2009-101-Minutes for Meeting February 23,2009 Recorded 3/6/2009Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF BUSINESS MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
MONDAY, FEBRUARY 23, 2009
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
Present were Commissioners Tammy Baney, Dennis R. Luke and Alan Unger.
Also present were Nick Lelack, Paul Blikstad, Will Groves, Kevin Harrison and
Anthony Raguine, Community Development; Anna Johnson, Communications;
Laurie Craghead, Legal Counsel; and approximately twenty other citizens
Chair Baney opened the meeting at this time. The Board then recognized Bonnie
Baker, Recording Secretary, for ten years of service with the County.
1. Before the Board was Citizen Input.
None was offered.
2. Before the Board was Consideration of Signature of Findings and Decision
regarding the City of Sisters' Proposal to Change the County Designation
of Property from Forest to Urban Reserve.
Will Groves gave a brief overview, and indicated that the City of Sisters has
reviewed and approved this document.
LUKE: Move approval.
LINGER: Second.
VOTE: UNGER: Yes.
LUKE: Yes.
TAMMY: Chair votes yes.
COUNTY
NANCYUBLANKENSHIP,PCOUNTY CLERKDS yV ~009'~0~
COMMISSIONERS' JOURNAL
IIIIIIIII 1111111111111 II 03/06/2009 08;07;27 AM
2006-303
Minutes of Board of Commissioners' Business Meeting Monday, February 23, 2009
Page 1 of 9 Pages
3. Before the Board was a Public Hearing on Files No. PA-083 and ZC-083,
on an Appeal of the Hearings Officer's Decision regarding a Plan
Amendment/Zone Change on Agricultural/EFU to Airport Development
(Aviation Support District - Bend).
Chair Baney opened the public hearing at this time, and Laurie Craghead read
the opening statement.
In regard to ex parte contacts, Commissioner Luke pointed out that there was
talk about this when the urban renewal district and runway extension issues
were addressed. He also said he has known Pat Gisler for a long time.
Commissioner Unger said that he recently visited the airport to get an update on
activities there. Commissioner Baney agreed with the comments made, and
said she has also known Mr. Gisler for years.
Anthony Raguine gave an overview of the item. The Hearings Officer
recommended denial, as the application relates to Statewide Planning Goal 2,
the requirement for a factual basis. This relates to the Airport Master Plan,
which now says that sufficient area is available for airport uses, and the
Hearings Officer felt there was not a change in circumstances warranting a
rezone.
Peter Russell said that staff is concerned about applying the TPR if there is no
simultaneous site plan (page 13); also Statewide Planning Goal 12,
transportation planning and limits.
Laurie Craghead noted that when there is a plan amendment, Statewide
Planning Goals apply. They have to balance the Master Plan, and the TPR is
applicable.
Commissioner Luke said that he has the same concerns as the Hearings Officer;
the Master Plan has not been updated for a long time, and it needs to be done.
Jeff Wilson and Will Van Vactor, attorneys with Miller Nash of Prineville, and
Roger Borine, a soils expert were present to support the applicant. They gave
an overview, referring to maps.
Much of the discussion related to the types of soils surrounding the airport area,
the fact that the area if not prime agricultural land, and how the airport runway
area and protection zone interfere with uses other than those tied to the airport.
Minutes of Board of Commissioners' Business Meeting Monday, February 23, 2009
Page 2 of 9 Pages
Mr. Wilson said that the Hearings Officer recommended against approval, but it
was not an appeal. He feels it could be approved if the Airport Master Plan was
updated and correct. He said this argument is a common one, that a
comprehensive plan and master plan are not compatible, but this is only a
recommendation of law. He feels that for the most part the Hearings Officer
was supportive of the application.
He added that there is no evidence of a negative impact on the surrounding
farms, and there has been no opposition from adjacent property owners at this
point.
A consulting soil scientist was contacted to investigate the soils on lots 401 and
403. He found the soils are shallow with low water capacity, and do not meet
the definition of agricultural land. The Hearings Officer noted this as well.
He added that the Hearings Officer found that this change would assist with
eonmic development, and that the property is not suitable for residential
development. The Airport Master Plan is an issue with Goal 12, transportation.
He feels that the rezone could take place whether or not the property is in the
Master Plan overlay; the Master Plan could be amended later. The rezone is
compatible with the surrounding properties, as required by OAR. The Board of
Commissioners has the authority and probably the duty to regulate surrounding
land use in this fashion. The intent of the existing Master Plan and the law
seems to be that this land should be eligible for a rezone. He thinks the need
can be established. The most recent update did not adequately consider the
demand for the airport and airport related services.
He said that if there is a conflict between the maps and text, the text controls.
This contradicts the map that the Hearings Officer referred to. She also
minimized the urban renewal district information. The change requires a
substantial change in circumstances. The land was originally zoned EFU, but
the development of the airport is a change, as well as the extension of the
runway and the purchase by the City of Bend of a portion of the property. He
disagrees with the Hearings Officer that these don't matter.
He reiterated that there was no opposition to the application. Also, the $10,000
application fee is a lot of money. If the Board agrees with the Hearings Officer,
he doesn't think it is right to have to pay an additional $10,000 after the Mater
Plan is amended. He thinks the zone change can be supported now.
Minutes of Board of Commissioners' Business Meeting Monday, February 23, 2009
Page 3 of 9 Pages
Commissioner Luke stated that the airport clear zone is still zoned EFU, and the
City has not asked for a zone change on its own property. To take property out
of EFU without a stated need sets precedence and triggers appeals. The other
question is what would keep property south of this one from coming in and
wanting a zone change as well.
Mr. Wilson said that practically speaking, and in terms of need, he doesn't think
this is the law in Oregon. They have to show it is irrevocably dedicated to
another use or show that it is non-agricultural.
Commissioner Baney asked if it could be another use or the existing homesites
into a conforming use or RR-10. Mr. Wilson replied that if it is not farm use,
the question becomes what should it be. Airport uses is the best use of the
property. Compatibility is the problem if it were residential. The highest and
best use is for airport-related uses, and there isn't a lot of that type of property
available.
Commissioner Baney suggested that the more the airport is expanded, the more
compatibility issues may expand. It is hard to know what triggers the growth,
but other lands might become expansion areas. It is important to remember that
the purpose of the airport zone is to be consistent with the Airport Master Plan
and the Comprehensive Plan. It is a roadmap that is to be used. Government
often does the planning later than it should.
Mr. Wilson said that he is asking only that it be rezoned to be consistent with
the soils. The language talks about development but there is no application
before the Board. Those would be addressed at the time of a development
application.
Patrick Gisler testified that he is part of the LLC but not the owner of the
property; he has a managing interest. There are a dozen or so owners involved,
most of which are pilots; the property was acquired for the purpose of becoming
part of the airport some years ago. An agreement was already in place with the
City but the City did not follow through. He believes that the Comprehensive
Plan is the overall controlling document, followed by the zoning ordinances and
maps, and the master plan and refinement plans. Then come the development
and eventually building permits and use of the land. All have to be in
compliance, but the order of priority is from the top down, which is the reason
for the comprehensive plan.
Minutes of Board of Commissioners' Business Meeting Monday, February 23, 2009
Page 4 of 9 Pages
This property was included in the master plan at least once over the years. The
Master Plan and Comprehensive Plan are not one and the same. This is a
refinement of the Master Plan. He understands the decision regarding the urban
renewal district, but this is not the same thing. This helps update the Master
Plan efficiently. All of the land is inside of the noise contour area, and there are
really no other zones that are compatible. Not many other properties would be
subject to this type of zone change; there are only two that adjoin the runway, to
the north and south.
They invited the City to join in this application, but they didn't see the need
even though they built airport-type improvements on EFU land, the runway
extension that was recently completed and the overrun area. No one has
complained about this. The paving extends to the center line of old Nelson
Road, and the base extends into EFU about 600 feet, and the extension 1,100
feet into EFU land. This all caused it to be impossible to use the previously
existing irrigation system. It is not feasible to build a new irrigation system to
serve those lands.
David Hice, the General Manager for EPIC Air, said his position is undecided.
All of the companies at the Airport have an interest in seeing the airport
improve, with attention being given to the existing structures and property lines.
They have a lot of land to the northeast that has not yet been addressed. There
are water and sewage concerns, and EPIC did a lot of work in this regard. They
want to be friendly to the community and not have airport sprawl that is not
controlled. The Airport Master Plan is in dire need of updating to address
hangar uses and other issues.
He knows there is a new runway and they are waiting for additional taxiways to
make the airport more practical and safe. He feels the Airport Master Plan is a
viable piece of what needs to be done. The focus is on current perimeters as
defined, and a lot of expansion and development needs to be addressed with the
Master Plan. The overrun area was an addition and proved out to be a good
thing. They have been meeting with the City to put together an outline and
milestones for the Master Plan, but there is no timeline set. The last update was
done in 2002 and it is supposed to be done every five years.
The Chair called for a five-minute break at this time.
Minutes of Board of Commissioners' Business Meeting Monday, February 23, 2009
Page 5 of 9 Pages
Mr. Raguine said that the Headings Officer felt that both the Comprehensive
Plan and the Master Plan are approval criteria. The application talks about the
noise contours, and this comes from the Master Plan but references the
Comprehensive Plan. If the Board wants to consider it relevant per the Master
Plan, they have to show public need. The former Airport Manager said that
there was no need for additional land right now.
Peter Russell commented that there was testimony why this is not appropriate
as farm ground. However, there would be differences in traffic with this
change.
Ms. Craghead noted that they always use the worst case scenario for a zone
change. Also, it is an urban use under Goal 14, but the Master Plan should be
amended.
Mr. Raguine said that there was one letter submitted from the City of Bend
early. They declined to participate in the hearings or make further comments.
Commissioner Luke said that without a master plan, the same logic could apply
to others. There needs to be a defining document so that the best judgments can
be made. The Master Plan has to include this property. He stated that he would
like input from staff on the fee issue.
Ms. Craghead stated that one option is to continue the hearing to a date certain,
to allow for the Master Plan to be revised. The application could be modified at
that point. Or the Board could close the hearing and leave the written record
open, deliberate and make a decision, but the applicant would have to reapply.
Commissioner Baney said that the applicant is not solely responsible for what is
at play; the City is involved and this is a unique situation. She does not think it
is fair for the applicant to bear the entire burden.
Commissioners Luke and Baney agreed that more needs to be done.
Commissioner Unger said that there are a lot of desires at the airport, but the
Master Plan needs to be clarified. The zone change should wait until more is
known. The City of Bend should be at the table and doing the Master Plan
update. There is sufficient evidence that this property should be changed to
airport development, and the applicant has done a good job of explaining this
except perhaps the transportation part.
Minutes of Board of Commissioners' Business Meeting Monday, February 23, 2009
Page 6 of 9 Pages
Mr. Wilson said that perhaps a resolution of intent to rezone might be
considered, with the rezone subject to certain conditions. Commissioner Luke
stated that they can't do that, as it would presuppose what the Master Plan
might say. If this is continued, they will find out what the Master Plan changes
are.
Ms. Craghead said that the Board would make a basic finding that it complies
now and would defer the decision, but a public hearing would not be held. She
sees this as problematic.
Commissioner Unger noted that he has some concerns, but there is a runway
protection zone already and it is clear that it will be airport development
property someday.
Ms. Craghead said that she disagrees with Mr. Gisler's analysis, and feels the
Master Plan should be held more important.
After a lengthy discussion, it was agreed that the hearing would be continued to
the regular 10:00 a.m. Board meeting of August 3, 2009.
4. Before the Board were Deliberations on a Decision regarding Files CU-07-
1029 SP-07-46 (MA-08-3, MA-08-4, A-08-14 and A-08-20) for Latham
Excavation, regarding an Appeal of the Hearings Officer's Decision on an
Application to Expand Mining Activities at a Site Located off Johnson
Road.
Due to time constraints, Laurie Craghead said that the applicant will provide in
writing an extension to the end of March 2009 for a decision. Deliberations
were then scheduled for the Wednesday, February 25 Board meeting.
5. Before the Board was an Addition to the Agenda.
Before the Board was a Discussion of Bond Reductions for Caldera
Springs.
Will Groves said that this item is for discussion only and relates to the protocols
regarding bond reductions. Caldera Springs would like a partial release as
permitted by agreement as construction occurs. Future bonds may include this
in the standard language.
Minutes of Board of Commissioners' Business Meeting Monday, February 23, 2009
Page 7 of 9 Pages
Ms. Craghead said that they need to know whether this would be done by staff
or the Board. Staff prefers that the Board do the releases due to the large dollar
amounts involved.
Commissioner Baney asked what impacts this would have on staff and
financing.
Steve Holfer of Ball Janik, Attorneys, said they want to simplify the process.
The bond issues relate to the cabins, not the infrastructure or golf course. Each
time they have had to do a new estimate of what it would take to complete the
work, and this is lengthy and expensive. Staff can determine that a cabin has
been built, the cost of it and reduce the bond accordingly. Bonds are very
expensive, and also lower the bonding capacity of the parent company. They
could provide one set of construction estimates within any time of the twelve-
month period, and would not have to do it every three or four months. The
estimate could be increased 8% a year to protect against inflation.
Commissioner Luke asked if the cabins vary in cost. Mr. Holfer said they are
roughly the same price, with a range of standard amenities.
Commissioner Luke said he'd like to see a public hearing on this, as there is a
lot of interest in destination resorts. Ms. Craghead clarified that this is not part
of Code; it is language in the individual contracts. It was a standard provision
from Pronghorn on, as part of the contract, not a Code issue.
Mr. Holfer stated that this is not about changing the bonding process, which
already allows for releases; it only affects the number of times they have to get
estimates done.
Commissioner Baney clarified that staff would determine if the work had been
done, the releases would occur and they would not have to come to the Board
several times a year. Ms. Craghead said that they are asking to never come
before the Board on this issue. They would provide construction costs to staff,
and staff would decide whether to do the releases.
Commissioner Luke said that they already count on staff to do that research.
There is also a bond of 110% for a cushion. But he would still like these to
come to the Board and to have some public testimony.
Minutes of Board of Commissioners' Business Meeting Monday, February 23, 2009
Page 8 of 9 Pages
Commissioner Unger stated that he is comfortable with the proposed process,
but it should be decided in public. There are economic issues, and the purposes
of the bonds are being met. He wants to be sure there is enough for unforeseen
circumstances. It seems straightforward to him.
Commissioner Baney stated that it may be difficult to get consensus at this
time. She would like to see a list of pros and cons for a future date, perhaps at a
work session to figure out how they want to proceed.
Commissioner Luke said he wants this discussed at a regular business meeting,
since there is a lot of public interest in destination resorts.
Being no further items to come before the Board, the meeting adjourned at
12:35 p. m.
DATED this 23rd Day of February 2009 for the Deschutes County Board
of Commissioners.
ATTEST:
( CJ i'J~k-2,
Recording Secretary
Tammy aney, Cha
De is R. Luke, Vice Chair
6ZI'm ~6w~
Alan Unger, Commissioner
Minutes of Board of Commissioners' Business Meeting Monday, February 23, 2009
Page 9 of 9 Pages
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., MONDAY, FEBRUARY 23, 2009
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, at the Board's
discretion, regarding issues that are not already on the agenda. Citizens who wish to speak
should sign up prior to the beginning of the meeting on the sign-up cards provided. Please
use the microphone and also state your name and address at the time the Board calls on you
to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject
of a public hearing will NOT be included in the record of that hearing.
2. CONSIDERATION of Signature of Findings and Decision regarding the City
of Sisters' Proposal to Change the County Designation of Property from Forest
to Urban Reserve - Will Groves, Community Development Department
3. PUBLIC HEARING on Files No. PA-083 and ZC-083, on an Appeal of the
Hearings Officer's Decision regarding a Plan Amendment/Zone Change on
Agricultural/EFU to Airport Development (Aviation Support District - Bend) -
Anthony Raguine, Community Development
4. DELIBERATIONS on a Decision regarding Files CU-07-102, SP-07-46 (MA-
08-3, MA-084, A-08-14 and A-08-20) for Latham Excavation, regarding an
Appeal of the Hearings Officer's Decision on an Application to Expand Mining
Activities at a Site Located off Johnson Road- Paul Blikstad
5. 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.
Board of Commissioners' Business Meeting Agenda Monday, February 23, 2009
Page 1 of 8 Pages
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)
Thursday, February 26, 2009
9:00 a.m. Tri-County Work Session (Deschutes, Jefferson, Crook) - Fairgrounds Board
Room, Redmond
Monday, March 2, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
Wednesday, March 4, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, March 5, 2009
7:30 a.m. State of the County Forecast Breakfast - Bend Country Club
10:00 a.m. Regular Update with Community Development Department
2:00 p.m. Regular Update with Road Department
3:00 p.m. Regular Update with Solid Waste Department
Wednesday, March 11, 2009
7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, March 12, 2009
7:00 a.m. Regular Meeting with the City of Redmond Council, in Redmond
11:00 a.m. Regular Update with Health & Human Services Department
Board of Commissioners' Business Meeting Agenda Monday, February 23, 2009
Page 2 of 8 Pages
Monday, March 16, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, March 18, 2009
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, March 19, 2009
9:00 a.m. Regular Update with the Clerk
10:00 a.m. Regular Update with Community Justice Department
Monday, March 23, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday. March 25, 2009
7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, March 26, 2009
9:00 a.m. Regular Meeting with Fair & Expo Department
10:00 a.m. Regular Meeting with the Assessor
11:00 a.m. Regular Meeting with Commission on Children & Families
Monday, March 30, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, April 1, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Board of Commissioners' Business Meeting Agenda Monday, February 23, 2009
Page 3 of 8 Pages
Thursday, April 2, 2009
8:00 a.m. Regular Meeting with the City of Sisters Council, Sisters City Hall
Monday, April 6, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
Wednesday, April 8, 2009
7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, April 15, 2009
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, April 20, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, April 22, 2009
7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, April 27, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, April 29, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Board of Commissioners' Business Meeting Agenda Monday, February 23, 2009
Page 4 of 8 Pages
Monday, May 4, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
Wednesday. May 6, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Tuesday, May 12, 2009
12 noon Regular Commissioners/Department Directors Update
Wednesday, May 13, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, May 14, 2009
7:00 a.m. Regular Meeting with the City of Redmond Council, in Redmond
Monday 18, 2009
9:00 a.m. Budget Deliberations
Tuesday, May 19, 2009
9:00 a.m. Budget Deliberations
1:00 P.M. Departmental Budget Presentations
Wednesday, May 20, 2009
9:00 a.m. Budget Deliberations
Thursday, May 21, 2009
9:00 a.m. Budget Deliberations
Board of Commissioners' Business Meeting Agenda Monday, February 23, 2009
Page 5 of 8 Pages
Monday, May 25, 2009
Most County Offices will be closed to observe Memorial Day.
Wednesday, May 27, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, June 1, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council)
Wednesday, June 3, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, June 4, 2009
10:00 a.m. Regular Update with the District Attorney
11:00 a.m. Regular Update with Community Development Department
1:30 p.m. Regular Update with Road Department
2:30 p.m. Regular Update with Solid Waste Department
Wednesday, June 10, 2009
7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, June 11, 2009
11:00 a.m. Regular Update with Health & Human Services Department
Board of Commissioners' Business Meeting Agenda Monday, February 23, 2009
Page 6 of 8 Pages
Monday, June 15, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday. June 17, 2009
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, June 18, 2009
10:00 a.m. Regular Update with Community Justice Department
Monday, June 22 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, June 24, 2009
7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation
10:00 a.m. Board of Commissioners' Meeting - includes public hearings on proposed budgets,
and consideration of adoption of the budgets
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, June 25, 2009
9:00 a.m. Regular Meeting with Fair & Expo Department
11:00 a.m. Regular Meeting with Commission on Children & Families
2:00 p.m. Regular Meeting with the Sheriff
Wednesday, June 24, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, June 24, 2009
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Board of Commissioners' Business Meeting Agenda Monday, February 23, 2009
Page 7 of 8 Pages
Thursday, July2
8:00 a.m. Regular Meeting with the City of Sisters Council, Sisters City Hall
Friday, July 3
Most County Offices will be closed to observe Independence Day.
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' Business Meeting Agenda Monday, February 23, 2009
Page 8 of 8 Pages
{ BOARD OF COMMISSIONERS' MEETING
a
Q
REQUEST TO SPEAK
Agenda Item of Interest date 3
s
Name /o."),
~i .o / ✓1/r' _ ~
Address d
xle-d(q,~
Phone #s ~5V - 3/~f'- '
E-mail address e_&c_G1 CQ In Favor ijrNeutral/Undecided Opposed
Submitting written documents as part of testimony? ❑ Yes ~NO
v-rcs r
o { BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
f Agenda Item of Interest
Date Zd v
Name
Address J WA-LL 5T 07® C
eh m 1 f
Phone #s S~ 3 g®
E-mail address 1 Pic, ~--Vn 'I e- cc)
V
C~_Tn Favor Neutral/Undecided Opposed
Submitting written documents as part of testimony? ~es 1-1 No
TTES
o { BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
f
s
Agenda Item of Interest Date Name Address 4~~VZV
Phone #s eell Qy()
E-mail address /n~rrr~e
1-1 In Favor V
Neutral
Submitting written documents as part of testimony? Yes
F] Opposed
M No
0~c
AlAk4< BOARD OF COMMISSIONERS' MEETING
" REQUEST TO SPEAK
Agenda Item of Interest (7•r~4., Date Z' ZS, or'
Name ~S~
Address
Phone #s _~5111 90V7- .5-777
E-mail address 41, /eA'
~In Favor F-] Neutral/Undecided 1:1 Opposed
Submitting written documents as part of testimony? ~es ~ No
Z W MAIN AVE E MAIN AVE < N N W w H,
m n
4y Hr°N7p_~z z z ' ' I d
WCASCADEAVE® E',G'AII'SCI'ADEAV~pE]
E w-i-L~J ® ~--LJ LJJ E.CASCADE AVE z
TIMBER' CREEK ALY
WjHo
~1fIDI1~,I A'V I{E~J (m~EHOOD AVE E.TIMSER:1.4 DR
Q
111114'.--~ /J ® ® I I 1 IF~ m
City (yk ECREEK.VE W'DR
® IV11IFJ
_ a
W JEFFERSON AVE Of w
N O
~ I (ITill r
a UlLW1 NL_LJ Sisters w
~m W_STHELENS AVE E E$7 HELENS AVE
Ya~O
/ 0~0
Via la
PFP-
o
m' ELY w
W
,,.,.Hw.Y-t.^P
o
zz
~
zo
=
O ¢
U
!n N
M-IF AVE
r-E•TNEE.DR
' h
N ~
~ W
ETyLEft EE
< O, EO
e < ESW O
rn r q00
~
R
m
WSISTERS.VIEW.AVE
E COTE SPRINGS.RD u,
Subject Property
C f
15-10-09-00-01002
0
h
,y
W
IW
W
S
Q~
~S
S
' .C
gN`O
N~
of OG
GR
0
PROPOSED LOCATION MAP
Legend
Subject Property 15-10-09-00-01002
Q Sisters Urban Growth Boundary
County Zoning
EFU Sisters/Cloverdale Subzone (EFUSC)
Flood Plain (FP)
Forest Use 1 (F1)
Rural Residential (RR10)
City of Sisters
Exhibit "B"
6
0 250 50D 1,000
Feel
January 29, 2009
I
DMCLAYER;
TM Fbmrepn an FY m.p w.. b"M.E tam dplYl WI.W W an O.ad~ee. Caunl D.IB.
Cr.w»btenh M«»nm dNb my. bulb prM44'»4'. D.eFYY. CaloIy ry
omd »»N.eY r»ppiWG»y I« rq«, aml»WU, «pptllb»l eopa»Y F M ®plYl
NV «M urM.~Ytip r»pe.. T11M M ro Ymm«M. raper «InpIW, Ftbdnp M
.r.ey dm.~.aaeluy «nbw I«. w~d.r wrw»..marro»rFa u+• prpaa
il«r"r.r, eominnpa d.ar.p«..u ee.p«.d.ra.
N1Cap C« *CDDVW,ftW/i101ZC0802V,Ow Flln%ocebn M..m
OREGON LAND 1
PLANNING
COMPREHENSIVE PLANS
T
ZONING ORDINANCES
T
MASTER/REFINEMENT PLANS
DEVELOPMENTS
T
BUILDING PERMITS/USES
"GISLER CHART"
Deschutes County
Board of Commissioners
Planning Commission
RE: Airport Zoning Expansion
PA-08-3 and ZC-08-3
Commissioners,
Please accept my strong support for the proposed airport zoning expansion.
We need more land for expansion of airport uses, including airport facilities, hangars,
tie-downs and airport industrial uses.
Sincerely,
Signatur
lGK vchrame s
Print Name
~EPIGAIV_
_ZZ5C1o neA501a RCk -
Address
~ I C)Rejacl\\ q-7701
City, State & Zipcode
2_/17 CbC`
Date
i~
F E B 2 0 2009
BOARD OF COMMISSIONERS
ADMINISTRATION
)TES
Community Development Department
Planning Division Building Safety Division Environmental Health Division
M
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX(541)385-1764
http://www.co.deschutes.or.us/cdd/
STAFF REPORT
FILE NUMBERS: PA-08-3, ZC-08-3
HEARING DATE: October 21, 2008
6:30 P.M.
Barnes and Sawyer rooms of the
Deschutes Services Building
1300 NW Wall Street
Bend, Oregon 97701
LOCATION: The property is identified on Deschutes County Assessor map 17-
13-20, as tax lots 400 and 403. Tax lot 400 has an assigned
address of 22525 Nelson Road.
APPLICANT/ Gibson Airpark, LLC
OWNER: 1345 NW Wall Street, Suite 100
Bend, OR 97701
REQUEST: The applicant is requesting an amendment to the Deschutes
County Comprehensive Plan Map to change the map designation
of the subject property from Agricultural to Airport Development.
The applicant is also requesting a zone change for the subject
property from Exclusive Farm Use to Airport Development
(Aviation Support District). The subject property is located along
the southern border of the Bend Municipal Airport.
STAFF CONTACT: Anthony Raguine, Senior Planner
I. APPLICABLE STANDARDS & CRITERIA:
A. Statewide Planning Goals and Oregon Administrative Rules (OAR) Chapter 660
1. Oregon Statewide Planning Goal 1, 2, 3, 4, and 12
2. Other Applicable Statewide Planning Goals as described below.
3. OAR Chapter 660
a. Division 4, Interpretation of Goal 2 Exception Process
b. Division 11, Public Facilities Planning
C. Division 12, Transportation Planning
d. Division 13, Airport Planning
B. Deschutes County Comprehensive Plan
1. Chapter 23.64, Transportation System Plan
Quality Services Perfonned with Pride
a. Section 23.64.200. Airports
2. Chapter 23.120, Goal Exception Statement
a. Section 23.210.070. Bend Municipal Airport Exceptions Statement
i
C. Deschutes County Zoning Ordinance
1. Chapter 18.136, Amendments
a. Section 18.136.020. Rezoning standards.
D. Deschutes County Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
a. Section 22.20.030. Final action in land use actions
II. FINDINGS OF FACT:
A. Existing Zoning and Comprehensive Plan Designations: The subject property is
currently zoned Exclusive Farm Use (EFU) and has a Comprehensive Flan map
designation of Agricultural.
i
B. Location: The subject property is identified on Deschutes County AsseE;sor map
17-13-20, as tax lots 400 and 403. Tax lot 400 has an assigned address of
22525 Nelson Road.
C. Site Description: The subject property is relatively flat, composed of two tax lots
(400 and 403), and is a total of 45.1 acres in size. Tax lot 400 is currently
developed with two dwellings (1970 and 1975), and is bounded by the Bend
Municipal Airport to the north, Nelson Road to the east, Nelson Road and tax lot
403 to the south, and Powell Butte Highway to the west. Tax lot 400 is
approximately 22.3 acres in size, and is essentially bisected into east land west
halves by tax lot 401, which is owned by the City of Bend. Tax lot 403 is
undeveloped, and is bounded by tax lot 400 to the north and west, tax lot 700 to
the east, and tax lot 500 to the south. Tax lot 403 is approximately 22.8 acres in
size and is bisected from northeast to southwest by Nelson Road.
I
D. Surrounding Uses: The subject property is surrounded by the Bend Municipal
Airport to the north, with rural residential and farm uses to the east, south, and
west on lands zoned EFU and Multiple Use Agricultural (MUA).
E. Proposal: The applicant is requesting an amendment to the Deschutes County
Comprehensive Plan Map to change the map designation of the subject property
from Agricultural to Airport Development. The applicant is also requesting a zone
change for the subject property from Exclusive Farm Use to Airport Development
(Aviation Support District). The subject property is located along the; southern
border of the Bend Municipal Airport.
F. Agency Comments: The Planning Division mailed notice to several public
agencies and received the following comments.
1. Senior Transportation Planner, Peter Russell: I have read and; reviewed
the traffic study for Gibson Airpark and have found there are a couple of
areas that need to be addressed. First, the land use is a plan
PA-08-3 ZC-08-3, rihson Airpark Page 2
amendment/zone change and under DCC 17.16.115(E)(1)(d) the traffic
study must use a 20-year timeframe. The submitted traffic study
often references the traffic guidelines for the City of Bend, which is
incorrect as all affected roads and the land itself are under the jurisdiction
of Deschutes County. The applicant needs to abide by DCC 17.16.115.
Finally, the current study only goes to 2014 whereas it should extend to
2018. The longer timeframe is also a component of the state's
Transportation Planning Rule (TPR) at OAR-660-012-0060(1)(c).
Second, traffic analyses for zone change/plan amendments to comply
with the TPR typically look at a reasonable worst case scenario. That
means taking the highest traffic generator that could be approved outright
under the existing zoning then comparing and contrasting that to the
highest traffic generator allowed outright under the requested zoning.
This comparison is then used to determine if the proposed plan
amendment/zone change will have a significant affect as defined by the
TPR. The current traffic study does not perform that level of analysis of
comparing potential traffic volumes from Exclusive Farm Use (EFU) to
Airport Development (AD).
The plan also indicates a realignment of Nelson Road - a rural collector -
in Phase III; the applicant needs to state whether that is consistent with
the Bend Airport Master Plan.
[STAFF COMMENT: Via electronic mail dated September 16, 2008, County Engineer
George Kolb, Road Department, agrees with Mr. Russell's comments.]
2. Bend Fire Department:
a. Refer to the required Operational Permit requirements of the 2007
Oregon Fire Code Section 105.6.3 for Aviation Facilities.
b. Refer to Chapter 11 of the 2007 Oregon Fire Code for the code
requirements for Aviation Facilities.
3. Bend Municipal Airport Manager, Sue Palmeri: I am not writing this letter
in support of or against the proposed land use request rather, as the
Manager of the Bend Airport, to ensure that the County is aware of the
City's obligations related to our acceptance of Federal Aviation
Administration (FAA) Airport Improvement Program grants and possible
future use of the property included in this land use application.
The City has an obligation to make an airport available for the use and
benefit of the public, however this obligation does not require the City to
permit ground access by aircraft from adjacent property (known as
"through-the-fence"). The FAA's position is that through-the-fence
arrangements can place an encumbrance upon the airport property and
reduce the airport's ability to meet its Federal obligations. As a general
principal the FAA does not support agreements that grant access to the
public landing area by aircraft stored and serviced off-site on adjacent
property.
PA-08-3, ZC-08-3, Gibson Airpark Page 3
[STAFF COMMENT: To date, staff has not received comments from the FA~k on this
proposal. The applicant's supplemental burden of proof indicates on-going
conversations with the FAA and Ms. Palmeri regarding through-the-fence operations.]
The following agencies did not respond to the Notice, or responcled with
No Comment: County Assessor, County Building Division, County
Environmental Health Division, County Property Address Coordinator, City of
Bend Planning Department, Central Oregon Irrigation District, ! Oregon
Department of Transportation, Federal Aviation Administration.
H. Public Notice and Comments: The Planning Division mailed notic6 of this
application to all property owners within 750 feet of the subject property. No
comments were received.
III. CONCLUSIONS OF LAW:
A. Statewide Planning Goals
Goal 1: Citizen Involvement
Oregon Statewide Planning Goal 1 seeks "To develop !a citizen
involvement program that insures the opportunity for citizens to be
involved in all phases of the planning process."
RESPONSE: As part of the plan amendment and zone change process, public notice
was provided to affected agencies and surrounding area property owners. Additionally,
the county will hold public hearings before a hearings officer and before the County
Commissioners. Staff believes the intent of Goal 1 would be met.
2. Goal 2: Land Use Planning
Oregon Statewide Planning Goal 2 seeks "To establish a )and use
planning process and policy framework as a basis for all; decision
and actions related to use of land and to assure an adequate factual
base for such decisions and actions."
RESPONSE: In accordance with Goal 2, the applicant has submitted an application for
the proposed amendment and rezone. In addition to the burden of proof submitted with
the application, a supplemental burden of proof was received on October 6, 2008 to
address concerns raised by staff detailed in a letter mailed to the applicant on
September 23, 2008. The applicant has provided sufficient information to assure an
adequate factual base to enable the county to make an informed decision regarding the
proposal. Staff believes the intent of Goal 2 would be met.
3. Goal 3: Agricultural Lands
Oregon Statewide Planning Goal 3 seeks "To preserve and; maintain
agricultural lands."
PA-08-3, ZC-08-3, Gibson Airpark i Page 4
FINDING: The subject property is currently zoned EFU and has been designated
agricultural on. the Deschutes County Comprehensive Plan Map. Goal 3 provides a
definition of agricultural land, which is detailed in the implementing administrative rules
under OAR 660-033-020 as follows:
(1) (a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U. S. Natural Resources Conservation Service
(NRCS) as predominantly Class I-IV soils in Western Oregon and I-VI soils in
Eastern Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic
conditions; existing and future availability of water for farm irrigation purposes;
existing land use patterns; technological and energy inputs required; and
accepted farming practices; and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent
or nearby agricultural lands.
(b) Land in capability classes other than I-IV/I-VI that is adjacent to or
intermingled with lands in capability classes I-IV/I-VI within a farm unit, shall be
inventoried as agricultural lands even though this land may not be cropped or
grazed;
The applicant argues that the subject property does not meet the definition of agricultural
land. Based on the above language, staff believes that the subject property must pass
four "tests", identified as subsections 1(a)(A-C) and 1(b), to determine whether the
property meets the definition of agricultural land or should be inventoried as agricultural
land.
Soil classification
The subject property is located in "Eastern Oregon", as this term is defined in OAR 660-
033-0201. According to Soil Investigation Report: Land Capability Classification
Determination for Agricultural Land (May 22, 2008), prepared by Roger Borine a
Certified Professional Soil Classifier (#24918):
Tax lot 400 is approximately 17 percent, or 4.5 acres, of land capability
classification (LCC) 3 (irrigated) and 6 (nonirrigated), and 83 percent, or 22.3
acres of LCC 7/8;
2. Tax lot 403 is approximately 13 percent, or 3.4 acres, of LCC 3 (irrigated) and 6
(nonirrigated), and 87 percent, or 22.8 acres, of LCC 7/8.
Although the subject property contains a total of 28.59 acres of water right, at best only
approximately 15 percent of the property would be Class 3 soils, with the remaining
approximately 85 percent of the property Class 7/8. Based on this information, the
applicant argues, and staff concurs, that the subject property is not predominately Class
' (5) "Eastern Oregon" means that 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, Jefferson, Deschutes
and Klamath to the southern boundary of the State of Oregon.
PA-08-3, ZC-08-3, Gibson Airpark Page 5
I-VI soils and, therefore, does not meet the definition of agricultural land in OAR 660-
033-020(1)(a)(A).
Land in other soil classes
As noted above, only approximately 15 percent of the subject property would contain
Class 3 soils if irrigated. Although the subject property includes 28.59 acres' of water
right, staff can find no evidence that the property has ever been irrigated, or evidence of
a water delivery system. Given the irregular shape of tax lot 400, with city-owned tax lot
401 bisecting it, and the fact that Nelson Road bisects tax lot 403, staff believes it would
be difficult to apply irrigation water to the subject property. Even combining tax lot 400
with the portion of tax lot 403 that abuts it, staff believes it would be difficult; to apply
irrigation water to this tract. i
Next, staff analyzes the property's suitability for livestock production. For staff to
consider the potential for beef cattle production, the calculations regarding potential
productivity for livestock forage are detailed below. Estimates on the value of beef
production are based on the following assumptions, which have been derived through
consultation with OSU Extension Service:
• One AUM is the equivalent to the forage required for a 1000 lb. Cow aria calf to
graze for 30 days (900 pounds forage).
• On good quality forage, an animal unit will gain 2 pounds per day.
• Two animal units will eat as much in one month as one animal unit will eat in two
months.
• Forage production on dry land is not continuous: Once the forage is: eaten, it
generally will not grow back until the following spring.
• An average market price for beef is $.80 per pound. j
Based on these assumptions, the value of beef production on the property can be
calculated, presuming one acre is deducted from each parcel for a home site, fusing the
following formula:
30 days X 2#/day/acre = 24.0 lbs. Beef/acre
(2.5 acres per AUM)
24.0 lbs. Beef/acre x 45.1 acres x $0.80 /lb. = $865.92
Thus, the total gross beef production potential for the subject property would be
approximately $865.92 annually. This figure represents gross income and ;does not
deduct the costs of land acquisition, or farm operating costs such as fencing costs, water
expenses, land preparation, calves, veterinary costs, or any other costs of production.
After deducting those costs, staff believes it is clear the property could not be farmed
profitably and, therefore, would be not suitable for the production of livestock via grazing.
The subject property could potentially be combined with other farm uses in ithe area,
including existing livestock grazing operations. Staff notes that the portion of tax lot 403
to the east and south of Nelson Road abuts two properties that appear to be; currently
employed in farm use - tax lot 500 to the south and tax lot 700 to the east. Both parcels
are irrigated, and both include livestock grazing.
PA-08-3, ZC-08-3, Gibson Airpark I Page 6
Staff believes it would be difficult to combine all of the subject property (tax lots 400 and
403) with tax lot 500 or 700, with a publicly dedicated road (Nelson Road) running
between the properties, and the city-owned tax lot 401 essentially bisecting tax lot 400.
However, the portion of tax lot 403 lying east and south of Nelson Road that is abutting
tax lots 500 and 700 could be combined for farm use. Staff believes the applicant
should address the feasibility of combining the above-referenced portion of tax lot 403
with tax lot 500 or 700 for farm use. Staff notes that no comment was received from the
owners of tax lots 500 or 700 indicating a desire to increase the size of their farm use.
Farm practices on adjacent or nearby agricultural lands
As detailed previously, staff believes it would be difficult to combine all of the subject
property with the livestock grazing on tax lots 500 and 700 due to the presence of
Nelson Road between the properties. However, staff also notes that the portion of tax
lot 403 lying east and south of Nelson Road could be combined with tax lot 500 or 700
for farm use. Staff believes one of the issues under this criterion is whether the above-
referenced portion of tax lot 403 is necessary to permit continued farm practices on tax
lot 500. Specifically, staff is concerned that airport uses on this portion of tax lot 402
could negatively impact existing farm practices on tax lot 500. The existing livestock
grazing could be impacted by the noise associated with airport uses such as hangars
and taxiways, which would be an outright permitted uses in the proposed Aviation
Support District. Staff believes the applicant should address this issue.
Staff notes that no comments were received from adjoining property owners in response
to the notice of these applications.
Farm unit
According to the soil investigation, the subject property is composed predominantly of
Class 7/8 soils. As noted above, the portion of tax lot 403 lying east and south of Nelson
Road abuts tax lots 500 and 700, which appear to be currently employed in farm use.
Both tax lot 500 and 700 contain 36A and 58C soils, are irrigated, and are receiving
special assessment for farm use. Type 36A soils are considered high-value farmland
when irrigated, and have a general rating of Class III when irrigated. Based on the
county's geographic information system (GIS) data, staff estimates that approximately
75 percent of tax lot 500 is composed of 36A soils, and slightly over 50 percent of tax lot
700 is composed of 36A soils. For these reasons, staff believes that the portion of tax
lot 403 lying to the east and south of Nelson Road, composed predominantly of Class
7/8 soils, is adjacent to lands with Class I-VI soils within a farm unite. Therefore, staff
believes that at a minimum, this portion of tax lot 403 was correctly inventoried as
agricultural land3.
2 OAR 660-033 does not provide a definition of farm unit. Staff notes that ORS 215.278,
Accessory dwellings for farmworkers; rules, provides the following definition:
(2) As used in this section, "farm unit" means the contiguous and noncontiguous tracts in
common ownership by the farm operator for farm use as defined in ORS 215.203. [2001 c.613
6]
Prior to the realignment of Nelson Road to its current location, all of the subject property was
adjacent to tax lots 500 and 700.
PA-08-3, ZC-08-3, Gibson Airpark Page 7
4. Goal 4: Forest Lands
Oregon, Statewide Planning Goal 4 seeks "To conserve forest lands
by...
RESPONSE: Staff believes no forest lands exist on-site.
i
5. Goal 5: Open Spaces Scenic and Historic Areas and Natural Resources
Oregon Statewide Planning Goal 5 seeks "To protect' natural
resources and conserve scenic and historic areas and open
spaces."
RESPONSE: Goal 5 resources are listed in the county's acknowledged Comprehensive
Plan. There are no known significant Goal 5 resources on the site. Utilizing the selected
site as proposed would have no significant adverse impact on the amount of open space
or scenic views available. Staff believes the intent of Goal 5 would be met.
Impacts on related resources
Mineral and aggregate resources: The expansion site has never been zoned for mineral
or aggregate resources.
Energy sources: There are no known energy resources on the sites such as natural
gas, oil, coal or geothermal heat.
Fish and wildlife habitat: The expansion site has no designated fish or wetland habitat.
The site is unlikely to contain threatened or endangered species. The site i; already
surrounded by development that limits its potential for threatened or endangered
species.
Ecologically and scientifically significant natural areas including desert areas: Staff
believes nothing about the selected site separates it from surrounding areas as
ecologically or scientifically significant.
i
Outstanding scenic views: Staff believes nothing about the site indicates it has a
significantly better view than other sites in the vicinity.
Water areas wetlands watersheds and groundwater resources: There are no~ wetlands
or watersheds within or adjacent to the subject site. Staff is unaware of any watersheds
that would be affected by the proposed plan amendment and zone change. Runoff
control and treatment would be addressed by the city during site plan revieI kv for the
school.
I
Wilderness areas: The site does not meet the definition of "wilderness areas" as
described within the Oregon State Goals and Guidelines. The parcel does not contain
pristine surroundings or old growth trees.
Historic areas sites structures and objects: The subject property has no structures
listed on the National Register of Historic Places. No structures or places of historical
significance have been determined to exist on or near the property selected.
PA-08-3; ZC-08-3; Gibson Airpark I Page 8
Cultural areas: The property has no known cultural resources.
6. Goal 6: Air. Water and Land Resources Quality
Oregon Statewide Planning Goal 6 seeks "To maintain and improve
the quality of the air, water, and land resources of the state."
RESPONSE: The applicant is not proposing an exception to compliance with Goal 6.
Maintaining or improving the quality of the community's air, water and land resources
would be assured through enforcement of state and local regulations.
7. . Goal 7: Areas Subject to Natural Disasters and Hazards
Oregon Statewide Planning Goal 7 seeks "To protect people and
property from natural disasters and hazards"
RESPONSE: There are no areas within the subject property that are subject to flooding
or landslide activity. The wildfire hazard for the site is the same as other areas with
junipers and native brush. Development of the site would reduce the potential for
wildfires by providing adequate water to meet the fire flow requirements for future airport
uses.
8. Goal 8: Recreational Needs
Oregon Statewide Planning Goal 8 seeks "To satisfy the recreational
needs of the citizens of the state and visitors and, where
appropriate, to provide for the siting of necessary recreational
facilities including destination resorts."
RESPONSE: Given the location of the subject property adjacent to the airport, staff
believes a recreational area on the subject property would not be appropriate.
9. Goal 9: Economic Development
Oregon Statewide Planning Goal 9 seeks "To provide adequate
opportunities throughout the state for a variety of economic
activities vital to the health, welfare, and prosperity of Oregon's
citizens. "
RESPONSE: Assuming the subject property is incorporated into the Bend Municipal
Airport, the proposed plan amendment and zone change would allow the establishment
of uses authorized under the Airport Development Zone and Aviation Support District.
Staff believes these uses would provide an opportunity for additional economic
development at the Bend Municipal Airport.
10. Goal 10: Housing
Oregon Statewide Planning Goal 10 seeks "To provide for the
housing needs of citizens of the state."
PA-08-3, ZC-08-3, Gibson Airpark Page 9
RESPONSE: Given the location of the subject property adjacent to the airport, staff
believes additional residential use of the property would not be appropriate.
11. Goal 11: Public Facilities and Services
Oregon Statewide Planning Goal 11 seeks "To plan and dt?velop a
timely, orderly and efficient arrangement of public facilities and
services to serve as a framework for urban and rural development."
RESPONSE: Given the existing surrounding development, in particular tke recent
development at the airport (reference SP-08-3 Aero Facilities (hangars)), staff believes
the adequacy of public facilities and services, such as water, electric, and phone, to the
subject property could be accommodated. However, at this time, staff has concerns
regarding transportation facilities and extension of sewer service.
As noted above, staff has questioned the adequacy of the transportation study submitted
by the applicant. As a result, staff is uncertain if adequate transportation facilities would
be available given the types of uses allowed under the Aviation Support District
designation.
The Bend Municipal Airport is presently served by connection to the City: of Bend
Wastewater Treatment Plant. The applicant's burden of proof states that it would not be
necessary to "extend" urban services such as sewer to rural lands because thcat service
already exists. Staff is unsure if the applicant intends to extend sewer lines from the
Bend Airport to the subject property, or if the applicant intends to serve the property via
an on-site septic system. Staff notes that OAR 660-11-0060(2) states,
i
(2) Except as provided in sections (3), (4), (8), and (9) of this rule, and consistent
with Goal 11, a local government shall not allow:
(c) The extension of sewer systems that currently serve land outside urban
growth boundaries and unincorporated community boundaries in order, to serve
uses that are outside such boundaries and are not served by the system on July
28, 1998.
The Bend Airport is located outside of an urban growth boundary and has been served
by the City of Bend Wastewater Treatment Plant since before July 28, 1998. Staff
believes an extension of sewer service from the Bend Airport to the subject property
would not be allowed. Staff believes the applicant should specify their proposed method
of wastewater treatment.
12. Goal 12: Transportation
Oregon Statewide Planning Goal 12 seeks "To provide and
encourage a safe, convenient and economic transportation system."
i
RESPONSE: OAR 660-012 implements Oregon Statewide Planning Goal 12 Title 17
of the Deschutes County Zoning Ordinance also includes requirements for transportation
studies. As detailed above, the Planning Division's Senior Transportation Planner has
identified a few issues that must be addressed including:
PA-08-3, ZC-08-3, Gibson Airpark
Page 10
1. 20-year timeframe for the traffic study
2. Use of county standards found under DCC 17.16.115, and not City of Bend
standards
3. The study should be expanded to 2018 to comply with OAR 660-012-0060(1)(c).
As of the date of this staff report, the applicant has not revised the transportation study.
At this time, staff believes the applicant has not met their burden of proof regarding Goal
12.
13. Goal 13: Energy Conservation
Oregon Statewide Planning Goal 13 seeks "To conserve energy."
RESPONSE: The location of the proposed zone change adjacent to the airport would
allow efficient use of land for airport purposes. The ability of the subject property to
utilize renewal energy and implement energy conservation techniques is no different
than what is available at the Bend Airport.
14. Goal 14: Urbanization
Oregon Statewide Planning Goal 14 seeks "To provide for orderly
and efficient transition from rural to urban use, to accommodate
urban population and urban employment inside urban growth
boundaries, to ensure efficient use of land, and to provide for livable
communities. "
RESPONSE: The proposal would not affect an urban growth boundary (UGB), and
does not seek to establish a new UGB. Staff believes this Goal does not apply.
15. Goal 15: Willamette River Greenwav: Goal 16: Estuarine Resources
Goal 17: Coastal Shorelands: Goal 18: Beaches and Dunes: Goal 19•
Ocean Resources
RESPONSE: Staff believes these Goals are not applicable because the subject
property is not within the Willamette Greenway, and does not possess any estuarine
areas, coastal shorelands, beaches and dunes, or ocean resources.
B. Title 18, Zoning Ordinance
Section 18.136.020. Rezoning standards.
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by the rezoning of 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.
RESPONSE: Conformance with the Comprehensive Plan is addressed below.
PA-08-3, ZC-08-3, Gibson Airpark Page 11
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
RESPONSE: The applicant proposes to rezone the subject property from Exclusive
Farm Use to Airport Development (AD) and Aviation Support District. ChaptE!r 18.76,
Airport Development Zone, governs uses for lands zoned AD. Section 18.76.010,
Purpose, provides the following:
I
The purpose of the Airport Development (AD) Zone is to allow for development
compatible with ongoing airport use consistent with the Deschutes County Year
2000 Comprehensive Plan and the 1994 Bend Airport Master Plan (as amended
by a 2002 supplement), while providing for public review of proposed
development likely to have significant impact on surrounding lands. , The AD
Zone is composed of three separate zoning districts, each with its own set of
allowed uses and distinct regulations, as further set forth in DCC 18.76.
In reviewing the 2002 amendment to the 1994 Master Plan (incorporated by (19ference
herein), staff notes that page 77 of the report discusses Drawing 1 - Airport Layout Plan,
and provides the following introductory statement,
The Airport layout Plan (ALP) presents the existing and ultimate airport layout
and depicts the improvements that are recommended to meet forecast aviation
demand.
Drawing 1 shows no existing or anticipated development on the Gibson Airpark
property4. Additionally, Drawing 6 of the 2002 Master Plan amendment, which depicts
the on-airport land use plan, does not designate any portion of the Gibson Airpark
property for airport-related zoning. Based on the above, staff believes that the proposed
plan amendment and zone change would not be consistent with the Master Plan and,
therefore, not consistent with the purpose of the Airport Development Zone.
In contrast to staff's position, the applicant argues that the drawings represent
recommendations and, therefore, the Gibson Airpark property, although not included in
the drawings, could be used as part of the Bend Airport. Specifically, the applicant
points to page 40 of the 1994 Master Plan which states,
i
The purpose of this chapter [Chapter 4: Airport Plans] is to describe and evaluate
significant airport development alternatives and then present recommended
airport plans through a series of drawings and supporting narrative.
Similarly, staff notes that page 76 of the 2002 Master Plan includes the following
language,
The purpose of this chapter [Chapter Six, Airport Layout Plans] is to describe in
narrative and graphic form, the recommended airport development contained in
the 20-year master plan.
4 Drawing 4-6 of the 1994 Master Plan shows the western portion of tax lot 400 designated for
future aviation development.
PA-08-3, ZC-08-3. Gibson Airpark Page 12
The applicant also argues that where the text of an ordinance clearly demonstrates an
intent not to rezone a particular area, but an attached map shows the area as rezoned,
the text controls5. In this situation, the applicant believes the text of the Master Plan
indicating that the drawings represent recommendations, controls over the drawing that
does not include the Gibson Airpark property.
Although staff agrees that the applicant's interpretation of the above language could
mean that land outside of the current airport boundaries could be used for the airport,
staff believes a more likely interpretation of the above language is that identified uses
and zoning within the airport boundaries are subject to change. Staff recommends that
the hearings officer focus on this criterion in his/her review.
The applicant also cites to other evidence within the Master Plan which supports the
applicant's argument that it would be appropriate to rezone the Gibson Airpark property
to. Airport Development. The applicant cites pages 12-14 of the Master Plan, and a
reference in the Master Plan to a section of the Transportation Element of the
Comprehensive Plan which states,
a) The Bend Municipal Airport will grow along with the rest of Deschutes
County, and the following additional policies shall apply to the properties
shown on the components of the airport overlay-zones within the area of
average Ldn 65 contour (substantial impact area):
1. Property within the average Ldn 65 contour (substantial impact
area) shall be considered committed for airport-related or
accessory commercial or industrial uses. At such time as an
exception to LCDC Goal 3 (Agricultural Lands) is taken, such
properties shall be available to be rezoned to A-D Airport
Development, provided public' need is demonstrated for the
exception, in accordance with LCDC Goal 2 (Land Use Planning)
and public need is demonstrated for the zone to be placed upon
the property. The Ldn 65 noise contour map, marked Exhibit A,
attached thereto and, by this reference, incorporated herein, is
adopted to designate those properties within the Ldn 65 noise
contour.
The applicant contends that the majority of the subject property is within the Ldn 65
contour, as shown in Figure 4 of Draft Report Accompanying the Bend Municipal Airport
Urban Renewal Plan dated June 2008, and incorporated herein by reference.
Therefore, the subject property is considered committed for airport-related uses.
Although staff agrees that Figure 4 indicates the majority of the subject property is within
the Ldn 65 contour, staff notes that the above-referenced language no longer exists in
the Transportation Element of the Comprehensive Plan. When brought to the
applicant's attention, the applicant argued that since the Master Plan is the guiding
document for the Bend Airport, the "considered committed" language still applies. If the
above language still applies, staff notes the applicant would be required to demonstrate
there is a public need.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
5 Flying J. Inc. v. Marion County, 49 Or LUBA 28 (2005)
PA-08-3, ZC-08-3, Gibson Airpark Page 13
1. The availability and efficiency of providing necessary
public services and facilities.
RESPONSE: As addressed in previous findings, staff is concerned that transportation
facilities and wastewater treatment may not be adequate for the proposal.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
RESPONSE: Section 23.88.020 includes the following goal:
To preserve and maintain agricultural land.
As discussed in a previous finding, staff is concerned with how potential airport-related
uses on the portion of tax lot 403 to the east and south of Nelson Road could impact
existing farm use and agricultural land on tax lots 500 and 700. Additionally, staff is
concerned that at a minimum, the above-referenced portion of tax lot 403 was; correctly
inventoried as agricultural land, and would be impacted by the proposed rezone.
D. That there has been a change in circumstances since the
property was last zoned, or a mistake was made in th;e zoning
of the property in question.
RESPONSE: The applicant argues that a mistake was made in the zoning of the
property and that there has been a change in circumstances since the property was
zoned. As discussed in previous findings, the applicant argues that the soils
investigation shows that the property does not meet the definition of agricultural land
and, therefore, the property zoned EFU incorrectly. Staff has expressed 'concerns
regarding this argument.
Regarding changes in circumstances, the applicant provides two items of consideration.
First, the applicant states that since the property was zoned, the City of Bend acquired a
portion of tax lot 400 that essentially bisects that tax lot. This configuration, the! applicant
argues, would make the application of irrigation water impractical. Secondly, the
applicant argues that the Bend Airport has changed since it was originally zoned, with
one consequence being the need for additional land zoned for airport use. While staff
agrees that the current configuration of the subject property would make the application
of irrigation water difficult, staff notes that the comment letter from the Berid Airport
Manager does not indicate a need for additional airport land.
C. Title 22 of the Deschutes County Zoning Ordinance
Section 22.28.030. Land Use Action Decisions
Decision on plan amendments and zone changes.
B. In considering all quasi-judicial zone changes and those
quasi-judicial plan amendments on which the Hearings
Officer has authority to make a decision, the Board of County
Commissioners shall, in the absence of an appeal or review
PA-08-3, ZC-08-3, Gibson Airpark
I
Page 14
i
initiated by the Board, adopt the Hearings Officer's decision.
No argument or further testimony will be taken by the Board.
RESPONSE: A public hearing with the County Hearings Officer is scheduled for
October 21, 2008. As necessary, a meeting with the Board would be scheduled
subsequent to the Hearings Officer decision.
D. Title 23, Deschutes County Comprehensive Plan
Section 23.08.010. Introduction.
Recent years have witnessed dramatic growth and change in
Deschutes County. A rapidly increasing population causes ever
greater pressures on the land as well as the economic,
governmental and social structures of the area. These pressures
require many adjustments. Unfortunately, in the past, many of these
public decisions on land use and related matters were made without
adequate consideration of alternatives or consequences. To
provide part of the answer, the comprehensive planning process
has been developed. This process provides for the gathering of
information, the prudent review of alternatives and the final
development of reasonable policies. The local need for planning is
also spurred by the requirements of the people of Oregon, as
manifested through the Legislature and the Land Conservation and
Development Commission, which require all local jurisdictions to
prepare adequate plans and planning programs.
RESPONSE: Deschutes County Code Section 18.136.020(A) requires the proposed
zone change to comply with the Comprehensive Plan's introductory statement and
goals. In accordance with this statement, the Deschutes County Code includes a
process requiring the applicant for a proposed quasi-judicial rezone to provide sufficient
information and evidence to allow a hearings body to make an informed decision and
determine if the requested zone change is appropriate not only to the site, but also to the
surrounding environment. Additionally, if approved, the new zone would include
approval criteria ensuring the establishment of new uses appropriate to the zone.
2. Section 23.64.010. Transportation System Plan; Section 26.64.020.
Coordination and implementation of the Transportation System Plan.
[An excerpt from 23.64. 010)
The purpose of the Transportation System Plan is to guide the
development of a safe, convenient and efficient transportation
system that promotes economic prosperity and livability for all
County residents.
[An excerpt from 23.64.020]
1. Goals.
a. Achieve an efficient, safe, convenient and
economically viable transportation and
PA-08-3, ZC-08-3, Gibson Airpark Page 15
communication system. This system include; roads,
rail lines, public transit, air, pipeline, pedestilan and
bicycle facilities. The Deschutes ; County
transportation system shall be designed to serve the
existing and projected needs of the unincorporated
communities and rural areas within the County. The
system shall provide connections between different
modes of transportation to reduce reliance' on the
single-occupancy vehicle.
RESPONSE: The applicant argues that the proposed plan amendment and zone
change would promote efficient air transit by adding Airport Development-zoned land
next to the Bend Airport. This would then allow the establishment of airport-related uses
such as hangars, tie-downs, runways, and service roads. Staff agrees ; that the
applicant's proposal would provide convenient air transit if the Gibson Airpark; property
were either acquired by the City of Bend and consolidated with the Bend Airport, or the
applicant received FAA and City of Bend approval to conduct through-the-fence
operations. Otherwise, if approved, the subject property would allow airport-related uses
but would not have access to an airport.
3. Section 23.64.200. Airports.
[An excerpt from this section]
Unlike the Redmond Airport, the Bend Municipal Airport is located
outside the Bend City limits and UGB, therefore the County leas land
use jurisdiction over it. In order to guide airport land uses, the
County adopted and utilizes the 1994 Bend Municipal Airport Master
Plan, as amended in 2002 the "Supplement to 1994 Airpont Master
Plan" incorporated by reference herein. This is the' guiding
document for airport planning and development. This document
incorporates a range of facility improvements for the Bend
Municipal Airport over the 20-year planning horizon (2021), including
short, intermediate, and long-term projects to improve safety and
function at the airport.
RESPONSE: Via Ordinance No. 2003-035, the Board of County Commissioners
adopted the 1994 Bend Municipal Airport Master Plan (Master Plan), as amended in
2002 (included herein by reference). The amended Master Plan is now the guiding
document for the Bend Airport.
The applicant argues that the Master Plan, "...'recommendations' about hoir✓ to use
specific land should not be taken as a literal binding requirement as to how specific land
should be developed, per the County's own Comprehensive Plan under 23.08.020."
The applicant cites to the following specific part of 23.08.020,
I
...the purpose of the Comprehensive Plan for Deschutes County is not tc► provide
site-specific identification of the appropriate land uses which may take place on a
particular piece of land, but rather it is to consider the significant factors which
affect or are affected by development in the county and provide a general guide
PA-08-3, ZC-08-3, Gibson Airpark Paae 16
to the various decisions which must be made to promote the greatest efficiency
and equity possible, while managing the continuing growth and change of the
area.
Although staff agrees that the Comprehensive Plan is generally not a site-specific
document, the Comprehensive Plan specifically references the Master Plan as the
guiding document for the Bend Airport and staff argues that the Master Plan is site
specific. By their nature, master plans are specific to a particular site and provide
guidance and standards for development on that site. Therefore, staff believes
conformance with the Master Plan should be required.
As noted in a previous finding, Drawing 1 of the 2002 Master Plan Update illustrates the
existing and ultimate airport layout. Although both the text describing Drawing 1 (pages
77-78) and Drawing 1 indicate anticipated airport growth and development on the west
and east sides of the airport, staff can find no evidence of anticipated growth to the south
of the airport on the Gibson Airpark property. As a result, staff believes the applicant's
proposal is not consistent with the Master Plan and, therefore, not consistent with the
Comprehensive Plan.
1. Goal. Protect the function and economic viability of the
existing public-use airports, while ensuring public safety and
compatibility between the airport uses and surrounding land
uses for public use airports and for private airports with three
or more based aircraft.
2. Policies.
a. Deschutes County shall protect public-use airports
through the development of airport land use
regulations. Efforts shall be made to regulate the land
uses in designated areas surrounding the Redmond,
Bend, Sunriver and Sisters (Eagle Air) airports based
upon adopted airport master plans or evidence of each
airports specific level of risk and usage. The purpose
of these regulations shall be to prevent the installation
of airspace obstructions, additional airport hazards,
and ensure the safety of the public and guide
compatible land use. For the safety of those on the
ground, only limited uses shall be allowed in specific
noise impacted and crash hazard areas that have been
identified for each specific airport.
b. Deschutes County shall:
2. Cooperate with the cities of Bend, Redmond
and Sisters in establishing uniform zoning
standards, which will prevent the development
of hazardous structures and incompatible land
uses around airports;
4. Through adoption of appropriate zoning
restrictions, allow land uses around public-use
airports that will not be adversely affected by
PA-08-3, ZC-08-3, Gibson Airpark Page 17
noise and safety problems and will be
compatible with the airports and their
operations;
RESPONSE: With regard to the function and economic viability of the Bend Airport, the
applicant references two items indicating a need for aircraft hangar space at the Bend
Airport and, therefore, supporting the proposed plan amendment and zone change.
First, the applicant cites page 22 of the 1994 Master Plan Update which states, "...the
hangars are fully occupied and there is a waiting list of aircraft owners desiring hangar
space." Second, the applicant notes that the recent application by the City of Bend to
establish a Bend Municipal Airport Urban Renewal Plan included much of thE, subject
property in the urban renewal areas. Staff notes that the comment letter from the Bend
Airport Manager, Sue Palmeri, does not indicate a present need to acquire this, property
for future Bend Airport development.
With regard to incompatible uses, the applicant notes that residential uses exist on the
subject property that are not compatible with the airport, and argues that the proposed
zone change would ensure compatible uses in the future by limiting development on the
subject property to airport-related uses. While staff agrees that the proposed rezone
could limit new uses on the subject property to those that are compatible with the airport,
the existing residential uses would become lawfully established nonconforming uses that
could be allowed to remain without assurance from the applicant that these residential
uses would be removed prior to zone change approval.
13. Discourage future development of , private
landing fields when they are in proximity to one
another, near other public airports and F)otential
airspace conflicts have been determined to
exist by the Federal Aviation administration
(FAA) or ODOT Aeronautics.
RESPONSE: The applicant notes that the 2002 Master Plan Update makes several
references to the growing population of Deschutes County and the growing demand for
aircraft hangars at the airport. Based on this information, the applicant argues that a
failure to recognize this demand, which would be somewhat alleviated by the proposal,
may lead to development of private landing fields in proximity to the Bend or Redmond
airports.
Although staff agrees that the Master Plan identifies a growing demand fo;r aircraft
hangar space, staff notes that although this demand has been existing since before
2002, there has been a lack of applications for private landing fields which would support
the applicant's argument. Also, as noted previously, the comment letter from the Bend
Airport Manager did not indicate a need to acquire this property to alleviate demand for
airport development.
s A copy of the proposed Bend Municipal Airport Urban Renewal Plan was not included in the
application materials, therefore staff was unable to determine if the Gibson Airpark property was
included in the Plan.
PA-08-3, 2C-08-3, Gihson Airpark
Page 18
IV. CONCLUSION AND RECOMMENDATION:
Based upon the findings noted above, staff does not believe the applicant has met their
burden of proof with regard to Goal 3, Goal 12, the Deschutes County Comprehensive
Plan, the Airport Development Zone, and the 1994 Bend Municipal Airport Master Plan
(as amended in 2002). Staff recommends that the proposed plan amendment and zone
change be denied.
Dated this 14th day of October, 2008
Mailed this 14th day of October, 2008
AJ R/slr
PA-08-3, ZC-08-3, Gibson Airpark Page 19
Bend
Municipal
Airport
Z
Taxlot
17-13-20-400
Taxlot
17-13-20-400
Plan Amendment
from Agriculture (AG)
to
Airport Development (AD)
Taxlot
17-13-20-403
Taxlot
17-13-20-403
4kUL
o~
r
PROPOSED COMPREHENSIVE PLAN MAP
Legend Bend Municipal Airport
=Proposed Plan Amendment Boundary PA-08-03
Deschutes County Comprehensive Plan
AD - Airport Development IVSTVI
AG -Agriculture
0 250 500
RREA- Rural Residential Exception Area Fact
August 29, 2008
1
Taxlot
17-13-20-400
s
d
ERICKSON
i7~x3IAl+rSt
>Zone Change from Exclusive
Farm,Use,(EFUTRB)
Airport Development (AD)
(Aviation Support Distract)
TqXIQI
17.13.40-403
Tarot
f7-13,20403
J
Legend
=Proposed Zone Change Boundary
Deschutes County Zoning
Airfield Operations District
Aviation Related Industrial District
Aviation Support District
EFU - Tumalo/Redmond/Bend Subzone
MUA10 - Multiple Use Agricultural
PROPOSED ZONING MAP
Bend Municipal Airport
ZC-08-03
0 250 500
Feet
August 28, 2008
aua.aec
it r..r.~ r..... r.wi....ar rrr..~ a.... n..v n~.a
d.r.r~rr.rrr.r,rarrrr-.r. orr.cr`
w.rr~ ~rawr nwwr ~,r~..`~. + r.+ ri`n.
.ter r..+r~. rr. r ...rr nr. wra r r+r
~r~., rte a.r rer r rrrar
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX(541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
TO: Deschutes County Board of County Commissioners
FROM: Anthony Raguine, Senior Planner
DATE: February, 3, 2009
SUBJECT: February 18, 2009 work session for a proposed Plan Amendment and
Zone Change; PA-08-3, ZC-08-3
BACKGROUND
Gibson Airpark, LLC (applicant) has applied for a Plan Amendment and Zone Change (PA-08-3, ZC-
08-3) for a property located at 22525 Nelson Road, and identified on County Assessor map 17-13-20,
as tax lots 400 and 403. The proposal would change the Comprehensive Plan Map designation of
the subject property from Agriculture to Airport Development, and rezone the property from Exclusive
Farm Use to Airport Development, Airport Support District.
A public hearing was held before a Deschutes County Hearings Officer on December 16, 2008.
Based on the information in the record, the Hearings Officer denied the application in a decision
dated January 22, 2009. The basis of the Hearings Officer decision was twofold: 1) The proposal is
not consistent with Statewide Planning Goal 2, and 2) There has not been a change in circumstances
that warrants re-designating the site for airport-related uses.
Goal 2 requires that all decisions and actions related to use of land have an adequate factual base.
In this case, the Hearings Officer determined that a significant component of the required factual
base is consistency with the adopted Bend Municipal Airport Master Plan (1994, amended 2002). In
the burden of proof, the applicant argued that the proposed amendments were necessary to
accommodate a growing demand for additional land at the Bend Airport to support future uses. The
Hearings Officer disagreed and found that the Airport Master Plan indicates that there is sufficient
land available throughout the 2002-2021 planning period.
Deschutes County Code (DCC) 18.136.020 details four (4) factors that must be considered when
reviewing a proposed zone change. The factor under subsection 'D' states, "That there has been a
change in circumstances since the property was last zoned, or a mistake was made in the zoning of
the property in question." For this criterion, the applicant argued that there are two pieces of
evidence to support its contention that there has been a change in circumstances that warrants a re-
designation. First, the applicant states that the purchase by the City of Bend of a portion of tax lot
400 essentially bisects that tax lot and makes the application of irrigation water impractical.
Quality Services Performed with Pride
Secondly, the applicant argues that the Bend Airport has changed since it was originally zoned,
resulting in a need for additional land zoned for airport use. The Hearings Officer disagreed and
found that there is insufficient evidence to support a finding that there has been a change in
circumstances since the property was last zoned that warrants a rezone.
For the Board's review, staff has attached the Staff Report, Hearings Officer decision, and maps of
the proposed plan amendment and zone change.
PROCEDURES
Per DCC 22.20.040(D), quasi-judicial comprehensive plan amendments are exempt from the 150-
day land use clock.
Per DCC 22.28.030(C), plan amendments and zone changes concerning lands designated for
agricultural use shall be heard de novo before the Board of County Commissioners without the
necessity for an appeal, regardless of the determination of the Hearings Officer.
STAFF RECOMMENDATION
Staff concurs with the Hearings Officer decision and recommends that the Board deny the
proposed plan amendment and zone change.
SCHEDULE
Staff has also submitted an agenda request for the public hearing to be held on February 23,
2009. Please feel free to contact me with any questions or concerns.
Work Session Memo, PA-08-3, ZC-08-3 Page 2
~L!
~f
)1- E
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX(541)385-1764
http://www.co.deschutes.or.us/cdd/
STAFF REPORT
FILE NUMBERS: PA-08-3, ZC-08-3
HEARING DATE: October 21, 2008
6:30 P.M.
Barnes and Sawyer rooms of the
Deschutes Services Building
1300 NW Wall Street
Bend, Oregon 97701
LOCATION: The property is identified on Deschutes County Assessor map 17-
13-20, as tax lots 400 and 403. Tax lot 400 has an assigned
address of 22525 Nelson Road.
APPLICANT/ Gibson Airpark, LLC
OWNER: 1345 NW Wall Street, Suite 100
Bend, OR 97701
REQUEST: The applicant is requesting an amendment to the Deschutes
County Comprehensive Plan Map to change the map designation
of the subject property from Agricultural to Airport Development.
The applicant is also requesting a, zone change for the subject
property from Exclusive Farm Use to Airport Development
(Aviation Support District). The subject property is located along
the southern border of the Bend Municipal Airport.
STAFF CONTACT: Anthony Raguine, Senior Planner
I. APPLICABLE STANDARDS & CRITERIA:
A. Statewide Planning Goals and Oregon Administrative Rules (OAR) Chapter 660
1. Oregon Statewide Planning Goal 1, 2, 3, 4, and 12
2. Other Applicable Statewide Planning Goals as described below.
3. OAR Chapter 660
a. Division 4, Interpretation of Goal 2 Exception Process
b. Division 11, Public Facilities Planning
C. Division 12, Transportation Planning
d. Division 13, Airport Planning
B. Deschutes County Comprehensive Plan
1. Chapter 23.64, Transportation System Plan
Quality Services Performed 7vith Pride
a. . Section 23.64.200. Airports
2. Chapter 23.120, Goal Exception Statement
a. Section 23.210.070. Bend Municipal Airport Exceptions Statement
C. Deschutes County Zoning Ordinance
1. Chapter 18.136, Amendments
a. Section 18.136.020. Rezoning standards.
D. Deschutes County Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
a. Section 22.20.030. Final action in land use actions.
II. FINDINGS OF FACT:
A. Existing Zoning and Comprehensive Plan Designations: The subject property is
currently zoned Exclusive Farm Use (EFU) and has a Comprehensive Flan map
designation of Agricultural. j
B. Location: The subject property is identified on Deschutes County Assessor map
17-13-20, as tax lots 400 and 403. Tax lot 400 has an assigned address of
22525 Nelson Road.
I
C. Site Description: The subject property is relatively flat, composed of two tax lots
(400 and 403), and is a total of 45.1 acres in size. Tax lot 400 is i currently
developed with two dwellings (1970 and 1975), and is bounded by the Bend
Municipal Airport to the north, Nelson Road to the east, Nelson Road acid tax lot
403 to the south, and Powell Butte Highway to the west. Tax lot 400 is
approximately 22.3 acres in size, and is essentially bisected into east 'and west
halves by tax lot 401, which is owned by the City of Bend. Tax Ict 403 is
undeveloped, and is bounded by tax lot 400 to the north and west, tax lot 700 to
the east, and tax lot 500 to the south. Tax lot 403 is approximately 22.8 acres in
size and is bisected from northeast to southwest by Nelson Road.
i
i
D. Surrounding Uses: The subject property is surrounded by the Bend Municipal
Airport to the north, with rural residential and farm uses to the east, se,uth, and
west on lands zoned EFU and Multiple Use Agricultural (MUA).
E. Proposal: The applicant is requesting an amendment to the Deschutes County
Comprehensive Plan Map to change the map designation of the subject property
from Agricultural to Airport Development. The applicant is also requesting a zone
change for the subject property from Exclusive Farm Use to Airport Development
(Aviation Support District). The subject property is located along the I southern
border of the Bend Municipal Airport.
F. Agency Comments: The Planning Division mailed notice to several public
agencies and received the following comments.
i
1. Senior Transportation Planner, Peter Russell: I have read and !reviewed
the traffic study for Gibson Airpark and have found there are a couple of
areas that need to be addressed. First, the land use is a plan
PA-08-3 7C:-08-3 Gihcnn Airpark
Pane 7
amendment/zone change and under DCC 17.16.115(E)(1)(d) the traffic
study must use a 20-year timeframe. The submitted traffic study
often references the traffic guidelines for the City of Bend, which is
incorrect as all affected roads and the land itself are under the jurisdiction
of Deschutes County. The applicant needs to abide by DCC 17.16.115.
Finally, the current study only goes to 2014 whereas it should extend to
2018. The longer timeframe is also a component of the state's
Transportation Planning Rule (TPR) at OAR-660-012-0060(1)(c).
Second, traffic analyses for zone change/plan amendments to comply
with the TPR typically look at a reasonable worst case scenario. That
means taking the highest traffic generator that could be approved outright
under the existing zoning then comparing and contrasting that to the
highest traffic generator allowed outright under the requested zoning.
This comparison is then used to determine if the proposed plan
amendment/zone change will have a significant affect as defined by the
TPR. The current traffic study does not perform that level of analysis of
comparing potential traffic volumes from Exclusive Farm Use (EFU) to
Airport Development (AD).
The plan also indicates a realignment of Nelson Road - a rural collector -
in Phase III; the applicant needs to state whether that is consistent with
the Bend Airport Master Plan.
[STAFF COMMENT: Via electronic mail dated September 16, 2008, County Engineer
George Kolb, Road Department, agrees with Mr. Russell's comments.]
2. Bend Fire Department:
Refer to the required Operational Permit requirements of the 2007
Oregon Fire Code Section 105.6.3 for Aviation Facilities.
Refer to Chapter 11 of the 2007 Oregon Fire Code for the code
requirements for Aviation Facilities.
3. Bend Municipal Airport Manager, Sue Palmeri: I am not writing this letter
in support of or against the proposed land use request rather, as the
Manager of the Bend Airport, to ensure that the County is aware of the
City's obligations related to our acceptance of Federal Aviation
Administration (FAA) Airport Improvement Program grants and possible
future use of the property included in this land use application.
The City has an obligation to make an airport available for the use and
benefit of the public, however this obligation does not require the City to
permit ground access by aircraft from adjacent property (known as
"through-the-fence"). The FAA's position is that through-the-fence
arrangements can place an encumbrance upon the airport property and
reduce the airport's ability to meet its Federal obligations. As a general
principal the FAA does not support agreements that grant access to the
public landing area by aircraft stored and serviced off-site on adjacent
property.
PA-08-3, ZC-08-3, Gibson Airpark Page 3
[STAFF COMMENT: To date, staff has not received comments from the FAA on this
proposal. The applicant's supplemental burden of proof indicates inn-going
conversations with the FAA and Ms. Palmeri regarding through-the-fence operations.]
i
The following agencies did not respond to the Notice, or respondled with
No Comment: County Assessor, County Building Division,; County
Environmental Health Division, County Property Address Coordinator;, City of
Bend Planning Department, Central Oregon Irrigation District, Oregon
Department of Transportation, Federal Aviation Administration.
H. Public Notice and Comments: The Planning Division mailed notice of this
application to all property owners within 750 feet of the subject property. No
comments were received.
III. CONCLUSIONS OF LAW:
A. Statewide Planning Goals
i
1. Goal 1: Citizen Involvement
i
Oregon Statewide Planning Goal 1 seeks "To develop i citizen
involvement program that insures the opportunity for citizens to be
involved in all phases of the planning process."
RESPONSE: As part of the plan amendment and zone change process, public notice
was provided to affected agencies and surrounding area property owners. Additionally,
the county will hold public hearings before a hearings officer and before We County
Commissioners. Staff believes the intent of Goal 1 would be met.
i
2. Goal 2: Land Use Planning
Oregon Statewide Planning Goal 2 seeks "To establish a eland use
planning process and policy framework as a basis for all ;decision
and actions related to use of land and to assure an adequate factual
base for such decisions and actions."
RESPONSE: In accordance with Goal 2, the applicant has submitted an application for
the proposed amendment and rezone. In addition to the burden of proof submitted with
the application, a supplemental burden of proof was received on October 6; 2008 to
address concerns raised by staff detailed in a letter mailed to the applicant on
September 23, 2008. The applicant has provided sufficient information to assure an
adequate factual base to enable the county to make an informed decision regarding the
proposal. Staff believes the intent of Goal 2 would be met. j
3. Goal 3: Agricultural Lands
Oregon Statewide Planning Goal 3 seeks "To preserve and ;maintain
agricultural lands."
PA-08-3, ZC-08-3, Gibson Airpark I Page 4
FINDING: The subject property is currently zoned EFU and has been designated
agricultural on, the Deschutes County Comprehensive Plan Map. Goal 3 provides a
definition of agricultural land, which is detailed in the implementing administrative rules
under OAR 660-033-020 as follows:
(1) (a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U. S. Natural Resources Conservation Service
(NRCS) as predominantly Class I-IV soils in Western Oregon and I-V/ soils in
Eastern Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic
conditions; existing and future availability of water for farm irrigation purposes;
existing land use patterns; technological and energy inputs required; and
accepted farming practices; and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent
or nearby agricultural lands.
(b) Land in capability classes other than I-IV/I-VI that is adjacent to or
intermingled with lands in capability classes I-IV/I-VI within a farm unit, shall be
inventoried as agricultural lands even though this land may not be cropped or
grazed;
The applicant argues that the subject property does not meet the definition of agricultural
land. Based on the above language, staff believes that the subject property must pass
four "tests", identified as subsections 1(a)(A-C) and 1(b), to determine whether the
property meets the definition of agricultural land or should be inventoried as agricultural
land.
Soil classification
The subject property is located in "Eastern Oregon", as this term is defined in OAR 660-
033-0201. According to Soil Investigation Report: Land Capability Classification
Determination for Agricultural Land (May 22, 2008), prepared by Roger Borine a
Certified Professional Soil Classifier (#24918):
Tax lot 400 is approximately 17 percent, or 4.5 acres, of land capability
classification (LCC) 3 (irrigated) and 6 (nonirrigated), and 83 percent, or 22.3
acres of LCC 7/8;
2. Tax lot 403 is approximately 13 percent, or 3.4 acres, of LCC 3 (irrigated) and 6
(nonirrigated), and 87 percent, or 22.8 acres, of LCC 7/8.
Although the subject property contains a total of 28.59 acres of water right, at best only
approximately 15 percent of the property would be Class 3 soils, with the remaining
approximately 85 percent of the property Class 7/8. Based on this information, the
applicant argues, and staff concurs, that the subject property is not predominately Class
' (5) "Eastern Oregon" means that 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, Jefferson, Deschutes
and Klamath to the southern boundary of the State of Oregon.
PA-08-3, ZC-08-3, Gibson Airpark Page 5
I-VI soils and, therefore, does not meet the definition of agricultural land in O,AR 660-
033-020(1)(a)(A).
Land in other soil classes
i
As noted above, only approximately 15 percent of the subject property would contain
Class 3 soils if irrigated. Although the subject property includes 28.59 acres of water
right, staff can find no evidence that the property has ever been irrigated, or evidence of
a water delivery system. Given the irregular shape of tax lot 400, with city-owned tax lot
401 bisecting it, and the fact that Nelson Road bisects tax lot 403, staff believes it would
be difficult to apply irrigation water to the subject property. Even combining tax lot 400
with the portion of tax lot 403 that abuts it, staff believes it would be difficult: to apply
irrigation water to this tract.
Next, staff analyzes the property's suitability for livestock production. For staff to
consider the potential for beef cattle production, the calculations regarding ! potential
productivity for livestock forage are detailed below. Estimates on the value of beef
production are based on the following assumptions, which have been derived through
consultation with OSU Extension Service:
I
• One AUM is the equivalent to the forage required for a 1000 lb. Cow and calf to
graze for 30 days (900 pounds forage).
• On good quality forage, an animal unit will gain 2 pounds per day.
• Two animal units will eat as much in one month as one animal unit will eat in two
months.
• Forage production on dry land is not continuous: Once the forage is, eaten, it
generally will not grow back until the following spring.
• An average market price for beef is $.80 per pound.
Based on these assumptions, the value of beef production on the property can be
calculated, presuming one acre is deducted from each parcel for a home site, using the
following formula:
30 days X 2#/day/acre = 24.0 lbs. Beef/acre
(2.5 acres per AUM)
24.0 lbs. Beef/acre x 45.1 acres x $0.80 /lb. _ $865.92
Thus, the total gross beef production potential for the subject property v~iould be
approximately $865.92 annually. This figure represents gross income and !does not
deduct the costs of land acquisition, or farm operating costs such as fencing cots, water
expenses, land preparation, calves, veterinary costs, or any other costs of production.
After deducting those costs, staff believes it is clear the property could not be farmed
profitably and, therefore, would be not suitable for the production of livestock via grazing.
The subject property could potentially be combined with other farm uses in ,the area,
including existing livestock grazing operations. Staff notes that the portion of tax lot 403
to the east and south of Nelson Road abuts two properties that appear to bey currently
employed in farm use - tax lot 500 to the south and tax lot 700 to the east. Both parcels
are irrigated, and both include livestock grazing.
PA-08-3, ZC-08-3, Gibson Airpark Page 6
Staff believes it would be difficult to combine all of the subject property (tax lots 400 and
403) with tax lot 500 or 700, with a publicly dedicated road (Nelson Road) running
between the properties, and the city-owned tax lot 401 essentially bisecting tax lot 400.
However, the portion of tax lot 403 lying east and south of Nelson Road that is abutting
tax lots 500 and 700 could be combined for farm use. Staff believes the applicant
should address the feasibility of combining the above-referenced portion of tax lot 403
with tax lot 500 or 700 for farm use. Staff notes that no comment was received from the
owners of tax lots 500 or 700 indicating a desire to increase the size of their farm use.
Farm practices on adjacent or nearby agricultural lands
As detailed previously, staff believes it would be difficult to combine all of the subject
property with the livestock grazing on tax lots 500 and 700 due to the presence of
Nelson Road between the properties. However, staff also notes that the portion of tax
lot 403 lying east and south of Nelson Road could be combined with tax lot 500 or 700
for farm use. Staff believes one of the issues under this criterion is whether the above-
referenced portion of tax lot 403 is necessary to permit continued farm practices on tax
lot 500. Specifically, staff is concerned that airport uses on this portion of tax lot 402
could negatively impact existing farm practices on tax lot 500. The existing livestock
grazing could be impacted by the noise associated with airport uses such as hangars
and taxiways, which would be an outright permitted uses in the proposed Aviation
Support District. Staff believes the applicant should address this issue.
Staff notes that no comments were received from adjoining property owners in response
to the notice of these applications.
Farm unit
According to the soil investigation, the subject property is composed predominantly of
Class 7/8 soils. As noted above, the portion of tax lot 403 lying east and south of Nelson
Road abuts tax lots 500 and 700, which appear to be currently employed in farm use.
Both tax lot 500 and 700 contain 36A and 58C soils, are irrigated, and are receiving
special assessment for farm use. Type 36A soils are considered high-value farmland
when irrigated, and have a general rating of Class III when irrigated. Based on the
county's geographic information system (GIS) data, staff estimates that approximately
75 percent of tax lot 500 is composed of 36A soils, and slightly over 50 percent of tax lot
700 is composed of 36A soils. For these reasons, staff believes that the portion of tax
lot 403 lying to the east and south of Nelson Road, composed predominantly of Class
7/8 soils, is adjacent to lands with Class I-VI soils within a farm unite. Therefore, staff
believes that at a minimum, this portion of tax lot 403 was correctly inventoried as
agricultural land3.
z OAR 660-033 does not provide a definition of farm unit. Staff notes that ORS 215.278,
Accessory dwellings for farmworkers; rules, provides the following definition:
(2) As used in this section, "farm unit" means the contiguous and noncontiguous tracts in
common ownership by the farm operator for farm use as defined in ORS 215.203. [2001 c.613
6]
Prior to the realignment of Nelson Road to its current location, all of the subject property was
adjacent to tax lots 500 and 700.
PA-08-3, ZC-08-3, Gibson Airpark Page 7
4. Goal 4: Forest Lands
Oregon. Statewide Planning Goal 4 seeks "To conserve forest lands
by...
RESPONSE: Staff believes no forest lands exist on-site.
5. Goal 5. Open Spaces Scenic and Historic Areas and Natural Resources
I
Oregon Statewide Planning Goal 5 seeks "To protect natural
resources and conserve scenic and historic areas and open
spaces."
RESPONSE: Goal 5 resources are listed in the county's acknowledged Comprehensive
Plan. There are no known significant Goal 5 resources on the site. Utilizing the selected
site as proposed would have no significant adverse impact on the amount of open space
or scenic views available. Staff believes the intent of Goal 5 would be met.
Impacts on related resources:
i
Mineral and aggregate resources: The expansion site has never been zoned fcr mineral
or aggregate resources.
i
Energy sources: There are no known energy resources on the sites such as natural
gas, oil, coal or geothermal heat.
Fish and wildlife habitat: The expansion site has no designated fish or wetlariIJ habitat.
The site is unlikely to contain threatened or endangered species. The site is already
surrounded by development that limits its potential for threatened or endangered
I
species.
I
d scientifically siqnificant natural areas including desert arei:hs: Staff
believes nothing about the selected site separates it from surrounding !areas as
ecologically or scientifically significant.
I
Outstanding scenic views: Staff believes nothing about the site indicates; it has a
significantly better view than other sites in the vicinity.
Water areas wetlands watersheds and groundwater resources: There are no wetlands
or watersheds within or adjacent to the subject site. Staff is unaware of any watersheds
that would be affected by the proposed plan amendment and zone change. Runoff
control and treatment would be addressed by the city during site plan review for the
school.
Wilderness areas: The site does not meet the definition of "wilderness Areas" as
described within the Oregon State Goals and Guidelines. The parcel does not contain
pristine surroundings or old growth trees.
Historic areas sites structures and objects: The subject property has no structures
listed on the National Register of Historic Places. No structures or places of historical
significance have been determined to exist on or near the property selected.
PA-08-3, ZC-08-3, Gibson Airpark ! Page 8
Cultural areas: The property has no known cultural resources.
6. Goal 6: Air, Water and Land Resources Quality
Oregon Statewide Planning Goal 6 seeks "To maintain and improve
the quality of the air, water, and land resources of the state."
RESPONSE: The applicant is not proposing an exception to compliance with Goal 6.
Maintaining or improving the quality of the community's air, water and land resources
would be assured through enforcement of state and local regulations.
Goal 7: Areas Subject to Natural Disasters and Hazards
Oregon Statewide Planning Goal 7 seeks "To protect people and
property from natural disasters and hazards"
RESPONSE: There are no areas within the subject property that are subject to flooding
or landslide activity. The wildfire hazard for the site is the same as other areas with
junipers and native brush. Development of the site would reduce the potential for
wildfires by providing adequate water to meet the fire flow requirements for future airport
uses.
8. Goal 8: Recreational Needs
Oregon Statewide Planning Goal 8 seeks "To satisfy the recreational
needs of the citizens of the state and visitors and, where
appropriate, to provide for the siting of necessary recreational
facilities including destination resorts."
RESPONSE: Given the location of the subject property adjacent to the airport, staff
believes a recreational area on the subject property would not be appropriate.
9. Goal 9: Economic Development
Oregon Statewide Planning Goal 9 seeks "To provide adequate
opportunities throughout the state for a variety of economic
activities vital to the health, welfare, and prosperity of Oregon's
citizens."
RESPONSE: Assuming the subject property is incorporated into the Bend Municipal
Airport, the proposed plan amendment and zone change would allow the establishment
of uses authorized under the Airport Development Zone and Aviation Support District.
Staff believes these uses would provide an opportunity for additional economic
development at the Bend Municipal Airport.
10. Goal 10: Housing
Oregon Statewide Planning Goal 10 seeks "To provide for the
housing needs of citizens of the state."
PA-08-3, ZC-08-3, Gibson Airpark Page 9
RESPONSE: Given the location of the subject property adjacent to the airport, staff
believes additional residential use of the property would not be appropriate.
11. Goal 11: Public Facilities and Services
Oregon Statewide Planning Goal 11 seeks "To plan and dt?velop a
timely, orderly and efficient arrangement of public facilities and
services to serve as a framework for urban and rural development."
i
RESPONSE: Given the existing surrounding development, in particular the recent
development at the airport (reference SP-08-3 Aero Facilities (hangars)), staff believes
the adequacy of public facilities and services, such as water, electric, and phone, to the
subject property could be accommodated. However, at this time, staff has jconcerns
regarding transportation facilities and extension of sewer service.
i
As noted above, staff has questioned the adequacy of the transportation study submitted
by the applicant. As a result, staff is uncertain if adequate transportation facilities would
be available given the types of uses allowed under the Aviation Support District
designation.
The Bend Municipal Airport is presently served by connection to the City, of Bend
Wastewater Treatment Plant. The applicant's burden of proof states that it would not be
necessary to "extend" urban services such as sewer to rural lands because that service
already exists. Staff is unsure if the applicant intends to extend sewer linen from the
Bend Airport to the subject property, or if the applicant intends to serve the prcperty via
an on-site septic system. Staff notes that OAR 660-11-0060(2) states, j
2 Except as provided in sections 3 (4), 8), and 9 of this rule, and consistent
with Goal 11, a local government shall not allow: j
(c) The extension of sewer systems that currently serve land outside urban
growth boundaries and unincorporated community boundaries in order to serve
uses that are outside such boundaries and are not served by the systern on July
28, 1998.
The Bend Airport is located outside of an urban growth boundary and has been served
by the City of Bend Wastewater Treatment Plant since before July 28, 19`;✓~8. Staff
believes an extension of sewer service from the Bend Airport to the subject property
would not be allowed. Staff believes the applicant should specify their proposed method
of wastewater treatment.
12. Goal 12: Transportation
Oregon Statewide Planning Goal 12 seeks "To provide and
encourage a safe, convenient and economic transportation system."
i
RESPONSE: OAR 660-012 implements Oregon Statewide Planning Goal 12! Title 17
of the Deschutes County Zoning Ordinance also includes requirements for transportation
studies. As detailed above, the Planning Division's Senior Transportation Planner has
identified a few issues that must be addressed including:
i
PA-08-3. ZC-08-3, Gibson Airpark I Page 10
1
1. 20-year timeframe for the traffic study
2. Use of county standards found under DCC 17.16.115, and not City of Bend
standards
3. The study should be expanded to 2018 to comply with OAR 660-012-0060(1)(c).
As of the date of this staff report, the applicant has not revised the transportation study.
At this time, staff believes the applicant has not met their burden of proof regarding Goal
12.
13. Goal 13: Energy Conservation
Oregon Statewide Planning Goal 13 seeks "To conserve energy."
RESPONSE: The location of the proposed zone change adjacent to the airport would
allow efficient use of land for airport purposes. The ability of the subject property to
utilize renewal energy and implement energy conservation techniques is no different
than what is available at the Bend Airport.
14. Goal 14: Urbanization
Oregon Statewide Planning Goal 14 seeks "To provide for orderly
and efficient transition from rural to urban use, to accommodate
urban population and urban employment inside urban growth
boundaries, to ensure efficient use of land, and to provide for livable
communities."
RESPONSE: The proposal would not affect an urban growth boundary (UGB), and
does not seek to establish a new UGB. Staff believes this Goal does not apply.
15. Goal 15: Willamette River Greenway Goal 16: Estuarine Resources:
Goal 17: Coastal Shorelands_; Goal 18: Beaches and Dunes: Goal 19:
Ocean Resources
RESPONSE: Staff believes these Goals are not applicable because the subject
property is not within the Willamette Greenway, and does not possess any estuarine
areas, coastal shorelands, beaches and dunes, or ocean resources.
B. Title 18, Zoning Ordinance
Section 18.136.020. Rezoning standards.
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by the rezoning of 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.
RESPONSE: Conformance with the Comprehensive Plan is addressed below.
PA-08-3, ZC-08-3, Gibson Airpark Page 11
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
RESPONSE: The applicant proposes to rezone the subject property from Exclusive
Farm Use to Airport Development (AD) and Aviation Support District. Chapter 18.76,
Airport Development Zone, governs uses for lands zoned AD. Section 18.76.010,
Purpose, provides the following:
The purpose of the Airport Development (AD) Zone is to allow for development
compatible with ongoing airport use consistent with the Deschutes County Year
2000 Comprehensive Plan and the 1994 Bend Airport Master Plan (as amended
by a 2002 supplement), while providing for public review of proposed
development likely to have significant impact on surrounding lands. ; The AD
Zone is composed of three separate zoning districts, each with its own set of
allowed uses and distinct regulations, as further set forth in DCC 18.76.
In reviewing the 2002 amendment to the 1994 Master Plan (incorporated by reference
herein), staff notes that page 77 of the report discusses Drawing 1 - Airport Layout Plan,
and provides the following introductory statement,
I
The Airport layout Plan (ALP) presents the existing and ultimate airport layout
and depicts the improvements that are recommended to meet forecast aviation
demand.
Drawing 1 shows no existing or anticipated development on the Gibson Airpark
property4. Additionally, Drawing 6 of the 2002 Master Plan amendment, which depicts
the on-airport land use plan, does not designate any portion of the Gibson Airpark
property for airport-related zoning. Based on the above, staff believes that the proposed
plan amendment and zone change would not be consistent with the Master Plan and,
therefore, not consistent with the purpose of the Airport Development Zone.
In contrast to staff's position, the applicant argues that the drawings represent
recommendations and, therefore, the Gibson Airpark property, although not included in
the drawings, could be used as part of the Bend Airport. Specifically, the applicant
points to page 40 of the 1994 Master Plan which states,
The purpose of this chapter [Chapter 4: Airport Plans] is to describe ands evaluate
significant airport development alternatives and then present recommended
airport plans through a series of drawings and supporting narrative.
Similarly, staff notes that page 76 of the 2002 Master Plan includes the ;following
language,
The purpose of this chapter [Chapter Six, Airport Layout Plans] is to describe in
narrative and graphic form, the recommended airport development contained in
the 20-year master plan.
4 Drawing 4-6 of the 1994 Master Plan shows the western portion of tax lot 400 designated for
future aviation development.
PA-08-3, ZC-08-3, Gibson Airpark I Page 12
The applicant also argues that where the text of an ordinance clearly demonstrates an
intent not to rezone a particular area, but an attached map shows the area as rezoned,
the text controls5. In this situation, the applicant believes the text of the Master Plan
indicating that the drawings represent recommendations, controls over the drawing that
does not include the Gibson Airpark property.
Although staff agrees that the applicant's interpretation of the above language could
mean that land outside of the current airport boundaries could be used for the airport,
staff believes a more likely interpretation of the above language is that identified uses
and zoning within the airport boundaries are subject to change. Staff recommends that
the hearings officer focus on this criterion in his/her review.
The applicant also cites to other evidence within the Master Plan which supports the
applicant's argument that it would be appropriate to rezone the Gibson Airpark property
to Airport Development. The applicant cites pages 12-14 of the Master Plan, and a
reference in the Master Plan to a section of the Transportation Element of the
Comprehensive Plan which states,
a) The Bend Municipal Airport will grow along with the rest of Deschutes
County, and the following additional policies shall apply to the properties
shown on the components of the airport overlay-zones within the area of
average Ldn 65 contour (substantial impact area):
1. Property within the average Ldn 65 contour (substantial impact
area) shall be considered committed for airport-related or
accessory commercial or industrial uses. At such time as an
exception to LCDC Goal 3 (Agricultural Lands) is taken, such
properties shall be available to be rezoned to A-D Airport
Development, provided public, need is demonstrated for the
exception, in accordance with LCDC Goal 2 (Land Use Planning)
and public need is demonstrated for the zone to be placed upon
the property. The Ldn 65 noise contour map, marked Exhibit A,
attached thereto and, by this reference, incorporated herein, is
adopted to designate those properties within the Ldn 65 noise
contour.
The applicant contends that the majority of the subject property is within the Ldn 65
contour, as shown in Figure 4 of Draft Report Accompanying the Bend Municipal Airport
Urban Renewal Plan dated June 2008, and incorporated herein by reference.
Therefore, the subject property is considered committed for airport-related uses.
Although staff agrees that Figure 4 indicates the majority of the subject property is within
the Ldn 65 contour, staff notes that the above-referenced language no longer exists in
the Transportation Element of the Comprehensive Plan. When brought to the
applicant's attention, the applicant argued that since the Master Plan is the guiding
document for the Bend Airport, the "considered committed" language still applies. If the
above language still applies, staff notes the applicant would be required to demonstrate
there is a public need.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
5 Flying J. Inc. v. Marion County, 49 Or LUBA 28 (2005)
PA-08-3, ZC-08-3, Gibson Airpark Page 13
The availability and efficiency of providing necessary
public services and facilities.
I
RESPONSE: As addressed in previous findings, staff is concerned that transportation
facilities and wastewater treatment may not be adequate for the proposal.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
RESPONSE: Section 23.88.020 includes the following goal:
To preserve and maintain agricultural land.
As discussed in a previous finding, staff is concerned with how potential airport-related
uses on the portion of tax lot 403 to the east and south of Nelson Road could impact
existing farm use and agricultural land on tax lots 500 and 700. Additionally, staff is
concerned that at a minimum, the above-referenced portion of tax lot 403 was: correctly
inventoried as agricultural land, and would be impacted by the proposed rezone.
i
D. That there has been a change in circumstances since the
property was last zoned, or a mistake was made in the zoning
of the property in question.
RESPONSE: The applicant argues that a mistake was made in the zoning of the
property and that there has been a change in circumstances since the property was
zoned. As discussed in previous findings, the applicant argues that the soils
investigation shows that the property does not meet the definition of agricultural land
and, therefore, the property zoned EFU incorrectly. Staff has expressed (concerns
regarding this argument.
Regarding changes in circumstances, the applicant provides two items of consideration.
First, the applicant states that since the property was zoned, the City of Bend acquired a
portion of tax lot 400 that essentially bisects that tax lot. This configuration, the applicant
argues, would make the application of irrigation water impractical. Seco;ridly, the
applicant argues that the Bend Airport has changed since it was originally zoned, with
one consequence being the need for additional land zoned for airport use. While staff
agrees that the current configuration of the subject property would make the application
of irrigation water difficult, staff notes that the comment letter from the Bend Airport
Manager does not indicate a need for additional airport land.
C. Title 22 of the Deschutes County Zoning Ordinance
Section 22.28.030. Land Use Action Decisions
Decision on plan amendments and zone changes.
B. In considering all quasi-judicial zone changes and those
quasi-judicial plan amendments on which the hearings
Officer has authority to make a decision, the Board o1` County
Commissioners shall, in the absence of an appeal or review
PA-08-3, ZC-08-3, Gibson Airpark 1 Page 14
initiated by the Board, adopt the Hearings Officer's decision.
No argument or further testimony will be taken by the Board.
RESPONSE: A public hearing with the County Hearings Officer is scheduled for
October 21, 2008. As necessary, a meeting with the Board would be scheduled
subsequent to the Hearings Officer decision.
D. Title 23, Deschutes County Comprehensive Plan
Section 23.08.010. Introduction.
Recent years have witnessed dramatic growth and change in
Deschutes County. A rapidly increasing population causes ever
greater pressures on the land as well as the economic,
governmental and social structures of the area. These pressures
require many adjustments. Unfortunately, in the past, many of these
public decisions on land use and related matters were made without
adequate consideration of alternatives or consequences. . To
provide part of the answer, the comprehensive planning process
has been developed. This process provides for the gathering of
information, the prudent review of alternatives and the final
development of reasonable policies. The local need for planning is
also spurred by the requirements of the people of Oregon, as
manifested through the Legislature and the Land Conservation and
Development Commission, which require all local jurisdictions to
prepare adequate plans and planning programs.
RESPONSE: Deschutes County Code Section 18.136.020(A) requires the proposed
zone change to comply with the Comprehensive Plan's introductory statement and
goals. In accordance with this statement, the Deschutes County Code includes a
process requiring the applicant for a proposed quasi-judicial rezone to provide sufficient
information and evidence to allow a hearings body to make an informed decision and
determine if the requested zone change is appropriate not only to the site, but also to the
surrounding environment. Additionally, if approved, the new zone would include
approval criteria ensuring the establishment of new uses appropriate to the zone.
Section 23.64.010. Transportation System Plan; Section 26.64.020.
Coordination and implementation of the Transportation System Plan.
[An excerpt from 23.64. 010]
The purpose of the Transportation System Plan is to guide the
development of a safe, convenient and efficient transportation
system that promotes economic prosperity and livability for all
County residents.
[An excerpt from 23.64.020]
1. Goals.
a. Achieve an
economically
efficient, safe, convenient and
viable transportation and
PA-08-3, ZC-08-3, Gibson Airpark Page 15
I
communication system. This system includes roads,
rail lines, public transit, air, pipeline, pedestrian and
bicycle facilities. The Deschutes County
transportation system shall be designed to s6rve the
existing and projected needs of the unincorporated
communities and rural areas within the County. The
system shall provide connections between different
modes of transportation to reduce reliance on the
single-occupancy vehicle.
RESPONSE: The applicant argues that the proposed plan amendment and zone
change would promote efficient air transit by adding Airport Development-zoned land
next to the Bend Airport. This would then allow the establishment of airport-related uses
such as hangars, tie-downs, runways, and service roads. Staff agrees that the
applicant's proposal would provide convenient air transit if the Gibson Airpark, property
were either acquired by the City of Bend and consolidated with the Bend Airport, or the
applicant received FAA and City of Bend approval to conduct through-the-fence
operations. Otherwise, if approved, the subject property would allow airport-related uses
but would not have access to an airport.
3. Section 23.64.200. Airports.
[An excerpt from this section]
Unlike the Redmond Airport, the . Bend Municipal Airport is located
outside the Bend City limits and UGB, therefore the County has land
use jurisdiction over it. In order to guide airport land uses, the
County adopted and utilizes the 1994 Bend Municipal Airport Master
Plan, as amended in 2002 the "Supplement to 1994 Airpoit Master
Plan" incorporated by reference herein. This is the' guiding
document for airport planning and development. This document
incorporates a range of facility improvements for the Bend
Municipal Airport over the 20-year planning horizon (2021), including
short, intermediate, and long-term projects to improve safety and
function at the airport.
RESPONSE: Via Ordinance No. 2003-035, the Board of County Commissioners
adopted the 1994 Bend Municipal Airport Master Plan (Master Plan), as amended in
2002 (included herein by reference). The amended Master Plan is now the guiding
document for the Bend Airport.
The applicant argues that the Master Plan, "...'recommendations' about hour/ to use
specific land should not be taken as a literal binding requirement as to how specific land
should be developed, per the County's own Comprehensive Plan under 23.08.020."
The applicant cites to the following specific part of 23.08.020,
...the purpose of the Comprehensive Plan for Deschutes County is not to provide
site-specific identification of the appropriate land uses which may take place on a
particular piece of land, but rather it is to consider the significant factors which
affect or are affected by development in the county and provide a general guide
PA-08-3, ZC-08-3, Gibson Airpark I Page 16
i
to the various decisions which must be made to promote the greatest efficiency
and equity possible, while managing the continuing growth and change of the
area.
Although staff agrees that the Comprehensive Plan is generally not a site-specific
document, the Comprehensive Plan specifically references the Master Plan as the
guiding document for the Bend Airport and staff argues that the Master Plan is site
specific. By their nature, master plans are specific to a particular site and provide
guidance and standards for development on that site. Therefore, staff believes
conformance with the Master Plan should be required.
As noted in a previous finding, Drawing 1 of the 2002 Master Plan Update illustrates the
existing and ultimate airport layout. Although both the text describing Drawing 1 (pages
77-78) and Drawing 1 indicate anticipated airport growth and development on the west
and east sides of the airport, staff can find no evidence of anticipated growth to the south
of the airport on the Gibson Airpark property. As a result, staff believes the applicant's
proposal is not consistent with the Master Plan and, therefore, not consistent with the
Comprehensive Plan.
1. Goal. Protect the function and economic viability of the
existing public-use airports, while ensuring public safety and
compatibility between the airport uses and surrounding land
uses for public use airports and for private airports with three
or more based aircraft.
2. Policies.
a. Deschutes County shall protect public-use airports
through the development of airport land use
regulations. Efforts shall be made to regulate the land
uses in designated areas surrounding the Redmond,
Bend, Sunriver and Sisters (Eagle Air) airports based
upon adopted airport master plans or evidence of each
airports specific level of risk and usage. The purpose
of these regulations shall be to prevent the installation
of airspace obstructions, additional airport hazards,
and ensure the safety of the public and guide
compatible land use. For the safety of those on the
ground, only limited uses shall be allowed in specific
noise impacted and crash hazard areas that have been
identified for each specific airport.
b. Deschutes County shall:
2. Cooperate with the cities of Bend, Redmond
and Sisters in establishing uniform zoning
standards, which will prevent the development
of hazardous structures and incompatible land
uses around airports;
4. Through adoption of appropriate zoning
restrictions, allow land uses around public-use
airports that will not be adversely affected by
PA-08-3, ZC-08-3, Gibson Airpark Page 17
noise and safety problems and ;will be
compatible with the airports and their
operations;
RESPONSE: With regard to the function and economic viability of the Bend Airport, the
applicant references two items indicating a need for aircraft hangar space at the Bend
Airport and, therefore, supporting the proposed plan amendment and zone change.
First, the applicant cites page 22 of the 1994 Master Plan Update which states, "...the
hangars are fully occupied and there is a waiting list of aircraft owners desiring hangar
space." Second, the applicant notes that the recent application by the City of Bend to
establish a Bend Municipal Airport Urban Renewal Plan included much of thE: subject
property in the urban renewal areas. Staff notes that the comment letter from the Bend
Airport Manager, Sue Palmeri, does not indicate a present need to acquire this property
for future Bend Airport development.
With regard to incompatible uses, the applicant notes that residential uses exist on the
subject property that are not compatible with the airport, and argues that the proposed
zone change would ensure compatible uses in the future by limiting development on the
subject property to airport-related uses. While staff agrees that the proposed rezone
could limit new uses on the subject property to those that are compatible with the airport,
the existing residential uses would become lawfully established nonconforming uses that
could be allowed to remain without assurance from the applicant that these residential
uses would be removed prior to zone change approval.
13. Discourage future development of'; private
landing fields when they are in proximity to one
another, near other public airports and potential
airspace conflicts have been determined to
exist by the Federal Aviation administration
(FAA) or ODOT Aeronautics.
RESPONSE: The applicant notes that the 2002 Master Plan Update makes, several
references to the growing population of Deschutes County and the growing dernand for
aircraft hangars at the airport. Based on this information, the applicant argues that a
failure to recognize this demand, which would be somewhat alleviated by the proposal,
may lead to development of private landing fields in proximity to the Bend or Redmond
airports.
Although staff agrees that the Master Plan identifies a growing demand for aircraft
hangar space, staff notes that although this demand has been existing since before
2002, there has been a lack of applications for private landing fields which woul8 support
the applicant's argument. Also, as noted previously, the comment letter from the Bend
Airport Manager did not indicate a need to acquire this property to alleviate demand for
airport development.
s A copy of the proposed Bend Municipal Airport Urban Renewal Plan was not included in the
application materials, therefore staff was unable to determine if the Gibson Airpark property was
included in the Plan.
PA-0$-3, ZC-0$-3, Gibson Airpark Page 1 R
IV. CONCLUSION AND RECOMMENDATION:
Based upon the findings noted above, staff does not believe the applicant has met their
burden of proof with regard to Goal 3, Goal 12, the Deschutes County Comprehensive
Plan, the Airport Development Zone, and the 1994 Bend Municipal Airport Master Plan
(as amended in 2002). Staff recommends that the proposed plan amendment and zone
change be denied.
Dated this 14th day of October, 2008
Mailed this 14th day of October, 2008
AJR/slr
PA-08-3, ZC-08-3, Gibson Airpark Page 19
Bend
M
ni
i
l
u
pa
c
Airport
R
NELSON RD
NELSON PL
Taxlot
17-13-20 400
Plan Amendment
from AgriculturejAG)
to
Taxlot Airport Development
(AD)
,
17-13-20-400 -
Taxlot
17-13-20-403
Taxlot
17-13-20-403
NELSON RD
PROPOSED COMPREHENSIVE PLAN MAP
Legend
=Proposed Plan Amendment Boundary
Deschutes County Comprehensive Plan
AD -Airport Development
AG - Agriculture
RREA- Rural Residential Exception Area
Bend Municipal Airport
PA-0088-03
V V
0 250 500
Feet
AuguM 28, 2008
it ~~ar.w r r.~.~ rww r. pr ar.. r or+ri.y. a.a
++r r„~a~.+q. r.. r. r.a+. nr~. m,~iy r n4a
rrww, ~rrwr.~.,..r rwsr
Bend
Municipal
Airport
a
NELSON RD
NELSON PL
0
Taxiot
17-13-20-400
-Zone,Change from Exclusive
Farm _U
s
e
(EFUTRB)
_
_
,
,to
Airport Development,(AD)
,
Taxiot
(Aviation
Supp'ort District
,
17-13-20400
Taxiot
17-13-20403
Taxiot
17-13-20-403
NELSON RD
ERICKSON RD
Legend
=Proposed Zone Change Boundary
Deschutes County Zoning
Airfield Operations District
Aviation Related Industrial District
Aviation Support District
EFU - Tumalo/Redmond/Bend Subzone
MUAt0 - Multiple Use Agricultural
PROPOSED ZONING MAP
Bend Municipal Airport
ZC-0088-03
V V
0 250 500
Feet
August 28, 2008
n rnr a r.... o.w~ aw qw wry. rr.ro.nn aAa
ar.r,.,riNa n,r...r,.r.~r.raa++.r
Tumalo Rim Water Improvement District
64682 Cook Ave., PMB 94
Bend, OR, 97701
t tip
February 10, 2009 BY.
FEB 11 200
Deschutes County Commissioners
Community Development Department DEL ED BY:
117 NW Lafayette Ave
Bend, OR 97701-1925
REF: RC-08-1/CU-07-102/ SP-07-46/ MA-08-3 and MA-08-4, Applications for a
Conditional Use Permit by Latham Excavation, Inc.
Commissioners,
I am writing to again express the concerns of the Tumalo Rim Water Improvement
District (TRWID) with respect to the expansion of the Johnson Pit mine. The
TRWID remains deeply concerned about the impacts of the proposed actions of
Latham Excavation on the quality and quantity of water that we depend upon to
service the members of TRWID.
As I testified before you at your January 21, 2009 meeting, I represent the Board of
Directors and 53 property owners of the Tumalo Rim Water Improvement District
(hereafter TRWID). I have been providing both oral and written testimony on this
application since its inception late in 2007. The Board has requested that I reiterated
those concerns directly to you since Latham Excavation has appealed some of the
findings of the hearing officer. I assume all the previous record is available to you, thus I
will not burden you with the voluminous material previously submitted. Rather I will
attempt to highlight key concerns.
For the record, I am a retired geologist having worked for the County of Los Angeles,
California for 32 years. I also have former experience with the United States Geological
Survey (GS-11) and academic experience at the University of California and Texas Tech
University.
Let me say up front that there is always room for disagreement among professionals,
geologists in this instance. Mr. White has provided considerable rebuttal from "expert"
geologic consulting firms regarding the concerns I and Oregon DHS geologists have
raised. I have responded to each of the "rebuttals", but it still remains whose opinion one
wishes to accept. There are no absolutes. The simple issue remains that there appears to
be an obvious conflict when there is a large, active mine less than 1800 feet from our
wells, less than 200 feet above the aquifer that supplies our drinking water, a mine
situated in the middle of an Oregon State designated water protection area defined
specifically to protect our drinking water. We have heard all sorts of testimony defending
the legal rights of the mining interests and the decisions made in the ESEE in 1990.
However, I would argue that it is your responsibility as elected officials to weigh those
Page 1
rights against to rights of 53 properties which have been receiving water since 1977 (well
1) and 1982 (well 2).
i
We are pleased that the hearing officer recognized the need for water quality monitoring
at the Latham Mine, particularly in the case of a reported spill (emphasis mine).
However, as several of us testified before you on January 21, there is little or no
independent effort on the part of county and state regulatory agencies to monitor or
inspect mining activities. To the contrary, it appears that several of the agencies
(DOGAMI and DEQ) have gone out of their way to provide exceptions to our concerns.
Consequently, we are dependent on the "good will" of the mine operators to self regulate.
If the Banking/Wall Street debacle is any example of self regulation, then our water
quality is doomed.
BACKGROUND ON TRWID
The full background of the TRWID was presented to the County Hearing Officer in a
letter dated February 16, 2008. Summarizing, we are an Oregon Chapter 554 Corporation
incorporated as a Community Water System on May 11, 1982 to provide water to 53
properties occupying 118 acres with a current population of approximately 136. The
TRWID is served by two Oregon certified wells. The TRWID is regulated and inspected
in accordance with all pertinent state regulations and water testing results are reported to
members annually in a Consumer Confidence Report. Oregon state records demonstrate
that the TRWID has consistently provided very high quality water. Particularly notable is
the absence of various inorganic compounds (IOC) and soluble organic compounds
(SOC) that are of concern for water quality.
TRWID AND THE OREGON DRINKING WATER PROTECTION PROGRAM
The Oregon Department of Environmental Quality (DEQ) regulates all public water
systems with greater than 3 hookups. The Oregon Department of Human Resources
(DHS), Drinking Water Program prepared a Source Water Assessment Report (SWAR)
for the TRWID in May of 2003. This effort delineated a Drinking Water Protection Area
for the TRWID (Attachment A). This attachment specifically identifies the "Johnson Pit"
mine (the property under consideration in CU-07-102, SP-07-46, MA-08-3 and MA-08-
4) and the well on the property as potential sources of water contamination, (Attachment
C, Items 2, 4 on Table 2 in letter submitted to Hearing Officer on 16 February 2068). The
full Source Water Assessment Report, Tumalo Rim Water Association was submitted as
Attachment F with the February 16, 2008 letter.
I
These reports by the Oregon Department of Human Resources clearly demonstrate that
the water source for TRWID passes directly under the mine, processing area and well of
the Latham Excavation, Inc. property. Groundwater movement from the mine are: is
directly toward the TRWID wells mostly within the 2-year Time of Travel zone far the
TRWID wells.
Yage 2
I
RECOMMENDATION FROM THE DRINKING WATER PROGRAM, OREGON
DEPARTMENT OF HUMAN RESOURCES
When we became aware of the proposed mine expansion, the TRWID contacted the
Oregon Drinking Water Program to secure recommendations for protection of our
watershed. I will repeat the response we received here.
"The Department of Human Services ' Drinking Water Program has recently assessed the
drinking water supply for Tumalo Rim Water Association. The assessment included
identifying the source of the groundwater supplying the Association and the susceptibility
of that source to potential contamination. The assessment indicated that the source of
groundwater for the Association's wells is to the SSW-SW.
We have been made aware of a pending application for aggregate mining within the
drinking water source area, and more specifically, within what has been designated as
the two-year time-of-travel zone, i. e., groundwater will reach the well within a two year
time period.
Given the proximity of this facility to the Association's drinking water wells, we
recommend the following actions:
1. The Department of Geology and Mineral Industries designate the drinking water source
area as a "sensitive hydrogeologic area and that permit restrictions be consistent with
that status;
2. The permit conditions should include such actions as the use of drip pans, proper
disposal of spent petroleum products and other chemicals, secondary containment for
fuel and other stored chemicals, spill response plans, and other appropriate best
management practices;
3. Facilities for fueling, washing and maintenance be located as far as reasonably possible
from the well sites;
4. An evaluation of the riskposed by bringing outside materials to the site for processing,
including material such as asphalt;
5. A reclamation plan consistent with being located within a drinking water source area be
stipulated.
Dennis Nelson
Groundwater Coordinator
Drinking Water Program
Oregon Department of Human Services
444 A Street
Springfield, Oregon 97477
541-726-2587 (21)
dennis. o. nelson@ state. or. us"
Most of these recommendations have been set aside in the hearing process. We received
nothing but a run around from DOGAMI on the question of the "sensitive hydrogeologic
area", but they were quick to absolve Latham when asked by Mr. White. As tax-paying
Page 3
citizens, we would ask what is the point in the state of Oregon supporting a water
protection program if their recommendations are ignored?
We also received recommendations in discussions with the Deschutes County Water
Program coordinator. We are pleased to report that the few "concessions" we have
obtained were probably due to his efforts.
SUMMARY
i
In summary, we remain concerned about 1) water contamination from expanded
mining activities and unprotected water wells, 2) a plan for deactivation of th'e well
once mining activity ceases, 3) increased water use and potential local drawdown of
the aquifer.
As we previously requested, we further recommend that as a condition of approval,
the Deschutes County Water Program be contacted to provide recommendations for
water protection in our source water protection area and that all forthcoming;
recommendations be made a condition of approval of the proposed mine expansion.
In order to protect our water users from potential contamination, and to provide an
early warning in the case of accidental contamination, we request that, as a
condition of approval of the expanded mining activities, the Latham well be tested
for the standard array of contaminants on an interval recommended by the
Deschutes County Water Program and that these results be reported to the TRWID
and the appropriate state agency.
This latter is no less than we are required to do on a regular basis. The TRWID continues
to be responsible stewards of this precious and limited resource, and we appreciatf- the
high quality water we enjoy.
We appreciate the time and effort you commissioners are providing these concerns.
Si , -?t a
David P. Whistler, PhD.
Treasurer, Tumalo Rim Water improvement District
Attachments: Map of water protection area,
Drinking Water Program
TRWID, as prepared by the Oregon IDHS,
I,
13age 4
David P. and Helen M. Whistler
64194 Tumalo Rim Dr.
Bend, OR, 97701'
February 10, 2009
BY:
Deschutes County Commissioners and FEB 11 2008
Paul Blikstad, Senior Planner
Community Development Department DELI RIE I$1f:
117 NW Lafayette Ave
Bend, OR 97701-1925
REF: RC-08-1/CU-07-102/ SP-07-46/ MA-08-3 and MA-08-4, Applications for a
Conditional Use Permit by Latham Excavation, Inc.
Commissioners,
We are writing this letter to reaffirm our concerns about the apparent lack of
required reclamation at the mine property, the dust generated by ongoing mining
activities, and the health risks this uncontrolled dust produces.
We have addressed these concerns, both in oral testimony and written documentation on
numerous occasions during the County hearing process beginning early last year. You
will recall that we testified on these at your meeting on January 21, 2009. We have
provided extensive background research on these issues. We assume you had access to
and examined all this previous testimony and documentation at your "working session."
This will only briefly address on-going concerns.
In addition to numerous verbal conversations with these departments (some for several
hours at a time) we-as individuals, as representing the Board of Directors of the Tumalo
Rim Property Association (TRPOA), and as co-complaintants with 41 members of the
Tumalo Rim subdivision.--have filed a number of enforcement complaints addressing
most of these concerns. Lack of subsequent complaints should NOT be taken as
confirmation that the problems have been solved, but rather that we tire of having to be
vigalant 100% of the time, with no apparent satisfaction.
DEQ:
May 7, 2008-Dust complaint with photographs [Whistler, TRPOA Board],
May 14, 2008-Dust complaint with photographs [signed by 41 members].
May 15, 2008-Dust complaint with photographs [Adams]
DOGAMI: May 14, 2008-Dust complaint with photographs and complaint about
misleading statements by DOGAMI officials in support of mine. [Whistler,
TRPOA Board]
County Planning Commission:
March 14, 3008 #1 Operation outside the conditions of its SP-95-10 conditional
land use permit, and potential threat to health of families in the TRWID [Adams
and 31 members]
March 14, 2008 #2 Operation outside the conditions of its conditional land use
permit because of lack of incremental reclamation. [Whistler and 31 members]
Page 1
In most instances, it appears that the various state regulatory agencies (DOGAMI 'and
DEQ) and County Planning used these complaints as a means to identify exceptions that
absolved Latham Excavation of required actions rather than directly addressing the
concerns.
I
Quite frankly, "bottom up" regulation does not work under such circumstances.
Consequently, we are placing our faith in your good efforts to protect the welfare 'of and
address the concerns of the citizens of Deschutes County. As you heard in testimony
from many residents, we all acknowledge the existence of the mine, but we all hacl
reasonable expectations based both on statements made by Cascade Pumice and on the
conditions placed on the Cascade Pumice as the previous operators, that the mine, had a
limited resource that would be exhausted in a reasonable time, at which point the'
property would be reclaimed. The current request expands operation well beyond these
expectations and those spelled out in the 1990 ESEE.
We are not attorneys, but we have examined all of the pertinent legal documentation
regarding this case, and in most cases the intent of regulations, previous mandates and
previous regulatory actions is clearly obvious to any educated reader. As elected
representatives of all the people, it is this clear intent that we ask you commissioners to
carefully consider and uphold.
I
We are certain you will receive voluminous documentation from Mr. White and the
various agencies mostly absolving Latham Excavation of any further action.
For example, with regard to reclamation: there appears to be a legal debate regarding
who has authority. This simply "muddies the water". Extensive reclamation plans were
drawn up by DOGAMI prior to the 1990 ESEE process, the County adopted these plans,
and Cascade Pumice accepted them as part of their operating plan. Previous approved
plans did not include an ever expanding, un-reclaimed, dust generating back wall to the
mine. Previous approved conditions only anticipated mining of the Bend Pumice; a
relatively limited geologic unit. These conditions did not anticipate extensive mining and
sales of the Tumalo Tuff, a unit with far more extensive volume at the Johnson Road pit
mine. Previous conditions did not authorize processing and sales at the mine. j
Conveniently, DOGAMI now claims, regardless of previous restrictions placed do this
location by the County, sole jurisdiction over reclamation, then provides Latham]
Excavation with the loopholes to absolve them of most of the 1990 conditions. As one of
us (David Whistler) said in his public testimony before you, this state agency is doing
Deschutes County no favors.
With regard to dust (Attachments A-D): DEQ seems to lack any measurable
standards, and assumes if they don't hear otherwise, everything is OK. Mulch, which
was applied only after complaints were filed, is only temporary remedy, and doers not
address problems of huge clouds of dust blowing from a newly opened headwall:
Documents entered into the record show that OSHA requires that any product with
greater than 1/10'h of 1% crystalline silica be labeled CANCEROUS. According to the
AGI report two of the 3 samples tested from this mine were already at or exceeded this
]Page 2
limit. OSHA Regulations on Mineral Dusts states that anything above total quartz (silica)
dust of 30 mg/m3 and total nuisance dust 15mg/m3 is considered hazardous. The
rhyodactic vitric ash flow tuffs being mined at the Latham site (Siemens & Associates
Report, Exhibit E), by petrologic definition contains between 66% and 72% silica. Mr.
White has provided additional `expert' testimony that these are only applicable in
industrial instances (this mine is industrial). However, just because the regulations are
for industry does not diminish the fact that the reason for the regulations are for the
protection of health and individuals. The record also shows that "the freshness of the
particle surface (for example, freshly crushed pumice) appears to play a large role in the
toxicity of the silica. Freshly ground quartz has been found to be much more cytotoxic.
It is proposed that this may be one reason that extremely high exposures to desert dust
(more weathered) have resulted in more beguine conditions (than silicoous), referred to as
"simple siliceous pneumoconiosis" and "desert lung syndrome" and "stage 1 silicosis".
And the World Health Organization finds that: "Respirable silica dust may be invisible
to the naked eye and is so light that it can remain airborne for a long time. It can thus
travel long distances in the air and so effect populations not otherwise considered to be at
risk." And, "If dust clouds are seen in the air, it is almost certain that dust of potentially
hazardous sizes is present. However, even if no dust cloud is visible, there may still be
dangerous concentrations of dust present with a particle size invisible to the naked eye
under normal lighting conditions. "
Mr. White also provided testimony that the percent of crystalline silica present in the
material mined here is less than the toxic level, however, hand lens examination of the
tuff mined from this location, and was dumped on Johnson Road showed a higher
percentage of crystalline silica.
Track record: the Latham mine has a dismal record of proactive mitigation of offsite
impacts, and of following regulations under which they operate at this location under the
former CUP. Details are already identified on the record but they include:
• Hydroseal: has not been used since the original application (which was not
applied until photo-documented complaints on huge amounts of fugitive dust
were filed with DEQ.), despite the fact they state that it should be reapplied every
6 months..
• The water truck was not regularly utilized until a dust complaint was filed.
• Pumice trucks were not covered until brought out in public hearing although were
required as part of the CUP under which they were operating.
• Huge piles of vegetative matter were compiled, and in fact trees, wooden
construction palates and metal fencing materials were imported and dumped
onsite, until an enforcement complaint was filed with the county identifying these
piles as a fire hazard and identifying the fact illegal dumping was occurring.
Immediately after Latham Excavation sought a bid for chipping costs and
submitted this as evidence that they were already intending to take care of the
issue (Note that no chipping has actually been done to date). They also admitted
that they `made a mistake' to import vegetative and man-made vegetative
material.
Page 3
• A +-1000 gallon fuel tank was not identified by Latham as being onsite until they
were notified by the planning commission that queries had been made by the
public regarding regulations that needed to be followed for the tank to be
permitted. Then, it was quickly and quietly removed.
• Huge boulders by the 100's of truckloads were brought in from excavation sites
where Latham Excavation had contracts. When the complaint was filed regarding
this site being operated as a landfill was filed, Latham suddenly cut dramatically
back on the amount (and type) of material being imported, and claimed that
materials were being brought in for reclamation. Note that no reclamation, using
these materials has been done and, in fact, they are likely set to crush this
imported material for sale, since they do not have to reclaim to grade.
• "Contour ditches" that were "designed to convey any future flow into an ea:isting
depression well" were constructed early April after complaints were made in
testimony regarding where water was flowing. Note that this depression is not in
any way lined to prevent accumulated--possibly contaminated--water from
seeping into the water upslope from the Tumalo Rim Water Improvement'.l)istrict
wells or wells serving the adjacent Hoffman and Todd properties.
• Weather station was not brought in until nearly a year after operation wasbegun.
In conclusion, we ask that you commissioners carefully consider the long term impacts of
the proposed expansion of the Latham Mine on the residents of Deschutes County,
Clearly circumstances in the county-composition, economics, relative importance of the
`conflicts' identified in the ESEE--have significantly changed in the 19 years sincf; the
original ESEE study. Oregon State and Deschutes County agencies have the benefit of
volumes of new information on hazards that were not available in 1990. We ask that you
put this mine expansion request in a 2009 perspective, taking into account the health and
welfare of its citizens, or strictly hold Latham Excavation to those conditions agreed upon
by the original operator when they sought county approval in 1990.
Sincerely,
AZL,
Helen Whistler
Treasurer
Tumalo Rim Property Owners Association
David P. Whistler
Treasurer
Tumalo Rim Water Improvement District
Attachments A-D
cc: TRPOA; TRWID
I
Page 4
i
M
I
s
3
f
t
V
r
Q
N1
~D
®®cumert Reproduces Poorly
(Archived)
a
a
i
s
a
s
3
s
-o
t
1 .
3
I
C
3
E
a
m
0
c~
Q
Lo,acumsng Reproduces 'PoOTIV
tArchived)
M
w
3
c~
V
o-
O
K
o-~
0
0
a
bs
.s
3
V
t
d
o-
O
K
i
t
d
0
0
V6
3
Q
0
0
c~
a
Paul D. Dewey Attorney at I.
1539 NW Vicksburg
Bend, Oregon 97701
(541) 317-1993
fax (541) 383-3470
pdeweykbendcable.com
February 11, 2009
Board of Commissioners RECEIVED
Deschutes County :
c/o Deschutes County Planning Division F E B 1 1 2009
117 NW Lafayette Ave.
Bend, OR 97701 DELI E-LE~ F-®,,
Re: Legal Arguments on Appeals in CU-07-102/SP-07-46'~
(MA-08-3 and MA-08-4); Latham Excavation
Dear Commissioners:
As you allowed at your hearing on this matter, I am submitting on behalf of Eric and Ronna
Hoffman this legal memorandum to address some of the key issues in this case.
1. A new ESEE is needed where so much of what is proposed by the Applicant is
beyond the scope of the 1990 ESEE for this site.
In my submittal of January 20, I included a separate memorandum addressing this issue. In this
follow-up briefing, I believe it would be helpful to divide up the Goal 5 issues into separate
subjects, discussed below.
The most appropriate action by the County at this point would be to require a post-
acknowledgement plan amendment ("PAPA") and ESEE analysis for the site. It wouldn't
necessarily foreclose all mining at the site but would give the opportunity for a complete
assessment of conflicting uses and a new program to balance resource conflicts associated with
the Applicant's new proposal for the area.
A. The County can elect to require a new ESEE and Program to Achieve the
Goal.
There should be no dispute in this case that the County could call for a new ESEE and other Goal
5 processes here. OAR 660-023-0180(2) (which addresses mineral and aggregate resources)
provides that local governments "are not required" to amend acknowledged inventories or plans
with regard to mineral and aggregate resources except in response to a PAPA or at periodic
review. Even if not "required" to do so, the County can, and should, decide to require a new
' This parallels the general Goal 5 OAR 660-023-0250(3) and (4) provisions that local governments "are not
required" to apply Goal 5 to PAPAS or to revise acknowledged inventories or other implementing measures for a
resource site unless certain conditions require such application.
February 11, 2009
Page 2
Goal 5 process when an applicant seeks to fundamentally change what was contemplated in the
original ESEE as long as 18 years ago.
Where far more and different material are now contemplated to be mined than considered in the
original ESEE, where crushing is proposed though the ESEE does not designate it and it hasn't
occurred on the site in 25 years, where expansion and no reclamation of a highly visible hillside
headwall is proposed, where noise, dust, truck traffic and duration of mining are substantially
increased, and where all neighbors, including State Parks, have requested a new ESEE, it is
entirely appropriate for the County to require a new Goal 5 assessment. This prerogative is
entirely with the County.
The case of Urquhart v Lane Council of Governments, 80 Or App 176, 721 P2d 870 (1986),
(cited by the Hearings Officer at page 7 of her Decision) is not controlling here. This is not a
"changes in circumstances" case where changes in the area are to be addressed in periodic
review but rather a proposed change in use by an applicant which should be addressed in a
PAPA. Urquhart clearly did not prohibit a local government from requiring a new ESEE.
B. The County must require the filing of a PAPA.
Even if the County elects not to call for a new Goal 5 process on its own, such a process is still
required here where what the Applicant is proposing must be done as a PAPA rather than as a
conditional use or site plan permit. See Trademark Construction Inc v Marion County, 34 Or
LUBA 202 (1998), where LUBA approved a county's denial of a proposed expansion of a
mining site and determined that a PAPA rather than a conditional use application was required.
In that case the county had found that the comprehensive plan permitted mining at only historic
levels, based on plan language that the rock removal should be limited due to proximity of
residential areas and that current use activities could be considered compatible. There was a 20-
acre site, of which only one acre had been mined previously. Apparently the entire 20-acre site
had been designated for mining since it was said to have 1.5 million cu yds of material which is
far more than could exist on one acre.2 Contrary to the Hearings Officer's assumption here that
only expansion of areas designated for mining (rather than expansion of mining within a
designated site) triggers Goal 5, LUBA approved Marion County's decision to require a PAPA.
The same kind of presumption should be applied in this case where the ESEE contemplated
removal of only 760,000 cu yds of material on an 80-acre site and presumably based its conflicts
and compatibility analyses on that low level of mining. As noted by the Hearings Officer at page
16 of her Decision, Latham reported removing 150,000 cu yds of material in just one year. That
constitutes one-fifth of the total removal contemplated and assessed in the ESEE. That limited
volume context for the ESEE analysis should not be changed without a PAPA.
The Applicant's interpretation of the law as allowing anything and everything forever on a
mining site has no basis. Just because Mr. White when he was County Legal Counsel drafted
what he describes as only "generic" ESEEs with few detailed restrictions does not mean that his
mining clients now can do anything not specifically restricted. Latham Excavation should not be
2 An acre is 69.5 yds x 69.5 yds or 4,840 sq yds. Depth provides volume. Dividing that number into 1.5 million cu
yds would require a depth of 927 feet on a one-acre parcel.
February 11, 2009
Page 3
allowed to do more than what was actually contemplated in the ESEE, including the amount and
type of material to be mined.
Critical to an ESEE analysis of conflicts between a mining site and conflicting uses in the
surrounding area is the determination of what is to occur on the site. Only with that
identification can the conflicts analysis be done, plus the balancing of resource interests and
development of a program to carry out the balancing. This is not only implicit in the ESEE
process, but it is also occasionally stated explicitly as in OAR 660-023-0180(5)(d)(C) requiring
consideration of a probable duration of the mining operation and OAR 660-023-0180(6)(d)
prohibiting the mining of more than what is specifed.3
C. The role of the County's ESEE.
Mr. White in his arguments asserts that we are improperly elevating the role of the ESEE here.
He argues that it should apply and supersede the Code only where there is an actual "conflict"
with the Code. This is fundamentally incorrect where the ESEE is part of the County's
acknowledged comprehensive plan and the Code is subservient to and must be consistent with
the plan. Furthermore, the Code itself broadly relies on the ESEE.
DCC 18.52.010(D) states that the Surface Mining Zone is to "allow the development and use of
identified deposits of mineral and aggregate resources consistent with Statewide Planning Goal
5." (Emphasis added.) The Goal 5 planning document here was the ESEE which identified the
kinds and amounts of resources.
DCC 18.52.080(E) requires for a site plan application:
"A description of all potential impacts of the mining activities identified by the
ESEE analysis for the specific site and how those impacts are addressed."
(Emphasis added.)
DCC 18.52.100(B) requires review of "the proposed site plan's conformance with the ESEE
analysis for the site." (Emphasis added.) Modifications to the site plan may be made as
"necessary to fulfill the requirements of the site-specific ESEE analysis." (Emphasis added.)
The Applicant must also prove under DCC 18.52.110(P):
"All impacts of the mining activities identified in the ESEE analysis for the
specific site are addressed and have been resolved at the time of site plan approval
or before the start of mining activity." (Emphasis added.)
Given the above Code language, there is no basis for the Applicant's theory that the ESEE
should only be applied where there are direct "conflicts" with the Code.
3 Note that these provisions apply to aggregate materials, but where the Applicant intends to mine aggregate as well
as pumice and even plans to crush the aggregate and where the pumice and aggregate are intermingled, these
standards are applicable here.
February 11, 2009
Page 4
Furthermore, DCC 18.52.100(J) requires demonstration that drilling and blasting "are allowed
under the site-specific ESEE analysis," DCC 18.52.050(B)(2) allows crushing of materials only
on sites "designated for crushing in the ESEE analysis," and DCC 18.52.020 provides that
setbacks, standards and conditions in the ESEE are controlling over the criteria in the Code.
Finally, DCC 18.52.140(A) states the applicable conditional use criteria for "[w]hen a site has
been designated for crushing of mineral and aggregate materials under the site-specific ESEE
analysis."
Where the Code provides that the "site-specific ESEE" impacts and requirements are controlling,
the Applicant has the burden of showing that these criteria are met. The Applicant cannot use as
an excuse that the ESEE was so "generic" or "formulaic" that it did not get around to specifically
allowing what the Applicant is applying for that it did not allow more types of activities, more
kinds of materials to be mined and more volume of materials to be mined at the site than it does.
The burden is on the Applicant to prove that what it is seeking is actually allowed by the ESEE.
The Applicant also attempts to minimize the role of the ESEE by claiming that OAR 660-016-
0010 requires clear and objective standards and that such standards are provided only by the
DCC. To the contrary, OAR 660-016-0010 requires the "clear and objective" standards to be in
"the comprehensive plan." OAR 660-016-0010(3). Apparently whatever is in this
comprehensive plan ESEE was found to be adequate by LCDC.
D. The Goal 5 process should be followed to assess impacts of the proposed
mining on Goal 5 resource sites in the area.
The adjoining and nearby Goal 5 resource site of the Deschutes River Scenic Waterway4 is not
even assessed in this application by Latham Excavation, though the expanded operations of the
mine could substantially impact this Goal 5 resource site because of the dust and noise.
Latham's argument against needing to address the Goal 5 resource sites in the area would
presumably rely on OAR 660-023-0250(3) which apparently requires a county to assess Goal 5
impacts only where there is a PAPA. As discussed above, the substantial differences between
what was approved in the original ESEE and what is proposed by Latham now requires a new
PAPA. Additionally, as also addressed above, there is nothing preventing the County from
initiating consideration of these broader Goal 5 impacts on its own.
E. Approval of this proposal would constitute a violation of Goal 5.
If the OARS are interpreted as foreclosing a new ESEE here, despite the difference between what
is proposed and what was addressed in the ESEE, then the rules are invalid as applied, contrary
to Goal 5 and ORS 197.225's requirement that PAPAS be consistent with the Plan and Goals.
Goal 5's requirement of conserving scenic and open spaces is not met.
4 Originally, we assumed Tumalo State Park is also a designated Goal 5 resource site, but we have found no
designation of it or other similar sites by the County. The fish and wildlife resources of the Deschutes River are
protected under Goal 5 through Ordinance 92-041. That does not mean, though, that Tumalo State Park is not
protected from the mine's impacts since the comprehensive plan through the mine ESEE provides protection.
February 11, 2009
Page 5
II. Not all reclamation-related decisions are the exclusive province of DOGAMI
The County and DOGAMI have dual roles regarding reclamation. The Applicant is wrong in
asserting there is exclusive jurisdiction in DOGAMI for all reclamation issues.
County decisions related to reclamation include the requirement that not more than five acres of
a site be in a disturbed condition at any time. DCC 18.52.110(K). That is not a DOGAMI
requirement, but it is no less valid for not being so.
Karen Green at page 6 in her 1997 decision held that she could make modifications to the
Applicant's reclamation plan and that DOGAMI would review and approve them. Just because
DOGAMI may ultimately need to review County decisions on reclamation does not mean, as
suggested by Mr. White, that the County can't address reclamation issues at all. This is
particularly critical here with regard to the Applicant's new proposal to leave the headwall as is
with no resloping of the hill, thereby creating a permanent visual blight and dust source. That is
not in the best interest of the County and the County should require a resloping of the hillside
(subject to DOGAMI approval).
The County can also decide what mining can occur at the site and thus the area eventually to be
in need of reclamation. There is no obligation for the County to allow all 80 acres of the site,
including the complete hillside, to be mined. DOGAMI does not control what is mined; that is
exclusively the County's prerogative.
The County requires that an applicant submit to the County all of the information required for a
site reclamation plan by DOGAMI. DCC 18.52.080(B). The Applicant clearly did not supply
this information, but the Hearings Officer found that violation of this Code provision was not
important since it was only "informational." (H.O. Decis., p. 12) To the contrary, this
information is required for site plan review and approval.
III. The scope of noise and dust-sensitive uses is not limited to the residences in the area.
The Applicant has appealed the Hearings Officer's decision that noise and dust-sensitive uses
apply not just to residences but also to "residential activities that occur outside of buildings."
(H.O. Decision, p. 14) This decision is the basis for the Hearings Officer's conditions requiring
screening along the Hoffman property and decisions denying crushing at sites 2 and 3.
The Applicant focuses on the Code definitions of noise and dust-sensitive uses, highlighting the
fact that Ordinance 91-038 amended the Code definitions to specifically exclude garages and
shop areas. It should be noted, however, that this ordinance did not amend the ESEEs, but only
the Code, and there is nothing inconsistent between excluding noise-generating areas like
garages and shops and protecting other uses on the properties.
The Applicant's additional argument that the County definitions are derivative of DEQ rules is
irrelevant. The focus of concern here is what is required by the comprehensive plan ESEE for
this site.
February 11, 2009
Page 6
The Applicant further asserts that all noise and dust-sensitive uses are associated with structures
(residences, schools, churches, hospitals and public libraries) and that the "common thread" is
the "protection of activities that are carried on inside the structures." (Applic. 1/21/09 letter, p.
7) Such a restrictive application of the rules does not make sense here and is inconsistent with
the ESEE's identification of noise and dust-sensitive uses, including the ESEE references to the
State Park, agricultural activities and "noise-sensitive property." These noise and dust-sensitive
uses are obviously not "structures. "5
The ESEE at page 5 refers to impacts of noise "on persons dwelling in or patronizing noise-
sensitive uses in the surrounding zoning." (Emphasis added.) If noise-sensitive uses were
limited to dwellings as argued by the Applicant, the ESEE would not have referred to other
noise-sensitive uses.
The ESEE at page 5 also refers to the County Board finding that "all" residential and park uses
are "dust-sensitive uses due to the potential health impacts of dust on occupants and patrons."
The ESEE also states at page 6:
"The Board finds that visitors to Tumalo State Park would also be affected based
upon the testimony of State Parks and neighborhood residents. Tumalo State Park
receives high campground and day use and that the site is located between two
portions of the Park. State Parks testified that day hikers use the undeveloped
portions of the park adjacent to site 303. In addition, the site is visible from the
developed portions of the Park and from the River. Neighborhood residents
testified that the usual winds blow dust toward the park and that sound carries
from the site toward the river and the park."
There is again no limitation of the noise and dust-sensitive uses merely to structures.
Furthermore, the ESEE at page 10 refers to the negative impacts of noise and fugitive dust
emissions on the livability, scenic quality and compatibility of other uses in the vicinity of the
project. It further specifically refers to farm uses as being noise-sensitive uses in certain
situations, "such as with livestock operations."
The Applicant tries to portray an unworkable scenario resulting from the Hearings Officer's
definition of noise and dust-sensitive uses as restricting what can occur within a surface mine
impact area ("SMIA"). Mr. White states that it would make it difficult to build a driveway.6
(Applic. 1/21/09 letter, p. 8) That is not correct where the obvious answer is a waiver of
remonstrance by any applicants in the SMIA zone. DCC 18.56.120.
5 It also does not make sense that a dust-sensitive use would be limited to the inside of structures since presumably
dust would not enter structures, even if noise might.
6 This argument also suggests that the Hoffman driveway is new, when in fact it has always accessed the pre-July
1990 dwelling on the property. The use to be protected by the buffer along the Hoffman property line is not only the
driveway, but also a horse trail along the north boundary. The fact that these facilities are now located on a separate
lot owned by the Hoffmans is irrelevant where their use is still associated with the pre-July 1990 dwelling (the
driveway provides its only access).
February 11, 2009
Page 7
Finally, Mr. White cites Hearings Officer Karen Green's decision in 1995 as support for his
limited definition of what constitutes noise and dust-sensitive uses. It is clear from her decision,
though, at page 12, that she only looked at the Code definition of "protected use" and no one
raised the issue of what the ESEE required.
IV. The applications should be denied where the impacts of fugitive dust emissions are
not resolved.
The Applicant is wrong in asserting that compliance with DEQ dust and noise provisions is all
that is required for its requested mining permit.7 There is the additional requirement of the ESEE
and DCC 18.52.110(P) that all impacts identified in the ESEE be addressed and resolved at the
time of site plan approval. The ESEE at page 3 specifically addresses "fugitive dust emissions"
and mentions impact on agricultural activities. We have also submitted testimony and evidence
regarding impacts on the Hoffinans' horse operations and the need for better monitoring of dust
emissions due to health impacts.
Additionally, there has been no substantiation that these uses will not cause a significant change
in accepted farming practices or the cost of accepted farming practices on surrounding lands as
required by ORS 215.296. See Eugene Sand and Gravel Inc v Lane County, 44 Or LUBA 50,
69-71 (2003), upholding a county's finding of inadequate proof by a mining operator that dust
impacts on agricultural operations would not violate ORS 215.296. Where EFU lands are
included as part of this application as acknowledged on page 5 of the Modification (Applic. Rec.
Excerpts, Tab. 1), ORS 215.296 should apply here. The dust and truck traffic generated by the
mining operation would significantly affect the agricultural practices on the Hoffmans' property,
namely their horses.
V. The Hearings Officer's condition based on the scope of screening requirements
should be upheld.
The Applicant argues that the screening requirements of DCC 18.52.100(B)(2) do not apply to
the visibility of the mine from the State Park because supplied screening will not obscure the
views of the headwall from the Park due to topography. The Applicant asserts that it therefore
can make the headwall as big and visible as it wants to.
The Hearings Officer was correct in rejecting this illogical interpretation that would make a
mockery of the screening requirements. She properly concluded that "topography" in DCC
18.52.110(B)(6)(b) refers to topography outside of the Applicant's control and that the Applicant
can't be excused from compliance on the basis of a problem it creates. The creation of this
highly-visible sheer wall is the Applicant's choice. Choosing to mine a site in a place and in a
manner whereby screening becomes impossible cannot be a way to avoid the screening
requirements of the Code.
7 Just as with reclamation and DOGAMI, the fact that DEQ regulates some aspects of dust does not foreclose the
County from preventing or regulating it, particularly here where the ESEE calls for it.
February 11, 2009
Page 8
It also needs to be emphasized again that the ESEE provides the basis for protection of views
from the State Park. The ESEE at page 4 notes that "physical scarring of the landscape and the
loss of vegetation associated with surface mining at the site" would have an adverse impact on
scenic resources. The ESEE further addressed the impact to aesthetic values which "would
affect primarily residential uses and community and park-type uses," at page 5. The ESEE at
page 12 provided a special condition requiring mitigation of noise and visual impacts, "with
particular attention paid to screening from Tumalo State Park or the eastern, northeastern and
southeastern boundaries. (ESEE, p. 12)
VI. The Applicant is not entitled to be operating under a land use permit granted to
Cascade Pumice in 1997.
The Applicant is incorrect in asserting that it is entitled to be operating at the mining site under
the 1997 permit granted to Cascade Pumice. No evidence of a transfer to a successor in interest
has been provided and there is furthermore much about what the Applicant is doing that was not
addressed in or is inconsistent with the Cascade Pumice permit. The Hearings Officer did not
find that the Applicant could be operating under that permit and in fact made clear that SP 95-10
was not applicable here. (H.O. Decision, pp. 5-6) The Hearings Officer stated:
"The applicant's proposal exceeds the scope of the 1997 application in several
respects, including (1) the volume and types of materials to be extracted; (2) year-
round hauling rather than more limited seasonal hauling; (3) crushing of materials
on site; and (4) the anticipated duration of mining activities.... The applicant seeks
approval of a new, expanded operation and, in the applicant's view, the only
relevant review criteria is set out in the Site 303 Goal 5 program (Site 303
Program) and the zoning code. According to the applicant, its proposal stands on
its own and satisfies all applicable approval criteria."
A more complete list of the inconsistencies between what Cascade Pumice was allowed and what
this Applicant is pursuing include:
1. Cascade Pumice asked to mine 750,000 cu yds of pumice while Latham doesn't state
any limiting amount and instead suggests it can mine 4.5 million cu yds.
2. Reclamation was to be commenced within two to three years by Cascade Pumice, but
it has still not occurred and Latham has not been doing it despite operating on the site
for over two years.
3. The mining slots were limited to 160,000 square feet for Cascade Pumice, but Latham
is planning five-acre areas.
4. The topsoil and overburden were to be retained for reclamation under the Cascade
Pumice permit, but Latham is actively selling topsoil and overburden.
5. Cascade Pumice proposed a reshaped slope of 1.5:1, but Latham is proposing to leave
the headwall as is.
February 11, 2009
Page 9
6. Earlier mined areas were to be reclaimed, but that has not occurred.
7. Hauling was limited to the hours of 7:00 to 3:00 from November 15 to February 15,
but Latham is operating beyond those limits.
8. There was to be a meteorological condition monitoring system, but Latham has not
implemented it.
9. All Cascade Pumice haul trucks were to be covered with tarps, but again Latham has
not been following that.
10. A particle fallout bucket was to be monitored monthly for fugitive dust, but Latham
has not been doing that.
11. A daily log was to be kept for site conditions, but Latham has not been doing that.
12. A winter noise study was to have occurred, but that has not been done.
13. A revegetation plan was apparently approved by ODFW, but it has not been followed
in any reclamation.
Where Latham has so completely modified what Cascade Pumice proposed and what the County
approved for Cascade Pumice, there is no basis for Latham to claim that it is entitled to continue
operations under the 1997 permit. It cannot pick and choose what it wants from an earlier
permit. The permit is a package deal, including all the conditions of approval and being limited
to what was applied for. As for a mining area being previously approved, any approval would be
limited to that particular permit, and there has not been an adequate showing that what the
Applicant intends to mine is what was approved in 1997 (the site plan for which is imprecise
with no topographical or distance identifications and which does appear to differ from the
Applicant's map) and the Hearings Officer did not address the issue because what is now applied
for is so different from the 1997 permit.
Very truly yours,
PAUL DEWEY
PD:ao
cc: Clients
BRUCE W. WHITE, ATTORNEY, LLC
February 11, 2009
Hand Delivered
Community Development Department, Planning Division
Attn.: Paul Blikstad
117 NW Lafayette Avenue
Bend, Oregon 97701-1925
Subject: SP-07-462 and CU-07-102 for Surface Mining and Crushing Operations on
Surface Mining Site #303
Please find enclosed Applicant's rebuttal, consisting of two memoranda.
Sincerely,
k, , Li. -
Bruce W. White
c. Latham Excavation
RECEIVE[)
BY f t4r~~
FEB 1 1 2009
DELIVERED BY
P.O. BOX 1298 • BEND, OR • 97709
PHONE: (541) 382-2085
RECEIVED
BY: CV~r~
Latham Excavation FEB 1 1 2009
SP-07-46/ CU-07-102
A-08-14/A-08-20 DEUVEXED EYE
Response to Oral and Written Testimony of Paul Dewey
at January 21, 2009 Continued Hearing
This memorandum response to the written and oral testimony of Paul Dewey submitted during
the January 21, 2009 hearing and the continued hearing on January 26, 2009.
At the hearing, Mr. Dewey submitted a January 20, 2009 letter and 6 supporting memorandums.
This response is organized in a similar fashion, with this cover memorandum responding to the
January 21, 2009 letter and individual memorandums in response to Mr. Dewey's separate
memorandums.
Mr. Dewey attached the previous testimony of opponents from the hearing. This testimony has
been rebutted in Applicant's previous submittals. Applicant would direct the Board to
Applicant's submittals of April 15, 2008, May 6, 2008, May 20, 2008 and June 3, 2008 for
rebuttal to that testimony.
With respect to Mr. Dewey's oral testimony, that will be rebutted here. Much of that testimony
was made in his memoranda, which is rebutted point-by-point further on in this memo.
With regard to the Mr. Dewey's testimony about the hydro-mulch not being effective on the
headwall, the most troublesome area of the headwall was treated with the mulch after May 13,
2008. Since that time, there have been no complaints about dust from the pit. The hydomulch
can be renewed as necessary. Rebuttal to the photograph introduced by Mr. Dewey is included
in response to Memo No. 6.
Mr. Dewey complains that Applicants appealed the Condition that would require buffering along
the northern boundary. Applicants appealed this issue because the Hearings Officer applied an
inappropriate definition of noise or dust sensitive use that might be used against the Applicant as
it relates to measure for compliance with noise standards. In fact, Mr. Dewey has argued that
that definition should in fact be used to require noise studies to consider noise impacts anywhere
on the property, in contravention to DEQ rules.
With regard to the amendment of the definition of noise or dust sensitive uses, the reason garages
and workshops were included was not because they themselves are generators of noise, but
because they are not inhabited in the way a dwelling is.
Mr. Dewey argues that pallets and other solid waste has been brought onto the property. DEQ's
site visit indicated only a problem with the pile of tree wood waste.
Response to Memorandum No. 1
In his Memorandum No. 1, Mr. Dewey argues that a new ESEE is required because of changed
circumstances in the 18 years since the ESEE for Site 303 was adopted in 1990 and what he
argues are elements of Applicant's plan that go beyond what was contemplated in the ESEE.
Change in Circumstances
Mr. Dewey argues that with the passage of 18 years, the ESEE is dated. That a provision in the
County's comprehensive plan has been in effect for a long time is not sufficient reason to argue
that it cannot be applied to a pending application. The County is required to apply the rules in
effect at the time an application is accepted and cannot reject an application because some
opponents believe that some portion of what it believes to be the approval criteria has not been
updated to conform to current circumstances.
Scope and Role of ESEE
Mr. Dewey's larger argument is that the applicant's proposal goes beyond the scope of the ESEE
and includes elements that are precluded by the ESEE. Mr. Dewey's argument assumes a larger
role for the ESEE than is actually granted by the County's mining permitting framework and also
includes outright distortions of Applicant's proposal and what the ESEE provides for.
Applicant and Mr. Dewey have differing views of what the role of the ESEE is in the County's
mining permitting process. Applicant believes that the ESEE has a more limited on-going role
than does Mr. Dewey.
The areas in which the ESEE has a continuing role are limited to the specific tasks given it by the
references to it in the County's site plan requirements. It is not, as Applicant's contend, a
general limiting document that is to be held up against the site plan to see if the various specific
elements of the proposal of or whether specific impacts were addressed in the ESEE.
The Role of the ESEE in the site plan process is informed by the specifics of the site plan
requirements, by the Program to Meet the Goal in the ESEEs and by the requirements of Goal 5.
Under Goal 5, the ESEE serves as the analytical findings and analysis document to determine
how to resolve conflicts identified in the ESEE between the subject Goal 5 resource and
identified conflicting uses, such as dwellings, and other Goal 5 resources, such as inventoried
wildlife areas and inventoried scenic views. Under OAR 660-016-0010, conflicts are resolved
by weighing the importance of the conflicting uses or resources against the subject Goal 5
resource (minerals in this case) against the importance of existing or future conflicting uses
within the impact area. Amongst the choices open to the Board is a decision to allow both the
Goal 5 resource and the conflicting uses, but with restrictions on both. Any restrictions must be
subject to clear and objective standards. OAR 660-16-0010(3).' In this case, the Board's
1 That provision reads as follows:
2
decision under ESEE Site 303 (as it was with virtually all sites approved for mining) was to
allow both conflicting uses and resources and the mineral resource, with restrictions on each side
through the site plan permitting process of Chapter 18.52 for mineral resources and through the
surface mining impact area permitting process of Chapter 18.56 for conflicting noise or dust
sensitive uses, such as dwellings. Of importance in determining the role of the ESEE in the
permitting process is Goal 5's command that the ESEE decision is to implemented by ordinance
provisions under clear and objective standards.
The ESEE for Site 303 served as the findings document to document under OAR 660-016-
0010(3) the reasons for the Board's decision under Goal 5 to allow both the mining at the site
and to allow the conflicting uses within the impact area and under what specific conditions.
The continuing role of the ESEE in the mining permitting process is summarized in DCC
18.52.020, which reads as follows:
18.52.020. Application of Ordinance.
Except as provided in DCC 18.52.160, the setbacks, operation standards and conditions set
forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively, apply to every surface
mining site and activity to the extent that setbacks, standards and conditions are not
expressly provided for in the site-specific ESEE analysis within the surface mining element
of the Comprehensive Plan. When there is a conflict between the site-specific ESEE
analysis and the provisions of DCC 18, the site-specific ESEE analysis shall control.
This provision identifies the components of surface mining permitting under DCC Chapter 18.52
as involving "setbacks, standards and conditions." Where there is a conflict between site-
specific setbacks, standards and conditions of the ESEE and similar provisions in DCC Chapter
18.52, those provisions of the ESEE override the conflicting provisions of DCC Chapter 18.52.
The remaining provisions of DCC Chapter 18.52 that reference the ESEE must be read in that
context (and in the context of Goal 5's command to implement the ESEE decision through clear
and objective standards). Therefore, the provisions of DCC 18.52.100(B) and DCC
18.52.110(P), cited by Mr. Dewey as being a catch-all provisions that allows a proposed site plan
to be held up against the ESEE generally cannot be read that broadly. At most, they can be read
to require application only of the specific restrictions included in the ESEE's Program to Meet
(3) Limiting Conflicting Uses. Based on the analysis of the ESEE consequences, a jurisdiction may determine that
both the resource site and the conflicting use are important relative to each other, and that the ESEE consequences
should be balanced so as to allow the conflicting use but in a limited way so as to protect the resource site to some
desired extent. To implement this decision, the jurisdiction must designate with certainty what uses and activities
are allowed fully, what uses and activities are not allowed at all and what uses are allowed conditionally, and what
specific standards or limitations are placed on the permitted and conditional uses and activities for each resource
site. Whatever mechanisms are used, they must be specific enough so that affected property owners are able to
determine what uses and activities are allowed, not allowed, or allowed conditionally and under what clear and
objective conditions or standards. Reasons which support this decision must be presented in the comprehensive
plan, and plan and zone designations must be consistent with this decision.
the Goal, set forth in Paragraph 23 of the ESEE. (See discussion of this issue in Item 14 of
Applicant's April 15, 2008 memo - Tab 51.)
Amount o Material
Mr. Dewey argues that the amount of material being excavated is limited by the 750,000 cubic
yard figure in the inventory and that Latham's plan to excavate more than that amount requires a
new ESEE. Applicant addressed this issue in depth in Pages 3-7 of its May 6, 2008
memorandum (Tab 52) and on Pages 13 - 15 of its January 21, 2009 memorandum, which will
not all be repeated here. In the absence of a challenge to the data, the Goal 5 inventory process
did not require detailed data or scientific studies to show the exact quantity of the inventoried
resource. It was sufficient to base a quantity determination for Goal 5 inventory purposes on
"how much information was obtainable." OAR 660-016-0000(3). In this case, Cascade Pumice
estimated there to be 750,000 cubic yards to 1,000,000 cubic yards of pumice. There were no
studies provided of the exact amount of resource and none were required.
In short, nothing in Goal 5, in the Goal 5 rule, in the ESEE or in the site plan requirements of
DCC Chapter 18.52 makes the inventory amount a limitation on how much material can be
excavated from the site. The Goal 5 inventory for the site showed that the resource was
significant enough to be placed on the Goal 5 inventory and to be treated as a Goal 5 resource
and provided a basis for balancing the importance of the resource against the importance of the
conflicting resources. If anything, an understatement of the inventoried amount would have
worked against protection of the Goal 5 resource as making the resource less important as a Goal
5 resource, when it's relative importance was weighed against the relative importance of the
conflicting uses, including residences. Nothing in the language of the site plan approval criteria
of DCC 18.52 specifies that the inventory amount acts as a ceiling. Nothing in the ESEE itself
imposes the inventoried amount as a ceiling or as a condition of mining the site in the manner of
the specifics of the Program to Meet the Goal of Paragraph 23 of the ESEE. It would be
impractical in practice for the inventoried amount to act as a limit on the amount of material to
be excavated from the site. Finally, under DCC 18.52.200(A), a site cannot be rezoned for a
post-mining unless the operator "demonstrates that a significant resource no longer exists on the
site." If the amount of resource to be taken from the site were to be limited by the amount of the
inventory, the Applicant would be in a Catch-22 situation, unable to continue mining and unable
to rezone the property for a post-mining use.
Mr. Dewey seems to argue that the amount of the resource was important because the amount of
time it would take to excavate the resource was an important assumption that went into the
ESEEs. Nothing in the ESEEs included any discussion about how long it would take to
excavate the resource. As indicated in the Applicant's memorandums of May 6, 2008 (Tab 52,
Page 6) and January 21, 2008, where the Board placed a time limit on the excavation of a site, it
did so explicitly in the conditions included in the Program to Meet the Goal. See, e.g., Site
305/306, Permit and Ordinance Notebook, Item II(14)(c). In the absence of such a condition,
there are no assumptions in the ESEE that could be used to place a time limit on the excavation
of a site. Mr. Dewey argues that the ESEE references mining uses as "transitional uses." That
is true in the sense that mining sites ultimately transition to a post-mining use, but that does not
indicate that the ESEEs contemplated any specific time frame or amount of material to be
excavated.
Nature of the Material
Mr. Dewey indicates that the inventory and the ESEE limits the nature of the material to be taken
from the site to the deposit that was placed on the inventory. In particular, he argues that
because the overlying Tumalo tuff was not specifically included in the Goal 5 inventory for the
site it cannot be mined. Applicant responded to this issue in its memoranda of May 6, 2008 (Tab
52) and January 21, 2009 (Pages 15-17) and will not go into as great a detail here as in its prior
memoranda on this issue.
Mr. Dewey argues that the fact that the Tumalo tuff was to be left on the site was an somehow
and important assumption that underlay the County's decision in the ESEE to allow for mining at
the site. The County's ESEE analysis is generic in nature, and is virtually the same from site to
site, whether the site was inventoried for 11,000,000 cubic yards of material of whether it was
inventoried for substantially less material. The specifics of how the material was to be extracted,
from what depth and how the site was to be reclaimed were details that were not considered in
any of the ESEEs. The fact that the Tumalo tuff overlies the inventoried Bend pumice means
that the material would have to be extracted in any event to get to the inventoried resource. As
noted earlier, the County did not in its ESEE findings include any consideration of the amount of
time that it might take to excavate the resource except in the one case where it specifically
imposed a time limit (ironically to protect the Tumalo Rim neighborhood on Site 305/306). With
regard to the possibility of increased truck traffic, the ESEE Program to Meet the Goal does not
even consider truck traffic as a relevant impact to be regulated and DCC Chapter 18.52 does not
regulate the impacts of truck traffic. Given all this, mining the Tumalo tuff is within the general
scope of impacts considered in the ESEE and accordingly does not require a new ESEE.
Mr. Dewey argues that the ESEE didn't consider the plan to expand the height and scope of the
headwall and that somehow this requires a new ESEE. However, the original ESEE didn't
consider any specifics about what it would take to excavate the resource, including the length or
height of the headwall that might be required to excavate the resource, or how it might be
reclaimed. It only required that particular attention be paid to screening from Tumalo State Park,
but did not indicate any degree of screening to be achieved. The facts in this case show that the
pit and headwall are screened from the heavily used areas of the park by the existing topography
and vegetation and only at the upper elevations is the pit and the headwall visible. As noted in
the applicant's presentation and in its argument, the screening requirements of the ESEE and as
implemented by DCC 18.52.110(B) do not require that the headwall be obscured from view.
Crushing Not Anticipated
Mr. Dewey argues that the ESEE did not contemplate crushing. Applicant responds to this
argument in detail in its response to Mr. Dewey's Memo No. 3. As detailed therein, there is no
basis to this argument.'
2 Mr. Dewey also argues in his cover letter that the ESEE banned blasting. Applicant also believes this is not true
and would have argued as much if blasting had been sought for this site. The ESEEs do not specifically address
blasting unless there was an intent to restrict or prohibit it, such as in the Program to Meet the Goal for Sites 305/306
(Coats), 392 (Rose), 359/ 369 (Deschutes County) and 461 (Nolan/Reimenschnieder/Weigand) See Tab 50, Exhibit
1.)
Response to Memo #2
Mr. Dewey argues in Memo #2 that the Hearings Officer erred in deciding that the County had
no authority over reclamation activities and the reclamation plan for the Latham pit. He argues
that DOGAMI authority over reclamation is not exclusive and because there are provisions in the
site plan provisions of Chapter 18.52 that address reclamation, the County must have a role to
play in regulating and approving reclamation activities.
In response to Mr. Dewey's first point, as Applicant pointed out in its memorandum of May 20,
2008, for sites subject to DOGAMI jurisdiction and for counties that adopted land use ordinances
purporting to regulate reclamation activities after July 1, 1972, state law makes clear that
DOGAMI's authority over reclamation is preeminent over attempts by Counties to assert
authority over reclamation activities. ORS 517.780(1).3 In all his various arguments asserting a
role for the County in regulating reclamation activities, Mr. Dewey never addresses the effect of
this statute upon any Deschutes County ordinance provisions that might be read to have the
County regulate reclamation activities. The statute clearly gives no room for the County to assert
authority over reclamation.
Mr. Dewey then argues that the fact that various provisions of DCC Chapter 18.52 reference
reclamation means that the County has authority to regulate and prescribe reclamation activities.
Upon review, the terms of those ordinance provisions do not support Mr. Dewey's arguments.
The key ordinance provision is DCC 18.52.130. By its express terms, this provision leaves
approval of reclamation plans to DOGAMI, where a DOGAMI reclamation plan is required. See
DCC 18.52.130(A).4 It is clear from DOGAMI's correspondence that the Latham site is subject
3 That provision reads as follows:
517.780 Effect on local zoning laws or ordinances; rules; certain operations exempt. (1) The provisions of
ORS 517.702 to 517.989 and the rules and regulations adopted thereunder do not supersede any zoning laws or
ordinances in effect on July 1, 1972. However, if the zoning laws or ordinances are repealed on or after July 1, 1972,
the provisions of ORS 517.702 to 517.989 and the rules and regulations adopted thereunder are controlling. The
governing board of the State Department of Geology and Mineral Industries may adopt rules and regulations with
respect to matters covered by zoning laws and ordinances in effect on July 1, 1972.
(2) City or county operated surface mining operations that sell less than 5,000 cubic yards of minerals within a
period of 12 consecutive calendar months are exempt from the state mining permit requirements of ORS 517.702 to
517.989 if the city or county adopts an ordinance that includes a general reclamation scheme establishing the means
and methods of achieving reclamation for city or county operated surface mining sites exempted from the state
permit requirements by this subsection.
4 This provision reads as follows:
18.52.130. Site Reclamation Plan.
Prior to the start of mining activity, a site reclamation plan shall be submitted and approved which demonstrates that
the mineral and aggregate extraction site can be reclaimed for a subsequent beneficial land use consistent with the
designation of such subsequent use in the surface mining element of the Comprehensive Plan.
to DOGAMI regulation. (See, e.g., DOGAMI operating permit, Exhibit 6 to Applicant January
21, 2009 submittal; see also DOGAMI May 6, 2008 letter, Tab 38.) Furthermore, the language
of DCC 18.52.130(A) indicates that for sites subject to DOGAMI regulation, the reclamation
plan is to be approved not as part of the County land use process but just that the plan must be
approved sometime prior to the start of mining. Before an applicant can receive a use permit for
mining, the County must determine that "the reclamation plan has received final approval." DCC
18.52.170. There is not a word in that provision that gives any support to an argument that it is
the County that approves the reclamation plan or reclamation issues generally.
Mr. Dewey refers to the language from the ESEE that states that "excavation shall be limited to
five acres with ongoing incremental reclamation (subject to DOGAMI review and approval)."
Again, the County enactment explicitly recognizes DOGAMI's pre-eminent role in regulation of
reclamation activities.5 Far from supporting Mr. Dewey's position, this provision confirms that
his argument has no merit.
DCC 18.52.110(K), cited by Mr. Dewey in his memorandum No. 3, likewise provides no textual
basis to argue for County authority for approval and regulation of reclamation activities. DCC
18.52.110(K) merely limits extraction activities to a size limit of 5 acres. There is no reference
whatsoever to reclamation activities or to any requirement of concurrent reclamation.
Finally, Mr. Dewey cites to the DCC 18.52.080 list of what information must be included in an
application as justification that the County has authority to regulate reclamation activities. This
argument fails to distinguish between what are merely information requirements and what are
substantive approval criteria. Informational checklists cannot substitute for substantive approval
criteria and an applicant's failure to provide required information does not pose a fatal flow in an
application if there is no substantive approval criterion that makes the requested information
relevant. Le Roux v. Malheur County, 32 Or LUBA 124 (1996). As the above analysis of the
approval criteria indicates, no provision of DCC 18.52 or the ESEE conditions allows or requires
the County to approve or regulate reclamation activities. It is evident that in drafting the DCC
18.52 approval criteria that the County was mindful and respectful of the limits of its authority in
the area of reclamation.
A. When a site reclamation plan is required by DOGAMI, the site reclamation plan shall be approved by DOGAMI.
To the extent practicable, review of the site reclamation plan shall be conducted jointly between DOGAMI and the
County.
B. When a site reclamation plan is not required by DOGAMI, the site reclamation plan shall be approved by the
County in conjunction with the site plan review described in DCC 18.52.070. The County shall review such site
reclamation plans for consistency with the site-specific ESEE analysis in the surface mining element of the
Comprehensive Plan and the standards and conditions set forth in DCC 18.52.110 and 18.52.140. The County also
shall follow the applicable DOGAMI standards and criteria for a site reclamation plan.
(Ord. 90-014 §4, 1990)
5 In point of fact, DOGAMI's May 6, 2008 comments indicate that concurrent reclamation would not be feasible at
this site. (Tab 38.)
8
Mr. Dewey refers to a December 1988 memorandum from former Assistant County Legal
Counsel Karen Green, as a basis for the County having reclamation authority. That memo was
dated December 12, 1988 and was attached to Ordinance 88-040, adopted by the County in
December 1988 to adopt comprehensive plan policies for surface mining early on in the
development of the County's surface mining package. The final surface mining package of
ordinances was adopted on July 12, 1990, including Ordinance 90-028 (adopting a revised set of
comprehensive plan policies for surface mining) and Ordinance 90-014 (adopting the zoning
ordinance provisions for site plan review under DCC Chapter 18.52). Ordinance 90-028
repealed Ordinance 88-040. While the Karen Green December 12, 1988 memo was attached to
Ordinance 90-028, the fact that there are no references to reclamation issues in the actual
approval standards themselves. The provisions of the Board's site plan ordinance adopted on
that date does not provide any approval standard for reclamation or for any County authority
over reclamation issues.
Applicant has an approved reclamation plan for DOGAMI and according to DOGAMI's letter of
May 6, 2008 is in compliance with its DOGAMI plan. The May 20, 2008 email from DOGAMI
staff person Ben Mundie makes clear that DOGAMI reclamation plans are flexible and may be
amended from time to time. Such amendments may be made without proceeding through the
County's land use process.
The only County site plan regulation that touches on reclamation issues is the DCC 18.52.110(K)
requirement that actively mined areas be limited to 5 acres at a time. Mr. Dewey and other
opponents have mischaracterized this provision to state that all disturbed areas be limited to 5
acres. The language of DCC 18.52.110(K) reads otherwise:
K Extraction Site Size. The size of the area in which extraction is taking place as
part of a surface mine does not exceed five acres. For the purpose of DCC 18,
the extraction site size does not include access roads, equipment storage areas,
processing equipment sites stockpiles areas where reclamation is in progress
and similar accessory uses which are necessary to the mining operation. An
exception to this standard may be allowed as part of site plan review if the
applicant demonstrates that mining techniques normally associated with the
specific type of mining in question and commonly used in the surface mining
industry require a larger extraction site size.
DCC 18.52.110(K) (Emphasis supplied).
9
Response to Memo No. 3
In his memo No. 3, Mr. Dewey again argues that crushing is not allowed at the Latham pit
because the ESEE for Site 303 does not expressly "designate" the site for crushing.
Throughout these proceedings, going back to its February 19, 2008 burden of proof and up
through the final argument of June 10, 2008 and again in its appeal memorandum of January 21,
2009, Applicants have repeatedly addressed this issue, refuting Mr. Dewey's arguments. The
Applicant's position is summarized in its January 21, 2009 memorandum at Pages 20-22.
Mr. Dewey's latest submittal raises no arguments that haven't already been addressed by
Applicant's previous analysis of this issue. Essentially, Mr. Dewey's argument is that the only
context for interpreting what is meant by the phrase "designated for crushing" in DCC
18.52.050(B)(2) and 18.52.140(A), is the language of the ESEE itself. His argument ignores the
fact that the ESEE and the County's zoning ordinance are inter-related documents, as is
evidenced by the fact that it is the provisions of the zoning ordinance - DCC 18.52.050(B)(2)
and 18.52.140(A) that cross-reference the ESEE document and adopts an overly narrow
interpretation of the rules of statutory construction from PGE v. SOLI, 317 Or 606, 859 P2d
1143 (1993) about what the relevant legislative context is in this case for discerning legislative
intent. Having found a single reference in a list of mining activities in the ESEE that lists both
processing and crushing as if they were separate and distinct, he uses that as the basis of an
argument that any other use of the term "processing," such as that found in the ESEE's program
to meet the goal, cannot possibly include the term "crushing" and he then attempts to limit the
Board to look only at the ESEE and not the other parts of the surface mining package adopted on
that same day. PGE provides no basis for taking such a narrow view of what the context of a
legislative enactment is for purposes of interpreting its terms. The appropriate context includes
any other legislation that bears on the term at issue. In this case, the definition of "processing" in
the zoning ordinance bears directly on that term as it is used in the ESEE and must be
considered.
Mr. Dewey's reference to DCC 18.52.020, which states that in instances of conflict the
provisions of the ESEE should control, is an inappropriate use of that ordinance provision. The
interpretation of what the Board meant by "processing" in the ESEE's Program to Meet the Goal
does not involve a conflict between a specific setback, operating standard or condition of the
ESEE and the zoning ordinance. It is only a question of interpretation of what the Board meant
by the term "processing" in the ESEE. Hence there is no conflict, and DCC 18.52.020 cannot be
used to limit the Board from considering all of the legislative enactments adopted in the surface
mining package - including the definition of "processing" found in the definition section of the
Title 18 zoning ordinance.
Mr. Dewey's attempts to bootstrap his argument by referring to the Hearings Officer's
determination in SP-95-010 (affirmed by the Board in A-97-4) that since blasting was not
expressly allowed by the ESEE, it was not permitted. This is not a convincing argument, since
blasting was not proposed and therefore not at issue for the Cascade Pumice site plan (as it is not
for this site plan) so that any findings concerning blasting in the previous site plan are gratuitous
10
and not essential. Because blasting was not proposed by Cascade Pumice, it would not have
been briefed or addressed by the parties and whether or not it was approved or not was of no
consequence to Cascade Pumice.
11
Response to Memo #4
In Memo #4, Mr. Dewey argues that applicant failed to comply with site plan informational
requirements and supplied inconsistent information as it relates to a reclamation plan. In
addition, Mr. Dewey argues that there is no clear description of what uses and types of
equipment are being allowed, that the boundary of the mining operation needs to be established,
that the north boundary screening needs to be specified, that applicant has not clearly identified
where its proposed mining is to occur, where its stockpiling and reclamation are occurring, what
areas are to be reclaimed and that the noise studies were inadequate in that Applicant's noise
expert did not do an assessment for pre-1990 properties or for noise associated with increased
traffic.
Applicant will respond to Mr. Dewey's arguments point by point under each of the headings, as
written by Mr. Dewey. Applicant's repetition of Mr. Dewey's headings in this memo are for
administrative convenience and do not signify Applicant's agreement with them, as will become
obvious from Applicant's responses.
A. Incomplete Application
Mr. Dewey goes into great detail addressing how he believes the Applicant's application was
deficient in failing to produce information called for by DCC 18.52.080, which is the ordinance
provision that details what information is to be submitted along with an application. Much of the
argument centers on DCC 18.52.080(B), which lists "all information for a site reclamation plan
by DOGAMI." 6
The Hearings Officer's response to Mr. Dewey's arguments about the application being
incomplete is found at Page 12 of her decision, as follows:
"The Hearings Officer finds that DCC 18.52.080 is an informational standard,
which is satisfied when the applicant submits evidence addressing factors (A)
through (E). The question of whether that evidence is sufficient to demonstrate
that al2proval criteria is addressed by considering other criteria set out in DCC
18.52. The Hearings Officer finds that 18.52.080(E) does not require that the
impacts on the Tumalo Water Improvement District be addressed in the initial
application. DCC 18.52.080(E) requires only that those `impacts' identified in
the Site 303 plan be addressed. There is no dispute that the district's well is not
identified in the Site 303 plan. "
The Hearings Officer was correct that DCC 18.52.080 is an informational standard as
opposed to an approval standard. The purpose of having an ordinance provision that
6 Because the County has no authority to approve reclamation activities, Applicant will not respond to the variety of
issues Mr. Dewey raises with respect to reclamation best management. Suffice it to say that DOGAMI has informed
applicant that it is in compliance with its reclamation plan is in compliance and that it may amend its reclamation
plan, if necessary. See May 6, 2008 DOGAMI letter.
12
includes application information requirements is to provide some guidance to applicants
as to what information will be useful in helping the County to assess whether or not an
applicant's proposal meets the actual approval requirements. In this case, the approval
requirements are set forth in DCC 18.090 and DCC 18.52 110 and in the ESEE to the
extent it conflicts with substantive standards of DCC 18.52. It is compliance with the
approval
Whether or not an applicant submits every last piece of information included in an
application check list has no bearing on whether an application can be approved so long
as an applicant's evidence adequately addresses the actual approval criteria. Le Roux v.
Malheur County, 32 Or LUBA 124 (1996) ("The fact that application requirements may
not have been satisfied provides no basis for remand absent a showing that the failure to
satisfy the requirements resulted in non-compliance with at least one mandatory approval
criterion.") In this case, Applicant has provided sufficient evidence that the applicable
approval standards have been satisfied. See also Champion v. City of Portland, 28 Or
LUBA (1995), Wissusik v. Yamhill County, 27 Or LUBA 94 (1994).
To simplify, if the County's code lists information that has no relevance because it
doesn't relate to an approval criterion, then an applicant's failure to provide some aspect
of information specified in the application check list is of no consequence. What matters
is whether there is evidence in the record to support approval under the actual approval
criteria.
Mr. Dewey's arguments ignore the difference between an informational checklist and
substantive approval standards, or they wrongly assume that there are approval standards
that are applicable to this application that in fact are not. The parties do not agree which
standards are applicable in two respects; whether reclamation must be demonstrated as
part of the approval and whether ESEE impacts provide a separate grounds for assessing
an application.
B. What Equipment is Being Allowed
Mr. Dewey argues that there is no clear description of what uses are being allowed and what
equipment is being allowed because there have been various modifications to the site plan.
Contrary to Mr. Dewey's argument, it seems clear from the Applicant's burden of proof and its
modification that the following "uses" are being requested:
• Excavation of Tumalo tuff, Bend pumice and incidental aggregate;
• Screening of pumice;
• Screening of tuff, as necessary for production of horticultural products from the pumice
inclusions in the tuff;
• Washing tuff for possible use as arena sand;
• Crushing of pumice, welded tuff, and incidental aggregate
• Stockpiling of pumice, tuff and incidental aggregate
13
Equipment includes the following equipment: excavators, front-end loaders, haul trucks, water
trucks, a screener, a wash plant, a roll crusher and an impact rock crusher as identified in the
noise studies. In its application, the applicant requested that it not be bound by model and
brand-specific equipment but that the mining operation be subjected periodically to monitoring
for compliance with applicable DEQ noise standards to ensure compliance with noise standards.
The Applicant's noise expert addressed this issue in his February 19, 2008 submittal. The
Hearings Officer agreed with this approach.
In addition, stationary equipment includes a weather station, water tank and a portable scale and
scale house.
C. Boundary of the Mining Operation Needs to be Established
Mr. Dewey notes that in her decision the Hearings Officer required the boundary of the mining
area to be adjusted so that it was no longer visible from the upper trails of Tumalo State Park.
His concern was that the condition did not require public involvement in establishing a revised
boundary.
Applicant's position is that the Hearings Officer's condition is not supported by the law and the
evidence and that the boundaries need not be adjusted to comply with the County's screening
requirements under DCC 18.52.110(B). Accordingly, this condition should drop out and the
issue of public involvement in the site plan revision will become moot.
Applicant believes that the Hearings Officer's condition to re-address the mining boundaries is
based on an erroneous reading of the screening requirements and cannot be justified. This was
an issue raised by Applicant in its request for reconsideration as well as its appeal to the Board.
A full argument on this issue is found on Page 8-12 of its January 21, 2009 memorandum.
D. North Boundary Screening Needs to be Specified
The Hearings Officer required applicant to establish a screen between the Hoffman property and
the pit as a condition of approval. Mr. Dewey believes that this requirement is not specific
enough and that it precludes public involvement. Applicant's response is that for the reasons set
forth in its first issue on appeal, the Hearings Officer's requirement for screening the north
property line was not justified and that accordingly, the screening requirement cannot survive.
See January 21, 2008 Memorandum, pages 4-8.
DCC 18.52.110(B) requires that noise or dust sensitive uses existing as of July 12, 1992, be
screened from various aspects of the mine. Hearings Officer interpreted the scope of a noise or
dust sensitive use to include the driveway leading to the Hoffman house, which for the reasons
set forth in its January 21, 2009 memorandum (Pages 4-8) applicant believes is an improper
interpretation. Under a proper interpretation of the noise or dust sensitive use, the Hearings
Officer had no basis to impose the screening requirement. Accordingly, in the absence of any
screening requirement, this argument of Mr. Dewey drops away.
14
E. Location and Types of Mining
Mr. Dewey complains that Applicant has not precisely identified what types of mining will occur
and where. In response, despite Mr. Dewey's attempts to confuse the issue by questioning the
label that has been attached, it is quite evident where Applicant is proposing to mine (within the
permit boundary areas - the same area that was approved for Cascade Pumice) and how
applicant proposed to mine these areas - scrape off the material that is above it and excavate
with earth moving equipment, retain the topsoil for use in reclamation and stockpile removed
material as necessary. As Applicant's geotechnical expert testified in one of his letters, "this is
rock science, not rocket science."
F. Areas Reclaimed and to be Reclaimed
Mr. Dewey argues that the Applicant's operation is in violation of the 1997 site plan approval
and with the ESEE in terms of the amount of ground that has been disturbed at the site. In
addition, he argues that despite the ESEE's requirement for incremental reclamation, the
applicant and the Hearings Officer had failed to show where that reclamation was occurring.
With regard to compliance with the 1997 site plan, Applicant is making a new application to
supersede the 1997 site plan, so the 1997 site plan has limited applicability to this application.
That said, there is nothing to indicate that the Applicant is in violation of the 1997 site plan with
respect to the size of the slot. The County's code enforcement officer measured the size of the
slot and found it to be in compliance with the 160,000 square-foot limitation of SP-95-010. (Tab
48, see entry for 4/09/08). It should be emphasized that the 160,000 square-foot limitation is for
the actual slot area and not for roads, processing areas, stock piles, etc. As noted in testimony
from the hearings before the Hearings Officer, Applicant is still working the original slot that
was opened by Cascade Pumice; therefore, even if the County could require incremental
reclamation, such reclamation of the initial slot would be premature. DOGAMI's comments of
May 6, 2008 (page 2) indicate that concurrent reclamation does not appear to be feasible with the
current slot configuration. (Tab 38)
The Mr. Dewey and other opponents have consistently made the mistake of
G. Noise Studies
Mr. Dewey argues that the noise studies were inadequate at pre-1990 dwellings nearby the
mining operation. Mr. Dewey's argument appears to rest upon an assumption that the term
"noise-sensitive use" includes the entire property on which the noise-sensitive use is located and
not just the area around a house. Applicant admittedly did not structure its noise studies in this
way, but instead followed DEQ administrative rules that requires noise measurements to be taken
at a point on the property line or at a point 25 feet from the residence toward the mine. (See
January 21, 2009 Memorandum of Bruce White, January 21, 2009 Memorandum of Kerrie
Standlee, Exhibit 4, Page 3.) The approval standard for noise impacts is set forth at DCC
18.52.110(H). By its terms, it refers to compliance with "DEQ noise control standards." As
noted in Applicant's January 21, 2009 memorandum. DEQ noise control standards includes a
15
provision that requires noise measurements to be taken at the property line or at a distance of 25
feet from the dwelling, whichever is furthest from the noise source. To include the entire
property in the noise analysis would require that the County modify the DEQ noise control
standards, which under the City of LaGrand and City of Astoria line of caselaw, the County has
no authority to do.
As set forth in Applicant's noise studies of December 18, 2007 (Tab 64) and February 18, 2008
(Tab 65), Applicant's noise study was appropriately scoped to comply with DEQ's noise
standards; accordingly, Mr. Dewey's argument with the regard to whether additional areas on a
noise-sensitive property should be studied has no merit.
Mr. Dewey argues that the Hearings Office failed to require an assessment of the impact of an
increase in traffic and its associated noise issues. On Page 23 of her decision, the Hearings
Officer found that such noise was not relevant to determining compliance with DEQ noise
standards.7 For the reasons set forth in the Daly-Standlee letter of April 15, 2008, (Tab 66, Page
2-3), the Hearings Officer's determination on this issue was correct. Site 303 is viewed as being
a "previously used" site under DEQ rules8, which does not require that noise from on-road haul
trucks be included in a noise study. OAR 340-035-035(1)(b). In its consideration of the appeal
of Cascade Pumice's site plan in 1997, the Board of County Commissioners previously
addressed this issue and found that the noise from on-road haul trucks was not to be included in
any noise study of the pit. (See Permit and Ordinance Notebook, Item I(2).) Nothing about this
submittal changes the relevant facts or law that lead the Board to that conclusion.
,The noise measurements exclude warning devices no operating continuously for more than five minutes, or
sounds created by the tires or motor used to propel any road vehicle complying with the standards for road vehicles.
OAR 340-035-0035(4)."
s A "previously used site" is one that has been used during the preceding 20 years for an industrial or commercial
use. OAR 340-035-0015(47). This issue is addressed in Applicant's January 21, 2009 memo, at Page 34. The
history of use prior to Cascade Pumice are set forth in the DOGAMI permit materials submitted into the record,
found at Tab 25.
16
Response to Memo 45
Mr. Dewey argues that the Hearings Officer failed to require a traffic study for any assessment or
mitigation of the increased truck traffic associated with the subject applications and that the
access point onto Johnson Road had inadequate site distance. Applicant's response is that these
issues are not relevant issues for approval under the approval criteria of DCC Chapter 18.52.
Applicant addressed this issue on Page 23 of its January 21, 2009 memorandum. As noted, DCC
18.52 contains no approval standards addressing off-site traffic impacts. The only reference to
off-site traffic impacts is found at DCC 18.52.110(A)(2), under which the County can require
off-site improvements in the event that the increase in traffic "will damage the road sufficiently
to warrant off-site improvements." The Road Department commented on this application and
did not require there to be off-site improvements to mitigate for damage to roads from truck
traffic. (See April 4, 2008 Staff Report, Page 5.)
Similarly, there are no planning approval requirements in DCC Chapter 18.52 that address sight
distance issues. Access issues onto Johnson Road have been addressed by the-access permit
issued by the Deschutes County Road Department. An email addressing that issue from County
Engineer George Kolb was included as Exhibit 7 to Applicant's January 21, 2009 submittal.
The ESEE for Site 303 does not provide a basis for imposing traffic or off-site transportation
mitigation requirements. As noted earlier, under a proper interpretation of DCC Chapter 18.52,
the ESEE comes into play in mining permitting under DCC Chapter 18.52 only in the following
circumstances:
(1) Pursuant to DCC 18.52.020, where there is an express setback, operation standard or
condition provided for in the ESEE that conflicts with a setback, operation standard or
condition set forth in sections DCC 18.52.090, 18.52.110 or 18.52.140;
(2) Limitations on or authorization of blasting and crushing under DCC 18.51.110(J)
(blasting) and DCC 18.52.050(B)(2) (crushing); and
(3) Pursuant to DCC 18.52.110(P), any site-specific requirements under the ESEE's program
to meet the goal.
None of these items provides a basis to regulate off-site truck traffic under the ESEE. With
respect to the role of the ESEE under DCC 18.52.020, the setbacks, operation standards and
conditions of the ESEE include no express limitations on truck impacts. There is simply no
specific operating standard in the ESEE to import into the zoning code with regard to assessing
the off-site impacts of truck traffic. Similarly, with respect to DCC 18.52.110(P), there is
nothing in the Site 303 ESEE program to meet the goal that addresses the impact of trucks or
truck traffic on the transportation system. In short, the ESEE does not provide any basis for a
requirement to address the kinds of truck and traffic impacts that Mr. Dewey suggests.
17
Response to Memo #6
The applicant argues that the Hearings Officer erred in not finding dust to be an impact that
requires screening, that the ESEE and DCC 18.52.110(P) requires resolution of ESEE impacts at
the time of site plan approval and that dust issues have not been resolved and that the DEQ
fugitive dust emission standards have not been met.
Fugitive Dust Not Required to Be Screened From View
The Hearings Officer was correct in her determination that fugitive dust need not be screened
from view. Applicant covered this on Page 6 of its January 21, 2009 memorandum addressing
the Hoffmans' issues on appeal. Dust is not listed in DCC 18.52.110(B)(4) as a mining use or
impact that needs to be screened.
Resolution of Dust Impacts Under DCC 18.52.11OL)
Mr. Dewey argues that DCC 18.52.110(P) requires resolution of fugitive dust emissions at the
site. As noted previously, a reasonable interpretation of DCC 181.52.110(P) requires only that
the Hearings Body consider the items listed in Paragraph 23 of the ESEE, the Program to Meet
the Goal. That includes an item (item (f)) that requires mining operations to meet "all applicable
DEQ noise and dust standards." As it relates to air quality, this item is implemented through
DCC 18.52.110(C) relating to air quality.
DCC 18.52.110(C) requires that dust created by the mining operation not exceed any applicable
DEQ ambient air quality and emission standards. Applicants have addressed this standard in its
burden of proof and in its memoranda of May 6, 2008, pages 13-14 (Tab 52) and in its January
21, 2009 memorandum (Pages 27-32).
The primary criterion is the criterion that DEQ staff person Frank Messina referenced in his
testimony of January 21, 2009 before the Board - OAR 340-208-0210, the nuisance standard.
This standard requires that "no person may cause or permit any materials to be handled,
transported or stored or a road to be used or any equipment to be operated, without taking
reasonable precautions to prevent particulate matter from becoming airborne."' OAR 340-208-
0210(2). In Mr. Messina's opinion, the Applicant's methods for addressing fugitive dust
emissions adequately meets that and other requirements of DEQ rules. It is important to note
that the Applicant has intensified its dust control efforts and that DEQ's opinion reflected the
latest efforts of Applicant, including the use of the mulch material on areas that are not active.
Mr. Dewey suggests that the Applicant be required to do an air quality study to demonstrate that
air quality standards will not be exceeded by the proposed pumice mining operations. As noted
in Applicant's prior memorandum of January 21, 2009, (Page 27) DEQ does not require that
sources such as Applicant's perform any predictive modeling. (See Tab 41). DEQ's own
method of implementing air quality standards is to condition its air contaminant discharge
9 Under OAR 660-208-0210, "reasonable precautions" may include such practices ass use of water or chemicals for
control of dust when grading roads or clearing land, application of asphalt, oil, water or other suitable chemicals
onpaved roads, covering, at all times when in motion, open bodied trucks transporting materials likely to become
airborne; and the prompt removal from paved streets of earth or other material that may become airborne.
18
permits (ACDP) permits on compliance with applicable DEQ standards. See January 21, 2009
memorandum, Page 31. Applicant has received ACDP permits for both of the crushers that it
would propose to use on site.
In assessing whether the Applicant's dust control meets applicable DEQ air quality requirements,
the County should not take a stance that requires a more stringent showing than is required by
DEQ, which is charged. with enforcement of the standards. In the end, if Applicant has the
manner and the means to control dust by the kinds of techniques set forth in OAR 660-208-0210,
it will have met any applicable or potentially applicable DEQ air quality standards. Applicant
has demonstrated through its use of the mulch product, the tackifier and through its watering
program that it has the capacity to control dust at the site and that it has adequately controlled
dust at the site.
All of the examples of dust (including photographs) from the site raised by the opponents,
including Mr. Dewey, are from a time period prior to Applicant's latest efforts to control dust,
including spreading of the mulch material on the most problematic area of the headwall. The
only exception to this is the picture that Mr. Dewey entered into the record on January 26, 2009.
That picture shows a small, concentrated plume and doesn't indicate much of anything as to the
source of the dust. 10 As Commissioner Baney commented, it could be from a vehicle driving on
the haul road. Mr. Dewey was not able to provide any explanation as to what may have triggered
the dust. Given their interest in opposing this site and their level of previous documentation of
dust issues at the site, one would think that the opponents would have been lying in wait for an
opportunity to show that Applicant's current dust suppression is not working. It is reasonable to
assume that if there had been clouds of dust coming off the property since that time, we would
have seen photographs to that effect. If the picture introduced by Mr. Dewey is the best they can
do to show that dust problems are continuing, then that is testament to the fact that the dust
control efforts at the site are in fact working.
As a way of explaining the absence of complaints since Spring 2008, the Opponents have
indicated that they have given up complaining about dust because they get no response. Again,
given the prior scrutiny, and the fact that this permit was still under appeal, one can reasonably
assume that if there had been a problem in the interim - in the driest months of the year - a
complaint would have been made. The fact that Ms. Whistler and Mr. Adams showed up at the
January 21, 2009 hearing shows their continued interest in opposing the Applicant's proposal.
to Contrary to Mr. Dewey's assertion, a review of the photograph does not show that the dust is coming from one of
the surfaces treated by the mulch.
19
Response to Memo #7
In Memo No. 7, Mr. Dewey identifies 5 conditions of approval of the Hearings Officer as being
inadequate. Applicant responds as follows.
Condition No. 1: What Uses Are Allowed
Applicants submittals have made clear what it is that Applicant is seeking approval for.
• Excavation of Tumalo tuff, Bend pumice and incidental aggregate;
• Screening of pumice;
• Washing tuff for possible use as arena sand;
• Crushing of pumice, welded tuff, and incidental aggregate
• Stockpiling of pumice, tuff and incidental aggregate
Some of what Mr. Dewey asks for in a revised Condition No. 1 is impossible to provide for at a
surface mining site. As noted elsewhere in the record and in my testimony before the Board on
January 21, 2009, surface mines are dynamic sites, unlike more traditional site plans where the
elements, such as locations of buildings, parking lots, landscaping and sidewalks are fixed in
place over the life of the site plan. With surface mines, the area to be excavated moves around
the site as extraction is completed in older areas and new areas are opened up, and by necessity
the other elements, such as equipment storage, processing locations and stockpile areas, move
also as the area of extraction moves. As noted at the hearing, the area where Applicant currently
stores its equipment will be excavated at some point.
The Cascade Pumice site plan displayed at the January 21, 2009 hearing makes the point. It
shows a series of "typical" slots. In reality, the first slot opened by Cascade Pumice did not
conform to any of the slots drawn on the map, although that initial slot did conform to the
160,000 square foot size limit of the conditions of approval.
Mr. Dewey believes that the conditions should include a condition of how much material should
be stockpiled. As Pat McClain has testified, the amount of pumice material to be stockpiled is
dependent on market conditions and the need to build up a stock pile of the pumice in the dryer
months going into the winter, when the moisture in the pumice makes it harder to process.
Fixing a number on the amount of materials in a stockpile would be like trying to regulate the
amount of inventory on a retailer's shelves through the land use process.
What the Board can do is to describe the areas on the site within which certain activities, such as
equipment storage and stockpiling, may occur in order to comply with setbacks from noise or
dust sensitive uses in existence on July 12, 1990. Applicant has provided a site plan with '/4 mile
arcs that describe an area on the site within which the activities subject to the'/4-mile setbacks
may occur. Applicant has also demonstrated through oral and written testimony at the January
21, 2009 hearing why an exception to the'/4-mile setbacks is justified in the area between those
setbacks and the headwall for stockpiling and possible equipment storage.
20
With respect to locating the wash plant below grade, there is no requirement that the wash plant
or any other equipment be located below grade other than at alternative processing locations 1
and 2. Applicant has no problem with such a condition of approval.
Condition No. 7: Dust Control
Applicant has shown that it is feasible to control dust through a combination of mulching critical
areas of the headwall and other exposed areas, through use of a tackifier in the water being
applied to the roads and regular application of water from the on-site well and water tank.
Applicant's submittal of May 20, 2008 included an analysis by DEA and a map showing that
there Applicant's water supply and delivery through water trucks had sufficient capacity to
control areas exposed to dust. Any condition of approval for such mitigation efforts of necessity
will need to be somewhat generic. Applicant has no problem with a requirement that requires
exposed, unworked areas to be mulched, with the mulch required to be renewed as necessary.
As noted in Pat McClain's January 21, 2009 testimony, the mulch has held up well beyond the
initial 6-month time period.
Condition No. 12: Specifics on Screening and Maintenance
This screening requirement was a condition that Applicant appealed because it was based upon
an erroneous determination that the Hoffman driveway was included as part of a protected noise
and dust sensitive use. As noted in Applicant's arguments on appeal, there was no basis for this
condition and it will need to be removed. Accordingly, Mr. Dewey's arguments with regard to
the specificity of this condition will be mooted by resolution of Applicant's appeal related to this
condition.
Condition No. 17: Visibility from the Park
As with Condition No. 12, this condition was a subject of Applicant's appeal and Mr. Dewey's
issues with this condition will be mooted by resolution of Applicant's appeal.
With regard to the location of storage sites, there is no basis for Mr. Dewey's allegation that
storage sites need to be located as far away as possible from sensitive uses. The ordinance
requires that stockpiles and equipment be located more than'/4 mile from noise or dust-sensitive
uses. Applicant has provided a site plan showing where on the site these activities can occur
without violating the 1/4-mile setbacks. Within those areas outside the setbacks, the stockpiles
can be located anywhere. It is only in areas that intrude within the 1/4-mile setbacks where, in
accordance with the exception allowed by DCC 18.52.090(B), such areas may be located closer
to noise or dust-sensitive uses. In this case, applicant believes that the area between the 1/4-mile
setback area and the headwall qualifies for such an exception, as storage of equipment and
material stock is located further away from the Hoffman No. 1 and Todd residences and the
headwall and the difference in elevation buffers those areas from the Kemple residence to the
south.
The topsoil materials that have been bermed on the site are not subject to the 1/4-mile setback
limitation, as they are not composed of "stock" that is being held for sale.
Portable Scale
21
Applicant has no problem with a condition of approval that limits use of its scale to use by
customers of this site. Pat McClain has testified previously that that is all the scale is proposed
for. The neighbor's fears are not justified, but nonetheless a condition of approval is acceptable.
22
RECEIVED
loo ~
Latham Excavation
SP-07-46/CU-07-102 FEB 11 2009
A-08-14/A-08-20
DELIM tENE-) SY.
Response to Testimony of Neighbors/ Opponents
at January 21, 2009 Hearing
Thomas Triplett
Mr. Triplett testified regarding his and his neighbors' (Hamiltons, Geisler, Hoffmans) farming
activities and his concerns about dust.1
As a matter of fact, the record shows that that Mr. Triplett and the neighbors that he referenced
are all located upwind of the Latham mine, as demonstrated by the wind records submitted into
the record by Pat McClain as Exhibit 2 to his May 20, 2008, letter2. The winds blow primarily
from the NW (from April - September) and from the SW (from October - March). Mr. Triplett
and his adjacent neighbors are located to the west and northwest of the Latham Site. There is no
proof in the record of Mr. Triplett's property being impacted by dust from the site. The only
pictures of dust in the record show dust blowing toward the east - away from the Triplett
property.
The record indicates that Mr. Triplett's farming operation itself is a generator of dust.
Applicants provided testimony through the May 20, 2008 letter of Pat McClain about dust
arising from Mr. Triplett's farm during plowing drifting toward the east toward the Latham
property. This would seem to be contradictory to the concern that Mr. Triplett expressed about
his grandson's asthma. (It is interesting to note that those neighbors involved in farming
activities are all protected by Oregon's Right to Farm law, which precludes any neighbor from
taking action for dust raised by accepted farming practices.) Ironically, the testing of the soils
for the presence of harmful silica shows that the topsoil has the highest levels of harmful silica in
it.
Mr. Triplett admitted during his testimony that the dust from the Latham mine had been reduced
since the applicant had started using the mulch product. However, he insinuated that despite the
use of the mulch that dust continued to be a problem. The only specific date that he referred to
was a problem on Mother's Day. Applicants would ask that you take official notice that
Mother's day was on Sunday, May 11, 2008 (see attached). From the May 20, 2008 testimony
of Pat McClain, this was before Latham Excavation treated additional areas of the pit on May 13,
2008. (Tab 53. Page 4.) A comparison of the May 5, 2008 aerial photo with the May 20, 2008
aerial photo shows that those areas were the troublesome southeast corner area of the headwall
1 The location of those properties is shown on the aerial photo map that was displayed on the easel at the January 21,
2009 hearing and that was introduced into the record on February 19, 2008.
z That exhibit was not included in the book prepared for the January 21, 2008 hearing before the Board, but is
included in the record.
and the top of the tuff stockpile. (Tab 53, Exhibits F-1 and F-2.) Mr. Triplett's testimony did
not indicate any further dust problems after the Mother's day date.
There is no evidence that the Latham mine has posed air quality problems for Mr. Triplett, the
Davenports, the Hamiltons or the Geislers or other neighbors located to the west and northwest
of the proposed mine site.
Mr. Triplett complained about pumice "dumped" on his property. This was responded to by Pat
McClain's testimony of May 20, 2008. (Tab 53, Page 1.) As Pat McClain explained in his
testimony of April 8, 2008, there has been a tendency of neighbors to exaggerate the impact of
the mine and to attempt to blame the mine for impacts totally unrelated to the mining operation.
(Tab 32, Pages 4-5, Exhibits 1-2.)
Mr. Triplett brought up a trespass case decided by the Oregon Supreme Court involving an
aluminum plant. That case has no relevance to this case and whether the applicant meets the
applicable approval criteria.
Mr. Triplett indicates that no reclamation is on-going. In fact, the May 6, 2008 letter from
DOGAMI indicates that treatment by mulching is considered to be interim reclamation by
DOGAMI.
David Whistler
In his testimony, Mr. Whistler expresses concern on behalf of the Tumalo Rim Water District,
that the mine is in the middle of a water protection system and that the District has concerns
about the possibility of contamination. In response to the contamination concerns expressed by
the District, Applicant supplied letters from its geo-technical engineer Andy Siemens dated
February 19, 2008, (Tab 59), May 6, 2008 (Tab 61) and June 3, 2008 (Tab 63), opining that the
the risk of contamination from activities at the Latham pit was low. He explained that the risk is
low due to the low porosity of the soils underlying the pit and the fact that the District's well
draws water from an area that is much, much larger than the pit area. In the end, Mr. Whistler
conceded that Latham had adopted spill reporting procedures and on-site training to respond to
the potential for spills on site.
Mr. Whistler indicated concern with reclamation and dust. He mentions that dust comes from
the back wall in the summer, but did not testify as to any dust problems arising since Applicant
has applied the mulch material to a portion of the headwall. In addition, he does not indicate that
any dust arising from the wall ever leaves the property.
David Adams
Mr. Adams testified about dust arising from the site and a photo taken from Ridgewood Place on
Easter Sunday in 2008. Again Applicant would ask that the Board take official notice of the fact
that Easter Sunday was on March 23, 2008 (see attached), which is before any portion of the
Latham site was treated with the mulch product.
Mr. Adams expressed concern with DEQ's approach to controlling dust, that their approach is to
"do the best you can". He wanted more stringent regulatory action by DEQ. In this case, the
standard of approval is that the applicant must satisfy DEQ standards. By its testimony DEQ
indicated that the applicant was addressing dust in a manner that is satisfactory to DEQ. It is
clear that Applicant is doing what DEQ expects of it. The County cannot seek to impose a
stricter standard than DEQ in this area.
In response to a question from Commissioner Luke, Mr. Adams admitted that as a user of the
park, the view of the headwall from the upper trails of the park "doesn't ruin his day."
Mr. Adams admitted that his home does not look into the mine.
Helen Whistler
Ms. Whistler complains that Latham is not pro-active in trying to avoid dust arising from the pit
and then listed a number of ways in which 'Applicant was only reactive to complaints arising
from the neighbors.
Applicant responds by noting that by its nature dust control is reactive. (See May 20, 2008 Pat
McClain testimony, Tab 35, Page 3 As was noted by Pat McClain in his testimony of June 3,
2008, (Tab 36, page 3) the intensity of dust control activities varies in response to the
circumstances. Too much water applied at once in excess of the evaporation rate will result in
making mud. (May 20, 2008 Pat McClain testimony, Tab 35, Page 5.)
Applicant has previously responded to the litany of complaints registered by Ms. Whistler. In
response to her allegations that the Applicant has not acted to remove the wood waste on the
property, this was addressed by Pat McClain in his letter of January 21, 2009, submitted as part
of the Applicant's submittal before the Board.
Ms. Whistler argues that the dust is carcinogenic, but Applicant has produced evidence from on-
site testing showing that neither the Bend Pumice nor the Tumalo Tuff contains harmful
concentrations of crystalline silica. (June 7, 1995 AGI Report, Tab 72.) In response to concerns
about whether the AGI sampling was representative and accurate, Applicant responded with
evidence from its geo-technical engineer, (Andy Siemens, June 2, 2008, Tab 63, Page 2-3), its
industrial hygienist (Kerry Cooley, June 1, 2008, Tab 74, Pages 2-3) and Pat McClain (June 3,
2008, Pages 1-2) to debunk the opponents' arguments about the accuracy of the AGI report. In
addition, DEQ indicated that it has no air quality standard for silica and that based upon the
testing done by Applicant's predecessor, it had no concerns about silica. (Tabs 43 and 44.)
Gena McClard
Ms. McClard testified about being the closest pre-1990 home to the mine. Her address shows
her home to be the former Kemple property, (designated as "location No. 3" in the December 18,
2007 Daly-Standlee noise report, Tab 64, Figure 1) which has been documented as being about
1/4 mile from the active area of the pit. The color aerial photograph referred to at the hearing
(with tax lots superimposed) shows the homesite to be located on the southeasterly portion of the
property, along the rim of the Deschutes Canyon.
Like many other of the opponents, Ms. McLard testified that when she purchased her home in
2007, she was told that the mine would be closing down. As has been noted, there is nothing in
the documents that regulate the use of the mine that would support such a conclusion. Due
diligence on the part would require that a person review the permitting information to verify
whether the site includes a condition that requires the pit to shut down within a certain time
period.
Ms. McClard claimed there to be no buffering effect from noise and dust, but provided no
specific observations about being impacted by either in her residence. Applicant's noise study
shows that DEQ noise standards are met at the McClard dwelling (referred to as Location #3 in
the noise study). (Tabs 64 and 65.)
She testified about her concerns that her children could be endangered by the high wall on the pit
property. The evidence from the site plan shows the edge of the permit area (within which
mining will take place) to be 100 feet from the Tien/McClard property line at its closest point
and to be well more than 100 feet away from the Tien/ McClard property at most points. The
April 15, 2008 testimony of Cougar Caverhill documents that the Applicant has fenced the areas
of the headwall. In fact, as shown by the aerial photo referred to at the January 21, 2008 hearing,
the Tien/McClard home is perched near the rim and steep walls of the Deschutes Canyon, which
would pose much more of a threat than the applicant's mine.
She testified about concerns for her well (shared with Kemple-Cranston and Gibsons), but did
not testify as to any specific impacts that the Applicant's mine might have on the well. From the
evidence provided by the Whistlers with respect to the Tumalo Rim Improvement District, any
well on any of the Tien/McClard, Kemple-Cranston or Gibson properties would be "upstream"
of the mining site and therefore not impacted by groundwater contamination concerns.
She expressed concerns about the carcinogenic nature of the dust. Those concerns are responded
to above in response to similar concerns expressed by Helen Whistler.
Kris Cranston
The aerial photograph shows that Ms. Cranston's home to be located southwest of the
Applicant's pit.
Ms. Cranston raises the issue of increased noise and dust. However, her testimony does not
indicate that dust has migrated from the pit onto her property or to her house. Given the
direction of the prevailing winds and her upwind location in relation to the pit, it would be highly
unlikely for her to suffer any dust impacts at her property, even if dust suppression activities
were not effective. In addition, her testimony does not give a time frame for her dust
observations, as to whether dust has been observed after the date the Applicant's applied the
mulch to the property or started using the tackifier in the water applied to the haul roads.
She complained about back-up alarm noises. This was addressed by the Applicant's noise expert
in his testimony of May 20, 2008 (Tab 67).
Ms. Cranston brought up the issue of deer migration. As Paul Blikstad responded, the
Applicant's pit is not within a WA zone. As noted in Applicant's brief, the ESEE for Site 303
was corrected in 1992 to recognize that the site is not within a Goal 5 wildlife protection zone
and to eliminate a required winter closure.
Rex Gibson
As other opponents have indicated, Dr. Gibson indicated that before he purchased his home he
had been told that the mine would be shutting down. Again, what Dr. Gibson may have been
told prior to purchasing his home is not relevant to whether the mine may continue to operate.
Nothing in the ESEE or other applicable documents places a time limit on how long the mine
may be operated. While Dr. Gibson expressed worries, he did not document any specific
impacts from the mining operation. A review of the aerial photograph shows that his home is
located to the south of the Applicant's property on the far southeastern corner of his property on
the rim of the Deschutes River Canyon.
t
Date of Mother's day for year date 2007, 2008, 2009, 2010
Page 1 of 1
k..iary. 1 . 200
ou The date of Mother's Day - 2007, 2000, 2C
Mothers Day Dinner Cruise I Got Rid Of My Wrinkles Want Mothers Day Flowe
Nov,,; 1
011
`Su; r . in'
www.comucopiacruise.com CarasWrinkles.com DeLaFlowers.com
11 V
Compare Dates
Bate Calculator
ri - I E .
gates ~evun laerl;etu r
Mother's Day dates
St. Patrick's Day
Valentine
Easter
Father's Day
Halloween
Thanksgiving
Christmas
C~la~c°.., . v6s Z~
Mother's Day
In the United States, Mother's day, the day to
celebrate mother is observed on the following
dates:
2007 - Sunday, May 13th
2008 - Sunday; May 11 th
2009 - Sunday, May 10th
2010 - Sunday, May 9th
2009 Holic
i
Coun
Birthc
2005 2
http://www.calendardate.com/mothers_day.htm
2/11/2009
The date of Easter 2007, 2008, 2009
Page 1 of 1
The date of Easter - 2007 and 2008, 2009;
2009 Easter Holiday The Meaning of Easter Devon_ Easter Holiday
> t<t.rl, ;r 2. Read she ongir al Ea_, er of ,r-..us'
Iw'Y:;;£~..€~,1::)3T ct r'~ss: !4'[7(71 7i<~tit .
www.webcrawler.com www.JesusCentral.com www.ladysmile.co.uk
V: V,
Date Calculator
Easter dates
St. Patrick's Day
Valentine
Mother's Day
Father's Day
Halloween
Thanksgiving
Christmas
R r
Compare Dates
Easter in the United States:
Easter, a holiday that is celebrated to commemorate the
resurrection of Jesus Christ, is observed on these
dates:
2007 -
Sunday, April 8th
2008 -
Sunday, March 23rd
2009 -
Sunday, April 12th
2010 -
Sunday, April 4th
In Canada:
Easter Monday is celebrated on the following dates;
2007 -
Monday, April 9th
2008 -
Monday, March 24th
2009 -
Monday, April 13th
2010 -
Monday, April 5th
2009 Holic
t
Coun
fl+
2005 2
http://www.calendardate.com/easter.htm 2/11/2009