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HomeMy WebLinkAbout2011-06-13 Business Meeting MinutesDeschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JUNE 13, 2011 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ Present were Commissioners Tammy Baney, Alan Unger and Anthony DeBone. Also present were Dave Kanner, County Administrator; Laurie Craghead, County Counsel; Tom Anderson, Nick Lelack, Peter Russell and Paul Blikstad, Community Development; and approximately a dozen other citizens. Chair Baney opened the meeting at 10:04 a.m. Due to recording problems, the meeting began late, at 10:25 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was Consideration of Second Reading, by Title Only, and Adoption of Ordinance No. 2011-005, Amending Code, Creating Transportation and Land Use Policies for Deschutes Junction. Peter Russell gave a brief overview of the item. There have been no changes since the first reading. Commissioner DeBone said that he would like to have a date certain indicated, but was advised that there can be a way to do this through the use of a study area as a guideline. Laurie Craghead stated that the record is closed and nothing new can be submitted. Commissioner Unger voiced concern that ODOT has not been that involved in this process. He supports the idea but is not sure how to get there. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 1 of 15 Pages Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 2 of 15 Pages Ms. Craghead said that Doug White’s letter cannot be submitted after the record was closed but wording can be changed through reading the language into the record. However, there has not been public testimony on that particular language. It could make the Ordinance subject to challenge. No decision was made on this particular area and she is not sure if this is part of the previous record. Peter Russell said that Deschutes Junction has been defined as the rural industrial and commercial areas now in existence. They can go with what is already in the comp plan; or can use ODOT’s standards that would include all four quads. Another option is something a bit bigger than that as a study area for the master plan. This could be more completely defined at the time the master plan is addressed. Chair Baney said that it appears that Commissioner DeBone wants a defined date, but it would not be necessary to have this in the Ordinance. Ms. Craghead stated that the comprehensive plan will need to be amended anyway when the master plan is addressed. The action plan can include dates. Commissioner DeBone does not want to lose track of the IAMP criteria. He would like to get a feel for the timeframe for the area. Mr. Russell stated that the larger comprehensive plan will be adopted, and as TSP and other plans and projects come together, the comprehensive plan will be adjusted as needed. Before the formal process begins, the boundaries of the local master plan will be introduced and discussed. Nick Lelack said that the boundaries of Deschutes Junction have not been subject to a hearing, but during deliberations the Board will have the ability to have the IAMP study areas defined. UNGER: Move second reading by title only. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney did the second reading of the Ordinance by title only. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 3 of 15 Pages UNGER: Move adoption of Ordinance No. 2011-005. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. 3. Before the Board was Consideration of First Reading, by Title Only, of Ordinance No. 2011-014, Amending Code to Change Comprehensive Plan Designation of Certain Property from Surface Mining and Agricultural to Rural Residential Exception Area. Suggested Motion: Conduct First Reading by Title Only of Ordinance No. 2011-014, Amending Code in regard to Property Designation from Surface Mining and Agricultural to Rural Residential Exception Area Ms. Craghead said the Board approved this change for the eastern portion of the property a year ago, with conditions. The conditions have been met at this time. No public hearing is necessary. Commissioner Unger stated that it appears that there has been no movement on some of these issues. Ms. Craghead said the Board decided to rezone this one and testimony has already been taken. This is just a delay of the reading of the Ordinance. Commissioner Unger said that this was being used as a carrot to get more action done in the other areas. There are two landowners, one of which is motivated and the other isn’t. Ms. Craghead stated that this was already decided. Tia Lewis said that the Board already decided this, but the only thing missing was the legal description. Ms. Craghead said the Board already decided on this portion, and voiced concern about taking testimony or ex parte contact. The legal description has been provided. Chair Baney would like to have a work session on this property in general to help Commissioner DeBone have a better understanding of issues affecting the entire property. DEBONE: Move first reading by title only of Ordinance No. 2011-014. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 4 of 15 Pages VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the first reading of the Ordinance. The second reading will be conducted no sooner than two weeks from today. 4. Before the Board was Consideration of First Reading, by Title Only, of Ordinance No. 2011-015, Amending Code to Change Zoning Designation of Certain Property from Surface Mining and Exclusive Farm Use to Rural Residential. DEBONE: Move first reading by title only of Ordinance No. 2011-015. UNGER: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the first reading of the Ordinance. The second reading will be conducted no sooner than two weeks from today. 5. Before the Board was a Public Hearing on a Conditional Use Permit and Site Plan for Mining Activities at Site No. 303 on Johnson Road (Latham LUBA Remand). Chair Baney read the opening statement on this issue. In regard to ex parte contacts, bias or conflicts of interest, the Commissioners indicated they had none. There were no challenges. Paul Blikstad provided a brief overview of the item, referring to his staff report. This has been subject to several appeals. There is a 90-day review period, which runs out Friday, July 29. A second hearing on this matter would be a potential problem. The LUBA record is over 4,000 pages. Ms. Craghead stated that the Board received an electronic version of the record previously. Mr. Blikstad referenced Bruce White’s letter from last week, along with ESEE findings and decision, and a definition of the surface mining zone. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 5 of 15 Pages He said his staff report will reference the Hoffman assignments of error and then the Latham assignments of error. In regard to the Tumalo tuff mineral and pumice, the primary question is whether mining of the tuff requires an amendment of the ESEE, adopted in 1990. All the County’s mining sites were subject to ESEE analysis. LUBA found that the County was correct in regard to mining of the tuff and conflicting uses in the area. LUBA thought it might need a post-acknowledgement plan amendment (PAPA), but the County could explain why this does not change the Goal 5 program. Requiring a PAPA would necessitate an application from the Lathams, and a subsequent hearings process. This could result in an Ordinance amending the ESEE; or it could be that the County made adequate findings that mining the tuff does not affect the previous decision. Chair Baney asked if, per page 17, if the quality and quantity was not known at the time, or if there are findings at the time that this was known. Mr. Blikstad stated that there was not necessarily a geologic study done on mining areas, and the County relied on the owner of the property to provide information on what material they thought was on the property. It is clear that the Tumalo tuff has to be removed to get to the pumice. Ms. Craghead stated this was testimony at the previous hearing. They were not required to know, per LUBA, but if they had known should it have been in the ESEE. Mr. Blikstad referred to the matrix. Another issue is the Tumalo State Park issue. Protecting the headwall would be exempt from screening to benefit the Hoffman’s. It is known this is a topographic issue and cannot easily be screened due to the terrain. The findings need to more clearly state details regarding the headwall. It may be difficult or impossible to screen it. He said he has walked the upper reaches and the proposed headwall, and he could not see much of the Hoffman residence, except perhaps the top of the roof. It is not clear in the record as to what can be seen from the Hoffman residence. Ms. Blikstad stated that he has also been all over Tumalo State Park and it was clear in the original proceedings that the only visible location where the headwall can be seen is from the knob. LUBA found the findings confusing in regard to screening the headwall. They may want to require screening regardless if it is effective, or want an explanation of why it can’t be done. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 6 of 15 Pages The 4th assignment of error relates to the storage of materials not being sold, in this case mostly topsoil. (He referred to an oversized map.) The map shows pre-1990 houses and those built since that time. There are two stockpiles; one to be removed and one left over from Bend Aggregate mining activities. You can tell that one has been there for a while as it is growing vegetation. The piles have to be moved or be found as exempt. The applicant proposed to move the pile that they created. The 5th assignment of error has to do with ongoing incremental reclamation. It is only shown in the ESEE analysis. LUBA spoke about DOGAMI being involved. A condition could delegate this reclamation to DOGAMI, or they need to try to figure out what the meaning of incremental reclamation is in this context. Mr. Blikstad said he feels the reference to DOGAMI is the better option. It has not been addressed in any prior County decision, so it would be difficult to define. In regard to the Latham assignments of error, included are proposed crusher locations on the site. County standards require them to be placed no less than ¼ mile away from a sensitive use. LUBA found no basis for this because DEQ indicates they meet noise limitations. The crusher can be located at all three sites per LUBA. Ms. Craghead said that it apparently makes it more efficient to not have to move the crushers around; that it is more efficient to crush in the same place and then get the materials off-site. The 2nd assignment of error relates to the other crusher sites. LUBA said the County’s findings were unclear, and wants the Board to examine all three crusher sites. LUBA says that if they are to be there longer than 18 months, they need to be screened from visibility. Another issue is the dust impacts of excavation. These do not exceed DEQ emission standards. One standard requires that regional precautions be taken. No further mining of the headwall can occur until it can be demonstrated that the dust can be controlled. LUBA found that they don’t have to keep material from becoming airborne, and basically took no position on this. Mr. Blikstad then went over the possible options to address this issue. Discussion occurred regarding limiting testimony time so that there will be adequate time for rebuttal. __________________________ Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 7 of 15 Pages Pat McClain, one owner of Latham Excavation, came forward with Bruce White, attorney. Mr. White had additional submittals (attached for reference). Clarification was discussed regarding when new evidence can be allowed. Chair Baney said there would be opportunity to offer new material in rebuttal. Mr. White referred to a bullet point summary. He said that they are open to Board members making individual site visits if desired. In regard to whether the ESEE included the headwall, he said that no mention of this was made in the ESEE. It is not correct to say it did not cover the headwall; it covered the entire site. Condition #23 allows for mining the headwall if there was additional dust control. He referred to pages 2 and 3 of the document, and said there is a legal context for making ESEE decisions. The important thing is that the ESEE’s are not required to be very detailed. There was no reference of the final configuration. There were some dust and visual issues related to the headwall, but he believes the Board got most of the way there in its decision. He said the Andy Siemens letter refers to this, and it was all of the same volcanic action. There is pumice within the tuff itself. He summarized LUBA’s decision and believes the Board can make adequate findings. He referred to an oversized aerial map, and stated that the Board made a comparison between three sites, 303, 304, 305 and 306. All are very close to the Deschutes River. State Parks supplied a letter regarding sites 303 and 304 not being an issue. The figure given for mining would be the entire property. There is more opposition now than there was when the sites were first considered in the 1980’s as a resource. If the ESEE situation is not acceptable, it would require an amendment, and the rules have changed since then. There are no sites in the County that have inventoried tuff. This could come up in other sites where this material is available. Scenic issues are off the table except for the waterways. It was found not to be a visual impact. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 8 of 15 Pages Regarding the issue of dust, additional information from the geotech has been provided. The dust does not come from the headwall in general. There is an area that might have been a problem, but the face, once hardened into a shell, does not promote dust. Mr. Siemens said that if the face is watered when excavation is done, this would help to mitigate. Mulch would not be effective on the face. An earthen berm has vegetated. There might be other areas such as stacks and a pointed stockpile, which can be mulched. Watering and mulching can be applied in some areas. In term of the stockpiles, there are three sets. One could be moved (he referred to exhibit 4 in Mr. McClain’s letter); but others were moved by Cascade Pumice and the new owner inherited this. Some is within the Todd and Hoffman quarter-mile circle, but the Board could make a finding of an exception. If not, it will be moved into the middle portion. Some exceptions were already granted due to the topography of the land. There is another stockpile, which is a formation left over from Bend Aggregate in the 1980’s, which may require excavation. __________________________ Mr. McClain provided testimony about what could be seen with binoculars. The correct finding is a topographical exception. LUBA seems to feel that there is no option to screen on the north border due to the ridge, making any screening ineffective. Trees cannot be grown tall enough to screen this. In regard to the issue of screening for the State park and two residences nearby, the topographical exception should apply. The Ordinance is not clear on this. He suggested a berm of twelve feet that would not screen the headwall but might screen part of the excavated areas. They would need vehicular access, however, proposed further away from the Hoffman residence. In terms of the three processing sites, they are needed in part because of the cost of fuel. If the processing can be done closer to the excavation sites, it is better for costs and keeps the noise in one area. The noise study requires a five-foot berm or depression in the northeast processing site. That could be a condition of approval. No other noise mitigation was required. They propose berms of at least fifteen feet as the equipment is 13-1/2 feet tall. Initially they will screen the southwest processing site with the existing tuff pile or a free-standing screening berm. The processing sites are staked and photos are contained in Mr. McClain’s testimony. The eastern boundary of the property has also been staked. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 9 of 15 Pages Mr. White emphasized that even if the application is not approved, there is still a site plan that allows mining to an extent and the headwall would be exposed at some level. The question then becomes the economic viability. There is a market for this product and a different business plan from the previous owner. He supports staff in its opinion on how this should be handled. Incremental reclamation is too vague. They may want to operate in different locations at different times, and may have to work on this with DOGAMI. They have the right to amend a reclamation plan with DOGAMI. _________________________ Chris Parkins indicated he is neutral, but is testifying because Oregon State Parks is not against Mr. Latham and the other owners. Any change in activity should not justify a new ESEE permit request, but consideration should be given to impacts to the Park. This was brought up previously, and he committed to speak up on behalf of Park visitors in relation to mining in the area. The last time he testified, he was the High Desert District Manager. Since then he was assigned to cover the North Central District. Tumalo Management is no longer in his prevue, but he agreed to come to the meeting because he is familiar with the area. The Parks is not against Mr. McClain, and they have been cooperative. The purpose of his comments is to say that any expansion or change of use of site 303 might affect Park users. In 2010, there were 251,000 day users and 45,000 campers. They want to make sure that effects on the Park are considered. The site is visible from a designated interpreted Park area. Also, besides visibility are the effects of noise and dust. There have not been any complaints regarding noise, but increased traffic and equipment should be assessed in regard to the Park experience. The Commissioners called for a five-minute break at 12:00 noon. __________________________ Paul Dewey spoke on behalf of the Hoffman’s, and provided a handout. He noted that several others could not be here today, but will likely want to present written testimony. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 10 of 15 Pages He wanted to talk about two different ways mining sites are regulated. One is the comprehensive plan through the ESEE, which lists restrictions. The other way is by zoning ordinance. The last go-round they argued for an ESEE analysis, which shows conflicts. The Board elected to not go with a new ESEE, but to try to regulate use of the headwall. LUBA said there is not much flexibility for the County to do this; ESEE has the most authority. The question is whether a new ESEE should be required. LUBA basically felt it was unconceivable to them that there is an unidentified material not noted within an ESEE. They looked at gravel and pumice in a much smaller quantities, and now tuff is included. It means dismantling of the headwall that will impact the Park and nearby residences. If the ESEE allowed mining of the entire site, much of the site is basalt, and it would have to be blasted off the top of the hill and dug down 80 feet to get to the pumice. In the recent past, mining of the flats was done and tuff was incidental. Once you start going up the hillside, it is 30 or more feet and is not incidental. If the Board finds that mining of tuff is incidental, care must be taken that it is minor. This much material is not incidental in any way. The only effective means to do this is an ESEE analysis. There is not enough time to discover the impacts and tradeoffs. And ESEE would allow for a review and balance of the interests in the area. There is not enough flexibility under zoning code to do this. He said that Mr. White indicated the ESEE did not mention the headwall so he feels it is automatically included. Mr. Dewey feels that bringing down the headwall was not to be included. Past mining was in the pits. The Board stated that with the exception of the headwall, the other mining was anticipated by the ESEE. This was not appealed by Latham at the time. He stated that the subject of reclamation is another issue. Cascade Mining had a plan in place, but it was a fundamentally different operation. They were not going to remove the tuff but were going to use it for reclamation. Thirty or thirty-five feet would be removed and then reused. There would be incremental, ongoing reclamation as they moved around the property. What was proposed and anticipated previously was not taking away the tuff but mining only the pumice and going thirty-five feet, and reclaiming the headwall with the tuff. Latham wants to create a large headwall and not restore the slope. They want to leave the headwall as is because they say it is stable, and sell off the tuff. This will be an ecological and social scar with huge ramifications. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 11 of 15 Pages This needs to be reviewed in an ESEE and not within the County’s Code. Just because DOGAMI controls how reclamation happens does not mean that the County has no authority. Mining is a passing use and eventually the land will be used otherwise. This can only be done in the scope of an ESEE, and the only flexibility the County has is to request a new ESEE. He said an analysis of whether it is appropriate to operated under SP-95-10 was also done. __________________________ Mike VanWaas said he lives in the area, and indicated it is not clear whether the record will be left open. He will defer his comments if it will be. Chair Baney said that the record will be left open for a period of time. __________________________ Sanders Nye said he would like to defer his testimony at this time as well. __________________________ Skip and Karen Grossman came before the Board. Mr. Grossman said they live off Johnson Road, and bought the property in 2009 based on knowledge of the area at the time, including the mine. He tried to understand what was going on, but it is rather complicated. With the application expanding the scope of work, they are concerned about noise, dust and traffic. He is not anti-growth or anti- jobs, but feels an updated environmental analysis should be done in light of proposed expanded operations at the mine. __________________________ Danielle Nye of 63890 Johnson Road said she lives directly behind the mine. She has three children, two of which have health issues, so she is concerned about air quality, dust, noise and traffic. Cascades Academy is building a facility nearby as well, and children will be in the area all the time. She is concerned about her property value being affected by the mining being closer to her home. She feels the priority of the community should be environmental impacts and what the tradeoffs are. As a board member of Cascades Academy, she is dedicated to the future of the community. She wants the Board to consider how this will affect the future of the area. She indicated she purchased her home in September 2010; the Tiens were the previous owners. Chair Baney pointed out that the use is an approved use and resource land is highly protected by the State. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 12 of 15 Pages __________________________ Helen Whistler explained she has owned property in the area since 1994. She indicated that dust is a big issue, and one of the things that has become common are the dust-driven winds. The neighborhood tried to file DEQ reports but those were not acted on adequately. The fact they have not filed recently does not mean there are not substantial times when dangerous dust storms have occurred. She knows that dust happens in general, but the amount of relief provided is inconceivable if this continues. She does not think this was considered in the ESEE. The County and area has changed, and other things need to be taken into consideration. The other issue is the reclamation of the land. It was required by DOGAMI and the County added to it. That’s what the owners should operate under now. Nothing has been reclaimed under the new owner. Even the pit area needs to be addressed. A comment was made that the new owner inherited the problem. However, it is their problem now and they need to take care of it. She said that last Wednesday she attended the County Planning Commission meeting, at which it was said they have a lot to do and a heavy workload. In every instance they wanted the easy way out, but the easiest way is not always the right way. __________________________ David Adams of the Tumalo Rim Drive Homeowners Association stated that he participated at all the hearings through 2008-2009. (He provided a handout at this time, photos of the site.) He asked how they can possibly reclaim something like this big pit in the ground. It will probably be impossible. He would like to see the ESEE amended. They are dealing with a long-term industrial operation that will result in heavy truck traffic, and more noise and dust issues. He said that 3.4 million cubic yards of Tumalo tuff being mined and hauled away is a big operation. At ten yards per load, he computed that will be 340,000 loads, at six loads per hour, eight hours a day, and will go on for nineteen years. There would undoubtedly be noise and dust issues, crushers, loaders, trucks, and more. The point is that noise and dust don’t have to violate standards to be a nuisance. Everyone has head the beeping noises from trucks backing up and how annoying that can be. Long term, it would take years to mine the property, and is a big problem. Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 13 of 15 Pages He pointed out that if there are concerns by residents, they’d be subject to complaints to DOGAMI, which has not acted in a satisfactory way in the past. If this happens without an ESEE amendment, the applicant can come back for more site plan changes or conditional use permits as they expand operations. If this is to take 19 or 20 years, the County would be dealing with an ESEE from 1989 or 1990. For that reason, it needs to be amended so that future Boards will find this an easier process. Another reason is that there will be more parties involved, not just the current ones. At the intersection of Johnson and Tumalo Reservoir Road, a church has purchased a property and they plan to develop it within three to five years. Cascade Academy is also in the area, and the Coats gravel mine property was rezoned for residential use. There will obviously be additional flavors in the area impacted by changes to the mine. These need to be considered as well. __________________________ At this time, the Board decided to: ƒ Leave the record open for new evidence until 5 PM Monday, June 20, 2011. ƒ Accept rebuttal from the applicant by 5 PM on June 24, 2011. ƒ Review and deliberate on Wednesday, June 29, 2011 at the 10 AM business meeting. The clock runs out on July 29, 2011 so a decision will need to be made early enough in the month to allow for findings to be written. Before the Board was Consideration of Approval of the Consent Agenda. UNGER: Move approval, excluding the minutes of June 8. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Consent Agenda Items 6. Board Signature of a Letter Thanking Jack Blum for his Years of Service on the Local Public Safety Coordinating Council 7. Board Signature of a Letter Appointing Shelly Smith of the KIDS Center to the Public Safety Coordinating Council, through December 31, 2012 Minutes of Board of Commissioners’ Business Meeting Monday, June 13, 2011 Page 14 of 15 Pages 8. Board Signature of a Letter Accepting the Resignation of Patricia Kuratek from the Deschutes County Children & Families Commission, and Thanking her for her Service 9. Approval of Minutes: ƒ Business Meeting: June 8 ƒ Work Session: June 8 ƒ Public Hearing on Comprehensive Plan: May 31 CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 10. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District. None were available at this time. CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 11. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District. None were available at this time. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 12. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County. None were available at this time. 13. ADDITIONS TO THE AGENDA None were discussed.