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HomeMy WebLinkAboutHearing - LUBA Remand - LathamDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of June 13, 2011 Please see directions for completing this document on the next page. DATE: May 19, 2011 FROM: Paul Blikstad Department CDD Phone #6554 TITLE OF AGENDA ITEM: A public hearing on application Nos. CU-07-102/SP-07-46, Conditional Use Permit and Site Plan for mining activities at surface mining site No. 303 on Johnson Road, Bend. The hearing is scheduled pursuant to the Oregon Land Use Board of Appeals (LUBA) remand of the County's decision on the above applications. PUBLIC HEARING ON THIS DATE? Yes. BACKGROUND AND POLICY IMPLICATIONS: The Land Use Board of Appeals has remanded the County's decision on application nos. CU-07- 102/SP-07-46 for the Latham mining site on Johnson Road northwest of Bend. The Board must hold a hearing and address only the issues on remand from LUBA, and send to LUBA a written decision on the remanded issues within 90 days of the date the applicant's written notice to initiate the remand process. Bruce White, attorney for Latham, sent such a letter to the Community Development Department. In Order 2011-013, the Board ordered that the hearing be held on June 13, 2011 at 10:00 am and that the hearing be held de novo, limited to the issues on remand. Staff will present the Board with a listing of those issues prior to the hearing. At the conclusion of the hearing, the Board will give direction to staff regarding the new decision on remand. Staff will then draft the new decision for the Board's approval at a later date, but no later than July 27, 2011. FISCAL IMPLICATIONS: The county will incur the cost of this hearing for which no fee is included in the County Fee Schedule. RECOMMENDATION & ACTION REQUESTED: Hold the hearing, decide on the issues on remand, and give staff direction for drafting the new decision. ATTENDANCE: Paul Blikstad DISTRIBUTION OF DOCUMENTS: N/A REVIEWED LEGAL COUNSEL For Recording Stam • Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Setting the LUBA Remand Hearing and Establishing the Procedures the Hearing in File Nos. SP-07-46/CU-07-102. * ORDER NO. 2011-013 WHEREAS, the Board of County Commissioners' ("Board") Findings and Decision on application nos. SP-07-46/CU-07-102 was appealed to the Land Use Board of Appeals (LUBA); and WHEREAS, LUBA remanded the County's decision on SP-07-46/CU-07-102 through LUBA No. 2009-061/2009-062, Final Opinion and Order, dated May 17, 2010; and WHEREAS, Applicant Mark Latham Excavation, Inc., through legal counsel, provided written notice of the applicant's desire to initiate the remand process on April 30, 2011; and WHEREAS, Oregon Revised Statutes 215.435(1) requires that the county submit a final decision within 90 days of the date the written notice from the applicant is received; and WHEREAS, Deschutes County Code 22.34.020 requires that the hearings body below hear the case on remand and the Board was that hearings body; and WHEREAS, the Board desires that those issues remanded by LUBA be heard de novo; THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The Board will hear on remand application nos. SP-07-46/CU-07-102, LUBA Case No. 2009-062, pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances. Section 2. The remand shall be heard de novo, and limited to only the issues on remand from LUBA. /// ORDER NO. 201 1 -0 13 Section 3. Community Development Department staff shall set a hearing date and cause notice to be given to all persons or parties entitled to notice pursuant to DCC 22.34.030. DATED this e> -- day of May, 2011. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY. OREGON ',-1 VIS' TAMMY BANEY, Chair ATTEST: ANTHONY DEBONE, Vice Chair /?2 )79 Recording Secretary ORDER NO.201 1-013 aL, ALAN LINGER, Commissioner Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: May 31, 2011 TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Land Use Board of Appeals Remand Order and Hearing for the Latham mining site, application nos. CU -07-102, SP -07-46 (MA -08-3, MA -08-4) BACKGROUND Latham Excavation submitted applications for a conditional use permit and site plan for surface mining activities at what was/is an existing pumice mining site on Johnson Road (see staff's original memo to the Board dated October 30, 2008, attached). The Hearings Officer's decision was appealed to the Board, and the Board agreed to hear the appeals (the applicant and opponent both appealed the Hearings Officer's decision). The Board's written decision was mailed out on April 30, 2009. Both the applicant and the opponent Hoffman appealed the Board's decision to the Land Use Board of Appeals, which remanded the decision in five of the 20 issues appealed by the Hoffmans and three of the four issues appealed by Latham. The Hoffmans appealed to the Court of Appeals LUBA's decision that upheld the County's decision regarding the interpretation of the definitions of noise and dust sensitive issues. The Oregon Court of Appeals upheld LUBA's decision. The Hoffmans appealed the Court of Appeals decision to the Oregon Supreme Court and the Supreme Court denied review. LUBA then issued its official Final Opinion and Order, which is dated May 17, 2010. The applicant, by letter to the Planning Division, requested that the Remand process be undertaken. That letter is dated April 30, 2011. The County has 90 days from the date the letter was received (also April 30, 2011) to hold a hearing and issue a new decision. The 90 - day deadline ends on July 29, 2011. County Legal Counsel previously provided you a link to LUBA's Final Order and Opinion (LUBA Nos. 2009-061/200-062) and the Board of County Commissioners' Findings and Decision (mailed April 30, 2009). I am submitting for your review the following: • Staff's matrix laying out the remand issues • Vicinity map showing the location of the mining site • Applicant's geologic profile maps Quality Services Performed with Pride The remand hearing before the Board is scheduled for Monday, June 13, 2011. Also, a work session with the Board is scheduled for Wednesday, June 8, 2011. Please contact me at your convenience if you have any questions. I have paper copies of the LUBA final opinion and order, and the Board's written decision, should you need them. Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: October 30, 2008 TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Appeal of Hearings Officer's decision on CU -07-102, SP -07-46 (MA -08-3, MA - 08 -4); also file nos. A-08-14, A-08-20, for Latham Excavation BACKGROUND Latham Excavation submitted applications for a conditional use permit and site plan for surface mining activities at what was/is an existing pumice mining site on Johnson Road. The applicant's original proposal was to expand the surface mining operation at the site approved in 1995 (through site plan SP -95-10), and to include drilling and blasting at the site, and to construct an office and shop at the site. The applicant modified the request to remove these two aspects of the proposed use, based mainly on concerns of the neighbors. The amended applications thus included: • Seek approval for extraction only within the footprint of the area approved for extraction in the approval for SP -95-10. • Approval for excavation of Bend Pumice and associated overburden materials and aggregate materials incidental to excavating pumice and overburden materials. • Approval for processing and sale only of materials extracted on-site; no processing or sale of materials brought in from off-site. • Recognize importation of materials from off-site for eventual use in reclamation. • Elimination of any approval for drilling and blasting. • Show alternative locations for screening and crushing of pumice and overburden materials. • Eliminate the office and shop and other structural accessory support facilities on site. • To allow for use of a portable scale for weighing excavated materials on site. The modification includes the following refinements and clarifications to those proposed at the original February 19, 2008 hearing: • To allow for crushing of welded tuff and other incidental rock materials encountered in extraction of pumice and overburden materials. • To provide for extraction, processing and sale of sand and horticultural materials. Board Memo — Latham Excavation Page 1 of 3 Quality Services Performed with Pride • To provide for washing of tuff, sand and horticultural materials. • To modify the maximum area of the slots to be 5 acres. • To note on the site plan the locations of the area where materials being brought in are being deposited, where haul roads exist and what vegetation will be retained. • To show the type and location of portable weighing scale that applicant proposes to use. • To show compliance with DEQ air contaminant discharge permit requirements for applicant's roll crusher. The applicant's revised burden of proof from February 19th lists the following as part of the request: • To add on-site processing, including crushing, of pumice and pumice overburden materials within the same footprint approved by the site plan approved by SP -95- 10. • To include temporary stockpiling on site of excavated material for sale to consumers. • To recognize that the pumice overburden is being mined for sale rather than retained on site. • To allow for hauling of materials up until 5:00 p.m. during the time period November 15 through February 15. • To recognize that the weather station has been removed from Sites 355 and 356 and installed on Site 303. • To recognize use of a water tank for water storage on site. • To allow for use of a portable scale for weighing material to be sold. Two public hearings on the applications were scheduled before the County Hearings Officer. The first hearing occurred on February 19, 2008, and the second on April 15, 2008. In between the hearing dates, on March 20, 2008, the applicant submitted modifications to the applications. The modifications were included in the April 15th hearing proceedings. According to the County Procedures Ordinance, the modification applications restarted the 150 -day review period. The Hearings Officer's written decision on the modified applications was mailed out on July 31, 2008, approving the applications, with 18 conditions of approval. The applicant filed a request for reconsideration of the Hearings Officer's decision on August 12, 2008. Notice of the reconsideration request was mailed out by staff, and a decision on the reconsideration was issued by the Hearings Officer. Her decision was mailed out on October 14, 2008. During the 12 -day appeal period following the Hearings Officer's original decision, an appeal of her decision was submitted by opponents Hoffman, through their attorney Paul Dewey. According to the County's Procedures Ordinance, the reconsideration request is handled first. Because the Hearings Officer declined to reconsider her decision (the reconsideration decision left the approval as written), the appeal by Hoffman carries through to the reconsideration decision. The applicant filed an appeal of the reconsideration decision as allowed by code. Consequently, the Board has two appeals to consider in this proceeding. Board Memo — Latham Excavation Page 2 of 3 The County Code and State law require a maximum 150 -day review period for land use proceedings with the County. Staff has calculated the review period, and with the modification applications, together with the time extension requested by the applicant at the April 15th hearing, staff believes that the 150 -day review period ends on December 11, 2008. APPEALS As indicated above, there are two appeals of the Hearings Officer's decision (file nos. A-08-14, A-08-20). The applicant's appeal requests an on -the -record review by the Board. The opponents appeal includes a request for de novo review by the Board. Staff believes that given the time constraints for a hearing and decision on these applications, it may not be possible to complete a review of these applications and issue a written decision by December 11`n Staff believes there are outstanding policy issues that should be considered by the Board. These are: • what constitutes a noise and dust sensitive use; • whether the expansion of the proposed surface mine requires a revised ESEE (Environmental, Social, Economic and Energy) analysis by the Board; • whether the use of the term "processing" in the ESEE analysis (at site 303 as well as numerous other sites in the County) was intended to allow crushing; • the degree of protection to be afforded under the visual screening standards of the code and the manner in which the topographical exception should be applied; Staff believes that there are also issues related directly to the site itself that warrant review by the Board. The opponents have listed 17 alleged errors in the decision, and the applicant has listed 5 alleged errors. Staff will not repeat those here, but they can be reviewed in the attached notices of appeal. Staff has a very large file on this matter, which is likely over 2,000 pages in length. Most of it is available for review on-line, so rather than copy it for the Board, staff will copy only the most pertinent parts for a Board determination of whether or not to hear the appeals. I am submitting for your review the following: • The applicant's and the appellant's notices of appeal • Hearings Officer's decisions (original decision and reconsideration decision) • The County's 1990 ESEE analysis for site no. 303 • Vicinity map showing the location of the mining site Please contact me at your convenience if you have any questions. I have a very large air photograph from the record that shows the property in relation to the surrounding area and development, which I can bring to a work session. Board Memo — Latham Excavation Page 3 of 3 Staff comments o czt o 3 ,- ° bin 0a a) Obi) 'a d', •CA CIO ° , °mow 3 r 3w. o a) O•-•-. at11) o ° Q >o E -0 0 o 5 r }j 0 „ ��d-C, o 0� 3 ��..- ° O cn > 0,� o • o.. dciiczt tli) - 30,0 to a) '� a ,, o Ct a) 0 3 �•c a) E w . <n Hw v o Possible route to take C.) O O, 3 O. any' crs te a) tIDIJ' O (I) d a j cn -° p• y '' ,- yHC).° L_, tn ct ct 4, O O, °- 0 a � H bA a) i, „>-".,_,'7: m O c> d' a) p O +>+ a) al by a ti) °-, 0 by ° as ° yw��'a. tai) _0 w '0 U O E O a) U a, (vs ct 0 '74E, a) '� C1, -71 0 �O 0 �" b4 a) O a) -° 'cm+ > LLUBA Remand Issue ct <A 0 O b, N <4,(-,iate) 0 v)0 ct co >, ` • fin, by w • <+, (t . 2 H N ,- ° w Do �? H"S c) 3, +- M O u) >, p c3 X ct by ' E >, cd Cd LI 0 ,—O a„) U o cd .--.. �,� w �, �, ..0 3 V] 0 0 ai o° w° ci o O ' --�-- co ,,-0 <nt� <+• a) H vi to ct >' a) bp ° a) bA a) O M O a) -0 ° O O H bA 0 to sy _0 ' ,., to ^ 0 N - E �; , 0 3 d �wa H a)cdH0• cda a., r, oto H ent adopts a conclusion and would have adopted the same program to achieve the goal." x • >, ° c a) cd a c 0 . k (-- 0 O CiO Q.1 0 `� c O E 0 p CCS 0OH O U O `71 O H O O (N 0 • • 0C/)bA N & E bO aci• bO O • _ I, ..fl O Y bAC) , s.„ 0 C7d tea) c o o 3 0 C i Z >, O o - oo •7, ct cd - a) > a. O , d a) cc' .nC ,-D -r-/ 0-� C a) U a) ,- ' 3 C.) �' .b cd ° cid a) 0 C/) a) . ,_, 0 I--, ;O. Staff believes that in either scenario, screening of headwall will not occur. ;. N .771 ^d bO OU to 6 YO Cl.) 'Ed CA i-• ... a3 C a4 cd cF- CU 4 a) C") cd c ° ,-C c.) a) O 0,-:, a) >, Cr t O O a) 'cd 0 Ct i.. L- Q. `� O O i-' .-- a) a) O `--' ,--, 'ri0 (1) ' o 0 o °, ° x V V >, 0 (i) cd 2 cd bO 0 V 4 cd cn bA �• �. a) . - O ° " 3 a a) Q) EI ,c O C/) '-C (i+4 Ct Y 0 ..fl The County can either: might justify an amended Findings and Decision for site 303 that imposes additional restrictions on mining the subject property to provide additional protection for the conflicting uses." bO ) 1 Q)0 c3 O s +' > ,.0 bO Q a) 4 CT �s., � c, ca = Q .7, , c..(+-4bO 4S , O 0. U r • U Ct °T�p bA �O n .� o � o W o •W c U Y� 4. Q 1 cd O + 64-4 'a' d x off ' E C 3. ° o > x•�' °' bttnin E '- 3 C. o; c M a) .cd cd 0 --" _ U O C/) -c_ °ctQcuQ.< M'v, C ,-C ) cd0. Y 773 (i) a) � •� •, >, -LI o ,rs '� ' o 0 ,-C CC N 4-. � Q) u-7',. O �. 6 x a) . G1 E—+ a cn , E— O •--4 cd v Cd a) i.. Third Assignment of Error — Hoffman Subassignment — Tumalo State Park � O 'azS • o a, w cd a) d g a) bf)� v) bA � • a ,-0 azs 0 tz a) O 0 b40 a d bf) cd ▪ iUU > U a' s -,d U ,_g 74 • >�° °a �o'C 3ct d a ted d• 'i Ct Ua —;-d 0 cd -0 ) •d = 0-; .g U ) . 4= -d g 5 oa -d. _.v, ▪ . s, ,tj40 .�„,L) ), O - O -,O +- a cd 0 O r, d tA 0 0 0 . ,6•Z> . OXbb 0 UU , ue.7 : 4 • 0 0 g ,,,t” (-NI: ce° d ¢ )--1 vii0 a, vi pcQ -Ea) cV (1) a) Staff believes there are two choices here: Make findings under 18.52.090(B)(1 and O 0 c Staff also believes that if the exception is cn «3 c+O. a) O a" En U do o U M 0 O O CL k O N a) U 0 O U O 0 U 0 0 H mile of the Hoffm 0 O 0 0 U 0 ,., cn O ..d U O c▪ n 0 cri cri0 U dA ° 0 U U 0 4-, cn 0 0 0 U 0 O 0 0 stored for reclamation. The County can do one of two things: Insert a condition into the decision 0 0 -J • U • 0 0 0 0 U U U 0 0 0 0 0 U 0 U 0 dp 0 o dp O 0 O 0 U • 0 0 U 1-4 0 0 0 0 O U 0 'L7 0 0 U 0 0 0 U U d4 cn O cd �„ 0 3 0 U U 0• O U < 0 0 U 0 � 3 M • 0g U a �. — • 1, O CA)• O O • .� O CID 0. U O M O •Y a) ct :b a( 3 crzi U 4-4 V) � .-4 - Q v1212i CZ/ -4C334 E > -4- 0 4, ',9 O 0 UO bOA 0 a) bU_0 04, 04, 0 0 cd" cd U i-, U cd bn b U U 0 12L O a) 0 by 0 0 0 N 0-4 O O U 0 0 0 H a) 0 U • U U 0 U 4-a O • • 0 0 H 0 0 O U O rzL 0 0 W 3�45, Q) 0 '0 'b N 0 3 0 0 E 0 U .may 0 U 0 O 0 U 0 O .b (71 czs .c U 0 'cd 1. bA . < U a) C9 U 0 0 O cidbJ)U 0 0 a 0 a,0 O 0 0 U O (73 U 0 O 0 bO U 0 0 O U 0 cn cct O O 0 O O 0 u 0 H 0 E N 3 0 0 a) 0 O 0 0 0 O � cd c U -O 0 U O 0 U cn cn0 U 0 O czt 0 p, U 0 v] cat0 O 0 N 0 O 0 0 U 0 0 0 O U cap cd a) H -0 -0 d U.0 ;C.71 0 fes, a) ^O O 0 0 .s 0 bA X cd O N O•O 0 kr) 0 0 a) 4 00 0 E •(3 bbO - 'O ( "0 U a Q U .D a) W .- 0 i, p O ...0 0 c: 0 'c, •� 0 - 0 c( 0 -- "0 N_ N 00 N V O1-4 (73 rs to 0. 0 O U 5 O 0 U 00 a) } .74c 55 a) cid 5 a) O O E 0 p, cd The Board determined that no further mining of the headwall would be urrounding uses. impacting pre -1990 ,c) c,,/ a bn a� -• ,—, . ',_ c- ) 45 : 190 - -!' . 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