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2009-1353-Minutes for Meeting December 27,2008 Recorded 6/30/2009
DESCHUTES COUNTY OFFICIAL RECORDS Q 200901353 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 06/3012009 04;46;34 PM II Ijij!lIIill 1111111111111111 Z 1 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.org MINUTES OF PUBLIC HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, DECEMBER 17, 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 and Peter Russell, Community Development Department; Laurie Craghead, Legal Counsel; Hillary Borrud of The Bulletin and other representatives of the media and approximately twenty other citizens. The following attended via conference call for a brief period: David Spear, David Anderson and Sheila Monroe of the Oregon Department of Environmental Quality; and Ben Mundy, Oregon State Department of Geology. 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 original hearing was held on December 3, 2008. The applicant is the Daniels Group; the property is located near Lower Bridge Way. Chair Luke opened the meeting at 4:00 p.m., at which time Will Groves began reading the opening statement regarding the hearing. (A copy is attached as Exhibit A.) Will Groves said that there was a conference call with various agencies last Thursday. They have provided written comments. There as a work session on Monday with the Commissioners to go over that information. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 1 of 27 Pages Commissioner Daly said he did a site visit last week, with a representative of the Daniels Group. (He referred to an oversized map, indicating where he visited.) One thing he noticed was that there has been a tremendous amount of work on the site. It has not been leveled, but they have knocked off some of the sharp edges and big hills, so the pivot line in the center can irrigate the area. He was surprised to learn that four little squares in the eastern portion of the site are where the ponds where hazardous material was deposited and cleaned up. The four ponds are still there and have not been covered up, so these sites are available to check out. He verified that an area has been reclaimed, soil deposited and there are no holes where the mining took place. Across the highway, on the other side of Lower Bridge Road, there was also a mine site at one time. There is no apparent large D.E. site there. It has been leveled off and cleaned up and is in pretty good shape, but there is no irrigation happening there. Commissioner Baney stated she drove out to get an idea of proximity, but did not go on the land. Commissioner Daly said that the site where the barrels were supposedly found is on the other side of the property, away from the river. Commissioner Luke stated that he has not toured the site. Laurie Craghead said that notes from the Monday work session are available but have not yet been approved by the Board. The minutes are not finalized and the Board has yet to approve them. These have been submitted into the record as-is. Mr. Groves said that Commissioner Baney had asked that some of the state partners be present at this meeting. They are attending via conference call. Their comments have also been submitted in writing. They do not have specific testimony to present but are available for questions. Commissioner Baney stated that she would like to go through the questions and have them respond so that the audience can hear the responses. Kyle Gorman came before the Board, regional manager of the Water Resources Department. Commissioner Baney said the Planning Department put together various questions for the agencies to address. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 2 of 27 Pages Commissioner Baney asked what this agency does in relationship to the site. Sheila Monroe, the Manager of the Eastern Region handling cleanup programs for the DEQ, said they monitor cleanup programs at the site, notify the property mangers when complaints are received; and handles visible emissions. None are known at this time. They do not have enforcement capabilities. Water quality would be regulated through permit #1200C regarding construction activities. This requires a land use compatibility permit from Deschutes county regarding erosion and settlement requirements. Ben Monday, the State Department of Geology, said his department has been involved at the site since the early 1970's when the mine was active. They issued several certificates. The vast majority of site is exempt, as it was mined prior to 1972. Approximately 70 acres east of Lower Bridge Road is covered under an operational permit and reclamation rules. Reclamation security was submitted to ensure it is completed; and it was completed in 2006. In consultation with EPA and the County and the landowner, it was agreed that just the areas east of Lower Bridge Road that was impacted by surface mining had been reclaimed. It was deemed stable, the permit was closed and the reclamation security was released. Until future mining occurs at this site, the Department of Geology has no further jurisdiction. Commissioner Luke stated that he realizes that DOGAMI has no jurisdiction, but Deschutes County does not have expertise on the rest of the site. He asked if DOGAMI can contract with local governments to provide services or expertise when needed. Mr. Monday said they do not contract out their services, but can coordinate work with other agencies. If there are still questions after the meeting concludes, or if a meeting on site is needed, someone from DOGAMI can be there to answer questions. They can't advise beyond simply what has been done on the site in the past, if it involves the reclamation of that site. Commissioner Baney asked if reclamation of the small portion falls under DOGAMI jurisdiction. Mr. Monday said it did. Commissioner Luke asked if the County was involved in the other area, would the agency be available to walk the site and make recommendations; and whether those recommendations would be binding or just advisory. Mr. Monday replied that based on their experience at the site, if there is work that needs to be done on the west side of Lower Bridge Road where the D.E. mine was operated, they could advise what DOGAMI would have required if it had been part of the reclamation plan. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 3 of 27 Pages David Fair with the Oregon Public Health Division said that through their environmental health assessment program, they released a public statement on the impacts of mining activities. The comment period ended, they are incorporating the comments and will release the document in early 2009. The bulk of the report was based on current uses and conditions, but it contains some recommendations should the property change to residential use. If land use conditions change, the program is still available to conduct additional assessments. Their role at this site is advisory only and not regulatory. Commissioner Luke noted that if a zone change is approved, a map of some type must come in. Staff has said that the Health Division could advise whether the ground is safe for human habitation. Mr. Fair replied that this is true, but additional sampling data would be needed. If it is rezoned, the DEQ would perhaps reevaluate with additional sampling. This information could then be used to make a public health determination. Will Groves said that the timing of the sampling is the important issue relating to at what point do conditions requiring agency approval come into play, such as a letter of NFA on the site or no apparent health hazard; and whether the County could require those letters. Ultimately this might occur before permits are issued. Commissioner Luke observed that if they no longer mine the site and it is determined that there is no more mining material, the owner may have a right under State law to get another zone in place. Mr. Groves stated that once the mineral resources are depleted and reclamation has occurred, they are obligated to rezone the property. Commissioner Luke asked if the property were rezoned residential, but the DEQ or DHS say that some of the site is not suitable for human habitation, how would the property be rezoned for something else. He asked if it is better to know what is there before rezoning. Laurie Craghead stated that is would be best to hear testimony and see what comes up. Commissioner Baney asked if there is a public health hazard due to dust and movement from breaking the crust of the land, why wait to do extra soil sampling. Commissioner Luke replied that the County may not have the authority to require this. Mr. Fair said that this is indeterminate; there is not enough information to know whether the dust is a hazard. Recommendations could include additional air monitoring, but this cannot be required. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 4 of 27 Pages Ms. Monroe of the DEQ stated that there is no regulatory authority to do the kind of dust monitoring that the Health Division would need to make a decision. It is more likely that the property owner would be asked to do that type of work. They don't have the authority to require it. They would have to contact a private contractor. There is no responsibility on the owners' part to make that information public. It would be sent to a private laboratory, not to the State. Commissioner Daly asked if there is some monitoring done to allow the DEQ or Health Division to make a determination, who would set out the guidelines of what needs to be done and how. Mr. Fair replied that his department would be the one to review the monitoring plan, but they would ask for help from the DEQ on air quality techniques. Ultimately it would be the Department of Human Services that would give the final go-ahead. Ms. Monroe added that if the property were rezoned, they would consult with the Health Division to review the data. Commissioner Daly asked whether there would be core drilling or monitoring of air samples when it is dusty; and what would be required. Ms. Monroe stated that the Health Division is talking about air monitoring, and it being an indeterminate risk. She doesn't think the DEQ has speculated on this. They would evaluate existing data to identify possible data gaps for residential use. This could be done through surface soil collection, water samples or core samples, but all of this is speculation. Commissioner Daly asked if the DEA and Health Division have concerns about the ponds and hazardous water in the past. Ms. Monroe stated that there was a no further action letter released in 1985, but that was in regard to an industrial scenario. They could reevaluate if residential is considered. They would start by looking at existing data, and look for additional information if there are gaps. Commissioner Daly said that this hinges around a rezone, so which would come first. Ms. Monroe said that they could approach it either way. If it were rezoned, the DEQ still would be around to make sure that residential is appropriate. Or a no further action determination could be required prior to rezoning. Mr. Fair added that input from the Health Division could be a condition of a rezone or of putting in residences. Commissioner Baney asked if the Water Agency has any concerns. Kyle Gorman of the Water Resources Division said that his agency is one that would permit or regulate water use on the land and well construction. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 5 of 27 Pages There are no water rights on the property, but they do have a time limited water use authorization, a license issued last spring that is good through April 9, 2013. The water is to be used for dust abatement and establishing vegetation. It is not appurtenant to the property so it can be moved around. The limitation is 550 gallons per minute. There have been no water concerns or complaints regarding this site. They do not monitor water quality there and have no reports of problems. This is handled through the DEQ. Commissioner Baney asked if there has been water testing done in that area. David Anderson of the Bend Office of the DEQ said that sampling was done out of an existing irrigation well that runs the pivot, as well as existing springs. This was done by Newton on behalf of the developer. Organic and inorganic substances were analyzed. This is part of the record of the rezone application. It is a deep well, below the level of the river. Nothing hazardous was found. Commissioner Baney asked if the site is presently safe and suitable for residential use. Mr. Fair replied that they don't know. There is not enough data available to answer that question. Ms. Monroe added that it was not evaluated for residential use; it was determined safe for industrial use. Commissioner Luke observed that part of the challenge of this site is that it has been there for so long, before laws were in place. A member of the audience asked whether the DEQ is supposed to monitor air quality in an airborne testing method, mandated by the EPA. Ms. Monroe replied that there is no EPA mandate at this site. Generally the DEQ does monitor air quality, but this does not necessarily fall into its authority. This site is not covered by a regulatory authority because it is not an airshed monitored area and not from a source. At this time the callers left the meeting, being no further questions or comments offered. Ms. Craghead said items researched included case law on the worst case scenario for transportation planning rule, but nothing helpful was found in this regard. If the Board chose to interpret this, it would be hard to know what worst case scenario is appropriate, either that of ODOT or the applicant or something in between. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 6 of 27 Pages Another issue was whether an ESEE analysis should be done. Nothing was found requiring it. Code does require it if you go from another zone to surface mining; not the other way around. There is nothing in State statute addressing this. Zone changes must be consistent with the comprehensive plan, and there is nothing in the comprehensive plan requiring this. Tia Lewis and Greg Daniels, for the applicants, came before the Board. Ms. Lewis added, based on the written submissions from the agencies and their testimony tonight, and comments made at the work session, that they would address only these issues. The testimony is consistent with the information provided by the agencies over the past two years. There is an extensive e-mail record of agency responses and requirements. From the DEQ perspective, residential zoning will trigger a review and a possible voluntary cleanup program. They talked with the DEQ about it and submitted information on the program into the record. They are working with the DEQ on this and the result would be an NFA letter for residential use. As the DEQ indicated, it is a low environmental priority for them. No funding is available to them for this. This site falls between the cracks for funding and regulation. This is consistent with information received from them. Reevaluation would be enforced through the DEQ. Zoning triggers evaluation. DOGAMI information is consistent as well; they have no authority over the site unless it is reopened to mining. The Hearings Officer had all of this information. There are extensive reports in the record. Wells and springs on the site were tested, radiation testing was done, and soils analysis was also done. The agency process is the property authority. She did that with all of this evidence. The Hearings Officer is well qualified to analyze these legal issues, as she is a former LUBA referee. Her analysis is thorough and defensible. Ms. Lewis said that the idea of residences without some certification is something the owner can engage in. They have investigated the voluntary cleanup program. This is the best way to certify to buyers that the site is okay. They don't want to subject themselves to problems later. There is a certain process by which this can occur. Reality says, how are you going to fund this. Loans don't come easily. Residential zoning will get to an appraised value. Since the last hearing, they have analyzed the costs and came up with something that could work. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 7 of 27 Pages Commissioner Luke asked at what point do they look at whether the ground is suitable for human habitation. What if it isn't? Would there be a massive cleanup or a different zone? Ms. Lewis replied that is the question of the day, and they have something they think might work. Mr. Daniels said the most important point is how to deal with the zone change request. It has been almost three years since this work began, and cost a lot of money. This is important only in relationship to where it goes from here. The process is a key ingredient. He appreciates the process, as it is focused on the right things. The owner and the team is also focused on the right things and have the same concerns. The site is not ready for people, at least portions of the site. The process is most appropriate to get to the point where the land can be useable and create a benefit for the neighbors. Economic reality has to set in; before spending more time, energy or money, there have to be economic reasons to do it. It was determined that a zone that would do this is necessary. In order to get there, they need to be able to capitalize the cost. This takes value, which means it has to be zoned properly. This process moves on to the other problems at hand. There is no golden goose to fund this. No super fund, state, county or federal assistance is available to help. Not only does no one have clear responsibility over the future of the site, no one has the money to deal with it. It takes a zone change to do anything, and it is at the tipping point now. They have invested $500,000 to date on the project. In order to move ahead, with economic reality, a zone change will start to make sense, and then they can deal with the issues and questions. They would like a decision soon. The neighbors need one, too. A community could improve the neighborhood. Commissioner Baney asked whether a lender would want an NFA or something on the land to be able to fund it. They will want to make sure it is reclaimed or can be used. Mr. Daniels replied that in order to get the project approved and funded, that is what needs to be done. They need to know what they can do. They feel they will need to spend money for research on the voluntary programs. They don't think there are any problems there, but they have to answer to a higher power, the funders and the end users. They need the zone change first. That's the chicken and egg of it. They need to know the zone is possible. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 8 of 27 Pages Commissioner Luke said that most state agencies don't have jurisdiction. Usually the last ones to oversee something that goes bad gets blamed. He take this responsibility seriously. He assumes that plants won't grow in the white stuff. Mr. Daniels replied that they actually do; Commissioner Daly saw it. Commissioner Luke stated that part of the cost would be brining in soil. He asked what is below it. The pivots are partly over the D.E., and consequently things grow there. He would not have spent the money he did if he knew this was not possible. The natural habitat is growing in D.E. as well. It has not blown much since the pivots were put in. Regarding the comment about holding the bag, he doesn't disagree. With the facts presented, it is the perfect time to resolve the problem and work with the owners and the community to do the right thing with the property. Ms. Lewis said that where they find themselves now, there are a couple of options. Denying the zone change because it is not ready for residential use does not get the site cleaned up. A resolution of intent to rezone with requirements, based on economics and financing, still does not get the site cleaned up. And there could be conditions on the issuance of permits based on approvals from the DHS and other agencies. Commissioner Luke stated that they could put in roads and utilities. If all of that is done and the test is not good, it is a piece of land with improvements. Ms. Lewis observed that would not make much sense. They have to have financing for the cleanup. Another option is to compromise, along the lines of what Mr. Barillo presented. This would be a phased approach which tries to address the realities of how to finance the project and address other concerns about the property. It turns out that this requires a cleanup, they can't get another zone. The same thing may happen with the County-owned land in Redmond. Cleanup can be complicated. (She referred to maps at this time.) Under a resolution of intent to rezone, the County could secure the NFA letter from the DEQ and other conditions. That would allow the rezone on the portion east of Lower Bridge, where there is no D.E. mine and no hazardous material. This is 130 acres with 30 acres along the river corridor. This would protect the river corridor and add open space to the open space requirement. This would be for a total of 160 acres, with the resolution to apply to the other. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 9 of 27 Pages Commissioner Luke noted this would be like a land trust along the river. Ms. Lewis said it would be the area below the rim and the setback area, which would be deed restricted. This would help to add to the density calculations and open space area. Ms. Lewis said if the east side is rezoned, all is certified there. They would still have to deal with the rest. There are three lots of record now. This proposal would allow them to finance. This helps with the realities of equity values to get it to appraise for funding. Blowing dust would come onto this property, so the intent is to not leave the rest untouched. They have proven that they don't intend to do that. A substantial investment has already been made there. The piece of land to the east of Lower Bridge is 130 acres, and the maximum worst case is 7.5, with a maximum of 20 lots. Without a cluster development it would be 16 lots. Ms. Craghead said that she assumes they would partition off the other part to use it. Ms. Lewis replied that it is contiguous, so they could put trails through there. There are 160 acres with 30 they would not use. The maximum number would be the cluster development. There is no application or development plan yet. This would allow for it to appraise so they could get funds to work on the property. They have worked hard to come up with something that can meet the financial objectives. This still protects the County's interests. Commissioner Baney stated that they could easily walk away from this. She believes that they are not in this to lose money. She asked what conditions, given that the County is concerned about certain things and need to consider the intent, are needed to make sure that the other portion of the property would be addressed in a proper manner. It is a creative option. Ms. Lewis said that they can vet this a little more. The three conditions were discussed earlier. One would be the NFA letter from the DEQ for residential use. This could require voluntary cleanup. The second one could be implementation of planting and watering. These could be imposed. The third could be monitoring by the DHS in conjunction with the DEQ. These three were suggested as the most important. These are not things they are trying to avoid on the whole site. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 10 of 27 Pages Commissioner Luke said they are asking for a zone change now for the 160 acres, with an intent to rezone the rest with those conditions. If they didn't meet the conditions on the 160 acres, would they still do the rest. Commissioner Baney said that the developer is not naive enough to think that this would not stop sales. It is an issue of balance. Maybe a timeline is needed. Maybe if the timelines are not met, there would be some kind of fine imposed. They will need to get creative if they go this direction. They need to know that something will happen within a specified time and manner, not just when the economy is better or whatever. Ms. Lewis said a timeline is associated with it; she believes it is two years. They may not be able to accomplish all of this in two years. Much depends on what the studies recommend. Commissioner Daly asked that if there was a rezone of the 160 acres now, with a resolution to rezone the rest, would they start the process with the DEQ and DHS on what they recommend, and whether it would be for both sides. Ms. Lewis replied that they would probably take the entire site through the VCB program, but the work is needed the most on the larger piece. The DEQ NFA letter would require a reevaluation of the whole thing. The studies could be financed through the 160 rezone. Ms. Craghead said that the east and west side have the same conditions, with one intense and one not. If it is rezoned on the conditions of the NFA, would this prevent the financing. Ms. Lewis said that this would give the development a loan and financing for the DEQ studies. Construction would require the NFA letter. Again, the whole east side has been signed off by DOGAMI. The DHS and DEQ have not found a problem, but would require a certificate before building. Conditions related to building permits would not be a problem. But first the zoning needs to be in placed. Commissioner Luke said that it is all fill, and asked how they would put in drainfields. Commissioner Daly said that is depends on how long it has been there. Mr. Daniels stated that he doesn't think the majority of the area is fill. They still have to go through an environmental health study. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 11 of 27 Pages Commissioner Luke said that ht does not understand getting building permits without a letter. Mr. Daniels stated that they won't put in roads at this time for economic reasons. Ms. Craghead stated that there could be a condition that there will be no breaking earth except for testing for the NFA. Section 18.136.030(b) says that a condition of the resolution is for two years, but indicates there could be a different timeline. Mr. Groves added that is how he read it, but he is not sure it could be done under a single application. There were no further questions for the applicant. Paul Dewey, an attorney representing David and Becky Boyer, provided a handout. He said this has been referred to as the chicken and egg, but it really seems sequential in land use law. They would not discuss rezoning to EFU unless it is known to be agricultural or forest land, or would be forest land in the future. This is not how the land use system works. It needs to be currently suitable. They can't do a partition unless it is suitable for the intended use. This is a consistent them in the Code. It is premature to talk about rezoning it to residential when everyone is acknowledging whether it is suitable. Commissioner Luke said there is no evidence that it is not suitable. There is no proof either way; just assumptions. Mr. Dewey stated that the history of the site and the dust problems indicate a livability problem. The burden of proof is that they show it is suitable. It seems premature for another reason, the Terrebonne intersection question. Also, the pivot irrigation is just starting there. Some things would give people a better idea of the feasibility within a few years. No one knows if it will happen. He asked why they are going ahead with this when the intersecting is not fixed and they don't know if the irrigation will work right away. These don't allow for a rezone at this point. In regard to the transportation planning rule, there is a reasonable worst case scenario. ODOT and planning don't look at the acreage, but its location. Kittleston made that point. There is no basis to use multiplying to expand this exponentially. This is well substantiated in the record. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 12 of 27 Pages He said he has given more thought to addressing the reclamation plans. More detail is needed. He would like to review the minutes of the earlier meeting and letters from the agencies. There is some reference to a new cost analysis. He does not think it is appropriate to make a decision tonight. Mr. Groves replied that the information will be scanned and made available on the website, and paper copies are available on request. Mr. Dewey stated that he would like to be able to make a written response. In regard to a change in the reclamation plan, the 18 acres called for 12 inches of topsoil. They are proposing that this be graded to the original site conditions. This is not defined in the new proposal. The original 12 inches of topsoil should still be required. They also referred to watering being unrealistic for the 18 acres. They could apply water elsewhere with a pivot. They plan to exclude from reclamation any possible building sites for rights of way. This should have been done in 1985. They should have reclamation done now regardless of the right of way. Commissioner Daly said that he inspected that site and it appears to him that reclamation has been done. Mr. Dewey stated that they submitted a plan for reclamation, and the basis for the Hearings Officer's denial was that it was not done. Apparently it does not comply. They say they want to do something different. Commissioner Daly said that the Hearings Officer said nothing was in the record about this, but DOGAMI already signed off. Mr. Groves stated that the applicant was bound to do a certain type of reclamation. There is nothing in the record that there is 12 inches of topsoil or trees planted as required. The applicant has not stated that this was done. Commissioner Baney asked if they have not done anything, what can be done. Mr. Groves said that to rezone there are three conditions. The mineral resource has to be depleted, the ground reclaimed, and an indication of what it will be rezoned to. This was denied because the outstanding reclamation had not been done on the 18 acres. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 13 of 27 Pages Commissioner Luke said that the gravel was mined and must be gone. There is no resource value left. Mr. Groves noted that there could be a significant resource but it is not viable to use. A chemical analysis shows that it is not suitable for ODOT use. Commissioner Daly stated that the record indicates that there is evidence of topsoil that was pushed up into piles for reclamation. Mr. Groves replied that it was retained for reclamation, but he is not sure if it is still there. Commissioner Baney said that it sounds consistent, a resolution of intent to rezone with reclamation requirements. This does not change the question as to the 160 acres being rezoned prior. That reclamation has been done to DOGAMI standards. Another evaluation would be required. Nothing per se would keep them from rezoning the 160 acres, just the 18. Mr. Groves said that he would have to discuss this with legal counsel, as he is uncertain if there can be different conditions on different parcels. Mr. Dewey stated that in the modification, the Hearings Officer addressed the site as a whole, with the resources being exhausted on all, and not broken up into smaller pieces. To do what they want to do requires a modification of the application. The Hearings Officer didn't see it that way. To get a solid waste permit for the site, there was extensive discussion regarding saving the topsoil and revegetating and returning it to an agricultural use. He was able to find the DEQ permit for this but not the County land use decision made in June and July 1975. Mr. Groves said that the conditional use file has some scattered remnants, but no actual decision or approval. Mr. Dewey stated that the other reclamation plan requirements were not done yet, and this should be a condition of approval. If this is approved, any appraiser will look beyond the facial zone. This cries out for disclosure. People need to know the history of the site, not just the rezoning. Waiting until the Terrebonne intersection is fixed and whether it can be reclaimed should be done first. Commissioner Luke said that the Terrebonne intersection work is going to contract and the funds are in the budget. It will be done before anything is ever built. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 14 of 27 Pages Mr. Groves stated that he understands the project in the pipeline for Lower Bridge won't solve the problems from future development of the site. Peter Russell said that the project will improve some of the turns, but won't add capacity to the intersection. Commissioner Daly asked if DOGAMI signed off on the 18 acres. Mr. Groves replied that they did not impose any requirements. The County was obligated to set the reclamation requirements if it were opened for mining. The entire site was released. Either the work occurred according to plan or it was not required at all. A ten minute break was taken at this time. Dougal Haines testified that he feels this is convoluted. He thought more work would be done on the reclamation aspects. This is a whole different scenario. He thinks they are pushing to get this over and done with, which is a mistake. Everyone needs time to respond to the suggestions being made. Talking about splitting land may make sense but there might be issues down the road. Enough time and money has been put into this, that a little more would be in everyone's best interests. He is skeptical of the reasons and feels no one should be pushed into this. Everyone gets tired of meetings, but this is on the top of his list. Commissioner Luke said that but for a modification of the application for the 130 or 160 acres, no one would be talking about this, just the rezone. He is not sure what the proposed legal standards are, but they have the option of just rezoning the one piece. Mr. Haines said that this is a legal possibility, but so much of the discussion has been on the entire area, they need to deal with the whole thing. He is getting nervous about this. Commissioner Baney said they are talking more about reclamation. She understands that they have no regulatory authority over reclamation on the vast majority of the property, which was mostly pre-DOGAMI and regulation. They have no right to request or require any reclamation on most of the property. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 15 of 27 Pages Mr. Groves said that there is no express authority in the Code regarding reclamation. There are sections of the Code that might allow conditions that could be defensible at LUBA, but these may not hold up. In particular, under public health, safety and welfare; this could be looked at broadly or narrowly. Ms. Craghead stated that the comprehensive plan, regarding air and soil quality, might apply; as well as compliance with Goal 6. Mr. Groves said that they could make such conditions, but it is not known if they would stand up at LUBA. Mr. Haines said that there was so much time spent on reclamation, everyone is working off of that. It costs a lot of money. That's where he is putting his efforts. A decision on part of it does not change what the developer might want to do in the long term. If the County can't be the overseer of the reclamation, that precludes the County legally requiring some conditions on reclamation. The applicant has already made suggestions regarding conditions. If they are doing this, that is a good sign. It would make sense at the County level to consider those but also to extend them. There has been problems with performance bonds, and they don't really serve the purpose. Things go undone and there is no guarantee that the work will be done. The neighbors want to know the long-term. Nothing is stamped in gold forever, but they would like some strong assurances. There have been promises made in the past that were not done, not by this owner but others, so there is room for skepticism. Considering the history of the site, it is obvious that a lot needs to be done. He encourages the County to look at holding back on this to get some deeper assurances that the work will take place. It is not known what revegetation plan will work. It takes a long time. Most of the site isn't even classified as soil, so it is not known if it can be landscaped appropriately. It needs to be done right and a lot needs to be done first. He needs time to respond to this and to have more discussions. Commissioner Daly said that he is a little confused about some of the testimony. He thinks everyone in the room wants to see the site cleaned up and the dust gone. Mr. Haines replied that he doesn't like the mine site but would rather it not be developed. He doesn't live that close to it. This erodes the EFU land around it and brings in other issues. Rex Barber and others want to develop. He has seen this happen. All the more reason for the next guy to want to do the same. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 16 of 27 Pages There is more growth to happen but it needs to be well considered. A cluster development is not rural. This does not register as a realistic thing and erodes the nature of what is around it. Commissioner Luke pointed out that a nearby subdivision has really small lots. Mr. Haines said that tentacles of growth seem to be moving out further and further. These are changing times but there is some value into leaving things alone. In consideration to the neighbors, he wants to be amenable but wants to see the site reclaimed to a high standard and not developed. Commissioner Luke said that they are not going to get a lot of these applications. It started before zoning, and there aren't many like that. This is a unique situation. State law says it has to be rezoned when it is no longer a mine. Mr. Haines said that he can't live in a situation like that. Everyone agrees that something needs to be done, but the question is whether it will be. Commissioner Daly noted that it appears Mr. Haines is against development but not the site because he doesn't get the dust from it. Mr. Haines said that he is still concerned. Phil Grillo said he wanted to follow up on comments made at the prior hearing. He thinks the process is necessary. The last speaker talked about the area. The Board may not know that at the base of 93rd Street, an area there is BLM owned, about 600 acres zoned EFU. BLM is in the process of putting it up for sale. They are doing a land use action to confirm a lot of record. That new owner might want to convert to RR-10 from EFU. Commissioner Luke said it is very hard to do that. Mr. Grillo stated that there will continue to be development pressure. Most of the lots in Lower Bridge are not yet built on. The area is changing, and some feel it is for the worst. If the County is going to consider this zone change, they need to fashion the right conditions of approval. He has crafted some potential conditions of approval. Now there is an idea to take the 130 and 30 and rezone, then rezone the rest later. Initially he thought that a partial rezoning could be possible, and he would like more time to consider this. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 17 of 27 Pages There may be some way to work that into this, but he wants to change the metaphor. Is it chicken and egg, or carrot and stick? There needs to be the right balance, and work continued with the applicant and others. The conditions of residential cleanup and performance standards are a start. Without compliance to standards, the resolution to rezone evaporates. A lot of factors are not known, and he is not sure who to believe on some of it. Performance standards give way to not require everything right now. He doesn't think it will make everyone happy, but they should create some sort of standards and include folks in the neighborhood, and encourage better communication. Most people just want to know what is going on. It has been too adversarial, and there needs to be more time to involve others. Diane Lozito said the biggest issue and problem is a potential lawsuit from residents who want to know what is out there. No one seems to know. None of the money spent by the Daniels Group was for proper testing. They need to do deep core samples. There was toxic waste all over the property. There were 797 leaking barrels on the site when Mr. Barber Sr., the owner at the time, owned the property. They were pushed to the lagoons later. This is all in the files. (She showed a photo to the Commissioners at this time, referencing Deschutes Valley Sanitation.) The four lagoons did not have the toxic waste in them. The radioactive material and other waste went to Hanford. No one knows what is there, and the whole property should be tested. The barrels were never in the lagoons, but were next to them. Only liquid waste was to be accepted. However, they accepted barrels and more. Mr. Nolan found the waste. A supersite fund manager said a voluntary cleanup could be done, but they only cleaned up one acre. It is not known what is on the rest of the acreage. Contamination could still be there. DEQ could do a monitored airborne test but they won't do it. Deep core samples will show what is under the ground. There are PCB's there; these were found and it is in the record. Commissioner Daly said that that was probably was found in the area where the old transformers were. The record said that is where this was and it was cleaned up. Ms. Lozito said that it was only since March 2008 that this was discovered. The owner rushed to clean it up, and they only tested a small area. There is health and lives at risk. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 18 of 27 Pages Commissioner Luke stated that when transformers were found to have PCB's, this was changed. He asked why they should look at the whole site for that. Ms. Lozito said that historical maps show there were four more buildings there. Commissioner Luke asked if there were transformers on all four. Ms. Lozito said she doesn't know, but the land was disturbed. The Daniels Group is trying to make it pretty. No one knows what is three feet underground. They need a really good test of the entire area. Commissioner Baney asked if this is what DEQ requires for residential use. The option would be for the site to sit just like it is. Ms. Lozito said that DEQ indicates nothing is going to happen. The last she heard was that the Daniels Group won't do voluntary cleanup. Commissioner Baney stated that they need an incentive to do that. There is no gain and no requirement. They are not required to do anything except the 18 acres. Ms. Craghead said that to keep the water license, they have to show it is working. Ms. Lozito added that it has to be used for vegetation and dust abatement. Commissioner Luke said that this is from the Water Resources Group, not the County. If they require it, they have to enforce it. Ms. Lozito stated that nothing has grown there. She asked Mr. Daniels to prove that he is the developer of the other two projects, but did not get an answer. No one at their planning office has heard of him. She wants him to prove it. Lower Bridge Estates is only RR-10, with an average of ten acres. Mr. Groves said that they are applying for RR-10. The use would be a cluster development. They can have density in return for a lot of open space. Theoretically the property could be eligible for a lot more. Ms. Lozito said that a PUD would allow them 74 homesites, which could be two acres with no setbacks. The 65% would be the dustbowl. No one can grow anything in the D.E. They have not taken responsibility of addressing the health hazards. The topsoil needs to come back, then they seed and give it water long term. This doesn't solve the problem. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 19 of 27 Pages Commissioner Daly said that if nothing will grow, then it will remain as it is. He hopes she is wrong. He has been lead to believe that something can grow there. But no one will do this if it is not economically feasible. Then people will breathe it forever. Ms. Lozito said that the biggest obstacle is the dust bowl. She would like to see testimony from another site as to what can grow there. In regard to traffic, she would like a response from the BLM. ODOT did a study, and there are pink flags at mile posts 4 and 5, putting in a commuter road. There are always cars coming out of there. She would like to see a traffic study as to how many cars are on the BLM road. Commissioner Luke asked what difference this makes. It is the same number of cars either way. Wimp Way will be closed when Lower Bridge Way is developed. This is being addressed to reduce accidents. There are stop signs. No one can outlaw stupidity. Ms. Lozito stated that there were 69 accidents in the past four years. Adding more cars is a conflict. Also, there is a historic landmark zone. Under wildlife goals, this is a winter deer range and there are threatened bull trout in the river. Regarding water use, why are they watering two miles away from the homesite area. The pivot is where the lagoons and contamination are. There will be a lot of dust when they start developing. Commissioner Luke said that this has nothing to do with the zone change. It has to do with building at some future date. Ms. Lozito said that in 1985 the record said the property was 550 acres. Reclamation with soil and fescue should have been done then. It does not say 18 acres. Mr. Groves said that there was no proper site plan map. The 18 acres were allowed to be open under the site plan. The rest was not opened up. Ms. Lozito mentioned the absorption rate for land. There is a lot of vacant land and homes now. It will take years to sell them all. This is 45 minutes from Bend. These lots will not fly off the shelf. Everyone thinks the area is too far out or don't like the area. Lower Bridge Estates is the only RR-10 for many miles around. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 20 of 27 Pages Most of the land is EFU. The one off Teater was platted in the 1970's. It is an average of ten acres per lot. This proposal would be an average of two acres. Commissioner Luke pointed out that there is no proposal. This involves a zone change. The other is a different hearing process. Ms. Lozito stated that in regard to public need, more time is needed for the DEQ and the State Health Office. They say it is safe but they are all now saying they aren't so sure. It is at industrial standards only. They have to spend a lot of money to make it safe, and then full disclosure is needed. Lower Bridge Estates has only sold about 1/3 of its lots. People are losing money. Commissioner Luke said that they are not talking about building houses. If they can't sell them, that is their problem. Ms. Lozito asked if the County has to prove public need. Commissioner Luke said that is in regard to health, safety and welfare, as required by urban growth boundary expansion rules. Mr. Groves stated that an analysis is required for this. 58% of the parcels within three acres have to have a structure on them. This has been met in the comprehensive plan. Ms. Lozito stated that they will find it difficult to get a loan. Ms. Craghead said the County does not have a historic landmark zone. A structure could be designated that way. Ms. Lozito said that one lot is zoned HS, historical site. Mr. Groves stated this would be an overlay or designation. It is a parcel of interest that needs to be resolved. Doug Strain, who lives in Eagle Rock Estates, across from the east portion of the mine, said he will be directly impacted. He believes that EFU is predominate in the area and makes more sense. He purchased 16 years ago and the mine was there. He always knew the mine was an eyesore, but drives 45 minutes to get away from people. If he am going to be subject to more people, it does not fit in that portion. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 21 of 27 Pages He is a builder in the area and understands a little about financing. Whenever he does a larger project, the lender requires a level 1 environmental study. In his opinion, they are going to get shot down without having this. If he make application, he has to address what is even a mile away to make sure there is no hazardous material anywhere close. He sees financing as being a hard issue on this without the standard from industrial to residential changed first. He talked with an environmental engineer who made it clear that the standards are very far apart, and the chance of it being developed is very small. It would be cost prohibitive. Residential standards picture a child eating a spoonful of dirt. These are totally different animals. Allowing a zone change without knowing what will happen will be haphazard. Now, this 160 acres, is it the cream of the crop. It will impact him the most. If that zone change happened without any kind of guarantee on the additional land being cleaned up to residential standards, the County is putting people in harm's way. This should be treated as one piece and proven safe before development takes place. He is against any kind of building out there. If there was a good plan, like the Canyons, where issues are addressed and there is peace of mind, there would not be this opposition. He is not comfortable with this. EFU makes more sense. Commissioner Luke said that under land use laws, you have to have certain types of soil and water for EFU. This has neither. The State agencies don't have authority to clean up this site. They could apply for the 160 acres and probably get it approved for a zone change and not even deal wit the other part. Mr. Strain said if development took place, it could be blocked with minimal effort. Commissioner Daly asked him if he is impacted by dust off the site. Mr. Strain said yes, for 15 or 16 years, and he doesn't know if it is safe. There was a lot more when they bladed it. Commissioner Daly said that they did this to get the pivot in, to try to grow vegetation. Mr. Strain said he doesn't see anything much growing in it. He would like to see proof that it will grow in the long run. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 22 of 27 Pages Doug Dunn said that he owns property to the east of the east part of the property. He asked if the 130 acres is being used only for formula purposes. There is a county road through that 30 acres which is open to the public. There was an attempt years ago to get the County to vacate it. Sportsmen wanted it open for fishing access. He thinks there is a map from the road to the river and a deed from Ted Gunzer to the Parks District for future use. So this could not be included. Additionally, because of trees, the road goes up a bluff to the west. His question is whether a house could be built on that land. Commissioner Luke said that in theory, there is no map before the Board. Through a survey, if part is dedicated to someone else, it would be in the title report. If it is dedicated in the plan as open space, there will be no houses built on it. Ms. Craghead said that for right now, if the 30 is rezoned with the 130, they have to provide a legal description and map where it is. They have to provide ownership proof. There is no proposal right now. It depends on the lot size standards. If the intention is to do a cluster development, they would need to keep it as open space to get the higher density. Mr. Dunn asked if land is split by a county road, isn't it two lots. Mr. Groves said that it needs to be a legal lot of record. A road through an area does not automatically create another lot. Commissioner Luke said that it will all go before a Hearings Officer and this can be appealed. There will be a lot of discussion. Mr. Dunn said he is concerned about the harmful stuff in the dust. Someone said that airborne tests showed it was not a problem. There was no wind blowing so it was invalid. He hopes the Commissioners would take the first step to determine if there is a health hazard there. Commissioner Baney stated that they have to rezone the land to something. The resource is no longer viable. If EFU is not an option, and it sounds like it isn't, what is left. Ms. Craghead said that RR-10, open space or conservation if there is no viable economic use; or perhaps a rural service center or rural industrial zone. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 23 of 27 Pages Rex Barber testified that he owns Big Falls Ranch, which is adjacent. He was hired to manage and operate the pivot. In late June they put about 20 pounds of native grass mix on the land, and about 30-40% of it germinated with water. There is a cut on the east side of Lower Bridge Road that has an exposed layer of D.E., and on top of that is a substantial amount of native grasses and sagebrush that germinated on its own. Commissioner Luke asked if hydroseeding is necessary. Mr. Barber said that it is not necessary. In another growing season they will know if this is successful. Ms. Lewis said that a lot of ground was covered today, and she is not sure where to start. Whenever it feels you are near the end of a process, some people want to slow it down. They've been in it for three years. It hasn't been as lengthy for the County as it has for them. They have performed an enormous amount of studies on the site, including radiation and water testing, on the ground testing, and soil analysis. It's all in the record. Certainly they don't have all of the answers. But they haven't spent all that money for nothing. A lot went to testing. They would not invest this if they were not relatively sure that it is economically feasible. If there was a conspiracy to develop only the prime part of the land, they would not have a plan to plant and water the entire site. None of them are new at this process. They could have just come in on the smaller portion. There are three legal lots of record and they could have come forward for a zone change on one or two. They didn't do that because the plan is to develop the whole property with appropriate approvals in place. They just want to get through the legal realities and have the site cleaned up. The plan would help them finance the cleanup of the larger piece. Regarding the reclamation issues being brought up, only 18 acres were required to be cleaned up. It does reference the 18 acres in the staff report and decision, and there is evidence that it was reclaimed. The Hearings Officer found that they did not reclaim all of it. There is a stockpile of soil that was never pushed back on, but it was allowed to stay the same because it was revegetated. Evergreens were planted, not trees but shrubs. Mr. Dewey misquoted that water was not planned for the 18 acres. They plan to do that. The last thing is that the idea of a modification, which is only applicable if it increases the impacts. This plan incorporates all they have presented, just with different findings and conditions. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 24 of 27 Pages She urged a decision tonight, recognizing that if a proposal compromise happens, she would work with legal counsel to clarify how this is written. Regarding Mr. Grillo's suggestions, some are good, others are not applicable. A transportation engineer is also here tonight. The maximum amount of lots on the 160 acres is 20, which still meets the transportation planning rule. No one asked to call the traffic engineer up for questions. In 1985 the DEQ did issue a no further action letter regarding hazardous waste. It was for the entire site. There was an industrial use designation, but all of the activities and evidence bought in occurred prior to that letter with the exception of the transformer issue. The materials were cleaned up to industrial standards. There are standards and it has to be safe for humans to be on site. Regarding the historic issue, she understands that it is related to a rock with an old sign, and has no objection to leaving it as is. Ms. Craghead asked if there is any new evidence that requires time for rebuttal. Commissioner Luke said that he appreciated Mr. Grillo's input, which was well thought out and clear. Ms. Craghead stated that she has some concerns about the basis of some of his comments. Commissioner Baney said she has some concerns about time elapsing. Usually all of the pertinent information is found on the County website. The opposition should be able to review any recent documents. She feels this information should be posted through the normal process. Commissioner Luke said the question is whether the proposal requires a modification. Ms. Craghead stated that this does not change anything ultimately, just how you get there. She believes that a split or phasing can be done to come up with the final results. Commissioner Daly asked if there was new information not on the record presented tonight. Ms. Craghead said that the letters from the agencies were not available to the public before tonight. Commissioner Luke suggested the hearing be continued until December 29. He is concerned about the testing. The developer needs an incentive to move forward. They could just walk away and the County would own the property after five years. There is a high priority to get it cleaned up, but no one has the authority to require this. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 25 of 27 Pages Commissioner Baney disagreed. She said she is not sure it is necessary to keep oral testimony open. There has been a lot of redundancy. Perhaps they could leave the record open for written testimony only. Ms. Craghead said that it should be only in response to questions tonight and any questions the Board has. Commissioner Luke stated that it would be helpful to have something in writing. He would like to see the conditions as proposed. Commissioner Daly suggested that Commissioner Luke do a site visit. Commissioner Luke said that the biggest question is what is in the ground. Commissioner Daly stated that he could learn a lot by walking the property. He would hate to see this one big chance of this site becoming better be missed. He would think that no one would want it to stay the way it is. He was in the business of cleaning up contaminated sites as a contractor, and worked with the DEQ. You have to do extensive testing and work to get a "no further action" letter. You have to earn it. He is sure that is why the developers feel confident about moving forward. It will have to be done to residential standards anyway. The other option is that the site stays the same forever. Ms. Lozito said that there is a big stack of papers that need to be read by the Commissioners. She will be offended if they ignore it. The rushing scares her. Mr. Grillo said that procedurally, a resolution with something as proposed on the 130 or 160 acres questions the potential use of the rest of the property. He wants to know what the interim use would be. After further discussion, the hearing was continued to December 29 at 4: 00 p. m. The Board will have a work session on this issue on December 22 at 9: 00 a. m. Chair Luke adjourned the meeting at 8:05 p.m. Minutes of Board of Commissioners' Public Hearing re Lower Bridge Mining Site Zone Change Wednesday, December 17, 2008 Page 26 of 27 Pages DATED this 17th Day of December 2008 for the Deschutes County Board of Commissioners. ATTEST: &M~K5t~ ecording Secretary Attachments Exhibit A: Preliminary Statement Dennis R. Luke, Chair Tammy Baney, Vice air i hael M. Daly, Co issioner Exhibit B: Testimony Cards Exhibit C: 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 Wednesday, December 17, 2008 Page 27 of 27 Pages `TJ-V ES !:1 y BOARD OF COMMISSIONERS' MEETING Q ~ REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 17, 2008 Name Address ~r^ Phone #s P E-mail address ❑ In Favor 1-1 Neutral/Undecided Opposed Submitting written documents as part of testimony? es No Please give a copy to the Recording Secretary for the record. v \ { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 17, 2008 Name 1if 0< C-) 0 S Address V/1 Phone #s E-mail address Co.,,, In Favor F-1 Neutral/Undecided Submitting written documents as part of testimony? ~'es Please give a copy to the Recording Secretary for the record. Opposed leN, No ' BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 17, 2008 Name 'kDw t_ iJE w ICY Address X539 N W y ; Ctis 10,"4 Phone #s 6,)1- 3 t? - i E-mail address (2d So d<_ `,L.0 tC. R In Favor R Neutral/Undecided Submitting written documents as part of testimony? F]Yes :Please give a copy to the Recording Secretary for the record. Z Opposed No BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 17. 2008 Name Address Phone #s E-mail address C -A' n. ~~,A/ a,-,~ 1, In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes F~ No Please give a copy to the Recording Secretary for the record. _ " BOARD OF COMMISSIONERS' MEETING n { REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 17, 2008 Name L,% Address GqC( 'eS,(,O I tt ~ t 1 c e J ~ ~ Phone #s -7g- ~'ak E-mail address e--,; S C-,~ w te e- Cz In Favor F-] Neutral/Undecided Opposed Submitting written documents as part of testimony? 1-1 Yes No Please give a copy to the Recording Secretary for the record. M L~ ~~~~s mot, o { BOARD OF COMMISSIONERS' MEETING %REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 17, 2008 Name (3 Address aQ r` Phone #s or Z~'- 172) E-mail address In Favor r" Neutral/Undecided Opposed Submitting written documents as part of testimony? Krec es F] No Please give a copy to the Recording Secretary for the d. Lj <2 BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 17, 2008 Name OOQ3 k)l /l) Address 88~ /V• f✓/.~ Te1,keepum, ©R 917 ~C o Phone #s .5y)' LJ10 - G9 E-mail address C 1P0Q1k, fVe R In Favor F] Neutral/Undecided Submitting written documents as part of testimony? 1-1 Yes Please give a copy to the Recording Secretary for the record. Opposed No o { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 17, 2008 0' Name Address 6, Phone #s E-mail address ~a- 1-1 In Favor F1 Neutral/Undecided Opposed Submitting written documents as part of testimony? EYYes No Please give a copy to the Recording Secretary for the record. y • BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Surface Mining Zone Change Date: Dec. 17, 2008 Name Address Ilk , S LJ Sf~ A Phone #s {~/7 E-mail address In Favor aeutral/Undecided Submitting written documents as part of testimony? Yes Please give a copy to the Recording Secretary for the record. 11 Opposed No December 15, 2008 Deschutes County Board of Commissioners Comments on File: ZC-08-1/ PA-08-1 The revised reclamation plan for SP-85-23 submitted to you by Tia Lewis, the attorney representing the Daniel's Group, is rather confusing. In her oral statements at the hearings before you earlier in December she stated that the reclamation plan that they were submitting pertained to the entire 560 acres of the site. However, her letter seems to indicate that area covered by the proposed reclamation only covers 18 acres. The only workable solution to the public health disturbance caused by the blowing dust at the old mine site, is to reclaim the entire site. Ms. Lewis states in her letter that; "any areas that will not be used for future building sites, right of ways, or utilities will be re- vegetated concurrent with site development." This procedure is quite simply too little, too late. Contrary to her suggestion that the "present plan respects the natural character of the area and considers the limited and scarce water resources available , her brief outline of a plan is far too general to be considered as a valid approach considering the extreme degradation of this site. She further states that "the current plan is designed to be successful based on recognized standards for the area." Who designed these standards and where did they come from? Further, there is nothing at all "natural " about the nature of this site. While not all of the 560 acres of the area that the applicant is seeking to rezone has been mined extensively, a substantial acreage has been entirely denuded from its original state and is recognizable only as a wasteland piled high in discarded DE mine tailings. The letter indicates that : "The placement of topsoil that was removed from the mined area has been replaced and graded." Is she referring to the small 1985 test area of to the whole of the mine. I am aware that the majority of the acreage has NOT been covered in top soil. Also in this letter an acknowledgment that " native grasses are slower to germinate and that.... application efforts can take up to two to three seasons to achieve significant rooting and cover crop conditions." As a local land owner engaged in a long term revegetation project on my own property , I can definitely agree that this is the case. While there are some generally sound ideas regarding revegetation in general , there is only a speculative approach to the accomplishment of the entire process. There has been and is a pressure by the applicants to push this rezoning application thru to their satisfaction. That haste is evident to me in regards to the reclamation plan that is being suggested in this same letter. The larger burden of the work appears to be passed on to some future community organization of residents. The reclaiming of the entire site that the applicant is seeking to have rezoned is one of the key points of contention among the opponents to this rezoning. This issue is far to integral and important to the potential success of marketing this land as a residential area that is can be glossed over or visited in only a speculative fashion. A serious long term program of revegetation must be determined with qualified experts and clear guidelines. It must be initiated, labored on, monitored AND THEN evaluated to determine IF the process is workable in the long haul. Based on the nature of the slower germinating native species ALONE, this work needs to be approached with the initial understanding that time and consistent planning are required PRIOR to any Zone change. In this way, all parties of interest in this matter (applicant, neighbors, County ) can ALL be satisfied that something of this nature is even possible. At this end of a three to five year period , this rezone matter might be revisited more realistically. If the county were to grant a change of zone before this reclamation takes place , even if there were conditions of approval attached, there is absolutely no guarantee that the area would , in the end , be a SUITABLE residential site. Even if a performance bond is applied as a term of approval there is no guarantee that the work will be accomplished. A case in point here ------one need look no further than such bonds applied to more than one Destination Resort Area in the County, to see a vivid example of non -compliance that has stretched out for several years . In essence the developer is not held accountable to the letter of the original agreement. Yes , the County has a sum of Moines to invest . BUT the PEOPLE of the county have not been at all well served. In this particular instance , there are many adjacent neighbors whose lives stand to be heavily impacted . It is true that All of us in the Lower Bridge area would like to see this old mine site reclaimed and revegetated. A huge investment of time and money will be required to accomplish this. It may be, as Mr. Daniel's, the Developer has stated, that the cost to do the work right may be too high. In that case, the existing site will continue to be at best, a public nuisance and a blight on an otherwise scenic area; and at worst, a public health hazard that should be required to be dealt with . The particular piece of land that is being considered for a re zone has been used and abused for a very long time, both by the current and previous owners. There are STILL many unanswered questions regarding toxic waste material that has been buried in many undeterminable locations. The site has recently, against common sense, been manipulated to make it look more presentable. This work appears to be more of a literal cover up than any thing else. The effort certainly did not make the neighbors any more trusting of the intent of the owners and the applicant. IT IS TIME that the owners give something back to the land rather than continue to look for yet another means of extracting value. This is an obvious case of seeking to make a silk purse out of a sow's ear. It is not incumbent upon the County to grant this zone change to the applicant. Yes, we are all aware that they would like very much to be given the green light; and they have made a case for themselves. I feel in my bones that however much they might profit from such a move the neighbors in the area would not be well served nor would the residents of the County as a whole. I encourage you commissioners to act with wisdom and integrity for the Best interests of the Public and not to be swayed by sketchy promises. Thank you for your Consideration, Sincerely Dougal Haines 71160 lower bridge Terrebonne, Or. 97760 o ~ N• .L$51 gon Theodore R. Kulongoski, Governor December 11, 2008 To: Will Groves, Deschutes County Planning From: David Farrer, Ph.D. Public Health Toxiologist Subject: Deschutes County Land Use Questions Regarding Lower Bridge Mine Y egon department of human services The Environmental Health Assessment Program (EHAP) of the Oregon Department of Human Services (DHS) is charged with evaluating the potential for contaminants at hazardous waste sites to affect the public health of people who live or recreate on/near the site. Often these are sites that are listed on the National Priority List (NPL) as Superfund sites. However, we also respond to requests from the public (private citizens, citizen groups, elected officials, other governmental agencies, etc.) to assess other sites throughout Oregon that aren't on the NPL. While DHS has statutory authority to protect public health, there is no rule to give us specific regulatory authority to require monitoring or action at the Lower Bridge Mine site. Our role differs from that of DEQ in that the public is our primary audience, and our goal is to answer the question, "Do we expect anyone to actually become ill or injured due to exposure to contaminants on or from the site?" Below is a description of our role at the Lower Bridge Mine site, in the context of the Board of Commissioner's specific questions. 1) What does your agency do in relation to this site? Through EHAP, DHS has released a public comment version of a Health Consultation that assessed the potential public health impacts to residents who live near the mine based on current land use patterns. After the public comment period ends Dec. 8, EHAP will begin incorporating comments and release a final draft of the Health Consultation sometime early in 2009. Our Health Consultation includes some recommendations that are applicable only if the land use changes to residential. If land use conditions change at the site, EHAP is available to conduct additional Health Consultations and/or Assessments to address the new conditions. Our role at this site is advisory and not regulatory. "Assisting People to Become Independent, Healthy and Safe" An Equal Opportunity Employer Department of Human Services Public Health Division Environmental Public Health 800 NE Oregon Street, Suite 640 Portland, OR 97232-2162 Voice 971-673-0971 FAX 971-673-0457 TTY 971-673-0372 2) What is the current regulatory status of the site? DHS defers questions regarding regulatory status to DEQ 3) If the site is not rezoned and left as a surface mine, will any cleanup, site investigation, monitoring, or site restoration be required by your agency? The current Health Consultation recommends that site owners conduct air monitoring to determine dust particle size, concentration, and composition (i. e. crystalline silica or not) regardless of any future use changes. However, EHAP cannot compel site owners to comply. 4) If the site is rezoned for residential use, would this (in itself) trigger any cleanup, site investigation, monitoring, or site restoration to be required by your agency? A rezone to residential would trigger a specific set of recommendations contained in our current Health Consultation report (owners should join DEQ's voluntary clean-up program, do further assessments to identify and remove any buried waste, etc.). However, these are recommendations and would have to be enforced by DEQ or another regulatory agency. 5) If the site is rezoned for residential use and three dwellings (with domestic wells and septic systems) are constructed, would this trigger any cleanup, site investigation, monitoring, or site restoration to be required by your agency? See answer to 4 6) Is the site presently safe and suitable for residential use with three dwellings? We don't have enough data to make a sound health call. Our recommendation would be to do additional monitoring/sampling. 7) If the site is rezoned for residential use and the applicant applies for a planned development with up to 74 dwellings (with domestic wells and septic systems), would this trigger any cleanup, site investigation, monitoring, or site restoration to be required by your agency? See answer to 4 8) Is the site presently safe and suitable for residential use with 74 dwellings? See answer to 6 9) If the County, through its regulatory process, does not require cleanup, site investigation, monitoring, or site restoration, is there any state or federal regulation that would prevent residential development of the site in its present state? Defer to DEQ 10) Does your agency issue any sort of certification that a site is safe and suitable for residential use? Not a certification, but we can make a public health determination if data are sufficient William Groves From: Ben A. Mundie [Ben.A.Mundie@mlrr.oregongeology.com] Sent: Tuesday, December 09, 2008 10:39 AM To: William Groves Subject: Re: Lower Bridge Mine site - Hearing and Conference Call. Good morning Will - I am available for a conference call this Thurs. my direct line is 541-967-2149. Below are responses to your questions, it will be evident that the role of DOGAMI in this process is over. Once the DOGAMI file is closed our administrative authority ends. 1) DOGAMI issued an operating permit with conditions for the Lower Bridge site in 1981. The mine site encompassed some 620 acres of which 520 were previously disturbed and were therefore eligible for exempt status. The Dicalite mine west of lower bridge road over 500 acres was exempt from the reclamation rules. The 100 acres east of lower bridge road where sand and gravel was mined was permitted and bonded to insure reclamation. 2) in 2006, DOGAMI conducted a final site inspection and documented the area east of lower bridge road had been reclaimed and left in a stable condition. DEQ-Bend was notified and stated there were no concerns the DOGAMI permit closing, and the landowner was contacted who stated the site was reclaimed to the standards of his lease agreement with the operator. At the request of the landowner, the mine operator did not spread stockpiled soTmaterial to a depth of one foot over the areas covered by the DOGAMI permit, with the intent that those areas would be developed and the soils would be disturbed again. DOGAMI agreed the well vegetated soil stockpiles would be left, and would be used for landscaping during development. If the proposed development did not occur, the landowner would spread the soil and revegetate with a native pasture grass mixture. The DOGAMI file was closed, and the reclamation bond released in August 2006. 3) if this site is not re-zoned and remains surface mining, any future mining will require a new application to DOGAMI for an operating permit. No portions of this site are now eligible for exempt status. Any future mining east or west of lower bridge road will require an operating permit and will be bonded to insure reclamation is completed. future mining is defined as more than 5,000 cubic yards produced for off-site use in any 12-month period. less than 5,000 cubic yards of production is still allowed as a total exemption. 4) if the site is re-zoned residential DOGAMI has no jurisdiction. 5) again DOGAMI has no jurisdiction 6) DOGAMI has no jurisdiction 7) DOGAMI has no jurisdiction 8) DOGAMI has no jurisdiction 9) DOGAMI has no jurisdiction 10) DOGAMI is required to insure that once mining is complete the site is stable and there is no potential for off-site impacts from the past mining. DOGAMI does not certify sites suitable for any post mine development. Hope this helps. If you think it is important for DOGAMI to be there on the 17th that can be arranged. meaning I will be there. Please contact me with any questions. Ben Mundie DOGAMI 541-967-2149 12/15/2008 State of Oregon Department of Environmental Quality Memorandum To: Will Groves, Deschutes County Planning Date: December 9, 2008 From: Linda Hayes-Gorman, ER r1Q Manger Subject: Deschutes County Land Use Questions, Lower Bridge/Oremite Mine Site 1) What does your agency do in relation to this site? The Oregon Department of EnvironmentalQuality (DEQ), L.andQuality Division, Cleanup Program regulates and evaluates sites which may impact human health and the environment. The AirQuality Program notifies property owners when air quality complaints are made against the property and advises in ways to reduce wind blown dust. Because there is no activity from any source regulated by DEQ at this site, and it is not located in a special air quality done, the department does not have enforcement authority over wind blown dust from the site. The WaterQuality Program would regulate storm water runoff (through a 12000permit) from construction activities during the construction phase of any development - this would require a land use compatibility statement from Deschutes County assuring the development is consistent with statewide planning goals. The permit and associated erosion and sediment control plan would likey have to go through public notice process. 2) What is the current regulatory status of the site? The landowner has proposed to rezone the site from surface mining to residential use. Residential use could include 3 dwellings without further land use action and up to 74 dwellings through a later land use approval. -The site currently has been issued a No Further Action (NFA) determination for an industrial .Zoning use designation. The NFA was issued in 1985. 3) If the site is not rezoned and left as a surface mine, will any cleanup, site investigation, monitoring, or site restoration be required by your agency? -No. DEQ-Cleanup has reviewed the .site file and data gaps and the site is currently a low environmental-priority. 4) If the site is rezoned for residential use, would this (in itself) trigger any cleanup, site investigation, monitoring, or site restoration to be required by your agency? -Yes. A rezone of the site from industrial to residential would trigger a re-evaluation of the site. 5) If the site is rezoned for residential use and three dwellings (with domestic wells and septic systems) are constructed, would this trigger any cleanup, site investigation, monitoring, or site restoration to be required by your agency? -Yes. A rezone of the site from industrial to residential would trigger a re-evaluation of the site. 6) Is the site presently safe and suitable for residential use with three dwellings? -The site has currently only been evaluated by DEQ far its current use as a mine and an industrial propery. 7) If the site is rezoned for residential use and the applicant applies for a planned development with up to 74 dwellings (with domestic wells and septic systems), would this trigger any cleanup, site investigation, monitoring, or site restoration to be required by your agency? -Yes. A rezone of the site from industrial to residential would trigger a re-evaluation of the site. rev 11 /08 jl 10 8) Is the site presently safe and suitable for residential use with 74 dwellings? -The site has currently only been evaluated by DEQ for its current use as a mine and an industrial property. 9) If the County, though its regulatory process, does not require cleanup, site investigation, monitoring, or site restoration, is there any state or federal regulation that would prevent residential development of the site in its present state? -There are no ruler that would prevent development of the site, with the caveat, that a redone of the .rite from industrial to residential would trigger a re-evaluation of the site by DEQ. The re-evaluation of the site and applicable exposure routes and pathways may result in some scenarios requiring deed restrictions, active cleanup and/or monitoring. 10) Does your agency issue any sort of certification that a site is safe and suitable for residential use? Yes, pending the developer and/orproper y owner working with DEQ-Cleanup to re-evaluate the site for residential use, DEQ could then issue a 1VFA for residential use. rev 11/08j1