HomeMy WebLinkAboutApplicant Testimony - LathamBRUCE W. WHITE, ATTORNEY, LLC
June 20, 2011
Hand Delivered
Board of County Commissioners
c/o Paul Blikstad
Deschutes County Planning Division
114 NW Lafayette Ave.
Bend, Oregon 97701
Subject: SP -07-462 and CU -07-102 for Surface Mining and Crushing Operations on Surface
Mining Site #303
Dear Commissioners:
This is just to advise that we will be filing our rebuttal testimony all at once on or before June 25,
2011 as contemplated by the post -hearing schedule for written submittals.
Sincerely,
L --c• 44ECEIV
BY: taut
Bruce W. White
c. Latham Excavation
Paul Dewey
JUN 2 0 2011
DELIVERED BY:
Ante.e G✓4,k
P.O. BOX 1298 • BEND, OR • 97709
PHONE: (541) 382-2085
C.E. "WIN" FRANCIS
MARTIN E. HANSEN`
GERALD A. MARTIN
MICHAEL H. McGEAN t
EH
M
FRANCIS HANSEN ;81. MARTIN LLP
ATTORNEYS AT LAW
1148 NW Hilt STREET,: BEND, OR 97701-1914
PHONE:541-389-5010' FAx:541-382-7068
W4WY.FRANCISHANSEN.COM
June 20, 2011
Board of _County Commissioners
Deschutes•County
117 NW Lafayette Aver
Bend OR 97701-1925
CHRISTOPHER J. MANFREDI t
ALISON A. HUYCKE
SARAH E. HARLOS
ALISON G.-HOHENGARTEN
t ADMITTED 1N OREGON AND CALIFORNIA
Apls-e !1. . : . D WASHINGTON
JUN 20 2011
DELIVERED BY:
Re:' ` File Nos. CU -07-102, SP -07-46, Mark Latham Excavation Inc.- ("Applicant")
Written Comments to, the Issues before the Board,on Remand by the Land
Use Board of Appeals in Case Nos 2009-06112009-062
Latham Excavation Surface Mine. Site No. 303, Tax Lot 1712070000300
("Subject Property").
Dear Commissioners:
This office represents Sanders and Danielle Nye, owners of the property at 63890
Johnson Road in Bend, Oregon (TL -171207000040), adjacent and south of the Subject
Property. We understand a limited hearing before the Board of County Commissioners
took place on Monday, June 13, 2011, and that the record remained opened until today
at'5 p.m. for written submission of comments'. These commentsare submitted for the
record to be; considered by the Commissioners.These comments are also submitted'.
on behalf of Dr Raymond Tien ands -Regina McClard, predecessors in interestto the.
Nyes.
Applicant contends -that his Conditional Use Permit and Site Plan entitles him to mine
3.4 million cubic yards of tuff (a non -inventoried, non -identified and non -evaluated
resource), which will, among other things, ultimately result in a significantly more
pronounced headwall than what was contemplated in the 1990 Economic, Social,
Environment and Energy ("ESEE") findings for mining at Site 303`. It is The position of
n -for Remand dated
the Nyes that based.on. the Land Use Board of Appeals Decisio
5117/201.0 ('LUBA,Decision"):.a new or amended analysis of the ESEE consequences
resulting from the applicant's proposed' use is required, based, on remand of the. First,
Third,, 'Fifth and Sixth Assignments of Error (Hoffman), and theThird and Fourth
Assignments of Error (Latham)..
Board of County Commissioners
Re: File Nos. CU -07-102, SP -07-461
Written Comments to the Issues before the Board on Remand by the Land
Use Board of Appeals in Case Nos. 2009-061/2009-062
Latham Excavation Surface Mine Site No. 303, Tax Lot 1712070000300
("Subject Property")
June 20, 2011
Page 2
First Assignment Of Error (Hoffman)
The Nyes believe that LUBA requires an amendment to the ESEE to include the
different resource, Tumalo Tuff, on the mining inventory because it is a substantial
portion of the activity with significant impacts, not originally contemplated.
The Nyes agree with. LUBA that the position Latham takes in regard to his ability to
remove whatever mineral and aggregate resources are encountered on the site is far
too broad, to say the least. (See LUBA, pg. 12-13.) There is a distinction to be made
as to whether or not a new (non -inventoried) material or just a larger amount of
inventoried mineral is present Because the distinction is questioned, an amended, if
not new, ESEE analysis should be performed. This is especially true when we consider
that the now-indentified 3.4 million cubic yards of tuff will create a larger and more
visible headwall that will produce more dust during mining and even after the site has
been reclaimed. (See LUBA, pg. 20.) Because the original permit contemplated only
opening a pit in the ground with a maximum size of 25 acres', the impacts that
accompany the mining of any non -contemplated resource will certainly be significant if
they were not considered in the 1990 ESEE:
LUBA has remanded the case so that the County can either provide an explanation as
to why the current ESEE findings and decision for site 303 is adequate or require that
the ESEE findings and decision for the subject property be amended to take into
consideration the impacts that additional mining of tuff may have, and impose additional
limits on mining which would be appropriate to address that impact. Given descriptive
statements by LUBA suggesting that allowanceof any incidental mining of tuff must be
narrow, the indication is that LUBA suggests the revised ESEE is more appropriate for
the changes Applicant seeks. (See LUBA, pp. 16-17)
Third Assignment of Error (Hoffman)
Within Deschutes County Code Chapter 18.52 there are a number of provisions that
impose regulations based on proximity to dust sensitive and noise sensitive uses: (See
LUBA pg. 20-21) The LUBA decision admits that it is not sure it understands the
County's interpretation of Deschutes County Code 18.52.110 (B)(1)(2)(5), and (6).
LUBA would like the County to revise its interpretation to more clearly express its views
s.
as to how those sections should be applied in this case and whether or not screening of
the headwall is required. (See LUBA, pg. 39.) Again, this is more justification for ,
requiring a new or amended ESEE in order to resolve the ambiguities,especially when
' See Record 1385-1386.
Board of County Commissioners
Re: File Nos. CU -07-102, SP -07-46,
Written Comments to the Issues before the Board on Remand by the Land
Use Board of Appeals in Case Nos. 2009-061/2009-062
Latham Excavation Surface Mine Site No. 303, Tax Lot 1712070000300
("Subject Property")
June 20, 2011
Page 3
the additional mining will result in a larger, more visible headwall with additional
unknown implications.
Fifth Assignment of Error (Hoffman)
LUBA asks the County to define what is meant by "ongoing incremental reclamation" or
leave it to DOGAMI to make that determination The 5 -acre excavation limitin ongoing
incremental reclamation as set forth in the original permit is inadequate for the current
use of the property. The reclamation plan has changed and is different because the
contemplated use was for gravel and pumice mining only. Now that Applicant
anticipates leaving a permanent headwall and removing tuff, it appears impossible for
the DOGAMI requirements to be met. LUBA gives the current Board of Commissioners
the option of either defining what is met by ongoing incremental reclamation in the
ESEE, or writing a condition requiring that expressly delegating reclamation authority to
DOGAMI. Again there is an ambiguity in what is meant under the existing ESEE
because of the change in use and subsequent conditions already in place versus the
contemplated change inuse by the Applicant. To require that DOGAMI try to tackle this
ambiguous task seems inequitable. For the county to adequately describe what is
meant by "ongoing incremental reclamation," it should require that a new ESEE is made
in order to define what is necessary and meet this item of remand:
Sixth Assignment of Error (Hoffman) and Third and Fourth Assignments of Error
(Latham)
The sixth assignment of Error (Hoffman). is deniedbut as it relates to dust control it is
also brought up in the Third and Fourth Assignments of Error by. Latham. Although
Latham has not been required to successfully prevent dust from becoming airborne, it
still must take reasonable precautions to prevent dust from becoming airborne. See
Deschutes County Code18:52.110 (C) and OAR 340-208-0210(2). The inconsistencies
between the Deschutes County Code and the Oregon Administrative Ruleson this point
required LUBA to remand this Deschutes County Commissioners. There was no
disputethat the headwall produces dust when there is active mining at the headwall.
(See LUBA decision pg 63)
The Department of Environmental Quality standard set forth in OAR 340-208-0210(2)
requiring "reasonable precautions to prevent particular matter from becoming airborne"
is one referenced in Deschutes County Code 18.52.110(C) requiring. that "the discharge
of contaminants and dustcreated by the mining operation and accessory uses not
exceeding any applicable DEQ ambient air quality and 'emission standards." It appears
Board of County Commissioners
Re: File Nos. CU -07-102, SP -07-46;
Written Comments to the Issues before the Board on Remand by the Land
Use Board of Appeals in Case Nos. 2009-061/2009-062
Latham Excavation Surface Mine Site No. 303, Tax Lot 1712070000300
("Subject Property")
June 20, 2011
Page 4
that the County's findings required dust from the headwall to be successfully
suppressed and while LUBA did not believe that is a requirement, LUBA did say that
perhaps the county meant to find that not mining the headwall and allowing it to "build
up a crust" over time was the precaution to be taken as required by Deschutes County
Code 18.52.110(C) and OAR 340-208-0210(2). (See LUBA decision pg. 65)
One"can►anticipate how mining to the pumice through 3.4 million cubic yards of tuff, or.
just mining the tuff itself, leads to a much larger and steeper headwall that cannotbe
well contained in terms of dust and particles being airborne. Applicant can't take
reasonable precautions that comply with DCC requirements until it submits an
application to modify the plan and show how headwall mining can be controlled. An
amended or new ESEE should be required in order to allow the County to impose
conditions related to dust control.
The Nyes are especially concerned about this given the location of their home (which
existed in 1990 and is a quartermile from the center of the mine) in relation to the
subject property. Their 6 -year old son has vernal allergenic conjunctivitis. While the
Nyes understand the Goal -5 protections afforded to certain mining activities, they are
especially concemed with the fact that what the Applicant is asking to do goes outside
of the protection afforded by state and local law. If approved, the detriment to the
livability of the area would be Targe. If Applicant contemplates doing more than allowed
to do under its original permit, it must take the corresponding precautionary,
preventative, and required steps under state and local law pursuant to an accurate
ESEE analysis.
Thank you in advance for your consideration.
Sincerely;
FRANCIS HANSEN & MARTIN LLP
Alison Hohengarten
cc: Clients
Paul Dewey
Dr. Raymond Tian and Regina McClard
Skip and Karen Grossman
64085 Tamoli Lane
Bend, Oregon 97701
Board of County Commissioners
Deschutes County
1300 N. W. Wall Street, #200
Bend, Oregon 97701-1960
Re: Application of Latham Excavation
Dear Commissioners:
June y 11.
a)
WY:
JUN 1 6 2011
DELIVERED BY:
We are writing to the Board to state our opposition to the permit application
of Latham Excavation to expand the mining operation at the mine off Johnson Road.
I spoke at the Board hearing on June 13, 2011 but my wife Karen preferred to
submit a written statement outlining our concerns and objections.
We purchased our home and farm from the Hamiltons in March of 2009. Our
property is located across Johnson Road and just northwest from the mine (just
west of and contiguous to the Triplett property). We are located close enough to
hear equipment operating at the mine, hear the heavy trucks travel Johnson Road
and see any dust plumes generated by the mining activity.
When we considered buying our farm we did considerable due diligence
concerning the mine. I reviewed hundreds of pages of documents available on the
County's website regarding the history of the mine , the scope of its entitlements
and the hearings and minutes pertaining to Latham's earlier applications. In
addition I spoke with the County's planning department's project manager for this
site on more than one occasion.
Based on our research and understanding of the scope of the approved
mining operation (eg only 25 of the 80 acres were designated for mining) we
decided to proceed with our purchase.
However, it is our understanding that Latham is now applying for a permit to
SIGNIFICANTLY expand the size and scope of the mining operation by excavating
the headwall and mining tumalo tuff. Even though we are owners only since 2009,
given Latham's intent to substantially change the mining operation and the impacts
this will have on the area in which our home and farm are located, we feel we are
entitled to be heard on this matter.
Specifically, our concerns with such an expanded mining operation are as
follows:
1. Increased equipment noise on site that can be heard in the surrounding
area, particularly early in the morning.
2. Increased generation of dust affecting the surrounding areas.
3. Increased heavy truck traffic going to and from the mine every day
starting very early in the morning that is i) loud and ii) dangerous to the
ever increasing number of cyclists that ride Johnson Road at all hours of
the day.
4. Increased permanent scarring of the land which is visible from our
property.
5. Concerns with Latham's commitment and willingness to consistently
perform the required reclamation and remediation processes and
procedures, day in and day out, year after year after year.
Therefore, we strongly urge the Board to require an updated ESEE to be
performed to thoroughly analyze the impacts of this substantially increased scope of
mining activities applied for by Latham Excavation.
Thank you for your time and attention on this matter.
Respectfully,
/(.......,„LA„.._ 6 ..--zi 5 5- ev1... ac.-!---._ ,
Skip and Karen Grossman
Oregon
John A. Kitzhaber, MD, Governor
June 15, 2011
Parks and Recreation Department
Tumalo Management Unit
62976 OB Riley Road
Bend, Oregon 97701
541-388-6055
RECEIVED FAX 541-388-6405
JUN 17 2011
Deschutes County CDD
Deschutes County Commissioners
c/o Paul Blikstad, Senior Planner
Deschutes County Community Development Department
117 NW Lafayette Ave.
Bend, OR 97701
RE: Latham Excavation/McClain Inv. LLC
Dear Deschutes County Commissioners:
Please consider this response as further comment regarding the public hearing held on
Monday, June 13, 2011, regarding Latham Excavation. This comment is made on behalf of
the Oregon Parks and Recreation Department (OPRD), specifically Tumalo Management
Unit and Tumalo State Park, which includes lands adjacent to Site No. 303.
OPRD supports and recommends that a new Economic, Social, Environmental and Energy
(ESEE) study be required of Latham Excavation. A new study would assess the dust, noise,
and visual impacts of their current and future operations, which have changed since the
original study was conducted by the previous landowner. Concerns over mining operations
were documented in OPRD's 1986 Tumalo State Park Master Plan and as recently as 2009's
public hearings regarding Latham Excavation.
OPRD appreciates the opportunity to again participate in the public comment process. Our
agency feels a new ESEE study would adequately assess Latham Excavation's current and
future mining operations and should be required before further consideration is made.
Respectfully submitted,
Susan Bethers
Park Manager
Tumalo Management Unit
(541) 388-6055 x23, susan.bethers@state.or.us
SCHWABE, WILLIAMSON & WYATT
ATTORNEYS AT LAW
Pacwest Center,1211 SW 5th Ave., Suite 1900, Portland, OR 972041 Phone 503.222.99811 Fax 503.796.29001 www.schwabe.com
THOMAS M. TRIPLETT
Admitted in Oregon
Direct Line: 503-796-2901
E -Mail: ttriplett@schwabe.eom
June 14, 2011
RECEIVED
JUN 17 2011
Mutes County CDD
Board of County Commissioners
Deschutes County
1300 N. W. Wall Street, #200
Bend, Oregon 97701-1960
Re: Remand Proceeding on MA-083,CU-07-102 and SP -07-46
(Latham Excavation Surface Mine Site No. 303)
Dear Ladies and Gentlemen:
This letter is written in opposition to the application of Latham Construction in the
referenced matter. Our property is to the north of the Latham site. It borders Johnson Market
Road as does the Latham property. Thus the perimeters of our properties are separated merely
by Johnson Market Road. The portion of my property proximate to that of the Latham property
is zoned as wild life; the balance is in EFU.
During the past two years there has been little activity at the Latham site. Perhaps that is
due to economy or the uncertainties surrounding its appeal. In any event, that interlude has been
blissful. Why because:
1. The beeping of vehicles backing up does not jar us out of bed;
2. The incessant rumble of trucks coming and going ceased;
3. Spillage of excavated materials onto my property abated; and
4. The plume of dust, sometimes rising several hundred feet into the atmosphere,
stopped.
Now it is my understanding that Latham not only wants to start again but expand its
operation. In addition to the real concerns experienced from their last foray into this farm and
residential community, there are additional ones:
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lL1t; 11ii'
Portland, OR 503.222.9981 Salem, OR 503,540.4262 i Bend, OR 541:749.4044 If. f t.Li N 1 7 2l! 1
kr
Seatue, WA 206.622.1711 1 Vancouver, WA 360.694.7551 1 Washington, DC 202.468_43 2 1
PDX/088044/033 786/IMT/T660079,1
Board of County Commissioners
June 14, 2011
Page 2
1. My grandson spends major parts of the summer with us. He has a serious asthma
problem that has hospitalized him several times. The plume, perhaps a carcinogen, likely would
have an adverse effect upon his lungs.
2. The noise will adversely affect migratory animals. In particular there is large herd
of deer; coveys of quail; gaggles of geese, etc. that migrate through and take refuge in this area.
3. Latham has not been a careful, meticulous, neighborhood friendly operator, as had
been Cascade Pumice.
4. The gouge in the headwall, clearly visible from the upper reaches of the State
Park and also my property, is more than merely unsightly.
5. We believe that the plans go well beyond the operation envisioned by the 1990
ESEE, i.e. no hill side excavations were contemplated; and substantially more limited acreage
was to be mined.
6. Given the drastic enhancement of traffic, the plans of the new school and of the
church could be significantly affected because of safety issues.
7. It is likely that even more Latham will not undergo prompt remediation Indeed
there are no iron clad guarantee that it will ever occur.
Bottom line: Before this list of horribles is visited upon this community, a new ESEE
should be conducted and the application denied pending the outcome of that process.
Ver -truly yours,
Thomas M. Triplett
TMT/bak
PDX/088044/0337861TMT/7660079.1
001,4
14 -ti
CASCADES
ACADEMY
OF CENTRAL OREGON
June 14, 2011
Tammy Baney
Deschutes County Commissioner
1300 NW Wall Street, Suite 200
Bend, 0R 97701
RE: LUBA Case No. 2009-062/Application nos. SP-07-46/CU-07-102 from Mark Latham Excavation, Inc.
Dear Ms. Baney,
On behalf of Cascades Academy of Central Oregon I am writing to express our opposition to the Land Use Board of
Appeals (LUBA) Case No. 2009-062/Application nos. SP-07-46/CU-07-102 from Mark Latham Excavation, Inc.
As you know, Cascades Academy has recently received approval to move forward with the construction of our new
campus in Tumalo near the location of the proposed Latham mining expansion. We expect to have over 200 students
and staff in the new building on a daily basis, and as such are dedicated to preserving the environmental quality of the
Tumalo community.
Although we have been aware of the existing mining activities in the area throughout our planning process, we have
concerns about Latham's intentions to expand surface mining near the school. We would like to request that a
complete Environmental Impact Statement be conducted to thoroughly examine all of the potential effects of this
proposed expansion.
Thank you for the opportunity to voice our concerns. Please do not hesitate to be in touch if we can provide any
additional clarification.
Sincerely,
Blair Jena s
Head of School
mimorvim
Experience exceptional learning.
2150 NE STUDIO ROAD • BEND, OREGON 97701
5411382-0699 • WWW.CASCADESACADEMY.ORG
[1HIIWI
5
al JUN 1 6 2011
BOARD OF COMMISSIONERS
ADMINISTRATION
RECEIVED
JUN 16 2011
Deschutes County CDD
Deschutes County Board of Commissioners
c/o Paul Blikstad, Community Development
Michael Van Waas
64274 Keith Court
Bend, OR 97701
15 June 2011
re: Conditional Use Permit and Site Plan for Mining Activities at Site No. 303 on Johnson Road (Latham
LUBA Remand)
During the Board meeting on 13 June 2011, I was registered to speak in regard to the above matter but
opted, with the Commission's approval, to submit written testimony instead. This is that testimony. It
concerns two major issues: The requirement for a new ESEE and site reclamation requirements.
ESEE
I would begin my testimony by referring to the testimony given at the hearing by Mr. White, the
attorney for Latham. Towards the end of his presentation to the Board he testified that Cascade
Pumice, the previous owner of the site, had never mined tuff commercially, had no customers for the
tuff and had had no interest in marketing it. He is absolutely correct in each of these statements and
they make the unassailable case that Latham has a fundamentally different business model and would
make a fundamentally new use of the site than any foreseen in the original ESEE. With roughly five times
the amount of minable tuff on the site compared to pumice, their proposed use of the site is also a
massively larger scale of operation compared to the pumice mining foreseen and expected by the
original ESEE. I'd like to thank Mr. White for so clearly and simply making a compelling case for
requiring a new ESEE. While there were other important, supporting reasons for a new ESEE in other
testimony given during the Board's meeting, just the points made by Mr. White are more than sufficient
cause for the Board to require a new ESEE.
Reclamation
Again I would start with Mr. White's testimony because of the subtle and straight-faced humor he
brought to this issue. He argued — and one would almost believe he was serious — that since the site was
out of compliance with existing reclamation requirements when they purchased the property, Latham
has no responsibility on that issue. Let's be clear: When Latham bought all the resources, they also
bought all the responsibilities — including reclamation. That in the years since the purchase Latham has
done nothing to comply with those requirements — and that DOGAMI has demonstrated no serious
interest in enforcement -- are telling signs of what we can expect in the future should the Commission
not address this issue head-on. I strongly urge the Commission adopt the following items regarding the
reclamation issue:
1) As a condition of, and prior to, for any commercial use of the site, that Latham prove
to the Board they are in full compliance with existing DOGAMI rules and regulations
regarding site reclamation on all parts of the site. The general idea here is a simple one:
Let's start with a clean slate (and a clean site) before moving forward . The Commission
should also make clear that "any commercial use" explicitly includes material storage as
well as any mining or site preparation activities.
2) As a condition for any ongoing commercial use of the site, l urge ifidtloa-ttirequire-.
Latham to comply with all DOGAMI regulations in effect at the time of approval. The
intent here is to make the reclamation requirements enforceable at the County level by
standard County procedures. Without County enforcement, and without some local
teeth behind reclamation requirements, the Board would only aid and abt Latham's
apparent intentional and deliberate flouting the legal requirements
Latham is explicitly asking the Commission to exempt them from the reclamation requirements they
knew about — or should have known about — when they bought the site. There is no basis in law and
fact for such a request. If it's not economic for Latham to comply with the requirements in place when
they bought the site, then they simply made a bad business decision. That's not the Board's problem,
and it's certainly not the basis for the granting of any waiver or exemption.
In conclusion, I'm not mindlessly against Latham's operation of that pit. When we bought our house in
the Tumalo Rim subdivision in 1989, the pit was there, we knew it was there and we knew (or should
have known) all the permitted uses of it. If Latham wants to continue to operate the pit under the
conditions it was originally approved for — including the ESEE and reclamation —they should be allowed
to do so. No question there. But by their own testimony that's not what they're intending. They are
planning on fundamental new uses of the pit and of the resources there, as well as a massive new scale
of operation on the site. I thus urge the Board to require a new ESEE and to adopt the two measures
outlined above to require Latham fully comply with existing reclamation requirements as part of such an
approval.
Sincerely,
�'"'• /fly
Mike Van Waas
Remand Hearing
Mark Latham Excavation
June 13 2011
I. Background for Site
• 1970s - Mining at site dates back to 1970s on eastern half of site (for river run aggregate)
and likely before that for pumice.
• 1979 - Site was zoned for surface mining.
• 1990 - Site was inventoried for pumice and zoned for surface mining in the County's Goal 5
process.
• 1996 - A site plan was approved on application of Cascade Pumice for mining the pumice.
• 2002 - Cascade Pumice starts mining pumice at the site
• 2007 - Cascade Pumice sells site to Mark Latham Excavation, Inc.
• 2007 — Latham Excavation submits site plan application and conditional use to allow
crushing on site. Revised application would not expand footprint from 1996 Cascade
Pumice approved site plan.
II. Regulatory Background for Surface Mines
• See findings for 2009 decision, pages 10-12
• Zoning for surface mining and protection of mineral and aggregate sources is governed by
Statewide Planning Goal 5. County's comprehensive plans must include protections for
mineral and aggregate sources in accordance with Goal 5.
• Division 16 of the Oregon Administrative Rules governed the Deschutes County Goal 5
process and provides the legal context within which the comprehensive plan decision-
making documents (commonly referred to by a short -hand designation as an "ESEE") for
each separate site. Goal 5 requires a multi -step process of inventorying mineral or
aggregate resources; identifying conflicting uses and resources; determining the Economic,
Social, Environmental and Energy consequences of allowing mining to proceed fully or
allowing the conflicting uses to proceed fully (without mining); deciding whether to allow
mining and to what extent; devising a "Program to Meet the Goal" by which regulations are
adopted to allow mining and to restrict conflicting uses. Most decisions in the County were
made to allow both the mining and conflicting uses to proceed, as limited by the provisions
of the SM zone (for mines) and the SMIA zone (for conflicting uses).
• Deschutes County's first attempt to obtain acknowledgement of its comprehensive plan for
surface mining sites was struck down by the Oregon Court of Appeals because it did not
protect mining sites from encroaching rural residential development.
• The Deschutes County Goal 5 Mineral and Aggregate element of its comprehensive plan was
adopted in July 1990 through a package of 4 ordinances, establishing: comp. plan goals and
1
policies; an Inventory; conflicts analysis and ESEE Decisions for each site on whether to
allow mining and to adopt a Program to Meet the Goal; and an ordinance adopting the SMI
zone and regulations and the SMIA zone and regulations.
• Site 303 in the County's inventory list is the subject site, and the County's decision in July
1990 was to allow for mining to proceed, to zone the site SM, and to apply the regulations in
the SM zone to mining operations. A Surface Mining Impact Area (SMIA) zone of %2 mile was
adopted surrounding the site to protect the mine from encroaching conflicting uses,
(primarily residences). The Program to Meet the Goal for this site was basically a generic
listing of conditions that applied the provisions of the Zoning Code to this site. No special
restrictions were adopted (other than a notation that special care be given to protecting
views from Tumalo State Park — but no performance standards other than those in the
ordinance were established). Processing (crushing) was specifically allowed at the site.
III. Issues on Remand
A. Does the ESEE Allow Mining of the Tumalo Tuff?
1990 ESEE for Site 303:
Conflicts identified, pp. 3-6
ESEE Consequences analyzed, pp. 6-8, 9-11
Decision/ Weighing of importance of mineral resource versus conflicting resources and uses, pp.
9, 11-12
Program to Meet Goal, p. 12
Stated in fairly generic, broad -brushed terms, with no quantification of degree of impact. Prior
mining noted, which served to lessen degree of impacts noted and focus on impacts of
expansion only.
Findings in 2009 Decision:
This issue is addressed in extensive findings on Pages 15-16 of the Board's 2009 Decision.
Legal Context:
OAR 660-0016-0010
"Based on the determination of the economic, social, environmental and energy consequences, a
jurisdiction must 'develop a program to achieve the goal'. Assuming there is adequate information on the
location, quality and quantity of the resource site as well as on the nature of the conflicting use and ESEE
2
consequences, a jurisdiction is expected to 'resolve' conflicts with specific sites in any of the following three
ways listed below...
(3) Limit Conflicting Uses: Based on the analysis of ESEE consequences, a jurisdiction may determine that
both the resource site and the conflicting use are important relative to each other, and that the ESEE
consequences should be balanced so as to allot the conflicting use but in a limited way so as to protect the
resource site to some desired extent. To implement this decision, the jurisdiction must designate with
certainty what uses and activities are allowed fully, what uses and activities are not allowed at all and
which uses are allowed conditionally, and what specific standards or limitations are placed on the
permitted and conditional uses and activities at each resource site. Whatever mechanisms are used, they
must be specific enough so that affected property owners are able to determine what uses and activities
ore allowed, not allowed, or allowed conditionally and under what clear and objective conditions or
standards. Reasons which support this decision must be presented in the comprehensive plan, and plan
and zone designations must be consistent with this decision."
Caselaw: Sanders v. Yamhill County, 34 Or LUBA 69 (1998)
Columbia Steel Castings Co. v. City of Portland, 314 Or 424 (1992)
An ESEE is only required to address the general nature and scope of the identified conflicts and
their interplay and it is sufficient if it contains enough information to permit the responsible
jurisdiction to have "reasons to explain why decisions are made for specific resource sites."
Important "Take -Away" Points:
• Goal 5 is aimed at providing protection to natural resources.
• Balancing of conflicts is based upon relative importance of site versus importance of
conflicting resources and uses (not a balancing of impacts per se)
• The rule requires analysis of resource sites (not specific resources)
• The ESEE analysis can be describe conflicts in general; detailed description of conflicts
was not required and in the case of the County's ESEE decision documents was not
made.
LUBA's Decision:
• Pages 14-20
• Inventoried amounts do not limit the amount of the inventoried material that may be
excavated, even if real amount is 2 million cu. yds versus that estimate of 750,000 cy
• Incidental mining of a different, non -inventoried mineral may be OK, where the
inventoried and non -inventoried resources are similar in use and value, means of
extraction and processing and the type and intensity of impacts are similar. Would the
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County have allowed for mining of the non -inventoried resource if it had known of the
quality and quantity of the non -inventoried resource?
• LUBA found that because the impacts were similar and the Tumalo Tuff was an overlying
layer, the County's went "part way" to establishing that the Tuff could be mined.
Because the findings did not specifically address the primary concern of the opponents —
visual and dust impacts of headwall —the findings were not adequate.
• In particular, LUBA noted that in Tight of the additional restrictions the Board put on
nearby sites 304 and 305/306, the Board might have opted for additional restrictions on
Site 303 had it know of the mining of the Tuff resource in addition to the Pumice
Resource.
• Latham Response:
o Board can make adequate findings here: Is not an issue of what evidence is in
this record (although that may help assuage your concerns about the decision
you make). Is a matter of what the Board knew at that time, given the general
description of the conflicts and the ESEE consequences of mining or not mining.
o The 1990 record for this site does not include any specifics as to exactly where
the resource is, how deep the resource is or exactly what method might be used
for mining. (In fact, the Board's findings assume that blasting would occur.)
Per the case law cited, no great detail was needed for the Board to make a
supportable decision.
o The record shows that the ESEE conditions for sites 303, 304 and 305/306 were
basically similar, starting with a set of basic, generic conditions. (See attached
ESEE excerpts for Sites 303, 304 and 305/306.)
o Site 304 was closest to the river — directly across O.B. Riley Road from the River.
The ESEE conditions didn't even include one requiring that dust be controlled.
The additional restrictions put on Site 304 were that no processing occur and
that the site be accessed at the northern edge (furthest from the park). These
were requested by State Parks (see Exhibit _).
o Site 305/306 backs up directly to the Tumalo Rim subdivision. The additional
ESEE restrictions for this site were restrictions on blasting and that there be a
one-year time limit for mining activities. The close proximity of the mine to the
subdivision explains the blasting restrictions; the one-year time limit on
operating was agreed -to by the operator (see Exhibit _).
o There was no request from State Parks that Site 303 not allow for processing (as
was the case with Site 304). Despite the far greater amount of material that
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would be excavated from Site 303 than from Site 304, State Parks requested the
same general screening requirements for Site 303 as it did for Site 304. There
was no concern expressed about what configuration the land might take after
mining.
o There was very little testimony on this site. None at the Planning Commission
(Exhibit _). Only 4 individuals at the Board. Only 2 of the 4 mentioned dust;
only one mentioned visual impacts on Tumalo State Park. There were two
letters in opposition. One mentioned visual impacts and dust; the other letter
from the Coalition for the Deschutes (mentioned as the primary letter in
opposition at the Board's decision meeting) did not even address this site
specifically ("of the wave of SM sites, we have had time to evaluate only sites
251, 278 and 453".) (Exhibit _, LUBA Record 3548).
o There has been far more opposition at these hearings on the site plan and
conditional use permits than at the ESEE stage.
o Given the lack of focused concern in 1990 on the issues mentioned by LUBA in
its decision, the Board should have no trouble making the findings that LUBA
requires.
• A new ESEE for just the Tumalo Tuff would have adverse impacts
o On the applicant, because of further delays and expenses. It is possible under
the Division 23 rules that no new ESEE could be approved until the intersection
at Highway 20 and O.B. Riley Road is improved.
o On the community, if it opens the door for challenges to other sites in the
County that have routinely mined non -inventoried resources, such as the
Tumalo Tuff. This could result in a shortage of commercial fill resources in the
community — the only site inventoried for such resource in the Bend area is the
Rose Pit, which is currently seeking to be zoned from Surface Mining to rural
residential. Other pits from which Tumalo Tuff is drawn for commercial fill are
the Robinson Pit off of Century Drive (now dosed for further mining); the
Pierrate Brothers (Able) pit and the Taylor NW Pit to the west of Shevlin Park.
• A new ESEE for just the Tumalo Tuff would not provide for greater protection of
conflicting resources and land uses:
o General scenic impacts are not addressed under the Division 23 rules;
o Scenic impacts on Oregon Scenic Waterways are measured at the water's edge
and not in the uplands associated with the Scenic Waterway; the river runs in a
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canyon through the most heavily used parts of the park and cannot be seen
from the water's edge.
• Staff reference to ESEE not covering the headwall is erroneous. (See argument on p. 5
of June 10, 2011 letter.) ESEE never mentioned term "headwall". Such position is
inconsistent with the balance of the findings on pp. 14-15 and Condition of Approval No.
23 in the 2009 decision.
B. Whether Supplied Screening is Required for the Hoffman #1 Dwelling:
Subject Provision: DCC 18.52.110(B)
Applicability: Only to Pre -July 1990 Dwellings (doesn't apply to Hoffman #2 Dwelling)
2009 Findings: pp. 22-23
LUBA's decision: pp. 33-35 (in particular, the discussion on page 34, lines 5-16 starting with
"the distinction the county is attempting to draw between natural topography and man-made
topography is hard to draw" and footnote 21).
Latham's Response:
o The only reasonable interpretation is that the topographical exception applies
equally in cases where there has been a "man-made" alteration of the topography
as to where the topography is completely natural.
o LUBA's footnote 21 states Latham's position; there is no possibility of screening the
headwall for two topographical reasons: the intervening ridge would make
screening ineffective; the height of the headwall would make screening ineffective.
C. Whether Supplied Screening is Required for Tumalo State Park and the Adjacent Pre -1990
Dwellings
Subject Provision: DCC 18.52.110(B)
Applicability: Only to Pre -July 1990 dwellings, (therefore doesn't apply to Aller replacement
dwelling)
Only to dwellings that are within Y2 mile of site (therefore doesn't apply
to Massey dwelling, possibly Kleine dwelling)
At most applies to only two dwellings, Scolman and Kleine (see Exhibits
to Table 1 to Bruce White letter).
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D. Compliance of piles of top soil with the Y4 -mile setback
Subject Provision: DCC 18.52.090(B)
Applicability: Only to Pre -July 1990 Dwellings (doesn't apply to Hoffman #2 Dwelling). Setbacks
at issue involve setbacks from Hoffman #1 dwelling and Todd dwelling to east.
2009 Findings: pp. 33-34
LUBA's decision: pp. 41-43
Latham Response:
o Address surface mines generally as dynamic sites
o Move topsoil pile within % mile of Hoffman No. 1 residence to a place outside the %
mile setback
o Seek exception under DCC 18.52.090(B)(1) and (2) for top soil pile placed by Cascade
Pumice within 1/4 -mile setback from Todd Residence, relative to size of the parcel
and physical constraints, to retain "existing vegetation" on the topsoil piles. Given
the existence of the pile and its already -vegetated state, no other location would
have less impact from a noise and dust standpoint.
o Confirm existing exception to allow stock piles within 1/4 -mile setback from houses to
south (see findings at p 34, third paragraph). Those findings are still valid.
E. Compliance with the incremental reclamation "requirement" in the ESEE's Program to
Meet the Goal
Subject Provision: ESEE Condition 23(e)
2009 Findings: pp. 26-27, p. 63
LUBA's decision: pp. 44-46
LUBA suggested that "we believe the County could write a condition requiring ongoing
incremental reclamation to expressly provide that DOGAMI is free to determine
whether ' ongoing incremental reclamation' is possible or desirable and DOGAMI may
modify or waive that requirement altogether in its permitting process DOGAMI sees fit."
Latham Response:
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o Agree with staff that the only reasonable response to this is to condition approval, as
suggested by LUBA. Applicant has suggested language in Bruce White's letter of June
10, 2011.
o Reasons for this are that only DOGAMI has the authority to regulate reclamation
activities.
o Avoids the County having to make judgment calls on when reclamation activities might
be required to begin, what reclamation activities are reasonable to require the applicant
to undertake, given the
o Recognizes that applicant is free to amend its reclamation plan with DOGAMI and that
trying to prescribe an incremental reclamation plan could run into conflicts with a
revised reclamation plan approved by DOGAMI.
F. Compliance with air quality standards regarding the headwall
G. Compliance with setbacks for the proposed northeast and southeast crushing sites
H. Compliance with screening requirements for the northeast and southeast crushing sites
I. Applicability: Only to Pre -July 1990 Dwellings (doesn't apply to Hoffman #2 Dwelling)
J. Whether
IV. Conclusion
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