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Home My WebLink AboutOrdinance 002 - Bend UGBDeschutes County Board of Commission( rs 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 February 11, 2009 Please see directions for completing this document on the next page. DATE: January 27, 2009 FROM: Peter Gutowsky Community Development Department 385 -1709 TITLE OF AGENDA ITEM: Consideration of Second Reading, by title only, and Adoption of Ordinance Nos. 2009 -001 and 2009- 002, regarding amendments to the City of Bend Urban Growth Boundary. PUBLIC HEARING ON THIS DATE? No. BACKGROUND AND POLICY IMPLICATIONS: Bend City Council and the Board held a joint public hearing on November 24, 2008 to consider amendments to Bend's UGB. Bend City Council completed their responsibilities for amending the UGB by deliberating and holding a first and second reading of their ordinances on December 22, 2008 and January 5, 2009 respectively. On January 26, the Board deliberated and initiated a first reading by title only of County Ordinances Nos. 2009 -001 and 2009 -002. A second reading of the two ordinances is now scheduled for February 11. Once the Board adopts those two ordinances, County staff will work with the City to forward the necessary materials to the Oregon Department of Land Conservation and Development for formal acknowledgement. FISCAL IMPLICATIONS: Upon adoption by the Board, the effective date of Ordinances Nos. 2009 -001 and 2009 -002 shall be the date the County receives formal acknowledgement of these two ordinancs by the Oregon Department of Land Conservation and Development in accordance with ORS 197.628 to 197.650. RECOMMENDATION & ACTION REQUESTED: Conduct a second reading and adopt Ordinance Nos. 2009 -001 and 2009 -002. ATTENDANCE: Peter Gutowsky, Legal Counsel and City of Bend Staff. DISTRIBUTION OF DOCUMENTS: Peter Gutowsky, CDD. Please forward, with Board signatures, scanned (pdf) versions of Ordinance No. 2009 -001 and Exhibi s B and C; and Ordinance No. 2009 -002 and Exhibit B. All three exhibits are maps illustrating the Ben( UGB. Each contains a place for Board signatures. Community Development Department MIEM Planning Division Building Safety Division Environmental Heath Division 117 NW Lafayette Avenue Bend Oregon 97701 -1925 (541)388 -6575 FAX (541)385 -1764 http://www.co.deschutes.o-.us/cdd/ MEMORANDUM DATE: January 15, 2009 TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Appeal of Hearings Officer's decision on CU -07 -102, SP -07 -46 (MA -08 -3, MA 08-4); also file nos. A- 08 -14, A- 08 -20, for Latham Excavation This memo is a supplement to the memo I sent to you on October 30th. This is intended to give an overview of the main issues that staff sees are involved in the Latham appeals. • What constitutes a noise and dust sensitive use: The Hearings Officer determined that the entire area of adjacent properties that are within they half -mile radius constitute a noise and dust sensitive use. We as staff have consistently interpreted the code such that dwellings are noise and dust sensitive uses (or the other use.; listed in the definitions — churches, hospitals, libraries, etc.), not the areas around them. WE! think this is the correct interpretation of the code, and what was intended when the ordinance was originally adopted in 1990. • Whether the expansion of the proposed surface mine operation requires a revised ESEE (Environmental, Social, Economic and Energy) analysis by the County, through a plan amendment; The Hearings Officer found that the proposed expanded operation did not require a revised ESEE analysis. Her findings on this issue are listed on pages 6 -7 of the decision. The last paragraph of the findings on this issue states: "In sum, there is nothing in the adopted Goal 5 program for mining, the Site 303 Program or the SM Ordinance provisions that prohibit the submittal of an application to mine pumice and Tumalo Tuff at the site." • Whether the use of the term "processing" in the ESEE analysis (at site 303 as well as numerous other sites in the County) was intended to allow crushing; The Hearings Officer found that the use of the term processing for site 303 did allow crushing Her findings on this are on pages 10 -11 of the decision. Staff believes this is consistent with prior surface mining decisions, and is also consistent with how this same language was used it i Board Memo — Latham Excavation Page 1 of 4 Quality Services Performed with Pride the ESEE findings for other mining sites in the county. Additionally, the definition of processing in Title 18 (county zoning) includes "crushing." • The degree of protection to be afforded under the visual screening standards of the code and the manner in which the topographical exception should be applied; The ESEE analysis does list Tumalo State Park for protection. In the analysis, the "Program to Meet the Goal" (page 12), the ESEE states: "23. The Board finds that in order to protect both the aggregate resource and the conflicting, resources and uses, the site on top of the plateau will be zoned for surface mining, subject to the following ESEE conditions: (b) Noise and visual impacts shall be mitigated by buffering and screening, with particular attention paid to screening from Tumalo State Park or the eastern northeastern and southeastern boundaries." The primary issue is whether the "headwall" that has been produced at the site should or shoulc not be allowed, based on the perceived impacts to the Park, and surrounding lands (see condition no. 17). Staff is not sure what was meant to be protected for the "eastern northeastern and southeastern boundaries" other than possibly the dwellings that were in place in 1990. As staff has previously stated to the Board, the headwall is visible only from the upper trail at the park. It is not visible from the day use or overnight camping areas, where staff believes the majority of the park use occurs. The other screening issue is the requirement that the applicant establish either a berm or vegetative buffer on the northern 100 feet of the property to buffer the Hoffman property from the mining activity (condition no. 12). The Hearings Officer states on page 20 of the decisior the following: "However, the hearings officer concludes that the processing activities, equipment and excavated south wall are visible from the Hoffman property, and that supplied screening and berming along the north boundary is feasible and appropriate to ensure that views from the Hoffman's property are protected. A condition of approval is warranted to ensure that a berm is installed and supplied screening is planted within the setback to screen the site from the Hoffman property." • Where the proposed crushers and washer (if allowed) should be located on the site. The Hearings Officer required that the crushers, as well as the washer (see footnote 10 on page 13 for the washer), should be located in the southwestern site as depicted on the applicant's site plan (this was staff's recommendation also). The three locations were pointed out to the Board at the work session yesterday. The Hearings Officer's findings on this issue are located or pages 13 -14 of the decision (also see condition no. 9). The decision states on page 14: "The hearings officer therefore finds that because there is a location on the site that minimizes the impact of noise and dust from the crusher, that site is the mosi appropriate location for the activity. Accordingly, the hearings officer imposes Board Memo — Latham Excavation Page 2of4 condition of approval limiting the location of the crusher to the southwestern site, depicted on the applicant's aerial overlay and contours, dated February 18, 2008." • Reclamation of the site. Whether incremental reclamation is required and whether the County has any authoritative role in the reclamation. Both staff and DOGAMI believe that the reclamation of the site is under the authority of the State. The zoning ordinance requires that the reclamation plan be submitted with the application, which the applicant submitted. Whether incremental reclamation is required is up to the State. The applicant has State approval for the mine, including reclamation. The Hearings Officer's decision has no conditions related to reclamation. The decision states on page 30 the following: "Even if DOGAMI exempts certain areas within the site from reclamation, the site as a whole is subject to DOGAMI control. The only role the county has in that case is to ensure that the reclamation plan proposes an ultimate use that is consistent with the county's post - reclamation plans for the site. Here, the site is planned and zoned fa- surface mining, and no post- mining use of the site has been identified. The proposal is consistent with those designations and the reclamation plan." • Dust abatement at the site. The hearings produced much testimony on the amount of dust produced from the site. During the hearings process the applicant applied hydro -mulch to some of the open areas on the site, specifically to the eastern portion of the site where there is no current mining activity (nor is any proposed there). The hydro - mulching appeared to be a very good way to control dust at the site. Prior to the application of this material, dust appears to have been a substantial problem a; the site, as evidenced by the numerous testimony from neighbors and pictures submitted into the record by property owners in the area. The Hearings Officer, under condition no. 7, includes item b, which states: "application the (sic) dust - supressant and /or sealant products that meet State regulations." Staff believes that this condition could be "beefed up" by actually putting in the condition the requirement that the exposed areas, including that portion of the headwall not being mined all be treated with the hydro - mulch. Staff believes that anything that can reduce dust and the complaints from neighbors is needed in this application. Dust is a major issue for this and well as any other mine. Also in the record is a letter from the Oregon Department of Environmental Quality dated June 2, 2008. The last sentence of this letter states: "Therefore, the Department, while recognizing that dust from the site could be are unpleasant nuisance to nearby residents, has concluded that it is very unlikely to pose significant threat to the health of these residents." • Impacts to the ground water supply (aquifer) in the area. The neighbors were concerned about the possible contamination of the ground water supply in this area from the mining operation. The main concern appeared to be directed at contamination from possible spills at the site (such as fuel or other chemicals from the minin! 1 activities) on the well for the Tumalo Rim Subdivision. The applicant submitted evidence of an Emergency Response Plan for the operation, which was attached as an exhibit to they modification submittal, and included as a condition of approval (see condition no. 8) of tilt! decision. Based upon that plan and the recent comments staff received verbally from Wate Resources (Kyle Gorman), there should be adequate protection for the ground water source. Board Memo — Latham Excavation Page 3 of 4 • Additional traffic impacts (including noise) from more trucks coming to and leaving the site, and insufficient sight distance at the intersection of the entrance road and Johnson Road. Staff notes that both the County Road Department and the County Transportation Planne- recommended that no improvements to Johnson Road were necessary. The notice of appeal from Paul Dewey also lists as an alleged error in the decision any analysis and mitigation of the Highway 20 /O.B. Riley /Cook Avenue intersection. This intersection was not addressed in the Hearings Officer's decision. The Hearings Officer addressed the noise from the trucks on page 23. The finding states: "The noise measurements exclude warning devices not operating continuously for more than five minutes, or sounds created by the tires or motor used to propel any road vehicle complying with the standards for road vehicles. OAR 340 - 035 - 0035(4)." Board Memo — Latham Excavation Page 4of4 For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Repealing Title 19, Bend Urban Growth Area Zoning, of the Deschutes County Code and Adopting a New Title 19 * * ORDINANCE NO. 2009 -002 WHEREAS, on this same date, the Board of County Commissioners ( "Board ") adopted Ordinance 2009 -001 amending DCC Title 23 to expand the City of Bend ( "Bend ") Urban Growth Boundary ( "UGB ") and create new plan designations for the UGB; and WHEREAS, the proposed amendments to DCC Title 19 are necessary to implement the changes to DCC Title 23 regarding the Bend UGB; and WHEREAS, the changes to DCC Title 19 are numerous necessitating the repeal of the existing Title 19 and adoption of a completely new Title 19; and WHEREAS, the Deschutes County Planning Commission held joint public hearings with the Bend Planning Commission on July 26, August 6, and August 23, 2007 and, on November 13, 2008, forwarded to the Board a recommendation of approval of the proposed zoning map and text amendments with a few proposed alterations; and WHEREAS, the Board considered this matter after a joint public hearing with the Bend City Council on November 24, 2008 and concluded that the public will benefit from changes to the zoning regulations; and WHEREAS, given the number of parties involved and the uncertainty at this time that the State of Oregon will acknowledge the UGB proposal, it is in the public interest and welfare to make this ordinance not effective until state acknowledgment in accordance with ORS 197.628 to 197.650; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. REPEAL. DCC Title 19, is repealed. Section 2. ADOPTION. The provisions of DCC Title 19, attached as Exhibit "A," and incorporated by reference herein, are enacted and made part of the Deschutes County Code. Section 3. AMENDMENT. DCC 19, Bend Urban Growth Area Zoning map is amended, designating the zoning designations for the land within the new UGB boundary as shown in Exhibit `B," attached and reference incorporated herein. Section 4. FINDINGS. The Board adopts as its findings Exhibit "D," attached to Ordinance 2009- 001 and incorporated by reference herein. PAGE 1 OF 2 - ORDINANCE NO. 2009-002 (1/26/2009) Section 5. EFFECTIVE DATE. The effective date of this ordinance shall be the date the County receives formal acknowledgement of this ordinance by the Oregon Department of Land Conservation and Development in accordance with ORS 197.628 to 197.650. Dated this of , 2009 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: TAMMY BANEY , CHAIR DENNIS R. LUKE, VICE CHAIR Recording Secretary ALAN UNGER, COMMISSIONER Date of 1St Reading: day of , 2009. Date of 2nd Reading: day of , 2009. Record of Adoption Vote Commissioner Tammy Baney Dennis R. Luke Alan Unger Yes No Abstained Excused Effective date: day of , 2009. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2009-002 (1/26/2009)