2011-2963-Minutes for Meeting June 29,2011 Recorded 7/25/2011DESCNUTES COUNTY OFFICIAL RECORDS CJ 741-Z9fi3
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL 4112512411 14.14.15 AM
Illillllllll II II III
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2011-29 3
Do not remove this page from original document.
Deschutes County Clerk
Certificate Page
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Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF BUSINESS MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, JUNE 299 2011
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
Present were Commissioners Tammy Baney, Alan Unger and Anthony DeBone.
Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy
County Administrator; Scott Johnson, Nancy England and Tom Kuhn, Health
Services; Laurie Craghead, County Counsel; Paul Blikstad, Community
Development; Judith Ure, Administration; Ken Hales, Community Justice; and
four other citizens. No representatives of the media were in attendance.
Chair Baney opened the meeting at 10:00 a.m.
1. Before the Board was Citizen Input.
The Board presented a plaque and letter to Jack Blum, who left the Local Public
Safety Coordinating Council as a citizen member after 8-1/2 years. His insight,
expertise and knowledge will be missed.
No other input was offered.
2. Before the Board was Consideration of Approval of Revisions to the Public
Health Advisory Board Bylaws.
Tom Kuhn gave an overview of the changes to the bylaws, which were
approved by the PHAB. There were grammatical changes plus clarification on
membership. Terms will begin and expire in a consistent manner, which works
well with scheduling. Also, it is easier to train the officers and bring them up to
speed if they serve for two years rather than just one, so the term has been
adjusted.
Minutes of Board of Commissioners' Business Meeting Wednesday, June 29, 2011
Page 1 of 9 Pages
DEBONE: Move approval of the Public Health Advisory Board Bylaws, as
revised.
UNGER: Second.
VOTE: DEBONE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
3. Before the Board was Consideration of Chair Signature of Document No.
2011-377, an Intergovernmental Agreement with the Oregon Health
Authority for the Financing of Community Developmental Disability
Services.
Kathy Drew provided information on the agreement. The major change would
be the removal of the County as the contractor. The State and contractor will
contract direct instead, with County oversight.
UNGER: Move signature of Document No. 2011-377.
DEBONE: Second.
VOTE: DEBONE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
4. Before the Board was Consideration of Chair Signature of Document No.
2011-328, an Intergovernmental Agreement with the Oregon Health
Authority for the Financing of Local Public Health Services for 2011-13, in
the Amount of $1,836,010.
Scott Johnson gave an overview of the agreement. The timing is such that the
County budget is put together well before the State has come up with final
numbers for the biennium. There are many amendments that follow over the
course of the two years. The Board typically provides authorization for either
Mr. Johnson or Dave Kanner to sign the minor amendments.
Mr. Johnson recognized the hard work of Nancy England in his office, and also
the Board's staff and County Counsel to make these documents flow well.
DEBONE: Move Chair signature of Document No. 2011-328.
UNGER: Second.
Minutes of Board of Commissioners' Business Meeting Wednesday, June 29, 2011
Page 2 of 9 Pages
VOTE: DEBONE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
5. Before the Board was Consideration of Chair Signature of Document No.
2011-329, an Intergovernmental Agreement with the Oregon Health
Authority for the Financing of Community Addictions and Mental Health
Services for 2011-13, in the Amount of $785,601.
Mr. Johnson explained the services provided and how the funding is handled.
The amount in the agreement is much less than needed, but he expects
amendments beginning in August to adjust the funding levels.
DEBONE: Move Chair signature of Document No. 2011-329.
UNGER: Second.
VOTE: DEBONE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
6. Before the Board was Consideration of Board Signature of Document No.
2011-364, the 2011-13 Juvenile Crime Prevention Basic and Diversion
Intergovernmental Agreement with the Oregon Youth Authority.
Ken Hales provided an overview of the biennial agreement for Juvenile
services. There was no money for the basic services grant at the beginning of
the session. The Oregon Association of Juvenile Department Directors argued
for restoration and it was ultimately provided. They went back to a prior
funding arrangement. There are a variety of services provided through this
grant.
DEBONE: Move Chair signature of Document No. 2011-364.
UNGER: Second.
VOTE: DEBONE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
Minutes of Board of Commissioners' Business Meeting Wednesday, June 29, 2011
Page 3 of 9 Pages
7. Before the Board was Consideration of First Reading of Ordinance No.
2011-024, Amending Personnel Rules regarding Contract Staff Hiring and
Supervision, Evaluation Scheduling for On-call and Hourly Employees,
and Compensation for On-call Pay.
Erik Kropp clarified that this should be adopted by emergency, so will require
first and second readings at this time. He explained the reasons for the
Ordinance and why it should be adopted immediately. There were four
instances going back several years when a temporary person ended up being
supervised by a relative. Other clarifications included are when on-call and
hourly employees should have an evaluation, for consistency. Also, on-call pay
for non-represented employees has been for two hours, but this change allows
for "up to" two hours, giving the departments flexibility.
UNGER: Move first and second readings by title only, declaring an emergency.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Yes.
BANEY: Chair votes yes.
Chair Baney conducted the first and second readings, by title only, declaring an
emergency.
UNGER: Move adoption of Ordinance No. 2011-024.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Yes.
BANEY: Chair votes yes.
8. Before the Board was Consideration of Deliberations and Possible Oral
Decision on Application Nos. CU-07-102 and SP-07-46, Conditional Use
Permit and Site Plan for Mining Activities at Site No. 303 on Johnson Road
(Latham LUBA Remand).
Laurie Craghead asked for a week's extension of deliberations because new
information was submitted late Friday, and she has not been able to review
them yet. These came from Sanders and Danielle Nye and attorneys involved
in the issue, Paul Dewey and Bruce White.
Minutes of Board of Commissioners' Business Meeting Wednesday, June 29, 2011
Page 4 of 9 Pages
Paul Blikstad said that by 5:00 p.m. on Friday, June 24, which was the cut-off
for written testimony, there were letters and documents received from attorney
Allison Hohengarten (Francis Hansen & Martin LLP) who represents the Tians
and the Nyes; a letter from Karen Grossman; Susan Bethers of the Oregon
Parks & Recreation Department; Thomas Triplett (Schwabe, Williamson &
Wyatt); Blair Jenkins of Cascades Academy; Michael Van Waas; and attorney
Bruce White.
The Commissioners indicated that they also had not had a chance to review all
of the material submitted, which is extensive.
Ms. Craghead said there was an issue raised about these letters because of
Code, which some feel states that those who did not participate or have standing
may not be included. She interprets this section to mean that they must include
those who have participated, but can allow others, even in a limited de novo
situation.
Commissioner DeBone said that he wants to meet with Mr. Blikstad and Ms.
Craghead to address some of his questions and concerns on this issue.
The Board agreed to begin deliberations on Wednesday, July 6, 2011 at the 10
a.m. meeting.
Before the Board was Consideration of Approval of the Consent Agenda.
UNGER: Move approval, with the removal of the minutes of the June 22
business meeting.
DEBONE: Second.
VOTE: DEBONE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
Consent Agenda Items
9. Board Signature of Resolution No. 2011-107, Appointing a Financial
Assistance Administrator for Deschutes County Health Services
10. Board Signature of Document No. 2011-372, Annual Assessment & Taxation
Software Agreement with Helion Software, Inc.
11. Chair Signature of Document No. 2011-375, Certification and Assurances
Required to Receive Federal Transit Administration Funding
Minutes of Board of Commissioners' Business Meeting Wednesday, June 29, 2011
Page 5 of 9 Pages
12. Board Signature of Document No. 2011-368, a Deed of Dedication and
Acceptance of Reserve Strips in the Forest View Subdivision
13. Approval of County Administrator's Signature of Document No. 2011-359,
Substitution of Trustee and Deed of Reconveyance regarding Payment in Full
on Property Purchased from the County
14. Board Signature of Document No. 2011-288, a Lease Amendment with High
Desert Archers
15. Board Signature of Document No. 2011-222, a Lease Agreement with Kemple
Memorial Children's Clinic
16. Board Signature of Order No. 2011-017, Cancelling Uncollectible Personal
Property Taxes in the Amount of $37,277.91
17. Board Signature of Document No. 2011-319, Accepting a Deed on a Parcel
Previously Dedicated to the County for Road Purposes
18. Board Signature of Resolution No. 2011-091, Transferring Appropriations
from the General Fund to the OSP Building Fund
19. Board Signature of Resolution No. 2011-092, Transferring Appropriations in
the Secure Treatment Facility Fund
20. Board Signature of Resolution No. 2011-093, Transferring Appropriations in
the Building Services Fund
21. Board Signature of Resolution No. 2011-094, Transferring Appropriations
from the General Fund Contingency to the General Fund Property Management
- Administration Department
22. Board Signature of Resolution No. 2011-095, Transferring Appropriations in
the Project Development & Debt Reserve Fund and the General County
Projects Fund
23. Board Signature of Resolution No. 2011-096, Transferring Appropriations in
the General County Projects Fund
24. Board Signature of Resolution No. 2011-097, Transferring Appropriations in
the Insurance/Risk Management Fund
25. Board Signature of Resolution No. 2011-098, Transferring Appropriations in
the Public Health Fund
Minutes of Board of Commissioners' Business Meeting Wednesday, June 29, 2011
Page 6 of 9 Pages
26. Board Signature of Resolution No. 2011-099, Transferring Appropriations in
the Finance/Tax Department Fund
27. Board Signature of Resolution No. 2011-100, Declaring the County's Intent to
Reimburse Expenditures with the Proceeds of Future Tax-exempt Obligations
28. Board Signature of Resolution No. 2011-103, Transferring Appropriations in
the District Attorney Department
29. Board Signature of Resolution No. 2011-104, Transferring Appropriations in
the Federal Forest Title III Fund
30. Board Signature of Resolution No. 2011-105, Transferring Appropriations
from the General Fund to the Special Transportation Fund
31. Board Signature of Resolution No. 2011-106, Transferring Appropriations in
the Video Lottery Fund
32. Board Signature of Resolution No. 2011-109, Transferring Appropriations in
the General Support Services-B000 Fund
33. Approval of Minutes:
• Business Meeting: June 22
• Work Session: June 22
CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
34. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the 9-1-1 County Service District in the Amount of
$17,939.04.
DEBONE: Move approval, subject to review.
LINGER: Second.
VOTE: DEBONE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
Minutes of Board of Commissioners' Business Meeting Wednesday, June 29, 2011
Page 7 of 9 Pages
CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4-11
COUNTY SERVICE DISTRICT
35. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the Extension/4-11 County Service District in the
Amount of $15,746.23.
DEBONE: Move approval, subject to review.
UNGER: Second.
VOTE: DEBONE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
RECONVENED AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
36. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for Deschutes County in the Amount of $1,108,012.23.
DEBONE: Move approval, subject to review.
UNGER: Second.
VOTE: DEBONE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
37. ADDITIONS TO THE AGENDA
None were offered.
Being no further items addressed, the meeting adjourned at 11:15 a.m.
Minutes of Board of Commissioners' Business Meeting Wednesday, June 29, 2011
Page 8 of 9 Pages
DATED this 1-3h--~- Day of 2011 for the _ 9~~/ Deschutes County Board of Commissioners
Tammy Baney, Chair
Anthony DeBone, Vice Chair
ATTEST: a&.,-
Alan Unger, Commissioner
Recording Secretary
Minutes of Board of Commissioners' Business Meeting Wednesday, June 29, 2011
Page 9 of 9 Pages
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., WEDNESDAY, JUNE 29, 2011
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
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 Approval of Revisions to the Public Health Advisory
Board Bylaws - Tom Kuhn, Health Services
Suggestion Motion: Move approval of the Revised Public Health Advisory
Board Bylaws.
3. CONSIDERATION of Chair Signature of Document No. 2011-377, an
Intergovernmental Agreement with the Oregon Health Authority for the
Financing of Community Developmental Disability Services - Kathy Drew,
Health Services
Suggestion Motion: Move Chair signature of Document No. 2011-377.
4. CONSIDERATION of Chair Signature of Document No. 2011-328, an
Intergovernmental Agreement with the Oregon Health Authority for the
Financing of Local Public Health Services for 2011-13, in the Amount of
$1,836,010 - Nancy England, Health Services
Suggestion Motion: Move Chair signature of Document No. 2011-328.
Board of Commissioners' Business Meeting Agenda Wednesday, June 29, 2011
Page 1 of 8 Pages
5. CONSIDERATION of Chair Signature of Document No. 2011-329, an
Intergovernmental Agreement with the Oregon Health Authority for the
Financing of Community Addictions and Mental Health Services for 2011-13,
in the Amount of $785,601 - Nancy England, Health Services
Suggestion Motion: Move Chair signature of Document No. 2011-329.
6. CONSIDERATION of Board Signature of Document No. 2011-364, the
2011-13 Juvenile Crime Prevention Basic and Diversion Intergovernmental
Agreement with the Oregon Youth Authority - Ken Hales, Community Justice
Suggestion Motion: Move Board Signature of Document No. 2011-364.
7. DISCUSSION and Consideration of First Reading of Ordinance No. 2011-
024, Amending Personnel Rules regarding Contract Staff Hiring and
Supervision, Evaluation Scheduling for On-call and Hourly Employees, and
Compensation for On-call Pay - Erik Kropp, Administration
Suggestion Motion: Move First Reading of Ordinance No. 2011-024.
8. DELIBERATIONS and Possible Oral Decision on Application Nos. CU-07-
102 and SP-07-46, Conditional Use Permit and Site Plan for Mining Activities
at Site No. 303 on Johnson Road (Latham LUBA Remand) - Paul Blikstad,
Community Development
CONSENT AGENDA
9. Board Signature of Resolution No. 2011-107, Appointing a Financial
Assistance Administrator for Deschutes County Health Services
10. Board Signature of Document No. 2011-372, Annual Assessment & Taxation
Software Agreement with Helion Software, Inc.
11. Chair Signature of Document No. 2011-375, Certification and Assurances
Required to Receive Federal Transit Administration Funding
12. Board Signature of Document No. 2011-368, a Deed of Dedication and
Acceptance of Reserve Strips in the Forest View Subdivision
Board of Commissioners' Business Meeting Agenda Wednesday, June 29, 2011
Page 2 of 8 Pages
13. Approval of County Administrator's Signature of Document No. 2011-359,
Substitution of Trustee and Deed of Reconveyance regarding Payment in Full
on Property Purchased from the County
14. Board Signature of Document No. 2011-288, a Lease Amendment with High
Desert Archers
15. Board Signature of Document No. 2011-222, a Lease Agreement with Kemple
Memorial Children's Clinic
16. Board Signature of Order No. 2011-017, Cancelling Uncollectible Personal
Property Taxes in the Amount of $37,277.91
17. Board Signature of Document No. 2011-319, Accepting a Deed on a Parcel
Previously Dedicated to the County for Road Purposes
18. Board Signature of Resolution No. 2011-091, Transferring Appropriations
from the General Fund to the OSP Building Fund
19. Board Signature of Resolution No. 2011-092, Transferring Appropriations in
the Secure Treatment Facility Fund
20. Board Signature of Resolution No. 2011-093, Transferring Appropriations in
the Building Services Fund
21. Board Signature of Resolution No. 2011-094, Transferring Appropriations
from the General Fund Contingency to the General Fund Property Management
- Administration Department
22. Board Signature of Resolution No. 2011-095, Transferring Appropriations in
the Project Development & Debt Reserve Fund and the General County
Projects Fund
23. Board Signature of Resolution No. 2011-096, Transferring Appropriations in
the General County Projects Fund
24. Board Signature of Resolution No. 2011-097, Transferring Appropriations in
the Insurance/Risk Management Fund
25. Board Signature of Resolution No. 2011-098, Transferring Appropriations in
the Public Health Fund
26. Board Signature of Resolution No. 2011-099, Transferring Appropriations in
the Finance/Tax Department Fund
Board of Commissioners' Business Meeting Agenda Wednesday, June 29, 2011
Page 3 of 8 Pages
27. Board Signature of Resolution No. 2011-100, Declaring the County's Intent to
Reimburse Expenditures with the Proceeds of Future Tax-exempt Obligations
28. Board Signature of Resolution No. 2011-103, Transferring Appropriations in
the District Attorney Department
29. Board Signature of Resolution No. 2011-104, Transferring Appropriations in
the Federal Forest Title III Fund
30. Board Signature of Resolution No. 2011-105, Transferring Appropriations
from the General Fund to the Special Transportation Fund
31. Board Signature of Resolution No. 2011-106, Transferring Appropriations in
the Video Lottery Fund
32. Board Signature of Resolution No. 2011-109, Transferring Appropriations in
the General Support Services-B000 Fund
33. Approval of Minutes:
Business Meeting: June 22
Work Session: June 22
CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
34. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the 9-1-1 County Service District
CONVENE AS THE GOVERNING BODY OF THE EXTENSION AND 4-H
COUNTY SERVICE DISTRICT
35. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the Extension/4-1-1 County Service District
RECONVENE AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
36. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
Deschutes County
Board of Commissioners' Business Meeting Agenda Wednesday, June 29, 2011
Page 4 of 8 Pages
37. ADDITIONS TO THE AGENDA
PLEASE NOTE: At any time during this meeting, an executive session could be called to address
issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation;
ORS 192.660(2)(d), labor negotiations; or ORS 192.660(2) (b), personnel issues.
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, June 27
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, June 29
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, July 4
Most County Offices will be closed to observe Independence Day
Wednesday, July 6
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 Wednesday, June 29, 2011
Page 5 of 8 Pages
Thursday, July 7
8:00 a.m. Regular Meeting with Sisters City Councilors - Sisters City Hall
Monday, July 11
3:30 p.m. Public Safety Coordinating Council Meeting
Wednesday, July 13
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, July 14
7:00 a.m. Regular Meeting with the City of Redmond Council, Redmond City Hall
Friday, July 15 - Tuesday, July 19
National Association of Counties Conference, Portland
Thursday, July 21
4:00 p.m. Bend Metropolitan Planning Organization Meeting
Monday, July 25
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, July 27
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, August I
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
3:30 p.m. Public Safety Coordinating Council Meeting
Board of Commissioners' Business Meeting Agenda Wednesday, June 29, 2011
Page 6 of 8 Pages
Wednesday, August 3
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, August 8 - Tuesday, August 9
Association of Oregon Counties Regional Summit - Silverton
Wednesday, August 10
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, August
10:00 a.m. Board of Commissioners' Meeting
12 noon Commissioners' Meting with Department Heads
1:30 p.m. Administrative Work Session - could include executive session(s)
Thursday, August 18
4:00 p.m. Bend Metropolitan Planning Organization Meeting
Monday, August
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Wednesday, August 24
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
Monday, August 29
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 Wednesday, June 29, 2011
Page 7 of 8 Pages
Wednesday, August
10:00 a.m. Board of Commissioners' Meeting
1:30 p.m. Administrative Work Session - could include executive session(s)
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 Wednesday, June 29, 2011
Page 8 of 8 Pages
BRUCE W. WHITE, ATTORNEY, LLC
June 20, 2011
Hand Delivered
Board of County Commissioners
c/o Paul Blikstad
Deschutes County Planning Division
114 NW Lafayette Ave.
Bend, Oregon 97701
Subject: SP-07462 and CU-07-102 for Surface Mining and Crushing Operations on Surface
Mining Site #303
Dear Commissioners:
This is just to advise that we will be filing our rebuttal testimony all at once on or before June 25,
2011 as contemplated by the post-hearing schedule for written submittals.
Sincerely,
~
Bruce W. White
C. Latham Excavation
Paul Dewey
ECE
iY:
JUN 2 0 2011
DELIVERED BY:
tA41,14c
P.O. BOX 1298 - BEND, OR - 97709
PHONE: (541) 382-2085
FRANCIS HANSEN & MARTIN LLP
Board of County Commissioners
Re: File Nos. CU-07-102. SP-07-46,
Written Comments to the Issues before the Board on Remand by the Land
Use Board 'of Appeals in Case Nos. 2009-061%2009-062
Latham Excavation Surface Mine Site No. 303, Tax Lot 1712070000300
("Subject Property")
June 20, 2011
Page 2
First'Assignment Of Error (Hoffman)
The Nyes believe that LUBA requires an amendment to the ESEE to include the
different resource, Tumalo Tuff, on. the mining inventory . because it is a substantial
portion of the activity with. significant impacts, not originally contemplated.
The Nyes.agree with. LUBA that the.position Latham takes in regard to,his.ability to
rernove`whatever mineral and, aggregate resources are encountered on the site. is far
too broad, to say the least. (See LUBA, pg. 12-13.) There is a distinction `to be made
as to whether or not a new, (non-inventoried) material or just a larger'amount of -
inventoried mineral is.present. Because the distinction is questioned, an amended, if.
not new; ESEE analysis should be performed. Thisi$ especially true when we consider.
that the now-indentified 3.4 million cubic yards of tuff will create :a larger and more
visible headwall that will produce more dust during mining and even after the, site has
been reclaimed. (See LUBA, pg. 20.) Because the original permit contemplated only
opening a pit in*the ground with a maximum size of'25 acres', the :impacts that
accompany the mining of any non-contemplated resource will certainly be significant if
they were not considered- in the 1990 ESEE:
LUBA has remanded the case so that the County can either provide an explanation as
to why the current ESEE findings and decision for site 303 is adequate or require that
the ESEE findings and decision for the subject property be amended. to take into
consideration the impacts. that additional mining. of tuff .may have, and impose: additional
limits on mining which would be appropriate to. address that impact. Given descriptive
statements by LUBA..suggesting that allowance. of any incidental mining of tuff must be
narrow, the indication is that LUBA suggests the revised ESEE is more appropriate for
the .changes Applicant'see'ks. (See LUBA, pp: 16-17)
Third Assignment of Error (Hoffman)
Within Deschutes County Code Chapter 18.52 there area number of provisions that
impose regulations based on proximity to dust sensitive and noise sensitive uses. (See
LUBA pg. 20-21) The LUBA decision admits that it is not sure it understands the
County's interpretation of Deschutes County Code 18:52.110 (6)(1)(2)(5); and (6).
LUBA would like the County to revise its interpretation to more clearly express its views.
as to how those sections should be applied. in this. case and whether, or not. screening of .
the headwall is required. (See LUBA, pg. 39.) Again, this is more justification for
requiring:a new or amended ESEE in order to resolve the ambiguities, .especially when
See Record 1385-1386.
Board of County Commissioners
Re: File. Nos. CU-07-102, SP-07-46,
Written Comments to the Issues before the Board on Remand by the Land
Use Board of Appeals in Case Nos. 2009-061/2009-062 .
Latham Excavation Surface Mine Site No. 303, Tax Lot 1712070000300
("Subject Property").
June 20, 2011
Page 3
the additional mining will result in a larger, more visible headwall with' additional
unknown implications.
Fifth Assignment of Error (Hoffman)
LUBA asks the County to definewhat is meant, by "ongoing incremental reclamation" or
weave it to DOGAMI to make that determination,.: The 5-acre excavation limit, in ongoing
incremental reclamation as set forth in the,original permit is inadequate for the current
use of the property. The reclamation plan has changed and is different because the-
contemplated- use -was for gravel and pumice mining only..' Now that Applicant
anticipates leaving .a permanent headwall and removing tuff, it appears impossible for
the- DOGAMI requirements to be met. LUBA gives the current Board of Commissioners
the option of either defining what is met by ongoing incremental reclamation in the
ESEE, or writing a.condition requiring-that expressly delegating reclamation authority to
DOGAMI. Again. there is 'an ambiguity in what is meant under the existing ESEE
because of the change in'-use and subsequent conditions already.in. place versus the
contemplated change in. use by he Applicant. To require that-DOGAMI try to tackle this
ambiguous task seems inequitable. For the county to adequately describe what is
meant by "ongoing', incremental reclamation," it. should require that a new ESEE is made .
in order to define what is :necessary and meet this item of remand.
Sixth Assignment.of Error(Hoffman) and Third and Fourth Assignments .of Error.
(Latham)
The sixth assignment of Error (Hoffman). is denied.butas it relates to dust control it is.
also brought; up in the Third and Fourth Assignments of Error by.Latham. Although
Latham has not been required to successfully prevent dust from becoming airborne, it
still must take reasonable precautions to preventAust from becoming airborne. See
Deschutes County Code1.8.52.110 (C) and OAR 340-208-0210(2). The inconsistencies
between the Deschutes County Code and the Oregon Administrative Rules on this point
required LUBA to remand this Deschutes County Commissioners... There was no,:
dispute.that the headwall produces dust when. there is active mining at the headwall:
(See LUBA decision pg. 63)
The Department of Environmental Quality standard set forth in OAR 340-208-0210(2)
requiring "reasonable precautions to preventparticular matter from becoming airborne"
is one',referenced- in-Deschutes County Code 18.52.110(C)- requiring. that "the discharge
of.contaminants and dust-created; by the mining operation and accessory uses not
exceeding any applicable DEQ ambient air. quality and emission standards.' It appears
Board of. County Commissioners
Re: File Nos. CU=07-102, SP-07-46:
Written Comments to the Issues before the Board on Remand.by the Land
Use Board of Appeals. in-Case Nos. 2009-061/2009-062
Latham Excavation Surface Mine Site No. 303, Tax Lot 1712070000300
("Subject` Property").
June 20, 2011
Page 4
that the County's findings required dust from the- headwall to be successfully
suppressed and while LUBA did not believe that" is,a requirement, LUBA did say that
perhaps the county meant to find. that not mining the headwall and allowing it to "build
up a crust" over time was the precaution to be taken. as required by Deschutes County
Code 18.52.110(C) and OAR 340-208-0210(2). (See 'LUBA decision pg. s5)
One carvanticipate how mining to the pumice.through 3.4 million cubic yards of. tuff or:
just. mining the tuff itself, leads to d much larger and steeper:headwall. that cannot.be
well contained in terms of dust and particles being airborne. Applicant can't take
reasonable. precautions that'comply with-DCC. requirements until'it submits an
application to modify the plan: and show how headwall mining can be controlled. An
amended or new ESEE should be required. in order, to allow the County to impose
conditions related to dust control.
The Nyes are especially concerned about this given the location of their home (which
existed in 1990 and. is a quarter-mile from the center of the mine) in relation to the
subject property. Their 6-year old son has vernal allergenic conjunctivitis. While the
Nyes understand the Goal-Z protections afforded to, certain mining activities, they are
especially concerned with the fact that what the :Applicant is asking to do goes outside
of the protection afforded by state and local law. If approved, the, detriment to the
livability of the area would be large. If Applicant contemplates doing more than allowed
to do under its original permit, it must take the corresponding precautionary,
preventative, and required steps under state and local law pursuant to an accurate
ESEE analysis.
Thank you in advance for your consideration.
Sincerely,
FRANCIS HANSEN & MARTIN LLP
Alison Hohengarten
cc: Clients
.
,Paul Dewey
Dr. Raymond Tian and Regina,McClard
Skip and Karen Grossman
64085 Tamoli Lane
Bend, Oregon 97701
Board of County Commissioners
Deschutes County
1300 N. W. Wall Street, 4200
Bend, Oregon 97701-1960
Re: Application of Latham Excavation
Dear Commissioners:
June It' ~E®
tel:
JUN 1 6 2011
L)ELIVERED 9Y.-
We are writing to the Board to state our opposition to the permit application
of Latham Excavation to expand the mining operation at the mine off Johnson Road.
I spoke at the Board hearing on June 13, 2011 but my wife Karen preferred to
submit a written statement outlining our concerns and objections.
We purchased our home and farm from the Hamiltons in March of 2009. Our
property is located across Johnson Road and just northwest from the mine (just
west of and contiguous to the Triplett property). We are located close enough to
hear equipment operating at the mine, hear the heavy trucks travel Johnson Road
and see any dust plumes generated by the mining activity.
When we considered buying our farm we did considerable due diligence
concerning the mine. I reviewed hundreds of pages of documents available on the
County's website regarding the history of the mine, the scope of its entitlements
and the hearings and minutes pertaining to Latham's earlier applications. In
addition I spoke with the County's planning department's project manager for this
site on more than one occasion.
Based on our research and understanding of the scope of the approved
mining operation (eg only 25 of the 80 acres were designated for mining) we
decided to proceed with our purchase.
However, it is our understanding that Latham is now applying for a permit to
SIGNIFICANTLY expand the size and scope of the mining operation by excavating
the headwall and mining tumalo tuff. Even though we are owners only since 2009,
given Latham's intent to substantially change the mining operation and the impacts
this will have on the area in which our home and farm are located, we feel we are
entitled to be heard on this matter.
Specifically, our concerns with such an expanded mining operation are as
follows:
1. Increased equipment noise on site that can be heard in the surrounding
area, particularly early in the morning.
2. Increased generation of dust affecting the surrounding areas.
3. Increased heavy truck traffic going to and from the mine every day
starting very early in the morning that is i) loud and ii) dangerous to the
ever increasing number of cyclists that ride Johnson Road at all hours of
the day.
4. Increased permanent scarring of the land which is visible from our
property.
5. Concerns with Latham's commitment and willingness to consistently
perform the required reclamation and remediation processes and
procedures, day in and day out, year after year after year.
Therefore, we strongly urge the Board to require an updated ESEE to be
performed to thoroughly analyze the impacts of this substantially increased scope of
mining activities applied for by Latham Excavation.
Thank you for your time and attention on this matter.
Respectfully,
I,.1M- G v s s w~ ~-vt
Skip and Karen Grossman
Oregon
John A. Kitzhaber, MD, Governor
June 15, 2011
Parks and Recreation Department
RWENED
JUN 17 2011
Deschutes County C DD
Deschutes County Commissioners
c/o Paul Blikstad, Senior Planner
Deschutes County Community Development Department
117 NW Lafayette Ave.
Bend, OR 97701
RE: Latham Excavation/McClain Inv. LLC
Dear Deschutes County Commissioners:
Tumalo Management Unit
62976 OB Riley Road
Bend, Oregon 97701
541-388-6055
FAX 541-388-6405
pREOpN
PARKS
Please consider this response as further comment regarding the public hearing held on
Monday, June 13, 2011, regarding Latham Excavation. This comment is made on behalf of
the Oregon Parks and Recreation Department (OPRD), specifically Tumalo Management
Unit and Tumalo State Park, which includes lands adjacent to Site No. 303.
OPRD supports and recommends that a new Economic, Social, Environmental and Energy
(ESEE) study be required of Latham Excavation. A new study would assess the dust, noise,
and visual impacts of their current and future operations, which have changed since the
original study was conducted by the previous landowner. Concerns over mining operations
were documented in OPRD's 1986 Tumalo State Park Master Plan and as recently as 2009's
public hearings regarding Latham Excavation.
OPRD appreciates the opportunity to again participate in the public comment process. Our
agency feels a new ESEE study would adequately assess Latham Excavation's current and
future mining operations and should be required before further consideration is made.
Respectfully submitted,
/(,L>?lL~~/L~/
Susan Bethers
Park Manager
Tumalo Management Unit
(541) 388-6055 x23, susan.bethers@state.or.us
SCHWABE, WILLIAMSON & WYATT
A T T O R N E Y S AT L A W
Pacwest Center, 1211 SW 5th Ave.. Suite 1900, Portland, OR 97204 i Phone 503.222.9981 I Fax 503.796.29001 www.schwabs.com
TtioMAs M. TRIPLETr
Admitted in Oregon
Direct Line: 503-796-2901
E-Mail: ttriplett@schwabe.eom
June 14, 2011
Board of County Commissioners
Deschutes County
1300 N. W. Wall Street, #200
Bend, Oregon 97701-1960
Re: Remand Proceeding on MA-083,CU-07-102 and SP-07-46
(Latham Excavation Surface Mine Site No. 303)
Dear Ladies and Gentlemen:
RECEIVED
JUN 17 2011
Deschutes Courdy CDD
This letter is written in opposition to the application of Latham Construction in the
referenced matter. Our property is to the north of the Latham site. It borders Johnson Market
Road as does the Latham property. Thus the perimeters of our properties are separated merely
by Johnson Market Road. The portion of my property proximate to that of the Latham property
is zoned as wild life; the balance is in EFU.
During the past two years there has been little activity at the Latham site. Perhaps that is
due to economy or the uncertainties surrounding its appeal. In any event, that interlude has been
blissful. Why because:
1. The beeping of vehicles backing up does not jar us out of bed;
2. The incessant rumble of trucks coming and going ceased;
3. Spillage of excavated materials onto my property abated; and
4. The plume of dust, sometimes rising several hundred feet into the atmosphere,
stopped.
Now it is my understanding that Latham not only wants to start again but expand its
operation. In addition to the real concerns experienced from their last foray into this farm and
residential community, there are additional ones:
Portland, Ofd 503,222.9981 1 Salem, OR 503,540.4262 i Bond, OR 541:749.4644
Seattle, WA 206.622.1711 i Vanwuver, WA 360.694.7551 1 Washington, DG 202.46.8.
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C_' rte i r' Ert
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Board of County Commissioners
June 14, 2011
Page 2
1. My grandson spends major parts of the summer with us. He has a serious asthma
problem that has hospitalized him several times. The plume, perhaps a carcinogen, likely would
have. an adverse effect upon his lungs.
2. The noise will adversely affect migratory animals. In particular there is.large herd
,of deer; coveys of quail; gaggles of geese, etc. that migrate through and take refuge in this area.
3. Latham has not been a careful, meticulous, neighborhood friendly operator, as had
been Cascade Pumice.
4. The gouge in the headwall, clearly visible from the upper reaches of the State
Park and also my property, is more than merely unsightly.
5. We believe that the plans go well beyond the operation. envisioned by the 1990
ESEE, i.e. no hill side excavations were contemplated; and substantially more limited acreage
was to be mined.
b. Given the drastic enhancement of traffic, the plans of the new school and of the
church could be significantly affected because of safety issues.
7. It is likely that even more Latham will not undergo prompt remediation Indeed
there are no iron clad guarantee that it will ever occur.
Bottom line: Before this list of horribles is visited upon this community, a new ESEE
should be conducted and the application denied pending the outcome of that process.
Ve truly yours,
110mas M. Triplett'
TMVbak
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JON 1 1: 2011
-1.;YI
CASCADES
ACADEMY
OF CENTRAL OREGON
June 14, 2011
Tammy Baney
Deschutes County Commissioner
1300 NW Wall Street, Suite 200
Bend, OR 97701
RE: LUBA Case No. 2009-062/Application nos. SP-07-46/CU-07-102 from Mark Latham Excavation, Inc.
Dear Ms. Baney,
On behalf of Cascades Academy of Central Oregon I am writing to express our opposition to the Land Use Board of
Appeals SLUBA) Case No. 2009-062/Application nos. SP-07-46/CU-07-102 from Mark Latham Excavation, Inc.
As you know, Cascades Academy has recently received approval to move forward with the construction of our new
campus in Tumalo near the location of the proposed Latham mining expansion. We expect to have over 200 students
and staff in the new building on a daily basis, and as such are dedicated to preserving the environmental quality of the
Tumalo community.
Although we have been aware of the existing mining activities in the area throughout our planning process, we have
concerns about Latham's intentions to expand surface mining near the school. We would like to request that a
complete Environmental Impact Statement be conducted to thoroughly examine all of the potential effects of this
proposed expansion.
Thank you for the opportunity to voice our concerns. Please do not hesitate to be in touch if we can provide any
additional clarification.
Sincerely,
6FairJen . s.
Head of School
I
JUN 16 2011
BOARD OF COMMISSIONERS
ADMINISTRATION
Experience exceptional learning.
2150 NE STUDIO ROAD • BEND, OREGON 97701
5411382-0699 • WWW.CASCADESACADEMY.ORG
RECEIVED
JUN 16 2011
Deschutes County CDD
Michael Van Waas
64274 Keith Court
Bend, OR 97701
15 June 2011
Deschutes County Board of Commissioners
c/o Paul Blikstad, Community Development
re: Conditional Use Permit and Site Plan for Mining Activities at Site No. 303 on Johnson Road (Latham
LUBA Remand)
During the Board meeting on 13 June 2011,1 was registered to speak in regard to the above matter but
opted, with the Commission's approval, to submit written testimony instead. This is that testimony. It
concerns two major issues: The requirement for a new ESEE and site reclamation requirements.
ESEE
I would begin my testimony by referring to the testimony given at the hearing by Mr. White, the
attorney for Latham. Towards the end of his presentation to the Board he testified that Cascade
Pumice, the previous owner of the site, had never mined tuff commercially, had no customers for the
tuff and had had no interest in marketing it. He is absolutely correct in each of these statements and
they make the unassailable case that Latham has a fundamentally different business model and would
make a fundamentally new use of the site than any foreseen in the original ESEE. With roughly five times
the amount of minable tuff on the site compared to pumice, their proposed use of the site is also a
massively larger scale of operation compared to the pumice mining foreseen and expected by the
original ESEE. I'd like to thank Mr. White for so clearly and simply making a compelling case for
requiring a new ESEE. While there were other important, supporting reasons for a new ESEE in other
testimony given during the Board's meeting, just the points made by Mr. White are more than sufficient
cause for the Board to require a new ESEE.
Reclamation
Again I would start with Mr. White's testimony because of the subtle and straight-faced humor he
brought to this issue. He argued - and one would almost believe he was serious -that since the site was
out of compliance with existing reclamation requirements when they purchased the property, Latham
has no responsibility on that issue. Let's be clear: When Latham bought all the resources, they also
bought all the responsibilities - including reclamation. That in the years since the purchase Latham has
done nothing to comply with those requirements -and that DOGAMI has demonstrated no serious
interest in enforcement are telling signs of what we can expect in the future should the Commission
not address this issue head-on. I strongly urge the Commission adopt the following items regarding the
reclamation issue:
1) As a condition of, and prior to, for any commercial use of the site, that Latham prove
to the Board they are in full compliance with existing DOGAMI rules and regulations
regarding site reclamation on all parts of the site. The general idea here is a simple one:
Let's start with a clean slate (and a clean site) before moving forward . The Commission
should also make clear that "any commercial use" explicitly includes material storage as
well as any mining or site preparation activities.
Remand Hearing
Mark Latham Excavation
June 13, 2011
1. Background for Site
• 1970s - Mining at site dates back to 1970s on eastern half of site (for river run aggregate)
and likely before that for pumice.
• 1979 - Site was zoned for surface mining.
• 1990 - Site was inventoried for pumice and zoned for surface mining in the County's Goal 5
process.
• 1996 - A site plan was approved on application of Cascade Pumice for mining the pumice.
• 2002 - Cascade Pumice starts mining pumice at the site
• 2007 - Cascade Pumice sells site to Mark Latham Excavation, Inc.
• 2007 - Latham Excavation submits site plan application and conditional use to allow
crushing on site. Revised application would not expand footprint from 1996 Cascade
Pumice approved site plan.
II. Regulatory Background for Surface Mines
• See findings for 2009 decision, pages 10-12
• Zoning for surface mining and protection of mineral and aggregate sources is governed by
Statewide Planning Goal 5. County's comprehensive plans must include protections for
mineral and aggregate sources in accordance with Goal 5.
• Division 16 of the Oregon Administrative Rules governed the Deschutes County Goal 5
process and provides the legal context within which the comprehensive plan decision-
making documents (commonly referred to by a short-hand designation as an "ESEE") for
each separate site. Goal 5 requires a multi-step process of inventorying mineral or
aggregate resources; identifying conflicting uses and resources; determining the Economic,
Social, Environmental and Energy consequences of allowing mining to proceed fully or
allowing the conflicting uses to proceed fully (without mining); deciding whether to allow
mining and to what extent; devising a "Program to Meet the Goal" by which regulations are
adopted to allow mining and to restrict conflicting uses. Most decisions in the County were
made to allow both the mining and conflicting uses to proceed, as limited by the provisions
of the SM zone (for mines) and the SMIA zone (for conflicting uses).
• Deschutes County's first attempt to obtain acknowledgement of its comprehensive plan for
surface mining sites was struck down by the Oregon Court of Appeals because it did not
protect mining sites from encroaching rural residential development.
• The Deschutes County Goal 5 Mineral and Aggregate element of its comprehensive plan was
adopted in July 1990 through a package of 4 ordinances, establishing: comp. plan goals and
1
policies; an Inventory; conflicts analysis and ESEE Decisions for each site on whether to
allow mining and to adopt a Program to Meet the Goal; and an ordinance adopting the SMI
zone and regulations and the SMIA zone and regulations.
• Site 303 in the County's inventory list is the subject site, and the County's decision in July
1990 was to allow for mining to proceed, to zone the site SM, and to apply the regulations in
the SM zone to mining operations. A Surface Mining Impact Area (SMIA) zone of mile was
adopted surrounding the site to protect the mine from encroaching conflicting uses,
(primarily residences). The Program to Meet the Goal for this site was basically a generic
listing of conditions that applied the provisions of the Zoning Code to this site. No special
restrictions were adopted (other than a notation that special care be given to protecting
views from Tumalo State Park - but no performance standards other than those in the
ordinance were established). Processing (crushing) was specifically allowed at the site.
III. Issues on Remand
A. Does the ESEE Allow Minine of the Tumalo Tuff?
1990 ESEE for Site 303:
Conflicts identified, pp. 3-6
ESEE Consequences analyzed, pp. 6-8, 9-11
Decision/ Weighing of importance of mineral resource versus conflicting resources and uses, pp.
9,11-12
Program to Meet Goal, p. 12
Stated in fairly generic, broad-brushed terms, with no quantification of degree of impact. Prior
mining noted, which served to lessen degree of impacts noted and focus on impacts of
expansion only.
Findings in 2009 Decision:
This issue is addressed in extensive findings on Pages 15-16 of the Board's 2009 Decision.
Legal Context:
OAR 660-0016-0010
"Based on the determination of the economic, social, environmental and energy consequences, a
jurisdiction must 'develop a program to achieve the goal'. Assuming there is adequate information on the
location, quality and quantity of the resource site as well as on the nature of the conflicting use and ESEE
2
consequences, a jurisdiction is expected to 'resolve' conflicts with specific sites in any of the following three
ways listed below...
(3) Limit Conflicting Uses: Based on the analysis of ESEE consequences, a jurisdiction may determine that
both the resource site and the conflicting use are important relative to each other, and that the ESEE
consequences should be balanced so as to allot the conflicting use but in a limited way so as to protect the
resource site to some desired extent. To implement this decision, the jurisdiction must designate with
certainty what uses and activities are allowed fully, what uses and activities are not allowed at all and
which uses are allowed conditionally, and what specific standards or limitations are placed on the
permitted and conditional uses and activities at each resource site. Whatever mechanisms are used, they
must be specific enough so that affected property owners are able to determine what uses and activities
are allowed, not allowed, or allowed conditionally and under what clear and objective conditions or
standards. Reasons which support this decision must be presented in the comprehensive plan, and plan
and zone designations must be consistent with this decision."
Caselaw: Sanders v. Yamhill County, 34 Or LUBA 69 (1998)
Columbia Steel Castings Co. v. City of Portland, 314 Or 424 (1992)
An ESEE is only required to address the genera / nature and scope of the identified conflicts and
their interplay and it is sufficient if it contains enough information to permit the responsible
jurisdiction to have "reasons to explain why decisions are made for specific resource sites."
Important "Take-Away" Points:
• Goal 5 is aimed at providing protection to natural resources.
• Balancing of conflicts is based upon relative importance of site versus importance of
conflicting resources and uses (not a balancing of impacts per se)
• The rule requires analysis of resource sites (not specific resources)
• The ESEE analysis can be describe conflicts in general; detailed description of conflicts
was not required and in the case of the County's ESEE decision documents was not
made.
LUBA's Decision:
• Pages 14-20
• Inventoried amounts do not limit the amount of the inventoried material that may be
excavated, even if real amount is 2 million cu. yds versus that estimate of 750,000 cy
• Incidental mining of a different, non-inventoried mineral may be OK, where the
inventoried and non-inventoried resources are similar in use and value, means of
extraction and processing and the type and intensity of impacts are similar. Would the
3
County have allowed for mining of the non-inventoried resource if it had known of the
quality and quantity of the non-inventoried resource?
• LUBA found that because the impacts were similar and the Tumalo Tuff was an overlying
layer, the County's went "part way" to establishing that the Tuff could be mined.
Because the findings did not specifically address the primary concern of the opponents -
visual and dust impacts of headwall - the findings were not adequate.
• In particular, LUBA noted that in light of the additional restrictions the Board put on
nearby sites 304 and 305/306, the Board might have opted for additional restrictions on
Site 303 had it know of the mining of the Tuff resource in addition to the Pumice
Resource.
• Latham Response:
o Board can make adequate findings here: Is not an issue of what evidence is in
this record (although that may help assuage your concerns about the decision
you make). Is a matter of what the Board knew at that time, given the general
description of the conflicts and the ESEE consequences of mining or not mining.
o The 1990 record for this site does not include any specifics as to exactly where
the resource is, how deep the resource is or exactly what method might be used
for mining. (In fact, the Board's findings assume that blasting would occur.)
Per the case law cited, no great detail was needed for the Board to make a
supportable decision.
o The record shows that the ESEE conditions for sites 303, 304 and 305/306 were
basically similar, starting with a set of basic, generic conditions. (See attached
ESEE excerpts for Sites 303, 304 and 305/306.)
o Site 304 was closest to the river- directly across O.B. Riley Road from the River.
The ESEE conditions didn't even include one requiring that dust be controlled.
The additional restrictions put on Site 304 were that no processing occur and
that the site be accessed at the northern edge (furthest from the park). These
were requested by State Parks (see Exhibit
o Site 305/306 backs up directly to the Tumalo Rim subdivision. The additional
ESEE restrictions for this site were restrictions on blasting and that there be a
one-year time limit for mining activities. The close proximity of the mine to the
subdivision explains the blasting restrictions; the one-year time limit on
operating was agreed-to by the operator (see Exhibit
o There was no request from State Parks that Site 303 not allow for processing (as
was the case with Site 304). Despite the far greater amount of material that
4
would be excavated from Site 303 than from Site 304, State Parks requested the
same general screening requirements for Site 303 as it did for Site 304. There
was no concern expressed about what configuration the land might take after
mining.
o There was very little testimony on this site. None at the Planning Commission
(Exhibit Only 4 individuals at the Board. Only 2 of the 4 mentioned dust;
only one mentioned visual impacts on Tumalo State Park. There were two
letters in opposition. One mentioned visual impacts and dust; the other letter
from the Coalition for the Deschutes (mentioned as the primary letter in
opposition at the Board's decision meeting) did not even address this site
specifically ("of the wave of SM sites, we have had time to evaluate only sites
251, 278 and 453".) (Exhibit LUBA Record 3548).
o There has been far more opposition at these hearings on the site plan and
conditional use permits than at the ESEE stage.
o Given the lack of focused concern in 1990 on the issues mentioned by LUBA in
its decision, the Board should have no trouble making the findings that LUBA
requires.
• Anew ESEE for just the Tumalo Tuff would have adverse impacts
o On the applicant, because of further delays and expenses. It is possible under
the Division 23 rules that no new ESEE could be approved until the intersection
at Highway 20 and O.B. Riley Road is improved.
o On the community, if it opens the door for challenges to other sites in the
County that have routinely mined non-inventoried resources, such as the
Tumalo Tuff. This could result in a shortage of commercial fill resources in the
community - the only site inventoried for such resource in the Bend area is the
Rose Pit, which is currently seeking to be zoned from Surface Mining to rural
residential. Other pits from which Tumalo Tuff is drawn for commercial fill are
the Robinson Pit off of Century Drive (now closed for further mining); the
Pierrate Brothers (Able) pit and the Taylor NW Pit to the west of Shevlin Park.
• A new ESEE for just the Tumalo Tuff would not provide for greater protection of
conflicting resources and land uses:
o General scenic impacts are not addressed under the Division 23 rules;
o Scenic impacts on Oregon Scenic Waterways are measured at the water's edge
and not in the uplands associated with the Scenic Waterway; the river runs in a
5
canyon through the most heavily used parts of the park and cannot be seen
from the water's edge.
• Staff reference to ESEE not covering the headwall is erroneous. (See argument on p. 5
of June 10, 2011 letter.) ESEE never mentioned term "headwall". Such position is
inconsistent with the balance of the findings on pp. 14-15 and Condition of Approval No.
23 in the 2009 decision.
B. Whether Supplied Screenine is Required for the Hoffman #1 Dwellinx
Subject Provision: DCC 18.52.110(B)
Applicability: Only to Pre-July 1990 Dwellings (doesn't apply to Hoffman #2 Dwelling)
2009 Findings: pp. 22-23
LUBA's decision: pp. 33-35 (in particular, the discussion on page 34, lines 5-16 starting with
"the distinction the county is attempting to draw between natural topography and man-made
topography is hard to draw" and footnote 21).
- Latham's Response:
o The only reasonable interpretation is that the topographical exception applies
equally in cases where there has been a "man-made" alteration of the topography
as to where the topography is completely natural.
o LUBA's footnote 21 states Latham's position; there is no possibility of screening the
headwall for two topographical reasons: the intervening ridge would make
screening ineffective; the height of the headwall would make screening ineffective.
C. Whether Supplied Screening is Required for Tumalo State Park and the Adjacent Pre-1990
Dwellines
Subject Provision: DCC 18.52.110(B)
Applicability: Only to Pre-July 1990 dwellings, (therefore doesn't apply to Aller replacement
dwelling)
Only to dwellings that are within mile of site (therefore doesn't apply
to Massey dwelling, possibly Kleine dwelling)
At most applies to only two dwellings, Scolman and Kleine (see Exhibits
to Table 1 to Bruce White letter).
6
D. Compliance of piles of top soil with the''/.-mile setback
Subject Provision: DCC 18.52.090(B)
Applicability: Only to Pre-July 1990 Dwellings (doesn't apply to Hoffman #2 Dwelling). Setbacks
at issue involve setbacks from Hoffman #1 dwelling and Todd dwelling to east.
2009 Findings: pp. 33-34
LUBA's decision: pp. 41-43
Latham Response:
o Address surface mines generally as dynamic sites
o Move topsoil pile within % mile of Hoffman No. 1 residence to a place outside the
mile setback
o Seek exception under DCC 18.52.090(B)(1) and (2) for top soil pile placed by Cascade
Pumice within 1/4-mile setback from Todd Residence, relative to size of the parcel
and physical constraints, to retain "existing vegetation" on the topsoil piles. Given
the existence of the pile and its already-vegetated state, no other location would
have less impact from a noise and dust standpoint.
o Confirm existing exception to allow stock piles within %-mile setback from houses to
south (see findings at p 34, third paragraph). Those findings are still valid.
E. Compliance with the incremental reclamation "requirement" in the ESEE's Program to
Meet the Goal
Subject Provision: ESEE Condition 23(e)
2009 Findings: pp. 26-27, p. 63
LUBA's decision: pp. 44-46
LUBA suggested that "we believe the County could write a condition requiring ongoing
incremental reclamation to expressly provide that DOGAMI is free to determine
whether 'ongoing incremental reclamation' is possible or desirable and DOGAMI may
modify or waive that requirement altogether in its permitting process DOGAMI sees fit."
Latham Response:
7
o Agree with staff that the only reasonable response to this is to condition approval, as
suggested by LUBA. Applicant has suggested language in Bruce White's letter of June
10, 2011.
o Reasons for this are that only DOGAMI has the authority to regulate reclamation
activities.
o Avoids the County having to make judgment calls on when reclamation activities might
be required to begin, what reclamation activities are reasonable to require the applicant
to undertake, given the
o Recognizes that applicant is free to amend its reclamation plan with DOGAMI and that
trying to prescribe an incremental reclamation plan could run into conflicts with a
revised reclamation plan approved by DOGAMI.
F. Compliance with air quality standards regarding the headwall
G. Compliance with setbacks for the proposed northeast and southeast crushing sites
H. Compliance with screening requirements for the northeast and southeast crushing sites
1. Applicability: Only to Pre-July 1990 Dwellings (doesn't apply to Hoffman #2 Dwelling)
J. Whether
IV. Conclusion
8
BRUCE W
Hand Delivered
Board of County Commissioners
1300 NW Wall St., Suite 200
Bend, Oregon 97701
June 24, 2011
Subject: SP-07-462 and CU-07-102 for Surface Mining and Crushing Operations on Surface
Mining Site #303
Please find enclosed Applicant's written rebuttal and final argument materials in accordance with the
post-hearing briefing schedule outlined by the Board at the June 13, 2011 remand hearing on this
matter. Those materials include the following:
• Memorandum of Bruce W. White and associated exhibits (1-5)
• Testimony of Pat McClain with attached exhibits 1-3
The Memorandum of Bruce White is arranged in order of the issues that were remanded back to the
County and addresses legal issues associated with the remand, with an additional section on
procedural issues, such as standing. Similarly, the letter of Pat McClain is organized generally by
topics that are implicated by the remand. Because of the nature of Exhibits 1 and 2 as oversized
exhibits, with one being an acetate overlay that cannot be folded only one copy of that exhibit is
provided.
Sincerely,
Bruce W. White
C. Latham Excavation
Paul Dewey
Staff
P.O. BOX 1298 • BEND, OR • 97709
PHONE: (541) 382-2085
WHITE, ATTORNEY, LLC
JUN 2 4 2011
B
Applicant's Rebuttal on Remand
Mark Latham Excavation, Inc.
SP-07-46/ CU-07-102
(Johnson Road Pit - Surface Mining Site 303)
PROCEDURAL ISSUES
Standing: Only those persons who were parties to the proceedings before the County shall
be entitled to notice and be entitled to participate in any hearings on remand. DCC
22.34.030(A).
Applicant objects to the participation by the following parties on the basis that the County's code
does not give them standing to participate in this remand hearing, which is open only to those
who were parties to the prior proceeding. Accordingly, the following persons who appeared have
no standing to do so, and their standing and participation should be rejected: Cascades Academy,
Mike Van Wass, Skip and Karen Grossman, and Sanders and Danielle Nye.
Issues: Only issues implicated by LUBA's decision are properly before the Board.
The County Board rightfully recognized that the scope of the hearing is limited to those issues
that are implicated by LUBA's remand. Accordingly, issues such as noise and traffic, which
were either resolved or not pursued at LUBA cannot be considered by the Board and the Board
should reject such testimony as being beyond the scope of this hearing.
Reopening Record: The Board has acted within its discretion in determining to reopen the
record in this matter. DCC 18.34.040(A).
The Hoffmans challenge whether it is appropriate for the County to hear new evidence on the
issue of the applicant's ability to control dust coming from the headwall. In structuring the
hearing on remand, the County limited the issues to those implicated by the remand and
determined to hear the case de novo. The applicant's appeal of the proper application of the
fugitive dust emission standard was squarely addressed to the Board's finding that the applicant's
dust mitigation plan as it related to the headwall was not adequate. As noted above, the Board
has discretion to reopen the record on remand and consider issues bearing on the remanded item.
Clearly, testimony related to whether the dust emissions from the headwall can be controlled is
related to the remanded issue and the Board's determination to hear new evidence on such issues
was clearly aimed at resolving headwall dust issues, which had been the subject of a deferred
determination in its 2009 decision was appropriate under the circumstances. Accordingly, such
evidence is properly received by the Board. The applicant has disputed all along whether there
was dust emanating from the headwall and the new evidence has confirmed its position that there
was not dust emanating from the headwall itself.
Applicant's Rebuttal on Remand
Mark Latham Excavation, Inc.
SP-07-46/ CU-07-102
(Johnson Road Pit - Surface Mining Site 303)
LATHAM EXCAVATION IS NOT OPERATING BEYOND THE SCOPE OF THE
APPROVAL IN SP-95-010
Various opponents have argued that applicant is operating beyond the scope of the approval
granted by the County in SP-95-010. There is no basis to most of the charges leveled by the
opponents and they are largely irrelevant in determining whether the site plan requirements for
the pending site plan have been complied with.
• The applicant has not mined outside the 1995 permit area.
Mr. Dewey argues that some of the area that has been mined lies outside the mining boundary
allowed in the SP-095-10 approval. In doing so, he makes two unwarranted assumptions: (1)
first, that Latham was responsible for that excavation and (2) that the west line on the SP-95-010
site plan is absolute. As set forth below, neither assumption is correct. Despite the fact that
Latham has made numerous statements during the various hearings about its role versus Cascade
Pumice's in opening up the current mining area, Hoffmans' attorney is determined to keep
making this unwarranted charge.
As set out in Pat McClain's rebuttal testimony, the slot that is open today was opened by Cascade
Pumice. Latham Excavation's only actions have been to deepen a cut already made by Cascade
Pumice on the east edge of the slot. This is illustrated by Photo 1 in Exhibit 1 to Pat McClain's
testimony of today. The difference in teeth marks on the headwall clearly shows the extent of
Cascade Pumice's excavation activities and they clearly show that Latham Excavation has only
been digging a small portion of a bench on the eastern edge of the slot deeper.
Second, there has been no excavation outside the areas permitted by the County in SP-95-010. A
review of the 1995 site plan (as well as Latham Excavation's site plan) shows the actual west line
as being referenced to the location of a "low ridge" to the west. As set out in Pat McClain's
letter, there is a disclaimer on the SP-95-010 site plan (conveniently chopped off of the
Hoffman's Exhibit D) that specifically states that "location of the low ridge shown as the
westerly limit of proposed mining activity and the plateau are from aerial photographs and
should be considered as approximate only." A review of the Latham Excavation Site clearly
shows that the excavated area is located to the east of the "low ridge". We are sorry to spoil the
Hoffmans' "gotcha" moment, but Cascade Pumice was within its rights to excavate that segment.
We have provided an acetate overlay of the SP-95-010 site plan over the proposed Latham site
plan so the two site plans can be compared. (See Exhibits 1 and 2 - overlay Exhibit 2 over
Exhibit 1.)
2
7
• The assumed excavation heights do not act as a limit on the 1995 approval.
Mr. Dewey assumes that the description of the excavation heights in the Hearings Officer's
decision trumps the footprint shown on the site plan map. There is nothing in the Hearings
Officer's decision to say that an approximate textual description would override an actual
mapped area. It appears from her site visit notes that the Hearings Officer understood that the
headwall might be as high as 80 feet, which did not appear to trouble her. (Exhibit 3.) The fact
is that Cascade Pumice had to dig as deep as it did to get to the pumice within the footprint of its
approved area. There have never any complaints about this issue until now. The 105-foot figure
quoted by Mr. Dewey is based upon an erroneous number that appeared in Mr. McClain's June
10, 2011 testimony. Mr. McClain clears that up in his testimony of today along with an exhibit
showing the basis for the correct number.
• There is no basis to the charge that the applicants have exceeded the 160,000 square
foot slot size.
Mr. Dewey argues that Latham has exceeded the 160,000 square foot slot size. There is no basis
for such a charge. First, as has been repeatedly stated (and apparently ignored by Mr. Dewey and
his clients), the slot was not cut by Latham Excavation, but by Cascade Pumice. Second, the slot
was measured by Deschutes County Code Enforcement officer Tim Grundeman in 2008 and was
found to be in compliance. (LUBA Record, Pages 740-741.) This was made known to the
Hoffman's attorney three years ago, yet he continues to make this charge without explaining the
basis of the charge. The Hoffmans are so intent on finding violations that they seem to ignore
the fact that under the code, the limitation on extraction site size does not include excavated
areas that are necessary to operate and manage the mining operation. In this case, portions of the
excavated areas are necessary for the operation of vehicles in the pit and storage of excavated
material. These areas necessarily are not subject to the limitations on excavation size.
As Mr. McClain explains in his testimony of today, those slot sizes are expressly stated on the
1995 site plan to be "typical" but are not intended to be definitive. In practice, as addressed by a
note on the site plan, mining is driven by the conditions on the ground and not by abstract
squares drawn on a site plan.
Latham has stated all along as part of this site plan that it would not agree to be bound by a
160,000 square foot slot size. Upon approval of the subject site plan, the limitation will be the 5-
acre limitation allowed by the code that Latham has been seeking now for over three years.
• There is no basis to the charge that incremental reclamation requirements have
been violated or that the reclamation plan is not being followed.
In the absence of completing mining of even the first slot, there is no requirement that
reclamation efforts begin. While Latham has indicated it wishes to amend its reclamation plan -
it has not reached a point where reclamation of areas excavated under the site plan must begin.
Furthermore, DOGAMI has stated that it views the site to be in compliance with the reclamation
plan. (LUBA Record, Page 2724.)
3
• There is no basis to the charge that Latham has failed to follow timelines requiring
that reclamation of the prior-mined areas begin within 2 years of commencement of
the mining.
Mr. Dewey argues that Cascade Pumice and by extension Latham Excavation are bound by the
County's decision in SP-95-010 to being reclamation of the prior-mined area to the east within
two years of beginning operations at Site 303. However, no such condition appears in either the
1995 site plan or in the DOGAMI reclamation plan. Mr. Dewey has referred to a finding by the
Hearings Officer relating to Cascade Pumice's intent, but that intent was never made binding
upon Cascade Pumice much less on Cascade Pumice's successor Latham Excavation.
• Latham believed it had a right to mine the tmalo tuff as a resource that necessarily
had to be excavated in order to get to the pumice resource.
Latham sought to confirm its belief in its current site plan and initially its belief was
substantiated by the Board's 2009 decision. Its belief was a reasonable one at the time based
upon the fact that Tumalo Tuff is routinely made available at other inventoried mining sites.
Latham has been operating out of the Able pit since 2008.
SP-95-010 IS STILL A VALID PERMIT. LATHAM HAS NOT EXERCISED THE
APPROVALS GRANTED IN 2009
Mr. Dewey suggests that SP-95-010 is not valid, that it has been "superseded" by the applicant's
actual operations at the site. Mr. Dewey seems to assume that any actions beyond the scope of a
permit cause a permit to automatically expire. That is not how land use permits work. If there
are legitimate issues, code enforcement is the appropriate response. As set forth above, most of
the allegations against the applicant are unfounded. Applicant has sought land use approval to
authorize its proposed operations plan.
In conclusion, it is clear that at least as to the Bend Pumice, Latham has a right to operate under
the current mining plan. However, there are aspects of that approval that do not fit with Latham
Excavation's operations, and Latham has applied for a land use permit to conform the site plan to
its desired operations. The Board need not make findings on this issue; if the Board is able to
determine that a site plan can be approved, at least as to the Bend Pumice, this becomes an
academic issue.
4
IF APPROVAL IS GRANTED FOR THE SITE PLAN, A CONDITION OF APPROVAL
SHOULD BE THAT THE CONDITIONS OF APPROVAL AGREEMENT THAT
IMPLEMENTS SP-95-010 SHOULD BE RELEASED BY THE COUNTY UPON
EXERCISE OF THE SUBJECT SITE PLAN APPROVAL.
Mr. Dewey points out that the Latham property is still subject to a Conditions of approval
agreement to implement SP-95-010. In the event this site plan is approved, the applicant would
ask that a condition of approval be included providing for the release of that agreement upon
exercise of the new site plan permit and recording of a new conditions of approval agreement.
Applicant's Rebuttal on Remand
Mark Latham Excavation, Inc.
SP-07-46/ CU-07-102
(Johnson Road Pit - Surface Mining Site 303)
THE ESEE DOES NOT PREVENT MINING OF THE TUMALO TUFF
• The Hoffmans mischaracterize LUBA's decision and what LUBA required the
County to do on remand.
The Hoffmans view LUBA's decision as leaving no choice but to require a new ESEE. That is
not what LUBA decided. LUBA's decision allows the County to explain why removal of
additional material that is similar to the inventoried material would not have changed its
decision. LUBA stated that although the County explicitly addressed the appropriate question in
its findings on page _ of its decision, "the reasoning that the County provided does not address
the primary concern that petitioners have advanced and the County's reasoning potentially
supports a different conclusion." LUBA decision, p. 19 (emphasis supplied). In its ensuing
discussion LUBA also hedges its conclusions with the term "might" as it relates to whether an
ESEE is required.
Latham believes the door open to the County is much wider than is assumed by either staff or the
opponents to address this issue. Basically, LUBA said that the County failed to address whether
concern for dust and visual impacts would have affected its decision to allow for mining of the
tuff as well as the pumice. The County needs to demonstrate that the possibility of mining the
additional material would not have changed its decision in 1990, based upon potential visual and
dust impacts. Latham believes the decision made by the County in 1990 and its context provides
support for such a finding.
The Hoffmans appear to believe that LUBA's discussion on pages 19 and 20 of its decision of the
narrows the County's decision-making range and takes off the table any consideration of whether
the County had any basis for considering the actual impacts of a proposed mining operation on
the site. That is not the case. LUBA simply required that the Board make an explanation
addressing dust and visual impacts that it did not explicitly addressed in its 2009 decision. The
Board is not precluded from explaining that, for example, the lack of a specific plan to mine the
property did not raise the visual and dust issues to a level of particularity that would have caused
the degree of concern expressed in these site plan proceedings. The undeniable fact is that the
1990 ESEE did not consider or address the issue of the final configuration of the mined property
even though the site was in the Deschutes Corridor and near a state park. The ESEE assumed
that there would be topographical changes (see ESEE Paragraph 7, page but did nothing to
restrict the operation of those topographical changes. This context cannot be discounted and
diminished by evidence and concerns about impacts of mining at the site expressed almost 20
years later.
6
3
Because it must base its decision on the record, the Board may also consider that the potential
Tumalo Tuff at issue here is actually 2.6 million cubic yards and not the 3.7 million cubic yards
asserted by the Hoffinans. (LUBA Record, page 4203.) This amount is much closer to LUBA's
determination that the inventory amount was not a cap on the amount of material that could be
taken out, even if that were 2 million cubic yards (and not 750,000).
In their June 13, 2011 submittal, the Hoffmans' mischaracterize LUBA's expressed concept of
what LUBA meant for the mining of the tuff to be incidental to the mining of the pumice. The
Hoffmans refer to a dictionary definition of "incidental," but that is not what LUBA had in mind
in its use of the term "incidental". It meant that it was necessary to excavate the material, that
the method of excavation was similar to the inventoried resource and that inclusion of that
resource would not have made a difference to the Board's decision.
• The opponents distort the 1990 ESEE by saying that it did not contemplate mining
of the hillside or that a particular size of excavation was contemplated. In adopting
the 1990 ESEE, the Board adopted a largely generic set of findings without any
particular limitation on mining the property and no specific reference to or concern
about a headwall.
On pages 2-4 of their submittal and in their oral testimony, the Hoffmans have attempted to
revise history by describing the ESEE as applying only to mining "on the flats" and not
involving the hillside. It is evident from the context of the ESEE that there is no basis for the
Hoffmans' argument.
The basis for their claim is that the ESEE uses the phrase "opening of a pit in the ground" in a
single spot in the ESEE. They also argue that there are some references in the record that the
amount of mining that would be involved was thought to be 25 acres and that there are
references to the site as being 40 acres total and not 80 acres. These are all red herrings, thrown
up by the opponents to confuse the Board.
The reference to "opening a pit in the ground" is a generic statement about what happens when a
person mines. Nothing in that statement states that making an opening in the ground is limited to
making such an opening on a flat surface. In fact, the context of that statement expressly
acknowledges that "opening of a pit in the ground" affects scenic values. If the opening in the
ground were simply an innocuous hole in the ground, as the opponents seem to suggest, there
would be no impact on scenic values and no need to address that as an impact on scenery.
Further on, on page 4 of the ESEE (in the middle of the page) the Board expressly found that
"physical scarring of the landscape and loss of vegetation associated with surface mining at the
site would have an adverse impact on wildlife, open space and scenic resources." Similarly, in
Paragraph 7 of the ESEE, the Board made the express finding under "Environmental
Consequences" of mining that "[s]cenic views from the Deschutes River corridor would be
adversely affected by fugitive dust and by possible increased destruction of vegetation and
changes in topography." Similarly, the Board found in Paragraph 9 that "the scenic view in the
Deschutes River Corridor would only be fully protected by precluding or placing limits on
mining." Clearly, the Board accounted for the possibility of topographical changes in its findings
and the possibility of scenic impacts. In the only part of the ESEE that operates as a limitation
(as found by LUBA in this case), the Program to Meet the Goal, there is no limitation on where
or how much of the site can be excavated.
It is clear from reviewing other mining site where mining was allowed by the ESEEs that the
Board contemplated removals of hillsides or portions thereof. This is most apparent in cinder
sites, which typically occur on the side of cinder buttes. Examples of such sites, approved for
mining, are Site 248 (Cyrus pit visible from Highway 126), Site 331 (E.A. Moore site on western
flanks of Tetherow Butte) and Site 336, a site then-owned by U.S. Bank Trust located on the
cinder butte on the west side of Highway 97 just north of Redmond. Site 336 is perhaps one of
the most visible in the County and is known to anyone who drives north on Highway 97. The
ESEEs for both Sites 331 and 336 refer to the excavated area as being a "pit" even though they
are excavated into the side of a hill. (See Exhibit 4-2, ESEE for Site 331, Paragraph 2, page 2;
Exhibit 4-3, ESEE for Site 336, Paragraph 2, page 2, and Paragraphs 2 and 3, including reference
to "the opening of a pit".)
Similarly, the claim that only 25 acres was to be mined is not reflected in what the Board actually
decided in the ESEE for this site. The Board zoned the entire property for mining without any
restrictions other than those set forth in the largely generic Program to Meet the Goal. Nothing
in the Program limits mining to 25 acres or indicates where mining is to occur on the site. It is
well settled that it's what's in a governing body's written decision that matters, not what is in the
record.
The opponents have already argued that the amount of material listed in the inventory was
somehow a limit on how much might be mined from the site. LUBA rejected that in the
Hoffman's appeal. The opponents have similarly argued that the duration of mining operations
as contemplated by an applicant was somehow a limitation on how long a site might be operated.
In the absence of a specific limitation included in the ESEE (as set forth in nearby Site 305/306),
you have rejected that position, as well.
It is clear from reviewing other ESEEs that the Board could and did make decisions on other
sites that specified exactly where mining might occur on the property and what the final
configuration of the landscape should be. In probably the most controversial site, the so-called
Twin Bridges site bisected by the Deschutes River near Twin Bridges Road (Site No. 368), the
Board precluded mining on two of the benches identified as containing aggregate materials
through a specific condition in the Program to Meet the Goal. Similarly in another high-profile
controversial Bend Aggregate & Paving site known as the Klippel pit, off Johnson Road (Site
294), the Board specified a slope requirement for the final contours of the property.
In this case, the Board acknowledged the impacts of mining on scenic values, heard the
testimony of opponents and notwithstanding that, went ahead and adopted an ESEE allowing for
mining with a generic set of conditions with only the barest reference to protection of scenic
values.
To argue that based upon what is known today based upon a specific mining plan that the Board
would have made a different decision in 1990 is simply too far a stretch. The Board's findings
make clear that it assumed the full gamut of mining impacts at the site in a generalized fashion,
s
including impacts such as blasting, which the applicant is not proposing. The Board then made a
decision, without knowing the exact parameters of the mining operation, to allow for mining at
the site, subject to the protections of the mining site plan restrictions of Chapter 18.52 of the
County Code.
The Board could not have known what the final configuration of the property would
have been and attempts to import such considerations into what the Board thought
in 1990 is not appropriate.
In its ESEE findings, the Board did not consider how the property might be mined or how the
site might be reclaimed. The ESEE contains no reference to a "headwall" or any other mining
configuration for the property. To posit that the Board was concerned about a headwall on the
property is simply an erroneous interpretation of the level of detail the Board went into in
allowing for mining at the site. What is really being argued about here is the proper form of
reclamation that should be adopted for the site: to allow for leaving a headwall or not. That was
not something that the Board had an ability to address at the time. That is not a decision the
Board can make even today under its site plan requirements. Reclamation is exclusively within
DOGAMI's to determine, so this issue about a headwall could not have been a driving force in
the County's decision-making in 1990.
To make the point even more clearly, even if the Board were to find that the ESEE does not
allow for mining the tuff, but were to approve the applicant's site plan, there is a strong
possibility that the headwall that everyone is opposed to would occur in any event under a site
plan approved by the County. An ESEE precluding mining of the tuff therefore wouldn't
necessarily give the site any more protection than if only the pumice were allowed to be mined.
In light of the Board's apparent disregard at that time for what final configuration the property
might take, it cannot realistically be said that the Board would have not allowed mining of the
tuff based upon scenic and dust concerns posed by a headwall on the site.
Most of the arguments made by the opponents focus on what they now know today. That is not
what LUBA asks the County to address. It is asked to look at what the County would have
decided then if the additional tuff material had been proposed to be mined, with what it knew at
the time.
• The additional limitations placed on the comparison 304 and 305/306 sites related to
issues that were known to the Board.
The Hoffmans question why Latham made reference to sites 304 and 305/306 in Latham's earlier
testimony. The reason is that the Board used those sites as a comparison in its 2009 decision to
explain why the Board would have made a decision in 1990 to allow for mining of the tuff. The
additional ESEE requirements came because of what the Board knew about those particular sites,
either from the owner or from State Parks. The addition of the additional tuff material in and of
itself, with it being of the same nature as the pumice material, which generated only minimal
opposition, would not likely have informed State Parks any differently or engendered a different
I
response. Again, it is largely because this particular applicant has proposed to leave the headwall
(something that State Parks and others could not have known at the time) that there has been.
• The equities of the site based upon the nature of the pumice do not run just in favor
of the conflicting uses; the status of the site as a pre-existing site weighs in favor of
approval of mining the tuff under the 1990 ESEE. In addition, if the resource was of
reduced value, then why didn't the Board apply more stringent visual screening and
dust control standards?
The Hoffmans argue that the limited value of the Bend Pumice makes it likely that the Board
would not have allowed for mining of the additional tuff material. This argument suffers from
three fallacies:
First, if the material was of so little value, why did the Board, in the face of arguments about the
scenic values of the Deschutes River and potential dust impacts on the park, not restrict activity
at the mining site more than it did? The Board's decision essentially adopted the same program
that it adopted for most every other site, with a small tip to the scenic values, which in reality had
no substance as a heightened approval standard and which did not even fully implement State
Parks request for a mandatory screening requirement. In essence, the screening requirement that
the Board adopted was the same generic standard that it applied to every surface mining site in
the County through application of the zoning ordinance screening provisions.
Second, if fails to recognize that the site was a pre-existing site that had a history of mining on it,
which the ESEE notes tipped the scales in favor of the mining operation.
Third, it fails to recognize that the increased amounts of material to be mined would make the
material more important relative to the conflicting uses, which would again, tip the scales toward
favoring the mining operation.
• The impacts on availability of construction fill should not be discounted.
In their response, the Hoffmans state that "there is no shortage of material." They go on to say
that "the area has a tremendous amount of tuff," citing the testimony of opponent Pat Gisler.
That testimony does not address where as a practical matter the tuff material or other
construction fill can be found in pits that have inventoried such material. The fact is that with the
closure of the Robinson pit off of Century Drive and the Rose pit and the County landfill no
longer selling construction fill, the sources of construction fill in the Bend area are limited. Of
those sites close in to Bend, only the Coats site (which is under the Bend Urban Area General
Plan) would be unaffected by your decision to not allow mining of the ESEE at Site 303. As
indicated in our previous testimony, the County's inventory does not list construction fill at either
what are now the Taylor NW Site (formerly Crown Pacific at Sites 282 and 283) and the Able pit
(formerly the Pieratt Brothers site at Site 381). Of the other sources of construction fill that are
located further away from Bend, only the Moon Site (Site 404) shows up as a site where
construction fill might fall within the inventory description (although it is unclear whether the
actual source being used is part of the 193,000 cubic yards of "sand & gravel" inventoried in
10
1990). With respect to a potential site in Alfalfa, referenced by Pat McClain in his testimony, no
site in that area shows up on the inventory of mineral and aggregate sites.
• The Board did not decide in its 2009 decision that the headwall was not included as
part of the 1990 ESEE.
The Hoffmans argue that the Board actually decided that the 1990 ESEE did not cover the
headwall. However, as Latham pointed out in earlier testimony, such a position is not consistent
with the Board's determination that the headwall could be mined without need of an ESEE upon
a showing of proper dust control. Nothing in the body of the Board's discussion of the ESEE
issue in its 2009 decision (at pages 14 and 15) addressed whether the headwall was covered or
not and there were no findings on that issue other than in the "summary," which was intended
simply to summarize the findings found elsewhere in the ESEE. Given the obvious internal
inconsistencies in the Board's decision on this issue, the only conclusion that can be drawn is
that it was an inadvertent mistake and not controlling in the substance of the Board's actual
decision. There was therefore no need to appeal that particular finding because it doesn't
represent what the Board's decision actually was.
The Hoffman's explanation for how the Board's approval of Condition 23 that would allow for
mining of the headwall without a new ESEE simply is not realistic. If the Board had found that
the headwall was not covered by the 1990 ESEE, it would have required a new ESEE for the
headwall before any mining occurred. It did not do that. If the Board determines that the tuff
can be mined without a new ESEE, then this inconsistency needs to be corrected.
• The opponents seek a new ESEE to correct all of the deficiencies that see with the
County's Goal 5 mineral and aggregate surface mining program generally. Such
reasoning does not constitute grounds for requiring a new ESEE.
The comments of the opponents are rife with suggestions about what a new ESEE at the site
could do to correct what they believe to be general deficiencies with the County's surface mining
program from perceived deficiencies regarding screening standards, air quality regulations,
reclamation, siting criteria for processing equipment, program. This is perhaps most succinctly
expressed in the letter of the Nye's attorney, who asserts numerous reasons, none of which are
legally relevant, for wishing to have a new ESEE. The fact that there are dissatisfactions with
the County's 1990 decision of the manner of its implementation does not present a reason for
deciding that a new ESEE is required. A decision to require a new ESEE based upon such
factors would violate ORS 215.427(3), which requires that the rules for evaluating a complete
land use application cannot be changed during the pendency of the application.
• A Board determination that a new or amended ESEE is required does not mean the
subject site plan cannot be approved for mining pumice at the site.
If the Board were to decide that a new ESEE or other land use determination were required in
order to mine the tuff, that does not mean the Board must deny the applicant's application
altogether. If the applicant has otherwise demonstrated compliance with approval criteria, the
Board must approve the application for mining the pumice resource.
11
Applicant's Rebuttal on Remand
Mark Latham Excavation, Inc.
SP-07-46/ CU-07-102
(Johnson Road Pit - Surface Mining Site 303)
VISUAL SCREENING REQUIREMENTS ARE OR CAN BE MET
Interpretation of the Standard
LUBA correctly recognized that the Board's attempt to distinguish between man-
made topographical challenges and natural topographical challenges was non-
sensical.
In its discussion of Hoffmans' second assignment of error, LUBA expressed skepticism about the
County's findings attempting to draw a distinction between man-made and natural topographical
situations:
"The distinction the County is attempting to draw between natural topography
and man-made topography is hard to understand. To illustrate, it seems clear that
a proposed mine in a natural depression that would be within plain view of all
surrounding properties would qualify for the DCC 18.52.110(B)(6)(b) screening
exception (because screening would be ineffective to block the view of the mine
from the properties at a higher elevation). It would appear that mining in such a
depression could be approved under DCC 18.52.110(B)(6)(b) without screening,
even though the mine would be clearly visible from the surrounding properties.
But a proposal to mine property located on top of a natural hill, which is similarly
in plain view of all surrounding properties, would not qualify for the DCC
18.52.110(B)(6)(b) screening exception. Under the County's reasoning, this
different result is required because mining the side of a hill that is visible to its
neighbors creates "man-made topography. "
The distinction that the county draws is hard to understand...
Hoffmans' brief attempts to redraw the distinction but its argument is not convincing. They
attempt to argue that "there is a clear difference in those two situations where the mining in an
already visible pit is not creating its visibility, as opposed to expanding mining from a pit that is
not visible to a hillside that is visible." Their argument distorts the point that LUBA was trying
to make. LUBA was not assuming (as the Hoffman's assume in their argument) that some pre-
existing pit would already be visible from surrounding homesites at higher elevations. The pit
area would be created (and thus first become visible) when the actual excavation was made in the
depression, just as would be the case with an excavation made to a virgin hillside. The essential
point is that it is the topographical difference between the mining area and surrounding
viewpoints that makes screening ineffective, and it works both ways - if the homes are elevated
with reference to the excavated area or if the excavation is elevated with reference to the
12
BEFORE THE DESCHUTES COUNTY HEARINGS OFFICER
REPORT OF SITE VISIT
FILE NUMBER: SP-95-10
$910777
f
APPLICANT/OWNER: Cascade Pumice, Inc.
ti s
P. O. Box 1087
DEC J
Bend, Oregon 97709
Z; c
ATTORNEY: Sharon Smith
o
Bryant Lovlien & Jarvis
~sZ
P. O. Box 1151
5Z1=Z
Bend, Oregon 97709
REQUEST: The applicant is seeking site plan approval for surface
mining operations on Surface Mining Site #303, a 76-acre
parcel located on Johnson Road northwest of Bend and
zoned SM (Surface Mining), LM (Landscape Management)
and SWA (Surface Mining Impact Area).
HEARING DATE: December 3, 1996
STAFF REVIEWER: David B. Leslie, Associate Planner
PURPOSE OF REPORT: At the public hearing in this matter, the Hearings Officer
announced her intention to conduct a site visit of the subject
property and other relevant property in the vicinity, and to
leave the written record open until 5:00 p.m., Friday,
December 27, 1996. The purpose of this report is to place
in the record the Hearings Officer's observations and
impressions from the site visit in order to give all parties the
opportunity to rebut • those observations and impressions
within the time period during which the written record will
remain open.
SITE VISIT REPORT:
The Hearings Officer conducted a site visit on Tuesday, December 10, 1996, accompanied
by Dave Leslie, Associate Planner. The visit began at 10.45 a.m. and took approximately
one and one-half hours. Several sites were visited: 1) the subject property, 2) segments of
Johnson Road, Tamoli Lane and Tumalo Rim Drive in the vicinity of the subject property;
and 3) SM Sites # 355, 356 and 357, operated by the applicant and located near the
subject property.
Cascade Pumice
SP-95-10
Site Visit Report
1
Exhibit 3
The Hearings Officer met Dave Leslie at the site and observed the site from Johnson Road
and the existing access driveway off Johnson Road. I observed that from the existing
access point the site distance looking north and south on Johnson Road appears to be
about 1/8th of a mile. I observed that the portion of the subject site visible from Johnson
Road has a moderate tree cover, primarily juniper. I also observed the driveway access
from Johnson Road to the Criswells' property at 64000 Johnson Road just north of the
site access. It was my impression the Criswells' driveway access is very close to the
existing site access.
Dave Leslie and I then proceeded by vehicle along the access drive into the site. We had
with us copies of the revised site plan map submitted by the applicant at the public
hearing, a map entitled "Existing Conditions" from the file for SM Site #303, and a copy
of an aerial photograph taken in 1989 with the proposed site plan superimposed on it.
During the site visit, we stopped at various points on the site and I oriented myself by
reference to the maps.
Just inside the site, I observed the wellhead for the site's well and a small excavation for
the proposed water storage pond. I also observed the fence lines marking the west and
north property boundaries. Initially we proceeded off the main access driveway in a
southerly direction more or less along the western property boundary to a point near a
large burned ponderosa snag. Dave Leslie informed me this snag was near the southwest
corner of the portion of site proposed to be mined. From this point I observed the rimrock
ledge along the southern boundary of the site. I did not observe any structures on or near
the rim. I also observed that the site slopes downward to the east.
We then returned to the main access driveway and proceeded into and through the portion
of the site where mining activity is proposed. I observed a small rimrock ledge near the
northern boundary of the site on which a number of mature juniper and ponderosa pine
trees are located. I observed the cut slope for the Criswells' access driveway as well as a
portion of the driveway itself at its closest point to the subject property. I observed a cut
slope along the northern property boundary apparently created from the previous mining
activity on the site. I observed that most of the site has been disturbed from previous
mining activity, and that the disturbed portion of the site had not trees but a moderate
cover of native grasses, sage and rabbit brush. I also observed a number of hummocks and
other minor terrain features characteristic of previous mining activity.
Based upon my observations, it was my impression that the portion of the site proposed to
be mined is primarily below the grade of Johnson Road and the rims on the northern and
southern boundaries of the site, and has considerable natural vegetative and topographical
features that screen the center of the site from adjacent properties. It also was my
impression that when overburden is removed from the site and extraction takes place, this
mining activity will be well below the grade of Johnson Road and the properties
surrounding the site.
Cascade Pumice
SP-95-10
Site Visit Report
2
Dave Leslie and I then proceeded to the east end of the site which the applicant proposes
to reclaim as part of the requested site plan approval. I observed this portion of the site is
slightly below the highest point on the Criswells' access driveway as well as the grade of
Johnson Road. I also observed that due to terrain and somewhat sparser vegetation than
on other portions of the site, this area is visible from the portion of Johnson Road north of
the subject property and the Criswells' property. We stopped our vehicle near the eastern
end of the site. From this point, I observed the Criswells' barn and adjacent pastures
below and to the north of the site, but could not see the Criswells' house. It was my
impression that the bam is at least a few hundred feet from the portion of the site to be
reclaimed and considerably farther from the portions of the site proposed to be mined.
From this point, I also observed the Deschutes River and the roof of the house directly
east of and below the site. It was my impression that this house is at least 100 feet below
the grade of the eastern end of the subject site.
Dave Leslie and I then returned to the Johnson Road and onto Tamoli Lane to the gate to
the Juniper Ridge development. I observed several houses. However, I observed that the
only portion of the subject site visible from any of these houses is the rim on the southern
boundary and that portion of the site abutting Johnson Road. It was my impression that
the site is well screened from these residences by terrain and vegetation. We then returned
to Johnson Road and turned onto Tumalo Rim Drive. I observed two houses located fairly
close to the intersection with Johnson Road, numbers 64089 and 64080. It was my
impression that although these houses are fairly close to the site, they also are well
screened from it due to terrain and vegetation.
We then returned to Johnson Road and drove north to a point where we could observe the
subject property and the Criswells' property. I observed that the Criswells' house is
located north of and somewhat below the barn. I also observed that the only portions of
the subject property I could see from this location are the rim on the southern boundary
and the portion of the site on the eastern end that is proposed to be reclaimed.
We returned to the existing site access driveway and Dave Leslie paced off where would
be the location of the proposed relocated access driveway. I observed that from this
proposed new driveway location, the site distance to the south on Johnson Road appears
to be about the same, but that the site distance to the north is significantly reduced due to
a curve in the road and vegetation located along the western side of Johnson Road at that
curve. It was my impression that while this driveway location certainly would be further
from the Criswells' access driveway, it would not be as suitable a location from a traffic
safety standpoint. In particular, it was my impression that vehicles traveling northbound on
Johnson Road, descending toward the proposed access driveway to the subject property at
45 to 55 m p.h., or in winter driving conditions, could have difficulty safely slowing down
for slow-moving, loaded trucks leaving the site and entering the northbound lane of
Johnson Road. It also was my impression that the proposed left-turn refuge lane, which
would be located in Johnson Road from the-access driveway several hundred feet to the
north, may not provide a safe location for a northbound vehicle to pass allow-moving
Cascade Pumice
SP-95-10
Site Visit Report
3
dump truck due to the curve in the road and the fact that this left-turn refuge might be
occupied by a southbound truck preparing to turn left into the site. Therefore, it was my
impression that some sort of northbound acceleration lane might be necessary to allow
trucks entering Johnson Road from the site to be passed safely.
Dave Leslie and I then proceeded to SM Sites # 355, 356 and 357 to the north of the
subject property. We first entered Site #357. I observed that this site contains both pumice
and cinder operations. I observed that much of the site has been reclaimed with
recontouring and seeding. I also observed ongoing recontouring of the cinder portion of
the site. We talked briefly with the operator of the grader being used for recontouring. We
then proceeded to Sites #355 and 356 and stopped at a cell where pumice mining and
reclamation are underway. I observed that the cell has a headwall approximately 60-80
feet high at its highest point. It was my impression that this cell is approximately the size
and depth of the cells proposed for the subject property. On the floor of the cell was a
front loader scooping pumice and loading it into a dump truck with a double trailer. I was
unable to hear the front loader while it was operating down in the cell. (The wind was
light from the southwest and it was raining lightly. The cell was to the north of the
location where we parked.) When the truck was full, I observed the truck operator
positioning a tarp over the load and then driving by us and off the site. I could hear the
truck-trailer combination but it was my impression the noise was no greater than of such a
truck operating on a street or highway.
I then observed a large scraper picking up overburden material from above the cell,
driving by us down into the cell and depositing this overburden on a contour slope on the
side of the cell opposite where the front loader was removing pumice. When this vehicle
passed close by us, it produced significantly more noise than did the truck-trailer
combination. I was also able to hear it operating inside the cell. It was my impression that
the operation I observed in this cell is similar to what is proposed for the subject property.
Prior to leaving this site, we encountered and spoke briefly to Dugan Pearsall who was in
a vehicle on the site. We advised him that we had previously visited the subject property
and Site # 357. We then left this site and returned to the subject property where I retrieved
my vehicle.
Mailed this I 1
day of December, 1996.
Karen H. Green, Hearings Officer
Cascade Pumice
SP-95-10
Site Visit Report
4
Exhibit 4
Surface Mining Site #248
Exhibit 4-1
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111111 "tine l t4 located 5W of the intersection of the Redmond-
11wy awl Slayton Rd. Access to the mining area is off the
MUltw~,%y, roughly a 1/4 mile west of the intersection.
T 100PAPHY The site is level on the north and south ends. In the
~r~~r41~, section there are two small buttes, which is where the mining
operation is located. There is a large are of cinder excavation along
the west side of the site, in the middle area. The butte is slowly
being removed, to the level of the adjacent field to the north. The
west edge of the excavation appears to be a vertical wall. Drainage
appears adequate. There are spectacular mountain views from the site.
ENVIRONMENT - The middle part of the site is naturally vegetated with
juniper trees and sage brush, the rest of the site is currently being
farmed. There are electrical lines along the north side of the site.
There were no improvements or special wildlife noted. There is some
heavy equipment on site.,,
NEIGHBORHOOD - Directly to the east of the site is a farmed acreage.
To the north is an undeveloped subdivision. Within a half mile of the
site are residential acreage properties, vacant land and farms.
11
In conclusion, this is a vacant site with no apparent access. The site
is in an area of active mining and farming. To the west are a few
mobile home properties which are fairly close to the site.
Robert T. Bancroft, Appraiser
Date: 2-15-89
BANCROFT APPRAISAL COMPANY
p"Al o" + o 00AVIRM It~NO COMMI0fra z INSPECTION DATE : 2-15-89
° llhA ti m Lto Is located SW of the intersection of the Redmond-
eta. ilwy a i 'ilmVton Rd. Access to the mining area is off the
hkjhWAy, i:ougl11y a 1/4 mile west of the intersection.
VTll AP HY - Tlie site is level on the north and south ends. In the
ctyion n there are two small buttes, which is where the mining
oporation is located. There is a large are of cinder excavation along
the west side of the site, in the middle area. The butte is slowly
being removed, to the level of the adjacent field to the north. The
west edge of the excavation appears to be a vertical wall. Drainage
appears adequate. There are spectacular mountain views from the site.
ENVIRONMENT - The middle part of the site is naturally vegetated with
juniper trees and sage brush, the rest of the site is currently being
farmed. There are electrical lines along the north side of the site.
There were no improvements or special wildlife noted. There is some
heavy equipment on site.,
NEIGHBORHOOD - Directly to the east of the site is a farmed acreage.
To the north is an undeveloped subdivision. Within a half mile of the
site are residential acreage properties, vacant land and farms.
In conclusion, this is a vacant site with no apparent access. The site
is in an area of active mining and farming. To the west are a few
mobile home properties which are fairly close to the site.
Robert T. Bancroft, Appraiser Date: 2-15-89
BANCROFT APPRAISAL COMPANY
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L01 - 1149
ESEE Findings and Dec}sion
Site No. 248
Site Number 248, occupying a portion of tax lot 100 in
Township 15 South, Range 10 E.W.M., Section 12, came before the
Board of Commissioners (Board) for hearing on August 11, 1989. On
October 11, 1989, the Board made a preliminary decision on this
site. By adoption of these findings and this decision, the Board
confirms and ratifies that preliminary decision.
The purpose of the hearing before the Board was to determine
whether the subject site, listed on the County's inventory of
aggregate sites, should be classified under the County's compre-
hensive plan and zoning regulations as "SM" or Surface Mining.
For the reasons given below, the Board determines that this site
should be so classified.
PRELIMINARY FINDINGS
Site number 248 comprises approximately 120 acres and is
located on Slayton Road one-quarter mile south of Highway 126
between Sisters and Redmond. The site.is owned by Keith Cyrus
and is zoned SM and SMR. Adjacent land Is zoned RR-10, EFU 40,
LM, and EFU 20.
This site was identified as containing cinder resources in
the Deschutes County Goal 5 Aggregate inventory adopted by the
Board on December 6, 1988. Based upon the site's inclusion on
that inventory, a hearing was held to determine whether to zone
this site under statewide planning goal 5 to protect the aggre-
gate resource.
APPLICABLE CRITERIA
Criteria applicable to this decision are Statewide Planning
Goal 5, its implementing rule, OAR 660-16-000, and the Deschutes
County Year 2000 Comprehensive Plan, as amended, regarding
surface mining goals and policies.
HEARING AND EXHIBITS
Prior to the hearing on this site, a staff report was pre-
pared setting forth the site's aggregate resources and conflict-
ing resource and use values. The report, which was entered into
the record at the hearing before the Board, identified conflict-
ing resources and uses and their impacts and evaluated the econo-
mic, social, energy, and environmental consequences of protecting
the mineral resource or in the alternative, protecting the
conflicting values or uses.
1 - ESEE FINDINGS AND DECISION - SITE NO. 248
10*1 1150
In addition, testimony was received from the Oregon Depart-
ment of Fish and Wildlife.
A list of the contents of the record is appended hereto as
Exhibit A. The file includes DOGAMI reports and the file by
which the site was originally zoned for surface mining.
ESEE FINDINGS AND CONCLUSIONS
1. Inventory. The County's Goal 5 mineral and aggregate inven-
tory establishes that the site has 3.2 million cubic yards
of cinders.
2. Site Characteristics. This site is located southwest of the
intersection of the Redmond-Sisters Highway and Slayton
Road. Access to the mining area is off the highway, roughly
one-quarter mile west of the intersection. The site is
level on the north and south ends. In the middle section,
there are two small buttes, which is where the mining
operation is located. There is a large area of cinder exca-
vation along the west side of the site, in the middle area.
The butte is slowly being removed to the level of the adja-
cent field to the north. The west edge of the excavation
appears to be a vertical wall.
Directly to the east of the site is a farmed acreage. To
the north is an undeveloped subdivision. Within one-half
mile of the site are residential acreage properties, vacant
land and farms.
3. Conflicts analysis.
a. Conflicts
Natural Resources.
1. Wildlife. The Department of Fish and Wildlife has
identified this site as being in a deer migration
route, with medium frequency of use, and medium use by
sensitive raptors.
2. Open space and scenic values. The LM zoning adjacent
to the site indicates high concern for scenic values.
The adjacent EFU 20 and EFU 40 zoning indicates the
presence of important open space values.
Conflicts
Based upon the staff analysis of surface mining impacts on
natural resources, the Board finds the conflicts and impacts
of surface mining at this site to be as follows:
2 - ESEE FINDINGS AND DECISION - SITE NO. 248
02118
i0l - 115 1
(1) Open space and scenic values are impacted by the
removal of surface vegetation, the opening of a pit in
the ground, storage of excavated materials, the pre-
sence of machinery on the site, the building of infra-
structure, such as access roads, fences, and processing
facilities, and fugitive dust emissions. This site is
in plain view of Highway 126.
(2) Impacts on deer would include further destruction of
cover and food sources by excavation and surface
disturbance, interference with migration routes by
continued surface disturbance and use of access roads,
an increased risk of being hit by trucks and other
vehicles serving the mining site and continued human
presence and noise. The effect would generally be to
displace deer from such areas or impede migration. Due
to the intermittent use of this existing site, however,
the effects of traffic, noise, and human presence may
not be as great as if the site were used continually.
(3) Impacts on raptor use would include destruction of
cover for the raptors and displacement and destruction
of food sources, increased human presence and noise,
all of which would tend to drive raptors away from the
immediate area.
The impacts on water quality referred to in the staff report
would not be present, given that there are no water sources
at the site. Neither would soil compaction be a problem, as
indicated in the staff report, given that the soil is
composed of cinders.
The Board finds that the resources identified above conflict
with zoning for surface mining in that full protection of
such resources, accounting for impacts of habitat destruc-
tion and topographical alteration, noise, and increased
human presence could preclude zoning for surface mining.
Conversely, the Board finds that the noise, dust, increased
traffic, physical scarring of the landscape, and loss of
vegetation associated with surface mining at the site would
impact wildlife, open space and scenic resources in a manner
that would adversely affect those natural resources.
b. Land Use Conflicts.
Land Uses
Land uses in the RR-10, MUA-101 EFU-20 and EFU-40 zones at
and surrounding the site are set forth in Appendix A to the
staff report.
3 - ESEE FINDINGS AND DECISION - SITE NO. 248
~0~ ~ 1152
Conflicts
The Board finds that conflicts with the uses in the EFU-80
zone would include:
(1) At the site, all uses except mining uses in the SM zone
are conflicting in that use of the surface area for
mining conflicts with other uses needing surface area.
Uses such as agriculture may not be conflicting from
this standpoint on unexcavated portions of the site.
(2) The impacts of noise (including heavy equipment, truck
traffic, blasting, processing, and drilling) and dust
on persons dwelling in or patronizing noise or dust-
sensitive uses in the zone. Noise impacts could
conflict with agricultural uses involving noise sensi-
tive animals. The Board finds that under DEQ noise
standards, all possible uses in the zone could be
noise-sensitive uses, except utility uses, personal
landing strips, geothermal uses, landfill uses, off-
road vehicle tracks,and other mining uses.
(3) The impact of truck traffic on roads and on public
safety.
(4) The impact to aesthetic values, due to physical scarr-
ing of the landscape and the introduction of an in-
dustrial-type use into a rural setting. This would
affect primarily residential uses and park-type uses;
and
The Board finds that, given the above-listed impacts the
conflicting uses in the zone as enumerated above in that
full protection of those uses would preclude zoning for
surface mining.
The Board finds that of the conflicting allowed or condi-
tional uses at the site or within the impact area only
residential uses are presently in existence. There are a
couple of mobile homes within close proximity to the site.
There is an undeveloped subdivision nearby, but it is not
possible to predict to what extent it is likely to be
developed. As for the other potential conflicting uses, it
is not possible to predict whether or not any such uses are
likely to occur.
4. Current Mining Use of Site. The Board finds that surface
mining is a current or previous use at the site and could
possibly continue within any valid existing DOGAMI or County
permit area regardless of whether or not this site is zoned
in the Goal 5 process. Accordingly, the consequences of
allowing mining to proceed on the site have occurred or are
4 - ESEE FINDINGS AND DECISION - SITE NO. 248
ill m 1153
already occurring and could possibly be allowed to occur
until such time as expansion of the site would be necessary.
Therefore, the relevance of the ESEE discussion below is
primarily whether any expansion would be allowed at the site
and whether the site is important enough that limitations
should be placed on existing and potential land use con-
flicts.
Resource Conflicts
Protection of Cinder Resource
5. Economic Consequences. The Board finds that the economic
consequence of protecting the cinders in conflicts with
other natural resources is difficult to measure, given that
deer and raptor habitat and open space and scenic values do
not have any economic values attached to them.
Economic consequences would tend to be of a secondary
nature, such as a reduction in tourists who might be dis-
suaded from coming to the area if this site along with
others are developed in such a manner as to create large un-
sightly areas in the county. These consequences are already
occurring at the site, so the consequences are not as great
as if the site had never been mined.
6. Social Consequences. The Board finds that the social conse-
quences of protecting the mineral resource over the other
natural resources would be negative. Surface mining would
have negative impacts on wildlife and introduce a visual
disturbance into the landscape. Given that few people live
in the area, the social consequences would be felt primarily
by those travelling on Highway 126 who might be deprived of
wildlife viewing opportunities and an unscarred landscape.
7. Environmental Consequences. The Board finds that continuing
surface mining activities would have adverse environmental
consequences on wildlife habitat and scenic views. Surface
mining activities reduce the available cover and forage at
the site, which causes increased competition among deer for
the remaining forage and cover. Some wildlife would be
forced to leave the area to find other food sources and
cover, thus adding more competition in other areas for these
resources. Continued truck traffic associated with mining
activities could increase the mortality rate for the area's
wildlife.
In some cases over the long term surface mining can be
beneficial to environmental values in that it gives an
opportunity for a site already desecrated by the actions of
man or otherwise lacking in natural values to be improved as
5 - ESEE FINDINGS AND DECISION - SITE NO. 248
125 ~
i0l - 1154
part of the reclamation process. There is evidence to
suggest that this is one of those instances.
8. Energy Consequences. The Board finds that the energy conse-
quences of protecting the mineral resource over the other
natural resources would be to increase the energy consump-
tion at the site due to fuel expenditures needed to run the
heavy equipment and processing equipment as well as the fuel
expended in transportation of the product to its end use.
Such energy use would be bound to occur in any event.
Aggregate is a resource that is needed in the County and
failure to protect the mineral resource at this site would
only mean that such energy use would occur elsewhere.
The Board finds that cinders are used primarily for highway
maintenance, that this site is located in close proximity to
and with good access to Highway 126 and Highway 20, and
consequently that the site would be conveniently situated as
a source for materials in any ongoing highway maintenance or
construction in the area requiring cinders. The Board finds
generally that the energy consequences of not allowing
mining of sites convenient to highways and highway main-
tenance sites would be greater than if such mining were not
allowed, due to the greater distances involved in transport-
ing cinders to the point of use.
Protection of Goal 5 Resources
9. Economic Consequences. Protection of the natural resources
would preclude mining at the site. Deer habitat is in
limited supply and the proposed surface mine would cause
displacement of wildlife and increased competition in
remaining unaffected areas. The scenic views in an area of
such open spaces could only be fully protected by precluding
mining.
The Board finds that cinder resources are a commodity with a
market value. Failure to allow mining of such resources
would prevent the value of such resources being realized by
the local economy. Although the number of jobs represented
by the local aggregate industry is small in number, manufa-
cturing jobs tend to pay at higher rates than those found in
the service sector.
Cinders are not thought to be in short supply in the County.
The resource is readily available from both private and
public sources, including the Deschutes National Forest.
Furthermore, cinders are not as durable material as is sand
and gravel aggregate sources. The Board finds that Des-
chutes County has a new policy that cinders will no longer
be used for maintenance of County roads. Therefore, failure
to protect cinder sources will not have the same secondary
6 - ESEE FINDINGS AND DECISION - SITE NO. 248
'257.
i 0l - 1155
economic impacts as would failure to protect aggregate
resources. However, the Board finds that cinders can be a
useful material for road and highway maintenance, including
the "sanding" of icy roads, and that they serve as a sub-
stitute for aggregate resources for surfacing dirt or gravel
roads and driveways, thus reducing the consumption of the
more valuable sand and gravel resource.
10. Social Consequences. Considering the fact that cinders are
in relative abundance in Deschutes County, the social
consequences in protecting the conflicting Goal 5 values at
the expense of the cinder resource would not have the same
kind of social consequences that failure to protect ag-
gregate sources would. In general, the social consequences
of not allowing increased cinder mining at the various
existing sites would not be great.
11. Environmental Consequences. Protection of the natural
resources would preclude mining at the site. The noise,
traffic, human presence and disruption of habitat associated
with surface mining is inimicable to the protection of
scenic views and fish and wildlife habitat. Therefore,
protection of the natural resources by precluding mining
would have positive environmental consequences. Wildlife
resources and scenic resources are limited by locational
factors. Wildlife habitat is continually shrinking in the
face of increased development. Scenic views cannot be
recreated by the actions of man.
12. Energy Consequences. As mentioned above, the energy conse-
quences of protecting the natural resource values of this
site and others like it close to highways would likely
involve increased haulage distances. The Board finds that
protection of natural resource values at the site would have
negative energy consequences.
13. Relative Values of the Conflicting Resources. The Board
finds that the natural resources and the aggregate resource
are important relative to one another based on the following
facts:
(a) This source can help meet a demand for lower quality
road maintenance materials and provide a substitute
source for some uses for the more valuable sand and
gravel resource.
(b) Cinder resources are a locationally-dependent resource;
this site is one of the larger cinder sources on the
inventory.
(c) This site is well located to provide aggregate for
highway maintenance on Highways 20 and 126.
7 - ESEE FINDINGS AND DECISION - SITE NO. 248
L01 115G
(d) This site is already in existence.
(e) Deer habitat is continually shrinking in the face of
new development.
(f) Highway 126 is the main highway between the cities of
Sisters and Redmond and site 248 is readily visible
from the highway.
Therefore, the Board finds that both the cinder resource and
the conflicting natural resources should be protected.
Accordingly the Board finds that under OAR 660-16-010(3)
protection of the cinder resource shall be limited by
protection of the natural resources.
Conflicting Uses
Protection of Mineral Resource
14. Economic Consequences. The economic consequences of pro-
tecting the cinder resource relates to the impacts of
surface mining on adjacent uses, the value of cinder as a
commercial commodity and the impacts of protecting employ-
ment in the mining industry and the development opportun-
ities foregone by development of the site.
While the impacts of surface mining may in individual cases
have a short term impact on property values of surrounding
properties, trend analysis from the tax assessor's records
of specific parcels either adjacent to or within one-half
mile of both existing and potential surface mines indicates
that there were no drastic fluctuations in these property
values. This same analysis shows that there has been no
appreciable decline in sales of these or similar types of
properties. Given that most of the concerns about property
values are focused on residential properties, which do not
predominate in this area, market concerns would not be of
great consequence in any event.
The most significant impact to surrounding property owners
would be if regulations to protect the mineral resource were
enacted that would make surrounding properties unbuildable.
One potential cost to the community at large is the cost of
road repairs necessitated by increased heavy truck traffic
on public roads. The intermittent use of this site will
probably not cause much road wear.
Allowing surface mining activities at this site could have
some short-term negative impacts on the ability to utilize
this property for other uses. There is no shortage of land
in the County available for development for the uses allowed
8 - ESEE FINDINGS AND DECISION - SITE NO. 248
LUG, 1157
in the zone. Furthermore, surface mining is a transitional
use, and after reclamation the land surface would then
become available for other uses.
15. Social Consequences. Preserving this site for the produc-
tion of mineral and aggregate resources would have a major
impact on the quality of life associated with the other land
uses in the area. The negative impacts of noise, fugitive
dust emissions, and increased truck traffic would contribute
to the impact on the livability, scenic quality and com-
patibility of other uses in the vicinity of the project.
Such impacts may be mitigated, however, through environmen-
tal controls on the mining operation.
The Board finds that the social consequences of mining
activity are low in this case due to the fact that there are
few existing land use conflicts.
16. Energy Consequences. The Board finds that preserving this
site for the production of minerals would have overall
positive energy consequences. As stated above, the energy
consumed on site by mining equipment is likely to occur at
some mining site in any event, as there is some level of
need for such resources. Haul distances to nearby Highways
would be short. To the extent that surface mining would
preclude or discourage development of the surrounding rural
lands, the energy consequences would likewise be positive.
17. Environmental Consequences. The Board finds that protecting
the site for mining would have negative environmental conse-
quences for the same reasons given under paragraph 15 above.
The Board further finds that such impacts can be mitigated.
Protection of Conflicting Land Uses
18. Economic Consequences. Most uses in the surrounding zoning
designations are classed as noise sensitive uses for pur-
poses of DEQ noise regulations. Farm uses may be noise
sensitive uses in certain situations, such as with livestock
operations. Protection of surrounding conflicting uses can
have the effect of precluding or limiting further surface
mining activity due to noise regulations. Likewise, dust,
traffic and aesthetic impacts place constraints on surface
mining operations amongst conflicting land uses.
While the elimination of part or all of any one site would
not significantly impact the total supply of cinder in
Deschutes County relative to need, if every site with
conflicting uses were eliminated for that reason, the supply
of cinders in the County would be markedly reduced. Almost
every aggregate site over which the County has land use
jurisdiction has some degree of conflict with surrounding
9 - ESEE FINDINGS AND DECISION - SITE NO. 248
().1ZVii; 1
z t1 115 8
land uses. In light of that fact, each cinder site takes on
some degree of importance, as cumulatively, individual sites
with conflicts could be eliminated and severely cut into the
amounts of cinder available in the County.
19. Social Consequences. The Board finds that the social conse-
quences of allowing incompatible development to preclude the
use of all or part of this site would be the same as those
under the natural resource discussion above.
20. Environmental Consequences. The environmental consequences
of protecting land uses at the site and surrounding land
uses is mixed. Protecting the conflicting land uses could
well preclude mining at the site. This would have positive
environmental consequences in that the noise, dust, traffic,
and aesthetic impacts associated with surface mining would
be prevented. However, protecting the conflicting land
uses, especially in a site such as this that is largely
undeveloped, can also have negative environmental impacts.
Thus, if the site and surrounding areas become developed,
they, too, can have a detrimental impact on wildlife habita-
t, reducing the overall supply of food and cover and in-
creasing competition for adjoining undeveloped habitat.
Likewise, scenic values could also be negatively affected by
development where there is none now.
21. Energy Consequences. Allowing development that would
preclude or curtail mining at this site could create greater
energy consumption if cinder resources for the upkeep of
roads in the area had to be brought in from greater distan-
ces. Furthermore, increased development at this rural site
would increase energy use from those living in or patron-
izing the allowed uses. Such development would likely lead
to a long term energy commitment because of the life span of
such development.
22. Relative Values of Aaareaate Use and Conflicting Uses.
Based upon the analysis of the ESEE consequences of protect-
ing the identified conflicting uses and protecting the
mineral resource and the relative weight of the conflicting
uses and the mineral resource, the Board finds that with
respect to existing development both the mineral resource
and the conflicting resources and uses are important rela-
tive to one another. This finding is based upon the follow-
ing facts:
(a) Facts (a), (b), (c), and (d) from the paragraph 13
above;
(b) Existing conflicting uses, if any, are important in
that they represent an economic and personal commitment
to development and occupation of individual parcels of
10 - ESEE FINDINGS AND DECISION - SITE NO. 248
iUll -a 1159
private property. Such commitment is accompanied by
economic, quality of life, and health and safety
expectations of those who occupy and patronize those
uses.
Accordingly, the Board finds that pursuant to OAR 660-16-010
it will limit the use of the mineral resource and the
existing conflicting uses surrounding the site in favor of
each other.
Potential development in the impact area is not significant
enough to be considered to be a use that would limit the use
of the aggregate resource at this site. The displaced
future uses can be accommodated on other lands in the
County. There is no compelling need for them to occur at or
near this site.
PROGRAM TO MEET THE GOAL
23. The Board finds that in order to protect both the cinder
resource and the conflicting resources and uses, the site
will be zoned for surface mining, subject to the following
ESEE conditions:
(a) Setbacks shall be required for potential conflicting
residential and other development;
(b) Noise and visual impacts shall be mitigated by buffer-
ing and screening;
(c) The extraction area shall be limited to 5 acres at one
time, with ongoing incremental reclamation;
(d) Processing operations and equipment shall be placed at
a location on the site that will permit such activity
to operate within DEQ noise and dust requirements;
(e) Use of vehicles in the extraction, processing, and
transportation of the material shall meet the DEQ noise
level requirements;
(f) New excavation shall be sloped at a rate of 2 to 1; and
(g) The site shall be fenced off from adjoining properties
with safety fencing.
The Board finds that processing on site will be allowed.
Conflicting Resources
24. The Board finds that surface mining use of the site will be
limited by conflicting natural resource considerations by
11 - ESEE FINDINGS AND DECISION - SITE NO. 248
Al - 1160
the provisions for screening and buffering to mitigate noise
and visual impact. The Board finds that the screening and
buffering ESEE requirements are met by the screening and
buffering requirements in the Deschutes County zoning
ordinance, as amended by ordinance 90-014.
The Board finds that such mitigation will not prevent the
County from achieving its goal, since the site will be
allowed to be mined.
Mineral Resource
25. The Board will protect the mineral or aggregate resource by
zoning the site SK to allow for surface mining activities.
The Board finds that Surface Mining Ordinance 90-014,
adopted as part of this surface mining package, allows
mining activities such as extraction, processing, crushing,
batching, and other mining-dependent uses as permitted or
conditional uses and activities in the zone. Conflicting
uses, such as residential uses that would irretrievably
commit surface area to other uses and otherwise conflict
with surface mining are not allowed uses in the zone.
Agricultural and forest uses are allowed in recognition that
such uses can occur without irretrievably committing the
property to uses other than surface mining. In this manner
the surface area of the cinder resource is protected against
establishment of uses that would prevent mining of the
mineral or aggregate in the future. Such protection advan-
ces the goal of protection of sufficient cinder resources to
meet the County's cinder needs.
26. The Board finds that imposition of a Surface Mining Impact
Area (SMIA) combining zone as a one-half mile buffer sur-
rounding the SM zone, as set forth in Surface Mining Ordi-
nance 90-014, will further protect the cinder resource and
the Board so zones the one-half mile area surrounding the SM
zone, except to the extent that such buffer area would
extend inside an adjoining county or the urban growth
boundary of the City of Bend or Redmond. The Board finds
that the SMIA zone limits conflicting uses as follows:
(a) New conflicting "noise-sensitive" and "dust-sensitive"
uses, such as single-family dwellings, may be sited
within the SMIA zone only if the applicant has signed a
waiver of remonstrance precluding protest of any
surface mining activities, and closer than 1/4 mile to
storage and processing sites only if the applicant can
demonstrate that the proposed use will not cause a
mining operation to violate the siting standards; and
12 - ESEE FINDINGS AND DECISION - SITE NO. 248
l01 1161
(b) In all cases new conflicting "noise sensitive" and
"dust sensitive" uses must be located no closer than
250 feet to an SM zone.
The Board finds that these provisions satisfy the ESEE
condition that residential and other development be subject
to setbacks. The Board finds that such a provision is
sufficient to protect the cinder resource from conflicting
future development.
27. The Board finds that, in combination with the action taken
on other cinder sites, zoning the site for surface mining
and protecting the site from future surrounding conflicting
land uses, the County's goal of preserving sufficient cinder
resources to meet the needs of the County have been met.
Land Uses
28. Existing conflicting land uses, if any, are protected by the
requirement that newly sited surface mines or expansion of
existing surface mines meet screening requirements, setback
requirements, noise standards, adhere to limits on maximum
area of surface disturbance and other limitations.
13 - ESEE FINDINGS AND DECISION - SITE NO. 248
Surface-Mining Site #331
Exhibit 4-2
Site Number 331,
South, Range 13 E.W.M
Commissioners (Board)
October 24, 1989, the
site. By adoption of
confirms and ratifies
ESEE Findings and Decision
Site No. 331
occupying a tax lot 103 in Township 14
Section 29, came before the Board of
for hearing on August 16, 1989. On
Board made a preliminary decision on this
these findings and this decision, the Board
that preliminary decision.
The purpose of the hearing before the Board was to determine
whether the subject site, listed on the County's inventory of
aggregate sites, should be classified under the County's compre-
hensive plan and zoning regulations as "SM" or Surface Mining.
For the reasons given below, the Board determines that this site
should be so classified.
PRELIMINARY FINDINGS
Site number 331 comprises approximately 15 acres and is
located along the western flanks of Tetherow Butte. The site is
owned by E.A. Moore and is zoned SM. Adjacent land is zoned SM
and RR-10. The subject site is adjacent to two other surface
mines, sites 332 and 333. In the past there has been confusion
over the numbering of these sites. The subject site (331) has
had the wrong tax lot number indicated in the staff report. Tax
lot 103 is the correct tax lot number for this site.
This site was identified as containing mineral resources in
the Deschutes County Goal 5 Aggregate inventory adopted by the
Board on December 6, 1988. Based upon the site's inclusion on
that inventory, a hearing was held to determine whether to zone
this site under statewide planning goal 5 to protect the aggre-
gate resource.
APPLICABLE CRITERIA
Criteria applicable to this decision are Statewide Planning
Goal 5, its implementing rule, OAR 660-16-000, and the Deschutes
County Year 2000 Comprehensive Plan, as amended, regarding
surface mining goals and policies.
HEARING AND EXHIBITS
Prior to the hearing on this site, a staff report was pre-
pared setting forth the site's cinder resources and conflicting
resource and use values. The report, which was entered into the
record at the hearing before the Board, identified conflicting
resources and uses and their impacts and evaluated the economic,
social, energy, and environmental consequences of protecting the
1 - ESEE FINDINGS AND DECISION - SITE NO. 331
0628
mineral resource or in the alternative, protecting the conflict-
ing values or uses.
In addition, testimony was received from the Oregon Depart-
ment of Fish and Wildlife.
A list of the contents of the record is appended hereto as
Exhibit A. The file includes DOGAMI reports and the file by
which the site was originally zoned for surface mining.
ESEE FINDINGS AND CONCLUSIONS
1. Inventory. The County's Goal 5 mineral and aggregate inven-
tory establishes that the site has 50,000 cubic yards of
good quality cinders.
2. Site Characteristics. This site is located along the
western flanks of Tetherow Butte and slopes down to the
northwest. The site is served by a cinder haul road which
provides access to Northwest Way approximately one-third
mile from the site. To the south is Squire Ridge subdi-
vision, which consists of numerous five-acre lots. The
subject site is an existing cinder pit which has been used
for at least 15 years. The site is in the middle of a large
area of cinder mining and reserves. The majority of the
site has been excavated, and that portion of the site which
has not been excavated consists of sagebrush and juniper.
3. Conflicts analysis.
a. Conflicts
Natural Resources.
Conflicts
The impacts on water quality referred to in the staff report
would not be present, given that there are no water sources
at the-site. Neither would soil compaction-be a problem, as
indicated in the staff report, given that the soil is
composed of cinders.
The Board finds that the resources identified above conflict
with zoning for surface mining in that full protection of
such resources, accounting for impacts of habitat destruc-
tion and topographical alteration, noise, and increased
human presence could preclude zoning for surface mining.
Conversely, the Board finds that the noise, dust, increased
traffic, physical scarring of the landscape, and loss of
vegetation associated with surface mining at the site would
impact wildlife, open space and scenic resources in a manner
that would adversely affect those natural resources.
2 - ESEE FINDINGS AND DECISION - SITE NO. 331
.Y
0"rK:(
b. Land Use Conflicts.
Land Uses
Land uses in the RR-10 zone surrounding the site are set
forth in Appendix A to the staff report.
Conflicts
The Board finds that conflicts with the uses in the RR-10
zone would include:
1. At the site, all uses except mining uses in the SM zone
are conflicting in that use of the surface area for
mining conflicts with other uses needing surface area.
Uses such as agriculture may not be conflicting from
this standpoint on unexcavated portions of the site.
2. The impacts of noise (including heavy equipment, truck
traffic, blasting, processing, and drilling) and dust
on persons dwelling in or patronizing noise or dust-
sensitive uses in the zone. Noise impacts could
conflict with agricultural uses involving noise sensi-
tive animals. The Board finds that under DEQ noise
standards, all possible uses in the zone could be
noise-sensitive uses, except utility uses, personal
landing strips, geothermal uses, landfill uses, off-
road vehicle tracks,and other mining uses.
3. The impact of truck traffic on roads and on public
safety.
4. The impact to aesthetic values, due to physical scar-
ring of the landscape and the introduction of an
industrial-type use into a rural setting. This would
affect primarily residential uses and park-type uses;
and
The Board finds that, given the above-listed impacts the
conflicting uses in the zone are those enumerated above in
that full protection of those uses would preclude zoning for
surface mining.
The Board finds that of the conflicting allowed or condi-
tional uses at the site or within the impact area only
residential uses are presently in existence. As for the
other potential conflicting uses, it is not possible to
predict whether or not any such uses are likely to occur.
4. Current Mining Use of Site. The Board finds that surface
mining is a current or previous use at the site and could
possibly continue within any valid existing DOGAMI or County
3 - ESEE FINDINGS AND DECISION - SITE NO. 331
06430
permit area regardless of whether or not this site is zoned
in the Goal 5 process. Accordingly, the consequences of
allowing mining to proceed on the site have occurred or are
already occurring and could possibly be allowed to occur
until such time as expansion of the site would be necessary.
Therefore, the relevance of the ESEE discussion below is
primarily whether any expansion would be allowed at the site
and whether the site is important enough that limitations
should be placed on existing and potential land use con-
flicts.
Resource Conflicts
Protection of Cinder Resource
5. Economic Consequences. The Board finds that the economic
consequence of protecting the cinders in conflicts with
other natural resources is difficult to measure, given that
deer and raptor habitat and open space and scenic values do
not have any economic values attached to them.
Economic consequences would tend to be of a secondary
nature, such as a reduction in tourists who might be dis-
suaded from coming to the area if this site along with ='y
others are developed in such a manner as to create large
unsightly areas in the county. These consequences are
already occurring at the site, so the consequences are not
as great as if the site had never been mined.
6. Social Consequences. The Board finds that the social conse-
quences of protecting the mineral resource over the other
natural resources would be negative. Surface mining would
have negative impacts on wildlife and introduce a visual
disturbance into the landscape.
7. Environmental Consequences. The Board finds that continuing
surface mining activities would have adverse environmental
consequences on wildlife habitat and scenic views. Surface
mining activities reduce the available cover and forage at
the site, which causes increased competition among deer for
the remaining forage and cover. Some wildlife would be
forced to leave the area to find other food sources and
cover, thus adding more competition in other areas for these
resources. Continued truck traffic associated with mining
activities could increase the mortality rate for the area's
wildlife.
In some cases over the long term surface mining can be
beneficial to environmental values in that it gives an
opportunity for a site already desecrated by the actions of
man or otherwise lacking in natural values to be improved as
4 - ESEE FINDINGS AND DECISION - SITE NO. 331
0K). 3I
part of the reclamation process. There is no evidence to
suggest that this is one of those instances.
8. Energy Consequences. The Board finds that the energy conse-
quences of protecting the mineral resource over the other
natural resources would be to increase the energy consump-
tion at the site due to fuel expenditures needed to run the
heavy equipment and processing equipment as well as the fuel
expended in transportation of the product to its end use.
Such energy use would be bound to occur in any event.
Aggregate is a resource that is needed in the County and
failure to protect the mineral resource at this site would
only mean that such energy use would occur elsewhere.
The Board finds that cinders are used primarily for highway
maintenance, that this site is located in close proximity to
and with good access to Highway 97 and Northwest Way, and
consequently that the site would be conveniently situated as
a source for materials in any ongoing highway maintenance or
construction in the area requiring cinders. The Board finds
generally that the energy consequences of not allowing
mining of sites convenient to highways and highway main-
tenance sites would be greater than if such mining were not
allowed, due to the greater distances involved in transport-
ing cinders to the point of use.
Protection of Goal 5 Resources
9. Economic Consequences. Protection of the natural resources
would preclude mining at the site. Deer habitat is in
limited supply and the proposed surface mine would cause
displacement of wildlife and increased competition in
remaining unaffected areas. The scenic views in an area of
such open spaces could only be fully protected by precluding
mining.
The Board finds that cinder resources are a commodity with a
market value. Failure to allow mining of such resources
would prevent the value of such resources being realized by
the local economy. Although the number of jobs represented
by the local mining industry is small in number, manufactur-
ing jobs tend to pay at higher rates than those found in the
service sector.
Cinders are not thought to be in short supply in the County.
The resource is readily available from both private and
public sources, including the Deschutes National Forest.
Furthermore, cinders are not as durable material as is sand
and gravel aggregate sources. The Board finds that
Deschutes County has a new policy that cinders will no
longer be used for maintenance of County roads. Therefore,
failure to protect cinder sources will not have the same
5 - ESEE FINDINGS AND DECISION - SITE NO. 331
of'3' ~`(2w,
secondary economic impacts as would failure to protect
aggregate resources. However, the Board finds that cinders
can be a useful material for road and highway maintenance
and that they serve as a substitute for aggregate resources
for surfacing dirt or gravel roads and driveways, thus
reducing the consumption of the more valuable sand and
gravel resource.
10. Social Consequences. Considering the fact that cinders are
in relative abundance in Deschutes County, the social
consequences in protecting the conflicting Goal 5 values at
the expense of the cinder resource would not have the same
kind of social consequences that failure to protect aggre-
gate sources would. In general, the social consequences of
not allowing increased cinder mining at the various existing
sites would not be great.
11. Environmental Consequences. Protection of the natural
resources would preclude mining at the site. The noise,
traffic, human presence and disruption of the landscape and
habitat associated with surface mining is inimicable to the
protection of scenic views and wildlife habitat. Therefore,
protection of the natural resources by precluding mining
would have positive environmental consequences. Wildlife
resources and scenic resources are limited by locational
factors. Wildlife habitat is continually shrinking in the
face of increased development. Scenic views cannot be
recreated by the actions of man.
12. Energy Consequences. As mentioned above, the energy conse-
quences of protecting the natural resource values of this
site and others like it close to highways would likely
involve increased haulage distances. The Board finds that
protection of natural resource values at the site would have
negative energy consequences.
13. Relative Values of the Conflicting Resources The Board
finds that the natural resources and the cinder resource are
important relative to one another based on the following
facts:
a. This source can help meet a demand for lower quality
road maintenance materials and provide a substitute
source for some uses for the more valuable sand and
gravel resource.
b. Cinder resources are a locationally-dependent resource
and are, this site is one of the larger cinder sources
on the inventory.
C. This site is already in existence.
6 - ESEE FINDINGS AND DECISION - SITE NO. 331
T';. X11
e. Deer habitat is continually shrinking in the face of
new development.
Therefore, the Board finds that both the cinder resource and
the conflicting natural resources should be protected.
Accordingly the Board finds that under OAR 660-16-010(3)
protection of the cinder resource shall be limited by
protection of the natural resources.
Conflicting Uses
Protection of Mineral Resource
14. Economic Consequences. The economic consequences of pro-
tecting the cinder resource relates to the impacts of
surface mining on adjacent uses, the value of cinder as a
commercial commodity and the impacts of protecting employ-
ment in the mining industry and the development opportun-
ities foregone by development of the site.
While the impacts of surface mining may in individual cases
have a short term impact on property values of surrounding
properties, trend analysis from the tax assessor's records of specific parcels either adjacent to or within one-half
mile of both existing and potential surface mines indicates
that there were no drastic fluctuations in these property
values. This same analysis shows that there has been no
appreciable decline in sales of these or similar types of
properties. Given that most of the concerns about property
values are focused on residential properties, which do not
predominate in this area, market concerns would not be of
great consequence in any event.
The most significant impact to surrounding property owners
would be if regulations to protect the mineral resource were
enacted that would make surrounding properties unbuildable.
One potential cost to the community at large is the cost of
road repairs necessitated by increased heavy truck traffic
on public roads. The intermittent use of this site will
probably not cause much road wear.
Allowing surface mining activities at this site could have
some short-term negative impacts on the ability to utilize
this property for other uses. There is no shortage of land
in the County available for development for the uses allowed
in the zone. Furthermore, surface mining is a transitional
use, and after reclamation the land surface would then
become available for other uses.
15. Social Consequences. Preserving this site for the produc-
tion of mineral and cinder resources would have a major
7 - ESEE FINDINGS AND DECISION - SITE NO. 331
impact on the quality of life associated with the other land
uses in the area. The negative impacts of noise, fugitive
dust emissions, and increased truck traffic would contribute
to the impact on the livability, scenic quality and compati-
bility of other uses in the vicinity of the project. Such
impacts may be mitigated, however, through environmental
controls on the mining operation.
The Board finds that the social consequences of mining
activity are low in this case due to the fact that there are
few existing land use conflicts.
16. Energy Consequences. The Board finds that preserving this
site for the production of minerals would have overall
positive energy consequences. As stated above, the energy
consumed on site by mining equipment is likely to occur at
some mining site in any event, as there is some level of
need for such resources. Haul distances to nearby Highways
would be short. To the extent that surface mining would
preclude or discourage development of the surrounding rural
lands, the energy consequences would likewise be positive.
17. Environmental Consequences. The Board finds that protecting
the site for mining would have negative environmental conse-
quences for the same reasons given under paragraph 15 above.
The Board further finds that such impacts can be mitigated.
Protection of Conflicting Land Uses
18. Economic Consequences. Most uses in the surrounding zoning
designations are classed as noise sensitive uses for pur-
poses of DEQ noise regulations. Farm uses may be noise
sensitive uses in certain situations, such as with livestock
operations. Protection of surrounding conflicting uses can
have the effect of precluding-or limiting further surface
mining activity due to noise regulations. Likewise, dust,
traffic and aesthetic impacts place constraints on surface
mining operations amongst conflicting land uses.
While the elimination of part or all of any one site would
not significantly impact the total supply of cinder in
Deschutes County relative to need, if every site with con-
flicting uses were eliminated for that reason, the supply of
cinders in the County would be markedly reduced. Almost
every aggregate site over which the County has land use
jurisdiction has some degree of conflict with surrounding
land uses. In light of that fact, each cinder site takes on
some degree of importance, as cumulatively, individual sites
with conflicts could be eliminated and severely cut into the
amounts of cinder available in the County.
8 - ESEE FINDINGS AND DECISION - SITE NO. 331
19. Social Consequences. The Board finds that the social conse-
quences of allowing incompatible development to preclude the
use of all or part of this site would be the same as those
under the natural resource discussion above.
20. Environmental Consequences. The environmental consequences
of protecting land uses at the site and surrounding land
uses is mixed. Protecting the conflicting land uses could
well preclude mining at the site. This would have positive
environmental consequences in that the noise, dust, traffic,
and aesthetic impacts associated with surface mining would
be prevented. However, protecting the conflicting land
uses, especially in a site such as this that is largely
undeveloped, can also have negative environmental impacts.
Thus, if the site and surrounding areas become developed,
they, too, can have a detrimental impact on wildlife habi-
tat, reducing the overall supply of food and cover and
increasing competition for adjoining undeveloped habitat.
Likewise, scenic values could also be negatively affected by
development where there is none now.
21. Energy Consequences. Allowing development that would
preclude or curtail mining at this site could create greater
energy consumption if cinder resources for the upkeep of
roads in the area had to be brought in from greater dis-
tances. Furthermore, increased development at this rural
site would increase energy use from those living in or
patronizing the allowed uses. Such development would likely
lead to a long term energy commitment because of the life
span of such development.
22. Relative Values of Cinder Resource and Conflictin Uses.
Based upon the analysis of the ESEE consequences of protect-
ing the identified conflicting uses and protecting the
mineral resource and the relative weight of the conflicting
uses and the mineral resource, the Board finds that with
respect to existing development both the mineral resource
and the conflicting resources and uses are important rela-
tive to one another. This finding is based upon the follow-
ing facts:
a. Facts (a), (b), (c), and (d) from the paragraph 13
above;
b. Existing conflicting uses, if any, are important in
that they represent a commitment to development and
occupation of individual parcels of private property.
Such commitment is accompanied by economic, quality of
life, and health and safety expectations of those who
occupy and patronized those uses.
9 - ESEE FINDINGS AND DECISION - SITE NO. 331
(st)13fI
Accordingly, the Board finds that pursuant to OAR 660-16-010
it will limit the use of the mineral resource and the exist-
ing conflicting uses surrounding the site in favor of each
other.
Potential development in the impact area
enough to be considered to be a use that
of the aggregate resource at this site.
future uses can be accommodated on other
County. There is no compelling need for
near this site.
PROGRAM TO MEET THE GOAL
is not significant
would limit the use
The displaced
lands in the
them to occur at or
23. The Board finds that in order to protect both the cinder
resource and the conflicting resources and uses, the site
will be zoned for surface mining, subject to the following
ESEE conditions:
a. Setbacks shall be required for potential conflicting
residential and other development;
b. Noise and visual impacts shall be mitigated by buffer-
ing and screening;
C. The extraction area shall be limited to 5 acres at one
time, with ongoing incremental reclamation;
d. Processing operations and equipment shall be placed at
a location on the site that will permit such activity
to operate within DEQ noise and dust requirements;
e. Use of vehicles in the extraction, processing, and
transportation of the material shall meet the DEQ noise
level requirements;
The Board finds that processing on site will be allowed.
Conflicting Resources
24. The Board finds that surface mining use of the site will be
limited by conflicting natural resource considerations by
the provisions for screening and buffering to mitigate noise
and visual impact and also the condition that only 5 acres
at a time be mined. The Board finds that the screening and
buffering ESEE requirements are met by the screening and
buffering requirements in the Deschutes County zoning
ordinance, as amended by Ordinance 90-014.
The Board finds that such mitigation will not prevent the
County from achieving its goal, since the site will be
allowed to be mined.
10 - ESEE FINDINGS AND DECISION - SITE NO. 331
Mineral Resource
25. The Board will protect the mineral or aggregate resource by
zoning the site SM to allow for surface mining activities.
The Board finds that Surface Mining Ordinance 90-014,
adopted as part of this surface mining package, allows
mining activities such as extraction, processing, crushing,
batching, and other mining-dependent uses as permitted or
conditional uses and activities in the zone. Conflicting
uses, such as residential uses that would irretrievably
commit surface area to other uses and otherwise conflict
with surface mining are not allowed uses in the zone.
Agricultural and forest uses are allowed in recognition that
such uses can occur without irretrievably committing the
property to uses other than surface mining. In this manner
the surface area of the cinder resource is protected against
establishment of uses that would prevent mining of the
mineral or aggregate in the future. Such protection
advances the goal of protection of sufficient cinder
resources to meet the County's cinder needs.
26. The Board finds that imposition of a Surface Mining Impact
Area (SMIA) combining zone as a one-half mile buffer sur-
rounding the SM zone, as set forth in Surface Mining Ordi-
nance 90-014, will further protect the cinder resource and
the Board so zones the one-half mile area surrounding the SM
zone, except to the extent that such buffer area would
extend inside an adjoining county or the urban growth
boundary of the City of Bend or Redmond. The Board finds
that the SMIA zone limits conflicting uses as follows:
a. New conflicting "noise-sensitive" and "dust-sensitive"
uses, such as single-family dwellings, may be sited
within the SMIA zone only if the applicant has signed a
waiver of remonstrance precluding protest of any
surface mining activities, and closer than one-quarter
mile to storage and processing sites only if the
applicant can demonstrate that the proposed use will
not cause a mining operation to violate the siting
standards; and
b. In all cases new conflicting "noise sensitive" and
"dust sensitive" uses must be located no closer than
250 feet to an SM zone.
The Board finds that these provisions satisfy the ESEE
condition that residential and other development be subject
to setbacks. The Board finds that such a provision is
sufficient to protect the cinder resource from conflicting
future development.
11 - ESEE FINDINGS AND DECISION - SITE NO. 331
0r`.4 tP
27. The Board finds that, in combination with the action taken
on other cinder sites, zoning the site for surface mining
and protecting the site from future surrounding conflicting
land uses, the County's goal of preserving sufficient cinder
resources to meet the needs of the County have been met.
Land Uses
28. Existing conflicting land uses, if any, are protected by the
requirement that newly sited surface mines or expansion of
existing surface mines meet screening requirements, setback
requirements, noise standards, adhere to limits on maximum
area of surface disturbance and other limitations.
12 - ESEE FINDINGS AND DECISION - SITE NO. 331
OU: t9
TABLE OF CONTENTS
SITE #331
1. COVER INFORMATION SHEET
2. MAP
3. QUESTIONNAIRE SHEET
4. REPORT OF ON-SITE INSPECTION DATED 4/28/88
5. MINED LAND RECLAMATION PERMIT ISSUED 7/14/87
6. LETTER FROM JOHN D. BEAULIEU DATED 7/10/87
7. LETTER FROM JOHN D. BEAULIEU DATED 4/3/87
8. LETTER FROM JOHN D. BEAULIEU DATED 3/2/87 _
9. REPORT OF ON-SITE INSPECTION DSATED 12/18/86
10. SURFACE MINING OPERATING PERMIT ISSUED 9/13/83
11. LETTER TO THE DEPT. OF GEOLOGY & MINERAL INDUSTRIES
9/7/83
12. REPORT OF ON-SITE INSPECTION DATED 1/10/85
13. LETTER FROM PAUL F. LAWSON DATED 6/7/84
14. SURFACE MINING OPERATING PERMIT ISSUED 6/7/84
15. LETTER FROM PAUL F. LAWSON DATED 7/7/83
16. LETTER FROM PAUL F. LAWSON DATED 11/8/82
17. LETTER FROM PAUL F. LAWSON DATED 1/4/80
18. RECLAMATION PERMIT ISSUED 7/29/88
19. APPRAISERS COMMENTS & STAFF REPORT
20. TAX APPRAISERS CARDS
21. NOTIFICATION MAPS
22. LETTER R. BROWN 5/2/83
23. LETTER G. LYNCH 8/1/89
24. LETTER D. JAQUA 8/18/87
0r►4
Surface Minim Site #336
Exhibit 4-3
,FILE # 336
NEIGHBORHOOD:
ZONING:
COMPREHENSIVE PLAN:
APPROXIMATE SIZE:
OWNERSHIP:
RESOURCE TYPE:
APPRAISER'S OBSERVATIONS & COMMENTS:
INSPECTION DATE: 2-16-89
LOCATION - This site is located on the north side of Pershall Way, and
west of Highway 97, north of Redmond. Access onto the site was locked.
TOPOGRAPHY - The site is on the SE flanks of Tetherow Butte and slopes
gently down to the SE. There are views to the north, south and east.
Drainage appears adequate. The site is higher in elevation than
Pershall Way and Hwy 97.
ENVIRONMENT - There is a earthen loading ramp area, old shack and a
small cinder block building on the site. There are electrical lines
going through the property.
NEIGHBORHOOD - The subject site is on the eastern edge of a large area
of active cinder mining. Within a half mile to the west are four
fairly large cinder pits. To the east of the site is the highway and
three older commercial properties. To the south of the site is
residential acreage land and two homes. To the north is farm land and
an undeveloped subdivision.
In conclusion, this site is in an area of active cinder mining. The
site has a cinder pit on it. There are residential and commercial
properties in the area. The site was locked, but has good access off
of paved streets.
Robert T. Bancroft, Appraiser
33 400, 500
TAX ID: 140
Date: 2-16-89
BANCROFT APPRAISAL COMPANY
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ESEE Findings and Decision
Site No. 336
Site Number 336, occupying tax lots 400 and 500 in Township
14 South, Range 13 E.W.M., Section 33, came before the Board of
Commissioners (Board) for hearing on August 16, 1989. On
October 24, 1989, the Board made a preliminary decision on this
site. By adoption of these findings and this decision, the Board
confirms and ratifies that preliminary decision.
The purpose of the hearing before the Board was to determine
whether the subject site, listed on the County's inventory of
aggregate sites, should be classified under the County's compre-
hensive plan and zoning regulations as "SM" or Surface Mining.
For the reasons given below, the Board determines that this site
should be so classified.
PRELIMINARY FINDINGS
Site number 336 comprises approximately 30 acres and is
located adjoining Highway 97 on the eastern flank of Tetherow
Butte. The site is owned by the U.S. Bank Trust and is zoned SM
and LM. Adjacent land is zoned RR-10, EFU-20, EFU-40, MUA-10 and
LM.
This site was identified as containing mineral resources in
the Deschutes County Goal 5 Aggregate inventory adopted by the
Board on December 6, 1988. Based upon the site's inclusion on
that inventory, a hearing was held to determine whether to zone
this site under statewide planning goal 5 to protect the aggre-
gate resource.
APPLICABLE CRITERIA
Criteria applicable to this decision are Statewide Planning
Goal 5, its implementing rule, OAR 660-16-000, and the Deschutes
County Year 2000 Comprehensive Plan, as amended, regarding
surface mining goals and policies.
HEARING AND EXHIBITS
Prior to the hearing on this site, a staff report was pre-
pared setting forth the site's cinder resources and conflicting
resource and use values. The report, which was entered into the
record at the hearing before the Board, identified conflicting
resources and uses and their impacts and evaluated the economic,
social, energy, and environmental consequences of protecting the
mineral resource or in the alternative, protecting the conflict-
ing values or uses.
1 - ESEE FINDINGS AND DECISION - SITE NO. 336
k 3ritw
Lat n 15BG
In addition, testimony was received from the Oregon Depart-
ment of Fish and Wildlife.
A list of the contents of the record is appended hereto as
Exhibit A. The file includes DOGAMI reports and the file by
which the site was originally zoned for surface mining.
ESEE FINDINGS AND CONCLUSIONS
1. Inventory. The County's Goal 5 mineral and aggregate inven-
tory establishes that the site has 750,000 cubic yards of
good quality cinders.
2. Site Characteristics. This site is located on the north
side of Pershall Way and west of Highway 97 north of
Redmond. This is an existing cinder pit which was allowed
through a conditional use permit granted in 1977. The
subject site is on the eastern edge of a large area of
active cinder mining. Within one-half mile to the west are
four large cinder pits. To the east side of the property is
--Highway 97 and various commercial and residential properties
further to the east. The subject site is very visible from
Highway 97.
3. Conflicts analysis.
a. Conflicts
Natural Resources.
1. Open space and scenic values. The LM zoning adjacent
to the site indicates high concern for scenic values.
The adjacent EFU 20 and EFU 40 zoning indicates the
presence of important open space values.
Conflicts
Based upon the staff analysis of surface mining impacts on
natural resources, the Board finds the conflicts and impacts
of surface mining at this site to be as follows:
1. Open space and scenic values are impacted by the
removal of surface vegetation, the opening of a pit in
the ground, storage of excavated materials, the pre-
sence of machinery on the site, the building of infra-
structure, such as access roads, fences, and processing
facilities, and fugitive dust emissions. This site is
in plain view of Highway 97.
The impacts on water quality referred to in the staff report
would not be present, given that there are no water sources
at the site. Neither would soil compaction be a problem, as
2 - ESEE FINDINGS AND DECISION - SITE NO. 336
016)(9111")
i0l - "1587
indicated in the staff report, given that the soil is
composed of cinders.
The Board finds that the resources identified above conflict
with zoning for surface mining in that full protection of
such resources, accounting for impacts of habitat destruc-
tion and topographical alteration, noise, and increased
human presence could preclude zoning for surface mining.
Conversely, the Board finds that the noise, dust, increased
traffic, physical scarring of the landscape, and loss of
vegetation associated with surface mining at the site would
impact wildlife, open space and scenic resources in a manner
that would adversely affect those natural resources.
b. Land Use Conflicts.
Land Uses
Land uses in the RR-10 and MUA-10 zones surrounding the site
are set forth in Appendix A to the staff report.
Conflicts
The Board finds that conflicts with the uses in the RR-10
and MUA-10 zones would include:
1. At the site, all uses except mining uses in the SM zone
are conflicting in that use of the surface area for
mining conflicts with other uses needing surface area.
Uses such as agriculture may not be conflicting from
this standpoint on unexcavated portions of the site.
2. The impacts of noise (including heavy equipment, truck
traffic, blasting, processing, and drilling) and dust
on persons dwelling in or patronizing noise or dust-
sensitive uses in the zone. Noise impacts could
conflict with agricultural uses involving noise sensi-
tive animals. The Board finds that under DEQ noise
standards, all possible uses in the zone could be
noise-sensitive uses, except utility uses, personal
landing strips, geothermal uses, landfill uses, off-
road vehicle tracks,and other mining uses.
3. The impact of truck traffic on roads and on public
safety.
4. The impact to aesthetic values, due to physical scar-
ring of the landscape and the introduction of an
industrial-type use into a rural setting. This would
affect primarily residential uses and park-type uses;
and
3 - ESEE FINDINGS AND DECISION - SITE NO. 336
i0l - 1588
The Board finds that, given the above-listed impacts the
conflicting uses in the zone are those enumerated above in
that full protection of those uses would preclude zoning for
surface mining.
The Board finds that of the conflicting allowed or condi-
tional uses at the site or within the impact area only
residential uses are presently in existence. As for the
other potential conflicting uses, it is not possible to
predict whether or not any such uses are likely to occur.
4. Current Mining Use of Site. The Board finds that surface
mining is a current or previous use at the site and could
possibly continue within any valid existing DOGAMI or County
permit area regardless of whether or not this site is zoned
in the Goal 5 process. Accordingly, the consequences of
allowing mining to proceed on the site have occurred or are
already occurring and could possibly be allowed to occur
until such time as expansion of the site would be necessary.
Therefore, the relevance of the ESEE discussion below is
primarily whether any expansion would be allowed at the site
and whether the site is important enough that limitations
should be placed on existing and potential land use con-
flicts.
Resource Conflicts
Protection of Cinder Resource
5. Economic Consequences. The Board finds that the economic
consequence of protecting the cinders in conflicts with
other natural resources is difficult to measure, given that
deer and raptor habitat and open space and scenic values do
not have any economic values attached to them.
Economic consequences would tend to be of a secondary
nature, such as a reduction in tourists who might be dis-
suaded from coming to the area if this site along with
others are developed in such a manner as to create large
unsightly areas in the county. These consequences are
already occurring at the site, so the consequences are not
as great as if the site had never been mined.
6. Social Consequences. The Board finds that the social conse-
quences of protecting the mineral resource over the other
natural resources would be negative. Surface mining would
have negative impacts on wildlife and introduce a visual
disturbance into the landscape. Given that few people live
in the area, the social consequences would be felt primarily
by those travelling on Highway 97 who might be deprived of
wildlife viewing opportunities and an unscarred landscape.
4 - ESEE FINDINGS AND DECISION - SITE NO. 336
101 - 1589
7. Environmental Consequences. The Board finds that continuing
surface mining activities would have adverse environmental
consequences on wildlife habitat and scenic views. Surface
mining activities reduce the available cover and forage at
the site, which causes increased competition among deer for
the remaining forage and cover. Some wildlife would be
forced to leave the area to find other food sources and
cover, thus adding more competition in other areas for these
resources. Continued truck traffic associated with mining
activities could increase the mortality rate for the area's
wildlife.
In some cases over the long term surface mining can be
beneficial to environmental values in that it gives an
opportunity for a site already desecrated by the actions of
man or otherwise lacking in natural values to be improved as
part of the reclamation process. There is no evidence to
suggest that this is one of those instances.
8. Energy Consequences. The Board finds that the energy conse-
quences of protecting the mineral resource over the other
natural resources would be to increase the energy consump-
tion at the site due to fuel expenditures needed to run the
heavy equipment and processing equipment as well as the fuel
expended in transportation of the product to its end use.
Such energy use would be bound to occur in any event.
Aggregate is a resource that is needed in the County and
failure to protect the mineral resource at this site would
only mean that such energy use would occur elsewhere.
The Board finds that cinders are used primarily for highway
maintenance, that this site is located in close proximity to
and with good access to Highway 97, and consequently that
the site would be conveniently situated as a source for
materials in any ongoing highway maintenance or construction
in the area requiring cinders. The Board finds generally
that the energy consequences of not allowing mining of sites
convenient to highways and highway maintenance sites would
be greater than if such mining were not allowed, due to the
greater distances involved in transporting cinders to the
point of use.
Protection of Goal 5 Resources
9. Economic Consequences. Protection of the natural resources
would preclude mining at the site. Deer habitat is in
limited supply and the proposed surface mine would cause
displacement of wildlife and increased competition in
remaining unaffected areas. The scenic views in an area of
such open spaces could only be fully protected by precluding
mining.
5 - ESEE FINDINGS AND DECISION - SITE NO. 336
I
• Z(? 1590
The Board finds that cinder resources are a commodity with a
market value. Failure to allow mining of such resources
would prevent the value of such resources being realized by
the local economy. Although the number of jobs represented
by the local mining industry is small in number, manufactur-
ing jobs tend to pay at higher rates than those found in the
service sector.
Cinders are not thought to be in short supply in the County.
The resource is readily available from both private and
public sources, including the Deschutes National Forest.
Furthermore, cinders are not as durable material as is sand
and gravel aggregate sources. The Board finds that
Deschutes County has a new policy that cinders will no
longer be used for maintenance of County roads. Therefore,
failure to protect cinder sources will not have the same
secondary economic impacts as would failure to protect
aggregate resources. However, the Board finds that cinders
can be a useful material for road and highway maintenance
and that they serve as a substitute for aggregate resources
for surfacing dirt or gravel roads and driveways, thus
reducing the consumption of the more valuable sand and
gravel resource.
10. Social Consequences. Considering the fact that cinders are
in relative abundance in Deschutes County, the social
consequences in protecting the conflicting Goal 5 values at
the expense of the cinder resource would not have the same
kind of social consequences that failure to protect aggre-
gate sources would. In general, the social consequences of
not allowing increased cinder mining at the various existing
sites would not be great.
11. Environmental Consequences. Protection of the natural
resources would preclude mining at the site. The noise,
traffic, human presence and disruption of the landscape and
habitat associated with surface mining is inimicable to the
protection of scenic views and wildlife habitat. Therefore,
protection of the natural resources by precluding mining
would have positive environmental consequences. Wildlife
resources and scenic resources are limited by locational
factors. Wildlife habitat is continually shrinking in the
face of increased development. Scenic views cannot be
recreated by the actions of man.
12. Energy Consequences. As mentioned above, the energy conse-
quences of protecting the natural resource values of this
site and others like it close to highways would likely
involve increased haulage distances. The Board finds that
protection of natural resource values at the site would have
negative energy consequences.
6 - ESEE FINDINGS AND DECISION - SITE NO. 336 Yic`.~
.L0t 1591
13. Relative Values of the Conflicting Resources. The Board
finds that the natural resources and the cinder resource are
important relative to one another based on the following
facts:
a. This source can help meet a demand for lower quality
road maintenance materials and provide a substitute
source for some uses for the more valuable sand and
gravel resource.
b. Cinder resources are a locationally-dependent resource
and are, this site is one of the larger cinder sources
on the inventory.
C. This site is well located to provide aggregate for
highway maintenance on Highway 97.
d. This site is already in existence.
e. Highway 97 is a major highway landscape management
corridor, and site 336 is readily visible from the
highway.
Therefore, the Board finds that both the cinder resource and
the conflicting natural resources should be protected.
Accordingly the Board finds that under OAR 660-16-010(3)
protection of the cinder resource shall be limited by
protection of the natural resources.
Conflicting Uses
Protection of Mineral Resource
14. Economic Consequences. The economic consequences of pro-
tecting the cinder resource relates to the impacts of
surface mining on adjacent uses, the value of cinder as a
commercial commodity and the impacts of protecting employ-
ment in the mining industry and the development opportun-
ities foregone by development of the site.
While the impacts of surface mining may in individual cases
have a short term impact on property values of surrounding
properties, trend analysis from the tax assessor's records
of specific parcels either adjacent to or within one-half
mile of both existing and potential surface mines indicates
that there were no drastic fluctuations in these property
values. This same analysis shows that there has been no
appreciable decline in sales of these or similar types of
properties. Given that most of the concerns about property
values are focused on residential properties, which do not
predominate in this area, market concerns would not be of
great consequence in any event.
7 - ESEE FINDINGS AND DECISION - SITE NO. 336 0611-48
.101 1592
The most significant impact to surrounding property owners
would be if regulations to protect the mineral resource were
enacted that would make surrounding properties unbuildable.
One potential cost to the community at large is the cost of
road repairs necessitated by increased heavy truck traffic
on public roads. The intermittent use of this site will
probably not cause much road wear.
Allowing surface mining activities at this site could have
some short-term negative impacts on the ability to utilize
this property for other uses. There is no shortage of land
in the County available for development for the uses allowed
in the zone. Furthermore, surface mining is a transitional
use, and after reclamation the land surface would then
become available for other uses.
15. Social Consequences. Preserving this site for the produc-
tion of mineral and cinder resources would have a major
impact on the quality of life associated with the other land
uses in the area. The negative impacts of noise, fugitive
dust emissions, and increased truck traffic would contribute
to the impact on the livability, scenic quality and compati-
bility of other uses in the vicinity of the project. Such
impacts may be mitigated, however, through environmental
controls on the mining operation.
The Board finds that the social consequences of mining
activity are low in this case due to the fact that there are
few existing land use conflicts.
16. Energy Consequences. The Board finds that preserving this
site for the production of minerals would have overall
positive energy consequences. As stated above, the energy
consumed on site by mining equipment is likely to occur at
some mining site in any event, as there is some level of
need for such resources. Haul distances to nearby Highways
would be short. To the extent that surface mining would
preclude or discourage development of the surrounding rural
lands, the energy consequences would likewise be positive.
17. Environmental Consequences. The Board finds that protecting
the site for mining would have negative environmental conse-
quences for the same reasons given under paragraph 15 above.
The Board further finds that such impacts can be mitigated.
Protection of Conflicting Land Uses
18. Economic Consequences. Most uses in the surrounding zoning
designations are classed as noise sensitive uses for pur-
poses of DEQ noise regulations. Farm uses may be noise
sensitive uses in certain situations, such as with livestock
8 - ESEE FINDINGS AND DECISION - SITE NO. 336
01 - 1593
operations. Protection of surrounding conflicting uses can
have the effect of precluding or limiting further surface
mining activity due to noise regulations. Likewise, dust,
traffic and aesthetic impacts place constraints on surface
mining operations amongst conflicting land uses.
While the elimination of part or all of any one site would
not significantly impact the total supply of cinder in
Deschutes County relative to need, if every site with con-
flicting uses were eliminated for that reason, the supply of
cinders in the County would be markedly reduced. Almost
every aggregate site over which the County has land use
jurisdiction has some degree of conflict with surrounding
land uses. In light of that fact, each cinder site takes on
some degree of importance, as cumulatively, individual sites
with conflicts could be eliminated and severely cut into the
amounts of cinder available in the County.
19. Social Consequences. The Board finds that the social conse-
quences of allowing incompatible development to preclude the
use of all or part of this site would be the same as those
under the natural resource discussion above.
20. Environmental Consequences. The environmental consequences
of protecting land uses at the site and surrounding land
uses is mixed. Protecting the conflicting land uses could
well preclude mining at the site. This would have positive
environmental consequences in that the noise, dust, traffic,
and aesthetic impacts associated with surface mining would
be prevented. However, protecting the conflicting land
uses, especially in a site such as this that is largely
undeveloped, can also have negative environmental impacts.
Thus, if the site and surrounding areas become developed,
they, too, can have a detrimental impact on wildlife habi-
tat, reducing the overall supply of food and cover and
increasing competition for adjoining undeveloped habitat.
Likewise, scenic values could also be negatively affected by
development where there is none now.
21. Energy Consequences. Allowing development that would
preclude or curtail mining at this site could create greater
energy consumption if cinder resources for the upkeep of
roads in the area had to be brought in from greater dis-
tances. Furthermore, increased development at this rural
site would increase energy use from those living in or
patronizing the allowed uses. Such development would likely
lead to a long term energy commitment because of the life
span of such development.
22. Relative Values of Cinder Resource and Conflicting Uses.
Based upon the analysis of the ESEE consequences of protect-
ing the identified conflicting uses and protecting the
9 - ESEE FINDINGS AND DECISION - SITE NO. 336
X690
5 9 4
mineral resource and the relative weight of the conflicting
uses and the mineral resource, the Board finds that with
respect to existing development both the mineral resource
and the conflicting resources and uses are important rela-
tive to one another. This finding is based upon the follow-
ing facts:
a. Facts (a), (b), (c), and (d) from the paragraph 13
above;
b. Existing conflicting uses, if any, are important in
that they represent a commitment to development and
occupation of individual parcels of private property.
Such commitment is accompanied by economic, quality of
life, and health and safety expectations of those who
occupy and patronized those uses.
Accordingly, the Board finds that pursuant to OAR 660-16-010
it will limit the use of the mineral resource and the exist-
ing conflicting uses surrounding the site in favor of each
other.
Potential development in the impact area
enough to be considered to be a use that
of the aggregate resource at this site.
future uses can be accommodated on other
County. There is no compelling need for
near this site.
PROGRAM TO MEET THE GOAL
is not significant
would limit the use
The displaced
lands in the
them to occur at or
23. The Board finds that in order to protect both the cinder
resource and the conflicting resources and uses, the site
will be zoned for surface mining, subject to the following
ESEE conditions:
a. Setbacks shall be required for potential conflicting
residential and other development;
b. Noise and visual impacts shall be mitigated by buffer-
ing and screening;
C. The extraction area shall be limited to 5 acres at one
time, with ongoing incremental reclamation;
d. Processing operations and equipment shall be placed at
a location on the site that will permit such activity
to operate within DEQ noise and dust requirements;
e. Use of vehicles in the extraction, processing, and
transportation of the material shall meet the DEQ noise
level requirements.
10 - ESEE FINDINGS AND DECISION - SITE NO. 336
101 - 1595
f. The applicant shall not be allowed to mine closer to
Highway 97 than the existing easterly edge of the
excavated area of the existing cinder pit.
The Board finds that processing on site will be allowed.
Conflicting Resources
24. The Board finds that surface mining use of the site will be
limited by conflicting natural resource considerations by
the provisions for screening and buffering to mitigate noise
and visual impact and also the condition that only 5 acres
at a time be mined. The Board finds that the screening and
buffering ESEE requirements are met by the screening and
buffering requirements in the Deschutes County zoning
ordinance, as amended by Ordinance 90-014.
The Board finds that such mitigation will not prevent the
County from achieving its goal, since the site will be
allowed to be mined.
Mineral Resource
25. The Board will protect the mineral or aggregate resource by
zoning the site SM to allow for surface mining activities.
The Board finds that Surface Mining Ordinance 90-014,
adopted as part of this surface mining package, allows
mining activities such as extraction, processing, crushing,
batching, and other mining-dependent uses as permitted or
conditional uses and activities in the zone. Conflicting
uses, such as residential uses that would irretrievably
commit surface area to other uses.and otherwise conflict
with surface mining are not allowed uses in the zone.
Agricultural and forest uses are allowed in recognition that
such uses can occur without irretrievably committing the
property to uses other than surface mining. In this manner
the surface area of the cinder resource is protected against
establishment of uses that would prevent mining of the
mineral or aggregate in the future. Such protection
advances the goal of protection of sufficient cinder
resources to meet the County's cinder needs.
26. The Board finds that imposition of a Surface Mining Impact
Area (SMIA) combining zone as a one-half mile buffer sur-
rounding the SM zone, as set forth in Surface Mining Ordi-
nance 90-014, will further protect the cinder resource and
the Board so zones the one-half mile area surrounding the SM
zone, except to the extent that such buffer area would
extend inside an adjoining county or the urban growth
boundary of the City of Bend or Redmond. The Board finds
that the SMIA zone limits conflicting uses as follows:
11 - ESEE FINDINGS AND DECISION - SITE NO. 336
k06!)'
1011 - 1595
a. New conflicting "noise-sensitive" and "dust-sensitive"
uses, such as single-family dwellings, may be sited
within the SMIA zone only if the applicant has signed a
waiver of remonstrance precluding protest of any
surface mining activities, and closer than one-quarter
mile to storage and processing sites only if the
applicant can demonstrate that the proposed use will
not cause a mining operation to violate the siting
standards; and
b. In all cases new conflicting "noise sensitive" and
"dust sensitive" uses must be located no closer than
250 feet to an SM zone.
The Board finds that these provisions satisfy the ESEE
condition that residential and other development be subject
to setbacks. The Board finds that such a provision is
sufficient to protect the cinder resource from conflicting
future development.
27. The Board finds that, in combination with the action taken
on other cinder sites, zoning the site for surface mining
and protecting the site from future surrounding conflicting
land uses, the County's goal of preserving sufficient cinder
resources to meet the needs of the County have been met.
Land Uses
28. Existing conflicting land uses, if any, are protected by the
requirement that newly sited surface mines or expansion of
existing surface mines meet screening requirements, setback
requirements, noise standards, adhere to limits on maximum
area of surface disturbance and other limitations.
120 - ESEE FINDINGS AND DECISION - SITE NO. 336 r:'~~•`~
Re: Latham mine - Yahoo! Mail
~-It;UC M A I L
Classic
Re: Latham mine
From: "Chris Parkins" <chris.parkins@state.or.us>
To: "bruce white" <bwwlaw@yahoo.com>
Cc: "Chris Parkins" <chris.parkins@state. or.us>, "Ross Kihs" <ross.kihs@state.or.us>, "Susan Bethers"
<susan.bethers@state.or.us>
rage of
Thursday, June 23, 2011 5:00 PM
Mr. White,
Your interpretation of our call is correct. I am not aware of any specific complaints from park visitors regarding any aspects of
the mine. The observation about dust was specifically by park staff and did occur during my tenure at the High Desert District
office, at least 16 months ago. I have not heard any complaints since that time secondhand either. Our (Oregon Parks and
Recreation Department) participation in hearings related to the McClain LLC/Latham Excavation permit application is not
driven by customer complaints, but by our commitment to speak up and request thorough analysis (ESEE in this case) on
park visitor impacts anytime mining operation expansion is considered and we are afforded the opportunity.
hope this is helpful in clarifying the points you inquired about.
Sincerely,
Chris Parkins, District Mgr
OPRD North Central District
10260 NE Crooked River Dr
Terrebonne, OR 97760
(541) 923-7551 x 27
bruce white <bwwlaw[ yahoo.com> 6/22/2011 10:43 PM
Chris:
Thanks for talking with me this afternoon. The reason for my inquiry about complaints from park users was my impression
from your testimony on June 13, 2011 before the Board of County Commissioners that there had been complaints from park
users about dust and visibility of the mine from the Park. The Board's minutes for the meeting indicate that there are issues
with visibility and the effects of noise and dust. The minutes go on to say that there have not been any complaints regarding
noise, but increased traffic and equipment should be assessed in regard to the Park experience. This leaves the impression
that there may have been complaints about dust and visibility (but not noise). I was left with this impression as well at the
time of your testimony.
What I wanted to find out was what was the nature of any complaints from park users about dust and visibility. What I believe
you told me this afternoon was that there had not been in your experience any complaints from park users about the mining
operation or the mine. You did state that park staff had mentioned issues with dust, but that any such observations would
have been at least 16 months ago, the time when you assumed your new position in the State Parks Department.
I would appreciate it if you could clarify this issue of complaints and observations concerning dust.
If it would help, feel free to give me a call tomorrow.
Thank you,
Bruce W. White
Bruce W. White, Attorney, LLC
PO Box 1298
Bend, OR 97709
(541)382-2085
bwwlaw yahoo.com
Exhibit 5
http://us.mcl 140.mail.yahoo.com/mc/showMessage?sMid=l&filterBy=&.rand=1198623972&mid... 6/23/2011
Testimony of Pat McClain
On Remand of Johnson Road Pit Site Plan - Site 303
June 24, 2011
I am making this testimony as a part owner of Latham Excavation, which is the applicant for site
plan approval and conditional use approval to allow for some modifications to the existing
pumice removal operation at the Johnson Road pit and to allow crushing at the site. This
testimony is in response to oral and written testimony made by our opponents at the June 13,
2011 hearing and thereafter by written submittals. Our attorney will be providing further legal
argument to supplement this factual testimony.
Introductory Comments
I'd first like to respond to the comments that appear to indicate that Latham Excavation is not a
responsible landowner or a responsible member of the community. I am a fourth generation
native of Bend and am proud to be able to provide jobs through the excavation business for
members of this community and also for my children (my three children all work for the
company) so that they can live here, too. As a business, we are involved in our community
supporting a variety of community endeavors. My step-mother was Dorothy Smead, the first
woman County Commissioner. We have afar longer involvement with and commitment to this
community than do any of our opponents.
We have been attacked for statements made that we inherited certain conditions at the
Johnson Road pit. Those statements are not made to indicate that we have no responsibility
for resolving any issues at the site; we certainly wish to act as a responsible land owner. Those
statements are made to show that these are issues that were created by our predecessor, but
for which we are now being unjustly blamed.
• The statement has been made that our current operation is not consistent with the
approval that was given to Cascade Pumice. We are still working within the slot that
was opened by Cascade Pumice. That this is true is demonstrated by the difference in
tooth marks between our excavator and Cascade Pumice's. (See Photo 1 of photo
exhibit). We have not opened any more ground than Cascade Pumice opened when it
operated the pit.
• We have been accused of operating beyond the limits of the mining footprint of the
1995 site plan. Again, whatever ground is disturbed was disturbed by Cascade Pumice.
With respect to the area in the southwest corner that was highlighted in the map
included with Paul Dewey's materials, I would note that the actual mining boundary on
the west side of the property is the "low ridge" referenced on the 1995 site plan map,
which if you look at the topographical lines on our site plan map is further to the west
than any of the areas that have been excavated. That site plan indicates that the
"location of the low ridge shown as the westerly limit of proposed mining activity and
1
the plateau are from aerial photographs and should be considered as approximate
only." (LUBA Record, page 2334.) (See also Exhibit 1 to materials submitted today by
Bruce White.)
• We have been accused of exceeding the 160,000 square foot limitation on open slots
and not addressing incremental reclamation. Again we are working within the slot that
was cut open by Cascade Pumice. A series of representative slots were drawn on the
site plan as a series of squares, without regard to where the actual pumice resource lay.
The site plan indicates that these are "typical" cells but does not commit the operator to
be limited by those exact dimensions, as set forth on the following notation on the 1995
site plan: "Approximate 600' x 400' typical mining slots may vary in size depending
upon topography and/or mining conditions." The County's code enforcement officer
came out and measured the open slot and found us to be in compliance (LUBA Record,
Pages 740-741), so any requirement under the 1995 site plan to begin incremental
reclamation wouldn't be applicable yet.
In addition, as I mentioned in earlier testimony, when you look at the site and all the
setbacks from neighboring pre-1990 houses, this site is a constricted site that doesn't
allow for a lot of room for locating stock piles and operating equipment. There are
some portions of the excavated areas that were opened up by Cascade Pumice on the
floor of the pit that will of necessity become part of the operating area of the pit. Part
of the initial excavation process is to establish an area in which to work. Because we
intend to process the pumice material on site (Cascade Pumice hauled their material off-
site to their industrial property for processing), our requirements for space are different
than Cascade Pumice's. We require space to stockpile the pumice both before and after
it is processed. We require space for processing the material on site, which also
requires space for berms for visual screening.
• We have been accused of not complying with reclamation requirements for the old
surface mining site on the eastern portion of the site. There are no conditions of
approval included in the 1995 site plan or in the reclamation plan that require Cascade
Pumice or us to follow the schedule noted in the Board's decision. We have put down
mulch, which DOGAMI regards as being a form of interim reclamation. (LUBA Record,
page 2724.) This is just another example of the opponents distorting the facts to try to
make us look bad.
Consistency of Current Operations with Cascade Pumice Approval
As I stated, we are still working within the "slot" that was originally cut open by Cascade
Pumice. The pumice resource "daylights" or surfaces on the side of the pit as shown on Exhibit
2. It also surfaces along the northwest side of the pit. According to Andy Siemens, the pumice
resource in the central area of the pit was washed away and is no longer on site. (LUBA Record,
2
Page 4200.) The resource does not correspond to the neat little squares shown on the 1995
Cascade Pumice site plan. Those squares were labeled as "typical". Cascade Pumice did not
operate as if each individual square on the plan were the actual area of operation. The "slot"
they cut was more of a skinny rectangle along the face of the current pit than a square,
reflecting such factors as where the resource daylighted into the pit, and how deep it was
economic for Cascade Pumice to mine.
This slot was opened by Cascade Pumice to expose the band of Bend Pumice lying beneath.
There is still pumice mineral left from this slot as can be seen in Exhibit 1 (Photo 1). The only
excavation we have made along the headwall is to cut down a bench on the eastern portion of
the headwall, as is shown by the differences in size of the scrape marks on the headwall.
(Exhibit 1, Photo 1.)
The idea that SP-95-010 limits the excavation to a depth of 30-35 feet of overburden is not
consistent with the site plan footprint that was approved in that decision. The site plan
indicates that aspects of the plan are an approximation, depending upon actual conditions in
the field, such as the location of the west boundary of the site plan and the size and
configuration of the slots. This is just another example of the opponents trying to hamstring us
and hem us in so tightly that we are not able to operate at the site. I believe their strategy is to
make it uneconomic for us to be able to mine at the site.
The opponents express concern about the headwall and wanting to limit it, but it is not possible
to mine the material and not create a headwall.
While I am discussing the headwall, I should make a correction to a statement about the height
of the headwall made in my letter of June 10, 2011. In making that statement, I cited cross-
section B from Andy Siemens' 2007 geotechnical report (at LUBA Record, Page 4220). 1
misinterpreted that data in stating the depth of the material and the distance below the
existing plateau that we would be excavating to. As shown on cross-section B-B, the depth of
the tuff is approximately 90 feet. The distance below the basalt cap that the top of our
proposed cut would be about 25-30 feet, the same as was proposed by Cascade Pumice. (See
Exhibit 2.)
At cross-section B-B, the current headwall is about 70 feet tall, with the top of the headwall
thought to be at about 3390 feet. This is consistent with the topo lines on the site plan map
(which can be hard to read because of the close spacing of the lines) at that point. Our
proposal is to go up to somewhere between 3400 and 3410 feet in elevation in the area of the
existing headwall, as shown on the site plan map. The actual height of the current headwall is
about 70 feet at cross-section B-B, for an increase in height of about 15-20 feet. (See Exhibit 2.)
That would be a height of about 85 - 90 feet at cross section B-B.
3
New ESEE Issue
The Hoffmans attorney argues that because the ESEE used the word "pit" that the only possible
intent of the County could have been to mean a vertical hole in the ground - not excavation
into the side of a hill. In my experience, the word "pit" can mean any kind of excavation in the
ground, whether it is a vertical hole or whether it digs down and also into a hillside. In the end,
the term means an opening in the surface of the earth for mining earthen material, and it
doesn't matter whether the hole is strictly vertical. We see a lot of cinder "pits" in the area,
and they usually are excavated into the side of an above-grade volcanic formation. Out at the
Able pit, where we have been working, the cinder pit has excavated the flanks of a cinder butte
around a water tank.
Mr. Dewey states that there is a lot of fill resource available and downplays our argument
about the implications of not allowing for use of non-inventoried, incidental material. I am not
aware that he is knowledgeable about the construction or excavation business. I know from
being in the market place that if you want to buy construction fill in the Bend area, the only
places that are available close to Bend other than our resource are the Coats pit off Shevlin Park
Road, the Taylor NW pit west of Shevlin Park and the Able pit near Deschutes River Woods.
Further away, there is a pit in Alfalfa that sells construction fill and there is the Moon pit out
near Horse Ridge and then there is the Robinson recycle plant near Deschutes Junction. That
doesn't mean that all of these sites are approved for excavation and sale of these resources.
As I stated in my previous testimony, the farther you have to go to get fill resource, the more
expensive it is (which adds to construction costs for the entire community) because of the cost
of trucking.
Screening Issues
I note from Paul Dewey's testimony that the Hoffman house would have a view of the
southeast portion of the headwall. We will take him at his word, but I would note that there
are no pictures or any other demonstration of the nature of the view from the Hoffman house.
Mr. Dewey suggests that the topographical exception to the screening requirement should not
extend to vegetation that blocks the view of a mining site, such as that that appears on the hill
as it ascends up the slope on the Hoffman property from the Hoffman residence. So that we
can take this issue off the table, we are willing to install a 12-foot high berm along the northern
property boundary from the draw on the north boundary line to where the northeast corner of
the mining boundary starts. (See Exhibit 3.) That point coincides with the lessening elevation
of the ridge between the two properties. The berm would be vegetated in the same manner as
the other berms we have proposed. I would note that this berm will be of limited use, because
it will be substantially shorter than much of the vegetation located on the Hoffman property. I
would estimate that much of that vegetation (which appears to be mainly juniper trees) is
between 20 and 30 feet tall. (See Exhibit 1, Photos 5 and 6.)
4
The berm along the northern property line could also provide some limited additional screening
from the elevated areas of Tumalo State Park, about which the State Parks representative
expressed concern. Again, the screening will be of limited use, because the elevation of the
nob in the Park versus our property and the height of the excavation means that there is no
way to completely screen the property. In addition, this supplied screening will mostly be
screened from view from the park by the vegetation on the Hoffman property. (See Exhibit 1,
Photos 5 and 6.) 1 would note that the view from the top of the nob includes views of the
headwall within the park and along O.B. Riley Rd, referenced in my earlier testimony. (See
Exhibit 1, Photos 7 and 8.) Mr. Dewey indicates that these views are less offensive than the
views of the road cuts, but viewed from the top of the nob, these headwalls are far more
apparent than the headwall on our property. (See Exhibit, Photos 9 and 10.)
I walked the interpretive trail referenced by Mr. Parkins and I did find that there were some
areas in which a glimpse of the existing headwall could be viewed through the trees on the park
property. Mainly you could see just the upper reaches of the headwall. (See Exhibit 1, Photo
11.) These areas cannot be screened even with a 30-foot screening barrier, and screening
would likely be obscured by the existing intervening vegetation, most of which is located within
the park and therefore not likely to be removed. I also observed the road cuts along Tumalo
Reservoir Road across the River. These were much more prominent in the views from the
interpretive trail than the views of the Johnson pit. Again this contradicts Mr. Dewey's
statement about the relative impact of our headwall with other exposures in the area of the
Tumalo Tuff.
Mr. Dewey states that it is only vegetation along the river and on the Todd property that makes
the site not visible from the river. Mr. Dewey's statement is wrong. As my earlier testimony
indicated, there is a significant ridge along the river that blocks a line of sight of the pit floor
from the river.
Mr. Dewey also indicates that a camp site at the Tumalo State Park will have a view of the
headwall. He does not indicate which camp site the picture was taken from, but it would
appear that the nearest camp sites would be looking up at the eastern portion of the ridge,
which is not being excavated. In any event, we are not required to totally screen protected
uses from view of the pit.
Setbacks for Stock Piles
Mr. Dewey states that there is no basis to allow any of the "piles" to remain within the %-mile
setback. We disagree. The topsoil piles that were left by Cascade Pumice have revegetated
and leaving the piles where they lie, as they are, will provide the least amount of disturbance of
any other location on the site because moving those piles would cause noise and dust, where
leaving them would not. We have never reworked this pile and we see no evidence that
Cascade Pumice ever reworked this pile. We would leave the pile where it is until we would
5
need to move it when mining moves to this area of the pit, but we would move it to a location
outside the %-mile setbacks.
There are some other low "piles" if you want to call them that that pre-date even Cascade
Pumice being on the site. Those piles are not more than a couple of feet high and have become
fully vegetated and are really just a part of the landscape. (See Exhibit 1, Photo 4.) We do not
believe there is any basis for even saying these are piles to which the setback should apply.
Reclamation Issues
The opponents have tried to tie us to the reclamation plan that Cascade Pumice had when it
opened the pit. However, DOGAMI allows for changes in site plans. We have been told by
DOGAMI that changing from a 1 % to 1 slope to a vertical face is allowed provided we can
demonstrate that the face will be stable. (LUBA Record, Page 2333.) We are applying in this
proceeding for a new site plan based upon changes to our operation. The new site plan would
not be tied to the previous reclamation plan. We made this land use application in 2007, the
year we acquired the pit to recognize changes in our operation of the site versus Cascade
Pumice's operation and we are still in the process of obtaining approval. At the time we bought
the pit, we were required to submit a reclamation plan as a successor to Cascade Pumice. At
the time, we simply adopted Cascade Pumice's reclamation plan as our own and submitted it.
We intend to amend the current reclamation plan to better reflect our operation of the site.
This does not mean that we are not committed to reclamation of the site.
As noted above, the opponents' claim that we have not reclaimed the eastern portion of the
site has no basis.
It is important to note that the initial "slot" also created working space for operating the pit. To
say that all areas that have been mined must then be reclaimed is simply not practical. The
County's code recognizes this by excluding from the 5-acre mining limitation areas that are
necessary to the mining operation. Where mining would occur by digging back further into the
hillside, for example, reclamation of the area that was mined in the first phase is not possible,
because that formerly mined area is necessary as a staging area for working the second area.
This is likely why DOGAMI commented that incremental reclamation was not feasible at this
site. If we were to move to the side for our next cell instead of going back into the hill, we
could provide for interim reclamation by seeding the area that we were no longer working with
some form of vegetation that was acceptable to DOGAMI.
Crusher Site Locations
Paul Dewey suggests that we not be able to locate the crushers anywhere but below grade,
such as what he believes to be the case with the southwest crushing site. He seems to believe
that the southwest crushing site is located below grade, but the truth of the matter is that that
6
site is actually higher in elevation than the northeast and southeast crusher locations are. If the
stockpile were to go away, that site would be exposed to the houses to the east.
Locating the crushing locations in a depression is not practical. It would not be an insignificant
depression, since just the crushing machine alone is 65 feet long. When you add to that other
components such as the screener and a generator, depending upon how they are configured,
they can stretch out well over 130 feet. In addition, there would then be issues about relating
the elevation of the crushing site to the remainder of the property in terms of vehicular access,
etc. Furthermore, it would create drainage issues for us, particularly in the winter when there
is snow.
Mr. Dewey argues that the proposed 15-foot berms for screening the processing equipment is
not adequate. For the Hoffman and the Todd residences, 15 feet is plenty adequate, because
those houses are located at elevations that are significantly below the crushing sites. Even
without any kind of berming the Todd house would not see processing equipment at either of
the crushing sites because of the change in elevation between the Todd residence and the
distance back those sites are from the Todd residence on the elevated plateau. Regarding the
Hoffman residence, that is certainly true for the southeast crushing site and likely true for the
northeast crushing site as well (even if there were no intervening trees) because of the distance
back from the ridge the crushing location is.
That leaves the park and the two adjacent pre-1990 residences (who have never been heard
from in this process). Because of the elevation difference, it may not be possible to completely
screen the crushing equipment from the view of those homes. Building a 30-foot high berm,
such as the elevation of the current tuff stock pile, would not be practical, given the roughly 60-
foot wide footprint such a berm would occupy. Because of the height difference between the
northeastern crushing site (roughly 3303 feet) versus the overlooking dwellings (roughly 3340
feet) and the need for some space around the processing equipment, we can't guarantee the
ability to practically position and build a berm of sufficient height to completely screen the
equipment.
Dust Impacts
The opponents have offered varied testimony as to whether there has been a continuing dust
problem at our pit during the last three years. The testimony of Mr. Triplett, who owns the
property directly across from the site on Johnson Road, indicates that dust, including dust from
the exposed headwall, has not been a problem in the last three years. On the other hand, Mrs.
Whistler testified that (1) no complaints have been made because complaints did not result in
any action and (2) that dust was sometimes so thick on O.B. Riley Road that it obscured the
vision of drivers on O.B. Riley Road.
We believe that Mr. Triplett's testimony substantiates what we have been saying: that dust
from the headwall is not a problem. Even though we have not been operating at the site for
7
almost two years, the headwall still stands. If there were a continued problem from dust at the
headwall, Mr. Triplett would certainly have been expected to mention it, given his particular
concern about that issue.
Mrs. Whistler's testimony does not indicate that the dust of which she spoke was coming from
the headwall. It does not specify when those incidents occurred or under what circumstances.
The only pictures submitted by any of our opponents were the pictures submitted by David
Adams. That was a picture of the pit from the Highway 20 overlook. There is no dust that
shows on that photograph. Mr. Adams has submitted pictures during the previous hearings
showing dust coming from the pit. It would seem that if there were new pictures regarding
dust, Mr. Adams would have offered such pictures now.
Opponents' Claims
I'd like to address some of the claims of our opponents.
There are statements that we are planning to significantly expand the size and scope of the mining
operation. This is simply not true. The footprint of our proposed mining operation is the same as that
approved for Cascade Pumice. We are handling the same material they were handling, the Tumalo Tuff
and the Bend Pumice. The only difference is that we are now intending to process that material on site
and we propose to haul off the Tumalo Tuff that is required to be excavated to get to the Bend Pumice.
The opponents claim that we are expanding the operations beyond just the 25 acres that were approved
in the ESEE. The ESEE approved the entire site for mining, not just 25 acres. Mrs. Nye testified with
concerns about her concerns about the headwall posing a danger to her children. The headwall is
located well within our property lines and will not pose a danger to anyone staying on their own
property. I would note that the Nye's house is on a cliff overlooking the Deschutes River, which would
seem to be a far greater danger to her children's safety than our mine. Both Ms. Nye arrd Mr. Triplett
mention having children or grand-children with respiratory problems. We have documented clouds of
dust coming off Mr. Triplett's farm fields. If dust were of such concern to him, it would seem that he
would take more care to control his own dust.
Sinc e
McClain
8
Pat McClain - June 24, 2011- Exhibit 1
Photo 1. Southeast corner of existing headwall. The difference in size of the tooth marks indicates the
extent of the excavation by Cascade Pumice (large tooth marks) and Latham Excavation (small tooth
marks).
Photo 2. Looking up the eastern boundary (stakes circled), where the 12-foot berm would be located.
The berm would terminate in the area the second stake is. From there, until the tree line, supplied
screening would consist of trees in accordance with the supplied screening standards.
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Photo 3. Topsoil pile left by Cascade Pumice within %-mile setback from Todd residence, as viewed from
top of tuff stockpile. This pile would remain in place.
Photo 4. Fully vegetated rumpled ground left by Bend Aggregate & Paving has become part of the
landscape and does not qualify as a stock pile.
Photo 5 (left). Trees on Hoffman
property along northern boundary of
mining site, looking east. Trees are
20-30 feet tall.
Photo 6. Trees on Hoffman property
along northern boundary of mining
site, looking west.
Photo 8: Close up of same view. Note that the stock pile is about 35-40 feet in height on its eastern side
and that side cannot completely screen the headwall. The drawn-in line shows the approximate
location of the berm on the eastern edge of the mining area.
Photo 7: Existing pit as viewed from nob at Tumalo State Park.
Photo 9. Existing head wall in Tumalo State Park from top of park nob.
a,
Photo 10. Road cut along O.B. Riley road from top of nob.
Photo 11. Showing glimpses of headwall from interpretive trail.
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