HomeMy WebLinkAboutWhether to Hear - Surface Mining to Rural Res1�v� E5 O
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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of October 1, 2008
Please see directions for completing this document on the next page.
DATE: September 16, 2008
FROM: Will Groves, Senior Planner Community Development Department
388-6518
TITLE OF AGENDA ITEM:
A decision on whether to hear an appeal of the Hearings Officers denial of a comprehensive plan text
and map amendment and zone change from Surface Mining to Rural Residential to allow
redevelopment of extensively mined site. (Applicant: Daniels Group LLC). File nos.: ZC-08-1 and
PA -08-1 (A-08-15).
PUBLIC HEARING ON THIS DATE? Yes.
BACKGROUND AND POLICY IMPLICATIONS:
The applicant requests approval of a plan amendment to change the designation of the subject property
from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and to
remove Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and
aggregate resource sites. The applicant also requests approval of a zone change for the subject property
to Rural Residential (RR -10) for that portion now zoned Surface Mining (SM) and Exclusive Farm 'Ise
(EFU-LB) The removal of the SM zoning on the subject property also would remove the existing
Surface Mining Impact Area Combining Zone (SMIA) zoning on property located within one-half mile
of the SM Zone. If these applications are approved, the applicant plans to redevelop the site as a
residential planned unit development with up to 74 dwellings.
The Hearings Officer agreed with the applicant that the site does not include significant mineral or
aggregate resources and that it is appropriate to remove the site from the county's Goal 5 mineral and
aggregate inventory. In addition, the Hearings Officer concluded that the site does not include
agricultural or forest soils, and cannot be put to resource use. Therefore, a non -resource designation is
appropriate. However, the Hearings Officer concluded that the applicant has failed to demonstrate that
the proposal is consistent with the Transportation Planning Rule (TPR), or that reclamation of the site
will occur in accordance with the approved reclamation plan for the site. Therefore, the Hearings
Officer concluded that these applications cannot be approved.
The 556 -acre subject property is predominantly designated Surface Mine under the Comprehensive
Plan. However approximately 9.6 acres are designated agriculture. Under 22.28.030(C), the portio] . of
this plan amendment and zone change concerning lands designated for agricultural use shall be hear 1 de
novo before the Board of County Commissioners without the necessity of filing an appeal.
The applicant filed appeal A-08-15 on August 22, 2008, requesting limited de novo review of the
application. As discussed in the attached staff memo, the Board must conduct a de novo hearing on the
portion of the plan amendment and zone change concerning lands designated for agricultural use.
However, the Board may choose to decline to hear, hear limited de novo, or hear de novo the the
portion of the plan amendment and zone change concerning lands designated for surface mine. If the
Board agrees to hear the appeal, the County Code requires that the hearing be consolidated with the
hearing on the agricultural portion of the application.
FISCAL IMPLICATIONS:
None
RECOMMENDATION & ACTION REQUESTED:
Staff recommends that the Board accept the appeal and hear the entire matter de novo with no
limitations.
ATTENDANCE: Will Groves
DISTRIBUTION OF DOCUMENTS:
Legal Counsel
Will Groves
0
T
s
September 11, 2008
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701.1925
(541)388-6575 FAX (541)385 1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
To: Deschutes Board of County Commissioners
From: Will Groves, Senior Planner
Subject: A decision on whether to hear an appeal of the Hearings Officers denial
of a comprehensive plan text and map amendment and zone change
from Surface Mining to Rural Residential to allow redevelopment of
extensively mined site. (Applicant: Daniels Group LLC). File nos.: ZC-
08-1 and PA -08-1 (A-08-15).
BACKGROUND
The applicant requests approval of a plan amendment to change the designation of the
subject property from Surface Mine (SM) and Agriculture (AG) to Rural Residential
Exception Area (RREA) and to remove Surface Mining Site 461 from the county's Goal 5
inventory of significant mineral and aggregate resource sites. The applicant also requests
approval of a zone change from Surface Mining (SM) and Exclusive Farm Use (EFU-LB) to
Rural Residential (RR -10) for the subject property. The removal of the SM zoning on the
subject property also would remove the existing Surface Mining Impact Area Combining
Zone (SMIA) zoning on property located within one-half mile of the SM Zone. If these
applications are approved, the applicant plans to redevelop the site as a residential planned
unit development with up to 74 dwellings.
The Hearings Officer agreed with the applicant the site does not include significant mineral
or aggregate resources and that it is appropriate to remove the site from the county's Goal 5
mineral and aggregate inventory. In addition, the Hearings Officer concluded that the site
does not include agricultural or forest soils, and cannot be put to resource use. Therefore, a
non -resource designation is appropriate. However, the Hearings Officer concluded that the
applicant has failed to demonstrate that the proposal is consistent with the Transportation
Planning Rule (TPR), or that reclamation of the site will occur in accordance with the
Quality Services Performed with Pride
approved reclamation plan for the site. Therefore, the Hearings Officer concluded that these
applications cannot be approved.
The 556 -acre subject property is predominantly designated Surface Mine under the
Comprehensive Plan. However approximately 9.6 acres are designated agriculture.
Under 22.28.030(C), the portion of this plan amendment and zone change concerning
lands designated for agricultural use shall be heard de novo before the Board of County
Commissioners without the necessity of filing an appeal.
The applicant filed appeal A-08-15 on August 22, 2008, requesting limited de novo
review of that portion of the application that pertains to property designated Surface
Mine in the Comprehensive Plan. As discussed above, the Board must hear the portion
of the plan amendment and zone change concerning lands designated for agricultural
use de novo. However, the Board may choose to decline to hear, hear limited de novo,
or hear de novo the portion of the plan amendment and zone change concerning lands
designated for surface mine.
The applicant believes that the Board has the option of choosing a limited de novo
option to hear the land designated for agriculture because of the provision in DCC
22.28.030(C) that says that all other provisions of DCC Title 22 are applicable. Staff,
believes, however, that the intent of DCC 22.28.030(C) is to require a full -de novo
hearing. If the Board had the option of deciding what type of hearing to have regarding
plan amendments for agricultural land, there would be no need to specify that the
hearing be de novo.
Additionally, DCC 22.28.030(D) says that, if a party wants the Board to review the non-
agricultural portion of a plan amendment, the party must appeal to the party and "The
plan amendment shall be heard by the Board consolidated with the appeal of those other
applications." What is not absolutely clear from this is whether the Board must hear all
by way of a de novo hearing. Staff and legal counsel believes that the Board must hear
the agricultural portion de novo but may choose to include in the same hearing a limited
de novo or hearing on the record for the non-agricultural portion.
Because what type of hearing, if any, to have on each of the portion of this application is
a matter of code interpretation, staff requests that the Board provide direction to staff as
to the scope of review for the hearing. Staff will then provide the required notice for the
hearing accordingly.
STAFF DISCUSSION
Staff recommends that the Board accept the appeal and hear the entire matter de novo.
Limiting testimony to specific issues on specific portions of the property will significantly
complicate the hearing. Also, given the intense public interest in this matter, a rule -
complicated public hearing may create public frustration with the process.
DOCUMENTATION
A copy of the Notice of Appeal, staff report, and Hearings Officer decision are attached
for your review.
SCHEDULE
This item is scheduled for the Board's regular meeting on September 29, 2008. Please
feel free to contact me with any questions or concerns.
Community Development DepartmPianning pe nt
117 NW Lafayette Avenue, Bend, OR 97701-1825
(541) 388-6575 - Fax (541) 385-1764
http://www.deschutes.org/cdd
APPEAL APPLICATION
FEE:
EVERY NOTICE OF APPEAL SHALL INCLUDE;
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the. Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
It is the responsibility of the Appellant to complete a Notice of Appeal as set forth In Chapter 22.32 of the County
Code. The Notice of Appeal on the reverse side of this form must Include the Items listed above. Failure to complete
all of the above may render an appeal invalid. Any additional comments should be Included on the Notice of Appeal.
Appellant's Name (print): The Daniels Group, LLC Phone: ( )
Mailing Address: 1 1 1 1 Main Street.
700 City/State/Zip: Vancouver, WA 98660
Land Use Application Being Appealed: ZC 08-1 . PA -08-1
Property Description: To
ship 14 , Rang
Appellant's Signature:
Agent: Tia M. Lewis
Schwabe Williams
549 SW Mill View
Bend, OR 97702
ion
Tax Lot 1501 , 1502, 1503. 1505. 1 600
n Wyatt
Wa , Suite 100
#5 1-749-4044
EXCEPT AS PROVIDED IN SE ON 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(over)
SCPS)ISBI)
1/07
BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
THE DANIELS GROUP, ) File No. ZC-08-1/PA-08-1
Applicant ) NOTICE OF APPEAL
APPLICANT: The Daniels Group, LLC
111 Main Street, Suite 700
Vancouver, WA 98660
ATTORNEY: Tia M. Lewis, OSB #93343
SCHWABE, WILLIAMSON & WYATT
549 SW Mill View Way, Suite 100
Bend OR 97702
Applicant, The Daniels Group, LLC, by and through their attorney, Tia M. Lewis, submit the
following Notice of Appeal of the decision of the Deschutes County Hearings Officer dated
August 6 and mailed August 11, 2008 recommending denial of its application for a plan
amendment and zone change from Surface Mining to Rural Residential to allow redevelopment
of the Lower Bridge diatomaceous mining site. The Applicant has standing to file this appeal
because it participated in the review below by filing the application and submitting written and
oral testimony at the hearing before the Deschutes County Hearings Officer. The Applicant
requests the Board limit de novo review to the two issues only as set forth herein.
I. REQUEST FOR DE NOVO REVIEW.
Pursuant to DCC 22.32.027(B)(2) and DCC 22.28.030, the Applicant requests de novo review of
the decision because it presents issues of significant public policy and county -wide implications
for Deschutes County as the decision is one which involves a large surface mining site located on
a prominent stretch of a wild and scenic portion of the Deschutes River. The decision involves
significant issues concerning redevelopment and reclamation of the former mining site for rural
residential use and thereby provides an opportunity and incentive to improve public health and
safety with the redevelopment. The decision also provides an opportunity for developer funded
transportation improvements in an area experiencing transportation deficiencies.
De novo review of this decision by the Board of Deschutes County Commissioners is necessary
to establish a reasonable interpretation of the County ordinances, a previous surface mining
decision on this site, the state statutes and the administrative rules implementing the Statewide
Planning Goals so that the citizens of Deschutes County can rely on such interpretations for
future land use applications. Such an interpretation cannot be adequately and fairly made by any
Page 1- NOTICE OF APPEAL
PDX/I 16094/1507520A12862659.1
other body as the Board of County Commissioners is the most appropriate authority for setting
policy and interpreting the statutes, administrative rules and county ordinances as they apply to
surface mining, transportation improvements and resource land within Deschutes County.
Further, the applicant would like the opportunity to submit additional evidence addressing the
Hearings Officer's findings which include factual errors and conclusions which could not have
been addressed in the hearing before the Hearings Officer.
The issues relied upon for this appeal are set forth below. The Applicant requests, pursuant to
DCC 22.32.027 B3, the Board limit the de novo review solely to the two issues set forth
below. All other issues were fully briefed, argues and correctly decided by the Hearings Officer.
The facts in the record and those which will be supplied at the hearing before the Board will
demonstrate that the application meets all relevant land use approval criteria or can meet the
approval criteria through the imposition of conditions of approval, and therefore, should be
approved.
II. TIME PERIOD FOR REVIEW.
The present application for a plan amendment and zone change is not subject to the 150 day
deadline within which the County has to make decisions on certain land use applications.
III. ISSUES FOR APPEAL.
Applicant raises the following issues for appeal:
1. The Hearings Officer erred in concluding that the application should be denied on the
basis that it did not comply with the Transportation Planning Rule OAR 660-012 and the
applicable goals, plan policies and ordinances relating to transportation impacts.
2. The Hearings Officer erred concluding the appy should be de ' • based on the
failure to complete the reclamation set forth in SP -85
/sr sr -
DATED: August ,�I , 2008
. Lewis, OSB #933
SCHWABE, WILLIAMSON & WYATT
Attorney for Applicant/Appellant
Page 2 - NOTICE OF APPEAL
PDX/116094/150752/P1A2862659.1
Community Development Department
Planning Division Building Safety Division Environmental Health Division
ffittiEVREN
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.u;/cdd/
Staff Report
The Deschutes County Hearings Officer will hold a Public Hearing on March 18, 2008 at 6:30
P.M. in the Barnes and Sawyer rooms of the Deschutes Services Building located at 1300 NW
Wall Street in Bend, to consider the following request:
FILE NUMBERS: ZC-08-1, PA -08-1
LOCATION: The property is identified on the County Assessor's Tax Map as 14-12,
Tax Lots 1501, 1502, 1503, part of 1505, and 1600.
APPLICANT: The Daniels Group, LLC
1111 Main Street, Suite 700
Vancouver, WA 98660
OWNER:
Norman L. Wiegand, et al.
895 SW 23rd St.
Redmond, OR 97756
ATTORNEY
/PLANNER: Tia M. Lewis
Mark Rust, AICP
Schwabe, Williamson & Wyatt, PC
549 SW Mill View Way, Suite 101
Bend, OR 97702
REQUEST:
Comprehensive plan text and map amendment and zone change from
Surface Mining to Rural Residential to allow redevelopment of extensively
mined, non-agricultural property, including a nonresource designation.
STAFF CONTACT: Will Groves, Senior Planner
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.52, Surface Mining
2. Chapter 18.60, Rural Residential zone
* Section 18.52.200, Termination of the Surface Mining Zoning and
Surrounding Surface Mining Impact Area Combining Zone
ZC-07-5 Page 1 of 31
Quality Services Performed with Pride
2. Chapter 18.136, Amendments
* Section 18.136.020, Rezoning Standards
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
* Section 22.20.040, Final Action in Land Use Actions
C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive
Plan
1. Chapter 23.100, Surface Mining
D. Oregon Administrative Rules, Chapter 660
1. Division 12, Transportation Planning
* OAR 660-12-060, Plan and Land Use Regulation Amendments
2. Division 15, Statewide Planning Goals and Guidelines
3. Division 23-0180, Mineral and Aggregate Resources
II. FINDINGS OF FACT:
A. Location: The property is identified on the County Assessor's tax map as 14-12, tax lots
1501, 1502, 1503, part of 1505, and 1600. Tax Lot 1501 has an assigned address of
70420 NW Lower Bridge Way, Terrebonne.
B. Zoning and Plan Designation: All tax Tots appear to be designated "Surface Mining" on
the Comprehensive Plan Map, though the exact boundaries are unclear. The mine is
designated site 461 in the county's Goal 5 inventory of significant mineral and aggregate
resource sites.
Tax lot 1501:
Tax Lot 1502:
Tax Lot 1503:
Tax Lot 1505:
Tax Lot 1600:
249.1 acres zoned Surface Mining (SM), including 9.8
acres in Landscape Management Combining Zone (LM)
188.1 acres zoned SM, including 82.3 acres zoned LM
64.4 acres zoned SM, including 64.4 acres zoned LM
Only 42.1 acres of this 72.47 acre tax lot are subject to this
application. The most southerly portion of this lot adjacent
to Teater Road and zoned EFU is not subject to the
proposed zone change.
10.6 acres total includes 9.6 acres of Exclusive Form Use
1.0 acre zoned Flood Plain, 10.6 acres zoned LM, and
10.6 acres zoned SMIA
C. Site Description: The 556.9 acre subject property is a geologically unique tract
straddling Lower Bridge Road about 6 miles north of Terrebonne, as shown on the Site
Map, submitted as Exhibit 1 and on the aerial photograph, submitted as Exhibit 2. To an
ZC-07-5 Page 2 of 31
observer driving Lower Bridge Road, the site is notable for the chalky white appearance
of the exposed diatomite layers.
As illustrated on the submitted Site Map, the subject property includes Tax Lots 1501,
1502, 1503, 1505, 1600, but excludes the EFU-zoned portion of Tax Lot 1505 bordering
Teater Road. The subject property can be divided into five geographic regions: eastern,
northern, Deep Canyon, western, and central. The land includes four general landscape
types: quarry operations (old and recent), hills/buttes (natural and formed), plains
(unmined, mostly natural vegetation), and canyons and drainages (natural vegetation,
unmined).
The eastern region is east of Lower Bridge Road, and extends east to a steep slope that
descends to the Deschutes River. It is generally level and covered with overburden rock
apparently removed from the former diatomite mining operations. The property drops
approximately 100 feet in elevation to the Deschutes River. The River is Tined with
wetlands shown in the National Wetlands Inventory Cline Falls map.
The northern region stretches west along the river from Lower Bridge to Deep Canyon,
then south along the southern rim of Deep Canyon. The ground is relatively level,
except for steep canyons that reach down to the Deschutes and Deep Canyon. North
of the diatomite mining area, it is a relatively undisturbed "plains" landscape with mature
juniper. The subject property is separated from the River in this area by Tax Lot 14-12
1509, owned by the Oregon Parks and Recreation Department.
Deep Canyon is a small canyon with a spring and a seasonal pond that drain to the
Deschutes River. Two unimproved roads cross the canyon. Across the northern bridge
is the western region, a flat area formerly mined for diatomite. The central region, a
quarry landscape, includes about half of the subject property area. The area was
extensively mined for diatomite, and several derelict buildings and miscellaneous debris
piles remain. A thick diatomite layer and stockpiles make up much of this area, which is
accessible only with an all -terrain vehicle. Dry man-made ponds and a pump house are
located in the western area of the central region. This section of subject property is
traversed by several unimproved roads.
This reach of the Deschutes River is designated as a Federal Wild and Scenic River and
an Oregon Scenic River. A steep bank limits pedestrian access to the river. However,
the river is accessible from Lower Bridge, and from the public park near the bridge.
Staff recommends that the Hearings Officer request a list and descriptions of structures
and other man-made features with a map to gain a better understanding of the site.
D. Soils: Approximately 80% of the soils on the site are Class 7 and 8. Steve Wert, a
consulting soil scientist, visited the site and conducted preliminary research of the soils
present on the site. He also spoke with National Resource Conservation Service about
the property. His findings are summarized in a letter dated October 4, 2006: "According
to NRCS maps, the great majority of the property does not even have a "soil type," but is
classified as a "land type" called "Unit 97" which is rock and gravel pits. Unit 97 is rated
Class 7 and 8, and NRCS will stand by that rating." However, not all of the property is
class 7 or 8. The following table summarizes soils data by tax lot.
Approximate Acreage of Soil Type by Tax Lot
ZC-07-5 Page 3 of 31
Tax Lot
NRCS Land /
Soil Type
Soil Classes
Approximate
acreage'
Zoning
1501
249.1
acres
97
81F
138A
138B
71A
71B
31A
7 & 8
7&8
6, not prime
6, not prime
6, prime if irrigated
6, prime if irrigated
6, prime if irrigated
159 acres
24 acres
48 acres
1.1 acres
12.2 acres
1.8 acres
3.3 acres
SM, SMIA, LM
1502
188.1
acres
97
81F
138A
7 & 8
7 & 8
6, not prime
160 acres
9 acres
19 acres
SM, SMIA, LM,
FP
1503
64.4
acres
97
31B
71A
7 & 8
6, prime if irrigated
6, prime if irrigated
42 acres
18 acres
3.4 acres
SM, SMIA, LM,
FP, EFU
1505
41.2
acres
97
81F
7 & 8
7 & 8
39 acres
2 acres
SM, SMIA, LM,
FP
1600
10.6
acres
138A
81F
6, not prime
7&8
8.2 acres
2.4 acres
SMIA, FP, EFU
TOTAL
553.4
acres
7 & 8
6, not prime
6, prime if irrigated
79 % = 438 acres
14% = 76 acres
7% = 39 acres
E. Surrounding Zoning and Land Uses: This section describes zoning and land uses
within a 2 -mile radius of the center of the subject property. Surrounding zoning in the
area of the subject property includes Exclusive Farm Use—Lower Bridge (to the north,
west and south), Exclusive Farm Use-Terrebonne (to the east and further to the south),
Surface Mining (to the northeast), Rural Residential (to the east and southeast) and
Flood Plain associated with the Deschutes River. The Landscape Management
combining zone extends along the Deschutes River.
The subject property is predominantly surrounded by active agricultural lands, as shown
in the 2008 Google Earth aerial photo included in the record. The surface mining zoned
land to the northwest appears to be in agricultural production. Properties to the west
and southwest are sparsely developed with rural residences. Within a 3 -mile radius
there are nearly 700 parcels with over 400 residences.
F. Mining History: The subject property has a long, inconsistently documented mining
history. Diatomite (also known as diatomaceous earth or "D.E." or Dacalite) is a chalk -
like, sedimentary rock consisting mainly of the ancient skeletons of dead diatoms, which
are single -celled aquatic plants. Diatomite mining began on the property prior to the
1920s. Large scale production began in 1936. The Great Lakes Carbon Company
mined the property from 1944 to 1961. The mining history between 1966 and 1980 is
unclear. The Oregon Department of Geology and Mineral Industries (DOGAMI) file for
1 Acreages are based on area measurements taken from the Deschutes LAVA GIS. Due to
measurement error, these acreages may not equal the deed or Assessor's acreages for the tax
lots.
ZC-07-5 Page 4 of 31
this site begins in 1980. That file indicates that multiple companies have mined the site,
mostly for diatomite but also for aggregate. Although multiple mining permits were
issued over the years, various companies were cited for violating environmental laws,
mining permits, or operating without permits.
By 1980 Deschutes Valley Farms owned the site and leased it to Northwest Diatomite.
In January 1982, DOGAMI exempted Mid -Oregon Ready Mix from reclamation
requirements because the land was a mine prior to the effective date of the reclamation
rules. Mid -Oregon Crushing and Mid -Oregon Ready Mix were extracting aggregate by
1985. Various diatomite and gravel extraction activities occurred in the subsequent
years. By 1994, E.A. Moore was extracting, screening and crushing gravel on site.
Several DOGAMI inspections occurred over the years, which found reclamation plans
being implemented. By 2006, DOGAMI was ready to close the file on the site. A Limited
Exemption Closure Plan was submitted in late July, 2006. On July 31st DOGAMI closed
the file on the site.
Due to incomplete DOGAMI records and an apparent history of unpermitted mining, the
total quantity of aggregate and mineral removed from the site during over 80 years of
mining is unclear.
G. Zoning History: In 1985, 339 acres of the subject property was rezoned from Surface
Mining Reserve to Surface Mining. The applicants apparently anticipated that diatomite
mining would become economically viable again because a processing plant was being
constructed in Malheur County, which would enable the applicant to export it. The
Hearings Officer found that there was little local demand for diatomite, but that export of
the product after off-site processing partially justified the rezone.
In 1988, the Deschutes County Goal 5 Aggregate Inventory identified the site as an
aggregate resource (as opposed to a mineral resource, which includes diatomite) of
350,000 cubic yards. In the ESEE analysis for site 461, the Board identified the key
values that form the basis for the application of SM zoning to the mine site. These
include the importance of aggregate resources to development in Deschutes County, the
value to the County economy terms of materials and jobs, the presence of an estimated
350,000 cubic yards of aggregate on the site, and that the site is located near a major
roadway for highway maintenance and construction jobs.
Relevant Previous Land Use Decisions:
CU -74-156 — This record contains plan information for a solid and liquid waste disposal
site on the subject property. Staff believes this application was approved, as solid and
liquid waste storage occurred on the property. A variety wastes, including hazardous
wastes were stored on the site and subsequently removed. This is discussed more fully
later in this Staff Report.
MP -80-96 — Separated modern tax lots 1503 and 1505, as Parcel2, and 1506, as Parcel
3 from the remainder of the mining site.
ZC-85-3 - A zone change from surface mining reserve to surface mining on tax Tots
1501, 1502, 1600, and 704. This decision did not apply to the entire site, but was limited
to 339 acres. Condition 3 of this decision required a reclamation plan.
ZC-07-5 Page 5 of 31
SP -85-23 — A site plan to allow surface mining, aggregate mining, and rock crushing on
tax Tots 1501, 1502, 1600, and 704. This decision included reclamation specifications,
The applicant has stated that the topsoil is stockpiled and will be replaced
on the area mined approximately 12 inches deep. The applicant
proposed to motorgrade the site and seed it with fortress red fescue,
Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre
planted in the fall with fertilizer and mulch. The applicant also proposes
to plant evergreens for shade and windbreaks on the site.
This is a summary of the applicant submitted reclamation plan, attached as Exhibit C to
the Hearings Officer Decision in SP -85-23. Staff believes that this required reclamation
has not been performed and is unaware of any code enforcement complaint undertaken
to enforce this reclamation. Condition 1 of this decision required an updated reclamation
plan to include measures to prevent materials from eroding into the Deschutes River.
Staff has been unable to locate this updated reclamation plan.
ESEE Analysis #461 — On October 24, 1989 the Board of County Commissioners
rezoned the remainder of the 660 -acre site (comprised of modern tax Tots 1501, 1502,
1503, and 1507) to SM. This decision contains information about the quality and
quantity of aggregate and mineral resources on the property.
MP -90-74 — Divided historic tax lots 1501, 1507 and 1508 into two legal lots of 66 and
254 acres.
All of the above files are incorporated into this record by reference.
H. Proposal: The applicant requests approval of a plan amendment to change the
designation of the subject property from Surface Mine (SM) and Agriculture (AG) to
Rural Residential Exception Area (RREA) and to remove Surface Mining Site 461 from
the county's Goal 5 inventory of significant mineral and aggregate resource sites. The
applicant also requests approval of a zone change from SM and EFU-LB to RR -10 for
the subject property. The removal of the SM zoning on the subject property also would
remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on
property located within one-half mile of the SM Zone.
Staff notes that the site map submitted as Exhibit 1 shows areas presently zoned Flood
Plain (FP) as part of this rezoning proposal. Discussions with the applicant have
clarified that this proposal is not intended to rezone FP zoned lands.
I. Public/Private Agency Comments: The Planning Division mailed notice to several
agencies and received the following comments:
Deschutes County Transportation Planner: I have reviewed the submitted
application materials which would provide for a plan amendment from Surface Mining
(SM) to Rural Residential RR10) on 557 acres about six miles north and west of
Terrebonne. The applicant's traffic study finds the intersection of Lower Bridge
Way/U.S. 97 will not meet either the performance standards of Deschutes County or
ODOT with or without this development. The County sets a standard of Level of Service
(LOS) D for existing roads while the applicable ODOT volume/capacity (V/C) ratio is 0.70
ZC-07-5 Page 6 of 31
for the highway and 0.80 for the side street based on functional classification and posted
speed.
There is a programmed ODOT project in 2009 to reconfigure the Lower Bridge Way/97
and 11th Street/97 intersections. While this will improve the operations of these
intersections, it will not address the capacity issue as the project focuses more on
storage issues on the side streets.
The traffic analysis at Figure 5 on page 10 indicates a LOS F for Lower Bridge Way/97 in
2022 with the critical move being the left out from Lower Bridge to go north on 97. The
development does not add any trips to that failing move. As Figure 4 indicates, the
rezone will increase the number of northbound left turns from U.S. 97 onto Lower Bridge
Way from 11 to 31. The worksheets indicate the V/C of this move will degrade from 0.82
under existing zoning to 0.85 under the proposed zoning.
Based on the above, I would recommend the application be denied based on the
provisions of DCC 17.16.115(1)(1 and 2). The proposal would have a significant effect
on transportation facilities as defined by the Transportation Planning Rule (TPR) at
Oregon Administrative Rule (OAR) 660-012-060(2)(C).
If the development is approved, the applicant will need to provide mitigation sufficient to
avoid further degradation of the intersection as required by OAR 660-012-060(3)(c). As
this intersection is under the jurisdiction of ODOT, I would recommend deferring to the
state to describe and define the appropriate mitigation.
On March 3, 2008 the Transportation planner added: The TIA analysis was done for
approximately 55 units, but in today's paper it said they can build 74 units under the
cluster development. If that's true, then the traffic analysis should be redone to reflect
that and the intersections be reanalyzed.
Staff notes that the potential for 74 units represents a theoretical maximum number of
units on the property. Staff believes the applicant should provide an analysis based on
the maximum number of units. If fewer units are in fact developable, such evidence
should be presented to the Hearings Officer.
DEQ: On February 4, 2008, the Department (DEQ) received your notice for the chance
to comment on a proposed land -use zone change regarding the Diatomaceous Earth
(DE) Mine site located north of Lower Bridge Way west of Terrebonne. The proposal
would change the zoning from surface mining (industrial site) to rural residential.
Department staff has reviewed the Burden of Proof Statement. On Page 3, last
Paragraph, it states, "DEQ visited the site the week of May 8, 2006 and did not have any
concerns". While Department staff did visit the site, no statements were made about
concerns at that time. There are, in fact, a number of issues that should be considered:
Our primary concern regarding the proposed zone change is that when a
previous cleanup was conducted at the site it was based on the industrial land -
use of the property. The proposed action would change the zoning to rural
residential. The property owner and developer will need to demonstrate that the
site is cleaned up to the degree that it is suitable for residential land -use. The
Daniels Group should conduct additional environmental evaluation of past
historical activities (including the clean-up) to insure that the site is safe for
ZC-07-5 Page 7 of 31
residential use. The Department's Voluntary Clean -Up Program is presently in
contact with The Daniels Group to pose this issue.
Hazardous Waste Program files show that an inspection of the site was
conducted on April 26, 2006 and violations were documented [see attached Pre -
Enforcement Notice (PEN) PEN-HW-ERB-2006-14084, dated May 8, 2006]. The
violations (Class I and Class II) included hazardous waste, used oil, air quality
(open burning prohibited materials) and solid waste violations. On June 19, 2006,
the Department received a letter (dated June 13, 2006, attached) from the
property owner regarding the corrective actions to the violations. Because
corrective actions were taken and the owners were cooperative, the Department
issued a letter dated November 21, 2006, regarding the withdrawal of the PEN
(letter attached) and noted that the owner should consider the PEN a Warning
Letter.
There have been a number of past and recent dust complaints regarding the site
from near by residents. On January 4, 2008, the Department sent the owners of
the property a Notice of Nuisance Determination (attached) because of chronic
visible dust emissions problems at the site. Presently, the Daniels Group is
working with the Department on preventing dust from blowing around and off the
site. On January 15, 2008, Daniels Group submitted a Lower Bridge Road Dust
Mitigation Project plan (attached). The crystalline silica content in an outcrop
sample of the DE ore contains: quartz bulk 0.3% and cristobalite bulk 0.2%. Dust
blowing off of the DE site should be minimized because crystalline silica can
cause or aggravate respiratory health problems. On January 23, 2008, the
Department submitted a letter (attached) regarding comments on the
Reclamation Project the Daniels Group is conducting at the former mine site. We
believe the end result of this project will help resolve the dust problem at the site.
We are, however, concerned and interested in successful interim steps to
minimize visible dust emissions at the site.
The site was once regulated by the Department as a solid waste disposal site
(1973 through 1977): Deschutes Valley Farms Sanitation Permit #1062. The
Department has a Solid Waste file on activities at this site.
In the early 1980s the site, then called the Deschutes Valley Industrial Waste
Clean -Up Site, participated in Oregon's Voluntary Clean -Up Program. Please
refer to the Preliminary Assessment report on the Deschutes Valley Sanitation
site (attached dated December 30, 1987). It describes the history and what was
cleaned up at the site. Also attached is a letter (dated January 29, 1985) from the
DEQ Director that the clean-up at the site was completed to the levels necessary
for land zoned for industrial use.
DOGAMI - DOGAMI comments on this application are limited to: any future extraction of
aggregate material in excess of 5,000 cubic yards in any 12 -month period is limited to
on-site use for development of the property.
No Comment: Deschutes mailed notice, but did not receive a response from or
received a response of no comment from: Redmond Fire and Rescue, ODOT,
Watermaster, and Oregon State Parks.
J. Public Notice and Comments: The Planning Division mailed individual written notice of
the applicant's proposal and the public hearing to the owners of record of all property
located within 750 feet of the subject property. In addition, notice of the public hearing
was published in the "Bend Bulletin" newspaper, and the subject property was posted
ZC-07-5 Page 8 of 31
with a notice of proposed land use action sign on February 2, 2008. Public comment
indicated that the sign may have been posted in a location not visible to the public.
As of the writing of this Staff Report, numerous public comment letters have been
received. These letters have identified concerns regarding dust (including health
concerns specific to DE dust), chemical contamination of the site, radiological
contamination of the site, site reclamation, traffic impacts, aesthetic impacts of the
existing mine and structures, water quality, water rights, and aesthetics of future
development.
Public comments have also questioned if a new ESEE analysis or Goal 5 exception
would be required. While staff believes that neither of these is necessary, Staff requests
the Hearings Officer to make findings on this issue.
All of the letters received to date are incorporated by reference.
K. Lot of Record: As of the writing of this staff report, the applicant has not submitted
legal lot of record information. Staff recommends the Hearings Officer request this
information at the hearing.
III. CONCLUSIONS OF LAW:
PLAN AMENDMENT
FINDINGS: The applicant has requested approval of a plan amendment to change the plan
designation of the subject property from Surface Mining and Agriculture to Rural Residential
Exception Area, and to remove Surface Mining Site 461 from the county's Goal 5 inventory of
significant mineral and aggregate resource sites. At the outset, it is useful to review the plan
designation history of the subject property.
1. Plan Designation History. In the late 1980's the Land Conservation and Development
Commission's (LCDC's) acknowledgement of the county's comprehensive plan provisions
addressing mineral and aggregate resources under Goal 5 was reversed and remanded by the
Court of Appeals in Coats v. LCDC, 67 Or App 504 (1984). Pursuant to a subsequent LCDC
order the county undertook a lengthy process to inventory mineral and aggregate resources in
the county, to develop a plan to preserve and protect those resources, and to amend the
county's comprehensive plan and zoning ordinance to adopt the inventory and measures to
protect sites. These plans were adopted through several ordinances and included placement of
Site 461 on the inventory, adoption of a site-specific ESEE (Economic, Social, Environmental
and Energy) analysis for Site 461, and adoption of ordinances designating and zoning the
subject property for surface mining, on October 24, 1989.
2. Current Plan Designation. The subject property is currently designated SM and AG (Tax lot
14-12 1600 only). The applicant argues that no exception to Goal 3, Agricultural Lands, is
required for the proposed plan amendment from SM to RREA. This is discussed below.
3. Applicable Comprehensive Plan Provisions. The comprehensive plan does not include
approval standards for plan amendments. Staff and the applicant have identified the following
plan policies they believe are relevant to the proposed plan amendment from Surface Mining
and Agriculture to Rural Residential Exception Area.
ZC-07-5 Page 9 of 31
A. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive
Plan
1. Chapter 23.24, Rural Development
Section 23.24.020, Goals.
A. To preserve and enhance the open spaces, rural character, scenic
values and natural resources of the County.
FINDINGS: The proposed plan amendment, in itself, will not adversely affect any open spaces,
scenic values, or spoil rural character, but instead will create an opportunity to redevelop and
mitigate existing adverse conditions of the site following mining and industrial operations. The
present condition of the site adversely affects the scenic value of the area with rusting structures
and extensive unreclaimed mine areas. Any future development, not included in that
application, would be required to conform to development standards for Rural Residential (RR -
10) zoned lands, that are designed to preserve and enhance the open spaces, rural character,
and scenic values of the County. Moreover, future development of any structures in the LM
zone will be subject to individual site plan review to ensure the protection of the scenic values
associated with the Deschutes River.
The removal of site 461 from the County's surface mining inventory would preclude access to
diatomaceous earth and aggregate materials on the site. However, the applicant has argued
that these resources are no longer present in quantities economically viable for extraction. This
issue is discussed in greater depth below.
B. To guide the location and design of rural development so as to
minimize the public costs of facilities and services, to avoid
unnecessary expansion of service boundaries, and to preserve and
enhance the safety and viability of rural land uses.
FINDINGS: The applicant states that a future developer, and not the public, will bear costs of
extending facilities to the property. Public services such as police and fire already serve the
area. Low density residential development allowed in the RR -10 zone does not require urban
services such as sewer and water, as those needs can be served by on-site systems. Service
boundaries will not be expanded.
The applicant's traffic study 'finds the intersection of Lower Bridge Way/U.S. 97 will not meet
either the performance standards of Deschutes County or ODOT with or without this
development. Based on this fact, the Deschutes County Transportation Planner has
recommend the application be denied based on the provisions of DCC 17.16.115(1)(1 and 2).
The proposal would have a significant effect on transportation facilities as defined by the
Transportation Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-060(2)(C).
If the development is approved, the applicant will need to provide mitigation sufficient to avoid
further degradation of the intersection as required by OAR 660-012-060(3)(c).
Staff believes that, under this goal, a number of environmental concerns must be evaluated to
establish this proposal preserves and enhances the safety of rural land uses. Historically, the
subject property has been a mining and waste storage site. A 1987 report by the Oregon
Department of Environmental Remedial Action indicates that:
The following waste types were disposed of at the site: solvent sludge
ZC-07-5 Page 10 of 31
(contaminated with lead, PCBs) and caustic sand. The sludge may have
contained organic pigments which is the probable source of lead. Fifty six
hundred gallons of sludge were manifested to the facility and 796 drums
were removed during the cleanup. Most of the drums contained caustic
sand at pH 14. One drum sampled contained glycerol (1,213-
Propanetriol). A total of 106 55 -gallon drums were found to be radioactive
and sent to Hanford.
Multiple cleanup operations were undertaken and on January 29, 1985 DEQ wrote a letter to
Precision Castparts stating that the site was cleaned up and it would not be necessary to place
restrictions on the site's use. However, DEQ has repeatedly raised the issue that the site's
previous cleanup operations were performed and certified for industrial use of the site and the
site may not yet be suitable for residential use. The applicant has included an analysis of the
paper record performed by Maul Foster & Alongi, Inc. This analysis concludes that available
documents and reports for the site indicate that environmental cleanup actions effectively
removed contaminated materials from the property.
DEQ also comments that on April 26, 2006 and violations were documented including
hazardous waste, used oil, air quality (open burning prohibited materials) and solid waste
violations. Because corrective actions were taken and the owners were cooperative, the
Department issued a letter dated November 21, 2006, regarding the withdrawal of the violation
notice and noted that the owner should consider the violation notice a warning letter.
Staff notes that while specific contamination identified in the 1987 report may or may not have
been sufficiently removed in advance of residential use, other environmental hazards may exist
at the site. Staff would like to draw particular attention to the possibility of yet undocumented
waste and hazards at the site generated in association with the mining. Prior to 1970, best
management practices for hazardous waste disposal often consisted of on-site burial. Older
mining site often have buried waste, metal and petroleum contamination of soils and
groundwater, and physical hazards.
Given the long and complex history of the site, Staff and DEQ would be interested to know the
results of a Phase I Environmental Site Assessment2. Moreover, since there is a known history
of chemical contamination, Staff also anticipated a Phase II Environmental Site Assessment'
2 A Phase I Environmental Site Assessment is a report prepared for a real estate holding which
identifies potential or existing environmental contamination liabilities. The analysis, often
called a Phase I ESA, typically addresses both the underlying land as well as physical
improvements to the property; however, techniques applied in a Phase I ESA never include
actual collection of physical samples or chemical analyses of any kind. Scrutiny of the land
includes examination of potential soil contamination, groundwater quality, surface water
quality and sometimes issues related to hazardous substance uptake by biota. The
examination of a site may include: definition of any chemical residues within structures;
identification of possible asbestos containing building materials; inventory of hazardous
substances stored or used on site; assessment of mold and mildew; and evaluation of other
indoor air quality parameters. Actual sampling of soil, air, groundwater and/or building
materials is typically not conducted during a Phase I ESA. The Phase I ESA is generally
considered the first step in the process of environmental Due Diligence.
(http://en.wikipedia.org/wiki/Phase_I Environmental Site_Assessment)
3 Phase II Environmental Site Assessment is an investigation which collects original samples of
soil, groundwater or building materials to analyze for quantitative values of various
contaminants. This investigation is normally undertaken when a Phase I ESA determines a
ZC-07-5 Page 11 of 31
would be submitted. While neither of these common investigations are required under
Deschutes County Code, Staff is uncertain how the Hearings Officer or DEQ will determine that
the site is presently safe for residential use without these investigations. Ultimately, Staff
believes this issue must be resolved by a letter from DEQ stating the site, in its entirety, is safe
for residential use without any further active management prior to approval of this application.
Public comments have raised a number of questions regarding water issues. It is unclear that
the applicant has sufficient water rights to implement an effective dust mitigation or revegetation
and reclamation plan. No recent studies of water quality have been performed on the site to
determine if known or yet unidentified chemical contamination on the subject property has
reached groundwater. Also, it is presently unclear if the drilling of wells on the site could
puncture geological barriers to the movement potentially contaminated groundwater. Finally,
under a maximum future development scenario, 74 homes and associated wells could be
established on the property. These wells could significantly impact the local motion of
groundwater and the mobilization of potential groundwater contamination. Staff recommends
the Hearings Officer request additional information on water rights and potential groundwater
contamination to provide a basis for findings under this criterion.
There have been a number of past and recent dust complaints regarding the site from near by
residents. On January 4, 2008, DEQ sent the owners of the property a Notice of Nuisance
Determination because of chronic visible dust emissions problems at the site. On March 3 and
4 of 2008 high winds led to a major dust event with several complaints being sent to DEQ. The
record indicates that the applicant has developed a dust mitigation plan and is working in
coordination with DEQ to mitigate fugitive dust from the site. A goal of this plan is to achieve no
visible emissions from the site.
The applicant's environmental consultant states that Tong -term, chronic exposure to most types
of dust can cause adverse health effects. The dust of Diatomaceous Earth (DE) can be of
particular concern, crystalline silica content in an outcrop sample of the DE ore contains quartz
bulk 0.3% and cristobalite bulk 0.2%. EPA documents states that "The causal relationship
between inhalation of dust containing crystalline silica and silicosis, a chronic inflammatory and
fibrotic lung disease, is well established4."
However, the applicant's environmental consultant concludes that available evidence indicates
that only exposure to crystalline silica can induce silicosis. The freshwater DE at the subject
property contains primarily amorphous silica, a form that is less toxic than crystalline silica.
Although toxicity associated with dust exposures is complex and partially determined by particle
size, shape, surface configurations, and other factors, it is unlikely that the freshwater DE at the
property has properties that could cause adverse health effects under reasonably likely
exposure conditions. Staff believes that a verification of this conclusion by DEQ would need to
be in the record, as neither Staff nor the Hearings Officer has the expertise to evaluate this
important analysis. Again, Staff believes that the site, in its entirety, must be safe for residential
use without any further active management prior to approval of this application. Staff believes
that this safety can be established through thorough site investigation, remediation as -needed,
and dust mitigation, as evaluated and approved by DEQ.
likelihood of site contamination. The most frequent substances tested are petroleum
hydrocarbons, heavy metals, pesticides, solvents, asbestos and mold. (ibid)
4 http: / /www.epa.gov/ncea/pdfs/0604.pdf
ZC-07-5 Page 12 of 31
Staff also notes that the safety of the area will be enhanced through improved access and an
increased presence in the area thereby thwarting potential for illegal activity.
C. To provide for the possible long-term expansion of urban areas
while protecting the distinction between urban (urbanizing) land and
rural lands.
FINDINGS: The proposed zone change and plan amendment would not preclude the possible
long-term expansion of urban areas, although such expansion to the subject property is not
reasonable foreseeable. Any future development, not included in that application, would be
required to conform to development standards for Rural Residential (RR -10) zoned lands, that
are designed to protect the distinction between urban (urbanizing) land and rural lands.
Section, 23.24.030, Policies.
Residential/recreational development.
1. Because 91 percent of the new County population will live inside an urban
area, with only 3,039 new rural Tots required, and in light of the 17,377
undeveloped rural tracts and lots as well as the energy, environmental and
public service costs, all future rural development will be stringently
reviewed for public need before approval. As a guideline for review if a
study of existing lots within three miles of the proposed development
indicates approximately 50 per cent or more of those Tots have not had
structures constructed thereon, then the developer shall submit adequate
testimony justifying additional lots in that area. This will permit
development in areas where such is needed (other policies considering
energy, public facilities, safety and other development aspects shall also
be considered) while restricting future division in areas where many
undeveloped lots already exist.
FINDINGS: An analysis by staff of existing Tots within three miles of the subject property
indicates approximately 50 per cent or more of those lots have had structures constructed on
them. Staff notes that this analysis is typically conducted at the time of subdivision application.
Zone
Parcels
Parcels with at least
one structure
EFUTE
92
33
EFUSC
16
3
EFULB
113
54
MUA10
388
292
RR10
75
23
SM
9
0
Total
693
405
58%
2. Chapter 23.60, Transportation
a. Section 23.60.010, Transportation
* * * The purpose of DCC 23.60 is to develop a transportation system
that meets the needs of Deschutes County residents while also
ZC-07-5 Page 13 of 31
considering regional and state needs at the same time. This plan
addresses a balanced transportation system that includes
automobile, bicycle, rail, transit, air, pedestrian and pipelines. It
reflects existing land use plans, policies and regulations that affect
the transportation system.
FINDINGS: The Deschutes County Transportation Planner has recommended the application
be denied based on the provisions of DCC 17.16.115(1)(1 and 2). The proposal would have a
significant effect on transportation facilities as defined by the Transportation Planning Rule
(TPR) at Oregon Administrative Rule (OAR) 660-012-060(2)(C). If the development is
approved, the applicant will need to provide mitigation sufficient to avoid further degradation of
the intersection as required by OAR 660-012-060(3)(c). Although this section's purpose is not
mandatory criteria, Staff believes approval of this application with unmitigated traffic impacts
would run counter to the stated purpose.
3. Chapter 23.68, Public Facilities
a. Section 23.68.020, Policies
1. Public facilities and services shall be provided at levels and
in areas appropriate for such uses based upon the carrying
capacity of the land, air and water, as well as the important
distinction that must be made between urban and rural
services. In this way public services may guide development
while remaining in concert with the public's needs.
* * *
3. Future development shall depend on the availability of
adequate local services in close proximity to the proposed
site. Higher densities may permit the construction of more
adequate services than might otherwise be true. Cluster and
planned development shall be encouraged.
* * *
9. New development shall not be located so as to overload
existing or planned facilities, and developers or purchasers
should be made aware of potentially inadequate power
facilities in rural areas.
FINDINGS: Any future development is unlikely to overload existing or planned public facilities,
excluding roads. Concerns regarding transportation facilities are discussed above. The existing
rural residential development in the area indicates that public facilities and services are
available. Future development of the property can be served by private wells and septic
systems. Utility lines and facilities can be located so as not divide any existing farm units.
Public comments have raised a number of questions regarding water issues. It is unclear that
the applicant has sufficient water rights to implement an effective dust mitigation or revegetation
and reclamation plan. No recent studies of water quality have been performed on the site to
determine if known or yet unidentified chemical contamination on the subject property has
reached groundwater. Also, it is presently unclear if the drilling of wells on the site could
ZC-07-5 Page 14 of 31
puncture geological barriers to the movement potentially contaminated groundwater. Finally,
under a maximum future development scenario, 74 homes and associated wells could be
established on the property. These wells could significantly impact the local motion of
groundwater and the mobilization of potential groundwater contamination. Staff recommends
the Hearings Officer request additional information on water rights and potential groundwater
contamination to provide a basis for findings under this criterion.
4. Chapter 23.88, Agricultural Lands
Section 23.88.020, Goal.
To preserve and maintain agricultural land.
FINDINGS: As noted above, this proposal would result in the conversion of approximately 39
acres of "high value if irrigated" farmland to rural residential use. It is unclear if residential use
on the property would increase or decrease adverse impacts to nearby agricultural operations.
Impacts imposed on agricultural uses by adjacent residential uses typically include vandalism,
trespassing, disturbance to livestock, and dust. However, development of the project is likely to
result in better dust suppression, to the benefit of nearby agricultural operations.
a. Section 23.88.030, Zoning Policies.
1. All lands meeting the definition of agricultural lands shall be
zoned Exclusive Farm use, unless an exception to State goal 3
is obtained so that the zoning may be Multiple Use Agriculture
or Rural Residential.
2. Lands not meeting the agricultural lands definition but having
potential for irrigation according to the Bureau of Reclamation
Special Report - Deschutes Project, Central Division, Oregon,
although presently without water, shall receive exclusive farm
use zoning.
FINDING: As explained at length below, the subject property, as a whole, is not "agricultural
land." The property does not have potential for irrigation according to the Bureau of
Reclamation Special Report - Deschutes Project, Central Division, Oregon.
A. OAR 660, Division 33, Agricultural Land.
660-033-0020
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service
(NRCS) as predominantly Class I-IV soils in Western Oregon and I -VI soils
in Eastern Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in
ORS 215.203(2)(a), taking into consideration soil fertility; suitability for
grazing; climatic conditions; existing and future availability of water for
farm irrigation purposes; existing land use patterns; technological and
energy inputs required; and accepted farming practices; and
ZC-07-5 Page 15 of 31
(C) Land that is necessary to permit farm practices to be undertaken on
adjacent or nearby agricultural lands.
(D) Land in capability classes other than I-IV/I-VI that is adjacent to or
intermingled with lands in capability classes I-IV/I-VI within a farm unit,
shall be inventoried as agricultural lands even though this land may not be
cropped or grazed;
FINDINGS: The threshold inquiry for determining whether land is "agricultural" is whether the
soils are predominately class I -VI. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951,
955, 618 P2d 986 (1980); Flury v. Land Use Bd. of Appeals, 50 Or App 263, 267 (1981).
Because a vast majority of the property is class VII & VIII soils, it is not agricultural.
In Wetherell v. Douglas County, LUBA (LUBA No. 2006-122, October 9, 2006), LUBA
stated:
"As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820
(1988) there are two ways a county can justify a decision to allow nonresource
use of land previously designated and zoned for farm or forest uses. One is to
take and exception to Goal 3 (Agricultural Lands) and Goal 4 (Forest Lands).
The other is to adopt findings which demonstrate the land does not qualify either
as forest lands or agricultural lands under the statewide planning goals. When a
county pursues the latter option, it must demonstrate that despite the prior
resource plan and zoning designation, neither Goal 3 or Goal 4 applies to the
property. Caine v. Tillamook County, 25 Or LUBA 209, 218 (1993); DCLD v.
Josephine County, 18 Or LUBA 798, 802 (1990)."
In this case, the evidence demonstrates that the subject property does not qualify as either high
value agricultural or forest land.
The applicant states that the soil studies conducted by Wert & Associates confirm that
approximately 20% of soils are class VI, in fact only 5% of those are considered high value with
irrigation. Staff is uncertain what soil studies have been undertaken on the property. It appears
from the record that the submitted Wert & Associates study only consists of a review of the
NRCS soil maps. Previous similar applications (PA-04-4/ZC-04-2) supported by analysis Wert
& Associates have included extensive on -the -ground analysis. However, Staff review of the
NRCS soil maps comes to a similar conclusion that approximately 21% of soils are class VI, and
only 7% of those are considered high value with irrigation.
The record demonstrates the subject property is not irrigated and the land is not necessary to
permit farm practices on adjacent agricultural lands, or intermingled with lands in a farm unit.
The Forage Report concludes that the property "is not suited for profitable, accepted agricultural
use."
Deschutes County has approved zone changes without a Goal 3 exception under similar
circumstances. In both PA-04-4/ZC-04-2 and PA-07-02/ZC-70-02 the applicant demonstrated
that a Goal 3 exception was not required because the subject property's soils did not meet the
definition of agricultural land. Interpreting the definition set forth above, the hearings officer
found that whether the property was "agricultural land" depended on 1) whether the soils are
predominately Class VII or VIII and 2) whether other characteristics of the property exclude it
from consideration of agricultural land. The Hearings Officer concluded that the subject
ZC-07-5 Page 16 of 31
property did not constitute agricultural land as defined in Goal 3, was not subject to protection
under Goal 3, and therefore an exception to Goal 3 was not required. For very similar reasons,
this property is not "agricultural land."
1. Soil Classification. The vast majority of the soils (approximately 80%) on the
subject property are Class VII or VIII, due to natural conditions. This conclusion is
supported by a letter from Wert & Associates. In PA -04-4, the hearings officer found that
Steve Wert is "highly qualified to render an opinion on the nature of the soils ...."
Submitted exhibit 11 illustrates that the majority of the site is classified as "Unit 97,"
which is rock and gravel pits. Mr. Wert reported that the land surface consists of three
types. First, in areas where the diatomite was mined, the soils consist of cemented
sands and gravel. Second are areas were some diatomite remains but has been
moved. These "spoils" hold moisture but barely support some plants. According to
NRCS, diatomite is not a soil but rather a "geologic material." Third are the undisturbed
portions of the site that, as is discussed further below, contains some Class VI soils. Mr.
Wert concluded that these facts are enough to find the site non-agricultural. The aerial
photo submitted as Exhibit 2 illustrates the extent of the mining on the property.
In summary, the subject property consists predominately of Class VII and VIII, i.e. not
"agricultural," soils.
• Other characteristics. The subject property is not agricultural based on the other
factors listed below.
• Soil fertility: As explained above, the vast majority of the soils are Class VII or
worse.
• Suitability for grazing: The Rangeland Inventory and Forage Study Report
(Forage Report), prepared by Gene Hickman and submitted as Exhibit 14, confirms
that the subject property does not produce adequate forage for livestock grazing.
Due to low forage yields, lack of range improvements and poor layout, he concluded
that "net annual income from livestock grazing would no doubt be negative. The
property would not support other agricultural enterprises either: no natural ecological
potential for pine forestry exists, dryland farming is not feasible, and irrigated
agriculture is not possible due to lack of irrigation. The applicant states that Mr.
Hickman is qualified to render this opinion as an expert in the field of rangeland
management and ecology with 40 years experience.
• Climatic conditions: The forage report states that the central Oregon climate
makes farming without irrigation impossible. Staff notes that dryland grazing occurs
in many locations in the County, although this site may be unsuitable for dryland
grazing.
• Existing and future availability of water for farm irrigation purposes: The
applicant has stated that the subject property does not possess any water rights and
the likelihood of obtaining water for farm irrigation purposes is very low to
nonexistant. Staff has raised concerns elsewhere that that water rights needed
reclamation are also not certain.
• Existing land use patterns: The Site Vicinity Map, submitted as Exhibit 12, shows
that the subject property is surrounded by a mix of rural residential and agricultural
lands. The property has been in mining or semi -industrial uses since at least the
1920s, and a Targe rural residential subdivision was established south east of the
property in the 1980s. Rezoning the property would simply extend that RR -10
ZC-07-5 Page 17 of 31
zoning northwest. The subject property is surrounded by agriculture on irrigated
properties to the west, north and south.
• Technological and energy inputs required: The forage report states that no
known technological or energy input can make the land farmable.
• Accepted farming practices: Agriculture in the region consists mostly of hay and
alfalfa and grazing. The forage report states that, due to insufficient soils, irrigation,
and forage, the subject property can be used for none of these.
For these reasons, the subject property does not constitute "agricultural land" as defined in Goal
3, is not subject to protection under Goal 3, and therefore the proposed plan amendment and
zone change do not require an exception to Goal 3. This should be confirmed or denies by the
Hearings Officer.
B. OAR 660, Division 6, Goal 4 Forest Land.
Goal 4 defines "forest land" as follows"
Forest lands are those lands acknowledged as forest lands as
of the date of adoption of this goal amendment. Where a plan is not
acknowledged or a plan amendment involving forest lands is
proposed, forest land shall include lands which are suitable for
commercial forest uses including adjacent or nearby lands which
are necessary to permit forest operations or practices and other
forested lands that maintain soil, air, water and fish and wildlife
resources.
FINDINGS: The subject property is not and never has been zoned for forest use. The detailed
soil study prepared by Steve Wert included an analysis of the subject property's soils for
production of merchantable tree species, and shows the soil units identified on the subject
property are not listed in the NRCS' Woodland Productivity soils table, and therefore are not
considered suitable for the production of wood crops by the NRCS. Finally, the record indicates
the predominant tree species on the property are juniper trees which historically have not had
commercial value and have not been harvested commercially either on the subject property or
on nearby lands.
5. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental
Quality
a. 23.96.020, Goals.
1. To conserve open spaces and areas of historic, natural or
scenic resources.
FINDINGS: The conversion of the subject property from Agriculture and Surface Mining
to Rural Residential use will have some adverse impact on the conservation open
spaces and areas of historic, natural or scenic resources. Staff is uncertain if the
transition form surface mining to residential use would adversely impact the conservation
of open spaces as stated in this goal. Staff notes, however, that portions of the subject
property have not been subject to surface mining and the development of these areas
would adversely impact the conservation of open space. Any future development of the
ZC-07-5 Page 18 of 31
property would be limited to a density of 1 unit per 10 acres, conserving significant open
space. If a future applicant applied for a cluster or planned development, allowed at a
density of 1 unit per 7.5 acres, that development would be required to maintain 65
percent of the property in open space.
The property is adjacent to the Deschutes River. The area adjacent to the River is in a
Landscape Management combining zone. This zone includes special setbacks and
aesthetic protections. This section of the Deschutes River is also designated as a
Federal Wild and Scenic River. While development near the Deschutes River could
adversely impact natural and scenic resources, a number of interlocking local, state, and
federal protections will minimize potential impacts.
2. To maintain and improve the quality of the air, water and land
resources of Deschutes County.
FINDINGS: Environmental concerns at the site are discussed above and incorporated
here by reference.
a. Section 23.96.030, Policies
* * *
10. As part of subdivision or other development review, the
County shall consider the impact of the proposal on the air,
water, scenic and natural resources of the County. Specific
criteria for such review should be developed. Compatibility of
the development with those resources shall be required as
deemed appropriate at the time given the importance of those
resources to the County while considering the public need for
the proposed development.
FINDINGS: This plan policy is not applicable to the proposed plan amendment because
the applicant is not seeking subdivision approval or development review.
B. Oregon Administrative Rules
1. OAR 660, Division 12, Transportation Planning Rule
(1)
Where an amendment to a functional plan, an acknowledged
comprehensive plan, or a land use regulation would significantly affect an
existing or planned transportation facility, the local government shall put in
place measures as provided in section (2) of this rule to assure that
allowed land uses are consistent with the identified function, capacity, and
performance standards (e.g. level of service, volume to capacity ratio, etc.)
of the facility. A plan or land use regulation amendment significantly
affects a transportation facility if it would:
(a) Change the functional classification of an existing or planned
transportation facility (exclusive of correction of map errors in an
adopted plan);
(b) Change standards implementing a functional classification system;
ZC-07-5 Page 19 of 31
or
(c) As measured at the end of the planning period identified in the
adopted transportation system plan:
(A) Allow land uses or levels of development that would result in
types or levels of travel or access that are inconsistent with
the functional classification of an existing or planned
transportation facility;
(B) Reduce the performance of an existing or planned
transportation facility below the minimum acceptable
performance standard identified in the TSP or comprehensive
plan; or
(C) Worsen the performance of an existing or planned
transportation facility that is otherwise projected to perform
below the minimum acceptable performance standard
identified in the TSP or comprehensive plan.
(2) Where a local government determines that there would be a significant
effect, compliance with section (1) shall be accomplished through one or a
combination of the following:
(3)
(a) Adopting measures that demonstrate allowed land uses are
consistent with the planned function, capacity, and performance
standards of the transportation facility.
(b) Amending the TSP or comprehensive plan to provide transportation
facilities, improvements or services adequate to support the
proposed land uses consistent with the requirements of this
division; such amendments shall include a funding plan or
mechanism consistent with section (4) or include an amendment to
the transportation finance plan so that the facility, improvement, or
service will be provided by the end of the planning period.
(c) Altering land use designations, densities, or design requirements to
reduce demand for automobile travel and meet travel needs through
other modes.
(d) Amending the TSP to modify the planned function, capacity or
performance standards of the transportation facility.
(e) Providing other measures as a condition of development or through
a development agreement or similar funding method, including
transportation system management measures, demand
management or minor transportation improvements. Local
governments shall as part of the amendment specify when
measures or improvements provided pursuant to this subsection
will be provided.
Notwithstanding sections (1) and (2) of this rule, a local government may
approve an amendment that would significantly affect an existing
transportation facility without assuring that the allowed land uses are
ZC-07-5 Page 20 of 31
consistent with the function, capacity and performance standards of the
facility where:
(a) The facility is already performing below the minimum acceptable
performance standard identified in the TSP or comprehensive plan
on the date the amendment application is submitted;
b) In the absence of the amendment, planned transportation facilities,
improvements and services as set forth in section (4) of this rule
would not be adequate to achieve consistency with the identified
function, capacity or performance standard for that facility by the
end of the planning period identified in the adopted TSP;
(c) Development resulting from the amendment will, at a minimum,
mitigate the impacts of the amendment in a manner that avoids
further degradation to the performance of the facility by the time of
the development through one or a combination of transportation
improvements or measures;
(d) The amendment does not involve property located in an interchange
area as defined in paragraph (4)(d)(C); and
(e) For affected state highways, ODOT provides a written statement that
the proposed funding and timing for the identified mitigation
improvements or measures are, at a minimum, sufficient to avoid
further degradation to the performance of the affected state
highway. However, if a local government provides the appropriate
ODOT regional office with written notice of a proposed amendment
in a manner that provides ODOT reasonable opportunity to submit a
written statement into the record of the local government
proceeding, and ODOT does not provide a written statement, then
the local government may proceed with applying subsections (a)
through (d) of this section.
FINDINGS: This rule is applicable to the applicant's proposal because it involves an
amendment to an acknowledged plan. The proposed plan amendment would change the
designation of the subject property from SM and EFU-LB to RREA, and the applicant has
requested approval of a zone change from SM and EFU to RR10 for the subject property. As of
the writing of this Staff Report, the applicant has not supplied legal lot of record information for
the subject property. Staff believes the site contains a minimum of two legal lots of record. This
means that 2 or more home sites could be developed on the subject property without further
land use review. Staff believes that the site is eligible for up to 74 home sites as a cluster or
planned development.
The applicant's traffic study finds the intersection of Lower Bridge Way/U.S. 97 will not meet
either the performance standards of Deschutes County or ODOT with or without this
development. The County sets a standard of Level of Service (LOS) D for existing roads while
the applicable ODOT volume/capacity (V/C) ratio is 0.70 for the highway and 0.80 for the side
street based on functional classification and posted speed.
There is a programmed ODOT project in 2009 to reconfigure the Lower Bridge Way/97 and 11th
Street/97 intersections. While this will improve the operations of these intersections, it will not
address the capacity issue as the project focuses more on storage issues on the side streets.
ZC-07-5 Page 21 of 31
The traffic analysis at Figure 5 on page 10 indicates a LOS F for Lower Bridge Way/97 in 2022
with the critical move being the left out from Lower Bridge to go north on 97. The development
does not add any trips to that failing move. As Figure 4 indicates, the rezone will increase the
number of northbound left turns from U.S. 97 onto Lower Bridge Way from 11 to 31. The
worksheets indicate the V/C of this move will degrade from 0.82 under existing zoning to 0.85
under the proposed zoning.
Based on the above, the Deschutes County Transportation Planner has recommend the
application be denied based on the provisions of DCC 17.16.115(1)(1 and 2). The proposal
would have a significant effect on transportation facilities as defined by the Transportation
Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-060(2)(C). If the
development is approved, the applicant will need to provide mitigation sufficient to avoid further
degradation of the intersection as required by OAR 660-012-060(3)(c).
2. OAR 660, Division 15, Statewide Planning Goals and Guidelines
FINDINGS:
Goal 1, Citizen Involvement. The proposed plan amendment satisfies this goal because the
Planning Division provided public notice of the applicant's proposal through individual mailed
notice to affected property owners, posting of the subject property with a notice of proposed
land use action sign, and published notice of the public hearing in the "Bend Bulletin"
newspaper. In addition, two public hearings will be held before the proposed plan amendment is
approved, one before the Hearings Officer and one before the Deschutes County Board of
Commissioners (board). The staff report and Hearings Officer decision will provide the public
with information concerning the proposed plan amendment.
Goal 2, Land Use Planning. Staff believes that this goal is met because at least two public
hearings will be held on the proposed plan amendment and zone change.
Goal 3, Agricultural Lands. As discussed in this report above, the applicant argues that an
exception to Goal 3 is not required for the subject property.
Goal 4, Forest Lands. This goal is not applicable because the subject property is not zoned or
designated for forest use.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The applicant's
proposal would remove the subject site from the county's Goal 5 inventory of significant mineral
and aggregate resource sites. As discussed in detail in this report, the applicant argues that the
subject site no longer contains a resource meeting the minimum threshold for significance in the
new Goal 5 administrative rules, and therefore the applicant's proposal is consistent with Goal
5. Staff has suggested the Hearings Officer request additional information to confirm this
determination.
Goal 6, Air, Water and Land Resources Quality. While staff has identified a number
environmental quality concerns, Staff believes that Goal 6 is primary procedural and does not
provide a basis for analyzing these impacts.
Goal 7, Areas Subject to Natural Disasters and Hazards. The subject property contains
areas subject to flooding along the Deschutes River, as shown on FIRM panel 41017C0300E.
This proposal does not include any development in floodplain areas. Any future development in
ZC-07-5 Page 22 of 31
these areas would be required to comply with the provisions of DCC 18.96, which has been
reviewed and approved by FEMA.
Goal 8, Recreational Needs. This goal is not applicable because the proposed plan
amendment and zone change do not reduce or eliminate any opportunities for recreational
facilities either on the subject property or in the impact area.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the
state for a variety of economic activities. This goal is met because the subject property no
longer constitutes a significant mineral and aggregate resource, and therefore allowing it to be
redesignated and rezoned for rural residential development will not have adverse economic
impacts.
Goal 10, Housing. Goal 10 defines needed housing as being housing within urban growth
boundaries. This property is outside the urban growth boundary, and therefore Goal 10 is not
applicable.
Goal 11, Public Facilities and Services. This Goal requires planning for public services,
including public services in rural areas. Goal 11 has generally been held to prohibit the
extension of urban services (namely sewer and water) to rural lands outside urban growth
boundaries. The present application will not result in the extension of urban services because
the low-density development allowed in the RR -10 zone does not require urban services. Any
residential development will be of a density that can be served by on-site septic and individual
wells.
Goal 12, Transportation. This goal is to "provide and encourage a safe, convenient and
economic transportation system." It is implemented through OAR 660-012, commonly known as
the Transportation Planning Rule.
The applicant's traffic study finds the intersection of Lower Bridge Way/U.S. 97 will not meet
either the performance standards of Deschutes County or ODOT with or without this
development. Based on this fact, the Deschutes County Transportation Planner has
recommend the application be denied based on the provisions of DCC 17.16.115(1)(1 and 2).
The proposal would have a significant effect on transportation facilities as defined by the
Transportation Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-060(2)(C).
If the development is approved, the applicant will need to provide mitigation sufficient to avoid
further degradation of the intersection as required by OAR 660-012-060(3)(c).
Goal 13, Energy Conservation. Goal 13 is to conserve energy. Planning Guideline 3 notes
that "Land use planning should, to the maximum extent possible, seek to recycle and re -use
vacant land..." Surface mining activities have ceased on the site and it has been vacant for
some years. The applicant proposes re -use of the land consistent with this guideline, and thus
this proposal is consistent with Goal 13.
Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does not
affect property within an urban growth boundary and does not promote the urbanization of rural
land.
Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are
not applicable because the subject property is not located in or adjacent to any such areas or
resources.
ZC-07-5 Page 23 of 31
ZONE CHANGE
FINDINGS: The applicant has requested approval of a zone change from EFU-LB and SM to
RR -10 for the subject property and to remove SM Site 461 from the county's Goal 5 inventory of
significant mineral and aggregate resource sites.
C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.52, Surface Mining Zone (SM)
a. Section 18.52.130, Site Reclamation Plan.
Prior to the start of mining activity, a site reclamation plan shall be
submitted and approved which demonstrates that the mineral and
aggregate extraction site can be reclaimed for a subsequent beneficial land
use consistent with the designation of such subsequent use in the surface
mining element of the Comprehensive Plan.
FINDINGS: The applicant had submitted a reclamation plan as Exhibit C to SP -85-23.
A. When a site reclamation plan is required by DOGAMI, the site
reclamation plan shall be approved by DOGAMI. To the
extent practicable, review of the site reclamation plan shall be
conducted jointly between DOGAMI and the County.
B. When a site reclamation plan is not required by DOGAMI, the
site reclamation plan shall be approved by the County in
conjunction with the site plan review described in DCC
18.52.070. The County shall review such site reclamation
plans for consistency with the site-specific ESEE analysis in
the surface mining element of the Comprehensive Plan and
the standards and conditions set forth in DCC 18.52.110 and
18.52.140. The County also shall follow the applicable
DOGAMI standards and criteria for a site reclamation plan.
FINDINGS: Areas east of Lower Bridge Road were subject to a DOGAMI reclamation plan and
have been reclaimed in accordance with that plan. The mine site west east of Lower Bridge
Road did not have a DOGAMI required reclamation plan. However, a County reclamation plan
was required under SP -85-23, and was attached to that decision as Exhibit C.
b. Section 18.52.200, Termination of the Surface Mining Zoning and
Surrounding Surface Mining Impact Area Combining Zone
A. When a surface mining site has been fully or partially mined,
and the operator demonstrates that a significant resource no
longer exists on the site, and that the site has been reclaimed
in accordance with the reclamation plan approved by
DOGAMI or the reclamation provisions of DCC 18, the
property shall be rezoned to the subsequent use zone
ZC-07-5 Page 24 of 31
identified in the surface mining element of the
Comprehensive Plan.
FINDINGS: The County's inventory of significant mineral and aggregate sites describes SM Site
461 as follows:
Site No.
Legal Description
Type
Quantity
Quality
461
141300-00-01500, 1501,
Aggregate
350,000 y3
Good
1502, 1503, 1505, 1600
Diacolite
2,000,000 y3
Staff interprets subsection (A) to require the operator to demonstrate that: 1) the site has been
fully or partially mined; 2) a significant resource no longer exists on site; and 3) the site has
been reclaimed in accordance with DOGAMI, or DCC Section 18.52.130 standards. The
applicant argues that all three conditions are satisfied here.
As discussed in detail below Site 461 has been mined. The section below discusses significant
resource status. In the Hearings Officer's previous decision in Stott (PA-98-12/ZC-98-6), the
Hearings Officer held that the provisions of OAR 660 Division 23 regarding compliance with
Goal 5 are relevant to this question. OAR 660-023-0250 provides in pertinent part:
(1)
This division replaces OAR 660, division 16, except with regard to cultural
resources, and certain PAPAs and periodic review work tasks described in
sections (2) and (4) of this rule. Local governments shall follow the
procedures and requirements of this division or OAR 660, Division 16,
whichever is applicable, in the adoption or amendment of all plan or land
use regulations pertaining to Goal 5 resources. The requirements of Goal 5
do not apply to land use decisions made pursuant to acknowledged
comprehensive plans and land use regulations.
(2) The requirements of this division are applicable to PAPAs initiated on or
after September 1, 1996. OAR 660, Division 16 applies to PAPAs initiated
prior to September 1, 1996. For purposes of this section "initiated" means
that the local government has deemed the PAPA application to be
complete.
(3)
Local governments are not required to apply Goal 5 in consideration of a
PAPA unless the PAPA affects a Goal 5 resource. For purposes of this
section, a PAPA would affect a Goal 5 resource only if:
(a) The PAPA creates or amends a resource list or a portion of an
acknowledged plan or land use regulation adopted in order to
protect a significant Goal 5 resource or to address specific
requirements of Goal 5; ...
The Hearings Officer held a plan amendment and zone change to "de -list" and rezone a surface
mining site constitutes a "PAPA," and therefore the provisions of OAR 660-023-0180 concerning
mineral and aggregate resources apply to such an application to the extent they reasonably can
be applied to a decision to remove a site from the county's adopted inventory. The Hearings
Officer further found OAR 660-023-180(3) identifies the pertinent standards for determining
"significance." This paragraph provides:
ZC-07-5 Page 25 of 31
(3) An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource
demonstrates that the site meets any one of the criteria in subsections (a)
through (c) of this section, except as provided in subsection (d) of this
section:
(a) A representative set of samples of aggregate material in the deposit
on the site meets applicable Oregon Department of Transportation
(ODOT) specifications for base rock for air degradation, abrasion,
and soundness, and the estimated amount of material is more than
2,000,000 tons in the Willamette Valley, or more than 500,000 tons
outside the Willamette Valley;
(b) The material meets local government standards establishing a lower
threshold for significance than subsection (a) of this section; or
(c) The aggregate site was on an inventory of significant aggregate
sites in an acknowledged plan on September 1, 1996.
The aggregate resource is significant if it meets one of the three criteria. Subsection (b) is not
applicable because the local government has not established lower standards. Subsection (c)
is not applicable to PAPAs requesting removal of a site from the acknowledged inventory. See
PA -98-12 and ZC-98-6, PA -04-4 at page 30 (submitted as Exhibit 15) and PA -06-2 at page 14
(submitted as Exhibit 19). Therefore, the aggregate resource is significant only if it meets all the
criteria in subsection (a).
The criteria in subsection (a) require that the aggregate on site: 1) meets ODOT specs for air
degradation; 2) abrasion; 3) sodium sulfate soundness; and 4) be more than 500,000 tons. The
Aggregate Resource Assessment Report, prepared by GeoDesign, Inc. and submitted as
Exhibit 7 ("Aggregate Report") concludes that subject site does not satisfy the subsection (a)
criteria because it fails sodium sulfate soundness requirements and contains less than 500,000
tons of aggregate. Based on a site-specific analysis, the Aggregate Report estimates the
quantity of the aggregate at 211,000 cubic yards. Assuming a tons -per -cubic yard ratio of 2.1,
the Report finds 443,100 tons of aggregate on site, Tess than the "significant" threshold above.
Staff uncertain if the submitted Aggregate Resource Assessment Report is a complete
assessment of the quantity or quality of aggregate resources on the subject property. No test
pit was dug over 12 feet below ground surface. The average test pit depth was 7.1 feet. Staff
notes that the 1974 geologic study, included in CU -74-156, integrated local well logs to a depth
of up to 405 feet. Staff recommends the Hearings Officer request information comparing and
contrasting the present and historic geologic reports to determine what information to use as a
basis for findings in this section.
The Aggregate Resource Assessment Report estimates that the site contains 443,000 tons of
aggregate. Given that this is within 13% of the threshold 500,000 tons, Staff recommends that
the Hearings Officer request additional information on the methodology, certainty, and margin of
error of this estimate.
Staff is concerned that the aggregate's failure to meet sodium sulfate soundness requirements
is based on only two test pits samples located within 350 feet of each other. It is unclear that
these two samples are representative of the aggregate material on the over 500 -acre site. Both
ZC-07-5 Page 26 of 31
samples are from an area mapped as overburden. No samples were tested from the area
mapped alluvial sand and gravel. Staff recommends the Hearings Officer request additional
information to determine if the aggregate on the site meets ODOT specifications.
Diatomite is a mineral, not aggregate, resource. Neither local law nor the OARs define what a
significant "mineral" resource is. Staff is unaware of any surface mining zone change decisions
in which the county defined a "significant mineral resource." In contrast to aggregate, diatomite
is not useful in local development. Rather, it is simply a commodity sold on a global market for
mostly industrial uses. The applicant has provided information in the submitted burden of proof
that there is no economic incentive to mine diatomite on the subject property due to ample
global supply, low profitability, less expensive substitute materials, and undesirable
environmental impacts. The applicant argues that the diatomite resource is not significant for
these reasons. Staff requests the Hearings Officer make specific findings on this issue.
The Deschutes County Code requires that the site be reclaimed in accordance with a
reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18. DOGAMI has
found the site to be reclaimed according to its standards. As the DOGAMI memo explains, 61
acres on tax lots 1503 and 1505 were covered by an operating permit for gravel extraction, and
reclamation has been completed there. The overburden stockpiles there are revegetated,
stable, and may remain in place until used for on-site development. The former D.E. mining site
(west of lower Bridge Road) is exempt from reclamation requirements under ORS 517.770
because it was part of a mine that existed before 1972.
Reclamation: Site Plan approval SP -85-23 included reclamation specifications. Below is a
summary of the applicant submitted reclamation plan, attached as Exhibit C to the Hearings
Officer Decision in SP -85-23.
The applicant has stated that the topsoil is stockpiled and will be replaced on the
area mined approximately 12 inches deep. The applicant proposed to
motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed
bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and
mulch. The applicant also proposes to plants evergreens for shade and
windbreaks on the site.
Staff believes that this required reclamation has not been performed. Condition 1 of SP -85-23
also required an updated reclamation plan to include measures to prevent materials from
eroding into the Deschutes River. Staff has been unable to locate this updated reclamation
plan. For these reasons it is Staffs opinion that the applicant has not met the rezoning criteria
of DCC Section 18.52.200(A). This should be confirmed or denied by the hearings officer.
B. Concurrent with such rezoning, any surface mining impact
area combining zone which surrounds the rezoned surface
mining site shall be removed. Rezoning shall be subject to
chapter 18.136 and all other applicable sections of this title,
the Comprehensive Plan and Deschutes County Code Title
22, the Uniform Development Procedures Ordinance.
FINDINGS: Should this zone change be approved, it will also remove the surface mining
impact area combining zone which surrounds the rezoned surface mining site.
2. Chapter 18.136, Amendments
ZC-07-5 Page 27 of 31
a. Section 18.136.020, Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by rezoning the property. Factors to be
demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and
the change is consistent with the Plan's introductory
statement and goals.
FINDINGS: In previous Hearings Officer's decisions, it has been held that comprehensive plan
goals and policies do not constitute mandatory approval criteria for quasi-judicial zone changes,
but rather are implemented through the zoning ordinance, and therefore if the proposed zone
change is consistent with the applicable provisions of the zoning ordinance it also will be
consistent with the plan.
The applicant has argued that he public interest is best served by taking the subject property out
of mining use. Due to increased rural residential development in the area, and decreased value
and demand for D.E., the applicant has argued that DE mining is no longer compatible with the
area or desirable for the landowners. Rezoning for residential use will provide incentive and the
economic resources to clean up the aesthetic and environmental impacts of decades of mining.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: The applicant is proposing a zone change from Surface Mining to Rural Residential
(RR). The purpose of the RR zone, set forth at DCC 18.60.10 is:
The purposes of the Rural Residential Zone are to provide rural residential
living environments; to provide standards for rural land use and
development consistent with desired rural character and the capability of
the land and natural resources; to manage the extension of public services;
to provide for public review of nonresidential uses; and to balance the
public's interest in the management of community growth with the
protection of individual property rights through review procedures and
standards.
FINDINGS: The proposed zone change is consistent with this purpose statement because the
purpose of the zone change is to create a rural residential living environment consistent with the
rural character and capabilities of the land and resources. Staff believes that in order for the
subject property to be appropriate as a living environment, environmental concerns raised
elsewhere in this Staff Report would need to be resolved. The Hearings Officer should confirm
or deny this.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
ZC-07-5 Page 28 of 31
FINDINGS: Staff believes that in order for the proposed zone change to presently serve the
public health, safety and welfare, environmental concerns raised elsewhere in this Staff Report
would need to be resolved. The Hearings Officer should confirm or deny this.
1. The availability and efficiency of providing necessary
public services and facilities.
FINDINGS: All utilities are available and currently serving other nearby properties, including the
RR -10 zoned subdivision to the southeast, and adequate County road frontage is available.
However, Staff believes that this criterion cannot found to be met until the intersection failure at
Lower Bridge Way/U.S. 97, identified by the County Transportation Planner, is resolved.
Public comments have raised a number of questions regarding water issues. It is unclear that
the applicant has sufficient water rights to implement an effective dust mitigation or revegetation
and reclamation plan. No recent studies of water quality have been performed on the site to
determine if known or yet unidentified chemical contamination on the subject property has
reached groundwater. Also, it is presently unclear if the drilling of wells on the site could
puncture geological barriers to the movement potentially contaminated groundwater. Finally,
under a maximum future development scenario, 74 homes and associated wells could be
established on the property. These wells could significantly impact the local motion of
groundwater and the mobilization of potential groundwater contamination. Staff recommends
the Hearings Officer request additional information on water rights and potential groundwater
contamination to provide a basis for findings under this criterion.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
FINDINGS: The applicant has stated that rezoning the property will not adversely impact
surrounding property because residential use is consistent with the existing residential uses
adjacent to the subject property, and will not increase adverse impacts on agricultural uses on
other nearby properties.
Staff believes that it is unclear if residential use on the property would increase or decrease
adverse impacts to nearby agricultural operations. Impacts imposed on agricultural uses by
adjacent residential uses typically include vandalism, trespassing, disturbance to livestock, and
dust. However, development of the project is likely to result in better dust suppression, to the
benefit of nearby agricultural operations.
D. That there has been a change in circumstances since the
property was last zoned, or a mistake was made in the zoning
of the property in question.
FINDINGS: There have been several changes in circumstances, and new information that
shows that mistaken assumptions were the premise of the current zoning. Part of the subject
property was zoned Surface Mining in 1985, and the remainder in 1989.
The 1985 zoning focused on only the D.E. resource, and was premised on the assumption that
D.E. would be economically productive for export. At that time the property was zoned Surface
Mine Reserve, and the applicable Comprehensive Plan assumed that land so designated "will
ZC-07-5 Page 29 of 31
ultimately be mined." The applicable Plan also lowered the burden of proof for changing the
zoning to Surface Mining because "the material here sought to be mined consists of non -
aggregate materials which are most probably to be used for export as there is currently little
local demand." In spite of low local demand, the Hearings Officer found that the potential to
export D.E. satisfied "the need question." Applicants were "in the process of negotiating large
scale contracts for the delivery of [D.E.]" and the county found that construction of a processing
plant in Malheur County would "enable exportation by the applicants." Because the site had
already been used for D.E. mining, the Hearings Officer found that rezoning would simply
facilitate more use and exportation of the resource.
However, circumstances have changed since 1985. Because the identified global supply of
D.E. will satisfy global demand for centuries, the Lower Bridge Road site is not needed.
Environmental regulation and fuel costs have increased, while profits for D.E. have decreased.
Therefore, according to the applicant mining D.E. from the site is no longer economically viable.
The second rezoning, as part of the ESEE analysis for site 461, in 1989-1990 focused on the
site's aggregate (as opposed to a mineral) resource. It followed the 1988 Deschutes County
Goal 5 Aggregate Inventory, which identified an aggregate resource of 350,000 cubic yards. It
is unclear from the record how this amount was estimated.
In the ESEE analysis for site 461, the Board identifies the key values that form the basis for the
determination of SM zoning for the mine site. These include the importance of aggregate
resources to development in Deschutes County, the value to the County economy terms of
materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site,
and that the site is located near a major roadway for highway maintenance and construction
jobs.
Neither the mine location nor the importance of aggregate resources to Deschutes County have
changed since the last zoning of the property. However, the current estimate of aggregate
resources on the property has fallen to 211,000 cubic yards. Also, the current Aggregate
Resource Assessment Report indicates that the aggregate on the site does not meet ODOT
specifications. This report also indicated that the aggregate resource cannot be profitably
mined. Staff believes these issues constitute a change in circumstances required by this
criterion.
IV. Issues:
Staff has identified a number of issues that may need to be resolved prior to any approval of this
application.
1. Environmental: Does the County have the authority under the relevant code to
address environmental concerns? Are these concerns addressed under state and
federal law? How can a land use decision be linked to a resolution of the
environmental concerns?
2. Transportation: What is required at this stage by the TPR? How would mitigation
be timed or implemented?
3. Reclamation: Has all previously required reclamation been accomplished? If not,
how should this be addressed?
IV. Recommendation:
ZC-07-5 Page 30 of 31
Based on the foregoing Findings of Fact and Conclusions of Law, the Staff recommends denial
of the applicant's proposed plan amendment and zone change. Staff anticipates that the
applicant may submit additional information before of at the hearing. Staff requests an
opportunity to respond to any new information and notes that new information may alter Staff's
present recommendation for denial.
ZC-07-5 Page 31 of 3
RECOMMENDATION OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: ZC-08-1, PA -08-1
LOCATION: The property is identified on the County Assessor's Tax Map as 14-12,
Tax Lots 1501, 1502, 1503, part of 1505, and 1600.
APPLICANT: The Daniels Group, LLC
1111 Main Street, Suite 700
Vancouver, WA 98660
OWNER:
Norman L. Wiegand, et al.
895 SW 23rd St.
Redmond, OR 97756
ATTORNEY
/PLANNER: Tia M. Lewis
Mark Rust, AICP
Schwabe, Williamson & Wyatt, PC
549 SW Mill View Way, Suite 101
Bend, OR 97702
REQUEST:
Comprehensive plan text and map amendment and zone change from
Surface Mining to Rural Residential to allow redevelopment of extensively
mined site.
STAFF CONTACT: Will Groves, Senior Planner
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.52, Surface Mining
2. Chapter 18.60, Rural Residential zone
* Section 18.52.200, Termination of the Surface Mining Zoning and
Surrounding Surface Mining Impact Area Combining Zone
2. Chapter 18.136, Amendments
* Section 18.136.020, Rezoning Standards
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
* Section 22.20.040, Final Action in Land Use Actions
ZC 08-1/PA 08-1 Daniels Group Page 1 of 31
C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive
Plan
1. Chapter 23.100, Surface Mining
D. Statewide Land Use Goals and Oregon Administrative Rules (OAR) Chapter 660
1. Division 12, Transportation Planning Rule (TPR)
* OAR 660-12-0060, Plan and Land Use Regulation Amendments
2. Division 15, Statewide Planning Goals and Guidelines
3. Division 23-0180, Mineral and Aggregate Resources
II. FINDINGS OF FACT:
A. Location: The property is identified on the County Assessor's tax map as 14-12, tax lots
1501, 1502, 1503, part of 1505, and 1600. Tax Lot 1501 has an assigned address of
70420 NW Lower Bridge Way, Terrebonne.
B. Zoning and Plan Designation: The site is generally designated "Surface Mining" on the
Comprehensive Plan Map, although the exact boundaries are unclear. The mine is
included in the county's Goal 5 inventory of significant mineral and aggregate resource
sites as Site 461.
Tax lot 1501:
Tax Lot 1502:
Tax Lot 1503:
Tax Lot 1505:
Tax Lot 1600:
249.1 acres zoned Surface Mining (SM), including 9.8
acres in Landscape Management Combining Zone (LM)
188.1 acres zoned SM, including 82.3 acres zoned LM
64.4 acres zoned SM, including 64.4 acres zoned LM
Only 42.1 acres of this 72.47 acre tax lot are subject to this
application. The most southerly portion of this lot adjacent
to Teater Road and zoned EFU is not subject to the
proposed zone change.
10.6 acres total includes 9.6 acres of Exclusive Farm Use
1.0 acre zoned Flood Plain, 10.6 acres zoned LM, and
10.6 acres zoned SMIA
C. Site Description: The 556.9 acre site is a geologically unique tract straddling Lower
Bridge Way about 6 miles north of Terrebonne, as shown on the Site Map, submitted as
Exhibit 1 and on the aerial photograph, submitted as Exhibit 2. To an observer driving
Lower Bridge Way, the site is notable for the chalky white appearance of the exposed
diatomite layers.'
1 The site has been mined for several materials, including aggregate, sand and diatomaceous earth. Most
of the aggregate and sand on the site have been removed, and the area containing those materials have
been reclaimed. The diatomaceous earth is described as "a chalky rock, high in amorphous silica content
formed from the structures (or diatomite) of tiny fresh- or salt -water organisms called diatoms." See
Applicant's Burden of Proof, Exhibit 23, page 1. Diatomaceous earth is variously referred to in the
materials as "D.E.," "dicalite," "diatomite," and diatomaceous earth. For ease of reference, I use the term
"diatomite."
ZC 08-1/PA 08-1 Daniels Group, LLC Page 2 of 31
As illustrated on the submitted Site Map, the subject property includes Tax Lots 1501,
1502, 1503, 1505, 1600, but excludes the EFU-zoned portion of Tax Lot 1505 bordering
Teater Road. The subject property can be divided into five geographic regions: eastern,
northern, Deep Canyon, western, and central. The land includes four general landscape
types: quarry operations (old and recent), hills/buttes (natural and formed), plains
(unmined, mostly natural vegetation), and canyons and drainages (natural vegetation,
unmined).
The eastern region includes tax lot 1503 and 1505, is east of Lower Bridge Way, and
extends east along a steep slope, descending approximately 100 feet to the Deschutes
River. It is generally level and covered with overburden rock apparently removed from
the former diatomite mining operations. The River is lined with wetlands depicted on the
National Wetlands Inventory Cline Falls map.
The northern region includes tax lots 1501 and 1600, stretches west along the river from
Lower Bridge to Deep Canyon, then south along the southern rim of Deep Canyon. The
ground is relatively level, except for steep canyons that reach down to the Deschutes
and Deep Canyon. North of the diatomite mining area is a relatively undisturbed
"plains" landscape with mature juniper. The subject property is separated from the River
in this area by Tax Lot 14-12 1509, owned by the Oregon Parks and Recreation
Department.
Deep Canyon is primarily located on tax lot 1501, and is a small canyon with a spring
and a seasonal pond that drain to the Deschutes River. Two unimproved roads cross
the canyon. Across the northern bridge is the western region, a flat area formerly mined
for diatomite. The central region, includes tax lots 1501 and 1502 and is a quarry
landscape. This region comprises about half of the subject property. A thick diatomite
layer and stockpiles make up much of this area, which is accessible only with an all -
terrain vehicle. This section of subject property is traversed by several unimproved
roads. The area was extensively mined for diatomite, and several derelict buildings,
including a former processing building, water tower, pump house, concrete foundations,
settling ponds and miscellaneous debris piles remain. The applicant has drilled a well in
this area, and is proposing to install a pivot sprinkler to the wellhead. The sprinkler is to
be used to control dust and provide water for irrigation. The applicant proposes to
remove the remaining derelict structures.
This reach of the Deschutes River that forms the east and northeast boundary of the site
is designated as a Federal Wild and Scenic River and an Oregon Scenic River. A steep
bank limits pedestrian access to the river. However, the river is accessible from Lower
Bridge Way, and from the public park near the bridge.
D. Soils: Approximately 80% of the soils on the site are defined as Class VII and VIII.
Steve Wert, a consulting soil scientist, visited the site and conducted preliminary
research of the soils present on the site. His findings are summarized in a letter dated
October 4, 2006: "According to NRCS maps, the great majority of the property does not
even have a "soil type," but is classified as a "land type" called "Unit 97" which is rock
and gravel pits. Unit 97 is rated Class VII and VIII, and NRCS will stand by that rating."
However, not all of the property is class VII or VIII. The following table summarizes soils
data by tax lot.
ZC 08-1/PA 08-1 Daniels Group, LLC Page 3 of 31
Approximate Acreage of Soil Type by Tax Lot
Tax Lot
NRCS Land /
Soil Type
Soil Classes
Approximate
acreage2
Zoning
1501
249.1
acres
(central
/western)
97
81F
138A
138B
71A
71 B
31A
7 & 8
7 & 8
6, not prime
6, not prime
6, prime if irrigated
6, prime if irrigated
6, prime if irrigated
159 acres
24 acres
48 acres
1.1 acres
12.2 acres
1.8 acres
3.3 acres
SM, SMIA, LM
1502
97
7 & 8
160 acres
SM, SMIA, LM,
188.1
81F
7 & 8
9 acres
FP
Acres
(central)
138A
6, not prime
19 acres
1503
97
7 & 8
42 acres
SM, SMIA, LM,
64.4
31B
6, prime if irrigated
18 acres
FP, EFU
acres
(eastern)
71A
6, prime if irrigated
3.4 acres
1505
97
7 & 8
39 acres
SM, SMIA, LM,
41.2
acres
(eastern)
81F
7 & 8
2 acres
FP
1600
138A
6, not prime
8.2 acres
SMIA, FP, EFU
10.6
acres
(northern)
81F
7&8
2.4 acres
TOTAL
7 & 8
79 % = 438 acres
553.4
6, not prime
14% = 76 acres
acres
6, prime if irrigated
7% = 39 acres
E. Surrounding Zoning and Land Uses: This section describes zoning and land uses
within a 2 -mile radius of the center of the subject property. Surrounding zoning in the
area of the subject property includes Exclusive Farm Use—Lower Bridge (to the north,
west and south), Exclusive Farm Use-Terrebonne (to the east and further to the south),
Surface Mining (to the northeast), Rural Residential (to the east and southeast) and
Flood Plain associated with the Deschutes River. The Landscape Management
combining zone extends along the Deschutes River.
The subject property is predominantly surrounded by active agricultural lands, as shown
in the 2008 Google Earth aerial photo included in the record. The surface mining zoned
land to the northeast appears to be in agricultural production. Properties to the west and
southwest and east are sparsely developed with rural residences. Most of the dwellings
in the immediate area have been constructed within the last 25 years. Within a 3 -mile
radius there are nearly 700 parcels with over 400 residences.
2 Acreages are based on area measurements taken from the Deschutes LAVA GIS. Due to
measurement error, these acreages may not equal the deed or Assessor's acreages for the tax lots.
ZC 08-1/PA 08-1 Daniels Group, LLC Page 4 of 31
F. Mining History: The subject property has a long, inconsistently documented mining
history. Diatomite mining began on the property prior to the 1920s. Large scale
production began in 1936. The Great Lakes Carbon Company mined the property from
1944 to 1961. The mining history between 1966 and 1980 is unclear. The Oregon
Department of Geology and Mineral Industries (DOGAMI) file for this site begins in 1980.
That file indicates that multiple companies have mined the site, mostly for diatomite but
also for aggregate. Although multiple mining permits were issued over the years,
various companies were cited for violating environmental laws, mining permits, or
operating without permits.
By 1980 Deschutes Valley Farms owned the site and leased it to Northwest Diatomite.
In January 1982, DOGAMI exempted Mid -Oregon Ready Mix from reclamation
requirements because the land was a mined prior to the effective date of the reclamation
rules. Mid -Oregon Crushing and Mid -Oregon Ready Mix were extracting aggregate by
1985. Various diatomite and gravel extraction activities occurred in the subsequent
years. By 1994, E.A. Moore was extracting, screening and crushing gravel on the
eastern portion of the site. Several DOGAMI inspections occurred over the years, which
found reclamation plans being implemented. By 2006, DOGAMI was ready to close the
file on the site. A Limited Exemption Closure Plan was submitted in late July, 2006. On
July 31st DOGAMI closed the file on the site.
Due to incomplete DOGAMI records and an apparent history of unpermitted mining, the
total quantity of aggregate and mineral removed from the site during over 80 years of
mining is unclear.
G. Zoning History: In 1985, 339 acres of the subject property was rezoned from Surface
Mining Reserve to Surface Mining. The applicants apparently anticipated that diatomite
mining would become economically viable again because a processing plant was being
constructed in Malheur County, which would enable the applicant to export it. The
Hearings Officer found that there was little local demand for diatomite, but that export of
the product after off-site processing partially justified the rezone.
In 1988, the Deschutes County Goal 5 Aggregate Inventory identified the site as an
aggregate resource (as opposed to a mineral resource, which includes diatomite) of
350,000 cubic yards. In the ESEE analysis for site 461, the Board identified the key
values that form the basis for the application of SM zoning to the mine site. These
include the importance of aggregate resources to development in Deschutes County, the
value to the County economy terms of materials and jobs, the presence of an estimated
350,000 cubic yards of aggregate on the site, and that the site is located near a major
roadway for highway maintenance and construction jobs.
Relevant Previous Land Use Decisions:
CU -74-156 — This record contains plan information for a solid and liquid waste disposal
site on the subject property. It appears that this application was approved, as solid and
liquid waste storage occurred on the property. A variety of wastes, including hazardous
wastes were stored on the site and subsequently removed. This is discussed more fully
later in the findings.
MP -80-96 — Divided modern tax lots 1503 and 1505, as Parcel 2, and 1506, as Parcel 3
from the remainder of the mining site.
ZC 08-1/PA 08-1 Daniels Group, LLC Page 5 of 31
ZC-85-3 - A zone change from surface mining reserve to surface mining on tax lots
1501, 1502, 1600, and 704. This decision did not apply to the entire site, but was limited
to 339 acres. Condition 3 of this decision required a reclamation plan.
SP -85-23 — A site plan to allow surface mining, aggregate mining, and rock crushing on
tax lots 1501, 1502, 1600, and 704. This decision included reclamation specifications,
The applicant has stated that the topsoil is stockpiled and will be replaced
on the area mined approximately 12 inches deep. The applicant
proposed to motorgrade the site and seed it with fortress red fescue,
Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre
planted in the fall with fertilizer and mulch. The applicant also proposes
to plant evergreens for shade and windbreaks on the site.
This is a summary of the applicant submitted reclamation plan, attached as Exhibit C to
the Hearings Officer Decision in SP -85-23. This required reclamation was not
completed. Condition 1 of SP -85-23 required an updated reclamation plan to include
measures to prevent materials from eroding into the Deschutes River. There is no
evidence that topsoil was stockpiled for reclamation, and staff has been unable to locate
the updated reclamation plan.
ESEE Analysis #461 — On October 24, 1989 the Board of County Commissioners
rezoned the remainder of the 660 -acre site (comprised of modern tax lots 1501, 1502,
1503, and 1507) to SM. This decision contains information about the quality and
quantity of aggregate and mineral resources on the property.
MP -90-74 — Divided historic tax lots 1501, 1507 and 1508 into two legal lots of 66 and
254 acres.
All of the above files are incorporated into this record by reference.
H. Proposal: The applicant requests approval of a plan amendment to change the
designation of the subject property from Surface Mine (SM) and Agriculture (AG) to
Rural Residential Exception Area (RREA) and to remove Surface Mining Site 461 from
the county's Goal 5 inventory of significant mineral and aggregate resource sites. The
applicant also requests approval of a zone change from SM and EFU-LB to RR -10 for
the subject property. The removal of the SM zoning on the subject property also would
remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on
property located within one-half mile of the SM Zone. If these applications are approved,
the applicant plans to redevelop the site as a residential planned unit development with
up to 74 dwellings.
The site map submitted as Applicant's Exhibit 1 depicts areas presently zoned Flood
Plain (FP) as part of this rezoning proposal. Discussions with the applicant have
clarified that this proposal is not intended to rezone FP zoned lands.
Public/Private Agency Comments: The Planning Division mailed notice to several
agencies. Those comments are summarized in the staff report, or are included in the
record. To the extent the comments pertain to the applicable approval criteria, they are
addressed in the findings.
ZC 08-1/PA 08-1 Daniels Group, LLC Page 6 of 31
J. Public Notice and Comments: The Planning Division mailed individual written notice of
the applicant's proposal and the public hearing to the owners of record of all property
located within 750 feet of the subject property. In addition, notice of the public hearing
was published in the Bend Bulletin, and the subject property was posted with a notice of
proposed land use action sign on February 2, 2008.
Numerous residents submitted written testimony and evidence, and provided oral
testimony at the public hearing. The residents identified concerns regarding dust
(including health concerns specific to diatomite dust), chemical contamination of the site,
radiological contamination of the site, site reclamation, traffic impacts, aesthetic impacts
of the existing mine and structures, water quality, water rights, and aesthetics of future
development. Public comments have also questioned if a new ESEE analysis or Goal 5
exception would be required. These comments are more fully addressed in the findings
below.
K. Lot of Record: The applicant submitted evidence regarding the status of the tax lots
incorporated into these applications. The evidence shows that the property is comprised
of legal lots of record created through deed or partition.
III. CONCLUSIONS OF LAW:
PLAN AMENDMENTS
The applicant requests the following: (1) approval of a plan map amendment from Surface
Mining and Agriculture to Rural Residential Exception Area, and (2) removal of Surface Mining
Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites.
The county plan and development code do not set out a process for quasi-judicial amendments
to the plan map and text; it appears that the county relies on consistency with the Statewide
Land Use Goals and ORS 197.610 through 197.625 (post -acknowledgement plan amendment
procedures) to provide both the process and the substantive review criteria. Those criteria are
addressed in Section C.
While there are no substantive approval criteria in the plan, it is useful to review the plan
designation history of the subject property, and address the parties' arguments regarding plan
policies at the onset.
1, Plan Designation History. In the late 1980s the county undertook a lengthy process to
inventory its mineral and aggregate resources, to develop a plan to preserve and protect those
resources, and to amend the county's comprehensive plan and zoning ordinance to adopt the
inventory and measures to protect sites. These plans were adopted through several ordinances
and included listing Site 461 on the inventory of significant sites, adoption of a site-specific
ESEE (Economic, Social, Environmental and Energy) analysis for Site 461, and adoption of
ordinances designating the subject property for surface mining, on October 24, 1989.
2. Current Plan Designation. The subject property is currently designated SM and AG (Tax lot
14-12 1600 only).
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3. Applicable Comprehensive Plan Provisions. The following plan policies are relevant to the
proposed plan amendment from Surface Mining and Agriculture to Rural Residential Exception
Area.
A. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive
Plan
1. Chapter 23.24, Rural Development
Section 23.24.020, Goals.
A. To preserve and enhance the open spaces, rural character, scenic
values and natural resources of the County.
FINDINGS: The subject property is currently an un -reclaimed mine site. The proposed plan
amendments by themselves will not alter open spaces, scenic values, or spoil rural character,
but instead will create an opportunity to redevelop and mitigate existing adverse conditions of
the site following mining and industrial operations. The present condition of the site adversely
affects the scenic value of the area with rusting structures and extensive unreclaimed mine
areas. Any future development, not included in that application, would be required to conform to
development standards for Rural Residential (RR -10) zoned lands, that are designed to
preserve and enhance the open spaces, rural character, and scenic values of the County.
Moreover, future development of any structures in the LM zone will be subject to individual site
plan review to ensure the protection of the scenic values associated with the Deschutes River.
One of the neighbors commented that the proposal is inconsistent with this policy because a
future planned development proposal could cluster dwellings along the top of the riverbank.
The neighbor asserted that clustered residential development is inconsistent with the local
residential development pattern, and therefore a more appropriate zoning designation is EFU-
20.3 The hearings officer finds that there is no such designation in the zoning code, and the
evidence shows that the site does not contain agricultural soils. The proposed RR -10 zoning
designation would maintain the residential density that occurs within the area, and if a planned
unit development is proposed, the layout of the lots can be arranged to minimize their visual
impacts on neighboring property owners.
The removal of Site 461 from the County's surface mining inventory would preclude access to
diatomaceous earth and aggregate materials on the site. The applicant has argued that there is
insufficient remaining aggregate to economically extract, and there is little need for diatomite in
modern industrial manufacturing. Neighbors dispute this finding, arguing that there are viable
industrial uses for diatomite, and that the applicant's present desire to convert the land to
residential use does not alter the significance of the site for diatomite production. These issues
are discussed in greater depth below.
B. To guide the location and design of rural development so as to
minimize the public costs of facilities and services, to avoid
3 It may be that the neighbor is referring to the MUA zone, a multi -use zone that permits subdivisions and
planned unit residential developments at 7.5 acre densities. See DCC 18.32.040(A)(minimum lot size in
MUA district is 10 acres, except planned and cluster developments shall be allowed an equivalent density
of [7.5] acres.) The proposed RR -10 zoning designation permits development at similar densities.
Therefore, it appears that the development limitations proposed by the neighbors does not currently exist
in the code.
ZC 08-1/PA 08-1 Daniels Group, LLC Page 8 of 31
unnecessary expansion of service boundaries, and to preserve and
enhance the safety and viability of rural land uses.
FINDINGS: The applicant argues that the proposal is consistent with this goal because a future
developer, and not the public, will bear costs of extending facilities to the property. Staff and the
neighbors disagree that the extension of public services is the only consideration under this
goal, arguing that it also requires a showing that the proposed rural residential uses "preserve
and enhance the safety and viability of rural land uses." The neighbors argue that unless
reclamation and remediation measures are included in this approval, neither the neighbors nor
the future residents of the site can be assured that the site is safe for development or that
development on their properties will remain viable.
Public Facility/Service Availability and Capacity
This goal requires the county to thoughtfully consider development locations to minimize urban
sprawl and to ensure that public facilities and infrastructure are adequate to accommodate
anticipated development. This includes consideration of service availability and capacity. Low
density residential development allowed in the RR -10 zone does not require urban services
such as sewer and water, as those needs can be served by on-site systems. Service
boundaries will not be expanded. Public services, such as police and fire, already serve the
area. With respect to these facilities and services, the proposed redesignation will have little to
no effect.
The site borders on Lower Bridge Way, a publicly maintained county road. The applicant's traffic
study concludes the intersection of Lower Bridge Way/U.S. 97 will not meet either the
performance standards of Deschutes County or ODOT with or without this development. The
applicant's December 2007 traffic study assumed "a reasonable worst-case scenario under the
current [SM] plan and zoning designation," and "a reasonable worst-case scenario under the
proposed [RR -10] plan and zoning designation." In that study, Kittleson and Associates
assumed that mining activities on the site would generate 26 peak hour trips, and that
residential uses (based on 55 dwelling units) would generate 55 peak hour trips, for total
increase of 31 peak hour trips.
Based on the December 2007 study, and on his assumption that the reasonable worst-case
rural residential development scenario involved the development of 74 dwelling units in a PUD,
the county transportation planner concluded the proposal would have a significant effect on
transportation facilities as defined by the Transportation Planning Rule (TPR) at Oregon
Administrative Rule (OAR) 660-012-0060(2)(c). Thus, if the development is approved, the
applicant will need to provide mitigation sufficient to avoid further degradation of the intersection
as required by OAR 660-012-0060(3)(c). In the alternative, the planner recommended that the
applications be denied, for failing to satisfy transportation -related approval standards.
In response to this preliminary review, the applicant provided evidence that the proposed plan
amendment/zone change will not significantly affect a transportation facility because the number
of vehicle trips that could be used in mining the site generates more than the peak hour trips
that could be generated by rural residential use. Mason v. City of Corvallis, 49 Or LUBA 199
(2005)(if the number of vehicle trips from the proposed development is less than the number of
vehicle trips allowed under current zoning, the causative element necessary to find a "significant
effect" under the TPR is missing.) In support of this contention, the applicant initially relied on a
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transportation impact study conducted by Eugene Sand and Gravel for its Delta Road site.4
Based on the Delta Road evidence the proposed residential use would generate 74 peak hour
trips, compared to 89 peak hour trips generated from the mining activities.
After reviewing this revised analysis, the county transportation planner expressed concerns
regarding the relevancy of an urban aggregate processing facility to the subject property. Thus,
on May 20, 2008, the applicant submitted a second revised analysis, using more rural locations
in Deschutes and Crook Counties. According to this second revised study, the mining activities
on all of the comparison sites would be still be greater than the proposed residential use.
The applicant seeks to rezone this property in part because it is depleted of economically viable
mineral and aggregate resources. Therefore, if these applications are denied, the site could be
used for stockpiling materials, for processing materials (including washing and crushing) and to
site an asphalt batch plant. The evidence shows that peak hour rates for these activities vary
widely, in part because they are dependent on outside construction schedules. Both ODOT and
the county transportation planner question these assumptions, noting that nearby mining
operations generate between 16 and 26 peak hour trips, volumes that are generally consistent
with the historical trip generation from mining at the site, and consistent with the applicant's
December 2007 assumptions. Both the state and the county argue that it is highly unlikely that
the types of mining and processing that could occur on the site would generate the assumed
peak hour trips upon which the applicant relies.
The hearings officer notes that for both the applicant and the transportation officials, the
consequence of a "significant impact" determination is costly. For the applicant, it means either
amending the county's transportation plan to address the additional trips, or constructing
improvements to ensure that the failing turning movement is addressed. For the county and
ODOT, it means the difference between planning (and financing) to address other deficiencies,
and addressing deficiencies that are exacerbated by a particular, unanticipated development.
The hearings officer concludes that the greater weight of the evidence supports ODOT and the
transportation planner. The likely trip generation from mining the site is very use and project
specific, and is likely to be more sporadic than the anticipated trips from residential development
on the site. Given this uncertainty and the historic trip generation for mining related uses in the
area, the hearings officer concludes that the applicant has not met its burden of demonstrating
that the proposal will not significantly affect a transportation facility within the meaning of the
TPR, county code and this policy.
In the alternative, the applicant asserts that it is possible to amend the county's transportation
systems plan (TSP) to ensure that the proposed plan amendment is consistent with the plan
and the TPR, and accordingly is consistent with this policy. The proposal is evaluated against
standards and criteria that are in effect at the time the application is deemed complete. ORS
215.427. The applicant cannot rely on future amendments to ensure present consistency.
Accordingly, the hearings officer concludes that if the board of county commissioners concludes
4 The applicant based its revised analysis on the use of the site for a variety of mining related activities,
including limited extraction and stockpile, batch plant and crushing operations. According to the applicant,
such a comparison is appropriate, because the site may be used for mining -related activity, if the property
is not re -designated for rural residential uses. The applicant concedes that this comparison is somewhat
flawed, as there is a vast disparity in the types of activities that can occur at mining sites, with a
corresponding variety in the number of peak hour trips generated by those activities. Nevertheless, the
applicant asserts that this is a "reasonable worst-case development scenario," because the applicant
holds mineral rights for a nearby site, major transportation facilities are planned for construction in the
area, and the applicant will need to find some economic use for the site.
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that the proposal will generate more trips than uses under the existing zoning, the applicant has
not demonstrated that the impact of the proposed change in plan and zoning designations will
minimize the cost of transportation facilities to the site.
"To Preserve and Enhance the Safety and Viability of Rural Land Uses"
As noted above, opponents argue that before this site is rezoned for rural residential uses, the
applicant must demonstrate that it is safe for those residential uses, and that the safety of other
local uses, including residential and agricultural uses are preserved and/or enhanced. The
neighbors expressed concerns that hazardous wastes from mining activities since 1985 have
not been adequately addressed, and that the 1984-85 remediation and removal of hazardous
and radioactive wastes were inadequate. Further, the neighbors argue that the applicant has
not yet demonstrated that there is sufficient water to accommodate the proposed site
reclamation and provide domestic water for the number of dwelling units that could be
developed on the property. In addition, the neighbors argue that there is no evidence that the
applicant will take steps to address water contamination from the remaining mining materials.
Finally, the neighbors insist that this site will not be safe for residential use or preserve the
viability of existing rural residential uses in the area until the diatomite is fully contained.
The hearings officer disagrees with staff and opponents that this goal requires that prior
activities on the site be remedied before the site can be rezoned for rural residential uses. The
proposed map designation is consistent with other rural residential zoning in the area. In
addition, if the mineral and aggregate resources are no longer needed/available, the site cannot
be put to resource use. It includes few agricultural and no forest soils, and there is no dispute
that the former mine site is not suitable for farm or forest activities. In addition, permitting rural
residential development on the property will certainly be more compatible with neighboring
residential uses than mining. Particular development concerns, including water quality and
quantity, dust suppression and waste remediation, can be addressed in conjunction with a
particular development plan for the site.
The hearings officer concludes that the proposal is consistent with this goal.
C. To provide for the possible long-term expansion of urban areas
while protecting the distinction between urban (urbanizing) land and
rural lands.
FINDINGS: The unincorporated community of Terrebonne is located approximately seven
miles southeast of the site. The proposed zone change and plan amendment would not
preclude the possible long-term expansion of the community boundaries, although such
expansion to the subject property is not foreseeable at this time. Any future development, not
included in that application, would be required to conform to development standards for Rural
Residential (RR -10) zoned lands, that are designed to protect the distinction between urban
(urbanizing) land and rural lands.
Section, 23.24.030, Policies.
Residential/recreational development.
1. Because 91 percent of the new County population will live inside an urban
area, with only 3,039 new rural lots required, and in light of the 17,377
undeveloped rural tracts and Tots as well as the energy, environmental and
public service costs, all future rural development will be stringently
reviewed for public need before approval. As a guideline for review if a
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study of existing lots within three miles of the proposed development
indicates approximately 50 per cent or more of those lots have not had
structures constructed thereon, then the developer shall submit adequate
testimony justifying additional lots in that area. This will permit
development in areas where such is needed (other policies considering
energy, public facilities, safety and other development aspects shall also
be considered) while restricting future division in areas where many
undeveloped lots already exist.
FINDINGS: It is not entirely clear whether this policy pertains to a proposal to rezone property
from SM to RR -10, as a rezoning is not "development" per se, and development of this site will
require further review. To the extent this policy does apply, staff analyzed existing lots within
three miles of the subject property and found approximately 58 percent of those Tots have been
developed with structures:
Zone
Parcels
Parcels with at least
one structure
EFUTE
92
33
EFUSC
16
3
EFULB
113
54
MUA10
388
292
RR10
75
23
SM
9
0
Total
693
405
58%
The applicant need not provide additional justification for its proposal to redesignate the site for
rural residential uses. Overall, the proposal is not inconsistent with this policy.
2. Chapter 23.60, Transportation
a. Section 23.60.010, Transportation
* * * The purpose of DCC 23.60 is to develop a transportation system
that meets the needs of Deschutes County residents while also
considering regional and state needs at the same time. This plan
addresses a balanced transportation system that includes
automobile, bicycle, rail, transit, air, pedestrian and pipelines. It
reflects existing land use plans, policies and regulations that affect
the transportation system.
FINDINGS: This goal is implemented through the provisions of DCC 17.16.115(I)(1) and (2),
and the TPR. As noted above, the proposal is not consistent with either the county development
code or the TPR because the re -designation will significantly affect a transportation facility and
the applicant has not addressed how those effects will be off -set by changes in the TSP or
improvements to the Lower Bridge Way/U.S. 97 intersection. Therefore, the proposal is not
consistent with this standard.
3. Chapter 23.68, Public Facilities
a. Section 23.68.020, Policies
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1. Public facilities and services shall be provided at levels and
in areas appropriate for such uses based upon the carrying
capacity of the land, air and water, as well as the important
distinction that must be made between urban and rural
services. In this way public services may guide development
while remaining in concert with the public's needs.
3. Future development shall depend on the availability of
adequate local services in close proximity to the proposed
site. Higher densities may permit the construction of more
adequate services than might otherwise be true. Cluster and
planned development shall be encouraged.
9. New development shall not be located so as to overload
existing or planned facilities, and developers or purchasers
should be made aware of potentially inadequate power
facilities in rural areas.
FINDINGS: These policies address public facilities and services that may be needed to serve
residential uses on the site.5 With the exception of the local road system, future development is
unlikely to overload existing or planned public facilities. Concerns regarding transportation
facilities are discussed above. The existing rural residential development in the area indicates
that public facilities and services are available. Future development of the property can be
served by private wells and septic systems. Utility lines and facilities can be located so as not
divide any existing farm units.
4. Chapter 23.88, Agricultural Lands
Section 23.88.020, Goal.
To preserve and maintain agricultural land.
FINDINGS: As noted above, this proposal would result in the conversion of approximately 39
acres of "high value if irrigated" farmland to rural residential use.6 It is unclear if residential use
on the property would increase or decrease adverse impacts to nearby agricultural operations.
Impacts imposed on agricultural uses by adjacent residential uses typically include vandalism,
trespassing, disturbance to livestock, and dust. However, development of the project is likely to
result in better dust suppression, to the benefit of nearby agricultural operations. Overall, the
hearings officer concludes that the proposal is consistent with these policies because it absorbs
some of the pressure to develop on agricultural lands.
5 The applicant does not propose to use or install a public water system to serve residential development
on the property, and OAR Chapter 660, division 11, precludes the establishment or extension of urban
water or sewer systems outside of urban growth boundaries or existing service areas. Therefore, the
potential availability of quality domestic water is not relevant under these goals.
The applicant argues that the vast majority of the site does not contain agricultural soils and therefore a
Goal 3 exception is not needed. The hearings officer agrees.
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a. Section 23.88.030, Zoning Policies.
1. All lands meeting the definition of agricultural lands shall be
zoned Exclusive Farm use, unless an exception to State goal 3
is obtained so that the zoning may be Multiple Use Agriculture
or Rural Residential.
2. Lands not meeting the agricultural lands definition but having
potential for irrigation according to the Bureau of Reclamation
Special Report - Deschutes Project, Central Division, Oregon,
although presently without water, shall receive exclusive farm
use zoning.
FINDING: As explained at length below, the subject property, as a whole, is not "agricultural
land." The property does not have potential for irrigation according to the Bureau of
Reclamation Special Report - Deschutes Project, Central Division, Oregon.
A. OAR 660, Division 33, Agricultural Land.
660-033-0020
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service
(NRCS) as predominantly Class I-IV soils in Western Oregon and I -VI soils
in Eastern Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in
ORS 215.203(2)(a), taking into consideration soil fertility; suitability for
grazing; climatic conditions; existing and future availability of water for
farm irrigation purposes; existing land use patterns; technological and
energy inputs required; and accepted farming practices; and
(C) Land that is necessary to permit farm practices to be undertaken on
adjacent or nearby agricultural lands.
(D) Land in capability classes other than I-IV/I-VI that is adjacent to or
intermingled with lands in capability classes I-IV/I-VI within a farm unit,
shall be inventoried as agricultural lands even though this land may not be
cropped or grazed;
FINDINGS: The threshold inquiry for determining whether land is "agricultural" is whether the
soils are predominately class 1 -VI. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951,
955, 618 P2d 986 (1980); Flury v. Land Use Bd. of Appeals, 50 Or App 263, 267 (1981). The
evidence demonstrates that the subject property does not qualify as either high value
agricultural or forest land. Soil studies conducted by Wert & Associates confirm that
approximately 20% of soils are class VI; in fact only 5% of those are considered high value with
irrigation. Staff reaches a similar conclusion, estimating that approximately 21% of soils are
class VI, and only 7% of those are considered high value with irrigation. The record
demonstrates the subject property is not irrigated and is not necessary to permit farm practices
on adjacent agricultural lands, and the soils are not intermingled with agricultural soils within a
farm unit. The Forage Report concludes that the property "is not suited for profitable, accepted
agricultural use." Because a vast majority of the property contains class VII & VIII soils, and the
poorer soils are not intermixed with higher class soils within an existing farm unit, it falls outside
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of the default category of "agricultural lands" set out in Goal 3 and OAR Chapter 660, division
33.
The hearings officer notes that is site was originally designated for Surface Mining in the
county's comprehensive plan and zoned Surface Mining Reserve. The site was rezoned SM in
the 1985. The hearings officer finds that the only "resource" designation on this site is for
mining, a Goal 5 use, and not farm or forest, Goal 3 and 4 uses, respectively.
For these reasons, the subject property does not constitute "agricultural land" as defined in Goal
3, is not subject to protection under Goal 3, and therefore the proposed plan amendment and
zone change do not require an exception to Goal 3.
B. OAR 660, Division 6, Goal 4 Forest Land.
Goal 4 defines "forest land" as follows:
Forest lands are those lands acknowledged as forest lands as of the
date of adoption of this goal amendment. Where a plan is not
acknowledged or a plan amendment involving forest lands is
proposed, forest land shall include lands which are suitable for
commercial forest uses including adjacent or nearby lands which
are necessary to permit forest operations or practices and other
forested lands that maintain soil, air, water and fish and wildlife
resources.
FINDINGS: The subject property is not and never has been zoned for forest use. The detailed
soil study prepared by Steve Wert included an analysis of the subject property's soils for
production of merchantable tree species, and shows the soil units identified on the subject
property are not listed in the NRCS' Woodland Productivity soils table, and therefore are not
considered suitable for the production of wood crops by the NRCS. Finally, the record indicates
the predominant tree species on the property are juniper trees which historically have not had
commercial value and have not been harvested commercially either on the subject property or
on nearby lands. Accordingly, OAR Chapter 660, division 6 does not apply.
5. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental
Quality
a. 23.96.020, Goals.
1. To conserve open spaces and areas of historic, natural or
scenic resources.
FINDINGS: The site abuts the Deschutes River, a designated federal Wild and Scenic River
and Oregon Scenic River. The river and property abutting it are subject to the Landscape
Management Combining Zone and that designation will not change with the proposed
designation to Rural Residential Exception Area. To the extent that rural residential
development may affect open spaces and areas of historic, natural or scenic resources, the
hearings officer finds that the proposed designation will better preserve those resources than
the existing mining designation. For instance, much of the mined area on the site is exempt
from reclamation. Unless the site is put to some other use, the existing conditions will remain.
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In addition, the density standards for the proposed RR -10 zoning will ensure that development
on the site will preserve significant areas of open space on the property, even if the site is
developed with a PUD.
Therefore, the hearings officer concludes that the proposal is consistent with this policy.
2. To maintain and improve the quality of the air, water and land
resources of Deschutes County.
FINDINGS: As noted above, this site has a long history of industrial use, and some of those
uses have resulted in significant environmental impacts. Those impacts include dust from the
diatomite, hazardous and radioactive waste disposal and remediation, and violations of
environmental quality regulations. Neighbors expressed concerns regarding the impact of the
proposal on water quantity and quality, arguing that the water needed to reclaim the site will
adversely affect the area's water supply. Those issues are addressed as follows:
Diatomite dust. According to the applicant, the diatomite on the property is from fresh -water
diatoms. The applicant supplied testimony and evidence that shows that fresh -water diatomite
contains a smaller percentage of crystalline silica, the type of silica that has been identified as a
health hazard if inhaled in quantity. The applicant argues that this type of diatomite poses no
more risk than other dust in the area. The applicant also argues that before this site is
redeveloped for residential uses, the diatomite will be graded and seeded to prevent dust from
blowing from the site to neighboring properties. The neighbors expressed reservations about
this assertion, arguing that the cost and feasibility of that type of reclamation is unlikely to be
recouped as part of development on this site.'
The evidence shows that blowing dust has been an issue for many years, although recent
grading activities has exacerbated the situation. The recent activities led the Department of
Environmental Quality (DEQ) to issue a notice of violation. In response to the notice, the
applicant began using an existing well to water a portion of the site to minimize dust. The
applicant is also proposing to implement best management practices to ensure that blowing
dust during development is minimized. These measures are adequate to assure that local air
quality is maintained.
Water quality/quantity. According to the evidence in the record, seven wells have been drilled
on the site. These wells are proposed to be used for dust suppression, and may be converted to
domestic wells in the future. The applicant proposes to develop individual, shared or group
' The opponents argue that the diatomite has been converted to crystalline silica during through an on-
site manufacturing process. They cited evidence showing that crystalline silica is hazardous to worker
health, and argued that until the diatomite at the site has been removed or covered with top soil, there is
no guarantee that existing or future residents' health will not be affected. They further argue that
diatomite doesn't grow much, and unless the applicant plans to import a significant amount of topsoil, it is
unlikely that the reseeding efforts will be successful.
While the former evidence tends to support a finding that processing of diatomite at the site needs to be
regulated, the evidence of the health effects of freshwater diatomite on neighboring property owners is
not sufficient to undermine the applicant's evidence that such effects are limited. With respect to the
viability of re -vegetation of the site, the hearings officer agrees that soil or soil amendments may be
necessary to ensure that vegetation on the site will survive. Undoubtedly, future development on the site
will require a landscaping/vegetation plan to address long term plant viability.
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wells (serving up to three Tots) as part of its residential development. The residents may use up
to 15,000 gallons per day for domestic and yard irrigation (up to one-half acre) and remain
exempt from water rights regulation. Similarly, wells developed to serve three or fewer
dwellings are exempt from water quality standards. Neighbors expressed concerns regarding
potential water contamination from past industrial uses, and also argue that the introduction of
17 or more new wells (assuming 72 dwelling units, and at least one well per three dwelling units
minus the seven existing wells) could significantly affect their water quality and quantity.
The hearings officer finds that this goal does not directly address the availability (or quantity) of
domestic water supplies. Rather, it is intended to assure that quality of air, water and land
resources is maintained and improved. Here, the evidence (including evidence from testing of
nearby community water wells) shows that existing water quality in the area is adequate, and
that past activities on the site have not affected nearby well water quality. With respect to water
quality at the site, the hearings officer finds that the question can be better addressed at the
time a development proposal is submitted for the site. At this point, the evidence shows that the
proposed plan amendment/zone change will not have any effect on water quality.
Erosion/Fill. One of the neighbors expressed concerns regarding slope stability at the site,
asserting that new grading may undermine the slope along the edges of the river bank. Other
neighbors expressed concerns that the fill used for residential foundations be adequate for the
purpose, noting that a school in Deschutes County is sinking, in part because the fill used by the
contractor was not stable enough to accommodate the building. The evidence shows that
diatomite mining occurred closer to the center of the site, and that the aggregate mining has
ceased. There is no evidence that past mining has undermined slope stability along the river
edge. The applicant has proposed to grade some of the taller diatomite mounds to reduce the
areas susceptible to blowing dust. As for future development, land division and development
standards impose setbacks from the edge of the bank, require compliance with grading permits,
and require that needed fill be appropriate for the intended purpose. The hearings officer
concludes that these measures are adequate to assure that development on the site will not
adversely affect air, water or land quality.
Dumping. The site was an approved waste facility in the mid-1970s, and consequently, sludge,
radioactive materials as well as standard solid waste was brought to the site during that time.
According to the applicant, the dumping grounds were limited to the central portion of the site,
near the former lagoons, and included 55 -gallon drums filled primarily with caustic sand. The
site was subject to a DEQ -mandated clean up, which was completed by January 1985. The
evidence shows that all of the materials located at the site prior to 1985 were removed to
approved hazardous waste disposal sites, including Arlington and the Hanford Reservation.
According to Maul Foster and Alongi, Inc., the applicant's environmental consultant, the
standards used to evaluate the clean-up was based on one of two standards "clean up to the
maximum extent practical" or "clean up to background conditions." Maul Foster and Alongi, Inc.
representatives testified that these standards are higher than the current risk-based standards,
which permit less comprehensive clean up where the site will be used for industrial purposes
than is required for sites that will be redeveloped for residential uses.8 With respect to spills or
activities that have occurred since that time, including disposal of mining solvents and industrial
8 The hearings officer realizes that a question remains as to whether the 1985 standards (based on 1985
technology) is equivalent to the clean-up standards that would be imposed if the site was subject to
current standards for residential re -development. The hearings officer concludes that this goal requires a
demonstration that the site meets applicable DEQ clean-up standards, which in this case, are the 1985
standards. The applicant has met its burden of demonstrating that those standards have been satisfied,
therefore, the proposed plan amendment and zone change are consistent with these standards.
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i
burning, the evidence shows that the violations have been addressed.
The hearings officer concludes that overall, the evidence supports a finding that the site has
been remediated and that residential development can safely occur on the property. However,
the hearings officer also concludes that it is appropriate to include documentation of the site
history and clean-up efforts in the CC&Rs that apply to future development to ensure that if in
the future questions arise about activities on the site, the residents have a ready source of
information available to them.
Based on these findings, the hearings officer concludes that residential development of the
property will not significantly impair air, water or land quality in the area.
a. Section 23.96.030, Policies
10. As part of subdivision or other development review, the
County shall consider the impact of the proposal on the air,
water, scenic and natural resources of the County. Specific
criteria for such review should be developed. Compatibility of
the development with those resources shall be required as
deemed appropriate at the time given the importance of those
resources to the County while considering the public need for
the proposed development.
FINDINGS: This plan policy is not applicable to the proposed plan amendment because the
applicant is not seeking subdivision approval or development review. If the plan amendment and
zone change are approved, then future development will need to satisfy this standard.
B. Oregon Administrative Rules
1. OAR 660, Division 12, Transportation Planning Rule
(1)
Where an amendment to a functional plan, an acknowledged
comprehensive plan, or a land use regulation would significantly affect an
existing or planned transportation facility, the local government shall put in
place measures as provided in section (2) of this rule to assure that
allowed land uses are consistent with the identified function, capacity, and
performance standards (e.g. level of service, volume to capacity ratio, etc.)
of the facility. A plan or land use regulation amendment significantly
affects a transportation facility if it would:
(a) Change the functional classification of an existing or planned
transportation facility (exclusive of correction of map errors in an
adopted plan);
(b) Change standards implementing a functional classification system;
or
(c) As measured at the end of the planning period identified in the
adopted transportation system plan:
(A) Allow land uses or levels of development that would result in
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types or levels of travel or access that are inconsistent with
the functional classification of an existing or planned
transportation facility;
(B) Reduce the performance of an existing or planned
transportation facility below the minimum acceptable
performance standard identified in the TSP or comprehensive
plan; or
(C) Worsen the performance of an existing or planned
transportation facility that is otherwise projected to perform
below the minimum acceptable performance standard
identified in the TSP or comprehensive plan.
(2) Where a local government determines that there would be a significant
effect, compliance with section (1) shall be accomplished through one or a
combination of the following:
(3)
(a)
Adopting measures that demonstrate allowed land uses are
consistent with the planned function, capacity, and performance
standards of the transportation facility.
(b) Amending the TSP or comprehensive plan to provide transportation
facilities, improvements or services adequate to support the
proposed land uses consistent with the requirements of this
division; such amendments shall include a funding plan or
mechanism consistent with section (4) or include an amendment to
the transportation finance plan so that the facility, improvement, or
service will be provided by the end of the planning period.
(c) Altering land use designations, densities, or design requirements to
reduce demand for automobile travel and meet travel needs through
other modes.
(d) Amending the TSP to modify the planned function, capacity or
performance standards of the transportation facility.
(e) Providing other measures as a condition of development or through
a development agreement or similar funding method, including
transportation system management measures, demand
management or minor transportation improvements. Local
governments shall as part of the amendment specify when
measures or improvements provided pursuant to this subsection
will be provided.
Notwithstanding sections (1) and (2) of this rule, a local government may
approve an amendment that would significantly affect an existing
transportation facility without assuring that the allowed land uses are
consistent with the function, capacity and performance standards of the
facility where:
(a) The facility is already performing below the minimum acceptable
performance standard identified in the TSP or comprehensive plan
on the date the amendment application is submitted;
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b) In the absence of the amendment, planned transportation facilities,
improvements and services as set forth in section (4) of this rule
would not be adequate to achieve consistency with the identified
function, capacity or performance standard for that facility by the
end of the planning period identified in the adopted TSP;
(c) Development resulting from the amendment will, at a minimum,
mitigate the impacts of the amendment in a manner that avoids
further degradation to the performance of the facility by the time of
the development through one or a combination of transportation
improvements or measures;
(d) The amendment does not involve property located in an interchange
area as defined in paragraph (4)(d)(C); and
(e) For affected state highways, ODOT provides a written statement that
the proposed funding and timing for the identified mitigation
improvements or measures are, at a minimum, sufficient to avoid
further degradation to the performance of the affected state
highway. However, if a local government provides the appropriate
ODOT regional office with written notice of a proposed amendment
in a manner that provides ODOT reasonable opportunity to submit a
written statement into the record of the local government
proceeding, and ODOT does not provide a written statement, then
the local government may proceed with applying subsections (a)
through (d) of this section.
FINDINGS: The TPR applies to these applications because they involve an amendment to an
acknowledged plan. The proposed plan amendment would change the designation of the
subject property from SM and EFU-LB to RREA, and the applicant has requested approval of a
zone change from SM and EFU to RR -10 for the subject property.
The applicant's December 2007 traffic study finds the intersection of Lower Bridge Way/U.S. 97
will not meet either the performance standards of Deschutes County or ODOT with or without
this development. The County sets a standard of Level of Service (LOS) D for existing roads
while the applicable ODOT volume/capacity (V/C) ratio is 0.70 for the highway and 0.80 for the
side street based on functional classification and posted speed. An ODOT project planned for
2009 will reconfigure the Lower Bridge Way/97 and 11th Street/97 intersections. While this will
improve the operations of these intersections, it will not address the capacity issue, as the
project focuses more on storage issues on the side streets.
As noted above, the applicant submitted revised traffic analyses, based on more intensive
mining -related uses on the site. As ODOT and the county transportation planner note, however,
those assumptions are not related to either historic trip generation from mining at the site, or
from comparison facilities in the vicinity. Rather they are an amalgamation of several uses, and
assume (with little empirical support) that those uses will generate peak hour trips that exceed
the estimated peak hour trips generated from 74 dwelling units that could be developed on the
site under the proposed zoning and plan designations. These assumptions are not supported
by substantial evidence in the whole record.
Even if the applicant conceded that its proposal would exceed the performance standards for
the Lower Bridge Way/U.S. 97 intersection, the applications could nevertheless be approved, if
the applicant concurrently provided a proposal to address the deficiency in one of the ways
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described in OAR 660-012-0060(3). However, the applicant has not provided a proposal to
address those alternatives. Therefore, the hearings officer concludes that the proposal does not
satisfy the TPR.
2. OAR 660, Division 15, Statewide Planning Goals and Guidelines
FINDINGS:
Goal 1, Citizen Involvement. The proposed plan amendment satisfies this goal because the
Planning Division provided public notice of the applicant's proposal through individual mailed
notice to affected property owners, posting of the subject property with a notice of proposed
land use action sign, and published notice of the public hearing in the "Bend Bulletin"
newspaper. In addition, two public hearings will be held before the proposed plan amendment is
approved, one before the Hearings Officer and one before the Deschutes County Board of
Commissioners (board). The staff report and Hearings Officer decision will provide the public
with information concerning the proposed plan amendment.
Goal 2, Land Use Planning. The proposal has been reviewed in accordance with the county's
acknowledged planning review processes, and will be subject to at least two public hearings.
Further, no Goal 2 exceptions are required. The proposal is consistent with this goal.
Goal 3, Agricultural Lands. The property contains few agricultural soils and has not been
cultivated for crops or livestock. The site is not "agricultural" within the meaning of Goal 3.
Goal 4, Forest Lands. This goal is not applicable because the subject property is not zoned or
designated for forest use.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. According to the
applicant, the site no longer contains aggregate in sufficient quantities to qualify as a "significant
site" under Goal 5 and OAR Chapter 660, division 23. The evidence shows that the majority of
the aggregate resource is located on the southeastern portion of the site, south of Lower Bridge
Way. The site has been closed in accordance with DOGAMI regulations, and the evidence
shows that little of the resource remains. The parties apparently agree that vast quantities of
diatomite remain, however, they dispute whether the materials are needed for industrial or
construction uses in the near future, or that other locations are available to supply long term
future needs. Therefore, the hearings officer concludes that removal of the site from the
county's Goal 5 inventory is justified, because the market for diatomite is a global market and
the supply of the mineral is available on a global scale. There is no evidence that there is a
local market for diatomite that could be accommodated by retaining this site in the significant
mineral and aggregate inventory.
In response to comments that the proposal will only be consistent with Goal 5 if the ESEE
analysis for Site 461 is amended to address the relative merits of allowing or not allowing mining
on the site based on current conditions, the hearings officer concludes that such a revised
analysis is not necessary if the purpose of the amendment is to remove a resource from the
protection afforded by the inventory designation. The applicant has requested that the site be
removed from the inventory, and there is little or no benefit to retain it. Therefore, further
analysis is unnecessary.
Goal 6, Air, Water and Land Resources Quality. While a number environmental quality
concerns have been identified, the hearings officer concludes that those concerns are
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addressed through environmental quality and health administrative rules. Further, residential
development on the site will not be permitted unless the applicant demonstrates that adequate
area is available for on-site sewage disposal.
Goal 7, Areas Subject to Natural Disasters and Hazards. The subject property contains
areas subject to flooding along the Deschutes River, as shown on FIRM panel 41017C0300E.
This proposal does not include any development in floodplain areas. Any future development in
these areas would be required to comply with the provisions of DCC 18.96, which has been
reviewed and approved by FEMA.
Goal 8, Recreational Needs. The proposed plan amendment and zone change do not reduce
or eliminate any opportunities for recreational facilities either on the subject property or in the
impact area, and to the extent the development of residential uses on the property will generate
a need for recreational opportunities, the hearings officer concludes that those needs can be
served on-site or by existing recreational areas/services.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the
state for a variety of economic activities. This goal is met because the subject property no
longer constitutes a significant mineral and aggregate resource, and therefore allowing it to be
re -designated and rezoned for rural residential development will not have adverse economic
impacts.
Goal 10, Housing. Goal 10 defines needed housing as being housing within urban growth
boundaries. This property is outside the urban growth boundary, and therefore Goal 10 is not
applicable.
Goal 11, Public Facilities and Services. This Goal requires planning for public services,
including public services in rural areas. Goal 11 has generally been held to prohibit the
extension of urban services (namely sewer and water) to rural lands outside urban growth
boundaries. The present application will not result in the extension of urban services because
the low-density development allowed in the RR -10 zone does not require urban services. Any
residential development will be of a density that can be served by on-site septic and individual
wells.
Goal 12, Transportation. This goal is to "provide and encourage a safe, convenient and
economic transportation system." It is implemented through OAR 660-012, commonly known as
the TPR. Based on the findings in response to the TPR, the hearings officer concludes the
proposal is not consistent with Goal 12.
Goal 13, Energy Conservation. Goal 13 is to conserve energy. Planning Guideline 3 notes
that "[I]and use planning should, to the maximum extent possible, seek to recycle and re -use
vacant land..." Surface mining activities have ceased on the site and it has been vacant for
some years. The applicant proposes re -use of the land consistent with this guideline, and thus
this proposal is consistent with Goal 13.
Goal 14, Urbanization. The applicant's proposal does not affect property within an urban
growth boundary and the proposed RR -10 zoning designation does not permit urban density
levels. Goal 14 therefore does not apply.
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Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are
not applicable because the subject property is not located in or adjacent to any such areas or
resources.
ZONE CHANGE
FINDINGS: The applicant has requested approval of a zone change from EFU-LB and SM to
RR -10 for the subject property, and to remove the associated Surface Mining Impact Area
(SMIA) overlay from property located within a one-half mile radius of the site. However, because
the site is within a one-half mile radius of Site 322, the applicant requests that the SMIA be
applied to this property, to protect mining uses at that site.
C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.52, Surface Mining Zone (SM)
a. Section 18.52.130, Site Reclamation Plan.
Prior to the start of mining activity, a site reclamation plan shall be
submitted and approved which demonstrates that the mineral and
aggregate extraction site can be reclaimed for a subsequent beneficial land
use consistent with the designation of such subsequent use in the surface
mining element of the Comprehensive Plan.
FINDINGS: The applicant had submitted a reclamation plan as Exhibit C to SP -85-23. The
reclamation plan included areas that are exempt from reclamation under DOGAMI standards,
and included a proposal to place topsoil and reseed the diatomite mining area. However,
DOGAMI did not require reclamation of the diatomite mine prior to closing the site, and it
appears that little, if any reclamation has been done in that area. According to evidence from
DOGAMI staff, the southeast portion of the site has been fully reclaimed to DOGAMI standards.
No post -mining use of the site was identified on the reclamation plan.
A. When a site reclamation plan is required by DOGAMI, the site
reclamation plan shall be approved by DOGAMI. To the
extent practicable, review of the site reclamation plan shall be
conducted jointly between DOGAMI and the County.
B. When a site reclamation plan is not required by DOGAMI, the
site reclamation plan shall be approved by the County in
conjunction with the site plan review described in DCC
18.52.070. The County shall review such site reclamation
plans for consistency with the site-specific ESEE analysis in
the surface mining element of the Comprehensive Plan and
the standards and conditions set forth in DCC 18.52.110 and
18.52.140. The County also shall follow the applicable
DOGAMI standards and criteria for a site reclamation plan.
FINDINGS: Areas southeast of Lower Bridge Way were subject to a DOGAMI reclamation plan
and have been reclaimed in accordance with that plan. The mine site northwest of Lower
Bridge Way did not have a DOGAMI required reclamation plan. However, a County reclamation
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plan was required under SP -85-23, and was attached to that decision as Exhibit C. The
applicant proposes to reclaim the site to allow for residential development.
b. Section 18.52.200, Termination of the Surface Mining Zoning and
Surrounding Surface Mining Impact Area Combining Zone
A. When a surface mining site has been fully or partially mined,
and the operator demonstrates that a significant resource no
longer exists on the site, and that the site has been reclaimed
in accordance with the reclamation plan approved by
DOGAMI or the reclamation provisions of DCC 18, the
property shall be rezoned to the subsequent use zone
identified in the surface mining element of the
Comprehensive Plan.
FINDINGS: The County's inventory of significant mineral and aggregate sites describes SM Site
461 as follows:
Site No.
Legal Description
Type
Quantity
Quality
461
141300-00-01500, 1501,
Aggregate
350,000 y3
Good
1502, 1503, 1505, 1600
[Diatomite]
2,000,000 y3
Subsection (A) requires the operator to demonstrate that: 1) the site has been fully or partially
mined; 2) a significant resource no longer exists on site; and 3) the site has been reclaimed in
accordance with DOGAMI, or DCC Section 18.52.130 standards. The applicant asserts that all
three conditions are satisfied here.
As discussed in detail below Site 461 has been mined. The section below discusses significant
resource status. In the Hearings Officer's previous decision in Stott (PA-98-12/ZC-98-6), the
Hearings Officer held that the provisions of OAR 660 Division 23 regarding compliance with
Goal 5 are relevant to this question. OAR 660-023-0250 provides in pertinent part:
(1)
[OAR 660, division 23] replaces OAR 660, division 16 * * *. Local
governments shall follow the procedures and requirements of this division
* * * in the adoption or amendment of all plan or land use regulations
pertaining to Goal 5 resources. The requirements of Goal 5 do not apply to
land use decisions made pursuant to acknowledged comprehensive plans
and land use regulations.
(2) The requirements of this division are applicable to [post -acknowledgment
plan amendments (PAPAs)] initiated on or after September 1, 1996. * * *
(3)
Local governments are not required to apply Goal 5 in consideration of a
PAPA unless the PAPA affects a Goal 5 resource. For purposes of this
section, a PAPA would affect a Goal 5 resource only if:
(a) The PAPA creates or amends a resource list or a portion of an
acknowledged plan or land use regulation adopted in order to
protect a significant Goal 5 resource or to address specific
requirements of Goal 5[.] * * *"
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In Stott, the Hearings Officer concluded that a plan amendment and zone change to "de -list"
and rezone a surface mining site constitutes a "PAPA," and therefore the provisions of OAR
660-023-0180 concerning mineral and aggregate resources apply to such an application to the
extent they reasonably can be applied to a decision to remove a site from the county's adopted
inventory. The Hearings Officer further found OAR 660-023-180(3) identifies the pertinent
standards for determining "significance." This paragraph provides:
(3)
An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource
demonstrates that the site meets any one of the criteria in subsections (a)
through (c) of this section, except as provided in subsection (d) of this
section:
(a) A representative set of samples of aggregate material in the deposit
on the site meets applicable Oregon Department of Transportation
(ODOT) specifications for base rock for air degradation, abrasion,
and soundness, and the estimated amount of material is more than
2,000,000 tons in the Willamette Valley, or more than 500,000 tons
outside the Willamette Valley;
(b) The material meets local government standards establishing a lower
threshold for significance than subsection (a) of this section; or
(c) The aggregate site was on an inventory of significant aggregate
sites in an acknowledged plan on September 1, 1996.
FINDING:
Significant Resources: Mineral and aggregate are not the same resources. Mineral resources
refer generally to all inorganic materials that are extracted from the earth and put to beneficial
use. It includes precious metals, valuable minerals, diatomite, as well as rock and sand.
"Aggregate," on the other hand, refers to those inorganic substances that are used in road or
other construction activities. OAR 660-023-0180 only addresses "aggregate" resources. The
county's Goal 5 program primarily addresses aggregate resources, although the definition of
"mineral" is broader than the definition of "aggregate" set out in OAR 660, division 23.
Aggregate resource is significant if it meets one of the three criteria set out in OAR 660-023-
0180(3). Here, the only potentially applicable standard is OAR 660-023-0180(3)(a).9
OAR 660-023-0180(3)(a) requires a demonstration that the aggregate at the site: 1) meets
ODOT specs for air degradation; 2) abrasion; 3) sodium sulfate soundness; and 4) include more
than 500,000 tons. The Aggregate Resource Assessment Report prepared by GeoDesign, Inc.
and submitted as Exhibit 7 ("Aggregate Report") concludes that subject site does not satisfy the
criteria because it fails sodium sulfate soundness requirements and contains less than 500,000
tons of aggregate. Based on a site-specific analysis, the Aggregate Report estimates the
quantity of the aggregate at 211,000 cubic yards. Assuming a tons -per -cubic yard ratio of 2.1,
the Report finds 443,100 tons of aggregate on site, less than the "significant" threshold above.
9 OAR 660-023-0180(3)(b) does not apply because the local government has not established lower
standards. OAR 660-023-0180(3)(c) does not apply to requests to remove a site from the acknowledged
inventory. See Hearings officer decisions PA -98-12 and ZC-98-6, PA -04-4 at page 30 (submitted as
Exhibit 15) and PA -06-2 at page 14 (submitted as Exhibit 19).
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In the staff report, staff expressed some concern regarding the evidence the applicant provided
to support its assertion that the aggregate resource is no longer significant. First, staff noted
that the soundness test was very limited. Second, staff observed that the applicant's estimate
of remaining aggregate is based on shallow borings, and not on a more comprehensive
geologic analysis. The hearings officer agrees with staff that the evidence is somewhat
equivocal, but in the absence of evidence that undermines the applicant's assertions, the
hearings officer finds that the applicant has demonstrated that the site no longer contains a
significant aggregate supply.
With respect to diatomite, the aggregate significance standards do not apply because diatomite
is a mineral, not aggregate, resource. Neither local law nor administrative rule define what a
significant "mineral" resource is, although it can be assumed that the county concluded that the
diatomite located on the property was "significant" enough to justify its inclusion in on the Goal 5
Mineral and Aggregate inventory. In addition, the value of diatomite in the global market justified
the rezoning of the property to SM, and the approval of mining in 1985. The applicant has
provided information in the submitted burden of proof that there is no economic incentive to
mine diatomite on the subject property due to ample global supply, low profitability, less
expensive substitute materials, and undesirable environmental impacts. Due to its limited
usefulness in the local market, and the evidence that other materials provide a more suitable
replacement, the hearings officer agrees with the applicant that diatomite is no longer a
"significant" mineral warranting protection.
Reclamation: The Deschutes County Code requires that the site be reclaimed in accordance
with a reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18.52,
DOGAMI has found the site to be reclaimed according to its standards. As the DOGAMI memo
explains, 61 acres on tax lots 1503 and 1505 were covered by an operating permit for gravel
extraction, and reclamation has been completed there. The overburden stockpiles on that area
have been revegetated, are stable, and may remain until used for on-site development. The
former DIATOMITE mining site (west of Lower Bridge Way) is exempt from reclamation
requirements under ORS 517.770 because it was part of a mine that existed before 1972.
Site Plan approval SP -85-23 included reclamation specifications. Below is a summary of the
applicant submitted reclamation plan, attached as Exhibit C to the Hearings Officer Decision in
SP -85-23.
The applicant has stated that the topsoil is stockpiled and will be replaced on the
area mined approximately 12 inches deep. The applicant proposed to
motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed
bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and
mulch. The applicant also proposes to plants evergreens for shade and
windbreaks on the site.
The evidence shows that this plan has not been implemented. Condition 1 of SP -85-23 also
required an updated reclamation plan to include measures to prevent materials from eroding
into the Deschutes River. Staff has been unable to locate this updated reclamation plan. For
these reasons it is Staff's opinion that the applicant has not met the rezoning criteria of DCC
18.52.200(A).
There is significant confusion as to the relationship between the DOGAMI reclamation
standards and DCC 18.52.200(A). DOGAMI has the statutory authority to regulate reclamation
over sites located in Deschutes County, and its reclamation standards supersede local
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standards. Therefore, unless the applicant agrees otherwise, sites that are exempt from
reclamation under DOGAMI regulations are similarly exempt from other, more restrictive local
standards that could be imposed as a condition of land use approval. Thus, as a practical
matter, the only role the county has in the reclamation process is to identify a post -mining. use.
If the post -mining use is established prior to the adoption of a reclamation plan, the plan must
be consistent with that post -mining use.
Here, the evidence shows that the applicant proposed to replace the overburden and seed it as
part of its total site reclamation plan. Those reclamation activities were not required in the
DOGAMI reclamation plan, and the evidence shows that the applicant did not follow through
with its proposed reclamation plan. The question then, is whether the county can hold the
applicant here responsible for the deficiency of a prior mine operator, when it had no authority to
impose the condition that the prior mine operator voluntarily acceded to? The answer, the
hearings officer concludes, is "yes." The applicant proposed to reclaim the diatomite mined
area, and the application was approved in part, based on that plan. The county had the
authority while the mine was active to enforce any and all of the provisions of the approval.
DCC 18.52.150. Those conditions similarly must be fulfilled prior to rezoning the site for a post -
mining use. Therefore, the hearings officer concludes that this proposal must either be denied
because conditions precedent have not yet been fulfilled, or conditioned to require the described
reclamation as part of the residential development of this site.
B. Concurrent with such rezoning, any surface mining impact
area combining zone which surrounds the rezoned surface
mining site shall be removed. Rezoning shall be subject to
chapter 18.136 and all other applicable sections of this title,
the Comprehensive Plan and Deschutes County Code Title
22, the Uniform Development Procedures Ordinance.
FINDINGS: Should this zone change be approved, it will also remove the surface mining
impact area combining zone which surrounds the rezoned surface mining site. However, as
noted above, Site 322 is located within one-half mile of the site. Therefore, a SMIA that covers
a one-half mile radius of that site must remain on nearby property and must be applied to this
site.
2. Chapter 18.136, Amendments
a. Section 18.136.020, Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by rezoning the property. Factors to be
demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and
the change is consistent with the Plan's introductory
statement and goals.
FINDINGS: In previous Hearings Officer's decisions, it has been held that comprehensive plan
goals and policies do not constitute mandatory approval criteria for quasi-judicial zone changes,
but rather are implemented through the zoning ordinance, and therefore if the proposed zone
change is consistent with the applicable provisions of the zoning ordinance it also will be
consistent with the plan.
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The applicant has argued that the public interest is best served by taking the subject property
out of mining use. Due to increased rural residential development in the area, and decreased
value and demand for diatomite, the applicant argues that diatomite mining is no longer
compatible with the area or desirable for the landowners. Rezoning for residential use will
provide incentive and the economic resources to clean up the aesthetic and environmental
impacts of decades of mining.
As noted above, with the exception of transportation -related policies and criteria, and
compliance with the county -approved reclamation plan for the site, the proposed plan map
amendment and removal of the site from the county's inventory of significant mineral and
aggregate sites are consistent with applicable plan policies and the Statewide Land Use
Planning Goals. The proposed RR -10 and SMIA zoning designations are consistent with the
proposed plan designations. Therefore, the proposal, so long as it is also consistent with the
zoning ordinance, is consistent with the plan.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: The applicant is proposing a zone change from Surface Mining to Rural Residential
(RR). The purpose of the RR zone, set forth at DCC 18.60.10 is:
The purposes of the Rural Residential Zone are to provide rural residential
living environments; to provide standards for rural land use and
development consistent with desired rural character and the capability of
the land and natural resources; to manage the extension of public services;
to provide for public review of nonresidential uses; and to balance the
public's interest in the management of community growth with the
protection of individual property rights through review procedures and
standards.
FINDINGS: The proposed zone change is consistent with this purpose statement because re-
development of the site will create a rural residential living environment consistent with the rural
character and capabilities of the land and resources. To the extent existing conditions affect the
carrying capacity of the land, air and water, those issues can be addressed through compliance
with applicable state health and environmental quality regulations, or through compliance with
the county's development standards.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
FINDINGS: The site is currently an unused diatomite and aggregate surface mine. Prior
activities on the site have adversely affected public health, safety and welfare, although some of
those impacts have been ameliorated. The hearings officer concludes that overall,
redevelopment of the site for rural residential uses will presently serve the public health safety
and welfare by providing the developer with an incentive to reclaim the site.
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1. The availability and efficiency of providing necessary
public services and facilities.
FINDINGS: AH utilities are available and currently serving other nearby properties, including the
RR -10 zoned subdivision to the southeast, and adequate County road frontage is available.
While the question is not without doubt, the hearings officer also concludes that the applicant
has failed to demonstrate that the proposed rural residential zoning will not significantly affect
local transportation facilities. However, if the applicant proposes measures to ensure that the
standards are satisfied, the application could meet the applicable transportation -related public
improvement standards.
The hearings officer concludes that "public services and facilities" within the meaning of this
standard does not include private domestic wells, individual subsurface sewage facilities or
private roads. To the extent water availability and water quality fall within the category of "public
services and facilities," the applicant provided evidence that it has a limited use water permit to
allow for dust suppression and irrigation of re -vegetated areas. The applicant also testified that
its preliminary testing shows that adequate water is available to develop individual or group
wells for domestic water supplies. Domestic wells must be drilled in accordance with Oregon
Water Resources Department well drilling standards, which includes a requirement that the well
not inject contaminated water into an aquifer, or cause perched water to move to another
aquifer. There is substantial evidence in the record to show that these standards are met or can
be met through conditions of development approval.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
FINDINGS: The applicant has stated that rezoning the property will not adversely impact
surrounding property because residential use is consistent with the existing residential uses
adjacent to the subject property, and will not increase adverse impacts on agricultural uses on
other nearby properties. A neighboring farmer testified that he supported the proposal.
D. That there has been a change in circumstances since the
property was last zoned, or a mistake was made in the zoning
of the property in question.
FINDINGS: There have been several changes in circumstances, and new information that
shows that mistaken assumptions were the premise of the current zoning. Part of the subject
property was zoned Surface Mining in 1985 and the remainder in 1989.
The 1985 zoning focused on only the diatomite resource, and was premised on the assumption
that diatomite would be economically productive for export. At that time the property was zoned
Surface Mine Reserve, and the applicable Comprehensive Plan assumed that land so
designated "will ultimately be mined." The applicable Plan also lowered the burden of proof for
changing the zoning to Surface Mining because "the material here sought to be mined consists
of non -aggregate materials which are most probably to be used for export as there is currently
little local demand." In spite of low local demand, the Hearings Officer found that the potential to
export diatomite satisfied "the need question." Applicants were "in the process of negotiating
large scale contracts for the delivery of [diatomite]" and the county found that construction of a
processing plant in Malheur County would "enable exportation by the applicants." Because the
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site had already been used for diatomite mining, the Hearings Officer found that rezoning would
simply facilitate more use and exportation of the resource.
However, circumstances have changed since 1985. Because the identified global supply of
diatomite will satisfy global demand for a very long time, the Lower Bridge Way site is not
needed. Environmental regulation and fuel costs have increased, while profits for diatomite have
decreased. Therefore, according to the applicant, mining diatomite from the site is no longer
economically viable or necessary.
The second rezoning, as part of the ESEE analysis for site 461, in 1989-1990 focused on the
site's aggregate (as opposed to a mineral) resource. It followed the 1988 Deschutes County
Goal 5 Aggregate Inventory, which identified an aggregate resource of 350,000 cubic yards. It
is unclear from the record how this amount was estimated.
In the ESEE analysis for site 461, the Board identifies the key values that form the basis for the
determination of SM zoning for the mine site. These include the importance of aggregate
resources to development in Deschutes County, the value to the County economy in terms of
materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site,
and that the site is located near a major roadway for highway maintenance and construction
jobs.
Neither the mine location nor the importance of aggregate resources to Deschutes County have
changed since the last zoning of the property. However, the current estimate of aggregate
resources on the property has fallen to 211,000 cubic yards. Also, the current Aggregate
Resource Assessment Report indicates that the aggregate on the site does not meet ODOT
specifications. This report also indicated that the aggregate resource cannot be profitably
mined. These issues constitute a change in circumstances within the meaning of this criterion.
IV. RECOMMENDATION
For the most part, the hearings officer agrees with the applicant the site does not include
significant mineral or aggregate resources and that it is appropriate to remove the site from the
county's Goal 5 mineral and aggregate inventory. In addition, the hearings officer concludes
that the site does not include agricultural or forest soils, and cannot be put to resource use.
Therefore, a non -resource designation is appropriate. However, for the reasons explained
above, the hearings officer concludes that the applicant has failed to demonstrate that the
proposal is consistent with the TPR, or that reclamation of the site will occur in accordance with
the approved reclamation plan for the site. Therefore, the hearings officer concludes that these
applications cannot be approved.
If, however, the board of county commissioners concludes that the proposal does satisfy all
applicable approval standards, the plan amendment and zone change may be conditioned to
address some of these concerns. DCC 18.136.030. The hearings officer recommends that the
following conditions be imposed concurrent with the amendments to the plan and zoning map.
1. As part of any residential development approval for the site, the applicant shall include
an informational section in its CC&Rs that detail the history of the site, including the
remediation efforts taken by the applicant and its predecessors in interest. In addition, if
fill is brought onto the site, the applicant shall identify the general location of the fill, and
if the site is used for development, the applicant shall either certify that the fill is suitable
for development, or specifically declaim any knowledge of its suitability.
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2. The applicant shall implement the reclamation plan set out in SP 85-23 or shall
implement an approved modification to the reclamation plan that permits the site to be
redeveloped for residential uses.
Dated this ilifin day of August, 2008.
Mailed this _ day of August, 2008.
t4-.
AnCorcoran Briggs
Hearings Officer
THIS DECISION IS NOT THE FINAL DECISION OF THE COUNTY. THE DESCHUTES
COUNTY BOARD OF COUNTY COMMISSIONERS RENDERS THE FINAL DECISION FOR
PLAN AMENDMENTS AND CORRESPONDING ZONE CHANGES.
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Subject Property
Taxlot 14-12.1501,1052,1503,1505 & 1600
Legend
ZC-08-1 /PA -08-1
Applicant: The Daniels Group LLC
Address: 70420 NW Lower Bridge Way
Taxmap: 14-12-1501,1502,1503,1505 & 1600