HomeMy WebLinkAboutOrdnc 014 - Surface Mine Zone Chg (3)Deschutes 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 27, 2011
DATE: 5/16/11
FROM: Will Groves CDD x6518
TITLE OF AGENDA ITEM:
Consideration of Second Reading by title only, and Adoption of Ordinance No. 2011-014, Amending
Deschutes County Code 23.100.070 and the Comprehensive Plan Map to Change the Comprehensive
Plan Designation for Certain Property From Surface Mine and Agriculture to Rural Residential
Exception Area. File Nos. ZC-08-1 and PA -08-1.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
The Board held a first reading of this ordinance by title only on June 13, 2011.
The Daniels Group, LLC proposed a plan amendment and zone change to change the comprehensive
plan designation of the Lower Bridge Mine Site from Surface Mine (SM) and Agriculture (AG) to
Rural Residential Exception Area (RREA) and zoning map designation from Exclusive Farm Use
(EFU-TE) and Surface Mining (SM) to Rural Residential (RR -10). The Board approved this
application on December 29, 2008. The Board's decision was not appealed.
This decision approved immediate rezoning of the "East Area" of the mine site. Although conditions
were imposed on future development of the property, no conditions have to be met prior to the rezoning
of this area. These ordinances apply only to the "East Area" of the property, which is predominantly
east of Lower Bridge Way. The "West Area" of the property was the subject of a Resolution of Intent
to Rezone and is not included in the current ordinances, as the conditions of the Resolution have not yet
been met.
The Daniels Group recently provided all materials necessary to draft the implementing ordinances and
has indicated that they are ready for the Board to adopt the ordinances.
Ordinance 2011-014 is the Comprehensive Plan Map designation amendment. Amending the
Comprehensive Plan Map designation must be completed prior to amending the zoning map.
Contemporaneous with this ordinance, the Board will be adopting Ordinance 2011-015, the zoning map
amendment that implements this new Comprehensive Plan Map designation.
FISCAL IMPLICATIONS: None.
RECOMMENDATION & ACTION REQUESTED:
Motion: Second Reading by Title Only, and Adoption of Ordinance 2011-014.
ATTENDANCE: Legal; Will Groves
DISTRIBUTION OF DOCUMENTS: Copy to Will Groves
April 18, 2011
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/
To: Deschutes Board of County Commissioners
From: Will Groves, Senior Planner
Subject: Consideration of First Reading of Ordinances No. 2011-014 and 2011-015.
Ordinance No. 2011-014 - Amending Deschutes County Code 23.100.070
and to Change the Plan Designation for Certain Property From Surface Mine
and Agriculture to Rural Residential Exception Area. File Nos. ZC-08-1 and
PA -08-1.
Ordinance No. 2011-015 - Amending Deschutes County Code Title 18,
the Deschutes County Zoning Map, to Charge the Zone Designation for
Certain Property From Surface Mining and Exclusive Farm Use to Rural
Residential. File Nos. ZC-08-1 and PA -08-1.
BACKGROUND
The Daniels Group, LLC proposed a plan amendment and zone change to change the
comprehensive plan designation of the Lower Bridge Mine Site from Surface Mine (SM)
and Agriculture (AG) to Rural Residential Exception Area (RREA) and zoning map
designation from Exclusive Farm Use (EFU-TE) and Surface Mining (SM) to Rural
Residential (RR -10). The Board approved this application on December 29, 2008. The
Board's decision was not appealed.
This decision approved immediate rezoning of the "East Area" of the mine site.
Although conditions were imposed on future development of the property, no conditions
have to be met prior to the rezoning of this area. These ordinances apply only to the
"East Area" of the property, which is predominantly east of Lower Bridge Way. The
"West Area" of the property was the subject of a Resolution of Intent to Rezone and is
not included in the current ordinances, as the conditions of the Resolution have not yet
been met.
The Daniels Group has recently provided all materials necessary to draft the
implementing ordinances and has indicated that they are ready for the Board to adopt
the ordinances.
Quality Services Performed with Pride
STAFF DISCUSSION
Each property in the county has a comprehensive plan designation and zoning
designation. As a mining property, the subject property also has some language
describing it in the comprehensive plan. In the first ordinance (2011-014) Thethe
comprehensive map designation is changed to Rural Residential Exception Area and
language in the comprehensive plan specific to this mining site is removed. This then
allows the second ordinance (2011-015) to rezone the property to Rural Residential (RR -
10).
Although the status of the "West Area" of the property is not relevant to the adoption of
the "East Area" ordinances, Staff anticipates the Board would be interested in a status
update of the "West Area".
On April 8, 2009, the Board signed a Resolution of Intent to Rezone (Resolution No.
2009-035) the "West Area" of the mine site. This resolution specified that the Board
would rezone the "West Area" if certain conditions were met within 5 years (a period
ending on April 30, 2014). Below, Staff lists each of the "action -item" conditions that
must be completed prior to rezoning and provides a short discussion of the status of that
condition.
1. Within five (5) years of the date the decision in Exhibit C is final or prior to
final plat approval for any residential subdivision on the 410 acre area that is the
subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain
from the Oregon Department of Environmental Quality ("DEQ") a "No Further
Action"("NFA") determination or the equivalent for a residential use designation
for this 410 acre area.
STATUS: Staff is unaware of any progress that has been made toward obtaining a "No
Further Action"("NFA") determination.
2. Within (5) five years of the date the decision in Exhibit C is final or prior to
final plat approval for any residential subdivision on the 410 acre area that is the
subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain
from the Oregon Department of Human Services a determination of "no apparent
public health hazard" for a residential use designation for this 410 acre area.
STATUS: Staff is unaware of any progress that has been made toward obtaining a "no
apparent public health hazard" determination.
4. The applicant shall submit a Modification Application for the modified
reclamation plan within six months of the date the decision in Exhibit "C" is final.
STATUS: The required Modification of Conditions application (MC -09-3) was submitted
within six months of the Board's decision. Those conditions will be modified through
Modifications of Application (MA -10-5 and MA -11-2) and is currently on hold, as the
applicant has requested that the 150 -day decision timeline be tolled.
6. During the pendency of this Resolution and continuing in conjunction with
the DEQ Voluntary Compliance Program and site development, the owner shall
implement the DEQ approved Planting Plan dated May 20, 2008 (Exhibit PH -6 in
the record for Exhibit "C") and the DEQ approved Watering Monitoring Plan dated
May 20, 2008 (Exhibit PH -7 6 in the record for Exhibit "C") as the Dust Abatement
Plan for the 410 -acre site.
STATUS: Staff is unaware of the status of the implementation of these plans. Nearby
property owners have informed staff that revegetation and watering efforts have ceased
on the property and that dust from the mine site has not been significantly reduced.
SCHEDULE
This matter is scheduled for the Board's morning meeting on May 23, 2011. Please
contact me with any questions.
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County Code
23.100.070 and the Comprehensive Plan Map to
Change the Plan Designation for Certain Property
From Surface Mine and Agriculture to Rural
Residential Exception Area
ORDINANCE NO. 2011-014
WHEREAS, The Daniels Group, LLC proposed a quasi-judicial plan amendment to change the
comprehensive plan designation of certain property from Surface Mine (SM) and Agriculture (AG) to Rural
Residential Exception Area (RREA); and
WHEREAS, after notice was given in accordance with applicable law, public hearings were held before
the Deschutes County Hearings Officer and, on August 6, 2008 the Hearings Officer recommended approval the
Plan Amendment; and
WHEREAS, after notice was given in accordance with applicable law, public hearings were held on
December 3, 2008, December 17, 2008 and December 29, 2008 before the Board of County Commissioners
('Board"), and
WHEREAS, the Board, after review conducted in accordance with applicable law, approved the plan
amendment to change the comprehensive plan designation of certain property from Surface Mine (SM) and
Agriculture (AG) to Rural Residential Exception Area (RREA); and,
WHEREAS, Deschutes County Ordinance 2000-017 ordained the Deschutes County Comprehensive
Plan Map to be a component of DCC Title 23 and, therefore, any amendment to the Plan Map is an amendment
to DCC Title 23; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Section 23.100.070, Goal 5 Inventory, is amended as described in
Exhibit "A," attached and incorporated by reference herein with new language underlined and deleted language
set forth in sly .
Section 2. AMENDMENT. DCC Title 23, The Deschutes County Comprehensive Plan Map, is
amended to change the plan designation for certain property described in Exhibit "B" and depicted on the map
set forth as Exhibit '`C", with both exhibits attached and incorporated by reference herein, with both exhibits
attached and incorporated by reference herein, from Surface Mine (SM) and Agriculture (AG) to Rural
Residential Exception Area (RREA).
1/1
Page 1 of 2 - ORDINANCE NO. 2011-014
Section 5. FINDINGS. The Board adopts as its findings in support of this decision Exhibit "D," attached
and incorporated by reference herein.
Dated this of , 2011 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
TAMMY BANEY, Chair
ANTHONY DEBONE, Vice Chair
Recording Secretary ALAN UNGER, Commissioner
Date of 1 s` Reading: day of , 2011.
Date of 2nd Reading: day of , 2011.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Tammy Baney
Anthony DeBone
Alan Unger
Effective date: day of , 2011.
Page 2 of 2 - ORDINANCE NO. 2011-014
EXHIBIT A
Deschutes County File #ZC-08-1 and PA -08-1
"160" acre Area -
Excluding Deschutes County
"Flood Plain Zone areas"
Parcel 2 of Minor Land Partition, MP -80-96 , located in Section 15 and Section 16, Township 14 South,
Range 12 East, Willamette Meridian, Deschutes County, Oregon, as per Partition plat recorded as
Survey CS 00169, Deschutes County Surveyor Records, more particularly described as follows;
Beginning at a point on the East line of said Section 16, said point being North 00°05'01" West 388.52
feet from the Southeast corner of said Section 16, as shown on said Minor Partition MP -80-96 ;
Thence North 77°39'52"' West 167.14 feet to the beginning of a 1689.00 foot radius tangent curve to
the right;
Thence Northwesterly along said curve, through a central angle of 17°32'49", an arc length of 517.26
feet, the chord of which bears North 68°53'27" West 515.24 feet;
Thence North 60°07'02" West 68.98 feet, to the centerline of Lower Bridge Road as it is now located;
Thence Northerly along said centerline of Lower Bridge Road to the centerline of the Deschutes River;
Thence Easterly and Southerly along said centerline of the Deschutes River to the East line of the
Northwest Quarter of the Southwest Quarter of said Section 15, Township 14 South, Range 12 East,
Willamette Meridian;
Thence South 00°09'48" East 793.36 feet along said East line to the Southeast corner of said Northwest
Quarter of said Southwest Quarter of Section 15;
Thence North 89°23'15" West 1315.48 feet along the South line of said Northwest Quarter of said
Southwest Quarter of Section 15 to the East line of said Section 16;
Thence South 00°05'01" East 969.02 feet along said East Line of Section 16 to the Point of Beginning.
Together With:
All that portion of the East Half of Section 16, and the Southeast Quarter of Section 9, Township 14
South, Range 12 East Willamette Meridian, Deschutes County, Oregon, more particularly described as
follows:
Commencing at the North quarter corner of said Section 16 as shown on Partition Plat 1991-47
recorded as Survey CS 04248, Deschutes County Surveyor Records, and as shown on Minor Land
Partition MP -80-96, as per Partition Plat recorded as Survey CS 00169, Deschutes County Surveyor
Records, said North Quarter corner also being on the North line of Parcel 3 of said Minor Partition MP -
80 -96;
Thence along said North line of said Parcel 3 the following three courses;
Thence North 39°46' East 375.00 feet;
Thence North 47°20' East 300.00 feet;
Thence South 73°20' East 631.85 feet to the True Point of Beginning;
Thence leaving said North line, and along the approximate westerly "rim" of the Deschutes River canyon
the following eight courses;
Thence South 20°56'42" West 366.00 feet;
Thence South 10°31'16" West 397.00 feet;
Thence South 17°31'44" West 218.00 feet;
Thence South 2°16'05" West 253.00 feet;
Thence South 18°11'14" East 249.00 feet;
Thence South 32°05'58" East 241.00 feet;
Thence South 43°12'39" East 260.00 feet;
Thence South 51°57'00" East 312.00 feet;
Thence leaving said "rim" South 8°34'08" West 735.00 feet;
Thence South 38°35'41" West 230.00 feet;
Thence South 4°48'14" East 163.00 feet;
Thence South 27°35'54" East 211.00 feet;
Thence South 49°17'51" East 130.00 feet;
Thence North 87°33'23" East 149.00 feet;
Thence North 57°05'52" East 304.00 feet plus or minus to the centerline of Lower Bridge Road (Way) as
it is now located;
Thence Northerly and Easterly along the centerline of Lower Bridge Road(Way) as it is now located to
the centerline of the Deschutes River;
Thence Northerly and Westerly along the centerline of the Deschutes River to the North line of Parcel 3
of Minor Land Partition MP -80-96, as per Partition plat recorded as Survey CS 00169, Deschutes County
Surveyor Records;
Thence North 73°20' West 355.42 feet along said North Line to the Point of Beginning.
Excepting therefrom: that portion described in deed to Central Oregon Park and Recreation District,
recorded December 30, 1986, in Book 139, Page 207, Deschutes County Official Records.
Also Excepting therefrom: All that portion lying within the Special Flood Hazard Area as per the "Flood
Insurance Study for Deschutes County, Oregon, and Incorporated Areas", revised September 28, 2007,
prepared by the United States Federal Emergency Management Agency(FEMA), and accompanying
FEMA, Flood Insurance Rate Map(FIRM), Map Number 41017C0300E, Panel 300 of 2250.
n
11-3/—/l
/2-2o-/0
Chapter 23.100. SURFACE MINING
23.100.070. Goal 5 Inventory.
Goal 5 Inventory — Mineral and Are ate Sites
SITE
NO.
LEGAL DESCRIPTION
NAME
TYPE
QUANTITY*
QUALITY
ACCESS/LOCATION
246
151010-00-00205, 207, 300,
302. 303
Tewalt
S & G
10,000
Good
Hwy 20
248
151012-00-00100
Cyrus
Cinders
30.2 M
Excellent
Cloverdale Road
251
151211-D0-01400, 151214-
A0-00800
Cherry
S & G
125,000
Good
252
151200-00-04700, 04701
Thornburgh
Rock
2.5 M
Good
271
151036-00-00800
Deschutes County
S & G
2 M
Mixed
Harrington Loo. Road
273
15[117-00-00100
Deschutes County
S & G
75,000
Excellent
Fryrear Rd/Redmond-
Sisters
274
151117-00-00700
Deschutes County
S & G
Excellent
Fryrear Road
275
151100-00-02400
Deschutes County
S & G
175,000
Good
Fryrear Landfill
277
[51011-00-01100
Oregon State Hwy
S & G
100,000
ODOT Specs
278
151140-A0-00901, 151211-
D0-01200
State of Oregon
S & G
18,000
ODOT Specs
282
171000-00-00100
Crown Pacific
Cinders
100,000
Fair
283
171000-00-00100
Crown Pacific
Cinders
50,000
Fair
288
1711 I 1-00-00700
Tumalo Irrigation
S & G
250,000
Good
292
171112-00-00900
RL Coats
S & G
326,000
ODOT Specs
293
17112-00-00500, 600, 700, 800
RL Coats
S & G
3 M
ODOT Specs
296
171100-00-02702
Crown Pacific
Cinders
100,000
Excellent
Shevlin Park/Johnson Rd
297
171123-00-00100
Crown Pacific
Cinders
60,000
Johnson Rd/Tumalo
303
171207-00-00300
Cascade Pumice
Pumice
750,000
Good
303
171207-00-00300
Cascade Pumice
S & G
10,000
Good
313
171433-00-00600
Deschutes County
S & G
100,000
Good
313
171433-00-00600, [20
Deschutes County
Storage
Dodds Road/Alfalfa
314
171332-00-01100
Deschutes County
Dirt
150,000
Good
315
140900-00-02100
Stott
Rock
93,454 tons
ODOT Specs
Highway 20
316
140900-00-00202
Black Butte Ranch
S & G
7 M
Good
317
140900-00-01300
Willamette Ind
Cinders
1.2 M
Good
322
141200-00-01801
Fred Gunzner
S & G
1.5 M
Mixed
Lower
Bridge/Ten-ebonne
322
141200-00-01801
Gunzner
Diatomite
500,000
Good
Lower
Bridge/Terrebonne
324
141200-00-00702
ODVA
S & G
490,000
Good
Lower
Bridge/Terrebonne
326
141236-00-00300,301
US Bank Trust
S & G
1.5 M
Good
330
141328-00-00702, 703
Larry Davis
Cinders
50,000
Good
331
141329-00-00100, 103
EA Moore
Cinders
100,000
Good
332
141329-00-00102
RL Coats
Cinders
2 M
Good
Northwest
Way/Terrebonne
333
141329-00-00104
Robinson
Cinders
2.7 M
Good
335
141333-00-00890
Erwin
Cinders
100,000
Excellent
Pershall Way/Redmond
336
141333-00-00400, 500
US Bank Trust
Cinders
4.5 M
Good
Cinder Butte/Redmond
339
141132-00-01500
Deschutes County
Dirt
200,000
Fill
Goodard Loop, Bend
341
161000-00-00106
Young & Morgan
S & G
1 M
Good
342
220900-00-00203
Crown Pacific
Cinders
200,000
Good
345
161000-00-01000
Crown Pacific
Cinders
50.000
Good
346 161000-00-01000
Crown Pacific
Cinders
50,000
Good
Chapter 23.100
1
(5/2008)
Goal 5 Inventory — Mineral and Aggregate Sites
SITE
NO.
LEGAL DESCRIPTION
NAME
TYPE
QUANT[TY*
QUALITY
ACCESS/LOCATION
347
161101-00-00300
Deschutes County
Dirt
10,000
Good
351
16[112-00-01401, 1700, 2000
Gisler/Russell
Cinders
[50,000
Good
Innes Mkt/lnnes Butte
357
161 136-D0-00100, 161100-00-
10400, 10300
Turnalo Irrigation
Cinders
1 M
Johnson RoadlTumalo
357
161136-D0-00100, 161100-00-
10400, 10300
Turnalo litigation
S & G
500,000
Good
357
161136-D0-00100, 161 100-00-
10400, 10300
Turnalo Irrigation
Pumice
500,000
Good
358
161231-D0-01 100
Gisler
S & G
100,000
ODOT Specs
Hwy 20/Tumalo
361
161222-00-02800
Oregon State Hwy
Cinders
700,000
Good
366
161230-00-00000
Oregon State Hwy
S & G
40,000
ODOT Specs
368
161220-00-00200
Bend Aggregate
S & G
570,000
Excellent
Twin BridgesiTumalo
370
161231-D0-00400
Bend Aggregate
Plant Site
Storage
379
181 100-00-01600
Oregon State Hwy
S & G
500,000
ODOT Specs
381
181125-00-12600, 181126-00-
01600
Pieratt Bros
Cinders
50,000
Good
390
181214-00-00500, 100
Deschutes County
Dirt
2 M
Landfill
391
181221-00-00200
Central OR
Pumice
Cinders
500,000
Good
392
181223-00-00300
Rose
Rock
10 M Est
Mixed
392
181223-00-00300
Rose
Dirt
7.5 M
Good
393
181225-00-01400
LT Contractors
Cinders
12.5 M
Good
Arnold Mkt Rd/SE of
Bend
394
181200-00-04400, 04411
Windlinx
Cinders
270,000
Coarse
Hwy 97/South of Bend
395
181200-00-04300
Oregon State Hwy
Cinders
100,000
Good
400
181300-00-04501, 04502
Eric Coats
S & G
2.5 M
ODOT Specs
404
191400-00-00200
Moon
S & G
1.3 M
Good
404
191400-00-00200
Moon
Rock
800,000 - 2 M
Good
Hwy 20/East of Bend
405
191400-00-00600
Oregon State Hwy
Aggregate
50,000
ODOT Specs
408
191600-00-01500
RL Coats
S & G
3 M
Good
413
201500-00-01400
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
414
201500-00-01500
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
415
201716-00-00700
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
416
201716-00-00200
Deschutes County
S & G
30.000
Good/Excellent
Hwy 20/East of Bend
417
201716-00-00900
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
418
201716-00-01000
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
419
201716-00-01300
Deschutes County
S & G
30,000
Good/Excellent
Hwy 20/East of Bend
421
212000-00-00900
RL Coats
S & G
500,000
Excellent
Hwy 20/Tumalo
423
211106-00-00700
Ray Rothbard
S & G
100,000
Good
426
211100-00-00702
La Pine Redi-Mix
S & G
1 M
Good
427
211 100-00-00701
Bill Bagley
S & G
40,000
Good
431
221100-00-00600
Russell
Cinders/
Rock
12 M/l2 M
Good
Finley Butte
432
221100-00-00500
State of Oregon
Cinders
160,000
Good
433
211300-00-00101
La Pine Pumice
Lump
Pumice
10 M
Excellent
441
150903-00-00300
Willamette Ind
S & G
11 M
Good
442
150909-00-00400
Willamette Ind
S & G
6 M
Good
443
150917-00-00600
Willamette Ind
Rock
150,000
Fair
453
161209, 10-00-00600. 301
Robert Fullhart
S & G
704,000
ODOT Specs
459
141131-00-05200
Deschutes County
Cinders
50,000
Good
461
44-1300141200 00 01500,
Nolan
S & G
350211,000
GoodDoes not
Meet ODOT
Specs
1501, 1502, 1503, 1505
461
141200-00-01501, 1502, 1503,
Franklin Nolan
Diatomite
2 M
Good
1505, 1600
Chapter 23.100
(5/2008)
Goal 5 Inventory — Mineral and Aggregate Sites
SITE
NO.
LEGAL DESCRIPTION
NAME
TYPE
QUANTITY*
QUALITY
ACCESS/LOCATION
465
141333-00-00900
Oregon State Hwy
Cinders
100,000
Good
466
141333-00-00600
Fred Elliott
Cinders
5.5 M
Good
467
141333-00-00601
Knorr Rock Co
Cinders
5 M
Good
469
141131-00-00100
Deschutes County
Cinders
2 M
Fair
475
151012-00-00600
Deschutes County
Cinders
200,000
Good
Cloverdale Road
482
151300-00-00103
Deschutes County
Dirt
2 M
Good
Nexus Landfill
488
161230-00-00100, 600, 2000,
2100
Bend Aggregate
S & G
400,000
ODOT Specs
496
191400-00-00500
Taylor
S & G
1.8 M
Mixed
Hwy 20
498
191400-00-02200
Oregon State Hwy
S & G
200,000
ODOT Specs
499
191533-00-00200
Oregon State Hwy
S & G
50,000
ODOT Specs
500
191500-00-00099
Oregon State Hwy
S & G
130,000
ODOT Specs
501
191500-00-01600
Oregon State Hwy
S & G
50,000
ODOT Specs
503
191600-00-01300
Oregon State Hwy
S & G
200,000
ODOT Specs
505
201600-00-00400
Oregon State Hwy
S & G
275,000
ODOT Specs
506
201600-00-00600, 700, 800
Oregon State Hwy
S & G
36,000
ODOT Specs
508
201700-00-01000
State of Oregon
S & G
100,000
ODOT Specs
515
201801-00-00100
Oregon State Hwy
S & G
100,000
ODOT Specs
522
211900-00-01000
Oregon State Hwy
S & G
300,000
ODOT Specs
524
212000-00-01900
Oregon State Hwy
S & G
300,000
ODOT Specs
528
222110-00-00600
Oregon State Hwy
S & G
45,000
ODOT Specs
529
221100-00-00300
Oregon State Hwy
S & G
31,000
ODOT Specs
533
222100-00-00800
Oregon State Hwy
S & G
1 M
ODOT Specs
541
141035-00-02000, 2100, 2200,
2300, 2400, 2500, 2600
Cyrus
Aggregate
528,000
Good
Inc Portions of TL
1800/1900
542
151001-00-02700
Swarcns
Aggregate
80,000
Good
543
151013-00-00100
Cyrus
Aggregate
1.1 M
Good
600
191400-00-00700
Robinson
S & G
3.8 M
Good
Hwy 20/East of Bend
601
211100-00-00700
La Pine Redi Mix
S & G
479,000
DEQ Specs
Paulina Lake Road
* quantity in cubic yards unless noted
(Ord. 2011 XXX014 §X1, 2011; Ord. 2008-001 §3, 2008; Ord. 2007-013 §2, 2007; Ord. 2005-031 §3,
2005; Ord. 2003-019 §1, 2003; Ord. 2002-005 §1, 2002; Ord. 2001-047 §4, 2001; Ord. 2001-038 §2, 2001;
Ord. 2001-027 §1, 2001; Ord. 2000-017 §1, 2000; Ord. 99-028, 1999; Ord. 99-019, 1999; Ord. 96-076,
1996; Ord. 95-041, 1995; Ord. 94-050, 1994; Ord. 90-025, 1990; PL -20, 1979)
Chapter 23.100 3 (5/2008)
23.100.080. Non-significant inventory.
Non-significant Inventory – Mineral and Aggregate Sites
SITE NO.
LEGAL
DESCRIPTION
NAME
TYPE
QUANTITY
COMMENTS
Whychus Creek
Silt,
200,000 cy
Reservoir Size is 80
100
15-10-13-700
Irrigation District
Watson Reservoir L
sand, &
dirt
acres.
Whychus Creek
Sand &
600,000 cy
Reservoir size is 40
101
15-10-13-700
Irrigation District—
Dirt
acres.
Watson Reservoir II.
Whychus Creek
Silt,
100,000 cy
Reservoir size is 12 acres
102
14-11-33-500
Irrigation District—
McKenzie Reservoir
sand, &
dirt
Whychus Creek
Sand &
250,000 to
Reservoir expansion size
103
14-11-33-500
Irrigation District
Dirt
300,000 cy
is 20 acres.
McKenzie Reservoir
expansion
(Ord. 2002-005 §1, 2002; Ord. 2001-038 §2, 2001; Ord. 2001-027 §1, 2001; Ord. 2000-017 §1, 2000; Ord.
99-028, 1999; Ord. 99-019, 1999; Ord. 96-076, 1996; Ord. 95-041, 1995; Ord. 94-050, 1994; Ord. 90-025,
1990; PL -20, 1979)
Chapter 23.100 4 (5/2008)
AG
Plan Amendment from
Agriculture (AG)
Rural Residential
Exception Area (RREA)
SM
SM
Plan Amendment from
Surface Mining (SM)
to
Rural Residential
Exception Area (RREA)
r
AG
�E4TFRALT
i
RREA
4
z
t
Legend
IMProposed Plan Amendment Boundary
County Comprehensive Plan
Agriculture - (AG)
Rural Residential Exception Area - (RREA)
Surface Mining - (SM)
PROPOSED
COMPREHENSIVE PLAN MAP
Exhibit "C"
to Ordinance 2011-014
0 175 350 700
Feel
May 3, 2011
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Tammy Baney, Chair
Tony DeBone, Vice Chair
Alan Unger, Commissioner
ATTEST: Recording Secretary
Dated this day of June, 2011
Effective Date: September 2011
REVIEW D
LEG COUNSEL
DESCHUTES
COUNTY CLERKDS CJ 2449.1194
NANCY
COMMISSIONERS' JOURNAL 05/07/2009 08:20:35 AM
IIIIIfl U III
11111-111i111111111111111
DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBERS: ZC-08-1, PA -08-1
LOCATION: The property is identified on the County Assessor's Tax Map as 14-12,
Tax Lots 1501, 1502, 1503, part of 1505, and 1600.
APPLICANT: The Daniels Group, LLC
1111 Main Street, Suite 700
Vancouver, WA 98660
OWNER:
Norman L. Wiegand, et al.
895 SW 23rd St.
Redmond, OR 97756
ATTORNEY
/PLANNER: Tia M. Lewis
Mark Rust, AICP
Schwabe, Williamson & Wyatt, PC
549 SW Mill View Way, Suite 101
Bend, OR 97702
REQUEST:
Comprehensive plan text and map amendment and zone change from
Surface Mining to Rural Residential to allow redevelopment of extensively
mined site.
STAFF CONTACT: Will Groves, Senior Planner
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.52, Surface Mining
2. Chapter 18.60, Rural Residential zone
* Section 18.52.200, Termination of the Surface Mining Zoning and
Surrounding Surface Mining Impact Area Combining Zone
3. Chapter 18.136, Amendments
* Section 18.136.020, Rezoning Standards
4. Chapter 18.116.Supplementary Provisions
ZC-08-1/PA-08-1 — BOCC Decision
Document No. 2009-168
DC -2009-168
Page 1 of 38
* Section 18.116.220, Conservation Easements on Property Adjacent to
Rivers and Streams Prohibitions.
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
* Section 22.20.040, Final Action in Land Use Actions
C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive
Plan
1. Chapter 23.100, Surface Mining
D. Statewide Land Use Goals and Oregon Administrative Rules (OAR) Chapter 660
1. Division 12, Transportation Planning Rule (TPR)
* OAR 660-12-0060, Plan and Land Use Regulation Amendments
2. Division 15, Statewide Planning Goals and Guidelines
3. Division 23-0180, Mineral and Aggregate Resources
II. FINDINGS OF FACT:
A. Location: The property is identified on the County Assessor's tax map as 14-12, tax Tots
1501, 1502, 1503, part of 1505, and 1600. Tax Lot 1501 has an assigned address of
70420 NW Lower Bridge Way, Terrebonne.
B. Zoning and Plan Designation: The site is generally designated "Surface Mining" on the
Comprehensive Plan Map, although the exact boundaries are unclear. The mine is
included in the county's Goal 5 inventory of significant mineral and aggregate resource
sites as Site 461.
Tax lot 1501:
Tax Lot 1502:
Tax Lot 1503:
Tax Lot 1505:
Tax Lot 1600:
249.1 acres zoned Surface Mining (SM), including 9.8
acres in Landscape Management Combining Zone (LM)
188.1 acres zoned SM, including 82.3 acres zoned LM
64.4 acres zoned SM, including 64.4 acres zoned LM
Only 42.1 acres of this 72.47 acre tax lot are subject to this
application. The most southerly portion of this lot adjacent
to Teater Road and zoned EFU is not subject to the
proposed zone change.
10.6 acres total includes 9.6 acres of Exclusive Farm Use
1.0 acre zoned Flood Plain, 10.6 acres zoned LM, and
10.6 acres zoned SMIA
C. Site Description: The 556.9 acre site is a geologically unique tract straddling Lower
Bridge Way about 6 miles north of Terrebonne, as shown on the Site Map, submitted as
Exhibit 1 and on the aerial photograph, submitted as Exhibit 2. To an observer driving
ZC-08-1/PA-08-1 — BOCC Decision
Document No. 2009-168
Page 2 of 38
Lower Bridge Way, the site is notable for the chalky white appearance of the exposed
diatomite Iayers.1
As illustrated on the submitted Site Map, the subject property includes Tax Lots 1501,
1502, 1503, 1505, 1600, but excludes the EFU-zoned portion of Tax Lot 1505 bordering
Teater Road. There are two areas of the property that are marked by their historical
uses and that are separated by the existing Lower Bridge Way. For ease of reference,
these areas are referred to as the area East of Lower Bridge Way and the area West of
Lower Bridge Way.
The subject property can be also divided into five geographic regions based on
topography and geology: eastern, northern, Deep Canyon, western, and central. The
land includes four general landscape types: quarry operations (old and recent),
hills/buttes (natural and formed), plains (unmined, mostly natural vegetation), and
canyons and drainages (natural vegetation, unmined).
The eastern region includes tax lot 1503 and 1505, is east of Lower Bridge Way, and
extends east along a steep slope, descending approximately 100 feet to the Deschutes
River. Except for the slope of the river canyon, the eastern region is generally level and
covered with overburden rock apparently removed from the former diatomite mining
operations. The river is Tined with wetlands depicted on the National Wetlands Inventory
Cline Falls map. This area had little mining activity and was primarily used for a staging
area.
The northern region includes tax lots 1501 and 1600, stretches west along the river from
Lower Bridge Way to Deep Canyon, then south along the southern rim of Deep Canyon.
The ground is relatively level, except for steep canyons that reach down to the
Deschutes and Deep Canyon. North of the diatomite mining area is a relatively
undisturbed "plains" landscape with mature juniper. The subject property is separated
from the river in this area by Tax Lot 14-12 1509, owned by the Oregon Parks and
Recreation Department.
Deep Canyon is primarily located on tax lot 1501, and is a small canyon with a spring
and a seasonal pond that drain to the Deschutes River. Two unimproved roads cross
the canyon. Across the northern bridge is the western region, a flat area formerly mined
for diatomite. The central region, includes tax Tots 1501 and 1502, and is a quarry
landscape. This region comprises about half of the subject property. A thick diatomite
layer and stockpiles make up much of this area, which is accessible only with an all -
terrain vehicle. This section of subject property is traversed by several unimproved
roads. The area was extensively mined for diatomite, and several derelict buildings,
including a former processing building, water tower, pump house, concrete foundations,
settling ponds and miscellaneous debris piles remain. The applicant has drilled a well in
1 The site has been mined for several materials, including aggregate, sand and diatomaceous earth. Most
of the aggregate and sand on the site have been removed, and the area containing those materials have
been reclaimed. The diatomaceous earth is described as "a chalky rock, high in amorphous silica content
formed from the structures (or diatomite) of tiny fresh- or salt -water organisms called diatoms."
1 The applicant argues that the vast majority of the site does not contain agricultural soils and therefore a
Goal 3 exception is not needed. The Board agrees.
ZC-08-1/PA-08-1 — BOCC Decision
Document No. 2009-168
Page 3 of 38
this area, and has installed a pivot sprinkler, which is being used to control dust and
provide water for irrigation to revegetate the area with native grasses and shrubs. The
applicant proposes to remove the remaining derelict structures.
This reach of the Deschutes River, which forms the east and northeast boundary of the
site, is designated as a Federal Wild and Scenic River and an Oregon Scenic River. A
steep bank limits pedestrian access to the river. However, the river is accessible from
Lower Bridge Way, and from the public park near the bridge.
D. Soils: Approximately 80% of the soils on the site are defined as Class VII and VIII.
Steve Wert, a consulting soil scientist, visited the site and conducted preliminary
research of the soils present on the site. His findings are summarized in a letter dated
October 4, 2006: "According to NRCS maps, the great majority of the property does not
even have a "soil type," but is classified as a "land type" called "Unit 97" which is rock
and gravel pits. Unit 97 is rated Class VII and VIII, and NRCS will stand by that rating."
However, not all of the property is class VII or VIII. The following table summarizes soils
data by tax lot.
///
ZC-08-1/PA-08-1 — BOCC Decision
Document No. 2009-168
Page 4 of 38
Approximate Acreage of Soil Type by Tax Lot
Tax Lot
NRCS Land /
Soil Type
Soil
Classes
Approximate
acreage2
Zoning
1501
249.1 acres
(central
/western)
97
81F
138A
138B
71A
71 B
31A
7 & 8
7&8
6, not prime
6, not prime
6, prime if
irrigated
6, prime if
irrigated
6, prime if
irrigated
159 acres
24 acres
48 acres
1.1 acres
12.2 acres
1.8 acres
3.3 acres
SM, SMIA, LM
1502
97
7 & 8
160 acres
SM, SMIA,
188.1
81F
7 & 8
9 acres
LM, FP
Acres
(central)
138A
6, not prime
19 acres
1503
97
7 & 8
42 acres
SM, SMIA,
64.4
31B
6, prime if
18 acres
LM, FP, EFU
acres
71A
irrigated
3.4 acres
(eastern)
6, prime if
irrigated
1505
97
7 & 8
39 acres
SM, SMIA,
41.2
acres
(eastern)
81F
7 & 8
2 acres
LM, FP
1600
138A
6, not prime
8.2 acres
SMIA, FP,
10.6 acres
(northern)
81F
7 & 8
2.4 acres
EFU
TOTAL
7 & 8
79 % = 438 acres
553.4
6, not prime
14% = 76 acres
acres
6, prime if
irrigated
7% = 39 acres
E. Surrounding Zoning and Land Uses: This section describes zoning and land uses
within a 2 -mile radius of the center of the subject property. Surrounding zoning in the
area of the subject property includes Exclusive Farm Use—Lower Bridge (to the north,
west and south), Exclusive Farm Use-Terrebonne (to the east and further to the south),
Surface Mining (to the northeast), Rural Residential (to the east and southeast) and
Flood Plain associated with the Deschutes River. The Landscape Management
combining zone extends along the Deschutes River.
The subject property is predominantly surrounded by active agricultural lands, as shown
in the 2008 Google Earth aerial photo included in the record. The surface mining zoned
land to the northeast appears to be in agricultural production. Properties to the west and
southwest and east are sparsely developed with rural residences. Most of the dwellings
in the immediate area have been constructed within the last 25 years. Within a 3 -mile
radius there are nearly 700 parcels with over 400 residences.
ZC-08-1/PA-08-1 — BOCC Decision Page 5 of 38
Document No. 2009-168
F. Mining History: The subject property has a long, inconsistently documented mining
history. Diatomite mining began on the property prior to the 1920s. Large scale
production began in 1936. The Great Lakes Carbon Company mined the property from
1944 to 1961. The mining history between 1966 and 1980 is unclear; however, it
appears the diatomite extraction occurred primarily on the western portion of the site.
The Oregon Department of Geology and Mineral Industries (DOGAMI) file for this site
begins in 1980. That file indicates that multiple companies have mined the site, mostly
for diatomite but also for aggregate. Although multiple mining permits were issued over
the years, various companies were cited for violating environmental laws, mining
permits, or operating without permits.
By 1980 Deschutes Valley Farms owned the site and leased it to Northwest Diatomite.
In January 1982, DOGAMI exempted Mid -Oregon Ready Mix from reclamation
requirements because the land was a mined prior to the effective date of the reclamation
rules. Mid -Oregon Crushing and Mid -Oregon Ready Mix were extracting aggregate by
1985. Various diatomite and gravel extraction activities occurred in the subsequent
years. By 1994, E.A. Moore was extracting, screening and crushing gravel on the
eastern portion of the site. Several DOGAMI inspections occurred over the years, which
found reclamation plans being implemented. By 2006, DOGAMI was ready to close the
file on the site. A Limited Exemption Closure Plan was submitted in late July, 2006. On
July 31st DOGAMI closed the file on the site.
Due to incomplete DOGAMI records and an apparent history of unpermitted mining, the
total quantity of aggregate and mineral removed from the site during over 80 years of
mining is unclear.
G. Zoning History: In 1985, 339 acres of the subject property was rezoned from Surface
Mining Reserve to Surface Mining. The applicants apparently anticipated that diatomite
mining would become economically viable again because a processing plant was being
constructed in Malheur County, which would enable the applicant to export it. The
Hearings Officer found that there was little local demand for diatomite, but that export of
the product after off-site processing partially justified the rezone.
In 1988, the Deschutes County Goal 5 Aggregate Inventory identified the site as an
aggregate resource (as opposed to a mineral resource, which includes diatomite) of
350,000 cubic yards. In the ESEE analysis for site 461, the Board identified the key
values that form the basis for the application of SM zoning to the mine site. These
include the importance of aggregate resources to development in Deschutes County, the
value to the County economy terms of materials and jobs, the presence of an estimated
350,000 cubic yards of aggregate on the site, and that the site is located near a major
roadway for highway maintenance and construction jobs.
Relevant Previous Land Use Decisions:
CU -74-156 — This record contains plan information for a solid and liquid waste disposal
site on the subject property. It appears that this application was approved, as solid and
liquid waste storage occurred on a portion of property located West of Lower Bridge
Way. A variety of wastes, including hazardous wastes were stored on the western
portion of the site and subsequently removed. This is discussed more fully later in the
findings.
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Document No. 2009-168
Page 6 of 38
MP -80-96 — Divided modern tax lots 1503 and 1505, as Parcel 2, and 1506, as Parcel 3
from the remainder of the mining site.
ZC-85-3 - A zone change from surface mining reserve to surface mining on tax Tots
1501, 1502, 1600, and 704. Condition 3 of this decision required a reclamation plan.
SP -85-23 — A site plan to allow surface mining, aggregate mining, and rock crushing on
tax lots 1501, 1502, 1600, and 704. This decision included reclamation specifications
attached as Exhibit C to the Hearings Officer Decision for SP -85-23, but materials are
missing from the record, including any map of the subject area and the updated
reclamation plan required by Condition 1. The applicant submitted testimony and
evidence demonstrating the area covered by the reclamation requirements for SP -85-23
encompasses an 18 -acre area just north of Lower Bridge Way and west of the site
access road off Lower Bridge Way. Compliance with a County approved reclamation
plan is made a condition of this approval as discussed further herein.
ESEE Analysis #461 — On October 24, 1989 the Board of County Commissioners
rezoned the remainder of the site (comprised of modern tax lots 1501, 1502, 1503, and
1507) to SM. This decision contains information about the quality and quantity of
aggregate and mineral resources on the property.
MP -90-74 — Divided historic tax lots 1501, 1507 and 1508 into two legal lots of 66 and
254 acres.
All of the above files are incorporated into this record by reference.
H. Proposal: The applicant requests approval of a plan amendment to change the
designation of the subject property from Surface Mine (SM) and Agriculture (AG) to
Rural Residential Exception Area (RREA) and to remove Surface Mining Site 461 from
the county's Goal 5 inventory of significant mineral and aggregate resource sites. The
applicant also requests approval of a zone change from SM and EFU-LB to RR -10 for
the subject property. The removal of the SM zoning on the subject property also would
remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on
property located within one-half mile of the SM Zone.
The site map submitted as Applicant's Exhibit 1 depicts areas presently zoned Flood
Plain (FP) as part of this rezoning proposal. Discussions with the applicant have
clarified that this proposal is not intended to rezone FP zoned lands.
I. Public/Private Agency Comments: The Planning Division mailed notice to several
agencies and received written comments and oral testimony in response. The agency
responses are summarized in the staff report, in this Decision, or are included in the
record. To the extent the comments pertain to the applicable approval criteria, they are
addressed in the findings. Certain agency comments that relate to conditions of
approval are discussed below.
Oregon Department of Human Services, Environmental Health Assessment
Program (EHAP): In a document received October 23, 2008, EHAP made the following
recommendations regarding management and development of the site were made:
ZC-08-1/PA-08-1 — BOCC Decision
Document No. 2009-168
Page7of38
Dilapidated buildings and piles of scrap wood and metal should be
removed. In the meantime, the public should stay off the property and
children and teens should be prevented from accessing the area.
Soil sampling and air monitoring should be conducted in order to analyze
them for cristobalite (crystalline silica) content and particulate matter size
(PM2.5).
Continue efforts to control dust, and include dust suppression plans for
any future activities.
If future zoning of the site changes to residential, site owners should:
Consult with EHAP to develop a comprehensive site -sampling plan that
would address issues raised in the report.
In oral testimony provided at the December 17, 2008 hearing, David Farrar of EHAP
stated that the existing EHAP evaluation of environmental conditions at the site only
dealt with the present use of the property. Mr. Farrar recommended that the landowner
obtain a letter of "No Apparent Public Health Hazard" from EHAP for the site prior to
residential use. This would require additional environmental sampling and cleanup of
any identified environmental concerns.
Oregon Department of Environmental Quality (DEQ): In correspondence dated
December 9, 2008, DEQ stated that the site has currently only been evaluated with
respect to environmental safety for its current use as a mine and an industrial property.
In prior correspondence, DEQ supported a rezone of the site from industrial to
residential use, which would require a re-evaluation of the site for residential use. The
re-evaluation of the site, applicable exposure routes, and pathways may result in some
scenarios requiring deed restrictions, active cleanup and/or monitoring. Following a
cleanup of any identified environmental concerns, DEQ could issue a "No Further Action
Letter" (NFA) or equivalent for residential use.
J. Public Notice and Comments: The Planning Division mailed individual written notice of
the applicant's proposal and the public hearing to the owners of record of all property
located within 750 feet of the subject property. In addition, notice of the public hearing
before the Hearings Officer was published in the Bend Bulletin, and the subject property
was posted with a notice of proposed land use action sign on February 2, 2008.
Numerous residents submitted written testimony and evidence, and provided oral
testimony at the public hearing. The residents identified concerns regarding dust
(including health concerns specific to diatomite dust), chemical contamination of the site,
radiological contamination of the site, site reclamation, traffic impacts, aesthetic impacts
of the existing mine and structures, water quality, water rights, and aesthetics of future
development. Public comments have also questioned if a new ESEE analysis or Goal 5
exception would be required. These comments are more fully addressed in the findings
below.
K. Lot of Record: The applicant submitted evidence regarding the status of the tax lots
incorporated into these applications. The evidence shows that the property is comprised
of legal lots of record created through deed or partition.
L. Procedural History: On August 6, 2008, the Hearings Officer issued a decision
denying the subject application. Section 22.28.030(C) requires: "[Z]one changes . . .
concerning lands designated for forest ... use shall be heard de novo before the Board
ZC-08-1/PA-08-1 — BOCC Decision
Document No. 2009-168
Page 8 of 38
of County Commissioners without the necessity of filing an appeal, regardless of the
determination of the Hearings Officer[.]" Pursuant to that section, the Board held a de
novo public hearing on the subject application on December 3, 2008. The hearing was
continued to December 17, 2008 and again to December 29, 2008.
The entire record of the proceeding to date was placed before the Board at the public
hearing, and the Board closed the record at the conclusion of the December 29, 2008
hearing. At this hearing, the Board deliberated and voted to approve the subject
application and to adopt the Hearings Officer's findings and conclusions, as revised and
supplemented herein.
III. CONCLUSIONS OF LAW:
PLAN AMENDMENTS
The applicant requests the following: (1) approval of a plan map amendment from Surface
Mining and Agriculture to Rural Residential Exception Area, and (2) removal of Surface Mining
Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites.
The county plan and development code do not set out a process for quasi-judicial amendments
to the plan map and text. Rather; the county relies on consistency with the Statewide Land Use
Goals and ORS 197.610 through 197.625 (post -acknowledgement plan amendment
procedures) to provide both the process and the substantive review criteria. Those criteria are
addressed in Section C.
While there are no substantive approval criteria in the plan, it is useful to review the plan
designation history of the subject property, and address the parties' arguments regarding plan
policies at the onset.
1. Plan Designation History. In the late 1980s the county undertook a lengthy process to
inventory its mineral and aggregate resources, to develop a plan to preserve and protect those
resources, and to amend the county's comprehensive plan and zoning ordinance to adopt the
inventory and measures to protect sites. These plans were adopted through several ordinances
and included listing Site 461 on the inventory of significant sites, adoption of a site-specific
ESEE (Economic, Social, Environmental and Energy) analysis for Site 461, and adoption of
ordinances designating the subject property for surface mining, on October 24, 1989.
2. Current Plan Designation. The subject property is currently designated SM and AG (Tax lot
14-12 1600 only).
3. Applicable Comprehensive Plan Provisions. The following plan policies are relevant to the
proposed plan amendment from Surface Mining and Agriculture to Rural Residential Exception
Area.
A. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive
Plan
1. Chapter 23.24, Rural Development
Section 23.24.020, Goals.
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Document No. 2009-168
Page 9 of 38
A. To preserve and enhance the open spaces, rural character, scenic
values and natural resources of the County.
FINDINGS: The subject property is a former mine site which is exempt from most reclamation or
other regulatory requirements requiring any revegetation. As a result, it has little vegetation and
approximately 350 acres of the site consists of exposed diatomite which can create dust during
large wind events. The proposed plan amendments by themselves will not alter open spaces,
scenic values, or spoil rural character, but instead will create an opportunity to redevelop and
mitigate existing adverse conditions of the site following historical mining and industrial
operations. The present condition of the site adversely affects the scenic value of the area with
rusting structures and extensive unrevegetated mined areas. Any future development, not
included in this application, would be required to conform to development standards for Rural
Residential (RR -10) zoned lands, that are designed to preserve and enhance the open spaces,
rural character, and scenic values of the County. Moreover, future development of any
structures in the LM zone will be subject to individual site plan review to ensure the protection of
the scenic values associated with the Deschutes River.
Some neighbors commented that the proposal is inconsistent with this policy because a future
planned development proposal could cluster dwellings along the top of the riverbank. The
neighbors asserted that clustered residential development is inconsistent with the local
residential development pattern, and therefore a more appropriate zoning designation is EFU-
20. The Board agrees with the Hearings Officer on this issue and finds that the unrefuted
evidence shows that the site does not contain agricultural soils. The proposed RR -10 zoning
designation would maintain the residential density that occurs within the area, and if a planned
unit development is proposed, the layout of the lots can be arranged to minimize their visual
impacts on neighboring property owners.
The removal of Site 461 from the County's surface mining inventory would preclude access to
diatomaceous earth and aggregate materials on the site. The applicant has argued that there is
insufficient remaining aggregate to economically extract, and there is little need for diatomite in
modern industrial manufacturing. Neighbors dispute this finding, arguing that there are viable
industrial uses for diatomite, and that the applicant's present desire to convert the land to
residential use does not alter the significance of the site for diatomite production. These issues
are discussed in greater depth below.
B. To guide the location and design of rural development so as to
minimize the public costs of facilities and services, to avoid
unnecessary expansion of service boundaries, and to preserve and
enhance the safety and viability of rural land uses.
FINDINGS: The applicant argues that the proposal is consistent with this goal because a future
developer, and not the public, will bear costs of extending facilities to the property. Opponents
disagree that the extension of public services is the only consideration under this goal, arguing
that it also requires a showing that the proposed rural residential uses "preserve and enhance
the safety and viability of rural land uses." Opponents argue that unless reclamation and
remediation measures are included in this approval, neither the neighbors nor the future
residents of the site can be assured that the site is safe for development or that development on
their properties will remain viable.
Public Facility/Service Availability and Capacity
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Document No. 2009-168
Page 10 of 38
This goal requires the county to thoughtfully consider development locations to minimize urban
sprawl and to ensure that public facilities and infrastructure are adequate to accommodate
anticipated development. This includes consideration of service availability and capacity. Low
density residential development allowed in the RR -10 zone does not require urban services
such as sewer and water, as those needs can be served by on-site systems. Service
boundaries will not be expanded. Public services, such as police and fire, already serve the
area. With respect to these facilities and services, the proposed redesignation will have little to
no effect.
The site borders on Lower Bridge Way, a publicly maintained county road. The applicant's traffic
study concludes the intersection of Lower Bridge Way/U.S. 97 will not meet either the
performance standards of Deschutes County or ODOT with or without this development. There
is an ODOT project going to bid this Spring to reconfigure the Lower Bridge Way/Highway 97
intersections. This improvement will increase safety but not necessarily capacity at this
intersection. Based on the evidence submitted by the applicant, including the traffic studies and
the evidence of historical use as discussed further herein and incorporated by references, the
Board finds that the traffic likely to be generated by development uses allowed under the current
zoning is equal to or greater than the traffic likely to be generated under the proposed
residential zoning. Therefore, the proposal should have no significant impact on the
transportation facilities. See the discussion below for DCC 23.60.610. The Board further finds
that Code criteria in the subdivision and conditional use chapters will allow the imposition of
conditions requiring transportation facility improvements prior to or contemporaneous with
subdivision or cluster development approval. Both the subdivision and conditional use
processes require notice and an opportunity for full public participation.
"To Preserve and Enhance the Safety and Viability of Rural Land Uses"
As noted above, opponents argue that before this site is rezoned for rural residential uses, the
applicant must demonstrate that it is safe for those residential uses, and that the safety of other
local uses, including residential and agricultural uses are preserved and/or enhanced. The
neighbors expressed concerns that hazardous wastes from mining activities since 1985 have
not been adequately addressed, and that the 1984-85 remediation and removal of hazardous
and radioactive wastes were inadequate. Further, the neighbors argue that the applicant has
not yet demonstrated that there is sufficient water to accommodate the proposed site
reclamation and provide domestic water for the number of dwelling units that could be
developed on the property. In addition, the neighbors argue that there is no evidence that the
applicant will take steps to address water contamination from the remaining mining materials.
Finally, the neighbors insist that this site will not be safe for residential use or preserve the
viability of existing rural residential uses in the area until the diatomite is fully contained.
Given the environmental history of the site, the Board finds that the rezoning the property for
residential use, prior to establishing that the site is safe for residential use, will not preserve and
enhance the safety and viability of rural land uses. However, in previous County decisions, it
has been held that, absent a comprehensive plan amendment, comprehensive plan goals and
policies do not constitute mandatory approval criteria for quasi-judicial zone changes, but rather
are implemented through the zoning ordinance, and therefore if the proposed zone change is
consistent with the applicable provisions of the zoning ordinance, it also will be consistent with
the plan. While not required under this Comprehensive Plan Goal, findings and relevant
conditions of approval intended to establish that the site is safe for residential use prior to
development are set forth under DCC 18.136.020, as discussed below.
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The Board agrees with the Hearings Officer that the proposed map designation is consistent
with other rural residential zoning in the area. In addition, if the mineral and aggregate resources
are no longer needed/available, the site cannot be put to resource use. It includes few
agricultural and no forest soils, and there is no dispute that the former mine site is not suitable
for farm or forest activities. In addition, permitting rural residential development on the property
will certainly be more compatible with neighboring residential uses than mining. Particular
development concerns, including water quality and quantity, and dust suppression can be
addressed in conjunction with a particular development plan for the site.
Based on the above, the Board finds that the proposal, as conditioned under DCC 18.136.020,
is consistent with this goal.
C. To provide for the possible Tong -term expansion of urban areas
while protecting the distinction between urban (urbanizing) land and
rural lands.
FINDINGS: The unincorporated community of Terrebonne is located approximately seven
miles southeast of the site. The proposed zone change and plan amendment would not
preclude the possible Tong -term expansion of the community boundaries, although such
expansion to the subject property is not foreseeable at this time. Any future development, not
included in that application, would be required to conform to development standards for Rural
Residential (RR -10) zoned lands, that are designed to protect the distinction between urban
(urbanizing) land and rural lands.
Section, 23.24.030, Policies.
Residential/recreational development.
1. Because 91 percent of the new County population will live inside an urban
area, with only 3,039 new rural lots required, and in light of the 17,377
undeveloped rural tracts and lots as well as the energy, environmental and
public service costs, all future rural development will be stringently
reviewed for public need before approval. As a guideline for review if a
study of existing lots within three miles of the proposed development
indicates approximately 50 per cent or more of those lots have not had
structures constructed thereon, then the developer shall submit adequate
testimony justifying additional lots in that area. This will permit
development in areas where such is needed (other policies considering
energy, public facilities, safety and other development aspects shall also
be considered) while restricting future division in areas where many
undeveloped lots already exist.
FINDINGS: The Hearings Officer found that it was not entirely clear whether this policy pertains
to a proposal to rezone property from SM to RR -10, as a rezoning is not "development" per se,
and development of this site will require further review. The evidence in the record
demonstrates the proposal is consistent with this policy based on staffs analysis of existing lots
within three miles of the subject property. That analysis, set forth below, shows approximately
58 percent of those Tots have been developed with structures:
Zone
Parcels
Parcels with at least
one structure
EFUTE
92
33
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EFUSC
16
3
EFULB
113
54
MUA10
388
292
RR10
75
23
SM
9
0
Total
693
405
58%
The Board finds the proposal is consistent with this policy, and therefore the applicant does not
need to submit additional justification.for the requested zone change.
2. Chapter 23.60, Transportation
a. Section 23.60.010, Transportation
* * * The purpose of DCC 23.60 is to develop a transportation system
that meets the needs of Deschutes County residents while also
considering regional and state needs at the same time. This plan
addresses a balanced transportation system that includes
automobile, bicycle, rail, transit, air, pedestrian and pipelines. It
reflects existing land use plans, policies and regulations that affect
the transportation system.
FINDINGS: This goal is implemented through the provisions of DCC 17.16.115(1)(1) and (2),
and the TPR. As noted below, the proposal is consistent with both the county development
code and the TPR because the re -designation will not significantly affect a transportation facility.
3. Chapter 23.68, Public Facilities
a. Section 23.68.020, Policies
1. Public facilities and services shall be provided at levels and
in areas appropriate for such uses based upon the carrying
capacity of the land, air and water, as well as the important
distinction that must be made between urban and rural
services. In this way public services may guide development
while remaining in concert with the public's needs.
3. Future development shall depend on the availability of
adequate local services in close proximity to the proposed
site. Higher densities may permit the construction of more
adequate services than might otherwise be true. Cluster and
planned development shall be encouraged.
9. New development shall not be located so as to overload
existing or planned facilities, and developers or purchasers
should be made aware of potentially inadequate power
facilities in rural areas.
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FINDINGS: These policies address public facilities and services that may be needed to serve
residential uses on the site.3 With the exception of the local road system, future development is
unlikely to overload existing or planned public facilities. Concerns regarding transportation
facilities are discussed below. The existing rural residential development in the area indicates
that public facilities and services are available. Future development of the property can be
served by private wells and septic systems. Utility lines and facilities can be located so as not
divide any existing farm units.
4. Chapter 23.88, Agricultural Lands
Section 23.88.020, Goal.
To preserve and maintain agricultural land.
FINDINGS: As noted above, this proposal would result in the conversion of approximately 39
acres of "high value if irrigated" farmland to rural residential use.4 However, the subject property
does not have potential for long term irrigation. Impacts imposed on agricultural uses by
adjacent residential uses typically include vandalism, trespassing, disturbance to livestock, and
dust. However, development of the project is likely to result in better dust suppression, to the
benefit of nearby agricultural operations. Overall, the Board concludes that the proposal is
consistent with these policies because it absorbs some of the pressure to develop on
agricultural lands.
a. Section 23.88.030, Zoning Policies.
1. All lands meeting the definition of agricultural lands shall be
zoned Exclusive Farm use, unless an exception to State goal 3
is obtained so that the zoning may be Multiple Use Agriculture
or Rural Residential.
2. Lands not meeting the agricultural lands definition but having
potential for irrigation according to the Bureau of Reclamation
Special Report - Deschutes Project, Central Division, Oregon,
although presently without water, shall receive exclusive farm
use zoning.
FINDING: As explained at length below, the subject property, as a whole, is not "agricultural
land." The property does not have potential for Tong -term irrigation according to the Bureau of
Reclamation Special Report - Deschutes Project, Central Division, Oregon.
A. OAR 660, Division 33, Agricultural Land.
660-033-0020
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service
(NRCS) as predominantly Class I-IV soils in Western Oregon and I -VI soils
in Eastern Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in
ORS 215.203(2)(a), taking into consideration soil fertility; suitability for
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grazing; climatic conditions; existing and future availability of water for
farm irrigation purposes; existing land use patterns; technological and
energy inputs required; and accepted farming practices; and
(C) Land that is necessary to permit farm practices to be undertaken on
adjacent or nearby agricultural lands.
(D) Land in capability classes other than I-IV/I-VI that is adjacent to or
intermingled with lands in capability classes I-IV/I-VI within a farm unit,
shall be inventoried as agricultural lands even though this land may not be
cropped or grazed;
FINDINGS: The threshold inquiry for determining whether land is "agricultural" is whether the
soils are predominately class I -VI. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951,
955, 618 P2d 986 (1980); Flury v. Land Use Bd. of Appeals, 50 Or App 263, 267 (1981). The
evidence demonstrates that the subject property does not qualify as either high value
agricultural or forest land. Soil studies conducted by Wert & Associates confirm that
approximately 20% of soils are class VI; in fact only 5% of those are considered high value with
irrigation. Staff reaches a similar conclusion, estimating that approximately 21% of soils are
class VI, and only 7% of those are considered high value with irrigation. The record
demonstrates the subject property is not irrigated and is not necessary to permit farm practices
on adjacent agricultural lands, and the soils are not intermingled with agricultural soils within a
farm unit. The Forage Report concludes that the property "is not suited for profitable, accepted
agricultural use." Because a vast majority of the property contains class VII & VIII soils, and the
poorer soils are not intermixed with higher class soils within an existing farm unit, it falls outside
of the default category of "agricultural lands" set out in Goal 3 and OAR Chapter 660, division
33.
The Hearings Officer noted that the site was originally designated for Surface Mining in the
county's comprehensive plan and zoned Surface Mining Reserve. The site was rezoned SM in
the 1985. The Board agrees with the Hearings Officer that the evidence in the record shows that
the only "resource" designation on this site is for mining, a Goal 5 use, and not farm or forest,
Goal 3 and 4 uses, respectively.
For these reasons, the Board agrees with the Hearings Officer and finds that subject property
does not constitute "agricultural land" as defined in Goal 3, is not subject to protection under
Goal 3, and therefore the proposed plan amendment and zone change do not require an
exception to Goal 3.
B. OAR 660, Division 6, Goal 4 Forest Land.
Goal 4 defines "forest land" as follows:
Forest lands are those lands acknowledged as forest lands as of the date
of adoption of this goal amendment. Where a plan is not acknowledged or
a plan amendment involving forest lands is proposed, forest land shall
include lands which are suitable for commercial forest uses including
adjacent or nearby lands which are necessary to permit forest operations
or practices and other forested lands that maintain soil, air, water and fish
and wildlife resources.
FINDINGS: The subject property is not and never has been zoned for forest use. The detailed
soil study prepared by Steve Wert included an analysis of the subject property's soils for
production of merchantable tree species, and shows the soil units identified on the subject
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property are not listed in the NRCS' Woodland Productivity soils table, and therefore are not
considered suitable for the production of wood crops by the NRCS. Finally, the record indicates
the predominant tree species on the property are juniper trees which historically have not had
commercial value and have not been harvested commercially either on the subject property or
on nearby lands. Accordingly, OAR Chapter 660, division 6 does not apply.
5. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental
Quality
a. 23.96.020, Goals.
1. To conserve open spaces and areas of historic, natural or
scenic resources.
FINDINGS: The site abuts the Deschutes River, a designated federal Wild and Scenic River
and Oregon Scenic River. The river and property abutting it are subject to the Landscape
Management Combining Zone and that designation will not change with the proposed
designation to Rural Residential Exception Area. To the extent that rural residential
development may affect open spaces and areas of historic, natural or scenic resources, the
Board finds that the proposed designation will better preserve those resources than the existing
mining designation. For instance, much of the mined area on the site is exempt from
reclamation. Unless the site is put to some other use, the existing conditions will remain.
In addition, the density standards for the proposed RR -10 zoning will ensure that development
on the site will be low density and will preserve significant areas of open space on the property,
particularly if the site is developed with a PUD.
Therefore, the Board concludes that the proposal is consistent with this policy.
2. To maintain and improve the quality of the air, water and land
resources of Deschutes County.
FINDINGS: As noted above, the majority of the site, primarily west of Lower Bridge Way, has a
long history of industrial use, and some of those uses have resulted in significant environmental
impacts. Those impacts include dust from the diatomite, hazardous and radioactive waste
disposal and remediation, and violations of environmental quality regulations. Neighbors
expressed concerns regarding the impact of the proposal on water quantity and quality, arguing
that the water needed to reclaim the site will adversely affect the area's water supply. Those
issues are addressed as follows:
Diatomite dust. According to the applicant, the exposed diatomite on the western portion of the
property is from fresh -water diatoms. The applicant supplied testimony and evidence that shows
that fresh -water diatomite contains a smaller percentage of crystalline silica, the type of silica
that has been identified as a health hazard if inhaled in quantity. The applicant argues that this
type of diatomite poses no more risk than other dust in the area. The applicant also argues that
before this site is redeveloped for residential uses, the diatomite will be graded and seeded to
prevent dust from blowing from the site to neighboring properties. The neighbors expressed
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Document No. 2009-168
reservations about this assertion, arguing that the cost and feasibility of that type of reclamation
is unlikely to be recouped as part of development on this site.5
The evidence shows that blowing dust has been an issue for many years, although recent
grading activities exacerbated the situation. The recent activities led the Department of
Environmental Quality (DEQ) to issue a notice of violation. In response to the notice, the
owners obtained a temporary water permit, purchased mitigation credits, installed a pivot and
began using an existing well to water a portion of the site to minimize dust. The applicant is also
proposing to implement best management practices to ensure that blowing dust during
development is minimized. These measures are adequate to assure that local air quality is
maintained.
Water quality/quantity. According to the evidence in the record, seven wells have been drilled
on the site. These wells are proposed to be used for dust suppression, and may be converted to
domestic wells in the future. The applicant proposes to develop individual, shared or group
wells (serving up to three lots) as part of its residential development. The residents may use up
to 15,000 gallons per day for domestic and yard irrigation (up to one-half acre) and remain
exempt from water rights regulation. Similarly, wells developed to serve three or fewer
dwellings are exempt from water quality standards. Neighbors expressed concerns regarding
potential water contamination from past industrial uses, and also argue that the introduction of
17 or more new wells (assuming 72 dwelling units, and at least one well per three dwelling units
minus the seven existing wells) could significantly affect their water quality and quantity.
The Board agrees with the Hearings Officer and finds that this goal does not directly address
the availability (or quantity) of domestic water supplies. Rather, it is intended to assure that
quality of air, water and land resources is maintained and improved. Here, the evidence
(including evidence from testing of nearby community water wells) shows that existing water
quality in the area is adequate, and that past activities on the site have not affected nearby well
water quality. With respect to water quality at the site, the Board finds that the question can be
better addressed at the time a development proposal is submitted for the site. At this point, the
evidence shows that the proposed plan amendment/zone change will not have any effect on
water quality.
Erosion/Fill. One of the neighbors expressed concerns regarding slope stability at the site,
asserting that new grading may undermine the slope along the edges of the river bank. Other
neighbors expressed concerns that the fill used for residential foundations be adequate for the
purpose, noting that a school in Deschutes County is sinking, in part because the fill used by the
contractor was not stable enough to accommodate the building. The evidence shows that
diatomite mining occurred closer to the center of the site, and that the aggregate mining has
ceased. There is no evidence that past mining has undermined slope stability along the river
edge. The applicant has proposed to grade some of the taller diatomite mounds to reduce the
5 The opponents argue that the diatomite has been converted to crystalline silica during through an on-
site manufacturing process. They cited evidence showing that crystalline silica is hazardous to worker
health, and argued that until the diatomite at the site has been removed or covered with top soil, there is
no guarantee that existing or future residents' health will not be affected. They further argue that
diatomite doesn't grow much, and unless the applicant plans to import a significant amount of topsoil, it is
unlikely that the reseeding efforts will be successful. While the former evidence tends to support a finding
that processing of diatomite at the site needs to be regulated, the evidence of the health effects of
freshwater diatomite on neighboring property owners is not sufficient to undermine the applicant's
evidence that such effects are limited, and consistent with the effects of blowing dust in general.
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Document No. 2009-168
areas susceptible to blowing dust. As for future development, land division and development
standards impose setbacks from the edge of the bank. Deschutes County does not require
grading permits and does not presently regulate fill to determine if it is suitable for residential
use. As a condition of approval, if fill is brought onto the site, the applicant will be required
identify the general location of the fill, and if the site is used for development, the applicant shall
either certify that the fill is suitable for development, or specifically declaim any knowledge of its
suitability. The Board concludes that these measures are adequate to assure that development
on the site will not adversely affect air, water or land quality.
Dumping/Environmental Issues. A portion of the site west of Lower Bridge Way was an
approved waste facility in the mid-1970s, and consequently, sludge, radioactive materials as
well as standard solid waste was brought to the site during that time. According to the applicant,
the dumping grounds were limited to the central portion of the site, near the former lagoons, and
included 55 -gallon drums filled primarily with caustic sand. The site was subject to a DEQ -
mandated clean up, which was completed by January 1985. The evidence shows that all of the
materials located at the site prior to 1985 were removed to approved hazardous waste disposal
sites, including Arlington and the Hanford Reservation. According to Maul Foster and Alongi,
Inc., the applicant's environmental consultant, the standards used to evaluate the clean-up was
based on one of two standards "clean up to the maximum extent practical" or "clean up to
background conditions." Maul Foster and Alongi, Inc. representatives testified that these
standards are higher than the current risk-based standards, which permit less comprehensive
clean up where the site will be used for industrial purposes than is required for sites that will be
redeveloped for residential uses.6 With respect to spills or activities that have occurred since
that time, including disposal of mining solvents and industrial burning, the evidence shows that
the violations have been addressed by meeting industrial use standards. The Board has
included conditions, as discussed more fully herein, to ensure the property is clean enough to
meet residential use standards.
Based on these findings, the Board finds that residential development of the property will not
significantly impair air, water or land quality in the area.
a. Section 23.96.030, Policies
10. As part of subdivision or other development review, the
County shall consider the impact of the proposal on the air,
water, scenic and natural resources of the County. Specific
criteria for such review should be developed. Compatibility of
the development with those resources shall be required as
deemed appropriate at the time given the importance of those
6 The Hearings Officer found that a question remains as to whether the 1985 standards (based on 1985
technology) are equivalent to the clean-up standards that would be imposed if the site were subject to
current standards for residential re -development. Evidence placed in the record since that time
establishes that different regulatory standards exist for residential use. The Hearings Officer found that
this goal requires a demonstration that the site meets applicable DEQ clean-up standards, which in this
case, are the 1985 standards. The Hearings Officer then concluded that the applicant had met its burden
of demonstrating that those standards have been satisfied, therefore, the proposed plan amendment and
zone change are consistent with these standards. The Board agrees with and adopts these findings.
The Board further imposes conditions to require the applicant to submit a DEQ release for residential use.
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resources to the County while considering the public need for
the proposed development.
FINDINGS: This plan policy is not applicable to the proposed plan amendment because the
applicant is not seeking subdivision approval or development review. If the plan amendment and
zone change are approved, then future development will need to satisfy this standard.
6. Chapter 23.108. Historic And Cultural
a. 23.108.020, Goals.
1. To preserve and protect historic and cultural resources of
Deschutes County.
a. 23.108.040, Goal 5 Inventory - Historic Resources.
21. Lynch and Roberts Store Advertisement: Ad advertising sign
painted on a soft volcanic ash surface. Only area example of
early advertising on natural material. Lynch and Roberts
established mercantile in Redmond in 1913. Roberts Field
near Redmond was named for J. R. Roberts. Site includes
the bluff. 14-12-00 TL 1501.
FINDINGS: The Lynch and Roberts Store Advertisement sign is painted on a large boulder
located on the subject property. As this zone change, in itself, does not authorize any
development of the property, no adverse impacts to historical resources on the subject property
are anticipated. The applicant has proposed several measures to protect this historic resource.
The applicant has proposed to not develop any area within a 100 yard radius of the historic sign
and has proposed to post markers to denote the historic significance of the sign and to prevent
trespass, prior to development of the site. The applicant has also proposed that any Covenants,
Conditions and Restrictions (CC&Rs) created as a part of a residential development of the
subject property will contain obligations to protect the area within a 100 yard radius of the
historic sign from development and trespass and to maintain the historic markers. The Board
finds that the proposed measures will be sufficient to meet the goal of protecting this historic
resource. These measures to protect the Lynch and Roberts Store Advertisement sign have
been included as conditions of approval.
B. Oregon Administrative Rules
1. OAR 660, Division 12, Transportation Planning Rule
(1) Where an amendment to a functional plan, an acknowledged
comprehensive plan, or a land use regulation would significantly affect an
existing or planned transportation facility, the local government shall put in
place measures as provided in section (2) of this rule to assure that
allowed land uses are consistent with the identified function, capacity, and
performance standards (e.g. level of service, volume to capacity ratio, etc.)
of the facility. A plan or land use regulation amendment significantly
affects a transportation facility if it would:
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Document No. 2009-168
(a) Change the functional classification of an existing or planned
transportation facility (exclusive of correction of map errors in an
adopted plan);
(b) Change standards implementing a functional classification system;
or
(c) As measured at the end of the planning period identified in the
adopted transportation system plan:
(A) Allow land uses or levels of development that would result in
types or levels of travel or access that are inconsistent with
the functional classification of an existing or planned
transportation facility;
(B) Reduce the performance of an existing or planned
transportation facility below the minimum acceptable
performance standard identified in the TSP or comprehensive
plan; or
(C) Worsen the performance of an existing or planned
transportation facility that is otherwise projected to perform
below the minimum acceptable performance standard
identified in the TSP or comprehensive plan.
(2) Where a local government determines that there would be a significant
effect, compliance with section (1) shall be accomplished through one or a
combination of the following:
(a) Adopting measures that demonstrate allowed land uses are
consistent with the planned function, capacity, and performance
standards of the transportation facility.
(b) Amending the TSP or comprehensive plan to provide transportation
facilities, improvements or services adequate to support the
proposed land uses consistent with the requirements of this
division; such amendments shall include a funding plan or
mechanism consistent with section (4) or include an amendment to
the transportation finance plan so that the facility, improvement, or
service will be provided by the end of the planning period.
(c) Altering land use designations, densities, or design requirements to
reduce demand for automobile travel and meet travel needs through
other modes.
(d) Amending the TSP to modify the planned function, capacity or
performance standards of the transportation facility.
(e) Providing other measures as a condition of development or through
a development agreement or similar funding method, including
transportation system management measures, demand
management or minor transportation improvements. Local
governments shall as part of the amendment specify when
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Document No. 2009-168
(3)
FINDINGS:
measures or improvements provided pursuant to this subsection
will be provided.
Notwithstanding sections (1) and (2) of this rule, a local government may
approve an amendment that would significantly affect an existing
transportation facility without assuring that the allowed land uses are
consistent with the function, capacity and performance standards of the
facility where:
(a) The facility is already performing below the minimum acceptable
performance standard identified in the TSP or comprehensive plan
on the date the amendment application is submitted;
b) In the absence of the amendment, planned transportation facilities,
improvements and services as set forth in section (4) of this rule
would not be adequate to achieve consistency with the identified
function, capacity or performance standard for that facility by the
end of the planning period identified in the adopted TSP;
(c) Development resulting from the amendment will, at a minimum,
mitigate the impacts of the amendment in a manner that avoids
further degradation to the performance of the facility by the time of
the development through one or a combination of transportation
improvements or measures;
(d) The amendment does not involve property located in an interchange
area as defined in paragraph (4)(d)(C); and
(e) For affected state highways, ODOT provides a written statement that
the proposed funding and timing for the identified mitigation
improvements or measures are, at a minimum, sufficient to avoid
further degradation to the performance of the affected state
highway. However, if a local government provides the appropriate
ODOT regional office with written notice of a proposed amendment
in a manner that provides ODOT reasonable opportunity to submit a
written statement into the record of the local government
proceeding, and ODOT does not provide a written statement, then
the local government may proceed with applying subsections (a)
through (d) of this section.
The Transportation Planning Rule ("TPR") applies to these applications because they involve an
amendment to an acknowledged plan. The proposed plan amendment would change the
designation of the subject property from SM and EFU-LB to RREA, and the applicant has
requested approval of a zone change from SM and EFU to RR -10 for the subject property.
The TPR, OAR 660-012-0060, is triggered when uses allowed under a plan amendment/zone
change would "significantly affect" a transportation facility by generating more traffic than what
would be generated by those uses allowed under the current zoning. To properly compare the
trips, the trips generated by the most traffic intensive uses in the existing zone must be
compared to the trips generated by the most traffic intensive uses under the proposed zoning.
Mason v. City of Corvallis, 49 Or LUBA 199 (2005); Griffiths v. City of Corvallis, 50 Or LUBA 588
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Document No. 2009-168
(2005). Where the most traffic intensive uses allowed under the proposed zoning would
generate an equal or lesser amount of trips than those allowed under the existing zoning, the
proposed amendment would not significantly affect a transportation facility. Mason, 49 Or
LUBA at 222; Griffiths, 50 Or LUBA at 593. In other words, the initial question under the TPR is
whether the amendment causes a net increase in trips by comparing uses allowed under the
existing zoning to those allowed under the proposed zoning. If the answer to that questions is
no, as here, the amendment does not "significantly affect" a transportation facility. Griffiths, at
593.
The applicant's December 2007 traffic study finds the intersection of Lower Bridge Way/U.S. 97
will not meet either the performance standards of Deschutes County or ODOT with or without
this development. The County sets a standard of Level of Service (LOS) D for existing roads
while the applicable ODOT volume/capacity (V/C) ratio is 0.70 for the highway and 0.80 for the
side street based on functional classification and posted speed. An ODOT project planned for
Spring 2009 will reconfigure the Lower Bridge Way/97 and 11th Street/97 intersections. This
project will improve the operations and safety at these intersections, but it will not address the
capacity issue, as the project focuses more on storage issues on the side streets.
Staff, ODOT, and the applicant worked together to identify rural surface mining sites that are
comparable to the applicant's 550 -acre roughly six miles west of Terrebonne. The resulting
comparable surface mines included one west of Sisters and two on the O'Neil Highway near the
Deschutes/Crook County line. In particular, the O'Neil Highway sites (Hooker Creek and Lone
Pine) were the closest equivalent sites to the applicant's in terms of both geography and relative
proximity to nearby urban markets. A review of the Dec. 19, 2007, April 22, 2008, and May 20,
2008, traffic analyses indicated these comparable sites were analyzed in one or more of the
applicant's traffic studies.
The traffic analysis of the three sample sites demonstrated surface mines generate p.m. peak
hour trips at a range of 0.041 to 0.16 trips per acre. Applying those trip generation values to the
land presently zoned SM could generate 23 to 88 trips in the p.m. peak. Applying the trip
generation rates for the O'Neil Highway surface mines, which again are the best comparable
sites, to the Terrebonne site results in 72 to 88 p.m. peak hour trips.
Under the proposed zoned change to RR -10, the applicant could construct 55 single-family
homes on the 550 acres. This would result in 55 p.m. peak trips on the system, according their
Dec. 19, 2007, traffic impact analysis. Therefore, as the existing SM zone can generate 72 to
88 p.m. peak hour trips whereas the RR -10 zone could generate 55 p.m. peak hour trips, the
proposed zone would generate fewer trips than the existing zoning.
To further substantiate the finding of equivalent or greater trips under the SM zoning, the
applicant submitted testimony and evidence documenting the historic levels of activity at the
site. Historically, it was used for a wide variety of uses allowed under the SM zone including
aggregate and diatomite mining and processing, an asphalt plant, a rock crushing operation, a
staging area for road construction, and a hazardous waste materials facility. See, Exhibits PH -1
and PH -2. In fact, previous operators at the site estimated there were as many as 22 trucks per
hour hauling sand and gravel during the period from 2004 to 2007 and as many as 150 trucks
per day during the period of 1978 through 1988 when the site was used as a batch plant and
crushing operation. Records also show the site employed over 100 workers in shifts of 35
employees each during the diatomite mining. See Exhibit PH -2.
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Furthermore, the current owners of the site hold the mineral rights to mine the adjacent surface
mining (SM site no. 322) property to the east (Exhibit PH -3). Thus, the evidence in the record
shows that the subject property could be used as staging and processing area for material
mined from the adjacent property and other sites in the area. The applicant also submitted the
deed records showing the owners of the subject property hold mineral rights to adjacent
properties.
Given the historic level of use at the site, the remaining diatomite resource, the proximity of the
site to a state highway with upcoming construction projects and its central location between two
rapidly growing communities, the Board finds that the site would generate at least the same or
more trips under the surface mining zoning as it would under the proposed residential zoning.
This is especially true if the present owners are left with environmental clean up costs/
responsibilities and mining or mining related uses as the only economically viable uses of the
property. Therefore, the Board finds the proposal will not significantly affect a transportation
facility, and is, therefore, consistent with the TPR as defined by OAR 660-012-0060.
2. OAR 660, Division 15, Statewide Planning Goals and Guidelines
FINDINGS:
Goal 1, Citizen Involvement. The proposed plan amendment satisfies this goal because the
Planning Division provided public notice of the applicant's proposal through individual mailed
notice to affected property owners, posting of the subject property with a notice of proposed
land use action sign, and published notice of the public hearing in the "Bend Bulletin"
newspaper. In addition, four public hearings were held, one before the Hearings Officer and
three before the Board. There was extensive public participation in this process, including oral
and written testimony and evidence.
Goal 2, Land Use Planning. The proposal has been reviewed in accordance with the county's
acknowledged planning review processes, and was the subject of four public hearings. Further,
no Goal 2 exceptions are required. The proposal is consistent with this goal.
Goal 3, Agricultural Lands. The property contains few agricultural soils and has not been
cultivated for crops or livestock. The site is not "agricultural" within the meaning of Goal 3.
Goal 4, Forest Lands. This goal is not applicable because the subject property is not zoned or
designated for forest use.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. According to the
applicant, the site no longer contains aggregate in sufficient quantities to qualify as a "significant
site" under Goal 5 and OAR Chapter 660, division 23. The evidence shows that the majority of
the aggregate resource is located on the southeastern portion of the site, south of Lower Bridge
Way. The site has been closed in accordance with DOGAMI regulations, and the evidence
shows that little of the resource remains. While the parties apparently agree that vast quantities
of diatomite remain, they dispute whether the materials will be needed for industrial or
construction uses in the near future, and whether other locations are available to supply long
term future needs. The Board agrees with the Hearings Officer and finds that because the
market for diatomite is a global market and the supply of the mineral is available on a global
scale, there is no evidence that there is a local market for diatomite that could be
accommodated by retaining this site in Surface Mining zoning. The Board further finds that
removal of this site from the County's Goal 5 inventory is justified because the unrefuted
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Document No. 2009-168
evidence in the record shows that there is not a significant quantity of aggregate resource,
which is the resource for which the site was listed on the Goal 5 inventory.
In response to comments that the proposal will only be consistent with Goal 5 if the ESEE
analysis for Site 461 is amended to address the relative merits of allowing or not allowing mining
on the site based on current conditions, the Board finds that such a revised analysis is not
necessary if the purpose of the amendment is to remove a resource from the protection afforded
by the inventory designation. The applicant has requested that the site be removed from the
inventory, and there is little or no benefit to retain it. Therefore, further analysis is unnecessary.
Goal 6, Air, Water and Land Resources Quality. While a number of environmental quality
concerns have been identified, the Board finds that those concerns are addressed through
environmental quality and health administrative rules. The conditions imposed herein will
require the environmental agencies to ensure the property is clean enough to meet applicable
regulations for residential use standards prior to development. Likewise, residential
development on the site will not be permitted unless the applicant demonstrates that adequate
area is available for on-site sewage disposal.
Opponents argue Goal 6 requires the site to be cleaned up before a residential zoning or use
can be approved. The Board disagrees. Goal 6 requires findings that waste and process
discharges from a proposed use will be able to comply with applicable state and federal
environmental quality standards. It is limited by its terms to wastes and discharges from future
development. The evidence in the record establishes the proposed use as a maximum of 74
single family residences served by individual wells and on-site septic systems. The applicant
submitted evidence showing there is a sufficient quantity and quality of water available to serve
the development without measurable impact to adjacent properties, the groundwater aquifer or
the Deschutes River. Any future residential development will have to receive approval from
Deschutes County Environmental Health for the establishment of septic systems to serve the
proposed residences. Any subdivision or land division would have to show the lot lines are
configured in a way to support an area for an on-site septic system. There is no evidence to
suggest that waste or other discharges from the proposed residential use would not meet any
applicable state or federal environmental quality standards.
Goal 7, Areas Subject to Natural Disasters and Hazards. The subject property contains
areas subject to flooding along the Deschutes River, as shown on FIRM panel 41017C0300E.
This proposal does not include any development in floodplain areas. Any future development in
these areas would be required to comply with the provisions of DCC 18.96, which has been
reviewed and approved by FEMA.
Goal 8, Recreational Needs. The proposed plan amendment and zone change do not reduce
or eliminate any opportunities for recreational facilities either on the subject property or in the
impact area, and to the extent the development of residential uses on the property will generate
a need for recreational opportunities, the Board finds that those needs can be served on-site or
by existing recreational areas/services.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the
state for a variety of economic activities. This goal is met because the subject property no
longer constitutes a significant mineral and aggregate resource, and therefore allowing it to be
re -designated and rezoned for rural residential development will not have adverse economic
impacts.
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Document No. 2009-168
Goal 10, Housing. Goal 10 defines needed housing as being housing within urban growth
boundaries. This property is outside the urban growth boundary, and therefore Goal 10 is not
applicable.
Goal 11, Public Facilities and Services. This Goal requires planning for public services,
including public services in rural areas. Goal 11 has generally been held to prohibit the
extension of urban services (namely sewer and water) to rural lands outside urban growth
boundaries. The present application will not result in the extension of urban services because
the low-density development allowed in the RR -10 zone does not require urban services. Any
residential development will be of a density that can be served by on-site septic and individual
wells.
Goal 12, Transportation. This goal is to "provide and encourage a safe, convenient and
economic transportation system." It is implemented through OAR 660-012, commonly known as
the TPR. Based on the findings in response to the TPR, the Board finds the proposal is
consistent with Goal 12.
Goal 13, Energy Conservation. Goal 13 is to conserve energy. Planning Guideline 3 notes
that "[I]and use planning should, to the maximum extent possible, seek to recycle and re -use
vacant land..." Surface mining activities have ceased on the site and it has been vacant for
some years. The applicant proposes re -use of the land consistent with this guideline, and thus
this proposal is consistent with Goal 13.
Goal 14, Urbanization. The applicant's proposal does not affect property within an urban
growth boundary and the proposed RR -10 zoning designation does not permit urban density
levels. Goal 14 therefore does not apply.
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.
ZONE CHANGE
FINDINGS: The applicant has requested approval of a zone change from EFU-LB and SM to
RR -10 for the subject property, and to remove the associated Surface Mining Impact Area
(SMIA) overlay from property located within a one-half mile radius of the site. However, because
the site is within a one-half mile radius of Site 322, the applicant requests that the SMIA be
applied to this property, to protect mining uses at that site.
C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.52, Surface Mining Zone (SM)
a. Section 18.52.130, Site Reclamation Plan.
Prior to the start of mining activity, a site reclamation plan shall be
submitted and approved which demonstrates that the mineral and
aggregate extraction site can be reclaimed for a subsequent beneficial land
use consistent with the designation of such subsequent use in the surface
mining element of the Comprehensive Plan.
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Document No. 2009-168
A. When a site reclamation plan is required by DOGAMI, the site
reclamation plan shall be approved by DOGAMI. To the
extent practicable, review of the site reclamation plan shall be
conducted jointly between DOGAMI and the County.
B. When a site reclamation plan is not required by DOGAMI, the
site reclamation plan shall be approved by the County in
conjunction with the site plan review described in DCC
18.52.070. The County shall review such site reclamation
plans for consistency with the site-specific ESEE analysis in
the surface mining element of the Comprehensive Plan and
the standards and conditions set forth in DCC 18.52.110 and
18.52.140. The County also shall follow the applicable
DOGAMI standards and criteria for a site reclamation plan.
FINDINGS: As previously discussed, much of the mining activity on the site took place prior to
any County or State regulation and is therefore exempt from reclamation requirements. The
evidence in the record shows that all reclamation required by DOGAMI was completed to
DOGAMI's satisfaction and DOGAMI has closed its file on the site. Specifically, the evidence
shows that the areas southeast of Lower Bridge Way were subject to a DOGAMI reclamation
plan and have been reclaimed in accordance with that plan. The mine site northwest of Lower
Bridge Way did not have a DOGAMI required reclamation plan. However, a County reclamation
plan for the removal of the aggregate resource was required under SP -85-23, and was attached
to that decision as Exhibit C. The evidence shows this area encompasses an 18 -acre area on
the 410 -acre site that is north of Lower Bridge Way and west of the site access road. The
applicant proposes to reclaim this area of the site to allow for residential development and to
submit a modified reclamation plan as described in the applicant's December 3, 2008 plan. The
Board finds that this criterion can be met through the imposition of a condition of approval
requiring the applicant to complete County approved reclamation of the 18 -acre area covered by
SP -85-23 through a modified reclamation plan substantially consistent with the plan submitted
by the applicant dated December 3, 2008. The modification will be processed as a land use
application with notice and an opportunity for full public participation.
b. Section 18.52.200, Termination of the Surface Mining Zoning and
Surrounding Surface Mining Impact Area Combining Zone
A. When a surface mining site has been fully or partially mined,
and the operator demonstrates that a significant resource no
longer exists on the site, and that the site has been reclaimed
in accordance with the reclamation plan approved by
DOGAMI or the reclamation provisions of DCC 18, the
property shall be rezoned to the subsequent use zone
identified in the surface mining element of the
Comprehensive Plan.
FINDINGS: The County's inventory of significant mineral and aggregate sites describes SM Site
461 as follows:
Site No.
Legal Description
Type
Quantity
Quality
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Document No. 2009-168
Page 26 of 38
461
141300-00-01500, 1501,
Aggregate
350,000 y3
Good
1502, 1503, 1505, 1600
[Diatomite]
2,000,000 y3
Subsection (A) requires the operator to demonstrate that: 1) the site has been fully or partially
mined; 2) a significant resource no longer exists on site; and 3) the site has been reclaimed in
accordance with DOGAMI, or DCC Section 18.52.130 standards. The applicant asserts that all
three conditions are satisfied here. The Board agrees.
As discussed in detail below Site 461 has been mined. The section below discusses significant
resource status. In the County's previous decision in Stott (PA-98-12/ZC-98-6), the Hearings
Officer held that the provisions of OAR 660 Division 23 regarding compliance with Goal 5 are
relevant to this question. OAR 660-023-0250 provides in pertinent part:
(1) [OAR 660, division 23] replaces OAR 660, division 16 * * *. Local
governments shall follow the procedures and requirements of this division
* * * 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 [post -acknowledgment
plan amendments (PAPAs)] initiated on or after September 1, 1996. * * *
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:
(3)
(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[4 * * *"
In Stott, the Hearings Officer concluded that a plan amendment and zone change to "de -list"
and rezone a surface mining site constitutes a "PAPA," and therefore the provisions of OAR
660-023-0180 concerning mineral and aggregate resources apply to such an application to the
extent they reasonably can be applied to a decision to remove a site from the county's adopted
inventory. The Board agrees with this conclusion. The Hearings Officer further found OAR 660-
023-180(3) identifies the pertinent standards for determining "significance." This paragraph
provides:
(3) An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource
demonstrates that the site meets any one of the criteria in subsections (a)
through (c) of this section, except as provided in subsection (d) of this
section:
(a)
A representative set of samples of aggregate material in the deposit
on the site meets applicable Oregon Department of Transportation
(ODOT) specifications for base rock for air degradation, abrasion,
and soundness, and the estimated amount of material is more than
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Document No. 2009-168
2,000,000 tons in the Willamette Valley, or more than 500,000 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 was on an inventory of significant aggregate
sites in an acknowledged plan on September 1, 1996.
FINDING:
Significant Resources: Mineral and aggregate are not the same resources. Mineral
resources refer generally to all inorganic materials that are extracted from the earth and put to
beneficial use. It includes precious metals, valuable minerals, diatomite, as well as rock and
sand. "Aggregate," on the other hand, refers to those inorganic substances that are used in road
or other construction activities. OAR 660-023-0180 only addresses "aggregate" resources. The
county's Goal 5 program primarily addresses aggregate resources, although the definition of
"mineral" is broader than the definition of "aggregate" set out in OAR 660, division 23.
Aggregate resource is significant if it meets one of the three criteria set out in OAR 660-023-
0180(3). Here, the only potentially applicable standard is OAR 660-023-0180(3)(a).7
OAR 660-023-0180(3)(a) requires a demonstration that the aggregate at the site: 1) meets
ODOT specs for air degradation; 2) abrasion; 3) sodium sulfate soundness; and 4) include more
than 500,000 tons. The Aggregate Resource Assessment Report prepared by GeoDesign, Inc.
and submitted as Exhibit 7 ("Aggregate Report") concludes that subject site does not satisfy the
criteria because it fails sodium sulfate soundness requirements and contains less than 500,000
tons of aggregate. Based on a site-specific analysis, the Aggregate Report estimates the
quantity of the aggregate at 211,000 cubic yards. Assuming a tons -per -cubic yard ratio of 2.1,
the Report finds 443,100 tons of aggregate on site, less than the "significant" threshold above.
The Board agrees with the Hearings Officer that the unrefuted evidence demonstrates that the
site no longer contains a significant aggregate supply.
With respect to diatomite, the aggregate significance standards do not apply because diatomite
is a mineral, not aggregate, resource. Neither local law nor administrative rule define what a
significant "mineral" resource is. Furthermore, the ESEE analysis for the site makes it clear that
the site was listed on the County's Goal 5 Mineral and Aggregate inventory based solely on the
quantity of aggregate on the site, not diatomite. While the value of diatomite in the global
market justified the rezoning of the property to SM, and the approval of mining in 1985, the
applicant has provided information in the submitted burden of proof that there is no economic
incentive to mine diatomite on the subject property due to ample global supply, low profitability,
less expensive substitute materials, and undesirable environmental impacts. Due to its limited
usefulness in the local market, and the evidence that other materials provide a more suitable
replacement, the Board agrees with the Hearings Officer that the diatomite on the site is not a
"significant" mineral warranting protection.
OAR 660-023-0180(3)(b) does not apply because the local government has not established lower
standards. OAR 660-023-0180(3)(c) does not apply to requests to remove a site from the acknowledged
inventory. See Hearings officer decisions PA -98-12 and ZC-98-6, PA -04-4 at page 30 (Exhibit 15) and
PA -06-2 at page 14 (Exhibit 19).
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Document No. 2009-168
Reclamation: The Deschutes County Code requires that the site be reclaimed in accordance
with a reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18.52,
DOGAMI has found the site to be reclaimed according to its standards. As the DOGAMI memo
explains, 61 acres on tax lots 1503 and 1505 were covered by an operating permit for gravel
extraction, and reclamation has been completed there. The overburden stockpiles on that area
have been revegetated, are stable, and may remain until used for on-site development. The
former DIATOMITE mining site (west of Lower Bridge Way) is exempt from reclamation
requirements under ORS 517.770 because it was part of a mine that existed before 1972.
Site Plan approval SP -85-23 included reclamation specifications. Below is a summary of the
applicant submitted reclamation plan, attached as Exhibit C to the Hearings Officer Decision in
SP -85-23.
The applicant has stated that the topsoil is stockpiled and will be replaced on the
area mined approximately 12 inches deep. The applicant proposed to
motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed
bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and
mulch. The applicant also proposes to plants evergreens for shade and
windbreaks on the site.
Condition 1 of SP -85-23 also required an updated reclamation plan to include measures to
prevent materials from eroding into the Deschutes River. Staff has been unable to locate this
updated reclamation plan or a map showing the area covered by SP -85-23. The applicant
submitted testimony and evidence establishing an 18 -acre area north of Lower Bridge Way and
west of the site access road on the area mined for aggregate under the permit issued in SP -85-
23. The evidence establishes that some but not all of the components of the reclamation plan
summarized above were completed.
There is significant confusion as to the relationship between the DOGAMI reclamation
standards and DCC 18.52.200(A). DOGAMI has the statutory authority to regulate reclamation
over sites located in Deschutes County, and its reclamation standards supersede local
standards. Therefore, unless the applicant agrees otherwise, sites that are exempt from
reclamation under DOGAMI regulations are similarly exempt from other, more restrictive local
standards that could be imposed as a condition of land use approval. Thus, as a practical
matter, the only role the county has in the reclamation process is to identify a post -mining use.
If the post -mining use is established prior to the adoption of a reclamation plan, the plan must
be consistent with that post -mining use.
Here, the evidence shows that the applicant proposed a reclamation plan for the area mined for
aggregate in SP -85-23. Those reclamation activities were not required in the DOGAMI
reclamation plan, but rather were solely imposed as conditions in SP -85-23, enforceable by the
County. The Board finds that the condition discussed previously requiring the applicant to
complete a County approved reclamation plan is sufficient to show compliance with the earlier
condition, since it actually increases the ultimate likelihood of compliance.
Based on the above, the Board finds the site has been partially mined, a significant resource no
longer exists and the site has been or will be, through the fulfillment of conditions of approval,
fully reclaimed in accordance with DOGAMI and DCC requirements.
B. Concurrent with such rezoning, any surface mining impact
area combining zone which surrounds the rezoned surface
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Document No. 2009-168
mining site shall be removed. Rezoning shall be subject to
chapter 18.136 and all other applicable sections of this title,
the Comprehensive Plan and Deschutes County Code Title
22, the Uniform Development Procedures Ordinance.
FINDINGS: The present zone change will also remove the surface mining impact area
combining zone which surrounds the rezoned surface mining site. However, as noted above,
Site 322 is located within one-half mile of the site. Therefore, a SMIA that covers a one-half
mile radius of that site must remain on nearby property and must be applied to this site.
2. Chapter 18.136, Amendments
a. 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:
FINDINGS: The Board finds that this section requires that a quasi-judicial rezoning must
establish that the public interest is best served by rezoning the property. The Board finds this
analysis must include, but is not limited to, to factors described in this section. The record
indicates that the subject property was historically used to mine and process diatomaceous
earth. The record also indicates that the processing of diatomaceous earth can create
cristobalite, classified by the International Agency for Research on Cancer as carcinogenic to
humans. There is no evidence in the record that the property has been tested or evaluated for
potential hazard form this carcinogen. The site has also been used for hazardous and
radioactive waste disposal and has been subject to numerous violations of environmental
quality regulations.
The Oregon Department of Human Services, Environmental Health Assessment Program
(EHAP) stated that the existing EHAP evaluation of environmental conditions at the site only
dealt with the present use of the property. EHAP recommended that the landowner obtain a
letter of "No Apparent Public Health Hazard" from EHAP for the site prior to residential use.
This would require additional environmental sampling and cleanup of any identified
environmental concerns. EHAP has also found that airborne dust from any source can cause
short-term respiratory irritation, but more information is needed to evaluate possible Tong -term
effects at this site. EHAP considers inhalation of airborne dust emanating from this site to be an
indeterminate health hazard.
The Oregon Department of Environmental Quality (DEQ) stated that the site has currently only
been evaluated with respect to environmental safety for its current use as a mine and an
industrial property. A rezone of the site from industrial to residential use would require a re-
evaluation of the site for residential use. The re-evaluation of the site, applicable exposure
routes, and pathways may result in some scenarios requiring deed restrictions, active cleanup
and/or monitoring. Following a cleanup of any identified environmental concerns, DEQ could
issue a "No Further Action Letter" (NFA) for residential use.
Given the environmental history of the site, the Board finds that the public interest will not be
served by rezoning the property for residential use, prior to establishing that the site is safe for
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Document No. 2009-168
residential use8. The Board finds, however, that the applicant can meet this criterion through
conditions of approval. In establishing these conditions of approval, the Board recognizes that
the majority of the environmental concerns pertain to dust and hazardous waste storage that
occurred on the a portion of property located West of Lower Bridge Way. Therefore, separate
conditions of approval are imposed for 1) the area to the East of Lower Bridge Way (together
with approximately 30 acres along the river west of Lower Bridge Way; and, 2) the area West of
Lower Bridge Way, the latter requiring a Resolution of Intent to Rezone rather than a current
rezoning of that section.
East Area:
1. Prior to final plat approval for any residential subdivision, the applicant shall
obtain from the Department of Environmental Quality (DEQ) a "No Further
Action" (NFA) determination or the equivalent for a residential use designation for
the 160 acres.
2. Prior to final plat approval for any residential subdivision, the applicant shall
obtain from the Department of Human Services (DHS) a determination of "no
apparent public health hazard" for a residential use designation for the 160 acres.
West Area:
1. Within five (5) years or prior to final plat approval for any residential subdivision
on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever
is earlier, the applicant shall obtain from DEQ an NFA determination or the
equivalent for a residential use designation for this 410 acre area.
2. Within (5) five years or prior to final plat approval for any residential subdivision
on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever
is earlier, the applicant shall obtain from DHS a determination of "no apparent
public health hazard" for a residential use designation for this 410 acre area.
3. During the pendency of this Resolution and continuing in conjunction with the
DEQ VCP program and site development, the owner shall implement the DEQ
approved Planting Plan dated May 20, 2008 (Exhibit PH -6) and the DEQ
approved Watering Monitoring Plan dated May 20, 2008 (Exhibit PH -7) as the
Dust Abatement Plan for the site.
A. That the change conforms with the Comprehensive Plan, and
the change is consistent with the Plan's introductory
statement and goals.
FINDINGS: In previous County decisions, it has been held that comprehensive plan goals and
policies do not constitute mandatory approval criteria for quasi-judicial zone changes, but rather
are implemented through the zoning ordinance, and therefore if the proposed zone change is
consistent with the applicable provisions of the zoning ordinance, it also will be consistent with
the plan.
The applicant has argued that the public interest is best served by taking the subject property
out of mining use. Due to increased rural residential development in the area and decreased
value and demand for diatomite, the applicant argues that diatomite mining is no longer
$ With regard to environmental issues, the Board Lacks the expertise to determine if the subject property is safe for
residential use and will look to DEQ and DHS to provide this determination.
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Document No. 2009-168
Page 31 of 38
compatible with the area or desirable for the landowners. Rezoning for residential use will
provide incentive and the economic resources to clean up the aesthetic and environmental
impacts of decades of mining.
As noted above, the proposed plan map amendment and removal of the site from the county's
inventory of significant mineral and aggregate sites are consistent with applicable plan policies
and the Statewide Land Use Planning Goals. The proposed RR -10 and SMIA zoning
designations are consistent with the proposed plan designations. Therefore, the proposal, so
long as it is also consistent with the zoning ordinance, is consistent with the plan.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: The applicant is proposing a zone change from Surface Mining to Rural Residential
(RR). The purpose of the RR zone, set forth at DCC 18.60.10 is:
The purposes of the Rural Residential Zone are to provide rural residential
living environments; to provide standards for rural land use and
development consistent with desired rural character and the capability of
the land and natural resources; to manage the extension of public services;
to provide for public review of nonresidential uses; and to balance the
public's interest in the management of community growth with the
protection of individual property rights through review procedures and
standards.
FINDINGS: The proposed zone change is consistent with this purpose statement because re-
development of the site will create a rural residential living environment consistent with the rural
character and capabilities of the land and resources. To the extent existing conditions affect the
carrying capacity of the land, air and water, those issues can be addressed through compliance
with applicable state health and environmental quality regulations, or through compliance with
the county's development standards.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
FINDINGS: The Board finds that this section requires that a quasi-judicial rezoning must
establish that changing the zoning will presently serve the public health, safety and welfare.
The Board finds this analysis must include, but is not limited to, to factors described in this
section.
The site is currently an unused diatomite and aggregate surface mine. Prior activities on the
site have in some cases adversely affected public health, safety and welfare, although some of
those impacts have been ameliorated. The concerns with public health, safety and welfare
arose primarily from the previous use of the western portion of the site as a hazardous waste
facility. Additionally, the presence of loose diatomite on the western portion of the property
raises concerns with blowing dust, as described above. The Board has conditioned this
decision to address these concerns.
Opponents have raised limited issues with concerns about the portion of the property East of
Lower Bridge Way. While the Board finds no evidence of any continued public health, safety
ZC-08-1/PA-08-1 — BOCC Decision Page 32 of 38
Document No. 2009-168
and welfare concerns with the eastern portion of the property, this area has not been evaluated
with respect to environmental concerns for residential use. The Board has conditioned this
decision to address this concern, as described above.
The Board agrees with the Hearings Officer and concludes that overall, redevelopment of the
site for rural residential uses, as conditioned, will presently serve the public health safety and
welfare by providing the developer with an incentive to reclaim the site.
1. The availability and efficiency of providing necessary
public services and facilities.
FINDINGS: All utilities are available and currently serving other nearby properties, including the
RR -10 zoned subdivision to the southeast, and adequate County road frontage is available.
The Board also concludes that the applicant has demonstrated that the proposed rural
residential zoning will not significantly affect local transportation facilities. The Board agrees
with the Hearings Officer that "public services and facilities" within the meaning of this standard
does not include private domestic wells, individual subsurface sewage facilities or private roads.
To the extent water availability and water quality fall within the category of "public services and
facilities," the applicant provided evidence that it has a limited use water permit to allow for dust
suppression and irrigation of re -vegetated areas. The applicant also testified and submitted
evidence that its preliminary testing shows that adequate water is available to develop individual
or group wells for domestic water supplies. Domestic wells must be drilled in accordance with
Oregon Water Resources Department well drilling standards, which includes a requirement that
the well not inject contaminated water into an aquifer, or cause perched water to move to
another aquifer. There is substantial evidence in the record to show that these standards are
met or can be met through conditions of development approval.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
FINDINGS: The evidence shows that rezoning the property will not adversely impact
surrounding property because residential use is consistent with the existing residential uses
adjacent to the subject property, and will not increase adverse impacts on agricultural uses on
other nearby properties. Several neighboring land owners testified that they supported the
proposal as a means of revegetating the site and controlling dust.
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.
FINDINGS: There have been several changes in circumstances, and new information that
shows that mistaken assumptions were the premise of the current zoning. Part of the subject
property was zoned Surface Mining in 1985 and the remainder in 1989.
The 1985 zoning focused on only the diatomite resource, and was premised on the assumption
that diatomite would be economically productive for export. At that time the property was zoned
Surface Mine Reserve, and the applicable Comprehensive Plan assumed that land so
designated "will ultimately be mined." The applicable Plan also lowered the burden of proof for
changing the zoning to Surface Mining because "the material here sought to be mined consists
of non -aggregate materials which are most probably to be used for export as there is currently
ZC-08-1/PA-08-1 — BOCC Decision Page 33 of 38
Document No. 2009-168
little local demand." In spite of low local demand, the Hearings Officer found that the potential to
export diatomite satisfied "the need question." Applicants were "in the process of negotiating
large scale contracts for the delivery of [diatomite]" and the county found that construction of a
processing plant in Malheur County would "enable exportation by the applicants." Because the
site had already been used for diatomite mining, the Hearings Officer found that rezoning would
simply facilitate more use and exportation of the resource.
However, circumstances have changed since 1985. Because the identified global supply of
diatomite will satisfy global demand for a very long time, the Lower Bridge Way site is not
needed. Environmental regulation and fuel costs have increased, while profits for diatomite have
decreased. Therefore, according to the applicant, mining diatomite from the site is no longer
economically viable or necessary.
The second rezoning, as part of the ESEE analysis for site 461, in 1989-1990 focused on the
site's aggregate (as opposed to a mineral) resource. It followed the 1988 Deschutes County
Goal 5 Aggregate Inventory, which identified an aggregate resource of 350,000 cubic yards. It
is unclear from the record how this amount was estimated.
In the ESEE analysis for site 461, the Board identifies the key values that form the basis for the
determination of SM zoning for the mine site. These include the importance of aggregate
resources to development in Deschutes County, the value to the County economy in terms of
materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site,
and that the site is located near a major roadway for highway maintenance and construction
jobs.
Neither the mine location nor the importance of aggregate resources to Deschutes County have
changed since the last zoning of the property. However, the current estimate of aggregate
resources on the property has fallen to 211,000 cubic yards. Also, the current Aggregate
Resource Assessment Report indicates that the aggregate on the site does not meet ODOT
specifications. This report also indicated that the aggregate resource cannot be profitably
mined. These issues constitute a change in circumstances within the meaning of this criterion.
ZC-08-1/PA-08-1 — BOCC Decision Page 34 of 38
Document No. 2009-168
4. Chapter 18.116, Supplementary Provisions
a. Section 18.116.220. Conservation Easements on Property Adjacent
to Rivers and Streams Prohibitions.
A. As a condition of approval of all land use actions involving
property adjacent to the Deschutes River, Crooked River, Fall River,
Little Deschutes River, Spring River, Paulina Creek, Whychus Creek
and Tumalo Creek, the property owner shall convey to the County a
conservation easement, as defined in DCC 18.04.030, "Conservation
Easement," affecting all property on the subject lot which is within
10 feet of the ordinary high water mark of the river or stream.
B. The form of the conservation easement shall be as prescribed
by the County and may contain such conditions as the County
deems necessary to carry out the purposes described in DCC
18.04.030, "Conservation Easement."
C. Any public access required as part of a conservation
easement shall be subject to the following conditions:
1. Public access shall be limited to foot traffic for recreational
purposes and the putting in or taking out of boats.
2. Unless otherwise permitted by the affected property owner,
public access does not allow public passage through other private
property to gain access to the property subject to the conservation
easement.
3. Unless otherwise permitted by state law, County ordinance or
the property owner, no person on the subject property as a result of
a public access requirement of a conservation easement shall
deposit solid waste, damage or remove any property, (including
wildlife and vegetation) maintain or ignite fires or fireworks,
discharge firearms or camp.
FINDINGS: The subject property is adjacent to the Deschutes River. A conservation easement,
as described in this criterion has been included as a condition of approval.
IV. DECISION
This Decision is separated into two parts representing two distinct areas of the subject property:
1) the area to the East of Lower Bridge Way (together with approximately 30 acres along the
river west of Lower Bridge Way; and, 2) the area West of Lower Bridge Way
I. East Area:
The Board APPROVES the request for a comprehensive plan text and map amendment
and zone change from Surface Mining to Rural Residential on the area East of Lower
ZC-08-1/PA-08-1 — BOCC Decision Page 35 of 38
Document No. 2009-168
Bridge Way, together with approximately 30 acres along the river west of Lower Bridge
Way (approximately 160 acres)9 subject to the following conditions of approval:
1 Prior to final plat approval for any residential subdivision, the applicant shall obtain
from the Department of Environmental Quality (DEQ) a "No Further Action" (NFA)
determination or the equivalent for a residential use designation for the 160 acres.
2. Prior to final plat approval for any residential subdivision, the applicant shall obtain
from the Department of Human Services (DHS) a determination of "no apparent
public health hazard" for a residential use designation for the 160 acres.
3. Prior to or contemporaneously with final plat approval for any residential
subdivision, the applicant shall record a conservation easement in substantially the
form attached hereto as Exhibit C and covenant (by deed or plat) to restrict in
perpetuity the use of the approximately 30 -acre area to open space uses and
preventing the construction of any residential structure.
4. The applicant shall not develop any area within a 100 -yard radius of the historic
Lynch and Roberts Store Advertisement sign. The applicant shall post markers to
prevent trespass, prior to development of the site. Any Covenants, Conditions and
Restrictions (CC&Rs) created as a part of a residential development of the subject
property will contain obligations to protect the area within a 100 -yard radius of the
historic sign from development and trespass and to maintain the posted markers.
5. As part of any residential development approval for the site, the applicant shall
include an informational section in its CC&Rs that detail the history of the site,
including the remediation efforts taken by the applicant and its predecessors in
interest.
6. If fill is brought onto the site, the applicant shall identify the general location of the
fill, and if the site is used for development, the applicant shall either certify that the
fill is suitable for development, or specifically declaim any knowledge of its
suitability.
7. Prior to final plat approval for any residential subdivision, a conservation easement
as defined in Section 18.04.030, "Conservation Easement" and specified in Section
18.116.220, shall be required.
9 As more particularly described in the legal description, attached to this decision as Exhibit A.
ZC-08-1/PA-08-1 — BOCC Decision Page 36 of 38
Document No. 2009-168
II. West Area:
The Board FINDS that rezoning the remainder of the subject property located West of
Lower Bridge Way (approximately 410 acres)10, from Surface Mining to Rural Residential
will best serve the public health, safety, welfare and convenience if certain conditions are
fulfilled. Thus, the Board APPROVES the proposed rezoning subject to a resolution of
intent to rezone. The resolution shall include the following conditions:
The following conditions shall be included in the Resolution:
1. 1.Within five (5) years or prior to final plat approval for any residential subdivision
on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever
is earlier, the applicant shall obtain from the Oregon Department of
Environmental Quality ("DEQ") a "No Further Action"("NFA") determination or the
equivalent for a residential use designation for this 410 acre area.
2. Within (5) five years or prior to final plat approval for any residential subdivision
on the 410 -acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever
is earlier, the applicant shall obtain from the Oregon Department of Human
Services a determination of "no apparent public health hazard" for a residential
use designation for this 410 acre area.
3. Contemporaneously with the site development and prior to the issuance of any
residential building permit, the applicant shall complete the County -approved
reclamation of the 18 -acre area covered by SP -85-23 through a modified
reclamation plan substantially consistent with the plan submitted by the applicant
dated December 3, 2008.
4. The applicant shall submit a Modification Application for the modified reclamation
plan within six months of the date this decision is final.
5. The date the above described decision is final shall be the date the final County
decision of approval is signed and mailed or, if the final County decision is
appealed, the date the final appellate body affirms the County decision or
dismisses the appeal.
6. During the pendency of this Resolution and continuing in conjunction with the
DEQ Voluntary Compliance Program and site development, the owner shall
implement the DEQ approved Planting Plan dated May 20, 2008 (Exhibit PH -6 in
the record) and the DEQ approved Watering Monitoring Plan dated May 20, 2008
(Exhibit PH -7 6 in the record) as the Dust Abatement Plan for the 410 -acre site.
7. This Resolution shall expire five (5) years from the date this approval Decision is
final, unless the conditions and stipulations set forth above have been satisfied or
an extension is granted pursuant to DCC Title 22.
8. Upon the applicant's successful fulfillment of the above conditions and pursuant
to DCC 18.136.030B, the County shall amend the County comprehensive plan
10 As more particularly described in the legal description, attached to this decision as Exhibit B.
ZC-08-1/PA-08-1 — BOCC Decision Page 37 of 38
Document No. 2009-168
text and map designation for the 410 acre area in accordance with this Decision
from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception
Area (RREA) and remove Surface Mining Site 461 from the County's Goal 5
inventory of significant mineral and aggregate resource sites and shall amend the
zoning map designation for the 410 acre area from Surface Mining (SM) and
Exclusive Farm Use (EFU) to Rural Residential -10 (RR -10).
9. As part of any residential development approval for the site, the applicant shall
include an informational section in its CC&Rs that details the history of the site,
including the remediation efforts taken by the applicant and its predecessors in
interest.
10. If fill is brought onto the 410 acre site, the applicant shall identify the general
location of the fill, and if the site is used for development, the applicant shall
either certify that the fill is suitable for development, or specifically declaim any
knowledge of its suitability.
Dated this '0of r , 2009 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ST:
Recording Se e
Mailed this
D NIS R. LUKE, i Chair
ALAN UNGER, Commissioner
day of - -p r , 2009
THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS
DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON
WHICH THIS DECISION IS FINAL.
ZC-08-1/PA-08-1 — BOCC Decision Page 38 of 38
Document No. 2009-168
2o°C1 — t ��
EXHIBIT A
"160" acre Area
Parcel 2 of Minor Land Partition, MP -80-96 , located in Section 15 and Section 16, Township 14 South,
Range 12 East, Willamette Meridian, Deschutes County, Oregon, as per Partition plat recorded as
Survey CS 00169, Deschutes County Surveyor Records, more particularly described as follows;
Beginning at a point on the East line of said Section 16, said point being North 00°05'01" West 388.52
feet from the Southeast corner of said Section 16, as shown on said Minor Partition MP -80-96 ;
Thence North 77°39'52' West 167.14 feet to the beginning of a 1689.00 foot radius tangent curve to
the right;
Thence Northwesterly along said curve, through a central angle of 17°32'49", an arc length of 517.26
feet, the chord of which bears North 68053'27" West 515.24 feet;
Thence North 60°07'02" West 68.98 feet, to the centerline of Lower Bridge Road as it is now located;
Thence Northerly along said centerline of Lower Bridge Road to the centerline of the Deschutes River;
Thence Easterly and Southerly along said centerline of the Deschutes River to the East line of the
Northwest Quarter of the Southwest Quarter of said Section 15, Township 14 South, Range 12 East,
Willamette Meridian;
Thence South 00°09'48" East 793.36 feet along said East line to the Southeast corner of said Northwest
Quarter of said Southwest Quarter of Section 15;
Thence North 89°23'15" West 1315.48 feet along the South line of said Northwest Quarter of said
Southwest Quarter of Section 15 to the East Zine of said Section 16;
Thence South 00°05'01" East 969.02 feet along said East Line of Section 16 to the Point of Beginning.
Together With:
All that portion of the East Half of Section 16, and the Southeast Quarter of Section 9, Township 14
South, Range 12 East Willamette Meridian, Deschutes County, Oregon, more particularly described as
follows:
Commencing at the North quarter corner of said Section 16 as shown on Partition Plat 1991-47
recorded as Survey CS 04248, Deschutes County Surveyor Records, and as shown on Minor Land
Partition MP -80-96, as per Partition Plat recorded as Survey CS 00169, Deschutes County Surveyor
Records, said North Quarter corner also being on the North line of Parcel 3 of said Minor Partition MP -
80 -96;
Thence along said North line of said Parcel 3 the following three courses;
Thence North 39°46' East 375.00 feet;
Thence North 47°20' East 300.00 feet;
Thence South 73°20' East 631.85 feet to the True Point of Beginning;
Thence leaving said North line, and along the approximate westerly "rim" of the Deschutes River canyon
the following eight courses;
Thence South 20°56'42" West 366.00 feet;
Thence South 10°31'16" West 397.00 feet;
Thence South 17°31'44" West 218.00 feet;
Thence South 2°16'05" West 253.00 feet;
Thence South 18°11'14" East 249.00 feet;
Thence South 32°05'58" East 241.00 feet;
Thence South 43°12'39" East 260.00 feet;
Thence South 51°57'00" East 312.00 feet;
Thence leaving said "rim" South 8°34'08" West 735.00 feet;
Thence South 38°35'41" West 230.00 feet;
Thence South 4°48'14" East 163.00 feet;
Thence South 27°35'54" East 211.00 feet;
Thence South 49°17'51" East 130.00 feet;
Thence North 87°33'23" East 149.00 feet;
Thence North 57°05'52" East 304.00 feet plus or minus to the centerline of Lower Bridge Road (Way) as
it is now located;
Thence Northerly and Easterly along the centerline of Lower Bridge Road(Way) as it is now located to
the centerline of the Deschutes River;
Thence Northerly and Westerly along the centerline of the Deschutes River to the North line of Parcel 3
of Minor Land Partition MP -80-96, as per Partition plat recorded as Survey CS 00169, Deschutes County
Surveyor Records;
Thence North 73°20' West 355.42 feet along said North Line to the Point of Beginning.
Excepting therefrom that portion described in deed to Central Oregon Park and Recreation District,
recorded December 30, 1986, in Book 139, Page 207, Deschutes County Official Records.
IREGISTERED
PROFES$f+-)NAL
LAND SURVEYOR
n✓.9ap- 3 -/tv -09
OREGON
JUNE 1, 1998
(KEITH S. DAGO$T,NO
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EXHIBIT (3
"410" acre Area
Parcel 1 of Partition Plat 1991-47, located in the West half of Section 16, Township 14 South, Range 12
East, Willamette Meridian, Deschutes County, Oregon, as per Partition plat recorded as Survey CS
04248, Deschutes County Surveyor Records;
Together with the following described portion of the East half of Section 16, and portion of the
southeast quarter of Section 9, Township 14 South, Range 12 East Willamette Meridian, Deschutes
County, Oregon,
Beginning at the North quarter corner of said Section 16 as shown on Partition Plat 1991-47 recorded as
Survey CS 04248, Deschutes County Surveyor Records, and as shown on Minor Land Partition MP -80-96,
as per Partition Plat recorded as Survey CS 00169, Deschutes County Surveyor Records, said North
Quarter corner also being on the North line of Parcel 3 of said Minor Partition MP -80-96;
Thence along said North line of said Parcel 3 the following three courses;
Thence North 39°46' East 375.00 feet;
Thence North 4T20' East 300.00 feet;
Thence South 73°20' East 631.85 feet;
Thence leaving said North line, and along the approximate westerly "rim" of the Deschutes River canyon
the following eight courses;
Thence South 20°56'42" West 366.00 feet;
Thence South 10°31'16" West 397.00 feet;
Thence South 17°31'44" West 218.00 feet;
Thence South 2°16'05" West 253.00 feet;
Thence South 18°11'14" East 249.00 feet;
Thence South 32°05'58" East 241.00 feet;
Thence South 43°12'39" East 260.00 feet;
Thence South 51°57'00" East 312.00 feet;
Thence leaving said "rim" South 8°34'08" West 735.00 feet;
Thence South 38°35141" West 230.00 feet;
Thence South 4°48'14" East 163.00 feet;
Thence South 27°35'54" East 211.00 feet;
Thence South 49°17'51" East 130.00 feet;
Thence North 87°33'23" East 149.00 feet;
Thence North 57°05'52" East 304.00 feet plus or minus to the centerline of Lower Bridge Road (Way) as
it is now located;
Thence Southerly and Westerly along said centerline of Lower Bridge Road (Way) as it is now located, to
the South line of said Section 16;
Thence Westerly along said South line, to the South Quarter corner of said Section 16, said corner also
being the Southeast corner of Parcel 1 of Partition Plat 1991-47;
Thence North 00°23'53" West 5333.11 feet along the East line of said Parcel 1 to the Point of Beginning.
L7FE SSIONAi
AND SURVEYOR
ii,40). 3-/0-07
OREGON
.al__�;•�1E 1 '7 f39;s3
KEITH H S. DAGOSTINO
RENEWAL DATA /Z-3(,07
o 2009 )c.
Return To:
Deschutes County Planning
Community Development Department
117 NW Lafayette
Bend, Oregon 97702
CONSERVATION EASEMENT
This grant of conservation easement is made this day of , 2009, by
and , hereinafter referred to as "Grantor(s),"
in favor of DESCHUTES COUNTY, a political subdivision of the State of Oregon, (hereinafter
referred to as "Grantee").
RECITALS
WHEREAS, Grantor(s) is/are the sole owners in fee simple of certain real property in
Deschutes County, Oregon, more particularly described as
Deschutes County, Oregon, (hereinafter referred to as "the
Property"); and
WHEREAS, the Board of County Commissioners has determined under the Comprehensive
Plan and the Deschutes County Zoning Ordinance that by virtue of its location along the
River, the Property possesses or is deemed to possess certain natural,
scenic and fish and wildlife habitat values associated with river corridor and riparian areas; and
WHEREAS, Grantor(s) has/have applied for and received a land use permit on the
Property, and Deschutes County Code (DCC) Section 18.116.220 requires as a condition of
approval of land use permits involving property along the river that a conservation easement be
entered into for a 10 -foot wide strip of land area landward from the ordinary high-water mark;
NOW THEREFORE, pursuant to DCC 18.116.220, Grantor(s) hereby agree to place the
restrictions and obligations contained as set forth herein on and over that portion of the Property
Tying within ten feet of the ordinary high water mark of the River under
the terms set forth herein (hereafter referred to as the "restricted area") and Deschutes County
agrees to accept Grantor(s)'s grant of such restrictions.
1. Scope and Purpose.
This Conservation Easement imposes restrictions and affirmative obligations on the
Grantor(s) within the restricted area. The purpose of this conservation easement is to maintain
and protect the natural, scenic and riparian area values within the restricted area for the protection
of fish and wildlife habitat, maintenance of water quality in the river and protection of scenic views
as viewed from the river. Nothing in this document shall be construed as granting a right of public
access or a public access easement.
2. Restrictions on Grantor's Use of Restricted Riparian Area.
Grantor(s)'s use of the restricted area shall be restricted as follows in order to protect the
natural, scenic and riparian values identified in Paragraph 1:
2.1 General Use Restrictions
A. Grantor(s) shall not use or occupy any portion of the restricted area in a manner that
would degrade or diminish the protected values of the restricted area, including, but not limited to:
(1) Depositing of trash, debris, garbage, or other unsightly or offensive material
within the restricted area; and
(2) Allowing pollutants or sediment originating from the property or the
restricted area to enter the river or stream from the restricted area.
B. Except upon prior written approval by the Grantee, or where applicable, the
Division of State Lands and the Army Corps of Engineers, Grantor(s) shall not:
(1) Cause changes in the general topography or land surface (including
excavation, road construction, and the quarrying or removing of rocks,
sand, dirt, gravel, or other material) within the restricted area; or
(2) Cut or remove any vegetation or spray herbicides within the restricted area.
Permission shall be granted for (1) removal of diseased or insect -infested trees
or shrubs or of rotten or damaged trees that present safety hazards, (2) normal
maintenance and pruning of trees and shrubs. Permission shall not be granted
for replacement of any existing vegetation in the restricted area with lawn.
C. Notwithstanding any other provision in this easement, there shall be no restriction
of accepted agricultural practices.
2.2. Restrictions on Structures
A. Except as provided herein no new structures of any kind, including mobile homes,
shall be placed on or erected within the restricted area. Grantor(s) retains the right to perform
ordinary maintenance on all existing buildings and structures within the restricted area, together
with the right to replace, rebuild, or substitute any building or structure now existing with a similar
building or structure to the extent allowed by the Deschutes County Zoning Ordinance.
B. Except upon prior written approval by the Grantee. Grantor(s) shall not place or
erect or allow to be placed or erected within the restricted area:
(1) Tents, travel trailers, recreational vehicles or camping facilities of any kind;
(2) Above -ground utilities, associated structures, or lines; or
(3) Water pumping facilities.
Approval of new water pumping facilities shall include a review of the proposed location,
pumping facility design and visual and sound reducing screening for consistency with the
protection of scenic, water quality and habitat values in and along the river.
3. Administration and Enforcement
3.1. Nothing herein shall be construed as creating any affirmative obligations on the
part of the Grantee.
File No.: Conservation Easement 2
3.2. Enforcement Generally
A. The restrictions set forth in this easement are enforceable by Deschutes County.
B. If Deschutes County determines that Grantors are in violation of the terms of this
easement or that such a violation is threatened, then Deschutes County shall give written notice to
Grantor(s) of such violation and demand corrective action to cure the violation and, where the
violation involves injury to the restricted area resulting from any use or activity inconsistent with
the purpose of this easement, to restore the portion of the restricted area so injured.
C. If Grantor(s) fail/s to cure the violation within 30 days after receipt of notice thereof
or under circumstances where the violation cannot reasonably be cured within a 30 -day period,
fails to begin curing such violation within the 30 -day period, or fails to continue diligently to cure
such violation, Deschutes County may bring an action at law or in equity in a court of competent
jurisdiction to enforce the terms of this easement, to enjoin the violation, ex parte as necessary, by
temporary or permanent injunction, and to abate any condition created in the restricted area in
violation of this easement.
3.3 No delay or omission by Deschutes County in the exercise of any right or remedy
upon any breach by Grantor(s) will impair such right or remedy or be construed as a waiver.
3.4. Enforcement actions under this easement may be taken only against an Owner
having fee title to the restricted area, any person having a possessory right under an Owner, and
any agent, operator or contractor acting under the authority of such Owner or holder of such
possessory rights. A Mortgagee shall be subject to enforcement actions only when Mortgagee
takes ownership of the property by foreclosure or otherwise.
3.5. In addition to the remedies set forth under Paragraph 3.2 above, Deschutes County
may treat any violation of this easement as a nuisance under current §18.144.040 of the Deschutes
County Code (or any comparable successor provision of the Deschutes County Code) and a violation
under current §18.144.050 (or any comparable successor provision of the Deschutes County Code).
4. Assignment. Deschutes County may assign any right or interest it may have in this
easement only upon consent of the Grantor(s).
5. Extinguishment. This easement shall be extinguished only in the event that
Grantor(s) chooses to abandon the land use approval under which this easement is a condition.
6. Successors. The covenants, terms, conditions, and restriction of this easement shall
be binding upon, and inure to the benefit of the parties hereto and their respective personal
representatives, heirs, successors, and assigns, and all who take through them, whether by voluntary
or involuntary transfer, and shall continue as a servitude running in perpetuity with the Property.
Dated this day of , 2009 DESCHUTES COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
Nick Lelack, Planning Director
File No.: Conservation Easement 3
STATE OF OREGON )
) ss.
COUNTY OF DESCHUTES )
On this day of , 2009, before me, a Notary Public, personally appeared
Nick Lelack, the above named Planning Director of Community Development of Deschutes
County, who acknowledged the foregoing document on behalf of Deschutes County, Oregon.
Notary Public for Oregon
My Commission Expires:
Dated this day of , 2008. GRANTORS:
STATE OF OREGON
) ss.
COUNTY OF )
On this day of , 2008, before me, a Notary Public in and for said
County and State, personally appeared the within named and
, who is/are who is known to me to be the identical individual/s
described in the above document, and who acknowledged to me that he/she/they executed the
same freely and voluntarily.
STATE OF
COUNTY OF
On this
County and State,
known to me to be
above document on
Notary Public for
My Commission Expires:
) ss.
day of , 2008, before me, a Notary Public in and for said
personally appeared the above named
the of said corporation and who executed the
behalf of said corporation.
Notary Public for
My Commission Expires:
File No.: Conservation Easement 4