2018-365-Minutes for Meeting July 25,2018 Recorded 8/31/2018ES
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541 ) 388-65%0
Recorded in Deschutes Comfy CJ2018-365
Nancy Blankenship, County Clerk
Commissioners' Journal 08/31/2018 3:15:10 PM
2018-365
FOR RECORDING STAMP ONLY
BARNES & SAWYER ROOMS
Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were
Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County
Counsel; and Sharon Keith, Board Executive Assistant. No identified representatives of the media were
in attendance.
CALL TO ORDER: Chair DeBone called the meeting to order at 9:00 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: None was offered.
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda. Several sets of minutes were pulled for further review.
BAN EY: Move approval of Consent Agenda Items 1, 2, 4, 5, and 6
HENDERSON: Second.
VOTE: BAN EY: Yes.
HENDERSON: Yes.
DEBONE: Chair votes yes. Motion Carried
BOCC BUSINESS MEETING JULY 25, 2018 PAGE 1 OF 5
Consent Agenda Items:
1. Approval of Minutes of the June 6, 2018 Work Session
2. Approval of Minutes of the June 13, 2018 Business Meeting
3. Approval of Minutes of the June 13, 2018 Work Session
4. Approval of Minutes of the June 18, 2018 Business Meeting
5. Approval of Minutes of the June 18, 2018 Work Session
6. Approval of Minutes of the June 20, 2018 Work Session
7. Approval of Minutes of the June 25, 2018 Business Meeting
8. Approval of Minutes of the June 27, 2018 Business Meeting
ACTION ITEMS
9. Consideration of Signature of Document No. 2018-530, a Denial of a
Modification of MC -97-2 to Allow Division of the Property, a Two Parcel
Minor Partition, and a Conditional Use Permit for a Non -Farm Dwelling
Will Groves presented the item for Board consideration. Commissioner
Henderson commented on the Board's decision and his original vote of
opposition. The document does reflect that 2:1 vote.
BAN EY: Move approval
HENDERSON: Second
VOTE: BAN EY: Yes
HENDERSON: Yes
DEBONE: Chair votes yes. Motion Carried
10.PUBLIC HEARING and Consideration of Board Signature of Order 2018-
047, Approving the Petition for Annexation into Bend Park & Recreation
District
Adam Smith, Assistant Legal Counsel presented the annexation petition.
Commissioner DeBone opened the public hearing and allowed opportunity
BOCC BUSINESS MEETING JULY 25, 2018 PAGE 2 OF 5
for public comment. Quinn Keever, authorized representative of the Bend
Parks and Recreation District testified on the condition of approval for the
Pacific Cascade Heights subdivision. Garrett Chrostek, outside counsel for the
Park District, noted the property proximity to the city boundary and
explained the annexation and conditions associated with county code.
Hearing no additional public testimony, Commissioner DeBone closed the
public hearing.
BAN EY:
HENDERSON
VOTE: BAN EY:
Move approval
Second
HENDERSON:
DEBONE:
Yes
Yes
Chair votes yes. Motion Carried
11.PUBLIC HEARING: Appeal of a Hearings Officer Denial for a Plan
Amendment and Zone Change from Surface Mining to Residential.
Cynthia Smidt, Community Development Department presented the hearing
procedures. Hearing no conflicts or challenges, Commissioner DeBone
opened the public hearing. Ms. Smidt provided additional comments and
maps for the record and reviewed the staff report. Peter Russell Senior
Transportation Planner spoke on plan amendment and zone change and
permitted uses as the yardstick for trip generation data.
Commissioner DeBone noted the time for public testimony.
Garrett Chrostek, attorney representing the applicant Tumalo Irrigation
District provided testimony and noted agreement with most of the hearing's
officer decision and spoke to issues of the appeal. Mr. Chrostek explained
the history behind the property and application.
Rory Isbell staff attorney for Central Oregon LanclWatch representing the
appellant. Mr. Isbell presented the items of concern on the appeal. Mr.
Isbell spoke on the neighbor's testimony and of the denial of the application
BOCC BUSINESS MEETING DULY 25, 2018 PAGE 3 OF 5
by the hearing's officer. The neighbors of adjacent properties testified
against this application. The position of Central Oregon LandWatch is the
application does require a goal exception (for both Goal 3 and 7) and
because of that would hope the fees to appeal would be reimbursed. Mr.
Isbell spoke on the construction of Bill Martin Road and hazard conditions
and posing danger to the public.
Commissioner DeBone noted the time expectation of public testimony and
called for public testimony.
Warren (Jim) Holt, neighboring resident provided testimony. County Counsel
cautioned Mr. Holt and the Board due to ongoing litigation between TID, the
County and a group of area residents including Mr. Holt. Mr. Holt provided
the Board with documents relative to his testimony and spoke on
transportation and trip concerns of Bill Martin Road. Mr. Holt explained his
concerns with the property and the area of mining.
The applicant provided rebuttal. Mr. Chrostek commented on the rezoning
standards and the trip study and transportation analysis. Bill Martin Road is
not the only road that provides access to this property. The soils goal
exception issue and zoning shows it was in surface mining. Regarding the
code complaints the issue was TID was required to dedicate Bill Martin Road
and has occurred. Mr. Chrostek noted TID has been cautious and have
addressed every code violation allegation. Mr. Chostek requests the record
be kept open for the normal 7-7-7 calendar period.
Peter Russell, Senior Transportation Planner commented on code violations
vs. allegations, reviewed County Code and reported there are no "code
violations" on the property. Mr. Russell spoke on County zones and
permitted use. A traffic study was prepared by a licensed professional traffic
engineer and was provided by the applicant as a part of the requirements of
the application. Bill Martin Road is a local access road and not a County
maintained road. Ms. Smidt noted on the hearing's officer decision was
based on the traffic analysis but not intended to be specific to the condition
of Bill Martin Road. Ms. Smidt noted there are code complaints that have
been submitted but not specific or defined as violations.
BOCC BUSINESS MEETING JULY 25, 2018 PAGE 4 OF 5
Commissioner DeBone closed the oral portion of the hearing. Open record
period of 7-7-7 was provided, with Final Argument due August 15t"
Commissioner Baney requested a work session prior to deliberations.
OTHER ITEMS: None were offered.
NM�P!
Being no further items to come before the Board, the meeting was adjourned at 12:12 p.m.
DATED this-,71/Day of 2018 for the Deschutes County Board of
Commissioners.
ATTES
1
COR G SECRETARY
ANTHONY DEBONE, CHAIR
TA XAN, C ISS6 NR
BOCC BUSINESS MEETING JULY 25, 2018 PAGE 5 OF 5
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 25, 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/meBusiness Meetings are
usually streamed live online and video recorded.
Pursuant to ORS 192.640, 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. Approval of Minutes of the June 6, 2018 Work Session
2. Approval of Minutes of the June 13, 2018 Business Meeting
Board of Commissioners Business Meeting Agenda Wednesday, July 25, 2018 Pagel of 3
3. Approval of Minutes of the June 13, 2018 Work Session
4. Approval of Minutes of the June 18, 2018 Business Meeting
S. Approval of Minutes of the June 18, 2018 Work Session
6. Approval of Minutes of the June 20, 2018 Work Session
7. Approval of Minutes of the June 25, 2018 Business Meeting
8. Approval of Minutes of the June 27, 2018 Business Meeting
ACTION ITEMS
9. Consideration of Signature of Document No. 2018-530, a Denial of a Modification of
MC -97-2 to Allow Division of the Property, a Two Parcel Minor Partition, and a
Conditional Use Permit for a Non -Farm Dwelling. - William Groves, Senior Planner
10. PUBLIC HEARING and Consideration of Board Signature of Order 2018-047,
Approving the Petition for Annexation into Bend Park & Recreation District. -Adam
Smith, Assistant Legal Counsel
11. PUBLIC HEARING: Appeal of a Hearings Officer Denial for a Plan Amendment and
Zone Change from Surface Mining to Residential - Cynthia Smidt, Associate 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
Board of Commissioners Business Meeting Agenda Wednesday, July 25, 2018 Page 2 of 3
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 25, 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 25, 2018
DATE: July 19, 2018
FROM: Cynthia Smidt, Community Development, 541-317-3150
TITLE OF AGENDA ITEM:
PUBLIC HEARING: Appeal of a Hearings Officer Denial for a Plan Amendment and Zone
Change from Surface Mining to Residential
RECOMMENDATION & ACTION REQUESTED:
Hold a de novo public hearing and make a decision based on the existing record and
written and oral testimony.
BACKGROUND AND POLICY IMPLICATIONS:
Before the Board of County Commissioners ("Board") is an appeal of the Hearings Officer's
decision denying a plan amendment and zone change from Surface Mining to Residential and
proposed by Tumalo Irrigation District. Tumalo Irrigation District and Central Oregon
LandWatch appealed the Hearings Officer's decision. The Board accepted review of the
Hearings Officer's decision on April 18, 2018 via Order No. 2018-024. Based on the Order
adopted by the Board, the appeal will be heard de novo.
See attached staff memo for further background information.
FISCAL IMPLICATIONS: None
ATTENDANCE: Cynthia Smidt, Associate Planner
IA
. e ` MM UfVrl � Y PLJ C �4rE r.: xr' . r
TO:
FROM:
DATE:
RE:
MEMORANDUM
Board of County Commissioners
Cynthia Smidt, Associate Planner
July 19, 2018
Public Hearing on an appeal of Hearings Officer Decision on a Tumalo Irrigation
District Zone Change and Plan Amendment (247-17-000775-ZC, 247 -17 -000776 -PA)
The Board of County Commissioners (Board) will hold a public hearing to consider an appeal, filed
by the applicant, Tumalo Irrigation District (TID) and by Central Oregon LanclWatch (LandWatch).
The two appeals were submitted in response to a Deschutes County Hearings Officer's (HO) decision
denying the applicant's request for a quasi-judicial plan amendment and zone change. The Board
accepted review of the Hearings Officer's decision on April 18, 2018 via Order No. 2018-024. Based
on the Order adopted by the Board, the appeal will be heard de novo.
I. APPLICABLE CRITERIA
Title 18, Deschutes County Zoning Ordinance
Chapter 18.32. Multiple Use Agricultural Zone
Chapter 18.52. Surface Mining Zone
Chapter 18.56. Surface Mining Combining Zone
Chapter 18.136. Amendments
Title 22, Deschutes County Development Procedures Ordinance
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Chapter 5, Supplemental Sections
Appendix C, Transportation System Plan
Oregon Administrative Rules, Chapter 660
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 23, Procedures and Requirements for Complying with Goal 5
'i 17 NW Lafayette Avenue, Bend, Oregon 9770.3 1 P.O. Liox 6005, bend, OR 97708-6005
(541j 388-5575 �a cdd@)(lesdiules.org nnnN.descltutesurg/cd
11. BACKGROUND
Tumalo Irrigation District submitted a request for a Comprehensive Plan Amendment to change the
designation of the 541 -acre subject property from Surface Mine (SM) to Rural Residential Exception
Area (Attachment 1). The request includes removing Surface Mining Site No. 357 from the County's
Surface Mining Mineral and Aggregate Inventory and adding it to the Non -Significant Mining and
Aggregate Inventory. The applicant also requests approval of a Zone Change from Surface Mining
to Multiple Use Agricultural (MUA) for the subject property. The removal of the SM zoning on the
also would remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on
surrounding property located within one-half mile of the SM Zone.
III. HEARING OFFICER'S DENIAL
The HO decision denied the applicant's request for a quasi-judicial plan amendment and zone
change (Attachment 13). The decision was based on the applicant's failure to demonstrate that the
proposed change would not have a significant impact on transportation facilities. Specifically, the
Hearing Officer was concerned about traffic impacts from potential conditional uses following the
plan/zone change, such as a cluster development.
IV. TUMALO IRRIGATION DISTRICT APPEAL
The applicant/appellant, TID, appeals the HO decision and describes several assignments of error
in their notice of appeal (Attachment 14). The following mentions their concerns:
1. The Hearings Officer erroneously concluded that Applicant failed to satisfy OAR 660-012-
0060' and DCC 18.136.020(0.
The traffic analysis plainly identified that it utilized an exceedingly conservative estimation of
trip generation for a mining operation on 540 acres. Using a moderate estimation of trip
generation, which was outlined in the submitted traffic analysis along with applicable trip
generation rates, the trip generation of a mining operation on 540 acres exceeded that of a
maximum worst case development scenario under the MUA-10 zoning. Accordingly, there
were no significant impacts on transportation systems for purposes of the transportation
planning rule and there was sufficient evidence in the record to make such a determination.
2. OAR 660-012-0060 requires the County to estimate traffic impacts under a reasonable "worst-
case" scenario.
See Barnes v. City of Hillsboro, 2010 WL 2655127, at *15. The hearings officer erroneously
concluded that 74 dwelling units on the subject property, which is only achievable if TID seeks
and obtains 9 separate conditional use approvals and 9 separate subdivision approvals, is a
reasonable worst-case scenario. Even if the 74 dwellings were a reasonable worst-case
scenario, the hearings officers had to be equally "reasonable" in determining the trip
OAR 660-012-0060, transportation planning for "Plan and Land Use Regulation Amendments."
247-17-000775-ZC and 247 -17 -000776 -PA Page 2 of 6
generation potential of the mining use and applied the moderate or maximum trip generation
estimates identified in the transportation analysis.
3. The Hearings Of indicates that in the decision that it is "likely that the applicant can
demonstrate compliance" with the criteria that formed the bases of the denial.
Staff Comment: The HO decision makes an unusual finding regarding the Transportation Planning
Rule (TPR), basing the decision on something other than mobility standards. This could then set
precedent regarding required traffic analyses for plan amendment/zone changes. In the decision,
the HO sites two cases, jaqua v City of Springfield and Willamette Oaks, LLC, v City of Eugene. In jaqua
v City of Springfield, 193 Or App 573, 593, 91 Pad 817 (2004) the court held that the TPR does not
permit deferral of a determination of whether the proposal would significantly impact
transportation facilities. This was reaffirmed and perhaps extended in Willamette Oaks, LLC, vCity of
Eugene, 232 Or App 29, 220 P.3d 445 (2009). This effectively overruled a line of LUBA cases holding
that it was permissible in some instances to condition a plan amendment or zone change to prohibit
development that could significantly impact a transportation facility. The court made it clear that
there must be a finding on this issue at the plan amendment/zone change stage.
V. CENTRAL OREGON LANDWATCH APPEAL
LanclWatch describes several assignments of error that are summarized in their notice of appeal
and below (Attachment 15):
1. The Board of County Commissioners must hear the appeal de novo because a goal exceRtion
is required.
a. DCC 22.28.030
b. Goal 3• the subject property is agricultural land for which no goal exception has been
taken in the Deschutes County Comprehensive Plan.
...The subject property is agricultural land and an exception to Goal 3 is required to
redesignate the land to any designation other than EFU. The soils of the subject property
are classified as U.S. Natural Resources Conservation Service (NRCS) Class I -VI, and
therefore the subject property is agricultural land by definition.
The County's Comprehensive Plan has never taken an exception to Goal 3 for the subject
property. The applicant seeks a designation of Rural Residential Exception Area. Therefore,
an exception to Goal 3 is required to approval the application, and the Hearings Officer
erred in deciding otherwise.
Staff Comment: According to LandWatch, the application requires goal exceptions, in particular
exception to Goal 3. DCC 22.28.030(C) states that the Board shall hear zone changes and plan
amendments that require an exception to the goals or concerning lands designated agricultural use
without the necessity of filing an appeal of the Hearings Officer's decision. Staff understands
LandWatch to be seeking a refund of appeal fees under this argument.
247-17-000775-ZC and 247 -17 -000776 -PA Page 3 of 6
2. DCC 22 20 015 denial is appropriate because the subject property is in violation of applicable
land use regulations.
The Hearings Officer erred in finding that the subject property is not in violation of applicable
County land use regulations. Hearings Officer Decision page 9. The subject property is in
violation because the road that passes through the subject property (Bill Martin Road) was
constructed in violation of DCC 17.16.105 [Footnote 1 removed] and remains in violation of
that code section....
Staff Comment: DCC 22.20.015 may prevent approval of the present application if the property is
in violation of other land use regulations. In the record below, LanclWatch references pending
litigation - Blischke et al. v Tumalo Irrigation District, Deschutes County District Court Case No.
16CV21940 - that involves Bill Martin Road as the violation of applicable land use regulations.
3. Comprehensive Plan Section 2.10 Surface Mining
a. The subject property should not be.placed on the non-significant mining and aggregate
inventory.
The existence of the Non -Significant Mining and Aggregate Inventory at Comprehensive
Plan Table 5.8.2 is an error in the County's Comprehensive Plan. Only inventoried
significant Goal 5 mineral and aggregate resources may be mined. See OAR 660-023-0180.
As Table 5.8.2 has no legal value in the County's program to achieve the requirements of
Goal 5, placing the subject property on Table 5.8.2 with the comment "potential reservoir
site" is a meaningless action. The Hearings Officer erred when deciding that Table 5.8.2
should be amended to include the subject
b. DOGAMI's certification of the quality of reclamation of the site renders the site usable only
for the post -mining use of "open space/range."
The Hearings Officer erred in ignoring DOGAM/'s reclamation certification, which certified
all acreage of the former mining site on the subject property for the post -mining use of
"open space/range," and did not certify any acreage on the subject property for any other
post -mining uses, which include "agriculture, recreation, wildlife/wetlands, or
housing/construction."Hearings Officer Decision page 12. The Hearings Officer was correct
in noting that "the designation on the DOGAMI application is the responsibility of the
applicant. " Hearings Officer Decision page 13. The Hearings Officer erred, however, by then
deciding that the designation on the DOGAMI application, which is the responsibility of the
applicant, is irrelevant to the applicant's future development plans. If the applicant has the
responsibility to reclaim the subject property to a standard appropriate for a certain post -
mining use designation, then the applicant cannot seek to use the subject property for any
other use.
Staff Comment: As noted by LanclWatch, DCC 18.52.200 governs post -mining uses of surface
mining sites. That section states, "...the property shall be rezoned to the subsequent use zone
identified in the surface mining element of the Comprehensive Plan." In this case, however, the
Comprehensive Plan does not identify a subsequent use zone for the subject property.
247-17-000775-ZC and 247 -17 -000776 -PA Page 4 of 6
4. Natural hazards.
a. Goal 7; an exception to Goal 7 Natural Hazards is required.
Evidence in the record indicates the applicant did not fill mined areas on the property in
a manner that permits subsequent use of the property for housing development. The
record indicates improperly filled areas on the property may place those who access the
property in danger.
The County had no way of knowing prior to the hearing that the proposed use is
inconsistent with the way the applicant filled in the mined areas on the property. Now
that the County knows there are conditions on the property so potentially hazardous that
the proposed land use may put the public at risk, the Hearings Officer erred in not
recommending that the County conduct an evaluation of the risk of sinkholes from
improper fill. One such sinkhole already occurred on Bill Martin Road. The Hearings
Officer should have recommended that the County identify the nature of the dire natural
hazard on the property and plan for it, as provided in Goal 7 (supra). As explained in the
Goal 7 implementation guidelines...
b. Several Comprehensive Plan policies relating to natural hazards have not been met.
The application should be denied on the additional grounds of not meeting several
Comprehensive Plan goals and policies. Goal 1 of the Comprehensive Plan Section 3.5
Natural Hazards Policies is to "protect people, property, infrastructure, the economy and
the environment from natural hazards." Comprehensive Plan Policy 3.5.5 states that
"development should be designed to minimize alteration of the natural land form in areas
subject to slope instability, drainage issues or erosion. " Policy 3.5. 11 directs the County to
"review and revise County Code as needed to ... minimize erosion from development and
ensure disturbed or exposed areas are promptly restored to a stable, natural, and/or
vegetated condition using natural materials or native plants," Policy 3.5. 11 (d), and "ensure
drainage from development or alterations to historic drainage patterns do not increase
erosion on-site or on adjacent properties." Policy 3.5.11(e). As thoroughly documented in
the record, the subject property has experienced substantial drainage problems, slope
instability, and erosion over the past several years. To the extent that the Hearings Officer
decided that the proposed plan amendment and zone change complied with any of these
goals and policies, the Hearing Officer erred.
Staff Comment: The Comprehensive Plan implements/addresses Statewide Planning Goals as they
relate to Deschutes County. As noted by LandWatch, the Comprehensive Plan Section 3.5 addresses
Natural Hazards, which identifies wildland fire, severe winter storms, flooding, volcanic eruption,
and earthquake as hazards applicable to the region. Other hazards such as sinkholes are not
identified since they are not a typical hazard for the county. The County Zoning Ordinance
implements those policies of the acknowledged Comprehensive Plan. HO Decision addresses
Statewide Planning Goal 7, Natural Hazards.
247-17-000775-ZC and 247 -17 -000776 -PA Page 5 of 6
VI. NEXT STEPS
At the conclusion of the hearing, the Board can choose one of the following options:
1. Continue the hearing to a date certain.
2. Close the hearing and begin deliberation.
According to DCC 22.20.040, quasi-judicial plan amendment and zone change requests are exempt
from the 150 -day time limit.
VII. RECORD
Background information on the record to date is available for inspection at the Planning Division
and at the following link: https://dial.deschutes.org/Real/DevelopmentDocs/150758. Moreover, a
majority of the record is provided with this memorandum as attachments 1 through 17.
Attachments
1. Map of Subject Property
2. Application Materials
3. Public Comments Qim and Bradaigh Holt)
4. Public Comments (General dated 9/25/17-12/10/17)
5. Agency Comments
6. Applicant's First Supplemental Burden of Proof (dated 12/11/17)2
7. Staff Report
8. Public Hearing Documents and Testimony (dated 12/12/17)
9. Post Hearing Public Comments (dated 12/17/17-1/2/18)
10. Post Hearing Staff Memos (dated 12/22/17)
11. Post Hearing LandWatch Testimony
12. Post Hearing Applicant's (TID) Testimony
13. Hearings Officer's Decision
14. Tumalo Irrigation District Appeal
15. LandWatch Appeal
16. Public Hearing Transcript
17. Staff Hearing PowerPoint
2 The Second, Third and Fourth Supplemental Burden of Proof statements were submitted by the applicant
as post hearing written testimony, rebuttal, and final arguments, respectively, which are included as
Attachment 12 of this memorandum.
247-17-000775-ZC and 247 -17 -000776 -PA Page 6 of 6
Staff Memorandum
ATTACHMENT 1
Map of Subject Property
Deschutes County Files 247-17-000775-ZC & -000776-PA
19300 & 19310 Tumalo Reservoir Rd, Bend
TUMALO
BAILEY RD
HIGH MOWING LN '!�� RIDGEWOOD DR
Deschutes County GZS,�'Sources: Esri, USGS, NOAA
E``*
Staff Memorandum
ATTACHMENT 2
Application Materials
Zone Change File No. 247-17-000775-ZC
Plan Amendment File No. 247 -17 -000776 -PA
v) Community Development Department
Planning Division BuUding Sally Division Environrmntal Soils Division
SCANNED
P.0, 80, 6t`05 117 NW Lafayette Avenue Send., Oregn)Q���f�-i�t�05
Phone: (541) 388-6575 Fax: (541) 385-1764
hftp://www.deschute5.org/cd
PLAN/ZONE/TEXT AMENDMENT — --1 1.2 , c),4 -a 7E�'
ZONE MAP AMENDMENT: ss"5.°° PLAN MAP AMENDMENT: !6°46'6 TEXT AMENDMENT:^
FEE: ` t. i FEE: Ci,cl
FEE:
Tumalo Irrigation District c/o Bryant, Lovlien & Jarvis, P.C. 541 382-4331
Applicant's Name (print): Phone: ( )
Mailing Address: 591 SW Mill View Way City/State/Zip: Bend, OR 97702
Property Owner's Name (if different):
Mailing Address:
Property Description: Township 16
Lot of Record? (state reason):
Phone:
City/State/Zip:
Range1 1 Section 10/36 Tax Lot 1611000010400/1611000010300/161136D000100
Current Zoning: SM Proposed Zoning: MUA- 10
Current Plan Designation: SM Proposed Designation: RR Exception Area
Applicable State Goals: None Exception Proposed?
Size of Affected Area: 541.23 Acres
INSTRUCTIONS FOR COMPLETING THIS APPLICATION:
Yes NO No
1, Complete this application form including the appropriate signatures. If color exhibits are submitted, black and white
copies with captions or shading delineating the color areas shall also be provided.
2. Include a detailed statement describing the proposal and how it meets all requirements of the appropriate State
rules and statutes, and County codes and Comprehensive Plan policies. Text amendment applications must
include the proposed language and the basis for the change.
3. If multiple properties are involved in this application, then identify each property on a separate page and follow
with the property owners' signatures.
4. Submit the correct application fee.
5. Submit a copy of the current deed(s) for the property(ies).
0
Applicant's Signature:
Property Owner's Signature (if different)": Date:
Agent's Name (if applicable): Garrett Chrostek, Bryant, Loviien & Jarvis, P.C. phone: ( 541) 3$2'4331
Mailing Address: 591 SW Mill View City/State/Zip: Bend, OR 97702
*If this application is not signed by the property owner, a letter authorizing signature by the applicant must be attached. By
signing this application, the applicant understands and agrees that Deschutes County may require a deposit for hearings
officers' fees prior to the application being deemed complete; and if the application is heard by a hearings officer, the
applicant will be responsible for the actual costs of the hearings officer.
10/15
t Quntitl/ Services Perf'orrned tuith Pride
7 j 10,J00
BEFORE THE DESCHUTES COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
247-15-000272-ZC / 273 -PA ( BURDEN OF PROOF
APPLICANT/ Tumalo Irrigation District
OWNER c/o Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
ATTORNEY: Garrett Chrostek
Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97703
LOCATION: 19300 Tumalo Reservoir Rd., Bend, OR 97701 and further
identified as Tax Lots 300 and 400 on Deschutes County Tax Map
16-11-10 and Tax Lot 100 on Tax Map 16-11-36D.
REQUEST: Applicant requests a Zone Change and Comprehensive Plan Map
Amendment to rezone and re -designate 541.23 acres from Surface
Mining to Multiple Use Agriculture -10 acre minimum/rural
residential exception area, remove Site No. 357 from the County's
Surface Mining Mineral and Aggregate Inventory (Comprehensive
Plan Table 5.8.1), add Site No. 357 to the Non -Significant Mining
Mineral and Aggregate Inventory (Comprehensive Plan Table
5.8.2), and remove the associated Surface Mining Impact Area
overlay.
I. APPLICABLE CRITERIA:
The following Goals, Statutes, Rules, Plans and Ordinances may be applicable to the proposal:
Title 18 of the Deschutes County Code, the County Zoning Ordinance:
Chapter 18.04
18.04.030
Chapter 18.32
Chapter 18.52
Chapter 18.56
Chapter 18.136
18.136.020
Burden of Proof
Page I of 27
Title, Purpose and Definition
Definitions
Multiple Use Agricultural Zone - MUA
Surface Mining Zone
Surface Mining Impact Area Combining Zone
Amendments
Rezoning Standards
(00525058-00644959;6}
Title 22 of the Deschutes County Code, Procedures Ordinance:
Chapter 22.010 Hearing
Chapter 22.020 Notice
Title 23 of the Deschutes County Code, the Year 2011 Comprehensive Plan:
3.4 Rural Economy
Goal 1
Policy 3.4.23
Policy 3.4.27
Policy 3.4.28
Oregon Administrative Rules Chapter 660:
Division 12 Transportation Planning Rule:
OAR 660-12-0060 Plan and Land Use Regulation Amendments.
Division 15 Statewide Planning Goals and Guidelines:
OAR 660-015-000 Statewide Planning Goals and Guidelines No. 1 - No.
OAR 660-015-005 Statewide Planning Goal No. 15
OAR 660-015-010 Statewide Planning Goals and Guidelines No. 16 - No.
Division 18 Plan and Land Use Regulation
Division 23 Procedures and. Requirements for Complying with Goal 5
II. EXHIBITS:
1. Zoning Map of Subject Property
2. 1979 Zoning Map
3. Deed
4. Reclamation Certificate
5. Traffic Study
6. Survey of Trip Generation at Mining Sites
7. Soil Map
8. Geologic Resource Assessment
III. FINDINGS OF FACT:
14
T
1. SUBJECT PROPERTY: The "Subject Property" is located at 19300 Tumalo Reservoir
Rd., Bend, OR 97703 and further identified as Tax Lots 10300 and 10400 on Deschutes County
Tax Map 16-11-10 and Tax Lot 100 on Tax Map 16-11-36D.
2. LEGAL LOT OF RECORD: Pursuant to the decision in Belveron (ZC-08-04) whether
a lot is a legal lot of record is not applicable to a rezoning application. In any event Tax Lot
Burden of Proof
Page 2 of 27 (00525058-00644959;6)
10300 and 10400 were previously found to constitute a single lot of record in CU -05-62, which
approved the telecommunications tower on the Subject Property.
3. ZONING: The Subject Property is zoned Surface Mining (SM) as shown on the
attached Exhibit I and is designated SM on the Comprehensive Plan Map. The County's earliest
zoning maps from 1979, attached as Exhibit 2, show the Subject Property as zoned SM. It is
also within the Landscape Management Combining Zone (LM) that corresponds to Tumalo
Reservoir Rd.
5. SITE DESCRIPTION: The Subject Property is 541.23 acres in total. It was previously
developed as a surface mine (Site No. 357), but is no longer active and has been reclaimed. The
only structures on the Subject Property is a communications tower. The vast majority of the
Subject Property has been disturbed through mining activities, but there are swaths of natural
vegetation (sage, juniper, etc.) in the northeast and southwest corners of the property and some
revegetation of disturbed areas. The Subject Property has undulating terrain that gradually rises
to a peak on the northeast corner known as Laidlaw Butte.
6. SURROUNDING USES: Surrounding uses are a mix of Exclusive Farm Use-
Tuinalo/Redmond/Bend (EFU-TRB), Multiple Use Agriculture -10 Acre Minimum (MUA-10)
and Tumalo Unincorporated Community Residential -5 Acre Minimum (TUR5)
South of the Subject Property, but north of Tumalo Reservoir Road are several MUA-10
properties along Coyote Run Ln. and Quail Dr. These properties are all in residential uses and
are roughly 5 acres or smaller in size. Properties to the immediate south, but across Tumalo
Reservoir Road are zoned EFU-TRB. These properties exhibit a mix or irrigated and un-
irrigated farming activities with most properties less than 40 acres in size.
To the west and along the southern half of the Subject Property are EFU-TRB properties north of
Tumalo Reservoir Rd. There are no apparent agricultural uses at these properties and these
properties were previously part of mining operations (Site Nos. 355 and 356). Along the
northern half of the western boundary are MUA-10 properties that are 5 to 10 acres in size.
Some of these properties demonstrate the use of irrigation, but most of the immediately adjacent
parcels are dry.
Immediately adjacent parcels to the north are zoned EFU-TRB. These properties are 10-20 acres
in size with only one adjacent parcel evidencing any irrigated agriculture. Further north are
properties zoned MUA-10 that are in a mix of agricultural and residential uses. To the northeast
is another SM zoned property owned by Deschutes County.
Properties to the east and along the northern half of the Subject Property are un -irrigated EFU-
TRB parcels including property owned by the Applicant. Along the southern portion of the
eastern boundary are TUR5 parcels. Further east is the Bend Research, Inc.'s Tumalo Site in the
Tumalo Research and Development District. Even further east is the unincorporated community
of Tumalo.
Burden of Proof
Page 3 of 27 {00,525058-00644959;6}
7. BACKGROUND: The vesting deed is attached as Exhibit 3. The Applicant's
predecessor Deschutes County Municipal Improvement District acquired a very large tract of
land, including what is now the Subject Property, in the early 1900's. There have been
numerous deeds conveying out portions of the original acquisition leaving the present
configuration of approximately 541 acres.
Initial County Zoning Maps show the Subject Property as zoned SM. In the late 1980's the Land
Conservation and Development Commission's (LCDC's) acknowledgement of the County's
Comprehensive Plan provisions addressing mineral and aggregate resources under Goal 5 was
reversed and remanded by the Court of Appeals in Coats v. LCDC, 67 Or App 504 (1984).
Pursuant to a subsequent LCDC order, the County undertook a lengthy process to inventory
mineral and aggregate resources in the County, to develop a plan to preserve and protect those
resources, and to amend the County's Comprehensive Plan and Zoning Ordinance to adopt the
inventory and measures to protect sites.
These plans were implemented through several ordinances that (i) listed Site No. 357 on the Goal
5 inventory, (ii) adopted a site-specific ESEE (Economic, Social, Environmental and Energy)
analysis for Site No. 357, and (iii) imposed the SM and SMIA zoning (Ordinance Nos. 90-014,
90-025, 90-028, and 90-029). In 1993, the County adopted Ordinance Nos. 93-021 and 93-022
to correct an error in the acreage of Site No. 357.
Aside from the communications tower described above, the property has only been used for
mining purposes. In September of 2011, the Department of Geology & Mineral Industries
(DOGAMI) closed the permit (No. 09-0009) to Site No. 357 following successful reclamation of
the Subject Property. In total, 312.75 acres were reclaimed, which included re -contouring the
disturbed area, adding 1 foot of topsoil, and drill -seeding the area with grasses.
8. PROPOSAL: Applicant requests a Zone Change and Comprehensive Plan Map
Amendment to rezone and re -designate 541.23 acres from Surface Mining to Multiple Use
Agriculture -10 acre minimum/rural residential exception area. (the comprehensive plan
designation that corresponds to MUA-10), remove Site No. 357 from. the County's Surface
Mining Mineral and Aggregate Inventory (Comprehensive Plan Table 5.8.1), add Site No. 357 to
the Non -Significant Mining Mineral and Aggregate Inventory (Comprehensive Plan Table
5.8.2), and remove the associated Surface Mining Impact Area overlay.
Applicant anticipates that a portion of the Subject Property may be used as a recharge reservoir
for the various irrigation piping projects applicant is pursuing in the area, A recharge reservoir
assists in ensuring that there is sufficient water pressure in irrigation pipe to supply water to all
connections during periods of joint use. To ensure applicant can construct and maintain these
facilities, should they be developed in the future, applicant desires to add Site No. 357 to the
Non -Significant Mining Mineral and Aggregate Inventory contained within Table 5.8.2 of the
Deschutes County Comprehensive Plan.' The construction of irrigation reservoirs in the MUA-
' To the extent applicant is required to identify a "type", "quantity", and "comments" per the headings on Table
5.8.2, the materials to be removed include silt, sand, soil, dirt, rock, cinders, residual pumice and assorted inclusions,
the quantity is less than 500,000 tons, and the purpose is to allow for construction and maintenance of an irrigation
reservoir 10 or fewer surface acres in size.
Burden of Proof
Page 4 of 27 (0052505 8-00644959;6)
10 zone requires conditional use approval. If applicant moves forward with developing the
recharge reservoir, applicant will seek conditional use approval.
9. PROCEDURE: The property is not agricultural land because it is zoned SM, and has
been since the inception of County zoning. It is thus an exception area for purposes of Goal 3
and 4. OAR 660-033-0020(1)(c). Because the Subject Property is not subject to Goals 3, 4, 16,
17, or 18, it is not "resource land" as defined by OAR 660-004-0005(2). Accordingly,
exceptions to Goals 3 and 4 are not required.
IV. PROPOSED FINDINGS:
ZONE CHANGE
Conformance with Title 18 of the Deschutes County Code, the County Zoning Ordinance
18.136.010 Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or
legislative map changes shall be as set forth in DCC 22.12. A request by a property owner
for a quasi judicial map amendment shall be accomplished by filing an application on
forms provided by the Planning Department and shall be subject to applicable procedures
of DCC Title 22.
FINDING: Applicant requests a quasi-judicial Plan Amendment and Zone Change to rezone and
re -designate the Subject Property from SM to MUA-10 with a MUA-10 designation, removal of
Site No. 357 from the Goal 5 significant resource inventory, addition to the Non -Significant
Mining Mineral and Aggregate Inventory, and removal of the associated Surface Mining Impact
Area (collectively, the "Amendment"). Applicant submitted an application on the forms
provided by the Planning Division and the application is subject to the procedures of DCC Title
22.
18.136.020 Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the public interest is best
served by rezoning the property. Factors to be demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and the change is
consistent with the Plan's introductory statements and goals.
FINDINGS: The proposed Amendment conforms to the Comprehensive Plan and is consistent
with the plan's introductory statement and the plan's goals. Each of these is discussed below.
Conformanee with Comprehensive Plan. The Comprehensive Plan establishes an overall
planning and development framework for the County. The Amendment conforms to the policy
and goals contained in the Comprehensive Plan. Applicable Comprehensive Plan policies and
goals are addressed further below.
Burden of Proof
Page 5 of 27 {00525058-00644959;6}
Consistency with the Comprehensive Plan's Introductory Statement and Goals. In several
previous decisions, Deschutes County Hearings Officers have made the following relevant
findings, concerning this requirement:
"Comprehensive Plan statements, goals and policies typically are not intended to,
and do not, constitute mandatory approval criteria for quasi-judicial land use
permit applications. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004).
There, LUBA held:
`As intervenor correctly points out, local and statutory
requirements that land use decisions be consistent with the
comprehensive plan do not mean that all parts of the
comprehensive plan necessarily are approval standards. [Citations
omitted.] Local governments and this Board have frequently
considered the text and context of cited parts of the comprehensive
plan and concluded that the alleged comprehensive plan standard
was not an applicable approval standard. [Citations omitted.] Even
if the comprehensive plan includes provisions that can operate as
approval standards, those standards are not necessarily relevant to
all quasi-judicial land use permit applications. [Citation omitted.]
Moreover, even if a plan provision is a relevant standard that must
be considered, the plan provision might not constitute a separate
mandatory approval criterion, in the sense that it must be
separately satisfied, along with any other mandatory approval
criteria, before the application can be approved. Instead, that plan
provision, even if it constitutes a relevant standard, may represent a
required consideration that must be balanced with other relevant
considerations. [Citations omitted.]'
LUBA held in Save Our Skyline that it is appropriate to "consider first whether
the comprehensive plan itself expressly assigns a particular role to some or all of
the plan's goals and policies." The section of the Comprehensive Plan entitled
"Preamble, Vision and Use of this Plan" provides as follows:
Preamble
The Deschutes County Comprehensive Plan is a statement of
issues, goals and policies meant toug ide the future of land use in
this County. This Comprehensive Plan is intended to recognize the
expectations and rights of property owners and the community as a
whole.
Burden of Proof
Page 6 of -27 {00525058-00644959;6}
Use of this Plan
The Comprehensive Plan is a tool for addressing changing
conditions, markets and technologies.
It can be used in multiple ways, including:
• To strengthen communication with the public.
• To guide public decisions on land use policy when
developing land use codes, such as zoning or land
divisions.
• As a basis for the development of public programs and
budgets.
• As a basis for the measurement and evaluation of changes
in the physical, social, environmental or economic makeup
of the County. Modifications of the Plan itself may result
from this process.
• To promote inter -government coordination, collaboration
and partnerships.
This Plan does not prioritize one goal or policy over another.
Implementation of this plan requires flexibility because the weight
given to the goals and policies will vary based on the issue being
addressed.
The Plan is not intended to be used to evaluate specific
development projects. Instead, the Plan is a 20 -year blueprint to
guide growth and development
The above underscored language indicates that the County's plan statements,
goals and policies are not intended to establish approval standards for quasi-
judicial land use permit applications.
In Bothman v. City of Eugene, 51 4r LUBA 426 (2006), LUBA found it
appropriate also to review the language of specific plan policies to determine
whether and to what extent they may in fact establish decisional standards. The
policies at issue in that case included those ranging from aspirational statements
to planning directives to the city to policies with language providing `guidance for
decision-making' with respect to specific rezoning proposals. In Bothman, LUBA
concluded the planning commission erred in not considering in a Zone Change
proceeding a plan policy requiring the city to `[r]ecognize the existing general
office and commercial uses located * * * [in the geographic area including the
subject property] and discourage future rezonings of these properties.' LUBA
held that:
Burden of Proof
Page 7 gf27 {00525058-00644959;6}
`* * * even where a plan provision might not constitute an
independently applicable mandatory approval criterion, it may
nonetheless represent a relevant and necessary consideration that
must be reviewed and balanced with other relevant considerations,
pursuant to ordinance provisions that require * * * consistency
with applicable plan provisions.'(Emphasis added.)
The above -referenced introductory statements indicate the Comprehensive Plan does not contain
approval criteria. However, plan provisions may require consideration by the decision maker
even if they are not applicable approval criteria. Save Our Skyline v. City of Bend, 48 Or LUBA
192, 209 (2004). The following may be applicable goals and policies from the County's
Comprehensive Plan:
B. That the change in classification for the subject property is consistent with the
purpose and intent of the proposed zone classification.
FINDING: DCC 18.32.010 sets out the purpose of the MUA Zone.
The purposes of the Multiple Use Agricultural Zone are to preserve the rural
character of various areas of the County while permitting development consistent
with that character and with the capacity of the natural resources of the area.; to
preserve and maintain agricultural lands not suited to full-time commercial
farming for diversified or part-time agricultural uses; to conserve forest lands for
forest uses; to conserve open spaces and protect natural and scenic resources; to
maintain and improve the quality of the air, water and land resources of the
County; to establish standards and procedures for the use of those lands
designated unsuitable for intense development by the Comprehensive Plan, and to
provide for an orderly and efficient transition from rural to urban land use.
The MUA Zone is appropriate for the Subject Property because it is capable of supporting some
agricultural uses, but will never be high quality agricultural ground that could support full time
commercial farming. Given the rural character of the Tumalo area, a zoning designation that
allows for more intensive development would not be appropriate. The MUA-10 Zone provides a
middle ground between the EFU and Rural Residential zones by placing an emphasis on
agriculture, but not imposing regulations more appropriate for high quality agricultural lands.
Although there is no development proposal at this time, it is anticipated that the Subject Property
will be developed with small scale agriculture, single-family dwellings, and potentially irrigation
infrastructure. These are permitted or conditionally permitted uses within the MUA-10 Zone.
C. That changing the zoning will presently serve the public health, safety and welfare
considering the following factors:
1. The availability and efficiency of providing necessary public services and facilities.
Burden. gf Progf
Page 8 of 27 {00525058-00644959;6}
FINDINGS: MUA-10 uses generally require few public services and facilities. However, such
services are available and could be efficiently provided at the site. Bend Rural Fire provides fire
protection, water could be provided by private on-site wells, and septic could be provided on-
site. Tumalo Reservoir Road, a rural collector, and Bill Martin Road, a private road provide
access to the Subject Property. The traffic study demonstrates that given the operational
characteristics of the use, the zone change will not significantly affect intersection operations or
result in a net trip generation increase that would trigger a requirement for additional
transportation analysis.
2. The impacts on surrounding land use will be consistent with the specific goals and
policies contained within the Comprehensive Plan.
FINDING: A zone change, in and of itself, does not create any impacts to surrounding areas.
Permissible development under the proposed. MUA-10 zoning will have minimal impact on
surrounding lands given the large lot requirements and that such zoning is similar to the zoning
of adjacent lands. In any event, development under the MUA-10 Zone will be far less impactful
to surrounding lands that uses permitted under the SM Zone. The relevant Comprehensive Plan
goals and policies are addressed in the findings below.
D. That there has been a change in circumstances since the property was last zoned, or
a mistake was made in the zoning of the property in question.
FINDING: The major change of circumstances since the property was zoned SM is that Site No.
357 has been exhausted and fully reclaimed. Consequently, there are no longer any viable uses
under the SM. zone and designation. The Subject Property can support some resource uses, but
not any form of commercial agriculture or forestry. DCC 18.52.200 imposes additional
requirements for changing conditions that support zone changes related to surface mining.
18.52.200. Termination of the Surface Mining Zoning and Surrounding Surface Mining
Impact Area Combining Zone.
A. When a surface mining site has been fully or partially mined, and the operator
demonstrates that a significant resource no longer exists on the site, and that the site has
been reclaimed in accordance with the reclamation plan approved by DOGAMI or the
reclamation provisions of DCC 18, the property shall be rezoned to the subsequent use
zone identified in the surface mining element of the Comprehensive Plan.
FINDING; As described in Kimble (PA -07, ZC-07-2), this standard requires that Site No.357 be
(1) fully or partially mined, (2) no longer a significant resource, and (3) reclaimed in accordance
with the reclamation plan approved by DOGAMI.
The first two elements are addressed under findings pertaining to OAR 660-023-0180, which sets
out the standards for determining whether an aggregate resource is significant. The third element
is satisfied by documentation contained in Exhibit 4 demonstrating the Site No. 357 has been
reclaimed in accordance with the DOGAMI reclamation plan and DOGAMI has approved the
reclamation of the site.
Burden gfProgf
Page 9 Of27 {00525058-00644959;6}
The mining element of the Comprehensive Plan does not identify a subsequent use for Site No.
357 and subsequent uses are not identified in the ESEE analysis for Site No. 357 adopted by the
County. The Applicant is proposing to rezone the property MUA-10 because the Subject
Property is not "agricultural land" warranting an EFU designation, as discussed below, and
because adjoining properties to the northwest and southeast are zoned MUA-10.
B. Concurrent with such rezoning, any surface mining impact area combining zone which
surrounds the rezoned surface mining site shall be removed. Rezoning shall be subject to
DCC 18.136 and all other applicable sections of DCC 18, the Comprehensive Plan and
DCC Title 22, the Uniform Development Procedures Ordinance.
FINDING: Applicant proposes to remove the SMIA overlay zone associated with Site No. 357.
The SMIA overlay is designed to protect Goal 5 significant mining resources. Sites on the Non -
Significant Mining Mineral and Aggregate Inventory do not receive the protections of the SMIA
overlay.
DESCHUTES COUNTY C011IPREHENSIVE PLAN
Section 2.2
Goal 1 Preserve and maintain agricultural lands and the agricultural industry.
Policy 2.2.1 Retain agricultural lands through Exclusive Farm Use zoning.
Goal 3 Ensure Exclusive Farm Use policies, classifications and codes are consistent with
local and emerging agricultural conditions and markets.
Policy 2.2.13 Identify and retain accurately designated agricultural lands.
FINDING: The Subject Property has never been agricultural land for purposes of the
Comprehensive Plan' and thus the policy is satisfied because the Amendment does not result in
the loss of any accurately designated "agricultural lands." A designation of agricultural lands
would be inaccurate and inconsistent with this policy. Accordingly, the proposed MUA-10
zoning is appropriate.
Section 2.4
2 Zoned for surface mining at least since 1979 with mining activities occurring prior to such zoning.
Burden of Proof
Page 10 of 27 {00525058-00644959;6}
Goal 1 Protect Goal 5 resources.
Policy 2.4.4 Incorporate new information into the Goal 5 inventory as requested by an
applicant or as County staff resources allow.
FINDING: Applicant filed this application to remove Site No. 357 from the Goal 5 significant
resource inventory based on new information (at least not reflected in the current Compressive
Plan) that the resource is depleted and has been fully reclaimed. It is thus appropriate to
incorporate this new information by removing Site No. 357 as a Goal 5 resource. It is also
appropriate to add the site to the Non -Significant Mining Mineral and Aggregate Inventory to
ensure applicant is permitted to construct and maintain irrigation infrastructure on the site to
support water conserving piping activities within the Tumalo Irrigation District.
Section 2.7
Goal 1 Coordinate with property owners to ensure protection of significant
open spaces and scenic views and sites.
Policy 2.7.1 Goal S open spaces, scenic views and sites inventories, ESEEs and programs
are retained and not repealed.
FINDING: The Subject Property is not a Goal 5 resource for any purpose other than its mining
resources, which have been exhausted. Removing Site No. 357 from the Goal 5 significant
mining resource list is consistent with this policy because the site no longer possesses the
characteristics that made it eligible for a Goal 5 significant resource listing in the first place.
Policy 2.7.3 Support efforts to identify and protect significant open spaces and visually
important areas including those that provide a visual separation between communities such
as the open spaces between Bend and Redmond or lands that are visually prominent.
FINDING: The Subject Property is significantly disturbed from past mining operations and
features a telecommunications tower. It would not be considered open space, scenic, wildlife
habitat, or appealing to tourists. However, it is subject to the Landscape Management overlay
zone associated with Tumalo Reservoir Road. Granting the proposal would facilitate more
attractive development consistent with surrounding uses, which would be guided by the
provisions of the Landscape Management Zone.
Policy 2.7.4 Encourage a variety of approaches that protect significant open spaces and
scenic views and sites.
Burden of Proof
Page 11 of 27 {00525058-00644959;6}
FINDING: As discussed above the Subject Property is not a significant open space, scenic view,
or scenic site. The Subject Property is subject to the Landscape Management overlay, which is
one of the approaches adopted by the County to preserve scenic values.
Policy 2.7.5 Encourage new development to be sensitive to scenic views and sites.
FINDING: The County Code implements this policy through it provisions regulating
development, which include the Landscape Management Zone regulations applicable to the
Subject Property. The LM overlay ensures compliance with this policy.
Section 2.10
Goal 1 Protect and utilize mineral and aggregate resources while minimizing adverse
impacts of extraction, processing and transporting the resource.
Policy 2.10.1 Goal 5 mining inventories, ESEEs and programs are retained and not
repealed.
FINDING: As the resource is depleted, the Subject Property no longer contains any Goal 5
significant resources. Non -Significant resource "mining" activities required to construct and
maintain irrigation infrastructure must be conducted in a manner compliant with county
regulations that seek to minimize impacts associated with "mining" activities. The proposed
Amendment is consistent with this policy because the Subject Property is no longer eligible for
protection as a Goal 5 significant mining resource.
Policy 2.10.2 Cooperate and coordinate mining regulations with the Oregon Department of
Geology and Mineral Industries.
FINDING: The County and Applicant coordinated with DOGAMI in obtaining appropriate
permits, performing required inspections, and finalizing reclamation of the mine. Final
reclamation materials are attached as Exhibit 4. If "mining" of non-significant resources to
construct and maintain irrigation infrastructure occurs on the property, applicant will be subject
to applicable DOGAMI regulations and those found in the Deschutes County Code.
Policy 2.10.3 Balance protection of mineral and aggregate resources with conflicting
resources and uses.
FINDING: The County satisfies this policy through implementation of the Surface Mining
Impact Area Overlay Zone. Sites on the Non -Significant Mining Mineral and Aggregate
Inventory do not receive the benefit of the SMIA overlay zone.
Burden of Progf
Page 12 of 27 {00525058-00644959;6}
Policy 2.10.5 Review surface mining site inventories as described in Section 2.4, including
the associated Economic, Social, Environmental and Energy (ESEE) analyses.
FINDING: The purpose of this application is to have the County update its Goal 5 inventory to
remove Site No. 357 from the significant resource list to the Non -Significant Mining Mineral
and Aggregate Inventory. Non-significant resources are not subject to the Goal 5 listing process
for significant resources, which includes an ESEE analysis. To the extent an ESEE is required,
the adopted ESEE for Site No. 357 is still sufficient. This review and update based on current
conditions consistent with Policy 2.10.5.
Policy 2.10.6 Support efforts by private property owners and appropriate regulatory
agencies to address reclamation of Goal 5 mine sites approved under 660-016 following
mineral extraction.
FINDING: Applicant has worked with the County and DOGAMI to appropriately reclaim the
Site No. 357 following depletion of the significant mineral resource.
Section 2.11
FINDING: The Subject Property is not a cultural or historic resource.
Section 3.3
Goals and Policies
Goal 1 Maintain the rural character and safety of housing in unincorporated Deschutes
County.
Policy 3.3.1 The minimum parcel size for new rural residential parcels shall be 10 acres.
FIDNING: Applicant is proposing MUA-10 Zoning, which allows for residential uses, but
requires a minimum parcel size of 10 acres consistent with this policy.
Policy 3.3.2 Incorporate annual farm and forest housing reports into a wider system for
tracking the cumulative impacts of rural housing development.
FINDING: The Subject Property is not zoned for exclusive farm or forest use and applicant is
not proposing such zoning. This policy is not applicable.
Policy 3.3.3 Address housing health and safety issues raised by the public, such as:
a. The number of large animals that should be permitted on rural residential parcels; or
Burden of Proqf
Page 13 of 27 (00525058-00644959;6)
b. The properties south of La Pine, in Township 225, Range 10E, Section 36, many of which
are not in compliance with planning and building codes.
FINDING: These concerns are addressed in County Code. Any development will be subject to
applicable County Code restrictions.
Policy 3.3.4 Encourage new subdivisions to incorporate alternative development patterns,
such as cluster development, that mitigate community and environmental impacts.
FINDING: No subdivision is currently proposed for the Subject Property.
Policy 3.3.5 Maintain the rural character of the County while ensuring a diversity of
housing opportunities, including initiating discussions to amend State Statute and/or
Oregon Administrative Rules to permit accessory dwelling units in Exclusive Farm Use,
Forest and Rural Residential zones.
FINDING: The MUA-10 Zoning best meets the objectives of this policy as it maintains a more
rural appearance while allowing limited housing opportunities.
Goal 2 Support agencies and non -profits that provide affordable housing.
FINDINGS: The policies under this goal are not applicable.
Section 3.4 Rural Economy Policies
Goal 1 Maintain a stable and sustainable rural economy, compatible with rural lifestyles
and a healthy environment.
Policy 3.4.1 Promote rural economic initiatives, including home-based businesses, that
maintain the integrity of the rural character and natural environment.
a. Review land use regulations to identify legal and appropriate rural economic
development opportunities.
FINDING: The Subject Property was previously capable of supporting rural economic
opportunities and the County complied with the provision by imposing the SM zoning and
designation. Now that the significant resource is exhausted it cannot support such opportunities.
Given the surrounding residential and EFU lands and the Landscape Management overlay, it is
not an appropriate site for either rural commercial or rural industrial uses. The MUA-10 zone
allows for home occupations in accordance with this policy.
Policy 3.4.7 Within the parameters of State land use regulations, permit limited local -
serving commercial uses in higher -density rural communities.
FINDING: The Subject Property and surrounding area is not a higher -density rural community.
Burden ofProgf
Page 14 of 27 {00525058-00644959;6}
Lands Designated and Zoned Rural Commercial
FINDING: The Subject Property is not zoned nor proposed to be zoned or designated Rural
Commercial.
Lands Designated and Zoned Rural Industrial
FINDING: The Subject Property is not zoned nor proposed to be zoned or designated Rural
Industrial.
Section 3.5 Natural Hazards Policies
Goal 1 Protect people, property, infrastructure, the economy and the environment from
natural hazards.
Policy 3.5.4 Provide incentives and if needed regulations, to manage development in areas
prone to natural hazards.
FINDING: The Subject Property is not prone to natural hazards. Although wildfire is a risk, the
Subject Property is not more prone to wildfire than other areas in the County. The County's
wildfire and vegetation management ordinances and regulations sufficiently mitigate any natural
hazard risks associated with the Subject Property under the proposed Amendment.
Policy 3.5.5 Development should be designed to minimize alteration of the natural land
form in areas subject to slope instability, drainage issues or erosion.
FINDING: There is no current development proposal associated with the Subject Property.
However, reclamation requirements addressed stability, drainage, and erosions issues. If the
Subject Property is subdivided or otherwise developed, it will be subject to County Code
requirements that address slope stability, drainage, and erosion.
Policy 3.5.6 Critical facilities (schools, churches, hospitals and other facilities as defined by
the Federal Emergency Management Agency) should be located outside high risk natural
hazard areas, where possible.
FINDING: The Subject Property is not a high-risk area and no critical facility is proposed.
Policy 3.5.7 Address wildfire danger particularly in the wildland urban interface.
a. Survey and map wildfire hazard at risk areas using the Wildfire Hazard Identification
and Mitigation System.
b. Survey and map all areas not protected by structural fire protection agencies.
Burden of Progf
Page 15 of 27 {00525058-00644959;6}
FINDING: Prior survey and mapping efforts reveal that the Subject Property is in a fire hazard
zone, but so is the overwhelming majority of the County. The Subject Property is not located in
the wildland urban interface and is that at less risk of wildfire that other area. Moreover, the
Subject Property is within the boundaries of Rural Fire District #2, which satisfies the policy of
addressing wildfire risk.
Policy 3.5.10 Regulate development in designated floodplains identified on the Deschutes
County Zoning Map based on Federal Emergency Management Act regulations.
FINDING: The Subject Property is not within a flood plain.
Section 3.6 Public Facilities and Services Policies
Goal 1 Support the orderly, efficient and cost-effective siting of rural public facilities and
services.
Policy 3.6.1 Encourage the formation of special service districts to serve rural needs rather
than have the County serve those needs.
FINDING: The Subject Property is within a rural fire district, which was established to serve
rural needs in satisfaction of this policy.
Policy 3.6.2 Encourage early planning and acquisition of sites needed for public facilities,
such as roads, water and wastewater facilities.
FINDING: The Subject Property is already serviced with functioning roads including Tumalo
Reservoir Road and Bill Martin Road. Water and wastewater services could be provided
privately on-site through wells and septic systems. The County has not identified any need to
acquire any portion of the Subject Property for public facilities.
Policy 3.6.9 New development shall address impacts on existing facilities and plans through
the land use entitlement process.
FINDING: Any subdivision or other development on the Subject Property will be subject to the
land use entitlement process which requires a demonstration of how such development can be
served with public facilities.
Policy 3.6.11 Where possible, locate utility lines and facilities on or adjacent to existing
public or private right-of-ways and to avoid dividing farm or forest lands.
Burden nf'Progf
Page 16 of 27 {00525058-00644959;6}
FINDING: The Subject Property is served by utilities within rights-of-way and is not farm or
forest lands.
Policy 3.6.14 Guide the location and design of rural development so as to minimize the
public costs of facilities and services.
FINDING: This policy is directed at the County to draft its implementing land use regulations in
a manner that minimizes public costs of facilities and services. The County has achieved this
objective through provisions of the Deschutes County Code that regulate the location and scope
of development within the County. The Subject Property is already served roads providing
access and electricity is already on-site to the telecommunications tower. Water and wastewater
can be provided for on-site. Development of the Subject Property will have minimal public costs
because any development must be consistent with the Deschutes County Code.
OREGON OARs
OAR 660, Division 12 Transportation Planning Rule:
OAR 660-12-0060 Plan and Land Use Regulation Amendments
(1) Where an amendment to a functional plan, an acknowledged comprehensive plan,
or a land use regulation would significantly affect an existing or planned transportation
facility, the local government shall put in place measures as provided in section (2) of this
rule to assure that allowed land uses are consistent with the identified function, capacity,
and performance standards (e.g. level of service, volume to capacity ratio, etc.) of the
facility. A plan or land use regulation amendment significantly affects a transportation
facility if it would:
(a) Change the functional classification of an existing or planned transportation facility
(exclusive of correction of map errors in an adopted plan);
(b) Change standards implementing a functional classification system; or
(c) As measured at the end of the planning period identified in the adopted
transportation system plan:
(A) Allow land uses or levels of development that would result in types or levels of travel
or access that are inconsistent with the functional classification of an existing or planned
transportation facility;
(B) Reduce the performance of an existing or planned transportation facility below the
minimum acceptable performance standard identified in the TSP or comprehensive plan;
or
Burden Qf Proof
Page 17 of 27 {00525058-00644959;6}
(C) Worsen the performance of an existing or planned transportation facility that is
otherwise projected to perform below the minimum acceptable performance standard
identified in the TSP or comprehensive plan.
(2) Where a local government determines that there would be a significant effect,
compliance with section (1) shall be accomplished through one or a combination of the
following:
(a) Adopting measures that demonstrate allowed land uses are consistent with the
planned function, capacity, and performance standards of the transportation facility.
(b) Amending the TSP or comprehensive plan to provide transportation facilities,
improvements or services adequate to support the proposed land uses consistent with the
requirements of this division; such amendments shall include a funding plan or mechanism
consistent with section (4) or include an amendment to the transportation finance plan so
that the facility, improvement, or service will be provided by the end of the planning
period.
(c) Altering land use designations, densities, or design requirements to reduce demand
for automobile travel and meet travel needs through other modes.
(d) Amending the TSP to modify the planned function, capacity or performance
standards of the transportation facility.
(e) Providing other measures as a condition of development or through a development
agreement or similar funding method, including transportation system management
measures, demand management or minor transportation improvements. Local
governments shall as part of the amendment specify when measures or improvements
provided pursuant to this subsection will be provided.
(3) Notwithstanding sections (1) and (2) of this rule, a local government may approve an
amendment that would significantly affect an existing transportation facility without
assuring that the allowed land uses are consistent with the function, capacity and
performance standards of the facility where:
(a) The facility is already performing below the minimum acceptable performance
standard identified in the TSP or comprehensive plan on the date the amendment
application is submitted;
(b) In the absence of the amendment, planned transportation facilities, improvements
and services as set forth in section (4) of this rule would not be adequate to achieve
consistency with the identified function, capacity or performance standard for that facility
by the end of the planning period identified in the adopted TSP;
(c) Development resulting from the amendment will, at a minimum, mitigate the
impacts of the amendment in a manner that avoids further degradation to the performance
Burden. ofProgf
Page 18 gf 27 (00525058-00644959;6)
of the facility by the time of the development through one or a combination of
transportation improvements or measures;
(d) The amendment does not involve property located in an interchange area as defined
in paragraph (4)(d)(C); and
(e) For affected state highways, ODOT provides a written statement that the proposed
funding and timing for the identified mitigation improvements or measures are, at a
minimum, sufficient to avoid further degradation to the performance of the affected state
highway. However, if a local government provides the appropriate ODOT regional office
with written notice of a proposed amendment in a manner that provides ODOT reasonable
opportunity to submit a written statement into the record of the local government
proceeding, and ODOT does not provide a written statement, then the local government
may proceed with applying subsections (a) through (d) of this section.
FINDING: The Traffic Study attached as Exhibit 5, demonstrates that the proposal will not
significantly affect any transportation facility as the reasonable worst-case scenario generally
produces the same if not fewer trips than permitted uses under this existing zoning. The
threshold question in determining whether a. significant effect occurs is whether the proposed
change would allow uses that would have a more detrimental impact on a transportation facility
than the uses allowed' by the existing acknowledged plan and zone designations. Friends of
Marion County v. City of Keizer, LUBA No. 2003-036, 45 Or LUBA 236, 253-254, aff d
without opinion, 191 Or App 148 (2003); .Masan v. City of Corvallis, LUBA No. 2004-152, 49
Or LUBA 199, 222 (2005) (no significant effect when amended plan and zoning would generate
less traffic from the Subject Property than uses allowed under the existing amended plan and
zoning).
The primary use permitted under the existing zoning and plan designation is surface mining.
Surface mining is not addressed in the ITE manual as the manual is largely limited to urban and
suburban uses. Kittelson & Associates, Inc. ("Kittelson") conducted a trip generation study of
surface mines throughout the state of Oregon attached as Exhibit 6. The County accepted the
results of the Kittelson study for the Lower Bridge Site, The Kittelson study revealed that site
size is not a primary determinant of trips. Other factors, which are more difficult to measure, and
3 The appropriate unit of analysis is allowed uses before and after the proposed Amendment and not actual uses
before and allowed uses under the proposed Amendment. This is because the Transportation Planning Rule
obligates local governments to plan their transportation infrastructure based on assumed reasonable worse case (i.e.
highest trip generating use) scenarios for the mix of zoning/plan designations authorized under the local
government's comprehensive plan. Because the County's Comprehensive Plan designated the subject property as
surface mining, the County built in capacity to its transportation infrastructure for a reasonable worst-case scenario
for uses permitted in the SM zone. This capacity exists regardless of how the site is actually used. Accordingly, the
appropriate analysis is not actual use (i.e. inactive mining operation) versus the reasonable worst-case scenario under
the proposed Amendment, but the reasonable worst-case scenario under the existing zoning and plan designation
and the reasonable worst-case scenario under the proposed Amendment. Because the latter analysis reveals that the
reasonable worst-case scenario under the Proposed Amendment will allow uses that produce the same if not fewer
trips, the capacity built into transportation infrastructure still exists and there is no significant impact requiring
mitigation.
Burden of Proqf
Page 19 of 27 (00525058-00644959;6)
fluctuate over time (i.e. demand for material produced on the site, extent of on-site processing,
etc.), also influence the trip rate.
Because the survey looks at a number of sites with different characteristics, it is representative of
surface mining in general, which is the general goal of the ITE manual. Thus, taking a raw
average of these sites is an appropriate proxy for surface mining in general. Such an average
yields 53 average weekday PM peak hour trips ("PM Trips") as the base number of PM Trips for
the current zoning.4 Alternatively, multiplying the acreage of the Subject Property by the
average number of PM Trips per acre from the surveyed properties yields 643 as the base
number of PM Trips.
Under the proposed Amendment, the most intensive use is detached single family residential
uses, which are limited to 1 per 10 acres or 54 total dwellings. The ITE manual assigns single-
family detached housing 1 PM Trip per dwelling, yielding a total of 54 PM Trips. The single
additional PM Trip over the conservative estimate of surface mining PM Trips will have a
negligible effect on transportation facilities in the vicinity of the Subject Property. Accordingly,
no transportation facilities are significantly affected by the proposed Amendment and no action
is required under OAR 660-12-0060(2).
OAR 660, Division 15, Statewide Planning Goals and Guidelines
Goal 1, Citizen Involvement. The proposed Amendment satisfies this goal because the Planning
Division will provide public notice of the Applicant's proposal through individual mailed notice
to affected property owners and interested persons, posting of the Subject Property with a notice
of proposed land use action sign, and published notice of the public hearing in the "Bend
Bulletin" newspaper. In addition, two public hearings will be held before the proposed Plan
Amendment is approved, one before the Hearings Officer and one before the Deschutes County
Board of Commissioners. The Staff Report and Hearings Officer decision will provide the public
with information concerning the proposed Plan Amendment.
Goal 2, Land Use Planning. The proposed Amendment will be reviewed in accordance with the
County's acknowledged planning review processes, and will be subject to at least two public
hearings. Further, no Goal 2 exceptions are required. The proposal is consistent with this goal.
Goal 3, Agricultural Lands. Because the Subject Property was zoned and designated for
surface mining since the inception of County zoning, it is not "agricultural land" or otherwise
subject to Goal 3.
Goal 4, Forest Lands. This goal is not applicable because the Subject Property is not zoned or
designated for forest use.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The Subject
Property is not listed in the County inventory of historic sites or lands designated for open space.
4 One of the study sites did not allow trucking after 3:30 pm, which resulted in the fewest PM peak hour trips and
trips per acre of any of the sites in the study. Removing this site from the sample yields an average of 61 PM Trips
among the studied sites.
Burden of Proqf
q 2d
Page 27 (00525058-00644959;6)
�
The Subject Property has few if any natural resource values given the history of surface mining.
The Subject Property no longer contains any significant sources of aggregate. Compliance with
OAR 660, Division 23 is addressed below.
Goal 6, Air, Water and Land Resources Quality. No specific development is proposed at this
time. Development of the Subject Property would not likely result in significant adverse impacts
to air, water, or land resources quality as compared to historical mining uses.
Goal 7, Areas Subject to Natural Disasters and Hazards. The Subject Property is not an area
subject to special natural disasters or hazards. Wildfire risk is addressed by the County's
wildfire and vegetation management ordinances and regulations.
Goal 8, Recreational Needs. The proposal does not reduce or eliminate opportunities for
recreational facilities either on the Subject Property or in the area.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the
state for a variety of economic activities. This goal is met because the rezoning of the Subject
Property will promote continued economic development. It will allow the currently undeveloped
and unused property to be put to a productive use yielding greater property taxes.
Goal 10, Housing. Goal 10 defines needed housing as housing within urban growth boundaries.
The Subject Property is outside a UGB, and therefore Goal 10 is not applicable.
Goal 11, Public Facilities and Services. This Goal requires planning for public services,
including public services in unincorporated areas. Applicant's proposal will have no adverse
effect on the provision of public facilities and services to the site.
Goal 12, Transportation. This goal is to "provide and encourage a safe, convenient and
economic transportation system." It is implemented through OAR 660-012, commonly known
as the "TPR." Because there is no significant impact to a transportation facility, the proposal is
consistent with Goal 12.
Goal 13, Energy Conservation. The proposed Amendment will not result in an increase or
inefficient use of energy. The proposed uses before and after the Amendment are similar in
terms of energy consumption and trip generation.
Goal 14, Urbanization. The Subject Property is not within an urban growth boundary.
Nonetheless, the proposal provides for an orderly and efficient transition from rural to urban land
use because the proposal does not expand urban uses into a rural area and does not inhibit the
continued viability of surrounding rural uses.
Goals 15 through 19, These goals, which address river, ocean, and estuarine resources, are not
applicable because the Subject Property is not located in or adjacent to any such areas or
resources.
Burden of Proof
Page 21 of 27 (00525058-00644959;6)
OAR 660-023-010, Definitions
As used in this division, unless the context requires otherwise:
(5) "PAPA" is a "post -acknowledgement plan amendment" The term encompasses actions
taken in accordance with ORS 197.610 through 197.625, including amendments to an
acknowledged comprehensive plan or land use regulation and the adoption of any new plan
or land use regulation. The term does not include periodic review actions taken in
accordance with ORS 197.628 through 197.650.
FINDINGS: In the Stott (PA-98-12/ZC-98-6) and Kimble (PA-07-2/ZC-07-2) decisions, the
Hearings Officer held that a plan amendment and zone change to "de -list" and rezone an
inventoried surface mining site constitutes a "PAPA," and therefore the provisions of OAR 660-
023-0180 concerning mineral and aggregate resources apply to such an application to the extent
they reasonably can be applied to a decision to remove a site from the county's adopted inventory
and/or add a site to the Non -Significant Mining Mineral and Aggregate Inventory.
660-023-0180
Mineral and Aggregate Resources
(2) Local governments are not required to amend acknowledged inventories or plans with
regard to mineral and aggregate resources except in response to an application for a post
acknowledgement plan amendment (PAPA) or at periodic review as specified in section (9)
of this rule. The requirements of this rule modify, supplement, or supersede the
requirements of the standard Goal 5 process in OAR 660-023-0030 through 660-023-0050,
as follows:
FINDING: The proposed Amendment constitutes a PAPA. OAR 660-023-0030 through 0050
describe this Goal 5 inventory and listing process and are thus not applicable.
(b) Local governments shall apply the criteria in section (3) or (4) of this rule, whichever is
applicable, rather than OAR 660-023-0030(4), in determining whether an aggregate
resource site is significant;
FINDING: As outlined in the Stott and Kimball decisions, a determination of significance is
required to de -list a Goal 5 aggregate resource. OAR 660-023-0180(3) and (4), which establish
the thresholds for significance, are addressed below.
Burden of Proof
Page 22 of 27 {00525058-00644959;6}
(3) An aggregate resource site shall be considered significant if adequate information
regarding the quantity, quality, and location of the resource demonstrates that the site
meets any one of the criteria in subsections (a) through (c) of this section, except as
provided in subsection (d) of this section:
(a) A representative set of samples of aggregate material in the deposit on the site meets
applicable Oregon Department of Transportation (ODOT) specifications for base rock for
air degradation, abrasion, and soundness, and the estimated amount of material is more
than 2,000,000 tons in the Willamette Valley, or more than 500,000 tons outside the
Willamette Valley;
FINDING: The County's Goal 5 inventory indicates that the Site No. 357 contains the
following:
Site No. Taxlot Name
357
357
357
161136-
DO -
00100,
161100-
00-10400,
10300
161136-
DO -
00100,
161100-
00-10400,
10300
161136-
DO -
00100,
161100-
00-10400,
10300
*Quantity in cubic yards
Tumalo
Irrigation
Tumalo
Irrigation
Tumalo
Irrigation
Tyyc uantit * Ouality Access/Location
Cinders
Pumice
iM
500,000
Good
Good
Johnson
Road/Tumalo
The material at the site never satisfied the OAR 660-023-0180(3)(a) standard for significance.
According to the memo attached as Exhibit 8 from J. Andrew Siemens of Siemens & Associates,
a registered engineer specializing in geologic engineering who performed material testing at the
site when it was operation, cinders and pumice are too brittle to meet ODOT standards. This
determination is consistent with prior decisions. See PA-02-8/ZC-02-4, p.6 ("The Hearings
Burden of Proof
Page 23 of 27 {00525058-00644959;6}
Officer is aware that pumice does not meet ODOT standards for base rock.", "In Central Oregon,
aggregate resources meeting ODOT standards typically consist of basalt").
Despite the indication of significant sand and gravel in the Goal 5 Inventory, Mr. Siemens
concludes that the geology of the Subject Property could only have yielded trace amounts of
sand and gravel. This conclusion is consistent with mining activities as no significant sand and
gravel was harvested from the site despite the large percentage of the property subject to mining
activities.
Even if the pumice and cinders met ODOT standards, a sufficient amount of these materials has
been removed such that the site does not possess the 500,000 ton significance threshold for sites
outside of the Willamette Valley. Based on aerial photographs, site geology, and on-site
investigations, Mr. Siemens estimates that approximately one million cubic yards of cinder and
more than 2.8 million tons on pumice have been extracted from the site. This is all of the cinder
and substantially more of the pumice than was originally thought to be contained at the site by
the Goal 5 Inventory. To the extent the site ever met the OAR 660-023-0180(3)(a) standard for
significance, all significant material has been removed such there is no longer a "deposit" on the
site.'
(b) The material meets local government standards establishing a lower threshold for
significance than subsection (a) of this section; or
FINDING: Deschutes County does not have a lower threshold for significance.
(c) The aggregate site was on an inventory of significant aggregate sites in an acknowledged
plan on September 1, 1996.
FINDING: In Stott and Coats (PA-04-04/ZC-04-2), the Hearings Officer found that subsection
(c) is not applicable to a PAPA seeking to de -list an inventoried Goal 5 resource.
(d), Notwithstanding subsections (a) and (b) of this section, except for an expansion area of
an existing site if the operator of the existing site on March 1, 1996, had an enforceable
property interest in the expansion area on that date, an aggregate site is not significant if
the criteria in either paragraphs (A) or (B) of this subsection apply:
(A) More than 35 percent of the proposed mining area consists of soil classified as Class I
on Natural Resource and Conservation Service (NRCS) maps on June 11, 2004; or
(B) More than 35 percent of the proposed mining area consists of soil classified as Class II,
or of a combination of Class II and Class I or Unique soil, on NRCS maps available on
June 11, 2004, unless the average thickness of the aggregate layer within the mining area
exceeds:
5 The majority of the cinder was used on-site for road building. While the cinder thus remains on the site, OAR 660-
023-0180(3)(a) requires that the resource be a "deposit." Because the cinder was extracted from the earth and put
towards a second use it is no longer a deposit as there is no economical way to mine the "resource" after its been
incorporated into roadways, some of which continue to serve the property.
Burden of Proof
Page 24 of 27 {00525058-00644959;6}
(i) 60 feet in Washington, Multnomah, Marion, Columbia, and Lane counties;
(ii) 25 feet in Polk, Yamhill, and Clackamas counties; or
(iii) 17 feet in Linn and Benton counties.
FINDING: The Subject Property does not contain any Class I, Class II, or "Unique" soils as
shown on the soil map attached as Exhibit 7.
(4) Notwithstanding section (3) of this rule, a local government may also determine that an
aggregate resource site on farmland is significant if subsections (a) and (b) of this section
apply or if subsection (c) of this section applies:
FINDING: "Farmland" is defined in OAR 660-023-0180(1)(e) as "land planned and zoned for
exclusive farm use pursuant to Goal 3 and OAR chapter 660, division 033." The Subject
Property is not zoned EFU and is thus not "farmland."
(5) For significant mineral and aggregate sites....
(f) Where mining is allowed, the local government shall determine the post -mining use and
provide for this use in the comprehensive plan and land use regulations. For significant
aggregate sites on Class I, II and Unique farmland, local governments shall adopt plan and
land use regulations to limit post -mining use to farm uses under ORS 215.203, uses listed
under ORS 215.213(1) or 215.283(1), and fish and wildlife habitat uses, including wetland
mitigation banking. Local governments shall coordinate with DOGAMI regarding the
regulation and reclamation of mineral and aggregate sites, except where exempt under
ORS 517.780.
FINDING: As discussed above, the Subject Property is not a significant mining resource site
and should be thus be transferred to the County's Non -Significant Mining Mineral and
Aggregate Inventory. The County's Comprehensive Plan and ESEE analysis for Site No. 357
does not contain a stated post -mining use as the site was designated prior to the adoption of this
rule. The Subject Property is not "farmland" and does not contain any Class I, 11, or "Unique"
and is thus not limited to the uses permitted under ORS 215.203, 215.213, or 215.283.
Deschutes County coordinated with DOGAMI regarding the regulation and reclamation of Site
No. 357. To the extent this provision applies to listing a site on a local Non -Significant Mining
Mineral and Aggregate Inventory, applicant would propose the post -mining use be designated as
any uses permitted in the MUA-10, which is the proposed zoning set forth by this application.
Burden of Proof
Page 25 of 27 (00525058-00644959;6}
(6) For an aggregate site on farmland that is determined to be significant under section (4)
of this rule, the requirements of section (5) of this rule are not applicable, except for
subsection (5)(f), and the requirements of OAR 660-023-0040 though 660-023-0050 are not
applicable. Instead, local governments shall decide whether mining is permitted by
applying subsections (a) through (d) of this section:
FINDING: As addressed above, the Subject Property is not "farmland" and is not a significant
site for any Goal 5 purpose.
(7) Except for aggregate resource sites determined to be significant under section (4) of this
rule, local governments shall follow the standard ESEE process in OAR 660-023-0040 and
660-023-0050 to determine whether to allow, limit, or prevent new conflicting uses within
the impact area of a significant mineral and aggregate site. (This requirement does not
apply if, under section (5) of this rule, the local government decides that mining will not be
authorized at the site.)
FINDING: As shown in the findings under subsection (4), the Subject Property is not a
"significant mineral and aggregate site." Because it is not a significant mining resource site, no
ESEE analysis is required to list the Subject Property on the Non -Significant Mining Mineral and
Aggregate Inventory as the purpose of the ESEE analysis is to protect significant mineral and
aggregate sites.
(8) In order to determine whether information in a PAPA submittal concerning an
aggregate site is adequate, local government shall follow the requirements of this section
rather than OAR 660-023-0030(3). An application for approval of an aggregate site
following sections (4) and (6) of this rule shall be adequate if it provides sufficient
information to determine whether the requirements in those sections are satisfied. An
application for a PAPA concerning a significant aggregate site following sections (3) and (5)
of this rule shall be adequate if it includes:
FINDING: As discussed above, the Subject Property does not contain a significant aggregate
site and is not located on "farmland." Subsection (8) does not contain any applicable standards
for the proposed Amendment. This provision is also no applicable to a proposal to add a property
to the Non -Significant Mining Mineral and Aggregate Inventory as it only establishes procedures
and thresholds for significant aggregate sites. To the extent this provision applies to listing a
property on the Non -Significant Mining Mineral and Aggregate Inventory, sufficient information
has been submitted to determine that the material on site does not qualify as a significant Goal 5
resource. Specifically, Exhibit 8 demonstrates that the material on site does not meet ODOT
standards and specifications and, even if it did, there is not a sufficient quantity of materials to
meet significance thresholds.
Burden of Proof
Page 26 of 27 {00525058-00644959;6}
V. CONCLUSION:
Applicant has met all criteria necessary for a Zone Change and Plan Amendment to rezone the
Subject Property from SM to MUA-10, to remove Site No. 357 from the significant mining
resource inventory to the Non -Significant Mining Mineral and Aggregate Inventory, and to
remove the associated SMIA overlay zone.
Dated this 21 st day of September 2017
GAR ETT CHROSTEK OSB#122965
Of Attorneys for Applicant
Burden of Proof
Page 27 of 27 (00525058-00644959;6}
Zoning Map of Subject Property
9
WS• N ,.
ot
a v a. w-asa• z-d4
o �,dd* oi'vnw. dVV4 ONINOZ
CIA . (W'7)...... oa-nda• r .
etBitl e141 e19ee0ddy seas].. a-v o•sso• of naa AlNnoo Sain HOSaaleeo,ddydeW
_. _..
e4oza4wl9woa—t 1 (H-V)•-»•� aWS. OZ6-nd3 e
. eluawPuewtl 6uluoZ l01�1110
C, W Ce
tL
l #.
a� • ,•�• a LhF i � � � ' f 1
O
' f\ y 111 Q � �' C.l �A � ����•
. a
p a
w
tL
LL i; O •
p i
Ir
IL
LL
d h av
{ W W
a a cc
o 74n;7
0 rI Y •
N N
cc
LL r � j � ; �ji �i, � gR — kit . • �1
U) V 1A LL
a
N,
l
N is
1
r
wl
IL
i
IL y a d
------------
! to
f,
Cvnthia Smidt
From: Bradaigh <bholt@ykwc.net>
Sent: Thursday, July 19, 2018 10:30 AM
To: Cynthia Smidt
Subject: Re: 247-18-000241-A / 247-18-000247-A / 247-17-000775-ZC / 247 -17 -000776 -PA
Yes, please! Thank you!
Regards,
Jim Holt
Sent from my iPhone.
Typos are its way of getting even with me!
On Jul 19, 2018, at 09:45, Cynthia Smidt <Cynthia.Smidt@deschutes.org> wrote:
Hi Jim,
Are these comments you want to submit into the record? Please confirm.
Thanks.
Cynthia Smidt I Associate Planner
Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and
shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any
rights, including any reliance rights, on any person.
From: Bradaigh Holt <BHolt @ykwc.net>
Sent: Wednesday, July 18, 2018 7:23 PM
To: Cynthia Smidt <Cvnthia.Smidt@deschutes.org>
Subject: 247-18-000241-A / 247-18-000247-A / 247-17-000775-ZC / 247 -17 -000776 -PA
Facts in contention subject Zone Change appeal
Page Paragraph Issue
3 6 There are no apparent agricultural uses at these properties.
Incorrect: House at top of hill on Mock Road and huge marijuana grow
farm on Mock Road and Hay Production immediately adjacent to the north
boundary/west side.
Reclaiming resulted in land useless for farming. Incorrect: The land to the
west is supporting agriculture after being reclaimed. The land to the east
half on the north has supported hay production since the top 1-3 feet of top
soil is replaced on the over burden, and is as good as the land was before.
10 CA Bill Martin Road is a private road. Incorrect — it is a road dedicated to the
County as a public road.
12 2.10.2 The County and Applicant [sic] not Cascade Pumice, coordinated with
DOGAMI. Actually, only Cascade Pumice met with DOGAMI to close the
site. (See Exhibit 4, page 2 of 6.
14 Section 3.4 Goal 1, Policy 3.4.1a. Finding: Home Occupations also allowed in EFU
14 Section 3.3.4 No subdivision currently proposed for Subject Property. Incorrect, if the
land contiguous to the subject property had been properly develop as a
subdivision, then a tentative map of the 540 Acres was required, and with
74 MUA-10 lots, a subdivision would have been required.
15 Policy 3.5.4 The subject is not prone to natural disasters. During the winter (Feb -
March) 2017, numerous sinkholes developed in the area, including under
Bill Martin Road (closing it and causing the County to spend $21,000 for for
temporary repair, of which only 3/4ths was repaid by TID.
19 OAR 660 -Div 12 (3) a findings: This will not affect any transportation facility. Incorrect:
first, staff never reached out to ODOT for comment as Highway 20 is only 2
miles away and is the third worst accident area in the County for ODOT
Highways. Secondly, the Traffic Study is sufficiently flawed. The
calculations were erroneously made as approximate proxy for surface
mining in general.
ORS 517.760 b Policy: Proper reclamation of surface mined land is necessary to prevent
undesirable land and water conditions that would be detrimental to the
general welfare, health, safety & property rights of the citizens of this state.
ORS 517.760.2.b The Legislative Assembly therefore declares the purposes of ORS 517.702
to 517.951 are:
517.702.2.b
To provide for cooperation between private and government entities in
carrying out the purposes of ORS 517.702 to 517.951 and reclamation of
abandoned mined land that may pose a hazard to public health, safety, or
the environment.
Regards,
Jim Holt