2001-716-Ordinance No. 2001-027 Recorded 9/27/2001REVIEWED
LEGAL COUNSEL
REVIEWED
fQ
CODE REVIEW COMMITTEE
COUNTY OFFICIAL
MARYHSUE SPENHOLLOW, COUNTYRCLERKS C 2001416
COMMISSIONERS' JOURNAL 09/27/200103:23:49 PM
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Title 23, Deschutes County
Year 2000 Comprehensive Plan, Revising the
Mineral and Aggregate Resource Inventory for
Deschutes County, and Declaring an Emergency.
ORDINANCE NO. 2001-027
WHEREAS, tax lots 300, 301, and 302 in Section 17 of Township 12 South, Range 6 East, Willamette
Meridian (the subject site), is designated as Surface Mining under the County's Zoning Ordinance; and
WHEREAS, the subject property is listed as Site No. 304 on the County's inventory of mineral and
aggregate resource sites, as set forth in Exhibit "G" to Ordinance No. 90-025; and
WHEREAS, Barbara Fraser has proposed a Plan Amendment to Title 23, File Number PA -00-7, to
delete the subject property from the County's inventory of significant mineral and aggregate resources; and
WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with
applicable law, approved the proposed Plan Amendment; and
WHEREAS, after notice was given and hearing conducted on September 26, 2001, before the Board of
County Commissioners in accordance with applicable law, and after reviewing all the evidence presented at the
public hearing, the Board agrees with the findings of the Hearings Officer; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. The Resource Management section of Title 23, the Deschutes County Year
2000 Comprehensive Plan, is amended to delete surface mining Site No. 304 from the County's Goal 5
inventory of mineral and aggregate sites as set forth in Exhibit "A," attached hereto and incorporated herein by
this reference with deletions shown in str-ilm ..ieth-r^
*�~u
Section 2. FINDINGS. The Board adopts as its findings in support of this decision, the Decision of the
Deschutes County Hearings Officer, attached hereto as Exhibit `B," and incorporated herein by reference.
PAGE 1 OF 1 -ORDINANCE NO. 2001-027 (09/26/01)
Section 3. EMERGENCY. This Ordinance being necessary for the immediate preservation of the
public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage.
DATED thig0day of September, 2001.
BOARD OF COUNTY COMMISSIONERS OF DESCHUTES
COUNTY, OREGON
Tom DeW f, Chair
/1
ATTEST: D nnis R. Luke, Commissioner
Recording Secretary Nfichfiel M. baly, Commis ' ner
PAGE 2 OF 1 - ORDINANCE NO. 2001-027 (09/26/01)
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DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS:
APPLICANT/
OWNER:
PA -00-7 & ZC-00-4
Barbara Fraser
ATTORNEY: Robert Loviien
Bryant, Lovlien & Jarvis, P.C.
P.O. Box 1151
Bend, Oregon 97709
REQUEST: The applicant is requesting a plan amendment and zone change from
Surface Mining (SM) to Exclusive Farm Use (EFUTRB).
STAFF CONTACT: Catharine Tilton, Associate Planner
HEARING DATES: Tuesday, October 17, 2000, and Tuesday, February 20, 2001
RECORD CLOSED: Tuesday, February 20, 2001 .
I. APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code, Deschutes County Zoning Ordinance.
A. Chapter 18.16, Exclusive Farm Use (EFU) Zone
* Section 18.16.020, Uses permitted outright
B. Chapter 18.52, Surface Mining (SM) Zone
* Section 18.52.0200, Termination of the surface mining zoning and surrounding
surface mining impact area combining zone
C. Chapter 18.136, Amendments
* Section 18.136.020, Rezoning standards
Deschutes County Year 2000 Comprehensive Plan
OAR Chapter 660
* OAR 660-23-0180, Mineral and Aggregate Resources
* OAR 660-12-060
* OAR 660-15
PA -00 -MC -00-4
Page 1- DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
�M
APR 2OM
MAILED
DESCHUTES
COUKTZ
Exhibit $
Page I of
Ordinance 'U01- 6171--
0
ASIC FINDINGS OF FAC
i
A. LOCATION: Surface Mining Site number 304 is located west of O.B. Riley Road and
north of Tumalo Reservoir Road. Deschutes River and Highway 20 are about an eighth
of a mile east of the site. Site 304 consists of three tax lots: 17-12-06, tax lots 300, 301
and 302. The addresses for the site include: 64345 O.B. Riley Road (tax lot 300) and
64375 Cook Avenue (tax lot 302). Tax lot 301 does not have a site address.
B. ZONING AND PLAN DESIGNATION: Surface Mining Site 304 is zoned Surface Mining
(SM) with a Landscape Management (LM) Combining zone. On the comprehensive
plan map, Tax lots 300 and 301 are designated surface mine and tax lot 302 is
designated surface mine reserve. The property is also identified as Surface Mining Site
No. 304 on the County's Goal 5 inventory of mineral and aggregate resource sites.
C. LOT OF RECORD: The Planning Department, through Lot of Record verifications, file
numbers LR -99-14 and LR -99-15, determined that tax lots 300 and 301 are one legal lot
of record. Tax lot 302 was determined to be a legal lot of record via Lot of Record file
number LR -91-122.
D. SITE DESCRIPTION: Surface mining site 304 is comprised of approximately 15 acres.'
A portion of the property is reclaimed surface mining use and a portion is residential
use. Topography of the reclaimed surface mine mildly concaves towards the center of
the mined area. Topography of the residential portion of the property is relatively level.
The surface mine area has recently been reclaimed and vegetated as required by the
reclamation plan approved by Oregon Department of Geology & Mineral Industries
(DOGAMI). The residential portion of the property is currently used as irrigated pasture
with numerous lodge pole pine trees. Structures on the residential portion of the
property include a residence (which County Assessor's records show that the house
was built in 1955), accessory structures, and fencing. The mined area is vacant.
E. SURROUNDING ZONING AND LAND USE: Surrounding zoning includes: Surface
Mining (SM) to the north, Flood Plain (FP) east of O. B. Riley Road/Cook Avenue,
Multiple Use Agriculture (MUA10) to the south, and Exclusive Farm Use—
Tumalo/Redmond/Bend subzone (EFUTRB) to the west. Surrounding zoning also
includes a Surface Mining Impact Area Combining Zone (SMIA) that extends one-half
mile from the SM zone designation.
With the exception of tax lot 17-12-06-200, an approximate 30 -acre parcel owned and
managed by Oregon State Parks, located east of O.B. Riley Road/Cook Avenue, all
surrounding lands are privately owned. County Assessor's records show that the three
properties bordering the northern boundary of tax lot 302 are all owned by the applicant.
In addition, the applicant owns a one -acre lot to the west of tax lot 302. Of the adjacent
Source: ESEE for Site 304. The Findings and Decision for SP -93-59 that allowed mining activities to
occur at the site describe the property (consisting of tax lots 300, 301, and 302) as containing about 20
acres and "the area proposed for mining includes approximately 15.6 acres. In addition, the County
Assessor's data show that tax lots 300, 301, and 302 total 17.53 acres as shown below:
Tax Lot 300: 1.50 acres
Tax Lot 301: 9.95 acres
Tax Lot 300: 6.08 acres
Total: 17.53 acres
Exhibit 'B
FA-00-7fZC-004
Page 2=DECISION OF DESCHUTES COUNTY HEARINGS OFFICER Page �-- _L�
Ordinance ZQo(' 2�–
0 !
lots surrounding the surface mining site, tax lots 17-12-066-200 and 16-12-31 D-4600
have dwellings. With the exceptions of tax lot 16-12-31 D-4200, which has a general
purpose structure on site, and the State-owned property (Tumalo State Park) to the
east, the remaining surrounding lots, according to County Assessor's data, are vacant.
North of the subject property, about an eighth of a mile, is Surface Mining Site 370,
which is owned and operated by Hap Taylor & Sons and used for stock piling, loading,
storage of equipment, processing, crushing, and other mining operations.
F. BACKGROUND: On September 8, 1993, the Planning Division issued an
administrative decision approving Site Plan number SP -93-59 that allowed surface
mining and reclamation at the site. The approval provided for the removal of
approximately 250,000 yards of material excavated to a depth of 10 to 20 feet.
Condition 11 required the "developer" to apply to Deschutes County to rezone the
property after the site has been reclaimed.
G. PROPOSAL: The applicant is requesting approval of a plan amendment and zone
change from SM to EFU-TRB on the subject properties. According to the applicant,
mining and reclamation at Surface Mining Site 304 has been completed. Other than the
existing residential use on tax lot 302 where the applicant resides, the applicant does
not propose any particular use of the property at this time.
In addition, if the subject application is approved and the property is rezoned from SM to
EFU-TRB, then the Surface Mining Impact Area (SMIA) Combing Zone designation that
extends one-half mile from each of the three subject tax lots will also need to be deleted
[as the SMIA Combining zone is applied to "all property located within one-half mile of
the boundary of a surface mining zone" (Section 18.56.020, DCC)]. Approving this
request will also result in the removal of Site 304 from the County's inventory of
significant mineral and aggregate resources.
H. PUBLIC AGENCY COMMENTS: The Planning Division mailed written notice of the
proposed plan amendment and zone change to the following agencies: County Road
Department, Oregon Department of Geology & Mineral Industries, County Assessor,
Watermaster— District 11, Bend Fire Department, Tumalo Irrigation District, Property
Address Coordinator, Oregon Department of Fish and Wildlife, Oregon Department of
Transportation, and Oregon State Parks and Recreation. The responses from these
agencies; if any, are set forth verbatim in the Staff Report and incorporated by reference
herein:
1. PUBLIC NOTICE AND COMMENTS: The Planning Division mailed notice of the
proposal to the owners of all property located within 250 feet of the subject property and
published a notice in the Bend Bulletin on September 24, 2000. The applicant posted a
land use action sign on the property on August 23, 2000. The Planning Division did not
receive any public comments.
J. REVIEW PERIOD: The subject application was submitted on June 2, 2000. In a letter
dated June 14, 2000, Staff notified the applicant that the application was incomplete. and
informed the applicant in writing of the information that needed to be submitted to
complete the application. The applicant submitted the requested information and the
application was deemed complete on July 18, 2000.
Under ORS 215.428(6) plan amendments are not subject to the 150 -day time period for
issuance of a final local land use decision. Oregon Administrative Rules (OAR) 660,
r
PA -M -72c-004 Exhibit
Page. 3- DECISION OF DESCHUTES COUNTY HEARINGS OFFICER Page 3 of S
Ordinance Z&OI -�
Division 23, establishes standards and procedures for complying with Goal 5. OAR 660-
023-0180 addresses mineral and aggregate resource sites in particular. OAR 660-023-
0180(4) provides that local government post -acknowledgment plan amendment
decisions concerning significant aggregate sites must be issued within 180 days of the
date the application is accepted as complete.
A hearing was held on Tuesday, October 17, 2000. At that hearing, the applicant's
attorney, Robert Lovlien, requested that the hearing be continued to allow the applicant
an opportunity to submit additional evidence in support of the application. Mr. Lovlien
agreed, on behalf of the applicant, to toll the 180 -day period within which the County has
to issue a decision for a period of time equivalent to the requested continuance. The
hearing was continued until December 19, 2000. Prior to the December 19 hearing, the
applicant, through her attorney, requested a continuance for an additional 60 days to
gather further evidence in support of the application. Again, the applicant, through her
attorney, agreed to toll the 180 -day period for a time period equivalent to the requested
extension. The continued hearing took place on Tuesday, February 20, 2001 and the
record closed at that time. At the time of the initial hearing, 91 days had elapsed from
the date the application was deemed complete. With the applicant's agreement to toll
the 180 -day period during the pendency of the continuance requests, the 180 -day
deadline within which the County has to issue a final decision on this matter expires on
May 20, 2001. Because May 20 is a Sunday, the deadline will be Monday, May 21,
2001, pursuant to.Section 22.08.070 of the County Procedures Ordinance.
•.
Title 18 of the Deschutes County Code, Deschutes County Zoning Ordinance
A. CHAPTER 18.52, SURFACE MINING ZONE (SM)
• 1 1 Il l- • 1 • 1 r Rill 1 I I 1• 63 111WEIN its I
• 1 • 1 • l - " 111 1 • 1 • - • Il • 1 1 • • 1 "
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
this title, the property shall be rezoned to the subsequent use zone
identified in the surface mining element of the Comprehensive Plan.
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 chapter 18.136 and all other
applicable sections of this tide, the Comprehensive Plan and Deschutes
County Code Title 22, the Uniform Development Procedures Ordinance.
FINDING: Surface mining site 304 is listed on the County's Goal 5 surface mining
inventory as follows:
Site Legal Description
NameType
Quantity
Quality
No.
PA-00-7/ZC-004 .
Page 4= DECISION OF DESCHUTES COUNTY HEARINGS OFFICER
Exhibit43
Page of
Ordinance 7-m
304
171206-00-00302, 300,
1 Bend Sand &
225,000 cy
Good
301
Aggregate Gravel
I
This subsection requires the applicant to demonstrate the following in order for the
property to be rezoned:
1. That the site has been fully or partially mined;
2. That a significant resource no longer exists on the site; and
3. That the site has been reclaimed in accordance with the DOGAMI-approved
reclamation plan
1. Site has been fully or partially mined
FINDING: The applicant submitted an affidavit from Jerry Curl dated July 18, 2000, who
was a shareholder of Bend Aggregate and Paving Company, which operated Surface
Mine 304. According to the affidavit, Bend Aggregate and Paving mined approximately
15.6 acres of sand and gravel within the approved surface mine area. Mr. Curl tested
that additional material exists—approximately 55,000 - 60,000 cubic yards—within the
surface mine area that could be mined. However, Mr. Curl testified that this un -mined
material is not a significant resource because of tree roots that "reduce the overall
quality of the mined material," boulders that cover this area, as well as being adjacent to
the applicant's home and that this un -mined amount "represents an insignificant amount
of the yearly supply necessary for the Hap Taylor & Sons processing plant just north of
the project." Based on the above information, the Hearing Officer agrees with staff and
finds that the applicant has demonstrated that the site has been partially mined.
2. A significant resource no longer exists on the site
FINDING: Neither Title 18 nor the Comprehensive Plan provides a definition or standard
for determining whether a significant resource no longer exists at a surface mining site.
In a previous Plan Amendment and Zone Change, file numbers PA -98-12 and ZC-98-6,
to change the zone from SM to F-1, staff found, and the Hearings Officer agreed, that
Oregon Administrative Rules (OAR) 660-023-0250 regarding complying with Goal 5, is
the applicable law to rely on in defining significance as it relates to an aggregate
resource.
OAR 660-023-0250 states in relevant part the following:
(1) This division replaces OAR 660, division 16, except with regard to cultural
resources, and certain PAPAs and periodic review work tasks described in
sections (2) and (4) of this rule. Local governments shall follow the
procedures and requirements of this division or OAR 660, Division 16,
whichever is applicable, in the adoption or amendment of all plan or land
use regulations pertaining to Goal 5 resources. The requirements of Goal 5
do not apply to land use decisions made pursuant to acknowledged
comprehensive plans and land use regulations.
(2) The requirements of this division are applicable to PAPAs initiated on or
after September 1, 1996. OAR 660, Division 16 applies to PAPAs initiated
PA -00-72C-00-4 Exhibit e
Page 5- DECISION OF DESCHUTES COUNTY HEARINGS OFFICER Page of 1.
Ordinance diol -3
•
prior to September 1, 1996. For purposes of this section "initiated" means
that the local government has deemed the PAPA application to be
complete.
(3) Local governments are not required to apply Goal 5 in consideration of a
PAPA unless the PAPA affects a Goal 5 resource. For purposes of this
section, a PAPA would affect a Goal 5 resource only if.
(a) The PAPA creates or amends a resource list or a .portion of an
acknowledged plan or land use regulation adopted in order to
protect a significant Goal 5 resource or to address specific
requirements of Goal 5; ...
The subject plan amendment and zone change application is a "PAPA' [post -
acknowledgment plan amendment] which would amend a plan provision concerning a
Goal 5 resource .list. The application was accepted as complete on July 18, 2000.
Therefore, the rules in OAR 660, Division 23 are applicable to this application. In
addition, since the County has not amended its plan 'or land use regulations to
incorporate the Goal 5 rules, per Section 660-023-0250(5) of the OAR, the rules apply
directly to the subject application. In PA -98-12 and ZC-98-6, the Hearings Officer found
that the "provisions of OAR 660-023-0180 [Mineral and Aggregate Resources] in
particular, apply to the subject application to the extent they reasonably can be applied
to a decision to remove a site from the adopted inventory."
Subsection OAR 660-023-0180(3)(a) establishes standards for determining whether a
site is "significant.' Subsection (3)(a) provides in pertinent part:
(3) An aggregate resource 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.
(a) A representative set of samples of aggregate material in the deposit
on the site meets Oregon Department of Transportation (ODOT)
specifications for base rock for air degradation, abrasion, and
sodium sulfate soundness, and the estimated amount of material is
more than 2,000,000 tons in the Willamette Valley, or 100,000 tons
outside the Willamette Valley;
(b) The material meets local government standards establishing a lower
threshold for significance than subsection (a) of this section; or
(c) The aggregate site is on an inventory of significant aggregate sites
in an acknowledged plan on the applicable date of this rule.
As indicated in the rule above, the applicant only needs to meet one of the three options
for the site to be considered significant. The subject site meets (c) above as it is
included in the county's inventory of significant mineral and aggregate sites and was
acknowledged prior to the effective date of the Goal 5 administrative rules in 1996.
However, the Hearings Officer found in PA -98-12 and ZC-98-6 that applying criteria (c):
Exhibit
PA-00afzC-00-4 . Page of A5-
Page
SPage 6- DECISION OF DESCHUTES COUNTY HEARINGS OFFICER Ordinance Z40I �a--}
E
•
. would create a °Catch-22'° where, as here, the applicant is seeking to remove
a site from the inventory as no longer "significant. A Consequently, I find the
"significanr standard in paragraph (c) should not be applied to PAPAs
requesting removal of a site from an acknowledged inventory.
The subject site also does not meet the criteria in section (b) above either, as the county
has not established a lower threshold for significance than subsection (a) of this section.
Therefore, subsection (a) is the applicable criteria to meet for the site to be considered
significant. Subsection (a) states the following:
(a) A representative set of samples of aggregate material in the deposit
on the site meets Oregon Department of Transportation (ODOT)
specifications for base rock for air degradation, abrasion, and
sodium sulfate soundness, and the estimated amount of material is
more than 2,000,000 tons in the Willamette Valley, or 100,000 tons
outside the Willamette Valley;
The ESEE for site 304, as well as the County's Goal 5 Aggregate Inventory list, identify
that Site 304 has 225,000 cubic yards of sand and gravel. The July 2000 affidavit of
Jerry Curl states that Bend Aggregate & Paving mined approximately 15.6 acres of the
property and that Mr. Cud estimates that approximately 55,000 to 60,000 cubic yards of
material are left on site 2. The remaining un -mined material, according to Mr. Curl, is not
a significant resource because of tree roots that reduce the quality of the resource,
boulders, proximity to the applicant's existing residence, and that the material
"represents an insignificant amount of the yearly supply necessary" for the current
processing operations of Hap Taylor & Sons located to the north of the site.
The Hearings Officer finds that the proximity of the un=mined resource to the applicant's
home is not relevant in determining whether the remaining un -mined resource is
significant. Site Plan, SP -93-59, contains a recorded Restrictive Covenant agreement
and a recorded Waiver of Remonstrance. The Restrictive Covenant, where the
Covenantor is C.L.R., Inc., (who was the owner of the property where the Fraser
residence resides) states, in part, the following:
Covenantor agrees to waive its rights to the protections afforded by the
250 -foot setbacks of the Deschutes County code and to permit an
exception to those setback requirements with respect to mining activities
' Staff contacted staff at ODOT and DOGAMI to obtain the conversion factor for sand and gravel used by
each agency to convert cubic yards to tons. Both agencies use a conversion factor of 1.5 tons/cubic yard
for sand and gravel. Using a conversion factor of 1.5 tons/cubic yards for sand and gravel, staff found and
the Hearings Officer agrees that the estimated 55,000 to 60,000 cubic yards of un -mined aggregate
resource remaining on site would yield between 82,500 to 90,000 tons. [Source: Telephone conversation
with Scott Billings, geologist at ODOT on October 9, 2000 and a telephone conversation with Ben Mundie,
reclamationist at DOGAMI on October 9, 2000.]
1 11 Exhibit .B
. - PA-ooa/zC- 0-4
Page 7- DECISION OF DESCHUTES COUNTY HEARINGS OFFICER Page—. of 1�.
Ordinance wool' �'
0
on the Dominant Estate carried out under SP -93-59. Covenantor agrees
to an exception to such setback requirements only to the extent required
to accommodate the site plan permit issued to Bend Aggregate. & Paving
for surface mining activities on the dominant estate (SP 93-59) (a
distance of 900 feet from the current site of the Fraser residence).
The Waiver of Remonstrance between Bend Aggregate and Paving and CLR, Inc.,
"waives any right of remonstrance or protest that it may have by virtue of its
property rights ... to the visual, noise and dust impacts from surface mining
activities lawfully conducted under SP 93-59 in connection with the adjacent surface
mining site, known as site No. 304 ...." For this reason, the proximity to the
applicant's residence is not relevant to the determination of whether a significant
resource remains on site.
In further support of the applicant's estimate of the remaining resource and the
argument that this remaining resource is not significant, the applicant submitted a
"Geotechnical Reconnaissance" report prepared by Mark V. Herbert, P.E., a senior
geotechnical engineer with the Kleinfelder Company. The report concludes, based
on a visual inspection, review of a'1985 aerial photography, review of Jerry Curl's
affidavit and knowledge of local aggregate extraction practices, the following:
* The "site contains a marginally economical resource, from a quantity
perspective."
* The volume of material remaining represents a small percentage of the
aggregate consumed annually in Deschutes County.
* The quality of the resource is "believed" to be good, but may be adversely
affected by the presence of organic matter and large boulders.
* The location of the resource is close to established markets and close to
noise and dust -sensitive areas (including residences and scenic waterways).
* Removing the site from the County's inventory will not adversely effect the
supply or substantially increase the cost of aggregate products.
The report further estimates that the quantity of the material remaining on site is
close to 50,000 cubic yards. Applying conversion factor supplied by DOGAMI, the
estimated remaining material would yield 75,000 tons. While this amount is clearly
less than the 1000,000 tons specified in OAR 660-023-0180 as the threshold
amount to constitute a "significant" source outside the Willamette Valley, the report
indicated some uncertainty in the estimate. Mr. Herbert states that the uncertainty
could likely be eliminated with the benefit of a detailed, subsurface exploration.
The Hearings Officer questioned the applicant's attorney, Robert Lovlien, about the
lack of subsurface exploration at the second public hearing on this matter. Mr.
Lovlien, on behalf. of the applicant, declined to conduct subsurface exploration
arguing that such exploration was not necessary, would be unduly expensive and
physically disruptive to his client's property. Mr. Lovlien also pointed out that the
estimates by Mr. Curl and the geotechnical engineer are the only evidence in the
record as to the quantity of the remaining material. In other words, there is no
.PA-00-7/ZC-00-4 Exhibit
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evidence in the record to suggest there is any more material remaining on site that
that estimated by the applicant's representatives (i.e. somewhere between 75,000
and 90,000 tons).The Hearings Officer finds that while this evidence could be made
more reliable and certain with a subsurface exploration, it is the only credible
evidence in the record upon which the Hearings Officer has to make a decision as
to whether the remaining material is a significant resource. The Hearings Officer
also notes that the Oregon Department of Transportation (ODOT), the Oregon
Department of Geology and Mineral Industries (DOGAMI), and the County Road
Department—the three agencies that may have an interest in keeping this site
zoned SM—had no objections to this proposal to rezone the subject surface mine.
In fact, according to comments from DOGAMI, DOGAMI has closed their file on this
site. In addition, no public comments—including none from the private mining
industry—were received on this proposal to rezone the subject surface mine.
While the Hearings Officer agrees with Staff and the geotechnical engineer that
subsurface exploration would provide more accurate data in the present case, she
nevertheless finds that the only evidence in the record establishes that the material
remaining on site falls below the minimum necessary to be a "significant" resource.
Specifically, the Hearings Officer relies on the following evidence and information to
approve the present application:
1. Estimates made by Jerry Curl (site operator) and. Mark Herbert
(geotechnical engineer) that there is 50,000 to 65,000 cubic yards
(75,000 to 90,000 tons) of material remaining on site. Based on the fact
that there is no evidence which would .suggest there is anymore material
on site and no evidence which would suggest that the estimates are
flawed, the Hearings Officer finds them to be credible and reliable despite
the lack of subsurface exploration.
2. Testimony from Jerry Curl and Mark Herbert that the presence of tree
roots and organic matter, combined with small quantity, make the mining
of remaining material marginal from an economic perspective. The
testimony relating to the tree cover is supported in the record by aerial
photographs showing moderate to heavy tree cover in the unmined area.
3. No objections or comments from DOGAMI, ODOT or County Road
Department.
4. No objections or comments from the public, including representative of
the private mining industry.
It is the combination of the above factors existing in the present application that
leads to the finding that a significant resource no longer exists on the site.
FINDING: According to the applicant, Site 304 "has been reclaimed in accordance with
the applicable-DOGAMI reclamation plan and the DOGAMI permit has now been
terminated.' Staff also contacted Ben Mundie, a reclamationist at DOOAMI who
confirmed via telephone and fax that the site has been reclaimed and the file is closed?
3 Ben Mundie from DOGAMI faxed Staff a copy of a September 7, 1999, memorandum addressed to CLR,
PA -00-7=-00-4 Exhibit
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Based on this information, the Hearings Officer finds that the proposal satisfies this
criterion.
B. CHAPTER 18.16, EXCLUSIVE FARM USE (EFU) ZONE
1. Section 18.16.020. Uses permitted outright
The following uses and their accessory uses are permitted outright.-
A.
utright.
A. Farm use as defined in this title.
FINDING: The site is currently reclaimed and vegetated. The applicant does not propose any
particular use of the property at this time; however, the Findings and Decision for Site Plan, SP -
93 -59, state that the site will be "returned to its current use as an irrigated pasture! Since no
use is being proposed at this time, this criterion is not applicable.
C. Chapter 18.136, Amendments
1. Section 18,136,020. Rezoning standards.
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by rezoning the property. Factors to
be demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and
the change is consistent with the Plan's introductory
statement and goals.
FINDING: The Hearings Officer agrees with Staff and finds that the following goals and policies
in the surface mining element of the Comprehensive plan are relevant to the application:
Surface Mining Goals and Policies (pages 150-155)
GOAL: To protect and utilize appropriately, within the framework
established by Statewide Land Use Planning Goal 5 and its
implementing administrative rules, the mineral and aggregate
resources of Deschutes County, while minimizing the adverse
Inc., from Ben Mundie of DOGAMI regarding the subject surface mine. (The applicant also included a
copy of this same memorandum in their application.) The memorandum states, in part, the following:
Vegetation is complete. The file should be closed.
In addition, the memorandum indicated that Gary W. Lynch, Supervisor, closed the file and identified that
5 acres were reclaimed as well as identifying that the post mining use identified was rangelopen space.
Exhibit
PA-00-7/ZC-0"
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impacts of mineral and aggregate extraction and processing upon
the resource impact area.
FINDING: The applicant proposes to rezone the subject site from the SM to EFU-TRB.
The applicant also requests that this site be removed from the County's inventory of
significant mineral and aggregate resource sites. Surface Mining Site 304 was identified
in both the ESEE and the County's inventory list as containing 250,000 cubic yards of
good sand and gravel. The ESEE analysis for 304 concluded the resource should be
protected by allowing mining but also imposed conditions on mining activities in the
Program to Meet the Goal to minimize adverse impacts, in particular on Tumalo State
Park and to protect scenic values along the Deschutes River through the LM
designation of the property. Because the Hearings Officer has found that the only
evidence in the record demonstrates that a significant resource no longer exists on the
subject site, the proposal is consistent with the above Surface Mining Goals and
Policies.
Surface Mining Identification and Designation (page 151)
6. Land use decisions of the County shall be based upon balanced
consideration of the location, availability and value of mineral and
aggregate resources, and conflicting resources and uses as designated in
the Comprehensive Plan.
FINDING: In a previous decision on PA -98-12 and ZC-98-6 to change the zone from
SM to F-1, the Hearings Officer concurred with staffs finding that "under the new Goal 5
rules in OAR 660, Division 23 the relative significance of a particular mineral and
aggregate site is not relevant in determining if the site should be on the inventory.
Rather, the site must be included on the inventory if meets the threshold criteria for a
"significant" site under OAR 660-023-0180(3)(a)." Because the Hearings Officer has
found that the only evidence in the record demonstrates that a significant resource no
longer exists on the site, the proposal is consistent with the above goal.
8. Sufficient SM (Surface Mining) zoning shall be maintained by the County to
satisfy, at a minimum, the demand for mineral and aggregate resources of
the County as reflected by the data contained in the comprehensive plan.
The County shall not deny SM zoning for any mineral and aggregate
resource site for the sole reason that the demand of the County for that
resource has been satisfied by the SM zoning of other sites.
FINDING: In the decision for PA -98-12 and ZC-98-6, the Hearings Officer concurred
with Staffs finding, "that this policy makes clear a site should not be excluded from the
inventory of significant mineral and aggregate sites simply because there are other
inventoried and SM -zoned sites that are meeting the county's demand for mineral and
aggregate resources.' In the present case however, the removal of the site from the
inventory is justified based on the finding that a significant resource no longer exists on
site not because of SM zoning on other sites. Because the Hearings Officer has found
the only evidence in the record demonstrates that a significant resource no longer exists
on site, the proposal complies with this goal.
11. The County shall identify and protect sites for the storage, extraction and
processing of mineral and aggregate resources within the framework of
Goal 5 and its implementing administrative rules.
PA -00-72C-00-4 Exhibit J
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FINDING: The proposal's compliance with the Goal 5 administrative rules is discussed
in the findings above.-
B.-
bove.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDING: The purpose of the EFU zone "is to preserve and maintain agricultural lands
and to serve as a sanctuary for farm uses." The applicant proposes to rezone the
subject site to EFU-TRB. The applicant does not propose any particular use of the
property at this time. The Findings and Decision for SP -93-59, however, state that "after
mining, the site will be reclaimed to pasture use ...." Further, the residential portion of
the property is currently in irrigated pasture use and land to the west of the subject
property is zoned EFU-TRB. Based on this information, the Hearings Officer finds that
the applicant's proposal is consistent with the purpose of the EFU-TRB 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.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
FINDING: The Hearings Officer finds that changing the zone designation on the subject
property from SM to EFU-TRB will not impact the availability and efficiency of providing
necessary public services and facilities. The surrounding land uses include a mixture of
uses, such as surface mining, residential, farm, and park use. Rezoning the property
will not adversely impact surrounding property all mining operations have ceased and
the uses allowed in the EFU-TRB zone are consistent with the surrounding land uses.
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: There is no evidence in the record to suggest that the SM zone designation
on the subject property was a mistake. The ESEE and the County's Goal 5 aggregate
inventory list for Surface Mining Site 304 identify that Site 304 has 225,000 cubic yards
of sand and gravel. Of this number, the applicant claims they have mined 15.6 acres of
the property, leaving an approximate 55,000 to 60,000 cubic yards of un -mined material.
The applicant argues that a change in circumstances since the property was last zoned
has occurred "in that the surface mining site has been fully mined." The Hearings
Officer disagrees that the site has been fully mined. The evidence in the record shows
that the site has been partially mined, with an estimated 50,000.— 65,000 cubic yards
remaining on site. However, the Hearings Officer has previously found, based on the
evidence in the record, that the remaining material on site is not a "significant resource"
as that term is used in the Deschutes County Code, the Comprehensive Plan and the
Oregon Administrative Rules. Thus, the Hearings Officer finds that the partial mining
PA -MMC -00-4 Exhibit
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and the lack of a significant resource remaining on site are changes in circumstances
which have occurred since the property was last zoned. The proposal, therefore,
satisfies this criterion.
B. Oregon Administrative Rules
1. OAR 660, Division 12, Transportation Planning Rule
a. OAR 660-012-060, Plan and Land Use Regulation Amendments.
(1) Amendments to functional plan, acknowledged
comprehensive plans, and land use regulations which
significantly affect a transportation facility shall assure that
allowed land uses are consistent with the Identified function,
capacity, and level of service of the facility. This shall be
accomplished by either:
(a) Limiting allowed land uses to be consistent with the
planned function, capacity and level of service of the
transportation facility;
(b) Amending the TSP to provide transportation facilities
adequate to support the proposed land uses
consistent with the requirements of this division; or
(c) Altering land use designations, densities, or design
requirements to reduce demand for automobile travel
and meet travel needs through other modes.
(2) A plan or land use regulation amendment significantly affects
a transportation facility if it:
(a) Changes the functional classification of an existing or
planned transportation facility;
(b) Changes standards implementing a functional
classification system;
(c) Allows types or levels of land uses which would result
in levels of travel or access which are inconsistent
with the functional classification of a transportation
facility; or
(d) Would reduce the level of service of the facility below
the minimum acceptable level identified in the TSP.
FINDING: This rule is applicable to the applicant's proposal because it involves an
amendment to an acknowledged plan. The applicant did not submit evidence of the
impacts on affected transportation facilities. However, since surface mining activities
have ceased on the site and the applicant does not propose any use of the reclaimed
surface mine portion of the property, the Hearings Officer finds that traffic -generated
impacts associated with surface mining activities no longer exist at the site. Rezoning
the property to EFU-TRB will not adversely impact transportation facilities as the uses
allowed in the EFU zone are generally low volume traffic generators and are consistent
with the function, capacity and level of service of the transportation facilities.
PA -00-72C-00-4 Exhibit g
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2. OAR 660, Division 16, Statewide Planning Goals and Guidelines
FINDING: The applicant did not provide information that addresses this section.
Goal 1, Citizen Involvement. The Planning Division provided notice of the proposed plan
amendment and zone change to the public through individual notice to affected property
owners, , posting of the subject property with a notice of proposed land use action sign, and
notice of the public hearing in the "Bend Bulletin" newspaper. In addition, two public hearings
were held on the proposed plan amendment.
Goal 2, Land Use Planning. Goals, policies and processes related to surface mining
applications are included in the Deschutes County Comprehensive Plan, Title 18 of the
Deschutes County Code, and OAR 660-023. The application of the processes and
policies/regulations are addressed in previous sections of this decision.
Goal 3, Agricultural Lands. The applicant's proposal is consistent with this. goal because it
would rezone the subject property to EFU-TRB, which is consistent with the current irrigated
pasture use on the residential portion of the property and the property to the west of the site.
Goal 4, Forest Lands. The proposed mining site or surrounding areas do not include any lands
that are zoned for or that support forest uses.
Goal 6, Open Spaces, Scenic and Historic Areas and Natural Resources. The applicant's
proposal would remove the subject site from the county's Goal 5 inventory of significant mineral
and aggregate resource sites. Benefits—such as scenic and noise—by rezoning the property
to EFU-TRB may accrue to Tumalo State Park and the Deschutes River.
Goal 6, Air, Water and Land Resources Quality.. The subject surface mine has been
reclaimed and mining activities have ceased. Further, the applicant does not propose a use for
the property at this time. Rezoning the property to EFU-TRB will not impact the quality of the
air, water, and land resources.
Goal 7, Areas Subject to Natural Disasters and Hazards. This goal is not applicable because
the subject property is not located in a known natural disaster or hazard area.
Goal 8, Recreational Needs. The proposed plan amendment and zone change do not affect
recreational needs. The property is privately owned and the applicant does not propose a use
for the property at this time.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the
state for a variety of economic activities. The applicant did not provide any information
addressing this goal. However, because the Hearings Officer previously found that the only
evidence in the record shows that there is no longer a significant resource on the site, the
proposal will not impact economic activities.
Exhibit .8
PA -00-72C-00-4
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Goal 101, Housing. This goal is not applicable because the applicant's proposal will not affect
the supply of needed housing.
Goal 11, Public Facilities and Services. The applicant's proposal will have no adverse effect
on the provision of public facilities and services to the subject site.
Goal 12, Transportation. Since surface mining activities have ceased' on the site and the
applicant does not propose any use of the reclaimed surface mine portion of the property,
traffic -generated impacts associated by surface mining activities no longer exist at the site.
Rezoning the property to EFU-TRB will not adversely impact transportation facilities as the uses
allowed in the EFU zone are consistent with the function, capacity and level of service of the
transportation facilities.
Goal 13, Energy Conservation. The applicant has -not provided information on the whether the
proposal will have an effect on energy use or conservation. However, since surface mining
activities have ceased on the site and the applicant does -not propose any use of the reclaimed
surface mine portion of the property, the Hearings Officer agrees with Staff that the proposal
will not have an effect on energy use or conservation.
Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does not
affect property within an urban growth boundary and does not promote the urbanization of rural
land.
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.
IV. . DECISION:
Based on the Findings of Fact and Conclusions of Law set forth herein, the Hearings Officer
APPROVES the applicant's proposal for a plan amendment from Surface Mine to Agriculture, a
zone change from SM to EFU-TRB and to delete Site 304 from the County's inventory of
significant mineral and aggregate resources.
3Y�
DATED this day of April, 2001.
MAILED thi Vday of , ril, 2001
`
It
T' wis, Heari Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY
APPEALED.
PA-00-7/ZC-00-4 Exhibit
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