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Home My WebLink About2008-06-02 Business Meeting MinutesDeschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701 -1960 (541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JUNE 2, 2008 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Dennis R. Luke, Michael M Daly and Tammy Melton. Also present were Dave Kanner, County Administrator; Mark Pilliod, Steve Griffin and Laurie Craghead, Legal Counsel; Kevin Harrison, Catherine Morrow and Paul Blikstad, Community Development Department; Hillary Borrud of the Bulletin; and approximately twenty other citizens. Chair Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was a Public Hearing on a Remand from the Land Use Board of Appeals (LUBA) regarding Applications for Plan Amendment and Zone Change on 365 Acres from Exclusive Farm Use to Surface Mining (Horse Ridge — Applicant: 4 -R). Paul Blikstad read the opening statement and staff report into the record. In regard to ex parte contacts, etc. Commissioner Melton had none; Commissioner Daly said he has known the Robinsons for many years as they were in the same business. Commissioner Luke stated that the Board has had a work session on this issue and some comments have come in to the Board over a period of time. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 1 of 15 Pages Mr. Blikstad said that he received two letters this morning; one from Douglas DePriest who was the lead attorney for the Walkers. A lot of points were brought out in the letter. He also received a letter from the BLM discussing road issues and the sage grouse. This is new information. He proceeded to go over the assignments of errors from LUBA. There were twelve but not all were sustained by LUBA, so he discussed only the ones that have not been resolved. Assignment #2 addressed the sage grouse. A three page letter from Gary Hostick, a wildlife specialist, was provided; he is present today. Staff interpreted that no comments were received on this earlier. They are now saying that the sage grouse has the potential of being on the endangered species list and this area is on the fringe of the sage grouse habitat. Staff feels there is adequate space allowed and the map does not show flight patterns. The map is not from the comprehensive plan, but is from the BLM. The second sub - assignment of error regard cattle raising impacts, the impact from the mining work only affects less than 1% of the area. This is a huge grazing allotment and the area within 1/2 mile of the mining site is very small. LUBA and the Hearings Officer felt that this is dry land grazing, as there is no irrigated land in the area. Assignment #6 is in regard to Native American use of the area for ceremonies. One area is the Dry River Canyon, the Walker property and pictographs. He implies that there are activities on both sides of the highway. Ms. Craghead said that the record is not clear on whether this is the case. Ms. Blikstad stated that pages 5 through 8 of Mr. DePriest's letter talk about this but he is not clear on the areas; the thought is that quiet is needed for these ceremonies. However, the area is heavily used year -round by ATV's and other motor vehicles. The other concern is whether it is a conflicting use with Goal 5. Commissioner Daly asked if the archeological sites are impacted. Mr. Blikstad said that under Assignment #5, LUBA found there were no impacts. They are aware of the Native American concerns, however. Regarding vibration impacts on Coyote Well, Commissioner Luke asked if there is anything on the record as to whether this well has water in it. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 2 of 15 Pages The last sub - assignment of error under #6 was the Best shelter. Mr. DuPriest indicates that this dwelling was not approved by the County but should be considered an existing use. Mr. Blikstad stated that he tried to find the structure but could not; Mr. Loveland submitted the photograph. This property is across Spencer Wells Road from the subject property. The shelter is not on any historic list with the County. Assignment of error #8 regards impact on farming activities. Most of the farming in the areas is dry land grazing of cattle. Assignment of error #9 was in regard to shallow aquifer issues. The County interprets that this mining operation should not impact the aquifers. Mr. DuPriest's comment are opposite of the Kleinfelder report. The National Forest Service has submitted information in this regard. The last assignment of error, #12, was dust impacts to the Walker residence. Commissioner Luke said that this was addressed in the original hearing and he thought the mining operations would mitigate this. Mr. Blikstad stated that he does not know if this was addressed in regard to the blasting part. Kleinfelder did a month -long study of the winds in the area. Mr. Blikstad is not sure where Mr. DuPriest got his information. Chair Luke opened the public hearing at this time. Bob Lovlien, Bob Walker and Gary Hostick came before the Board. Mr. Lovlien presented oversized maps and the site plan, which shows significant setbacks. One shows the location of the site in relation to Spencer Wells Road. The second map shows the adjacent BLM allotment to the west of the subject property. The size of the allotment in relation to the size of the project is shown. There is also a forty -acre piece of property on the west side of the road that adds another buffer. Mr. Walker pointed out the property and roads on the map. Gary Hostick, a professional wildlife biologist for 37 years, said he was hired in 2007 to investigate wildlife issues in the area. He met with the Oregon Department of Fish & Wildlife and the Bureau of Land Management, who had concerns about four different species in the area. He responded in a letter to the LLTBA concerns. A lek is an area for male sage grouse to display, typically early in the morning and late in the evening. The female sage grouse may fly into this area to mate, then return to potential nesting sites. The flight path question, showing arrows, was just drawn in as a schematic; it doesn't mean that the sage grouse follow that particular path. Minutes of Board of Commissioners' Business Meeting Page 3 of 15 Pages Monday, June 2, 2008 Oregon Department of Fish & Wildlife staff asked him to check for pigmy rabbit burrows, and owl nest burrows. They have received a copy of his report. Another issue was the sage grouse being sensitive, but it is hard to be specific about the parameters. Probably the biggest concern is juniper encroachment on the sagebrush areas. There is also still a hunting season allowed for sage grouse, since they are not yet listed as endangered or threatened. They are considered a species of concern by the BLM. The ODF &W has it on its sensitive species listing. The last concern was the sensitive bird and mammal zone, and the County would need to respond to that. Probably the way the zone was arrived at was through the BLM. 4 -R has indicated a willingness to help with sage grouse in the area, and will work with ODF &W and local property owners. They will reroute a road on the 40 acres to avoid a lek, and have helped with the water guzzler in the area. He said that you can never mitigate 100% of the impacts when there is any kind of development. Some of the noxious weeds brought into the area could be coming in on recreational vehicles. Mr. Walker pointed out the Best shelter, which is about '/a mile off the road, in a small draw. It is closer to the highway than it is to Spencer Wells Road. Scott Wallace of Kleinfelder said that he was asked to look at some of the issues identified by LUBA. One was the potential impacts of blasting. A memo was submitted on January 4 addressing this concern. The nearest point was Coyote Well, about 2,500 feet, would be similar to a semi -truck passing by. Commissioner Luke asked if studies have been done on similar sites. Mr. Wallace stated there are a variety of studies considered. The work to be done in this area should not be a concern. In regard to the shallow perched aquifer, they look at work that was done in another area in 2004. There was no evidence of any flow into the mining area. The basaltic nature of the stone gave no indication of perched water or flow. Historically there was water in the well but it could hold drainage, and there could be infiltration from a variety of sources. On the opposite side of Highway 20 in Coyote Well there is some water present, but on the other side there is no evidence. The ground water and water in Coyote Well do not seem to be contiguous. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 4 of 15 Pages In regard to the implications of dust, beginning in November 2007 a small weather station was installed to monitor wind direction at the proposed site. Technical memos were submitted that summarize the wind data. The prevailing wind would be north/northeast. This was summarized on a quadrant basis. The data was recorded at five- minute intervals between November and May. Commissioner Luke asked for information regarding the velocity of the winds. Mr. Lovlien said that this has been monitored for a while, and today's information is a continuance of previously submitted information. Mr. Walker discussed Coyote Well in relation to the Walker residence. It is about 14 -20 feet deep, hand -dug, and is sometimes full of stagnant water. He is not sure of the quality of water. The dust can be controlled in this regard. The day of the shoot is the most critical. They may have to blast several times in a year. Seismographs would be used to measure, one at the highway and two at other locations. The proposed mining site in relation to the Walker residence is over a mile away. He is confident they can keep the dust down. Sprinklers can be put on the stock piles and the roads can be paved. They won't impact any more land than needed The BLM sent information on traffic impacts in the area. The company is willing to install turn lanes or whatever is deemed necessary for safety arsons. Mr. Lovlien talked about the religious and archeological issues. They were particularly careful to make sure there were none on the property. The company is doing a project near Pilot Butte and as a courtesy discontinues work if an event is occurring. They would do the same at the mining site. However, most events taking place would be much farther away. He presented a map that showed the setbacks, which would be from 200 to 600 feet. Other maps show the distances away from the sensitive structures and residences. These are the same maps that were submitted at earlier dates. He asked that the record be left open for fourteen days to allow further information to be submitted. Commissioner Melton asked how often the Native American events take place. There is no information in the record on this. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 5 of 15 Pages In regard to agricultural impacts, Mr. Lovlien said there is only one 40 -acre grazing allotment that abuts the property, out of 20,000 or more acres. This impact is very small. Cattle graze all the way up to Highway 20 and there is heavy truck traffic on that highway. Testimony was given that the highway is a big concern. The opponents' information does not match the information from ODOT, however. Tony Aceti stated that he is neutral on the subject. He has hauled hay into that area for many years. He is also pro - growth and believes this material may be processed in the Deschutes Junction area and wonders what areas this material will service. He feels that mitigation is important as well. There needs to be a balance between mitigation and fairness. The Nash family should not be restricted to a 360 -acre homesite. Commissioner Luke pointed out this is a separate land use issue and cannot be discussed at this time. Mr. Aceti said there is a fairness issue to be addressed. He said there is a connection between the mining site and Deschutes Junction. With the volume of material and traffic increase at Deschutes Junction, it will probably service all of the County. If this is more than an expanded rural industrial use, so some of the domino effects need to be fixed. He received a letter from Paul Blikstad and there is a list of thirty -four Code numbers to be addressed regarding the use of the Cascade Pumice yard. It appears that it will be approved administratively. He believes this impact from the material from the mining should require a look at Deschutes Junction. A perfect example is Tumalo, where Knife River is located. However, he doesn't have the money to go through the same process, so has to depend on the County to make the appropriate zone changes to accommodate those kinds of uses. Commissioner Luke said the question is where the rock to be processed at Deschutes Junction comes from, and whether it makes any difference. Mr. Aceti then discussed the number of truck trips per day, but again pointed out the impacts on Deschutes Junction. Commissioner Melton stated that there are two separate issues, the Millican mining site and Deschutes Junction. She said the Deschutes Junction area will be addressed in the comprehensive plan update. It might not be quick but it will be a thorough process. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 6 of 15 Pages Mr. Aceti suggested an acceleration lane for the truck traffic. Commissioner Luke stated that ODOT will likely comment on those types of needs. Janice and Keith Nash came before the Board. Ms. Nash said that she was not aware it was a limited de novo hearing. She asked that the record be left open for at least 14 days. She said she did not address the sage grouse issue in the remand to LUBA. They relied on BLM and the Oregon Department of Fish & Wildlife. The letter issued was a form letter and does not address the issue specifically. She understands the maps show movement patterns. Another map shows specific sites where birds are located. There is a limited hunting season. The lek is significant because that is how activity is monitored. There are other unidentified leks in the area. She added that BLM needs to comment but won't. The word "sensitive" is a legal listing. Regarding Native American testimony, testimony was made before the Hearings Officer. His testimony was compelling. Regarding Fort Rock Road, it is unmaintained gravel. ODOT took down the signs that showed it going to China Hat. There is a chained entrance to the Best shelter, which is used occasionally. Coyote Well has been petitioned to be on the historical record. It has not yet gone onto the Goal 5 record. The Walkers have emptied Coyote Well and it refills on its own, so it is not necessarily just surface water. There are other shallow wells in the area. She does not understand the wind information. The prevailing winds are from the south and sometimes from the west. ODOT already has a monitor on a telephone pole. The information was from 2004 and should be updated. All terrain vehicle users have sued to be able to use the area, and the area is open throughout the year. Ms. Nash talked about the agricultural uses in the area. Adjacent private properties are not fenced and are used as part of their grazing program. So there is more of an impact to them than stated previously. Other allotment owners will be impacted as well. The adjacent land is 66% BLM, the rest is private, and is open range. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 7 of 15 Pages In December 2006 the Board identified the potential impacts within the 1/2 -mile impact zone. At issue is why the County believes that the mining won't impact Evans Wells Ranch. When the allotment and bird impacts are considered, the BLM can change the allotment. This is important because there is water on the land that does not freeze. There will be economic impacts on the land; already BLM wants them to use the allotment for just one month instead of four months, regardless of the mining. The alternative is to develop another water source. The biologist decided that the impact would be worse. Last fall in a different area there have been problems with dove hunters, which impacted the cattle at the watering areas. She does not feel the issues on remand have been addressed, and nothing can mitigate the impact on agriculture. Commissioner Melton asked if the setbacks were part of the mitigation. Ms. Nash said that some of them were. Commissioner Daly asked if the bird issue is causing them to cut back the use of the land, and whether this is part of the mining issue. They are already being cut back because of other uses. Commissioner Luke pointed out that this appears to be preventive in nature. Commissioner Luke said that because of the length of the hearing, oral testimony will need to be brief. He added that he has known the next person to speak for many years. Frankie Watson, a property owner, testified that this is an emotional subject for her. (She read a statement in this regard.) Commissioner Luke asked where her property is located. She said is it about two miles from the proposed pit. Paul Dewey had signed up to speak but had to leave the meeting. Pam Hardy testified on behalf of the Walkers. The proposed mine will have significant conflicts in the area. What is being asked for is that all of the issues be addressed squarely instead of being minimized. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 8 of 15 Pages For example, the sage grouse issue. The Commissioners didn't know what a sage grouse lek is. These are important to the ecology of the area. She said the BLM is considering a protection area of four miles for these leks. Also, fencing is irrelevant since noise, vibration and dust carry anyway. Also, the change in sage grouse habitat will cause the sage grouse to move to other areas, which could change how the Nash's use their property. She would like to see more information on the history of the protection of the sage grouse. Regarding Native American cultural use, it is the only site that is considered a sacred site in Deschutes County. She is referring to the pictographs and the dry canyon. Commissioner Daly asked how far away they are from the site; she did not know. In regard to dust impacts from blasting, the difficulty of the percentages is that it is hard to know when the wind will be blowing in certain directions at a given time. There are probably no time when the wind is sustained going in one direction. The information in the record is not adequate. Commissioner Daly asked if she had ever seen how dynamite is set off. He does not feel that the issues are as serious as she thinks. She said she would like to see just what the amount of dust generated would be. She feels that the County should deny the application as the issues have not been adequately addressed. Mr. Lovlien stated that they have been blasting within 200 feet of main gas lines in some areas with no problems. Mr. Robinson gave an overview of the blasting process. This would be over a mile away from the properties and should not be a concern. He said that maybe 15% of the rock will go to the Deschutes Junction facility; most will go directly to projects. Mr. Lovlien stated that the distance from the site to the pictographs is about a mile. Commissioner Melton asked if the rock is unique and needed. Mr. Robinson stated it is a good source for the County. Most of the rock now comes from Crook County. Ms. Craghead said that this is not part of the remand and shoule not be discussed at this time; but it is part of the original record. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 9 of 15 Pages Ms. Craghead said that the file would close in July. MELTON: Move that two weeks be allowed for submittal of written testimony, until June 16 at 5:00 p.m., with rebuttal on June 23 by anyone; no new evidence would be accepted; and the applicant's final argument would be on June 30. DALY: Second. VOTE: MELTON: Yes. DALY: Yes. LUKE: Chair votes yes. Chair Luke closed the oral testimony part of the hearing at this time. 3. Before the Board was Consideration of Whether to Hear an Appeal of the Hearings Officer's Decision on the Arnett Measure 37 Vested Rights Application (File #DR- 07 -15). Steve Griffin gave a brief overview of the item. Commissioner Melton said a letter was received this morning from Attorney Ed Fitch, asking for a partial de novo hearing. It is questionable whether the letter should have come to the Board at this time. Mr. Pilliod stated that a public records request was made by Mr. Fitch on all records having to do with this case. The materials were provided as requested. The issues detailed by Mr. Fitch are not supported by fact, and there has been no evidence of staff changing the information as Mr. Fitch alleges. Commissioner Daly stated that they have been asked to hear this on a partial de novo basis. Mr. Griffin said that he recommends it not be reviewed by the Board, but there are always aspects in any decision that can be improved upon. Commissioner Luke said that DLCD and the Department of Justice have an interest in this case and could be hard by them in any case. If the Board declines review, the applicant or any other party can file in Circuit Court, and it is probable that regardless of the Board's decision it may end up in Circuit Court. Commissioner Luke stated that the County would be a defendant and the applicant can make its case to the court. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 10 of 15 Pages Commissioner Daly said Mr. Fitch would like to have the County hear this on a partial de novo basis but is not sure how this would help since it will likely end up at Circuit Court in any event. There would be an additional expense to the applicant to do this as well. Mr. Griffin said the staff report, the notice and the record are all that can be considered but it appears the letter from Mr. Fitch has not influenced the Board in this situation anyway. MELTON: Move that the appeal not be heard. DALY: Second. VOTE: MELTON: Yes. DALY: Yes. LUKE: Chair votes yes. 4. Before the Board was Consideration of Whether to Hear an Appeal of the Hearings Officer's Decision on the Harry Measure 37 Vested Rights Application (File #DR- 07 -12). MELTON: Move that the appeal not be heard. DALY: Second. VOTE: MELTON: Yes. DALY: Yes. LUKE: Chair votes yes. 5. Before the Board was a Public Hearing and Consideration of Signature of Order No. 2008 -044, Approving the Thornburgh Resort Annexation into Deschutes County Rural Fire Protection District #1. Ms. Craghead said that all entities involved in the annexation have found the documents acceptable, including the Department of Revenue after the map was clarified. Commissioner Melton stated that Nunzie Gould e- mailed her regarding how fire districts are handled. She is concerned about the decreasing funds for the Districts while increasing the areas annexed. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 11 of 15 Pages Ms. Craghead stated that there have to be facts on which to base this type of decision. Commissioner Luke stated that he has not heard of any budget concerns for this District. Ms. Craghead said that a letter from the District could be requested in this regard; also that the annexed area will be paying taxes towards this coverage. Commissioner Daly observed that the tax revenue from the resorts should greatly help the District. Commissioner Luke said that the Districts have their own elected board and are responsible to their constituents. Commissioner Luke opened the hearing at this time. Randy Miller, representing Thornburgh, explained that in regard to the letter, the requirements of the District have been fulfilled. Ms. Craghead and Commissioner Luke reviewed the map at this time. Paul Dewey testified that there are a number of concerns about this application and broader policy issues. This is not just a petition to annex the applicant's land. Much of it is owned by the Bureau of Land Management and the Department of State Lands, and he does not think they have signed. The other issue is the scale of what is involved. This action would end almost 10% more to the District served. Some of the land is being proposed for an exchange between agencies and the resort, and this should be analyzed to determine the potential for the number of homes. The Districts sometimes contract to the private sector. There is less coverage within the urban growth boundary as a consequence. An analysis of the impacts should be included. Commissioner Luke stated that the County is not in the fire protection district business, and the districts are independently elected board. If they approve an annexation and feel that they can handle it, the County has no right to state otherwise. Mr. Dewey said that the ORS stated that the County has responsibility to oversee the entire situation, and there needs to be a document showing an analysis. Commissioner Luke stated that the taxpayers pay for the service, even if it goes through the city. Commissioner Melton asked if Mr. Dewey has presented his thoughts to the Districts; he said he has to District 2. Commissioner Melton said that it is hard for the County to second -guess what the District says it can provide. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 12 of 15 Pages In regard to Thornburgh, Mr. Dewey stated that the spacing of access roads is a concern as well. In the northern part of Thornburgh, the space is not adequate, especially Barr Road. Also, there are key plan policies not addressed that encourage urban rather than rural development, in the statewide Goals. Ms. Craghead stated that the Department of State Lands, the Bureau of Land Management and others were on the original documents, and that the notations Mr. Dewey stated she believes apply to formations and not annexations. Nunzie Gould came before the Board. She stated that the District board can make decisions without going to its voters. The question is whether the citizens in the District are willing to increase their tax base. This District includes the Tumalo Fire Station, District 2, which may be closed most or all of the time. The southern boundary of Thornburgh is included in District 2. That puts a burden on District 1. In order to provide services, all of the Districts need to be in good financial position. This is a broader policy issue. She submitted a letter she had submitted to the Board in November and December 2006. She said that Barr Road is now appearing on the map and it was her understanding that Barr Road was not to be an access road. She discussed a Thornburgh document from the conceptual master plan, condition 20 said no use of Barr Road was to be allowed. She added that Deschutes County has been too quick to close the public comment period. It is important to maintain the health, safety and welfare of the community — the existing community — services should not be diminished. Thornburgh could have elected to have on- site fire protection but chose not to. She would like to know what response time is for the Districts, the number of engines and staffing. Commissioner Luke said that the County is good about keeping the record open on various issues, and has gone out of the way to allow testimony. Ms. Gould stated that this information was brought in after the conceptual master plan stage. She would like more testimony allowed on the record. Ms. Craghead said that Barr Road is on the map to distinguish a boundary only, and does not feel this is indicated as an emergency access. Commissioner Melton would like the District to clarify this, as well as how they are able to handle funding issues. MELTON: Move that the hearing be continued to the June 9 Board meeting. DALY: Second. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 13 of 15 Pages MELTON: Move to table the motion to allow more testimony. DALY: Second. VOTE: MELTON: Yes. DALY: Yes. LUKE: Chair votes yes. MELTON: Move that the hearing be continued to the June 9 Board meeting. DALY: Second. VOTE: MELTON: Yes. DALY: Yes. LUKE: Chair votes yes. Mr. Miller said that the map requirements from the County were different from that of the District. There are other documents on which the District made its decision. He added that Chief Moore also left their record open for an extended period of time to be able to accept additional testimony. 6. ADDITION TO THE AGENDA Before the Board was Consideration of Board Signature of Document No. 2008 -244, an Improvement Agreement for Phase 6 of Pronghorn Estates. Paul Blikstad said the applicant has presented an improvement agreement, which is a standard agreement to allow the improvements. Ms. Craghead stated that the agreement would include a clause that Knife River will be taking out the bond rather than the subdivision. MELTON: Move approval, subject to legal review. DALY: Second. VOTE: MELTON: Yes. DALY: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, June 2, 2008 Page 14 of 15 Pages Being no further items to come before the Board, Chair Luke adjourned the meeting at 1:25 p. m. DATED this 2nd Day of June 2008 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary Dennis R. Luke, , hair Tammy Baney, Vic Michael M. aly, Co missioner Minutes of Board of Commissioners' Business Meeting Monday, June 2, 200+ Page 15 of 15 Pages -TES 0 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701 -1960 (541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, JUNE 2, 2008 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend 1. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Citizens who wish to speak should sign up prior to the beginning of the meeting on the sign -up cards provided. Please use the microphone and also state your name and address at the time the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the record of that hearing. 2. A PUBLIC HEARING on a Remand from the Land Use Board of Appeals (LUBA) regarding Applications for Plan Amendment and Zone Change on 365 Acres from Exclusive Farm Use to Surface Mining (Horse Ridge — Applicant: 4 -R) — Paul Blikstad, Community Development Department 3. CONSIDERATION of Whether to Hear an Appeal of the Hearings Officer's Decision on the Arnett Measure 37 Vested Rights Application (File #DR -07- 15) — Paul Blikstad, Community Development Department 4. CONSIDERATION of Whether to Hear an Appeal of the Hearings Officer's Decision on the Harry Measure 37 Vested Rights Application (File #DR- 07 -12) — Paul Blikstad, Community Development Department 5. CONSIDERATION of Signature of Order No. 2008 -044, Approving the Thornburgh Resort Annexation into Deschutes County Rural Fire Protection District #1 — Laurie Craghead, Legal Counsel 6. ADDITIONS TO THE AGENDA Board of Commissioners' Business Meeting Agenda Monday, June 2, 2008 Page 1 of 5 Pages Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7 -1 -1 to access the state transfer relay service for TTY. Please call (541) 388 -6571 regarding alternative formats or for further information. FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388- 6572.) Monday, June 2, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) 5:00 p.m. Joint work session with the City of Bend Council, at the County Tuesday, June 3 through Friday, June 6 Association of Counties Spring Conference Monday, June 9, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Wednesday, June 1 L2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Thursday, June 12, 2008 9:00 a.m. Quarterly Update — Mental Health Department 10:00 a.m. Quarterly Update — Health Department Monday, June 16, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, June 2, 2008 Page 2 of 5 Pages Wednesday, June 18, 2008 10:30 a.m. Oregon Youth Challenge Graduation Ceremony 2:30 p.m. Administrative Work Session — could include executive session(s) — please note later time Thursday, June 19, 2008 7:00 a.m. Bend Chamber of Commerce Legislative Policy Council Meeting 10:00 a.m. Quarterly Update — Juvenile Community Justice Monday, June 23,2008 10:00 a.m. Board of Commissioners' Meeting — Includes Budget & Fee Schedule Public Hearings 1:30 p.m. Administrative Work Session — could include executive session(s) Wednesday,June 25, 2008 10:00 a.m. Board of Commissioners' Meeting — Includes Budget & Fee Schedule Adoption 1:30 p.m. Administrative Work Session — could include executive session(s) Thursday, June 26, 2008 9:00 a.m. Quarterly Update — Fair & Expo Center 11:00 a.m. Quarterly Update — Commission on Children & Families Monday, June 30, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) 5:00 p.m. (Tentative) Joint Meeting with the City of La Pine Council, in La Pine Wednesday, July 2, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Thursday, July 3, 2008 8:00 a.m. Regular Meeting with the City of Sisters Council, in Sisters Board of Commissioners' Business Meeting Agenda Monday, June 2, 2008 Page 3 of 5 Pages Friday, July 4, 2008 Most County offices will be closed to observe the July 4th Holiday Monday, July 7, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, July 9, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Thursday, July 10, 2008 7:00 a.m. Regular Meeting with the City of Redmond Council, in Redmond 12:00 noon Audit Committee Meeting Wednesday, July 16, 2008 1:30 p.m. Administrative Work Session — could include executive session(s) Monday, July 19, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Wednesday, July 21, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Monday, July 28, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, June 2, 2008 Page 4 of 5 Pages Wednesday, July 30, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Monday, August 4, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, August 6, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7 -1 -1 to access the state transfer relay service for TTY. Please call (541) 388 -6571 regarding alternative formats or for further information. Board of Commissioners' Business Meeting Agenda Monday, June 2, 2008 Page 5 of 5 Pages Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701 -1960 (541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.or ADDITION TO AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, JUNE 2, 2008 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend CONSIDERATION of Board Signature of an Improvement Agreement for Phase 6 of Pronghorn Estates — Paul Blikstad, Community Development IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: I' v2- Q%L Mailing Address: Phone #: E -mail Addr ss: Date: 6 /e0 Subject: -l'- D\,3/4s7e)-- IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: 94,LA. Mailing Address: Phone #: E -mail Address: Date: Subject: - vvy3 ed.r6*(4 0s- dcabk.C6^'� 6/ .2 /a f1 l IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: Ta) dL( Mailing Add : j(f),t 911 5th t44,(C/ v00),), ;. /. (cr),L,Q (:)4_ Y 02 Phone #: ( sy( 7L{ —qr'c{ Z_ E -mail Address: (2,14,,(67.,-6,i_ Date: �� ,),./tk 2,, Subject: —1/,-- /A9 /5t IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: c -7474`. Mailing Address: Phone #: #t 9/ E -mail Address: Date: 49 Subject: 4J t NJ IF YOU WISH TO TESTIFY Please complete this card (Sc. turn it in to a County staff person. Name: 7ny ,4c 1 Mailin g Addfess: 2t2 7 5- — U /e. � Phone #: YW' egsV- E -mail Address: Date: 6 - 2/6g- Subject: ,El, //r `e* Wit.1 /i 44 `v'f IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: c<�frg1 Or694 -� }�AuL. �EwcY - c-o..a jc L. Mailing Address: 1539 NI,/ v,L36„5 Phone #: E -mail Address: Date: `°/1 /Qs Subject: IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County, staff person. Name: ,i' 'I i ,/f (tiff Mailing Address: -)00,2,e/t/ et)6a,f Phone #: /;11/ _ 7,t 292i, E -mail Address: Date: 6%/0' Subject: ,tt/ % %Cd c , it IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: 7 4t,5-,,s- Mailing Address: Phone #: (,) a E -mail Address: Date: z - o Subject: /evil ✓A IF YOU WISH TO TESTIFY T Please complete this card & turn it in to a County staff person. Name: 0) L-ok/L, tek-' Mailing Address: Phone #: E -mail Address: Date: Subject: 4 -) i3c T77aC( IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: 'okvii I:,_ Mailing Address: c A TM c7 I Phone #: , . 336- `67 -'7 E -mail Address: Date: Subject: L' - R�►� IF YOU WISH TO TESTIFY Please complete this card & turn it ih to a County staff person. Name: I .,,M c.i az Uo,,. Mailin g Address: tia.4 i-r t. w Ask, �i mod 6z cn70i Phone #: (ss,i) ssa - ?g6ts' E -mail Address: 2a ko►,rd.la.a(ai 91m.A.1 . coo Date: 7co Subject: ? - pH -$ (Zc, -oy - t auo.rni lF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: crcAws..e_ 511,\,,J011,4s.01, Mailing Address: lcRvs cAeskAl 6 97 70 ( Phone #: 405--o -(11-75 E -mail Address: ‘Akc1 Date: y- Subject: K. cavL_J0.1\e -G-Y �?C Introduction This is a hearing on a Remand Order from the Land Use Board of Appeals regarding the Plan Amendment and Zone Change applications (PA -04 -8, ZC -04 -6) submitted by 4 -R Equipment. The applicant has requested approval of a plan amendment to add the subject property to the County's Goal 5 surface mining inventory of mineral and aggregate resources, and a zone change to rezone the property from Exclusive Farm Use — Horse Ridge subzone, to Surface Mining. These applications were previously considered and approved by the County Commission by the written decision dated December 27, 2006. The County's decision was appealed to the Land Use Board of Appeals. LUBA issued a final decision and order dated October 3, 2007, remanding the County's decision back to the County. The applicant has by letter dated April 17, 2008 requested that the County commence the remand hearing process. This hearing is being conducted in accordance with the procedures established under Title 22 of the Deschutes County Code, and is being heard de novo before the Board, but limited to the issues that LUBA found as assignments of error in their final opinion and order. Burden of proof and Applicable criteria The applicant has the burden of proving that they are entitled to the land use approval sought. The standards applicable to the applications are listed on the sheet located at the table next to the entrance to this hearing room. Failure on the part of any person to raise an issue, with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes, appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the proposed conditions of approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. Hearings Procedure The procedures applicable to this hearing provide that the Board of County Commissioners will hear testimony, receive evidence and consider the testimony, evidence and information submitted into the record, and will be the basis for their decision. The record as developed to this point is available for public review at this hearing. Order of Presentation The hearing will be conducted in the following order. The staff will give a staff report of the prior proceedings and the issues raised by LUBA. The applicant will then have an opportunity to make a presentation and offer testimony and evidence. Proponents of the appeal will then be given a chance to testify. When all other proponents have testified, opponents will then be given a chance to testify and present evidence. After both proponents and opponents have testified, the applicant will be allowed to present rebuttal testimony, but may not present new evidence. At the Board's discretion, if the applicant presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. The Board may limit the time period for presentations. Cross - examination of witnesses will not be allowed. A witness who wishes, during that witness' testimony, however, to ask a question of a previous witness may direct the question to the Chair. If a person has already testified but wishes to ask a question of a a subsequent witness, that person may also direct the question to the Chair after all other witnesses have testified, but prior to the proponent's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. Continuances: The grant of a continuance or record extension shall be at the discretion of the Board. If the Board grants a continuance, it shall continue the public hearing to a date certain at least seven days from the date of this hearing or leave the written record open for at least seven days for additional written evidence. If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the the Board shall establish the time period for submittal of new written evidence or testimony and for additional for response to the evidence received while the record was held open. . If the hearing is continued or the record left open, the applicant shall also be allowed time after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. Pre - hearing Contacts, Biases, Conflicts of Interests Do any of the Commissioners have any ex -parte contacts, prior hearing observations, biases, or conflicts of interest to declare? If so, please state the nature and extent of those. Does any party wish to challenge any Commissioner based on ex -parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) BRYANT EMERSON & FITCH, LLP Attorneys at Law June 2, 2008 HAND DELIVERED AND VIA E -MAIL TO: BOARD@CO.DESCHUTES.OR.US Dennis Luke, Mike Daly and Tammy Melton Deschutes County Board of Commissioners 1300 NW Wall Street Bend, OR 97701 Re: John Arnett and Laura and Marie Harry Appeals Dear Commissioners: Ronald L. Bryant * Craig R Emerson Edward P. Fitch Steven D. Bryant Michael R. McLane Michael W. Flinn Lisa D.T. Klemp Alison M. Trimble Tony E De Alicante * * Also admiefed in Washingion This morning you have before you an appeal by John Arnett as well as Laura and Marie Harry. These appeals are from vesting determinations made by a Deschutes County Hearings Officer. While there was significant legal error by the Hearings Officer in those decisions, there was also improper ex parte contact with the hearings officer from the Deschutes County Planning Department. We have been advised that the hearings officer initially had a different analysis, drafted a decision with that analysis and was requested by the Planning Department to change her decision to conform with another hearings officer. We now understand the County Planning Department as well as the Legal Counsel's Office is going to recommend that the Board not hear the appeals. From our perspective a declination to hear this appeal would be a serious injustice to the interest ofthese Deschutes County citizens in getting a fair and objective tribunal at the County level. We ask that you hear this on a partial de novo basis so that these issues can be adequately addressed at the County level. Mr. Arnett as well as Laura and Marie Harry paid considerable monies to have this heard by the County rather than going directly to the Circuit Court. They are relying on the County's integrity in having a fair and objective process. I apologize that I will not be able to attend today's hearing. As you may know, I recently had surgery and I am not yet back at the capacity I need to be in order to attend. Thank you. Very truly yours, Edward P. Fitch EPF /mcm cc: Mark Pilliod (via e-mail mark pilliod @deschutes.or.us) G: \Clients\EPF\Amett, JohnWmett,John\Board of Commissioners.wpd(mcm) 888 S.W. Evergreen Ave. P.O. Box 457 Redmond, OR 97756 -0103 MA11 Kdit_91K1 Fes.. /KAl1 KA4_14OK T. :I I...F�1_,..1........1 i........._.. ..... emergency response times lag in Bend y /2.of 03 Adding staff is the best solution, fire chief says, but tight budget has frozen hiring By Anne Aurand The Bulletin For weeks following Christ- mas, Mary Rails spent her nights awake coughing. She had been suffering from a bout of bronchi- tis. A trip to her doctor did no good. Rails said. So, on the afternoon of Tues- day, Jan. 14, she went to the Bend Memorial Clinic's urgent care center. Two hours later, she walked out with some strong, prescrip- tion cough medicine, and swal- lowed two doses during the day, as advised. Sometime after 7 p.m. she was standing in the kitchen of her home in Awbrey Glen when everything went black. -All of a sudden 1 couldn't see, the 85- year -old woman said. '1 was blind." And dizzy. And unable to walk At first she wondered if she was having her second stroke, or maybe a heart attack. It scared the heck out of me, she said. 1 was frantic. I didn't know what was happening. 1 wondered if this could be the end" Knowing by habit where the portable phone was in the kitchen, she picked it up and called 911. It was 7:18pm. It was an urgent, terrifying mo- ment for Ralls, and she wanted to know what was happening. But the Bend Fire Department's clos- est paramedics were tied up with a car accident, and it would be about 15 minutes before Balls got help from other paramedics from across town. Fifteen minutes is twice the de- partment's average response What happened when Mary Rails called 9-1-1 al 7:18 p.m. on Tuesday, Jan. 14 North station crews were responding to a one-car rollover accident at Summit Avenue and Glass - ow Drive on Aw- brey Butte. Anoth- er, extra crew from the North station was finishing up at the hospital after transporting a pa- tient there when it was assigned to Mary Rails' call. Mary Pail;' Route taken to Mary Rails' house (Crew arrived 15 minutes atter It was dispatched • m Cathy Rd. A fire station h Tumalo is not shown CD on the map. Crews and equipment from Tulnalo me involved in trainfnj► at the North station. a3CS r eat scene ffL East station crews were available, but the station is farther away from the loca- tion of the call. West station crews were handling a one -car rollover ac- cident at Summit Drive and Glassow Drive on Awbrey Butte. BEND 844, CD vs, Knott Rd Station South station crews were located at the North station for training at time of Mary Rails' call. Andy TWh / The &Aston Bend Fre Deparbnenl Paramedic Kris park searches to bate medication to a patient. Timeline 7:18 .m. Mary Rails, 65, feels dlrry and Is unable to walk. She calls 911 7:20 .m. Deschutes County 911 dispatch- es an ambulance to her home. An ambulance is on the way. Average response time for 10 other Oregon cities Is just under five minutes after dispatch. FEEMMINIC Average response time for Bend is lust under seven minutes at- ter dispatch. Ambulance arrives at Mary Rails' home. Paramedics begin treatment. 8:20 .m. Mary Ralis arrives at the hospi- tal. She is line. time, three times longer than the average of 10 other diies in Ore- gon, and much longer than city offidals want the department to take to respond to medical and fire Alter�Balls said, You don't all 911 unless it's an emer- Ralls' husband had died about a year bdore and she was alone that evening. She aged a neighbor after she called 911. Her neighbor stayed as she laid on her bed, as she vomited, as she waited. See 911 /A 10 Grey Goes / The Best, While wafting for their next call, Bend Fire Department paramedics Sean McMurry, left, and Kris Clark, right, review information after transporting a patient to St. Charles Medical Center. As soon as paramedics and firefighters finish a cad they let 911 dispatchers know they are available. MN, TAY / TN B W1n 5 t_x . rJ10 Sunday, April 20, 200 911 aerator searched for available recue units to send to emergency Continued from Al Normally, a crew from the west Bend fire station responds to calls from the Awbrey Glen neighborhood. But the west sta- tion crew was busy at Summit Drive and Glassow Drive on Aw- brey Butte, where a van had over- turned on icy roads about 7 p.m. A rescue truck from the north fire station — the second closest to Rails' house — was at the wreck, too, since the driver was pinned inside his car, unrespon- sive, and suffering injuries to his head, according to 911 dispatch data. The 911 dispatchers assess pa- tients' conditions and decide how critical a given situation is. In Ralls' case, records show that the patient was "near fainting" and so the response level was deemed a "charlie," the second highest '°ve1 of urgency. The dispatchers also instantly tell where all -are paramedics and firefighters are and what they are doing. It just so happened that no one was on vacation at that time, so the department had an extra crew of paramedics on duty, based at Bend's north station. At 7 :20 p.m. dispatchers sent the extra crew, Steve Vossler and Dallas LeeSoon, who were re- loading a gurney into an ambu- lance at the hospital after trans- porting a woman there from southeast Bend. At 7:23 p.m., Vossler and LeeSoon flipped on the lights and sirens and were en route across town, across some patches of black ice, at a safe speed. They arrived at 7:35 p.m. TIME IS EVERYTHING In 15 minutes, fires can turn catastrophic. Cardiac arrests can turn fatal. Bend's fire chief has reported that more than 20 percent of the department's calls take more than 12 minutes to respond to, and that, he says, is "unaccept- ile." National statistics show that the sooner a cardiac arrest pa- tient gets defibrillation — electric current treatment to stabilize the heart — the higher his or her chance of survival. Dena s average response wile, 6:50 to 6:55, is slower than the av- erage of 10 other Oregon cities. They average just under 5 min- utes. Those 10 cities are the ones most comparable to Bend in size, geography, and population. The discrepancy may be in part because Bend has two fewer firefighters per 1,000 population than those cities. It may also be because the Bend department ( covers 250 square miles for fire and 1,600 square miles for ambu- lance calls. Oregon law requires ambu- lance coverage everywhere, so the fact that there aren't fire sta- tions spread all over the High Desert requires the Bend depart- ment to stretch its boundaries. Between 1997 and 1999, aver- age response times for the Bend Fire Department crept up from 8.3 to 9.4 minutes. Fire officials realized they had to do some- thing. Frre Chief Larry Langston said in 2000 the department relocated a station from downtown to Simpson Avenue. It added a fifth station, the north station on Jamison Road. The five stations were strategical- ly located to provide 5- minute re- sponse times if enough staff were available. In 2000, the department stopped responding to unneces- sary calls, such as non -injury ve- hicle accidents, Langston said. The department also estab- lished an extra staffed ambulance in 2001 during peak daytime hours. The "peak demand unit" was to rush to medical calls, which constitute about 85 percent of the department's calls, so all stations could remain staffed and ready to espond. Overall alarms increased 5 per- cent over a year ago, Langston said. And officials are gloomy about the future as growth puts more demands on the system. Our response times will prob- ably slip," he said. The most effective way to im- prove response times is to add paramedics, according to Langston. The department al- ready has enough ambulances and fire trucks, but often, not enough people to operate the ma- chines when multiple calls come in Each additional, staffed ambu- lance can reduce average re- sponse times by 30 seconds, Langston said. Staffing an addi- tional unit with four people, which would provide extra cover- age seven days a week, 10 hours a day, would cost approximately $250,000 a year. A worthy goal 1s to reduce the 6:50 response time to 5:20, for a cost of $750,000 a year, Langston said. Because of the city's estimated $9.3 million budget shortfall next year, that's not likely. City Manager David Hales just put a hiring freeze on city staff, except in "compelling cases" in which a new hire was. necessary 'to maintain adequate levels of health and safety protection," or to avoid ... significant disruption to current levels of service." City councilors have said they want to keep fire and police ser- vices at least at the level where they are now. Langston's budget analysis showed that to merely maintain the current response times as de- mands increase would require additional staffing over the course of five years, for which there is not enough funding ex- pected from property taxes. Councilors know they are fac- ing tough choices. They say they have to look at and adjust all city services. Some are considering additional fees and possibly new taxes. Some want to see all departments strive to be more efficient. Others want to find ways for profitable depart- ments to help departments that are in need, such as public safety. But these all might be longer - term solutions that the budget committee might not solve in time for preparing next year's budget, a process that begins next month. "We are not adding staff in this (upcoming fiscal year) budget, so we'll have a degradation of ser- vice to some extent," Fire Chief Langston said. "What that equates to is hard to quantify, but at some point in this next year it will show up that it'll take us longer to get somewhere because everyone is tied up." HELP AT LAST Ralls, a 30 -year Bend resident, said she understands the fire de- partment's dilemma and blames no one for her 15- minute wait. When paramedics Vossler and LeeSoon arrived at her house at 7:35 p.m., they found Ralls rest- ing on her bed. They apologized for the wait. "I was so happy to see them," she said.' he minute they came in, I was relieved It takes the fear out and I relaxed a bit. They were thorough and they were great." In Ralls' case, the wait was un- pleasant but not life - threatening. Vossler and LeeSoon took her blood pressure, connected her to a heart monitor and started an IV. "I felt like I was in the emer- gency room," Rails said. Rails said they suggested that the cough medicine may have caused her dizziness and fainting spell, which made her vision blur. And, the rhythm of her heart beat, which was too fast, con- cerned Vossler, he said The hos- pital had medication that can re- store a heart's normal rhythm, he said. So, they set her on a gurney and transported her to St. Charles Medical Center. They passed her over to doctors at the hospital at 8:20 p.m., when she underwent an electrocardiogram to observe her heart. Doctors gave Ralls, who was once a nurse, an antibiotic for her bronchitis — something she had felt she needed weeks earlier. She thinks taking an antibiotic sooner could have prevented the whole incident. Exactly three months later, Rails feels better, but still coughs to clear her chest occasionally. She said as she gets older, it's scary to be alone sometimes. In the fall, she's moving to Touch - mark, a retirement community next to Mount Bachelor Village, so there's always someone around. When you're alone, she said, "911 is your best friend." Anne Aurand can be reached at 541- 383 -0323 or aaurand@bendbulletin.conr. Redmond Fire & Rescue City of Redmond 341 NW Dogwood Ave Redmond, OR 97756 541 - 504 -5000 Fax: 541 - 548 -5512 www.redmondfireandrescue.org o Chapter 5, Section 503.1 Appendix D 107 One or Two Family Residential Developments: Where the number of dwelling units exceeds 30 shall be provided with separate and approved fire apparatus access roads and shall meet the requirements of D104.3 o D104.3 Remoteness: Where two access roads are required, they shall be placed a distance apart equal to not less than one half of the length of the maximum overall diagonal dimension of the property or area to be served, measured in a straight line between accesses. o Chapter 5, Section 505.1 Address Numbers: Buildings shall have approved address numbers plainly legible and visible from the street or road fronting the property. o Chapter 5, Section 504.1 Required Access: Exterior doors and openings shall be made readily accessible for emergency access by the fire department. An approved access walkway leading from fire apparatus access roads to exterior openings shall be provided when required by the fire code official. o Note: The street names shall follow the City of Redmond street grid names and numbers. Last updated 10/11/2006 Printed from www.redmondfireandrescue.org (.6)Euku' December 7, 2006 4 pages with 9 attachments Deschutes County Commissioners Dennis Luke Bev Clarno Mike Daly Deschutes County Planning Commissioners Mike Shirtcliff Keith Cyrus Brenda Pace Todd Turner Kelly L. Smith Susan S. Quatre Robert A. Otteni Regarding Code Amendment to Deschutes County Destination Resort Code Public Hearing 12/4/06 I want to apologize for misstatements made during my testimnony on 12/4/06 regarding the Deschutes County Sheriff's Bond Levy failing. This was not accurate. What failed on the November 7, 2006 Deschutes County Ballot was the Rural Fire Protection Bond. As you know the rural fire protection boundary was extended to include the Thornburgh Destination Resort. Thornburgh in it's CMP application to Deschutes County elected not to provide onsite fire protection for the development but rather to rely on Rural Fire Protection. Eagle Crest Resort also relies on Rural Fire Protection. So the failure of the Rural Fire Protection bond is a testiment to existing tax paying residents voting to not spend more on rural fire protection. Question: Had the rural fire protection boundary not been extended to include the Thornburgh Resort, what amount of money would have been needed for the Rural Fire Protection bond? Would the smaller amount of bond funds needed have been passed by voters? If the 2.5 : 1 ratio is adopted, what additional monies will be needed by the rural protection districts to accommodate the existing lands zoned Destination Resort? Eagle Crest and Thornburgh resorts are adjacent to federal BLM lands. The BLM is currently planning for the Cline Buttes Recreation Area. Both Eagle Crest and Thornburgh are contributing fixed sums to BLM as mitigation of their resorts. One of the areas of concern for BLM is Wildfire Urban Interface (WUI) see attached map which shows 3 rings around private inholdings which denote flame height adjacent to private property. As you can see there are many inholdings at Cline Buttes. And if you cross reference these inholdings to the Deschutes County DR zone map, you will see that most of the inholdings at Cline Buttes are zoned Destination Resort. A priority of public policy is to protect adjacent private property such as homes in destination resorts. Additionally, BLM is being requested by resort home owners to not place noise related recreation (such as ATV, OHV, jeeps) close to the home sites. Question: If the 2.5 : 1 ratio is implemented, what additional hardship (from WUI and recreational planning and enforcement standpoints) will the public incurr to implement public land managment? Since BLM's MOU's are fixed sums, how will BLM collect for the added impacts of the proposed 25% more home density? Question: How much additional traffic will be generated at Sunriver Resort and Caldera Springs at the Sunriver Interchange? The COACT Meeting Minutes 11/10/05 identify that the Sunriver Interchange bids "dramatically exceed the construction estimate ": Who is funding this project? Commissioner Luke referenced on 12/4/06 that the County has a lot of money in the Sunriver Interchange. Of these County funds in the Sunriver Interchange how much was collected from destination resort land use fees imposed by Deschutes County? What if any fees were collected by ODOT from destination resorts toward the intersection? Since the project is over budget, what ability is there for more monies to be assessed for the project due to increased trips (assuming density is increased to 2.5 : 1 ) now by Deschutes County and /or by ODOT? The Central Oregon Workforce Housing Needs Assessment July 2006 attached in Executive Summary format with Press Release attached identifies that Deschutes County's Affordable Price is $167,000.00 and Deschutes County's Median Price is $425,000.00. This is a staggering 254% above the Affordable Median Income. The report further identifies that of the 9500 units needed by 2008, 8562 units are needed in Deschutes County. Destination Resorts have argued that affordable housing is available in "the community" and therefore the resorts are not required to provide affordable housing onsite. Question: What FTE (Full Time Equivalent) Jobs will be created by the 2.5 : 1 ratio as compared to the 2.0 : 1 ratio? How many existing FTE jobs require affordable housing? How many units of affordable housing is currently built at each resort? Question: Is there affordable housing in Deschutes County for the existing Destination Resorts? What additional housing needs will the 2,5 : 1 ratio incur over the 2.0 : 1 ratio? How many units of affordable housing is currently built at each resort? The Bulletin 12/6/06 identifies that Deschutes County's road supplements from the Federal timber payment is ending. Commissioner Luke says "We are not in as bad shape as counties like Jackson and Douglas..." Question: Where is the shortfall of monies for County roads planned to come from? What mechanism does Deschutes County have to collect transportation SDC? Why increase density without such a funding mechanism being in place aforehand? Part of the timber receipts Deschutes County has been receiving are paid to Cities such as to Bend and Redmond. The Tetherow Destination Resort is just adjacent to Reed Market Road, a major river crossing and East -West route for the City of Bend. See the proximity map 9/14/06 The Bulletin "New Bend resort gets new name, a partner ". Tetherow is closer to Bend than Winchester /Remington is to Redmond. Question: In light of City SDC boundaries (such as for Bend and Redmond), what recourse do Cities in Deschutes County have for increases in both proliferation of and density in adjacent Destination Resorts which add traffic onto city streets? Where will Cities gerarate the monies lost from federal timber revenues? What Deschutes County mechanisms are in place now to assist our cities' transportation infrastructre for the density increase proposed by the 2.5:1 ratio increase? Finally, living wages. The Bulletin 9/20/06 identifies "Oregon study tries to define `living wage' " which I attach. Question: Do destination resorts pay a living wage? Kindly provide a schedule showing existing jobs by resort identifying job description, # of jobs per job description, renumeration, hours /week /person. More than 9 miles of Cline Falls Highway is being worked on by Deschutes County, see attached 2 pages of photos taken 12/6/06. (Widening, boulder removal, shoulder installation are occuring now and overlayment is scheduled for 2007) Question: Since Eagle Crest Resort currently has 3 accesses directly onto Cline Falls Highway and Thornburgh Resort has proposed 2 accesses directly onto Cline Falls Highway, what measures has Deschutes County taken to collect monies for the improvements being made this year? Who is footing this construction bill? I look foward to learning of your answers to my questions? Nunzie Gould, your tax paying County resident 541-420-3325 19845 JW Brown Rd Bend, OR 97701 December 4, 2006 Deschutes County Commissioners Dennis Luke Bev Clarno Mike Daly Testimony on Public Hearing on Destination Resort Code Amendment I write in reference to the proposed destination resort code amendment. I believe it would be premature to change the destination resort code without studying the impacts that this language will have. Very important topics were discussed during the Planning Commission's remapping of the DR zone which took place from October 2005 - February 2006. Public discussion of this sort should be included in this record: Impact that destination resorts have on the location of affordable housing, on the poor condition of County roads, on the huge request for Water useage, on Sheriff services and fire protection from Wildfire Urban Interface, on Resort Accountability, Deschutes County enforcement and on the demands placed on Community Development Department Staff. These are issues that I encourage you to discuss during the course of your taking testimony this evening 1. Regarding the housing ratio increase from 2.0 to 2.5:1 Transportation How many more trips will permanent housing place on our already failing road systems? In many resort cases such as Eagle Crest, there has been a fixed top limit mechanism for contributing toward infrastructre needs. How will Deschutes County and /or ODOT be compensated for this proposed increase in traffic on our infrastructure? Why is there no transportation SDC now in the County? The huge cloverleaf at Sunriver is over budget and has taken longer to build than anticipated. What monetary participation will destination resorts make toward this infrastructure if you grant their sweeping density request? Water How much more domestic water and irrigation water will a permanent home use than an overnight unit? What mitigation will be required to offset the added use of water? Deschutes County is concerned about it's water quality and it's use of water. The Oregon Insider's article "Central Oregon Water" (by DRC attached) 1 1 l 1 Common Am a Space (OS) C83 acres) ILake and Golf Open Space (6 74 acres) 1 co, Wide Buffer Zone I (y5 acres) Total 1552 acres le.:41:( /MI r t1 1 1 a son• ear tFOO• zaov czar 40 ¢79 -05 THORNBURGH RESORT OPEN SPACE PLAN - EXHIBIT # AA -11 , .. i DESCHUTES COUNTY OREGON REVISED B-1.4 li\n-\1\(■,/),‘Afo)tiv ..,\ R-(-)—Dt 130 c:ix tatAJi (4)±2"(0-7 / / / 5 j / / 2 Attorneys and Counselors at Law Established 1970 l.e prri, Vne t'd , adi'it r ,u a (r.mpic ∎ nrid. 200 FORUM BUILDING 777 High Street Eugene, Oregon 97401 -2782 PHONE 541 686 -9160 FAX 541 343 -8693 www.eugene- law.com James K. Coons John G. Cox Douglas M. DuPriest Frank C. Gibson Stephen A. Hutchinson E. Bradley Litchfield Zack P. Mittge Thomas M. Orr William H. Sherlock Patrick L. Stevens May 28, 2008 Sent Via First -Class Mail and Facsimile to (541) 385 -3202 Deschutes County Board of Commissioners 1300 NW Wall St. Bend, OR 97701 -1960 L -- Re: Issues on Remand/ Walker v. 4 -R Equipment, 2007 -031 ��OU$ Proposed Spencer Wells Quarry; 13)40.4=8/ Y04 -6`' Our Clients: Clay and Tammera Wlker Our File No: 7770/10025B Dear Board of Commissioners: On behalf of our clients, Clay and Tammera Walker, we submit this letter in opposition to the foregoing applications, and request that the County deny this application on remand from the Land Use Board of Appeals. The Land Use Board of Appeals identified several substantial issues, including impacts to Sage Grouse Habitat, impacts to Native American cultural use of the ancient burial grounds and irreplaceable rock art sites in Dry River Canyon, and impacts to surrounding agricultural uses. The applicant has made an attempt to address some of these issues through proposed findings, but its efforts fall far short of the mark. Accordingly, this application should be denied. Please include this letter in the record of these proceedings and provides us with notice of future proceedings on this matter. LUBA Decision. The Land Use Board of Appeals remanded the County's decision on eight issues and reserved judgment on the adequacy of the County's ESEE analysis due to the number and nature of the issues on remand. The issues identified by LLTBA for remand are: A. The failure to expand the mine's impact area to include surrounding Sage Grouse habitat. B. The failure to expand the mine's impact area to include Evans Weil Ranch. C. The failure to address conflicts with Native American religious and cultural use is the area in culturally significant Dry River Canyon. Deschutes County Board of Commissioners May 28, 2008 Page 2 D. The failure to address conflicts with historic Coyote Well. E. The failure the address conflicts with the BLM Best Shelter. F. The failure to consider conflicts with agricultural practices. G. The failure to address conflicts due to water drawdown within the area. H. The failure to address impacts due to dust. The applicant attempts to address these issues by providing the County with limited evidence and a series of proposed findings. However, as will be addressed below, the evidence submitted by the applicant does not demonstrate compliance with the applicable standards, and the proposed findings are deficient. 1. Impact on Greater Sage Grouse and Grouse Habitat. OAR 660 - 023 -0180, which governs designation of mineral and aggregate resources, requires local governments "determine an impact area for the purpose of identifying conflicts with proposed mining and processirg activities." OAR 660 - 023- 0180(5)(a). It provides for a minimum impact area of 1,500 feet, and for expansion of the impact area beyond that 1,500 -foot boundary where significant potential conflicts are identified beyond that boundary. Deschutes County Hearing Official Anne Corcoran Briggs', after hearing all of the testimony adduced at both the initial hearing on February 15, 20052 and the later continued hearing and reviewing the written evidence, concluded that an expanded impact area was warranted. In particular, Hearings Official Corcoran Briggs found concluded that factual information: "submitted to the county during the course of these proceedings justify an expansion of the 1,500 foot impact boundary to include existing and approved uses within 3/4 mile to the north of the northern boundary of the subject property; two miles west of the western boundary (to include the Horse Ridge grade on Highway 20); 1 mile south (to include agricultural activities lying on the southern end of the valley); 6.5 miles to the southeast (to include the Pine Mountain ' Ms. Corcoran Briggs is an experienced land use attorney and former LUBA referee. 2 It should be noted that the Board of Commissioners is unable to review all of the evidence and testimony in this case. Due to an apparent mechanical malfunction, all of the oral testimony provided by participants at the initial evidentiary hearing of February 15, 2005 was lost. Deschutes County Board of Commissioners May 28, 2008 Page 3 Observatory) and 3 miles to the east (to include the sensitive bird and mammal sites and ORV trails)." LUBA Rec. 1081. The Applicant did not provide evidence to rebut the factual information supporting expansion of the impact boundary. See LUBA Rec. 929 -930. The Applicant's new evidence and argument do not justify a 1,500 impact area, do not establish there will be no significant impacts on the existing use of the area by Greater Sage Grouse, do not adequately acknowledge or evaluate impacts and do not minimize impacts. The Greater Sage Grouse is currently being evaluated by the U.S. Fish and Wildlife Service (USFWS) for listing as endangered under the Endangered Species Act (ESA). Greater Sage Grouse are highly sensitive to human disruption. This has caused their suitable habitat to shrink to the por:nt that USFWS has been considering this listing for the past 5 years. Oregon has recently lost Sage Grouse in the northern part of its range. It is typical to lose bird populations on the edges of the bird's range. This site and sage grouse habitat is on the far west edge of the Greater Sage Grouse Habitat in the U.S. It is particularly vulnerable for this reason. We are submitting extensive evidence on this subject. A few points tcc bear in mind are: Wildlife biologists state that an area one and one -half miles in diameter around leks should be protected as associated breeding, nesting and chick rearing habitat. The proposed mine is located only one and one - quarter miles from the largest sage grouse lek in Deschutes County. Since the proposed mine is located within this sensitive area, the impact boundary should be expanded. The Sensitive Bird and Mammal Habitat Combining Zone (SBHM) around the off -site lek only protects the lek area to a distance of 1,320 feet. This may protect the lek, but it does not adequately protect the related sensitive and important sage grouse habitat. The U.S. BLM has done extensive studies of the impacts of mining on Sage Grouse and has adopted more than a dozen management practices designed to lessen impacts of mining on sage grouse. This proposed mine would result in the impacts BLM has listed and the applicant has provided neither adequate analysis of these impacts nor adequate minimization. Nor is it clear that, even if all the minimization measures were implemented that sage grouse would continue to use the habitat surrounding the site. 2. Evans Well Ranch. As set forth above, Hearing Official Anne Corcoran Briggs found that "factual information" justified expanding the impact area for the Proposed Rock Quarry to encompass Evans Well Ranch. The Land Use Board of Deschutes County Board of Commissioners May 28, 2008 Page 4 Appeals referred to testimony highlighting conflicts between the proposed quarry and the Evans Well Ranch, and specifically to testimony that: "if cattle avoid one part of a pasture due to noise or dust, they will overuse another portion, which could lead to smaller or fewer calves resulting in direct financial loss to the ranchers." LUBA held that, in light of this testimony, the decision to decrease the impact area and exclude Evans Well Ranch was "not supported by adequate findings or substantial evidence." The applicant has not provided substantial evidence to justify the reduction of the impact area. Instead, it provides information regarding the amount of the Nash's BLM allotment that is directly "abutting" on the proposed property. However, this information is largely irrelevant. The issue in determining the extent of the impact area is not what property abuts the subject property (large portions of directly abutting properties are necessarily included in the impact area under the rule). The issue is the extent of the impacts beyond the boundaries of the impact area. Here, the factual information within the record establishes that the BLM allotments - from 700 acres or 7,000 acres - can only be managed for light grazing, and that noise, dust or vibrations from the quarry would require decreased stocking rates to ensure that cattle did not overuse portions of these allotments. The Nash's testified that acquisition (via lease or purchase) of alternative pasture area would be the way to offset these decreased stocking rates. In addition, the quarry use would also result in decreased fertility for the Evans Well livestock (with less reproduction, lower birth weights, and lower weight gain), and an estimated decrease of 10% of calves available for sale. See LUBA Rec. 133. This factual information reflects a significant change and a significant increase in costs to the Evans Well Ranch, and justifies an expansion of the impact boundary to encompass the ranch. It may be that the applicant views its conflicts as an insignificant impact on the large Nash operation. However, this assumes something that the applicant is required to prove - i.e., the extent of its impacts. The applicant has provided no evidence justifying its view (indeed, as addressed below, the applicant has not yet bothered to quantify the extent of its dust impacts). The applicant also makes reference to fencing around the site and to the lack of irrigated pastures nearby. However, both of these statements are irrelevant as well. The conflicts identified do not include cattle straying on tc Deschutes County Board of Commissioners May 28, 2008 Page 5 the subject property in any case. Therefore, the applicant's statement regarding fencing is irrelevant. Furthermore, it is already well - established in the record that the area surrounding the proposed pit is dry -land ranching. The applicant has already attempted to confuse the issue by arguing to the Board that this dry - land ranching need not be considered because it is "not significant." This interpretation was specifically rejected by LUBA. This is the law of this case, and the applicant should not be permitted to, again, argue this erroneous interpretation. 3. Conflicts with Native American religious and cultural use. LUBA found that the decision failed to address the conflicts between the proposed excavation and blasting activities at the mine site, and the continued cultural and religious use of Dry River canyon by Native Americans. In particular, LUBA stated: "The issue of Native American religious and cultural use of the area around the pictograms is a more difficult one. Intervenor [Applicant' does not respond to that argument, and nothing cited to us in the decision addresses it. Petitioners cite to testimony that area around the pictograms includes numerous burial sites, and that tribal members visit the area to conduct religious and cultural ceremonies honoring their ancestors. A tribal cultural resource specialist stated . that the proposed mining operation would destroy an area that demands quiet for tribal members that visit for religious and cultural purposes." (Emphasis added). The applicant seeks to ignore LUBA's finding as well as the evidence in the record by arguing that "[t]here was no evidence that there was an ongoing practice of tribal members for religious or cultural purposes." Issues on Remand, p. 5. In fact, it encourages the County to adopt a finding reflecting that there was "no evidence" of such cultural use. We direct your attention to the recorded testimony of Paiute tribal elder Wilson Wewa that is already in the record. We are also submitting evidence of a visit by Burns Paiute members to the site and from the Oregon State of Historic Preservation Office and other documentation about the cultural significance of the site and the strength of the site's case for addition to the National Registry of Historic Places. Paiute tribal elder Wilson V. Wewa has stated: "This site has held a significant spot in the history of my family in that my ancestors were people that practiced the Paiute religion in the purest form." Deschutes County Board of Commissioners May 28, 2008 Page 6 "...from the time I was 4 years old and 5 years old my grandfather showed me this place [Dry River Canyon pictographs]. His name was Sam Wewa. His father was an Indian doctor and they'd talk about these places very much. Most of the Indian writings located in southeast Oregon have a religious significance to the Paiute people and most often the picture writings are in areas where the Indian doctors have gone to pray to renew themselves and ask for spiritual guidance." "There is one figure that was named to me by my grandmother (who's now deceased). The figure here where there are two people, one looking like a shadow... My grandmother called that Soop (sp ?) which in the Paiute language means "ghost ". "I found a lot of small caves, depressions in the canyon wall that could have been used for burial, for vision quest, for fasting and I had a sense of being watched... the full time that I walked through [the Dry River Canyon]." The key point is that this area just north and west of the proposed mining site is not simply of historic interest to the descendants of white settlers, but remains an important part of the cultural and spiritual life of the Paiute Indians whose ancestors inhabited this area for millennia. A large lake used to exist just a short distance west of the subject site. This lake, and its associated river, now called Dry River, were important to the indigenous peoples. It provided an important source of water and food in an otherwise arid area. Given the importance of this area, it is not surprising that the area contains extensive evidence of past habitation. In fact, the property on which the mining is proposed is locally known as "Tepee Draw." MacArthur's Oregon Geographic Names ((5th ed. 1982), at p. 724 describes it thus: "Deschutes County. This is a draw on the northeast slopes of Paulina Mountains. It was so called because remains of Indian tepees were found therein." There is a photograph in the record (LUBA Rec. 1493) that shows a ring of large stones used to hold down the edges of tepees. Tepee rings remained in this area into historic times. Again, the mine proposed here would be in Tepee Draw, a longstanding site of Native American habitation. It is difficult to believe that there would not be extensive artifacts, and possibly burial remains, on the proposed mining site. Were the mine approved, the owner could expect that compliance with federal and state requirements related to Native American remains and artifacts could stop, interrupt or otherwise interfere with operation of the mine. Deschutes County Board of Commissioners May 28, 2008 Page 7 The applicant ignores large portions of the County's record which detail the continuing cultural use of the subject property by Native American tribes. In fact, Perry Chocktoot, the Cultural Resources Protection Specialist for the Klamath Tribes provided written testimony that: "If the construction of this quarry and rock crushing operation was to take place it would destroy an area that demands quiet for the tribal members that still go to the area today for worship of our ancestors and to converse with the life giver and creator of us all. This area is one of very few left that has such special meaning to us as a connection to our past, present and future. It would be a tragedy to l[o]se another sacred area to the so[- ]called progress of America." In addition, the Deschutes County Historic Landmarks Commission also testified to continuing cultural use of Dry River Canyon: "The area of pictographs and burials is in current use by members of the Burns Paiute and Northern Paiute Tribe. Hundreds of their ancestors are buried there and the rock writings done by healers and religious leaders record their culture and connect the present generation to the past. A bus of children from the Burns Paiute Reservation was scheduled to visit the site with their elders on Tuesday morning last week. They appreciate the current uses in the area and the quiet." LUBA Rec. 886 This is compelling evidence of continuing cultural use of the subject property by Native American groups. The federal American Indian Religious Freedom Act provides: "On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." 42 U.S.C. § 1996 (Emphasis added.) The proposed quarrying activities would disrupt the traditional use of the "only documented active cultural site that the Native Americans call a sacred site in the County." LUBA Rec. 886 (Deschutes County Landmarks Commission). Accordingly, it is inconsistent with this federal mandate, as well as with state law which requires minimization of mining conflicts. Deschutes County Board of Commissioners May 28, 2008 Page 8 Would you wish to visit a sacred site, such as a church or a cemetery where your ancestors are buried, only to find a large mine, with ongoing hauling and crushing activity occurring next door? No reasonable person would. The applicant seeks to lure the Board into error by claiming that that there is no conflict, when the conflict is undeniable. Given the overwhelming evidence of the continued use, significance and existence of conflict, the County should resist the Applicant's invitation to commit error. Rather, since the proposed mine would conflict with and disrupt the sole active cultural site that Native Americans consider sacred in all of Deschutes County, its impacts are simply too severe, and the mining should not be permitted. 4. Coyote Well. Coyote Well is located on the Walker property on a basalt bench near Dry River. It is an unusual well. This area was first known as Coyote Seep. At this site, the Millicans, the original settlers of Millican Valley, hand dug a 14 -foot well. Being near the main road, this well was used by many in the area, including sheep ranchers and also by early motorists whose radiators went dry from crossing Horse Ridge. When the Walker's bought their property in 1994, they cleaned out the well and found it to be a 25 -foot hand dug well. It is encased in lava rock. One day after it was cleaned out, it was filled with water. The Walkers are able to pump it frequently to provide water for stock and wildlife. Kleinfelder is mistaken in thinking that Coyote Spring is filled by surface runoff. It is not. Instead, the water recharges from its sides. Tammera Walker reports that when the water is drawn down one can see the running into it from the sides of the well. It refills even in the summer with fresh, clean water. Given how close this well is to the proposed mine, and given geologist Larry Chitwood's comment that not enough is known about the groundwater in this area, it is not reasonable to believe that creating a deep mine so close would have no meaningful impacts on Coyote Well or groundwater in the area. The Applicant has not adequately addressed the conflicts with this important, nearby water resource, that remains an existing use. 5. Best Shelter. This structure is named after former owners of the property, Irma and Wayne Best, who built it as a non -farm dwelling. It is sometimes, but not continuously, used. The Applicant calls it an "illegal dwelling" and implies that this is art adequate reason not to consider it further. The Applicant is mistaken. Under Deschutes County Board of Commissioners May 28, 2008 Page 9 LUBA case law, a use can be illegal yet still be an "existing use" that must be addressed under Goal 5. Also, contrary to the Applicant's claim, current county computer records show that the property, known as 57717 Spencer Wells Road, has a "Final" approval for a "Nonfarm Dwelling." The Applicant has not adequately addressed conflicts regarding this existing use. 6. Agricultural Practices. The Applicant essentially reiterates its argument against expanding the impact boundary as the basis for concluding that there is no significant impact on surrounding agricultural practices. However, as set forth above, the evidence in the record establishes that the proposed quarry would force a significant change in and significantly increase the costs of existing dry land ranching practices in the area around the proposed quarry. The applicant dismisses these impacts out of hand and does not address impacts on this livestock use (apart from fencing that would do nothing to mitigate impacts from noise3, dust or vibrations). Accordingly, the Applicant's evidence and proposed findings provide no basis for approving this application. 7. Water Drawdown. LUBA also remanded this matter to the County to assess the risk of water drawdown associated with excavating a deep quarry pit at the lowest point in the Millican Valley. Respected Deschutes National Forest Service Geologists Robert A. Jensen, and the late Larry Chitwood, previously advised the Deschutes County Historic Landmarks Commission that: "It is unwise to put a rock quarry next to the Dry River at that point in the drainage basin." LUBA Rec. 880. In particular, Mr. Chitwood and Mr. Jensen explained that the Dry River is the lowest point in the Millican Basin, and that water from Pine Mountain and Horse Ridge currently move northwest across the subject property to reach the Dry River canyon. LUBA Rec. 880 & 878. Mr. Chitwood and Mr. Jensen explain that Dry River and TePee Draw, which includes the subject property, are the lowest points in the Dry River system. LUBA Rec. 880. Once excavated, the proposed pit would be below the level of the Dry River Canyon and would interrupt the lateral flow of water across the landscape into the Canyon. At the same time, a mining pit would capture water flowing 3 Noise is an issue of special concern given the unique acoustics of the Millican Valley. The late Deschutes National Forest Geologist Larry Chitwood, indicated that the volcanic ash soils of the valley produce a cold layer of air close to the ground that tends to reflect sounds produced at ground level causing them to travel farther within the valley than would ordinarily occur. LUBA Rec. 208. Deschutes County Board of Commissioners May 28, 2008 Page 10 from the south and west to the Canyon. LUBA Rec. 879 (includes figure depicting lateral movement of water from Canyon into pit). The applicant's own "hydrogeographic evaluation" supports the analysis of Mr. Chitwood and Mr. Jensen where it states: "Because of the presence of fine - grained, partially- cemented lacustrine (lake derived) and alluvial deposits which blanket the site, near - surface laterally discontinuous perched groundwater zones are likely to develop following precipitation events along the north -south trending drainage course that transects the central portion of the site. This surface water collector merges with the "Dry River" drainage along the south side of U.S. Highway 20." January 14, 2008 Kleinfelder Letter, p. 3 (Emphasis added). The Kleinfelder report itself acknowledges the presence of perched aquifers within the layer of soils overlying the basalt layer that the applicant proposes to excavate and the drainage of the same into Dry River Canyon. The Kleinfelder conclusions appear to be inconsistent with these findings. However, the authors of the report did not enter the Dry River Canyon or determine the extent of the underlying aquifers therein. Moreover, while recognizing that these perched aquifers were "likely to develop following precipitation," the report's authors did not do any independent on -site evaluation of perched aquifer's on the site, or down - gradient off -site, and instead relied on subsurface data from a 2004 report that was collected during the dry season in June. As such, the report is not based on any observed subsurface conditions during the fall through spring, on either the subject site or Dry River Canyon, and provide no basis for questioning the analysis put forth by the experienced, knowledgeable and unbiased Geologists from Deschutes National Forest. Other important questions include: What happens to water that will collect in the bottom of the basalt mine? If the water is left where it collects, wouldn't it interfere with mining operations? Wouldn't the mine operator prefer to keep the floor of its excavation dry, so equipment could move freely about the site without encountering pools of water? What would the operator do with the trapped water? Pump it out of the pit? If so, where to? If so, what would the quality of the pumped water be (for example, in terms of sediment and turbidity and temperature)? If so, what would the impacts of the pumped water be on the quality of water in the areas where the water is pumped (and especially on the nearby ground and surface water)? The Applicant has failed to address these important issues. Deschutes County Board of Commissioners May 28, 2008 Page 11 8. Impacts from Dust. LUBA remanded the prior decision based on dust impacts stating: "OAR 660 - 023- 0180(5)(d) requires the county to evaluate the ESEE consequences of allowing mining on those conflicts that cannot be minimized under OAR 660- 023- 0180(5)(c), under three additional listed considerations, including any'[r]easonable and practicable measures that could be taken to reduce the identified adverse effects.' See n. 8. As far as we can tell, the county did not evaluate dust generated by blasting, or determine if such conflicts with the Walker residence can be minimized or reduced." The applicant attempts to skirt this issue by arguing that "[b]lasting does not occur very often" and that it can "minimize or even eliminate blasting generated dust" by only blasting when the "wind directions are blowing away from the Walker residence." Issues on Remand, p. 9. The applicant goes on to argue that since it previously testified that "blasting activities generally occur during winter months" and it has provided anemometer readings for approximately one month in the winter that show wind directions blowing either "westerly" part of the time and to the west part of the time, there would be no impact on the Walker residence from dust. Id. at 9 -10 (Emphasis added). The applicant assumes that which it is required to prove. While it may be the case that applicant testified that blasting activities generally occur during winter months. This testimony does not equate to a condition requiring the applicant to limit its blasting activity to only those winter months. Nor does this testimony reflect that blasting would only occur during the one -month period between November 19 and December 26, for which applicant has provided some data. Thus, this anemometer data does not provide any basis to believe that the applicant has mitigated the impacts from dust associated with its proposed operation. What's more, during the single month that applicant sampled, the applicant's data shows the wind blowing toward the Walker residence and Dry River Canyon about 20% of the time. The approximately one month of anemometer data regarding wind direction is not a substitute for an analysis of dust impacts for the Walker residence. Instead, what the applicant has provided is an extremely limited qualitative assessment of meteorological conditions. The only feasible method for determining whether the mining activity meets applicable air and dust fallout standards is to perform air dispersion modeling. Deschutes County Board of Commissioners May 28, 2008 Page 12 This kind of quantitative modeling is routinely used by the Oregon Department of Environmental Quality and United States Environmental Protection Agency to verify compliance with air quality standards, and is the only method to verify whether a proposed source (not yet built) can be permitted from an air quality standpoint. Without air dispersion modeling Deschutes County has no basis to determine whether the proposed expansion will cause significant air pollution and dust fallout impacts, whether the project will or can be mitigated to eliminate potential impacts, or the degree and downwind distance that potential significant impacts could occur. Since the applicant cannot establish that its proposed impacts will be mitigated to insignificance without first providing this quantitative baseline data (which it has not provided), its application cannot be approved. At a minimum, air dispersion modeling — similar to that performed .n 2001 to verify compliance for Eugene Sand and Gravel's particulate air emissions (at a proposed aggregate site in Lane County), must address particulate emission rates, a presentation of how these emissions are released into the air (including dates, times and locations for blasting activities), verification of whether PMlo and PM2.5 air concentrations are mitigated to levels below applicable ambient air quality standards, and verifying whether peak offsite dust deposition rate meets applicable DEQ standards. Such modeling would take into account both wind speed and direction, on an hour -by -hour basis, to determine whether a particular offsite location is downwind from any given emission source. The applicant has simply failed to conduct the required analysis and cannot demonstrate that its proposal would mitigate conflicts. The dust created by the proposed blasting and other mining activities would likely contain significant concentrations of fine particulate matter, classified as either PMlo (particulate matter less than ten microns in diameter), or PM23 (less than 2.5 microns in diameter). This particulate matter is among the most harmful of all air pollutants, due to the fact that it evades a respiratory system's natural defenses lodges deep in the lungs. It is especially harmful to persons suffering from asthma, and chronic obstructive pulmonary disease (COPD), and heart disease. Even in low concentrations, such fine particulate matter has been linked to premature death. Since the applicant has failed to demonstrate that its emissions of dust would comply with applicable standards for particulate matter, its proposal contains an inherent risk to the public (including the Walker residence) that is too great to permit mining activity to occur on the property. Finally, the Applicant's data on wind direction is both skimpy and wrong. Please find enclosed wind direction data prepared by the Oregon Department of Transportation (ODOT) for this area. The data from ODOT is significantly different from the Klienfelder data for the same time period. Deschutes County Board of Commissioners May 28, 2008 Page 13 • Klienfelder reports the wind blows from the south 22.9% of the time. • ODOT indicates the wind blows from the south 57.9% of the time. [Please recall the Walker residence is located a short distance north of the proposed mine and thus would be in the direct path of dust from the mine, including from crushing, loading and hauling activities.] • Klienfelder report the wind blows from the west 62.6% of the time. • ODOT indicates it is only 6.57% • Kleindifelder reports 37.4 % of the time the wind was blowing from the east. • ODOT reports just 2.44% • Kleinfielder did not address wind blowing from the North. • ODOT reports 33.97% Even if the Kleinfielder data were correct (which it is not), data from one month do not accurately represent prevailing winds in this area during the course of a year. The Applicant's conclusions drawn from the Kleinfelder data are not supported by substantial evidence or adequate reasons. For all of the above reasons, plus more contained in the exhibits we are submitting, the application should be denied. Thank you for your consideration of these remarks. Very truly yours, HLTTCHINSON, COX, COONS, D,i4 RIEST, ORR Sr SHERLOCK, P.C. Dougl . DuPriest DMD / erl Enclosures cc: Robert Lovlien Clients c• IN REPLY REFER TO: 1610 (OR056) United States Department of the Interior BUREAU OF LAND MANAGEMENT Prineville District Office 3050 N.E. 3rd Street Prineville, Oregon 97754 MAY 3 0 2008 Paul Blikstad, Senior Planner Deschutes County Community Development Department 117 NW Lafayette Avenue Bend, OR 97701 -1925 Dear Mr. Blikstad: Recently, Deschutes County received an application for a Plan Amendment and Zone Change (PA- 04- 8/ZC- 04 -6), which would allow for 365 acres of Exclusive Farm Use -Horse Ridge subzone (EFU HR) to Surface Mining (SM) next to Bureau of Land Management (BLM) administered public land in Millican Valley. Our comments on the application relate to safety issues that may result from operation of the area for surface mining. Since the Prineville District (District) of the BLM administers the largest amount of public land in the project area, we would also like to share information regarding wildlife and significant habitat values associated with the area. This information is included as an attachment after our comments. I suggest you contact the Oregon Department of Fish & Wildlife regarding potential effects on the sage - grouse population. The District's primary concern is safety of motorists using the roads and trails adjacent to the area proposed for SM zoning. The Spencer Well Road is one of the primary roads used regionally to access the BLM South Millican Off Highway Vehicle (OHV) Trail System and the U.S. Forest Service East Fort Rock OHV Trail System. The latter is open year -round to OHV use. Motorcycle /ATV Trail #30 crosses the Spencer Well Road at its junction with State Highway 20. Trucks pulling out of the mining area onto Spencer Well road would traverse both lanes of Spencer Well Road, creating a safety hazard to people traveling to and from OHV riding areas. Increased truck traffic on and off Highway 20 would also increase potential accidents at the Highway 20 /Spencer Well intersection. Trucks may encounter OHV riders crossing Spencer Well Road on Trail #30. These riders are not accustomed to yielding to traffic, which may lead to collisions between trucks and OHV riders, or between trucks slowing or stopped to avoid hitting riders, in turn requiring vehicles on Highway 20 to also slow down or stop, creating new safety hazards on both roads. RECEIVED JUN 0 2 2008 Deschutes County CDD Another safety concern relates to dust. Dusty conditions will result from vegetation removal and wind events common in this area. Dusty conditions near Highway 20 may result in dust crossing the highway, decreasing driver visibility. To mitigate these potential safety issues, the District suggests: a) placing the entrance to the SM area off Spencer Well Road such that it allows adequate site distance north and south, b) installing signs on Spencer Well Road and Highway 20 cautioning drivers to go slow and watch for trucks and OHV riders, c) using vegetative buffers and water to limit dust, d) limiting operations if wind events are carrying dust across the highway. We appreciate the opportunity to comment on this proposed action and hope you find our comments helpful. If you have any questions regarding the effects to sage - grouse, please contact Jan Hanf, Prineville District Biologist (541/416- 6721). Berry Phelps, Recreation Planner (541/416- 6723), can answer questions regarding OHV use in the area. Sincerely, Molly own Field Manager, Deschutes Resource Area Enclosures 1.1.13. DEPARTMENT OF ME INTERIOR BUREAU M UM W...MEW U.S. Department of the Interior Bureau of Land Management Prineville District Office 185 East 4th Street, P.O. Box 550, Prineville, Oregon 97754 December 1994 Sage Grouse in the High Desert of Central Oregon: Results of a Study, 1988-1993 Information on greater sage - grouse The District would like to provide a landscape perspective on greater sage - grouse (BLM status - sensitive) which has generated high interest throughout the west and is undergoing review for listing under the Endangered Species Act of 1973. Although Millican Valley is on the fringe of the species range, maintaining a stable expanse of suitable habitat is paramount for retaining the western portion of the greater sage - grouse range. In the early 1990s, declining numbers of sage - grouse, concerns for species extirpation, as well as concerns for loss, degradation, and fragmentation of the species habitat, led to a greater sage - grouse radio - telemetry study. A description of the study and findings are contained in the attached document entitled "Sage Grouse in the High Desert of Central Oregon: Results of a Study, 1988 - 1993" (hereafter referred to as the "Study "). Prineville District, in cooperation with the Oregon Department of Fish and Wildlife, led the study to determine sage - grouse seasonal use areas, document the movements of birds, and estimate over - wintering sage - grouse populations. The study showed Millican Valley provides important year -round habitat for sage - grouse including habitat for breeding, nesting, brood - rearing and over - wintering. Sage- grouse were also found to make extensive movements between seasonal use areas and utilize an expansive land area, further supporting the importance of providing for large areas of sagebrush habitat. (Study, Figures 11 and 12). A significant study finding was the importance of Millican Valley as a wintering area. This became clear, particularly during the high precipitation winter of 1992 -1993, when sage - grouse use was concentrated in Millican Valley due it receiving lesser amounts of snow than surrounding areas which made sagebrush available to the birds. Researchers have identified wintering areas as crucial to sage - grouse and as a major factor determining sage - grouse distribution. Where winter habitat has been eliminated, sage - grouse populations have been reduced over large areas. For this reason, sagebrush control projects are not recommended for wintering areas (Study, page 42, Sec. 8 Management Recommendations, Sec. 6 Winter Habitat 1). The study documented sage - grouse breeding habitat in Millican Valley including the lek which supported the largest number of male attendance on the District. The study also found that sage - grouse mating was disrupted by livestock and people. Recommendations to mitigate this issue include minimizing activities associated with livestock and people around leks during the breeding season (Study, page 41, General Recommendations, Sec. 1, 3). More recent information suggests that a four mile radius or larger should be managed for breeding and nesting habitat around leks. Currently, the District is working to improve the quality of sage - grouse habitat where needed; limit conflicting land uses during sensitive times in the sage - grouse life cycle; explore possibilities to enhance land use practices on private lands that are important to sage - grouse; and monitor the District's sage - grouse population. (Study, Executive Summary "Management Recommendations" page x). The District is also working to provide technical support and information regarding the management of sage - grouse habitat on private lands (Study, page 40, General Recommendation 8). Additionally, a reference worth noting would be the October 2007 recommendations from Wyoming's Sage Grouse Implementation Team to the Wyoming Governor. This included a strategy to minimize impacts of subdivision development on sagebrush and sage- grouse by increasing the acreage exemption for subdividing land from the current 40 acres to 640 acres. Further, it was recommended that the footprint of energy development be reduced. Wyoming is anxious to avoid having sage - grouse protected under the federal Endangered Species Act. Since completion of the 1988 -1993 study, land use and ownership have changed within Millican Valley, and as such, so has the human footprint on the land (see attached "draft" maps titled "Sage- grouse habitat and seasonal use areas" and "Sage- grouse and the human footprint "). While the latter map is not designed to depict all public and private land activities associated with Millican Valley, it does suggest some of the cumulative effects that may be associated with continued growth and human activity to sage - grouse and their habitats. The map depicts some of the roads and recreational trails, but does not show livestock use which does occur on the majority of the land that BLM administers within the valley. The study also discusses some of the species general ecology. This provides further insight into periods of time during the species life cycle when it may be more sensitive or vulnerable to activities in Millican Valley: Winter — November to March Breeding/Nesting /Early Brood - rearing — March 1 to June 30 (although active males were found here the latter part of February) Late Brood - rearing — July 1- November SAGE - GROUSE HABITAT AND SEASONAL USE AREAS • AA • • 144Legend Breeding /Nesting /Early Brood (3/1 - 6/30) Late Brood (7/1 - 11/14) Winter (11/15 - 2/28) SG Nest Locations SG Captures by Season 'Breeding *Late Brood \ *Winter /INTER USE AREA [DEER WINTER RANGE Bureau of Land Management US Forest Service bPrivate or Undefined 01-MILE LEK BUFFER MAJOR HIGHWAYS • DRAFT 0 0.4 0.8 1.6 Miles I l l l l l l l l ■• SAGE - GROUSE AND THE HUMAN FOOTPRINT Legend +Easiest ore Difficult ■Most Difficult El Shared Use Road Breeding /Nesting /Early Brood (311 - 6/30) 1 • Late Brood (7/1 - 11/14) • Winter (11/15 - 2/28) - Mountain Bike Trails —Roads — MAJOR HIGHWAYS "3%G Nest Locations SG Captures by Season Breeding Skate Brood •Winter Sections Human Footprint Paintball playing field Real estate development Rock Quarry W Id horse sanctuary MILE LEK BUFFER DEER WINTER RANGE Bureau of Land Management US Forest Service []Private or Undefined 2 Miles DRAFT 0.5 M. .CIc mi,t, 6-7144keDtv. 1. May 28, 2008 Memo from Tammie & Clay Walker to Deschutes County Board of Commissioners Re: Issues on Remand. 2. May 28, 2008 Memo from Tammie & Clay Walker to Deschutes County Board of Commissioners Re: Issues on Remand — Coyote Well. 3. May 28, 2008 Memo from Tammie Walker to Deschutes County Re: Best Shelter. 4. Map of Deschutes Basin. 5. Factors Controlling Seasonal and Long -Term Ground -Water Level Variations in the Middle Deschutes Basin, Oregon, USGS, Kenneth E. Lite and Marshall W. Gannett. 6. Small Private Landowner Habitat Restoration in Central Oregon, Gary A. Hostick. 7. May 23, 2008 letter from Kit Larsen to attorney Douglas M. DuPriest Re: Greater Sage Grouse and Proposed Mining in the Millican Valley. 8. Excerpts from the Deschutes County Historical Landmarks Commission Meeting Minutes, January 26, 2006. 9. Excerpts from the Deschutes County Historical Landmarks Commission Meeting Minutes, April 19, 2007. 10. November 16, 2007 email from Elizabeth Budy to Susan Gray and Tammera Walker Re: SHPO Update. 11. August 3, 2005 email from Susan Gray to Tammera Walker Re: Burns Paiute Visit. 12. USGS Deschutes Basin Ground -Water Study. 13. August 2, 2005 email from Marshall Gannett to Tammera Walker Re: Ground Water. 14. April 15, 2005 email from Larry Chitwood to Tammera Walker. 15. Copy of 1988 DVD showing interview with Wilson Wewa, Paiute Indian, on location at Dry River Canyon.