2018-358-Minutes for Meeting July 18,2018 Recorded 8/31/2018���vY E S COGS
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541 ) 388-6570
9:00 AM
Re,:;orded in Deschutes County CJ2018-358
Nancy Blankenship; County Clerk
Commissloners' Journal 08/31/2018 3:10:05 PM
s-4-6 2018-358
WEDNESDAY, July 18, 2018
FOR RECORDING STAMP ONLY
BARNES & SAWYER ROOMS
Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were
Tom Anderson, County Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive
Assistant. Several citizens and no identified representatives of the media were in attendance.
CALL TO ORDER: Chair DeBone called the meeting to order at 9:04 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT:
Randy Povey invited everyone to attend the Buckaroo Breakfast at the County Fair
Sunday, August 5th.
BOCC BUSINESS MEETING JULY 18, 2018 PAGE 1 OF 8
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda. Commissioner Henderson requested to pull Consent Agenda
Items 12 and 13 for further review and pull Consent Agenda Item 1 for discussion.
HENDERSON: Move approval
BAN EY: Second
VOTE: HENDERSON: Yes
BAN EY: Yes
DEBONE: Chair votes yes. Motion Carried
Consent Agenda Items:
1. Consideration of Board Signature of Resolution No. 2018-034, Fair and Expo
Center Change Fund Increase
2. Consideration of Board Signature of Document No. 2018-506, an Approval of
an Administrative Determination and Site Plan Review for a Church in the
Exclusive Farm Use Zone
3. Consideration f Board Signature on Letter Thanking Lindsey Hopper for
service on the Behavioral Health Advisory Board
4. Consideration of Board Signature of Letter Appointing Trudy Townsend to
the Behavioral Health Advisory Board
5. Consideration of Board Signature on Letter Appointing Leighann Wittenberg
to the Panoramic Access Special Road District
6. Approval of Minutes of the Round III site visit to Fair and Expo on March 21,
2018
7. Approval of Minutes of the Round III site visit to Clerk's Office on June 20,
2018
8. Approval of the Minutes of the Budget Hearing of May 29, 2018
9. Approval of the Minutes of the Budget Hearing of May 30, 2018
10.Approval of the Minutes of the Budget Hearing of May 31, 2018
11.Approval of the Minutes of the Budget Hearing of June 1, 2018
12.Approval of the Minutes of the June 25, 2018 Business Meeting
13.Approval of the Minutes of the June 27, 2018 Business Meeting
BOCC BUSINESS MEETING JULY 18, 2018 PAGE 2 OF 8
ACTION ITEMS
Consent Agenda Item 1 as pulled for discussion: Consideration of Board Signature
of Resolution No. 2018-034, Fair and Expo Center Change Fund Increase
Dan Despotopulos, Fair and Expo Director and Wayne Lowry, Finance Director
explained the purpose of the resolution.
HENDERSON: Move approval
BAN EY: Second
VOTE: HENDERSON: Yes
BAN EY: Yes
DEBONE: Chair votes yes. Motion Carried
14. Consideration of Board Signature of Document No. 2018-241, Brooks
Respite & Recovery Center
DeAnn Carr, Deputy Director Health Services presented this item for
consideration along with representatives of Brooks Respite and Recovery
Center Rick Treleaven and Kelsey Pensinger. Discussion held on the services
provided.
BAN EY: Move approval
HENDERSON: Second
VOTE: BAN EY: Yes
HENDERSON
DEBONE:
Yes
Chair votes yes. Motion Carried
BOCC BUSINESS MEETING JULY 18, 2018 PAGE 3 OF 8
15. Consideration of Board Signature of Document No. 2018-498,
Amendment to Eide Bailly Audit Service Contract
David Givans, Internal Auditor presented this item for consideration. The
Audit Committee recommends the contract extension. Commissioner Baney
inquired on the level of the audit increase of 7.7%. Mr. Givans explained the
reason for the increase.
BAN EY: Move approval
HENDERSON: Second
VOTE: BAN EY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
16. Consideration of Board Signature of Document No. 2018-197, Collective
Bargaining Agreement with WOE 701
Kathleen Hinman, HR Director and Teri Lorenz, Human Resource Analyst
presented this item for consideration.
HENDERSON: Move approval
BAN EY: Second
VOTE: HENDERSON: Yes
BAN EY: Yes
DEBONE: Chair votes yes. Motion Carried
17. Consideration of Board Signature of Document No. 2018-532, Lease
Between Deschutes County and Rimrock Trails Treatment Services
James Lewis, Property Manager presented this item for consideration.
BOCC BUSINESS MEETING JULY 18, 2018 PAGE 4 OF 8
HENDERSON: Move approval
BANEY: Second
VOTE: HENDERSON: Yes
BAN EY: Yes
DEBONE: Chair votes yes. Motion Carried
18. DELIBERATIONS: Continued on the Appeals of the KCDG/Tanager
Applications
Anthony Raguine, Community Development Department presented this item
for consideration. A revised decision matrix was presented.
Regarding the issue of code violation of land use approval, the County has
determined no code violation exists and staff recommends a condition of
approval requiring the applicant to remove the stockpiles prior to final plat
approval. The Board agreed on stockpiles to be defined as on-site usage.
ReRardinR the issue of inconiunction of the irrigation district, Commissioner
Henderson feels it was in conjunction. Commissioner Baney noted with the
timeline it would be hard to dispute they wouldn't have been working
together. Commissioner DeBone commented there was intention of working
together and is reflected in the record and supports the evidence as the
conclusion.
Regarding the ROF site compatibility. Mr. Raguine researched the record for
the intent of the EMA regarding the use of the facility and restrictions by the
wildlife habitat management plan and wildfire mitigation plan. The Board
discussed the proposed development and concern it appears it will become a
resort. Commissioner Baney would like to see a revision to the boundary to
reflect what is being applied for and suggests a condition to the lot line
adjustment. Mr. Raguine noted there would be eight property line
adjustments needed to allow the division.
Discussion held on usage as reflected in the language in the EMA. The Board
considered placing reasonable conditions of approval for compatibility
BOCC BUSINESS MEETING JULY 18, 2018 PAGE 5 OF 8
reasons. Discussion held on the boundary of the EMA. Commissioner
Henderson commented on the concern of impact to the neighbors and
would include properties to the east of the north pond.
The Board was in favor of modifying the EMA boundary to be limited to the
ten planned unit development lots that are shown within the proposed
boundary to include the two Cadwell properties to the north. This will
require a revision of the EMA and any modifications would require approval.
The Board agreed in favor of the size of the boundary 2:1 Baney and DeBone.
The Board agreed in favor unanimously on the revision to the EMA.
Regarding the watercraft allowed, Mr. Raguine inquired on the types of water
craft. The original application materials already have limitations.
Commissioner Baney hopes to lessen impact and provide certainty to
neighbors. Mr. Raguine will add the condition of approval to include other
types of water craft. The Board supports adding the condition. Regarding
the consideration of placing a condition of who can put water craft on the
water was discussed, the Board agreed on no special condition.
Regarding steep slopes, Mr. Raguine had searched the record for comment
from Oregon Department of Fish Wildlife regarding slopes and did not find
any concern on that issue. Both hearing's officers ruled that the slope is too
steep and not compatible. The Board feels the landscape management plan
will assist with compatibility. Regarding slopes as a result of creation of the
lakes. The Board agrees it is a condition of approval with management plans
in place.
Regarding natural physical features compatibility, the Board indicated the
creation of the ponds would be compatible and would be a condition of
approval.
Regarding the surface mining compatibility with existing residential uses, the
Board agreed the creation of the ponds would be compatible and would be a
condition of approval.
Regarding the recreation oriented facility and compatibility with existing
residential areas. Commissioner Baney spoke on the difference between
compatible and desirable. The Board agrees if the landscape management
plans are in place it meets the compatibility. Commissioner Henderson
BOCC BUSINESS MEETING DULY 18, 2018 PAGE 6 OF 8
noted there has been quite a bit of testimony regarding sound concerns and
this not being desirable and would consider limiting the time of hours of
operation. Commissioner DeBone supports a discussion on time of use. The
proposal in the application for hours are 7:00 a.m. to 10:00 p.m. Discussion
on hours to meet compatibility and minimizing potential impacts.
Commissioners DeBone and Henderson agreed with limiting hours of
operation on the ski lake from 8:00 a.m. to 8:00 p.m. Commissioner Baney
supported the hours of 8:00 a.m. to 7:00 p.m.
Regarding planned unit development compatibility with existing residential
uses regarding the westerly road, Mr. Raguine confirmed the westerly road
could be gated to limiting access to emergency vehicles only. Commissioner
Baney spoke on impact and suggested to gate the road for emergency
vehicle access only. Commissioner DeBone supported a gate as a starting
point. Commissioner Henderson does not support a gate.
Regarding legally available water. The Board supported a condition of
approval to secure a water permit. The agreement with the irrigation district
is still in place but has been suspended. The Board agreed on a condition of
approval the applicant has secured a water permit and the agreement with
the irrigation district to add clarity.
Regarding Goal 5 and surface mining, The Board indicated that the surface
mining to create the ponds is not a new use however, should a subsequent
hearings body determine it is a new use the Board also indicate the surface
mining to create the ponds is not a conflicting use. The Board expressed
support.
Regarding adequacy of transportation access to ROF, which is a reduction in
the EMA. The Board expressed support.
Regarding preservation of landscape and topography, the Board express
support to address aesthetic impacts and will add language of within reason.
Both hearing's officers recommended the steep slopes be re-contoured.
Commissioner Baney suggested the landscape management plan will bring
the topography back to what should be compatible and the Board agreed.
Regarding site plan relate harmoniously, the Board supported including
noxious weed management as condition of the landscape management plan.
BOCC BUSINESS MEETING JULY 18, 2018 PAGE 7 OF 8
Regarding the westerly road existence. A two tiered approach will be
considered.
Regardingthecake mine the condition of approval the Board expressed
support.
The Board has made the decisions to approve the application with the
recommended conditions. The written findings can be signed prior to
Monday, August 6. The applicant has agreed to toll the clock until August 6t"
The findings will be drafted as soon as possible for review by the Board.
OTHER ITEMS: None were offered.
m
Being no further items to come before the Board, the meeting was adjourned at 11:42 a, m.
DATED this Day ofall" 2G 18 for the Deschutes County Board of
Commissioners.
ATTEST:
RECORDING SECRETARY
KA)YTA Y E, ISI ER
BOCC BUSINESS MEETING JULY 18, 2018 PAGE 8 OF 8
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
9:00 AM, WEDNESDAY, JULY 18, 2018
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public. To watch it online, visit www.deschutes.org/meetingss. Business Meetings are
usually streamed live online and video recorded.
Pursuant to ORS 992.640, this agenda includes a list of the main topics that are anticipated to be considered or
discussed. This notice does not limit the Board's ability to address other topics.
Meetings are subject to cancellation without notice.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
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. Please complete a sign-up card (provided), and give the card to the
Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to
speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not
being conducted as a part of this meeting will NOT be included in the official record of that hearing.
If you offer or display to the Board any written documents, photographs or other printed matter as part of your
testimony during a public hearing, please be advised that staff is required to retain those documents as part of the
permanent record of that hearing.
CONSENT AGENDA
1. Consideration of Board Signature of Resolution No. 2018-034, Fair and Expo Center
Change Fund Increase
Board of Commissioners Business Meeting Agenda Wednesday, July 18, 2018 Page 1 of 3
2. Consideration of Board Signature of Document No. 2018-506, an Approval of an
Administrative Determination and Site Plan Review for a Church in the Exclusive
Farm Use Zone.
3. Consideration of Board Signature on Letter Thanking Lindsay Hopper for service on
the Behavioral Health Advisory Board
4. Consideration of Board Signature of Letter Appointing Trudy Townsend to the
Behavioral Health Advisory Board
5. Consideration of Board Signature on Letter Appointing Leighann Wittenberg to the
Panoramic Access Special Road District
6. Approval of Minutes of the Round III site visit to Fair and Expo on March 21, 2018
7. Approval of Minutes of the Round III site visit to the Clerk's Office on June 20, 2018
8. Approval of the Minutes of the Budget Hearing of May 29, 2018
9. Approval of the Minutes of the Budget Hearing of May 30, 2018
10.Approval of the Minutes of the Budget Hearing of May 31, 2018
11.Approval of the Minutes of the Budget Hearing of June 1, 2018
12.Approval of Minutes of the June 25, 2018 Business Meeting
13.Approval of Minutes of the June 27, 2018 Business Meeting
ACTION ITEMS
14. Consideration of Board Signature of Document No. 2018-241, Brooks Respite &
Recovery Center - DeAnn Carr, Health Services Deputy Director
15.Consideration of Board Signature of Document No. 2018-498, Amendment to Eide
Bailly Audit Service Contract - David Givans, Internal Auditor
16. Consideration of Board Signature of Document No. 2018-197, Collective Bargaining
Agreement with IUOE - 701 - Kathleen Hinman, Human Resources Director
Board of Commissioners Business Meeting Agenda Wednesday, July 18, 2018 Page 2 of 3
17. Consideration of Board Signature of Document 2018-532, a Lease Between
Deschutes County and Rimrock Trails Treatment Services. -James Lewis, Property
Management
18. DELIBERATIONS: Continued on the Appeals of the KCDG/Tanager Applications.
Anthony Raguine, Senior Planner
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
At any time during the 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; ORS 192.660(2)(b), personnel issues; or other executive session categories.
Executive sessions are closed to the public, however, with few exceptions and under specific guidelines,
are open to the media.
ADJOURN
Deschutes County encourages persons with disabilities to participate in all programs and activities. To
request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.org/meetingcolendar
Meeting dates and times are subject to change. If you have question, please call (541) 388-6572.
Board of Commissioners Business Meeting Agenda Wednesday, July 18, 2018 Page 3 of 3
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of July 18, 2018
DATE: July 13, 2018
FROM: Anthony Raguine, Community Development, 541-617-4739
TITLE OF AGENDA ITEM:
DELIBERATIONS: Continued on the Appeals of the KCDG/Tanager Applications.
RECOMMENDATION & ACTION REQUESTED:
On July 11, 2018, the Board initiated their deliberations on the KCDG/Tanager applications
to allow surface mining in conjunction with an irrigation district; inclusion of the subject
property on the county's Non -Significant Mineral and Aggregate Inventory; allow the
establishment of the recreation -oriented facility; and creation of a 10 -lot subdivision. At
the deliberations, the Board requested additional information from staff to aid their
discussion and consideration of the applications. The deliberations were continued to July
18, 2018.
ATTENDANCE: Anthony Raguine
MEMORANDUM
DATE: July 13, 2018
TO: Board of County Commissioners ("Board")
FROM: Anthony Raguine, Senior Planner
RE: Information Requests; Land Use File Nos. 247 -17 -000627 -CU, 629 -PA, 636 -CU, 637 -TP, 639 -
CU, 640 -SP, and 641 -LM
On July 11, 2018, the Board conducted their deliberations on the subject applications. During the
deliberations, the Board requested additional information for their consideration. Staff addresses the
information requests below.
I. RESIDENTIAL RENTAL
The Board requested information regarding whether the newly created Planned Unit
Development ("PUD") lots could be developed as residential rentals. The applicant addresses
residential rental use on page 2 of their open record submittal dated April 20, 2018 (Exhibit A).
The draft CC&Rs limit rentals to a minimum of 7 days. The applicant argues the 7 -day minimum
is consistent with the position that homes will not be used as vacation rentals. The applicant goes
on to state that if the Board disagrees, the applicant is willing to revise the CC&Rs to impose a 30 -
day minimum.
II. IN CONJUNCTION
The Board requested additional information regarding the relationship between KC Development
Group, LLC ("KCDG") and Tumalo Irrigation District ("TID"). Specifically, the Board requested any
evidence and testimony in the record which could shed light on when KCDG and TID began
communication regarding creation and use of the Ponds as a water impoundment. Staff provides
the following information to the Board for their consideration.
• As part of their open record period submittal dated April 20, 2018, the applicant included
a copy their Irrigation Contract, recorded October 15, 2014, which describes TID's access
to and use of the Ponds for storage (Exhibit B). This Contract amends an earlier Contract
between KCDG and TID that was executed on June 10, 2014.
• Submitted as part of their rebuttal period materials dated April 27, 2018, is a TID letter
dated April 25, 2018 (Exhibit Q. On page 2 of the letter, TID describes contact with KCDG
regarding the Ponds in 2013 and early 2014.
• The appellant's public hearing submittal dated April 12, 2018 includes a transcript of
statements made at a June 10, 2014 TID Board Meeting (Exhibit D). The transcript
references KCDG's contact with TID in November of 2013 regarding District storage of
water in the Ponds.
As staff noted at the deliberations, the Hearings Officer ("HO") in Ski Lake I ruled that the Ponds
were created in conjunction with TID. This decision was affirmed by the Board on appeal and used
subsequently by the Planning Division during its approval of Land Use Compatibility Statement
247 -14 -000238 -PS.
As also noted by staff at the deliberations, the HO in the present applications disagreed with the
prior HO and Board rulings, and found the Ponds were not created in conjunction with TID.
Appellants also argue the Ponds were not created in conjunction with TID.
• Included with the appellant's public hearing submittal dated April 12, 2018 is the deposition
of Ken Rieck, TID Manager (Exhibit E). Pages 38 and 39 include answers from Mr. Reick
regarding TID's lack of involvement in the design and construction of the Ponds, and use
of liners in the Ponds.
III. STEEPNESS OF SLOPES AND OREGON DEPARTMENT OF FISH AND WILDLIFE ("ODFW")
The Board asked if ODFW expressed any concern regarding steep slopes associated with the
Ponds and potential impacts to wildlife. Staff reviewed ODFW's email from Sara Gregory dated
August 17, 2017. No concerns were expressed by ODFW regarding steep slopes.
IV. EASEMENT MANAGEMENT AGREEMENT ("EMA")
The Board indicated a desire to understand the purpose and intent of the EMA. Attached as
Exhibit F to this memo is a map illustrating the boundaries of the Planned Unit Development
("PUD") lots, the boundary of the EMA, and ownership information of each property within the
EMA boundary. Staff reviewed the audio recording of the HO public hearing on October 23, 2017
and provides the following summaries for the Board's consideration.
• At approximately 1 hour and 1 minute, Ken Katzaroff, legal counsel for the applicant, states
the EMA Administrator must agree to allow properties into the EMA.
• At approximately 1 hour and 2 minutes, Katie Anderson, speaking on behalf of the
applicant, states that the EMA allows properties outside of the subdivision to have access
to the recreation -oriented facilities ("ROF") provided that those properties subject
themselves to the same restrictions outlined in the Wildlife Habitat Management Plan and
Wildfire Mitigation Plan.
• At approximately 1 hour and 6 minutes, Mr. Katzaroff states that the properties that were
included in the EMA Boundary are those properties that could access the ROF via internal,
private, PUD roads to reduce impacts to county roads.
Staff's review of the video recording of the Board's April 12, 2018 public hearing did not reveal any
additional information regarding the purpose and intent of the EMA.
V. OTHER WATERCRAFT
The Board asked whether watercraft other than waterski boats would be allowed on the South
Pond. Page 31 of the applicant's Final Argument dated May 17, 2018 addresses use of other
watercraft (Exhibit G). The applicant specifically states that seabreachers and jet skis are
prohibited.
VI. NEXT STEPS
On July 18, 2018, the Board will continue their deliberations and direct staff to draft decisions.
EXHIBITS
A. Residential Rental Minimum
B. Irrigation Contract
C. TID Letter
D. TID Board Meeting Transcript
E. Deposition of Ken Rieck
F. EMA, PUD and Ownership Map
G. Excerpt from Applicant's Final Argument
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Residential Rental Minimum
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TANAGER
I. Preliminary Matters
a. Vacation Rental - Correction
At the Hearing, Ms. Gould stated that the proposed homes in the planned development would be
used as vacation rentals. Applicant's representative, Ken Katzaroff, responded by advising the
Board that the CC&Rs limit rentals to a minimum of 30 -days. Mr. Katzaroff was mistaken. The
current draft of the CC&Rs states that a minimum of 7 -days applies to rentals. A 7 -day minimum
is still consistent with the position that the homes will not be used as vacation rentals. However,
if the Board disagrees, the applicant will revise the CC&Rs to impose a 30 -day minimum.
b. Veracity of Factual and Legal Assertions
Applicants understand that the BOCC reviews each submittal by all parties with intention. We
ask that the BOCC pay particular attention to the veracity of factual and legal assertions by all
parties. Applicants have been fighting an uphill battle to correct factual errors or
misrepresentations in submittals filed on behalf of the Bishops. The Bishops' materials also state
legal and code interpretations as predetermined gospel that are actually novel readings or
completely unsupportable under the law. This has distracted from the applicable law and merits
of the present applications and has made the applications appear far more complicated than they
really are. We will continue to strive to provide accurate factual and legal information to the
BOCC instead of attempting to "pull the wool" over its eyes in an attempt to distract from real
issues.
A few examples of this strategy are as follows:
1. Ms. Bragar asserted, both in her written materials and at the Hearing, that her sound
"expert" Mr. Duble trained our sound expert, Mr. Kerrie Standlee. In reality, Mr. Standlee
worked for Mr. Duble for three months after Mr. Standlee had received his master's
degree in acoustics and had worked for two other firms for a period of three years. Mr.
Standlee then went on to start his own, successful company, which he ran for 40 years.
See Email from Kerrie Standlee, Exhibit A.
So, while there may be a kernel of truth to Ms. Bragar's assertion, it is a gross
exaggeration of the relationship.2
2 During the previous hearings process before Ms. Hicks, we submitted legal briefing explaining why Mr. Duble's
opinion, under Oregon law, cannot be given the weight of expert testimony because he is not a registered engineer.
We will not repeat that here, although its relevance remains.
Page 2 of 11
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EXHIBIT B
Irrigation Contract
A'
Mal WAAL 0 121
IRRIGATION ION CON I ICAC I'
(AMENDED WATER STORAGE EASEMENT AGREEMENT)
This document amends and replaces the Irrigation Contract executed .Tune 10, 2014, and recorded August
27, 2014 as instrument number 2014-28241 in Deschutes County Official Records. The June 10, 2014
Irrigation Contract was executed to allow the filing of the Temporary Water Storage Transfer. The testing
and mapping anticipated in that agreement has been performed and the exact amount of water storage to
be transferred has been determined, This Amendment is for purposes of riling for a Pennarient Water
Storage 'Transfer.
Turnalo Irrigation District, hereinafter referred to as "TID," is an Oregon Irrigation District established
under ORS Chapter 545 Oregon Revised Statutes. KC Development Groula, LLC, hereinafter referred to
as "KCDG" is an Oregon limited liability cornpany and the owner of real property described in "Exhibit
A," attached hereto, and incorporated herein by this reference, Together, they are the "Parties" to this
Irrigation Contract, the "Agreement:."
WHEREAS, TID holds avalid water right pursuant to Oregon Water Resources Department
Certificate Number 76684 ("Certificate") to store 1 100 acre feet of surface water at what is commonly
known as Upper Tumaio Reservoir in Deschutes County, Oregon; and
WI-MRGAS, TID uses said stored water fo' reregulation purposes to adjust water deliveries to its
patrons thr'ougbout its systerrr; and
WHEREAS, TID's current use of the Upper'Tumalo Reservoir precludes use for reregulation to a
significant portion of TtD's delivery system due to location; and
WHEREAS, TlWs current use of the Upper Tunralo Reservoir is challenged by its porous
surfaces which require additional supplement to accommodate seepage:. and
WHEREAS, TID's reliance on Tumalo Creck as a reregulation source hampers its ability to
accommodate fish habitat needs; and
WJAEREAS, I<CDG desires to assist with TID's operational challenges noted above by providing
a new storage location for part of the stored water that is better placed at the head of its system and with a
lined surface to significantly reduce seepage, providing TID the ability to store and reregulate
approximately 125 acre feet of water (tire "Stored Water") currently stored at Upper Trunalo Reservoir,
by transferring said storage to KCDG property described herein in "Exhibit A" ("Subject Property" ); and
Page 1
Exhibit Q
1 of 9
Exhibit D
WHEREAS, TID desires to transfer the Stored Water to the Subject Property owned by KCDG
in exchange for KCDG payment to TID, KCDG grant of easement to TID, and retaining TID's access to
Stored Water for operations and maintenance, including reregulation, of TID's irrigation system;
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
EX c7MMM M9111"
The above provisions are incorporated as if stated herein.
2, KCDG grants to `I'iD an easement for 'I'll) to deliver to, store, and redistribute into TID's canal
approximately 125 acre feet of its certificated water rights in the reservoir ponds ("Reservoir Ponds")
located on the Subject Property described in "Exhibit A,"
3. TID shall also deliver surface irrigation water ("Irrigation Water") to the Subject Property and
surrounding areas, which shall pass through the Reservoir Ponds, but not be included as part of the 125
acre feet. of Stored Water under Certificate Number 76684, or a subsequent certificate number as it may
be assigned by OWRD. The Irrigation Water shall be used for irrigation in accordance with irrigation
rights apps.rrtenant to properties owned by KCDG, and is not the subject of this Agreement.
4. KCDG agrees to pay to TID certain consideration to locate the Stored Water on KCDG's Subject
Property, subject to the Easement referenced herein. Said consideration shall be made by payment of
$50,00 per acre foot of water stored per year, poYnbk� btu click:k or ollicr f0rni ()['payment to 7'ID on or
before March I" of each year, commencing on t ti aj "�r_.P,�3 1� ��_ t. i � �, Ii)r the first year,
and to be paid by March I` in each subsequent YL -M lirr 111c I�allownr nil+t,aln,n tir;r irn. `I he initial charge
of $50.00 per acre foot shall be adjusted annually by the same percentage change made by TID in the total
annual assessment and other- account charges for each acre of land on TID's Certificate and entitled to
irrigation pursuant to ORS 545.484, or by subsequent statute as that may be changed by Oregon's
Legislature in the future. Payment is based on a per acre-foot basis of stored water on the Subject
Property, pursuant to TID's Certificate, Any new certificate that may be issued to TID for stored water by
the Oregon Water Resources Department ("OWRD") shall use the same payment metries. Failure to make
payment following 30 days written notice to KCDG is default under this Agreement.
S. This Agreement does not purport to transfer, convey, or sell any additional water storage rights to
KCDG. The Stored Water shall remain the property of TID and be held, distributed, and used. in
accordance with TID's current Certificate. If TID chooses, it may apply for changes to certificated storage
rights, such as a permarnenttransfer of the storage location and submit same to OWRD for a new
certificate for the Stored Water. The new certificate shall be the property of TID, and shall be subject to
this Agreement.
b. The obligations represented in this Agreement are binding on the parties from date of execution,
pending OWRD's final approval of the transfers referenced herein or as may be subsequently deemed
necessary to effect the stated intent of the Parties contained in this Agreement Upon OWRD Final
approval of said transfers, this Agreement shall be perpetual, unless and until such time as both Parties
agree in writing to terminate this Agreement. At any time, this Agreement shall be terminated if
performance is impossible due to factors beyond the control of the Parties,
7, KCDG shall pay all filing fees, engineering fees, and reimburse "TID for reasonable legal fees
expended, staff time expended by TlD personnel, and any other costs or fees incurred by TID for the
purpose of making the subject transfer or attempted transfer of storage right location to the Reservoir
Ponds, Reimbursement to TID shall be made within 30 days of submission of the bill by TID to KCDG.
Failure to male payment within 30 days of written notice is a default by KCDG under this Agreement, In
Page 2
Exhibit D
2of9
Exhibit D
the event OWRD does not approve said transfer, KCDG shall not be entitled to any refund of fees or costs
paid to TID.
8, Upon execution of tlhis Agreement and (hereafter, and subject to and following approval of the
transfers described herein, KCDG's grant to 'I'M of said perpetual, Non-BXCILISive Basement across the
Subject Property and the Reservoir Ponds is for the purpose ol' delivering the water to the Reservoir
Ponds as well as storing said water and redistributing it back into the TID canal for reregula.tion purposes
or other purposes as TID sees tit, with TID retaining sole authority over operations and maintenance to]-
said
orsaid water delivery, storage, and redistribution.
KCDG agrees to maintain the Reservoir Ponds in acceptable condition to receive, store, and
redistribute the -,vater subject to TID's storage right. Maintenance of the Reservoir Ponds, water
conveyance lines, and any other construction necessary to accomplish the intent of this Agreement on the
Subject Property are to be borne by KCDG. Any repairs, adjustments or other construction deemed
necessary by TID to comply with this agreement on the Subject Properly shall be performed by KCDG, or
at KCDG's expense.
KCDG agrees to allow TID to deliver, store, and redistribute the Stored Water at all times,
including during irrigation off-season ('October 15 -April 15). This includes allowing TID to perform stock
runs in the off-season using the Stored Water if TID deems such redistribution to be appropriate, in
accordance with TID's authority over its certificate water rights.
TI,D is aware and understands that the liners used to seal the new Reservoir Ponds should not be
exposed. to open air for long periods of time. As such, TID will make a reasonable effort to replace water
used by TID as soon as possible during the irrigation season, providing that the water is available.
9. In the eventKCDG fails to perforin or is otherwise in default under this Agreement, upon 30 days
written notice from TID or such longer period as it is reasonably necessary to perform, TID shall be
entitled to cure at KCDG's expense or to apply to OWRD to transfer its storage rights from the Reservoir
Ponds to any other location of its choosing. KCDG hereby appoints TID its Attorney in Fact to
consummate any said transfer.
10. KCDG shall cooperate fully with any acts TID requires to effectuate OWRD approval of the
transfer of stored water right contemplated herein. TID has filed a District temporary transfer under ORS
540.570, and shall follow same with a District permanent transfer to OWRD to effect permanent transfer
of the subject water rights under TID's certificate. In order to qualify for a permanent transfer, the
following tests must be performed successfully;
A. hill the ponds from the'I'1D canal Nvith approximately 125 acre feet of water, and hold same
in the Reservoir Ponds with reduced seepage and evaporation, compared to the Upper
Tumalo Reservoir.
Q. Pull water from the Reservoir Ponds and deliver into the TID canal for reregulation.
In addition, OWRD must: make final approval of the KCDG transfer of surface irrigation water
rights currently appurtenant to the Subject Property area of the Reservoir Ponds, and approve transfer of
the rights to another irrigable area.
11. TID and KCDG shall make best efforts to complete the above referenced transfer processes and
obtain final OWRD approval.
P rr' C 3
Exhibit D
3 of 9
Exhibit D
If TID makes said water available and KCDG fails to store the acre feet of water authorized for
storage pursuant to the new storage water right certificate granted by OWRD for a period of five
irrigation seasons, or fiiis to beneficially apply water to land with the water rights to be serviced by said
Reservoir Ponds for a period of 5 years, or tails to maintain the. Reservoir Ponds in a proper, safe
rendition, complying with all applicable federal, State and Loenl Laws, Rules and Ordinances, or to
comply with the By -taws, Rules, Regulations or other requirements of I'TD, then TID may proceed
under ORS Chapter 544 to have the water storage right removed to another location.
12. This Agreement is binding upon the Parties, their heirs, successors, and devisees,
13, The Parties understand that the law firm of Carl W. Hopp Jr., Attorney at Law, LLC, has served
as legal counsel to TnmalO Irrigation District in the negotiation of the teams of this Agreement, and does
not represent KCDG in connection with this Agreement.
14. The rule of construction that a written instrument is construed against the party preparing or
drafting such written instrument.shall c:
all specifi-ally not Lie applicable to the interpretation of this
Agreement, and any documents executed and delivered pursuant to, or in connection with this Agreement.
If any arbitration, mediation, or other proceeding is brought in lieu of litigation, or if suit or action
is instituted to enforce or interpret any of the terms of this Agreement, or if suit or action is instituted in a
Bankruptcy Court for a United States District Court to en Force or interpret any of the terms of this
Contract, to seek relief from an automatic stay, to obtain adequate protection, or to otherwise assert the
interest of Parties in a bankruptcy proceeding, tine party not prevailing shall pay the prevailing party's
costs and disbursements, the fees and expenses or expert witnesses in determining reasonable attorney
Fees, pursuant to ORCP 68, the actual cost of a litigation or foreclosure report, and such sum as the court
may determine to be reasonable for the prevailing party's attorney fees connected with the trial and any
appeal and by petition for review thereof.
15, KCDG shall indemnify, defend, and hold harmless TID and its directors, officers, employees,
agents and contractors for, from and against any and all losses, claims, actions, damages, liabilities,
penalties, fines or expense, of whatsoever nature, arising from, related to, or in any way connected to this
,agreement, including, without limitation, reasonable attorneys' fees and costs ori account of mechanics'
lien claims, injury to persons, the death of any person, or damages to property arising from the use of the
Subject Property, the Reservoir Ponds, or a.d,joining areas, or from any activities contemplated by this
Agreement, in each case undertaken by KCDG or any other person claiming by, through, or under
KCDG. In the event of litigation or proceedings brought against TID arising out of or in any way
connected with any of the above events or claims, against which KCDG agrees to defend TID, KDCG
will, on notice from TID, vigorously resist and defend such actions or proceedings in consultation with
TID through legal counsel reasonably satisfactory to TIL), The indemnity set forth in this parapraph shall
be effective without regard to compliance or non-compliance with this Agreement by KCDG or TID.
16. TID may use the Stored Water in the Reservoir Ponds as an integral part of the operations and
maintenance of its irrigation system. In addition to usual operations and maintenance.; TID reserves the
right, in the event of need or emergencies, to pump out the Stored Water in the Reservoir Ponds on
KCDG's Subject Prnperly for use by TID or other emergency service providers for so long as the need or
other emergency remains in effect.
17. TID makes no representation that storage water will be available. Pees tinder this Agreement are
due to TID whether or not water is available. TID is not liable far any loss, damage, or claim which may
be made for failure to supply storage water or the withdrawal of storage water.
I' Ligc 4
Exhibit D
4of9
Exhibit D
l 8. KCDG and its successors shall require the purchasers/lessees at the time of purchase or lease of
adjacent lots which are encumbered by this Water Storage Easement and detailed in Exhibit A to sign and
record a document acknowledging that the purchaser/lessee has read and accepted this Agreement, and
agrees as a successor in interest to be so bound by the responsibilities contained herein.
19. Parties; by signing below, represent and warrant they each have requisite authority to sign on
behalf of the entities so bound.
TUMALO IRRIGATION DISTRICT
%1
� ' I
BY
Kenneth B. K ieck.
Dated:
STATE OF OREGON
ss.
County of Deschutes
KC DEVELOPMENT GROUP, LLC
j t ie Cad weII N naV,irng Member
Dated:
This instrument was acknowledged before me on October ;' f , 2014 by Kenneth B. Rieck as Manager
and Secretary to the Board of Tumalo Irrigation District.
r _ E SJ-�t i p
STATE OF OREGON
ss.
County of Deschutes
NOTARY PUBLIC FOR ORI a ON
This instrument was acknowledged before the on October 2014 by Eric Cadwell, as Managing
Member of KC Development Group, LLC.
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Irrigation Contract 1010 14 (Permanent Transfer).docx
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BLANK PAGE
EXHIBIT C
TO D Letter
� 1 � t
TUMALO IRRIGATION DISTRICT
April 25, 2018
Deschutes County Board of Commissioners
117 NW Lafayette Avenue
Bend, Oregon 97708-6005
Re: Appeals of Hearings Officer's Decisions on File Numbers: 247 -17 -000627 -CU, -
629 -PA, -636-CU, 637 -TP, -639-CU, -640-SP, and -641-LM
Dear Chair DeBone and Commissioners:
I am the Manager and Board Secretary for Tumalo Irrigation District ("TID"). TID is
governed by a five -person volunteer board representing five geographic divisions in the district.
For nearly 120 years, TID has been the steward of critical water resources in Deschutes County. It
holds certificated water rights—including rights to live flows and storage water—in a trust
relationship with its patrons and delivers available water proportionately to patrons (district
members) who have water rights within the district's boundaries. TID serves 667 accounts,
manages more than 80 miles of piped and open canals, and provides irrigation water for more
than 8,100 acres of hay, alfalfa, garlic, lavender and other crops. TID also provides irrigation
water for pasture and provides stock water to livestock owners throughout the year. In total, TID
delivers water for irrigation and stock to an area approximately 60 square miles in size.
A portion of TID's water rights are from Tumalo Creek; others are from the Deschutes
River. One of its Tumalo Creek water rights authorizes TID to fill the Upper Tumalo Reservoir
with storage water for multiple use (Certificate 76684). TID utilizes the Upper Tumalo Reservoir
to store water that is then released during the irrigation season to make up for otherwise short
water supplies during the summer. This storage right also allows TID to make an attempt to
manage for the fairly significant flow fluctuations in Tumalo Creek during the summer by
releasing more water during low flows. However, TID's efforts along these lines are hampered by
the fact that the Upper Tumalo Reservoir is at the end of its main canal system, which makes it
difficult to quickly respond to the significant flow fluctuations. Tumalo Reservoir also suffers
from significant water seepage, meaning that it does not retain all of the water intended for
storage and the benefit of TID's patrons.
As it looks ahead and looks for ways it can continue to serve its patrons and the local
community, TID has dedicated itself to improving water flows in the Deschutes River, Tumalo
Creek, and Crescent Creek; restoring and protecting native habitat; ensuring reliable water
supply for agriculture and recreation; and supplying glacial cold water to cool the warming
Deschutes River. Toward this end, TID is actively pursuing ways in which to improve its storage of
water for the benefit of its patrons.
{0052 5078-00943913;1 }
64697 Cook Ave, Bend Oregon 97701- Phone 541-382-3053 - Email Staff@tumalo.org
0 0 A 2
0 1 :rAA
A WMAI IlL - m
EXHIBIT D
Transcript of TO Board Meeting
�WMILI � 1
TID is also working to improve the efficiency of its delivery system and water use so that
it can better serve its patrons' needs while balancing other resource demands in the Deschutes
Basin. As a part of this effort, TID is working to pipe its district canals so as to improve the
efficiency of its delivery system and water use. As it pipes the district's canals, TID needs "re -
regulation" ponds/facilities that allow it to regulate pressure in the piped system and to deliver a
steady flow of water to its patrons.
KC Development Group LLC ("KCDG") are landowners and water right holders within the
district boundaries and are entitled to receive irrigation and stock water deliveries from TID. (The
members of KCDG are Eric Cadwell and Harris Kimble.) KCDG was and is in the process of
developing a rural -residential neighborhood, called Tanager, located near Tumalo, Oregon. As
part of the Tanager development, KCDG built two lined ponds on its property for recreational
use and to replace the leaky, antiquated irrigation system that was located on the properties.
The ponds were referred to as the North Pond and the South Pond. In 2013 and early 2014, TID
began working with KCDG to determine if TID could also utilize these lined ponds for storage of a
portion of its water that has been stored in the Upper Tumalo Reservoir as a means to re -
regulate its irrigation system and improve water efficiency throughout its delivery system. From
its perspective, the North and South Ponds would provide a better location from which to serve
its patrons for re -regulation purposes and balancing out flow fluctuations in Tumalo Creek, and
because they are lined, the ponds would do a better job of holding stored water than the Upper
Tumalo Reservoir.
In June 2014, TID entered into an agreement with KCDG to solidify its public-private
partnership. Under the agreement, TID would store water in the ponds for storage and
reregulation purposes, and KCDG would pay TID on a per acre-foot of water stored basis and
have two ponds that it could use for recreational purposes and to more efficiently convey its
irrigation water. Under the terms of this agreement, TID would transfer the place of use of a
portion of the water stored under Certificate 76684 in the Upper Tumalo Reservoir to the South
and North Ponds.
In 2014, after TID had arrived at an agreement and obtained the Department's input
about how to proceed with the in -district transfer of storage water rights, KGDG began
transforming a portion of its property, previously the site of a mining operation, into the lined
North Pond and South Ponds.
In 2014, and after the ponds were fully constructed and filled with water, the Property
Owners used the South and North Ponds as the conveyance system for the irrigation water
delivered to the property. The old leaky irrigation ditch used to transport water to the property
was removed by KCDG when it installed the South Pond. Under the new system, TID delivered
the irrigation water to the south end of the South'Pond (the same approximate delivery point
that was used with the leaky ditch conveyance system). TID also used the ponds as a re -
regulation reservoir. Even incomplete, the ability to stop irrigation flows to the ponds would
(00525078-00943913;1} 2
0 " I M VAA'l C-1
MA WAA3 L
EXHIBIT E
Deposition of Ken Rieck
WMAII VAA
Page 381
1 is this the North Pond?
2 A. That's the way it's labeled.
3 Q. Okay. And on this Bates numbered 1868.paget,
4 on the bottom of the North Pond, it says,, "Outfall IE
5 10 -inch." What does that me -an?
6 A. Are you asking me?
7 0. Yeah.
8 A. Oh. one would assume it means 10-indh pipe
9 outflows from the other pond.
10 Q. So is that the outflow from the North Pond?
11 A. No, that would be the South Pond,
12 0, That's where the water is coming into the
13 North Pond?
14 A. Yeah. it would be the inflow to the North
15 Pond.
16 Okay. The water that's currently in the North
Pond, whose water .s it?
That's a good question. I'm [lot Sure.
19 Was TID consulted about the, construction
design of the ponds?
No.
22 Q. Did you approve the construction design of Lbe
23 ponds?
24 A. No.
Cf you were tryii-)q to ritaximize storage, is
Exhibit 14
10 Of 19
Page 39
1 thi,-, the design you would have chosen?
2 Probably not.
Q. Was TID consulted about the plastic liners for
4 the ponds?
5 No.
6 Q. And did you approve of the liners used?
No. We didn't disapprove either.
8 Q. Have any animals beeh injured in the ponds,
9 that you're aware of?
10 A. Not that I'm aware of, no.
11 Q. Earlier you said that the irrigators out of
12 the North Pond were -- it's Eric and Brianna Cadwell,
13 Harris Kimble imble and K -CDG.
14 A. Yes.
1.5 Yes?
16 And those are the only ones?
17 A. yes, at this point.
18 Q. Is anybody irrigating out of the South. Pond?
19 A. Yes.
20 Q. Who?
21 A. I don't know. it's Cadwells or KCDG or Harris
22 Kimble. I don't know exactly whose property it was on.
23 1 would have to look at a list of the names of
24 properties.
25 Q. Okay. It doesn't show on here an irrigation
Exhibit 14
11 Of 19
EXHIBIT F
EMA, PUD and Ownership Map
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EXHIBIT G
Excerpt from Applicant's Final Argument
A WMAII I
TANAGER
i. Sound impacts are well measured and meet the applicable criteria
Applicant Tanager has submitted the only expert testimony from a licensed professional engineer
in the State of Oregon regarding the potential sound impacts of the ROF. Applicant's Sound
Study, Exhibit FF to the PUD and ROF application, examines all of the types of motorized
watercraft will be allowed to operate on the South Pond. Of note, the Sound Study was
performed on days when neither of the adiacent surface mines where operating and over a period
of four separate days at different times of the day. The findings of the study are beyond reproach
and show that motorized boating activity has less of a sound impact than passing cars, airplanes,
wildlife, and wind. Essentially, there will be no sound impact to adjacent properties.
It is interesting, that when questioned about the verifiable and quantifiable data presented in the
Sound Study at the Hearing, Ms. Bragar's response was to argue that the Study should never
have been allowed. She cites no authority for that position, only attempting to again shift the
issue from the merits of the study and the data that disproves her argument.
In response to these findings, Bishops submitted testimony from Al Duble. Mr. Duble is not a
registered professional engineer. 27 As a result, his testimony should only be accepted as that of a
lay person. At the Hearing, Ms. Bragar argued that Mr. Duble trained Kerrie Standlee, P.E., the
professional engineer who conduct the Applicants' sound study. We've submitted evidence from
Mr. Standlee that rebuts this claim.
Furthermore, Mr. Duble's evidence is off the mark. Mr. Duble's first letter addresses the impacts
of activities that are not proposed at the Subject Property. It does not address the professional
Sound Study or the uses proposed by the applicants. For example, Mr. Duble ponders the sound
levels of "Seabreachers" and jet skis — equipment the applicant has proposed to prohibit.
Additionally, the applicant will only allow quiet boats that have specific muffling and/or engine
technology as outlined in our proposed restrictions. All permitted types of boats were tested as
part of the Sound Study.
Bishops submit a second letter from Mr. Duble at the Hearing. Again, the letter does not address
the findings in the Sound Study. It only addresses comments made by a Mr. Wilkinson.
Opponents argue that the decibel levels of boats or the frequency and hertz (Hz) levels will
disturb neighbors. However, they never address the fact that the Sound Study, which provides
the both decibel and Hz readings from proposed activities, are far less than the levels they assert.
Simply put, the Sound Study proves that sound impacts will be negligible, at worst, and in all
instances less than the typical ambient noise level.
27 In their rebuttal before the hearings officer, Bishops contend that Mr. Duble may be the only other available
person who has information regarding noise testing. That proposition is clearly wrong considering noise engineering
is part of the permitting process for many projects, from roads to rock crushing. Further, in the TU -14-8 approval, a
different noise engineer is identified, Mr. Elki Lahav, P.E. with A Acoustics.
Page 31 of 42
Decision Matrix
Issue
Application(s)
Description
Staff Comments
Discussion and Decision Points
Surface
Mining ("SM/"),
Opponents claim the applicant is in violation of
The county has previously determined
Plan
land use approval TU -14-8, which required
that no code violation exists on the
Amendment
stockpiled material to be removed.
subject property.
2. TU -14-8 Code
("PA"),
Board found no violation and discussed a condition of approval to ensure
Violation
Recreation-
Applicant responds that the stockpiled excavated
Staff recommends a condition of
the stockpiles would be removed.
Oriented
and crushed material awaits approval of the
approval requiring the applicant to
Facility ("ROF"),
associated subdivision application for use in road
remove the stockpiles prior to Final Plat
and Tentative
creation and landscaping.
Approval.
Plan ("TP")
Board requested additional information regarding when KCDG and TID
began communicating about the Ponds:
• The record includes an Irrigation Contract between KCDG and TID. This
Contract amends an earlier Contract between KCDG and TID that was
The Hearings Officer ("HO") in Ski Lake I
executed on dune 10, 2014.
found the surface mining was in
. The record includes a letter from TID which describes contact with
Opponents argue the surface mining was not in
conjunction with an irrigation district.
KCDG regarding the Ponds in 2013 and early 2014.
conjunction with an irrigation district.
6. In Conjunction
The HO in the present applications
. The record includes a transcript of a TID Board meeting which references
with an
SM/PA
Applicant argues that only certain provisions of the
found the surface mining was not in
KCDG's contact with TID in November of 2013 regarding District storage
Irrigation
irrigation contract were suspended in 2016, and
conjunction with an irrigation district,
of water in the Ponds.
District
that the contract has existed since Ski Lake I. The
siting the lack of an existing agreement
applicant states it is currently burdened with
between the applicant and Tumalo
. The record includes a deposition from TID's Manager which references
liabilities under the contract.
Irrigation District ('TID") and the fact
TID's lack of involvement in the design and construction of the Ponds.
that the work was initiated prior to
TID's involvement.
Was the on-site surface mining done in conjunction with an irrigation
district?
1. If yes, then the Board can continue reviewing the applications.
2. If no, then the Board must deny the Surface Mining CUP.
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-sadols
a spuauauaoDaa �}els 'panoadde jI
e ap!noad HIM spuod aqj an3ae sluauodoad
daals Su!pae2aa uaaDuoD Aue aIeD!pu! fou p!p L60Z'L� IsnSnb palep
'�Cileuo!l!ppb spuod aqj u! aaleMjo �!I!gel!ene
aallal IuawwOD („M3(i0„) aj!lpl!M pue qs!3 jo juawl iedaa uo2aaO aqj •
•sinoq
aqj of anp lied u! 'Aliado.id aqj asn of sanUIJUOD
2u!leaado paID!aIsaa pue '(Ilosdol
aj!lpl!M jeqj) j!jsaj sjuauodOad •spuod aql
•puod glnoS aql
@I!s--.o off. pa!}!poua) veld adeDspue-I
u! aa�eM jo �C�!l!gel!ene aqj o� anp lied u! '�aadoad
uo jeoq a!agj Ind ueD oqM uo uO!jej!uall Cue ajeDIpu! IOU saop paODaa aq1. •
'dWHM aql pm a:)ue!ldWOD of 1:)afgns
aql asn of sanuIJUOD Dj!lpl!M jegj f.!lsal sluauodOad
al!s aqj ql!m alq!leduaoD aq pinoD
suaaDuoD s,M3ap passaappe veld uo1Ie2?1I!W
pa�!q!goad
aae SINS Jif pUe saa Deaa eas salels juawn2?ab 1eu13 s,lue:)!Iddb •
Jou aqj punol suolleD!ldde juasaad
a l u! OH a I'CIIeuOII!ppb 'suaaDuo:)
jej!geH aj!Ipl!M s,aluaM as 'ClleuoljIppb uoseas
s,M3d0 Jo gDea ssaappe 01 lenoadde
a2uea aalu!M aaap aqj gu!anp f,3�u!�eoq
Jou!ni��e
Al!I!q!leduaoD
bW3 aqIJo lualu! pue
Jo suolJ!puoD 2u!pnlDu! papuauauao�aa
paz!aolow I!q!goad II!M JOU aqj 10 s�!Is!aaIDeaegD
al!S -IOU 8
asodind aqj 5u! ae8a.i uolleLUJO u! eUOII! a Cue eanaa IOU I SUIjea
q p � I pp I PIP q
OH aq�.'suo!�e�Ildde �uasaad aq�. uI
�u!�eaado aqj �eq� sa�ou �ue�!Idde aql
D!Ignd 8 Loz'z L I!adb s,paeOg agl1O .�ulpaOaa oap!n aql jo Ma!naa s,4elS .
•aI!s aqj q�IM alq!jeduaoD
•sainseaw uo!le2Il!w jo aagwnu
•speo.i AiunOD 01 SIDeduai ampaa of speoi and 'ajeniad 'leuialu! e!n 3Ou
IOU s! 'sadols daals pue az!s a2ael a!aql
e papuau.auaoDaa pue suaa:)uoD ael!ua!s passaadxa
aqj ssa»e pinoD jegj sa!laadoad asogj aae AGepuno8 bW3 N1 ul papnlpu!
uan!2?'spuOd aql JO uBlsap aqI INN
MdaO 'a2?uea aaIUIM aaap 01 sjDedua! Al!elDadsa
aaam legl sap iado.id aqj jeqj salels j.o.iezle>l •aW 12?uiaeaq OH aql Ib •
puno} suOljeDlldde juasaid aqj uI OH
'ajIIpIIM 01 sIDedwi leilualod 2?ulaap!suO al!s
aql pue I @ lei !SIS u! OH aq I •SulaalulM
aqj ol algelIns fou aae 3OU 3L41JO sD!Is!aaI:)eaeq:)
•ueld uol1e�!1!W aa!�.pi!M pue ueld �.uauaa�eueW jej!geH ajIIPI!M
aaap pue Su!�eoq uaaMlaq sl�!ljuo�
�u!�eaado aqj ansae osle s�uauoddp ma!naa asn
aqj ul paulllno suol� ulsai Z)LUes aql 01 sanlasuaagI IDafgns sallaado.id
Cue saleuivaila uoseas aaau!M aaap agl
n
puel aaq�an�. �noq�!M 3Od aqj jo a�esn aseaa�u! ue�
puelueD
asogj legl pap!no.id 3O� aqj 01 ssa»e aneq 01 uOls!nlpgns aqj jo ap!slno
2u!anp Su!leoq paz!aolow �ull!q!goad
dde a �uanbasuo 'bW3 aq1 sa!�aadoad
I q I
sailiado.id smolle bW3 aqI legl salels uosaapub @IIe�l 'Suueaq OH aqI Ib .
legl punol I @ lei !SIS u! OH Ni
n U
}o aaqu�nu umou�lun ue ppe o� �ue�!Idde aqj
Molle (,,bW3„) luauaaaa2?b luaWa2eueW luauaase3
'bW3 aqj olu! sallaadoid Molle ol aaa2?e
aqj jo swim aqj an2ae sluauoddO •o TUU of
Isnua aoleals!u!wpb bW3 aql salels JJOAezle>i uaN '�ulaeaq OH aq� �b
AS uaoa} pauozai sem fiaiado.id aqj aaije al!s aqj jo
uo!jeja.2anaa pue uo!jeuaelDa.a aqj 2u!aap!suo:) JOU
:sadols daajs.2u!pae2aa uaa:)uo:)
aqj of alq!jedUJOD IOU s! ai!s aqi mels sluauoddO
/Cue paIeD!pu! M3QO aaglagm pue :spuod glnoS aqj uo jeoq a!agj Ind
ueD oqm :puod glnoS aqj uo pamolle aq pinom 1jea:)aalem aaglo iaglagm
:bW3 aql JO lua u! aq1 Bu!pae2aa uollewjoju! Ieuo!l!ppe palsanba.i paeog
slu'.od uolsl)aa pue uoissmsla
sJuawwo:) "els
uoijdp:)soa
(s)uoije:)ijddd
anssl
Issue
Application(s)
Description
Staff Comments
Discussion and Decision Points
Opponents argue the Ponds removed vegetation
associated with the prior reclamation of the
surface mines. Further opponents argue the
Ponds' unnatural size and shape is not compatible
The HO in Ski Lake I and the HO in the
with the site.
present applications found the
landscape and vegetation was so
The applicant argues the South Pond slopes meet
altered by the Ponds that the Ponds
Department of Geology and Mineral Industries
are not suitable to the natural and
("DOGAMI") standards and that steep slopes
physical features of the site. If
9. Natural and
associated with Tumalo Creek already exist. The
approved, the HO in the present
Board indicated the creation of the Ponds would be compatible with the
Physical
SM/ROF
applicant states the area of topsoil removal on-site
applications recommended including
natural and physical features of the property subject to compliance with the
Features
will be re -seeded with a native mix that will be
conditions of approval requiring: 1)
Landscape Plan and the Wildlife Habitat Management Plan.
Compatibility
maintained for wildlife habitat. Therefore, topsoil
Compliance with the WHMP; 2) Re -
need not be sourced from off-site.
contouring the steepest slopes of the
South Pond; 3) Topsoil used for
Proponents testify that wildlife continues to use the
revegetation to come from off-site; and
property, in part due to the availability of water in
4) Compliance with ODFW's
the Ponds. Additionally, proponents argue the
recommendations.
Ponds will provide a beautiful amenity to the site,
particularly in contrast to the previous surface
mining pits.
Opponents argue the size and shape of the Ponds
are not compatible with rural residential uses.
Opponents expressed concerns regarding public
safety because the Ponds are not secured from
In Ski Lake I, the HO found size and
public access.
appearance of the South Pond is not
10.Surface Mining
The applicant states the county already includes
compatible to rural residential uses.
Compatibility
large and unusually shaped water bodies. Steeper
The HO in the present applications
Board indicated the surface mining to create the Ponds was as compatible
with Existing
SM
slopes associated with Tumalo creek already exist
adhered to these findings.
as the previous surface mine. Board indicated the creation of the Ponds
Residential
in the area. The property was once the site of a
would be compatible with existing residential uses subject to compliance
Uses
surface mine and that the re -contouring of the pits
The HO in Ski Lake I and the HO in the
with the Landscape Plan.
into the Ponds and their subsequent use for water
present applications found the Ponds
storage is appropriate.
do not present a safety issue to the
public.
Proponents argue the Ponds will provide a
beautiful amenity to the neighborhood, particularly
in contrast to the previous surface mining pits.
•aaunno Aiaadoad
Iaafgns legl Aq 01 paaaBe Senn anlaQ
janq oluo Alaadoid @Jenlid g2no.agl
ssaaae pasodoad aqj legl salou j.ejS
sasn
•Aluo sala!gan Aaua2?aawa 01 ssaaae 2?uiI!w!I pue anlaa Mane oluo
•sjq�!ipeaq aIa!gan
Ieljuaplsa21
.2ullslx3 gl!nn
ssaaae �Cae uoaas a �u!�e� o ��! ! !ssod a passnas! aeoe s�aedw!
p q I g q p p
'sasn puel 2u!puno.aans gi!nn and aql JO
pue ssedsaal gl!nn pajelaosse SIDedwi aaues!nu
dl
Al!I!q!ledwOD
aaueslnu ui a nsai IOU noM eoi A aalsann a l jo asn le l paleas aeo
t p t p t q q p e
Al!!!gpedwoa IleJano aql Jade IOU Saop
u! lInsw II!M aniaa Mane olun ssaaae pasodoad aqj
C„(i n d„)
uolieaot sm ui pew and pasodoad aqj
pue „peon Apalsann„ aql jo asn ang.ie sluauoddO
�uawdolanaa
aeqj gans 'nnoi aq ll!nn peon s!ql 2uole
sdiij uepisapad pue ala�Caiq 'alalgan
�tu� pauueld'Z
jo awnlon Ileaano aqj jegj punol
suollealldde juasaad aql u! OH agJL
•puod glnoS aqj uo uoljeaado
jo sanoq aanpaa ol lellualod aql palea!pu! pue Auowllsal �aedw! as!ou
�UIIDIIJuO aqj aap!suoa 01 DWIJ teuOII!ppe JOJ a ISap a passaadxa paeoe
•deA Aiepunog VA3 aql 01 pal!w!I
aq o1 pas!naJ aq 01 VA3 aqj 2ulalnba.i
pa�!q!goad
lenoidde jo UOIJ!puO e spuawwOaa
aae SINS oaf pue saagaeaageas salels juawngiV leul3 s,jueallddy
j4ejS 'pano.adde 4! 'anoge pajou sy
puod
-Auowlisai iaadxa
-sail iado.id
glnos aqj uo pannolle aq pinonn 1jenialenn aagjo .aaglagnn paNse paeoe
aslou su!�a!ljuoa sapnlau! p.aoaaa aql
aagjo apnlau! of papuedxa aq of VA3 ag1 jo � l!l!ge
sash
le!�uap!saa
aqj of anp siDedwi ai.4ejj paz�Cleueun pue SIaedw!
3O2i
$u!Is!x3 ql!nn
d(1� '
3021 aq� �Cuao q
Buileoq
aslou jo asneaaq sasn lelluap!sa.i 2u!lslxa gl!nn
Al!l!q!ledwOD
az!ao�ow jinn a�e!aosse s�aedw!
p q p
a i�edwoa fou s!
lq. 3O� aqj an2.ae sluauoddo '6 W@I!
ao .)(I!I!q!ledwoa aansua ol lenoadde lo suo!l!puoa asodwt •e
aslou ou aae aaagl fq!lsal sluauodOJd
ui pasle.a panss! Al!l!q!ledwoa aqj of uoll!ppe ul
3021
•sjaedw! :)i:4e.aj u! jlnsa.a IOU ll!nn
3Od aqj punol suollealldde wasa.id aqj
:aaq�!a uea paeoe aql uagj'ou }t Z
u! OH aql •spedwi aslou u! jjnsaa IOU
II!nn 3Od aqj puno} suo!lea!idde juasa.ad
df1J 3021 aql 2u!nna!naa anu!luoa uea paeoe aqj uagl'saAjt L
aql u! OH aql pue I aNel !NS ut OH aql
sasn le!luap!sa.i leana 2ullslxa gl!nn alq!ledwoa 3021 pasodoad aqj sl
slullod uoisi3aa pue uolssn:)sla
s4uawwo:) Ilels
uolldiaosea
(s)uolle:)llddd
anssi
Issue
Application(s)
Description
Staff Comments
Discussion and Decision Points
Opponents conclude the applicant has no legal
The HO in Ski Lake I found that there is
right to hold water in the Ponds by pointing to
no evidence to suggest that TID is
OWRD's withdrawal of its limited license.
legally prohibited from obtaining a
The applicant states a groundwater permit has
permit to store water in the Ponds.
been filed to supply adequate water to the Ponds.
Therefore, this HO imposed a condition
The applicant argues that because this criterion
of approval requiring the applicant to
includes a "can be met" provision, an application
obtain an Oregon Water Resources
for a groundwater permit is sufficient to meet this
Department ("OWRD") permit.
standard. Additionally, the applicant points out
The HO in the present applications
14.1-egally
SM
that TID and OWRD recently settled litigation
disagreed with this approach and
Board indicated a desire to condition any approval on securing a water
Available Water
('TID/OWRD Litigation") resulting in a stipulated
instead found there was no evidence
Permit.
judgement which allows the delivery of irrigation
indicating that there is adequate water
water sufficient to protect the liners.
legally available to the site.
Opponents disagree with the applicant's
Based on staff's review of the
interpretation of the TID/OWRD Litigation and
Stipulated judgment, it appears that
argue the judgement specifically calls out TID's lack
OWRD will not require the applicant to
of authorization to store water in the Ponds.
drain the Ponds unless the land use
Both sides point to excerpts from the judgement to
applications are denied after all
bolster their arguments.
applies.
•SISAleue 3353 ue
•aSuej aalulm aaap aol
aaaldwoD of paalnbaa sl aueD!Idde aqj pue salldde S leoE) uagl ,Say ll !!
S'sAleue („33S3„) ASJ@u3 pue leluawuoa!nu3 'IeuoS
'DlwouoD3 aql u! asn 2?UIIDIIJuoD a se palj!luap!
-Aldde jou saop S leog uayl 'ou 11 !
IOU s! 2?UIUtw @Dejans 'AIIeu!3 •saiDads pajDaloid
S leo9 e jou aae aaap alnw 'aDanosaa S leo9
Zal!S aDAnosaa S Ieog pals!i a aSuea aaluim aaap S! 'say ll •q
a si aSuea aaluim aaap al!gm 'puo:)aS -asn mau e
jou 'Al iado.rd aql }o asn DIJOISIq e s! 2UIUIw aDelans
-Aldde jou saop S leoE) uayl'ou 11 e
jeyj SajejS JU2DIldde agl'lsal3 •S leoE) of jDafgns
•paalnbaa jou seen
IOU S! 2?UIUIw aDejjns ayl san2?ae lueDildde ayl
zauoz bM au1
s!sAleue 3353 ue pau!waalap 'aaojajaq
of jDadsaa ql!m asn �u!l�lljuo e � (!Alpe �. UIUiw aDelins sly s! uagl'Sa�(ji 7
'pue lue�lldde aqj ql!M paajSe
auoz b'M aqj u!
dd
S leO�'8
suoije:)lldde juasaad aqj u! off ayl
'sail!lpej uo!leajDai se yens 'sasn an!Sualu1 J!q!goad
-Aldde jou saop S leoE) uagl'ou 11 • L
of paau aqj.2uljeD!pu! („M3(io„) aj!lpl!M pue
gsl3 jo juawlaedaQ uo2?aao aqj woad Auow!lsal
Zasn „mau„ a f,3!AIIDe 2ululw a:)ejans IDafgns aqj sl
of julod osle sluauoddo •paalnba.i s! slsAleue
33S3 ue pue Aidde saop S leoE) 'uoseaa s!yl ao3
•asn.Sull:)lljuo a
•passa.ippe aq jsnw leyl aaanosaa S leoE) a 1pej
IOU sl spuod aqj alean of 2?u!u!w a:)ejans ayj pale:)lpui osle paeo8 aqj 'asn
u! 's! a2uea aajuim aaaa •S leoE)ql!m a:)uelldwoD
Mau a s! 1! aulwaalap Apoq s2?ulaeaq juanbasgns e pinogs `aanannoH -asn
saalnbaa q:)igm'gululw a:)ejjns mau si lueDildde aqj
mau a jou sl spuod aqj alean of gululw a:)ejans aye jegj pajeDlpu! paeog
Aq palaldwo gu!u!w a:)ejans aqj an.9ae sluauoddo
sluiod uoisi:)aa pue uolssn:)sia
sjuauauao:) me4s
uopdlosaa
(s)uoi e�lIddv
anssl
Issue
Application(s)
Description
Staff Comments
Discussion and Decision Points
The traffic study was premised on the
Board questioned whether the EMA should be restricted to a smaller subset
estimated traffic generated by 17
of properties within the EMA Boundary Map.
single-family dwellings and application
"county
Staff provided the Board with a map indicating the boundaries of the
of the park" use category to the
subdivision, the EMA boundary, and ownership information for each
15 acres surrounding the South Pond.
property within the EMA.
If approved, staff recommends a
condition of approval requiring the
Board also indicated a desire to include a condition of approval limiting
EMA to be revised to be limited to the
boats on the South Pond to those boats owned by owners within the EMA
Opponents argue the terms of the EMA allow,
EMA Boundary Map. Staff notes that
or subset of the EMA.
22.Adequacy of
without restriction, additional properties to be
the properties within the EMA
Transportation
ROF
added the EMA, thereby increasing usage of the
Boundary would not use county roads
Does the traffic study adequately analyze potential traffic impacts
Access to ROF
ROF. For this reason, opponents question whether
to access the ROF, only private,
associated with the ROF?
the traffic study accurately analyzes potential traffic
internal, subdivision roads. Both the
impacts.
Senior Transportation Planner and the
1. If yes, then the Board can continue reviewing the ROF CUP.
Road Department agreed with the
traffic study.
2. If no, then what options are available to address this issue?
The HO in the present applications
a. The applicant can modify the ROF CUP and Site Plan to address
found the traffic study was sufficient to
additional traffic impacts; or
address traffic impacts and found that
no traffic impacts would result from
b. The Board can restrict use of the ROF to the 17 residential properties
the ROF.
referenced in the traffic study.
•SdnD aql Auao q
JO 'puod gjnoS aqj ql!m paleposse sadols daals aqj
inoluOD-aa OI JueDildde aql �?uulnba.i lenoadde jO u011IpuO a asodwI •e
:aagl!a ueD paeOB aqj uagl'Ou 11 •z
•sgnags pue saajl
•apOD Su1p1 q
Sululewa.i }o uoileivasaad Sulalnba.i
leuolleuaalul pue apOD AalepadS leanl:)nalS uoSaa0
dna JMJ pue
dna SWUM aDejans aqj Sulnnalna.a anulluoD ueD paeo8 aqj uaql'saAll • I,lenoidde
jo uolllpuo:) a papuawwoDa.i
aqj gl.lnn AldLUOD pue 'uolsOaa jSlSaa 'jOOJ aNel 01
Osle 1 WINS u! OH aql •paepuels
uO1jeja2?an Molle 01 paulglsap aaann sadols aqj legl
Agdea2?odol
�s�ulea�suo� �uauadolanap �ulaaplsuo� 'a1g1ssod �ua�xa �sa�eaa�
adols IAV90a Cue ql!M pale[DOSSe IOU
SuljeDlpul aaaul�ua alagl uaOJJ AlIE)l e pallluagns
pue
aqj o� �(gdea�odo� pue ade�spuel �ul�slxa aqj anaasaad �ue�lidde aqj p1Q
sl piepuels slgl leql pajou aaglanj pue
lueD11dde agl'�Clleuol�.lppy •sp.iepuels IWb'00a
Jod pue Ws
adeps pue jo
paaase suolleDlldde juasaid aqI ul OH
IaauU puod glnoS aql glinn pajelDOSse sadols
sadols
aql •sulanOjUOD-aa papuauauaOaa pue
Ile Jegj �uljeDlpul Wd90a wojj aalial e pallluagns
uoi�enaasaad'£Z
daals 2ulpae2aa uaaDuoD Aue ssaadxa lou p1p L HOZ 'L L isnSny s,Md00 •
'sadols aulua aDejjns 2ullslxa Alsnolnaad
jueDlldde aqj •aulua aDejans aolad aqj gllnn
aqj Oj paaeduaO uagnn daajs ooh. aq of
palefDOsse slld aql aaann Agdea2?odol pue adeDspuel
•eaae aqljo dein leDlgdea2?odol e papinoad j}els •
sadols aqj punoj I a>1e-I !NS u1 OH aql
2?ullslxa aqj legl ino slulod JueDlldde aql
-Ailua aol sadols mollegs aqj pu1j 111M
aj11pl!m asneDaq aj!lpl!nn uo IDedual ue aneq pinonn sadols daals legl Alal1lun
Senn J1 jegj pajeDlpul paeOq -sadols daals SulpaeSaa UADUOD Cue passaadxa
Md(i0 aaglagnn pa>lse pue eaae aqj jo deux leDlgdea2?odol a aol paNse paeoa
sluiod uoispap pue uoissn3sia
s}uawwo:) }els
uoildi osaa
(s)uoile:)ilddy
anssi
Issue
Application(s)
Description
Staff Comments
Discussion and Decision Points
The applicant argues the Ponds were constructed
in previously disturbed areas. No views or natural
features will be impacted. Boating activity limited
to daylight hours, with specific boat restrictions.
Noise impacts would be minimal, particularly after
the construction of dwellings.
Proponents argue the Ponds will provide a
beautiful amenity to the site, particularly in
In Ski Lake I, the HO found the
contrast to the previous surface mining pits.
unnatural look of the South Pond and
Proponents testify there are no noise impacts
the lack of vegetation does not relate
associated with boating.
harmoniously. The HO recommended
Board indicated a desire to condition any approval on compliance with the
re -contouring steep banks and
Landscape Plan to address impacts to the aesthetics of the property and
Opponents state their concern regarding impacts
revegetating the area. The HO further
loss of habitat. Board also stated a reduction in the number of properties
to wildlife and habitat. Boating noise can be heard
found duration of boating activities not
which could be included in the EMA may be appropriate. Finally, Board
26. Site Plan
around and within existing dwellings. Opponents'
harmonious with residential uses. The
discussed the potential of reducing the hours of operation on the South
Review -
sound engineer refutes applicant's noise study.
HO found there would be little, if any,
Pond.
Relate
ROF
Use of water for the private recreational use is
noise impact. However, boating
Harmoniously
irresponsible and a waste of water. Lined Ponds
activities should be limited to 10 a.m.
Has the applicant demonstrated that the ROF will be harmonious with the
will prevent groundwater recharge.
to 5 p.m., the hours of the noise study.
natural environment and existing development?
In response to concerns regarding loss of habitat
The HO in the present applicationsagreed with these findings.
1. If yes, then the Board can continue reviewing the ROF CUP.
and preservation of deer winter range, the
applicant submitted the WHMP to address these
The HO in the present applications
2. If no, then the Board must deny the ROF CUP.
issues. Consequently, the applicant proposes
recommended requiring the applicant
revegetating the north and south ends of the South
to obtain topsoil from off-site.
Pond and preserving more than 80 percent of the
subject property as open space. Proponents testify
that wildlife continues to use the property, in part
due to the availability of water in the Ponds.
The applicant points out that the Landscape Plan
includes a provision to re -seed and maintain the
area of topsoil removal to promote additional
wildlife forage and habitat
•slsAleue amen lel!geq s,aluaM
•ao oI :)!l!Dads suo!l:)afgo ao sluau. wog Cue pull
of algeun sem llels 'alo4m a se juawdolanap aql
of 1:)afgo AIulejJ@D sluauoddo 42no4ile 'Alielpis
•anlen lel!geq to s!sAleue s,aluaM •aQ ssa.ippe
AIIDaalp of aeadde sluawwo:) aql to auou 'p.io:)aa
@4101 SIU@WWOD pall!wgns MdaO ggnogllV
766 L 'S IsnSny to se is!xa IOU p!p „peoa
saopl.aaoD
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anssi
Issue
Application(s)
Description
Staff Comments
Discussion and Decision Points
The Cake Mine is subject to the
provisions of Title 19. Title 19 does not
An issue raised by operators of the Cake Mine to
include a SMIA Combining Zone and
the east is the compatibility of dwellings so close to
the Title 18 SMIA Combining Zone does
the mining site. Consequently, the Cake Mine
not apply to any surface mines which
operators request a condition of approval requiring
are regulated by Title 19. For this
30.Cake Mine
TP
the applicant to record a Waiver of Remonstrance
reason, the HO found there are no
Board determined a condition of approval should be included with any
("Waiver") for each residential lot in the PUD.
provisions in the SMIA Combining Zone
approval to require recordation of a Waiver of Remonstrance.
which would afford the Cake Pit any
Although not required by any provision in the
protections via the Waiver.
Zoning Code, the applicant agreed to record a
Waiver.
Staff recommends the Board include a
condition of approval requiring the
Waiver.