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2009-1352-Minutes for Meeting December 29,2008 Recorded 6/30/2009DESCNUTES COUNTY OFFICIAL RECORDS ■1352 CJ 7009 NANCY BLANKENS, CLERK COMMIS IONER$'HJOURNALNTY 0613012009 04:46:29 PM 111111t~11 IIIIIdill 111 Z Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ora MINUTES OF PUBLIC HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, DECEMBER 29, 2008 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Dennis R. Luke, Michael M. Daly and Tammy Baney. Also present were Will Groves, Community Development Department; Laurie Craghead, Legal Counsel; Hillary Borrud of The Bulletin and other representatives of the media and approximately twenty other citizens. The purpose of the meeting was to take additional testimony on a comprehensive plan text and map amendment and zone change from surface mining to rural residential to allow redevelopment of extensively mined, non-agricultural property, including a non-resource designation. The applicant is the Daniels Group; the property is located near Lower Bridge Way. Chair Luke opened the meeting at 5:00 p.m., at which time Will Groves began reading the opening statement regarding the hearing. Will Groves said that he received further materials since the last hearing and it is now included in the record. The Deschutes Historical Landmarks Commission asked for a delay because of the old sign on the side of a cliff. Laurie Craghead said that this is in Code as a Goal 5 resource, and must be addressed when there is an application for a subdivision. A condition could be included in a decision regarding rezoning to address this issue. Commissioner Luke as what a Federal 106 study costs and who would pay for it. Ms. Craghead said that the applicant would normally pay these costs. It is assumed the sign is the only location that is in question. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 1 of 29 Pages Tom Blust entered a map into the record showing proposed Oregon Department of Transportation improvements to the Lower Bridge Way area. The final engineering studies are not yet done, but construction should begin next summer. ODOT started with a preservation project in the area but added safety features. A steering committee worked with ODOT on the design, and there was a lot of input from local citizens and representatives of other entities. The design adds some operational and safety features. Morning Glory Drive is being moved back; the northbound movement will be separated from southbound, to add to the sight distance and adding stacking distance. The deceleration lane will be moved over and lengthened. 11th Street will be moved north, and the current location will be a right-out only to avoid crossover traffic. Wimp Way (not shown on the map) will be closed as part of the project, due to safety considerations. Barberry Drive will also be closed, along with several private entrances around Terrebonne, with access provided through a frontage road. Commissioner Baney said that Lower Bridge Way will be the primary access for this development, and she wondered about capacity. Mr. Blust stated that there is still a capacity issue at the intersection, but given limited resources all they could do was add some operational efficiencies. Peter Russell stated this was a programmed improvement, and said he told the applicants to assume that this work is already done. Capacity issues typically arise during some peak hours, between 7 to 9 AM and 4 to 6 PM. Commissioner Daly said that there are probably a lot of intersections like this in the Valley and other places. Mr. Russell said that the County Code has a level of service relating to delays. It is set up by the category of highway through ODOT. There are different performance standards depending on the type of road. The merit system is similar throughout the State. Commissioner Daly asked if this is more restrictive than in other places. Mr. Russell stated that ODOT has a "don't make it worse" policy if it is over capacity. In the Portland area, there is more congestion. Commissioner Luke stated that in some places it is much worse. Mr. Russell stated they base it on volume. Commissioner Daly asked me what constitutes a failure of an intersection. Mr. Russell replied that they look at the peak hours. The County looks at delay, and ODOT looks at capacity and performance standards. You try to fmd a reasonable worst case scenario. The concern is that people won't wait and will make bad decisions entering traffic. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 2 of 29 Pages Commissioner Daly asked how long a wait is too long - 30 seconds, two minutes? Mr. Russell stated that the County does time, and 35 seconds is it. ODOT measures it differently. This intersection has more commuters than it used to. The left turn lane is not long now and fills up too much at peak times. Commissioner Baney asked if this would impose a moratorium on growth. If it is already at too high a level, it needs to be on a plan for the future. If there is no money, what do they do then. Mr. Russell said that the transportation system plan can be changed to allow for mitigation. Another way is to lessen the intensity of the land use. There are tools to be used other than building infrastructure. Some may not work for residential areas. A lower use does not provide for the economic needs of the developer, however. Commissioner Luke asked if ODOT has anything on this in their future plans. Mr. Blust said that this is not a high priority for them. They have budget issues and will eventually look at this, probably not until 2010 or 2011. The Deschutes County area might be on a plan after that. Commissioner Luke asked if the Jefferson County residents using this cause it to be worse. Mr. Blust said yes, that is a fair assumption. Commissioner Luke asked if there are any rock outcroppings that cause problems. Mr. Blust said Teater Avenue has some sight distance issues and some rock was removed. There is capacity on the road itself. He said there could be some safety intersection improvements but nothing is on the TSP now. Commissioner Daly stated that this issue often comes up when someone has an application for a subdivision. Commissioner Baney stated that it is her understanding if it is not on the plan, the developer can't be required to fix it. Ms. Craghead said the issue is whether they could get there if there was such an issue at the time of subdivision application. If it is likely that this can be mitigated, they can often proceed. Mitigation can still be requested because it is already a failing intersection. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 3 of 29 Pages Commissioner Baney stated that some options can be reviewed, to get to mitigation if needed. Commissioner Luke stated that ODOT does not like local traffic on state highways. If the peak hours are as stated, they are going somewhere. Mr. Blust said 90% would be going south. Commissioner Luke stated that he feels local traffic is taking a trip down the road to the store. This traffic is more regional. Ms. Craghead said that testimony was given on trip per acre, the difference between what mining sites generate. Mr. Russell stated that they thought the traffic generated off a mine would be less. The mine site usually would not be used all at the same time. Ms. Craghead said some mining sites that are local but smaller were used as comparables by the applicant, on a per acre basis. Mr. Russell stated that mining is distance sensitive. It is unlikely that the whole mining area would be mined at the same time. Commissioner Baney asked if this assumes they could build on the entire acreage. Someone could potentially mine the whole area. They would not be able to build on the entire area. Ms. Craghead stated that this would be decided on the rate. Commissioner Baney said that it does not seem reasonable that the use would be as high with residential. Ms. Craghead indicated that the highest use would be 75 or so residences; the question is whether that is equal to what a mining operation would produce. Commissioner Baney asked what it is based on, how many acres being mined at one time or some other equivalent. Mr. Blust stated that it would be based on what a likely mining operation would be doing; the type of mining and existing mining operations. Mr. Groves stated that there was a figure arrived at on the traffic study. Mr. Russell said the group agreed on some numbers, but he is not sure what percentage of the property they used for their numbers. Commissioner Luke stated that some mining operations are down now but could be busier. Mr. Groves said that the question is what moves are failing at the intersection. Commissioner Daly asked if anyone from staff actually looked at the intersection during peak times. Mr. Russell stated that it is a burden of proof of the applicant to make that determination. Usually it is Tuesday or Wednesday at peak times. Commissioner Daly asked if that is how they determined the intersection is failing. Mr. Russell stated that the level of service and numbers determine pass or fail per County or ODOT. The left turns onto Lower Bridge Way are.082 under existing zoning, surface mining. That is higher than ODOT's .080. The reroute goes to .085. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 4 of 29 Pages Commissioner Luke said that the right and left turns are in the same lane currently, plus crossover traffic from 11`h Street. Mr. Russell stated that they made recommendations based on planned improvements. Commissioner Luke quoted Mr. Russell saying that ODOT does not build to the worst case scenario, but expects the County to plan for it. Mr. Russell said the idea is a reasonable worst case scenario. You don't overbuild. You try to find the middle ground. Commissioner Luke said that means the intersections will always fail during peak hours. Mr. Russell stated they have to balance what will work safely with how to enhance economic development. Mr. Russell stated that the left-in to Lower Bridge is failing. People will sometimes use other streets if they know they will have to wait at an intersection. At this time, Commissioner Luke asked that any testimony not be duplicated from previous hearings. He prefers only new information or questions be presented. Tia Lewis came before the Board with Greg Daniels, for the applicant, plus a planner and Joe Willis, an attorney who handles zoning issues. There is written testimony from him if needed. Ms. Lewis said that regarding the traffic situation, trips per acre, their chart uses the O'Neill site and not the more urban areas. For the sake of argument, these were more applicable comparables. To extrapolate the trips, the other sites are substantially smaller. These are the Hooker Creek location and the O'Neill location. The 74 residential units are the absolute maximum. There have to be drainfields and other requirements, but they didn't discount this. The law requires the maximum worst case scenario be looked at. Even if the entire site is not being mined at the same time, other mining activities might be ongoing while mining is being done, such as crushing, refining and so on. There were over 100 truck trips per day when it was active, a much harder use than residential. The evidence in the record is sufficient. Findings can be drafted that are defensible. She said she had submitted an e-mail citing provisions in Code that allow the County to require mitigation at the subdivision development timeframe. They require a traffic study plus more. She said they believe they can mitigate and the County is entitled to require this mitigation. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 5 of 29 Pages She said that the letter from the Historic Landmarks Commission was disturbing. It has Heidi Kennedy's name printed on it; she is the secretary for this Commission but said she was not aware of the letter. The writer was not acting on behalf of the Commission and therefore, this should not delay the request. The request is similar to NEPA, a federal requirement, and they have no problem addressing this situation. They will comply as required. Ms. Craghead asked if the site is on the side of a cliff and would be part of the open space. Ms. Lewis stated that she think it is a sign on a roadway. Commissioner Luke said that this can be part of the decision. Commissioner Baney stated that it will have to be researched. Ms. Craghead added that findings have to show that it will not be impacted by the rezone. Ms. Lewis said, in regard to the 18 acres to be reclaimed, the County could condition the rezone on the reclamation plan being completed, under the modified or original SP 85 plan. Ms. Lewis stated that there is a letter to Will Groves dated December 29 (already in the record), relating to the environmental studies on the site and determinations done by the relevant agencies. They have worked on this project for years. It is hard to understand the extent of the environmental studies that have been done. The letter lists the studies in the record; there are 13 of them. The relevant pages of the studies are flagged. None of the studies are new. Commissioner Luke asked about the "no further action" on two of the sites. Commissioner Baney asked which sites; Ms. Lewis said they relate to the entire area, and the 18 acres was the only area mined for sand and gravel and had a separate reclamation requirement. A lot of work was done to make sure this proposal was worth doing. A portion of the site could be zoned for residential and the rest conditioned on some level of environmental cleanup. The proposal would have the 130 acres east of Lower Bridge Way with an RR-10 zone solely upon the NFA letter from the DEQ or an equivalent, per DEQ. That releases it for residential use. They won't know until they review the cleanup results. They may require continued monitoring of a well or other aspects. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 6 of 29 Pages She wants the Board to realize that the 130 acres can be rezoned for residential use with those conditions. DEQ has stated that they test for each individual substance with different levels of requirements, whether residential or other. There is a level for different uses, and t is based on the potential exposure. If an NFA is sought on the 130 acres, it would be based on what is coming from the other areas as well as what is already on the site. If contamination is coming from the other sites, it would show up on the 130 study. Mr. Groves said that he didn't realize their evaluation would not just include what originated on the 130 acre site, but anything that might end up at the site. Ms. Lewis confirmed that it does not matter where those hazards originate, whether it was water or other uses. The wastes were never on this site but could have come from the adjacent sites. Commissioner Luke said that if this land was not part of the overall plan, this kind of test would not be required. Ms. Lewis discussed documents submitted to the Board on December 22. It is stamped "draft". Commissioner Luke said that at the work session they discussed where the 30 acres are located. Mr. Groves stated that most of the area below the cliff is wetlands or floodplain. Commissioner Luke asked if Mr. Blust looked at the road located on the property. Ms. Lewis said it is on the bench below the river on the bench. It is a right of way and not a road. Ms. Craghead added that the right of way may never have been accepted by the County. The dedication is recorded but the acceptance is not; the title report does not show the acceptance. Ms. Lewis said that the area is undevelopable, and it will be counted towards the open space requirement. She believes it is subject to a 100-foot setback from the rim as well. She stated that the rezone would have 160 acres go to RR-10, conditioned that the owner obtain an NFA or equivalent from DEQ for residential use. Under the 410 acres, it would be approved for RR-10 with the conditions set forth in the letter. There is an expiration date of five years. Number 1 is the DEQ approval. Within three years or before residential subdivision approval, the NFA would have to be in place. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 7 of 29 Pages Commissioner Baney asked what if they decide they don't want to look at the other 410 acres. Ms. Lewis said that the intent would expire and the surface mining zone would remain in place. Commissioner Baney asked how they would address having residential next to it, what kind of health and safety issues there might be. Ms. Lewis stated that it would not be different from today; and asked how the County addresses that now. Ms. Craghead answered that there would be nothing to enforce this short of the intent. If they walked away, there would be no requirement greater than that of a public nuisance action. Ms. Lewis said the second issue is the DHS determination of no apparent health hazard. The third is the reclamation provision, prior to issuance of building permits. The developer would have to approve this. Item 4 relates to dust abatement, and they would be working on a voluntary cleanup program with DEQ. This would include a replanting and watering plan for the 410 acres. The water permit is initially for a period of 18 months and can be renewed for three years. The last would be an expiration of five years, up from three. It may take five years to complete a lot of these things. Commissioner Luke said that they talked about a condition of approval for the 160 acre rezone could be that before the Commissioners sign the plat, the study on the remaining acreage be in place so it is known what is there. If the developer walks away from the intent to rezone, they still won't know what is there. Commissioner Baney said that if they don't know if a health hazard is next to the 160 acres, she is not sure she would rezone not knowing this. Ms. Craghead stated that discussion occurred that it is to the public benefit to rezone, but to condition it on the testing of the 410 acres. Commissioner Luke said that one aspect of the NFA is to know that there is nothing on the other piece that affects the 160 acres. This would include dust. Ms. Craghead stated that it may not cover everything. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 8 of 29 Pages Commissioner Luke said if the water supply might be contaminated, DEQ should require this as well. Mr. Groves said that they may only require sampling on site but this is unknown. Ms. Lewis said no one would buy the lots if something bad was found. Commissioner Luke stated that they will want to know so they can sell. It would be good to find what is on the larger site. Ms. Craghead said that it is not that they won't sign if something bad is found, but that they want to know what is on it. Commissioner Melton stated that in the record water testing was done on the full site. They suggest the groundwater has not been contaminated. Also, there is no evidence that no radioactive material was found. However, some people still feel that there is still a problem. Commissioner Luke said that some agencies say they are not sure about all of it. Ms. Lewis said that an NFA is in place on the entire site for industrial use. Commissioner Baney asked for clarification on which sites are which NFA's. Ms. Lewis said the site has never been bifurcated; the studies were done on the entire site. Commissioner Baney said there is a question as to what is industrial or residential NFA's. Ms. Lewis said that there would be a new set of tests for residential use. There has been testing on the soil, water and other issues. They just need the testing to be at the residential level. Commissioner Baney stated that a big concern has been the dust, but this would be looked into if there is residential use planned on adjacent land. Commissioner Daly said that he understood that the whole site was tested, at least to industrial levels. Ms. Craghead said that the 160 acres prior to tentative plan application requires that the letters be obtained, and the only groundbreaking would be roads and other actions that would be part of testing. Ms. Lewis stated that she put this prior to a residential building permit, but as long as it is recognized that some activity would be needed to accommodate testing. Commissioner Luke prefers that a huge disturbance of the soil not take place. Commissioner Luke asked what the applicant plans to do on the larger piece once the tests are done. Ms. Lewis said there would be further tests, to determine if they are acceptable for residential use. If there are, it would be cleaned up to that level. The VC up program takes the applicant through that process with DEQ. Depending on the costs associated, it may be done in phases. It is separate from the 160 so there is a resolution of intent to rezone. If it is cleaned up, the development of the 160 will help finance the cleanup of the remainder. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 9 of 29 Pages Commissioner Luke asked when the cleanup plan will start. Ms. Lewis said the first step was to put in the pivot and water the land. The entry into the program depends on the timing of the first stage of the process. If there is an appeal, it could take longer than they want. Commissioner Baney, in regard to item #4, asked if they would be willing to change the date to something more concrete. Ms. Lewis said that they won't put more money into the project until there is a final decision if it goes to LUBA. They would not be able to build until there is an appeal anyway. Commissioner Luke said that perhaps a voluntary cleanup program could be tied to a date or timing after an approval process. Ms. Craghead said they would continue the dust abatement in the meantime. It has already begun. Commissioner Luke asked Mr. Russell about the numbers at the intersection. He said the level service is F, which is not specific. The northbound left fails in the afternoon. They did not study the intersection in the morning. A five minute break was taken at this time. Phil Grillo, resident of the area, said that he has tried to find a middle ground in this issue in order to give some options to the Board. On December 17 he learned some disturbing news that mining operations may be resumed. (He submitted a letter for the record, which is attached for reference.) He is concerned that this is in direct conflict with testimony from the applicant. They claim that the site is not economically viable for mining. Mr. Grillo feels that diatomaceous earth can be protected. Commissioner Luke said that he understands it is not a protected resource. Ms. Craghead stated that it is in the qualified inventory area but has learned that some minerals other than aggregate can be protected. Mr. Grillo feels that this has been misrepresented. The markets on these things change and perhaps it is now economically viable. However, the real issue is the whether the owners are credible. He wants to see the site transitioned from what is now to something better for the area. There was an attempt to make a deal that didn't go through, but he is bothered by this scenario. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 10 of 29 Pages Commissioner Luke said there is nothing illegal about wanting to use the site for what it is currently zoned for. If this site goes back to mining after being shut down, it would then come under DOGAMI and DEQ, and County regulations. This is a much worse scenario. Mr. Grillo said that the County should prevent them from doing both. They should not be allowed to go backwards. He said the dust is a public nuisance violation per DEQ. That has not yet been resolved. Commissioner Baney said that she can't see them mining with residential next door. If there was a resolution of intent to rezone to residential, that says that there is not a resource of value still present. Commissioner Luke said they could still mine. The only way to prevent this is to rezone it to residential. Mr. Grillo stated that there are ways to have the applicant and owner show good faith. The applicant says there are no economically viable materials. They made a deal to sell it. Commissioner Luke said that they may have negotiated but no deal was every made. Perhaps they studied it and found that they could not make enough money at it. Commissioner Baney said that the letter says that they decided it was best not to mine adjacent to residential. Mr. Grillo said that this is probably not illegal but it is not what they have represented as good neighbors. He suggested that this process slow down. There has been a lot of new testimony and he can't follow how this is going. He would also be cautious about split zoning the property. They could walk away from the other site after making money on the first one. They could make money by mining on the second site. He suggested that in regard to the 130 acres, it has gone through reclamation for the most part. It is probably ready to be rezoned to RR-10. The other 30 acres is to allow additional density on the 130 acres. He is not concerned about three more dwelling units. But he does not know why they would want this particular 30 acres. He suggested that another 30 acres be selected. The area along the water is not developable anyway. Commissioner Luke said that they could put it in a land trust and protect it forever. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 11 of 29 Pages Mr. Grillo said he is not sure why they want that 30 acres. He is opposed to giving them the opportunity to do something else on the 30 acres. He does not want to see development on that site. Commissioner Luke said there is a rim setback and most of the land is wetlands and not developable. It is part of the scenic waterways. Mr. Groves stated that there are significant obstacles but it may not be impossible. Commissioner Luke stated that the intent was not to build on it. Ms. Craghead added that they are willing to have a condition that it go into a land trust. Mr. Grillo said that if it is unbuildable, it probably won't matter that they do this. He proposes that this be put in open space zone. He doesn't want them to take profit on the remaining acres. There are a list of uses in open space zone, including farming, wildlife reserve, roads, and hydroelectric. Commissioner Luke stated that this would take property without compensation, as they could not use it for anything. Mr. Grillo stated that it is upside down financially, and it would be hard to prove a taking. Commissioner Luke stated that an e-mail says it is valuable. Commissioner Baney said that it is a holding. This is a compromise idea. Mr. Grillo stated that a covenant could be placed on the property to assure they won't do anything else with it. If a conditional rezone or resolution to rezone, they could do both. He is in favor of moving this property forward into reasonable residential use. He opposes it where there is an opportunity to go back into mining. They may be able to do that from a zoning standpoint, but he wants to see it change into something better. That's where he thought they were heading. Commissioner Baney asked when the County found out about the potential sale. Mr. Groves said that he had calls from Mr. Kluser, who is still interested if this zoning change doesn't go through. Mr. Grillo said that he is not clear whether nothing could be done with the thirty acres along the river. (He referred to an oversized map.) He thought they would want that because it would be adjacent to the 130 acres. The other property is adjacent and a different thirty acres could be carved out to give the density boost. If they want to protect it, it can go into an open space covenant. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 12 of 29 Pages Commissioner Luke said that the Deschutes Basin Land Trust makes sure land would never be developed. They like this kind of property. The zone change is not contingent on this option. Commissioner Daly asked if Mr. Grillo has been down that road. The property below the rimrock is straight up and down and will never be developed. Mr. Grillo stated there is a concern about that. There are probably lots of development constraints. He does not want it used as the bonus property. Commissioner Daly said that he has been down that road numerous times and no one will be able to develop that thirty acres. Mr. Grillo says that his concern is the credibility of the owners. Will Groves stated that regarding significant resources, in the inventory it is described as having aggregate and diatomaceous resources. The Hearings Officer found that there is no specific standards relating to a mineral resource. The applicant stated that there is no economic incentive to mine diatomaceous earth due to market conditions and it is no longer significant. The Hearings Officer found that this finding was adequate. Commissioner Luke said that a lot of resources are no longer economically viable or viable at this particular time. There has to be a demand for the product. Ms. Craghead, in regard to nuisance issues, Code talks about nuisances as open holes, wells, non-operating appliances, solid waste, land that causes erosion or drainage problems that are potentially injurious to adjacent property owners. It does not talk about dust. Ed Beard testified that they live on the river across from the mining site. They had to do a surface mining study in order to build. They had to ensure that they would not put the mine out of compliance. He is struggling with some of the new information and asked that a decision be delayed. He would like to see it move forward, but in the right away. Commissioner Luke stated that there have been numerous hearings and meetings. He does not feel they are rushing things. Commissioner Daly said he does not see that there is new information. The e-mail is the only thing, but the owners have not changed their minds. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 13 of 29 Pages James Dunn testified that he lives east of the site, and he averages up to three trips through the intersection a day. He said that in regard to the transportation information, truck traffic on Highway 97 is the biggest problem. The times said to be impacted are not quite correct. There are several big stockyards in the area and there are many pickup trucks and other vehicles traveling Highway 97 on certain days. It is difficult to turn left to go to Madras. The improvements will be helpful, though, because they add to the sight distance. He hopes the County can move forward to get this into some kind of priority. He thinks eventually some kind of separation is needed. At one of the first meetings on this subject, he asked to meet Mr. Daniels. In spite of the testimony heard since, he was told that there was a great effort to involve the local residents. He wanted to meet on his property so he would know that his property would be protected. He asked Mr. Daniels to meet at his place. He has been unable to contact him until now, but indicated he would be interested in a conservation easement. This has not been finalized. He still wants to see the property protected. The current owners dedicated a strip of land ten feet from the high water mark the entire length of their property. It was deeded to the parks. The old Lambert Road is a Deschutes County road. There was an attempt to vacate it at one point. The actual plat should show this. Ms. Craghead said there is a difference between accepting it for public right of way and being a County maintained road. Mr. Dunn stated that the vacation of the road was denied because of access to the river. He is not sure who applied for the vacation. He is not sure if there is a possibility to build something near the bluff. Commissioner Daly asked if Mr. Dunn prefers this go back to mining or change the zoning. Mr. Dunn is concerned about health factors and would like to know if they are true. He has tremendous views from his property and would not want to see a cluster development on the other rim. Dust abatement is a big concern, especially when tied to the question about potential health hazards. It is severe at times. He would of course like to see it developed, if it is done right and if the reclamation processes are done right. He would be okay with development as long as the areas producing dust is properly addressed. Ms. Craghead said that tax lot 1509 was deeded to Central Oregon Park & Recreation District, along the river. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 14 of 29 Pages Diane Lozito said that the biggest misrepresentations are that the ESEE study was done on the entire site. It is in the file that testing was done on only one acre. She wants the time to bring that evidence in. Commissioner Baney asked which test. Ms. Lozito stated that there was toxic waste dumped there - Commissioner Luke stated that this is supposed to be new testimony. Ms. Lozito stated that only one acre was tested. Commissioner Daly stated that the NFA is on the entire site. Commissioner Luke said that this is already in the record. Ms. Lozito asked how many trips Commissioner Daly makes from that intersection. Commissioner Luke said this is not relevant. Ms. Lozito said she makes several trips a day and it is already a failing intersection. Regarding lot 1509, she asked if this is within the thirty acres. She said that the GIS person could not answer that. The Parks owns three lots, about 23 acres along the river, which is now a wildlife reserve. Lot 1509 is also protected area. All three parcels were put in protection and are owned by the Parks. Commissioner Daly asked how that makes a difference. Ms. Lozito stated that it is not actually thirty acres. Commissioner Daly said that they will have to verify the thirty acres through a survey. Ms. Craghead stated that lot 1509 is not part of the application. Commissioner Luke said that there would have to be an exact legal description of the acreage anyway. Ms. Lozito stated that the road is a County road and she believes that it is recorded. Commissioner Luke said that even if the thirty acres is zoned MUA-10, it might not be buildable anyway. No one will get approval to develop within a flood plain or a wetlands. In regard to the historical site, it is a listed site within their acreage. Under the Goal, they have to get signed off to do anything on lot 1505 because of it. Commissioner Luke asked what is historical. A rezone has nothing to do with this, as historical sites have to be protected anyway. Ms. Lozito said that the development is where this is addressed. The new plan started to throw in contiguous acreage. It is in the middle of the land. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 15 of 29 Pages Commissioner Luke stated that the development would have to comply with the comprehensive plan to protect the historical site. Ms. Lozito said that she feels this affects the entire site. Commissioner Baney stated that the historical site would be excluded. Commissioner Luke said that a finding has to be included that this area is protected. Commissioner Baney stated that they may need to go into other property to expand it to 160 acres. Commissioner Luke stated that a future application will address how many homes and how the development will be handled. Commissioner Baney said that all of this would have to be figured out before an application is presented. This could change the number of homes. Ms. Craghead confirmed that prior to a subdivision application they have to deal with the Historic Landmarks Commission. Ms. Lozito asked if the new plan was brought up in rebuttal at the last meeting. Commissioner Luke stated that the record has been open since then and it is part of the record. A rezone of the 130 acres and the other thirty acres is all that would happen. How it is developed is a whole different process. Ms. Craghead said that this was brought up at the beginning of the last meeting. They asked that the 160 acres be conditionally rezoned, and the other would be rezoned if they meet certain conditions. Ms. Lozito said that 65% needs to be left in open space. Commissioner Luke stated that what they are going to do with the property will come later. The plan is a different process and could change over time. Ms. Lozito wants to know what their plan is. Commissioner Luke stated they want the whole area rezoned RR-10 but the Commissioners had questions about the 410 acres, so the rezone would only apply to the 160. Ms. Craghead stated that the rezone of the 410 would have to be specified. Commissioner Baney said that there has to be a new zone specified when you remove the old mine. There is no underlying zone here. Ms. Lozito felt that the owner was misrepresenting the issue by negotiating on mining while trying to rezone. She wants time to learn more about this issue. She feels due process has not been followed. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 16 of 29 Pages She demanded more information about the applicant's new plan, how traffic will be handled, impacts to the County roads in the area, Goal inventory and where the money is coming from. She wants to know the penalty for misrepresenting their plans. She is concerned about the dust from the D.E. and cleanup and testing. All of the testing done has been done in regard to industrial use. They have not done residential testing at this point. Commissioner Luke said there was a lot of testimony tonight already on the extent of testing and what would be required. Ms. Lozito went on to repeat her concerns and her opposition to the rezone proposal. Commissioner Daly said the concerns expressed tonight are the same she presented previously. He said that the DEQ has to approve the property for residential use. Ms. Lozito said she wants to make sure that the entire site is to be tested. She presented a letter from David Jenkins as well. Commissioner Baney asked about the well logs. She asked if one well was tested numerous times or if testing was done with others. On tab 7, page 7, regarding 65 well logs, she asked which ones were tested. Mr. Groves stated that they tested wells on the property and in the surrounding area to determine water depths and pollution levels. Commissioner Luke stated that these are normally on file at the Water Resources Department. Mr. Groves said that they tested wells on the property for pollutants and none were found. Dougal Haines, Lower Bridge Way, testified that he is struggling to continue adopting a positive attitude. He is concerned about the revelations regarding potential mining interests. This generates a lot of mistrust and it is hard to get past this. Commissioner Luke said that an e-mail from a business does not say that there is value there. If it goes back to a mine site, they would have to bring in a lot of agencies and there would be a lot of regulation. It would be much more difficult to do this. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 17 of 29 Pages Mr. Haines said that he would almost prefer that the whole site be rezoned to RR- 10 to make sure what is going to be done with the balance of the property, instead of being unsure about how it will be used in the future. Commissioner Luke said that the County does not have the authority to make them revegetate the entire area. Ms. Craghead stated that if there is a split zone, no. But if the original application was approved, they could be required to do this. Commissioner Luke said that if an appeal occurs the County would have to prove that it is in the best interest of the public. Some of the requirements could go away. Mr. Haines said the applicant was originally volunteering a fair amount of reclamation. They would be footing the bill. But talk is cheap and some conditions that are applied now or later have to be honored. He feels that something firm needs to be decided now. Commissioner Daly said all someone needs to do is look at the map and the prevailing winds. They won't sell a lot until the mine site has been reclaimed. A reasonable developer won't spend that kind of money if they have nothing to sell. Mr. Haines said sometimes they don't do the reasonable thing. They need to stick to this. Commissioner Luke stated that various conditions were discussed, and he was told that some could not be imposed. Commissioner Baney said that some could be imposed but they would not be financial feasible and therefore would not happen. The Commissioners offered to do it in another way. Ms. Craghead said that the public interest language came into play at some point. There is a difference between revegetation and reclamation; there is no County standard. DOGAMI has one. Will Groves said that the Board will decide whether it is in the public interest, with conditions. The Board could require a revegetation plan for any portion of the property. The owner has apparently done it in some areas but there are other areas that have not been done. Commissioner Baney stated that the applicant does speak to this, and it would be voluntary. This is for the 410-acre site. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 18 of 29 Pages Tia Lewis and Greg Daniels came before the Board for rebuttal purposes. Commissioner Baney asked them about the potential sale of the land for mining purposes. She is concerned about whether there is a resource there and whether it is financial viable. One of the owners of the property said that the letter was from someone who has called everyone about land. There has been no interest in selling the property to him. They have tried to sell this property for a long time, but there is no market for it. The man says that he thinks feeding this material to cattle is a great idea. Tia Lewis said there is some confusion on this issue. The applicant is the Daniels Group. They have had no negotiations with anyone to mine this property. They were not aware of this until the e-mail came in. There are two sides to this story. The property is zoned surface mining. There is nothing illegal in find out what it is worth, and citizens should not be indigent about the owners' options. People don't want it to be mined but cleaned up, with no other use. The e-mail does not diminish what they want to do with the property. Commissioner Baney said that the Board can't look at the applicant and the allowed uses. This has to be set in stone for whomever. It does concern her that it could potentially be mined again. It could be sold and not work out. That may make no sense at all but it could be done. Ms. Lewis stated that is why it should have to be protected. They have to bond and reclaim. The thing that won't get this site cleaned up is doing nothing. Mining or residential will get it cleaned up. Commissioner Luke said that to make an offer to pay so much as you mine it does not establish any value. If there was value, someone would write a check for the property. Commissioner Baney stated that the County has had verbal offers on land, and those offers had no substance. She would like assurances that the intentions are good. Ms. Lewis said the proposal does not say, trust us. It has the conditions and legal requirements that are needed. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 19 of 29 Pages Commissioner Baney said that the 160 acres would need an NFA or equivalent before a building permit is pulled on the other. You could not do this if you were mining. You can't go forward with both. Commissioner Daly stated if the whole area was zoned RR-10 it would eliminate the mining potential. Commissioner Baney said it goes back to the residential, and having to reclaim the entire property. It is not financial feasible to reclaim the entire site without some kind of income. That is the purpose of the split zoning. Commissioner Luke stated that the larger piece could be rezoned separately now with the same requirements on that piece. Ms. Lewis said that the thirty acres are not developable. There will be a deed restriction on that acreage once it is surveyed, indicating that no development will occur. It can't be zoned open space as that affects the open space requirement for the other. They will investigate working with the land trust. Ms. Craghead said that a better description is needed for a decision showing the acreage. Ms. Lewis said that it is between 25 and 30 acres, but is drawn on the map. The map is dated 12/17/08, and is an aerial view of Lower Bridge Road Tract. It is in the record. She said that she looked at her notes from the last hearing. The proposal was presented in original testimony, and it was not submitted in rebuttal at the last hearing. There is nothing new. All of the data is in the record. This has been gone over numerous times. She asked for a decision tonight. They feel certain that it is defensible at LUBA. Greg Daniels said that it is a painful process for everyone and an emotional level that happens because all have a vested interest. He appreciates the fact that this is allowable. The same things he wrote and spoke about on December 17 are still the case. He must stay focused, as does Ms. Lewis. The goal that originally started is to take a problematic piece of real estate to meet the needs of all of the parties. The decision that needs to be rendered is the ability for an economic use, allowing the site to be friendly to all of the people who are affected. Many of the people in the area have spoken, and interests are somewhat common. This solution presents something that works as a compromise. Remember that this is the first step in a process. They request the zone change, the owners agree it is acceptable as presented, and then they can then move to the next level in the process. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 20 of 29 Pages Commissioner Luke asked about the well logs. Ms. Lewis said that this is in the record as Exhibit F. She also said that only one well was tested on the site. This is Exhibit 8. At the bottom of the first page it talks about why that one was selected. It also talks about testing from the spring and why others were selected. The lower well was tested because it taps into the deep water aquifer where residential wells are found. Jeremy Giffin, Deschutes Basin Watermaster, was asked why one well was tested. Mr. Giffin said that it is outside of their jurisdiction when relating to water quality. They look a quantity. Commissioner Baney asked how water testing is done for quality. Ms. Giffin said that this is under the jurisdiction of the DEQ. The applicant has to turn in reports as to water levels when there is a limited license. These are easily revoked, unlike water rights. Commissioner Luke said that one reason they test outside the landfill area is to know what is happening. Engineering determined it was localized by testing around the area. If problems not found in the center of a site, there is not much reason to test others. Mr. Giffin said that there is a general direction where the water travels. Commissioner Luke said that the water runs north and a lot ends up in the river. If testing was done, you would likely look north of the site. Mr. Giffin said that the direction of the water would normally be in that direction. Commissioner Daly said that a well log does not have anything to do with the quality of the water. It shows the strata, the depth and so on. Ms. Giffin confirmed this. Ms. Lewis said the purpose of the well logs was to show the depth and location. Commissioner Luke allowed Ms. Lozito to speak again. She said that you don't test for nitrates when you sell. There is nothing to show that they were tested on the potential hazards in the water. Commissioner Baney said that she thinks everyone is aware that further tested is merited. Commissioner Baney said she is not concerned about the traffic. That will have to be mitigated in some manner and there are enough options out there now. She does not feel that this violates the TPR. There are too many moving parts and she feels that this can be mitigated or the number of trips may not require mitigation. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 21 of 29 Pages Ms. Craghead clarified that this could be the split zone or the entire parcel. Commissioner Baney said worst case scenario is 74 lots in any case. Commissioner Luke said he needs some help with the split zoning regarding testing and voluntary cleanup program. He would like to see a timeframe after final approval or zone change. He has a problem with a specific date, but progress needs to be made. Commissioner Baney asked what happens if the land is sold and the new owner does not comply. It could never be reclaimed. That doesn't help the neighbors or anyone. Commissioner Luke said that nothing will get cleaned up if nothing happens. There has to be some kind of profit. Commissioner Baney stated that they could come in with an application for just the 130 acres and the board would not have any say on the other parcel. She would like to see the land cleaned up and tested, and the dust tested. How this happens may need to take part of it with residences to help pay for this. Leaving it as is isn't viable. Commissioner Daly stated that without some income or value in the 160, there isn't money to do the rest of it. Commissioner Baney added that if the entire acreage was rezoned, the cost of reclaiming the entire site would not be viable. The zone would not be in place. The split zone gives some financial incentive. Commissioner Luke asked if mining can be done on EFU ground. Ms. Lewis stated that there has to be agricultural zones. Commissioner Luke said the 410 could be zoned EFU with an intention to rezone to RR-10, which would take away the mining issue. Ms. Lewis stated that if the 160 was rezoned to RR-10, and the resolution on the 410 was done but nothing was done. Are you trying to prevent mining or get to cleanup. Commissioner Luke said his concern is what is there. Once you know what is there, then you have the ability to find government money to clean it up. If the County took it back, it would never get checked out. Ms. Lewis said that if someone wanted to mine it, they would have to find out. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 22 of 29 Pages Commissioner Baney asked if the 160 could get developed but then the other mined. Ms. Lewis said they have to find out what is there to do that. Property owners have the right to use property if they meet the requirements to use the property. Commissioner Luke asked if customers are blindfolded when they look at property. It seems like disclosures have to be in place. Buyers won't buy if they are concerned about it. Commissioner Baney stated that the property is not zoned for residential. It was not meant for residential. You would normally not put residences there. Commissioner Luke stated that a lot of people live next to mining sites. Commissioner Baney said that some people might think it is okay. Ms. Craghead said that it would not be counted towards open space until then. They won't get enough homes built without it. Commissioner Luke asked what she would like them to do with the 410 acres. Commissioner Baney would like to know that something will happen within five years. Commissioner Luke said it has not been mined for over forty years. This is an opportunity to get something done. If the 160 is rezoned and some requirements are there, you are a lot further ahead than not doing anything. Commissioner Baney is concerned about the site being mined again. Commissioner Luke stated that the work to be done on the 410 acres will take some time. You could rezone the whole thing and let them do the 160 first. They could start with a new application, have the whole thing zoned RR-10 and come in for the 160. There would be no guarantee what would be done with the 410 acres. Ms. Lewis said they'd prefer the whole thing be rezoned to RR-10 but need the residential zoning to do the testing, the NFA and DHS. It could be a single condition. Ms. Craghead said the rezone of the entire site could require the NFA and DHS. But they need the 160 to offset the cost associated with the 410. At this time the group took another five minute break. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 23 of 29 Pages Tia Lewis said that regarding conditions and tying in testing the 410 acres to the 160 acres, they will agree to complete the testing within a year of the resolution being adopted. This could happen after any appeals in the meantime. They would like to have that year subject to a year's extension, per County Code in case there are things outside of their control. They'd like to stay with the original conditions for the 160 acres. Ms. Craghead said that there would be no resolution of intent to rezone but could be different conditions. The conditions for the 160 acres would be tied to building permits and testing the 410 acres. The 30 acres would need to be deed restricted and the Goal 5 historical marker designation included. On the 410 acres, the other conditions would be a rezone with five conditions. It would take away the mining zone. It would be a rezone of the entire property with different conditions. Ms. Lewis said they will deed restrict the 30 acres on the west side for no development. With regard to the proposal, the conditions they can accept involve the DEQ NFA letter, the deed restrictions on 30 acres, the historical resource, and environmental testing on the 410 acres within a year. They want to stick with the resolution to rezone as they don't have the same options. If the resolution expires and the economics don't justify the cost of using the property, the residential use won't be feasible. Commissioner Luke said that if for some reason the 410 acres won't go into residential but they don't want to mine, they would have to do a zone change anyway. It doesn't matter if it is zoned mining or RR-10, unless they go back to surface mining. Commissioner Baney said that it would not exclude this from happening. To mine that type of resource next to residential use is not acceptable. It does not protect the area from further mining without some sort of revegetation. Ms. Lewis said if it he mining meets all applicable legal requirements, they have the right to do it. The regulatory agencies will enforce regulations. The County cannot plan for every potential concern, nor does it have the enforcement power to do it. If they meet all requirements, there is nothing the County can do to stop that. The regulatory authorities have all the power in this situation. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 24 of 29 Pages Commissioner Luke said that there would not be blowing dust then. But the new residents have to acknowledge the site. Commissioner Baney stated that it could be pay as they go and have it pecked away at for years. This is not in the public interest. The application said there is no resource there and it was to be moved into residential use. She is now hearing that the applicant may want to mine it if that is more economical. Ms. Lewis said they want it to simply revert back to the existing zone if it is not feasible to use it differently. The original application was for all of it to be rezoned with no conditions if they are tied to things outside of the County's authority. Ms. Craghead said the only thing the County can hang its hat on is in the public interest. Ms. Lewis said that does not give them the ability to meet the conditions. Commissioner Luke asked if there are different conditions on the 160 acres and the 410 acres. Ms. Craghead stated that the resolution would expire and they would be able to do surface mining if they meet regulatory requirements. Commissioner Daly said if it was used for mining in the future, it would get cleaned up and there would be controls in place. Commissioner Baney stated that they were originally told that the resource is gone. Ms. Lewis stated that this site is an aggregate resource site. The County has the ability to designate minerals as a resource. The ESEE analysis said the only resource studied and quantified was aggregate. It was listed only because D.E. present but was not considered a resource. The ESEE analysis is in the record as Exhibit 6. Commissioner Baney is concerned about the surface mining potential, but feels that it is unlikely to be economically feasible. However, someone is willing to present an application for the entire property is a gift. They don't have to do this. The options are to do nothing; to rezone the whole thing RR-10 with requirements that would not allow anything until the testing is zone; or the other option is a split zoning that allows them to move forward with the testing process but can still build on part of it. Commissioner Baney said they will have to test the dust off the 410 acres as well. Commissioner Luke said he would want to know what is there; if it is bad enough, there could be superfund money to help clean it up. Ms. Lewis said they will commit to that within a year. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 25 of 29 Pages Commissioner Baney asked how the 160 acres would be defined if there is a historical site to consider. Commissioner Luke stated the historic site would be evaluated and could still be protected. It is now in a mining zone so it makes no difference. Ms. Lewis said they could still count it towards their acreage. They have to have 60% open space if they put in a cluster development. Mr. Groves stated that another condition is a conservation easement needed along the river for public access and to have the area remain the same. Commissioner Daly said that the third choice sounds reasonable. Ms. Lewis said it would grant a RR-10 zoning on the 160-acre parcel, conditioned upon prior to final plat or building permit approval, whichever is earlier, and the application to obtain an NFA or equivalent on the 160 acres. Within one year of the resolution, testing would be completed on the 410 acre site. The date would be from the date of finalization of any appeal time. There would be an agreement to abide by Goal 5 and protect the resource, and grant the conservation easement, and a deed restriction on the 30 acres. Wil Groves asked what would happen if testing is not done within a year. Ms. Craghead said there would be no tentative plan or building permit issued before then. Ms. Lewis stated that they would like this to be subject to the one-year requirement per Code. Mr. Groves said that the DEQ does not regulate all hazards. Ms. Lewis said she thought that DEQ regulates the airborne, and DHS regulates what is on the ground. Commissioner Luke stated that perhaps it would be possible to find out if DHS is a regulator. Mr. Groves said the DHS is advisory, not a regulator. What is needed is an NFA from the DEQ and a no apparent hazard document from DHS. Ms. Lewis said that DHS depends on DEQ for regulatory authority. They could request from DEQ the NFA or equivalent, working in conjunction with DHS. All that would be needed is a letter from the DEQ. Mr. Groves said that the applicant would have to sit down with DHS and ask them what testing would be necessary. The agencies would evaluate it and issue letters accordingly. Both agencies have stated that they will cooperate. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 26 of 29 Pages Regarding the 410 acres, under the resolution of intent to rezone, Ms. Lewis stated that within five years or prior to subdivision approval, an NFA determination or equivalent will be obtained from the DEQ for residential use. Reclamation would be handled through County approval of the 18 acres through a modified reclamation plan, processed as a land use approval. Commissioner Luke asked about the previous reclamation plan. Ms. Craghead said that this would complete it, consistent with the modification process. Ms. Lewis said the only thing that wasn't done was the spreading of the twelve inches of topsoil, which is what they would do. Ms. Craghead stated there is the ability to reclaim it in this fashion. As long as it is conditioned on the rezone, it will get done. This should be legally defensible. Commissioner Baney asked if they were out of compliance for the original reclamation. Commissioner Luke said that the regulatory agencies have control over this; the County cannot require it. Mr. Groves said there could be a Code enforcement taken at that time. Otherwise it would remain the same. Ms. Lewis said the application to modify it could be taken out in a year. It will take soil, plants and water to get this done. The reason the five years is needed is not to reclaim the site just to tear it up for the DEQ process. The reclamation should be done after the DEQ process has been done. There could be other requirements. This is a public process as well. She said that reclamation is only filling the holes to make it look like it used to, nothing more. They will apply for whatever is needed on this property right away. It was used mostly for aggregate and not D.E. Dust abatement would be done in conjunction with DEQ requirements. Commissioner Luke said the water permit is just for 18 months. Dust abatement can only be guaranteed for that period of time. Ms. Lewis said the watering is to establish the vegetation. The plan is to plant native vegetation. The pivot would be moved around as needed. There are 300 or so acres that need to be addressed. The planting and watering plan does not require the pivot to be in one location. They also have the right to ask for an extension. Commissioner Baney asked if they lose the water permit, what would happen. Ms. Lewis said they would lose their approval and could not file for building permits. The dust abatement applies to the entire 410 acres. The expiration date would be five years from the date of approval. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 27 of 29 Pages Commissioner Luke said this is a difficult site and the Board appreciates all the input. It is not easy to clean up a site like this. However, he feels this is the best shot to find out what is there and to clean up the site. The County has no authority to find out what is on the property so this is the best that can be done. There will be more public process in the future. Counsel for the applicant will draft the findings for County Counsel to review. This will then come before the Board. The applicant will defend any appeals. DALY: Move approval of the proposal as discussed, in concept. BANEY: Second. VOTE: BANEY: Yes. DALY: Yes. LUKE: Chair vote yes. Ms. Lewis asked if they could have County assistance in the defense of appeals if it relates to a Board decision. Commissioner Luke agreed. Commissioner Luke closed the hearing at this time. When the decision is written it will be posted to the website, but there will be no opportunity to comment on it at that time. Mr. Grillo said that he feels they should have a date certain for the written decision. Ms. Craghead said the decision would be a staff proposal, not from the applicant. Commissioner Daly said that Commissioner-elect Unger has been in the audience all evening and should be able to make the final decision. Being no further discussion, Chair Luke adjourned the meeting at 9:25 p.m. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 28 of 29 Pages DATED this 29th Day of December 2008 for the Deschutes County Board of Commissioners. ATTEST: q4WA4-IL 514LA,- Recording Secretary Attachments Exhibit A: Testimony Cards De is R. Luke, Chair Tammy Baney, Vice C161 , /vr i ael M. Daly, Co missioner Exhibit B: Testimony: written and a-mails up to and including this hearing Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Monday, December 29, 2008 Page 29 of 29 Pages r.' ~ BOARD OF COMMISSIONERS7MEETING REQUEST TO SPEAK Agenda Item of Interest: Lower Bridge Mine Rezone Appeal Date: 12/29/08 a ~ Name (-7( Submitting written documents as part of testimony? ❑ Yes ❑ No wG~ r ° { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Lower Bride Mine R ezone Appeal Date: 12/29/08 Name <Ed 3 Ve ar-A Address 88-z5; W 3 - ir-'!'V re Phone #s " 8- B cA q E-mail address e a e; 0 w eb rh; Cy W_\ ❑ In Favor - ❑ Neutral/Undecided d Opposed Submitting written documents as part of testimony? ❑ yes ❑ No { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Lower Bridge Mine Rezone Appeal Date: 12/29/08 Name (CZ/`^~_ Lj ail Address (H d Phone #s 91/ f3?Yla.2 E-mail address F] In Favor Neutral/Undecided la-Opposed Submitting written documents as part of testimony? ^2"Yes r-] No o` `a BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Lower Bridge Mine Rezone Appeal Date: 12/29/08 Name .tj Address Phone #s E-mail address F] In Favor Nd Neutral/Undecided Ix Opposed Submitting written cements as part of testimony? Yes F] No v . f IL, 6 BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Lower Bridge Mine Rezone Appeal Date: 12/29/08 Name Address 11 S~-J j?L, Phone #s E-mail address ❑ In Favor F-1 Neutral/Undecided F~ Opposed Submitting written documents as part of testimony? D /Yes ❑ No ' ~11 - BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Lower Bridge Mine Rezone Appeal Date: 12/29/08 Name I C~ ~c-J cS 0 Address Phone #s E-mail address 4 ~ In Favor F] Neutral/Undecided F~ Opposed Submitting written documents as part of testimony? FlYes F-] No ~J-res o { 07 { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Lower Bridge Mine Rezone Appeal Date: 12/29/08 Name 0 6'116yf}4 /~?//f~~ S Address f/~O p, vsk L-V Phone #s q/ T_ 36 y- 6 E-mail address 1-1 In Favor ❑ Neutral/Undecided Submitting written documents as part of testimony? F]Yes pposed U 1"" BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Lower Bridge Mine Rezone Appeal Date: 12/29/08 Name Address a r- Lc- ,44-1 Phone #s ~~~-2~ ~I~ V YJ F E-mail address C4.,~A C~ L+, (-Q l~4?it~D F In Favor F] Neutral/Undecided Submitting written documents as partof testimony? lu Yes r ~Opposed No MILLERNASH-, ATTORNEYS AT LAW Phillip E. Grillo phil.grillo@millernash.com (503) 205-2311 direct line PORTLAND, OREGON SEATTLE, WASHINGTON VANCOUVER, WASHINGTON CENTRAL OREGON WWW.MILLERNASH.COM December 29, 2oo8 Deschutes Board of Commissioners 117 NW Lafayette Avenue Bend, Oregon 97701 3400 US Bancorp Tower ill SW Fifth Avenue Portland, Oregon 97204-3699 OFFICE 503-224-5858 FAX 503-224-0155 Subject: ZC-o8-1, PA-o8-1 (The Daniels Group - Lower Bridge Mine) Dear Commissioners: Immediately after the hearing on December 17, 20o8, I learned some very disturbing information that has caused me to change my perspective on this rezoning application. I learned that over the last several weeks, at least one of the owners of the site was negotiating with a third party to resume mining activity on the property. After learning that information, I called Will Groves the next morning on December 18 and expressed my feelings and concerns to him. Will confirmed what I had heard, and indicated that he had a conversation with the third party involved. Will's summary of is attached to my letter. The following day, December 19, I had a second conversation with Will Groves. Assistant County Counsel Laurie Craighead also participated in that call. The purpose of my call to them was to discuss this new fact and it's implication in this case. As I mentioned to Will and Laurie, my biggest concern in that the owners were trying to have their cake and eat it too, so to speak. Specifically, the owners came forward with a last minute change to convert part of the site to residential (RR-lo) zoning, so they could keep the rest in surface mining overlay, pending a resolution of intent to rezone. In my view, this new tactic demonstrates bad faith on the part of the owners. It is also a material misrepresentation of a fact that is critical in your decision-making process. Overall, it implicates the owner's credibility. The owners should be called upon to explain themselves to the Board and the neighborhood. Moreover from a personal stand point, I would not have recommended that you consider a resolution of intent to rezone the property, if I knew that the owners were in the process of negotiating a deal to resume mining on a portion of the site. The whole reason I have been working cooperatively with the applicant and ownership group is because I thought we shared a common goal to immediately clean up this site and convert it to residential and open PDXDOCS:1801596.1 H MILLER NASH- ATTORNEYS AT LAW PORTLAND, OREGON SEATTLE, WASHINGTON VANCOUVER, WASHINGTON CENTRAL OREGON WWW.MILLERNASH.COM Deschutes Board of Commissioners December 29, 2oo8 Page 2 space use. I now see that the owners are prepared to work both sides of this deal to maximize their profit, regardless of the impact on the neighborhood. In short, whatever trust I had in the owners is now gone. Given this unfortunate turn of events, the question remains: What should the Board do to resolve this case? 1. Slow Down First and foremost, I think we need to slow down. The new information mentioned above is troubling and adds a significant factual and legal question to an already complicated case. At this point, I don't know how to resolve the issue of whether the site still has valuable mineral and aggregate resources. The applicant says it doesn't and I tend to agree with them. Regardless of that fact, I am strongly opposed to the resumption of any mining or mine-related activities on this site, and I'm sure that most of my neighbors are too. As you will recall, the entire purpose of this zone change application was to facilitate the change from mining and continued environmental degradation, to low density rural housing and open space uses that would be more consistent with the surrounding area. That is precisely why I was initially supportive of the rezoning. But now that I see that the owners are trying to work both ends of this deal, so I think we need to slow down to ensure that there is no possibility that this site returns to mining or mine related uses and that clean up occurs. Otherwise we will have an even bigger environmental problem on our hands. 2. Given the New Information, Be Cautious with Split Zoning. The applicant's last- minute proposal to rezone 13o acres east of Lower Bridge Rd. and 3o acres west of Lower Bridge Rd, along the northern edge of the property, needs to be carefully examined before any action is taken. I am opposed to rezoning the 3o acre area west of Lower Bridge Rd, along the river. This area is inappropriate for housing, and very little is currently in the record about this portion of the site. As I understand it, a portion of land owned by Borden Beck Park is located in that area, as is a historic wagon road, owned by the county. If the idea is to use that 3o acres for purposes of possible density transfer to the other 13o acres east of Lower Bridge, then I'm sure we could identify some other 3o acres area adjacent to the 13o acres, that could be rezoned for such purposes. - 3. If You Decide to Split Zone, apply Open Space Zoning West of Lower Bridge. If you are inclined to make a decision today, I would recommend that you rezone the 13o acres east of Lower Bridge to RR-1o, and place whatever conditions on that rezoning that you see fit. Second, I would recommend that in return for rezoning the 13o acres east of Lower Bridge to RR-1o, that you rezone the rest of the site west of Lower Bridge Road to Open Space. Unless or until the owners can demonstrate that it is safe to locate homes PDXDOCS:1801596.1 H MILLER NASH-, ATTORNEYS AT LAW PORTLAND, OREGON SEATTLE, WASHINGTON VANCOUVER, WASHINGTON CENTRAL OREGON WWW.MILLERNASH.COM Deschutes Board of Commissioners December 29, 2oo8 Page 3 throughout that entire portion of the site, it should not be rezoned to residential use. Furthermore, and just as importantly, the site should not be returned to mining or mine-related use. Open Space zoning accomplishes both of these purposes. If the owners can later demonstrate that the entire site can be safely used for residential use, then and only then should the county consider rezoning it to RR-io. It is also appropriate to require that the reclamation plan required by a prior land use decision be immediately implemented on the 18 acres west of Lower Bridge. In order to do that, it may be necessary to retain the Mining Overlay to accomplish that purpose, and use a resolution of intent to rezone that portion of the site, so that the resulting zoning becomes Open Space, once the reclamation plan is completed. In conclusion, I am very troubled by the owners attempt to resume mining on a portion of this site, at the same time that the applicant and all the owners were requesting rezoning of the site to residential use. I am particularly troubled by the last-minute change in plans to propose split zoning, that would have allowed RR-1o on a portion of the site that seems to be the cleanest, while consenting to a resolution of intent to rezone the remainder. Under their current proposal, it would be easy for the owners to simply profit from the rezone, not invest in any further clean up on the remainder of the site, and allow the resolution of intent to expire. Since the remainder of the site would still be subject to the Surface Mining zone, mining activity could be resumed. This would be the worst possible result for surrounding property owners and for the county generally. Please take whatever time is necessary to make a well- reasoned and thoughtful decision. Thank you for your continued efforts in this complex case. Very truly yours, Phillip E Grillo PDXDOCS:1801596.1 From: "William Groves" <William_Groves@co.deschutes.or.us> Subject: FW: Lower Bridge - Phone notes Date: December 19,. 2008 2:20:43 PM PST To: "William Groves" <William_Groves@co.deschutes.or.us> All, Included below is a summary of a call I had with Rick Kluser of Green Earth Minerals. It raises questions about the viability of continued mining at the site and the potential for residential development on the subject property east of Lower Bridge Way while continuing mining west of Lower Bridge Way. Will Groves Senior Planner Deschutes County Community Development Department (541) 388-6518 Phone Notes - Call 12/19/08 Will Groves - Deschutes County Planning Rick Kluser - Green Earth Minerals (GEM) (541) 475-7422 (not on call) GEM Partner - Edwin Durand (775) 345-0141 Green Earth Minerals (GEM) is a company that mines Diatomaceous earth. The company presently owns a 4,800 acre diatomite deposit north of Reno, Nevada. GEM became interested in the Lower Bridge mine site, as this source of Diatomaceous earth requires less processing then their current deposit. GEM has been in contact with the owners of the Lower Bridge mine site for over two years. The present mine owners characterized to Mr. Kluser that the mine site presently contains approximately 1.4 million tones of Diatomaceous earth and 400,000 tones of aggregate. GEM sent a proposal to Frank Nolan approximately 6 weeks ago to acquire the property for mining. This proposal involved payment by the ton for Diatomaceous earth mined by GEM until the acquisition cost of the property reached. GEM would manage mining operations and dust control. This proposal was verbally accepted approximately 2 weeks ago. Frank Nolan said he would draft an acceptance letter. When an acceptance letter did not arrive, Mr. Kluser contacted Mr. Nolan earlier this week. Mr. Nolan changed the offer. GEM could purchase the land west of Lower Bridge Way for mining and the landowners would retain the land east of Lower Bridge Way for residential development. GEM, however, was not interested in mining immediately adjacent to new residential uses, and rescinded their purchase offer.