 600 on Map 18-12-14.) Five other tax lots further
to the east have dwellings. Immediately to the south are the SM -zoned Tax Lots 500 and
503. This land has been utilized with the SM -zoned portion of Tax Lot 100 for landfill
operations for many years .2 It includes large areas that have been excavated for fill dirt
and filled with solid waste. It also includes a public receiving station/materials recovery
facility, a public recycling drop-off center, an administration officelmaintenance building,
a household hazardous waste facility, composting operations, two leachate evaporation
ponds, and a material stockpile area. All of the southern boundary of the Knott Landfill
abuts Rickard Road. Further to the south across Rickard Road is the "Rose Pit" surface
mine zoned SM as well as a number of privately -owned tax lots zoned EFU-TRB and
developed with small- to medium -scale farms and rural residences.
E. Procedural History: In January of 2002, the Deschutes County Board of Commissioners
(hereafter "board") approved a plan to prolong the life of the Knott Landfill by extending
its closure date from 2009 to 2029 and expanding the area for solid waste disposal.
(Resolution 2002-009.) The subject conditional use and site plan applications to relocate
existing landfill -related facilities were submitted on October 3, 2002, and were accepted
by the Planning Division as complete on November 3, 2002. Therefore, the 150 -day
period for the issuance of a final local land use decision under ORS 215.427 would have
expired on April 2, 2003.
-- The initial publ c -hearing on the applications -was held- on November l%-2002.- At -the - - - _- —
public hearing, Hearings Officer Tia Lewis received testimony and evidence, left the
s The record indicates Knott Landfill was established in 1972 and that Tax Lot 503 was the first area in
which solid waste was disposed.
Knott Landfill
CU-02-102/SP-02-51
4
Exhibit
Page 12 _ of (od
written evidentiary record open through November 20, 2002, and allowed the applicant
through November 27 to submit final argument pursuant to ORS 197.763. On January 17,
2003, Hearings Officer Lewis issued her decision approving the applicant's proposal
subject to several conditions of approval (hereafter "2003 decision"). No appeal from that
decision was filed within 12 days of mailing.
The Staff Report for this appeal (hereafter "2004 Staff Report") states that on or about
March 29, 2004 during a meeting of the board, two owners of property near the existing
Knott Landfill told the board they had not received notice of the 2003 decision. The 2004
Staff Report states that planning staff determined that an error had occurred in the
county's computer-generated mailing list. As a result of this error, the county mailed
notice of the decision to only 5 of the 40 property owners entitled to notice. On April 2,
2004, appellants filed a notice of intent to appeal the 2003 decision with the Land Use
Board of Appeals (LUBA). On April 6, 2004, the county submitted to LUBA a "Notice
of Withdrawal of Decision for Reconsideration" to allow the county to provide notice of
the 2003 decision to persons entitled to such notice, and requested that the LUBA appeal
be suspended. On April 8, 2004, LUBA sent a letter to the county giving notice that the
LUBA appeal had been suspended. On April 20, 2004, the county mailed a new notice of
the 2003 decision. On April 30, 2004 appellants filed their county notice of appeal.
On May 12, 2004, the board issued an order (Order No. 2004-042) accepting appellants'
appeal and ordering that the appeal be de novo and be heard initially by a hearings
officer. On May 19, 2004, notice of the board's order was mailed to persons entitled to
notice of the 2003 decision, and on May 23, 2003, the county mailed and published
notice of the appeal hearing scheduled for June 16, 2004. On June 15, 2004, the county
submitted to LUBA a "Decision on Reconsideration" which included the 2003 decision
and the new notice of decision. On the morning of June 16, 2004 the Hearings Officer
conducted a site visit to the subject property and vicinity. At the county appeal hearing
held on the evening of June 16, 2004 this Hearings Officer disclosed her observations and
impressions from the site visit, received testimony and evidence, left the written
evidentiary record open through July 28, 2004, and allowed the applicant through August
4, 2004 to submit final argument pursuant to ORS 197.763.
On July 1, 2004, the county submitted to LUBA a "Motion to Stay Proceedings for
Decision on Reconsideration" requesting that LUBA stay its proceedings until the county
submits a revised decision on reconsideration following the de novo appeal ordered by
the board. The motion also included the county's waiver of the requirement in LUBA's
administrative rules that a decision on reconsideration be issued within 90 days of the
filing of the withdrawal of the decision for reconsideration. On July 7, 2004, LUBA
ordered the proceedings stayed. The record on the county appeal closed on August 4,
2004.
The 2004. Staff Report states staff believes 150 -day period "does not apply as no new
land use application subject to the 150 -day review period has been submitted for review
and the Hearings Officer's decision issued in January 2003 is final." The Hearings
Officer finds the status of the 150 -day period is unclear. However, because the county is
Knott Landfill
CU-02-102/SP-02-51
5
Exhibit
Page 13 of Lob
the applicant, and the county has agreed to waive the time periods connected with the
LUBA appeal, I find the county effectively also has tolled the 150 -day period in order to
allow the board to issue a revised decision on reconsideration.
F. Proposal: As discussed above, in 2002 the board decided to prolong the life of the Knott
Landfill by extending its closure date from 2009 to 2029 and expanding the area in which
solid waste disposal would occur. The applicant has requested conditional use and site
plan approval to relocate existing landfill -related facilities directly north of where they
currently are located onto the portion of the 365 -acre subject property referred to the
project area. Relocation of these facilities would allow the county to expand the solid
waste disposal area onto the SM -zoned portion of Tax Lot 100 where these facilities
currently are located. Specifically, the applicant proposes to relocate the following
landfill -related facilities to the project area: a public receiving station/materials recovery
facility, a public recycling drop-off center, an administration office/maintenance building,
a household hazardous waste facility, composting operations, two leachate evaporation
ponds, and a material stockpile area In addition, the applicant has requested approval to
manage landfill gas on the site.
Access to the project area would be from 27th Street via an entrance to be shared with
CEC. A portion of 27' Street would be realigned and widened to provide deceleration
lanes for the new entrance.3 The applicant proposes to provide water to the relocation site
from Avion Water Company. Sewage treatment would be provided by an on-site sewage
disposal system. Electrical power, telephone, and natural gas service would be provided
by CEC, Qwest Communications, and Cascade Natural Gas, respectively.
The applicant submitted a conceptual site plan depicting the general use areas for the
relocated facilities and proposed activities and has requested site plan approval for this
site plan. The 2004 Staff Report states that additional site plan applications, and in some
cases building permits, will be required for individual components of the conceptual site
plan such as buildings and structures with their associated parking, bicycle, and
pedestrian facilities - as they are developed.
G. Public/Private Agency Comments: The Planning Division sent notice of the applicant's
proposal to a number of public and private agencies and received responses from: the
Deschutes County Road Department (hereafter "road department"), Environmental
Health Division, Assessor, Property Address Coordinator, Transportation Planner and
Building Division; the City of Bend Fire Department and Planning Division; the State of
Oregon Department of Water Resources, Watermaster-District 11, Department of
Environmental Quality (DEQ), Health Division, and Division of State Lands; Arnold
Irrigation District; Avion Water Company; PG&E Gas Transmission; Cascade Natural
Gas; CEC; Bend Cable; and Qwest Communications. The comments are set forth
verbatim -at pages 3-7 of the 2002-Staff--Report,-referred-to-at-page 3 -of the 2003 decision, --
and included in the record.
a The record includes comments from the road department stating the improvements to 270s Street have
been completed.
Knott Landfill
CU-02-102/SP-02-51
6
Exhibit--s-
Page
xhibitgPage --a- of tp p _
H. Public Notice and Comments: As discussed in the findings above, due to an error in the
mailing list prepared by the county in 2002, notice of the applicant's proposal and the
2003 decision was mailed to only 5 of the 40 owners of property within 750 feet of the
subject property who were entitled to notice. The 2003 decision indicates two property
owners responded to the initial notice and two property owners testified at the 2002
public hearing. Following issuance of the 2003 decision the county discovered the notice
error described above. On April 20, 2004 the Planning Division sent new notice of the
2003 decision to the owners of record of all property located within 750 feet of the
subject property. Notices of the both the 2002 public hearing on the applicant's proposal
and the 2004 public hearing on the appeal also were published in the "Bend Bulletin"
newspaper, and the subject property was posted both in 2002 and 2004 with a notice of
proposed land use action sign. In response to the 2004 notice of decision the county
received 24 letters and two petitions with 84 signatures. In addition, 15 members of the
public testified at the 2004 public hearing on the appeal. Public comments are addressed
in the findings below.
L Lot of Record: The 2003 decision finds the subject property is a legal lot of record
because of the county's previous issuance of numerous development permits.
III. SUMMARY:
The applicant proposes to establish a solid waste disposal site by relocating several solid waste
activities now occurring at the Knott Landfill to adjacent land zoned EFU-TRB in order to open
additional areas to excavation and solid waste burial, thereby prolonging the life of the landfill
for an additional 20 years. The proposal was approved by a 2003 hearings officer decision, but
the county failed to provide notice of that decision to all persons entitled to such notice. Upon
learning of the notice error, the county re -noticed the 2003 decision and appellants appealed the
decision. The board agreed to hear the appeal but ordered that the initial appeal hearing be held
before a hearings officer.
The Hearings Officer has considered the evidence in the record, including the record of the 2003
decision, as well as appellants' and opponents' claims of error. I have found the proposed solid
waste disposal site satisfies, or with the imposition of conditions of approval can satisfy, all but
one of the applicable conditional use and site plan approval criteria. I have found the county's
EFU Zone .provisions clearly require that the proposed solid waste disposal site have a permit
from DEQ before the county can issue a conditional use permit. Because the DEQ permit has not
been issued I have found the conditional use permit cannot be approved. However, I have
included in this decision findings on all other applicable criteria to assist the board when it hears
this appeal.
IV. PRELIMINARY ISSUES:
1. Procedural Posture. As discussed in the Findings of Fact above, this matter is before the
Hearings Officer pursuant to an order of the board. That order states in pertinent part:
WHEREAS, Appellants, Gretchen Grivel and Thomas Hernberger, have appealed the
Knott Landfill
CU-02-102/SP-02-51
7
Exhibit
Page _5 of Cy 0
Deschutes County Hearings Officer's decision on application no. CU -02-102 and SP -02-
51; and
WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County
Commissioners discretion on whether to hear appeals of the Hearings Officer Is
decisions; and
WHEREAS, the Board has given due consideration as to whether to review this
application on appeal; and
WHEREAS, this case is unique in that notice of the original hearing before the hearings
officer in this case only reached five (5) of the approximately forty (40) property owners
entitled to notice due to an error in the computer programming in the County Assessor's
Office; and
WHEREAS, because of the unique circumstances, it is in the public interest to proceed
with this matter as if the initial hearing is necessary; and
WHEREAS, because the County will proceed as if an initial hearing is required, it is in
the public interest to waive the transcript requirement and the appeal fee in this case and
refund the appeal fee to the appellants; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUN!Y, OREGON,
HEREBYORDERS as follows:
Section 1. The Board accepts the appeal of application CU -02-102 and SP -02-51 (A-04-
8) pursuant to Title 22 of the Deschutes County Code and other applicable provisions of
the County land use ordinances
Section 2. The Board appoints a Hearings Officer to hear the appeal.
Section 3. The Board waives the appeal fee.
Section 4. The Board waives the transcript requirement of Section 22.32.024 of the
Deschutes County Code.
Section S. The appeal shall be heard,* novo.
Section 6. Staff shall set a hearing date with the Hearings Officer and cause notice to be
given to all persons or parties entitled to notice pursuant to DCC 22.24.030 and DCC
22.32.030. "
The board's order puts this matter in an unusual — though not unique -- procedural posture. The
order effectively directs that for purposes of this appeal the 2003 decision should be handled like
an administrative decision without notice authorized under Section 22.20.030, with an appeal to
the Hearings Officer being de novo. Under ORS 215.416(11)(e)(ii), when an appeal hearing
Knott Landfill
CU-02-102/SP-02-51
8
Exhibit 1�
Page 1 &D of Lao
constitutes the initial evidentiary hearing, the testimony, evidence and argument presented in the
appeal is not limited to the issues raised in appellants' notice of appeal. However, to the extent
the 2003 decision was not challenged on appeal, and is not modified by me on appeal, it remains
valid and will be incorporated by reference in, and made a part of, my decision.
Appellants argue inclusion of both the 2003 decision and the record on which it is based
improperly "taints" this appeal. In his "Hearings Officer's Memorandum" dated July 7, 2004,
appellants' attorney Andrew Stamp states:
"This case is on remand from LUBA. * * * The County agreed that notice had
not been provided [and] withdrew the decision for reconsideration. As a result,
the original hearings officer decision is void and has no effect in this
proceeding. "
Appellants misunderstand the nature of these proceedings. LUBA has not "remanded" the 2003
decision. A remand is a final order from LUBA following its review of a local government land
use decision. OAR 661-010-0070. Rather, LUBA has accepted the county's request to withdraw
the 2003 decision for reconsideration by the board, and has suspended the LUBA appeal of the
2003 decision in order to give the board time to reconsider the 2003 decision and issue a revised
decision should it elect to do so. See OAR 661-010-0021. When the board issues a revised
decision on reconsideration - which could constitute the 2003 decision, this Hearings Officer's
decision, some combination or modification thereof, or an entirely new decision - appellants
may seek LUBA review of the revised decision on reconsideration. Most important, this appeal
and the suspended LUBA appeal are from the 2003 decision. It is that decision that is before me
for review in these proceedings.
2. Issues on Appeal. In addition to the issues raised in appellants' notice of appeal, discussed in
detail in the findings below, opponents other than appellants (hereafter "opponents") raised a
number of additional issues. Because the appeal hearing constituted the initial evidentiary
hearing under ORS 215.416, opponents were entitled to raise these additional issues. To the
extent opponents' issues coincide with those raised by appellants they will be discussed in the
findings on appellants' assignments of error throughout this decision. The remaining opponents'
issues are addressed in the findings immediately below.
3. Zone Change. Opponent Jonathan Duerst argues the Hearings Officer should not approve a
zone change to the subject property to allow the applicant's proposal. The applicant is not
requesting approval of a zone change from EFU to another zone. Rather, it is requesting approval
to establish a use that is permitted conditionally in the EFU Zone.
4. Industrial Uses. Several opponents argue components of the applicant's proposal constitute
"industrial" uses not allowed in the EFU Zone. Opponents are wrong. The applicant is requesting
approval -to establish- a use that is permitted conditionally in the EFU Zone. - - -
5. Environmental Impact Study. Several opponents assert the county should be required to
perform an "environmental impact study" of the applicant's proposal. The Hearings Officer finds
there are no provisions in the county's land use regulations requiring such a study. The applicant
Knott Landfill
CU-02-102/SP-02-51
9
Exhibit
Page n of [p C)
is required to demonstrate its proposal satisfies the conditional use and site plan approval criteria,
discussed in detail in the findings below.
6. Reliance on 2009 Landfill Closure Date. Many opponents argue the applicant's proposal
should not be approved because they had the right to rely on the 2009 landfill closure date
established by the county in an earlier master plan for the Knott Landfill. The Hearings Officer
has no authority in this appeal to revisit the board's 2002 decision to extend the landfill's life.
7. Knott Landfill Should Be Closed. Many opponents argue the Knott Landfill should be closed
immediately. The Hearings Officer has no authority to order that the landfill be closed.
8. Need/Alternative Sites Analysis. Several opponents argue the applicant failed to establish a
need for the proposed conditional use and site plan, particularly since it did not submit an
alternative sites analysis for additional landfill space. Opponents have not cited, nor has the
Hearings Officer found, any provisions in the county's land use regulations requiring the
applicant either to demonstrate a need for the proposed facility relocation or to conduct an
alternative sites analysis.4
9. Size of Notice Area. Opponents Richard and Kathy Cloud argue the 750 -foot notice area for
the applicant's proposal and the public hearing is not adequate for rural areas with large lots such
as that surrounding the subject property. The Hearings Officer finds the required notice area is
established in the county's development procedures ordinance, and the second notice of the 2003
decision complied with those provisions.
V. CONCLUSIONS OF LAW:
A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.32, Appeals
a. Section 22.32.010, Who May Appeal
A. The following may file an appeal:
1. A party;
2. In the case of an appeal of an administrative decision
without prior notice, a person entitled to notice, a
person adversely affected or aggrieved by the
administrative decision, or any other person who has
filed comments on the application with the Planning
Division;
3. A_person entitled -to notice-and--to-whom-no-notice was-- - — - -
mailed. A person who, after such notices were mailed,
purchases property to be burdened by a solar access
a Compare ORS 215.275, which requires an applicant requesting approval to site a `utility facility" in the
EFU Zone to demonstrate both a need to site it in the EFU Zone and a "reasonable alternatives" analysis.
Knott Landfill
CU-02-102/SP-02-51
10
Exhibit -9
Page _$ of (0 U
permit shall be considered a person to whom notice was
to have been mailed; and
FINDINGS: As discussed in the Findings of Fact above, appellants own property within 750
feet of the subject property but were not mailed notice of the applicant's proposal or the 2003
decision. Therefore they were entitled to appeal the 2003 decision under Section 22.32.010(3).
b. Section 22.32.015, Filing Appeals
A. To file an appeal, an appellant must file a completed notice of
appeal on a form prescribed by the Planning Division and an
appeal fee.
B. Unless a request for reconsideration ha been filed, the notice of
appeal and appeal fee must be received at the offices of the
Deschutes County Community Development Department no
later than 5:00 p.m. on the twelfth day following mailing of the
decision. * * * *
FINDINGS: The record indicates appellants filed their notice of appeal, accompanied by a
request to waive the required appeal fee, on April 30, 2004, within twelve days of mailing the
notice of the 2003 decision on April 20, 2004. The Hearings Officer finds this appeal was timely.
C. Section 22.32.020, Notice of Appeal
Every notice of appeal shall include:
A. A statement raising any issue relied upon for appeal with
sufficient specificity to afford the Hearings Body an adequate
opportunity to respond to and resolve each issue in dispute.
FINDINGS: The notice of appeal consists of a completed county appeal application form and a
six-page attachment entitled "Supplemental Information (Drivel)." The attachment (hereafter
"notice of appeal") includes a justification for the requested fee waiver and lists fifteen "reasons
for the appeal" (hereafter "assignments of error'). The Hearings Officer finds appellants'
assignments of error state the reasons relied upon for the appeal with sufficient specificity for me
to respond to and resolve them. Each of the assignments of error (along with opponents' related
issues) is discussed in the findings below. The assignments of error may be discussed out of
chronological order to facilitate discussion of related issues.
c. Section 22.32.027, Scope of Review
Knott Landfill
CU-02-102/SP-02-51
11
A. Before Hearings Officer or Planning Commission. The review
on appeal before the Hearings Officer or Planning Commission
shall be de novo.
Exhibit
Page JR of (p0
FINDINGS: The Hearings Officer finds de novo review means I may consider both evidence
presented to Hearings Officer Lewis in 2002 and evidence presented in this appeals
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
APPELLANTS' ASSIGNMENT OF ERROR I
The code only allows a conditional use permit to be granted when the DEQ has already
issued a permit See DCC 18.16.031 (B). * * * For this reason, the County cannot issue
this conditional use permit until after the DEQ has issued its permit * * * *
FINDINGS: Section 18.16.031 provides in pertinent part:
The following uses may be allowed only on tracts in the Exclusive Farm Use Zones
that constitute nonhigh value farmland subject to applicable provisions of the
Comprehensive Plan and DCC 18.16.040 and other applicable sections of DCC Title
18.
B. A site for the disposal of solid waste approved by the governing body of a city
or County or both and for which a permit has been granted under. ORS
459.245 by the Department of Environmental Quality together with
equipment, facilities or buildings necessary for its operation. (Emphasis
added.)
The 2003 decision includes the following findings and conclusions concerning the interpretation
and application of the above -underscored language:
"The criterion specifically states "a site for the disposal of solid waste... for which a
permit has been granted " The applicant's response to this criterion is as follows:
'As 1 understand the process, eventually DEQ will amend the existing Knott
Landfill permit. What is needed before that will be an approved CUP from the
County, a LUCS [Land Use Compatibility Statement], an update to the 1996
Knott Landfill Site Development Plan, and a formal request (letter) from the
County, not to mention a DEQ required notice of public hearing.'
Furthermore, comments from DEQ on the application state:
'The Department of Environmental Quality is working with the County Solid
Waste Department on permitting issues This is an important improvement for the
County Solid Waste program. The Department of Environmental _ Quality
recommends approve -l.
s Section 22.32.027(B) provides the scope of review on appeal to the board is "on the record" unless the
board authorizes de novo review.
Knott Landfill
CU-02-102/SP-02-51
12
Exhibit_
Page 9 c---) of (OC)
The record shows that a requirement that DEQ have already granted a permit for the use
prior to the issuance of a conditional use permit would create an impossibility for the
applicant, since the County's conditional use permit needs to be granted first before DEQ
will issue a permit. The creation of an impossibility could not have been the intent of the
governing body when adopting this language. On a previous matter involving a
conditional use permit to establish a campground (file number CU -01-3), where the
applicant, Chelsea Trees, Inc., had failed to meet their burden of proof in demonstrating
that the campground was licensed by the State, the Hearings O icer found.•
'The Hearings Officer agrees with staff that this criterion is not met because the
applicant did not either provide a license or any evidence that shows the
applicant is reasonably assured a State license subject only to receiving county
approval. '
In the present case, the applicants have demonstrated both that they cannot obtain a
DEQ permit until the County permit is issued and that they are reasonably assured of
getting a DEQ permit upon approval of the County permit. Therefore, the Hearings
Officerfinds that this component of the criterion can be satisfied through a condition of
approval requiring the applicants to obtain a permit from DEQ and submit it to the
County prior to the initiation of the use or issuance of a building permit, whichever
occurs first. " (Underscored emphasis in original.)
Hearings Officer Lewis imposed Condition of Approval 6 which states:
"The applicant shall obtain a permit for the facility from DEQ and submit it to the
County prior to the initiation of the use or the issuance of a building permit, whichever
comes first. "
At the public hearing on the appeal, Don Bramhall of DEQ testified that there exists an
interagency agreement between DEQ and the Department of Land Conservation and
Development (DLCD) whereby DEQ has agreed not to issue permits without a "land use
compatibility statement" from the local government stating the proposed use has been or can be
approved. Mr. Bramhall stated that often the activities for which a DEQ permit is required also
require a conditional use permit issued by a local government.
Appellants argue that Hearings Officer Lewis' "impossibility" argument fails under the statutory
construction analysis required in PGE v BOLI, 317 Or 606, 859 P2d 1143 (1993) because the
language of Section 18.16.031(B) authorizing approval of a solid waste disposal site for which a
DEQ permit "has been granted" is clear on its face. Appellants also argue that by conditioning
approval of the applicant's proposal on obtaining a DEQ permit, Hearings Officer Lewis
impermissibly deferred a discretionary land use decision.
The applicant's counsel responds that conditioning approval of the applicant's proposal on
obtaining a DEQ permit did not amount to an improper deferral of a discretionary decision
because the county does not make the DEQ permit decision. The applicant also argues that
nothing in PGE v BOLI precludes a determination of "impossibility,". citing a concurring
opinion in the Supreme Court's decision in Carlson v Myers, 327 Or 213, 959 P2d 31 (1998)
interpreting several challenged ballot titles under a statutory provision the court found to be
Knott Landfill
CU-02-102/SP-02-51
13
Exhibit
Page -2L- of 106
ambiguous. The concurring opinion cited ORS 174.0106 and the court's previous decision in Fox
v Galloway, 174 Or 339, 148 P2d 922 (1944) for the proposition that, notwithstanding the
analysis laid out in PGE v BOLI, if a literal interpretation of statutory language produces an
absurd or unreasonable result "such as the legislature could not be supposed to have intended,"
the court must interpret the language so that it is "a reasonable and workable law * * *." 174 Or
339, at 347.
The Hearings Officer finds the threshold question under PGE v BOLI is whether the language in
Section 18.16.013(B) is ambiguous. The answer to that question turns on the text and context of
the provision. I note at the outset that this section was derived, but differs from, ORS
215.283(2)(k), which provides:
(2) The following nonfarm uses may be established, subject to the approval of
the governing body or its designee in any area zoned for exclusive farm use
subject to ORS 215.296:
(k) A site for the disposal of solid waste approved by the governing body
of a city or county or both and for which a permit has been granted
under ORS 459.245 by the Department of Environmental Quality
together with equipment, facilities or buildings necessary for its
operation. (Emphasis added.)
When the county incorporated this use into the list of conditional uses permitted in the EFU
Zones, it changed the phrase "may be established" to "may be allowed." Neither "allowed" nor
"established" is defined in Title 18. The ordinary meaning of these terms is different. Webster's
New World Dictionary defines "allowed" in part as "to permit, to let have." It defines "establish"
in part as "to set up, found, institute." In the context of the ordinance language at issue, the
Hearings Officer finds the difference in terminology is significant. Under the statutory language
the DEQ permit would be a prerequisite to actual establishment of the solid waste disposal site —
i.e., construction -- whereas under the ordinance language the permit would be a prerequisite to
the allowance — i.e., the issuance of a conditional use permit. In other words, under the statutory
language, approval could be conditioned on obtaining the DEQ permit before construction.
Under the ordinance language, the DEQ permit is required before the conditional use permit is
issued.
Based on the foregoing discussion, the Hearings Officer concurs with appellants that the
language of Section 18.16.031(B) is clear and unambiguous on its face. It makes the granting of
the DEQ permit a prerequisite for the issuance of a conditional use permit for the proposed solid
waste disposal site. For that reason, I also concur that nothing in PGE v BOLI authorizes me
either to examine the legislative history of the ordinance language or to interpret it in a way that
contravenes its plain language. In light of the intergovernmental agreement identified by Mr.
Bramhall, there is no question the literal interpretation of Section 18.16.031(B) produces an
absurd result — a "Catch 22" in -which neither DEQ northe county can issue a permit for the
proposed disposal site. That result is not created by the statutory language, and certainly was not
6 That statute states in pertinent part that in interpreting statutory language, "where there are several
provisions or particulars such construction is, if possible, to be adopted as will give effect to all."
Knott Landfill
CU-02-102/SP-02-51
14
Exhibit
Page �22 of Lo c5
contemplated by the county.7 Nevertheless, the applicant has not cited any authority -- other than
the concurring opinion in Carlson v. Myers — for me to deviate from the PGE v BOLI anallsis.
While the analysis in the concurring opinion is compelling, it is not the controlling authority.
For the foregoing reasons, the Hearings Officer finds the 2003 decision erred in concluding the
proposed conditional use permit could be approved with a condition requiring that the applicant
obtain a DEQ permit before initiating the use or obtaining building permits. Therefore,
appellants' first assignment of error is sustained.
Because the applicant failed to satisfy one of the prerequisites for conditional use approval,
the Hearings Officer finds the 2003 decision cannot be affirmed on appeal and the
applicant's proposal cannot be approved. However, because the board will review this
decision before issuing its revised decision on reconsideration, I will make findings on
appellants' remaining assignments of error to assist the board.
APPELLANTS' ASSIGNMENT OF ERROR 2
The county is attempting to move certain facilities and operations currently being
conducted on the existing Knott landfill site (Tax Lot 500) to Tax Lot 100, in an effort
to free up more space on Tax Lot 500 so it can be used for solid waste disposaL
However, the conditional use application currently under consideration may only
accomplish half of this goal. Even if the applicant is successful in getting this permit
approved, the applicant may still have to seek conditional use approval if it is intending
to operate a "disposal site," as opposed to a "land disposal site-" * * * If the activities
proposed on Tax Lot 500 do not fall within the definition of land disposal site, a
conditional use permit is needed for new operations and facilities conducted at that
site
FINDINGS: The Hearings Officer finds this assignment of error does not identify an error in the
2003 decision but rather simply states appellants' opinion about what additional land use
approvals the county may require to complete its expansion of the Knott Landfill. However, this
assignment of error introduces two fundamental issues in this appeal — the nature of the activities
the applicant proposes, and where these activities are permitted — that should be addressed.
The tax maps and aerial photographs in the record show the existing Knott Landfill activities,
including the disposal of solid waste by landfill and the related facilities, are occurring on both
the SM -zoned Tax Lot 500 and on the portion of Tax Lot 100 zoned SM. Two types of solid
waste disposal activities are allowed in the SM Zone. Section 18.52.030 allows outright a "land
disposal site" for which there is a valid DEQ permit. Section 18.52.040 allows as a conditional
use the construction, expansion and operation of a "disposal site." Section 18.04.030 defines
7 It may be that the intergovernmental agreement and resulting DEQ and DLCD requirement of a land use
compatibility statement took effect after the county adopted the language in Section 18.16.031(B).
'The cases cited in appellants' "Hearings Memorandum" concerning the timing of the DEQ permit also
are not controlling. They merely contain dicta to the effect that the DEQ permits in those cases preceded
the land use approval.
Knott Landfill
CU-02-102lSP-02-51
15
Exhibit
Page CA— of (p b
these two uses as follows:
"Disposal site" means land facilities used for disposal, handling or transfer of or.
resource recovery of solid wastes.
"Land disposal site" means a disposal site and related facilities at which the method
of disposing solid waste is by landfill.
The Hearings Officer finds the difference between these uses is the manner in which solid waste
is disposed. In a "land disposal site" the solid waste is disposed by burial in a landfill. In a
"disposal site" the solid waste is disposed of with methods other than a landfill - e.g., a transfer
station or recycling center. The current activities occurring at the Knott Landfill constitute a
"land disposal site" which is a use permitted outright on Tax Lot 500 and the SM -zoned portion
of Tax Lot 100. This use includes both the landfill and "related facilities."9
The applicant is seeking approval for a use allowed conditionally on the EFU-zoned portion of
Tax Lot 100 under Section 18.16.031(B) - i.e., "a site for the disposal of solid waste * * *
together with equipment, facilities or buildings necessary for its operation." This language does
not precisely track the definitions in Section 18.04.030. However, because the conditional use
described in Section 18.16.031(B) does not use the term "land disposal site," the Hearings
Officer finds the county clearly intended that: 1) landfills are not allowed conditionally in the
EFU Zone; and 2) solid waste disposal sites employing methods other than landfills are allowed.
I further find inclusion of "necessary" facilities along with the disposal "site!',in Section
18.16.031(B) signifies the county intended the conditional use in the EFU Zone to encompass
more than merely the "facilities used for disposal handling or transfer of or resource recovery of
solid wastes" (emphasis added).
As discussed above, Tax Lot 100 is a single parcel with a split zoning of SM and EFU-TRB. The
applicant proposes to relocate to the EFU-zoned portion of Tax Lot 100 all activities except the
landfill which would remain on Tax Lot 500 and the SM -zoned portion of Tax Lot 100 where it
is permitted outright. The applicant is requesting conditional use and site plan approval to place
the "disposal site" activities on the EFU-zoned portion of Tax Lot 100 where they are permitted
conditionally. Therefore, appellants' second assignment of error is denied.
APPELLANTS' ASSIGNMENT OF ERROR 4
The Applicant is seeking conditional use approval for a "site for the disposal of solid
waste," together with "equipment, facilities or buildings necessary for its operation."
ORS 215.283(2)(k); DCC 18.1 6 031(B). However, according to the application, no
disposal of solid waste is being contemplated on Tax Lot 100. Therefore, the uses for
which approval is being sought cannot be considered "a site for the disposal of solid
-waste."-* - * *-T-he Applicant has failed to demonstrate how the proposed -structures are
9 Because the definition of "land disposal site" expressly incorporates "disposal site," the use permitted
outright in the SM Zone arguably includes both landfill and non -landfill methods of disposing of solid
waste. However, the "disposal site" use is expressly included in the list of conditional uses. The Hearings
Officer finds I need not address this ambiguity in this appeal.
Knott Landfill
CU-02-102/SP-02-51
16
Exhibit
Page 2_14— of CPC
"incidental and subordinate" to the main use of the property. DCC 18.04.030. * * *
FINDINGS: As discussed above, disposal of solid waste through landfill is occurring on both
Tax Lot 500 and the SM -zoned portion of Tax Lot 100. Disposal of solid waste through means
other than landfill also is occurring on the SM -zoned portion of Tax Lot 100 — e.g., the recycling
center. Under the applicant's proposal solid waste would continue to be disposed of by landfill
and non -landfill methods on the SM -zoned portion of Tax Lot 100, and non -landfill disposal
methods would occur on the EFU-zoned portion of Tax Lot 100. Regardless of its split zoning
designation, Tax Lot 100 remains a single lot. Therefore, under the applicant's proposal, solid
waste will continue to be disposed of on Tax Lot 100.
Appellants' argue the applicant must demonstrate facilities proposed to be relocated onto the
EFU-zoned portion of Tax Lot 100 are "incidental and subordinate" to the landfill. The Hearings
Officer finds this argument is without merit. The phrase "incidental and subordinate" comes
from the definition of "accessory use or accessory structure" in Section 18.04.030. However, this
definition is not applicable because Section 18.16.031(13) does not define the conditionally
permitted use to include "accessory use[s]." Rather, it expressly includes "equipment, facilities
or buildings necessary for its operation." (Emphasis added.) I find "necessary" is a different
standard from "accessory." Therefore, appellants' fourth assignment of error is denied.
APPELLANTS'ASSIGN' &W OFEPMOR S
The Applicant is seeking conditional use approval for a "site for the disposal of solid
waste, " together with "equipment, facilities or buildings necessary for its operation. "
ORS 215.283(2)(k); DCC 18.16.031(B). The definition of solid waste does not include
hazardous waste, as that term is defined by ORS 466.005(7), nor does it include certain
materials used as fertilizers See DCC 18.04.030 (definition of solid waste). * * * The
recycling center is not allowed because it is not a "site for the disposal of solid waste, "
nor is it "a facilit[y] or buildings necessary for its operation. " The Applicanthas also
failed to demonstrate that the proposed administration building is either a "site for the
disposal of solid waste, " or "a facilit[yj or buildings necessary for its operation. "
FINDINGS: Appellants argue the 2003 decision erred in concluding the components of the
proposed conditional use consisting of hazardous waste disposal, the recycling center,
composting facility, and administrative building could be approved as part of the proposed "site
for disposal of solid waste" either because they are not considered "solid waste" or because they
are not "necessary for" the operation of the disposal site. Each challenged component is
discussed separately below.
1. Hazardous Waste. The applicant's submitted conceptual site plan shows an area designated for
"household hazardous waste disposal." Neither "hazardous waste" nor "household hazardous
waste, is defined in Title 18. However, both terms are defined separately in the provisions of
ORS Chapter 459 that govern solid waste disposal. ORS 459.005(12) defines "household
hazardous waste" as:
* * * any discarded, useless, or unwanted chemical, material, substance or product
Knott Landfill
CU-02-102/SP-02-51
17
Exhibit 5
Page _of Lo
that is or may be hazardous or toxic to the public or the environment and is
commonly used in or around households and is generated by the household.
"Household hazardous waste" may include, but is not limited to, some cleaners,
solvents, pesticides and automotive and paint products.
ORS 459.005(11) provides:
"Hazardous waste" has the meaning given that term in ORS 466.005.
ORS 466.005(7) defines "hazardous waste" as follows:
"Hazardous waste" * * * does include all of the following which are not declassified
by the commission [Environmental Quality Commission] under ORS 466.015(3):
(a) Discarded, useless or unwanted materials or residues resulting from any
substance or combination of substances intended for the purpose of
defoliating plants or for the preventing, destroying, repelling or mitigating of
insects, fungi, weeds, rodents or predatory animals including but not limited
to defoliants, desiccants, fungicides, herbicides, insecticides, nematocides and
rodenticides.
(b) Residues resulting from any process of industry, manufacturing, trade or
business or government or from the development or recovery of any natural
resources, if such residues are classified as hazardous by order of the
commission, after notice and public hearing. For purposes of classification,
the commission must find that the residue, because of its quantity,
concentration, or physical, chemical or infectious characteristics may:
(A) Cause or significantly contribute to an increase in mortality or an
increase in serious reversible or incapacitating reversible illness; or
(B) Pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or
disposed of, or otherwise managed.
(c) Discarded, useless or unwanted containers or receptacles used in the
transportation, storage, use or application of the substances described in
paragraphs (a) and (b) of this subsection.
In a letter dated June 2, 2004, Don Bramhall of DEQ stated "household hazardous waste is solid
waste * * *[,] is a subset of other household waste" and is regulated as solid waste rather than
as hazardous waste defined -in -ORS -Chapter 466.-W.-Bramhall's statement is -supported -the
by e
definition of"solid waste" in Section 18.04.030 which states in pertinent part:
"Solid waste" * * * means all putrescible and nonputrescible wastes, including but
not limited to garbage, rubbish, refuse, ashes, waste paper and cardboard;
Knott Landfill
CU-02-102/SP-02-51
18
Exhibit
Page -2D of
commercial, industrial, demolition and construction wastes, discarded home and
industrial appliances; and other wastes; but the term does not include:
A. Hazardous wastes as defined in ORS 466.005(7). (Emphasis added.)
For the foregoing reasons the Hearings Officer finds the 2003 decision did not err in concluding
"household hazardous waste" is "solid waste" for purposes of the applicant's proposal and
allowed in the "disposal site" use for which conditional use approval is requested.
2. Fertilizers. The definition of"solid waste" in Section 18.04.030 also excludes:.
B. Materials used for fertilizer or for other productive purposes or which are
salvageable as such materials are used on land in agricultural operations and
growing or harvesting of crops and the raising of animals.
The wording of this exclusion is not a model of clarity. It was adapted from DEQ's
administrative rules specifically OAR 340-093-0005(82) -- which describe this "solid waste"
exclusion as follows:
(b) Materials used for fertilizer, soil conditioning, humus restoration, or for
other production purposes or which are salvageable for these purposes and
are used on land in agricultural operations and the growing or harvesting of
crops and the raising of fowls or animals, provided the materials are used at
or below agronomic application rates.
It is not clear from appellants' assignment of error what aspect, if any, of the Knott Landfill solid
waste stream they believe this exclusion would apply to. Although compost material may be
used for soil conditioning, it is expressly listed in the activities included in a "disposal site"
under DEQ's rule OAR 340-093-0005(30). Therefore, the Hearings Officer finds that if
appellants consider the "fertilizer" exclusion from "solid waste" to preclude the proposed
composting facility their argument is without merit.
3. Recce C�; enter. As discussed in the findings above, the definition of "disposal site" includes
"handling or * * * resource recovery of solid wastes." Section 18.04.030 defines "resource
recovery" as the "process of obtaining useful material or energy resources from solid waste and
includes: * * * "[r]ecycling."
The 2003 decision includes the following language addressing the need for the recycling center:
"A portion of the waste stream entering the Knott Landfill is redistributed to the
recycling operations at the landfill. The recycling component requires equipment,
- facilities, and buildings necessary for its operation, which -is consistent with this code.
The Hearings Officer concurs with this finding. I further find appellants' argument that the
applicant failed to demonstrate it is necessary for the recycling facility to be located on the
proposed disposal site is without merit. The conceptual site plan and oral and written testimony
Knott Landfill
CU-02-102/SP-02-51
19
Exhibit 6
Page 9 -7 of to d
of the applicant's representative Timm Schimke present a comprehensive plan and program
whereby all solid waste will be brought to the proposed disposal site. At that location it will be
sorted and handled by resource recovery, composting, or disposal in the covered drop-off area
from which it will be transferred to large trucks to be transported to and disposed of in the
landfill. I find this evidence constitutes substantial evidence from which I can find the county
needs to create a seamless, integrated and efficient solid waste management program on the
proposed disposal site, including the recycling center. Therefore, I find the recycling center
constitutes a facility "necessary" for the operation of the disposal site.
4. Administrative Building, The 2003 decision includes the following language addressing the
administrative building:
"In addition, the proposed administration/maintenance building is an integral function of
the operations at the Knott Landfill "
In his written public hearing testimony, Timm Schimke stated:
"Administrative offices will be located north of the HHW [household hazardous waste]
facility. The office will house S or 6 supervisory and administrative stafffor the receiving
facilities and the landfill. The office will also provide transaction and other records
storage and will be accessible to customers needing administrative services. "
As discussed above, the Hearings Officer has found the county's evidence demonstrates its need
for a seamless, integrated and efficient solid waste disposal operation — essentially a single
location for all solid waste operations. Clearly 'supervision of landfill and disposal site staff and
customer record-keeping are essential components of, and therefore "necessary" for, that
operation.
For the foregoing reasons, the Hearings Officer finds the recycling center and administrative
building are "necessary" for the operation of the proposed disposal site. I further find the
required DEQ permit will assure materials excluded from the definition of "solid waste" will not
be disposed of at the proposed disposal site. Therefore, appellants' fifth assignment of error is
denied.
APPELLANTS' ASSIGNMENT OF ERROR 6
To the extent that the Applicant is correctly applying for "a site for the disposal of solid
waste, " together with "equipment, facilities or buildings necessary for its operation, "
then DCC 18.128.120(A) -(E) set forth criteria applicable to this application. The
Hearings Officer concluded that the DCC 18.128.120(A) -(D) did not apply to the
application because it "involves the relocation of [an] existing recycling facility and an
administrativelmdintenance building appurtenant ro the existing landf ll disposal site. " *
* * This is an incorrect reading of the Code, which by its very terms draws no distinction
between 'new' or 'relocated' facilities
FINDINGS: The 2003 decision includes the following language addressing this issue:
Knott Landfill
CU-02-102/SP-02-51
20
Exhibit
Page 2'a of (0 C)
"The Hearings Officer agrees with Staff that the specific conditional use criteria A
through D, apply to a new proposal for a solid waste disposal site and not to the
proposed relocation of the existing landfill related facilities herein. The EFU zone,
Section 18.16.031, provides for the following use as a conditional use:
B. A site for the disposal of solid waste approved by the governing body of a city or
County or both and for which a permit has been granted under ORS 459.245 by
the Department of Environmental Quality together with egui ment. facilities or
buildings necessary or its o erp ation." [Emphasis in original.]
Section 18.128.120 provides in pertinent part:
The Planning Director or Hearings Body may authorize a landfill or other solid
waste disposal site as a conditional use, subject to the following standards: * '
(Emphasis added.)
As discussed above, Section 18.04.030 defines "disposal site" and "land disposal site" as two
different uses distinguished by whether or not solid waste is disposed of in a landfill. The
Hearings Officer finds the above -underscored language includes both types of sites in the
conditional use to which special approval criteria in Section 18.128.120(A) through (D) are
applicable. Planning Staff recommended, and Hearings Officer Lewis found, that because the
applicant is not requesting approval for "new" solid waste disposal site on the EFU-zoned
portion of Tax Lot 100 these conditional use criteria do not apply. The apparent basis for that
finding is a summary of the legislative history of the EFU Zone included in the 2002 Staff
Report. However, as discussed in the findings above, under PGE v BOLI I cannot consider
legislative history where, as here, the language of the ordinance is not ambiguous. The applicant
has acknowledged the provisions of Section 18.128.120 apply to its proposal and addressed them
in its burden of proof. For these reasons, I find the 2003 decision erred in failing to apply the
approval criteria in Section 18.128.120. Therefore, appellants' sixth assignment of error is
sustained.
The criteria in paragraphs (A) through (E) of Section 18.128.120 are addressed separately in the
findings below.10
A. The proposed site shall not create a fire hazard, litter, insect or rodent
nuisance, or air or water pollution in the area.
FINDINGS: The majority of opponents' objections to the applicant's proposal concern potential
environmental impacts such as noise, odor, litter, bird nuisance and groundwater contamination.
However, those objections focus primarily on impacts from the landfill itself — i.e., the dumping
and burial of solid waste in open "cells" which the applicant does not propose to undertake on
the project site. The question presented by this criterion is whether the facilities and activities on
10 Although the 2003 decision concluded the criteria in Section 18.128.120 were not applicable, these
criteria were included in the decision's list of applicable criteria. Therefore, the Hearings Officer finds
they were properly noticed and I can address them in this decision on appeal.
Knott Landfill
CU-02-102/SP-02-51
21
Exhibit
Page2_9 ofCa0
the project site will create the listed impacts. The Hearings Officer finds they will not.
1. Fire Hazard. The record indicates the project area will receive fire protection from the Bend
Fire Department. In its comments on the applicant's proposal the fire department listed a number
of requirements for fire prevention and suppression. Condition 4 of the 2003 decision requires
the applicant to comply with those requirements. The Hearings Officer finds that imposition of
that condition will assure the proposed disposal site and related facilities will not create a fire
hazard.
2. Litter. Several opponents testified the area surrounding the existing Knott Landfill
accumulates litter blown off the landfill site. Appellant Gretchen Grivel submitted several
photographs of this litter. The applicant proposes to address litter on the project area — and
indirectly on the landfill site itself — through three methods. First, customers coming to the
project area would dispose of their solid waste within a building that will contain any loose
refuse. Second, this waste will be compacted. Third, the compacted waste will be loaded into
large trailers to be transported to and disposed of in the landfill. The Hearings Officer finds the
use of an enclosed solid waste receiving center will assure the project area does not create litter.
3. Insect or Rodent Nuisance. Opponents did not identify problems with vermin such as insects
or rodents. They did raise concerns about large flocks of birds attracted to the solid waste in the
open landfill cells that create noise and whose carcasses and droppings litter the area. The
Hearings Officer finds the enclosed solid waste building, in addition to eliminating litter on the
project area, will assure the project area does not create an insect, rodent or bird nuisance.
4. Air Pollution. Again, appellants' and opponents' complaints about air quality focus on
activities at the Knott Landfill. The Hearings Officer finds the disposal of solid waste on the
project area within an enclosed building will eliminate blowing dust as well as blowing litter.
The applicant also has requested approval for a landfill gas management area on the project area.
Timm Schimke testified the county is exploring several methods for managing this gas, including
flaring it as currently is done on the Knott Landfill site, direct use of the gas as fuel, and using
the gas to generate electricity. I find that any of these activities will require DEQ and/or other
permits that will assure the disposal site will not violate air quality regulations. For these reasons,
I find the applicant's proposal will not create air pollution.
5. Water Pollution. Appellants and opponents argue the Knott Landfill is creating groundwater
pollution through leaching of chemicals and metals — in particular chromium -- from the Knott
Landfill cells. As discussed above, the applicant's proposal does not include solid waste disposal
through landfill, and the activities on the current Knott Landfill — Tax Lot 500 and the SM -zoned
portion of Tax Lot 100 — are not before the Hearings Officer in this appeal.
With respect to the project area, the applicant proposes to contain all surface water drainage on
site -to prevent -it from running off into surface water. Sewage generated on site (e g:; restrooms in
the administration building) will be handled with an on-site sewage disposal system approved
and permitted by the county's Environmental Health Division. The applicant also proposes to
create two leachate evaporation ponds. OAR 340-093-030(52) defines "leachate" as "liquid that
has come into direct contact with solid waste and contains dissolved, miscible and/or suspended
Knott Landfill
CU-02-102/SP-02-51
22
Exhibit Fp
Paged of
contaminants as a result of that contact." Timm Schimke testified the Knott Landfill does not
employ leachate ponds, instead transporting the leachate to the City of Bend wastewater
treatment plant. The proposed leachate ponds would provide an additional means of disposing of
this material through evaporation. However, Mr. Schimke also testified:
"[E]vaporation would be our least favorable method of leachate management and we do
not anticipate needing to rely on it. If leachate evaporation ponds are a concern, we are
willing to remove these ponds from consideration as an allowable use. "
Appellants and opponents submitted into the record numerous documents addressing
groundwater contamination from landfills in general, and from leaching of chromium in
particular. In response, the applicant submitted an engineer's report concluding that the
chromium that has been detected in groundwater monitoring wells surrounding the Knott
Landfill is coming from the stainless steel pumps in those wells and not from the solid waste or
leachate. Appellants and opponents dispute that conclusion, but offered no scientific or
engineering opinions to contradict it. The Hearings Officer finds whether or not chromium is
leaching into groundwater from the Knott Landfill is not before me in this appeal. I also find I
cannot deny the applicant's proposal for the project area on the basis of what may or may not be
occurring on the Knott Landfill site. Likewise, in the absence of evidence contradicting the
engineer's conclusion about the source of the chromium — e.g., evidence that it is coming from
the leachate — I find the engineer's report constitutes substantial evidence from which I can find
the proposed leachate ponds will not create water pollution.
B. The proposed site shall be located in or as near as possible to the area being
served.
FINDINGS: The record indicates the Knott Landfill currently serves solid waste customers
throughout Deschutes County. The Hearings Officer is aware the landfill is located roughly in
the geographic center of the county on the outskirts of Bend where most county residents reside.
For these reasons, I find the applicant's proposal satisfies this criterion.
C. The proposed site shall be located at least one-quarter mile from any existing
dwelling, home or public road (except the access road).
FINDINGS: The tax lot maps and aerial photographs in the record show the project area is not
located within one-quarter mile of any existing dwellings. The closest dwellings — on Tax Lots
600 and 801 — are at least one-quarter mile from the boundary of the project area. Therefore, the
Hearings Officer finds the applicant's proposal satisfies this criterion with respect to existing
dwellings and homes.
With respect to the distance between the project area and public roads, the maps and photos in
the record show- a portion of the project area is located within one-quarter mile of 27* Street, a
designated arterial road. The record also indicates 271i Street does not abut the EFU-zoned
portion of Tax Lot 100 or the project area. When the county made the improvements to 27'
Street discussed above and constructed the internal roadway within the project area, it obtained a
public road dedication from CEC which occupies Tax Lot 102 abutting the project area on the
Knott Landfill
CU-02-102/SP-02-51
23
Exhibit--5—
Page
xhibit5Pageof l00
west. Documents and a drawing attached to Timm Schimke's July 21, 2004 memorandum
indicate the dedication consists of strip of land crossing the southern tip of the CEC property that
connects 27a' Street to the western boundary of Tax Lot 100 and the project area. These
documents also indicate the project area's internal roadway is not dedicated to the public.
The applicant argues the exception to the quarter -mile separation for "access roads" applies to
27s' Street because it is the access road to the project area. Appellants and opponents argue the
"access road" is not 27s' Street but rather the internal roadway on the project area. Title 18 does
not define "access road." The definition of "road" in Section 18.04.030 "a public and private way
created to provide ingress or egress to one or more lots, parcels, areas or tracts of land."
"Access" is defined in the same section as "the right to cross between public and private property
allowing pedestrians and vehicles to enter and leave property." Combining these definitions
suggests an "access road" would be a public or private road providing a right of ingress and
egress between public and private property. However, that combination would exclude roads that
provide access between a public road and public property, such as the project area, which would
be inconsistent with the plain language of the "road" definition. Therefore, the Hearings Officer
finds that to give meaning to both definitions, an "access road" is one created to provide ingress
or egress to public property as well as to private property.
The record indicates the public road dedication between 274s Street and the groject area was
specifically "created to provide" ingress and egress from the project area to 27 Street. Without
this dedication the project area would not have access from 27U' Street. For this reason, the
Hearings Officer finds this dedicated road segment falls squarely within the definition of "access
road" discussed above. Therefore, the solid waste disposal site can be located within one-quarter
mile of the dedicated road segment between 27m Street and the western boundary of Tax Lot 100
and the project area.
The remaining question is whether 27`s Street also constitutes the project area's "access road."
There is no dispute that 27th Street was not created specifically to provide access to the project
area or to the Knott Landfill. The record indicates the road has been in existence since before
1972 when the landfill was established. The record does indicate the recent improvements to the
segment of 27h Street closest to the project area (widening and deceleration lanes) were created
specifically to provide access to the project area. Thus, at the very least, the segment of 27's
Street with these improvements serves two functions — providing access to the project area and
providing part of an arterial road. However, the Hearings Officer finds it makes no sense to
divide 27th Street into segments for purposes of this criterion. The part of 27a' Street improved to
provide access to the project area is part of the larger arterial road. Therefore, I find 27th Street
also constitutes the "access road" for the project area, and the proposed solid waste disposal site
can be located within one-quarter mile of 27a' Street. Therefore, I find the applicant's proposal
satisfies this criterion.
- -D -The proposed site shall be provided with a -maintained all=weather access
road.
FINDINGS: As discussed in the findings above, the Hearings Officer has found the "access
road" to the project site is 27th Street and the dedicated road segment between 27a' Street and the
Knott Landfill
CU-02-102/SP-02-51
24
Exhibit
Page 32— of U_
western boundary of Tax Lot 100 and the project area. The record indicates both roads are
improved with a paved surface and are and will continue to be maintained by the county.
Therefore, I find the applicant's proposal satisfies this criterion.
E. Applications for a conditional use permit to establish a commercial
composting facility under this category shall also meet the following criteria:
1. The proposed facility shall be effectively screened from adjacent
residential uses and scenic roadways. The proposed facility may use
existing topography and trees and/or introduced landscaped material.
2. The proposed facility shall employ practices of material handling and
processing that prevent noise and odors from impacting residences at
least one-quarter mile from the site.
3. The proposed facility shall employ practices of material handling and
processing that control debris and dust and ensure material is
contained on site.
FINDINGS: The 2003 decision includes the following language addressing Paragraph (E):
"With regard to subsection E, the present proposal and site plan include a 5 -acre
compost processing area near the south-central development area. According to the
application materials, the composting area will be used to process green waste and wood
waste. Ground wood waste will be loaded onto trucks and hauled off-site to be used as
hog fuel. The actual composting of the green waste will take place in an area west of the
compost processing area and is designated as Compost Windrows on the conceptual site
plan. In this area, compost is watered turned and screened prior to marketing.
Subsection E specifically applies to 'commercial composting' facilities and the County's
ordinance does not define it. However, the ordinance does define 'commercial' as
follows:
'Commercial use' means the use of land primarily for the retail sale of products
or services, including offices. It does not include factories, warehouses, freight
terminals or wholesale distribution centers
While the applicant indicates that some portions of the compost material may eventually
be sola the record shows that the primary use of the subject property is for the disposal,
handling, or transfer of or resource recovery of solid wastes and not for the sale of
products or services Based on the above analysis, the Hearings Officer agrees with Staff
that the proposal does not constitute a commercial composting facility as that term is
used in Subsection E above. Accordingly, the requirements at subsection E(1) through (3)
are not applicable to the present proposal. "
Timm Schimke submitted evidence that approximately one-third of the compost created in the
composting facility would be distributed through retail sales to drive -up customers. The
Knott Landfill
CU-02-102/SP-02-51
25
Exhibit
Page � of to (]
remaining two-thirds would go to landscapers through wholesale distribution. The Hearings
Officer concurs with Hearings Officer Lewis' conclusion that under these circumstances the
proposed disposal site in general, and the proposed composting facility in particular, do not
constitute "use of land primarily for the retail sale of products or services." Therefore, I find the
provisions of Paragraph (E) of Section 18.128120 do not apply to the applicant's proposal.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies the
applicable criteria in Section 18.128.120.
APPELLANTS' ASSIGNMENT OF ERROR IS
To the extent that the Board of Commissioners finds that the application can meet the
standards set forth in DCC 18.128 with the imposition of conditions, the appellants
respectfully request that the Board impose conditions addressing issues set forth in DCC
18.128.020(A) -(L).
FINDINGS: As discussed above, the Hearings Officer has found the applicant's proposal meets
or with imposition of conditions of approval included in the 2003 decision will meet the criteria
in Section 18.128.120. I find no additional conditions are required to assure these criteria are
met. Therefore, appellants' fifteenth assignment of error is denied.
APPELLANTS' ASSIGNMENT OF ERROR 11
The Applicant has failed to demonstrate that the tract does not consist of high-value
farm lana as required by DCC 18.16.031. The Hearings Officer only considered the
tax lot at issue, but failed to consider other tax lots contiguous to the subject property
which are in common ownership.
FINDINGS: Section 18.16.031(B) authorizes a solid waste disposal site only on "tracts in the
Exclusive Farm Use Zones that constitute nonhigh value farmland." Section 18.04 defines "high-
value farmland" as:
* * * land in a tract composed predominantly of the following soils when they are
irrigated: * * * Clovkamp loamy sand (27A and 28A), * * *.
The 2003 decision includes the following language addressing this issue:
"The subiect 365 -acre parcel contains four soil mapping units: 27A, Clovkamp loamy
sand; 38B, Deskamp-Gosney Complex, 58C, Gosney Rock Outcrop Deskamp complex;
1570, Wanoga Fremkle Rock outcrop complex Only 27A is considered a high-value soil
as defined in Section 18.04 and only if the tract of land is composed predominantly of this
soil -when -irrigated -The record shows that unit 27A -is -neither -the -predominant soil -
mapping unit on the property nor is it irrigated [Footnote omitted.] Comments from the
Arnold Irrigation District confirm that the property has no water rights and as stated in
the application and observed on a November 7, 2002, site visit by Staff, the property is
not irrigates: " (Underscored emphasis added.)
Knott Landfill
CU-02-102/SP-02-51
26
Exhibit
Page_ of J.00 _
The Hearings Officer finds it is clear from the above -underscored language that the 2003
decision considered the entire 365 -acre county -owned parcel, consisting of 4 contiguous tax lots,
as the "tract" for purposes of determining whether the applicant's proposal satisfies the criteria in
Section 18.16.031(B). Appellants' eleventh assignment of error is denied.
APPELLANTS' ASSIGNMENT OF ERROR 3
The application cannot be approved until the applicant demonstrates compliance with
DRS 215.296 and DCC 18.16 040. Specifically, the applicant has made no effort to
demonstrate that "the actual site on which the use is to be located is the least suitable
for the production of farm crops or livestock. " DCC 1M 040(3).
FINDINGS: Appellants argue the 2003 decision erred in failing to find the site is the "least
suitable for the production of farm crops or livestock" under Section 18.16.040.11 That section
provides in pertinent part:
Conditional uses permitted by * * * may be established * * * upon a finding by
the Planning Director or Hearings Body * * *:
3. That the actual site on which the use is to be located is the least suitable for
the production of farm crops or livestock.
The 2003 decision does not include a finding on this criterion, and therefore appellants' third
assignment of error is sustained. Nevertheless, the Hearings Officer finds the applicant's
proposal satisfies this criterion.
The term "site" is not defined in Title 18. However, the Hearings Officer finds that whether
"site" encompasses the entire EFU-zoned portion of Tax Lot 100 or just the approximately 70 -
acre project is immaterial to the analysis. As discussed above, the EFU-zoned portion of Tax Lot
100 including the project area has no irrigation water rights or high value soils. The record
indicates, and my site visit confirmed, that other than the internal road improvements undertaken
by the county following issuance of the 2003 decision the project area is vacant and essentially
homogeneous in topography and vegetation. Thus, no portion of the EFU-zoned portion of Tax
Lot 100 or the project area is more or less suitable for the production of farm crops or livestock.
Under these circumstances, I find both the EFU-zoned portion of Tax Lot 100 and the project
area satisfy this criterion.
" The Hearings Officer notes that although Section 18.16.031(B) makes the "site for the disposal of solid
waste" subject to the limitations on conditional uses established in -Section 18.16.040, the latter section
expressly applies to "[c]onditional uses permitted by DCC 18.16.030(H) through (DD)." (Emphasis
added.) The use for which the applicant seeks conditional use approval is not listed in Paragraphs (H)
through (DD) in Section 18.16.030, but rather in Section 18.16.031. Nevertheless, ORS 215.283(2), upon
which Section 18.16.031 is based, and ORS 215.296, upon which Section 18.16.040 is based, make clear
that solid waste disposal sites are subject to the limitations on conditional uses.
Knott Landfill
CU-02-102/SP-02-51
27
Exhibit
Page , of (o C�
APPELLANTS' ASSIGNMENT OF ERROR 7
The Applicant has not demonstrated that the proposed use is compatible with existing
and projected uses on surrounding properties, based on factors listed in DCC
18.128.01 S(A).
FINDINGS: Section 18.128.015(B) provides in pertinent part as follows:
The proposed use shall be compatible with existing and projected uses on
surrounding properties based on the factors listed in DCC 18.128.015(A).
The factors in Paragraph A of this section are:
1. Site, design and operating characteristics of the use;
2. Adequacy of transportation access to the site; and
3. The natural and physical features of the site, including, but not limited to,
general topography, natural hazards, and natural resources values.
The Hearings Officer finds that in applying these criteria to the applicant's proposal it is
necessary at the outset to determine the nature of the existing and projected uses on surrounding
properties.
1. Surrounding Properties and Existing Uses. As discussed in the Findings of Fact above, the
project area is surrounded by a broad mixture of uses. To the south are the Knott Landfill, the
Rose Pit surface mine, and small farms and rural residences on EFU-zoned land. To the west are
CEC's and the Public Works Department's headquarters and equipment yards, High Desert
Middle School, future park land, a dog kennel, a veterinary clinic, and small farms and rural
residences. Some of the land to the west is within the Bend city limits; the rest is zoned EFU and
UAR-10. To the north are large undeveloped areas zoned EFU that include part of Tax Lot 100
and a large undeveloped parcel owned by the state. To the east and southeast is a large
undeveloped area including part of Tax Lot 100 as well as small farms and rural residences on
land zoned EFU. The tax map included in the record indicates that of the 24 privately owned
EFU-zoned parcels located east and southeast of the project area 6 have dwellings.
2. Surrounding Properties and Projected Uses. The Hearings Officer finds it is unlikely the
parcels on which CEC's and the county's Public Works Department's headquarters and
equipment yards are located will be redeveloped with different uses. As discussed in the
Findings of Fact above, the county intends to continue using Tax Lot 500 and the SM -zoned
portion of Tax Lot 100 for the Knott Landfill until 2029. I find the large state-owned property
north of the project area and zoned EFU-is not likely to be developed: I also find that because o
the limitations on conditional uses in the EFU Zone, and the relatively small size of the EFU-
zoned lots to the east, southeast and southwest of the project area, these parcels are not likely to
develop or re -develop with uses other than small-scale farms and rural residences. I further find
that although there are 18 vacant EFU-zoned lots east and southeast of the project area, not all of
Knott Landfill
CU-02-102/SP-02-51
28
Exhibit
Page _2 of (.0 C)
them will qualify for a conditional use permit for a dwelling given the strict approval criteria for
dwellings in the EFU Zone. I find the High Desert Middle School could expand in the future to
accommodate more students. However, it is unlikely the school property would be redeveloped
with a different use. Therefore, I find the projected uses on land surrounding the project area will
be the same as the existing uses.
3. Site. Design and Operating Characteristics. As discussed elsewhere in this decision, the
majority of opponents' testimony concerning impacts on surrounding land focus on operations at
the Knott Landfill. The Hearings Officer finds the question is whether the project area is suitable
for the proposed disposal site considering the site, design and operating characteristics of the
proposed disposal site and not the landfill. The 2003 decision includes the following findings on
this factor as it relates to the proposed disposal site:
"Site Expansion and the relocation of facilities to an area north of the existing landfill
is, as described by the applicant, 'a systematic and logical extension of the landfill
operation. ' The evidence in the record shows that the topography of the proposed
development area is 'gently rolling terrain' and suitable for the proposed use. Access is
via 27`h Street, which according to the applicant is capable of handling the trg1c
generated by the use provided that improvements per the County Road Department are
made and the issue of the road alignment and PG&E's gas line is resolved [ 2]
Design: The applicant submitted a conceptual site plan design of the expanded and
relocated facilities. The conceptual design shows consideration and planning to specific
uses by the public, by commercial enterprises, and by use of the site by solid waste
landfill staff. For example, the public receiving station and materials recovery facility
will permit the public to unload their vehicles onto a level pad resulting in removing the
public from unloading their vehicles in close proximity to large operating equipment and
reducing the amount of blowing litter. In addition, traffic routing and building
configurations are designed to separate larger trucks and vehicles from the general
public. Since the applicant is only seeking approval at this time of the conceptual design,
future site plan reviews will assess specific design characteristics for each structure,
building, or use.
Operating Characteristics: According to the Burden of Proof, operational hours at the
Knott Landfill are seven days a week year round (excluding holidays) and from 7:00 a.m.
to 4:30 p.m. Prior to the hearing, PGE submitted comments indicating that the proposed
access appeared to lie within the gas pipeline right of way and requested that any
permanent access roads or structures be located outside of the right of way. At the public
hearing, the applicant's engineer testified that he had met with PGE, obtained a legal
description of the right of way easement and represented that the applicant would agree
to locate all permanent access roads and structures outside of the right of way. The
Hearings Officer will require this as a condition of approval.
12 As discussed above, the record indicates the county has completed the road improvements
recommended by the road department and required as conditions of approval in the 2003 decision.
Knott Landfill
CU-02-102/SP-02-51
29
Exhibit
Page 3--2 of (p O
With the resolution of the gas pipeline right of way and the opportunity to review
subsequent site plan applications for specific buildings, structures and uses, the Hearings
Officer agrees with Staff that the site is suitable for the relocation of the landfill
activities "
The Hearings Officer concurs with Hearings Officer Lewis' analysis and findings. Based on
those findings, I find the applicant has met its burden of demonstrating the proposed solid waste
disposal site will be compatible with existing and projected uses on surrounding properties
considering its site, design and operating characteristics.
4. Adequacy of Transportation Access to the Site. As discussed in the findings above concerning
what constitutes the project area's "access road," the term "access" is defined in Section
18.04.030 as "the right to cross between public and private property allowing pedestrians and
vehicles to enter and leave property." Applying this definition in light of the discussion above
concerning the "access road," the Hearings Officer finds the term "transportation access" means
the physical and legal means by which vehicles would come and go from the project area. As
discussed in the findings above, I have found the "access road" to the project area consists of 27h
Street and the dedicated road segment across CEC's property (Tax Lot 102) from 27h Street to
the western boundary of Tax Lot 100 and the project area. I have further found these two public
roads have paved surfaces maintained by the county. In addition, I have found the applicant has
completed the improvements to 27's Street (widening and deceleration lanes) required by the
2003 decision to assure safe and adequate vehicular access to the project area, and Conditions 1
and 5 of the 2003 decision have been met. For these reasons, I find the applicant has met its
burden of proving the proposed solid waste disposal site will be compatible with existing and
projected uses on surrounding properties considering transportation access.
5. Natural and Physical Features of the Site. The 2003 decision includes the following language
addressing this factor:
"Topography of the site is described by the applicant as 'gently rolling terrain' with an
area of lava ridges running north -south through the center of the site. Vegetation is
typical of high desert areas and includes bunchgrasses, bitter brush, rabbitbrush,
sagebrush, western juniper, and several ponderosa pines Other than fire, staff [sic] is
unaware of any potential 'natural hazards' on the site. The record shows that the subject
property is located within the Bend Fire Protection District and comments from the Bend
Fire Department identify several requirements for the applicant to carry out. The
Hearings Officer will require compliance with the Bend Fire Department requirements
as a condition of approval. Based on the above, the Hearings Officer agrees with Staff
that the natural and physical features of the site are suitable for the proposed use. "
Based upon this Hearings Officer's site visit observations and impressions and my review of the
aerial photographs in the record, I -concur with HearingsOffcer Lewis' --findings.- Based on those
findings, I find the applicant has met its burden of proving the proposed solid waste disposal site
will be compatible with existing and projected uses on surrounding properties considering the
project area's natural and physical features.
Knott Landfill
CU-02-102/SP-02-51
30
Exhibit 13
Page -13Z of
For the foregoing reasons, the Hearings Officer finds the applicant has demonstrated the
proposed solid waste disposal site is compatible with existing and projected uses on surrounding
properties based on factors listed in DCC 18.128.015(A). Therefore, appellants' seventh
assignment of error is denied.
APPELLANTS' ASSIGNMENT OF ERROR 8
The applicant has not demonstrated that the proposal will "relate harmoniously to the
natural environment and existing development," nor has any attempt been made to
minimize visual impacts and preserve natural features such as views and topographical
features. DCC M 124.060(A).
FINDINGS: Section 18.124.060(A) provides:
The proposed development shall relate harmoniously to the natural environment
and existing development, minimizing visual impacts and preserving natural
features including views and topographical features.
The Hearings Officer finds this criterion includes four factors, each of which is addressed
separately in the findings below.
1. Relate Harmoniously to the Natural Environment. The 2003 decision includes the following
language addressing this factor:
"The proposed project will be contiguous to the existing landfill to the south and will be
fenced and landscaped similar to the existing landfill for safety, security, appearance,
and control of blowing debris. A portion of the natural environment on the parcel will be
disturbed to accommodate the proposed use; however, the development area contains no
significant natural features Views will be preserved as building heights will not exceed
the 30 feet height restriction in the EFU zone. ""
The Hearings Officer concurs with these findings. Although the adjacent Knott Landfill site has
been heavily disturbed by decades of use as a landfill, the applicant proposes to preserve most of
the natural topography and much of the natural vegetation on the project area in order to
maintain its natural appearance to the degree possible considering the type of use proposed for
the site. For these reasons, I find the applicant has met its burden of demonstrating the proposed
disposal site will relate harmoniously to the natural environment.
2. Relate Harmoniously to Existing Development. As discussed in the findings above, existing
development surrounding the project area consists of a broad range of uses, including the
existing Knott Landfill, a surface mine, CEC's and the Public Works Department's headquarters
and -equipment yards, an arterial road, a middle school, a dog kennel, -rural-residences and small-
scale farms. The Hearings Officer finds the proposed solid waste disposal site will relate
harmoniously to the more intense existing development on adjacent land to the west and south,
including the Knott Landfill and CEC's and the Public Works Department's facilities. That is
because the nature of the solid waste activities proposed for the project area will have
Knott Landfill
CU-02-102/SP-02-51
31
Exhibit
Page 3(J of (gyp
significantly less impact than the ongoing activities at the Knott Landfill, and likely will be quite
similar to the activities currently taking place on the Public Works Department property.
Appellants and opponents have identified several factors they believe will render the proposed
solid waste disposal site incompatible with the High Desert Middle School, 271i Street and
surrounding rural residential properties. Each of these factors is discussed separately in the
findings below.
a. Noise. Appellants and opponents argue they are disturbed by the sound of back-up beepers on
the large vehicles and equipment operating at the Knott Landfill. As discussed in the findings
above, operations at the landfill are not before the Hearings Officer in this appeal. The question
is whether equipment and vehicles operating on the proposed solid waste disposal site will be of
such volume or character as to prevent the site from operating harmoniously with existing
development in the surrounding area. The applicant's burden of proof indicates private vehicles
and garbage trucks will bring all solid waste to the proposed disposal site for sorting and
handling. However, solid waste to be disposed of in the landfill will be dropped oily compacted
and picked up in an enclosed building located in the center of the project area, reducing vehicle
and equipment noise.
The record indicates the proposed composting area will continue to use a large grinder outside on
an intermittent basis. The conceptual site plan shows the grinder will be located adjacent to the
landfill and roughly mid -point between 271i Street and the eastern boundary of the project area. I
find this location will place the grinder over a half -mile from the nearest dwelling — much further
away than the grinder's current location at the landfill -- and slightly closer to High Desert
Middle School and 27th Street than the current grinder location. I find the combination of the
enclosed drop-off building, the location of the drop-off building and the composting grinder near
the center of the project area, and the significant distance between the noise -generating
equipment and vehicles and nearest dwellings, will assure noise impacts from the proposed solid
waste disposal site are harmonious with existing development.
b. Odors Appellants and opponents object to the odors coming from the Knott Landfill. The
Hearings Officer is aware that the garbage deposited and buried in the landfill can produce
offensive odors that can carry off the landfill site. However, the issue before me is the impact of
-odors generated on the proposed solid waste disposal site and not on the landfill. As discussed
above, solid waste will be brought to the disposal site for sorting. Solid waste to be disposed of
in the landfill will be deposited in the covered drop-off building where it will be compacted and
removed by large trucks that will take it to the landfill. I find the handling of garbage inside the
building will minimize or eliminate odor from this material traveling off the site.
The record indicates that other than compost material, all of the remaining solid waste to be
handled on the proposed site will be non-putrescible and therefore not likely to generate odors.
The applicant described the odor produced by the composting material as "earthy" and not
offensive. Appellants expressed a contrary opinion. Although the composting operation would
take place outside, the conceptual site plan shows it will be located adjacent to the landfill and
more than a half -mile from the nearest dwelling. In addition, Timm Schimke testified the
composting material stored in windrows will be turned periodically, allowing any odors to
dissipate.
Knott Landfill
CU-02-102/SP-02-51
32
Exhibit
Page 4p of (p
The Hearings Officer finds the combination of the enclosed drop-off building, the location of the
drop-off building and the composting windrows near the center of the project area, and the
significant distance between the odor -generating areas components of the disposal site and the
nearest dwellings, will assure any odors will be harmonious with existing development.
c. Litter. Appellants and opponents object to the blowing of litter from the landfill. The record
includes photographs of litter in off-site locations. However, as discussed in the findings above,
the Hearings Officer has found the handling of garbage within the enclosed drop-off building
will eliminate or significantly reduce the opportunities for litter to blow off the disposal site and
onto surrounding land. Therefore, I find the proposed disposal site will not generate litter that
will render the site inharmonious with existing development.
d Birds. Appellants and opponents object to the large number of birds that are attracted to the
landfill's open cells and to their noise and droppings. As discussed in the findings above, the
Hearings Officer has found the handling of garbage within an enclosed drop-off site will
eliminate the presence of putrescible solid waste in open areas where it can attract birds and
vermin. Therefore, I find the proposed disposal site will not attract birds to the point where they
will become a nuisance that is incompatible with existing development.
e. Land ill Gas The record indicates, and the Hearings Officer's site visit confirmed, that the
applicant currently manages landfill gas by flaring it at a location near the center of Knott
Landfill. The applicant has proposed to include a landfill gas management area near the
southeast corner of the project area, and has proposed to handle the gas either by flaring, direct
use of the gas as fuel, or using the gas to generate electricity. However, the applicant's proposal
does not specify any particular gas management method. And I find this component of the
proposed disposal site will require a separate site plan application with those details before it can
be reviewed, approved and established. In any event, I find that landfill gas will not create unsafe
air pollution as long as it is managed — i.e., not allowed simply to escape into the air — and the
management method is approved by the county and DEQ. Therefore, I find the proposed disposal
site will not create impacts from landfill gas that will be inharmonious with existing development
on surrounding land.
f. Groundwater Contamination. Appellants and opponents argue the Knott Landfill is creating
groundwater pollution through leaching of chemicals and metals — particularly chromium -- from
the Knott Landfill cells. They assert this application should be denied unless and until the county
definitively determines the source of the chromium and eliminates it from the landfill's
groundwater monitoring wells. The Hearings Officer finds issues of chromium in Knott Landfill
are relevant to this appeal only insofar as they relate to the proposed solid waste disposal site.
Appellants and opponents object to the applicant's proposal to include two leachate ponds on the
disposal site, arguing they also could produce chromium contamination of groundwater. As
discussed in the findings above, appellants and opponents submitted into the record numerous
documents addressing groundwater contamination from landfills in general, and from leaching of
chromium in particular. The applicant responded by submitting an engineer's report concluding
that the chromium that has been detected in the Knott Landfill groundwater monitoring wells is
coming from the stainless steel pumps in those wells and not from the solid waste or leachate.
There is no evidence in the record that chromium has been detected in any wells outside the
Knott Landfill
CU-02-102/SP-02-51
33
Exhibit
Page k-�_L of (0c)
landfill.
The Hearings Officer understands and shares appellants' and opponents' concern about
chromium in the Knott Landfill groundwater monitoring wells. However, in the absence of
competent scientific or engineering evidence contradicting the applicant's evidence that the
chromium is coming from the pumps and not from the leachate, I cannot find that the applicant's
proposed leachate ponds on the disposal site will create groundwater contamination presenting a
hazard to human health.
g. Tra c. The applicant submitted a 2001 traffic impact analysis (hereafter "traffic study") in
support of its application. The study analyzed the impact on affected transportation facilities -
particularly 27 Street and the access to the project area - from traffic anticipated to be
generated by activities on both the Knott Landfill and the disposal site proposed for the project
area. The 2003 decision includes the following language addressing the traffic study:
"The study identified that the project will add approximately 27 to 30 trips to the street
system during an average PMpeak hour over the next 20 years The landfill will generate
one additional truck in 2006 during the PM peak hour, and in 2020 will generate 5
additional trucks with landfill expansion, and 10 additional trucks as a transfer station.
In addition, the SE 27m Street site access will continue to meet the operating standard in
the 20 year forecast. Landfill generated traffic at this location comprises 20% of the total
traffic during the peak generation hour (11:45 am to 12:45 pm), and 8% of the total
traffic during the PMpeak hour. A review of the accident data near the SE 27 h Street site
access from 1997 to 2000 indicates there are no safety issues with entering and exiting
trafc from Knott Landfill. The study concludes that no improvements will be needed to
address the impacts from the proposed project. "The proposed project will have a
minimal effect on the roadway operating conditions in the 20 year forecast ... "
Based on the above analysis, Hearings Officer finds that t zffic generated by the
proposed use will be minimal. In addition with the implementation of recommended road
improvements by the County Road Department to 27r Street, the Hearings Officer finds
that access to the proposed development is suitable. "
Appellants' and opponents argue the 2001 traffic study is not persuasive because it is too old and
because it predicted and analyzed traffic generated by a proposed solid waste disposal site on a
13 -acre site rather than on the approximately 70 -acre project area. The applicant responds that
the size of the site is not relevant since it is not the land but the activity on the land that generates
traffic, and the activities addressed in the traffic study are those proposed for the disposal site at
issue in this appeal. The Hearings Officer concurs with the applicant. I find there is nothing in
the 2001 traffic study or elsewhere in the record that suggests either the study's analysis or its
conclusions are inaccurate or unreliable. Therefore, I find the proposed disposal site will not
-generate traffic that -will -exceed -the capacity of 27th Street or the access to the -site or that will be
inharmonious with existing development on surrounding land.
3. Minimize Visual Impacts. As discussed in the findings below, the conceptual site plan shows
the applicant proposes to screen the perimeter of the project area with vegetation including
Knott Landfill
CU-02-102/SP-02-51
34
Exhibit
Page la- of�
existing juniper trees and introduced evergreen and deciduous trees. The tree screens will be
concentrated on the western and eastern boundaries of the project area to screen the disposal site
from areas where non -landfill development is concentrated – i.e., to the west where the CEC,
Public Works Department and High Desert Middle School buildings and 271i Street are located,
and to the east where a number of EFU-zoned parcels, some developed with dwellings, are
located. In addition, as discussed above the applicant proposes to maintain much of the existing
vegetation on the project area to screen individual disposal site components, as well as all of the
existing tree cover on the eastern and northern portions of Tax Lot 100 (east and north of the
project area) to provide additional vegetative screening from uses to the east and north. Finally,
the applicant does not propose to construct any buildings taller than 30 feet. For these reason, the
Hearings Officer finds the applicant's proposed disposal site will minimize visual impacts.
4. Preserve Natural Features Including Views and Topographical Features. As discussed in the
findings above, incorporated by reference herein, the Hearings Officer has found the applicant's
proposal will preserve natural features on the site including vegetation and topography, and will
preserve views by limiting the height of buildings to 30 feet as required in the EFU Zone.
For the foregoing reasons, the Hearings Officer finds the applicant has met its burden of proving
the proposed solid waste disposal site satisfies this site plan approval criterion. Therefore
appellants' eighth assignment of error is denied.
APPELLANTS' ASSIGNMENT OF ERROR 10
No attempt has been made to adequately screen the proposed facilities so that they are
not Asable [sic] from neighboring properties. DCC I& 124.060(G).
FINDINGS: Section 18.124.060(G) provides:
Areas, structures and facilities for storage, machinery and equipment, services
(mail, refuse, utility wires, and the like), loading and parking and similar accessory
uses and structures shall be designed, located and buffered or screened to minimize
adverse impacts on the site and neighboring properties.
Appellants' claim that the applicant has made "no attempt" to provide the screening required by
this site plan criterion is without merit. The submitted conceptual site plan, included in the record
as Hearing Exhibit 5, shows abundant native and introduced vegetative screening throughout the
project area and around most of its perimeter.
As discussed above, the project area is surrounded by the SM -zoned Knott Landfill operation on
the south, large undeveloped portions of Tax Lot 100 to the east and north, and CEC's
headquarters and the county's Public Works Department facility to the west. Across 274 Street to
the northwest is the High Desert Middle School. The aerial photos in the record. show, and my
site visit confirmed, that the eastern part of the EFU-zoned portion of Tax Lot 100, as well as the
surrounding property to the east and southeast where the nearest dwellings are located, has a
moderate cover of mature juniper trees that provide natural screening. That vegetative cover
extends onto the eastern half of the project area. The submitted conceptual site plan shows much
Knott Landfill
CU-02-102/SP-02-51
35
Exhibit
Page "_ Of -I(42-0
of the native vegetative cover on the project area will be retained. The retained trees will screen
individual components in the interior of the proposed disposal site, such as the covered drop-off
site, the maintenance building, and the parking area for the administration building.
In addition to retaining native vegetation, the conceptual site plan shows a row of evergreen and
deciduous trees to be planted along the entire western boundary of the project area to screen it
from CEC's property and High Desert Middle School. Similar plantings are proposed for the
entire eastern boundary of the project area to provide screening not only from the eastern portion
of Tax Lot 100 but also from the EFU-zoned tax lots that are a quarter -mile or more to the east
and southeast. The conceptual site plan shows existing trees along the northern boundary of the
project area will be retained for screening, as will a few trees located near the southern boundary
of the project area. No introduced screening is proposed for the southern project boundary, and
none is required since the Knott Landfill is part of Tax Lot 100 and is not, therefore, a
"neighboring property."
For the foregoing reasons, the Hearings Officer finds the applicant's conceptual site plan
demonstrates compliance with this criterion. Therefore, appellants' tenth assignment of error
is denied.
APPELLANTS' ASSIGNMENT OF ERROR 9
The applicant has not demonstrated that the proposal is designed to `provide
appropriate opportunities for privacy and transition from public to private spaces "
DCC 18.124.06010.
FINDINGS: The 2003 decision includes the following language addressing this site plan
approval criterion:
"The proposed development will be enclosed by a 6 -foot chain link fence to provide
security to the site and safety to the surrounding community. One entrance will be used
for public access and will be controlled by a rolling gate. Further design elements of the
proposal account for public safety, including public drop-off areas, traffic circulation
and design, location of administrative office/maintenance building away from intense
landfill activities, and the use of landscaping to screen and separate various on-site
uses "
The Hearings Officer concurs with Hearings Officer Lewis' findings. In addition, as discussed in
the findings above, the conceptual site plan shows abundant natural and introduced vegetative
screening on much of the project area that will provide both screening and physical separation
between various elements of the disposal site. Therefore, appellants' ninth assignment of
error is denied.
APPELLANTS' ASSIGMENT OF ERROR 12
In the site plan review submitted by the applicant in 2004, the applicant seeks a
variance to the building height standard However, the applicant will not be able to
Knott Landfill
CU-02-102/SP-02-51
36
Exhibit
Page °—
meet the variance criteria set forth at DCC 1& 132, which it needs if it wishes to build
36 -foot tall buildings. The need for a variance does not stem from a difficuhy unique to
the applicant's site, and whatever hardship may exist is self-created See DCC
1&132.020(A) (1) and (2).
FINDINGS: Section 18.16.060(E) establishes the maximum building height in the EFU Zone as
30 feet. The applicant did not submit an application for a variance to this requirement with its
site plan and conditional use applications, and argues approval to construct a 36 -foot -tall
building on the project area would instead require and qualify for an "exception" under Section
18.120.030. The Hearings Officer finds that in the absence of an application for either a variance
or an exception the question of whether the applicant can satisfy the applicable approval criteria
is premature and not before me. Appellants' assignment of error 12 is denied.
APPELLANTS' ASSIGNMENT OF ERROR 13
DCC 1&12&0]S(2) requires the applicant to demonstrate that the transportation
system is adequate to support the proposed use. The applicant submitted a traffic study
dated March 2001, but that study does [sic] only considers a 13 -acre expansion * *
The conditional use permit seeks an expansion of 69 acres. * * * [TJhe traffic study
does not constitute substantial evidence supporting the Hearings Officer's decision*
**
FINDINGS: Section 18.128.015(A)(2) requires the applicant to demonstrate the project area is
suitable for the proposed use based on "[a]dequacy of transportation access to the site."
(Emphasis added.) It does not, as appellants assert and the applicant and other parties apparently
assumed, require the applicant to show that the "transportation system is adequate to support the
proposed use." (Emphasis added. )13
As discussed in the findings above concerning what constitutes the project area's "access road,"
the term "access" is defined in Section 18.04.030 as "the right to cross between public and
private property allowing pedestrians and vehicles to enter and leave property." Applying this
definition in light of the discussion above concerning the "access road," the Hearings Officer
finds the. term "transportation access" means the physical and legal means by which vehicles
would come and go from the project area. As discussed in the findings above, I have found the
"access road" to the project area consists of 27* Street and the dedicated road segment across
CEC's property (Tax Lot 102) from 27a' Street to the western boundary of Tax Lot 100 and the
project area. I have further found these two public roads have paved surfaces maintained by the
county. In addition, I have found the applicant has completed the improvements to 27a' Street
(widening and deceleration lanes) required by the 2003 decision to assure safe and adequate
vehicular access to the project area. For these reasons, I find the applicant's proposal satisfies the
conditional use criterion in Section 18.128.015(2). Appellants' thirteenth assignment of error
is denied. - -
13 The 2002 Staff Report, the 2003 decision and appellants addressed the applicant's traffic impact
analysis in the context of the conditional use criterion in Section 18.128.015(A)(2). The Rearings Officer
finds its relevance is limited to the conditional use criterion in Section 18.128.015(B), discussed in the
findings above.
Knott Landfill
CU-02-102/SP-02-51
37
Exhibit
Pagelofb
APPELLANTS' ASSIGNMENT OF ERROR 14
The Hearings Off cer's findings state that the subject property is a "lot of records" but
offers no evidence that its conclusion is correct The justifications the applicant sets
forth to confirm the legal status of the lot are irrelevant to the legal question, which is
whether the lot was lawfully created considering the law in effect at that time.
FINDINGS: As discussed in the findings above, the 2003 decision found that the subject
property is a legal lot of record on the basis of the county's previous issuance of numerous
development permits. Section 18.04.030 defines "lot of record" as a lot or parcel at least 5,000
square feet in size and at least 50 feet wide that falls within one or more of five categories of
lawfully created lots. None of these categories includes lots for which development permits have
been issued. Nevertheless, the Hearings Officer is aware that the county long has had a policy of
recognizing as legal lots those for which the county has issued development permits on the
theory that the county would be estopped from asserting otherwise.
In any event, the applicant submitted into the record as Hearing Exhibit 6 a diagram and
supporting documents from the Assessor's Office indicating Tax Lot 100 has become a
"remainder" lot as a result of the subdividing or partitioning of surrounding lots, thus qualifying
as a lot of record under the fifth category listed in the definition in Section 18.04.030. Therefore,
the Hearings Officer finds the 2003 decision did not err in finding that Tax Lot 100 is a legal lot
of record. Appellants' fourteenth assignment of error is denied.
IV. DECISIO :
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
REVERSES THE 2003 DECISION ON APPEAL DUE TO THE APPLICANT'S
FAILURE TO OBTAIN A DEQ PERMIT FOR THE PROPOSED SOLID WASTE
DISPOSAL SITE.
However, if upon its review of this decision the Board of County Commissioners determines the
DEQ permit need not be obtained by the applicant prior to issuance of a conditional use permit,
the Hearings Officer hereby RECOMMENDS THAT THE BOARD AFFIRM THE 2003
DECISION AS MODIFIED BY THIS DECISION AND WITHOUT CONDITIONS OF
APPROVAL 1 AND 5.
Dated this day of October, 2004.
Mailed this I day of October, 2004.
YW, I
Kdren H. Gre n, Hearings Officer
Knott Landfill
CU-02-102/SP-02-51
38
Exhibit g f -_
Page 4r
EBERHARD-WHEELER LETTER
Exhibit
Page 4-3 of
utu—ua—euu4 wcu uos 1C rn uuum i UUUIIDCL rnn 17V, 041 vl l 4140 r. u1
1I-27-04
Post -it° Fax Note
7671 De'' rU
pagas-
, C
u From
CoMepf.
Co,
Phone 0
Phone
Fex N
Fax 8
Deschutes County Board of Commissioners Dennis Luke, Tom DeWolf and Mike Daly;
These comments are in regard to the December 14 "on -the -record" hearing of the
Deschutes County Board of Commissioners regarding A-04-8 (CU -02-102 and
SP -02-51).
I am concerned as at mother and a citizen about the Conditional Use Permit regarding; the
Knott Landfill. My son goes to school at High Desert Middle School and will continue to
go there for 1 3/4 years. I have seen Oregon DEQ documents which estimate the
amounts and types of gases that are emitted from the Knott Landfill on an annual basis
and they concern me greatly. (Large amounts of mercury, toluene and vinyl chloride, to
name a few.) Even after my son moves on to Bend Nigh School, I will remain concerned
for the thousands of other children who will attend school across the street from this
expanding urban landfill.
With the hundreds of kids and many staff members at High Desert Middle School in
mind, 1 ask that you please consider the risks vs The benefits of expanding the landfill in a
location that is so close to so many people. We are told that it is the cheapest option, but
have you considered the cost and risk to human life and health?
ft was the county/city land use department(s) who allowed the building of that school in
such close proximity to the landfill and there is no way to simply pick up the school and
move it to a new location. In speaking to Judy Steigler who was on the Bend-Lapine
School Board at the time of their vote to place the middle school at that location (in the
early 1990'x), she told me that the school board members were told at the time that the
Knott Landfill would be open for about ten more years. This greatly influenced their
voting on the placement of the school. The landfill would be closing soon, or so they
thought,
While the school can't be moved, the landfill can and in fact (as you know), the landfill
was supposed to be closed or closing in the near future, not expanding in its current
location for the next twenty-five years. This is a human rights issue, The right to breathe
clean air. The right to go to school in a safe environment. What rights could be more
basic for our children than these?
Look at the haze that often accumulates over the Knott Landfill in the morning, then
think for a moment how you would feel i f your children or grandchildren were exercising
across the street from this toxic cloud on the High-Desert_track.--W-hat would they be
breathing? T have the DEQ documents which qualify and quantify what is emitted from
the Knott Landfill, and it isn't a desirable situation at all for these young bodies who are
more susceptible than adults to diseases due to environmental factors.
Exhibit
Page Wo_
DEC -08-2004 WED 06:13 !'r1 WWII UUUNSihL PHA NU. 541 01 1 4 ( 4n r. u i i u i
If the landfill continues to expand, it will continue to emit larger amounts of toxic gases.
This is simply a tact. By choosing to expand the landfill at this location, the lives of the
thouwnds and thmixandc of students who will pass through High Desert Middle School
are in your hands. Their health and their futures are resting on those in power to make
decisions that are truly in their best interest. This is not about how big our garbage bills
are each month, Instead, it is about the health and protection of thousands of children in
Deschutes County. f sincerely hope that in the very near future, you will do what is best
for all of these kids and move to close the Knott landfill. You could begin by -rejecting
the current Conditional Use Permit which facilitates the expansion of the landfill and
begin to look at the many alternatives to placing all of Deschutes County's garbage in the
Knott Landfill.
Thank you very much.
Sincerely,
Julie Eberhard -Wheeler
21085 Dooley Mtn. Ct.
Bend, OR 97702
617-9492
Exhibit e)
Page \_�q_ of -JPS
MARCOTTE LETTER
Exhibit �j
Page _;5(-)- of IoQ_
ft.- . _.. ..
qE,CEIVED
By: —
Karen & Robert Marcotte
21333 Rickard Road DEC 0 6" [uua
Bend, OR 97702 DE IVERED BY. -
541382 -3777
Y:541382-3777
December 6, 2004
Community Development Department
117 NW Lafayette Avenue
Bend, OR 97701
RE: A-04-8 (CU -02-102 and SP -02-51)
Attention: Catharine White, Assoc Planner
Dear Ms White; '/
We are writing with regards to the above application. Being the closest neighbor to the
Knott Landfill we wish to point out to you the facts.
Moving specific buildings located currently on the site will not alleviate the "real
problem". By relocating the buildings north of the current location only allows more
space to become "Cells" for garbage, it doesn't do anything to combat the true nuisance
of smell, flying garbage, and enormous numbers of problem birds in the area.
We cannot enjoy our back porch without the awful smell, continual blowing garbage and
hundreds of Starling birds defecating all over our property. Because of this we have tried
to sell or property. But because of the impact of this landfill we have no buyers. We
have had a lot of interested parties who once they see the impact of the landfill and the
smell say "No Thanks". We feel we will never be able to sell this property and move to
an area where we are not impacted daily by the nuisance.
We have a professional show dog kennel on our property and my wife has to disinfect
daily because of the bird feces in the water and on the kennel surface. Bird deterrent
devices do not work; therefore our dogs are at jeopardy of being infected largely by
Salmonella and possibly Coccidiosis, Campylobacteriosis, Histoplasmosis,
Blastomycosis, Giardia, and possible West Nile virus. These are just a few examples and
are unacceptable!
Exhibit
Page ,) of d
We feel that if the Landfill exists it needs to combat the problems it makes and be
accountable for them not disregard them and be allowed to expand and make the situation
bigger.
We suggest the County buy us out, taking into consideration the years of impact to us we
are aware they have purchased other properties around the impact area of the landfill.
We oppose any expansion of the landfill in any way and urge that it be closed as it was
scheduled and not extended. We also feel the Hearings Officers decision was based solely
on County profit and not concern for neighboring residences.
We would also like to comment that we were not notified in 2003 public notice letter
along with many of the neighbors because of a computer glitch. We are appalled that he
only response on this issue is "oops sorry". This is our home, we need to protect it and
allowing the County to just disregard their errors is intolerable, they need to be
accountable.
Respectfully submitted;
Karen S Marcotte
Robert A Marcotte
Exhibit—As-
Page
xhibitgjPage �� of (.0 0
CONTENTS OF KNOTT LANDFILL RECORD
Exhibit
Page `3 of _I
CONTENTS OF KNOTT LANDFILL RECORD
DESCHUTES COUNTY FILE NOS. A-04-8 (CU-02-102/SP-02-51)
DATE DESCRIPTION
11/08/04 Returned envelope from Candice Counts
11/02/04 Returned envelope from S. Maner
11/02/04 Returned envelope from D.R. Chavez
11/02/04 Returned envelope from David Nichols
11/01/04 Returned envelope from Betty
10/28/04 Returned envelope from D.R. Chavez
10/28/04 Returned envelope from David Nichols
10/28/04 Returned envelope from George Ormsbee
10/26/04 Returned envelope from Candice Counts
10/26/04 Certificate of mailing
Notice of public hearing
BOCC Order No. 2004-087, dated October 25, 2004
10/22/04
Returned envelope from WR Woodman
10/20/04
Returned envelope from Betty
10/20/04
Returned envelope from S. Maner
10/19/04
Returned envelope from Richard Terry
10/18/04
Returned envelope from George Ormsbee
Office Address List
10/14/04
Certificate of mailing
Decision of Deschutes County Hearings Officer, dated 10/14/04
08/30/04
Applicant's final arguments
08/02/04
Letter to Board from Douglas M. Nelson, Bend -La Pine Public Schools,
regarding impacts of proposed use to surrounding properties.
07/28/04
Applicant's final rebuttal evidence and initial arguments
07/21/04
Letter to Karen Green from Jo -Ann B. Ray regarding response to
rebuttal arguments of Deschutes County.
07/20/04
Letter to Karen Green from John and Gail Kretchmer regarding
disagree nwith the proposed use.
07/21/04
Letter to Karen Green from Joan Hale commenting on file CU-02-
102/SP-02-51
07/21/04
Letter to Karen Green from Lisa commenting on file CU-02-102/SP-02-
51
07/21/04
Letter to Karen Green from Lynne Hakkila regarding Knott Landfill
expansion
07/21/04
Letter to Karen Green from Jerry Rudloff commenting on file CU-02-
102/SP-02-51
07/21/04
Letter to Karen Green from Debra Rudloff opposing expansion of Knott
Landfill
07/21/04
Letter to Karen Green from Gretchen Grivel responding to testimonies
submitted by the County and its agents
Oregon DEQ Eastern Region Solid Waste Inspection Form dated
12/12/01
Oregon DEQ Eastern Region Solid Waste Inspection Form dated
03/20/02
Contents of Record —11/19/04.
Deschutes County File: A-04-8 (CU-02-102/SP-02-51)
Page I of 7
Exhibit-5—
Page
xhibit5jPage �5L� of (OC-)
Contents of Record —11/19/04
Deschutes County File: A-04-8 (CU-02-102/SP-02-51)
Page 2 of 7
Exhibit
Page ,f;� of (0c.)
Email from Julie Wheeler, Air quality from DEQ website, dated April 2,
2004
DEQ Source Inspection Form dated 3/20/97
EPA Consumer Factsheet on: Chromium
Study by Rachel's Environmental & Health Weekly regarding women
livin near solid waste landfills
Letter to Timm Schimke, Dept. of Solid Waste, dated March 5, 2004,
from DEQ regarding Notice of Noncompliance
Letter to Timm Schimke, Dept. of Solid Waste, dated March 22, 2002,
from DEQ regarding Notice of Noncompliance
Letter to Timm Schimke, Dept. of Solid Waste, dated March 21, 2002,
from DEQ regarding Notice of Noncompliance
Letter to Timm Schimke, Dept. of Solid Waste, dated December 21,
2001, from DEQ regarding Notice of Noncompliance
Letter to Timm Schimke, Dept. of Solid Waste, dated March September
17, 2001, from DEQ regarding Notice of Noncompliance
Oregon DEQ Eastern Region Solid Waste Inspection Form dated
08/31/98
Rachel's Environmental & Health Weekly report dated August 15,
1988, regarding leachate from municipal dumps
Rachel's Environmental & Health Weekly report dated March 7, 1989,
regarding leachate from municipal dumps
Article regarding Leachate Recirculation by Fellin, Cuccinello, and
Becky Cheadle
Article regarding Leachate from North Carolina Department of
Environment and Natural Resources
Article regarding Gasses Associated with Landfills
Article regarding The Challenge of Controlling Emissions from Landfills
b Howard Robinson
07/21/04
Letter from Andrew Stamp regarding Supplemental Hearings
Memorandum.
Exhibit 1: URS map highlighting access road
Exhibit 2: URS map highlighting 27 street
07/20/04
Memo to Karen Green from Timm Schimke adding comments to
submitted materials.
Letter to Timm Schimke from Donald Kliewer regarding 27 Street as
primary access.
Deed of Dedication dated July 9, 2003 dedicating land to the public for
roadway and utility purposes.
Deed of Dedication dated October 13, 2003, by Central Electric
Cooperative dedicating land to the public for roadway and utility
ur oses .
07/19/04- _-Letter
to Karen Green from Julie Eberhard -Wheeler responding to_
comments of Deschutes County at June 16, 2004 hearing.
Article on Primer on Landfill Gas as "Green" Energy
06/25/04
LUBA case 2004-061 Respondents notice of withdrawal of decision for
reconsideration
06/15/04
LUBA case 2004-061, Respondent's decision on reconsideration.
06/09/04
LUBA case 2004-061 Motion to Stay Proceedings for decision on
Contents of Record —11/19/04
Deschutes County File: A-04-8 (CU-02-102/SP-02-51)
Page 2 of 7
Exhibit
Page ,f;� of (0c.)
reconsideration
Petition to cease landfill operations by 2009.
07/07/04 Memo to Karen Green from Laurie Craghead, County Legal Counsel,
responding to 90 requirement in Deschutes County Code,
22.34.030(C)
07/07/04 Letter from Gretchen Grivel submitting evidence.
Photographs of blowing debris from Knott Landfill
Agenda for Joint Redmond City Council/Deschutes County Board of
Commissioners
Letter to Joanne Sutherland, City of Redmond, Mark Pilliod, County
Legal Counsel, dated June 18, 2004 regarding Solid Waste
Franchise—Flow Control
City of Redmond Ordinance, 2004-15 repealing Ord. 199-05 relating to
solid waste franchise
07/07/04 Letter to Cathy White from Doug Foster commenting on application
BOCC Minutes of May 5, 2004
Residential MLSCO-Client Detail Report
Warranty Deed conveying ro ertto Deschutes County, 2003-59743
Environmental Assessment on State Lands application to acquire BLM
land
Article from BioCycle dated January 2002 regarding Oregon
Composting Project Serves Multiple Purposes.
Petition to cease landfill operations by 2009.
07/07/04 Email from Jerry & Debbie Rudloff regarding Knott Landfill expansion
07/06/04 Letter to Karen Green from David A. Poboisk commenting on
application
07/06/04 Letter from Andrew Stamp, Hearings Officer's Memorandum
Exhibit 1: Article, Addressing Justifiable NIMBY: A Prescription for
MSW Management
Exhibit 2: Article, Impact of Municipal and Industrial Non -Hazardous
Waste Landfills on Public Health and the Environment: An Overview
Exhibit 3: Letter to Gretchen Grivel from Donald L. Bramhall, DEQ
dated June 7, 2004, regarding permits for the North Expansion Area of
the landfill
Exhibit 4: Article, Solid Waste Management: USA Lined Landfilling
Reliability
Exhibit 5: Article, Rachel's Hazardous Waste News, dated August 15,
1998, regarding leachate from municipal dumps
Exhibit 6: Article, Rachel's Hazardous Waste News, dated December
16, 1992, New Evidence that all Landfills Leak
Exhibit 7: Article, Rachel's Hazardous Waste News, dated August 10,
1987, EPA says all landfill leak
Exhibit 8: Article, Rachel's Hazardous Waste News, dated April 4,
1988, Decade -old study revealed the polluting effects of landfills.
Exhibit 9: Article, Rachel's Hazardous Waste News, dated February
14, 1989, Analyzing why all landfills leak.
Exhibit 10: Article, Rachel's Hazardous Waste News, dated, February
21, 1989, The Best Landfill Liner: HDPE
Exhibit 11: Article, Rachel's Hazardous Waste News, dated March 27,
Contents of Record –11 /19/04
Deschutes County File: A-04-8 (CU-02-102/SP-02-51)
Page 3 of 7
Exhibit 8
Page �f;Q of (D
Contents of Record –11/19/04
Deschutes County File: A-04-8 (CU-02-102/SP-02-51)
Page 4 of 7
Exhibit—ED--
Page
xhibitEDPage j5a of U2 C5
1991, Toxic gases emitted from landfills.
Exhibit 12: Land use application for site plan review by Deschutes
County Solid Waste Department
Exhibit 13: Article, Summary of Experience & Activities by Lee &
Jones -Lee
Exhibit 14: Article, Summary of Environmental Quality Litigation
expertise and experience by Lee and Jones -Lee
07/04/04
Letter to Karen Green from Julie Eberhard -Wheeler commenting on
CU -02-102 and SP -02-51.
07/01/04
Email from Dennis Luke forwarding for the record a 06/30/04 email
received from Julie Eberhard -Wheeler regarding a DEQ hearing on the
tire storage permit.
06/30/04
Transcripts of June 16, 2004 public hearing before the Hearings Officer
regarding CU -02-102 and SP -02-51
06/28/04
Large-sized map showing Tax Lot and Zoning map (Revised)
(Submitted
after public
Deschutes County Solid Waste Management Planning Timeline,
September 29, 2000
-hearing)
06/26/04
Letter from Bruce Hinchliffe submitting testimony on CU and SP
applications
06/25/04
Email from Dennis Luke forwarding for the record a 06/24/04 email
received from Brian & Linda Buckingham expressing support for landfill
expansion plans
06/18/04
Letter from Richard and Kathy Cloud comments following the hearing
undated
Letter from Robert and Karen Marcotte commenting on applications
(undated,
Written testimony from Timm Schimke regarding landfill.
submitted at
06/16/04
hearing)
06/16/04
Memorandum to Hearings Officer from Karen Swirsky regarding de
novo hearing on application
06/16/04
Letter from Jonathan R. Duerst to Commissioners opposing landfill
applications.
06/16/04
Written testimony from Julie Eberhard -Wheeler addressed to Planning
Department opposing landfill
Rachel's Hazardous Waste News #226, dated March 27, 1991, Toxic
Gases Emitted form Landfills
Table, Knott Landfill Projected Uncontrolled VOC Emissions for 2007
Rachel's Hazardous Waste News #316, dated 12/16/92, New Evidence
that all Landfills leak
Rachel's Hazardous Waste News #117, dated 02/21/89, The Best
-_La
ndfillLiner: _HDPE---- - - --- -- - - - - ---
Article by Peter Montague, New York State Dept. of Health re: increase
bladder cancer and leukemia for women living near landfills where gas
escapes
Article re: Fossella Gets Federal Agency to review methane gas
poisoning at fresh kills landfill last week.
Article: Evaluation of Groundwater Contamination at Roeder Avenue
Contents of Record –11/19/04
Deschutes County File: A-04-8 (CU-02-102/SP-02-51)
Page 4 of 7
Exhibit—ED--
Page
xhibitEDPage j5a of U2 C5
Contents of Record —11/19/04
Deschutes County File: A-04-8 (CU-02-102/SP-02-51)
Page 5 of 7
Exhibit
Page ED, , ofQ0 O
Landfill, Bellingham
Article: Suffolk City Landfill
Petition to cease landfill operations by 2009
06/16/04
Written testimony by JoAnn B. Ra
Report: Special Report to the Community on the Pottstown Landfill
Report: South Coast Air Quality Management District, The Health
Effects of Air Pollution on Children, 2000
Article: Type of Landfill Fires
Article: Vancouver Landfill: Demolition Fire
Article: Confessions of a Landfill Apologist
Report: EPA: Presumptive Remedies: CERCLA Landfill Caps RI/FS
Data Collection Guide.
Article: Impact of Municipal & Industrial Non -hazardous Waste Landfills
on Public Health and the Environment: An Overview
06/16/04
Written testimony from Peter Purcell
Article: Why the landfill should not be expanded
Color Knott Landfill ma
Agenda of the County Hearings Officer for June 16, 2004
Undated
(submitted
at 06/16/04
hearing)
Written Testimony from Sheila Wills
06/16/04
Exhibits submitted at 06/16/04 public hearing
Exhibit 1: Knott Landfill Colored map- Zoning Districts
Exhibit 2: Knott Landfill Conceptual Site Layout
Exhibit 3: Knott Landfill Development Analysis Report 2001
Exhibit 4: June 2, 2004 Letter from Bramhall to Schimke
Exhibit 5: Conceptual Site Plan colored drawing)
Exhibit 6: Lot of Record evidence packet
Exhibit 7:Aerial Photo with superimposed site ma
Exhibit 8: Tax lot and zoning ma
06/16/04
Sign -in Sheet to testify
06/16/04
Agenda of County Hearings Officers for June 16, 2004 public hearing
06/15/04
Color Knott Landfill ma
06/15/04
Letter to LUBA from Laurie Craghead regarding LUBA file 2004-061
Respondent's Decision on Reconsideration
06/14/04
County Road Department's Comments on application
06/11/04
Memo to Laurie Craghead from Timm Schimke regarding BOCC
meeting information
PowerPoint presentations
06/11/04
Memo to Laurie Craghead from Timm Schimke re: BOCC meeting
information
PowerPoint presentations
06/10/04
Certificate of Mailing of Staff Report to Andrew Stam
06/09/02
Memorandum to Hearings Officer from Catharine White re: conditional
use and site plan review to relocate facilities to the north development
area.
BOCC Order No. 2004-042
Hearings officer's decision
Contents of Record —11/19/04
Deschutes County File: A-04-8 (CU-02-102/SP-02-51)
Page 5 of 7
Exhibit
Page ED, , ofQ0 O
Staff Report
Location maps of the site
06/09/04 Certificate of Mailing of Staff Report to all parties
06/01/04 Request for Refund issued to Thomas Hernber er
06/03/04 Bend Fire Dept.'s comments
06/02/04
DEQ comments
05/26/04
County Building Safety Division's comments
05/26/04
Deschutes County Assessor's comments
05/25/04
Deschutes County Property Address Coordinator's comments
05/24/04
Avion Water Company's comments
05/24/04
Watermaster— District 11 comments
05/24/04
County Road Department's comments
05/24/04
DEQ: Notice of Public Hearing for Proposed Permit Addendum for
Knott Landfill
05/24/04
The Bulletin, affidavit of Publication
05/23/04
Deschutes County Environmental Health's comments
05/20/04
Notice of Public Hearing document
A enc transmittal
Site location ma
Application
05/20/04
Land Use Action Sign Affidavit
05/19/04
Notice of public hearing — Bulletin
Certificate of Mailing
05/14/04
Forwarded emails from Commissioners re: landfill
05/12/04
Minutes of BOCC meeting, 05/12/04
05/12/04
BOCC Order No. 2004-042 accepting review of Hearings Officer's
decision
Certificate of Mailing
05/12/04
BOCC Order No: 2004-042 accepting review of Hearings Officer's
decision
05/12/04
BOCC Meeting Agenda for 05/12/04
05/06/04
BOCC Agenda Request to considering hearing appeal of Hearings
Officer's decision
05/06/04
Memorandum to BOCC from Catharine White re: an appeal of the
Hearings Officers Decision
Color Knott Landfill Ma
Exhibit 1: Vicinity Ma
Appeal Application with attached Hearings Officer's decision
Staff Report
04/20/04
Notice of Decision, Knott Landfill's North Development Area
Decision of Deschutes County Hearings Officer
Certificate of Mailing
04/12/04
Facsimile from Laurie Craghead to Cathy White re: LUBA file 2004-
061, withdrawal of the decision challenged.
04/26/04
Returned envelope from Silver Oak Development Corp.
04/30/04
Appeal application form
Fee Waiver Request Form
Supplemental Information
Decision of Hearings Officer
Contents of Record —11/19/04
Deschutes County File: A-04-8 (CU-02-102/SP-02-51)
Page 6 of 7
Exhibit
Page I�Dq of (0Q
04/02/04
Notice of Intent to Appeal land use decision to LUBA by Andrew Stam
Exhibit A: Certificate of Mailing with attached mailing list
01/17/03
Decision of Deschutes County Hearings Officer
Certificate of Mailing
1/14/03
Oregon Health Division's comments
11/19/02
Audiotape of public hearing
11/19/02
List of Criteria for public hearing
(public
hearing)
Large-sized site plan of proposed expansion area
(public
hearing)
Large-sized Conceptual Site Layout of Knott Landfill north area
11/19/02
Color map of Knott Landfill zoning
11/19/02
Exhibit Schedule
Exhibit 1: PGE Easement
Exhibit 2: County memo
11/19/02
Agenda for public hearing
11/19/02
Land Use Hearings Officer Sign -in Sheet
10/30/02
Watermaster-District 11 comments
10/29/02
Deschutes County Building Division comments
10/28/02
PG&E Gas Transmission comments
10/28/04
Bend Fire Dept. comments
10/28/02
Letter from Robert Latimer, PG&E Gas Transmission, to Planning
Division re: application
10/28/02
DEQ comments
10/28/02
Bend Fire Department comments
10/23/02
Deschutes County Assessor comments
10/22/02
Affidavit of Publication of public hearing, The Bulletin
10/22/02
Road Department comments
10/21/02
Avion Water Company comments
10/21/02
Letter from Shawn Gerdes, Arnold Irrigation District, comments
10/21/02
Property Address Coordinator comments
10/18/02
Deschutes County Environmental Health comments
10/16/02
Land Use Action Sign Affidavit
10/09/02
Email from Karen Swirsky to Cathy Tilton re: Landfill info
10/09/02
Email from Karen Swirsky to Cathy Tilton re: Landfill question from
Coun
10/08/02
Facsimile from Karen Swirsky to Cathy Tilton attaching information
Undated
Conceptual Site Plan for Knott Recycling Facility
10/03/02
Land Use application
10/04/02 Memo to Karen Swirsky from Timm Schimke re: Public
Meeting
10/04/02 Burden of Proof
March 2001 Transportation Impact Analysis
September 12, 2002 Phase I Environmental Site Assessment
June 21, 2002, The Source for Environmental Risk Management
De osit ma s
Contents of Record –11/19/04
Deschutes County File: A-04-8 (CU-02-102/SP-02-51)
Page 7 of 7
Exhibit—
Page ID -0– of (C2d