HomeMy WebLinkAboutSurface Mine Site Release - KimbleDeschutes 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 May 14, 2008
Use "tab" to move between fields, and use as much space as necessary within each field. Do not leave any fields
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DATE: May 2, 2008
TO: Deschutes County Board of Commissioners
FROM: Chris Bedsaul
TITLE OF AGENDA ITEM:
Consideration of Signature for Document No. 2008-229 regarding a request by Harris Kimble and
CLR, Inc. for the release of a previously recorded "Development Agreement" for Surface Mine Site
294.
PUBLIC HEARING ON THIS DATE? NO.
BACKGROUND AND POLICY IMPLICATIONS:
The Development Agreement was required as a conditional of approval for SP -91-163 that approved
surface mining activities on a site called "Klippel Acres" or the Klippel Pit. The site is located on
Johnson Road, Tax Lot 817 on Assessors Map 17-11-13. Subsequently, mining activities ceased, the
site was reclaimed and the owner applied to rezone the property from Surface Mining to Rural
Residential. The Deschutes County Hearings Officer held a public hearing on July 24, 2007 for PA07-
2 and ZCO7-2 for a request by Harris Kimble to approve a Comprehensive Plan Map Amendment of the
property from Surface Mine to Rural Residential (Exception Area), Zone change of the subject property
from SM to RR -10 and removal of surface mining site number 294 from the Goal 5 Inventory —
Mineral and Aggregate.
The Board held a de novo public hearing on January 7, 2008 as required by DCC 22.28.030(C). The
Board approved the request and adopted Ordinance No.s 2008-001, 2008-006, 2008-009 and 2008-010.
The Ordinances were adopted by the Board on February 6, 2008 and the effective date of the signed
Ordinances was May 6, 2008.
There are no policy implications.
FISCAL IMPLICATIONS:
NONE.
RECOMMENDATION & ACTION REQUESTED:
The Board of County Commissioners approve and sign Document No. 2008-229
ATTENDANCE: Chris Bedsaul
DISTRIBUTION OF DOCUMENTS:
Copy of any signed Documents to Chris Bedsaul
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
May 2, 2008
To: Deschutes Board of County Commissioners
From: Chris Bedsaul, Associate Planner
Subject: Release of Recorded Development Agreement
Document No. 2008-229
Request: Harris Kimble and CLR, Inc. request a release from the terms and
conditions of a surface mining development agreement that has expired.
BACKGROUND
The Development Agreement was required as a conditional of approval for SP -91-163 that
approved surface mining activities on a site called "Klippel Acres" or the Klippel Pit. The site
is located on Johnson Road, Tax Lot 817 on Assessors Map 17-11-13. Subsequently,
mining activities ceased, the site was reclaimed and the owner applied to rezone the
property from Surface Mining to Rural Residential.
The Deschutes County Hearings Officer held a public hearing on July 24, 2007 for PA07-2
and ZCO7-2 for a request by Harris Kimble to approve a Comprehensive Plan Map
Amendment of the property from Surface Mine to Rural Residential (Exception Area), Zone
change of the subject property from SM to RR -10 and removal of surface mining site
number 294 from the Goal 5 Inventory — Mineral and Aggregate.
The Board held a de novo public hearing on January 7, 2008 as required by DCC
22.28.030(C). The Board approved the request and adopted Ordinance No.s 2008-001,
2008-006, 2008-009 and 2008-010. The Ordinances were adopted by the Board on
February 6, 2008 and the effective date of the signed Ordinances was May 6, 2008.
The adoption of the Ordinances by the Board impliedly made the previously recorded
development agreement no longer effective or necessary. All Surface Mining activity has
been terminated and full reclamation of the site was completed in 2005 in all areas where
the mineral resource existed and where mining was authorized by the permit. The property
owner will retain existing water rights on the property until September 27, 2010 in
accordance with permit Conditional Approval 1.E.
RECOMMENDATION
Staff recommends the Board approve the "Release of Recorded Development
Agreement" for SP -91-163 and sign Document No. 2008-229
Quality Services Performed with Pride
REVIEWED
LEGAL COUNSEL
After recording return to:
For Recording Stamp Only
Harris Kimble
63560 Johnson Market Road
Bend, OR 97701
RELEASE OF RECORDED DEVELOPMENT AGREEMENT.
DESCHUTES COUNTY, a political subdivision of the State of Oregon, releases that Development
Agreement recorded on July 26, 1993 in the Deschutes County deed records at book 306, page 1806
with the exception of Condition of Final Approval 1.E on page 4 of the Development Agreement. That
condition shall remain in full force and effect under the conditions of this release.
Consideration for this release: $0.
The above described development agreement was entered into between Deschutes County and CLR,
Inc. for the purpose of securing the completion of improvements and enforcing conditions of approval
directly related to surface mining activities on the encumbered property for Deschutes County permit
File Number SP -91-163. The surface mining activities authorized by that permit have been
completed, the property has been reclaimed and the zoning classification of the property has changed
to a zoning district that prohibits further mining of the site under the authority of SP -91-163. In order
to allow uses allowed under the current zoning classification to occur on the subject property, the
Board of County Commissioners ("Board") releases the subject property from all of the provisions of
the Development Agreement except Condition 1.E described above. Condition 1.E shall be released
without further action on the part of the Board or the property owner on September 27, 2010.
Dated this of , 2008 BOARD OF COUNTY COMMISSIONERS
ATTEST:
Recording Secretary
STATE OF OREGON
County of Deschutes
) ss.
DENNIS R. LUKE, CHAIR
TAMMY (BANEY) MELTON, VICE -CHAIR
MICHAEL M. DALY, COMMISSIONER
Before me, a Notary Public, personally appeared DENNIS R. LUKE, TAMMY (BANEY) MELTON, and
MICHAEL M. DALY and the above-named Board of County Commissioners of Deschutes County,
Oregon and acknowledged the foregoing instrument on behalf of Deschutes County, Oregon.
DATED this day of , 2008.
Notary Public for Oregon
My Commission Expires:
Document 2008-229 (5-14-08)
LIZ Fi4 NCYE1 , ATTORNEY
r,^R 2 0 2008
April 23, 2008
VIA HAND DELIVERY
KEVIN HARRISON
SENIOR PLANNER
DESCHUTES COUNTY
117 NW LAFAYETTE AVENUE
BEND, OREGON 97701
BY:
Liz Fancher
Kristen G Williams, Associate
Sue Stinson, Paralegal
&YIVED
I
APR 2 4 2008
DELIM BY:
Re: Surface Mine Site 294 - Tax Lots 817, 819, 820, 821, 822, 823, 824, 825, 826 and
827; Assessor's Map 17-11-13.
I am writing on behalf of my client, Harris Kimble to request a release from the terms
and conditions of a development agreement that has expired. CLR, Inc., an owner of a
part of the property bound by the development agreement, joins in this request.' The
agreement has expired because it is valid during the life of the land use permit. The land
use permit is no longer in effect and has been impliedly revoked by the County when it
recently rezoned the property. By the terms of the agreement, the agreement has expired
and may be released by the County. We discussed this matter in a meeting with you on
January 24, 2008. You suggested that I write you a letter that explains the request.
The land use permit in question is a site plan permit to operate a surface mine on
property formerly known as Surface Mine Site 294. The mining activity authorized by the
site plan permit has been completed in all areas of the site where mineral resources existed
and where mining was authorized by the permit. The site was been reclaimed to
DOGAMI standards by 2005. In 2008, the County applied a zoning and comprehensive
plan designation of Rural Residential/Goal Exception Area to the property at the request of
Mr. Kimble and CLR, Inc., the owners of Surface Mine Site 294. Under this set of
circumstances, no further mining under the authority of the permit is allowed.
The development agreement in question is a development agreement between
Deschutes County and CLR, Inc. that is dated July 14, 1993 (the "Agreement"). The
Agreement is recorded as document number 1993-025243 in book 306 at page 1806 of the
records of the Deschutes County Clerk. The Agreement was recorded on July 26, 1993. A
copy of the Agreement is enclosed with this letter as Exhibit B.
1 A copy of CLR, Inc.'s agreement to join in this request is enclosed with this letter as Exhibit A.
644 NW BROADWAY STREET • BEND, OREGON • 97701
PHONE: 541-385-3067 • FAX: 541-385-3076
— 2 — April 23, 2008
The Agreement accompanies a land use permit approval, SP -91-163 — an approval to
allow surface mining on at a site called "Klippel Acres" or the Klippel Pit located on
Johnson Road, Tax Lot 817 on Assessor's Map 17-11-13. Specifically, the scope of the
Agreement is limited to certain improvements required as conditions of approval of SP -
91 -163. The provision that authorizes a release is found on page 3 of the Agreement.
A release is appropriate for the following reasons:
1. The Agreement is limited in scope to directly relate to surface mining activities on
the property. As mining activities ceased in 2004, the property was reclaimed in 2005 and
the property has now been rezoned for rural residential uses, the Agreement is no longer
necessary.
2. The Agreement requires the property owners to file an application to rezone the
property after the site is reclaimed. This has been completed, as discussed above.
One condition of approval of the site plan approval was written to apply for a period of
five years after the conclusion of surface mining. This condition requires: "[t]hat water
rights stay on the property and be put to beneficial use for at least five years after the
surface mining operation." The surface mining operation ceased in 2004. DOGAMI
closed the file on September 27, 2005. Five years from the date that DOGAMI closed the
file will be September 27, 2010. Mr. Kimble is willing to agree that this condition of
approval remain in effect until September 27, 2010. This condition can be preserved by
the inclusion of language in the release of the Agreement that says that the property owner
remains bound by Condition of Approval 1.E. until September 27, 2010 but is released
from all other conditions of approval of the Agreement.
I have enclosed a sample release form that I prepared for signature by the Board of
Commissioners as Exhibit C. Please let me know if you need any additional information.
Please also advise me how this request will be reviewed, decided and the anticipated time-
line for doing so.
Thank you for your assistance in handling this matter.
Liz Fancher
Enc. — 3
Cc: Harris Kimble
CLR, Inc. c/o Jerry Curl
EXHIBIT .A
ACKNOWLEDGEMENT OF AGREEMENT TO REQUEST A RELEASE OF
RECORDED DEVELOPMENT AGREEMENT
CLR, Inc., an Oregon Corporation, by its secretary, agrees by signing below to authorize
Harris Kimble to request a release of the Development Agreement recorded on July 26,
1993 in Book 306 at Page 1806 of the records of the Deschutes County Clerk. CLR
understands that Condition of Final Approval 1.E may be released after all other
conditions have been released.
CLR, Inc. is the owner of Tax Lot 817 on Assessor's Map 17-11-13. This property was
approved for surface mining uses in Deschutes County permit File number SP -91-163.
The Development Agreement referenced above was entered into between Deschutes
County and CLR, Inc. for the purpose of securing the completion of improvements and
enforcing conditions of approval directly related to surface mining activities on the
encumbered property for Deschutes County permit File number SP -91-163. As surface
mining activity has ceased on the property and the property was recently changed so that
all of the property being mined is now designated Rural Residential/Goal Exception Area,
I request that the development agreement be released as requested by Harris Kimble.
CLR, INC.
BY:
Da e
EXHIBIT B
DEVELOPMENT AGREEMENT
'REVIEWED --
g tArk
LEGAL COUNSEL.
THIS AGREEMENT, made and entered into by and between
Deschutes County, a political subdivision of the State of
Oregon, hereinafter referred to as "County", and CLR, Inc.,
Owners, of certain real property described below as evidenced
by the Assignment and Conveyance, dated January 2, 1987, as
recorded in Volume 139, Page 1026, of Deschutes County Book
of Records, (hereinafter referred to as "Developer"), BEND
AGGREGATE and PAVING, Inc., an Oregon Corporation
(hereinafter referred to as "Operator").
WITNESSETH:
WHEREAS Developer is the Owner of certain real property
described in Exhibit "A", which is attached hereto, and by
this reference incorporated herein.
(hereinafter the Real Property.)
WHEREAS County has granted approval of a land use permit
SP -91-163 (hereinafter the land use permit for the
above-described real property ) upon the condition that
Developer construct and maintain certain requirements as
specified therein; now therefore,
IT IS HEREBY AGREED by and between the parties, for and in
consideration of the mutual covenants and agreements herein
as a condition precedent to the granting of final approval or
occupancy, as follows:
Scope of Agreement. This Agreement shall cover those
improvements required to be constructed as a condition of
approval of the above -referenced land use permit. Nothing in
DEVELOPMENT AGREEMENT - 1
26 MAY 1993
this Agreement shall require Developer to construct any
improvements under the land use permit, but if Developer
undertakes the construction of buildings, structures, earthen
berms or the division of real property under the land use
permit, Developer shall be required to complete and maintain
all improvements, as defined herein, in accordance with
applicable County Ordinances and land use application
approvals.
Definition of Improvement. As used herein, "improvement"
means any private or public facility or service such as
roadways, bike paths, accessways, pedestrian walkways,
landscape areas, sewage collection and disposal systems,
water systems, lighting systems, parking lots, cable
utilities, circulation areas, outdoor storage areas, service
and delivery areas, outdoor recreation areas, retaining
walls, signs and graphics, cut -and -fill areas, buffering and
screening measures, street furniture, drainage facilities, or
other similar improvements as approved and required in the
land use permit.
Definition of Permanent Maintenance. As used herein,
"permanent maintenance" generally means maintenance of the
structures, improvements, and landscaping that are the
subject of this Agreement in a manner that will keep such
structures, improvements, and landscaping in good repair or
good condition and in a condition that is not a hazard to
public safety. With respect to landscaping, Developer's
obligations shall include, without limitation, continued
irrigation of landscaping and, where applicable, pruning of
landscaping to guarantee required sight distances and to
otherwise protect against hazardous conditions. With respect
to drainage facilities, Developer's obligations shall
include, without limitation, periodic cleaning of drainage
ponds, drywells, or other drainage facilities of obstructions
or silt that would limit the performance or effectiveness of
drainage facilities. With respect to improvements, such as
pavement and sidewalks, Developer's obligations shall
include, without limitation, maintenance of the impervious
nature of impervious surfaces, maintenance of evenness of
surfaces so that such surfaces are not hazardous to the
operation of vehicles or use by pedestrians.
Construction and Permanent Maintenance. If Developer is
required under the land use permit to construct improvements
of any kind or to install landscaping or plantings and
Developer elects to proceed with development under the
permit, Developer agrees: (1) to undertake the construction
and landscaping required under the land use permit, as more
specifically set forth in the conditions set out herein and
in the land use permit; and, (2) in the event that this
Agreement and the land use permit do not expire as set forth
herein, to the permanent maintenance of required landscaping
and improvements.
DEVELOPMENT AGREEMENT - 2
26 MAY 1993
Enforcement. This Agreement shall be enforceable against any
person bound by this Agreement in possession of or having fee
title to the property. If any party bound by this Agreement
defaults on the obligations set forth herein, the County
shall be entitled to enforce this Agreement in equity. The
prevailing party at trial or on appeal in any enforcement
action shall be entitled to reasonable attorney fees and
costs. This provision shall not limit County's rights to use
other means provided by law, including but not limited to
issuing a civil citation, to enforce the conditions of the
land use permit.
Authority of Signatories. By their signatures, all
signatories to this Agreement signing in a representative
capacity certify that they are authorized to sign on behalf
of and bind their respective principals.
Expiration. This Agreement and the above -referenced land use
permit shall expire upon expiration of the land use permitor
by the revocation of the land use permit or by the explicit
release by the County from this Agreement granted as part of
an approval for a change of use of the Real Property.
No Partnership. County is not, by virtue of this Agreement,
a partner or joint venturer of Developer in connection with
activities carried on under this Agreement, and shall have no
obligation with respect to Developer's debts or any other
liabilities of each and every nature, and is not a guarantor
of the Developer, the project, or the work to be performed.
Limitations. Should this Agreement violate any
constitutional or statutory provision, it shall be void.
Persons Bound by Agreement. The original of this Agreement
shall be recorded with the Deschutes County Clerk and shall
run with the land. It is the intent of the parties that the
provisions of this Agreement shall be binding upon the
parties, their successors, heirs, executors, administrators,
and assigns, or any other party deriving any right, title or
interest or use in or to the Real Property, including any
person who holds such interests as security for the payment
on any obligation, including the Mortgagee or other secured
party in actual possession of the Real Property by
foreclosure or otherwise or any person taking title from such
security holder.
Conditions of Final Approval. The following are the required
conditions of final approval for SP -91-163:
1. Developer shall follow and meet all requirements of the
ESEE analysis for Site No. 294:
A. Allow surface mining activities in accordance with
the site operation plan, excluding a crushing
operation on-site.
DEVELOPMENT AGREEMENT - 3
26 MAY 1993
B. The hours of operation are restricted to 8:00 a.m.
to 5:00 p.m., excluding Saturdays, Sundays and
holidays.
C. That a winter closure plan be finalized by the
owner/operator and ODFW.
D. That DEQ noise standards be met.
E. That water rights stay on the' property and be put
to a beneficial use for at least five years after
the surface mining operation.
F. That excavation be limited to five acres at any one
time with concurrent reclamation.
G. That the slope on the reclaimed land be no more
than 5:1.
H. That the reclaimed land be graded to allow
irrigation.
I. That vegetative screening be supplied to the
greatest extent possible and in the best available
manner.
J. That Public Works be consulted regarding the
cumulative impacts on Johnson Road due to mining
activities on the site and other sites.
K. That a new access be constructed at the northwest
portion of the site.
2. Developer shall meet the following requirements of the
County Public Works Department.
A. Developer shall obtain an access permit for their
point of access on Johnson Road.
B. The access to Johnson Road shall be north of the
bridge on Johnson Road located in the northeast
corner of Township 17 East, Range 11 South, Section
14.
C. The haul road leading from the site to Johnson Road
shall be paved with a dust free surface for a
distance of 200 feet from Johnson Road.
D. Developer shall clean up any resource material that
is spilled onto Johnson Road from trucks leaving
this mining site.
3. Developer shall cover all loaded trucks with a tarp
prior to entering Johnson Road.
DEVELOPMENT AGREEMENT - 4
26 MAY 1993
4. Developer shall keep a water truck on-site during mining
operations for control of fugitive dust along on-site
haul roads.
5. All dust and noise from the operation must meet DEQ and
EPA standards.
6. Developer shall determine the specific combination of
mitigation measures for reducing noise levels prior to
obtaining a use permit from Deschutes County.
7. Developer shall install "supplied" vegetative screening
along the southeastern corner of Area 1 as needed to
meet the screening standards described in Section
18.52.110 of the County Code. Vegetation that is
planted shall be six feet or higher and spaced no more
than six feet apart at the commencement of mining in
Area 1.
8. Developer shall request the issuance of a use permit
from the Planning Division prior to commencement of any
surface mining a activities when it has been determined
that all elements of the approved site plan required in
preparation for mining have been completed.- ESEE
conditions C, J and K and recommended Conditions No.
2(A), 2(C), 6, 7 and 14, 16 and 17 (items IV(C) and (D),
specifically) shall be met prior to issuance of the use
permit.
9. Developer shall submit a noise analysis prepared by a
qualified engineer within 60 days of commencing
excavation and hauling operations in Area a to
demonstrate that sound levels do not exceed DEQ
standards. Additional noise analysis for Area 1 shall
be submitted when reclamation occurs, if this does not
occur within the initial reporting period. Additional
noise analyses shall be submitted in a like manner when
excavation, hauling and reclamation activities commence
in Area 2.
10. Developer shall complete reclamation activities annually
for each area mined in accordance with the reclamation
plan approved by DOGAMI, and the applicable provisions
of the ESEE analysis.
11. Developer
operation
18.52.110
Deschutes
shall conduct all aspects of the mining
in conformance with the provisions of Section
(A -P), General Operations Standards, of the
County Code.
12. Developer shall remove all surface mining equipment and
related structures from the mining site within thirty
(30) days of completion of all mining and reclamation.
DEVELOPMENT AGREEMENT - 5
26 MAY 1993
13. Developer shall apply to Deschutes County to rezone the
subject property after the site has been reclaimed in
accordance with the reclamation plan approved by DOGAMI
and the County.
14. Developer shall sign and enter into a Development
Agreement with Deschutes County to ensure that all
elements of the site plan shall be implemented, and
conducted as approved. This Development Agreement shall
be approved by County Counsel and recorded with the
County Clerk prior to issuance of the use permit.
15. If the Hamper well is impacted by declining water levels
or reduced yield, the applicant shall be required to
mitigate the impact by either deepening the well,
upgrading the pump or connecting said residence to the
community water system.
16. Developer shall enter into a Road Maintenance Agreement
prior to the issuance of a use permit in a form mutually
acceptable to the developer and Public Works to address
that portion of Johnson. Road north of the site to the
Developer's processing plant in Tumalo.
17. Developer shall implement and follow the Klippel Acres
Wildlife Mitigation Plan prepared by Glenn R. Adams
which has been accepted by ODFW.
18. A screening operation will not be permitted on-site.
19. All truck traffic exiting the site carrying aggregate
materials will travel north on Johnson Road to Tumalo
for processing at Developer's processing plant.
20. Developer shall operate in conformance with its site
plan application including its transportation component
except as specifically modified by these conditions of
approval.
DEVELOPMENT AGREEMENT - 6
26 MAY 1993
DATED this i4#; day o
ATTEST:
Secr tary
, 1993.
BOARD OCOUNTY COMMISSIONERS OF
DESCHUT COUNTY, OREGON
NANCY POP
GEN, Commissi '' er
4447clata--
BARRY H. SLAUGHTER, Chairman
STATE OF OREGON, County of Deschutes: ss.
Before me, a Notary Public personally appeared TOM THROOP,
NANCY POPE SCHLANGEN, and BARRY H. SLAUGHTER, the above named Board
of County Commissioners of Deschutes County, Oregon, and
acknowledged the foregoing ins ument on behalf of Deschutes
County, Oregon, this/iii day of , 1993.
OFFICIA SEAL
ANITA MUTCHIE
NOTARY PUBLIC -OREGON
COMMISSION NO. 023846
MY COMMISSION EXPIRES APRIL 18, 1997 1
DEVELOPMENT AGREEMENT -
26 MAY 1993
7
/z,
Notary Public for Oregon
My Commission Expires:
DATED this / 414day of
, 1993.
CLR, Inc., an Oregon Corporation
BY:
J
S M. CURL, President
STATE of Oregon, County of Deschutes: ss.
On this /Aire day of 1993, before me, the
undersigned, a Notary Public i and for said County and State,
personally appeared the within named JAMES M. CURL, President, who
is known to me to be the identical individual described in and who
executed the within instrument and acknowledged to me that he
executed the same freely and voluntarily on behalf of CLR, Inc.,
an Oregon Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal the day and year last above written.
DEVELOPMENT AGREEMENT - 8
26 MAY 1993
621e-yL,/
Notary Public for
My Commission Expires:
t : „ OFFIC`AL SEAL
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