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HomeMy WebLinkAboutDecision - Mining Plan AmendmentDeschutes 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 September 1, 2010 Please see directions for completing this document on the next page. DATE: August 30, 2010 FROM: Paul Blikstad Department CDD Phone # 6554 TITLE OF AGENDA ITEM: Board consideration of signature of Document No. 2010-570, the Final Decision on a plan amendment and zone change from Exclusive Farm Use to Surface Mining for property in Millican. The applicant is 4-R Equipment. PUBLIC HEARING ON THIS DATE? No, the hearing has already been held. BACKGROUND AND POLICY IMPLICATIONS: The plan amendment and zone change applications were approved by the Board on the second remand for the Land Use Board of Appeals. The Board directed staff to write the decision, subject to Board review and approval. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: The Board sign the decision as written. ATTENDANCE: Paul Blikstad, CDD, and Laurie Craghead, County Legal Counsel DISTRIBUTION OF DOCUMENTS: Planning staff will take care of the required mailing of the Board's new decision. REVIEWED LEGAL COUNSEL For Recording Stamp Only DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS FILE NUMBERS: PA -04-8, ZC-04-6 APPLICANT/OWNER: 4-R Equipment, LLC PO Box 5006 Bend, OR 97708 AGENT: Robert S. Lovlien Bryant Lovlien & Jarvis, P.C. P.O. Box 880 Bend, OR 97709 REQUEST: A plan amendment and zone change for 365 acres from Exclusive Farm Use (EFU-HR) to Surface Mining (SM). STAFF CONTACT: Paul Blikstad, Senior Planner I. APPLICABLE CRITERIA: A. Title 18 of the Deschutes County Code (DCC), the Deschutes County Zoning Ordinance B. Title 22 of the DCC, the Development Procedures Ordinance C. Title 23 of the DCC, the Deschutes County Comprehensive Plan D. OAR 660 Division 23, Procedures and Requirements for Complying with Goal 5 E. OAR 660-012-0060, Plan and Land Use Regulation Amendments F. OAR 660-015, Statewide Planning Goals II. FINDINGS OF FACT: PROCEDURAL HISTORY: The procedural history for these applications was stated in the Board of County Commissioners' (hereinafter Board) two prior decisions. The Land Use Board of Appeals (LUBA) remanded the Board's most recent decision (dated October 1, 2008) on September 22, 2009 (Walker vs. Deschutes County and 4R Equipment, LLC, LUBA No. 2008-189). Page 1 of 6 — DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS PA -04-8, ZC-04-6 — DC Document No. 2010-570 The applicant submitted a letter to the County Planning Division requesting that the County start the remand proceedings; that letter was received by the County on June 17, 2010. The 90 -day period for a final decision required under ORS 215.435(1) is September 15, 2010. The County set a public hearing for Monday, July 19, 2010 pursuant to the LUBA remand order. The Planning Division mailed notice of the public hearing to all parties to the prior proceedings. The hearing was held before the Board. The Board left the written record open for all parties to July 23, 2010, and gave the applicant until July 28, 2010 for rebuttal. Prior to the hearing letters were received from William Arras and Jeffrey Gray. At the hearing letters were received from Frankie Watson and Tammie and Clay Walker (the Walker letter was submitted into the record by Susan Gray). After the hearing, letters were received from Minerva Soucie, and Keith and Janet Nash. The Board of County Commissioners then announced its decision approving the plan amendment and zone change on August 4, 2010. The Board hereby makes the following findings of fact with respect to the assignments of error that were sustained by LUBA in Walker vs. Deschutes County, et al.: 1. Evans Well Ranch. In the 2008-189 case, LUBA concluded as follows: "* * * The County's failure to appreciate that there are Evans Well Ranch grazing allotments in the vicinity other than the adjacent 40 -acre allotment, such as the Flat Pasture area with its water source, means that the county's determination regarding the size of the impact area is flawed. Remand is necessary for the county to consider all relevant evidence regarding all Evans Well Ranch grazing allotments that are in the vicinity and potentially affected by the proposed mining operation, and to determine the size of the impact area based on whether "factual information indicates significant potential conflicts" with grazing on those allotments." Additionally, at the hearing, Petitioners speculated that if mining operations impacted sensitive grouse populations, the Bureau of Land Management (BLM) could restrict grazing on the ranchers' allotments in the area. The Board concludes that there will be no significant potential conflict with the Evans Well Ranch or its grazing allotments on the BLM property adjacent to the proposed mining site, including the Flat Pasture grazing allotment west of the proposed mining site. The Board finds that the written report and oral testimony submitted by Roger Borine, the applicant's consultant, sufficiently demonstrates that the proposed mining operation, including blasting, will not impact to any great extent the cattle grazing on the Flat Pasture allotment,' or that other impacts of the proposed mining would cause cattle on that allotment to abandon the Flat Pasture and instead graze more heavily on privately owned pastures on the ranch itself, outside the impact area. The Borine agricultural report has the following conclusions on page 6 of the report: ' The report by Roger Borine indicates the Flat Pasture allotment is approximately 5,010 acres in size (or 7.3 square miles). Page 2 of 6 — DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS PA -04-8, ZC-04-6 — DC Document No. 2010-570 "The Flat Pasture is determined to be the "impact area." It is the only pasture in the Horse Ridge Allotment that shares a common boundary with the SWM (Spencer Wells Mine) and is approximately 5,010 acres or 7.3 square miles in size. The five remaining pastures are over two air miles from the Spencer Well Mine. The optimal period for grazing annual and perennial grasses by livestock near the Spencer Well Mine is in late March, April, May and early June. Mining operations will occur during the months of November -February. No ranching management practices in the northeast portion of the impact area were identified to attract and evenly distribute cattle and promote proper plant utilization. The occurrence of cattle near the Spencer Well Mine while in operation would be highly unlikely and only incidental. Blasting and crushing operations are well within existing decibel levels now occurring within the impact area. "All relevant evidence...." to the impact area that may impact a ranching operation, and specifically the mining operation, was identified and assessed for its potential impact. This analysis determined and supports the conclusion that the Spencer Well Mine will not impact the Evans Well Ranch operations. It addition, the Spencer Well Mine will not create noise or disturbance over and above already existing conditions on the cattle and the cattle operation." The Board finds that the Borine report is sufficient evidence that no significant impacts of the mine will reach the remaining pastures and that there will not be an impact from the mine on either the ranch itself, or on any of the related grazing allotments on the BLM land in the vicinity of the mine. Despite the Nashes stating in their letter that the actual graze runs longer, the Board finds the statement by Mr. Borine that the allotment is currently not for that longer time period to be credible. Given that the mining operations will occur during the months of November -February, the Board finds that the timing of allotted grazing on BLM land versus the mining operations, significantly minimizes, if not eliminates, the impacts between the grazing and the mining operations. Therefore, the original one-half mile impact area chosen by the Board is still the appropriate impact area. As a result, the Board finds the testimony and report by Mr. Borine to be more persuasive than the Nash's comments as to the potential impact to cattle grazing in the area, and specifically on the Flat Pasture Allotment. Based upon the size of the Evans Wells Ranch BLM grazing allotment, the location of the grazing allotment, and the evidence from a similar mining site, the Board concludes that the proposed mining would not result in a "significant potential conflict" with respect to the Evans Wells Ranch grazing allotment and the operation of the ranch. The Board also reiterates and incorporates by reference herein its findings in the prior decisions on this same application. Those decisions include findings on conflicts between mining operations and agricultural activities as follows: "The Board concludes that the proposed use is separated from the BLM allotment by the Spencer Wells Road. The Board concludes the proposed use will not force a significant change in accepted farming practices in the area. The proposed use will not significantly increase the cost of these accepted farm practices. The existing Spencer Wells Road and the buffering would minimize any conflicts to these agricultural practices." Page 3 of 6 — DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS PA -04-8, ZC-04-6 — DC Document No. 2010-570 The Board will require that the applicant coordinate the proposed blasting operations with the Evans Well Ranch grazing allotments, specifically for grazing occurring within one-half mile of the mining site. The purpose being to reduce any conflicts with cattle grazing on the Flat Pasture area within one-half mile of the mine. The Board finds that the issues raised in the Arras, Watson, Gray, and Soucie letters have been previously addressed in the Board's prior decisions, and need not be repeated here because those issues were raised on appeal to LUBA by the Walkers and LUBA denied those assignments of error, and those denials were not appealed. Those denied issues cannot be addressed again in this decision. IV. CONCLUSION: The Board hereby approves the plan amendment and zone change in File No. PA -04-8 and ZC-04-6, subject to the following: 1. The Applicant must meet the general operation standards set forth DCC Section 18.52.110. See Exhibit "I" to the application submittal. 2. The Applicant shall conduct the following mitigation: a. "Blasting and crushing will cease during periods of severe winter weather conditions that may force antelope with no alternative winter range into the area adjacent to the rock pit. b. The applicant will allow the Oregon Department of Fish and Wildlife District Biologist (ODFWDB) onsite to monitor severe winter conditions based on snow depth, temperature, and numbers of antelope within 2 miles of the rock pit. c. Upon ODFWDB notification to the applicant when cessation of crushing and blasting is deemed necessary by the ODFWDB due to antelope winter range conditions, the application will cease blasting and crushing as necessary within 24 hrs. of the ODFWDB notice d. The applicant may choose to remove crushing equipment if crushing/blasting cessation is necessary, and this removal will take up to two weeks from the date of notice of cessation." 3. Any fencing of the project must be wildlife friendly fencing that would allow an antelope to pass under the fence with as little risk as possible and must be approved by ODF&W. a. The fencing shall be a three wire smooth wire fence or better with at least 18 inches from the ground to the bottom wire. b. There would be a maximum of 42 inches from the ground to the top wire. 4. The reclamation plan will include replanting with native grasses and shrubs. a. Each year, the Applicant must treat any noxious weeds that might invade the site work. b. The Applicant must work with the Deschutes County Weed Board and adhere to the Weed Board's requirements for eradication of noxious weeds. 5. A 600 -foot setback shall be maintained along U.S. Highway 20, the entire length of the project. a. All mining activities shall be set back 200 -foot from Deschutes County Road No. 23. Page 4 of 6 — DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS PA -04-8, ZC-04-6 — DC Document No. 2010-570 b. A natural area and buffer of between 100 foot and 250 feet shall be maintained along the south and east sides of the property. 6. All access roads into the property shall be asphalt, and all internal roads shall be paved up to the mining site. 7. Any structures on the property shall be limited to a truck scale, scale control building and well head building. 8. Prior to any mining activities, the applicant shall acquire a water right to provide a pond and water storage, with a pump, to provide for dust control during the excavation and processing of materials on-site, and the water shall be used to provide dust control during the excavation and processing of materials. 9. Beginning with the second stage of mining, the on-site crushing shall occur below grade. 10. Any berms to be located on the property shall: a. not exceed 15 feet in height, b. shall be used to store material for future reclamation, and c. shall be sprinkled with water to reduce dust. 11. Any utility lines on the property shall be underground utility lines. 12. No mining or excavation shall occur within the designated flood plain unless otherwise approved through a conditional use permit process. 13. The property will be reclaimed in its natural state in accordance with an operating and reclamation plan to be approved by DOGAMI. See Exhibit "H"to the application submittal, incorporated by reference herein . 14. Applicant shall comply with the regulations adopted by the Office of Surface Mining, U.S. Department of Interior, in order to determine the allowable particle velocity per foot for a residence. a. In addition, the Applicant's first shots will be kept small and monitored with a seismic device that reads particle velocity per foot. b. The Applicant will place the monitoring device off of the 4-R property line adjacent to U.S. Highway 20. c. Once Applicant has the seismic information on the initial blast, Applicant can adjust the blasts accordingly to insure that Applicant stays within these standards. 15. All lighting on the property shall conform to the lighting codes of the County and such lighting must be contained on the property. 16. Applicant shall restrict the access to the property to one road. 17. Based upon the Technical Memorandum prepared by William C.B. Gates, Ph.D., P.E., C.E.G. of Kleinfelder West, Inc. dated January 4, 2008, the Applicant shall install monitoring points at key areas around the mine site be required to monitor vibrations during blasting operations to insure that ground vibrations are within the safe limits established by the Office of Surface Mining; and, Page 5 of 6 — DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS PA -04-8, ZC-04-6 — DC Document No. 2010-570 18. Based upon the anemometer data collected by Kleinfelder, blasting will occur when the prevailing wind is blowing away from the Walker residence. 19. Based upon the discussions that some religious or cultural activities might have occurred in the past on the Walker residence, and based upon the Applicant's willingness to restrict certain activities on its property during any such religious or cultural activities, the Applicant shall restrict its blasting activities, upon prior written notification, of any cultural or religious activities that will occur on the Walker property. Any such restriction, however, shall not exceed three (3) days in duration. 20. The applicant shall coordinate blasting activities with the owner of the Evans Well Ranch, so that the grazing of cattle does not take place within one-half mile of the surface mining zone during blasting operations. DATED this Dated this ATTEST: day of _ , 2010. of , 2010 BOARD OF COUNTY COMMISSIONERS DENNIS R. LUKE, CHAIR ALAN UNGER, VICE CHAIR Recording Secretary TAMMY BANEY, COMMISSIONER Page 6 of 6 — DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS PA -04-8, ZC-04-6 — DC Document No. 2010-570