2005-1425-Minutes for Meeting December 14,2005 Recorded 12/15/2005DESCH
TES COUNTY OFFICIAL
UBLANKENSHIP, COUNTY CLERK
CJ 2445' 425
NANCY
COMMISSIONERS' JOURNAL 12/15/2045 11;40;30 AM
11111111111111111111111111111111111
2005-3425
DESCHUTES COUNTY CLERK
CERTIFICATE PAGE
This page must be included
if document is re-recorded.
Do Not remove from original document.
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.om
MINUTES OF MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, DECEMBER 14, 2005
Commissioners' Hearing Room - Administration Building
1300 NW Wall St.., Bend
Present were Commissioners Michael M. Daly and Dennis R. Luke. Also present
were Mike Maier, County Administrator; Laurie Craghead and Mark Pilliod,
Legal Counsel; Tom Anderson and Catherine Morrow, Community Development;
Les Stiles, Sheriff; media representatives Jeff Mullins of KBND Radio, Molli
Graham and Barney Lerten of News Channel 21, and Chris Barker and LilyRaff of
The Bulletin; and approximately thirty employees and other citizens.
Vice Chair Daly opened the meeting at 10:00 a.m. Prior to the meeting Tammy
Baney gave a statement to the citizens who were present.
1. Before the Board was Citizen Input.
Tammy Baney gave a brief statement regarding her candidacy to fulfill the term
of former Commissioner Tom DeWolf. She said she spoke with both
Commissioners earlier in the day, and feels a compromise will not be reached.
She stated that this is not the best situation for Deschutes County, so she is
withdrawing her name from consideration.
She added that this action is not about the appointment for her or about party
lines. She asked that Bev Clarno be supported during this interim period; that it
is important to place the County before personal gain. She was not pressured to
withdraw her name, but simply wants the County to get back to business with
three Commissioners representing Deschutes County.
No other testimony was offered.
Minutes of Board of Commissioners' Meeting Wednesday, December 14, 2005
Page 1 of 9 Pages
2. Before the Board was a Public Hearing and Consideration of Signature of
Order No. 2005-147, Approving the Formation of a Countywide Law
Enforcement District (District 1) and Setting a Final Hearing Date of
January 11, 2006. .
Sue Brewster explained that the Orders set four things: the map, boundaries,
setting a final public hearing, and detailing how to handle annexations that
occur after the boundaries have been established. In general, the boundaries are
set by city limits, and by the two special law enforcement districts of Black
Butte Ranch and Sunriver.
Vice Chair Daly opened the public hearing.
Being no testimony offered, he closed the public hearing.
LUKE: Move approval of Order No. 2005-147.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
The final public hearing will be held on January 11, 2006
3. Before the Board was a Public Hearing and Consideration of Signature of
Order No. 2005-148, Approving the Formation of a Rural Law
Enforcement District (District 2) and Setting a Final Hearing Date of
January 11, 2006.
Sue Brewster stated that this District excludes the cities, Black Butte Ranch and
Sunriver. Les Stiles added that it covers patrol and investigative services, as
well as a portion of the cost of records and vehicles, and animal control, major
crime scene participation, drug enforcement activities, traffic safety and 9-1-1
emergency response.
Vice Chair Daly opened the public hearing.
Being no testimony offered, he closed the public hearing.
LUKE: Move approval of Order No. 2005-148.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
Minutes of Board of Commissioners' Meeting Wednesday, December 14, 2005
Page 2 of 9 Pages
The final public hearing will be held on January 11, 2006
Sheriff Stiles added that information will be available on the website and from
his office for those people who are interested. The Secretary of State will first
review all of the information before it is posted and distributed.
4. Before the Board was a Public Hearing on the ESEE Analysis of the Site
relating to a Proposed Plan Amendment and Zone Change to Establish a
Surface Mining Zone near Millican (Applicant: 4-R Equipment/Ron
Robinson).
Laurie Craghead gave an overview of the item. The public hearing is just to
consider the ESEE analysis, which covers a one-half mile impact area. The
public is allowed to review and respond to the ESEE analysis today.
The applicant's attorney has indicated they wish to continue the hearing to
allow for further review and refinement of the ESEE analysis. The Board could
have people testify at this time or they can wait until the continuance date.
Testimony can only be on the ESEE analysis itself. Any documents that are
turned in will be a part of the record.
Vice Chair Daly opened the public hearing.
Bob Lovlien, the applicant's attorney, then requested a delay to resolve some
questions regarding the ESEE analysis. They have already waived the 180 -day
time period.
After a brief discussion, it was determined that the revised ESEE analysis must
be submitted by 5:00 p.m. on January 11, 2006, and the hearing will be
continued to 10:00 a.m., January 25, 2006. The final decision must be drafted
by February 22, 2006.
Citizen Susan Gray asked what issues can be spoken about at this time. Laurie
Craghead replied that just the ESEE analysis can be addressed on a limited de
novo basis.
Ms. Gray asked if the public was given an opportunity to testify on the other
aspects. Ms. Craghead stated that a lot of testimony was offered at the last
meeting.
Ms. Gray said that she wanted to read her testimony into the record at this time.
(A copy of her statement and exhibits are attached as Exhibit B)
Minutes of Board of Commissioners' Meeting Wednesday, December 14, 2005
Page 3 of 9 Pages
Commissioner Daly asked if her main concern is vehicular exhaust. Ms. Gray
replied that this is an issue because of the proximity of the highway. She said
studies are being performed all over the world, and they need to ensure that
whatever happens at this site doesn't cause a negative impact. She added that
the Board should commission a study to assess the effect of exhaust emissions
on the area.
Commissioner Daly asked if the pictographs are within the ESEE area. Ms.
Craghead replied that some are within the one-half mile radius from the subject
property, but are further from the actual mining site.
Ms. Gray said that the ESEE analysis area doesn't include the highway
corridor, and she would like to see the Commissioners extend the area out to
include it. Ms. Craghead stated that this isn't to be discussed at this hearing,
because it is not a part of the ESEE analysis.
Janet Nash asked if the ESEE report is part of the record. Ms. Craghead
advised that it is, but there will be a revised ESEE submitted in mid-January.
The applicant has asked for more time to review it. Ms. Nash said that the one-
half mile impact zone wasn't established at a hearing, but at a work session, and
the Commissioners made a decision without public input.
Ms. Craghead explained that this was discussed in a public hearing.
Commissioner Luke added that after the hearing was closed, the Board made a
public decision. The Board decided that it is a significant site as staff had
established years ago, and felt that the one-half mile radius was appropriate.
The decision was given in a public meeting, but testimony from the public
couldn't be taken at that time; it had been given at a previous hearing.
Ms. Craghead stated that the Board opened the hearing briefly to request the
ESEE analysis, and this action was renoticed.
Ms. Nash said that input wasn't allowed then. The one-half mile impact area
was not established during a hearing or with public input. Commissioner Luke
noted that input couldn't be taken at that time, and the public had previously
testified on all aspects of the issue. Commissioner Daly added that it was
discussed at length in a public hearing, and the Board actually extended the
distance to one-half mile.
No further testimony was offered.
Minutes of Board of Commissioners' Meeting Wednesday, December 14, 2005
Page 4 of 9 Pages
5. Before the Board was a Decision regarding a Proposed Plan Amendment
and Zone Change to Establish a Surface Mining Zone near Millican
(Applicant: 4-11 Equipment/Ron Robinson).
LUKE: Move that the ESEE analysis be submitted no later than 5:00 p.m. on
January 11, 2006, and that the hearing be continued to a date certain
of 10:00 a.m. on January 25, 2006, for the sole purpose of addressing
the ESEE analysis.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
Vice Chair Daly read the opening statement for Measure 37 hearings. No
challenges were offered regarding bias, prejudgment or personal interest of the
Commissioners.
Commissioner Luke noted for the record that he does not know either applicant.
6. Before the Board was a Public Hearing and Consideration of Signature of
Order No. 2005-113 (Measure 37 Claim No. M37-05-54; Claimant: Faris).
Tom Anderson explained that the property is located north of Bend near
Hummel Road, and is zoned EFU. There is conflicting information on the size
of the parcel; the Assessor says it is 63 acres, and the LAVA database shows 52
acres. The applicant wishes to partition the property into three twenty -acre
parcels. The size of the acreage needs clarification, but is not part of the
decision of the Board today.
The amount of the claim is $880,000. The property was acquired by Mr. Faris
through an assignment of contract in July 1989. It was transferred to a
revocable family trust in 2001, but the effective date remains July 1989. PL -15
zoning was in effect at that time, and it was zoned EFU 20.
Bruce White, attorney for the claimant, and Greg Faris, the applicant, spoke.
They indicated that they would like to put this matter on hold until the acreage
amount can be established. It makes no sense to ask for a waiver to partition off
of an easement until it is known.
They agreed to extend the clock until the Supreme Court has made its decision
regarding Measure 37.
Minutes of Board of Commissioners' Meeting Wednesday, December 14, 2005
Page 5 of 9 Pages
7. Before the Board was a Public Hearing and Consideration of Signature of
Order No. 2005-114 (Measure 37 Claim No. M37-05-55; Claimant: Chase).
Tom Anderson said that the property in question is unique as it is entirely
surrounded by Eagle Crest Resort. It is inside the overlay zone for destination
resorts. The property is about twelve acres zoned MUA-10. The amount of the
claim is $1.25 million. The owner wishes to subdivide into sixteen half -acre
sites. A homesite is already on the property. It was acquired in June 1972, and
PL -2 was in effect.
Bob Lovlien, attorney for the claimant, and the claimant Neil Chase said they
have reviewed the Order and have no objections to its form and content.
No other testimony was offered, so Vice Chair Daly closed the hearing.
LUKE: Move approval of Order No. 2005-114.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
8. Before the Board was Consideration of Signature of Letters Appointing
Tammy Baney, Ted Jones, Connie Schwing, Kendal Shaber and Gene
Whisnant to the Board of the Commission on Children & Families,
through December 31, 2009.
LUKE: Move approval, subject to the concurrence of the Presiding Judge.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
9. Before the Board was a Discussion and Possible Decision on a Candidate to
Fulfill the Term of Commissioner Position #3, through January 1, 2007.
Commissioner Daly explained that Tammy Baney has withdrawn her name
from consideration and endorsed Bev Clarno for the position. He added that he
did support Ms. Baney throughout the process and it was her decision to
withdraw.
Minutes of Board of Commissioners' Meeting Wednesday, December 14, 2005
Page 6 of 9 Pages
He said it is glad that the process was extended out so that full public input
could be obtained. The public started to weigh in and it became obvious that it
was the public's choice for Ms. Clarno to fulfill the term.
Commissioner Luke stated that he agrees with Commissioner Daly.
Government is a process, and they took almost the entire time to come to this
result but this is not a bad thing. A lot of people took an active interest in this
issue and corresponded with the Commissioners. He thanked Ms. Baney for
helping them bring this issue to resolution. Should she run for and win the
position next year, she will do a good job and represent the County well.
Commissioner Daly added that he didn't want Ms. Clarno to think that he felt
anything negative about her; she is a true professional and will help with the
business of running the County.
Commissioner Luke noted that she is attending the Oregon Youth Challenge
graduation where they would all like to be, or she would be present at the Board
meeting.
LUKE: Move that Bev Clarno be appointed on an interim basis to
Commissioner Position #3, until January 2007.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
10. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the 9-1-1 County Service District in the Amount of
$7,907.52.
LUKE: Move approval, subject to review.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
Minutes of Board of Commissioners' Meeting Wednesday, December 14, 2005
Page 7 of 9 Pages
CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11
COUNTY SERVICE DISTRICT
11. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the Extension/4-11 County Service District in the
Amount of $636.34.
LUKE: Move approval, subject to review.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
RECONVENED AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
12. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for Deschutes County in the Amount of $889,447.22,
including an Economic Development Grant for the Central Oregon High
School Rodeo Association in the Amount of $2,000 (Commissioner Daly).
LUKE: Move approval, subject to review.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
13. Before the Board were Additions to the Agenda.
A. Before the Board was Consideration of Signature of a Road Dedication
Agreement with Caldera Springs LLC and Midstate Electric
Cooperative.
Laurie Craghead gave an overview of the item. Commissioner Luke noted
that he appreciates the work of staff and the cooperation of the developer in
this regard. This leaves an option for a future roadway in the Sunriver area
should it be necessary.
LUKE: Move approval, subject to review by the Road Department.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
Minutes of Board of Commissioners' Meeting Wednesday, December 14, 2005
Page 8 of 9 Pages
B. Before the Board was Consideration of Signature of Resolution No. 2005-
151, Establishing an Imprest Checking Account for Health Benefit
Disbursements.
LUKE: Move approval.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Vice Chair votes yes.
Being no further items addressed, the meeting adjourned at 11: 00 a.m.
DATED this 14th Day of December 2005 for the Deschutes County
Board of Commissioners.
ATTEST:
Recording Secretary
r' of
Mic el M. a y, Vice hair
i
Ddnnis R. Luke, Commissioner
Attachments
Exhibit A: Sign -in sheet (1 page)
Exhibit B: Statement read by Susan Gray regarding the ESEE analysis (3 pages)
Exhibit C: Letter from Douglas DuPriest regarding the ESEE analysis (9 pages)
Minutes of Board of Commissioners' Meeting Wednesday, December 14, 2005
Page 9 of 9 Pages
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Exhibit
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Testimony before the Deschutes County Commissioners
Regarding the ESEE Analysis Submitted by 4R Equipment
File No. PA -04-8, ZC-04-6
December 14, 2005
Good morning. My name is Susan Gray. I reside at 21097 High Meadow
Circle, Bend, 97702. I testified before your honorable sirs and Mr. DeWolf
at the last hearing on this matter. At that time, I spoke about and showed a
series of photos of the Walker property and the pictographs located on their
property.
Today, I wish to supplement that presentation by providing you and Ron
Robinson with an annotated aerial photograph of the Walker property which
shows the rock walls of the Dry River Canyon which contain more than 100
pictograph panels and their proximity to Highway 20. The photo contains a
scale which clearly shows the panels within 450 feet of the Highway. In my
last presentation, I spoke about the impacts of vehicular exhaust on rock art
which are being studied and addressed throughout the world. My concern
today is that this ESEE analysis almost completely disregards cultural
heritage sites on the Walker property, and other sites still yet to be
discovered, along the Dry River basin, and any potential damage they may
incur due to their proximity to his proposed quarry and Highway 20. The
impact area for this analysis should include the route the trucks will take, the
Highway 20 corridor, from the time the rock is loaded onto the truck, to the
job site, and back again. Limiting the impact area only to the quarry site
itself, and ignoring the impacts of the chemical discharges from the trucks
themselves and the increased dust they will undoubtedly leave in their wakes
is a mistake. If the Commission does not expand the area of impact, then it
appears that you are biased in favor of the quarry development.
Furthermore, to ignore potential impacts to the adjacent cultural treasures
because the site is not listed on the county's Goal 5 inventory seems short-
sighted and unethical. This site and its importance have been recognized by
the local community since at least 1927 when the first public announcement
about it was made in the Bend Bulletin. Its value to the Native American
community was known for generations before that. It has been described in
many scholarly publications including Dr. Luther Cressman's Petroglyphs of
Oregon, which was published in 1937. Dr. Cressman, as you may know, is
responsible for dating early habitation of the Fort Rock Valley to
approximately 13,000 years ago. Dr. Thomas Connolly of the University of
Exhibit
Page __\__ of
Oregon performed a survey of part of the Highway 20 corridor from Horse
Ridge towards Hampton in 2001 for ODOT and addressed this pictograph
site and its connection to the Fort Rock Valley. We have submitted a 97 -
page document to the State Historic Preservation Office in support of the
inclusion of both the prehistoric and historic elements of this portion of the
Dry River on the National Register of Historic Places. In addition, because
of the potential impacts to this treasure, the Walkers have made application
to the County for Goal 5 inclusion. This is a rare step and being taken
because of potential negative impacts. Typically, information regarding
archaeologically significant sites is kept close to the vest because of the
potential for looting and vandalism once information regarding a site
becomes known to the public. Extra steps will need to be taken to ensure
that its location remains confidential.
So, in conclusion, I pray that you, Mike Daly and Dennis Luke, demonstrate
your concern for the cultural heritage of your community, recognize the
significance of archaeological and historic components of the County, and
take positive steps to protect this national treasure with all means within
your ability to do so.
I am yours, respectfully. Susan Gray
Exhibit___
Page —2—_ of 3
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Exhibit__
Page _-::? Of
R to.
12/14/05 09:54 FAX 5413438693 HUTCHINSON COX Q001/009
Attorneys and
Counselors at Law
DATE:
TO:
FIRM:
FROM:
RE:
200 FORUM BUILDING
777 High Street
Eugene, OR 97401-2782
PHONE: 541 686-9160
FAX: 541343-8693
December 14, 2005
,17j, USINESS
100
BEST
COMPANIES 2005
FAX COVER SHEET
Deschutes County Commission
Douglas M. DuPriest, Esq.
JAMES K. COONS
JOHN G. COX
DOUGLAS M. DUPRIEST
FRANK C. GIBSON
STEPHEN A. HUrCHINSON
THOMAS M. ORR
WILLIAM H. SHERLOCK
E. BRADLEY LITCHFIELD
ZACK P. MITTGE
PATRICK L. STEVENS
BRIAN M. THOMPSON
NUMBER OF PAGES: 1
(including this cover sheet)
Fax No.: 541-385-3202
URGENT: Public Hearing Today 12/14/2005 at 10:00 a.m.
Proposed Spencer Wells Quarry, Our Clients: Tammera & Clay Walker
THIS COMMUNICATION CONSISTS OF ATTORNEY PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE
INDIVIDUAL OR ENTITY NAMED. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT
RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING
OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY
US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S.POSTAL SERVICE. THANK YOU.
ACCOUNT/CASE NO.: 7770 10025
ATTACHMENT: Testimony Submission for Hearing.
COMMENTS:
Please submit attached for hearing.
[ X ] Original being sent via mail. [ ] Original being hand -delivered.
[ ] Original available upon request. [ ] Facsimile transmittal only.
If you do not receive all of the described material,
please telephone (541) 686-9160 immediately.
Exhibit C
Page �_ of c�
12/14/05 09:55 FAX 5413438693 HUTCHINSON COX
Attorneys and
Counselors at Law
Zstablrshed 1970
Experienced Advice
in a Complex World.TM
200 FORUM BUILDING
777 High Street
Eugene, Oregon
97401-2782
PHONE
541686-9160
FAX
541343-8693
www.eugene-law.com
James K. Coons
John G. Cox
Douglas M. DuPriest
Frank C. Gibson
Stephen A. Hutchinson
Thomas M. Orr
William H. Sherlock
E. Bradley Litchfield
Zack P. Mittge
Patrick L. Stevens
Deschutes County
Board of Commissioners
1300 NW Wall St.
Bend, OR 97701-1960
December 14, 2005
Via Facsimile to 541-385-3202
Re: ESEE Analysis
Proposed Spencer Wells Quarry; PA 04-8/ZC 04-6
Our Clients: Clay and Tammera Walker
Our File No: 7770/10025
Dear Board of Commissioners:
Q 002/009
On behalf of our clients, Clay and Tammera Walker, we submit this
testimony in opposition to the above applications for a Plan Amendment and
Zone Change for 4R Equipment's Spencer Well's proposed rock quarry.
Please include this letter in the record of these proceedings.
A. The Applicant Has Still Not Performed An ESEE Analysis
The Board reopened the record so that the Applicant could prepare
and perform the ESEE analysis required under OAR 660-023-0180. Since the
Applicant has still failed to do so, its application must be denied.
Despite submitting fifteen (15) pages of written material, the Applicant
has still failed to perform any kind of ESEE analysis with regard to its
proposed impacts. The Applicant ignores conflicting uses or, even if it
identifies them, fails to conduct any analysis of the relative Economic, Social,
Environmental and Energy consequences of permitting its proposed mining.
Instead, the Applicant merely summarizes the proceedings to date, cites to
misleading and incomplete materials in record, and provides the Board with
what appear to be proposed findings. But, as there has been no analysis
undertaken, these conclusory findings have no meaning.
An ESEE analysis is not a formality. The "ESEE analysis" forms the
basis of future site plan protections, including protections for wildlife. DCC
18.52.100(B) & DCC 18.52.110(L)(2). Permitting the Applicant to avoid this
requirement would eviscerate these protections.
Moreover, the Deschutes County Comprehensive Planprovides that a
mineral and aggregate resource site may only be zoned SM where:
Exhibit C
Page 2. of
12/14/05 09:55 FAX 5413438693 HUTCHINSON COX IM003/009
Deschutes County Board of Commissioners
December 14, 2005
Page 2
"The Goal 5 conflict identification and resolution (ESEE) process
results in a determination that the resource is of sufficient
importance relative to conflicting resources and uses, if any, to
require protection." DCC 23.100.060(A)(1)(g)(2).
Since the Applicant has failed to conduct this required analysis, its
application must be denied.
B. The Applicant's Purported ESEE Analysis Does Not Address
Economic, Social, Environmental or Energy Consequences Of The
Proposed Mining.
OAR 660-023-0180(5)(d) requires that the Economic, Social,
Environmental and Energy consequences of the proposed mining be balanced
against significantly conflicting uses specifically taking into account "f tjhe
degree of adverse effect on existing land uses within the impact area."
The Deschutes County Hearings Official has previously established an
impact boundary, in accordance with OAR 660-023-0180(5)(a), beyond the
1,500 feet based on credible factual information indicating significant
potential conflicts beyond this distance. These conflicts exist and we continue
to support such an expanded impact boundary. However, notwithstanding
the Hearing Official's findings and factual information submitted, the Board
has stated it is prepared to support decreasing the impact boundary to �h mile
surrounding the subject property.
Yet, even with this vastly decreased impact boundary, the Applicant
ignores or attempts to avoid addressing any of the ESEE consequences that its
proposed operation will have. The Applicant admits that six "existing or
approved land uses within the impact area ... will be adversely affected by the
proposed mining operations:
1. Walker Residence.
2. Pictographs.
3. Coyote Well
4. Best Shelter (BLM)
5. Agricultural practices
6. Highway 20." Applicant's "ESEE Analysis", p. 8.
Exhibit C+
Page ' of
12/14/05 09:56 FAX 5413438693 HUTCHINSON COX IM004/009
Deschutes County Board of Commissioners
December 14, 2005
Page 3
Yet, the Applicant ignores all of these adverse effects and focuses exclusively
on the proposed mining activity when describing the ESEE consequences of
its proposed mining. This is ridiculous. It is impossible to weigh the ESEE
consequences without any analysis of the conflicting uses.
No doubt this deficiency is largely the result of the tendency common
to the Applicant's prior submittals to understate or ignore impacts which it
does not wish to address. Even with regard to the so-called "ESEE Analysis"
at issue the Applicant fails to identify the antelope range, dryland grazing,
ORV trails, and other conflicting uses within the 1/2 radius as conflicting land
uses. Willful blindness is not a basis for an approval. Where, as here, the
Applicant bears the burden of demonstrating compliance with all applicable
criteria, failure to address conflicting uses in an ESEE analysis is grounds for
denial of the application.
There are indications that the Applicant feels justified in ignoring these
conflicting uses, for various reasons. For instance, the Applicant appears to
make too much of the fact that Coyote Well, the Native American
Pictographs, and burrowing owl and pygmy rabbit dens are not identified on
the County's Goal 5 inventory. However, as these represent "existing uses"
within the impact area which are sensitive to noise, dust and other discharges
they need not be contained in a Goal 5 inventory to be addressed in an ESEE
analysis. OAR 660-023-0180(4)(b)(A); See also Testimony of Deschutes
County Landmarks Commission, (identifying ongoing use of the Native
American Pictographs site by native peoples). Additionally, the Applicant
cites to letters from the Oregon Water Resources Department and the
Deschutes District Wildlife Biologist apparently to demonstrate that it has
sufficiently minimized impacts associated with water drawdown or antelope
grazing. However, as will be addressed below, neither of these letters
demonstrates minimization.
Since the Applicant has failed to address the ESEE consequences with
regard to all identified conflicting uses within the 1/i mile boundary, its
application must be denied.
1. Economic
The Applicant fails to adequately address the economic consequences
associated with its proposed mining. The proposed mining operation is
likely to have significant effects upon both tourism/recreation and
agriculture in the area. According to the Deschutes County Comprehensive
Exhibit
Page Z
L -0f
12/14/05 09:56 FAX 5413438693 HUTCHINSON COX IM005/009
Deschutes County Board of Commissioners
December 14, 2005
Page 4
Plan, tourism and agriculture are more vital components of the local economy
than mining operations:
"Agricultural employment and income have declined, although
recent years have witnessed relatively stable production and
an increase in gross agricultural income... Mining's
importance has continued to decline and employment will
likely remain fairly constant. An industry often found in rural
parts of Oregon is tourism. The magnificent scenery, clean
environment and numerous, as well as varied, sites for recreation
make Deschutes County a popular vacation area. Much of the
initial and a considerable portion of today's commercial
investment was and is related to serving tourists.
Tourism and recreation rank second to timber as an income producer
for the County." DCC 23.52.010 (Emphasis added)
With regard to tourism, the Applicant has failed to address the
consequences that its proposed operation will have on the adjacent ORV trails
or the BLM's Best Shelter. The ORV trails have been a significant tourist
draw in the area, but the Applicant acts as if hurling clouds of dust and
possibly debris over these trails will have no impact upon recreational users.
Given the importance of tourism to the economy of Deschutes County,
Applicant's failure to address its impacts upon nearby tourist and
recreational activity demonstrates the inadequacy of the "ESEE Analysis" at
issue. Additionally, Applicant has made no attempt to address its noise, dust
or other impacts upon other recreational users that might be on the adjacent
BLM land to enjoy the tranquility and wildlife in the area. In fact, as will be
addressed in more detail below, the Applicant has made no attempt to
address impacts to wildlife beyond a limited condition with regard to winter
range for antelope.
Moreover, Applicant has made no attempt to address its consequences
on tourists that take advantage of the paragliding opportunities within the
valley, or to address the adverse impacts it is likely to have on the educational
and recreational facilities at Pine Mountain Observatory.
With regard to agriculture, nearby rancher Janet Nash has submitted
testimony regarding the economic impacts that blasting is likely to have on
the Iivestock raised in the area. The same impacts are likely to occur with
regard to all dryland ranching within the impact boundary. In addition, the
Applicant is proposing to dewater a significant portion of the surrounding
area by creating an open pit at one of the lowest points in the Millican Valley
Exhibit C_
Page —5— of �_
12/14/05 09:57 FAX 5413438693 HUTCHINSON COX Q006/009
Deschutes County Board of Commissioners
December 14, 2005
Page 5
which will draw -off water from the surface aquifer in the area. The Applicant
fails to address the consequences that this dewatering will have on dryland
ranching in the area. Instead, it points to a portion of a letter from the Oregon
Water Resources Department with regard to impacts from its well, as
evidence that it will have no impact on the local water table. Applicant's well
is not the problem. Yet, representatives of the U.S. Geological Survey and
Deschutes County National Forest have stated the primary risk that
Applicant's proposed pit poses to the local water table is its risk of depleting
perched aquifers through excavation. These aquifers are the lifeblood of the
surrounding farms and ranches. Yet, Applicant makes no attempt to address
these impacts, notwithstanding the continued importance of agriculture to
the local economy.
The Applicant has failed to address the impacts of its proposed
operation on the value of the Walker property. Indeed, despite the fact that
the Walker property not only stands to bear the brunt on dust, noise and
other impacts from the site, but will also suffer diminished property values as
a result of the SMIA overlay that is likely to be placed on their property, the
Applicant's "ESEE Analysis" does not address any of these impacts.
The Applicant has not addressed the economic consequences that are
likely to arise from blasting that may hurl dust or debris onto Hwy 20. The
Applicant has a tragic history of blasting mistakes. Indeed, a past blast in
1999 enveloped a home in dust and flying debris, causing an expectant
mother to miscarry. Nor are they alone in Deschutes County. Mistimed,
poorly planned, or poorly executed blasts occur within Deschutes County.
The Applicant has not addressed how its blasting and associated discharges
of dust or flying debris will impact Hwy 20 or the businesses and industries
that depend upon it.
The only economic consequences that Applicant purports to address in
its "ESEE Analysis" are the value of the proposed quarry relative to the value
pf the surrounding property for building. However, the Applicant makes no
analysis of either. As previously stated, the Applicant has failed to address
any of its impacts to the existing Walker residence within its impact
boundary'. Even with regard to the relative value of its own operation, the
' With regard to other buildable areas within the impact boundary, Applicant
appears to believe that since there is a lack of information regarding the relative economic
benefit of the buildable area that it is limiting both with its proposed mining activity and
with its proposed SMIA overlay, it can assume that it will have no economic impact upon
these properties. The burden, however, of addressing economic consequences remains on
the Applicant, and especially, where, as here, conversion of EFU property to rural residential
property is permitted by the Comprehensive Plan, the Applicant must address the impacts
Exhibit
Page __U_ of
12/14/05 09:57 FAX 5413438693 HUTCHINSON COX IM0O7/009
Deschutes County Board of Commissioners
December 14, 2005
Page 6
Applicant is vague. It refers in abstract terms to the "value of mineral and
aggregate as a cominercial commodity and the impacts of protecting
employment in the mining industry." "ESEE Analysis", p. 10. But, does not
even purport to demonstrate that there is any economic benefit associated
with this particular site or with the proposed mining activity. Indeed,
Applicant persuasively demonstrates the contrary. It indicates that the
County already has a sufficient supply of aggregate resources in its current
inventory to support the County's needs for the next twenty (20) years, and
that failing to include the proposed operation will have no impact upon the
County's needs for aggregate (nor will it unless 43% of the existing sites in the
inventory were rendered unusable). Id at 13. Add to this lack of need for the
aggregate the diminishing importance of mining to the economy of Deschutes
County and its limited impact upon employment, and it is clear that the
economic detriment of permitting the proposed mining significantly
outweighs its vaguely identified benefits.
Since Applicant has failed to conduct the requisite ESEE analysis with
regard to economic consequences, its application must be denied.
2. Social
As stated above, the Applicant attempts to ignore the impacts that its
proposed mining is likely to have on the cultural resource of the Native
American Pictographs because they have not been identified in a Goal 5
inventory. However, as was clearly indicated by the Deschutes County
Landmarks Commission and representatives of local tribal governments,
native peoples continue to use Dry River Canyon and the pictographs therein
to connect with their cultural heritage. This is the only site in Deschutes
County that is continually used by native peoples. Yet, despite its importance
to the tribes, the Applicant does not even address the social consequences of
interfering with this valuable cultural resource.
Instead, Applicant merely points to a vibration intensity study, and
claims that it will have no impact. It is undisputed that this vibration
intensity study does not address any standards that apply to blasting near
rock art sites nor are its conclusions based on an investigation of the rock art
at issue. As indicated by the Landmarks Commission this rock art is
exceptionally fragile. Yet, there has been no attempt to address this fragility in
the vibrational intensity study. Nor is there any discussion in that report of
that its proposed operations will have upon the possible residential uses of the surrounding
properties.
Exhibit C
Page of 0_
12/14/05 09:58 FAX 5413438693 HUTCHINSON COX ZOOS/009
Deschutes County Board of Commissioners
December 14, 2005
Page 7
the risks of incremental degradation associated with the operation, including
dust and exhaust, or the risk of fire previously identified. Finally, the
vibration intensity study does not address the impacts that the operation will
have on the use of the site by native peoples. Since Applicant has failed to
address the social consequences of mining near such an important
archaeological and cultural site, its is clear that its "ESEE Analysis" is
incomplete, and that its application must be denied.
Additionally, as previously stated, the Applicant has failed to conduct
any analysis of the impacts on liveability for surrounding property owners,
impacts to tourist -related and recreational uses of the surrounding properties,
or impacts to the use of Hwy 20 for transportation. Adverse impacts to quiet
enjoyment of private property, recreation, and freedom of movement are
important social consequences of the proposed operation. Applicant's failure
to analyze these impacts reflects its failure to conduct the required ESEE
analysis. Accordingly, the application must be denied.
3. Environmental
ODFW was relying on the ESEE analysis to provide additional
conditions to protect antelope within the impact area. Applicant has not
proposed any new conditions to the antelope range. Antelope are "highly
dependent on the open relatively undeveloped character of ... [the antelope
range] for survival." DCC 23.104 According to Steve George of ODFW, they
are "extremely sensitive to changes in development and human caused
disturbances" Since Applicant has proposed no meaningful conditions to
limit this disturbance, the environmental consequences of the proposed
operation are likely to be severe. Thus, it is appropriate for the Board to deny
SM zoning of the site in accordance with the Comprehensive Plan. DCC
23.100.060(A)(2)(k). In any case, the Applicant's failure to address
consequences on antelope range reflects the inadequacy of the Applicant's
analysis of environmental consequences.
Additionally, Applicant has ignored sensitive species habitat including
habitat for burrowing owls, pygmy rabbits, and sage grouse that occur on or
near the site. These are clearly existing uses of the property, and Applicant's
failure to address the its impacts on these animals' habitat further reflects the
inadequacy of its analysis of environmental consequences.
Applicant has also failed to account for the impact that its dewatering
and/or contamination of perched aquifers is likely to have on wildlife
habitate within the area and on the surrounding environment. Given the
Exhibit C..,
Page of�
12/14/05 09:58 FAX 5413438693 HUTCHINSON COX [Moog/009
Deschutes County Board of Commissioners
December 14, 2005
Page 8
importance of water in the region to wildlife, this failure demonstrates
another significant inadequacy in the "ESEE Analysis."
4. Energy
Finally, the Applicant has failed to address energy consequences
associated with its proposed operations. With regard to its claims that haul
distances will be dimiiushed due to the location of the site, the County's
existing inventory already contains other sources of high quality rock near to
the proposed site that would not have greater haul distances than the
proposed operation. Thus, there is no additional energy savings associated
with the site.
On the other hand, the adverse impacts that the proposed mining is
likely to have on recreational opportunities within the area, including the
scenic quality of the area, will likely result in a net loss of energy as tourists
and other people must go further to find recreational opportunities unmarred
by the Applicant's operation.
Conclusion
For all of the foregoing reasons, the Applicant has failed to provide the
required ESEE analysis and the application must be rejected.
cc: Clients
Very truly yours,
HUTCHINSON, COX, COONS,
DuPRIEST, ORR & SHERLOCK, P.C.
- OV
Douglas M. DuPriest
Zack P. Mittge
Exhibit 0—
Page of�_
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., WEDNESDAY, DECEMBER 14, 2005
Commissioners' Hearing Room - Administration Building
1300 NW Wall St.., Bend
1. CITIZEN INPUT
This is the time provided for individuals wishing to address the Board regarding issues that
are not already on the agenda. Visitors who wish to speak should sign up prior to the
beginning of the meeting on the sign-up sheet provided. Please use the microphone and also
state your name and address at the time the Board calls on you to speak.
2. A PUBLIC HEARING and Consideration of Signature of Order No. 2005-
147, Approving the Formation of a Countywide Law Enforcement District
(District 1) and Setting a Final Hearing Date of January 11, 2006 — Sue
Brewster, Sheriff's Office
3. A PUBLIC HEARING and Consideration of Signature of Order No. 2005-
148, Approving the Formation of a Rural Law Enforcement District (District 2)
and Setting a Final Hearing Date of January 11, 2006 — Sue Brewster, Sheriff's
Office
4. A PUBLIC HEARING on the ESEE Analysis of the Site relating to a
Proposed Plan Amendment and Zone Change to Establish a Surface Mining
Zone near Millican (Applicant: 4-R Equipment/Ron Robinson) — Paul Blikstad,
Community Development Department
5. A DECISION regarding a Proposed Plan Amendment and Zone Change to
Establish a Surface Mining Zone near Millican (Applicant: 4-R Equipment/Ron
Robinson) — Paul Blikstad, Community Development Department
Board of Commissioners' Meeting Agenda Wednesday, December 14, 2005
Page 1 of 7 Pages
6. A PUBLIC HEARING and Consideration of Signature of Order No. 2005-113
(Measure 37 Claim No. M37-05-54; Claimant: Faris) — Tom Anderson,
Community Development; Mark Pilliod, Legal Counsel
7. A PUBLIC HEARING and Consideration of Signature of Order No. 2005-114
(Measure 37 Claim No. M37-05-55; Claimant: Chase) — Tom Anderson,
Community Development; Mark Pilliod, Legal Counsel
8. CONSIDERATION of Signature of Letters Appointing Tammy Baney, Ted
Jones, Connie Schwing, Kendal Shaber and Gene Whisnant to the Board of the
Commission on Children & Families, through December 31, 2009
9. DISCUSSION and Possible Decision on a Candidate to Fulfill the Term of
Commissioner Position #3, through January 1, 2007
CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
10. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the 9-1-1 County Service District in the Amount of $7,907.52.
CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-11
COUNTY SERVICE DISTRICT
11. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the Extension/4-H County Service District in the Amount of $636.34.
RECONVENE AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
12. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
Deschutes County in the Amount of $889,447.22.
13. ADDITIONS TO THE AGENDA
Board of Commissioners' Meeting Agenda Wednesday, December 14, 2005
Page 2 of 7 Pages
Deschutes County meeting locations are wheelchair accessible.
Deschutes County provides reasonable accommodations for persons with disabilities.
For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY.
Please call (541) 388-6571 regarding alternative formats or for further information.
FUTURE MEETINGS:
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have
questions regarding a meeting, please call 388-6572.)
Tuesday, December 13, 2005
9:00 a.m. Greater La Pine Area Community Fire Plan Signing Ceremony — Newberry
Station/Best Western
1:45 p.m. Regularly Scheduled Meeting with the Director of the Parole & Probation Department,
at Parole & Probation
2:45 p.m. Regularly Scheduled Meeting with the Director of the Juvenile Community Justice
Department, at Juvenile
3:45 p.m. Regularly Scheduled Meeting with the Sheriff, at the Sheriffs Office
Wednesday, December 14, 2005
8:30 a.m. Regular Meeting with the Director of Tax & Finance
9:00 a.m. Executive Session, called under ORS 192.660(1)(h) — Litigation — and/or ORS
192.660(1)(b) — Personnel Issue
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Regularly Scheduled Meeting with the Forestry Specialist
1:45 p.m. Regularly Scheduled Meeting with the Director of the Road Department
2:15 p.m. Regularly Scheduled Meeting with the Director of Solid Waste
3:30 p.m. Regularly Scheduled Meeting with the Director of the Mental Health Department
Thursday, December 15, 2005
9:00 a.m. Executive Session called under ORS 192.660(1)(b) — Personnel Grievance Hearing
10:00 a.m. Regularly Scheduled Meeting with Community Development
Board of Commissioners' Meeting Agenda Wednesday, December 14, 2005
Page 3 of 7 Pages
Monday, December 19, 2005
11:30 a.m. Regularly Scheduled Update Meeting with Department Heads
1:30 p.m. Administrative Liaison
Tuesday, December 20, 2005
9:00 a.m. Public Hearing on Thornburgh Destination Resort Appeal
11:00 a.m. Regular Meeting of Employee Benefits Advisory Committee
Wednesday, December 21, 2005
4:00 p.m. Public Hearing regarding Community Forest Authority - Deschutes Basin Land Trust
Monday, December 26, 2005
Most County offices will be closed to observe Christmas.
Tuesday, December 27, 2005
1:30 p.m. Administrative Liaison
Wednesday, December 28, 2005
10:00 a.m. Board Meeting for the Week
Monday, January 2, 2006
Most County offices will be closed to observe New Years Day.
Tuesday, January 3, 2006
1:30 p.m. Administrative Liaison
Wednesday, January 4, 2006
10:00 a.m. Board of Commissioners' Meeting
Thursday, January 5, 2006
8:00 a.m. Regular meeting with the Sisters City Council, in Sisters
Board of Commissioners' Meeting Agenda Wednesday, December 14, 2005
Page 4 of 7 Pages
Monday, January 9, 2006
10:00 a.m. Board of Commissioners' Work Session
1:30 p.m. Administrative Liaison
3:30 p.m. Local Public Safety Coordinating Council Meeting
Tuesday, January 10, 2006
1:30 p.m. Regularly Scheduled Meeting with the Director of Information Technology
2:30 p.m. Regularly Scheduled Meeting with the Director of Community Development
Wednesday, January 11, 2006
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Regularly Scheduled Meeting with the Forestry Specialist
1:45 p.m. Regularly Scheduled Meeting with the Director of the Road Department
2:15 p.m. Regularly Scheduled Meeting with the Director of Solid Waste
3:30 p.m. Regularly Scheduled Meeting with the Director of the Health Department
4:15 p.m. Regularly Scheduled Meeting with the Director of the Mental Health Department
Thursday, January 12, 2006
7:00 a.m. Regularly Scheduled Meeting with the Redmond City Council, Redmond Fire Hall
Monday, January 16, 2006
Most County offices will be closed to observe Martin Luther King, Jr. Day
Tuesday, January 17, 2006
1:30 p.m. Administrative Liaison
3:00 p.m. Regularly Scheduled Meeting with the Director of the Fair & Expo Center
Monday, January 23, 2006
9:00 a.m. Regularly Scheduled Meeting with the District Attorney
10:00 a.m. Board of Commissioners' Work Session
1:30 p.m. Administrative Liaison
3:00 p.m. Regularly Scheduled Meeting with the Commission on Children & Families
3:45 p.m. Regularly Scheduled Meeting with Juvenile Community Justice
Board of Commissioners' Meeting Agenda Wednesday, December 14, 2005
Page 5 of 7 Pages
Wednesday, January 25, 2006
9:00 a.m. Regular Meeting with the Director of Tax & Finance
10:00 a.m. Board of Commissioners' Meeting
1:45 p.m. Regularly Scheduled Meeting with Parole & Probation
2:45 p.m. Regularly Scheduled Meeting with the Sheriff
Monday, January 30, 2006
10:00 a.m. Board of Commissioners' Work Session
1:30 p.m. Administrative Liaison
Wednesday, February 1, 2006
10:00 a.m. Board of Commissioners' Meeting
Monday, February 6, 2006
10:00 a.m. Board of Commissioners' Work Session
1:30 p.m. Administrative Liaison
Wednesday, February 8 2006
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Regularly Scheduled Meeting with the Forestry Specialist
1:45 p.m. Regularly Scheduled Meeting with the Director of the Road Department
2:15 p.m. Regularly Scheduled Meeting with the Director of Solid Waste
3:30 p.m. Regularly Scheduled Meeting with the Director of the Health Department
4:15 p.m. Regularly Scheduled Meeting with the Director of the Mental Health Department
Monday, February 13, 2006
11:30 a.m. Regularly Scheduled Update Meeting with Department Heads
1:30 p.m. Administrative Liaison
Monday, February 20, 2006
Most County offices will be closed to observe Martin Luther King, Jr. Day
Board of Commissioners' Meeting Agenda Wednesday, December 14, 2005
Page 6 of 7 Pages
Tuesday, February 21, 2006
1:30 p.m. Administrative Liaison
3:30 p.m. Regularly Scheduled Meeting with the Director of the Fair & Expo Center
Wednesday, February 22, 2006
9:00 a.m. Regular Meeting with the Director of Tax & Finance
1:45 p.m. Regularly Scheduled Meeting with the Director of the Parole & Probation Department,
at Parole & Probation
2:45 p.m. Regularly Scheduled Meeting with the Director of the Juvenile Community Justice
Department, at Juvenile
3:45 p.m. Regularly Scheduled Meeting with the Sheriff, at the Sheriffs Office
Monday, February 27, 2006
10:00 a.m. Board of Commissioners' Work Session
1:30 p.m. Administrative Liaison
3:00 p.m. Regularly Scheduled Meeting with the Commission on Children & Families
Deschutes County meeting locations are wheelchair accessible.
Deschutes County provides reasonable accommodations for persons with disabilities.
For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY.
Please call (541) 388-6571 regarding alternative formats or for further information.
Board of Commissioners' Meeting Agenda Wednesday, December 14, 2005
Page 7 of 7 Pages
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
ADDITIONS TO THE AGENDA
BOARD OF COMMISSIONERS' MEETING
WEDNESDAY, DECEMBER 14, 2005
A. CONSIDERATION of Signature of a Road Dedication Agreement with
Caldera Springs LLC and Midstate Electric Cooperative — Laurie Craghead,
Legal Counsel
B. CONSIDERATION of Signature of Resolution No. 2005-151, Establishing
an Imprest Checking Account for Health Benefit Disbursements — Marty
Wynne, Finance Department