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2007-565-Ordinance No. 2007-013 Recorded 5/30/2007REVIEWED LEGAL COUNSEL REVIEWED CODE RE W COMMITTEE DESCHUTES COUNTY OFFICIAL NANCY BLANKENSHIP, COUNTY COMMISSIONERS' JOURNAL IIIIIIII IIIIIIIIIIIIIIIIIII I III 2007-Sds CLERKDS Q 1007.566 05/30/2007 03:58:33 PM BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 23, the Deschutes County Comprehensive Plan, to Change the Plan Designation for Certain Property From Surface Mining to Rural Residential Exception Area. * ORDINANCE NO. 2007-013 WHEREAS, Eric W. Coats applied for a Plan Amendment to Title 23.100 of the Deschutes County Code, to change the plan designation of certain property from Surface Mining to Rural Residential Exception Area; and WHEREAS, the Deschutes County Hearings Officer approved the application; and WHEREAS, because no appeal was filed and the Board of County Commissioners ("Board") did not initiate review of the application, pursuant to Deschutes County Code ("DCC") 22.28.030(B), the Board must approve the plan designation change from Surface Mining to Rural Residential Exception area; and WHEREAS,'Deschutes County Ordinance 2007-13 ordained the Plan Map to be a component of Title 23 and, therefore, any amendment to the Plan Map is an amendment to Title 23; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Title 23, the Deschutes County Comprehensive Plan Map is amended to change the plan designation for certain property described in Exhibit "A" and depicted on the map set forth as Exhibit "B", attached and by this reference incorporated herein, from Surface Mining to Rural Residential Exception Area. Section 2. AMENDMENT. DCC Title 23, amended to read as described in Exhibit "C", attached language to be deleted in s#ikethfaugh. the Deschutes County Comprehensive Plan is hereby hereto and by this reference incorporated herein, with PAGE 1 OF 2 - ORDINANCE NO. 2007-13 (05/07/07) Section 3. FINDINGS. The Board adopts as its findings in support of this decision, the Decision of the Hearings Officer, attached hereto as Exhibit "D", and by this reference incorporated herein /M Dated this of , 2007 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: - ja~A, Recording Secretary Date of 1st Reading: day of , 2007. Date of 2nd Reading: /J % day of '2007. Record of Adoption Vote Commissioner Yes No Abstained Excused Michael M. Daly ✓ Dennis R. Luke Tammy Baney n'1 Effective date: 13' -day of &t44f-2007. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2007-13 (05/07/07) -e ~g I ti p a.. ET. A- `d!tirwnc~ -t3 2-00-7 SECOIBINS BEQUESfEO BY 165 %[154 18EN REtORBED YAL TO . Robert L. Coats 1270 Trenton load, Oregon 72.1 i S STATE 0' •-'~REGC CO" -"403 Daobyt7edity ih :"r wUbiu hu:. t',ntolwtitu:gtaot odlorn,- "tKQ~dayof til/Ail Hook S cg?Mai& / Ctedi -SPACE A101E Hill. LINE FOR 11ECOIOEI'1 AFFIX DOCUMENTARY STAMPS ; pow Na ' N0. Grant For a valuable conoidemtion receipt of which is hereby acknowledged, 16NCf N1102RI! HALOS, a ategto vane hereby GRANT(S) to 11011111 L. COATS An JOTCI 1. COIMs, knobs" and wife an Joist Taunts the following described reel property in the ORIm County of VISCIUM , State often; . That portion of the Nortbast quarter of Scott" 25 lwnsup 13 lath, Hang 101aat, S. N. N. Oagust" County, Oreps, described of follwot Beginning at the Intersection of the Nestorly lies of said Nat*st on quarter of Section 23 with the soadmostaly sideline of lood•Stataa state 110myi thence alas said westerly line Bath On 37' 30" Nat 693,56 lost to a point in a lies'parallel uitb'tba'northerly line of the South eso-half of the N k E01k of said Section 25 and distant southerly therafren at rlSht amglos 100.00 fact; tbwce along said parallel line South 89' 43' 00" pet 300.00 festl thongs sloos a list parallel with said westerly limo of the Northeast one quater of Station 23, North 0' 37' 30" lost 435.00 feet to sold Southeasterly line of said Bead-Sistae State HilMayl thence glans said eathoestaly lino North 620 03' 30" Yost 962.38 teat to point of be/tastes. The true and actual coosiderstios paid for this transfer Is #2.396.00 Ihted.:........_Y!l_St,1969......._..._........._..m....._...._ . COA~ U1'YOOFALIFORnIVIA`~ }a On ll~~~'f(.~ -J and Sta"'~tc, pr~,e°ntlaly i`1 ~9ia aM for aaW ~ . lsacy Narprot lolls bown to eidwrAd to the within i ilmmrnk ad arl~mo cdp d m ow that hepbe/theyy- emw the woo. nnr narpr . es . , Ilan Tli 8wtemad Yb: - arelODU tMl WANOA JO McAFEE Nanta NOMrr rerNe.CAUrOtNIA Address above RINCNAI orr:a IN OeANet eouh* CRY. Stew 6 Zip t2/ M m Wm Espies IeptrmW 2& 4O~30 BOND STRUT. stwo INSUR4ft . 6{.,~.Nm' 01'1•hl . Z~© 5 ' PAbE RECORDING REQUESTED BY 5 I • STATE OF OREGON County of Deschuteo • - l booby codify Ibot the venix o lostsa• . mew of a ddng was t hod for Bseeed 6 ~d ' t e ar let co W RECORDED itllll TO WHEN aI&;,ee•o'docJc 1E4, and nootded - ' . I& Bmk i7 oa pope 701; Reawdd Robert L. Costa °t- to yam/ to 6.9 1270 Trenton Avenue ROSEMASY PATTERSON ' Dead Ore6onr 97701 E9CHl1TE5 COUNTY TITLE 'INSURANCE CO. t4.,~ %"IsP" ' ' 030 BOND STREET- BEND. ORC•GON97701 --;-SPACE RBOYE'TNIS•LINE•FOR RECORDER'S USE DOCUMENTARY TRANSFER TAX i • 17 COMPUTED ON FULL VALUE OF PROPERTY CONVEYED, OR, ' ❑ COMPUTED ON FULL VALUE LESS LIENS A ENCUMBRANCES* REMAINING THEREON AT TIME OF SALE. - . Sitnefteo of d•cter•nt we agent dwhinn lnq few Finn No.. . t ❑ Unt.corper•bd Ane 17 City of ESCROW NO. T.O. NO. Grant Deed , J r, !J For a valuable consideration receipt of which is hereby acknowledged, i NANCY MARGARET HALUS, a single woman. hereby GRANT(S) to ROBERT L. COATS AND JOYCE E. COATS, husband and wife • the following described real properly in the OREGON 1 County at Deschutes , State of 8alifarnim That portion of the Northeast quarter of Section 250 Township 15 South, Range 10 East of the Willamette.Maridian, Deschutes County,'Oregon, described as follows:. Beginning,at the intersection of the Westerly line of said Northeast one- quarter of section 25 with the Southwesterly sideline of Bend-Sisters State Highway; chance along said westerly line South 0' 37' 30" West 662.10 feet to a point in ■ line parallel with the Northerly line of the South one half of' the Northwest quarter of the Northeast quarter of said Section 25 and n distant southerly therefrom at right angles 100.00 feet to the point of beginning; thence along said parallel line, South 691 431 0011 East 500.00 feet; thence South 0' 37' 30" West 561.71 feet; thence North B9' 43' 0011 West 500 feet; thence North 0. 371 3011 East 561.71 feet to the point of beginning. . er Value of property conveyed herein $2,580.00 December 2. 1970 . cp Dated l cy Margaret Hdlus STATE OF CALIFORNIA, COUNTY OF..... Orange..--'- -J •On December S. 1970 ftefom me. , • • the unrlersignlrl, it Nolan- 1'ublir in and for said Gwnty . . .and tilnte. tu•wnnnlly npp,xtn+l , Nancy Margaret Bolus •hnmen to ms to hr the PenumQ) whose, name(e) Is/arc . nuhs,•rihed In the within instrument. and acknowledged to me that IN•/she/Ib:g• rxnviterl the same. WITNE my ham' nml nfricial amt. • r hfail Tax Nlnlemenl To: Name Address above. orrxlAL SM BYRD K, SMITH 8lreet Addrese NOTARY F'Ja1. ZZAlirO RNIA Pgrtrip.1L nrrIC3 ire City. State R7111 - ONI:;q{ 1:0UNry hty C.:mmission Expires OCL 12, 1974 1 L•oer acv, e_~o ,sei i ~ ~ ~ ^ 3 of 3 n ~c~i via TI-ce - 2D07 - 13 Plan Amends from Surface (SM) to Rural Re Exception Area Legend Legend taedPlaitArrtendmerKecunrd, COMPREHENSIVE PLAN MAP BOARD OF COUNTY COMMISSIONERS Comprehensive Plan Designation File No. PA-06-2 OF DESCHUTE~~UNTY OREGON Agriculture (AP) air Rural Residerritial E"°epl'°"A'ea (RREA) Exhibit "B" wrIecemining (SM) a to Ordinace 2007-13 ~ < asai : n V V ATTEST Recording Secretary 0 250 500 1.000 • rtl~ -""'""°°"0-- ••"o Y d ~~•~'~~'0~~~"~` - Feet Dated this of 2007 Effective Date: 7 ApA1 12.2007 23.100.070. Goal 5 Inventory. Goal 5 Inventory - Mineral and Aaareaate Cites SITE NO. LEGAL DESCRIPTION NAME TYPE QUANTITY* QUALITY ACCESS/LOCATION 246 151010-00-00205, 207, 300, 302,303 Tewalt S & G 10,000 Good Hwy 20 248 151012-00-00100 Cyrus Cinders 30.2 M Excellent Cloverdale Road 249 151025 ---m-2,2505 Db-Geats Re,* 240" ODOTSP- 251 151211-130-01400,151214- AO-00800 Cherry S & G 125,000 Good 252 151200-00-04700, 04701 Thornburgh Rock 2.5 M Good 271 151036-00-00800 Deschutes County S & G 2 M Mixed Harrington Loo Road 273 151117-00-00100 Deschutes County S & G 75,000 Excellent Fryrear Rd/Redmond- Sisters 274 151117-00-00700 Deschutes County S & G Excellent F rear Road 275 151100-00-02400 Deschutes County S & G 175,000 Good F rear Landfill 277 151011-00-01100 Oregon State H S & G 100,000 ODOT Specs 278 151140-AO-00901, 151211- DO-01200 State of Oregon S & G 18,000 ODOT Specs 282 171000-00-00100 Crown Pacific Cinders 100,000 Fair 283 171000-00-00100 Crown Pacific Cinders 50,000 Fair 288 171111-00-00700 Tumalo Irrigation S & G 250,000 Good 292 171112-00-00900 RL Coats S & G 326,000 ODOT Specs 293 17112-00-00500, 600, 700, 800 RL Coats S & G 3 M ODOT Specs 294 171113-00-00817 Bend Aggregate S & G 777,000 Excellent Kli el AcresBend 296 171100-00-02702 Crown Pacific Cinders 100,000 Excellent Shevlin Park/Johnson Rd 297 171123-00-00100 Crown Pacific Cinders 60,000 Johnson Rd/Tumalo 303 171207-00-00300 Cascade Pumice Pumice 750,000 Good 303 171207-00-00300 Cascade Pumice S & G 10,000 Good 313 171433-00-00600 Deschutes County S & G 100,000 Good 313 171433-00-00600, 120 Deschutes Count Storage Dodds Road/Alfalfa 314 171332-00-01100 Deschutes County Dirt 150,000 Good 315 140900-00-02100 Stott Rock 93,454 tons ODOT Specs Highway 20 316 140900-00-00202 Black Butte Ranch S & G 7 M Good 317 140900-00-01300 Willamette Ind Cinders 1.2 M Good 322 141200-00-01801 Fred Gunzner S & G 1.5 M Mixed Lower Brid e/Terrebonne 322 141200-00-01801 Gunzner Diatomite 500,000 Good Lower Brid e/Terrebonne 324 141200-00-00702 ODVA S & G 490,000 Good Lower Brid e/Terrebonne 326 141236-00-00300, 301 US Bank Trust S & G 1.5 M Good 330 141328-00-00702, 703 Larry Davis Cinders 50,000 Good 331 141329-00-00100, 103 EA Moore Cinders 100,000 Good 332 141329-00-00102 RL Coats Cinders 2 M Good Northwest Wa /Terrebonne 333 141329-00-00104 Robinson Cinders 2.7 M Good 335 141333-00-00890 Erwin Cinders 100,000 Excellent Pershall Wa [Redmond 336 141333-00-00400, 500 US Bank Trust Cinders 4.5 M Good Cinder Butte/Redmond 339 141132-00-01500 Deschutes County Dirt 200,000 Fill Goodard Loo Bend 341 161000-00-00106 Young & Morgan S & G 1 M Good 342 220900-00-00203 Crown Pacific Cinders 200,000 Good 345 161000-00-01000 Crown Pacific Cinders 50,000 Good 346 161000-00-01000 Crown Pacific Cinders 50,000 Good G Imo. 1 kd~z r~ari c-~ 7-00-7- Chapter 23.100 10 (08/2005) DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: PA-06-2, ZC-06-1 APPLICANT: Eric W. Coats Co-Trustee of Joyce E. Coats Revocable Trust 63285 Skyline Ranch Road Bend, Oregon 97701 PROPERTY OWNERS: APPLICANT'S ATTORNEY: Joyce E. Coats Revocable Trust Tax Lots 2502 and 2505 Rainbow Trust Nancy Halus McDonell 223 Via Socorro San Clemente, California 92672 Tax Lot 2500 Liz Fancher 644 N.W. Broadway Street Bend, Oregon 97701 3~31~ .~23 S g OR c~v OESZZU M i COBJAW REQUEST: The applicant is requesting approval of a plan amendment to change the designation of the subject property from Surface Mining to Rural Residential Exception Area and to remove Surface Mining Site 249 from the county's inventory of significant mineral and aggregate resource sites, and approval of a zone change from SM to MUA-10 for the subject property which is located on the south side of U.S. Highway 20 southeast of Sisters. STAFF REVIEWERS: Catharine White, Associate Planner Anthony Raguine, Associate Planner HEARING DATE: August 28, 2006 RECORD CLOSED: November 17, 2006 L APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining * Section 18.52.200, Termination of the Surface Mining Zoning and Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 1 of 19 EXHIBIT Q PAGE I OT J-9 ©~C *-cL-c-v- 200--13 Surrounding Surface Mining Impact Area Combining Zone 2. Chapter 18.136, Amendments * Section 18.136.020, Rezoning Standards B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.100, Surface Mining D. Oregon Administrative Rules, Chapter 660 1. Division 12, Transportation Planning * OAR 660-12-060, Plan and Land Use Regulation Amendments 2. Division 15, Statewide Planning Goals and Guidelines 3. Division 23-0180, Mineral and Aggregate Resources II. FINDINGS OF FACT: A. Location: The subject property is identified as Tax Lots 2500, 2502 and 2505 on Deschutes County Assessor's Map 15-10-25. The property is located south of U.S. Highway 20 near its intersection with Cloverdale Road southeast of Sisters. Tax Lot 2500 has an assigned address of 67565 Highway 20 West, Bend. B. Zoning and Plan Designation: The record is unclear with respect to the existing plan designation and zoning of the subject property, and the applicant's proposal was motivated in part by a desire to clarify the property's plan designation and zoning. The staff report states Tax Lots 2502 and 2505 are zoned Surface Mining (SM) and Tax Lot 2500 is zoned Multiple Use Agricultural (MUA-10). The staff report also states the county's comprehensive plan map designates all three tax lots as Surface Mine (SM). In addition, some or all of the subject property is designated as Surface Mining Site 249 on the county's inventory of significant mineral and aggregate resource sites. Finally, the staff report states all three tax lots are zoned Landscape Management Combining (LM) Zone because they are located within one-quarter mile of Highway 20, a designated LM corridor. Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 2 of 19 EXHIBIT PAGE 2 8_~ r q ©,c- & vice, 200 -7 -13 C. Site Description: All three tax lots are contiguous and form an irregular-shaped property. Tax Lot 2500 is approximately 6 acres in size and is developed with an existing single- family dwelling. Tax Lots 2502 and 2505 are approximately 12 acres in size together and consist of a reclaimed surface mine site with mostly disturbed soils and a few areas of undisturbed soils. A piped irrigation canal traverses the property in an underground pipe. The record indicates there are no farm uses or merchantable trees on the subject property. Existing topography consists of level areas that have not been mined on Tax Lot 2500 and portions of Tax Lots 2502 and 2505, and areas of varying topography where mining and reclamation have occurred. Existing vegetation consists of native brush and grasses where mining and reclamation have occurred, and scattered mature pine and juniper trees on areas not mined and reclaimed. Tax Lots 2500 and 2502 abut Highway 20 along their northern property boundaries. Tax Lot 2505 is located south of Tax Lots 2500 and 2502. Access to all three tax lots is from Highway 20. D. Soils: The NRCS data in the record identify soils on the subject property as comprised of Soil Unit 85A, Lundgren-Sandy-Loam, and Soil Unit 61C, Henkle-Fryrear-Lava Flow Complex. Tax Lot 2502 consists entirely of Soil Unit 85A soils, and Tax Lots 2500 and 2505 consist of both Soil Units 85A and 61C soils. Neither of these soil units is considered high value. Due to previous mining and reclamation, most soils on the subject property now are classified as "disturbed soils" that are not rated by NCRS. E. Surrounding Zoning and Land Uses: Land to the north across Highway 20 is zoned Exclusive Farm Use-Tumalo/Bend/Redmond Subzone (EFU-TRB) and is developed with rural residences and farm uses consisting primarily of livestock grazing on irrigated pasture and hay production. Land south of Highway 20 and surrounding the subject property on the east, south, and west is zoned Multiple Use Agricultural (MUA-10) and is developed with rural residences and small-scale farms. F. Procedural History: The subject applications were submitted on May 30, 2006 and were accepted by the county as complete on June 29, 2006. Because the applications include a request for a plan amendment and related zone change, under Section 22.20.040(D) of the county's land use procedures ordinance the applications are not subject to the 150-day period for issuance of a final local land use decision under ORS 215.178. A public hearing on the applications was scheduled for August 28, 2006, and a staff report was issued on August 17, 2006. By a letter dated August 25, 2006, the applicant requested that the public hearing be continued for 60 days to allow the applicant to respond to issues raised in the staff report, and in particular to obtain a geotechnical report concerning the amount of mineral and aggregate resource remaining on the subject property. Because the request for a continuance was submitted after notice of the August 28, 2006 public hearing was published, the Hearings Officer opened the public hearing on that date and continued it on the record to November 14, 2006. At the continued public hearing, the Hearings Officer received testimony and evidence, left the written evidentiary record open through November 17, 2006 and allowed the applicant through November 27, 2006 to file final argument pursuant to ORS 197.763. The applicant waived submission of final argument, and the record closed on November 17, 2006. Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 3 of 19 EXHIBIT PAGE 3 c;~ I I G. Proposal: The applicant requests approval of a plan amendment to change the designation of the subject property from Surface Mine (SM) to Rural Residential Exception Area (RREA) and to remove Surface Mining Site 249 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The applicant also requests approval of a zone change from SM to MUA-10 for the subject property. The staff report correctly notes that removal of the SM zoning on the subject property also would remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on property located within one-half mile of the SM Zone. H. Public/Private Agency Comments: The Planning Division mailed notice of the applicant's proposal to a number of public and private agencies and received responses from: the Deschutes County Environmental Health Division, Property Address Coordinator, Road Department, Building Division, and Assessor; the Oregon Department of Water Resources, Watermaster-District 11; and Pacific Power and Light. These comments are set forth verbatim at page 3 of the staff report and/or are included in the record. The following agencies had no comment or did not respond to the request for comments: the Deschutes County Assessor and Transportation Planner; the Cloverdale Fire Department; the Three Sisters Irrigation District; Central Electric Cooperative; Qwest; and the Oregon Departments of Fish and Wildlife (ODFW), Geology and Mineral Industries (DOGAMI), and Transportation (ODOT). 1. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 250 feet of the subject property. In addition, notice of the public hearing was published in the "Bend Bulletin" newspaper, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter closed, the county had not received any letters from the public in response to these notices. Two members of the public testified at the public hearing. J. Lot of Record: The staff report states that each of the three tax lots comprising the subject property is considered by the county to be a legal lot of record as follows: Tax Lot 2502 is a legal lot of record pursuant to lot-of-record verification decision LR-01-29; Tax Lot 2505 is a legal lot of record pursuant to lot-of-record verification decision LR-01-9; and Tax Lot 2500 is a legal lot of record having been created as Parcel 1 of MP-78- 223. III. CONCLUSIONS OF LAW: PLANAMENDMENT FINDINGS: The applicant has requested approval of a plan amendment to change the plan designation of the subject property from SM to RREA, and to remove Surface Mining Site 249 Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 4 of 19 EXHIBIT D PAGE ~ ! ~ ~ ~ C- 2 0 7-13! from the county's Goal 5 inventory of significant mineral and aggregate resource sites. At the outset, it is useful to review the plan designation history of the subject property. 1. Plan Designation History; In the late 1980's the Land Conservation and Development Commission's (LCDC's) acknowledgement of the county's comprehensive plan provisions addressing mineral and aggregate resources under Goal 5 was reversed and remanded by the Court of Appeals in Coats v. LCDC, 67 Or App 504 (1984). Pursuant to a subsequent LCDC order the county undertook a lengthy process to inventory mineral and aggregate resources in the county, to develop a plan to preserve and protect those resources, and to amend the county's comprehensive plan and zoning ordinance to adopt the inventory and measures to protect sites. These plans were adopted through several ordinances and included placement of Site 249 on the inventory, adoption of a site-specific ESEE (Economic, Social, Environmental and Energy) analysis for Site 249, and adoption of ordinances designating and zoning the subject property for surface mining. Subsequently, in 1992 as part of the county's state-mandated periodic review the county adopted ordinances amending its original 1979 comprehensive plan map to conform this map to the county's acknowledged zoning maps, and in particular to include all exception areas designated Rural Residential, some of which had been inadvertently omitted from the 1979 map. The record indicates the RREAs adopted in the 1992 comprehensive plan map include the three tax lots that comprise the subject property. The Hearings Officer finds these exception area designations constitute the underlying plan designations for the subject property that predated its SM designation and guide redesignation following removal of the SM designation. 2. Current Plan Designation. The record is unclear as to whether all three tax lots that comprise the subject property are designated and zoned SM. The record indicates Tax Lot 2500 never was mined. And the staff report notes the legislative history of the county's 1990 designation of SM Site 249 included in the record shows Tax Lot 2500 was neither zoned SM nor included within SM Site 249 at that time. For example, the county's site-specific ESEE analysis for Site 249 states the site includes Tax Lots 2502 and 2505, and the SM site map adopted by the county for Site 249 does not include Tax Lot 2500. However, the county's amended comprehensive plan map adopted in 1992 by Ordinance 92-061, with a scale of one inch equals two miles, appears to include Tax Lot 2500 within SM Site 249. For that reason staff and the applicant concluded, and the Hearings Officer agrees, that a plan amendment application including Tax Lot 2500 is the most appropriate means of clearing up ambiguity surrounding the plan designation for Tax Lot 2500. The staff report states, and the Hearings Officer also agrees, that no exception to Goal 3, Agricultural Lands, is required for the proposed plan amendment from SM to RREA. That is because the county took an exception to Goal 3 for the subject property when it adopted Ordinance 92-060 amending the comprehensive plan map to include within the county's RREAs the tax lots that comprise the subject property. ' The applicant submitted a memorandum dated November 17, 2006 detailing the mapping history of Tax Lots 2500, 2502 and 2505 and the resulting ambiguity. Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 5 of 19 EXHIBIT I - PAGE 1 © , g ria rice, 2-0 0 7 - l3 3. Applicable Comprehensive Plan Provisions. The Hearings Officer finds the comprehensive plan does not include approval standards for plan amendments. Staff and the applicant have identified the following plan policies they believe are relevant to the proposed plan amendment from SM to RREA. A. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.24, Rural Development FINDINGS: This chapter addresses development in rural areas. The staff report states, and the Hearings Officer agrees, that the rural development goals and policies in this chapter would be satisfied by the proposed plan amendment from SM to RREA in light of the county's 1992 adoption of a comprehensive plan including the subject property within the designated RREAs. 2. Chapter 23.60, Transportation a. Section 23.60.010, Transportation * * * The purpose of DCC 23.60 is to develop a transportation system that meets the needs of Deschutes County residents while also considering regional and state needs at the same time. This plan addresses a balanced transportation system that includes automobile, bicycle, rail, transit, air, pedestrian and pipelines. It reflects existing land use plans, policies and regulations that affect the transportation system. FINDINGS: As discussed in the Findings of Fact above, access to the subject property is from Highway 20, a designated state highway and primary arterial maintained by ODOT. The proposed plan amendment and zone change would allow the subject property to be developed with rural residences that would generate minimal additional traffic. As discussed in the findings below, the Hearings Officer has found that for this reason the proposed plan amendment and zone change will not significantly impact affected transportation facilities and therefore would be consistent with the Transportation Planning Rule (TPR) in Oregon Administrative Rules (OAR) Chapter 660, Division 12. For these reasons, I also find the proposed plan amendment will be consistent with the transportation policies in Chapter 23.60 of the comprehensive plan. 3. Chapter 23.68, Public Facilities a. Section 23.68.020, Policies 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban and rural services. In this way public services may guide development Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 6 of 19 EXHIBIT b PAGE 6 0 l`~ ~~c~~Y~0.~1~ ZOt97-13 while remaining in concert with the public's needs. 3. Future development shall depend on the availability of adequate local services in close proximity to the proposed site. Higher densities may permit the construction of more adequate services than might otherwise be true. Cluster and planned development shall be encouraged. 9. New development shall not be located so as to overload existing or planned facilities, and developers or purchasers should be made aware of potentially inadequate power facilities in rural areas. FINDINGS: As discussed in the Findings of Fact above, most of the land surrounding the subject property is zoned MUA-10 and is developed with rural residences and small-scale farms. The staff report states, and the Hearings Officer agrees, existing rural residential development indicates public facilities and services currently are available in the area. As discussed in detail in the findings below, the subject property is located within the boundaries of the Cloverdale Rural Fire Protection District, would receive police protection, and can be served by existing utility providers. Existing rural development also indicates dwellings on the subject property can be served by on-site wells and septic systems. Finally, the subject property has access from Highway 20 and such access can continue with access permits from ODOT. For these reasons, I find the proposed plan amendment would be consistent with these public facilities plan policies. 4. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality a. Section 23.96.030, Policies 10. As part of subdivision or other development review, the County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those resources to the County while considering the public need for the proposed development. FINDINGS: The staff report states, and the Hearings Officer agrees, that this plan policy is not Coats/Rainbow Trust PA-06-2, ZC-06-1 EXHIBIT = PAGE Page 7 of 19 O C-& ,~_cin c_e 2_00-7- r a, applicable to the proposed plan amendment because the applicant is not seeking subdivision approval or development review, and in any case when building permits are sought for dwellings on the subject property they may be subject to LM Zone review. B. Oregon Administrative Rules 1. OAR 660, Division 12, Transportation Planning Rule a. OAR 660-012-060, Plan and Land Use Regulation Amendments. (1) Amendments to functional plan, acknowledged comprehensive plans, and land use regulations which significantly affect a transportation facility shall assure that allowed land uses are consistent with the identified function, capacity, and level of service of the facility. This shall be accomplished by either: (a) Limiting allowed land uses to be consistent with the planned function, capacity and level of service of the transportation facility; (b) Amending the TSP to provide transportation facilities adequate to support the proposed land uses consistent with the requirements of this division; or (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (2) A plan or land use regulation amendment significantly affects a transportation facility if it: (a) Changes the functional classification of an existing or planned transportation facility; (b) Changes standards implementing a functional classification system; (c) Allows types or levels of land uses which would result in levels of travel or access which are inconsistent with the functional classification of a transportation facility; or (d) Would reduce the level of service of the facility below the minimum acceptable level identified in the TSP. FINDINGS: The Hearings Officer finds this rule is applicable to the applicant's proposal because it involves an amendment to an acknowledged plan. The proposed plan amendment would change the designation of the subject property from SM to RREA, and the applicant has requested approval of a zone change from SM to MUA-10 for the subject property. The MUA-10 zoning would allow the tax lots that comprise the subject property to be developed with two new single-family dwellings on Tax Lots 2502 and 2505. The record indicates Tax Lot 2500 already is developed with a single-family dwelling. The Hearings Officer is aware the Institute of Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 8of19 EXHIBIT PAGE % cQ ~ ~lA n eQ ~ ^ 13 Transportation Engineers Trip Generation Manual (ITE Manual) predicts each single-family dwelling will generate approximately 10 average daily vehicle trips (ADTs). Therefore the proposed plan amendment and zone change would permit development generating a total of 20 new ADTs on Highway 20. ODOT did not comment on the applicant's proposal. However, I find the addition of 20 new ADTs to this state highway will not significantly affect it, and therefore the proposed plan amendment is consistent with the TPR. 2. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDINGS: Goal 1, Citizen Involvement. The Hearings Officer finds the proposed plan amendment satisfies this goal because the Planning Division provided public notice of the applicant's proposal through individual mailed notice to affected property owners, posting of the subject property with a notice of proposed land use action sign, and published notice of the public hearing in the "Bend Bulletin" newspaper. In addition, two public hearings will be held before the proposed plan amendment is approved, one before the Hearings Officer and one before the Deschutes County Board of Commissioners (board). Finally, the staff report and my decision will provide the public with information concerning the proposed plan amendment. Goal 2, Land Use Planning. The Hearings Officer finds this goal is met because at least two public hearings will be held on the proposed plan amendment and zone change. Goal 3, Agricultural Lands. As discussed in the findings above, an exception to Goal 3 has been taken for the subject property. Goal 4, Forest Lands. The Hearings Officer finds this goal is not applicable because the subject property is not zoned or designated for forest use. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The applicant's proposal would remove the subject site from the county's Goal 5 inventory of significant mineral and aggregate resource sites. As discussed in detail in the findings above, the Hearings Officer has found the subject site no longer contains a resource meeting the minimum threshold for significance in the new Goal 5 administrative rules, and therefore the applicant's proposal is consistent with Goal 5. Goal 6, Air, Water and Land Resources Quality. As discussed in detail in the findings below, SM Site 249 has been reclaimed and mining activities have ceased. The proposed plan amendment and zone change would allow the subject property to be developed with two new single-family dwellings, and therefore will have little if any impact on the quality of the air, water, and land resources. Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds this goal is not applicable because the subject property is not located in a known natural disaster or hazard area. Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 9of19 EXHIBIT PAGE 'I J 1'( 0 C-cQ%Y 0.YL~ 2-00 7 -13 Goal 8, Recreational Needs. The Hearings Officer finds this goal is not applicable because the proposed plan amendment and zone change do not reduce or eliminate any opportunities for recreational facilities either on the subject property or in the impact area. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the state for a variety of economic activities. The Hearings Officer finds this goal is met because the subject property no longer constitutes a significant mineral and aggregate resource, and therefore allowing it to be redesignated and rezoned for rural residential development will not have adverse economic impacts. Goal 10, Housing. The Hearings Officer finds the proposed plan amendment is consistent with this goal because it would allow the subject property to be developed with two new single-family dwellings. Goal 11, Public Facilities and Services. As discussed in detail elsewhere in this decision, the Hearings Officer has found the subject property can be served by adequate public facilities and services. Therefore, I find the proposed plan amendment will be consistent with this goal. Goal 12, Transportation. The staff report notes that since surface mining activities have ceased on the subject property, traffic-generated impacts on Highway 20 associated with surface mining also have ceased. The proposed plan amendment and zone change would allow the subject property to be developed with two new single-family dwellings. And as discussed in the findings above concerning compliance with the TPR, the Hearings Officer has found the minimal traffic that would be generated by this residential development will not significantly affect Highway 20. Therefore I find the proposed plan amendment and zone change are consistent with this goal. Goal 13, Energy Conservation. The Hearings Officer finds the applicant's proposal will have no effect on energy use or conservation because changing the plan designation and zoning of the subject property, thereby allowing it to be developed with rural residences, will not have an energy impact related to those activities. Goal 14, Urbanization. The Hearings Officer finds this goal is not applicable because the applicant's proposal does not affect property within an urban growth boundary and does not promote the urbanization of rural land. Goals 15 through 19. The Hearings Officer finds these goals, which address river, ocean, and estuarine resources, are not applicable because the subject property is not located in or adjacent to any such areas or resources. ZONE CHANGE FINDINGS: The applicant has requested approval of a zone change from SM to MUA-10 for the subject property and to remove SM Site 249 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. Coats/Rainbow Trust PA-06-2, zC-06-1 EXHIBIT PAGE 10 Page 10 of 19 C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining Zone (SM) a. Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone A. When a surface mining site has been fully or partially mined, and the operator demonstrates that a significant resource no longer exists on the site, and that the site has been reclaimed in accordance with the reclamation plan approved by DOGAMI or the reclamation provisions of this title, the property shall be rezoned to the subsequent use zone identified' in the surface mining element of the Comprehensive Plan. B. Concurrent with such rezoning, any surface mining impact area combining zone which surrounds the rezoned surface mining site shall be removed. Rezoning shall be subject to chapter 18.136 and all other applicable sections of this title, the Comprehensive Plan and Deschutes County Code Title 22, the Uniform Development Procedures Ordinance. FINDINGS: As discussed in the findings above, the staff report and the applicant state it does not appear Tax Lot 2500 ever was part of SM Site 249 or zoned SM. However, due to the existing uncertainty about the plan designation and zoning of the three tax lots that comprise the subject property, the Hearings Officer finds the proposed zone change is an appropriate means to resolve the ambiguity concerning Tax Lot 2500 and to address the status of Tax Lots 2502 and 2505 which clearly were mined as SM Site 249. The county's inventory of significant mineral and aggregate sites describes SM Site 249 as follows: Site No . e Lal Description Name T e Quanti uali 249 151025-00-02502, 2505 RL Coats Rock 250,000 ODOT S cs The Hearings Officer finds the notation "250,000" refers to cubic yards, and the notation "ODOT Specs" refers to ODOT's standards for base rock used for road construction purposes. Section 18.52.200(A) requires that before SM Site 249 can be removed from the county's inventory of significant mineral and aggregate resources and rezoned from SM, the applicant to demonstrate that the site: 1. has been fully or partially mined; 2. no longer has a significant resource; and Coats/Rainbow Trust PA-06-2,ZC-06-1 EXHIBIT \3 PAGE lo Page 11 of 19 ~~i v~vLCe~ 200?- 13 3. has been reclaimed in accordance with the DOGAMI-approved reclamation plan. The applicant's original burden of proof states with respect to these requirements: "An estimated quantity of 250,000 cubic yards of material is included in the County's inventory of aggregate and mineral resources for Site 249. The amount of aggregate and mineral material removed from the mine site is unknown as DOGAMI reports are incomplete and do not account for all years of mining at the site. The Coats mine was operated as an exempt mine until 1991 when it was determined that Mr. Coats was mining outside of the boundaries of the grandfathered mine site and was removing far more material than allowed (5, 000 cubic yards per year). At the same time, it was also learned that R. L. Coats had exhausted the materials on his property and was mining into the setback area on the south part of the site and conducting mining operations on adjoining properties. "The estimate of available resource appears to be based on a statement by R. L. Coats that the rock on the site is 42 feet deep and the site is 12 acres in size. A copy of minutes of County ESEE hearings regarding mine site 249 which contain this information are included as Exhibit P of this application. This estimate appears to have been overstated. The depth of the mine, at its deepest point, was 25 to 35 feet as described in a 1991 DOGAMI Report of On-Site Inspection, Exhibit Q of this application. Additionally, seven acres of the 12-acre site had been mined prior to 1972. More mining also occurred after 1972 and prior to the adoption of the inventory. The area of the site available for extraction is not a full twelve acres. A 25 foot setback and back slope requirements significantly reduced the area available for mining on the north, east and west sides of the property. An irrigation canal crossed the south and middle part of Tax Lot 2502 and prevents mining on a fairly large area of land around the canal. The canal is now located underground but continues to prevent mining of this part of the site. R. L. Coats also encountered rock quality problems in the pre-existing quarry area reducing the amount of resource available for extraction. See August 12, 1991 Letter to R. L. Coats from E. Frank Schnitzer, DOGAMI, Exhibit R. The applicant is confident that all of the resource was removed prior to reclamation. R. L. Coats had a reputation for extracting all available resources. In the case of this mine, Mr. Coats ran out of resource within the boundaries of his mine site and trespassed on adjoining properties and mined in setback areas. This history is documented by Exhibit S (Notice to Mined Land Reclamation Office from David Leslie, Associate Planner) and Exhibit T (August 14, 1991 letter from Russell Walston to R. L. Coats). Additionally, a 1991 DOGAMI inspection report, Exhibit Q, indicates that Mr. Coats removed the river gravels from the property 'quite some time ago. 'The remaining basalt exposed by mining Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 12 of 19 EXHIBIT I> PAGE the gravel was mined and crushed in the last phase of mining operations according to Exhibit O. The Exhibit O letter explains that mining occurred to a depth of between 30 and 35 feet at which point it reached the level of groundwater at which point operations were required to stop by the terms of the operating permit. The DOGAMI records of mining activities on the site are incomplete so the applicant cannot accurately determine the amount of resource removed. Additionally, it appears from the reports located that R. L. Coats may have underreported the amount of resource being removed from the property in an effort to maintain the site as an exempt mining operation. In 1991, the County and DOGAMI temporarily closed the mine site because the State determined that R. L. Coats was removing much higher quantities of materials than estimated by Coats in a 1991 estimate he sent to DOGAMI. The Coats estimate was that he would expand his mining area by a volume of 4,100 yards. The State estimated that 10, 000 to 12, 000 yards was removed from the expansion area of the site without permit approval. Mr. Coats obtained a permit to mine the site in 1991. In the next two years, 60, 000 cubic yards of material was reported to have been removed from the site. See Exhibits Uand V. " In response to this information, the staff report concluded, and the Hearings Officer finds, that the subject property has been partially mined and fully reclaimed. The staff report questioned whether the applicant adequately demonstrated that a significant resource no longer exists on the site. The staff report notes that in the Hearings Officer's previous decision in Stott (PA-98-12/ZC-98-6), I held that the provisions of OAR 660 Division 23 regarding compliance with Goal 5 are relevant to this question. OAR 660-023-0250 provides in pertinent part: (1) This division replaces OAR 660, division 16, except with regard to cultural resources, and certain PAPAs and periodic review work tasks described in sections (2) and (4) of this rule. Local governments shall follow the procedures and requirements of this division or OAR 660, Division 16, whichever is applicable, in the adoption or amendment of all plan or land use regulations pertaining to Goal 5 resources. The requirements of Goal 5 do not apply to land use decisions made pursuant to acknowledged comprehensive plans and land use regulations. (2) The requirements of this division are applicable to PAPAs initiated on or after September 1, 1996. OAR 660, Division 16 applies to PAPAS initiated prior to September 1, 1996. For purposes of this section "initiated" means that the local government has deemed the PAPA application to be complete. (3) Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section, a PAPA would affect a Goal 5 resource only if: Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 13 of 19 EXHIBIT -D_ PAGE 13 O~ 1 I Ot'S-ir0,,rtG2 2007- 13 (a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5; The Hearings Officer held a plan amendment and zone change to "de-list" and rezone a surface mining site constitutes a "PAPA," and therefore the provisions of OAR 660-023-0180 concerning mineral and aggregate resources apply to such an application to the extent they reasonably can be applied to a decision to remove a site from the county's adopted inventory. I further found OAR 660-023-180(3) identifies the pertinent standards for determining "significance." This paragraph provides: (3) An aggregate resource shall be considered significant if adequate information regarding the quantity, quality, and location of the resource demonstrates that the site meets any one of the criteria in subsections (a) through (c) of this section,. . (a) A representative set of samples of aggregate material in the deposit on the site meets Oregon Department of Transportation (ODOT) specifications for base rock for air degradation, abrasion, and sodium sulfate soundness, and the estimated amount of material is more than 2,000,000 tons in the Willamette Valley, or 100,000 tons outside the Willamette Valley; (b) The material meets local government standards establishing a lower threshold for significance than subsection (a) of this section; or (c) The aggregate site is on an inventory of significant aggregate sites in an acknowledged plan on the applicable date of this rule. (Emphasis added.) The above-underscored language indicates the applicant need only demonstrate the proposed zone change meets one of the three options for the site to be considered "significant" As was the case in Stott, the subject site meets the criterion in Subparagraph (c) because it is included in the county's inventory of significant mineral and aggregate sites and was acknowledged prior to the effective date of the Goal 5 administrative rules in 1996. However, the Hearings Officer went on to hold in Stott that applying the requirement of Subparagraph (c): . . would create a `Catch-22' where, as here, the applicant is seeking to remove a site from the inventory as no longer `significant.' Consequently, 1 find the 'significant' standard in paragraph (c) should not be applied to PAPAs requesting removal of a site from an acknowledged inventory." The applicant correctly notes the board reversed in part the Hearings Officer's decision in Stott. However, I concur with the applicant that the board's decision did not reject my reasoning Coats/Rainbow Trust P A-06-2, ZC-06-1 Page age 14 14 of 19 EXHIBIT PAGE ILA J l 0 r&1&AYlce- 2©0-7- 13 concerning application of the administrative rules. Rather, the board concluded rezoning of the Stott surface mining site was justified based on a change of circumstances from those identified in the site-specific ESEE for that site. The staff report states, and the Hearings Officer concurs, that SM Site 249 does not meet the standard in Subparagraph (b) because the record indicates the county has not established a lower threshold for significance than that set forth in Subparagraph (a) of this section. Therefore, because neither Subparagraph (b) nor (c) applies, the applicant must address the standard in Subparagraph (a) which states: (a) A representative set of samples of aggregate material in the deposit on the site meets Oregon Department of Transportation (ODOT) specifications for base rock for air degradation, abrasion, and sodium sulfate soundness, and the estimated amount of material is more than 2,000,000 tons in the Willamette Valley, or 500,000 tons outside the Willamette Valley; As discussed above, both the county's mineral and aggregate site inventory and the site-specific ESEE for SM Site 249 states the material on the site meets ODOT specifications. However, the staff report questions the amount of "ODOT-spec" material remaining on the subject property. Staff notes the quantity of resource included in the inventory was based on estimates from Robert L. Coats who owned the site at the time it was place on the inventory. In addition, staff notes the evidence is far from clear as to how much resource was extracted from the site before it was reclaimed. For example, the staff report notes the annual reports submitted by Mr. Coats to DOGAMI indicate that between April 1991 and April 1993, approximately 60,000 cubic yards were extracted from the site, and the record does not indicate what happened to the remaining 190,000 cubic yards of material. Because of this ambiguity, the staff report recommended the applicant submit additional information such as a geotechnical report identifying with more specificity the quantity of resource remaining on the subject property. As discussed in the Findings of Fact above, the applicant requested a continuance of the public hearing in order to obtain a geotechnical report. The record includes a copy of that report, dated October 25, 2006 and prepared by Travis Farstvedt and Mark Herbert of the engineering firm Kleinfelder. This report states Mr. Farstvedt and Mr. Herbert reviewed existing mining records for SM Site 249 and also performed field exploration and testing to quantify the amount of resource material remaining on SM Site 249, including a site visit and the excavation and examination of nine test pits. The report describes in detail the nature of the loose fill material found in each of the nine test pits and the depth at which "hard basalt bedrock" was encountered below the fill. Based on the average depth of fill material found in the nine test pits and the depth to bedrock that could be measured, Mr. Farstvedt and Mr. Herbert estimated the volume of native hard rock on the site is 75,000 cubic yards including areas within mandatory setbacks. They concluded that taking the setbacks and maximum allowed slopes in excavation areas, 12,000 cubic yards of material would be "lost," for a net of 63,000 cubic yards of material. Finally, they concluded the appropriate "tons-per-cubic-yard" ratio for the basalt base rock material on SM Site 249 is 1.35 tons per cubic yard, and therefore the number of tons remaining on the site was estimated to be 85,000 (63,000 times 1.35). Coats/Rainbow Trust EXHIBIT _ PAGE 15 OT 1 I PA-06-2, ZC-06-1 Page 15 of 19 t- o Ao, yt`cp- 2.0 0 -7 _ I The Hearings Officer finds the Kleinfelder report is comprehensive and credible and is the best evidence in the record of the amount of "ODOT-spec" mineral and aggregate resource remaining on SM Site 249. And because the estimated resource amount is less than 100,000 tons, I find the remaining resource is no longer "significant" under the standard in OAR 660-023-180(3)(a). For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies the requirements in Section 18.52.200 to terminate the SM zoning of the subject property and the surrounding SMIA zoning. 2. Chapter 18.136, Amendments a. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the Plan's introductory statement and goals. FINDINGS: In this Hearings Officer's previous decisions, I have held that comprehensive plan goals and policies do not constitute mandatory approval criteria for quasi-judicial zone changes, but rather are implemented through the zoning ordinance, and therefore if the proposed zone change is consistent with the applicable provisions of the zoning ordinance it also will be consistent with the plan. I adhere to that holding here. However, as discussed in the findings above, I have found the proposed plan amendment from SM to RREA is consistent with applicable comprehensive plan goals and policies. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: The applicant proposes a zone change from SM to MUA-10. The purpose of the MUA-10 zone is set forth in Section 18.32. 101 as follows: The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of various areas of the County while permitting development consistent with that character and with the capacity of the natural resources of the area; to preserve and maintain agricultural lands not suited to full-time commercial farming for diversified or part-time agricultural uses; to conserve forest lands for forest uses; to conserve open spaces and protect natural and scenic resources; to maintain and improve the quality of the air, water and land resources of the County; to establish standards and procedures for the use of those lands designated unsuitable for intense development by the Comprehensive Plan, and to provide for an orderly Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 16 of 19 EXHIBIT PAGE 16 of (I 0 v-, A ~ v~, a A.t~e, 200'7 - 13 and efficient transition from rural to urban land use. The Hearings Officer finds the proposed zone change is consistent with this purpose statement because, as discussed above, most of the land surrounding the subject property - and all abutting land - is zoned MUA-10, and the subject property has an underlying plan designation of RREA reflecting the long-standing character of this part of the county. Moreover, the record indicates the subject property does not have merchantable tree species, and much of the soils on Tax Lots 2502 and 2505 have been disturbed by mining and reclamation activities, making them considerably less suitable for agriculture. In addition, the record indicates residential development of the subject property would be served by adequate infrastructure including access, domestic water, sewage disposal and utilities, therefore providing for an orderly and efficient transition from rural to a more "urban" land use. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: 1. The availability and efficiency of providing necessary public services and facilities. FINDINGS: The burden of proof states with respect to this criterion: "Changing the zone designation on the subject propertyfrom SM to MUA will not impact the availability and efficiency of providing necessary public services and facilities. All utilities are available and currently serving other properties. Adequate state highway road frontage is available from the Bend-Sisters Highway on the North. The surrounding land uses include . a mixture of uses, such as residential and farm use. The neighboring properties on the North, East, and West are zoned MUA. " As discussed above, Tax Lot 2500 already is developed with a rural residence, and the applicant contemplates Tax Lots 2502 and 2505 also will be developed with single-family dwellings consisting with the surrounding MUA-10-zoned parcels. The Hearings Officer concurs with the applicant's reasoning and finds the proposed zone change will satisfy this criterion. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The Hearings Officer finds rural residential use of the subject property as contemplated by its underlying RREA plan designation and the proposed MUA-10 zoning will be consistent with the overall development pattern and character of the surrounding area and with the type of development contemplated in the MUA-10 Zone. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning l Coats/Rainbow Trust lZ J PA-06-2, ZC-06-1 EXHIBIT PAGE Page 17 of 19 2-00-7 - l > of the property in question. FINDINGS: 1. Mistake. The staff report states, and the Hearings Officer agrees, that there is no evidence of a mistake in the original SM zoning of Tax Lots 2502 and 2505. As discussed in detail in the findings above, these two tax lots comprising SM Site 249 were correctly identified as containing a significant mineral and aggregate resource when they were added to the county's inventory of such resources in 1990. However, the applicant argues, and I agree, that if Tax Lot 2500 also was in fact designated and zoned SM, such action was a mistake because there is no evidence in the record that Tax Lot 2500 ever was mined or included within the boundaries of SM Site 249. As discussed in the findings above, it appears Tax Lot 2500 was shown as designated SM on the plan map adopted by the county in 1992 because of the map's small scale and the resulting inability to distinguish between Tax Lot 2500 and the boundaries of Tax Lots 2502 and 2505. Therefore, I find the proposed zone change from SM to MUA-10 for Tax Lot 2500 is justified based on a mistake in the original zoning - to the extent the proposed zone change is necessary to remove any ambiguity concerning the proper zoning of Tax Lot 2500. 2. Change In Circumstances. The applicant argues the proposed zone change from SM to MUA- 10 for Tax Lots 2502 and 2505 is justified by a change in circumstances since the property was originally zoned SM consisting of completion of mining and reclamation of SM Site 249 and the lack of a significant mineral and aggregate resource remaining on the site. For the reasons set forth in the findings above concerning the proposal's compliance with Section 18.52.200, incorporated by reference herein, the Hearings Officer finds these changed circumstances exist and constitute ample justification for the proposed removal of the SM zoning on the subject property and the SMIA zoning on surrounding land. Finally, for the reasons also set forth in the findings above concerning the purpose of the MUA-10 Zone, incorporated by reference herein, I find the proposed rezoning to MUA-10 is justified. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the applicant's proposed plan amendment and zone change as follows: The county's comprehensive plan is amended to: • remove Surface Mining Site 249 from the county's inventory of significant mineral and aggregate resource sites; and • change the plan designation of Tax Lots 2500, 2502 and 2505 on Assessor's Map 15-10- 25 to Rural Residential Exception Area; The county's zoning map is amended to: • change the zoning of Tax Lots 2500, 2502 and 2505 on Assessor's Map 15-10-25 to Coats/Rainbow Trust PA-06-2, ZC-06-1 Page 18 of 19 EXHIBIT PAGE It J i I 0cc iv,oa&c.e- 2007-i3 Multiple Use Agriculture (MUA-10); and • remove the Surface Mining Impact Area Combining (SMIA) Zone from property located within one-half mile of the boundaries of Surface Mining Site 249. SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: 1. The applicant/owners shall submit to the Planning Division a metes-and-bounds legal description of the subject property. 2. No residential development of Tax Lots 2502 and 2505 shall be undertaken before any and all necessary development permits have been obtained, including, but not limited to, approved septic site evaluations, septic permits, building permits, and Landscape Management site plan review. Dated this _0<. L day of February, 2007. Mailed this ,:2 A-Co day of February, 2007. Karen H. Green, Hearings Officer Coats/Rainbow Trust PAGE L l J l PA-06-2, ZC-06-1 EXHIBIT Page 19 of 19 0 2007- 3