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2009-1574-Minutes for Meeting March 16,2009 Recorded 12/29/2009COUNTY OFFICIAL NANCYUBLANKENSHIP, COUNTY CLERKDS Q 2009-1514 COMMISSIONERS' JOURNAL 12/29/2009 12:28;38 PM 1I4III 11111III11111II 11111! 3 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.orR MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, MARCH 16, 2009 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Tammy Baney, Dennis R. Luke and Alan Unger. Also present were Dave Kanner, County Administrator; Chris Bedsaul and Anthony Raguine, Community Development; Laurie Craghead, Legal Counsel; Timm Schimke, Solid Waste; and two other citizens. Chair Baney opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was Consideration of Signature of Document No. 2009- 145, a Change Order to an Agreement regarding the 2008 Knott Landfill Rock Removal Project. Timm Schimke said this is a change order to the contract approved in late 2008 for rock removal from Knott Landfill to be taken to the rose pit. The bids that were received are competitive. Public contracting law allows changes of 25% of the contract amount. There were some small change orders but this large one will bring them to 25% over original contract. Commissioner Baney asked if this is a one time change order. Mr. Schimke said yes and once the 25% cap is reached, they will have to go out to bid for more work. Commissioner Luke asked if there was some discussion about crushing yet. Mr. Schimke said no. The quality of the rock is increasing as they get farther Board of Commissioners' Business Meeting Monday, March 16, 2009 Page 1 of 6 Pages into the mass and they may have it tested to see if it meets state standards. They will crush some for landfill needs and will have additional rock available to them that they may designate for some future projects. LUKE: Move approval of Document No. 2009-145. UNGER: Second. VOTE: LUKE: Yes. UNGER: Yes. BANEY: Chair votes yes. 3. Before the Board was Consideration of Signature of Order No. 2009-016, Denying Review of the Hearings Officer's Decision regarding a Seven-lot Subdivision Proposed by Delmar and Delores Kennel. Chris Bedsaul said the application has been in process for quite some time. The public heard the decision on July 2007 which was a denial. In October of 2007 the applicant filed an appeal. In March of 2008 the applicant requested a second delay and extended the period for one year. The applicants request for extension is now expired. The applicant has not received a ruling and staff recommends denial. LUKE: Move approval of Order No. 2009-016. UNGER: Second. VOTE: LUKE: Yes. UNGER: Yes. BANEY: Chair votes yes. 4. Before the Board was a Public Hearing on an Application for a Plan Amendment and Zone Change for the Deschutes Junction Rural Industrial Zoned Subject Property 4-R Equipment. Anthony Raguine said he is attending in place of Will Groves. Commissioner Baney opened the hearing and read the opening statement. Laurie Craghead said apparently the statement was not changed; the period is still at the Boards discretion. Commissioner Baney said to strike any mention of seven days. The time period is at the Boards discretion. Board of Commissioners' Business Meeting Monday, March 16, 2009 Page 2 of 6 Pages Mr. Raguine gave the staff report and said there is no opposition to the application. The Hearings Officer gave her approval. Ms. Craghead said because of this being in a resource zone, the Board is required to hear it. Ms. Craghead said aggregate and minerals are the resources. It was EFU at one point before it became industrial. Commissioner Luke asked if there was ever any water on the land. Commissioner Baney said per the findings it is believed there is. Mr. Raguine finished with the staff report. Sharon Smith handed out maps. She said they are already in the record but brought them for easy reference. She referred to the map showing the strip for tax lot 301 between the canal and the rural industrial zone. The property had been EFU prior to the rezone of Cascade Pumice in the 1990's. It originally allowed only the process of pumice. Cascade Pumice is no longer there. She said Ron Robinson would like to do crushing of minerals, pumice and aggregate. West of the canal tax lot 200 is also owned by 4R and it is zoned EFU. The second document is a concept plan that shows the operation and future operations for Deschutes Junction area. It has an office building, equipment shop, fueling and south of the overpass areas for stockpiling and processing. The overpass is being extended and will somewhat impact operations but it will still be usable. They will be asking for a zone change Commissioner Luke asked if the future application will be on a concept development plan. Mr. Robinson said there is an existing rock pile with a screen of junipers. Commissioner Luke stated the future concept is not in the current plan. Ms. Smith said that is correct, it will be in a future plan. The current application is not the entire parcel but a portion of tax lot 301. She said they did not have anything additional to add. The Hearings Officer made the decision and they are just asking the Board to approve the application. She said there is no reason to leave the record open. Ms. Craghead said unless the Board has changes, she recommends the Board to move to adopt the Hearings Officers decision. Commissioner Baney closed the hearing. LUKE: Move approval. UNGER: Second. VOTE: LUKE: Yes. UNGER: Yes. BANEY: Chair votes yes. Board of Commissioners' Business Meeting Monday, March 16, 2009 Page 3 of 6 Pages Before the Board was Consideration of Approval of the Consent Agenda. LUKE: Move approval of the Consent Agenda. UNGER: Second. VOTE: LUKE: UNGER: BANEY: Consent Agenda Items Yes. Yes. Chair votes yes. 5. Approval of Minutes: • Public Hearing: October 22, 2008 - Event Venues • Business Meeting: March 11 CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 6. Before the Board was Consideration of Approval of Account Payable Vouchers for the 9-1-1 County Service District in the Amount of $9,971.17. LUKE: Move approval subject to review. UNGER: Second. VOTE: LUKE: UNGER: BANEY: Yes. Yes. Chair votes yes. CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 7. Before the Board was Consideration of Approval of Account Payable Vouchers for the Extension/4-11 County Service District in the Amount of $1,512.29. LUKE: Move approval subject to review. UNGER: Second. VOTE: LUKE: UNGER: BANEY: Yes. Yes. Chair votes yes. Board of Commissioners' Business Meeting Monday, March 16, 2009 Page 4 of 6 Pages RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 8. Before the Board was Consideration of Approval of Accounts Payable Vouchers for Deschutes County in the Amount of $595,575.47. LUKE: Move approval subject to review. UNGER: Second. VOTE: LUKE: Yes. UNGER: Yes. BANEY: Chair votes yes. 9. Before the Board were Additions to the Agenda. Ms. Craghead said given all parties are in attendance, she suggested the Board reopen the hearing and decide whether to have the ordinances adopted by emergency clause. Commissioner Baney reopened the hearing for item #4 on the agenda. Commissioner Luke said they do not do emergency clauses on ordinances unless there is a good reason. Ms. Smith said it needs the emergency clause for variety of reasons. They are not changing the operation, only the types of materials. This will allow operations to continue. Commissioner Unger said he was supportive of it as the impacts were minimal. Commissioner Baney said there was no opposition. Commissioner Luke sated he saw no reason to delay the application. Commissioner Baney re-closed the public hearing. LUKE: Move approval to amend previous motion to adopt by emergency. UNGER: Second. VOTE: LUKE: UNGER: BANEY: Yes. Yes. Chair votes yes. Board of Commissioners' Business Meeting Monday, March 16, 2009 Page 5 of 6 Pages Being no further items to come before the Board, the meeting adjourned at 10:50 a. m. Commissioners. ATTEST: Recording Secretary Lw~~ Tammy Baney, Chair Dennis R. Luke, Vice Chair ab-4~ amp-, Alan Unger, Commissioner "vaiu vi k,uinmissioners' tsusiness Meeting Page 6 of 6 Pages DATED this 16th Day of March 2009 for the Deschutes County Board of Monday, March 16, 2009 I 4 l PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 1. INTRODUCTION A. This is a de novo quasi-judicial hearing on a proposed plan amendment, zone change, and exception to Goals 3 and 14 for the Rural Industrial-zoned subject property in order to expand the types of minerals that can be stored, crushed, processed, sold and distributed within the existing Limited Use Zone. The County File Numbers are PA-08-6 and ZC-08-6. B. The Board takes notice of the record below and includes that record as part of the record before us. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicants have the burden of proving that they are entitled to the proposal sought. B. The standards applicable to the application before us are listed in the Hearings Officer decision. Copies are available on the table near the door. C. Testimony and evidence at this hearing must be directed toward the criteria, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. III. HEARINGS PROCEDURE A. Evidence to be reviewed by the Board. The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. 1 s IV. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the proposal then the opponents will Xn be given a chance to testify and present evidence. 4. The applicants will then be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. B. If anyone wishes to ask a question of a witness, the person may direct the question to the Chair during that person's testimony, or, if the person has already testified, after all other witnesses have testified but before the Applicant's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances 1. The grant of a continuance or record extension shall be at the discretion of the Board. 2. If the Board grants a continuance, it shall continue the public hearing to a date certain at least seven days from the date of this hearing. 3. If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. 4. If the hearing is continued or the record left open, the applicant shall also be allowed at least seven days after the record is closed to all other parties to 2 submit final written arguments but no new evidence in support of the application. V. PRE-HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS A. Do any of the Commissioners have any ex-parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state the nature and extent of those. B. Does any party wish to challenge any Commissioner based on ex-parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) (STAFF REPORT) 3 ~v-c Es c gG 0 { Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ora AGENDA REOUEST & STAFF REPORT For Board Business Meeting of March 16, 2009 DATE: 2/24/09 FROM: Will Groves CDD x6518 TITLE OF AGENDA ITEM: A de novo hearing on applicant 4-R Equipment's application for a plan amendment, zone change, and exception to Goals 3 and 14 for the Deschutes Junction Rural Industrial (RI) zoned subject property in order to expand the types of minerals that can be stored, crushed, processed, sold and distributed within the existing Limited Use Combining (LU) Zone. County File Numbers PA-08-6 and ZC-08-6. PUBLIC HEARING ON THIS DATE? Yes BACKGROUND AND POLICY IMPLICATIONS: The applicant purchased the subject property in November 2007. The applicant operates businesses that rely on the storage, crushing, processing, sale and distribution of aggregate materials. The existing Limited Use Zone does not allow this, as it provides for pumice only. The applicant has requested approval of a plan amendment, zone change and "reasons" exception to Goals 3 and 14 to modify the existing Limited Use Combining (LU) Zone on the subject property to allow the storage, crushing, processing, distribution and sale of other minerals in addition to pumice. The Hearings Officer found the application met all relevant criteria and approved the applicant's proposed plan amendment, zone change and "reasons" exception for the subject property, in a decision dated February 10, 2009. Therefore, the Hearings Officer approved the application subject to conditions. Under 22.28.030(C) Plan amendments and zone changes requiring an exception to the goals or concerning lands designated for forest or agricultural use shall be heard de novo before the Board of County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer or Planning Commission. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REOUESTED• Conduct de novo hearing. ATTENDANCE: Legal, Will Groves DISTRIBUTION OF DOCUMENTS: BOCC, Legal, Will Groves . ■ C Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ NOTICE OF PUBLIC HEARING The Deschutes County Board of Commissioners will hold a Public Hearing on March 16, 2009 at 10:00 A.M. in the Barnes and Sawyer rooms of the Deschutes Services Building located at 1300 NW Wall Street in Bend, to consider the following request: FILE NUMBERS: APPLICANT/ PROPERTY OWNER: APPLICANT'S ATTORNEY: PA-08-6 and ZC-08-6 4-R Equipment, LLC P.O. Box 5006 Bend, Oregon 97708 Sharon R. Smith Bryant Lovlien & Jarvis Pc P.O. Box 880 Bend, Oregon 97709 REQUEST: The applicant requests approval of a plan amendment, zone change, and exception to Goals 3 and 14 for the RI- zoned subject property in order to expand the types of minerals that can be stored, crushed, processed, sold and distributed within the existing LU Zone. STAFF REVIEWER: Will Groves, Senior Planner ALL INTERESTED PERSONS MAY APPEAR, BE HEARD, BE REPRESENTED BY COUNSEL, OR SEND WRITTEN SIGNED TESTIMONY. ALL WRITTEN REPLIES MUST BE RECEIVED BY THIS DEPARTMENT PRIOR TO THE HEARING DATE OR SUBMITTED AT THE HEARING. ANY PARTY TO THE APPLICATION IS ENTITLED TO A CONTINUANCE OF THE INITIAL EVIDENTIARY HEARING OR TO HAVE THE RECORD LEFT OPEN IN ACCORDANCE WITH SECTION 22.24.140 OF THE DESCHUTES COUNTY CODE. Recipients of this notice may request a copy of the Staff Report (25 cents a page). Any person submitting written comment or who presents testimony at the hearing will receive a copy of the decision. Failure to raise an issue in person at the hearing or in writing precludes appeal by that person to the Land Use Board of Appeals (LUBA). Failure to provide statements of Quality Services Performed With Pride r evidence sufficient to afford the decision-maker an opportunity to respond to the issue precludes appeal to LUBA based on that issue. A copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at the Planning Division at no cost, and can be purchased for 25 cents a page. STANDARDS AND APPLICABLE CRITERIA A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions 2. Chapter 18.84, Landscape Management - LM Combining Zone 3. Chapter 18.100, Rural Industrial - RI Zone 4. Chapter 18.112, Limited Use Combining Zone 5. Chapter 18.136, Amendments B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.010, Hearing 2. Chapter 22.020, Notice C. Title 23 of the Deschutes County Code, the Year 2000 Comprehensive Plan 1. Chapter 23.08, Introduction 2. Chapter 23.20, Comprehensive Planning Process 3. Chapter 23.24, Rural Development 4. Chapter 23.40, Unincorporated Communities 5. Chapter 23.120, Goal Exception Statement D. Oregon Administrative Rules, Chapter 660, Land Conservation and Development Commission 1. Division 4 - Interpretation of Goal 2 Exception Process: 2. Division 12 - Transportation Planning Rule 3. Division 14- Urbanization 4. Division 15, State-Wide Planning Goals and Guidelines The meeting location is wheelchair accessible. For the deaf or hearing impaired, an interpreter or assistant listening system will be provided with 48 hours notice. Materials in alternate formats may be made available with 48 hours notice by dialing 541-388- 6621. For other assistance, please dial 7-1-1, State Relay Service. NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER. Please contact Will Groves with the County Planning Division at (541) 388-6518 if you have any questions. Dated this of February 2009 Mailed this of February 2009 0 Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ February 24, 2009 MEMORANDUM To: Deschutes Board of County Commissioners From: Will Groves, Senior Planner Subject: A de novo hearing on a plan amendment, zone change, and exception to Goals 3 and 14 for the Rural Industrial (RI) zoned subject property in order to expand the types of minerals that can be stored, crushed, processed, sold and distributed within the existing Limited Use Combining (LU) Zone. County File Numbers PA-08-6 and ZC-08-6. BACKGROUND Prior to 1998, the subject property was zoned EFU-TRB. In 1998, 4-R Equipment's predecessor Cascade Pumice Company expanded the existing Rural Industrial zone at Deschutes Junction to include the subject property. This ordinance also created a Limited Use Zone for the subject property restricting uses on the property to the storage, crushing, processing, distribution and sale of pumice. The applicant purchased the subject property in November 2007. The applicant operates businesses that rely on the storage, crushing, processing, sale and distribution of aggregate materials. The existing Limited Use Zone does not allow this, as it provides for pumice only. The applicant has requested approval of a plan amendment, zone change and "reasons" exception to Goals 3 and 14 to modify the existing Limited Use Combining (LU) Zone on the subject property to allow the storage, crushing, processing, distribution and sale of other minerals in addition to pumice. The Hearings Officer found the application met all relevant criteria and approved the applicant's proposed plan amendment, zone change and "reasons" exception for the subject property, in a decision dated February 10, 2009. Under 22.28.030(C) Plan amendments and zone changes requiring an exception to the goals or concerning lands designated for forest or agricultural use shall be heard de novo Quality Services Performed zvith Pride . --sM r= C- before the Board of County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer or Planning Commission. STAFF DISCUSSION Staff concurs with the Hearings Officer decision. As of the writing of this memo, there is no public or agency opposition to this proposal. DOCUMENTATION A copy of the staff report and Hearings Officer decision are attached for your review. SCHEDULE This item is scheduled for a de novo hearing at 10 A.M. on March 16, 2009. Please feel free to contact me with any questions or concerns. U to CV - _ _ ---9- U cc oo _ o00 N C14 ~ C14 ~/dr~ ~ I ~ I rrr r ~ t0 091 11191 dym s ~ I rrrrr 9r ~ZO \ ~ ~ / NNE .8 . I wa _ cy Ne r, / s ob - ns 4 d O 1 J py~ - a a 1- d 71 ~ - c I 8 qh. ro y a ~ ~ a l~'0 Li All, O Y l a \ z o •ry o f ~ `z1 / N U tD 'rrl 1^ \ 07 nrr ` -i I N 1 ayla i \ ~ iL'rLBI Y9'9(91 [i- CV U `w~ ~ : / 1 u ca \ x Y r g y ~ 1 1 zit so oI 1 ` ~ n.. 1 1 Ph4\ , I 1 I 9 1 x r 1 I \ ~4 - ~ R rv. r A n - a ~r[L 1 I OGZ ZI 9lIdY11 335 I I r 1 m PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 1. INTRODUCTION A. This is a de novo quasi-judicial hearing on a proposed plan amendment, zone change, and exception to Goals 3 and 14 for the Rural Industrial-zoned subject property in order to expand the types of minerals that can be stored, crushed, processed, sold and distributed within the existing Limited Use Zone. The County File Numbers are PA-08-6 and ZC-08-6. B. The Board takes notice of the record below and includes that record as part of the record before us. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicants have the burden of proving that they are entitled to the proposal sought. B. The standards applicable to the application before us are listed in the Hearings Officer decision. Copies are available on the table near the door. C. Testimony and evidence at this hearing must be directed toward the criteria, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. III. HEARINGS PROCEDURE A. Evidence to be reviewed by the Board. The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. 1 IV. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the proposal then the opponents will then be given a chance to testify and present evidence. 4. The applicants will then be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. B. If anyone wishes to ask a question of a witness, the person may direct the question to the Chair during that person's testimony, or, if the person has already testified, after all other witnesses have testified but before the Applicant's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances The grant of a continuance or record extension shall be at the discretion of the Board. 2. If the Board grants a continuance, it shall continue the public hearing to a date certain at least seven days from the date of this hearing. 3. If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. 4. If the hearing is continued or the record left open, the applicant shall also be allowed at least seven days after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. V. PRE-HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS A. Do any of the Commissioners have any ex-parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state the nature and extent of those. B. Does any party wish to challenge any Commissioner based on ex-parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) (STAFF REPORT) 3 NOTICE OF PUBLIC HEARING The Deschutes County Board of Commissioners will hold a Public Hearing on March 16, 2009 at 10:00 A.M. in the Barnes and Sawyer rooms of the Deschutes Services Building located at 1300 NW Wall Street in Bend, to consider the following request: FILE NUMBERS: PA-08-6 and ZC-08-6 APPLICANT/ PROPERTY OWNER: 4-R Equipment, LLC P.O. Box 5006 Bend, Oregon 97708 APPLICANT'S ATTORNEY: Sharon R. Smith Bryant Lovlien & Jarvis Pc P.O. Box 880 Bend, Oregon 97709 REQUEST: The applicant requests approval of a plan amendment, zone change, and exception to Goals 3 and 14 for the RI- zoned subject property in order to expand the types of minerals that can be stored, crushed, processed, sold and distributed within the existing LU Zone. STAFF REVIEWER: Will Groves, Senior Planner A copy of the staff report, application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at the Planning Division at no cost, and can be purchased for 25 cents a page. They are also available on-line at: www.co.deschutes.or.us/cdd/. The meeting location is wheelchair accessible. For the deaf or hearing impaired, an interpreter or assistant listening system will be provided with 48 hours notice. Materials in alternate formats may be made available with 48 hours notice by dialing 541-388- 6621. For other assistance, please dial 7-1-1, State Relay Service. Please contact Will Groves, Senior Planner (willg@deschutes.org) with the County Planning Division at (541) 388-6518 if you have any questions. Community Development Department Planning Division Building Safety Division Environmental Health Division Q 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX(541)385-1764 http://www.co.deschutes.or.us/cdd/ CERTIFICATE OF MAILING FILE NUMBERS: PA-08-6 and ZC-08-6 DOCUMENTS MAILED: Notice of Public Hearing MAP AND TAX LOT NUMBERS: Tax Lot 301 on Map 16-12-26C LOOKUP AREA: none I certify that on the day of February, 2009, the attached notice/report, dated February , 2009, was mailed by first class mail, postage prepaid, to the person(s) and address(es) set forth on the attached list. Dated this day of February, 2009. COMMUNITY DEVELOPMENT DEPARTMENT By: 4-R Equipment, LLC Po Box 5006 Bend, Or 97708 Sharon R. Smith Bryant Lovlien & Jarvis Pc P.O. Box 880 Bend, Oregon 97709 Quality Services Performed zvith Pride DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: APPLICANT/ PROPERTY OWNER: APPLICANT'S ATTORNEY: PA-08-6 and ZC-08-6 4-R Equipment, LLC P.O. Box 5006 Bend, Oregon 97708 Sharon R. Smith Bryant Lovlien & Jarvis Pc P.O. Box 880 Bend, Oregon 97709 REQUEST: The applicant requests approval of a plan amendment, zone change, and exception to Goals 3 and 14 for the RI-zoned subject property in order to expand the types of minerals that can be stored, crushed, processed, sold and distributed within the existing LU Zone. STAFF REVIEWER: HEARING DATE: Will Groves, Senior Planner January 6, 2009 RECORD CLOSED: January 12, 2009 1. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.84, Landscape Management - LM Combining Zone 3. Chapter 18.100, Rural Industrial - RI Zone * Section 18.100.010, Purpose 4. Chapter 18.112, Limited Use Combining Zone * Section 18.112.010, Purpose * Section 18.112.020, Combining Zone Requirements 4-R Equipment PA-08-6/ ZC-08-6 Page 1 of 38 5. Chapter 18.136, Amendments * Section 18.136.020, Rezoning Standards B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.010, Hearing 2. Chapter 22.020, Notice C. Title 23 of the Deschutes County Code, the Year 2000 Comprehensive Plan 1. Chapter 23.08, Introduction * Section 23.08.010, Introduction 2. Chapter 23.20, Comprehensive Planning Process * Section 23.20.040, Goals and Policies 3. Chapter 23.24, Rural Development * Section 23.24.020, Goals * Section 23.24.030, Policies 4. Chapter 23.40, Unincorporated Communities 5. Chapter 23.120, Goal Exception Statement * Section 23.120.110, Rural Industrial Zone D. Oregon Administrative Rules, Chapter 660, Land Conservation and Development Commission 1. Division 4 - Interpretation of Goal 2 Exception Process: * OAR 660-004-0010, Application of the Goal 2 Exception Process to Certain Goals * OAR 660-004-0018, Planning and Zoning for Exception Areas * OAR 660-004-0020, Goal 2, Part II(c), Exception Requirements * OAR 660-004-0022, Reasons Exceptions Analysis for Rural Industrial 2. Division 12 - Transportation Planning Rule 4-R Equipment PA-08-6/ ZC-08-6 Page 2 of 38 * OAR 660-12-0060, Plan and Land Use Regulation Amendments 3. Division 14- Urbanization * OAR 660-014-0040, Establishment of New Urban Development on Undeveloped Rural Lands 4. Division 15, State-Wide Planning Goals and Guidelines * OAR 660-015-000, State-wide Planning Goals and Guidelines No. 1 Through No. 14 * OAR 660-0115-005, State-wide Planning Goal and Guideline No. 15 * OAR 660-015-010, State-wide Planning Goals and Guidelines No. 16 Through NO. 19 II. FINDINGS OF FACT: A. Location: The subject property is located at 64993 Deschutes Market Road, Bend and is further identified as a portion of Tax Lot 301 on Deschutes County Assessor's Map 16- 12-26C. The property is located at Deschutes Junction near the southeast corner of the intersection of Deschutes Market Road/Tumalo Road and Highway 97. B. Zoning and Plan Designation: The subject property is zoned Rural Industrial (RI) with a Limited Use (LU) Combining Zone limiting the use to the storage, crushing, processing, sale and distribution of pumice. The remainder of Tax Lot 301 is zone RI with no LU Zone. The record indicates that in September 2007, after the property was zoned RI with the LU Zone, the applicant's predecessor obtained a lot line adjustment between Tax Lot 301 and the adjacent Tax Lot 111 that resulted in additional land being included in Tax Lot 301 that is not subject to the LU Zone (LL-07-76). Tax Lot 301 also is within the Landscape Management Combining Zone (LM) associated with Highway 97.Tax Lot 301 is designated Rural Industrial on the comprehensive plan map. C. Site Description: The subject property is 6.7 acres in size and irregular in shape. It was used for the storage, crushing, processing, distribution and sale of pumice from 1998 until 2007 when the property was sold to the applicant. The property has very little vegetation. Most of it is level and there is a small area of fill in the northern portion to provide vehicle access to Tumalo Road. The property does not have any irrigation water rights. D. Soils: The National Resource Conservation Service (MRCS) data in the record indicates Tax Lot 301 is comprised of a single soil type - Soil Unit 38B, Deskamp-Gosney complex, 0 to 8% slopes. This soil is composed of 50% Deskamp soil and similar inclusions, 35% Gosney Soil and similar inclusions, and 15% contrasting inclusions. The Deskamp soils are somewhat excessively drained with rapid permeability, and an available water capacity of about 3 inches. The Gosney soils are somewhat excessively drained with rapid permeability, and an available water capacity of about 1 inch. The contrasting inclusions contain Clovkamp soils in swales, soils that are very shallow to bedrock, and are 4-R Equipment PA-08-6/ ZC-08-6 Page 3 of 38 on ridges with occasional rock outcrops. The major agricultural use of this soil is for livestock grazing. The Deskamp soils have ratings of 6E when unirrigated, and 3E when irrigated. The Gosney soils have ratings of 7E when unirrigated, and 4E when irrigated. This soil type is not considered high-value soil when irrigated. This soil type has a Class 6e farm use capability rating. The entire subject parcel is made up of this soil type. E. Surrounding Zoning and Land Uses:, The Central Oregon Irrigation District (COID) main canal runs along the western boundary of Tax Lot 301. Land to the north and east is zoned RI with no LU Zone. Tax Lots 111 and 102 within this zoning district are owned by Jack Robinson and Sons, Inc., a company affiliated with the applicant, and are used for the processing and sale of minerals. Tax Lot 107 located north of Tax Lots 102 and 111 is owned by United Pipe and Supply Company and used for that company's headquarters and business operations. Tax Lot 106 to the north and east of the COID canal is owned by Willamette Graystone and is developed with a concrete products manufacturing facility. The property to the west across the COID canal is zoned Exclusive Farm Use-Tumalo/Redmond/Bend Subzone (EFU-TRB) and is vacant. Further to the west is Highway 97. Further to the north across Deschutes Market Road is property zoned EFU-TRB and used for a number of years as a quasi-commercial park and gift/antique shop called "The Funny Farm." Across Highway 97 to the northwest is a parcel zoned Rural Commercial (RC) and developed with a building/landscaping supply business. Further to the east of the subject property are the Burlington Northern-Santa Fe (BNSF) railroad tracks. To the east of the tracks is the Tioga Mobile Home Park. South of this small mobile home park is vacant land zoned EFU-TRB and EFU-Alfalfa Subzone (EFU-Al). None of the abutting EFU-zoned property is engaged in farm use. F. Procedural History: Until 1998, the subject property was zoned EFU-TRB. In 1998, the applicant's predecessor Cascade Pumice Company expanded the existing RI zone at Deschutes Junction to include the subject property by applying for and receiving approval of a "reasons" exception to Goals 3 and 14. The Deschutes County Board of Commissioners (board) adopted this "reasons" exception through Ordinance No. 98-081. This ordinance also created an LU Zone for the subject property restricting uses on the property to the storage, crushing, processing, distribution and sale of pumice. The ordinance states in pertinent part: "PL-20, the Deschutes County Year 2000 Comprehensive Plan, is amended by the adoption of an irrevocably committed exception to Goal 3 and a reasons exception to Goal 14. To ensure that the uses in the Rural Industrial zone on tax lot 16-12-26C are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of pumice "(Bold emphasis in original.) 4-R Equipment PA-08-6/ ZC-08-6 Page 4 of 38 In September 2007, the applicant's predecessor obtained a lot line adjustment (LL-07-76) that adjusted the boundary between Tax Lot 301 and Tax Lot 111, resulting in an increase in the size of Tax Lot 301 beyond the LU Zone created in 1998. The applicant purchased the subject property in November 2007. The record indicates the applicant and Jack Robinson & Sons, Inc. operate businesses that rely on the storage, crushing, processing, sale and distribution of aggregate materials. A major portion of their businesses includes recycling large rocks excavated during construction through processing into aggregate materials used as base rock for utility trenches, roads, and other construction purposes. The subject plan amendment, zone change and goal exception applications were submitted on November 5, 2008, accompanied by a burden of proof statement and exhibits (hereafter "original burden of proof'). These applications were accepted by the county as complete on December 3, 2008. Because the subject applications include, and their approval is dependent upon, a plan amendment, the 150-day period for issuance of a final local land use decision under ORS 215.427 is not applicable. A public hearing on the applications was held on January 6, 2009. At the hearing, the Hearings Officer received testimony and evidence, left the written evidentiary record open through January 12, 2009, and allowed the applicant through January 19, 2009 to submit final argument pursuant to ORS 197.763. The applicant submitted a supplemental burden of proof on January 6, 2009, and a second supplemental burden of proof on January 12, 2009. The applicant waived final argument. Therefore, the record closed on January 12, 2009. G. Proposal: The applicant requests approval of a plan amendment, zone change and "reasons" exception to Goals 3 and 14 to modify the existing LU Zone on the subject property to allow the storage, crushing, processing, distribution and sale of other minerals in addition to pumice. This request is based on the applicant's claim that the pumice resource in this part of the county has been fully mined and there is no longer a need or market for pumice processing on the subject property. The applicant does not request approval to do any batching or blending of minerals into concrete or cement. 1. Public/Private Agency Comments: The Planning Division sent notice of the applicant's proposal to a number of public and private agencies and received responses from: the Deschutes County Road Department (road department) and Transportation Planner; and the Bend Fire Department. These comments are set forth verbatim at pages 4-5 of the staff report and are included in the record. The following agencies did not respond to the request for comments: the Oregon Departments of Geology (DOGAMI), Transportation (ODOT), and Land Conservation and Development (DLCD). J. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 750 feet of the subject property. In addition, notice of the public hearing was published in the Bend "Bulletin" newspaper, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter 4-R Equipment PA-08-6/ ZC-08-6 Page 5 of 38 closed no members of the public had responded to these notices. No members of the public testified at the public hearing. K. Lot of Record: Tax Lot 301 is a legal lot of record pursuant to a 2007 lot-of-record determination (LR-07-49). III. CONCLUSIONS OF LAW: GOAL EXCEPTIONS A. Oregon Administrative Rules, Chapter 660, Land Conservation and Development Commission 1. Division 4, Interpretation of Goal 2 Exception Process a. OAR 660-004-0010, Application of the Goal 2 Exception Process to Certain Goals (1) The exceptions process is not applicable to Statewide Goal 1 "Citizen Involvement" and Goal 2 "Land Use Planning." The exceptions process is generally applicable to all or part of those statewide goals which prescribe or restrict certain uses of resource land or limit the provision of certain public facilities and services. These statewide goals include but are not limited to: (a) Goal 3 "Agricultural Lands"; however, an exception to Goal 3 "Agricultural Lands" is not required for any of the farm or nonfarm uses permitted in an Exclusive Farm Use Zone under ORS Chapter 215 and OAR chapter 660 division 033, "Agricultural Lands" (c) Goal 14 "Urbanization" except as provided for in OAR Chapter 660, division 014 and the applicable paragraph (1)(c)(A), (B) or (C) of this rule: FINDINGS: The applicant has requested approval of a "reasons" exception to Goals 3 and 14, and compliance with the requirements for such an exception is addressed in the findings below. b. OAR 660-004-0018, Planning and Zoning for Exception Areas (4) "Reasons" Exceptions: 4-R Equipment PA-08-6/ ZC-08-6 Page 6 of 38 (a) When a local government takes an exception under the "Reasons" section of ORS 197.732(1)(c) and OAR 660- 004-0020 through 660-004-0022, plan and zone designations must limit the uses, density, public facilities and services, and activities to only those that are justified in the exception; FINDINGS: The applicant has requested a "reasons" exception to Goals 3 and 14 in order to modify the existing LU Zone on the RI-zoned subject property to expand the types of minerals that can be store, crushed, processed, distributed and sold on the property. Therefore, the uses permitted on the subject property under the proposed exception would be limited to those justified by the exception, discussed in detail in the findings below. (b) When a local government changes the types or intensities of uses or public facilities and services within an area approved as a "Reasons" exception, a new "Reasons" exception is required; FINDINGS: The applicant has requested approval to expand the types of minerals that may be stored, crushed, processed, distributed and sold on the subject property, and has requested another "reasons" exception for such expansion in order to modify the existing LU Zone. The Hearings Officer finds the threshold question is whether the applicant's proposal constitutes a change in "the types or intensities of uses" in the previously approved exception area requiring another "reasons" exception. Section 18.04.030 defines "use" as follows: "Use" means the purpose for which land or a structure is designed, arranged or intended, or for which it is occupied or maintained." The applicant proposes to continue the essential industrial use of the subject property approved through the previous "reasons" exception - i.e., the storage, crushing, processing, distribution and sale of minerals. The only modification would be to expand the types of materials to any minerals rather than limited to pumice. There is no evidence in this record that the storage, crushing, processing, distribution and sale of minerals other than pumice is meaningfully different than the same activities involving pumice. Therefore, it appears the nature and scope of the use of the subject property would not change. In Doherty v. Morrow County, 44 Or LUBA 141 (2003), LUBA stated in relevant part: "OAR 660-004-0018(4)(b) does not expressly require that the new reasons exception that must be taken under the rule to change the uses that were authorized by a previously adopted reasons exception must include an exception to the same goal or goals that were the subject of the original exception. The rule is therefore somewhat ambiguous. " 4-R Equipment PA-08-6/ ZC-08-6 Page 7 of 38 The applicant's original burden of proof states that because application of this rule is "somewhat ambiguous," and because there is not clear guidance in case law, the applicant chose to address the same "reasons" exception criteria that were analyzed under the 1998 "reasons" exception. The applicant and staff have not identified, nor has the Hearings Officer found, any means of modifying the existing LU Zone established through the previous "reasons" exception other than through approval of another "reasons" exception under this rule. That is the case even where, as here, some approval criteria for a "reasons" exception are not a good fit for the applicant's proposal inasmuch as the existing RI zoning on the subject property will not change. Therefore, I find the applicant must obtain approval of a new "reasons" exception to modify the existing LU Zone. C. OAR 660-004-020, Goal 2, Part II(c), Exception Requirements: (1) If a jurisdiction determines there are reasons consistent with OAR 660-04-022 to use resource lands for uses not allowed by the applicable Goal, the justification shall be set forth in the comprehensive plan as an exception. FINDINGS: The proposal's consistency with OAR 660-04-022 is discussed in detail in the findings below. The applicant has proposed the following language to be included in the comprehensive plan as justification for the requested exception: "I1 a. To ensure that the uses in the Rural Industrial zone on tax lot 16-12-260- 301 are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, that will limit the uses to storage, crushing, processing, sale and distribution of pumice and other minerals. " The staff report recommends the following slightly different language: "11 a. To ensure that the uses in the Rural Industrial zone on tax lot 16-12-26C- 301 are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of pnmiee minerals. " The Hearings Officer finds staffs proposed language is simpler and clearer than the applicant's language because under Section 18.04.030 "minerals" is defined to include both pumice and aggregate.1 ' The full definition in Section 18.04.030 is as follows: "Minerals" includes, but is not limited to soil, select fill, coal, clay, stone, sand, gravel, aggregate, pumice, cinders, metallic ore and any other inorganic soil excavated from a natural deposit in the earth for commercial, industrial or construction use. 4-R Equipment PA-08-6/ ZC-08-6 Page 8 of 38 (2) The four factors of Goal 2 Part II(c) required to be addressed when taking an exception to a Goal are: (a) "Reasons justify why the state policy embodied in the applicable goals should not apply": The exception shall set forth the facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations including the amount of land for the use being planned and why the use requires a location on resource land: FINDINGS: The subject property currently is governed by the following LU Zone exception language: "To ensure that the uses in the Rural Industrial Zone on Tax Lot 16-12-26c-301 are limited in nature and scope, the RI zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the use to storage, crushing, processing, sale and distribution of pumice. " The staff report states, and the Hearings Officer agrees, that in order to demonstrate compliance with this administrative rule, the applicant to demonstrate or explain: (1) the basis for determining that state policy embodied in the applicable goals should not apply; (2) the amount of land that is required for the use being planned; and (3) why the use requires a location on resource land. Each of these factors is addressed separately in the findings below: 1. Basis for Determining State Policy Embodied in the Goals Should Not Apply. a. Goal 3. The state policy embodied in Goal 3, Agriculture, is the preservation of agricultural land for agricultural uses. The subject property no longer is zoned EFU, having been rezoned to RI in 1998. The record indicates the subject property has been completely committed to industrial use and therefore no longer is suitable for agricultural use. It does not have irrigation water rights. The only soil unit on the subject property 3813, Deskamp-Gosney complex - has a very low capability rating of 6e and 7e without irrigation. In addition, the subject property is located in close proximity to Highway 97, the BNSF railroad tracks, and other industrial uses. For these reasons, the Hearings Officer finds the applicant has demonstrated the policy embodied in Goal 3 should not apply to the subject property. b. Goal 14. The state policy embodied in Goal 14, Urbanization, includes providing an orderly transition from rural to urban uses and assuring efficient use of land. The subject property is considered "rural" because it is not located within an urban growth boundary (UGB) or an unincorporated urban area. However, it has been employed in industrial use for over ten years, and the applicant's proposal to expand the types of minerals that could be handled on the property would not change the property's essential use. The property abuts the BNSF railroad tracks and other rural industrial uses that have existed at Deschutes Junction for many years. For these reasons, the Hearings Officer finds the applicant has demonstrated the policy embodied in 4-R Equipment PA-08-6/ ZC-08-6 Page 9 of 38 Goal 14 in fact is met by the historic rural industrial use of the subject property, and would be met by the applicant's proposed minor modification to the scope of the LU Zone. 2. The Amount of Land Required for the Use Being Planned. The applicant's original burden of proof states the 6.7-acre subject property is the minimum size required to continue the historic industrial use and to include aggregate and other minerals in the operation. The record indicates the subject property will continue to be utilized in conjunction with adjacent RI-zoned property owned by Jack Robinson & Sons for its construction-related business which is not subject to the LU Zone. For these reasons, the Hearings Officer finds the applicant has demonstrated the subject property is the size necessary for the proposed use. 3. Why the Use Requires a Location on Resource Land. The subject property was rezoned from EFU to RI in 1998. Therefore, it is no longer resource land. Nevertheless, because OAR 660-04-0018(b) requires the applicant to apply for and receive approval of a new "reasons" exception in order to modify the previously-approved "reasons" exception, the Hearings Officer finds the applicant must demonstrate the proposed use must be located on the subject property which previously was resource land. The applicant's supplemental burden of proof states in relevant part: "The location on resource land facilitates efficient land use and reduction of traffic, both goals found in the Deschutes County Comprehensive Plan. Specifically, the Comprehensive Plan identifies value for mineral and aggregate mining and processing sites based upon a variety of factors including the following: location in relationship to markets, accessibility of deposits to heavy duty roads, railroads or navigable waterways, and distance from point of use. Deschutes County Comprehensive Plan Section 23.100.030. Here, the property is centrally located to the Deschutes County market and provides short distances to the point of use for minerals and products made from minerals such as concrete and asphalt. The property also must be located on this resource land because it is accessible by an interchange to Highway 97 that provides superior transportation options and to the railroad spur. " The Hearings Officer finds these reasons justify a finding that the proposed industrial use requires a location on the subject property (b) Areas which do not require a new exception cannot reasonably accommodate the use: (A) The exception shall indicate on a map or otherwise describe the location of possible alternative areas considered for the use, which do not require a new exception. The area for which the exception is taken shall be identified; (B) To show why the particular site is justified, it is 4-R Equipment PA-08-6/ ZC-08-6 Page 10 of 38 necessary to discuss why other areas which do not require a new exception cannot reasonably accommodate the proposed use. Economic factors can be considered along with other relevant factors in determining that the use cannot reasonably be accommodated in other areas. Under the alternative factor the following questions shall be addressed: (i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, including increasing the density of uses on nonresource land? If not, why not? FINDINGS: The applicant's proposed use is a continuation of the historic industrial use on the subject property consisting of the storage, crushing, processing, distribution and sale of minerals. This use is permitted outright only in the RI and Surface Mine (SM) Zones, discussed below. 1. Rural Industrial Zone. The record indicates there are only three RI-zoned areas in the county, including Deschutes Junction in which the subject property is located. The other two are located east of the Redmond airport (owned and used by the Oregon Department of Military), and an approximately 12-acre parcel near La Pine currently developed for use by a construction company. These parcels do not satisfy the locational requirements of the proposed use because neither is centrally located within the county nor has easy access to Highway 97 or the BNSF railroad tracks. The staff report questions why the proposed use could not be accommodated on the adjacent RI- zoned land at Deschutes Junction owned and operated by Jack Robinson & Sons, Inc. through increased density of uses on that property. In its supplemental burden of proof, the applicant responded as follows: "Increased density of use is not possible because to safely store, crush, process, sell and distribute minerals requires full use of all the rural industrial zoned property at Deschutes Junction including the subject property. The site requires truck parking„ mineral storage, a crusher, conveyor belts and other large equipment for the batch plant to make concrete andlor asphalt. (See Exhibits I- 3). Additionally, the site requires a truck shop, equipment building, fuel tanks, and truck storage. Trucks must be able to safely navigate between the various uses. The Applicant in a separate application has applied for a text amendment to allow additional lands west of the current rural industrial zone to be used for mineral storage because the current rural industrial property is too cramped for efficient use. The site layout, attached as Exhibit 3, shows the proposed uses and indicates that the approximately 6.7 acres are not only necessary, but inadequate and that it is not possible to safely increase the density of uses on existing rural 4-R Equipment PA-08-6/ ZC-08-6 Page 11 of 38 industrial zoned properties. If the Applicant is able to use the 3685 acres of EFU to the west, it intends to move the stockpiled material there, further away from the nearest residence. " (Bold emphasis in original.) The Hearings Officer has reviewed the site layout included in the record and agrees with the applicant that in light of the density of the existing use on adjacent RI-zoned property and the nature of the proposed use, the latter cannot reasonably be accommodated on the adjacent RI- zoned property through increasing the density of existing uses on that property. 2. Surface Mining Zone. There are a number of SM-zoned properties throughout the county. The applicant argues these parcels cannot reasonably accommodate its proposed use because the majority of aggregate to be processed on the subject property is and will be obtained from construction sites rather than through surface mining by on-site extraction. In addition, the applicant notes that in the SM Zone mineral extraction activities typically must be sited in a separate location from sites for processing, distribution, vehicle repair and other related uses, whereas these multiple uses can be sited together in the RI Zone, increasing operational and energy efficiency. The Hearings Officer agrees with the applicant that for these reasons the proposed use cannot reasonably be accommodated on SM-zoned land. (ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed , to nonresource uses, not allowed by the applicable Goal, including resource land in existing rural centers, or by increasing the density of uses on committed lands? If not, why not? FINDINGS: The applicant argues that there are no irrevocably committed resource lands or rural centers that can reasonably accommodate the proposed use because this use has locational and operational requirements that cannot be met on such lands. Specifically, the applicant argues none of the irrevocably committed resource lands is centrally located within the county, has sufficient size to accommodate the use, has easy access to Highway 97, or is adjacent to a railroad. The Hearings Officer concurs with the applicant and finds that for these reasons its proposal satisfies this criterion. (iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not? FINDINGS: The record indicates the subject property is located approximately half way between Bend and Redmond, and at least several miles from either city's UGB. The applicant's burden of proof states that while there are industrial-zoned sites within these UGBs, they cannot 4-R Equipment PA-08-6/ ZC-08-6 Page 12 of 38 reasonably accommodate the proposed use primarily because they are not large enough to allow both storage and processing of minerals in a manner that would permit the applicant to adequately mitigate dust, noise and other potential impacts on surrounding urban-density lands. In addition, the applicant notes economic factors can be considered under this rule, and argues that sites within UGBs would not be suitable from an economic standpoint because they would be more costly to acquire and would increase transportation costs over the subject property's more central location within the county. The Hearings Officer agrees with the applicant that for these reasons its proposal satisfies this criterion. (C) The alternative areas standard can be met by a broad review of similar types of areas rather than a review of specific alternative sites. Initially, a local government adopting an exception need assess only whether those similar types of areas in the vicinity could not reasonably accommodate the proposed use. Site specific comparisons are not required of a local government taking an exception, unless another party to the local proceeding can describe why there are specific sites that can more reasonably accommodate the proposed use. A detailed evaluation of specific alternative sites is thus not required unless such sites are specifically described with facts to support to support the assertion that the sites are more reasonable by another party during the local exceptions proceeding. FINDINGS: The applicant's burdens of proof do not include a detailed evaluation of specific alternative sites beyond those discussed in the findings above. The applicant argues, and the Hearings Officer agrees, that its burdens of proof adequately assess similar types of areas in the county, as required by this section, in order to determine if they could reasonably accommodate the proposed use. (c) The long-term environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception. The exception shall describe the characteristics of each alternative areas considered by the jurisdiction for which an exception might be taken, the typical advantages and disadvantages of using the area for a use not allowed by the Goal, and the typical positive and negative 4-R Equipment PA-08-6/ ZC-08-6 Page 13 of 38 consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. A detailed evaluation of specific alternative sites is not required unless such sites are specifically described with facts to support the assertion that the sites have significantly fewer adverse impacts during the local exceptions proceeding. The exception shall include the reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the proposed site. Such reasons shall include but are not limited to, the facts used to determine which resource land is least productive; the ability to sustain resource uses near the proposed use; and the long-term economic impact on the general area caused by irreversible removal of the land from the resource base. Other possible impacts include the effects of the proposed use on the water table, on the costs of improving roads and on the costs to special service districts; FINDINGS: The board's 1998 decision approving the "reasons" exception for the existing RI and LU Zones on the subject property included an extensive environmental, economic, social and energy (ESEE) analysis. The Hearings Officer makes the following similar findings concerning the applicant's proposed modification to the LU Zone. 1. Environmental. The subject property has been employed in an industrial use since 1998, and has been significantly modified to accommodate that use. These modifications, coupled with the property's poor quality soil and lack of irrigation, make it no longer suitable for agriculture. The applicant argues, and the Hearings Officer agrees, that utilizing the subject property for the proposed use - one virtually identical to the historic use - would have much lower environmental impacts than would result from utilizing an entirely new property for the proposed use. Moreover, the environmental impacts from the proposed use would be, like those from the historic use, substantially limited given the subject property's location near Highway 97, the BNSF railroad tracks and other industrial property, and some distance from rural residences and parcels engaged in farm use. 2. Economic. The applicant argues, and the Hearings Officer agrees, that the subject property would significantly increase in economic value with the proposed expansion of the LU to allow processing of all minerals since it would allow consolidation of the applicant's related businesses and would no longer depend upon a mineral no longer available nearby. 3. Social. The applicant's burden of proof states it and Jack Robinson & Sons, Inc. are in the process of moving the truck traffic, storage, crushing, processing, sale and distribution of minerals associated with their related businesses from the county's urban areas to Deschutes 4-R Equipment PA-08-6/ ZC-08-6 Page 14 of 38 Junction in part to reduce impacts on dwellings as well as to consolidate their business operations in a location that is central within the county. The record indicates the nearest dwellings are mobile homes located in the Tioga Mobile Home Park southeast of the subject property across the BNSF railroad tracks. The staff report questioned whether the applicant had provided sufficient information from which to find its proposal would cause incompatible adverse impacts on mobile home park residents. In response, the applicant's supplemental burden of proof states in relevant part: "There will be no additional impact on Tioga Mobile Home Park because the property is separated from the Mobile Home Park by the railroad and by existing rural industrial zoned property. As noted in the staff report, there have been no complaints from the Tioga Mobile Home Park during the previous pumice operations or during the current move of 4-R Equipment operations to the Deschutes Junction Rural Industrial site. Since pumice has a greater potential for dust, switching to aggregate will reduce impacts. Existing rural industrial zoned property separates the property to be rezoned from the Mobile Home Park. The park is located on the east side of the railroad tracks away from the rural industrial uses. Additionally, a berm separates the mobile home park from the railroad tracks. (See Exhibit 4). The mobile homes cannot be seen from the property. The railroad track and natural berm act as a buffer and minimize sound and dust from the rural industrial use of the property to the mobile home park. Furthermore, as explained below, the Applicant agrees to continue using its existing water truck to suppress dust. The Applicant also plans to stockpile its loose materials on the EFU property to create distance between those materials and the mobile home park. " (Bold emphasis in original.) In addition, as discussed in the findings below, the applicant has proposed to provide dust suppression on the subject property incompliance with the air quality regulations of the Department of Environmental Quality (DEQ). The Hearings Officer finds this evidence is sufficient to demonstrate the proposed industrial use of the subject property would not be incompatible with the mobile home park. 4. Energy. The applicant argues its proposal will result in reduced energy consumption because, with a consolidated site, trucks can leave with processed material and return to the same site with more waste rock for recycling, reducing the number of total truck trips. In addition, the subject property has easy access to Highway 97 and is adjacent to the BNSF railroad track which has the potential to provide another means of distributing processed minerals. Finally, the applicant notes the subject property already has the equipment necessary for the processing of minerals, further reducing truck trips and energy consumption. (d) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts. The exception shall describe how the proposed use will be rendered compatible with 4=R Equipment PA-08-6/ ZC-08-6 Page 15 of 38 adjacent land uses. The exception shall demonstrate that the proposed use is situated in such a manner as to be compatible with surrounding natural resource and resource management or production practices. "Compatible" is not intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses. FINDINGS: As discussed in the Findings of Fact above, the subject property abuts on the north and east RI-zoned property developed with industrial uses, and on the west and south abuts EFU- zoned property not engaged in farm use. The Hearings Officer finds the applicant's proposed use will be virtually identical to the historic industrial use on the subject property and the existing industrial uses on abutting and surrounding RI-zoned parcels. I further find the proposed use will not interfere with agricultural uses since none is occurring on abutting or nearby EFU-zoned land. With regard to residential use in the Tioga Mobile Home Park located east across the BNSF railroad tracks, the record indicates the park is separated from the subject property by other RI- zoned property and industrial uses as well as the BNSF railroad tracks and a sight-obscuring berm. The record also indicates mobile home residents have not complained about the previous pumice processing activities, and the applicant proposes to suppress dust on the property by application of water. For these reasons, I find the proposed industrial use will continue to be compatible with the residential use in the mobile home park with imposition of a condition of approval requiring the applicant to mitigate dust impacts by complying with DEQ's air quality regulations. (4) For the expansion of an unincorporated community defined under OAR 660-022-0010. The exception requirements of subsections (2)(b), (c), and (d) of this rule are modified to also include the following: FINDINGS: The Hearings Officer finds this paragraph is not applicable because the existing RI- zoned property does not fall within the definition of an "unincorporated community" under OAR 660-022-0010(10)(e) and Section 18.04.030 of the county code.2 d. OAR 660-04-022, Reasons Necessary to Justify an Exception Under Goal 2, Part II(c): An exception under Goal 2, Part II(c) can be taken for any use not allowed by the applicable goal(s). The types of reasons that may or may not be used to justify certain types of uses not allowed on resource lands are set forth in the following sections of this rule: 2 "Unincorporated community" is defined in Section 18.04.030 as "an unincorporated community having a zoning designation under DCC Title 18 of Urban Unincorporated Community, Rural Service Center (designated under OAR chapter 660, division 22 and otherwise), Resort Community or Rural Community. This definition is essentially the same as that in OAR 660-022-0010(e). 4-R Equipment PA-08-6/ ZC-08-6 Page 16 of 38 (3) Rural Industrial Development: For the siting of industrial development on resource land outside an urban growth boundary, appropriate reasons and facts include but are not limited to the following: (a) The use is significantly dependent upon a unique resource located on agricultural or forest land. Examples of such resources and resource sites include geothermal wells, mineral or aggregate deposits, water reservoirs, natural features, or river or ocean ports; or (emphasis added) FINDINGS: The staff report questioned whether the applicant had adequately demonstrated that the subject property, while clearly advantageous for the proposed use, is "significantly dependent on a unique resource located on agricultural or forest land." In response, the applicant's supplemental burden of proof states: "The property is dependent on two unique resources. First, the interchange with Hwy 97, a state highway constructed for heavy traffic. Second, the'railroad spur. These two facilities, like a river or ocean port, allow the loading and unloading of minerals and mineral products. The interchange with Hwy 97 is important because the majority of mineral materials are transported by truck. Oregon Department of Land Conservation and Development and Oregon Department of Transportation Planning for Aggregate: A Guide to Planning for Aggregate Resources in Oregon ; 2001, pg. 8. This is the only existing `cloverleaf interchange with Hwy 97 in a rural area within Deschutes County. The site is also significantly dependent on the railroad spur. There are not other railroad spurs in Central Oregon available for private industrial use. This spur will allow future distribution of materials by train rather than truck. Therefore, the site is not only situationally advantageous for the proposed use but also relies on specific transportation resources found only at this location. " The Hearings Officer agrees with the applicant that the above-underscored language in this paragraph makes clear the "unique resource" upon which the use must be "significantly dependent" can include transportation facilities such as Highway 97 and the BNSF railroad tracks. I also find the applicant has demonstrated the proposed use is locationally dependent because access to these transportation facilities is necessary for the transportation of minerals to and from the subject property. (b) The use cannot be located inside an urban growth boundary due to impacts that are hazardous or incompatible in densely populated areas; or 4-R Equipment PA-08-6/ ZC-08-6 Page 17 of 38 FINDINGS: As discussed above, the Hearings Officer has found the proposed use is locationally dependent because it must be located near transportation facilities adequate to handle heavy truck and/or rail traffic transporting minerals, and for the applicant's business purposes the proposed use must be centrally located within the county. There are no urban growth boundaries centrally located within the county. The subject property is located roughly half way between Bend and Redmond and at least several miles from these cities' UGBs. Moreover, the applicant argues, and I concur, that the nature of the proposed industrial use typically would not be compatible with uses in urban areas because of the noise, dust and heavy truck traffic. Therefore, I find the proposed use cannot reasonably be located inside a UGB. (c) The use would have a significant comparative advantage due to its location (e.g. near existing industrial activity, an energy facility, or products available from other rural activities), which would benefit the county economy and cause only minimal loss of productive resource lands. Reasons for such a decision should include a discussion of the lost resource productivity and values in relation to the county's gain from the industrial use, and the specific transportation and resource advantages which support the decision. FINDINGS: 1. Location. The applicant argues, and the Hearings Officer agrees, that the subject property has a significant comparative advantage due to its central location within the county, its location adjacent to Highway 97 and the Deschutes Junction interchange and the BNSF railroad tracks, and the proximity of existing RI-zoned land developed with related industrial uses. 2. Benefit to County Economy. The applicant argues, and the Hearings Officer agrees, that the proposed industrial use on the subject property will provide a benefit to the county's economy. The record indicates the applicant and its related companies operate businesses on the subject property and adjacent RI-zoned property that provide family wage jobs in a long-term, sustainable industry serving the construction and transportation sectors of the economy. The applicant also notes that its RI-zoned property has a higher assessed value and is taxed at a higher rate than EFU-zoned property and therefore provides greater tax revenue to the county. Moreover, because the subject property has been committed to industrial use for over 10 years, and has soils with minimal agricultural capacity and no irrigation, the proposed industrial use would not result in a lost of productive resource lands. 3. OAR Chapter 660, Division 14, Application of the Statewide Planning Goals to Newly Incorporated Cities, Annexation, and Urban Development on Rural Lands a. OAR 660-014-0040, Establishment of New Urban Development on Undeveloped Rural Lands 4-R Equipment PA-08-6/ ZC-08-6 Page 18 of 38 (1) As used in this rule, "undeveloped rural land" includes all land outside of acknowledged urban growth boundaries except for rural areas committed to urban development. This definition includes all resource and nonresource lands outside of urban growth boundaries. It also includes those lands subject to built and committed exceptions to Goals 3 or 4 but not developed at urban density or committed to urban level development. FINDINGS: The Hearings Officer finds it is unclear whether this rule applies to the applicant's proposal. That is because although it applies to all land outside acknowledged urban growth boundaries, except those areas "committed to urban development," the subject property is far from "undeveloped," having been committed to a fairly intense industrial use. Nevertheless, the staff report correctly points out that Section 23.40.070 of the comprehensive plan describes the RI Zone as a "rural" zone. In light of this ambiguity, I find it is appropriate to evaluate the applicant's proposal for compliance with this rule. (2) A county can justify an exception to Goal 14 to allow establishment of new urban development on undeveloped rural land. Reasons that can justify why the policies in Goals 3, 4, 11 and 14 should not apply can include but are not limited to findings that an urban population and urban levels of facilities and services are necessary to support an economic activity that is dependent upon an adjacent or nearby natural resource. FINDINGS: The applicant argues an exception to Goal 14 is appropriate here for five reasons: (1) the subject property for over ten years was employed in essentially the same industrial use as proposed by the applicant but with a different mineral; (2) the proposed use is necessary for the economic viability of industrial operations at Deschutes Junction because it provides space for storage, crushing, processing, distribution and sale of minerals; (3) uses permitted under the proposed plan amendment and zone change will be limited to those identified in the goal exception language in the plan and the modified LU Zone - i.e., storage, crushing, processing, distribution and sale of minerals; (4) the proposed use needs to be centrally located within the county because the natural resource on which it depends - minerals is found throughout the county; and (5) the proposed use is locationally dependent because of its proximity to Highway 97 and its Deschutes Junction interchange as well as to the BNSF railroad tracks. The Hearings Officer finds these factors are sufficient to demonstrate an exception to Goal 14 is justified. (3) To approve an exception under section (2) of this rule, a county must also show: (a) That Goal 2, Part II (c)(1) and (c)(2) are met by showing that the proposed urban development cannot be reasonably accommodated in or through expansion of 4-R Equipment PA-08-6/ ZC-08-6 Page 19 of 38 existing urban growth boundaries or by intensification of development in existing rural communities; FINDINGS: As discussed above, the nearest urban growth boundaries Redmond and Bend - are several miles from the subject property. For the reasons set forth above, the Hearings Officer has found the proposed use is locationally dependent in part because it needs to be centrally located to process minerals coming from all parts of the county. Therefore, I find an expansion of the Redmond or Bend UGB would not accommodate the proposed use. As also discussed above, the heavy industrial nature of the proposed use is not compatible with typical urban uses. And the applicant has demonstrated why the proposed use cannot be accommodated on adjacent RI- zoned land through intensification of uses on that land. The staff report questions why the proposed use could not be accommodated within the Tumalo Rural Community located a few miles to the south, particularly since the proposed use is allowed in the Tumalo Industrial Zone Jul). In response, the applicant's supplemental burden of proof states: "All existing Industrial Zoned property in Tumalo is in use by the Applicant's business competitor and is therefore unavailable for use. The Tumalo Industrial Zone is not adjacent to other rural industrial property owned by the Applicant. In fact, it is nearly five miles between the two industrial zoned properties and would add unnecessary truck trips through the unincorporated area of Tumalo. Additionally, a business competitor, Knife River, operates its central mineral storage, distribution and offices on the property zoned Tumalo Industrial Zone. " The Hearings Officer agrees the applicant's proposed use cannot be reasonably accommodated on industrial-zoned property in Tumalo that is not centrally located within the county and that is owned and operated by its business competitor. (b) That Goal 2, Part II (c)(3) is met by showing that the long-term environmental, economic, social and energy consequences resulting from urban development at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located on other undeveloped rural lands, considering: FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the ESEE consequences favor use of the subject property for the proposed use over any alternative sites because the property has been utilized for rural industrial uses for over 10 years without adverse impacts on surrounding land and uses. (A) Whether the amount of land included within the boundaries of the proposed urban development is appropriate, and 4-R Equipment PA-08-6/ ZC-08-6 Page 20 of 38 FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the 6.7 acres that comprise the subject property are the minimum area required to continue the historic industrial use and to process all minerals in the operation. (B) Whether urban development is limited by the air, water, energy and land resources at or available to the proposed site, and whether urban development at the proposed site will adversely affect the air, water, energy and land resources of the surrounding area. FINDINGS: As discussed in the ESEE analysis above and the discussion of the statewide planning goals below, the Hearings Officer has found the proposed use at the subject property will not adversely impact water, energy or land resources. While the proposed use does create dust, the applicant has proposed, and will be required as a condition of approval, to suppress dust on the site so as to comply with DEQ's air quality standards. In addition, energy will be saved by the applicant's use of the subject property through a reduction in truck trips. (c) That Goal 2, Part II (c)(4) is met by showing that the proposed urban uses are compatible with adjacent uses or will be so rendered through measures designed to reduce adverse impacts considering: (A) Whether urban development at the proposed site detracts from the ability of existing cities and service districts to provide services; and FINDINGS: Services to the subject property are not provided by cities or service districts, but rather by the county Sheriff and one of the county's rural fire protection districts. (B) Whether the potential for continued resource management of land at present levels surrounding and nearby the site proposed for urban development is assured. FINDINGS: As discussed above, the subject property is surrounded by other industrial land and by EFU-zoned land that is not engaged in farm use. Therefore, the Hearings Officer finds the proposed use will not affect existing uses "at present levels" on surrounding EFU land. And in the event such land becomes engaged in farm use in the future, the subject property is separated from most EFU-zoned land by the BNSF railroad tracks, Highway 97, and ownership of EFU land by the applicant and related companies that can control the activities on that land. 4-R Equipment PA-08-6/ ZC-08-6 Page 21 of 38 (d) That an appropriate services are likely to efficient manner; and level of public facilities and be provided in a timely and FINDINGS: The Hearings Officer finds the subject property already is served by an appropriate level of public facilities which have been utilized on the property for over ten years to support the essentially the same industrial use as proposed by the applicant. The record indicates water is provided by Avion Water Company, power is provided by Pacific Power, sewage disposal is provided through a septic system on the nearby Tax Lot 102, and the property has approved access from Tumalo Road. (e) That establishment of an urban growth boundary for a newly incorporated city or establishment of new urban development on undeveloped rural land is coordinated with comprehensive plans of affected jurisdictions and consistent with plans that control the area proposed for new urban development. FINDINGS: The Hearings Officer finds the applicant's proposal will not affect any UGBs or cities because of its location at several miles from the nearest incorporated cities, and therefore no coordination with the Redmond or Bend comprehensive plans is required. (4) Counties are not required to justify an exception to Goal 14 in order to authorize industrial development, and accessory uses subordinate to the industrial development, in buildings of any size and type, in exception areas that were planned and zoned for industrial use on January 1, 2004, subject to the territorial limits and other requirements of ORS 197.713 and 197.714. FINDINGS: The staff report states, and the Hearings Officer agrees, that this paragraph appears to exempt the applicant from the need to justify an exception to Goal 14 inasmuch as the subject property was zoned for industrial use on January 1, 2004 with an LU Zone, and the proposed use is industrial. Nevertheless, because of the aforementioned ambiguity in application of the administrative rules governing "reasons" exceptions as they apply to the circumstances presented here, this decision has addressed the requirements for an exception to Goal 14. PLANAMENDMENT 4. OAR 660, Division 12, Transportation Planning Rule a. OAR 660-012-0060, Plan and Land Use Regulation Amendments (1) Where an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation would significantly affect an existing or planned transportation facility, the local government shall put in place measures as 4-R Equipment PA-08-6/ ZC-08-6 Page 22 of 38 provided in section (2) of this rule to assure that allowed land uses are consistent with the identified function, capacity, and performance standards (e.g. level of service, volume to capacity ratio, etc.) of the facility. A plan or land use regulation amendment significantly affects a transportation facility if it would: (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); (b) Change standards implementing a functional classification system; or (c) As measured at the end of the planning period identified in the adopted transportation system plan: (A) Allow land uses or levels of development that would result in types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; (B) Reduce_ the performance of an existing or planned transportation facility below the minimum acceptable performance standard identified in the TSP or comprehensive plan; or (C) Worsen the performance of an existing or planned transportation facility that is otherwise projected to perform below the minimum acceptable performance standard identified in the TSP or comprehensive plan. (2) Where a local government determines that there would be a significant effect, compliance with section (1) shall be accomplished through one or a combination of the following: (a) Adopting measures that demonstrate allowed land uses are consistent with the planned function, capacity, and performance standards of the transportation facility. (b) Amending the TSP or comprehensive plan to provide transportation facilities, improvements or services adequate to support the proposed land uses consistent 4-R Equipment PA-08-6/ ZC-08-6 Page 23 of 38 with the requirements of this division; such amendments shall include a funding plan or mechanism consistent with section (4) or include an amendment to the transportation finance plan so that the facility, improvement, or service will be provided by the end of the planning period. (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (d) Amending the TSP to modify the planned function, capacity or performance standards of the transportation facility. (e) Providing other measures as a condition of development or through a development agreement or similar funding method, including transportation system management measures, demand management or minor transportation improvements. Local governments shall as part of the amendment specify when measures or improvements provided pursuant to this subsection will be provided. (3) Notwithstanding sections (1) and (2) of this rule, a local government may approve an amendment that would significantly affect an existing transportation facility without assuring that the allowed land uses are consistent with the function, capacity and performance standards of the facility where: (a) The facility is already performing below the minimum acceptable performance standard identified in the TSP or comprehensive plan on the date the amendment application is submitted; (b) In the absence of the amendment, planned transportation facilities, improvements and services as set forth in section (4) of this rule would not be adequate to achieve consistency with the identified function, capacity or performance standard for that facility by the end of the planning period identified in the adopted TSP; (c) Development resulting from the amendment will, at a minimum, mitigate the impacts of the amendment in a 4-R Equipment PA-08-6/ ZC-08-6 Page 24 of 38 manner that avoids further degradation to the performance of the facility by the time of the development through one or a combination of transportation improvements or measures; (d) The amendment does not involve property located in an interchange area as defined in paragraph (4)(d)(C); and (e) For affected state highways, ODOT provides a written statement that the proposed funding and timing for the identified mitigation improvements or measures are, at a minimum, sufficient to avoid further degradation to the performance of the affected state highway. However, if a local government provides the appropriate ODOT regional office with written notice of a proposed amendment in a manner that provides ODOT reasonable opportunity to submit a written statement into the record of the local government proceeding, and ODOT does not provide a written statement, then the local government may proceed with applying subsections (a) through (d) of this section. FINDINGS: Attached as Exhibit 7 to the applicant's original burden of proof is a letter dated October 29, 2008 from Sean Morrison, a transportation engineer with Group MacKenzie, analyzing the traffic impacts from the applicant's proposed plan amendment and zone change to expand the minerals to be handled on the subject property. The letter states in relevant part: "The allowed uses remain the same, and there is no difference in a worst case build out. The land use applications are not anticipated to have transportation impacts greater than those contemplated by. current zone designations. * * * Therefore, the proposed land use actions do not `significantly affect' the transportation facility and TPR [Transportation Planning Rule] requirements outlined in Oregon Administrative Rule (OAR) 660-012-0060 * * " The record also includes letters from the county's transportation planner and road department stating their agreement with Mr. Morrison's analysis and opinion. The road department also noted the county plans to construct improvements to Deschutes Market Road that will cross the BNSF railroad tracks and create a left turn refuge that will provide a larger and wider access for trucks and equipment entering the subject property. For these reasons, the Hearings Officer finds the applicant has demonstrated its proposal complies with the TPR. 5. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDINGS: 4-R Equipment PA-08-6/ ZC-08-6 Page 25 of 38 Goal 1, Citizen Involvement. The Hearings Officer finds the proposed plan amendment satisfies this goal because the Planning Division provided public notice of the applicant's proposal through individual mailed notice to affected property owners, posting of the subject property with a notice of proposed land use action sign, and publishing notice of the public hearing in the Bend "Bulletin" newspaper. In addition, two public hearings will be held before the proposed plan amendment is approved, one before me and one before the board. Goal 2, Land Use Planning. The Hearings Officer finds the proposed plan amendment satisfies this goal because the proposal has been reviewed in accordance with the county's acknowledged planning review processes, and will be subject to at least two public hearings, and no exceptions to Goal 2 are proposed or required. Goal 3, Agricultural Lands. As discussed in the findings above, the subject property was rezoned from EFU to RI in 1998 and therefore is no longer agricultural land. Nevertheless, because another "reasons" exception is required in order to modify the LU Zone on the subject property to expand the types of minerals that may be handled there, this decision addresses compliance with the approval criteria for a "reasons" exception to Goal 3. Goal 4, Forest Lands. The Hearings Officer finds this goal is not applicable because the subject property is not zoned or designated for forest use. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The Hearings Officer finds this goal is not applicable because the subject property does not contain resources listed in the county's inventory of Goal 5 resources. Goal 6, Air, Water and Land Resources Quality. The Hearings Officer finds the proposed plan amendment is consistent with this goal because the proposal would not change the uses occurring on the subject property or their impacts on air, water and land resources quality. In addition, as discussed in the findings above, the applicant will be required as a condition of approval to suppress dust on the subject property in compliance with DEQ's air quality standards. Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds this goal is not applicable because the subject property is not in an area subject to special natural disasters or hazards. Goal 8, Recreational Needs. The Hearings Officer finds this goal is not applicable because the proposed plan amendment and zone change do not reduce or eliminate any opportunities for recreational facilities either on the subject property or in the area. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the state for a variety of economic activities. The Hearings Officer finds the proposed plan amendment is consistent with this goal because its approval will allow the subject property to be employed in an industrial use in conjunction with abutting and neighboring industrial-zoned 4-R Equipment PA-08-6/ ZC-08-6 Page 26 of 38 property. Goal 10, Housing. The Hearings Officer finds this goal is not applicable because the proposed plan amendment will not affect existing or needed housing. Goal 11, Public Facilities and Services. This goal requires planning for public services, including public services in rural areas, and generally has been held to prohibit extension of urban services such as sewer and water to rural lands outside urban growth boundaries. The Hearings Officer finds this goal is not applicable because the proposed plan amendment will not result in the extension of urban services. Goal 12, Transportation. As discussed in the findings above, the Hearings Officer has found the applicant's proposal satisfies the requirements of the TPR which implements Goal 12. For the same reasons, I find the proposed plan amendment is consistent with this goal. Goal 13, Energy Conservation. Goal 13 is to conserve energy. The Hearings Officer finds the proposed plan amendment satisfies this goal because it will allow the applicant to consolidate its business operations involving storage, processing, distribution and sale of aggregate products at a location central within the county and close to Highway 97 and the BNSF railroad tracks, resulting in a reduction in vehicle trips and trip lengths and energy consumption. Goal 14, Urbanization. As discussed in the findings above, the Hearings Officer has found the proposed plan amendment is consistent with Goal 14 because it will allow the continuation of the historic industrial use on the subject property - with different types of minerals - and limit uses permitted on the property to those described in the amended LU Zone. Therefore, this proposal will not result in an increase in urbanization in a rural area. Goals 15 through 19. The Hearings Officer finds these goals which address river, ocean, and estuarine resources are not applicable because the subject property is not located in or adjacent to any such areas or resources. ZONE CHANGE B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.136, Amendments a. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: 4-R Equipment PA-08-6/ ZC-08-6 Page 27 of 38 A. That the change conforms with the Comprehensive Plan, and the change is consistent with the Plan's introductory statement and goals. FINDINGS: In numerous previous decisions the Hearings Officer has found this paragraph contains two requirements: (1) that the zone change conforms with plan; and (2) that it is consistent with the plan's introductory statement and the plan's goals. Each of these requirements is discussed below. 1. Conformance with Comprehensive Plan. Tax Lot 301 is designated Rural Industrial on the Deschutes County Year 2000 Comprehensive Plan, and the proposed plan amendment and zone change would not alter the property's plan designation. 2. Consistency with the Plan's Introductory Statement and Goals. In several previous decisions the Hearings Officer has made the following findings concerning this requirement: "Comprehensive plan statements, goals and policies typically are not intended to, and do not, constitute mandatory approval criteria for quasi-judicial land use permit applications. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004). There, L UBA held: `As intervenor correctly points out, local and statutory requirements that land use decisions be consistent with the comprehensive plan do not mean that all parts of the comprehensive plan necessarily are approval standards. [Citations omitted.] Local governments and this Board have frequently considered the text and context of cited parts of the comprehensive plan and concluded that the alleged comprehensive plan standard was not an applicable approval standard. [Citations omitted.] Even if the comprehensive plan includes provisions that can operate as approval standards, those standards are not necessarily relevant to all quasi-judicial land use permit applications. [Citation omitted.] Moreover, even if a plan provision is a relevant standard that must be considered, the plan provision might not constitute a separate mandatory approval criterion, in the sense that it must be separately satisfied, along with any other mandatory approval criteria, before the application can be approved. Instead, that plan provision, even if it constitutes a relevant standard, may represent a required consideration that must be balanced with other relevant considerations. [Citations omitted.]' LUBA went on to hold in Save Our Skyline that it is appropriate to `consider first whether the comprehensive plan itself expressly assigns a particular role to some or all of the plan's goals and policies.' Section 23.08.020 of the county's 4-R Equipment PA-08-6/ ZC-08-6 Page 28 of 38 comprehensive plan provides as follows: The purpose of the Comprehensive Plan for Deschutes County is not to provide a site-specific identification of the appropriate land uses which may take place on a particular piece of land but rather it is to consider the significant factors which affect or are affected by development in the County and provide a zeneral guide to the various decisions which must be made to promote the greatest efficiency and equity possible, while managing the continuing growth and change of the area. Part of that process is identification of an appropriate land use plan, which is then interpreted to make decisions about specific sites (most often in zoning and subdivision administration) but the plan must also consider the sociological, economic and environmental consequences of various actions and provide guidelines and policies for activities which may have effects beyond physical changes of the land. (Emphasis added.) The Hearings Officer finds the above-underscored language strongly suggests the county's plan statements, goals and policies are not intended to establish approval standards for quasi-judicial land use permit applications. In Bothman v. City of Eugene, 51 Or L UBA 426 (2006), L UBA found it appropriate also to review the language of specific plan policies to determine whether and to what extent they may in fact establish decisional standards. The policies at issue in that case included those ranging from aspirational statements to planning directives to the city to policies with language providing guidance for decision-making' with respect to specific rezoning proposals. In Bothman LUBA concluded the planning commission erred in not considering in a zone change proceeding a plan policy requiring the city to `[rJecognize the existing general office and commercial uses located * * * [in the geographic area including the subject property] and discourage future rezonings of these properties. ' L UBA held that: * * even where a plan provision might not constitute an independently applicable mandatory approval criterion, it may nonetheless represent a relevant and necessary consideration that must be reviewed and balanced with other relevant considerations pursuant to ordinance provisions that require * * * consistency with applicable plan provisions. '(Emphasis added.) The county's comprehensive plan includes a large number of goals and policies. The applicant's burden of proof addresses goals for rural development, economy, transportation, public facilities, recreation, energy, natural hazards, destination resorts, open spaces, fish and wildlife, and forest lands. The Hearings Officer finds these goals are aspirational in nature and therefore are not intended to create decision standards for the proposed zone change. " 4-R Equipment PA-08-6/ ZC-08-6 Page 29 of 38 The Hearings Officer adheres to these findings here, and again finds the above-referenced introductory statements and goals are not approval criteria for the proposed plan amendment and zone change. Nevertheless, depending upon their language, some plan provisions may require "consideration" even if they are not applicable approval criteria. Save Our Skyline v. City of Bend, 48 Or LUBA 192, 209 (2004). Staff and the applicant have identified the following plan goals and policies as potentially requiring consideration. Chapter 23.120. GOAL EXCEPTION STATEMENT Section 23.20.110, Rural Industrial Zone in conjunction with approval of PA-98-2/ZC-98-1, an "irrevocably committed" exception to Statewide Planning Goal 3, Agricultural Lands, and a "reasons" exception to Goal 14 was taken to allow for the subject comprehensive plan and zone change on agricultural land. The plan amendment and zone change will allow Rural Industrial plan and zoning designation with a Limited Use Combining Zone for the specific use of storage, crushing, processing, sale and distribution of pumice only. Reasons justifying why the state policy embodied in Goal 3 should not apply in this situation are set forth in Exhibit "D" to Ordinance 98-081, which findings are incorporated herein. FINDINGS: This provision was added to the comprehensive plan in 1998 as a result of Ordinance 98-081, which codified the "reasons" exceptions to Goals 3 and 14 for rezoning the subject property from EFU to RI and creating the LU Zone. The applicant has requested approval of a new "reasons" exception to expand the types of minerals that may be handled on the subject property. Approval of the proposed plan amendment and zone change will result in similar language being adopted in the plan, allowing the storage, crushing, processing, distribution and sale of minerals. Chapter 23.24, RURAL DEVELOPMENT Section 23.24.030, Policies The policies needed to accomplish the identified goals were largely developed by the Overall CAC during its deliberations on the preliminary plan. It was obvious that some policies were needed to pull the various resource and management chapters together and to fill in some gaps so that an integrated and cohesive plan was available. Rural Development policies are meant to pertain to all non-urban areas (areas outside urban growth boundaries) and are the basic policies to be followed in guiding rural growth. Specific resource or management policies from other chapters shall augment these policies so that the plan must be viewed as an integrated whole rather than a series of individual chapters. 4-R Equipment PA-08-6/ ZC-08-6 Page 30 of 38 • Residential/recreational development. 11. Certain industrial uses, such as research and development facilities (requiring quiet and open surroundings), wrecking or salvage yards and manufacturers of hazardous materials (requiring long distances between the plant and neighbors) are more suitably located in rural areas. The County shall consider making provision for such uses as the need is found to exist (see Tumalo). To ensure that the uses in the Rural Industrial Zone on tax lot 16-12-26C-301 are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of pumice. FINDINGS: The language in the last paragraph set forth above was added to the plan in 1998 as part of the "reasons" exception that authorized rezoning the subject property from EFU to RI with an LU Zone. The existing plan language states: . . "11 a. To ensure that the uses in the Rural Industrial zone on tax lot 16-12-26C- 301 are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution ofpumice. " As discussed in the findings above, the applicant and staff have proposed slightly different revised plan language, and the Hearings Officer has found staff s proposed language, set forth below, is preferable: "I1 a. To ensure that the uses in the Rural Industrial zone on tax lot 16-12-26C- 301 are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of piee minerals. " I find the plan will be amended to include this language. Chapter 23.40, UNINCORPORATED COMMUNITIES Section 23.40.070, Rural Industrial The Rural Industrial plan designation is applicable to industrial lands located outside unincorporated communities and urban growth boundaries. 4-R Equipment PA-08-6/ ZC-08-6 Page 31 of 38 The purpose of the Rural Industrial designation is to recognize existing industrial uses in rural areas of the county and to allow the appropriate development of additional industrial uses that are consistent with the rural character, facilities and services. A. Periodic Review In order to comply with state rules for Periodic Review (OAR 660- 025), Deschutes county has reviewed and updated the county comprehensive plan and land use regulations for the rural industrial sites of. Redmond Military, Deschutes Junction, Bend Auto Recyclers and Wickiup Junction. OAR 660-022, the State Unincorporated Communities Rule, defines the types of unincorporated communities and specifies that industrial uses be limited to buildings containing no more than 10,000 square feet of floor space. Rural industrial uses outside of unincorporated communities must be less intense than those allowed within an incorporated community. B. Rural Industrial Designated Area Descriptions The Redmond Military site consists of tax lot 1513000000116 and is 35.42 acres, bounded by the Redmond Urban Growth Boundary to the west and Exclusive Farm Use lands surrounding the remainder of the property. The Deschutes Junction site consists of the following tax lots: 1612260000102 (15.61 acres), bounded by 1612260000111 (6.23 acres) and 1612260000301 (6.12 acres). These tax lots are bounded by Deschutes Market Road to the north and east and Highway 97 to the west, tax lot 1612260000106 is bounded by Deschutes Market Road to the north, and other rural industrial lands to the east, south and west. Tax lot 1612260000107 is bounded by Deschutes Market Road to the north, EFU land to the west, and other rural industrial lands to the east and south. FINDINGS: The subject property already is included in this area description. C. Policies 1. To assure that urban uses are not permitted on rural industrial lands, land use regulations in the Rural Industrial zones shall ensure that the uses allowed are less intensive than those 4-R Equipment PA-08-6/ ZC-08-6 Page 32 of 38 allowed for unincorporated communities in OAR 660, Division 22 or any successor. FINDINGS: The staff report notes that the applicant did not address this policy in its original burden of proof. In its second supplemental burden of proof, the applicant stated in relevant part: "A comparison of DCC Chapter 18.67.060 (Tumalo Industrial Zone) and 18.100 (Rural Industrial Zone) shows that the Rural Industrial Zone is more restrictive in building size, building height, and other measures of intensity of use. Some of the setbacks for the Rural Industrial Zone are also more restrictive than in the Tumalo Industrial Zone. The zones are similar in that both allow the storage, crushing and processing of minerals, including the processing of aggregate into asphaltic concrete or Portland Cement concrete. However, the Applicant will not be processing minerals into asphaltic concrete or Portland Cement concrete but will only be using the property for storage, crushing, processing, sale and distribution of pumice and other minerals. These uses are already an outright permitted use on this property for pumice. The zone change simply allows this same use for other minerals. The storage, crushing, processing, sale and distribution of minerals is a lower intensity use than the processing of aggregate into asphaltic concreted or Portland Cement concrete. " The Hearings Officer agrees with the applicant's analysis and finds the proposed zone change is consistent with this plan policy. 2. Limited Use Combining zones shall be applied to the Redmond Military (Tax lot 1513000000116), Deschutes Junction (Tax lot 1612260000301), and Wickiup Junction (Tax lot 2110360000104) to ensure that permitted uses are compatible with surrounding farm and forest lands. FINDINGS: As discussed above, the applicant proposes to retain the LU Zone on the subject property but to modify it to allow the storage, crushing, processing, distribution and sale of minerals not limited to pumice. 3. Land use regulations shall ensure that new uses authorized within the Rural Industrial sites do not adversely affect agricultural and forest uses in the surrounding areas. FINDINGS: The Hearings Officer finds this policy directs the county to develop land use regulations and therefore is not applicable to the applicant's proposal. 4. New industrial uses shall be limited in size to a maximum floor area of 7,500 square feet per use within a building, except for 4-R Equipment PA-08-6/ ZC-08-6 Page 33 of 38 the primary processing or raw materials produced in rural areas, for which there is no floor area per use limitation. FINDINGS: The Hearings Officer finds this policy is not applicable to the applicant's proposed zone change because it does not contemplate a "new" industrial use, but rather the continuation of the existing industrial use, and no structures are proposed. 5. A lawfully established use that existed on or before February 2, 2003, not otherwise allowed in a Rural Industrial zone, may continue to exist subject to the county's nonconforming use regulations FINDINGS: The Hearings Officer finds this policy is not applicable because the existing industrial use of the property was allowed in the RI Zone in 2003. 6. A lawfully established use that existed on or before February 2, 2003 may be expanded to occupy a maximum of 10,000 square feet of floor area or an additional 25 percent of the floor area currently occupied by the existing use whichever is greater. FINDINGS: The Hearings Officer finds this policy is not applicable because the applicant is not proposing to build or expand any structures. 7. Residential and industrial uses shall be served by DEQ approved on-site sewage disposal systems. 8. Residential and industrial uses shall be served by on-site wells or public water systems. 9. Community sewer systems shall not be allowed in Rural Industrial zones. FINDINGS: The Hearings Officer finds these policies are not applicable because no new sewer or water facilities are proposed on the subject property. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: The purpose of the RI zone is set forth in Section 18.100.010 as: * * * to encourage employment opportunities in rural areas and to promote the appropriate economic development of rural service centers which are rapidly becoming urbanized and soon to be full-service incorporated cities, while protecting the existing rural character of the area as well as preserving or enhancing the air, water and land resources of the area. 4-R Equipment PA-08-6/ ZC-08-6 Page 34 of 38 The Hearings Officer finds the applicant's proposal is consistent with the purpose of the RI Zone because it will continue the historic RI zoning of the subject property but allow additional minerals to be handled on the property. The purpose of the LU Zone is set forth in Section 18.112.010(B) and (C) as follows: B. The LU Zone is an overlay zone which may be applied, where appropriate, to plan amendments/zone changes effected by either a "physically developed" exception under ORS 197.732(1)(a), an "irrevocably committed" exception under ORS 197.732(1)(b), or a "reasons" exception under ORS 197.732(1)(c). C. The LU Zone, when adopted, shall carry out the requirement of Oregon Administrative Rule 660-04-018 that where a goal exception is taken, permitted uses shall be limited to those uses justified by the exception statement. In addition, Section 18.112.020 sets forth the Combining Zone requirements as follows: When the LU Zone is applied, the uses permitted in the underlying zone shall be limited to those uses and general activities specifically set forth in the ordinance adopting the underlying zone and the LU Zone. Any change in those uses and general activities must be made through the plan/land use regulation amendment process. The applicant has requested approval of a "reasons" exception to Goals 3 and 14 to modify the existing LU Zone to expand the types of minerals that may be handled on the subject property. As discussed above, uses permitted on the subject property would be limited to those justified by the exception and identified in the plan exception statement. For the foregoing reasons, the Hearings Officer finds the applicant's proposed zone change is consistent with applicable plan policies. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: 1. The availability and efficiency of providing necessary public services and facilities. FINDINGS: The Hearings Officer finds the proposed zone change complies with this requirement because no additional public services or facilities are necessary to serve the property with the applicant's proposed use and modification to the LU Zone. The property will continue to be served by the Deschutes County Rural Fire District No. 1 and Deschutes County Sheriff, as well as Pacific Power and the Avion Water Company. The record indicates the septic system serving the subject property is located on adjacent RI-zoned tax lots owned by Jack Robinson & 4-R Equipment PA-08-6/ ZC-08-6 Page 35 of 38 Sons, Inc. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The relevant plan goals and policies are addressed in the findings above. As also discussed above, the applicant has identified and committed to mitigation measures to minimize dust. The Hearings Officer finds that with imposition of a condition of approval requiring such mitigation measures the applicant's proposal will be comply with this requirement. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDINGS: The applicant argues its proposal is justified by two changes of circumstance since 1998 when the property was rezoned from EFU to RI with an LU Zone: (1) the available pumice resource in the surrounding area has been fully mined and the market can no longer support a pumice operation at Deschutes Junction; and (2) the property has been transferred to a new owner whose business includes processing minerals other than pumice. The staff report suggested the applicant submit additional information concerning the status of the pumice resource in the area. In response, the applicant's supplemental burden of proof states: "The best evidence of the depletion of pumice as a major resource in Central Oregon requiring a central processing plant is the 2006 closure of Cascade Pumice, the -main pumice processing company in Deschutes County. Cascade Pumice ceased operations because its pumice mines no longer had adequate usable pumice to justify a central processing plant. Two out of the three pumice sites identified as Goal 5 inventoried sites in Deschutes County were owned or operated by Cascade Pumice. See Deschutes County Comprehensive Plan Table 23.100.070 Goal 5 Inventory below. Attached as Exhibit 5 is a letter from Tumalo Irrigation District that establishes Cascade Pumice ceased operations at Site 357. Cascade Pumice sold the Deschutes Junction site and its equipment to the Applicant. Cascade Pumice finished mining of Site 303 and sold the property. Site 303 is now the subject of a disputed land use action regarding its use as a mining site. The only other pumice site inventoried as a Goal 5 resource is located south of La Pine. This site is too far from Deschutes Junction to make processing of pumice practical. Furthermore, the type of pumice mined in La Pine, lump pumice, is different than the pumice mined and used by Cascade Pumice. "(Bold emphasis in original.) 4-R Equipment PA-08-6/ ZC-08-6 Page 36 of 38 The supplemental burden of proof includes a copy of the county's Goal 5 pumice inventory showing three sites, including the closed Cascade Pumice and Tumalo Irrigation District sites as well as the La Pine site. Based on the foregoing information, the Hearings Officer agrees with the applicant that there have been changes of circumstance since 1998 that justify the applicant's proposal to expand the types of minerals that may be stored, crushed, processed, distributed and sold on the subject property. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the applicant's proposed plan amendment, zone change and "reasons" exception to Goals 3 and 14, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: This approval allows on the subject property the storage, crushing, processing, distribution and sale of minerals. This approval does not allow the batching or blending of minerals into asphaltic concrete or Portland Cement Concrete. 2. This approval is based the application, burdens of proof and supplemental written materials as well as the applicant's oral and written testimony. Any substantial change to the approved use will require a new land use application and approval. 3. Section 23.24.030(11)(a) of the Deschutes County Year 2000 Comprehensive Plan is amended to include the following exception justification statement to replace the existing exception justification statement applicable to the subject property: "To ensure that the uses in the Rural Industrial zone on tax lot 16-12- 26C-301 are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of minerals. " 4. The applicant/owner shall at all times comply with all applicable Oregon Department of Environmental Quality (DEQ) requirements for dust control and all applicable requirements of the DEQ Air Contaminant Discharge Permit for the crushing equipment used on the subject property. The applicant/owner shall have dust control measures in place on the subject property at all times during the months of May through October and at all times during the operation of crushing equipment. Dated this day of February, 2009. Mailed this day of February, 2009. 4-R Equipment PA-08-6/ ZC-08-6 Page 37 of 38 Karen H. Green, Hearings Officer 4-R Equipment PA-08-6/ ZC-08-6 Page 38 of 38 J-fGS L ~c BOARD OF COMMISSIONERS' MEETING r REQUEST TO SPEAK Agenda Item of Interest Date Name Address ` "K0 Phone #s E-mail address In Favor F1 Neutral/Undecided Opposed Submitting written documents as part of testimony? F]Yes ~:No ,1'1 ~ ~b p o~ z 5 wp o.~ 9 Cr n m ~ w rn~n 0 0 -n Document Reproduces Poorly (Archived) January 5, 2009 Document r- c; yes Poorly } . ~a n ; s~ I t s o A I r r ~ r ~~d d~JtFrN~J i• . ~~^n,: X'~`~,` c r; is k _ I. 1 i ~ ~ 'Scale d ,Ev ,.n(arrSette", 44 ~i- T!. r~ s~ w k ~ r n Tb I J •y , 41 J l ~t . 7 ~ R roE b v CO ~ Q' n~ ron Y 1A r+r Y n Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, MARCH 16, 2009 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend 1. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Citizens who wish to speak should sign up prior to the beginning of the meeting on the sign-up cards provided. Please use the microphone and also state your name and address at the time the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the record of that hearing. ~ 2. CONSIDERATION of Signature of Document No. 2009-145, a Change Order to an Agreement regarding the 2008 Knott Landfill Rock Removal Project - Timm Schimke, Solid Waste Department 3. CONSIDERATION of Signature of Order No. 2009-016, Denying Review of the Hearings Officer's Decision regarding a Seven-lot Subdivision Proposed by Delmar and Delores Kennel - Chris Bedsaul, Community Development Department 4. PUBLIC HEARING on an Application for a Plan Amendment and Zone Change for the Deschutes Junction Rural Industrial Zoned Subject Property (Applicant: 4-R Equipment) - Will Groves, Community Development Department CONSENT AGENDA 5. Approval of Minutes: • Public Hearing: October 22, 2008 - Event Venues • Business Meeting: March 11 Board of Commissioners' Business Meeting Agenda Monday, March 16, 2009 Page 1 of 8 Pages CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 6. CONSIDERATION of Approval of Accounts Payable Vouchers for the 9-1-1 County Service District CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 7. CONSIDERATION of Approval of Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 8. CONSIDERATION of Approval of Accounts Payable Vouchers for Deschutes County 9. ADDITIONS TO THE AGENDA Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572) Monday, March 16, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, March 18, 2009 Board of Commissioners' Business Meeting Agenda Monday, March 16, 2009 Page 2 of 8 Pages Thursday, March 19, 2009 9:30 a.m. Regular Update with the Clerk 10:00 a.m. Regular Update with Community Justice Department 1:30 p.m. Meeting with John Allen of the U.S. Forest Service 3:00 p.m. Regular Update with Health Services Department Monday, March 23, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, March 25, 2009 7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, March 26, 2009 9:00 a.m. Regular Meeting with Fair & Expo Department 10:00 a.m. Regular Meeting with the Assessor 11:00 a.m. Regular Meeting with Commission on Children & Families Monday, March 30, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, April 1, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, April 2, 2009 8:00 a.m. Regular Meeting with the City of Sisters Council, Sisters City Hall Board of Commissioners' Business Meeting Agenda Monday, March 16, 2009 Page 3 of 8 Pages Monday, April 6, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, April 8, 2009 7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, April 15, 2009 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, April 20, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, April 22, 2009 7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, April 27, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, April 29, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, March 16, 2009 Page 4 of 8 Pages Monday, May 4, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, May 6, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, May 12, 2009 12 noon Regular Commissioners/Department Directors Update Wednesday, May 13, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, May 14, 2009 7:00 a.m. Regular Meeting with the City of Redmond Council, in Redmond Monday, May 18, 2009 9:00 a.m. Budget Deliberations Tuesday, May 19, 2009 9:00 a.m. Budget Deliberations 1:00 P.M. Departmental Budget Presentations Wednesday, May 20, 2009 9:00 a.m. Budget Deliberations Thursday, May 21, 2009 9:00 a.m. Budget Deliberations Board of Commissioners' Business Meeting Agenda Monday, March 16, 2009 Page 5 of 8 Pages Monday, May 25, 2009 Most County Offices will be closed to observe Memorial Day. Wednesday, May 27, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, June 1, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, June 3, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, June 4, 2009 10:00 a.m. Regular Update with the District Attorney 11:00 a.m. Regular Update with Community Development Department 1:30 p.m. Regular Update with Road Department 2:30 p.m. Regular Update with Solid Waste Department Wednesday, June 10, 2009 7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, June 11, 2009 11:00 a.m. Regular Update with Health Services Department Board of Commissioners' Business Meeting Agenda Monday, March 16, 2009 Page 6 of 8 Pages Monday, June 15, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, June 17, 2009 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, June 18, 2009 10:00 a.m. Regular Update with Community Justice Department Monday, June 22 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, June 24, 2009 7:30 a.m. Conference Call with Public Affairs Council (State Lobbyist) regarding Legislation 10:00 a.m. Board of Commissioners' Meeting - includes public hearings on proposed budgets, and consideration of adoption of the budgets 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, June 25, 2009 9:00 a.m. Regular Meeting with Fair & Expo Department 11:00 a.m. Regular Meeting with Commission on Children & Families 2:00 p.m. Regular Meeting with the Sheriff Wednesday, June 24, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, June 24, 2009 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, March 16, 2009 Page 7 of 8 Pages Thursday, July 2 8:00 a.m. Regular Meeting with the City of Sisters Council, Sisters City Hall Friday, July 3 Most County Offices will be closed to observe Independence Day. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. Board of Commissioners' Business Meeting Agenda Monday, March 16, 2009 Page 8 of 8 Pages