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2006-178-Minutes for Meeting January 25,2006 Recorded 3/2/2006FICIAL NANCYDESCHUBLANKENSHIPTES COUNTY CLERKDS Vy 20066118 COMMISSIONERS' JOURNAL 03102/2006 03;59;19 PM 1111111111111111111111111111111 2006-178 DESCHUTES COUNTY CLERK CERTIFICATE PAGE ~ ~ CCU ill Al A 1A t I 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.orc MINUTES OF MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JANUARY 25, 2006 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St.., Bend Present were Commissioners Dennis R. Luke and Bev Clarno; Commissioner Michael M. Daly was out of the office. Also present were Mike Maier, County Administrator; George Kolb, Road Department; Catherine Morrow, Peter Gutowsky, Paul Blikstad, Will Groves and Tom Anderson, Community Development; Dan Peddycord, Health Department; Lori Hill, Mental Health Department; Mark Pilliod and Laurie Craghead, Legal Counsel; Susan Ross, Commissioners' Office; media representatives Chris Barker of The Bulletin ; and twenty other citizens. Chair Luke opened the meeting at 10: 00 a. m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was Discussion and Consideration of Approval of Amendments to Mental Health Agreements with Marc Williams, MD; Joseph Barrett, MD; Donald McFerran, NP; and Gayle Woosley, NP. Lori Hill explained the reason for the amendments. CLARNO: Move approval of the four documents. LUKE: Second. VOTE: CLARNO: Aye. LUKE: Chair votes yes. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 1 of 16 Pages 3. Before the Board was Consideration of Approval of a Federal Grant for the "Safe Havens" Program. Mark Pilliod stated that the Board doesn't have to sign the application, but a motion would be appropriate. Angie Curtis explained the grant, which would cover the continued funding of a 2005 grant. This program is operated through a subcontract with COBRA (Central Oregon Battering and Rape Alliance). CLARNO: Move approval, subject to review of Legal Counsel. LUKE: Second. VOTE: CLARNO: Aye. LUKE: Chair votes yes. 4. Before the Board was Consideration of Signature of Document No. 2006- 002, a Lease Agreement for a Portion of County Property Located at 1340 NW Wall Street. Commissioner Luke stressed that the building needs to meet handicapped access requirements. Ms. Ross stated that the County makes sure the entrances comply, but the private company leasing the property doesn't have the same level of requirements in this regard. If the County wanted to use the property itself, many upgrades would have to occur. Commissioner Luke said that he will not approve the lease without assurances that the company will comply. This will be addressed at a future date. 5. Before the Board was a Public Hearing regarding the Proposed Vacation of "E" Avenue between Second Street and Third Street, Terrebonne. George Kolb gave an overview of the item. The parcel is a thirty-foot remnant of a walkway. If there is no negative testimony, he recommended the Board approve the vacation but not sign it until the appropriate plan amendment is completed. Chair Luke opened the public hearing. Being no testimony offered, he closed the hearing. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 2 of 16 Pages 6. Before the Board was Consideration of Signature of Order No. 2006-001, Vacating "E" Avenue between Second Street and Third Street, Terrebonne. Commissioner Luke asked that the Order be brought back to the Board after the plan amendment process is completed. This will be back on the agenda at a future date. 7. Before the Board was a Public Hearing regarding the Proposed Vacation of a Portion of A. W. Willard Road (near Johnson Market Road, Bend). George Kolb said he has worked with property owner Henry Lewis and representatives of Central Oregon Irrigation District. Mr. Lewis' property is basically landlocked; this action will enable a lot line adjustment to be done. No comments, oral or written, were received from the public. Chair Luke opened the public hearing. Being no testimony offered, he closed the hearing. 8. Before the Board was Consideration of Signature of Order No. 2006-002, Vacating a Portion of A. W. Willard Road. CLARNO: Move approval. LUKE: Second. VOTE: CLARNO: Aye. LUKE: Chair votes yes. 9. Before the Board was a Public Hearing on File No. A-05-12, regarding the Hearings Officer's Decision Denying an Accessory Structure on a Parcel in the Forest Use Zone (Applicant: Dieter Mees). This hearing was continued from December 12, 2005. Chair Luke opened the public hearing. Will Groves read the opening statement at this time. (A copy is attached as Exhbit B.) Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 3 of 16 Pages The Board indicated they had no conflicts of interest, bias, personal interest or ex parte contacts to declare. No objections were received from the public. Mr. Groves read his staff report at this time. (A copy is attached as Exhibit C) He said the clock has been tolled to March 1 by the applicant. Commissioner Luke said there were four decision points made by the Hearings Officer: three upholding the application and one denying the application. He asked if the Board was to consider all four, since the appeal came from the applicant. Laurie Craghead replied that the hearing is de novo, so anything can be considered. Commissioner Luke said that some of this hinges on whether the structure is an accessory building necessary for forest practices, and whether it should be temporary or permanent. There seems to be an argument between Code and State law. Ms. Craghead replied that is what the Hearings Officer found, but there could be other arguments. Attorney Myles Conway, representing the landowner/appellant, stated that the Hearings Officer ruled that the County didn't have authority to approve the structure. He believes this is inconsistent with the Code and State law. This type of activity is already highly regulated. A conditional use permit was granted for the home, and the property is to be managed under the Forest Stewardship Plan through the Department of Forestry. The structure is a 50 x 100 metal storage building placed in the middle of the parcel off an existing logging road, sited in accordance with existing fire standards. The intent is to use the building to store equipment for ongoing forest stewardship. There is a lot of trespass and vandalism in the area, and it is not good to store this type of equipment outside. The Hearings Office incorrectly ruled that this is an accessory structure. This gives the County authority to regulate the establishment of structures other than temporary structures. This is a creature of long-ago forest practices when large areas of forest were logged. State law indicates this is permitted outright, but County law says permanent structures can't be allowed. However, the County has the authority to allow other structures above and beyond those that are temporary. The building is subordinate and incidental to forest use and there is no argument that it would be used for forest operations. The opponents argue accessory uses can't include structures. However, there are many uses allowed in a forest zone, and under those uses are specific structures. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 4 of 16 Pages State law allows the County to approve this. There are already a lot of land use limitations in the forest zone, but this should not be one of them. Mr. Conway said that John Jackson and John Rounds, experts in forest practices, have indicated there are benefits to properly handling this parcel, to both the landowner and the city. This practice is commonly done throughout the State. The stewardship plan has been approved by the Oregon Department of Forestry. He added that thinning and clearing brush and maintaining the property is a significant ongoing commitment, requiring equipment for that purpose. Commissioner Luke asked for a copy of the plan so he could review it. Mr. Conway stated he would provide one. Commissioner Luke noted that he has known two of the forestry specialists, John Jackson and John Rounds, for some time. John Rounds then testified. He provided his resume' to the Board (a copy of which is attached as Exhibit D), and gave an overview of his qualifications regarding the handling of woodlands. He said he has visited hundreds of forestland operations throughout Oregon, and couldn't think of any where they are practicing forestry or have a tree farm and don't have a storage building for equipment. John Jackson stated that he is representing the owner in this case. He gave a historical perspective as to why the law was written as it was, to address logging camp operations, which were usually large scale operations done over a short period of time. In today's world there are parcels of forest land situated immediately adjacent to suburban areas. He gave a brief history of non-landowner recreational activities and fire issues concerning such lands, and talked about an ongoing series of operations needed to maximum the growth potential of the site. Main issues are the health of the forest and the threat of fires. An initiative is in process regarding a fuels treatment corridor west of Bend, and this property would be a component of that. The fuel load would be modified, and the property would provide a buffer effect and an effective place to fight a wildfire. There is a long-term need to shelter equipment in support of clearly identified forest activities, and everything about the structure is consistent with this use. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 5 of 16 Pages Chair Luke asked if anyone else wanted to testify in support of the applicant; no testimony was offered. Chair Luke asked for testimony from those in opposition. Paul Dewey, representing the Sisters Forest Planning Committee, said that when the Board addressed whether to hear this appeal, in the discussion of context, other decisions are being made regarding buildings. Appeals would not be in just this case but would concern overall County practices regarding structures in farm and forest zones. He expected staff to provide other examples of approvals. Some were introduced today, contrary to State law. There are two fundamental issues in basic land use principals. The County or a local jurisdiction can't allow something that State law does not allow. The second issue is that even if State law does allow it, it has to be in County Code as well. Both principles are in effect here. State law does allow for what this party wants - a permanent structure to store equipment. When the County adopted its Code, this was left out. It is unclear why certain OARS were not included; it is assumed the County wanted to keep the forests in production. State law does not allow these outright, but as a conditional use. By claiming it is accessory to forest use, they want to show it outright. This needs to be fleshed out as to exactly what will happen on the property. Code does not allow it, and if it did it would only be as a conditional use. The applicant is claiming it is accessory to forest use. The Hearings Officer was clear on this, the outright uses identified in the OARS are under the Forest Practices Act. Only temporary structures can be used outright, and permanent structures are a conditional use. Regarding eighty acres near Black Butte Ranch, the applicant applied for an accessory structure - a barn in a forest zone - and it was automatically approved. Mr. Dewey said he had submitted comments but they were deemed as received too late. There was no evidence as to what the barn was going to be used for, as there is no agricultural use on the property. Regarding another property, an accessory structure was placed in a forest zone in Sisters, with no evidence provided as to its use. Commissioner Luke said that those were approved by staff, not the Board. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 6 of 16 Pages Mr. Dewey replied that the one in the agricultural zone didn't even get administrative approval, just a permit. This does not comply with Code or State law. This is the issue he and his client wanted to raise with the Board. He asked that seven or fourteen days be available for submitting further information. Mr. Dewey submitted documents to the Board at this time. (A copy is attached as Exhibit E.) Laurie Craghead said that Code requires seven days for new evidence and seven days for a response. In context, this doesn't relate to the initial hearing. It is the discretion of the Board as to whether to leave the record open since this is not the initial hearing. Slightly off the subject, Mr. Dewey noted that the County is the best jurisdiction he has found for providing information to citizens over their computers. Commissioner Luke asked if the applicant wished to testify in rebuttal. Mr. Conway said there is no need to leave the record open, as he will submit his final argument within seven days. He added that he belies State law does allow the building, and the Code is consistent; it is clear the structure is beneficial. Commissioner Luke stated that the Board has been fairly liberal in requests to leave the record open. It is not unreasonable to leave it open for fourteen days to give Commissioner Daly some time to review the record. After a brief discussion, Mr. Conway said he had nothing further to submit at this time. He added that the case is about this particular structure, not a time to look at what others may have done. Mr. Dewey stated that it is not critical for him to submit additional information, and he would not be submitting anything further. Commissioner Luke observed that there is no need to leave the record open, so he closed the public hearing. He added that there will be a decision made about mid-February. 10. 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). This hearing was continued from December 14, 2005. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 7 of 16 Pages Laurie Craghead said that the same rules apply as in the past two hearings regarding LUBA or constitutional issues that anyone wants to raise. The staff report first would be presented first, then the proponents would testify, followed by the opponents. The Board needs to declare any bias, personal interest or ex parte conflicts. Commissioner Clarno stated she has none to declare. Commissioner Luke said he received a copy of the ESEE analysis and a letter from Attorney Douglas DuPriest. Paul Blikstad indicated he had not received the letter and needs a copy. (A copy is attached as Exhibit F.) Commissioner Luke advised that the hearing today is only to address the ESEE analysis. Ms. Craghead added that it had been amended since the last meeting and the Board has the most recent version. The Board also heard on the impact area already and should not consider anything in that regard. She said that it was brought to her attention there could be issues regarding pictographs, but the State statute regarding archeological sites is in a confidential record that is not to be disclosed. Bob Lovlien, an attorney representing the applicant, stated that the ESEE analysis covering the impact area of V2 mile around the site has been prepared. In determining potential conflicts, the local governmental entity is only to consider A through F as set out in the ESEE analysis. The area of impact had already been expanded by the Board. The ESEE analysis identifies what could be a potential conflict. This would include only the Walker residence. The ESEE analysis describes potential conflicts due to noise, dust, lighting, and so on. It is clear there are no conflicts regarding potential traffic impacts. The analysis addresses the issues of water and requirements of the U.S. Geological Service. The ESEE analysis was done as prescribed by the rules governing this particular resource. The ESEE analysis identifies potential consequences of allowing, limiting or disallowing the proposed use, only within the impact area itself. The analysis should allow combing on the site. There are fourteen conditions imposed on the operation. State Rule does limit what the Board can consider in this case, taking into regard the importance of aggregate resources. Commissioner Luke asked about possible traffic impacts, in particular access and stacking issues on Highway 20. Mr. Lovlien said he would check the document for this information. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 8 of 16 Pages Commissioner Luke stated that in regard to the reclamation plan, native grasses and noxious weeds, he would like to see something added about working with the local weed council. Mr. Lovlien replied that they still have to go through the conditional use process, and that could be a part of it. It would be beneficial for the applicant to work with the weed council. Commissioner Luke asked if the access roads will be asphalt or brought up to certain standards. Mr. Lovlien said that these standards could be established with the applicant. Asphalt is a long-term component of the project. Commissioner Luke asked about the second stage of mining, which is below grade, and using a berm. Mr. Lovlien replied that they want to take off the ground cover and have all crushing activities well below grade. No other proponents testified. Commissioner Luke asked if anyone wanted to offer testimony specifically against the ESEE analysis. Janet Nash of the Evans Well Ranch off Spencer Wells Road read a statement to the Board. (A copy is attached as Exhibit F.) Laurie Craghead noted that Ms. Nash said the rock isn't needed, and asked what the basis is for her statement. Ms. Nash said that it was in the original ESEE analysis and is part of the record. Allan Chambers, a research astronomer at Pine Mountain Observatory, said that he isn't sure he can offer rebuttal since the Observatory doesn't fall within the 1/2 mile area. He said the Observatory was mentioned in the ESEE analysis. Ms. Craghead stated that it is outside the area and cannot be considered. Commissioner Luke added that the Board considered the area and limited it, and this is covered by State rules. The argument was made and 1/2 mile was decided, and Pine Mountain Observatory is really irrelevant in this regard now. Mark Dunaway, a manager at the Pine Mountain Observatory, said he would like to see some mention about future lighting in the area, as the location is in direct line of site. Commissioner Luke noted that the County has an enforceable lighting ordinance, and the applicant needs to meet County standards. Lighting at the site needs to be shielded and shine down. Ms. Craghead stated that the effect of lighting outside of the 1/2 mile area cannot be considered. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 9 of 16 Pages Joe Lewis' name was called but he did not respond. Tammy Walker then testified. She said she owns the Walker property, which includes a canyon with pictographs. She stated she brought testimony in from Clay Walker, who could not attend; he has had thirty years of experience in the rock crushing industry. She read his statement at this time. (A copy is attached as Exhibit G.) Commissioner Luke asked if Mr. Walker is a licensed engineer. Ms. Walker said no, but he does have training in this regard. She then gave various examples of potential problems with blasting. Commissioner Luke interrupted Ms. Walker as she was getting into personal attacks of the applicant. He added that he had lived in the area for many years and recalled when blasting was done within the City of Bend for the sewer system. He said it is not just the nature of the rock but the quality of the people who do the work. Ms. Walker then read her own statement. (A copy is attached as Exhibit H.) Commissioner Luke said that Ms. Walker was putting personal opinions into the record on what they might do in the future. Ms. Walker stated that they aren't good neighbors. Commissioner Luke stressed that Ms. Walker can't express personal opinions on the people or the company that can't be backed with facts. Pat Kliewer, Associate Planner for Cultural and Historic Resources for Deschutes County, then testified on behalf of Deschutes County. She stated she was not testifying in opposition to the application. The Landmarks Commission had already submitted testimony on the application, and representatives of the Confederated Tribes appeared and also submitted letters. She said that in the ESEE analysis none of the concerns of that testimony have been addressed. She stated she would like to see the ESEE not accepted or redone to address concerns of the Tribes, who have a stake in this case, as does the State Archeologist. Also, the ESEE analysis states only pictographs, but it is much more extensive than that. It is an ongoing religious site for the Tribes. She said that it is important that the decision makers understand this. Almost all of the testimony has been submitted in writing. Ms. Kliewer went on to explain the importance of the site. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 10 of 16 Pages She said Wilson Wewa, Jr. of the Warm Springs Tribes had testified previously, but some of his testimony is not in the record because the meeting was not taped. He said that the site has great meaning to the Northern Piute tribe and others. Commissioner Luke stated that he has been very liberal about the testimony being offered today; however, this information is already in the record. He said that testimony needs to be specifically on the area within the ESEE analysis, not the entire record. Ms. Kliewer added that Native American doctor come to the site to pray, and want to make sure it is protected. Commissioner Luke asked if she is suggesting the site is a burial site. Ms. Kliewer replied that she doesn't know, but archeological studies indicate it could be. Commissioner Luke asked that this information be entered into the record. Paul Clayssus (note: spelling of name may not be correct) stated that in his opinion, the ESEE analysis needs to address items left out of the record, especially physical remains of the past that often have cultural values as well. Expertise is more in the federal nexus and the federal archives, but ORS and Administrative Rules direct that known archeological sites are to be protected under Goal 5. If discoveries are made, particularly burials, the work has to be stopped. He added that it is in the best interest of the government to make sure the appropriate level of study has been done. No further testimony was offered. Commissioner Luke asked if the Oregon Department of Fish and Wildlife has received the ESEE analysis. Bob Lovlien replied that no one from the Federal government testified against the application. Everything was submitted to them early in the process, and they have not contacted him since then. Paul Blikstad noted that the Oregon Department of Fish and Wildlife was notified and no written response was received. Mr. Lovlien said that the Rule is clear regarding Goal 5 protected resources. The sites brought up are a substantial distance away from the property, on the other side of Highway 20. A complete archeological review was done before the applicant submitted the application to make sure no sites were on the property. This information is in the record, and the Board is precluded from looking beyond Goal 5 protected resources to evaluate this particular application. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 11 of 16 Pages He emphasized that when reading the ESEE analysis, the Commissioners should look at the highlighted portions. The State indicates what can be considered. Most of the testimony heard today is not identified under the rule. It is true that the applicant does mine and blast near gas lines and other sensitive sites, but it is well documented that it is routine work and is done all the time. In regard to the problems brought up, 4-R was not the contractor in any of those articles. Also, need is not an issue in this case. The Hearings Officer expanded the area of impact, but she also was clear that Goal 5 resources had to be identified as such. This is in a landscape management overlay zone, and this has not been an issue until brought up today. The Commissioners should review the ESEE analysis and the scope of review of the local government as mandated by the State, which has identified the site as a valuable resource. He added that there are only two sources of hard rock in the area, the R.L. Coats site at Shevlin and the Moon Pit. Some is coming out of O'Neill Junction, but that is a long, difficult, expensive haul. Laurie Craghead stated she had not seen the submittal by Mr. DuPriest. He states that the Rule requires more than Goal 5, and should include mitigation of conflicts with sensitive species. Mr. Lovlien said he disagrees, and the Hearings Officer felt the same way. Commissioner Luke asked if the hearing needed to be continued so Mr. Lovlien can respond to the letter. Mr. Lovlien said that he would like to review it, and the 150-day time issue has been waived. Laurie Craghead noted that a week should be allowed for rebuttal evidence and argument, and another week allowed for the final rebuttal argument. Commissioner Luke said that the public hearing is closed, and the record would be left open until 5:00 p.m. on February 8; that rebuttal documents need to be submitted to Community Development by 5:00 p.m. on Wednesday, February 1, and rebuttal argument submitted by 5:00 p.m. on Wednesday, February 8. A decision on this matter will be made later in February. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 12 of 16 Pages Mark Pilliod stated that all of the Measure 37 hearings scheduled today have been postponed at the request of the applicants. Six files were originally scheduled, but all have submitted requests to continue the hearings until after the Supreme Court decision. No new dates have been set for the hearings. 11. Before the Board was a Measure 37 Hearing on File No. M37-05-59, Order No. 2006-005 (Claimant: Gill). This will be addressed at a future date. 12. Before the Board was a Measure 37 Hearing on File No. M37-05-60, Order No. 2006-006 (Claimant: Gill). This will be addressed at a future date. 13. Before the Board was a Measure 37 Hearing on File No. M37-05-61, Order No. 2006-007 (Claimant: Miller). This will be addressed at a future date. 14. Before the Board was a Measure 37 Hearing on File No. M37-05-63, Order No. 2006-009 (Claimant: Fullerton). This will be addressed at a future date. 15. Before the Board was Consideration of Approval of Document No. 2006- 034, the Four Rivers Vector Control District Annual Work Plan. Dan Peddycord gave an overview of the plan, which needs to be approved by the Oregon Department of Fish and Wildlife and the State Health Division. He said he reviewed the plan for the previous year and this one appears to be similar. He added that the District would like to start the procurement of products so they can be ready to go when the State is finished with its review. He also said that the District can now contract directly with Sunriver and the County does not have to be involved. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 13 of 16 Pages CLARNO: Move approval, subject to the District obtaining any necessary permits and approvals from the State. LUKE: Second. VOTE: CLARNO: Aye. LUKE: Chair votes yes. 16. Before the Board was Consideration of Chair Signature of an Oregon Liquor Control License Application for Crane Prairie Resort (Eagle Adventures, LLC). CLARNO: Move approval. LUKE: Second. VOTE: CLARNO: Aye. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 17. Before the Board was Consideration of Approval of Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $57,117.56 (two weeks). CLARNO: Move approval, subject to review. LUKE: Second. VOTE: CLARNO: Aye. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 18. Before the Board was Consideration of Signature of Letters, Changing the Terms of Appointments to the Extension/4-11 County Service District: John Ahrens, through June 30, 2006 Bill Kuhn, through June 30, 2007 Genevieve Waldron, through June 30, 2007 Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 14 of 16 Pages CLARNO: Move approval. LUKE: Second. VOTE: CLARNO: Aye. LUKE: Chair votes yes. 19. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $2,200.65 (two weeks). CLARNO: Move approval, subject to review. LUKE: Second. VOTE: CLARNO: Aye. LUKE: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 20. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $2,417,428.45 (two weeks). CLARNO: Move approval, subject to review. LUKE: Second. VOTE: CLARNO: Aye. LUKE: Chair votes yes. 21. ADDITIONS TO THE AGENDA None were offered. Being no further items to come before the Board, the meeting adjourned at 1: 00 p. m. Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 15 of 16 Pages DATED this 25th Day of January 2006 for the Desschutes County Board of Commissioners. 4s R. Luke, ATTEST: Recording Secretary Attachments Exhibit A: Sign-in sheet (1 page) Bev larno, Vice Chair Michael M. Daly, Commissioner Exhibit B: CDD opening statement regarding the Mees appeal (3 pages) Exhibit C: CDD staff report regarding the Mees appeal (2 pages) Exhibit D: John Round's resume, regarding the Mees appeal (1 page) Exhibit E: Documents provided by Paul Dewey regarding the Mees appeal (22 pages) Exhibit F: A letter dated January 24, 2006 from Attorney Douglas DuPriest regarding the 4-R Equipment appeal (25 pages) Exhibit G: A statement submitted by Janet Nash regarding the 4-R Equipment appeal (9 pages) Exhibit H: A statement submitted by Tammy Walker for Clay Walker regarding the 4-R Equipment appeal (4 pages) Exhibit I: A statement submitted by Tammy Walker regarding the 4-R Equipment appeal (7 pages) Minutes of Board of Commissioners' Meeting Wednesday, January 25, 2006 Page 16 of 16 Pages 1 0 H s _N G c 65 N N i .a 'a m E X m U L ~ 0 0 s ~ a m m N ~ Y N N L'Z) ~ S ~ P' I VI ' J O k N y V Ex hibit z U C U N N O C N PRELIMINARY STATEMENT IN APPEALS BEFORE THE BOARD 1. INTRODUCTION A. This is a de novo hearing on an appeal of the Deschutes County Hearings Officer's decision denying a storage shed located west of Bend in the F1 Zone. File numbers: A-05-12 (AD-05-4 & A-05-3) B. In the application, the applicant seeks approval of a storage shed on a 269-acre parcel accessory to forest operations on the parcel. 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 and 2 of the Hearings Officer's decision dated September 30, 2005 and provided in the information packets near the door. C. Testimony and evidence at this hearing must be directed toward the criteria set forth in the decision of the Hearings Officer report, the staff report as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes applies to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the proposed conditions of approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. Page 1 of 3-Chair's Opening Statement for Land Use Hearings File: A-05-12 (AD-05-4 & A-05-3)Date of Hearing: 1/25/05 Exhibit P Page r of 3 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 testimony and evidence presented at this hearing. IV. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the appeal will then be given a chance to testify and present evidence. When all other proponents have testified, opponents to the appeal will then be given a chance to testify and present evidence. 4. After both proponents and opponents have testified, the applicants will be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. B. Cross-examination of witnesses will not be allowed. A witness who wishes, during that witness' testimony, however, to ask a question of a previous witness may direct the question to the Chair. If a person has already testified but wishes to ask a question of a subsequent witness, that person may also direct the question to the Chair after all other witnesses have testified but prior to the proponent's rebuttal. The Page 2 of 3-Chair's Opening Statement for Land Use Hearings File: A-05-12 (AD-05-4 & A-05-3)Date of Hearing: 1/25/05 Exhibit 6 Page of 5 Chair is free to decide whether or not to ask such questions of the witness. C. Continuances 1. The grant of a continuance or record extension shall be at the discretion of the Board. V. PRE-HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS 1. 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. 2. Does any party wish to challenge any Commissioner based on ex- parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) Page 3 of 3-Chair's Opening Statement for Land Use Hearings File: A-05-12 (AD-05-4 & A-05-3)Date of Hearing: 1/25/05 Exhibit Page 3 of ) Appellant: Dieter Mees LOCATION: The subject property has an assigned address of 18650 Bull Springs Road, Bend. It is identified on County Assessor's Map 17-11 as tax lot 2724. SITE DESCRIPTION: The subject parcel is approximately 269.50 acres in size. The proposed building site is in an existing clearing surrounded by a sparse to moderate cover of a mixture of lodgepole and ponderosa pine trees of varying size and other native ground cover. The topography is level in the area of the proposed building site with elevated topography to the east and west. There is currently a residence (approved through CU-01-28 as a Large Tract Dwelling) under construction and storage shed (the subject of this hearing) on the subject property. SURROUNDING USES: The property is surrounded by privately owned parcels zoned forest use (F-1/F-2) and range in size from approximately 40 to 479 acres. These parcels are currently vacant or developed with single-family dwellings. ZONING: The subject property is zoned F-1, Forest Use, and is designated as Forest on the Deschutes County Comprehensive Plan. The property is also within the Wildlife Area and Surface Mining Impact Area Combining zones. PROPOSAL: The applicant proposes to construct a 50 ft. by 100 ft. metal storage shed to store forest related equipment. The equipment will be used to conduct forest management activities on the subject parcel, in accordance with a forest stewardship plan for the property. Equipment to be housed in the building include: chain saws, a log skidder and/or tractor, a pick up with a plow, a slip-on tank for fire suppression, and equipment necessary for road maintenance. The applicant also proposes to use a portion of the structure in the future to grow tree seedlings. HISTORY: The applicant, Dieter Mees filed for a land use permit addressing fire siting standards and fire safety design standards for roads for an accessory structure on a parcel in the Forest Use (F-1) zone. On May 3, 2005, the planning director issued a decision approving the proposed structure and the driveway leading to it. Appellant filed a timely appeal of the decision on May 16, 2005. The applicant applied for an Agricultural Building Exemption (AG-05-55) on May 17, 2005. The application was referred to the Hearings Officer and heard on June 28th, 2005. The Hearings Officer issued a decision denying the application on September 30, 2005. A timely appeal was filed by Mr. Mees on October 11, 2005. Exhibit Page I of The proposed structure is already on the property and was constructed without land use approval, building permit, or Agricultural Building exemption. A code enforcement case (C-05-125, June 29, 2005) was initiated in response to this violation to ensure compliance. STAFF DISCUSSION: Staff would like to provide the following comment in this matter. "Accessory use or accessory structure" means a use or structure incidental and subordinate to the main use of the property, and located on the same lot as the main use. For example, a garage or storage shed is accessory to a residence in a residential zone and a barn is accessory to a farm in a farm use zone. In this case, the structure was proposed as accessory to an Oregon Forest Stewardship Plan (for forest operations and forest practices) approved for the subject property. The language and uses allowed in the F1 zone come from state law and Oregon Administrative Rule (OAR). The Hearings Officer concluded (A-05-3) that, under the Deschutes County Code and state law, accessory buildings to forest operations are limited to temporary structures. Previously, the planning director issued a decision approving the structure under AD-05-4. Because requests for permanent structures in association with forest practices are relatively rare, Staff applied principals developed in other zones to approve an accessory use when the primary use (Oregon Forest Stewardship Plan) had been established. Because this structure has become controversial, the relevant language of the code and state law are now being subjected to a higher level of scrutiny. Ultimately, staff believes there are two legal questions: 1) Is the proposed permanent structure, accessory to a forest practice, allowable under state statute? 2) Are any permanent structures allowed accessory to forest practices under state statute? Exhibit Page- 2-- of John A. Rounds. Consulting Forester 8301 N. Mill Creek Rd. Prineville, OR 97754 (541) 447-1342 FAX (541) 447-2898 QUALIFICATIONS of John A. Rounds, Consulting Forester EDUCATION: University of Montana, BS in Forestry, 3une of 1956 EXPERIENCE: 1951-52 Employed in small sawmill in Northern California. 1953-55 Summers employed by Flathead National Forest. 1956-58 U.S. Army 1958-74 Anaconda Forest Product, Bonner, Montana (succeeded in 1973 by Champion International Corp.) 1958-60 Logging Engineer. 1960-62 Inventory & Research Forester. 1962-74 District Forester with all management responsibility for 250,000 acres of.company timberland. In 1970 assumed the added responsibilities for all Easement & Land Exchange preparations for 650,000 ,acres. In 1973: also had responsibility for timber procurement for Helena, Montana sawmill. 1974-81 Brooks Scanlon, Inc. Bend, Oregon. Employed as Timber Supply Manager with responsibility for all timber and log appraisal as well as management of 250,000 acres of Company Timberland. 1981-Present Independent Consulting Forester. Have dealt in all phases of forestry and land management for numerous clients. Own and publish the NORTHWEST TIMBER REVIEW (since 1986 a bi-monthly publication monitoring timber sale activity in the Pacific Northwest. Own & Manage 818 acres of timberland in Crook County. MEMBERSHIPS (past & present) Society of American Foresters American Forestry Association American Pulpwood Association Keep Montana Green (Vice President 1972-74) Oregon Tree Farm System (Board of Directors since 1998) Emergency Fire Cost Comm. Of The Board of Forestry (1994 - present). Oregon Small Woodlands Association President 1998-2000 Exhibit D Page / of / Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 deweynabendcable.com January 25, 2006 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 Re: A-05-12; Appeal of Hearings Officer's Denial of AD-05-4 and A-05-3; Mees Application for a Permanent Structure in the Forest Zone Dear Commissioners: On behalf of the Sisters Forest Planning Committee ("SFPC"), I am writing in opposition to the Applicant's appeal of the Hearings Officer's decision denying the application to build a permanent structure in the County's Forest (F-1) Zone. Introduction.- The issues involved in this application for a permanent facility for logging equipment storage in the F-1 Zone involve fundamental principles of Oregon's land use law: 1) that uses allowed in zones are only those provided in the zoning code and 2) that a county code may not provide for more liberal development criteria than allowed by state law. Also involved here is a pattern and practice of the County approving so-called accessory structures in its forest zones without satisfying basic requirements of the County Code and state law. I am attaching excerpts from two other files where such accessory structures were recently inappropriately approved by the County Development Department. Background of Application. A large tract dwelling was approved for this parcel by the County in 2001. An application for a height variance was submitted but then withdrawn after opposition from the SFPC. (See attached papers.) A building permit was issued in 2005 and the house is currently under construction. The Applicant seeks approval for a permanent storage facility as an "outright use," claiming it is "accessory" to a forest practice or "ongoing forest operations" under DCC 18.36.020(A). The County Development Department approved the proposed structure, the SFPC appealed the decision and the Hearings Officer denied the structure.1 1 The Hearings Officer mentioned in her decision that no party had raised the possibility of the structure qualifying as a farm use under ORS 215.203(2)(b)(n. That statute defining farm use, however, specifically excludes the use of land subject to ORS Chapter 321 which is forest land (except for Christmas trees and hardwoods for paper). Subsection Q) concerns hardwoods, not the ponderosa pine forest which is present on the subject property. Exhibit Page of 2 2 Board of County Commissioners January 25, 2006 Page 2 Summary of Argument. The denial of the application for this proposed permanent storage structure in the forest zone should be upheld for several reasons: 1. The County Code does not allow permanent storage structures in the forest zone. 2. State law allows such structures only as conditional uses. 3. The Applicant cannot go around these provisions of local and state law by calling the structure an "accessory" use. 4. Even if the structure could be considered an accessory use, any such use must be accessory to the principal use which here is not forest practices but residential use. 5. Even if the structure were approved, the Applicant has not satisfied the site approval criteria. A. This is not an allowed use in the County's forest zone. The Oregon Administrative Rules have detailed provisions on what is allowed to occur on forest lands in the state. Along with 17-21 outright uses, the OARs provide for 25 conditional uses. An example of an outright use is temporary structures during a forest operation. OAR 660-006- 0025(2)(b). An example of a conditional use is permanent equipment storage. OAR 660-006- 0025(4)(b). See the attached OARs. When Deschutes County drafted its Code provisions to address forest uses it incorporated most, but not all, of the OARS. (See the attached DCC excerpts.) One use the County decided to omit was: "(b) Permanent logging equipment repair and storage." B. State law allows this proposed use only as a conditional use, not an outright permitted use. Though the County Code does not allow for permanent structures and though the state allows them only as conditional uses, the Applicant seeks a permanent structure as an outright use, claiming that DCC 18.36.020 provides for "forest operations and forest practices" and their "accessory uses" and that the proposed structure would be accessory to the outright use of forest operations. This analysis ignores the fact that state law clearly provides that this permanent facility would be a conditional use. Furthermore, the scope of an "accessory" use surely does not extend to allowing a structure that has been specifically omitted from the Code and it would surely not allow as an outright use something that is specifically allowed only as a conditional use under state law.2 C. This is not an accessory use. 2 The operative word in the OARS is not "accessory" uses but "auxiliary" which is defined in DCC 18.04.020 and specifically refers only to "temporary" structures in the forest. See Supplemental Memo of the SFPC 8/26/05, pp. 1-2. Exhibit Page of ~2 Board of County Commissioners January 25, 2006 Page 3 Even if a use could get around substantive county and state rules by being considered "accessory," the structure would still not qualify since it is not accessory to the main use of the property which is the house. The County's Code provides this definition of an accessory use in DCC 18.04.030: "`Accessory use or accessory structure' means a use or structure incidental and subordinate to the main use of the property." The "main use" of the property is obviously the 12,000 plus square feet, multi-million dollar mansion, "Villa Eva," and its grounds which have far more value than the timber. See the attached excerpts from the plans for the house. D. Other issues. (1) Site Criteria. The Hearings Officer erred in finding that the Applicant had satisfied the site approval criteria where the expert had relied on hearsay statements of the owner of the property as to why he placed the structure where he did. Note that the expert here was not employed to identify the best location for the property but only to try to rationalize, after the fact, the owner's choice. See the Supplemental Memorandum of the SFPC, pp. 2-3. (2) No Transcript. Contrary to the Deschutes County Code, the Applicant has apparently failed to supply a transcript of the hearing before the Hearings Officer. I inquired about the transcript with County staff but received no response. Conclusion. The SFPC respectfully request the Board to deny this application for a permanent logging equipment storage facility. Very truly yours, PAUL DEWEY PD:ao Attachments cc: Client Will Groves SFpCWacsC n nissioeea hr Exhibit Page of Chapter 660 Land Conservation and Development Department (1) Definitions contained in ORS 197.015 and the Statewide Planning Goals. (2) "Cubic Foot Per Acre" means the average annual increase in cubic foot volume of wood fiber per acre for fully stocked stands at the culmination of mean annual increment as reported by the USDA Natural Resource Conservation Service (NRCS). Where NRCS data are not available or are shown to be inaccurate, an alternative method for determining productivity may be used An alternative method must provide equivalent data and be approved by the Department of Forestry. (3) "Cubic Foot Per Tract Per Year" means the average annual increase in cubic foot volume of wood fiber per tract for fully stocked stands at the culmination of mean annual increment as reported by the USDA Natural Resource Conservation Service. Where NRCS data are not available or are shown to be inaccurate, an alternative method for determining productivity may be used. An alternative method must provide equivalent data and be approved by the Department of Forestry. (4) "Date of Creation and Existence." When a lot, parcel or tract is reconfigured pursuant to applicable law after November 4, 1993, the effect of which is to qualify a lot, parcel or tract for the siting of a dwelling, the date of the reconfiguration is the date of creation or exis- tence. Reconfigured means any change in the boundary of the lot, par- cel, or tract (5) "Eastern Oregon" means thou portion of the state lying east of a line beginning at the intersection of the northern boundary of the State of Oregon and the western boundary of Wasco County, then south along the western boundaries of the counties of Wasco, Jeffer- son, Deschutes and Klamath to the southern boundary of the State of Oregon. (6) "Forest Operation" means any commercial activity relating to the growing or harvesting or any forest tree species as defined in ORS 527.620(6). (7) "Governing Body" means a city council, county board of commissioners, or county court or iWdesignate, including planning director, hearings officer, planning commission or as provided by Ore- gon law. (8) "Western Oregon" means that portion of the state lying west of a line beginning at the intersection of the northern boundary of the State of Oregon and the western boundary of Wasco County, then south along the western boundaries of the counties of Wasco, Jeffer- son, Deschutes and Klamath to the southern boundary of the State of Oregon. (9) "Lot" shall have the meaning set forth in ORS 92.010 and "parcel" shall have the meaning set forth ORS 215.010. StaL AWL: ORS 183, 197.040. 197.230 & 197.245 Stars. Implemented. ORS 197.040. 197.230. 197.245, 215.700. 215.705, 215.720, 215.740, 215.750.215.780 & Ch. 792. 1993 OL Hiss: LCDC 8-1982. f. & of 9.1-82; LCDC 1-1990, f. & cart eL 2-5-90; LCDC 7-1992, E & cert. ef.12-10.92; LCDC 1. 1994, f & cert. cf. 3-1-94; LCDD 2-1998, f. & ten, cf. 6-1-98; LCDD 5-2000, f. & cert. cf. 4.24.00 660-006-0010 Inventory Governing bodies shall include an inventory of "forest lands" as defined by Goal 4 in the comprehensive plan. Lands inventoried as Goal 3 agricultural lands or lands for which an exception to Goal 4 is justified pursuant to ORS 197.732 and taken are not required to be inventoried under this rule. Outside urban growth boundaries, this Inventory shall include a mapping of forest site class. If site informa- tion is not available then an equivalent method of determining forest land suitability must be used. Notwithstanding this rule, governing bodies are not required to reinventory forest lands if such an inventory was acknowledged previously by the Land Conservation and Devel- opment Commission. Star AWL: ORS 183 & 197 Stars, Implemented: ORS 197.040.197.230.197.245,215.70D, 215.705,215.720. 215.740, 215.750.215.780 & Ch. 792, 1993 OL Hut.: LCDC 8-1982. L & cf. 9-1-82; L.CDC 1-1990, f. & cem ef.2-5-90 660-006-0015 plan Designation Outside an Urban Growth Boundary (1) Lands inventoried as forest lands must be designated in the comprehensive plan and implemented with a zone which conserves forest lands consistent with OAR chapter 660, division 6, unless an exception to Goal 4 is taken pursuant to ORS 197.732, the forest lands are mod. inal lands pursuant to ORS 197.247 (1991 Edition), [or] the zoned with an Exclusive Farm Use Zone pursuant to ORS Chapter 215 provided the zone qualifies for special assessment under ORS 308.370, or is an "abandoned mill site" zoned for industrial use as provided for by Or Laws 2003, Ch 688, Section 3. In areas of inter- mingled agricultural and forest lands, an agricultural/forest lands des- ignation may also be appropriate if it provides protection for forest lands consistent with the requirements of OAR chapter 660, division 6. The plan shall describe the zoning designation(s) applied to forest lands and its purpose and shall contain criteria which clearly indicate where the zone(s) will be applied. (2) When lands satisfy the definition requirements of both agri- cultural land and forest land, an exception is not required to show why one resource designation is chosen over another. The plan need only document the factors that were used to select an agricultural, forest, agricultural/form or other appropriate designation. Stat. Auth.: ORS 183. 197.040, 197.230 & 197.245 Stats. Implemented: ORS 197.040, 197.230, 197.245, 215.700, 215.705, 215.720. 215.740, 215.750.215.780 & Ch. 792, 1993 OL Mist.: LCDC 8-1982• f. & cf. 9-1-82; LCDC 1-1990, f & cert. cf. 2-5-90; LCDC 7-1992. f. & cert. cf. 12-10.92; LCDC 1-1994, f. & cert. ef. 34-94; LCDD 3-2004. E & cert. ef. 5-7-04 660-006-0020 Plan Designation Within an Urban Growth Boundary Goal 4 does not apply within urban growth boundaries and there- fore, the designation of forest lands is not required. Star Auth_: ORS 183 & 197 Stars. Implemented: ORS 197.040,197.230.197-145 & Ch. 792.1993 OL Him: LCDC & 1982, L & cf. 9-1-82; LCDC 1-1990. f & art. cf. 2-5-90 660-006-0025 Uses Authorized in Forest Zones (1) Goal 4 requires that forest land be conserved. Forest lands are conserved by adopting and applying comprehensive plan provisions and zoning regulations consistent with the goals and this rule. In addi- tion to forest practices and operations and uses auxiliary to forest prac- tices, as set forth in ORS 527.722, the Commission has determined that five general types of uses, as set forth in the goal, may be allowed in the forest environment, subject to the standards in the goal and in this rule. These general types of uses are: (a) Uses related to and in support of forest operations; (b) Uses to conserve soil, air and water quality and to provide for fish and wildlife resources, agriculture and recreational opportunities appropriate in a forest environment; (c) Locationally dependent uses, such as communication towers, mineral and aggregate resources, etc.; (d) Dwellings authorized by ORS 215.720 to 215.750; and (e) Other dwellings under prescribed conditions. - (2) The following uses pursuant to the Forest Practices Act (ORS Chapter 527) and Goal 4 shall be allowed in forest zones: (a) Forest operations or forest practices including, but not limited to, reforestation of forest land, road construction and maintenance. har- vesting of a forest tree species, application of chemicals, and disposal of slash; (b) Temporarv on-site structures which are auxiliary to and used during the term of a particular forest operation; (c) Physical alterations to the land auxiliary to forest practices including, but not limited to, those made for purposes of exploration, mining, commercial gravel extraction and processing, landfills, dams, reservoirs, road construction or recreational facilities; and (d) For the purposes of section (2) of this rule "auxiliary" means a use or alteration of a structure or land which provides help or is directly associated with the conduct of a particular forest practice. An auxiliary structure is located on site, temporary in nature, and is not designed to remain for the forest's entire growth cycle from planting to harvesting. An auxiliary use is removed when a particular forest practice has concluded. (3) The following uses may be allowed outright on forest lands: (a) Uses to conserve soil, air and water quality and to provide for wildlife and fisheries resources; (b) Farm use as defined in ORS 215.203; (c) Local distribution lines (e.g., electric, telephone, natural gas) and accessory equipment (e.g., electric distribution transformers, poles, meter cabinets, terminal boxes, pedestals), or equipment which provides service hookups, including water service hookups; (d) Temporary portable facility for the primary processing of for- est products; ...,t.•. D.d.r f'mm~it,.rin.. Exhibit of Page Chapter 660 Land Conservation and Development Department (e) Exploration for mineral and aggregate resources as defined in ORS Chapter 517; (f) Private hunting and fishing operations without any lodging accommodations; (g) Towers and fire stations for forest fire protection; (h) Widening of roads within existing rights-0f--way in confor- mance with the transportation element of acknowledged comprehen- sive plans and public road and highway projects as described in ORS 215.213(1)(m) through (p) and 215.283(l)(k) through (n); (i) Water intake facilities, canals and distribution lines for farm irrigation and ponds; 6) Caretaker residences for public parks and public fish hatcheries; (k) Uninhabitable structures accessory to fish and wildlife enhancement; p) Temporary forest labor camps; (m) Exploration for and production of geothermal, gas, oil, and other associated hydrocarbons, including the placement and operation of compressors, separators and other customary production equipment for an individual well adjacent to the well head; (n) Destination resorts reviewed and approved pursuant to ORS 197.435 to 197.465 and Goal 8; (o) Disposal site for solid waste that has been ordered established by the Oregon. Environmental Quality Commission under ORS 459.049, together with the equipment, facilities or buildings necessary for its operation; and (p) Alteration, restoration or replacement of a lawfully estab- lished dwelling that: (A) Has intact exterior walls and roof structures; (B) Has indoor plumbing consisting of a kitchen sink, toilet and bathing facilities connected to a sanitary waste disposal system; (C) Has interior wiring for interior lights; (D) Has a heating system; and (E) In the case of replacement, is removed, demolished or con- verted to an allowable nonresidential use within three months of the completion of the replacement dwelling. (q) An outdoor mass gathering as defined in ORS 433.735 or other gathering of fewer than 3,000 persons that is not anticipated to continue for more than 120 hours in any three-month period is not a "land use decision" as defined in ORS 197.015(10) or subject to review under this Division. G64d4,60-N1 (4) The following uses may be allowed on forest lands subject U%41 to the review standards in section (5) of this rule: (a) Permanent facility for the primary processing of forest prod- ucts; (b) Permanent logging equipment repair and storage; (e) Log scaling and weigh stations; (d) Disposal site for solid waste approved by the governing body of a city or county or both and for which the Oregon Department of Environmental Quality has granted a permit under ORS 459.245, together with equipment, facilities or buildings necessary for its oper- ation; (e)(A) Private parks and campgrounds. Campgrounds in private parks shall only be those allowed by this subsection. Except on a lot or parcel contiguous to a lake or reservoir, campgrounds shall not be allowed within three miles of in urban growth boundary unless an exception is approved pursuant to ORS 197.732 and OAR chapter 660, division 004. A campground is an area devoted to overnight temporary use for vacation, recreational or emergency purposes, but not for res- idential purposes and is established on a site or is contiguous to lands with a park or other outdoor natural amenity that is accessible for recreational use by the occupants of the campground. A campground shall be designed and integrated into the rural agricultural and forest environment in a manner that protects the natural amenities of the site and provides buffers of existing native trees and vegetation or other natural features between campsites. Campsites may be occupied by a tent, travel trailer or recreational vehicle. Separate sewer, water orelec- tric service hook-ups shall not be provided to individual camp sites. Campgrounds authorized by this rule shall not include intensively developed recreational uses such as swimming pools, tennis courts, retail stores or gas stations. Overnight temporary use in the same campground by a camper or camper's vehicle shall not exceed a total of 30 days during any consecutive 6 month period. (B) Campsites may be occupied by a tent, travel trailer, yurt or recreational vehicle. Separate sewer, water or electric service hook- ups shall not be provided to individual camp sites except that electrical service may be provided to yurts allowed for by paragraph (4)(e)(C) of this rule. (C) Subject to the appro%al of the county governing body or its designee, a private campgrouna may provide yurts for overnight camp- ing. No more than one-third ors maximum of 10 campsites, whichever is smaller, may include a yurt. 'rhe yurt shall be located on the ground or on a wood floor with no permanent foundation. Upon request of a county governing body, the Commission may provide by rule for an increase in the number of yurts allowed on all or a portion of the camp- grounds in a county if the Commission determines that the increase will comply with the standards described in ORS 215.296(1). As used in this rule, "yurt" means a round, domed shelter of cloth or canvas on a collapsible frame with no plumbing, sewage disposal hook-up or internal cooking appliance. (f) Public parks including only those uses specified under OAR 660-034-0035 or 660-034-0040, whichever is applicable. (g) Mining and processing of oil, gas, or other subsurface resources, as defined in ORS Chapter 520, and not otherwise permitted under subsection (3)(m) of this rule (e.g., compressors, separators and storage serving multiple wells), and mining and processing of aggre- gate and mineral resources as defined in ORS Chapter 517; (h) Television, microwave and radio communication facilities and transmission towers; (i) Fire stations for rural fire protection; 0) Utility facilities for the purpose of generating power. A power generation facility shall not preclude more than ten acres from use as a commercial forest operation unless an exception is taken pursuant to OAR chapter 660, division 004; (k) Aids to navigation and aviation; (1) Water intake facilities, related treatment facilities, pumping stations, and distribution lines; (m) Reservoirs and water impoundments; (n) Firearms training facility; (o) Cemeteries; (p) Private seasonal accommodations for fee hunting operations may be allowed subject to section (5) of this rule, OAR 660-006.0029, and 6604)06-0035 and the following requirements: (A) Accommodations are limited to no more than 15 guest rooms as that term is defined in the Oregon Structural Speciality Code; (B) Only minor incidental and accessory retail sales are permitted; (C) Accommodations are occupied temporarily for the purpose of hunting during game bird and big game hunting seasons authorized by the Oregon Fish and Wildlife Commission; and (D) A governing body. may impose other appropriate conditions. (q) New electric transmission lines with right of way widths of up to 100 feet as specified in ORS 772.210. New distribution lines (e.g., gas, oil, geothermal, telephone, fiber optic cable) with rights-of- way 50 feet or less in width; (r) Temporary asphalt and concrete batch plants as accessory uses to specific highway projects; (s) Home occupations as defined in ORS 215.448; (t) A manufactured dwelling or recreational vehicle, or the tem- porary residential use of an existing building, in conjunction with an existing dwelling as a temporary use for the term of a hardship suffered by the existing resident or a relative as defined in ORS 215.213 and 215.283. The manufactured dwelling shall use the same subsurface sewage disposal system used by the existing dwelling, if that disposal system is adequate to accommodate the additional dwelling. If the manufactured dwelling will use a public sanitary sewer system, such condition will not be required. Within three months of the end of the hardship, the manufactured dwelling or recreational vehicle shall be removed or demolished or, in the case of an existing building, the building shall be removed, demolished or returned to an allowed non- residential use. A temporary re iidence approved under this subsection is not eligible for replacement under subsection (3)(p) of this rule. Governing bodies every two years shall review the permit authorizing such mobile homes. When the hardships end, governing bodies or their designate shall require the removal of such mobile homes. Oregon Department of Environmental Quality review and removal require- ments also apply to such mobile homes. As used in this section, "hard- ship" means a medical hardship or hardship for the care of an aged or infirm person or persons; (u) Expansion of existing airports; Orvgun Administrative Rules Compilation Exhibit Page _-,45 of Chapter 660 Land Conservation and Development Department (v) Public road and highway projects as described in ORS 215113(2)(q) through (s) and(] 0) and 215.283(2xp) through (r) and (3); (w) Private accommodations for fishing occupied on a temporary basis may be allowed subject to section (5) of this rule, OAR 600-060- 0029, and 6604006-0035 and the following requirements: (A) Accommodations limited to no more than 15 guest rooms as that term is defined in the Oregon Structural Speciality Code; (B) Only minor incidental and accessory retail sales are permitted; (C) Accommodations occupied temporarily for the purpose of fishing during fishing seasons authorized by the Oregon Fish and Wildlife Commission; (D) Accommodations must be located within 1/4 mile of fish bearing Class I waters; and (E) A governing body may impose other appropriate conditions. (x) Forest management research and experimentation facilities as defined by ORS 526.215 or where accessory to forest operations. (y) Any gathering subject to review by a county planning com- mission under the provisions of ORS 433.763. These gatherings are those of more than 3,000 persons which continue or can reasonably be expected to continue for more than 120 hours within any three- month period and any part of which is held in open spaces. (5) A use authorized by section (4) of this rule may be allowed provided the following requirements or their equivalent are met. These requirements are designed to make the use compatible with forest operations and agriculture and to conserve values found on forest lands: (a) The proposed use will not force a significant change in, or sig- nificantly increase the cost of, accepted fanning or forest practices on agriculture or forest lands; (b) The proposed use will not significantly increase fire hazard or significantly increase fire suppression costs or significantly increase risks to fire suppression personnel; and (c) A written statement recorded with the deed or written contract with the county or its equivalent is obtained from the land owner which recognizes the rights of adjacent and nearby land owners to conduct forest operations consistent with the Forest Practices Act and Rules for uses authorized in subsections (4)(e), (m), (s), (t) and (w) of this rule. (6) Nothing in this rule relieves governing bodies from comply- ing with other requirement contained in the comprehensive plan or implementing ordinances such as the requirements addressing other resource values (e.g., Goal 5) which exist on forest lands. [Publications: Publications referenced are available from the agency.] Star Auth.: ORS 183, 197.040, 197.230 & 197.245 Stats. lmpkmented: ORS 197.040,1971X 197.245, 215.700.215.705, 215.720, 215.740, 215.750, 215.780 & Ch. 792. 1993 OL NIsL: LCDC 1-1990, f. & cert eL 2-5-90; LCDC 7-1992, f & cet eL 12-10-92; LCDC I-1994, f. & art. et 3-1-94; LCDC 8-1995, L & cet cf. 629-95; ; LCDC 3.1996, L & cert. cf. 12-23-96; LCDD 2-1998. E & cem eL 61-98; LCDD 5-2000, f. & cat. ef.4-24-00; LCDD 1-2002, f & cerL cf. 5-22-02; LCDD 3-2004, f. At am cf. 5-7-04 660-006-0026 New Land Division Requirements in Forest Zones (1) Governing bodies shall legislatively amend their land division standards to incorporate one or more of the following parcel sizes. Under these provisions, a governing body may not determine mini- mum parcel sizes for forest land on a case-by-case basis: (a) An 80-acre or larger minimum parcel size; or (b) One or more numeric minimum parcel sizes less than 80 acres provided that each parcel size is large enough to ensure: (A) The opportunity for economically efficient forest operations typically occurring in the area; and (B) The opportunity for the continuous growing and harvesting of forest tree species; and (C) The conservation of other values found on forest lands as described in Goal 4; (D) That parcel meet the requirements of ORS 527.630. (2) New land divisions less than the parcel size in section (1) of this rule may be approved for any of the following circumstances: (a) For the uses listed in OAR 660-060-0025(3)(m) through (o) and (4)(a) through (o) provided that such uses have been approved pur- suant l0 OAR 660-060-0025(5) and the parcel created from the divi- 21On Is the minimum size necessary for the use. (b) For the establishment of a parcel for a dwelling on land zoned for forest use, subject to the following requirements: (A) The parcel established shall not be larger than five acres, except as necessary to recognize physical factors such as roads or streams, in which case the parcel shall not be larger than 10 acres; (B) The dwelling existed prior to June 1, 1995; (C)(i) The remaining parcel, not containing the dwelling, meets the minimum land division standards of the zone; or (ii) The remaining parcel, not containing the dwelling, is consol- idated with another parcel, and together the parcels meet the minimum land division standards of the zone. (D) The remaining parcel, not containing the dwelling, is not enti- tled to a dwelling unless subsequently authorized by law or goal. (c) To allow a division of forest land to facilitate a forest practice as defined in ORS 527.620 that results in a parcel that does not meet the minimum area requirements of subsection (1)(a) or (b). Approvals shall be based on findings which demonstrate that there are unique property specific characteristics present in the proposed parcel that require an amount of land smaller than the minimum area requirements of subsections (1)(a) or (b) of this rule in order to conduct the forest practice. Parcels created pursuant to this subsection: (A) Shall not be eligible for siting of new dwelling; (B) Shall not serve as the justification for the siting of a future dwelling on other lots or parcels; (C) Shall not result in a parcel of less than 35 acres, except: (i) Where the purpose of the land division is to facilitate an exchange of lands involving a governmental agency; or (ii) Where the purpose of the land division is to allow transactions in which at least one participant is a person with a cumulative own- ership of at least 2,000 acres of forest land; and (D) If associated with the creation of a parcel where a dwelling is involved, shall not result in a parcel less than the minimum lot or parcel size of the zone or the minimum size required for dwellings approved under OAR 660-006-0027(lxe). (d) To allow the division of a lot or parcel as provided for by OAR 660-006-0055(2)(d), (3), (4) and (6). (3)(a) An applicant for the creation of a parcel pursuant to sub- section (2)(b) of this section shall provide evidence that a restriction on the remaining parcel, not containing the dwelling, has been record- ed with the county clerk of the county where the property is located. The restriction shall allow no dwellings unless authorized by law or goal on land zoned for forest use except as permitted under subsection (2) of this section. (b) A restriction imposed under this subsection shall be irrevo- cable unless a statement of release is signed by the county planning director of the county where the property is located indicating that the comprehensive plan or land use regulations applicable to the property have been changed in such a manner that the parcel is no longer subject to statewide planning goals pertaining to agricultural land or forest land. (e) The county planning director shall maintain a record of parcels that do not qualify for the siting of a new dwelling under restrictions imposed by this subsection. The record shall be readily available to the public. (4) A landowner allowed a land division under subsection (2) of this section shall sign a statement that shall be recorded with the county clerk of the county in which the property is located, declaring that the landowner will not in the future complain about accepted farming or forest practices on nearby lands devoted to farm or forest use. Stat. Auth.: ORS 183, 197.040, 197.230 & 197.245 Stats. Implemented: ORS 197.040, 197.230, 197.245,215.700.215.705.215.r-O. 215.740, 215.750, 215.780 & Ch. 792. 1993 OL Hist.: LCDC I-1990. f & art. of 2-5-90: LCDC 7 1992 C. & ast cf. 12-10.92; LCDC 1-1994, f & art. of 3-1-94; LCDC 3-1996, f & cen ef. 12-23.96; LCDD 2-199& f. & att cf. 61-98; LCDD 1-2002, f. & cat et 5-22-02 660-006-0027 Dwellings in Forest Zones (1) Dwellings authorized by OAR 6604006-0025(I)(d) are: (a) A dwelling may be allowed if. (A) The lot or parcel on which the dwelling will be sited was law- fully created and was acquired and owned continuously by the present owner as defined in subsection (b) of this section: (i) Since prior to January 1, 1985; or (ii) By devise or by intestate succession from a person who acquired and had owned continuously the lot or parcel since prior to January I, 1985. (B) The tract on which the dwelling will be sited does not include a dwelling; Exhibit F_ Page _LV- of r) e? Chapter 1836. FOREST USE ZONE - F-1 18.36.010. Purpose. 18.36.020. Uses permitted outright. 1836.030. Conditional uses permitted. 18.36.040. Limitations on conditional uses. 1836.050. Standards for single-family dwellings. 18.36.060. Siting of dwellings and structures. 18.36.070. Fire siting standards for dwellings and structures. 18.36.080. Fire safety design standards for roads. 18.36.085. Stocking requirement. 18.36.090. Dimensional standards. 18.36.100. Yards and setbacks. 1836.110. Stream setbacks. 18.36.120. State law controls. 1836.130. Rimrock setbacks. 1836.140. Restrictive covenants. 1836.010. Purpose. The purpose of the Forest Use Zone is to conserve forest lands. (Ord. 92-025 § 2,1992; Ord. 91-020 § 1, 1991) 18.36.020. Uses permitted outright. The following uses and their accessory uses are permitted outright, subject to applicable siting criteria set forth in DCC 18.36 and any other applicable provisions of DCC Title 18. A. Forest operations or forest practices including, but not limited to, reforestation of forest land, road construction and maintenance, harvesting of a forest tree species, application of chemicals and disposal of slash. B. Temporary on-site structures which are auxiliary to and used during the term of a particular forest operation. As used here, temporary structures are those which are portable and/or not placed on a permanent foundation, and which are removed at the conclusion of the forest operation requiring its use. For the purposes of this section, including DCC 18.36.020(B) and (C) "auxiliary" means a use or alteration of a structure or land which provides help or is directly associated with the conduct of a particular forest practice. An auxiliary structure is located on site, temporary in nature, and is not designed to remain for the forest's entire growth cycle from planting to harvesting. An auxiliary use is removed when a particular forest practice has concluded. C. Physical alterations to commercial forest land auxiliary to forest practices including, but not limited to, those made for purposes of exploration, mining, commercial gravel extraction and processing, landfills, -dams, reservoirs, road construction or recreational facilities. Gravel extraction and processing not covered by DCC 18.36.020 is governed by DCC 18.52. D. Uses to conserve soil, air and water quality and to provide for wildlife and fisheries resources. E. Farm use as defined in ORS 215.203. F. Local distribution lines (e.g., electric, telephone, natural gas, etc.) and accessory equipment (e.g., electric distribution transformers, poles, meter cabinets, terminal boxes, pedestals), or equipment which provides service hookups, including water service hookups. G. Temporary portable facility for the primary processing of forest products. The facility shall not be placed on a permanent foundation and shall be removed at the conclusion of the forest operation requiring its use. H. Exploration for mineral and aggregate resources as defined in ORS 517. 1. Towers and fire stations for forest fire protection. J. Widening of roads within existing rights of way in conformance with the transportation element of the comprehensive plan including public road and highway projects as described in ORS 215.283(l)(k) through (n). K. Water intake facilities, canals and distribution lines for farm irrigation and ponds. Chapter 18.36 1 (09/2004) Exhibit Page of L. Uninhabitable structures accessory to fish and wildlife enhancement. M. Alteration, restoration or replacement of a lawfully established dwelling that: 1. Has intact exterior walls and roof structure; 2. Has indoor plumbing consisting of a kitchen sink, toilet and bathing facilities connected to a sanitary waste disposal system; 3. Has interior wiring for interior lights; 4. Has a heating system; and 5. In the case of replacement, is removed, demolished or converted to an allowable use within three months of completion of the replacement dwelling. N. An outdoor mass gathering as defined in ORS 433.735 or other gathering of fewer than 3,000 persons that is not anticipated to continue for more than 120 hours in any three-month period is not a "land use decision" as defined in ORS 197.015(10) or subject to review under OAR 660-006. (Ord. 2003-007 § 1, 2003; Ord. 94-038 § 1, 1994; Ord. 92-025 § 2, 1992; Ord. 91-020 § 1, 1991; Ord. 91-002 § 8, 1991) 18.36.030. Conditional uses permitted. The following uses and their accessory uses may be allowed in the Forest Use Zone, subject to applicable provisions of the Comprehensive Plan, DCC 1836.040 and other applicable sections of DCC Title 18. A. Private hunting and fishing operations without any lodging accommodations. B. Caretaker residences for public parks and fish hatcheries. C. Temporary forest labor camps limited to the duration of the forest operation requiring its use. D. Exploration for and production of geo- thermal, gas, oil and other associated hydrocarbons, including the placement and operation of compressors, separators and other customary production equipment for an individual well adjacent to the well head. E. Log scaling and weigh stations. F. Disposal site for solid waste for which the Department of Environmental Quality has granted a permit under ORS 459.245, together with equipment, facilities or buildings necessary for its operation. G. Private parks and campgrounds. Campgrounds in private parks shall only be those allowed by OAR 660-006-0025. Except on a lot or parcel contiguous to a lake or reservoir, campgrounds shall not be allowed within three miles of an urban growth boundary unless an exception is approved pursuant to ORS 197.732 and OAR Chapter 660, Division 4. For the purpose of DCC 18.36.030 a campground is an area devoted to overnight temporary use for vacation, recreational or emergency purposes, but not for residential purposes. A campground shall be designed and integrated into the rural agricultural and forest environment in a manner that protects the natural amenities of the site and provides buffers of existing native trees and vegetation or other natural features between campsites. A camping site may be occupied by a tent, travel trailer or recreational vehicle. Campgrounds shall not include intensively developed recreational uses such as swimming pools, tennis courts, retail stores or gas stations. Overnight temporary use in the same campground by a camper or camper's vehicle shall not exceed a total of 30 days during any consecutive 6 month period. H. Mining and processing of oil, gas or other subsurface resources, as defined in ORS 520.005, and not otherwise permitted under DCC 18.36.030(D). I. Television, microwave and radio communication facilities and transmission towers. J. Fire stations for rural fire protection. K. Utility facilities for the purpose of generating power. A power generation facility shall not preclude more than 10 acres from use as a commercial forest operation unless an exception is taken pursuant to Oregon Administrative Rules 660, Division 4. Chapter 18.36 2 (09/2004) Exhlbib .-Fl-- Page_ of L. Aids to navigation and aviation. M. Water intake facilities, related treatment facilities, pumping stations and distribution lines. N. Reservoirs and water impoundments. 0. Cemeteries. P. New electric transmission lines with right-of-way widths of up to 100 feet as specified in ORS 772.210. New distribution lines (e.g. electrical, gas, oil, geothermal) with rights of way 50 feet or less in width. Q. Temporary asphalt and concrete batch plants as accessory uses to specific highway projects. R. Type 2 or 3 Home Occupation, subject to DCC 18.116.280. S. Expansion of existing airports. T. Public road and highway projects as described as ORS 215283(2)(p) through (r) and 215.283(3). U. Private accommodations for fishing occupied on a temporary basis subject to other applicable sections of DCC Title 18 and the following requirements: 1. Accommodations are limited to no more than 15 guest rooms as that term is defined in the Oregon Structural Specialty Code; 2. Only minor incidental and accessory retail sales are permitted; 3. Accommodations are occupied temporarily for the purpose of fishing during fishing seasons authorized by the Oregon Fish and Wildlife Commission; and 4. Accommodations must be located within one-quarter mile of fish Type F waters. V. Forest management research and experimentation facilities as defined by ORS 526.215 or where accessory to forest operations. W. Excavation, grading and fill and removal within the bed and banks of a stream or river Chapter 18.36 or in a wetland, subject to DCC 18.120.050 and 18.128.270. X. A manufactured home in conjunction with an existing dwelling as a temporary use for the term of a hardship suffered by the existing resident or a relative as defined in ORS 215283. The use shall be subject to the review criteria in DCC 18.116.090, as well as DCC 18.36.040 and 18.36.060 of this chapter. The manufactured home shall use the same subsurface sewage disposal system used by the existing dwellings if that disposal system is adequate to accommodate the additional dwelling. A temporary residence approved under this subsection is not eligible for replacement under OAR 660-006-025 (3)(p)• Y. Single-family dwellings or manufactured homes as specified in DCC 18.116.070, as pursuant to DCC 18.36.050. Z. Public parks including only those uses specified under OAR 660-034-0035. AA.Private seasonal accommodations for fee hunting operations may be allowed subject to DCC 18.36.050 and the following requirements: 1. Accommodations are limited to no more than 15 guest rooms as that term is defined in the Oregon Structural Specialty Code; 2. Only minor incidental and accessory retail sales are permitted; and 3. Accommodations are occupied temporarily for the purpose of hunting during game bird and big game hunting seasons authorized by the Oregon Fish and Wildlife Commission. BB.Any gathering subject to review by a county planning commission under the provisions of ORS 433.763. These gatherings are those of more than 3,000 persons which continue or can reasonably be expected to continue for more than 120 hours within any three-month period and any part of which is held in open spaces. (Ord. 2004-002 § 5, 2004; Ord. 2000-033 § 1, 2000; Ord. 94-038 1, 1994; Ord. 92-068 § 1, (09/2004) Exhibit F Page of 2- Rozewski & Co.: Page 1 of 1 Classical - Mees Residence A celebration of Classic Italian Rennaissance Architecture. The concept for this home was developed by world renouned Master Artist Kurt Wenner. Rozewski & Co., Designers is accompanying Mr. Wenner in the development of the Construction Documents, design and layout of the site and development of the thousands of cast architectural pieces associated with the interior and exterior design elements. Location: Bend, Oregon Owner: Dieter & Eva Mees Master Artist: Kurt Wenner Designer: Rozewski & Co, Designers, LLC General Contractor: Construction Management Services, Inc. Structural Engineers: Zbinden Carter Enaineerina. Inc. Mechanical Engineers: Silver Sage Engineering Electrical Engineers: Heineken Engineering ROZEWSKI & CO. 37 1/2 NW Irving AVE. Bend, OR 97701 phone. 541.385.3296 fax. 541.389.5388 jim@rcodesigners.com Exhibit Page_ of r2 (2_ V F 1 r t I > 1 b 1 % t I < ~g< as ~ ~ Nk ~s3~ as l~ I d Exhibit Page - k Of _ Q ♦ IRE dg3 0 rill ~--1 J is 01 H N• C~Z .yT tt 3 X XF C7 u3 w 0 2 0 0 w x 0 c o ~ N M dC:l'f ~ it?jr W Was Z w° z@) ~ A z W PIN" F-- 4 s~~~ ~ boa 0000 00 0 H Exhibit F Page_ of :4 m z 0 c~ w a 0 ~ Q z w as ll~ -4 Exhibit F, Page 14 of 2 1 = j , VI j a 1 1 f I y ~ . 1 I ` - / I ; 7 } l JILL-VAV: PIN l A•h- ra Z . fi Exhibit 1~1 Page -L45 - of i I I I _ I \ I I I 1 I - I .----Ti i ~F 1 1 i 1 1 i _i I I I 1 I I Q o~ x= Exhibit Page of 2 I` i FAA: W ;z 0 0 c c cn C Exhibit Page of 9 2 m 019 VILLA EVA P<4: DZEWSKI & Co. S 1 0 N S S S 1R NW MVING AVE. ND. OREGON. 97701 iONE: 5413853296 ,CSMME: 5413895388 ZLLA EVA RESIDENCE FOR FM & EVA MESS r ML SPRINGS WD. OREGON SHEET DESCRIPTION: W: GROUND FLOOR Exhibit - Page_ of ? _ June 16, 2004 Planning Division Deschutes County Community Development Department 117 N. W. Lafayette Ave. Bend, Oregon 97701 Re: AD- Mees Property Dear Sir: We respectfully request and exception to the building height limitations for structures of 35'5" for a residence located at 18650 Bull Springs Rd. Bend, Oregon (15-11-15&22 TL 2724). Following is a narrative addressing the requirements of DCC 18.120.040(C): 1. This structure is not located in a Landscape Management Zone nor does it have an attached hangar or is it in an unincorporated community. 2. The structure is not located within 100 feet of and rimrock as defined in DCC 10.040.030. 3. Consultation with the Bend Rural Fire District determined the proposed height does not exceed the limitations of the fire fighting equipment available. 4. The proposed additional height will not adversely impact scenic views. The residence is located in the center of it 280 ac. forest parcel with 40' to 50' Ponderosa pines surrounding it. It will not be visible to any other residences within an 8 mile radius. See the photo attached of the building site as well as the plot plan. 5. The proposed structure will relate harmoniously to the natural environment. The fagade is very old world in appearance and is intended to "grow" out of the landscape using natural stone near the base in a "battered" or sloping pattern gradually transitioning to more refined cast or cut stone which will have a very aged look. Colors of the exterior will be muted and reflect the surrounding vegetation and soils. Landscaping is planned to be out of native plants and local stone. Please direct any questions or comments to Jim Rozewski (385-3296) or Chuck Newport (549-2077). Thank you for your consideration. 4Ne/ort-4~r ReshExhibit F, Page of 22. November 11, 2004 Matthew Martin Deschutes County Community Development Department 117 N.W. Lafayette Bend, Oregon 97701 Re: AD-04-10/MA-04-4 Dear Matt, The owner of the property at 18650 Bull Springs Rd. Bend and I request that our Land Use Applications AD-04-10 and MA-04-4 be withdrawn. We have redesigned the house submitted under building permit B55661 to keep it within the 30 foot height allowed under DCC Title 18. We request that the filing fees in the amount of $585.00 for AD-04- 10 and $117.00 for MA-04-4 be refunded. Respectfully, Paul Spezza Supervisor CMS Inc. Dieter Mees Property Owner Exhibit Page of B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B*B DESCHUTES COUNTY COMMUNITY DEVELOPMENT UILDING ROUTING SLIP 'ermit: B55661 Date/Time: 01/04/05 04:47PM PORT 232 Area D .ppl date: 06/16/04 Permit date: 12/15/04 Final date: 'tatus: A QS: Permit Tech: JKH Date filed: 06716/04 Team R inked septic permit: JKH Linked B permit: -ob location: 18650 'ommercial name: _ -ubdivision: ,rop serial: 196626 'lass of work : N •uilding type: B ~tories: 2 Bldg BULL SPRINGS RD,BEND (Deschutes Co.) Lot: Block: Twnshp: 17 Range: 11 Section: 0000 Building class: R EPath: 1 Ht: 30.0 Square ft: 12225 No Bedrms: 4 (NOT Sewer) Lot: 2724 snit numbering: se of Bldg: RESIDENCE (Public) Occupancy: R3>>U1s~ 'tructure type: F Construct type: V-N later source: W (Solar App) ,weer: MEES,DIETER Phone: .ddress: 190 CHANNING AVE Line two: 'ity: PALO ALTO St/Zip: CA94201 'ntrctr: CMS CONSTRUCTION MANAGEMENT Phone: 541 549-2077 Reg No: 0104049 .rchitect/Engineer: ROZEWSKI AND CO Phone: .ddress: 'ity: St/Zip: -t/zip: aluation: 1,778,345 Code: 101 Septic No: JKH one: WA SMIA F1 Plans Check No: etbacks, Front: 1881 LS: 913 RS: 2390 Rear: 1626 -lanning init: MJM Env Health init: DWH Plans Check init: MGR ./W%ke .eceipts: 350079 360968 Q,b`r+r 'otal Paid: 14,262.68 Includes PC fees: 3,009.83 ,ther permits: 75050 06/16/04 A 75049 06/16/04 A 75047 06/16/04 A 75046 06/16/04 A 74123 05/17/04 A [ 29453 06/16/04 A ' 25207 06/16/04 A 'C 2095 06/03/04 F .omments: .1/23/04 JKH CHANGES TO THE HEIGHT OF BUILDING RECORDED _1/22/04 MGR APPROVED REVISION 1/2 HOUR CHARGE _1/19/04 JKH ROOF LINE DROPPED INTO THE GROUND, CUPOLA HAS BEEN REMOVED )6/22/04 MGR R3 12,225 SQ FT X $ 133 + R3N 7,527 SQ FT X $ 16.50 + Ul 1152 SQ FT X $ 24.50 = $ 1,778,345 )6/16/04 JKH THE SEPTIC IS LOCATED ON 17-11-00-2700, IT IS ONE LEGAL LOT JUST CROSSES THE SECTION LINE, NO EASEMENTS ARE REQUIRED. Exhibit Page of B*13*g*g*g*g*B*B*B*B*B*g*g*B*g*g*B*B*g*B*g*g*g*B*B*B*B*g*g*g*g*B*g*B*g*B*g*B*B*B DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW LAFAYETTE BEND, OREGON 97701 (541) 388-6575 ,UILDING NEW PERMIT BUILDING NEW PERMIT ,ermit: B55661 Date/Time: 01/04/05 04:47PM PORT 232 Area D ,ppl date: 06/16/04 Permit date: 12/15/04 Final date: status: A QS: Permit Tech: JKH Date filed: 06/16/04 Team R ,inked septic permit: JKH Linked B permit: "ob location: 18650 BULL SPRINGS RD,BEND 'ommercial name: 'ubdivision: Lot: Trop serial: 196626 Twnshp: 17 Range 11 (Deschutes Co.) Block: (NOT Sewer) Section: 0000 Lot: 2724 'lass of work: N Building class: RESIDENTIAL EPath: 1 cuilding type: B stories: 2 Bldg Ht: 30.0 Square ft: 12225 No Bedrms: 4 snit numbering: rse of Bldg: RESIDENCE (Public) Occupancy: R3 Ul structure type: F Construct type: V-N Eater source: W )weer: MEES,DIETER .ddress: 190 CHANNING AVE 'ity: PALO ALTO Phone: _ Line two: St/Zip: CA94201 'ntrctr: CMS CONSTRUCTION MANAGEMENT ,rchitect/Engineer: ROZEWSKI AND CO .ddress: 'ity: St/Zip: ;t/Zip: 'aluation: 1,778,345 Code: 101 Septic No: JKH ;one: WA SMIA Fl Plans Check No: setbacks, Front: 1881 LS: 913 RS: 2390 Rear: 1626 Manning init: MJM Env Health init: DWH Plans Check init: MGR ,eceipts: 350079 360968 'otal Paid: 14,262.68 Includes PC fees: 3,009.83 (Solar App) Phone: 541 549-2077 Reg No: 0104049 Phone: Exhibit Page 0 9 of 01/24/06 16:47 FAX 5413438693 HUTCHINSON COX 0001 January 24, 2006 900 FORUM BUILDING 777 High Street Eugtao, OR 97401.2782 PHONE: 541686-9160 FAX: 541 343-8693 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. MLTPGE PATRICK L. STEVENS BRIAN M. THOMPSON Board of Commissioners FAX COVER SHEET DATE: TO: FIRM: FROM: RE: Deschutes County Douglas M. DuPriest, Esq. 1 I, f-T" 1001 BEST COMPANIES 2005 NUMBER OF PAGES: 25 (including this cover sheet) Fax No.: 541-385-3202 Public Hearing Tomorrow 01/25/2006 at 10:00 a.m. Proposed Spencer Wells Quarry, Our Clients: Tammera & Clay Walker THIS COMMUNICATION CONSISTS OF ATTORNEY MIVILSGIID AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THp USS OF THE WDIVIDUAL OR ENTITY NAMED. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR TIM EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COFYING OF THL9 COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE M MEDIATELYNOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE US.POSTAL SERVICE. THANK YOU. ACCOUNTICASE NO.: 7770 / 10025 ATTACHMENT: Testimony Submission for Hearing. COMMENTS: Please submit attached for hearing. [ X ] Original being sent via mail. [ ] Original being hand-delivered. [ 1 Original available upon request. [ ] Facsimile transmittal only. If you do not receive all of the described material, please telephone (541) 686-9160 immediately. Exhibit Page / of 25 Attorneys and Counselors at Law 01/24/06 16:47 FAX 5419498693 HUTCHINSON COX January 24, 2006 r-perdenced,fdric,e in a compher linrid 20o FORUM BUILDING 777 High .SS tT=t Rugenc, oregoo 97401-2782 PHONE 541686-9160 FAX 541343-6693 www.ougcnc4nw.cnm James K. Cootie John 0. Cos Douglee TK. DUPriaSt Frank C. C:ibson Stephan A. liutchinatm Thomas M. Orr William H. Sherlock E. Brudiey Litchfield Zack P. Naga Patrick L. Stevens Deschutes County Board of Commissioners 1300 NW Wall St. Bend, OR 97701-1960 Via Facsimile t 541-385-3202 RE: ESEE Analysis Proposed Spencer Wells Quarry; PA 04-8/7C 04-6 Our Clients: Clay and Tammera Walker Our File No: 7770/10025 Dear Board of Commissioners, IM 002 This letter is intended as a supplement to all of the Walkers' prior submissions with regard to the proposed hard rock quarry at the Spencer Wells site referred to above. Failure to specifically identify issues, in this letter, that were raised in prior submissions does not constitute a waiver of these issues for the purposes of appeal. All evidence submitted or arguments raised by the Walkers in prior proceedings before Deschutes County with regard to the proposed rock quarry, whether or not specifically identified in this letter, are hereby incorporated by reference. A. Applicant Has Still Not Performed An ESEE Analysis. As Applicant itself acknowledges, OAR 660-023-0180 sets forth a multi-step process for determining whether a particular site may be mined. Requiring (1) that a site be significant; (2) that an impact area be established that includes all significant conflicts created by the proposed operation (3) that the Applicant identify all conflicts within the impact area; (4) that the Applicant demonstrate that it can mitigate these conflicts; and (5) with regard to unmitigated conflicts, that the Applicant demonstrate that the ESEE consequences weigh in favor of permitting the operation. Applicant stumbles on the threshold of this analysis by ignoring or failing to quantify all of the significant conflicts caused by its proposed operation. In particular, the Applicant attempts to avoid or ignore impacts to the local aquifer, existing agricultural uses, wildlife, Hwy 20, quality of life and recreational amongst others. No doubt it is easier for Applicant to demonstrate the relative benefit of the proposed rock quarry if it ignores all Exhibit F Page 2 of2 Attorneys and Counselors at Law h-really had 1910 01/24/06 16:48 FAX 5413438693 HUTCHINSON COX Q003 Deschutes County Board of Commissioners January 24, 2006 Page 2 or substantially all of its impacts but this is not how an ESEE analysis is performed. Additionally, the Applicant's sole basis for demonstrating the relative importance of its facility is the quality of rock that is common in Deschutes County. Hence, the Applicant's ESEE analysis fails to demonstrate that the consequences of permitting the proposed quarry outweigh its adverse effects. Hence, the Applicant's proposed quarry should be rejected. B. Applicant Fails to Address Impacts to Sage Grouse, Burrowing Owl and Pygmy Rabbits. The Applicant attempts to convince the Board to ignore several conflicts because they are not identified on a County Goal 5 inventory. For instance, Applicant attempts to ignore impacts to "burrowing owl and pygmy rabbit dens" because "neither of these-species have been included on the County's Goal 5 Inventory." ESEE Analysis, p. 11. See also p.13 ("These three latter animal species have not been identified as being protected under Goal 5.") Yet, regardless of whether burrowing owl, pygmy rabbit or sage grouse are listed on the County's Goal 5 inventory, Applicant is still responsible for mitigating all of the conflicts that its proposed operations will have on these sensitive species under OAR 660-023-0180(5)(b)(A). It is a certainty that one or more of these sensitive species occur within the de rriinitnis operational boundary set by the County, or upon the site itself. Indeed, the BLM identifies the site as right in the middle of a primary travel path for sage grouse between their nests and leks. Moreover, our client has identified pygmy rabbits as occurring within the impact area, a fact bolstered by the Applicant's own wildlife biologists who identified burrows on the site itself. Applicant makes no attempt to mitigate or otherwise address its impacts to these sensitive species. Since Applicant has ignored and attempted to avoid discussing a significant environmental consequence of its proposed operation, its ESEE analysis is clearly inadequate and will not support approval of the proposed operation. C, Applicant Has Failed to Address Impacts to the Local Aquifer Applicant attempts to hide the impacts that its proposed operations will have on the local aquifer by stating that there is "no evidence that this Exhibit F Page 3 of 2 01/24/06 16:48 FAX 5413438693 HUTCHINSON COX 0 004 Deschutes County Board of Commissioners January 24, 2006 Page 3 groundwater right will in any way impact the regional aquifer." ESEE Analysis, p. 12. Yet, even if it is true that Applicant's well won't de-water the surrounding area, this is hardly the point. The fact of the matter is that the Applicant is proposing to dig a deep pit at one of the lowest points in the NEW can Valley. The impacts that this is likely to have on groundwater in the area are documented by substantial evidence from both the United States Geological Survey and the Deschutes County National Forest. Yet, Applicant not only fails to provide any mitigation of this impact, it ignores the impact altogether in the hopes that the Board of Commissioners will do likewise. Dewatering or contaminating the water of an area that supports wildlife, agricultural uses, domestic uses, and the adjacent BLM lands, in this and climate, will clearly have a profound adverse economic, social, environmental and energy consequences for the surrounding area. For instance, by diminishing forage for livestock and wildlife, or by requiring water users new and deeper domestic wells to be dug. Since Applicant's "ESEE analysis" fails to address these consequences it is incomplete, and the application should be denied. D. Applicant Has Failed to Address Its Impacts On Hwy 20. Applicant attempts to avoid discussing the im act that its operations will have on Hwy 20 and the businesses and people that which depend upon it by focusing only on the impact that truck traffic will have on the road's surface. Applicant's proposed operations can be expected to obscure Hwy 20 with dust. Moreover, this Applicant has a history of poorly planned or executed blasts with disastrous results. See Satterlee v. 2-R Equipment, LLC, lack Robinson & Sons, Inc. et al, 99CV-0039 (100-pound boulders thrown onto adjacent property by blasting allegedly causing miscarriage). It is clear that hurling dust and debris onto Hwy 20 is likely to have profound adverse economic, social, environmental and energy consequences, for both the area and Deschutes County as rates of accidents increase and the use of that route declines. Since Applicant has failed to address these consequences, its ESEE analysis is inadequate and will not support approval of the application at issue. Exhibit Page --4 - of~ 01/24/06 16:48 FAX 5413438693 HUTCHINSON COX 0 005 Deschutes County Board of Commissioners January 24, 2006 Page 4 E. Applicant Has Failed to Address Its Significant Impacts On Farm Uses Applicant cannot dispute that its proposed quarrying operations will have a significant and adverse effect on livestock operations in the area. Substantial evidence has been submitted into the record reflecting the significant adverse impacts that noise and dust created by Applicant's proposed quarry will have on dryland ranching in the area. Moreover, Applicant acknowledges that it will make little if any attempt to shield these impacts, at least during the first phase of its development when all operations will occur above ground, and very little effort thereafter. Since Applicant cannot controvert this evidence, it attempts to ignore the problem entirely, by stating that "the only agricultural uses have been very limited dry land grazing and would not be considered significant." ESEE Analysis, p.12 (Emphasis added). This conclusory statement misconstrues the applicable standard and is unsupported by any evidence in the record. OAR 660-023-0180 requires that the Applicant minimize it proposed conflicts with "agricultural practices" regardless of their size or purported "significance". The hearing's official decision reflects that the Applicant failed to demonstrate that it had minimize conflicts to agricultural practices, because it failed to address contamination or drawdown of water resources necessary for dryland ranching. As previously stated, the Applicant still has not provided this required analysis. Hence, Applicant's ESEE Analysis is incomplete and will not support approval because it has failed to conduct the required analysis. F. Applicant Has Failed to Address Impacts from Dust Applicant attempts to avoid the issue of dust by urging the County to believe that (1) none of its other operations have dust problems, and (2) ere is already so much dust in the area that a little more won't hurt. Neither of these approaches even approximates the requirements of an ESEE analysis. First, it is very doubtful that Applicant has no problems with dust at its other operations, especially in light of the fact that it has been sued at least once in the past for blasting not only dust, but substantial pieces of debris onto a neighboring property. Yet, even if Applicant's existing neighbors do not complain about the dust being deposited on their properties, this does not absolve Applicant of engaging in an effort to formally identify and attempt to minimize impacts from dust deposition where, as here, significant potential Exhibit F- Page 5 of 01/24/06 16:49 FAX 5413438693 HUTCHINSON COX Q 006 Deschutes County Board of Commissioners January 24, 2006 Page 5 conflicts including impacts to livestock, wildlife, historical artifacts, and the Pine Mountain Observatory have been identified. Second, particularly with regard to Pine Mountain Observatory, Applicant's suggestion that there is already so much dust in the air that more from the proposed operation will not matter plisses the point. The additive effective of the additional dust from the proposed quarry would likely make the existing difficulties that the observatory has with dust worse. Moreover, the only competent evidence in the record is that this impact would have profound consequences for the observatory and likely eliminate its use as a research facility. Applicant identifies nothing to contradict this evidence, but instead suggests that with a little watering the dust "will not be that bad." Applicant, however, has not quantified the degree and extent of the dust exposures in any analysis. The only feasible approach to verifying whether operations at the proposed quarry will be fully minimized to meet applicable air and dust fallout standards is to perform air dispersion modeling. The Applicant has not done any such analysis. Air dispersion modeling is routinely used by Oregon DEQ, and USEPA to verify compliance with air quality standards and related values- In fact, air dispersion modeling is the o_g method used to verify whether proposed sources (yet to be built) can be permittable from an air quality standpoint. Without air dispersion modeling, decision makers have no basis to determine: • Whether the proposed expansion will cause significant air pollution and dust fallout impacts; • Whether the project will or can be mitigated to elinnate any potential significant impacts; and • The degree and downwind distance that potential significant impacts could occur. This is particularly important for complying with OAR 660-023-180(4), which requires the proper identification of a baseline impact area. The Applicant presents a qualitative opinion stating that proposed quarry will be mitigated to insignificance. Before decision makers can verify whether these conclusions are valid, a technical analysis, including detailed emission calculations and air dispersion modeling, must be performed. No qualitative analysis exists to determine the air quality and dust fallout impacts from a large and complicated project such as that proposed by Applicant. Variables such as the amount of dust released to the air, when and Exhibit Page --(P- of 05 01/24/06 16:49 FAX 5418498699 HUTCHINSON COX 0 007 Deschutes Couray Board of Commissioners January 24, 2006 Page 6 how it is released, the size of the dust particles, the location of the emissions sources, hourly changes in wind speed and direction, and the close proximity of sensitive uses to the emissions, makes it impossible to opine qualitatively that air quality impacts can be mitigated to insignificance. Currently, the Board lacks any information on the following key issues, each of which must be addressed in an appropriate air dispersion modeling analysis: • The particulate emission rates from existing particulate matter sources at the Applicant's existing operations; • A table showing all the potential new emission sources associated with the proposed quarry, including blasting, crushing, processing and hauling; • The emission rates of particulate matter these additional air pollution sources; • A presentation of how the expansion area emissions are released into the air, including hours of operation; • Verifying whether offsite PM,o and PM2, air concentrations are mitigated to levels below applicable ambient air quality standards; The Applicant's failure to perform any air dispersion modeling leaves their air quality evaluation unsupported by any factual evidence, and consequently renders their conclusions invalid. G. Applicant Inappropriately Dismisses impacts to Quality of Life That Would Be Caused By the Proposed Quarry. Applicant attempts to portray its ESEE analysis as a balancing act between the Walkers quality of life (which it states the County cannot consider) and the need for rock in Deschutes County. The fact that this ignores a myriad of other impacts does not seem to phase Applicants anymore than its failure to consider all the requirements of OAR 660-023-0180 or the evidence in the record. Rather, the Applicant appears to believe that if it can narrow its ESEE analysis to two issues: quality of life and quality of rock, and then avoid one, its application must be approved. Applicant is wrong both factually, and as a matter of law. Factually, as set forth in prior submissions to the County, the Applicant's operations will impact at least fifteen adjacent existing and approved uses in the area, ranging from Pine Mountain Observatory, to Hwy 20, to livestock operations on and around the site. Thus, Applicant's portrayal of this process as a two- parry dispute is completely inaccurate. Exhibit F Page __7_ of 25 01/24/06 16:49 FAX 5413438693 HUTCHINSON COX 0 008 Deschutes County Board of Commissioners January 24, 2006 Page 7 Applicant's statement that quality of life may not be considered by the Board of Knunissioners is wrong as a matter of law. Morse Bros, Inc. v. Columbia County, 37 Or LUBA 85 (1999) affd 165 Or App 512 (2000), which Applicant cites as authority for this proposition, does not even address quality of life. Instead, it deals with what road impacts may be considered under OAR 660-023-0180(5)(b)(A). Clearly, this does nothing to disturb the rule set forth in OAR 660-023- 0180 that Applicant must address all of the impacts from its proposed operations on existing or approved uses caused by discharges' (including discharges of dust and noise) from its proposed operations. Thus, the adverse impacts to agriculture, domestic uses, wildlife, recreation and even duality of life are all legitimate concerns that must be addressed in the ESEE analysis. With regard to noise, the Applicant's expert provides no quantifiable analysis, and only addresses crushing operations (not blasting or the additive impacts of additional equipment for loading, hauling, processing, etc.). In addition, he assumes that operations will take place below grade, which is not the case, and has not assessed the unique acoustic properties or the Millican Valley or the Walker's residence's placement above the site of the proposed operation. Hence, his conclusions with regard to the site's noise are facially deficient, unsubstantiated and fails to demonstrate that there will be no noise impacts. With regard to dust, as noted above, Applicant provides no meaningful analysis. Hence, again, Applicant has failed to conduct an ESEE analysis with regard to impact to the Walker's quality of life2, and its purported analysis will not support approval. ' Applicant suggests that vibrations cannot be construed as "other discharges" from its proposed operation in the same way as noise or dust can. ESEE Analysis, p. 11. However, as the vibrations or shock waves sent out by Applicant' s proposed blasting activities are the equivalent of sound waives traveling through a different medium (in this case, the earth, rather than the air) it is clear that such discharges fall within the purview of "other discharges" under OAR 660-023-0180. Z Applicant's statement that the SMIA boundary will have no adverse impact on the Walkers' property is also ridiculous. Under the provisions of the County's SMIA overlay, the Walkers will need to engage in an additional land use process before they can conduct any development upon the property subject to the overlay. This restriction on use is a further economic consequence of the proposed operation on the Walker property that has not been assessed- Exhibit Page _-X_ of -2-:L- 01/24/06 16:50 FAX 5413498693 HUTCHINSON COZ [M009 Deschutes County Board of Commissioners January 24, 2006 Page 8 H. Applicant Misstates the Availability of Quality Rock in the Area. A recurring theme in Applicant's latest ESEE analysis, is that if the rock at the proposed Spencer Wells site cannot be mined it will have to be mined outside the County. This is Applicants only grounds for urging the County to accepts that economic, social, and energy benefits of mining outweigh its adverse effects- ESEE Analysis, pgs. 17-18. However, even setting aside the fact that Applicant ignores most of the consequences of its proposed operation, the rock at issue is not unique in Deschutes County or even in the Millican Area. Applicant states that. "Laboratory test results defined the basalt to offer durability characteristics (as measured in the Los Angeles machine: LAR) far superior to most basalt found in Deschutes County. This is because the Spencer/WeRs area basalt is related to ancient volcanic floods of the myocene epic that cooled slowly, allowing the tight crystalline formation necessary for strength development. Basalt common to lower elevations such as in the Bend area are related to much more recent flows from the Newberry Caldera, which spread out and inflated, cooling rapidly, promoting a hard, but poor durability rock less suited for demanding uses such as road building aggregate." ESEE Analysis, p, 5 (Emphasis added). What Applicant fails to indicate to the Board, however, is that most of the more recent and poorer quality basalt flows are concentrated in the area of Bend and the Deschutes County National Forest, while the Miocene-era basalt flows that Applicant prizes for its durability underlies much of the rest of the County. Indeed, one need only look at the attached map to appreciate the extent to which this Miocene basalt, designated as "plateau basalt flows", predominate throughout much of the County. Indeed, Applicant's proposed quarry is just a small toe-hold of a much larger area of Miocene basalt that continues to the north and west, with a substantially larger deposit located miles closer to the Bend market on the other side of Horse Ridge. Clearly, the Applicant has not provided a realistic assessment of the consequences associated with not permitting the proposed quarry at the proposed location. Indeed, it is clear that, even without the proposed quarry there are substantial amounts of quality basalt rock sufficient to meet the needs of the Deschutes County, that can be mined in Deschutes County by Deschutes County workers, and transported to the market in Bend more Exhibit Page ? Of 2~ 01/24/06 16:50 FAX 5413498693 HUTCHINSON COX la 010 Deschutes County Board of Commissioners January 24, 2006 Page 9 cheaply than the proposed operation. Thus, the Board need not approve a quarry adjacent to the irreplaceable cultural artifacts in Dry River Canyon, in order to ensure that Applicant's dire predictions remain unrealized. 1. Applicants Proposed Conditions of Approval Are Inadequate. Applicant's proposed conditions are inadequate and are misused. An example of inadequacy is proposed condition 14, which reads: "Appropriate liinits should be placed on blasting." While, literally, this statement is true, it is utterly meaningless as a condition, as it avoids the important task of determining what the conflicts are and what specific limits on blasting are required in order to minimize impacts with nearby uses. In short, this condition illustrates well the applicant's failure to properly perform the ESEE analysis. Another inadequate condition is condition 9, which states: "Beginning with the second stage of mining, the on-site crushing shall occur below grade" This is not really a condition, because this is what the applicant proposed to do in the first place- It is simply a consequence of removing the first layer of soil and rock that additional activities will be below native grade. Applicant is not proposing any berm or other measures for the at-grade first stage mining operations to minimize noise or other conflicts. Applicant misuses conditions as well. Conditions are not a substitute for analysis or findings required by relevant approval criteria. An applicant may not short-circuit the ESEE process by simply saying there are no conflicts, but any conflicts there might be are adequately addressed by applicant's proposed conditions. Instead, the rules require identification of conflicting uses, identification of the nature and extent of likely conflicts, and an analysis of what steps can be taken to minimize such conflicts. That remains to be done here. To the contrary, the evidence is that there are various conflicts that the applicant's ESEE avoids entirely or fail to address adequately- Exhibit Page t C of 01/24/06 16:60 FAX 5419438693 HUTCHINSON COX [a Oil Deschutes County Board of Conunissioners January 24, 2006 Page 10 Conclusion For all of fl-te foregoing reasons, Applicant's so-called "ESEE Analysis" is deficient, and will not support approval of the proposed quarry. Accordingly, the Board should vote to deny this application. Very truly yours, HUTCH NSON, COX, COONS, DuPRIEST, O & SHERLOCK, P.C. Dougla Enclosure: 14 pages cc: Clients Exhibit l' Page __Lk_ of 01/24/06 16:31 FAX 5413438693 HUTCHINSON COX 0 012 i roadside geology of oregon David D_ Alt Donald W. Hyndman ..3 .~1 MOUNTAIN PRESS PUBLISHING CO. 279 West Front Street Missoula, Montana 59801 Exhibit Page _ of © Copyright, Mountain Press Publishing Company, 1978 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the Publisher. Library of Congress Cataloging in Publication Data Alt, David D. Roadside geology of Oregon 1. Geology-Oregon--Guide-books. I. Hyndman, Donald W., joint author. H. Title. QE155_A47 557.95 77-25841 ISBN 0-87842-063-0 Library of Congress Cataloging in Publication Data iv Exhibit f - Page - -13-- of We u about t througl most of for ours at witlu geology we hope wasn't Obuic ourseluf Oregon interest, cream o thing tc Oregon 01/24/06 16:51 FAX .5413438693 HUTCHINSON COX i~A ilt .y 1 4 ti . 0, 1' ALM 'asl~Tj••r:~','r.iFr'r..l Atli N Ist, ~•~•'{'X♦ :-~L'~7'~~~.I SM~1.y .~yi*'r~ti111P;y 'll,'+:I.-..~{y!r7'~. s~~Y';"'~e' ~._'~'.04.1~.'_+~s k.r ~ , i.r•''lt.'1..:~ d~7,~~'li~i~'~-~.Y a a Y a _-s preface t.u. ~i Wi? wrote this book for people who would like to know something about their geologic surroundings but don't have the time to wade through the scattered and often boring technical literature in which most of the information is securely hidden. We didn't intend this book for our professional colleagues who should know what they are looking at without our help but for people who don't have any background in geology and would like to know what they are looking at anyway. But we hope that a few of our colleagues will enjoy the book even though it wasn't intended for them. Obviously we didn't figure all the geology in this book out all by ourselves. We read everything we could find about the geology of Oregon and then extracted the bits and pieces that seemed the most inlerestirW, most important, and most visible. We tried to skim the cream off a century ofgeologic research in Oregon and we owe some- thing to nearly everyone who has contributed to the great mass of Oregon geologic literature. V 01 Exhibit Page /~f of 2 - 015 One of theproblems in writing aboutgeology as seen from the road is that half our readers will begoing one way and the other hal fthe other. There is no good way to write a description so it reads both ways at once. We tried to keep thepeople going the other way in mind and make things as easy fnr them as we could, but all our descriptions are written from north to south or from west to east. Presumably the people going the other way will come back some day. Neither is it possible to write a description ofevery road in the state, or even every major road, and still wind up with one book instead o f a shelft4ll of them. So we selected a network of roads that give a good representative view of the rocks. Many of our reaps also include the neighboring roads and we hope our readers will learn to use just that maps without needing an accompanying description. Geology is a matter of knowing what the rocks are and what they mean. We have tried to cover both aspects of the subject in this-book, describing the rocks well enough that people can know them, or at least know a goad many of them, and also understand how they formed and how they fit into the larger view of things. The subject ofgeology has grown in its perception during the last 10 years, gaining its own larger, view of many things for the first time. Many ideas now considered basic were still undreamed of only a decade ago. We have applied the new ideas in this book in order to make the discussion as modern as possible. Therefore, many of the broad interpretations in this book are our own and are published here for the first time. David D. Alt and Donald W. Hyndman Department of Geology University of Montana Missoula, Montana VI Exhibit Page _J,55- of 2 0 016 Oregon. It accumulated to depths of more than 1000 feet in some places to become what we, call the John Day Formation. Like most deposits of light-colored volcanic ash, the John Day Formation is quite colorful, being reddish in middle s l section r part pa and grading upward through a greenish yellowish brown rocks near the top. The middle and upper parts of the formation contain numerous fossil leaves and bones which people have been collecting for more than a cen- tuy_'T'hey tell us of a moist, mild climate and a landscape clothed in lush vegetation. Most of the John Day Formation is rather soft rock composed of ash that drifted in on the wind. But it includes ledges of very hard rock composed of volcanic ash welded into a solid mass. Welded ash forms when a volcano erupts a cloud of steam mixed with shreds of molten rock which surges across the countryside at speeds well in excess of any highway speed limit. When the cloud finally settles, the fragments of molten rock weld themselves together into a solid mass - they are that hot. Such eruptions are explosively violent and every bit as destructive as they sound; everything in the path of those glowing hot clouds of molten rock is instantly incinerated. Several such eruptions have been observed in historic time but none of those produced welded ash beds that went more than a few miles from the vent or covered more than a few square miles. The eruptions that put the welded-ash beds in the John Day Formation must have come from the western Cascades, probably somewhere south of Salem, and the welded-ash ledges extend eastward at least as far as Dayville and cover thousands of square miles- No volcanic eruption on a scale even remotely comparable to that has ever been witnessed in his- toric time. Those innocent-looking ledges of hard rock in the John Day Formation tell a story of natural-violence on a scale never recorded in human history. Then, in early Miocene time, about 25 million years ago, the western Cascades quit erupting and the volcanic action shifted first to central and then to eastern Oregon. This is an unusual event, so something strange must have happened to cause it. As we showed in our first chapter, we suspect that the descend- ing slab of seafloor may have broken off not far below the 160 Exhibit - Page A(X_ of 01/24/06 16:52 FAX 5413438693 HUTCHINSON COX ~4• surface and sunk more rapidly into the earth's interior. This would certainly have put a stop to volcanic activity in the western Cascades and it is easy to imagine that material flow- ing westward beneath the crust to fill in behind the broken slab might have pulled the crust westward, opening cracks that would trend in a north-south direction. There is no doubt that basalt comes from the dark rocks of the earth's interior, from beneath the crust. Those rocks are normally solid, or nearly so, even though they are hot enough that they would melt were they not under such tremendous pressure. If the pressure on them is relieved, as happens if cracks open in the crust above them, they begin to melt and the liquid they produce is basalt. Rocks beneath the crust are not basalt but something quite different called periodotite. It seems strange at first that basalt should have a composition different from the rocks that melt to produce it but the phenomenon is actually quite familiar in other situations. For example, we have all watched a small child wave a popsicle around in the sun until it begins to drip and tragedy seems imminent and then, with loud slurping noises, suck all the juice out leaving white ice on the stick. Everyone in the nursery school set knows that popsicle juice has a lower melting point than ice. Similarly, basalt has a lower melting point than the rocks in the earth's interior so it is the liquid they produce when they partially melt. Most of the Miocene volcanic activity in central and eastern Oregon invo ve eruption of enormous floods of basalt, some of which covered thousands of square miles with single IA.vA ;uvc are we name ; ey rea y were oo s o as ~ t ava. No such overwhelming eruptions of basalt have happened anywhere in the world during historic time so we have no eyewitness ac- counts to help us picture what they were like. Molten basalt has a consistency about like cold molasses which makes it very fluid and runny by magmatic standards. The spread of a basalt flow on level ground - and much of the basalt plateau is nearly level - is limited mainly by the clink- .t III Il I~ I~ ;i ill i I ,I ~ .II 161 h i Exhibit F Page-1-7- of 2=-5 N90N COX 2 018 fracture pat- The most recent eruptions in the volcanic plateau region rest side of the have occurred right along the Brothers Fault zone. There are s south so the patches of very young volcanic rocks all along the line. The ter methods of biggest of these is Newberry volcano, just south of Bend, which So it appears is usually included in the Cascades but it is unlike any other elative north- Cascade volcano, stands about 50 miles east of their chain, and Lte. k? is directly astride the Brothers fault zone. Newberry volcano is essentially an enormous pile of basalt and rhyolite flows that collapsed in the center about at the end of the last ice age. Since , Ad in hand in ~ then it has been producing rhyolite magmas as obsidian flows is stretching ' tions of pumice and ash. The most recent erup- ll eru d s n the very hot p ma an tions happened within the last few thousand years so it may be erup- pelt. The reasonable to assume that Newberry volcano is still active. magmas s so o we we However, large eruptions of obsidian seem to come very late in t-rich rocks are the careers of volcanoes so it is possible that Newberry maybe ithern Oxego n- extinct. nd of juice that a lose silica-rich There is evidence all along the west coast of North America ried part of the of northward movement along faults. The notorious San An- :tent by observ- dreas fault of California is merely the most conspicuous of urface. We find many examples. It is hard to be sure when this movement ;lost as far west began because the evidence isn't completely clear but there are Ld the Klamath a lot of indications that it may have been in Miocene time. ; 60 miles wide Certainly that seems to have been the case in Oregon. Evi- untains and the dently the Pacific plate is moving northward, dragging the • .J,, 'I{ western edge of the North American continent along. The descending slab of seafloor beneath the Pacific north- west makes a considerable overlap between the North Ameri- can and Pacific plates, which must connect them loosely to- gether. This probably explains why the northward movement in southern Oregon is distributed over such a large area. But the earth's crust is probably much thicker in southern than in northern Oregon because the southeastern part of the state seems to be underlain by the buried extension of the Blue Mountains. Therefore, the connection between the continent and the descending slab of seafloor beneath it is probably much tighter in southern than in northern Oregon. If so, the south- ern part of the state should be moving much more than the the area underlain by northern part and the boundary between those regions could be s. the Brothers fault zone. North of the Brothers fault zone the 171 ~I r ee v:Yr 1j. Exhibit Page _L3 of 2~ 01/24/06 16:54 FAX 5413438693 HUTCHINSON COX rr~ Q019 JL~ y.• i ia:.~a,ky:,.7ci' ' • • ~ . ;,m ~ ' {L.,.tw~pjyr ~ t.~C~i'w ~ "W ~ ~ rr •y r',, ,rr.-•~.l'~''".•+ ~_,~-7i.r.'.I~. i+~ ~jr`, '.~yL - .'ln, •!7~ u~. ~y`~ f^• ,wit. till Pressure ridge in basalt beside the road about 15rni[es east of Bend. u. s. 20 bend - burns II Except for the obsidian at Glass Buttes, all the rocks exposed along the road between Bend and Burns are basalt lava flows erupted within the last few million years. Many of them are quite young r indeed and still fairly fresh and unweathered. This is bleak and nearly treeless country with very thin soils so the rocks are easy to i see. ' ! Between Bend and Millican the road passes north of Newberry volcano. Although it is more visible from U.S. 20 than from any other ~I road, Newberry volcano still doesn't make much of an outline agaimt 186 Exhibit Page ja-7of 25 01/24/06 16:55 FAX 5413438693 HUTCHINSON COX F'll0t tiUII@, a recent " uy°'Q GI .u basaltic cinder cone. jasper diggings on Cinders black, except red hillside west of highway ill I •nt at top 27 in a number of places, basalt i , rh olite ~o ' volcano I Y volcano I 11-2, a ~ a IM 020 50 million-year-o subtropical plant include palms an In volcanic ash I- in shallow lakes. • Bend recent ' ° 4 • • a • • a I ~ basalt ' • Clarno I flows, 1 -4 , a andesite 1 a I III ~~11 o 42, saSa • 97 Fresh-looking recent dark';`III gray basalt flows. Many pressure ridges. PasS Two mile-long series of roadcuts in massive ba full of 1/8-inch gas hole especially near top of bas, flows several million years old. On west slope of pass Dry washes expo /e columnar- jointed basalt flo s. P161- CID N '4J l.-- 0 10 . a ° 4 ° . e s ° ~ A ~ + • A~ a1 Y - a plateau - ~ basalt; j , flows 11111 1l ~ 11,1, ff I Frederick Butte, a rhyoltic volcanic dome less than a million years old. T 's section of U.S. 20 parallels he Brothers Fault Zone, a major n line of faults extending from near send to southeastern Oregon, possibly curving south into 10M central Nevada. Interpreted as (Nk+ a deep zone of crustal fracture. ~xnlDli Page C) of 2S 01/24/08. 16:35 FAX 5413438693 3= HUTCHINSON COX n a N 2 N (D Z ~ Y I N 0 0 Z m 0 Cf) I 11 m ~ } } y , oco C 2:- E'sm~ m l m E t i 41 ~ i! ocE~ f 1 m~ f h I~i~ o t Q CILQ 1 Ii cd CO E'Q mcEy~ m ~ T ~ as o fd ~ ~ ~ ~ t O t .20, ZE 10 CCU c - L y~.• C ga 'D MR V V C m W ~ ~ • dtoUl r m V m c m m~ ~ W cn 2 b 03` ~ y m N ~0 7 m t~ vi a y G lO m Ll E7ff pf L m m m N 13 ~ g 6 0021 lQ ~ G7 N m ~ C O .E r~ OI c CL m m ~ L m + 5d m ff 64'a i E~ Eoo a y 0-420 m O CL 1A R cr a~ C ~ _ 7 > m o~ma~~" . ~m °1v 4i o ~A N B O • O C1 CCS. CL L 0 A m 0 187 Exhibit Page 21 of. 2f:S 3 HUTCHINSON COX 10 022 geologic Symbols Rocks IIIIIIIIIIII~II~~ Recent basalt flows Basalt & andesite in High Cascades Flood basalt flows andesite flows -F- rhyolite (John Day) marine mudstone Oligocene marine sandstone o o, d1"n andesite (Clarno) Eocene marine basalt BEGAN ABOUT 60 MILLION YEARS AGO non- sediments marine east of Cretaceous 1=7 marine Klamaths . , granite ~i Jurassic y f mudstone meta- Ban 4 , vol snlocse 1 morphosed Triassic Gabbro (sea floor) i; Peridolite, serpentinite I, BEGAN ABOUT 20 MILLION YEARS AGO Age Name BEGAN ABOUT 3 MILLION YEARS AGO Pliocene ABOUT 11 MILLION YEARS AGO Miocepe ABOUT 26 MILLION YEARS AGO BEGAN ABOUT 000 MILLION YEARS AGO 0 Fault: arrows indicate direction of movement Thrust fault: points on side thrust over or point in direction of underthrusting g Exhibit Page of 01/24/06 438693 HUTCHINSON COX 2023 it is an immense pile of za the sky despite its great size. Nevertheless, d flat instead of ,,Cl,, mostly basalt lava floes which run a does. piling up to snake a steep Th in a rash of basalt e flank s of Newberry volcano are broken out case of warts. They dot the landscape cinder cones like a giant being China Hat which is east of of the highway, with the biggest b ht south of 11111lican. Many of Newberry volcano and almost straight is typical of large volcanoes them are very young- This kind of thing tend to erupt through a in their later stages of activity when they through the main scattering of cinder cones on their flanks instead of der cone marks a single eruption which zior- central vent- Each till of a cone of bubbly basalt frag=ments orally begins with construction ante and ends with the appearance Pile of cinders. coughed out of the vent of one or two lava-flows which burst through the base e of the loose cone quits and erLipts its lava flowl is out o a second time.ness; Once a cinder hich never erupt they are one-shot volcanoes getweenMillican and Riley, U -S- 20 followsthe Brothers fault zone named for the little comet pity of Brothers. The zone i3 a which is roxirnately parallel to the road and slip arm of faults that trend app The fact that the swsideways with the south side moving northwest- Thes their effect faults move horizontally instead of vertically minimiz on the landscape. But they do have an effect just the same, creating on throuP~ slippage of long slivers of the earth's crust some roughness RIO-Dg faults. 5 a sw Christmas Lake N a0 valley _ ~f and valeanie cock ObSidian volcano older gadinienUWy 20 at Glass Buttes- Sectiorc across th¢ lin.e of U•S ht, a whole mountain of Glass Buttes Is a rare and e ra size lava flow wbich was so thick obsidian. It is essentially oe around the vent to make a mountain and viscous that it piled up side. The Glass B uttes instead of spreading thinly across the country mass can't bevery old but ithasbebeen here long enough to be sliced up a bit by movement on several faults. ins Exhibit F Page V-3 of 25 01/24/06 16:57 FAX 5413438693 HUTCHINSON COX glossary Agate. A variety of quartz distinguished by its extremely fine grain size and bright colors. Agates may occur in almost any kind of rock but are especially common in volcanics. Andesite. A common volcanic rock intermediate in composition bet- ween basalt and,rhyolite. Andesite comes in various shades of gray, brown or green and commonly occurs as lava flows, ash deposits and accumulations of angular debris. basalt. The commonest volcanic rock and surely the most abundant rock in Oregon- Basalt is very fine-grained, has a smooth texture, and Xis quite black if fresh. Weathered or altered basalt may be greenish black or various rusty shades of brown, occasionally even brick red. Many specimens are full of gas bubbles. Bauxite. A type of laterite soil that is veryrich in aluminum and poor in iron. The beat bauxites are nearly white but most of those in Oregon contain enough iron to color them red. Caldera. A large, basin-shaped crater formed by collapse of a volcano during an eruption. Crater Lake is an excellent example. Chromite. A mineral composed of chromium oxide. It is heavy and black and the only mineral source of chromium. • Chromitealw+ays occurs in peridotite or,serpentinite. Cinder Cone. A amall.basalt volcano that erupts a conical pile of bubbly fragments and then produces one or two lava flows which emerge from the base of the cone. ti Cretaceous. The interval of time between ;135 and 70 million years ago. ' Crust. The rigid outer part of the earth extending down to a depth Of about 60 miles. 264 Exhibit i- Page 2 of • 01/24/06 _ 16:57 FAX 5413438693 HUTCHINSON COX Q 025 -h2, W v ' F` BEND • FOREST NEF L FA RK I "4RK Altalf§D i { SODS n Tr I cKARO y,I C~ n RD I r 1 J oachtnea a River j Woods ~p s~ ; 4 ~yr~. M CytNq COYOTE BUM CROOK co _ ' • ~ r : fir" ~ ti OrSCHUTtS CO Ow ~ ' ~ ~ry;~+s" HORSSUMI7T~ V KELSEY BUTTE LAVA TOP BUTTE ZO irn a 97 Cql ~r~ g Fp~~~ r ~ sr F01?1'J £ `Sly W! . •:►r~Afiv ' OLDEN Dt"' ~ N~pgTy ~ hr' s CAWGR&JA A RD . r ~ G~MPGRO , . NDER. ,yll.Z. PAULDNMA MUM CREE.~Ew" ~~~G ~FEX GvvoGROUxD~ `q-PST L~ '1 r WD M VUNdL_... suzy-M~rr TEN MILE PAULIA6) f f' t~"' GRWN~- r~±.NEASFL BUTTE i DEkRyTFS xF ~ , w," ~S f~7Rl~ y ~ BUTTE ES` Q~5 r FYI VILF $ 7 r I 1~ . INA I OlY,4L TPVinr aierrc iv~E coc~.r i OOSE& ~r rr~ tip. ry rr ~ i , rya eurTE Exhibit Page 2 of _~5 January 25, 2006 To: Board of County Commissioners Re: Application by 4R Construction, ESEE Analysis, Rebuttal Testimony From: Keith and Janet Nash Evans Well Ranch 25700 Spencer Wells Rd Bend, OR 97701 When my husband and I built a replacement dwelling at Evans Well Ranch in 1998, we were required to perform an ESEE analysis. It was not simply a reiteration of our application, but required us to weigh the pros and cons of the conflict (sage grouse vs. dwelling) and suggest mitigation to resolve the conflict. It was reviewed by County Planning and Oregon Department of Fish and Wildlife (ODFW), before submittal to the Board of Commissioners. 4R's ESEE analysis contains very little actual analysis, and is again a reiteration of their original application. This is the same strategy they have employed throughout this process, a cursory examination at best. Opponents have presented documented evidence of direct conflicts, none of which 4R has ever addressed beyond their initial application. In fact, they continue to deny they even exist, by repeatedly clinging to the 1500 foot impact area. The burden of proof lies with the applicant. Sticking their heads in the sand and pretending no conflicts exist is denying reality. Trotting out the same tired reports and presenting it as analysis ignores the very real issues and concerns raised by opponents. Goal.5 Resources Natural Resources, Scenic and Historic Areas, and Open Spaces (OAR 660= 015-000(5) The ESEE analysis only talks about the antelope range with the same information presented in the application. There is cursory mention of the loss of natural resources (wildlife habitat), no mention of the loss of historic resources-Coyote Well, Pictograph Cultural Area, Dry River Canyon, and a dismissal of the importance of the scenic quality and open space. Goal 5 Resources are not met. Exhibit Page of In the Letter to Hostick, EST, Steven George says "ODFW looks forward to reviewing the remaining measures Jack Robinson & Sons, Inc will put into the ESEE analysis to mitigate the effect of surface mining activities" Where are these remaining measures-has ODFW received a copy of the report? To wait until a site plan review is too late in the planning process. It leaves the fox guarding the hen house. Since the property is not SBM, 4R can choose to ignore any conflicts noise, vibration and dust may have. Numerous references to sage grouse habitat have been entered in the record. There is an identified nest site in the half mile impact zone. The Hostick report indicates "some possibility 0f a pygmy rabbit complex." ODFW should have the opportunity to respond to the, ESEE before a decision is made. Applicant states " Both BLM & ODFW have concluded that the proposed mining operation will not have a significant potential impact on the sage grouse & nearest nesting site lek (sic), which is 1.25 miles away" This statement is not supported anywhere in the record4n fact BLM's limited statement is to the contrary. Jan Hanf, BLM biologist stated "She was concerned for sage grouse in the area. Habitat quality for sage grouse was a concern generally in the Millican area." Neither BLM nor ODFW has officially responded to Deschutes County on this matter, they have only had preliminary contact with 4R during the initial application process. To imply otherwise is a gross distortion of the facts. As it stands now, ODFW is waiting for the ESEE report. AGRICULTURAL PRACTICES Our grazing allotment is in the half mile impact zone. We have detailed in the record the economic impact the mine could have on our operation. I have attached this information as exhibit "A" to my testimony. The potential costs to our operation are real dollars, our livelihood. What recourse will we have if our ranch is damaged? Again, there is no mitigation offered in this "ESEE" analysis. The hearings officer was quite clear in her report that applicant had NOT minimized the conflict between surface mining and accepted agricultural practices. She found insufficient evidence in the record to address 3 specific areas: Exhibit (;7- Page _-~2- of _ *Potential Water drawdown *Pollutants entering the water supply *The conversion of agricultural lands to other uses Again, the ESEE covers none of these. The value of these agricultural lands is rising. Applicant has repeatedly dismissed current practices as "very limited dryland grazing and would not be considered significant." The affected ranches would not consider their grazing allotments as "insignificant." INK Ranches run by Larry Wogman and family controls the grazing around the mine site. We share a common border, as does Pine Mtn Ranch (Stephen Roth). All are in the half mile impact area. All 3 allotments are in current use, contrary to applicants' statement (p16 of the ESEE). INK Ranches is currently relocating to Baker County, Oregon and has listed 320 acres of bare ground with attached grazing allotments for sale for $800,000. I don't believe Larry Wogman would consider this insignificant. I have offered repeated testimony as to the viability of these ranches; BLM currently maintains a waiting list for available allotments. Indication of value and demand. Beef cattle is Oregon's second largest income producing agricultural commodity. By any standard, that is a significant commercial agricultural practice within the impact area= (ESEE.pl3) GENERAL FINDINGS Vibration: Again, 4R cites their Apollo report with no mention of rebuttal testimony showing high connectivity between the proposed pit and the 109 panels of pictograph art. That area of Dry Canyon is a Traditional Cultural Practices (TCP) site, protected by Federal Law. Dust: Extensive evidence was entered in the record detailing the unique geography of the Milllican Valley regarding noise and dust. The hearings officer was compelled to make a site visit in order to fully understand the impacts. A site visit by the commissioners might serve to clarify the uniqueness of the site. Exhibit_~ - Page 3 of But again, 4R denies the conflict and offers no mitigation aside from watering stockpiles. The ESEE states no more than 3 acres will be in active operation at any one time. The original application shows phases approaching 40 acres. Even disturbed ground not in active operation will generate sufficient dust to obstruct Hwy 20, coat vegetation and leave ambient dust in the half mile air space, harming Pine Mtn Observatory's research capability. Power: The issue of power has never been addressed by applicant. The current line was installed in 1959, and is inadequate for residential use, much less industrial use. We are subject to "dirty power", frequent power surges, which CEC prefers to call "interruptions" or "brownouts." It eats pumps in wells, computers and appliances. Add a high demand industrial use to my line and my problems will no doubt magnify. If 4R chooses to use generators, the noise factor rises. It has never been addressed in any ESEE. SOCIAL CONSEQUENCES The social consequences of mining activity are not minimal in this case, as presented by 4R. The location of this mine next to a major State Highway is dangerous. Landscape Management set backs are not met with the proposed 500 feet. The set back is 1400 feet. Evidence is in the record as to the lack of shoulders and lack of site distance at the intersection of Hwy 20 and Spencer Wells Rd. A more detailed traffic analysis is indicated. 4R again relies on initial application reports. If this mine were off the highway in a screened location, conflicts would be minimized as would my objections. This is the wrong location for a surface mine. Add up all the conflicts, mining should be forbidden at this site. The ESEE analysis points out this aggregate is not needed to maintain current county inventories. 4R may need the rock, Deschutes County does not. 4R has the ability to go elsewhere for this rock. It is not unique to this one site. But Pine Mtn, Native American Pictographs, Coyote Well, the Walker Residence, scenic qualities and the safety of Hwy 20 cannot go elsewhere. This is the wrong place for a pit mine. Don't stereotype the Millican Valley. It is not the middle of nowhere, nor wasteland. It is Deschutes County's backyard, Deschutes County's open space, Deschutes County's wildlife refuge. Thousands of OHV users have a stake in this decision. Don't condemn the Millican Valley to 50 years of an Exhibit Page_ of open sore. Make the right decision that will protect this land for two generations to come-deny the application. Let 4R bear the burden of proof and carry this application to the state. Applicant has failed after two opportunities to submit a valid ESEE. They have had over a year to complete this task, and have chosen to by and large ignore our concerns. Again, the burden of proof lies with applicant. Our opposition has not been without substantial cost. Let 4R carry this application to the State Land Use Board of Appeals if they feel so compelled. Attachments: Exhibit "A" prior testimony outlining potential economic costs to Evans Well Ranch Exhibit Page,_ of Sept 1, 2005 To: Board of County Commissioners v I_ Re: Application by 4R Construction for Surface mine in the Millican Valley File PA-04-8-ZC-04-6 From: Keith and Janet Nash Evans Well Ranch Supplement to August 26 Statement We have been asked to amplify some comments we have made regarding applicants impacts on agriculture in the Millican Valley. All the commercial ranches in the Millican Valley are a combination of private land and land leased from the federal government, both BLM and Forest Service. As such, they are highly regulated by these agencies. Parts of these regulations govern percentage of utilization. Graziers are expected to manage cattle to achieve uniform use in a pasture, not to exceed 33-40% use of available feed. The remainder is left for wildlife and regrowth. Our utilization averages around 25%, a light grazing before moving on. We achieve this excellent record by careful placement of salt and water, and by monitoring. These "pastures" can vary from 700 to 7,000+ acres. If cattle avoid one part of a pasture, they overuse another. Our range technician would note this fact and request we make adjustments to correct it. The source of the stress wouldn't matter-noise, dusty feed, blasting vibrations, we would be charged with the correction. This adjustment could be a lower stocking rate, causing us to find/lease/use another pasture. In order to achieve timely and consistent breeding on our cow/calf operation, we control exposure to the bulls. If the cows are not available in a suitable pasture, they would breed later, resulting in a smaller calf. These smaller calves generally experience a slower rate of gain, especially if exposed to more stress-dust, extra handling moving pastures, and constant noise. Bulls are fairly solitary creatures by nature, and will react to stress by "holing up," leaving the herd and hiding. End result, decreased fertility. Fewer calves=fewer dollars. Our average steer calf was in the neighborhood of $600 last year. A 10% decrease would average $60, times 200 calves = a $12,000 net loss to us. Exhibit (3- Page of Oregon Department of Fish & Wildlife is currently implementing their "Oregon Sage Grouse Conservation Plan." This is the agency's strategy for avoiding the listing of the Sage Grouse as endangered. In our comment letter during the scoping process, we identified impacts to us if further restrictions are placed on grazing public land that is sage grouse habitat. If 4R's mine disrupts the nearby lek and adjacent loafing areas, again we would be the ones to bear the consequences. BLM would have little choice but to control what they can in an effort to protect the birds. If public land were removed from grazing, we will rely solely on our private land. It is presently not fenced and used in rotation with BLM pasture. If restrictions occur, we will fence our private property and develop roads and water systems. The cost to us would be in excess of $100,000. A severe hardship. And the end result would be further fragmentation of open space and habitat. The wrong thing. A lose/lose scenario. To quote John Kimball, director of the Utah Division of Wildlife Resources," Well managed collaborative ranching creates income for rural people. It prevents rangeland being sold off for other, incompatible uses and preserves open space. Grazing management can achieve what wildlife managers and enviromnental groups want. It is the best and least expensive way to preserve this land. And it's done by the people most qualified to do it= those who live on the land." Exhibit Page 7 of 'Date: August 23, 2005 To: Board of County Commissioners Fr^ni: it-eith and - In n.-t NI"sh Evans IVVCH Piancii 25700 SnPnrPr Wells Rd. Bend, Or 97701 v Re: Testimony regarding surface mine in the Milli,-.an Valley for 4R Equipment I would like to thank the commissioners for hearing this matter today. The previous two hearings were well attended, with significant opposition to this project across the hoard. My husband and myself are opposed to the surface mine for numerous reasons you kvili hear today. I will limit my self to the areas I am most familiar with, agriculture and wildlife. Horse Ridge subzone has the most stringent E.FU zoning in Deschutes County: 320 acres. Deschutes County stipulated this large acreage requirement to protect agricultural interests, primarily ranching, in the Millican valley. it is a large arid valley, suitable for livestock grazing.' The subject parcel has been grazed, in a rest/rotational grazing system administered by the BLM. Since the parcel wasn't previously fenced, it has been utilized as part of the adjacent allotment. When we first began grazing cattle in the Millican valley in 1995, several of the neighboring ranches were vacant or for sale. This is not the case today, all of our neighboring ranches are occupied and in production. BLM maintains a waiting list of ranchers waiting for vacant allotments.2 Beef cattle is the second largest income producing agricultural commodity in the state of Oregon.3 The current zoning configuration protects these ranches from development pressure. The large contiguous tracts of land these ranches provide are very important wildlife habitat. The water they provide is Trucial in the desert environment. Ranchers provide open spaces and quality food; the ppblic.wants open spaces and quality food. The recent decision by the US Fish and Wildlife Service NOT to list the sage grouse as endangered was made in part because of proactive work by State agencies and private landowners to enact a region-wide conservation plan.4 A major part of this plan addresses habitat loss, fiagmentation and degradation of sagebrush communities. This surface mine would be a d rdet contribution to that loss. The largest identified sage. grouse lek in ;J)escliutestCounty is 1.25 miles away, nesting sites have been identified closer than that. <ge rouseare:highly sensitive to disturbance and will abandon traditional areas of use her.iirbgd.s The introduction of a 485 acre strip mine would drastically alter the W valley. It would no longer have the characteristics of exclusive farm use. Other mines would logically follow. Goal 5 would not be met. Exhibit C-7- Page of impacts on our ranch would be long lasting. Aside from noise, dust and a degraded quality of life, I can see two other impacts. When -wildlife suffers, we. -xviil pay. Grazing is highly monitored. If grouse or antelope or any sensitive species decline, we face further grg7ing restrictions. It has happened to us in the past. The cause doesn't matter: we will be effected. And if industrial development gets a foothold in the valley, other development wi_ follow. HT'~IT-_,o ning,wil be 5aGr1I3 Wir.,., i , of r._.._progres 5 C u~.. ___a ed _n the. path >!r ranching operation and all it provides will be directly threatened. Mr. Robinson's expert witness testified Eastern Oregon is solid basalt from the California border to the Oregon border. If this is this case, surely Mr. Robinson can find a location -with fewer conflicts to blast and mine. The Mi'llican valley site is the wrong place for a strip mine. Many people are anxious to testify today. To tell you why this is the wrong place for a strip mine. I will defer to their more expert testimony. I would like to enter my remarks from the last two hearings for your consideration. 1 Vitae 1$ of the Deschutes County Code; the Deschutes County Zoning Grdinance, 2 Upper Deschutes Resource Management Plan and Environmental Impact Statement, Bureau of Land Management, Prineville District Office., January 2005 3 Oregon Department of Agriculture, 2004 Agricultural Statistic Table, Oregon Blue Book 4 Oregon Department Fish &Wildlife, the Oregon Sage Grouse Conservation Plan, Adopted Aug 2005 5 BLM Report: Sage Grouse in the High Desert of Central Oregon, 1994 Exhibit CS Page _°L of January 22, 2006 File # PA-04-8,ZC-04-06 Please accept this as expert testimony. My name is Clay Walker, I was at the previous hearing and I regret I cannot be there today due to work commitments. I have 30 years experience in the rock crushing and asphalt industry, I have worked for RL Coats Construction, from 1976 to 1997 and for Mat bay, owner of Hooker Creek Construction. My knowledge and expertise in this field far exceeds anyone else's involved in these proceedings. Unlike the applicant who has only been in the rock crushing industry for only a few years. At the present time I am a superintendent for a large construction company. I am in charge of manufacturing hundreds of thousands of tons of crushed rock, sand and gravel. I am responsible for the blasting in rock quarries, preparing mining plans, reclamation and making asphalt for various projects. These projects include large freeways to small driveways. L The ESEE analysis states that his proposed blasting activities would be able to keep vibration below any damaging affects. This is a false statement Fact The drilling and blasting of a rock pit is the first stage of reducing solid rock to smaller rock that can be sold. It is also the cheapest part of the rock crushing sequence. The smaller the rock is after the blast, the easier it is to run through the final and more expensive crushing stages. Consequently, the larger the blast the cheaper it is to crush, and in today's highly competitive market, owners of rock quarries are putting more explosives into their shots. Example one: A local contractor's blast in the central Oregon area in 1999 shook so hard that it made the front page of the Bend Bulletin. The headlines read, 3.6 Earthquake Shakes Central Oregon. This vibration was so profound; it was felt in Brothers and in Bend. Three days later USGS figured out that it was a contractor blasting in his pit. The amount a powder was approximately 400,000 lbs. or 20 truckloads of explosives. Why so much? Because it was hard basalt rock and it is the cheapest phase of crushing. Where was it at? Moon Pit, west of Horse Ridge. Exhibit_ Page / of Page Two File # PA-04-8,ZC-04-06 Example two: A different local contractor was blasting while building the Bend parkway. The shot went off and, most of the force of the blast followed a crack in the rock, and came up through the floor of the Munnell and Sherrill Building, approximately 600 feet away. Since the building had severe damage, it was condemned. What kind of rock was being blasted? Hard basalt rock. Example three: I have saved the best one for last. While constructing a turn lane on Hwy 97 between Bend and Redmond (Gist Rd) a contractor was blasting a small rock pile that was in the way. The amount of explosive used was normal for this size rock, so when they got ready to set the blast off, they stopped traffic 1200 feet on each side. The blast went off and the rock went up; I looked up in the air and all I could see was falling rock. I dove under my pickup as the debris was landing all around me. I later found out that one of the cars that was stopped in the pilot line had actually got hit by a rock the size of a football, the flogger that was holding the pilot line stated that the women in the car was pretty calm about it as she rolled down her window and said, "My husbands a lawyer" and drove off! I believe this was settled for approximately $200,000.00. This blast also fractured cisterns and caused foundation damage on several homes. Now there is a proposal to be blasting 600 feet from the hwy and 200 feet from a county road, the applicant says there will be know impact. As you have just heard, this is a false statement. Ron has had personal experience with blasting gone wrong. The lawsuit against him in Madras is case in point. Even before 4R Equipment got into the rock crushing business, his excavation business blasted regularly. He knows the damage that has been done and will be done. The fact is that there will be an impact on hwy 20,5pencer Well Rd, the canyon, coyote well, our personal well, cistern and on the wildlife. There are no laws regulating the amount or size of explosives used, he can put as much explosive in the ground as he wants. Exhibit A Page of Page Three File # PA-04-8,ZC-04-06 2. The EESE analysis also states that the county only has enough aggregate for 35 years. This is again a false statement Fact I would like to reference the McClain report, a report that was written by D.W. McClain Associates Inc. The Cline Butte Recreation Association in 2000 hired them, when ODOT wanted to open a pit in the Golden Triangle. This report states they reviewed 32 of the largest aggregate mines in Central Oregon. These mines were in the ODOT study area and it was found that there is 20 more times more aggregate reserves in existing rock mines than is projected to be needed in the Region for the next 50 year periodJ13 This report concluded that there was no need for any new aggregate pits. Of this list, Mr. Robinson has three listed pits. The Evans Pit the Alfalfa Quarry and the Lone Pine Pit. They all are of ODOT Spec quality. Ell He has also recently purchased Red Cloud Construction in Redmond, and has gained a pit there. I would also like to reference a report I received from DOGAMI. The amount of aggregate being extracted in Deschutes County from 1996 -2004 has not significantly increased. (These reports have been submitted in previous hearings). Based on this information alone, this site should NOT be approved and if possible, not listed as a significant source of aggregate on the county's inventory. The applicant keeps insisting this is very unique rock. On the contrary, this Spencer Well rock is consistent with other rock quarries through out Central Oregon. Sure, there are a few areas that the rock does not exceed ODOT specifications. but, there are adequate pits to cover all construction projects of Hwy 20 E from Bend to Burns. I know, because over a period of years, I have repaved the complete highway between Bend and Burns and all of Hwy 97 from Bend to the California border. I have also paved and crushed rock for many other large highway projects through out the state of Oregon and have always found adequate quantities and ODOT quality rock. These pits are still there and available for use. As far as the commercial use, there are several aggregate sources available in the Central Oregon region, we don't need anymore. Exhibit Page of _ Page Four File # PA-04-8,ZC-04-06 There is no precedence for having a continual rock blasting quarry 600 feet from a major Hwy, or 200 feet from a county road, and within I mile of historical and archeology sites. If 4R Equipment believes that their proposed mining operation will not cause harm to these above mentioned sites, but is essential to the welfare of Deschutes County, I feel he is an irresponsible and incompetent mine operator. I warn you now, do not approve this zone change, if you do, there is a possibility of irreversible damage to not only the existing uses, but also to the innocent traveler on Hwy 20 or on Spencer Well Rd. "I D.W.McClain Report, A review of Oregon Department of Transportation Region IV Aggregate Study, page 1 DW McClain Report, A Review of Oregon Department of "Transportation Region IV Aggregate Study, Table 2.1 - Existing Aggregate Sources in Region IV. Respectfully submitted, Clay Walker Superintendent 907-830-5072 Exhibit Page of ESEE Rebuttal File NO# PA-04-8, ZC-04-6 January 22, 2006 Mr. Luke, Mr. Daly and Ms.Clarno: Thank you for this opportunity to hear rebuttal testimony to the submitted ESEE Analysis, and congratulations to Bev Clarno on your appointment. My name is Tammie Walker. My husband, Clay Walker and I own the home at 26730 Hwy 20 E, including the area of canyon that contains the pictographs and the historical Coyote Well. After reading the document titled ESEE Analysis, many questions came up. This is the same information cut and pasted from previously submitted documents by the applicant and opponents. As other testimony will point out today, the once again inaccurate information should be basis enough for a denial. I have highlighted a few concerns of mine as I'm certain other issues have been and will be brought up by other opponents. The statements in the first ESEE analysis that reads "the Board finds, the Board previously found or the Board has found," would lead one to believe that the Board being referenced to, is the Board of County Commissioners and that they did the ESEE analysis. If this is not the Board of County Commissioners being reference, then what Board is the applicant, 4R Equipment, referring to? Page Two - Geotechnical Report - With the amount of available rock estimated at 22,000,950 tons, the life of this mine is well beyond the 20 year duration as previously stated by 4R Equipment in their Burden of Proof, either that or 68 trucks a day is inaccurate. What is the correct answer? The executive summary of the geotechnical report also states, "the sand and gravel of Stratum 2g, could be skimmed and processed as rounded/sub rounded aggregate," possibly used to batch Portland concrete, and as a free-flowing drainage aggregate. This report also addresses the potential for the sale of lightweight fill. So after the top soil is sold, are they going to haul some in to reclaim it back to the "natural state"? Do the 68 truck trips a day include the trips that will be used for the sale of sand and fill? Will there be a concrete plant or asphalt added? The applicant has continually stated that HE will have the maximum of 68 truck trips a day. I don't believe the applicant has included the number of retail trucks for the small contractors that he will be selling to in his total number. The statement, "there are no significant traffic impacts for the proposed mine," is deceptive. Page 5 - The canyon and Coyote Well were not listed on the county's Goal Five Resource list, at the time of the application. Why? Because we did not want to advertise the location anymore than what was already known in the area. As the current land owners along with previous owners, we have been able to monitor the comings and goings of people. When we need help, we have reported and prosecuted trespassers. From OSU, Uof O, the Burns, Warms Springs and Klamath Paiute tribes, Dr. Luther Cressman, numerous newspaper reporters and magazine reports, to Lorhing and Lorhing, it was never officially listed. Our biggest concern along with others was that it would be vandalized when the exact location was known. We have a hearing tomorrow night with the Landmarks Commission. Our file # is HLA054. Never in our wildest dreams would we have thought that for the sake of money, there would be blasting and pillaging Exhibit Page of ESEE Rebuttal File NO# PA-04-8, ZC-04-6 of the land less than '1z mile away. Please, don't be part of losing a historical and archeological site because we and other landowners were good stewards of the sites. Page 6 - "ODFW looks forward to reviewing the remaining measures that Jack Robinson & Sons will put into the ESEE analysis to mitigate the effects of the surface mining activity" Where is the material for the mitigation? This ESEE along with the second ESEE infers that the ODFW has signed off and are 100% supportive of there proposal. Where is it? I have not seen anything in this report or other documents that the applicant has submitted anything new or mitigating regarding this concern. Page 9 - There are also statements written under General Findings that cause concern. "The applicant currently operates a quarry at O'Neil Junction where blasting occurs as close as 250 feet from the main Pacific Gas Transmission Company's natural gas pipeline. See Attached materials. What attached materials? When Clay went into the CDD office and ask Paul Blikstad about the attached materials, Paul replied, "There wasn't any". Page 10 - On the issue of dust - Although the applicant stated there are discharge permits issued by the DEQ and there are state and federal standards; his record with the DEQ shows that he cannot adhere to their standards. These reports from the DEQ have been previously submitted. However, I will be submitting them again along with three DEQ News Releases. (Exhibit A). 15/1 A $3600.00 penalty to Jack Robinson & Sons for "their mismanagement of used oil, anti-freeze and fuels at their facility located at 63955 OB Riley Rd in Bend." i was released on April 5, 2005. A second release on July 20, 2005, Read "4R equipment LLC pays $1252 Penalty for Solid Waste Management Violation in Bend". "On January 11, 2005 DEQ staff investigated the improper disposal and subsequent disposition of ten cubic yards of petroleum-contaminated soil 4-R received from a used motor oil storage tank leak and processed at its oil recycling facility located at 1757 Simpson Ave. in Bend. The investigation revealed that the soil was analyzed prior to its transportation to the 4-R facility and found to be contaminated with diesel, heavy oils, toxic metals and other pollutants. It was also determined that after accepting the contaminated soil and processing it through its rock crusher along with other dirt and rock, 4R SOLD the resultant mixture as construction fill" ii. So 4R was paid by the business to remove the soil, recycled it with out a solid waste permit for the soil recycling facility and money again! The article goes on to say that, "the DEQ was not able to ascertain facts in regards to the degree in the fill poses a threat because they did not know what was mixed with other fill and where it was placed"iii. These kinds of actions are irresponsible. These petroleum-based products can infiltrate groundwater, surface water, cause odors and present a fire hazard if it is in a high enough concentration. This was all going on when he first made his application for this pit, testimony by his attorney in the Feb. April and August hearings, he stated that Ron Robinson was a responsible and a longtime contractor of the Bend area; whom we should just trust and look at his record for his integrity. The third release was on November 29, 2005. This one read, "Bend Auto Dealer pays $1416 Penalty for Solid Waste Management Violation."iv Bob Thomas hired 4R equipment to remove the contaminated soil in December 2004. Bob Thomas's, "environmental consultant advised that Exhibit Page of 7 the petroleum-contaminated soil needed to be disposed of at Knott Landfill, a nearby facility permitted by DEQ to accept solid waste. Instead in January 2005, the company allowed 4-R Equipment of Bend, the operator of a rock-crushing facility, to transport the soil to its surface mine site. "v Dust, noise and safety violation citations have also been issued to 4R equipment from the Mine Safety and Health Administration. (Exhibit B) Recently this agency has been in the news because they not only over see gravel mines, but also the coal mines in which there have been recent tragedies. We don't need this kind of careless, negligent and reckless neighbor in the Millican Valley. Chances are he'll do this again, and out in the valley where the response time is not always quick, 4R Equipment won't be caught. Page 11- "Furthermore, surface mining is a transitional use and after reclamation, the land surface would then become available for other uses" With 22,000,950 tons he plans to mine, along with the fill and sand, what will be left to reclaim? At only 68 trucks trips a day, or as Mr. Robinson's April 12, 2005 letter states, 1.8 trucks per hour, that's a long time of hauling rock. The proposed 20 years doesn't match up. The reclamation of this property at these figures won't happen in our lifetime, maybe in our great grandchildren's, time. That's a long time for an eye sore to be in the Millican Valley. Page 13, third paragraph - "The Board has found there to be a total of 70,170,000 cubic yards in County's current inventory of sand, gravel and rock. This amount represents approximately a 35 year supply based on the use rate determined by the County of 22 million cubic yards per year. The resources from this site, added to the inventory would increase the lifetime of the inventory to 37 years". Only two years? Are you going to jeopardize farm land - EFU, scenic views - the LM overlay, the possible damage to the canyon, Coyote Well, our personal well and cistern not to mention the impact on Pine Mt. Observatory, for only two more years of rock? The only winner in this operation is the applicant. Also stated on this page, fourth paragraph, "The Board found that virtually all SM sites have either resource or land use conflicts with surface mining. Consequently, if more than 43% of the aggregate sites were to be eliminated due to resource or other conflicts, the county would not have preserved sufficient aggregate to meets its needs over the 20 year planning period. The sites that are already listed will not be shut down because they are already zoned SM and according to DOGAMI, these mines cannot be rezoned until every last bit of gravel has been extracted. "This particular site, standing alone, is NOT essential to meeting the County's mineral and aggregate needs." That statement is significant. It tells me there are other options that don't have the risks this site has. There are other SM zoned pits along Hwy 20 E, why not develop those? Once again, adding only two years to the County inventory is not enough of a reward to risk so much. There will be a cost to the citizens of Deschutes County when the Antelope and Sage Grouse habitat is disrupted, historical sites damaged and the topography so drastically changed, it won't be recognizable. This proposed site is a home site; why not develop the valley to house people, isn't that one reason the minimum acre to build on was set at 320 acres? To control the growth, protect the wildlife area combining zone and to preserve the uniqueness the land? An open pit mine is just not a good, sensible use of this land, especially since it won't make that big of difference in the long run of the County's inventory. Regarding the second ESEE the applicant was allowed to produce, Page 8 - D. ORV Trails. The statement, "there are no ORV trails within one-half mile of the subject property." This is not true; I have printed out the ORV trails from BLM. Part of the trails borders his property along hwy 20E. BLM thinks so highly of this area that they have stated that Exhibit T_ Page 3 of 7 "South Millican Valley is open from August 1 thru November 30. It is closed the rest of the year to protect sage grouse! In the summer months it may close due to extreme fire conditions. The have also stated that, "Spark arrestors are required on your OHV's, chainsaws and generators from April 1 to October 31".vi At times they may close the trails due to the dry conditions. The applicant is so unaware of the community in which he seeks to destroy, that he has not noticed the trail that connects the North Millican Valley ORV trail to the South Millican ORV trail that borders his property and actually goes through our property. Please see attached materials. The applicant has not addressed how his operation will control, prevent and diminish the fire threat. We do not have fire protection out there and one cigarette butt thrown by his employee or one spark will literally set the valley a blaze. This has been brought up previously, and still we no answer from the applicant. (Exhibit C) Page 15 - the ESEE A. Economic Consequences. Although the applicant has tried to minimize our concern in regards to the vibration, dust and noise he has not submitted anything to mitigate these problems. The hearings officer did not buy the report from Apollo Geophysics and the vibration study, please read the Hearing Officer's report. Her concerns about our residence, the canyon and Coyote well were justified. Please see the attached email from Larry Chitwood on the sound in the Millican Valley. (Exhibit D) Dust will have an impact not only with us, but on Hwy 20, Spencer Well Road and Pine Mt. Observatory. Even thought the ESEE analysis stated, "there is evidence that the Applicant has other existing crushing sites within Central Oregon and that fugitive dust has not been an issue in the operation of those sites, even though two of them occur within the urban growth boundaries, ,,j IS A LIE. Let's look at his DEQ and MSHA (Mine Safety and Health Administration) violation - logs. He has had numerous violations of dust, noise and safety! As far as the other two within the urban growth boundary and the Century Pit near a quote unquote upscale housing development, they can't complain any way, and they signed a waiver when they bought those houses! However, someone sent in colored pictures of what they see, the dust rising in the air from their upscale house. Please see the file for that documentation. The pit was there first; well guess what, we were in the Millican valley first! And by we I mean the families, Pine Mt. Observatory, the EFU, Wildlife and Landscape management zoning. Regarding the decrease in the value of our home, what prior ESEE analysis "which the property tax assessor's office could not identify any reduction in value for property located within the SMIA zone" is the applicant talking about? The rock quarry he is proposing will decrease the value as we are the only house, out there on 40 acres. That is what is so unique about where we live. The house is on a canyon wall with a great view of the valley, the Paulina's and Pine Mountain. When the view of an open pit mining operation is suddenly thrown in the mix, how can that not decrease the value? The crushing operation after the first phase will be below grade. Guess what, he is already below our grade and we can see it very clearly, When he goes deeper, the berms and walls will act like a speaker, the sound has to go somewhere, it will go up and across, as there are no trees to muffle it and with his violations of sound already on file, it will probably be good and loud and that's just from the equipment, what about the generators, pumps and trucks using their jake brakes going down the grade to reach his pit. "The mining operation will be in place for several years." Well, yes it will be more than a several years, let's be honest, try about 200 years. The Antelope Range, The applicant states,"that it is difficult to quantify any economic impact on the temporary loss of antelope range". This will not be temporary! In the applicants first Exhibit Page of ESSE analysis, page 14, number 3. He wrote, "As with mineral and aggregate resources, wildlife resources and scenic areas are limited by location factors. Wildlife habitat and scenic vistas are continually declining in the face of increasing development." The BLM has published in their brochure, (see exhibit C,) "Plant life on the High Desert is sparse and fragile which makes its role in the ecosystem even more critical. Not only do plants dazzle us with delicate beauty, they also help stabilize the soil, provide needed nutrients, retain moisture and provide food and shelter for all forms of wildlife. Some of these plants are listed as Sensitive Species and are mandated to be protected"vii Has the applicant done a study to see if there are any Sensitive Species of plants? The natural area he proposes is 600 feet in width along hwy 20 and a 200 foot setback from Spencer Well road; this is not the required distance for the Landscape Management overlay. With Hwy 20 considered a scenic highway, how does a berm, stockpiles of gravel and a large hole in the ground naturally fit into the scenery? That's going to look real nice. Section B - Social Consequences. "The negative social consequences of mining activities are minimal in this case since they affect only one residence, which is located 2300 feet from the property boundaries of the proposed mining site." The one residence is our home, I realize that it is only one, but that is also what makes it most desirable. It was grandfathered in on 40 acres, since now it is required to have 320 acres to build on. With the archeological site, the historical site and the view, it is most definitely unique. Since the proposed mining site is 385 acres, that is a home site, so there are actually two residence sites affected. D. Environmental Consequences, page 16. This Applicant has not made any real solutions to our real problems. First, the water is a concern. As the email from Marshall Gannett stated, "if the quarry is developed, it would be prudent to monitor the aquifer." How is the applicant going to monitor that? Prudent, also meaning wise should be taken to heart in this matter. There has been previous testimony with diagrams submitted by Pat Kliewer, from Larry~hitwood, USFS Geologist, on the water situation in the High Desert. (Please exhibit . Larry Chitwood has stated that, "Because the Dry River is quite shallow, the effect of blasting and digging a quarry or pit next to it to a depth of 100 feet is of interest and concern"viii He also pointed out that the subject property is at the lowest point in the 819 square mile Dry River Drainage Basin. No one knows what the effect this rock pit will have on the water. No one has addressed this issue of the effect this rock pit will have on the surface water or on the flow of water toward the Dry River across the property. Our personal well is 1260 feet deep and is about 70 degrees year around. Coyote Well is about 60 feet deep and has usually 20-25 feet of water in it. Water in the desert is a precious commodity; not knowing how this operation will affect it is taking a chance that has a devastating effect for many. The mine is for one person's gain. In all likelihood, Ron Robinson will sell to one of the larger construction companies that are constantly acquiring smaller companies with material sites. Such was the case for Hap Taylor and Son's. They are actually owned by Knife River, located in the Mid West. We then won't be dealing with Ron Robinson and his "word or reputation". The damage this small contractor can do to the environment will be nothing compared to what a large contractor could do. In closing, I would like to say that this proposal started one stressful year ago, it has been riddled with problems since day one. It was posted wrong; the staff report was grossly inaccurate by stating there was no residence, (that was our home). The first hearing there was a Exhibit Page of January 22, 2006 File NO: PA-04-08, ZC-04-6 List of Contingencies for Spencer Well Pit If you feel you must approve this horrid proposal please do so with the following contingencies, adhered to 100% by the Applicant. 1. He cannot exceed the 1.8 trucks per hour. This is to include his trucks but also all the other contractors he is planning on selling to. 2. No cell towers or large radio antenna's unless they are completely below grade. 3. No mining on weekends 4. Mining allowed between the hours of 8:00 - 5:00 Monday thru Friday 5. Maintain the 1200 foot set backs on Hwy 20 E and on Spencer Well Rd. 6. Maintain green and growing vegetation and trees to block the view 7. No asphalt plants, even if he applies for the permit 8. No concrete plants, even if he applies for the permit 9. Full responsibility for water drawn on our personal well, Coyote well and all wells on the Evans Well Ranch (Keith & Janet Nash) which includes re drilling of the wells with the same if not better quality and quantity of water. 10. Constant monitoring of the aquifer in the desert as suggested by Larry Chitwood and Robert Jensen, Geologists for the Deschutes National Forest. 11. Upgraded substation in Hampton, we are at the end of the line as it is now, the added usage will impact the power to our pump, house and out buildings. 12. No mining between December 1 and July 30ffi, as this is when the BLM also closes trails in the area for the sage grouse and the nesting Prairie Falcons. 13. No artificial lighting, this will cast a glow that will also impede Pine Mt. Observatory. 14. Constant fire watches and standby crews during fire season. 15. Monitoring of the canyon, by a professional archeologist, for any damage from the vibration or emissions. If any is noted, mining must cease. 16. During the Native American visits', all mining must cease. Submitted by Clay and Tammie Walker 26730 Hwy 20 E Bend, OR 97701 - Mailing Address: PO Box 871124 Wasilla, AK 99687 Exhibit :I~ Page -7 of -7 mix up with the hearings officer in which she did not show up, the second was not taped, that was the one where pertinent information from Wilson Wewa Jr, from the Warm 1 Springs tribe, and several professional staff from Pine Mountain Observatory, testified. This information was important enough that the Hearings officer made a trip out to the site, and increased the impact area because of what she saw and heard at the hearings. I invite you to also come out for a site visit if you haven't already. The Applicant has not carried the burden of proof to convince anyone that this is a good idea, except for his personal gain. He has had a year to produce an ESEE analysis. After he received coaching from the staff at Deschutes County, he was allowed to do another one! How many times and in what cases has this been allowed? In previous hearings it appears that Mike Daly has biases toward the opponents. His statements, that he does not read the material, he just loses it and that we already know how he is going to vote, does not give the citizens of Deschutes County confidence that we are receiving a fair and unbiased hearing. Please, do not approve this application, to add only two years on the County's inventory, the price is too high. The residents, wildlife, Pine Mt. Observatory, the long standing profession of ranching, and last but, not by any means least, the historical and archeological sites. Please consider our quality of life; we shouldn't have to pay a price for someone else to make a lot of money by devaluing our home. I know this has been a lengthy testimony; this is a proposal that has real, substantial problems if passed. I know I haven't been able to address all of the inaccuracies, but I hope that with all the present and past submitted testimony, pictures, slides, letters and the letters from our attorney, the full picture will be come clear. Thank you for your time, Tammie & Clay Walker Property owners of 26730 Hwy 20,112 Bend, OR 97701 Mailing Address: PO Box 871124 lir ,a Wasilla, AK 99687 i New Release, April 5,2005. State of Oregon Department of Environmental Quality ii News Release, July 20, 2005. State of Oregon Department of Environmental Quality iii News Release, July 20, 2005. State of Oregon Department of Environmental Quality iv News Release, November 29, 2005. State of Oregon Department of Environmental Quality v News Release, November 29, 2005. State of Oregon Department of Environmental Quality vi Welcome to the Prineville BLM's South Millican Valley OHV Trail System vii Welcome to the Prineville BLM's South Millican Valley OHV Trail System viii Testimony received from Larry Chitwood, Pat Kliewer's submitted documents Exhibit `7~- Page (p of ~O-TES I 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, JANUARY 25, 2006 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. CONSIDERATION of Approval of Amendments to Mental Health Agreements with Marc Williams, MD; Joseph Barrett, MD; Donald McFerran, NP; and Gayle Woosley, NP - Lori Hill, Mental Health Department 3. CONSIDERATION of Approval of a Federal Grant for the "Safe Havens" Program - Hillary Saraceno, Commission on Children & Families 4. CONSIDERATION of Signature of Document No. 2006-002, a Lease Agreement for a Portion of County Property Located at 1340 NW Wall Street - Susan Ross/Teresa Rozic, Commissioners' Office 5. A PUBLIC HEARING regarding the Proposed Vacation of "E" Avenue between Second Street and Third Street, Terrebonne - George Kolb, Road Department 6. CONSIDERATION of Signature of Order No. 2006-001, Vacating "E" Avenue between Second Street and Third Street, Terrebonne - George Kolb, Road Department Board of Commissioners' Meeting Agenda Wednesday, January 25, 2006 Page 1 of 8 Pages 7. A PUBLIC HEARING regarding the Proposed Vacation of a Portion of A. W. Willard Road (near Johnson Market Road, Bend) - George Kolb, Road Department 8. CONSIDERATION of Signature of Order No. 2006-002, Vacating a Portion of A. W. Willard Road - George Kolb, Road Department 9. A PUBLIC HEARING (Continued from December 12, 2005) on File No. A- 05-12, regarding the Hearings Officer's Decision Denying an Accessory Structure on a Parcel in the Forest Use Zone (Applicant: Dieter Mees) - Will Groves, Community Development Department 10. A PUBLIC HEARING (Continued from December 14, 2005) 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 11. A MEASURE 37 HEARING on File No. M37-05-59, Order No. 2006-005 (Claimant: Gill) - Tom Anderson, Community Development Department; Mark Pilliod, Legal Counsel 12. A MEASURE 37 HEARING on File No. M37-05-60, Order No. 2006-006 (Claimant: Gill) ) - Tom Anderson, Community Development Department; Mark Pilliod, Legal Counsel 13. A MEASURE 37 HEARING on File No. M37-05-61, Order No. 2006-007 (Claimant: Miller) - Tom Anderson, Community Development Department; Mark Pilliod, Legal Counsel 14. A MEASURE 37 HEARING on File No. M37-05-63, Order No. 2006-009 (Claimant: Fullerton) - Tom Anderson, Community Development Department; Mark Pilliod, Legal Counsel 15. CONSIDERATION of Approval of Document No. 2006-034, the Four Rivers Vector Control District Annual Work Plan - Mark Pilliod, Legal Counsel 16. CONSIDERATION of Chair Signature of an Oregon Liquor Control License Application for Crane Prairie Resort (Eagle Adventures, LLC) Board of Commissioners' Meeting Agenda Wednesday, January 25, 2006 Page 2 of 8 Pages CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 17. CONSIDERATION of Approval of Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $57,117.56 (two weeks) CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 18. CONSIDERATION of Signature of Letters, Changing the Terms of Appointments to the Extension/4-H County Service District: John Ahrens, through June 30, 2006 • Bill Kuhn, through June 30, 2007 • Genevieve Waldron, through June 30, 2007 19. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District in the Amount of $2,200.65 (two weeks) RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 20. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $2,417,428.45 (two weeks) 21. ADDITIONS TO THE AGENDA 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.) Board of Commissioners' Meeting Agenda Wednesday, January 25, 2006 Page 3 of 8 Pages Tuesday, January 24, 2006 5:30 p.m. Public Presentation on Jail Funding Proposal 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 Thursday, January 26, 2006 7:00 a.m. Regularly Scheduled Meeting with the Redmond City Council, Redmond Fire Hall 10:30 a.m. Meeting with State Forester Monday, January 30, 2006 10:00 a.m. Board of Commissioners' Work Session 12:00 noon Budget Orientation Meeting 2:00 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 3:30 p.m. Local Public Safety Coordinating Council (LPSCC) Regular Meeting 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 Board of Commissioners' Meeting Agenda Wednesday, January 25, 2006 Page 4 of 8 Pages Monday, February 13, 2006 11:30 a.m. Regularly Scheduled Update Meeting with Department Heads 1:30 p.m. Administrative Liaison 3:30 p.m. Regularly Scheduled Meeting with the Director of Community Development Monday, February 20 2006 Most County offices will be closed to observe Presidents' Day. 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 10:00 a.m. Board of Commissioners' Meeting 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 Wednesday, March 1, 2006 10:00 a.m. Board of Commissioners' Meeting Monday, March 6, 2006 10:00 a.m. Board of Commissioners' Meeting for the Week 1:30 p.m. Administrative Liaison Board of Commissioners' Meeting Agenda Wednesday, January 25, 2006 Page 5 of 8 Pages Thursday, March 9, 2006 7:00 a.m. Regularly Scheduled Meeting with the Redmond City Council, Redmond Fire Hall 3:00 p.m. Regularly Scheduled Meeting of the Fair Board, at the Fair & Expo Office Monday, March 13, 2006 1:30 p.m. Administrative Liaison 3:30 p.m. Regularly Scheduled Meeting with the Director of Community Development Wednesday, March 15, 2006 9:00 a.m. Regularly Scheduled Meeting with the Director of the Health Department 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 3:45 p.m. Regularly Scheduled Meeting with the Director of the Mental Health Department Monday, March 20, 2006 10:00 a.m. Board of Commissioners' Work Session 1:30 p.m. Administrative Liaison Tuesday, March 21, 2006 3:00 p.m. Regularly Scheduled Meeting with the Director of the Fair & Expo Center Wednesday, March 22, 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, March 27, 2006 10:00 a.m. Board of Commissioners' Work Session 2:00 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, January 25, 2006 Page 6 of 8 Pages Wednesday, March 29, 2006 10:00 a.m. Board of Commissioners' Meeting Monday, April 3, 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 (LPSCC) Regular Meeting Wednesday, April 5, 2006 10:00 a.m. Board of Commissioners' Meeting Thursday, April 6, 2006 8:00 a.m. Regularly Scheduled Meeting with the Sisters City Council, Sisters City Hall Monday, April 10, 2006 10:00 a.m. Board of Commissioners' Work Session 1:30 p.m. Administrative Liaison 3:30 p.m. Regularly Scheduled Meeting with the Director of Community Development Tuesday, April 11, 2006 1:30 p.m. Regularly Scheduled Meeting with the Director of Information Technology Wednesday, April 12, 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 Board of Commissioners' Meeting Agenda Wednesday, January 25, 2006 Page 7 of 8 Pages Thursday, April 13, 2006 12:00 noon Regular Meeting of the Audit Committee Monday, April 17, 2006 12:00 noon Regularly Scheduled Update Meeting with Department Heads 1:30 p.m. Administrative Liaison Tuesday, April 18, 2006 3:00 p.m. Regularly Scheduled Meeting with the Director of the Fair & Expo Center Monday, April 24, 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 Wednesday, April 26, 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 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, January 25, 2006 Page 8 of 8 Pages