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2015-498-Ordinance No. 2015-021 Recorded 12/4/2015 COUNTY REVIEWED NANCY DESCHUTES CLERKDS 4J 2015'41 COMMISSIONERS' JOURNAL 12/04/2015 01:62:36 PM LEGAL COUNSEL IjII III11111111UIIIIII III 2 1 -488 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 23,the Deschutes County Comprehensive Plan,to Revise the Mineral * ORDINANCE NO. 2015-021 and Aggregate Resource Inventory for Deschutes County, and Redesignating Certain Property from Agricultural to Surface Mining. WHEREAS, 4-R. Equipment, JJ.C proposed a Plan Amendment (file no. PA-04-8) to the Deschutes County Comprehensive Plan,to redesignate certain property from Agriculture to Surface Mining; and WHEREAS, the Deschutes County Board of Commissioners (Board), after review conducted in accordance with applicable law, approved the proposed amendment to the Comprehensive Plan, and adding the site to the County's Mineral and Aggregate Resource Inventory; and WHEREAS the Board's decision was not appealed; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as described in Exhibit"A" attached and incorporated by reference herein, with new language underlined. Section 2. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative History, is amended to read as described in Exhibit "B," attached and incorporated by reference herein with new language underlined. Section 3. AMENDMENT. Deschutes County Comprehensive Plan is hereby amended to add the subject property to the County's Mineral and Aggregate Resource Inventory, and change the Comprehensive Plan designation of the subject property, described as tax lots 902, 1000 and 1001 in Section 30 of Township 19 South, Range 15 East, Willamette Meridian, and as further described by the legal description attached hereto as Exhibit "C"and the map set forth as Exhibit"D,"and the Surface Mining Inventory list for the County, attached hereto as Exhibit"E," by the reference incorporated herein, from Agriculture to Surface Mining. Section 4. FINDINGS. The Board adopts as it findings in support of this Ordinance, the Decision of the Board of County Commissioners, attached hereto and incorporated herein by this reference, as Exhibit "F." /// PAGE 1 OF 2-ORDINANCE NO.2015-021 (11/9/15) Dated this of Alb 1r. , 2015 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ANTHONY DEBONE, CHAIR 671.64„_. ALAN UNGER, VIC • CHAIR ATTEST: B CRecordin Secretary TA Y. 64MISSIONER OR LA , F Date of l st Reading: / day of /V W, , 2015. Date Of 2nd Reading: 0.5 day of /"UV , 2015. Record of Adoption Vote Commissioner Yes No Abstained Excused Anthony DeBone v Alan Unger Tammy Baney Effective date: 02'a' da Y of 20]6. ATTEST: Recording Secretary PAGE 2 OF 2-ORDINANCE NO.2015-021 (11/9/15) Chapter 23.01 COMPREHENSIVE PLAN Chapter 23.01 COMPREHENSIVE PLAN 23.01.010. Introduction. A. The Deschutes County Comprehensive Plan,adopted by the Board in Ordinance 201 1-003 and found on the Deschutes County Community Development Department website, is incorporated by reference herein. B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2011-027, are incorporated by reference herein. C. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-005, are incorporated by reference herein. D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-012, are incorporated by reference herein. E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-016, are incorporated by reference herein. F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-002, are incorporated by reference herein. G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-009, are incorporated by reference herein. I I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-012, are incorporated by reference herein. I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-007, are incorporated by reference herein. J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-005, are incorporated by reference herein. K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-006, are incorporated by reference herein. L. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-012, are incorporated by reference herein. M. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-021, are incorporated by reference herein. N. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2014-027, are incorporated by reference herein. O. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2015-021, are incorporated by reference herein. (Ord. 2015-021 § 1, 2015;Ord. 2014-027 § 1, 2014; Ord. 2014-021 §1, 2014; Ord. 2014-12 §1, 2014; Ord. 2014-006 §2, 2014; Ord. 2014-005 §2, 2014; Ord. 2013-012 §2, 2013; Ord. 2013-009 §2, 2013; Ord. 2013-007 §1, 2013; Ord. 2013-002 §1, 2013; Ord. 2013-001 §1, 2013; Ord. 2012-016 §1, 2012; Ord. 2012-013 §1, 2012; Ord. 2012-005 §1, 2012; Ord. 2011-027 §l through 12, 2011; Ord. 201 1-017 repealed; Ord.2011-003 §3, 2011) PAGE 1 OF I —EXHIBIT"A" TO ORDINANCE 2015-021 Sectt,ov►, 5.12 LeS%sLatL.ve H- store Background This section contains the legislative history of this Comprehensive Plan. Table 5.1 1.1 Comprehensive Plan Ordinance History Ordinance Date Adopted/ Chapter/Section Amendment Effective All, except Transportation, Tumalo and Terrebonne 201 1-003 8-10-I I/1 1-9-I I Community Plans, Comprehensive Plan update Deschutes Junction, Destination Resorts and ordinances adopted in 2011 2.5, 2.6, 3.4, 3.10, 3.5, Housekeeping amendments to 201.1-027 10-31-1 1/I 1-9-1 I 4.6, 5. 3, 5. 8, 5.I I, ensure a smooth transition to 23.40A, 23.40B, the updated Plan 23.40.065, 23.01.010 23.60, 23.64 (repealed), Updated Transportation 2012-005 8-20-12/1 1-19-12 3.7 (revised), Appendix C System Plan (added) 2012-012 _ 8-20-12/8-20-12 4.1, 4.2 La Pine Urban Growth Boundary 2012-016 12-3-12/3-4-13 3,9 Housekeeping amendments to Destination Resort Chapter Central Oregon Regional 2013-002 1-7-13/1-7-13 4.2 Large-lot Employment Land Need Analysis Comprehensive Plan Map Amendment, changing 2013-009 2-6-13/5-8-13 1.3 designation of certain property from Agriculture to Rural Residential Exception Area Comprehensive Plan Map 2013-012 5-8-13/8-6-13 23.01 A 10 Amendment, including certain property within City of Bend Urban Growth Boundary Newberry Country: A Plan 2013-007 5-29-13/8-27-13 3.10, 3.11 for Southern Deschutes County DESCHUTES COUNTY COMPREHENSIVE PLAN-201 1 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.I I GOAL 5 ADOPTED ORDINANCES PAGE I OF 2-EXHIBIT"B"TO ORDINANCE 2015-021 Ordinance Date Adopted/ Chapter/Section Amendment Effective Comprehensive Plan Map 2013-016 10-21-13/10-21-13 23.01.010 Amendment, including certain property within City of Sisters Urban Growth Boundary Comprehensive Plan Map 2014-005 2-26-14/2-26-14 23.01.010 Amendment, including certain property within City of Bend Urban Growth Boundary 20 14-0 12 4-2-14/7-1-14 3.10, 3.I I Housekeeping amendments to Title 23. Comprehensive Plan Map Amendment, changing designation of certain 2014-021 8-27-14/11-25-14 23.01.010, 5.10 property from Sunriver Urban Unincorporated Community Forest to Sunriver Urban Unincorporated Community Utility Comprehensive Plan Map Amendment, changing 2014-027 12-15-14/3-31-15 23.01.010, 5.10 designation of certain property from Agriculture to Rural Industrial Comprehensive Plan Map Amendment, changng 2015-021 11-23-15/2-2-16 23.01.010 designation of certain property from Agriculture to Surface Mining. 2 DESCHUTES COUNTY COMPREHENSIVE PLAN-2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12LEGISLATIVE HISTORY PAGE 2 OF 2--EXHIBIT"B"TO ORDINANCE 2015-021 Property Description. 4-R.Equipment LLC EXHIBIT C All that portion of Section 30, Township Nineteen (19) South, Range Fifteen (15) East of the Willamette Meridian, Deschutes County Oregon lying southerly of US Highway 20 being more particularly described as follows: Government Lot 2; Government Lot 3;the Southeast One-Quarter of the Northwest One- Quarter (SEI/4 NW1/4); the Northeast One-Quarter of the Southwest One-Quarter (NE 1/4 S W 1/4); the South One-Half of the Southwest One-Quarter(S1/2 S W 1/4) and the Southeast One-Quarter, lying south of US Highway 20. Excepting Therefrom: that portion conveyed to the State of Oregon, by and through its State Highway Commission, March 13, 1940 in Book 58, Page 381, Deed Records. Also Excepting Therefrom: That property in the above described lands located in the Flood Plain.Zone per Chapter 18.96,Deschutes County Zoning Ordinance. Subject to: All easements, restrictions and right-of-ways of record and those common and apparent on the land. REGISTERED PROFESSIONAL ------bAND SURVEYOR fr �) .� / t / ' rr \_ OREGON JULY 19, 1994 DAVID R. WILLIAMS 2686 J RENEWAL DATE:06/30/16 /C/ - EXHIBIT "C" TO ORDINANCE 2015-021 S:\Land Projects107122044 surface mate\docs\sm parcel.docx :',.:,;:.;,',:.4::'4 I 27+k1.,4•,1°a 4 i'4'� o- ( If' f 1 ( ''I„ •.r. • r I N =wr G i " , ,'f :I t � , "• r' f v•: '1t•1•••• �P •w " 1 r 4• •+ °. • " 19-15-00-00-01001 •W 19-15-00-00-00902 �r I wz 19-15-00-00-01002 ' i Plan Amendment From AG(Agriculture) to v SM (Surface Mining) 8 a .' PROPOSED PLAN AMENDMENT Ur°UNOUCVOReconERS Legend 4-R Equipment, LLC BOakanAliDii,10iir_.....F,O// /y on y Bone,Chai Subject Property Exhibit"D" ` ~ to Ordinance 2015-021 vice chat,Comprehensive Plan Designation --+ _-y,Commis,..y AG -Agriculture 4f'it,.. 0 125 250 500 750 1,000 ATTEST: Roca ing Secretary SM - Surface Mining Feat Gated this da of November,2015 November 5,2075 Effective Date: ,2016 Secti,oin, 5. oa L 51 v Vevitor j M%vtera1, aviol Agsreoate R.esou.rces Background This section contains information from the 1979 Deschutes County Comprehensive Plan as revised. It lists the surface mining resources in Deschutes County. These inventories have been acknowledged by the Department of Land Conservation and Development as complying with Goal 5. No changes have been proposed for the 2010 Comprehensive Plan update. Table 5.8.1 -- Deschutes County Surface Mining Mineral and Aggregate Inventory # Taxlot Name Type Quantity* Quality Access/Location 151010-00- __._� 246 00205, 207, Tewalt S & G 10,000 Good Hwy 20 300, 302, 303 248 151012-00- Cyrus Cinders 30.2 M Excellent Cloverdale Road 00100 15121 I-DO- 251 01400, 151214- Cherry S & G 125,000 Good A0-00800 252 151200-00- Thornburgh Rock 2.5 M Good 04700, 04701 151036-00- Deschutes Harrington Loop 271 00800 County S & G 2 M Mixed Road 151117-00- Deschutes Fryrear 273 00100 County S & G 75,000 Excellent Rd/Redmond- Sisters _ 274 151 117-00- Deschutes S & G Excellent Fryrear Road 00700 County 275 151100-00- Deschutes S & G 175,000 Good Fryrear Landfill 02400 _ County 151011-00- Oregon State ODOT 277 01 100 Hwy S & G 100,000 Specs 151140-A0- 278 00901, 151211- Oreeon S & G 18,000 ODOT g Specs 00100 Crown Pacific Cinders 100,000 Fair 283 171000-00- Crown Pacific Cinders 50,000 Fair 00100 _ 288 171 1 1 1-00- Tumalo S & G 250,000 Good 00700 _Irrigation_ 292 171 1 12-00- RL Coats S & G 326,000 ODOT 00900 Specs 17112-00- _...-.._ 293 00500, 600, RL Coats S & G 3 M ODOT 700, 800 Specs DESCHUTES COUNTY COMPREHENSIVE PLAN-201 1 I CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.I 1 GOAL S ADOPTED ORDINANCES EXHIBIT "E" TO ORDINANCE 2015-021 # Taxlot Name Type Quantity* Quality Access/Location _ 296 171100-00- Crown Pacific Cinders 100,000 Excellent Shevlin 02702 Park/Johnson Rd 297 171123-00- Crown Pacific Cinders 60,000 Johnson 00100 Rd/Tumalo _ 303 171207-00- Cascade Pumice 750,000 Good 00300 Pumice 171207-00- Cascade 303 S & G 10,000 Good _ 00300 Pumice 313 171433-00- Deschutes S & G 100,000 Good 00600 County 171433-00- Deschutes Dodds 313 00600, 120 County Storage Road/Alfalfa 314 171332-00- Deschutes Dirt 150,000 Good 01100 County 31 5 140900-00- Stott Rock 93,454 tons ODOT Highway 20 02100 Specs 316 140900-00- Black Butte S & G 7 M Good 00202 Ranch 140900-00- Willamette 317 01300 Ind Cinders 1.2 M Good 141200-00- Lower 322 01801 Fred Gunzner S & G 1.5 M Mixed Bridge/Terrebonn e 322 01801 Gunzner Diatomite 500,000 Good Bridge/Terrebonn 141200-00- onn e _ 141200-00- �� Lower 324 00702 ODVA S & G 490,000 Good Bridge/Terrebonn e 326 141236-00- US Bank S & G 1.5 M Good 00300, 301 Trust 330 1 41328-00- Larry Davis Cinders 50,000 Good 00702, 703 331 141329-00- EA Moore Cinders 100,000 Good 00100, 103 332 141329-00- RL Coats Cinders 2 M Good Northwest 00102 Way/Terrebonne 141329-00- -- 29- 333 00104 329- Robinson Cinders 2.7 M Good - 335 00890 Erwin Cinders 100,000 Excellent Pershall Way/Redmond 336 141333-00- US Bank Cinders 4.5 M Good Cinder 00400, 500 Trust Butte/Redmond 339 141132-00- Deschutes Dirt 200,000 Fill Goodard 01500 County Loop/Bend 341 161000-00- Young& S & G I M Good 00106 Morgan 2 DESCHUTES COUNTY COMPREHENSIVE PLAN---2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 2LEGISLATIVE HISTORY # Taxlot Name Type Quantity* Quality Access/Location 342 220900-00- Crown Pacific Cinders 200,000 Good 00203 345 161000-00- Crown Pacific Cinders 50,000 Good 01000 346 161000-00- Crown Pacific Cinders 50,000 Good 01000 _ 347 161101-00- Deschutes Dirt 10,000 Good 00300 County 161112-00- Inner Mkt/lnnes 351 0 1401, 1700, Gisler/Russell Cinders 150,000 Good Butte 2000 161136-DO- — 357 00100, 161100- Tumalo Cinders I M Johnson 00-10400, Irrigation Road/Tumalo 10300 161136-DO- 357 00100, 161100- Tumalo S & G 500,000 Good 00-10400, Irrigation 10300 161136-DO- 00100,00100, 161100- Tumalo Pumice 500,000 Good 00-10400, Irrigation 10300 358 161231-DO- Gisler S & G 100,000 ODOT Hwy 20/Tumalo 01100 Specs 361 161222-CO- Oregon State Cinders 700,000 Good 02800 Hwy 161230-00- Oregon State ODOT 366 00000 Hwy $ & G 40,000 Specs 368 161220-00- Bend Twin S & G 570,000 Excellent 00200 Aggregate Bridges/Tumalo 161231-DO- Bend 370 00400 Aggregate Storage Plant Site 181100-00- Oregon State ODOT 379 p 1600 Hwy S & G 500,000 Specs 181125-CO- 381 12600, 181126- Pieratt Bros Cinders 50,000 Good 00-01600 __ 390 181214-00- Deschutes Dirt 2 M Landfill 00500, 100 County 39 I 181221-00- Central OR Cinders 500,000 Good 00200 Pumice 392 181223-00- Rose Rock 10 M Est Mixed 00300 392 181223-00- Rose Dirt 7.5 M Good 00300 DESCHUTES COUNTY COMPREHENSIVE PLAN-201 1 3 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 1 GOAL 5 ADOPTED ORDINANCES # Taxlot Name Type Quantity* Quality Access/Location 393 181225-00- LT Arnold Mkt Rd/SE Cinders 12.5 M Good 01400 Contractors of Bend _ 34 181200-00- Windlinx Cinders 270,000 Coarse Hwy 97/South of 04400, 044II Bend 395 181200-00- Oregon State Cinders 100,000 Good 04300 Hwy 400 181300-00- Eric Coats S & G 2.5 M ODOT 04501, 04502 Specs 404 191400-00- Moon S & G 1.3 M Good 00200 _._ 191400-00- 404 Moon Rock 800,000 - 2 M . Good Hwy 20/East of 00200 Bend 191400-00- Oregon State ODOT 405 00600 Hwy Aggregate 50,000 Specs Spe cs 408 191600-00- RL Coats S & G 3 M Good 01500 201500-00- Deschutes Good/Ex Hwy 20/East of 413 000 01400 County S & G 30, cellent Bend 414 201500-00- Deschutes S & G 30,000 Good/Ex Hwy 20/East of _.... 01500 County cellent Bend 415 201716-00- Deschutes S & G 30,000 Good/Ex Hwy 20/East of 00700 County cellent Bend 416 Y 201716-00- Deschutes S & G 30,000 Good/Ex Hwy 20/East of 00200 County cellent Bend 417 201716-00- Deschutes S & G 30,000 Good/Ex Hwy 20/East of 00900 County cellent Bend 418 201716-00- Deschutes S & G 30,000 Good/Ex Hwy 20/East of 01000 County cellent Bend 419 201716-00- Deschutes S & G 30,000 Good/Ex Hwy 20/East of 01300 County cellent Bend 421 212000-00- RL Coats S & G 500,000 Excellent Hwy 20/Tumalo 00900 21 1 106-CO- __ __ 423 ....... .. .. ..........._.. 423 00700 Ray Rothbard S & G 100,000 Good 21 1 100-00- La Pine Redi- 426 S & G I M Good 00702 Mix _ 427 21 1 100-00- Bill Bagley S & G 40,000 Good 00701 431 221100-00- Russell Cinders/ 12 M/1.2 M Good Finley Butte 00600 Rock 432 221100-00- State of Cinders 160,000 Good 00500 Oregon 433 21 1300-00- La Pine Lump 10 M Excellent 00101 Pumice Pumice _ 441 150903-00- Willamette S & G 11 M Good 00300 Ind 442 150909-00- Willamette S & G 6 M Good 00400 Ind 4 DESCHUTES COUNTY COMPREHENSIVE PLAN-2011 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 2LEGISLATIVE HISTORY # Taxlot Name Type Quantity* Quality Access/Location 443 150917-00- Willamette Rock 1 50,000 Fair 00600 Ind 453 161209, 10-00- Robert ODOT S & G 704,000 00600, 301 Fullhart Specs 459 141131-00- Deschutes Cinders 50,000 Good 05200 County Does not 46 I 141200-1501, Nolan S & G meet 1502, 211,000 ODOT specs 141200-1501, Franklin 461 1502, 1600 Nolan Diatomite 2 M Good 465 141333-00- Oregon State Cinders 100,000 Good 00900 Hwy 466 141333-00- Fred Elliott Cinders 5.5 M Good 00600 - 467 141333-00- Knorr Rock Cinders 5 M Good 00601 Co 469 141131-00- Deschutes Cinders 2 M Fair 00100 County 475 151012-00- Deschutes Cinders 200,000 Good Cloverdale Road 00600 County 482 151300-00- Deschutes Dirt 2 M Good Negus Landfill 00103 County 161230-00- Bend 488 00100, 600, Aggregate S & G 400,000 O©OS Spec 2000, 2100 496 191400-00- Taylor S & G 1.8 M Mixed Hwy 20 00500 19 I 400-00- Oregon State ODOT 498 02200 Hwy S & G 200,000 Specs 191533-00- Oregon State ODOT 499 Hwy H S & G 50,000 SP ecs Y - 191500-00- Oregon State ODOT 500 00099 Hwy S & G 1 30,000 Specs 191500-00- Oregon State ODOT 501 01600 Hwy S & G 50,000 Specs 191600-00- Oregon State ODOT 503 01300 Hwy S & G 200,000 Specs 201600-00- Oregon State ODOT 505 00400 Hwy S & G 275,000 Specs 506 201600-00- Oregon State S & G 36,000 ODOT 00600, 700, 800 Hwy Specs 201700-00- State of ODOT 508 01000 Oregon S & G 100,000 Specs 201801-00- Oregon State ODOT 515 00100 Hwy S & G 100,000 Specs DESCHUTES COUNTY COMPREHENSIVE PLAN-201 1 5 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.1 1 GOAL 5 ADOPTED ORDINANCES # Taxlot Name Type Quantity* Quality Access/Location 211900-00- Oregon State ODOT 522 01000 Hwy S & G 300,000 Specs 212000-00- Oregon State ODOT 524 01900 Hwy S & G 300,000 Specs 528 g S & G 4 .w 2221 I0-00- Oregon State 5,000 ODOT 00600 Hwy Specs 221100-00- Oregon State ODOT 529 00300 Hwy S & G 31,000 Specs • 222100-00- Oregon State ODOT 533 00800 Hwy S & G I M Specs 141035-00- 02000, 2100, 541 2200, 2300, Cyrus Aggregate 528,000 Good Inc Portions of TL 2400, 2500, 1 800/1 900 2600 542 151001-00- Swarens Aggregate 80,000 Good _.. 02700 543 151013-00- Cyrus Aggregate I.I M Good 00100 600 191400-00- Robinson S & G 3.8 M Good Hwy 20/East of 00700 Bend 601 21 1 100-00- La Pine Redi S & G 479,000 DEQ Paulina Lake Road 00700 Mix Specs -- 191500-00-902, 4-R ODOT Highway 1 000, 10001 Equipment Aggregate I 7M Specs 20/Spencer Wells 1 Road Quantit y in cubic yards unless otherwise y therwise noted Source: 1979 Deschutes County Comprehensive Plan as revised 6 DESCHUTES COUNTY COMPREHENSIVE PLAN—201 1 CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12LEGISLATIVE HISTORY REviEwED LEGAL (..; UNSET, For Recording Stamp Only .. .......... . ... .......... DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF''DESCHUTES COUNTY FILE NUMBER: PA-04-82C-04-6 (LUBA 201,0-082, LUBA 2008-189, LUBA 2007-014) APPLICANT: 4-R Equipment, LLC c/o Bryant, Lovlien & Jarvis, P.C. 591 SW Mill View Way Bend, OR 97702 PROPERTY OWNER: 4-R Equipment, LLC P.O. Box 5006 Bend, Oregon 97708. REQUEST: Plan Amendment and Zone Change for 365 acres from Exclusive Farm Use ( .FU-HP/FP/LM/WA)'to Surface Mining (SM). PROPERTY: 57720, 57750 and 57600 Spencer Wells Road, Deschutes County Assessors Tax Map 19-15-00, Tax Lots: 902, 1000, and 1001, Deschutes County, Oregon;; STAFF CONTACT: Paul Biikstad, Senior Planner HEARING DATE November 12, 2014. L SUMMARY,QF gswpw. In this decision, the Board of County Commissioners of Deschutes County, Oregon ('Board")' resolves two issues remanded by the Oregon Land Use Board of Appeals ("`LUBA") through its decision in LUBA 2010-082 concerning the above referenced zone change and plan amendment application, The subject application proposes a zone change and comprehensive plan amendment to re-zone and re-designate approximately 365 acres in the Miflican Valley from. Exclusive Farm Use-Horse Ridge Subzorte ("EFU-HR") to Surface Mining ("SA1"). The Subject Property is also subject to a Flood Plain (°FP'°), Landscape Management ("LM"). and Wildlife Area Combing Zone. The Applicant intends to develop a surface mine for the production of aggregate from basalt deposits on the Subject Property. PA-04-8/ZC-04-6 (LUBA 2010-082, LUBA 2008-189, LUBA 2007-014). Page 1 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY -- DC Document No. 2015-041 EXHIBIT "F" TO ORDINANCE 2015-021 This is the fourth time that this application has come before the Board. The Board first approved the application in December 27, 2006. It was then subject to three separate appeals to and remands from LUBA. The LUBA appeals concerned a host of issues including effects on agriculture, effects on wildlife, sage grouse leks, and cultural resources. In the most recent LUBA appeal,which was filed by adjacent ranchers Keith and Janet. dash, LUBA remanded the Board's third approval of the application and provided the following directive: To summarize, remand is again necessary for (1) the county to expand the impact area to include the Flat Pasture or to identify substantial. evidence in the record that supports its decision to limit the impact area to one-half mile from the proposed mine; and (2) to evaluate any conflicts. with [the Nashs] agricultural operations in the impact area that the county designates, including whether the proposed mine would cause sage grouse to abandon the area and seek winter habitat on [the Nashs] other allotments. (LUBA 2010-082 at p.11-12) As is set out below,the Board once again approves the application on remand. H. APPLICABLE CRITERIA:' The applicable criteria are set out in prior Board decisions, which are incorporated herein by reference. The procedural requirements for a LUBA remand are set out in. DCC Chapter 22,34. HI; PROCEDURAL HISTORY .. As briefly noted above, the subject application has been approved locally three different times through the following written decisions by the Board: (1) Document No. 2006-609 (December 27, 2006), (2) Document No. 2008-536 (October 1, 2008), and (3) Document No. 2010-570 (September 1, 2010). Each decision resulted in an appeal and subsequent remand by LUBA. The BOCC's third decision was appealed to LUBA by the Nashs (LUBA No. 2010-082). LUBA Issued a Final Opinion and Order on February 5, 2011 remanding the County's third approval. On September 25, 2014, the Applicant requested the Planning Division to initiate the remand process and schedule a public hearing. At its November 5, 2014 work session, staff briefed the Board on the application and remand process: The Board then held public hearing on the LUBA remand on November 12, 2014. The Board kept the record open until November 24, 2014 for additional testimony and provided the Applicant until December 1, 2014 to submit final argument. On December 15, 2014, the Board conducted deliberations on the Application. /1/ PA-04-8/ZC-04-6 (LUBA 2010-082, LUBA 2008-189, LUBA 2007-014) Page 2 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY— DC Document No. 2015-041 IV. FINDINGS OF FACT AND CO CLU ION OF LAW SPECIFIC LEGAL ISSUES: CHAPTER 22.34 PROCEEDINGS ON REMAND 22.34020. Hearings Body. The Hearings. Body for a remanded or withdrawn decision shall be the Hearings Body from which the appeal.'to LUBA was taken, except that in voluntary or stipulated remands, the Board may decide that it will hear the case on remand. If the remand is to the Hearings Officer, the Hearings Officers decision may be appealed under DCC Title 22 to.the Board, subject. to the limitations set forth herein. FINDINGS: The remand originated from an appeal of a decision of the Board. Therefore, the Board is the Hearings Body for this remand. 22.34,030. Notice and Hearings Requirements. A. The County shall conduct a hearing on any remanded or withdrawn decision, the scope of which shall be determined in accordance with applicable provisions of DCC 22.34 and state law. Unless state law requires otherwise, only those persons who were parties to the. proceedings before the County shall be entitled to notice and be entitled to participate in any hearing on remand. B. The hearing,procedures shall comply with the minimum requirements of state law and due process for hearings on remand and need comply with the requirements of DCC 22.24 only to the extent that. such procedures are applicable to remand proceedings under state law. C. A final decision shall be made within 90 days of the date the remand order becomes effective. FINDINGS: The hearing on appeal was conducted before the Board in accordance with the applicable provisions of DCC Chapters 22.24 and 22.34 and the requirements of due process and state law although several parties participated in the proceedings on remand. that had not participated in the prior proceedings before the Board. All parties to the proceedings on Applicant's application prior to remand were given adequate notice of, and were allowed to participate in, the remand. A final decision is being made within 90. days of the date the remand order became effective, as extended by Applicant pursuant to ORS 215.435(2)(b). III PA-04-8)7C-04-6 (LUBA 2010-082, LUBA 2008-189, LUBA 2007-014) Page 3 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY— DC Document No. 2015-04 22.34.040. Scope of Proceeding. A. On remand, the Hearings Body shall review those issues that LUBA or the Court of Appeals required to be addressed. In addition, the Board shall have the discretion to reopen the record in instances in which it deems it to be appropriate. FINDINGS. The Board limited its review to only those issues required to resolve the LUBA remand. However, this decision addresses several unrelated or previously resolved issues only to demonstrate that such issues were not within the scope of the remand or, to the extent such '`issues might be construed as within the scope of the remand, to demonstrate that they do not prevent approval of the application on remand. The Board deemed it appropriate to reopen the record to resolve the remand. B. At the Board's discretion, a remanded application for a land use. permit may be modified to address issues involved in the remand or withdrawal to the extent that such modifications would not substantially alter the proposal and would not have ;a significantly greater impact on surrounding neighbors. Any greater modification. would require a new application. FINDINGS: The application has not been modified. The Applicant did address instances in the record that suggested mining activities would only take place from November to February. According to the Applicant, references to this time period were meant to indicate when mining operations are most likely to occur because this is when workers, who are usually employed in construction activities for the remainder of the year, are generally available, The Board considers Applicant's,submission to constitute a mere clarification and not a modification. C. If additional testimony is required to comply with the remand, parties may raise new unresolved issues that relate to new evidence directed toward the issue on remand. Other issues that were resolved by the LUBA appeal or that were not appealed shall be deemed to be waived and may not be reopened. FINDINGS: The Board found that additional testimony was appropriate to address the issues on remand. As identified above, many issues unrelated to the remand or previously resolved were raised by participants in the instant remand proceedings both on their own initiative and in apparent response to the new evidence provided by the Applicant. Such unrelated or previously resolved issues are only addressed in this decision to demonstrate that such issues were not within the scope of the remand or, to the extent such issues might be construed as within the scope of the remand, to demonstrate that they do not prevent approval of the application on remand. /// IPA-04-8/ZC-04.6 (LUBA 2010-082, LUBA 2008-189, LUBA 2007-014). Page 4 DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY DC Document No.2015-041'. FIRS T REMAND ISSUE: LUBA described the first issue on remand as follows [T]he county [must decide] to expand the impact area to include the Flat. Pasture or [] identify substantial evidence in the record that supports its decision to limit the impact area to one-half mile from the proposed mine. (LUBA 2010-082 at p.11-12) Prior LUBA decisions have expressly determined that the half mile impact area need not be expanded on account of sage grouse leks, sage grouse flight paths to lee s, the Walker residence, and un-surveyed archaeological resources.' With the exception of potential conflicts with agriculture beyond the half mile impact area, all other bases to expand the impact area beyond one-half mile have been previously resolved or have been waived. Moreover, as the Board understands LUBA's directive, potential conflicts. with agriculture outside of the impact area are specifically limited to whether or not to expand the impact area based on conflicts with agricultural practices on the Flat Pasture. As discussed herein, the Board finds that there are no potential conflicts with agriculture beyond the impact area that justify an expansion of the impact area to include the entire Flat Pasture, As a preliminary matter, it must be acknowledged that there are two Flat Pastures in the general vicinity of the proposed mine. The Leslie Ranches Coordinated Resource Management Plan is an overarching plan that governs grazing on BLM property in and around the Millican Valley, The plan, governs several ''allotments,'" which are in turn comprised of several pastures. Documentation submitted by the Applicant indicates that one Flat Pasture is located' within the Millican allotment and a second Flat Pasture is located within the Horse Ridge allotment. It appears that the two Flat Pastures have. been conflated at various times throughout the record, particularly with regard to grazing. seasons. The Horse Ridge Flat,Pasture is the only Flat Pasture that shares a common I boundary with the subject property. The Nashes held grazing rights on the Horse Ridge Flat Pasture and were permitted to graze cattle on that property from November 1 to December 153'of each year. The Nashs' grazing rights on the Horse Ridge Flat Pasture have since been conveyed to Stephen Roth, who is subject to the same grazing season. The Board understands the Horse Ridge Flat Pasture as the Fiat Pasture The ODFW letter dated November 24,2014 appears to only address these Issues as the letter makes little to no connections to its concerns and agricultural practices. 2 LUBA specifically rejected attempts to argue that areas outside of the half mile impact area other than the Flat Pasture because such arguments could have been raised in prior proceedings, but were not. (LUBA 2010-082 at p.10) There is prior testimony for Nashs that the BLM curtailed grazing on the Flat Pasture to provide additional winter sage grouse habitat. Mr. Borine has asserted that the Nashs voluntarily adjusted the season of use for the Plat Pasture to allow for logical movements of cattle as they transition between pastures. Whatever the reason for the change. it is apparent from Mr. Roth that he is not concerned that sage grouse will lead to a reduction of grazing rights on the Horse Ridge Flat Pasture. As the current holder of the grazing rights on the Horse Ridge Flat Pasture, and without the.BLM indicating their opinion, we find Mr. Roth's testimony more compelling than conflicting testimony. PA-04-8/ZC-04-6 (LUBA 2010-082, LUBA 2008-189, LUBA 2007-014.' Page 5- DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY—'DC Document No. 2015-041 referenced by LUBA. However, as indicated below, it makes no difference which Flat Pasture is at issue because the Board finds that there are no conflicts with agriculture that justify expanding the impact,.area beyond the one-half mile radius. In prior testimony, the Nashs indicated that noise and other impacts from mining operations would cause cattle to move to more distant locations from the proposed mine thus over-grazing those, areas and resulting in increased costs. The Nashs also previously provided testimony suggesting that noises and other impacts comparable to. those potentially produced by the proposed mine have resulted in livestock either losing weight or impeding normal weight gain thus producing a financial loss or decreased profits. Other participants have also suggested that noise, dust, traffic, and other potential externalities may conflict with agriculture outside of the half-mile area. Neither Keith nor Janet Nash participated in the present remand proceedings, Moreover, the Nashs have since transferred their grazing rights on the Horse Ridge Flat Pasture to Stephen Roth. Mr. 'Roth, a full-time rancher, testified at the November 12, 2014 hearing and also provided prior written testimony. His testimony indicates that he has prior experience grazing cattle in proximity to mining operations including another mine operated by the Applicant. From these experiences, Mr. Roth does not find any. conflicts<between surface mining and agricultural practices and in particular his use of the Horse Ridge Flat Pasture. Further, he has entered into an agreement to graze cattle on buffer property,adjoining the Subject Property owned by the Applicant.4 While the Nashs' prior testimony, and certain other testimony In the record, conflicts. with Mr. Roth's testimony, the. Board finds Mr. Roth credible and that his testimony constitutes substantial evidence. The Board further finds that Mr. Roth's testimony is more compelling than all other conflicting testimony because he is the current holder of Horse Ridge Flat Pasture grazing rights and appears to be the closest agricultural operator on both public and private property to the proposed mine siite.5 As Mr. Roth's testimony indicates there are no conflicts between agricultural operations either in close proximity to the proposed mine or outside of the half mile impact area on either the Horse Ridge Flat Pasture or other lands. Furthermore, the Board has imposed several conditions of approval to mitigate noise, dust, traffic and other impacts such that the. proposed mine should not conflict with agricultural practices beyond the half mile impact Clay and Tammie Walker question whether this testimony is permissible because noise effects on livestock were resolved in prior proceedings. The Board is unaware of when that issue was resolved and the Walkers do not point to anything specific in the record. In any event, Mr. Roth's testimony in regards to noise impacts at close proximity is responsive to the issue of whether the impact area should be expanded. Specifically, if there is no conflict at close proximity, it follows that there is no conflict at greater distances as impacts should decline with distance. There is argument from the Walkers that seems to imply that the BLM Is an agricultural operator, presumably because it owns the land on which agriculture occurs. While arguably so,there is no testimony from the BLM indicating that the proposal conflicts with its agricultural operations; Moreover,to the extent'that future grazing lease holders may be harmed by the proposed mine because it may cause a future reduction in grazing rights,the Board finds that argument too speculative. This theory also conflicts with the testimony of Mr. Roth who, besides from the BLM, is in the best position to evaluate potential consequences to grazing rights in the area as the current lease holder. PA-04-8/ZC-04-6 (LUBA 2010-082, LUBA 2008-189, LUBA 2007-014) Page 6 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY DC Document No. 2015-041 area. Accordingly, the Board finds no justification to expand the impact area on account. of agricultural conflicts. The Board also finds support for its determination not to expand the impact area 'on account of potential conflicts with agriculture in the testimony provided by Roger Borine. Mr. Bovine submitted additional written testimony in the instant proceedings pertaining to grazing practices on the Horse Ridge Flat Pasture and the effects of sound on livestock, The letter submitted by Mr. Borine indicates that certain management techniques are not used on the portion of the Horse Ridge Flat Pasture adjacent to the proposed mine to attract cattle to that location. Rather, techniques such as watering and the feeding of hay occur on the southwestern portion of the Horse Ridge Flat. Pasture, a considerable distance from the proposed mine. Accordingly, impacts from the mine should not cause cattle to over utilize other portions of the Horse Ridge Flat Pasture because existing management techniques already draw cattle away from the mine and the feeding of hay mitigates overgrazing of natural vegetation. Relying on a site-specific sound study previously submitted by the Applicant, Mr. Bovine notes that noise from blasting activities reaches near ambient noise levels at 1,500 feet. Accordingly noise impacts should be negligible outside of the half-mile impact area; Some testimony in the record indicates that colder weather and the geological makeup of the Milllcan Valley will amplify and/or cause noise to carry further than it might in other settings, This testimony lacks the empirical data supplied by the Applicant's noise study and thus the Board finds such testimony less compelling. Accordingly, the Board finds that noise impacts, whether to agriculture or any other uses, resources, structures, or people, do not justify an expansion of the analysis area beyond the one-half mile impact area. The Board notes that noise impacts within the impact area have already been addressed and several conditions of approval have been imposed to mitigate such. impacts. These conditions further support the Board's decision to not;expand the impact area beyond one half mile. SECOND REMAND ISSUE; LUBA described the second remand issue as follows: On remand, the county should consider, in determining whether the proposed mine conflicts with petitioners' agricultural operations, effects of the proposed mine on sage grouse that winter in the impact area and the. possibility that such effects could lead to a reduction in lands available for grazing for petitioners'cattle. (LUBA 2010-082 at p.11). At the outset, the Board finds that only the Nashs or Stephen Roth have standing to address this issue given DCC 22.34.030 and LUBA's specific reference to impacts on the Nashs in its directive to the County. Neither Keith nor Janet Nash participated in the instant proceedings and most other parties testifying on sage grouse had not participated in the prior proceedings, In the alternative, the issue may be moot because the Nashs did not participate in the instant proceedings, the Nashs sold most of their PA-04-8/ZC-04-6 (LUBA 2010-082, LUBA 2008-189, LUBA 2007-014). Page 7 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY— DC Document No. 2015-041 land interests to Stephen Roth (including the disputed Horse Ridge Flat Pasture), there is no evidence in the record that the Nashs still own cattle or run an agricultural operation, and Mr. Roth has expressed support for the proposal. In any event, the Board finds that the proposed mine does not conflict with agricultural. practices, of any kind or location, on, account of the possibility that the proposed mine could cause sage grouse to relocate to areas that create conflicts with agricultural practices. The Board notes that the question posed by LUBA does not concern impacts to leks, migration patterns, other direct impacts on sage grouse, or impacts of relocating sage grouse to agricultural operations other than the Nashs' operation and cattle. Such. issues were resolved in previous appeals or have been waived. This remand question is narrowly focused on whether the proposed mine "conflicts with agricultural practices'` through the mutually intertwined relationship with sage grouse. As LUBA previously noted, this theory rests on several speculative causal links. To deny the application on this theory, the Board would have to find that all of the following are supported by substantial evidence; (1) there are sage grouse in the area at all and specifically wintering sage grouse, (2) mining activities as opposed to other activities would cause the wintering sage grouse to relocate (3) the wintering sage grouse would relocate to. areas used or formerly used by the Nashs for grazing, (4) the wintering sage grouse and the Nashs' cattle grazing could not co-exist if sage grouse relocation occurred, and (5) the conflict between the wintering sage grouse and the Nashs' cattle grazing would create such a conflict that the BLM would (and not simply consider) curtail the availability of grazing lands for the Nashs. There are several pieces of evidence in the record that undermine one or more of the links in this speculative theory. Most notably, the Nashs' sold most of their land. interests to Stephen Roth and Mr. Roth does not see a conflict between sage grouse, whether wintering or otherwise, and his ability to graze on former Nash properties as he. has been able to coexist with the presence of sage grouse at other locations. Second, the Applicant's wildlife study indicated there was no sage grouse activity on the Subject Property, and evidence indicating sage grouse are in the vicinity primarily comes from dated studies. Third, opponents to the mine submitted a study that, if the Board can even consider it, indicates roads are a primary repellant of sage grouse. This suggests that Highway 20, which is 600 feet from the proposed mining area, has already driven sage grouse away and/or could be the actual cause of future relocation. Fourth, Mr. Bonne concludes that supplemental feeding and the short grazing (only for a month and. a half in the early portion of winter) season on the Horse Ridge Flat Pasture would not. present a conflict between sage grouse and grazing cattle because there is sufficient forage. Finally, the f3LM letter only indicates that it would have to consider the mine in evaluating future grazing. There is no indication that reduced grazing,on account of the mine is likely or probable. In summary, it is far too speculative to find that the proposed mine would have the hypothesized effects on agricultural practices. PA-04-8/ZC-04-6 (LUBA 2010-082, LUBA 2008-189, LUBA 2007-014) Page 8 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY— DC Document No. 2015-041 ALL OTHER ISSUES: The Board finds that all other issues raised including, but not limited to new juniper species, eagles, OOFW recommendations on comprehensive plan updates, smoke, roads, smells, the Dry River Canyon, cumulative effects analysis,6 dustlrespiratory. concerns, noise, timing of blasting, heavy equipment travel, adverse effects on humans, direct impacts on sage grouse and leks, vibrations, and antelope are outside the scope of the remand, were raised by persons who had not participated in prior proceedings,. were resolved in prior proceedings, or were waived. To the extent there is a nexus between these issues and the remand issues, the Board finds that these issues have been adequately addressed by conflicting evidence in the record or were sufficiently. mitigated through conditions of approval, PRIOR DECISIONS: The applicable criteria, findings, and conditions of approval contained within all prior decisions concerning this, application, except where they conflict with this decision, are hereby adopted and incorporated herein by reference, V. 1 EpISION;. Based on the findings of feat and conclusions of law set out above, the board concludes that the Applicant has met all applicable approval criteria for the requested zone change and plan amendment, The application is hereby approved. DATED tl>:i:s "day;of January, 2015. MAILED this a:2.day of January; 2015, BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ANTHONY DEBONE, CHAIR UNGER, VICE O AIR. ATTEST', TANlmY TIANEY, 'mkt ISSICNER Recording Secretary THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL None of the participants who cited or requested a'cumulative effects analysis" identified any applicable approval criteria that require such an analysis. PA-04-8/ZC-04-6(LUBA 2010-082, LUBA 2008-189, LUBA 2007-014) Page 9 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY-- DC Document No. 2015-041. feTh Conuviunity Development Department' Pluming Division Building Satoty division lenvironintntal Sails Division �, .� <`� > ,.,x•..r:.4, ����.� •`I':C� Box 117 NW Avenue Bend, Oregon �,�' 7 08-6005. (541)388-6575' FAX((541).385-1714' http://www.cr).deschotes.nr.usicddl CERTIFICATE OF MAILING. FILE NUMBERS: PA-04-8,.ZC-04-6 DOCUMENT/S'MAILED: Board of County Commissioners Notice of Public Hearing MAP/TAX LOT NUMBER: 19-15, 902, 1000, 1001 I certify that on the 29th day of January, 2016, the attached Board of County Commissioner's Notice of Public Hearing, dated January 29, 2015, was mailed by first class mail, postage prepaid,to the persons and addresses set forth on the attached list. Dated this 29th day of January, 2015. COMMUNITY DEVELOPMENT DEPARTMENT By: Sher Buckner Equipment Sharon R. Smith P.O. Box 5006 Bryant, Lovlien & Jarvis Bend, OR 97708 591 SW Mill View Way Bend, OR 97702'` Clay and Tommie Walker Clay and Tammie Walker 26730 Highway 20 East P.O. Box 871124 Bend, OR 97701 Wasilla, AK 99687 Roger Boririe Dennis Griffin, SHPC , State Archeologist 64770 Melinda.Ct. 725 Summer Street NE, Suite C Bend, OR 97701 Salem, OR 97301-1266 Central Oregon Landwatch, c/o•Gail Snyder Paul € en+ey}—-- 50 SW Bond Street, Suite 4 1539 NW Vicksburg Bend, OR 97702 Bend, OR 97701 Stephen Roth' IVlolly M. Brown, Field Manager 41600 Highway 20 Deschutes Resource Area Brothers, OR 97712. Bureau of Land Management. 3050 NE 3rd Street Prineville, OR 97754 Oregon Department of Fish and p Wildlife: Corey Heath 61374 !Farrell Road Bend, OR 97702 Quality Services Per'(orrrrerf with I'ri+te