HomeMy WebLinkAboutSurface Mining Appeal - Lathamy,1/40WES
02
Deschutes County Board of Commissioner,
1300 NW Wall St., Suite 200, Bend, OR 97701-196(
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of Monday, November 10, 2008
Please see directions for completing this document on the next page.
DATE: November 5th.
FROM: Paul Blikstad Department CDD Phone # 6554
TITLE OF AGENDA ITEM:
Discussion of two appeals of the Hearings Officer's decision on a conditional use and site plan for
mining activities for an existing surface mine on Johnson Road near Tumalo State Park.
PUBLIC HEARING ON THIS DATE? No. This is only a discussion, with the possibility of the
Board determining whether or not to hear the appeals.
BACKGROUND AND POLICY IMPLICATIONS:
Latham Excavation applied for a conditional use permit and site plan for surface mining activities iLt the
Johnson Road (site no. 303) mining site. These applications were heard by the County Hearings
Officer, who issued a decision approving the applications. Both the applicant and an opponent
appealed that decision. The applicant has request an on -the -record appeal, and the opponent has
requested a de novo appeal.
FISCAL IMPLICATIONS:
None
RECOMMENDATION & ACTION REQUESTED:
Staff has calculated the 150 -day time period for these applications, and believes that the time period
ends on December 11, 2008. This would not allow the Board the opportunity to schedule a hearing,
take testimony and issue a written decision within the time frame listed. Staff believes that it would
also not allow an on -the -record review.
ATTENDANCE: Paul Blkstad, Laurie Craghead
DISTRIBUTION OF DOCUMENTS:
Planning staff would prepare an order for the Board's signature.
Community Development Department
Planning Division Building Safety Division Environmental Hea th Division
IMMENSIMAC
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.ot .us/cdd/
MEMORANDUM
DATE: October 30, 2008
TO: Board of County Commissioners
FROM: Paul Blikstad, Senior Planner
RE: Appeal of Hearings Officer's decision on CU -07-102, SP -07-46 (MA -08-3, MA -
08 -4); also file nos. A-08-14, A-08-20, for Latham Excavation
BACKGROUND
Latham Excavation submitted applications for a conditional use permit and site plan for surface
mining activities at what was/is an existing pumice mining site on Johnson Road. The
applicant's original proposal was to expand the surface mining operation at the site approved it
1995 (through site plan SP -95-10), and to include drilling and blasting at the site, and tc
construct and office and shop at the site. The applicant modified the request to remove these
two aspects of the proposed use, based mainly on concerns of the neighbors. The amender
applications thus included:
• Seek approval for extraction only within the footprint of the area approved for extraction
in the approval for SP -95-10.
• Approval for excavation of Bend Pumice and associated overburden materials anc
aggregate materials incidental to excavating pumice and overburden materials.
• Approval for processing and sale only of materials extracted on-site; no processing o!
sale of materials brought in from off-site.
• Recognize importation of materials from off-site for eventual use in reclamation.
• Elimination of any approval for drilling and blasting.
• Show alternative locations for screening and crushing of pumice and overburden
materials.
• Eliminate the office and shop and other structural accessory support facilities on site.
• To allow for use of a portable scale for weighing excavated materials on site.
The modification includes the following refinements and clarifications to those proposer
at the original February 19, 2008 hearing:
• To allow for crushing of welded tuff and other incidental rock material:
encountered in extraction of pumice and overburden materials.
• To provide for extraction, processing and sale of sand and horticultural materials.
Board Memo — Latham Excavation
Page1 of 3
Quality Services Performed with Pride
• To provide for washing of tuff, sand and horticultural materials.
• To modify the maximum area of the slots to be 5 acres.
• To note on the site plan the locations of the area where materials being brought
in are being deposited, where haul roads exist and what vegetation will be
retained.
• To show the type and location of portable weighing scale that applicant proposes
to use.
• To show compliance with DEQ air contaminant discharge permit requirements for
applicant's roll crusher.
The applicant's revised burden of proof from February 19th' lists the following as part of
the request:
• To add on-site processing, including crushing, of pumice and pumice overburder
materials within the same footprint approved by the site plan approved by SP -95-
10.
• To include temporary stockpiling on site of excavated material for sale tc
consumers.
• To recognize that the pumice overburden is being mined for sale rather than
retained on site.
• To allow for hauling of materials up until 5:00 p.m. during the time perioc
November 15 through February 15.
• To recognize that the weather station has been removed from Sites 355 and 35E
and installed on Site 303.
• To recognize use of a water tank for water storage on site.
• To allow for use of a portable scale for weighing material to be sold.
Two public hearings on the applications were scheduled before the County Hearings Officer
The first hearing occurred on February 19, 2008, and the second on April 15, 2008. In betweer
the hearing dates, on March 20, 2008, the applicant submitted modifications to the applications
The modifications were included in the April 15th hearing procedure. According to the County
Procedures Ordinance, the modification applications restarted the 150 -day review period. The
Hearings Officer's written decision on the modified applications was mailed out on July 31
2008, approving the applications, with 18 conditions of approval.
The applicant filed a request for reconsideration of the Hearings Officer's decision on August 12
2008. Notice of the reconsideration request was mailed out by staff, and a decision on the
reconsideration was issued by the Hearings Officer. Her decision was mailed out on October -
14, 2008. During the 12 -day appeal period following the Hearings Officer's original decision, an
appeal of her decision was submitted by opponents Hoffman, through their attorney Paul
Dewey. According to the County's Procedures Ordinance, the reconsideration request is
handled first. Because the Hearings Officer declined to reconsider her decision (the
reconsideration decision left the approval as written), the appeal by Hoffman carries through tc
the reconsideration decision.
The applicant filed an appeal of the reconsideration decision as allowed by code
Consequently, the Board has two appeals to consider in this proceeding.
Board Memo — Latham Excavation
Page 2 of 3
The County Code and State law require a maximum 150 -day review period for land use
proceedings with the County. Staff has calculated the review period, and with the modification
applications, together with the time extension requested by the applicant at the April 15th
hearing, staff believes that the 150 -day review period ends on December 11, 2008.
APPEALS
As indicated above, there are two appeals of the Hearings Officer's decision (file nos. A-08-14,
A-08-20). The applicant's appeal requests an on -the -record review by the Board. The
opponents appeal includes a request for de novo review by the Board. Staff believes that given
the time constraints for a hearing and decision on these applications, it may not be possible to
complete a review of these applications and issue a written decision by December 11th
Staff believes there are outstanding policy issues that should be considered by the Board.
These are:
• what constitutes a noise and dust sensitive use;
• whether the expansion of the proposed surface mine requires a revised ESEE
(Environmental, Social, Economic and Energy) analysis by the Board;
• whether the use of the term "processing" in the ESEE analysis (at site 303 as well as
numerous other sites in the County) was intended to allow crushing;
• the degree of protection to be afforded under the visual screening standards of the
code and the manner in which the topographical exception should be applied;
Staff believes that there are also issues related directly to the site itself that warrant review by
the Board. The opponents have listed 17 alleged errors in the decision, and the applicant has
listed 5 alleged errors. Staff will not repeat those here, but they can be reviewed in the attached
notices of appeal.
Staff has a very large file on this matter, which is likely over 2,000 pages in length. Most of it is
available for review on-line, so rather than copy it for the Board, staff will copy only the most
pertinent parts for a Board determination of whether or not to hear the appeals.
I am submitting for your review the following:
• The applicant's and the appellant's notices of appeal
• Hearings Officer's decisions (original decision and reconsideration decision)
• The County's 1990 ESEE analysis for site no. 303
• Vicinity map showing the location of the mining site
Please contact me at your convenience if you have any questions.
I have a very large air photograph from the record that shows the property in relation to the
surrounding area and development, which I can bring to a work session.
Board Memo — Latham Excavation
Page 3 of 3
Print Map
Page 1 of 1
Lcti14M Eccwah"i
CU.O71O2, SP - Olt -4�
http://lava5.deschutes.org/mox5/indexintranet,efm?action=mox52_view printablemap 10/30/2008
BRUCE W. WHITE
BRUCE W. WHITE, ATTORNEY, LLC
October 27, 2008
Hand Delivered
Deschutes County Board of Commissioners
c/o Deschutes County Planning Division
117 NW Lafayette St.
Bend, OR 97701
Re: Latham Excavation
RC -08-01, CU -07-102, SP07-46 (MA -08-3, MA -08-4)
Tax Lot 17-12-7 — 300 and 301
As set forth in the enclosed appeal documents, the applicants in the above -referenced matter are
appealing the Hearings Officer's approval, as reconsidered, of the above -referenced applications.
Enclosed are an appeal form signed by the applicant, with an attached supplement and a check
for the appeal filing fee. If relief from the 150 -day time clock is required in order to hear this
appeal, applicant is willing to grant such relief.
Thank you for your consideration of these appeal documents.
Sincerely,
Bruce W. White
P.O. BOX 1298 • BEND, OR • 97709
PHONE: (541) 382-2085
T
s
Community Development Department
Planning Division
117 NW Lafayette Avenue, Bend, OR 97701.1925
(541] 388-6575 - Fax (541) 365-1 '64
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 responsibllity 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
k Lt�$ 1 h11 t1cci.J
Appellant's Name (print): � kr' t C-'tcc,, l` A P oPhone: (111 l ) 1X2..-
Mailing Address: S£ ' 444S4 , Szi-e IOp City/State/Zip: Be,a/1 , t P. 14
Land Use Application Being Appealed: `0 t "01 t CQ -o}- toLr SP -c' I. (M q - oft -
Property Description: Township 14- Range 11. Section a- Tax Lot loo + Too 1
Appellant's Signature: t4firict-wt m t (C*V4i h r
y_
A ;fl 5ecnixtil
EXCEPT AS PROVIDED IN SECTION 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)
/
1 07
NOTICE OF APPEAL
Sic r161-141 A 5111 r4eht t. Polite •4 i PQ« I ,
(This page may be photocopied if additional space is needed.)
Supplement to Notice of Appeal
of Mark Latham Excavation, Inc., dba Latham Excavation
File No. SP -07-46, CU -07-102 (MA -08-3, MA -08-4)
I. General Background
a) Description of Decision Being Appealed:
A land use decision issued by Hearings Officer Anne Corcoran Briggs on reconsideration,
mailed on October 14, 2008, in File No. SP -07-46 and CU -07-102 (MA -08-3, MZ -08-4)
concerning a proposal by applicant Latham Excavation for a site plan for operating a
surface mining at surface mining Site 303 and a conditional use permit to allow for
crushing on site on property located at 63998 Johnson Road, identified as Tax Lots 300
and 301 on Assessor's Map 17-12-7, owned by McLain Investments, LLC, Redcloud
Mountain LLC, and Pink Pit LLC.
b) Appellants' Standing:
Appellant is the applicant and therefore has standing to file this appeal.
c) 150 -day time clock:
The 150 -day time clock will expire on December 7, 2008.
II. Specific Appeal Issues and Reasons for Hearing Appeal
A. Issues on Appeal
1) The Hearings Officer erred in her application of DCC 18.52.110(B), the site plan
visual screening criteria by her misinterpretation of the scope of noise and dust
sensitive uses that are entitled to protection under the visual screening criteria.
Specifically, the Hearings Officer interpreted noise and dust sensitive uses as used
in DCC 18.52.110(B) (3)(a) to include the grounds, including driveways and
fields, surrounding the structures rather than just the structures associated with the
noise or dust sensitive use.
2) The Hearings Officer erred in her application of DCC 18.52.110(B), the site plan
visual screening criteria, by misapplying the criteria to the facts. Specifically, the
Hearings Officer found that the driveway leading to the Hoffman main residence
on Tax Lot 400, a noise or dust sensitive use that is protected under DCC
18.52.110(B)(3)(a), from which the applicant's mining operation can be seen was
a part of the real property of Tax Lot 400, when in reality the driveway lies on Tax
Lot 401, on which the Hoffman ranch hand residence is located, which is not a
noise or dust sensitive use protected under DCC 18.52.110(B)(3)(a), as it was
built after July 12, 1990.
3) The Hearings Officer erred in her application of DCC l 8.52.090(B), the setbacks
for the crushing and washing equipment, by her misinterpretation of the scope of
noise and dust sensitive uses that are entitled to protection under the visual
screening criteria. Specifically, the Hearings Officer interpreted noise and dust
sensitive uses as used in DCC 18.52.110(B) (3)(a) to include the grounds,
including driveways and fields, surrounding the structures rather than just the
structures associated with the noise or dust sensitive use.
4) The Hearings Officer erred in her application of DCC 18.52.110(B), the site plan
visual screening criteria by her misinterpretation of the degree of protection that
was required to meet the visual screening protection standard. The Hearings
Officer interpreted the ESEE for Site 303 and DCC 18.52.110(B)(2) to require an
absolute level of protection (completely obscured) from visual impacts, while a
proper interpretation of the degree of visual protection does not require that the
visual impacts be completely obscured.
5) The Hearings Officer erred in her application of DCC 18.52.110(B), the site plan
visual screening criteria, by her misinterpretation of how the topographical
exception to the screening standard found in DCC 18.52.110(B)(6)(b) should be
applied. Her determination that the topographical exception to the screening
standard does not apply to the topographical location of the excavated areas in
relation to the protected uses is not supported by the plain language of the
ordinance.
B. Reasons County Commissioners should hear this appeal
There are good reasons why the Board should hear this appeal, as follows:
1) The Hearings Officer's interpretation of the scope of "noise and dust sensitive
uses" as it relates to the applicable setbacks of DCC 18.52.090 and the breadth of
protection to be afforded under the visual screening standards of DCC 18.52.110
is not consistent with the interpretation given the scope of "noise and dust
sensitive uses" in the past by other hearings officers and by County staff in
applying the provisions of surface mining site plans and the provisions in the
surface mining impact area zone for siting residences. In addition, the
interpretation is not consistent with the methodology specified in DEQ's noise
standards for measuring noise levels at noise -sensitive uses and could potentially
change the methodology that has consistently been used in this county for
measuring and assessing impacts on noise sensitive uses. If Hearings Officer
Briggs' interpretation of "noise and dust sensitive use" becomes the standard for
purposes of applying the setbacks in the SM and SMIA zones and for determining
the location at which noise impacts should be measured, it would cause great
difficulty in applying the standard and uneven application of the law given the
difficulty in interpreting at what point on the SMIA property a noise or dust
sensitive use starts.
2) The Hearings Officer's interpretation of the degree of protection to be afforded
under the visual screening standards and the manner in which the topographical
exception should be applied has implications for not just this application but other
surface mining applications as well.
3) The appeal involves interpretive issues rather than just weighing the evidence. As
such, it has policy implications for other cases where the surface mining criteria
and surface mining impact area criteria would be applied in the future. The Board
should hear the case to resolve and provide guidance to staff and the Hearings
Officer in making decisions under the surface mining and surface mining impact
area criteria.
4) This appeal involves interpretive issues arising from the County's own ordinance
language. Pursuant to ORS 197.829, interpretation of such language by the Board
will be given deference by LUBA, whereas the interpretation of the Hearings
Officer will not be given deference. In the event there is a further appeal to
LUBA, it is preferable that County decisions involving interpretation of its own
ordinances arrive at LUBA in a posture where LUBA is required to defer to the
County's interpretations rather than to supply its own interpretations.
III. Scope of Review
Pursuant to DCC 22.32.027(B)(1), appellant requests a review on the record of its appeal.
In case the Board is tempted to exercise its discretion to require a de novo review, there is
no need for a de novo review. There was ample opportunity for the parties to address the
application, through two hearings, on February 1 9, 2008 and one on April 15, 2008 and
through a succession of post -hearing submittal opportunities open to both applicant and
opponents. The interpretive matters do not require consideration of additional factual
information.
Dated this 27th day of October, 2008.
Bruce W. White
Attorney for Applicant
DESCHUTES COUNTY
PLANNING DIVISION
117 NW Lafayette Avenue, Bend OR 97701
Phone: (541)388-6575 FAX: (541)385-1764 http://newberry.deschutes.org
APPEAL APPLICATION FORM
DATE SUBMITTED: WI.2 /O$
FEE: $ 214D
APPELLANT: E2(c MNQ uoFFMAt( PHONE: (5'-ts) 3i1- 14113
Akfot+te . P -AOL. OEWE'
MAILING ADDRESS: 1535 N w victL3tU,QG A'.3 CITY: QE4Q ST: p,2 ZIP: 4')'7,I1
LAND USE APPLICATION BEING APPEALED: ccs -0?- iO . / SP -o? -(-/lo (MA- eq- 3, MA -0$-q)
PROPERTY DESCRIPTION: T I? R la S 7 TAX LOT: 30n, 3n I
APPELLANT'S SIGNATURE ��.-DATE:
Ri/A/0p
IT IS THE RESPONSIBILITY OF THE APPLICANT (APPELLANT) TO COMPLETE A NOTICE OF APPEAL
AS SET FORTH IN CHAPTER 22.32 OF THE COUNTY CODE, "APPEALS."
EVERY NOTICE OF APPEAL SHALL INCLUDE:
( RTTAc -w o)
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 stat ng
the reasons the Board should review the lower Hearings Body's;
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 de novo review as
provided in Section 22.32.027 of Title 22.
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.
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANTS SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED FROM, FROM RECORDED MAGNETIC TAPES PROVIDED
BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE
RECORD). APPELLANTS SHALL SUBMIT TO THE PLANNING DIVISION THE TRANSCRIPT NO LATER
THAN THE CLOSE OF THE DAY 5 DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR,
IN ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
NOTICE OF APPEAL
Paul D. Dewey Attorney at Law
1539 NW Vicksburg
Bend, Oregon 97701
Tel. (541) 317-1993
fax (541) 383-3470
pdewey(cThendcable.com
August 12, 2008
Board of Commissioners
Deschutes County
c/o Deschutes County Planning Division
117 NW Lafayette Ave.
Bend, OR 97701
Re: Appeal to Board of Hearings Officer Decision in CU-07-102/SP-07-46 (MA -08-3,
MA -08-4)
Dear Commissioners:
On behalf of my clients, Eric and Ronna Hoffman, I am submitting this appeal of the Hearings
Officer's July 29, 2008, decision on the above files, which was mailed on July 31.
Reasons the Board should review the decision.
This land use application concerns the operation of a mine on Johnson Road in a sensitive area of
the County, adjoining not only private neighbors and EFU land, but also the Deschutes River
Scenic Waterway and Tumalo State Park with its 100,000 visitors per year. The proposed
expansion of the mine and its operations, with associated noise, dust and visual impacts, far
exceeds what was anticipated when the site was designated as a mine in 1990.
The recent history of the mine and its operation by the prior owner, Cascade Pumice. was non-
contentious. The operation by the current owner, Latham Excavation, has on the other hand been
extremely contentious. Without any land use approval it brought a crusher onto the site to crush
rock from its excavation projects. Only after a Code complaint was filed did that operation
cease. Numerous complaints have been filed with the County, DEQ and DOGAMI on Latham
Excavation's operations.
The Latham Excavation application exceeds what Cascade Pumice was doing, including volume
and types of materials extracted, year-round hauling with more daily truck trips, crushing of
materials on site, greater anticipated duration of mining activities, and creation of a massive 100 -
foot tall headwall cut into a prominent hillside.
Board review is necessary because of several interpretations by the Hearings Officer of the
Deschutes County Code which the Board has previously not considered, including, for example,
whether the original scope of the ESEE limits what materials and in what amounts may be mined
at the site, whether DCC 18.52 requires that crushing actually be designated as a use in the
August 12, 2008
Page 2
ESEE, whether the County has any control over reclamation procedures, etc, See a more
detailed list of appeal issues below.
Statement describing specific reasons for appeal.
The specific reasons for the appeal include:
1. The Hearings Officer erred in describing the issue of whether the ESEE should be
amended, contending that there was no basis for opponents to achieve an amendment of the
ESEE in this process. The issue, rather, was whether the Applicant needed to have an
amendment of the ESEE for its proposed uses not contemplated in the original ESEE. The
Applicant should have been required to apply for a plan amendment of the ESEE.
2. The Hearings Officer erred in deciding that the County had no say on the site's
reclamation plan. Jurisdiction over reclamation is not exclusive to DOGAMI and there are
specific code provisions requiring County review and approval of various reclamation
procedures. Furthermore, the Code requires that the Applicant supply information consistent
with reclamation information provided to DOGAMI, which was not done in this case. Latham
Excavation has given inconsistent information to DOGAMI and the County on its reclamation
plans.
3. The Hearings Officer erred in approving crushing by concluding that the ESEE did not
prohibit it. The actual issue is whether or not the ESEE "designated" crushing as a use. DCC
18.52.050(B)(2) requires that crushing occur at only sites "designated" for crushing in the ESEE,
but it is not so designated in the applicable ESEE.
4. There is no justification for the rock crusher which the Applicant sought to crush only
incidental aggregate materials. There was no showing that there would be any such aggregate
materials and the approval merely facilitates further illegal crushing of excavated rock being
brought onto the site by Latham Excavation.
5. The Hearings Officer appropriately decided that future mining of the hillside should be
restricted, but erred in providing that the site plan is to be amended in the future and with a
determination to be made only by State Parks and the Applicant. The public is entitled to
comment and is entitled to know what the actual site plan is going to be.
6. The first condition of approval by the Hearings Officer is that the mining operation
approval is based on the submitted plan, including the location and types of materials to be
mined and processed, but there is no clear site plan or other materials providing this information.
Given all of the modifications and amendments to Applicant's proposal, the Hearings Officer
should have clearly spelled out what was approved. The site plan is inadequate in failing to
identify the location of the five -acre "slot" that is to be mined. The site plan also fails to identify
the location and amount of materials to be stockpiled on the site and what areas are undergoing
reclamation.
August 12, 2008
Page 3
7. There is no justification for the Hearings Officer's finding which adopts an exception to
the rule that the Applicant cannot store extracted materials within one-quarter mile of a sensitive
use. The Hearings Officer also failed to clearly identify storage sites and failed to look at
locating the sites as far away as possible from the sensitive uses.
8. There is inadequate information to show compliance with noise rules where the noise
studies of the Applicant on which the Hearings Officer relied were based on noise measurements
at residences. As acknowledged by the Hearings Officer, noise sensitive uses exist anywhere on
the properties where pre -1990 houses are located. The Applicant's noise expert did not do an
assessment of impacts on these properties.
9. Though the Hearings Officer requires that screening be provided along the north
boundary, she fails to require a site plan amendment where the Applicant would have to show
exactly what screening will be provided. Without that information there is no way to assess the
adequacy of this condition of approval.
10. The condition of approval regarding dust suppression methods is incomplete and
unenforceable. For example, it fails to address the headwall which is always dry and exposed
and is a source of dust. The Hearings Officer also failed to required ongoing dust suppression,
including the hydromulching.
11. The Hearings Officer erred in finding that DCC 18.52.110(B) screening standards do not
apply to dust on the basis that "dust" is not in a list of screened uses.
12. The Hearings Officer erred in finding that fugitive dust emissions don't violate DEQ
rules.
13. The Hearings Officer erred in concluding that the acknowledged site -distance problems
caused by the curving roads and long, slow trucks on Johnson Road are mitigated merely be
posting signs.
14. The Hearings Officer failed to make adequate findings based on substantial evidence that
there is an adequate supply of water to support the proposed mining activities and that the
operations will not impact groundwater.
15. The Hearings Officer failed to create conditions of approval necessary to implement her
findings, including, for examples:
a. No limitation of use of the portable scales to industrial and commercial
customers.
b. No required location of the washer below grade.
c. No required mulching, seeding and hydroseeding to control dust.
d. No requirement of continued maintenance of landscaping.
e. That the equipment on the site will be limited to that described in the modified
application.
August 12, 2008
Page 4
16. The Hearings Officer erred in finding that only the Todd property is potentially affected
by runoff, since there is a drainage and there has been runoff onto the Hoffman property.
17. The Hearings Officer also failed to respond to several arguments raised on various issues:
a. The need for a traffic impact analysis and mitigation on the failing intersection in
Tumalo at the intersection of Hwy 20, Cook Avenue and O.B. Riley Road where
trucks from Latham Excavation are traveling.
b. The increase in truck traffic and its noise impacts.
c. The failure to reclaim areas already mined.
d. The Applicant is operating a landfill.
e. The ESEE identified impact of fugitive dust emissions has not been resolved as
required by DCC 18.52.100(P).
f. The Hearings Officer did not address our ORS 197.763(6)(c) argument on June 2.
Request for de novo review.
De novo review is appropriate here where the substantial rights of the parties would be
significantly prejudiced otherwise. A fundamental problem with this land use proceeding is that
the Applicant kept amending what it was applying for. The public is entitled to give evidence on
a specific site plan and reclamation plan that clearly show where and what the Applicant is
intending to do. Furthermore, as addressed above, there are significant policy issues regarding
the scope of mining under the relevant ESEE and Chapter 18.52.
The Hearings Officer states that the 150 -day time limit expires on August 17. We disagree with
that assessment where the Applicant specifically requested additional time to provide comments
and materials at the April 15, 2008, hearing:
"We would ask to be able to respond to testimony tonight as well, so 1 think we
are all asking for the record to be held open."
Rebuttal was allowed on May 6 and 20, and then on June 3 only by Applicant (it asked for an
additional week), with the final argument on June 10. Accordingly, that additional time to June
3 should not be counted toward the 150 -day clock. The additional 49 days means the 150 -day
clock doesn't expire until October 5.
Very truly yours,
PAUL DEWEY
PD:ao
cc: Clients
BEFORE THE DESCHUTES COUNTY HEARINGS OFFICER
DECISION ON RECONSIDERATION
File Nos. RC 08-01, CU 07-902/SP 07-46 (MA -08-3, MA -08-4)
Applicant:
Mark Latham Excavation, Inc.
d/b/a Latham Excavation
84 SE Fifth Street, Ste. 100
Bend, OR 97702
Owner:
Applicants'
Representative:
Pink Pit, LLC
Bruce W. White
PO Box 1298
Bend, OR 97709
Date of Original Decision: July 29, 2008
Date Reconsideration request was filed: August 12, 2008
Date of Decision on Reconsideration: October 7, 2008
I. APPLICABLE STANDARDS AND CRITERIA:
A.
Title 22 of the Deschutes County Code (DCC), the Development Procedures
Ordinance
Chapter 22.30 Reconsideration
* Section 22.30.010 Reconsideration
* Section 22.30.020 Procedure
* Section 22.30.030, Limitation on Reconsideration
B. DCC Chapter 18.52 Surface Mining Zone
C. Deschutes County Comprehensive Plan, Goal 5 Resource Element, ESEE
Site 303
1I. FINDINGS OF FACT:1
A. LOCATION: The subject property is identified on the county's surface mining
inventory and zoning maps as tax Tots 300 and 301 in Township 17 South, Range 12
East, Section 7. This approximately 80 -acre site is also designated on the County's
inventory of mineral and aggregate resources as surface mining Site No. 303. The
property has an assigned address of 63998 Johnson Road, Bend. Johnson Road
abuts the property in the northwest corner of the property. The entrance road for the
1 The relevant findings of fact are excerpted from the July 29, 2008 decision. More extensive background
findings are set out on pages two through five of that decision.
Decision on Reconsideration Page 1 of 10
Latham Excavation (File Nos. RC 08-01, CU 07-102/SP 07-46 (MA -08-3, MA -08-4)
mining site crosses through the property identified on map 17-11-12 as tax lot 100,
zoned Exclusive Farm Use.
B. ZONING: The Surface Mining (SM) designation was applied to the property in
1979, in recognition of its pre-existing use. The mining site is identified as Site No.
303 on the County's Goal 5 inventory for mineral and aggregate sites. A portion of
the eastern one-half of the property is located within the Landscape Management
(LM) combining zone associated with the Deschutes River. The subject property is
designated Surface Mining, Agriculture, and Landscape Management on the
Deschutes County Comprehensive Plan.
C. SITE DESCRIPTION: Site No. 303 encompasses approximately 80 acres. The
topography of the site ranges from level to a somewhat steep slope, and vegetation
on the uncleared portions of the site consists of juniper and ponderosa pine trees
with an understory of scrub brush and grasses. The site has land disturbed with
excavation and storage areas, as well as several pieces of mining equipment for
excavating and processing the materials on the site. Johnson Road abuts the
property in the northwest corner of the property, and provides access to the
property. A water tower on the site is used for watering loads and driveways. As
indicated above, the access road for the mining site crosses through the property
identified on map no. 17-11-12 as tax lot 100.
D. SURROUNDING USES: The subject property is surrounded by parcels of
varying sizes, including a 12.34 -acre parcel immediately northeast (the Hoffman
property) which is developed with two dwellings and a horse breeding/training
facility, a residential parcel (Todd residence) to the east between the site and the
Deschutes River. One of the dwellings on the Hoffman property was permitted
subject to a waiver of remonstrance from mining activities on the site, as it is located
in the Surface Mining Impact Area (SMIA) associated with the site. Tumalo State
Park is located northeast of the subject property (17-12-6, tax lot 100), across the
Deschutes River. The Oregon Parks and Recreation Department also owns the
property directly abutting the subject property to the southeast (17-12-7, 502). A
201.03 -acre parcel is located across Johnson Road to the west, and the
approximately one-half acre lots in the Tumalo Rim subdivision lie to the northwest.
There is some farming in the area, mainly in the form of pasture for livestock. At
least six of the surrounding parcels are receiving special assessment for farm use.
Typical natural vegetation on surrounding properties consists of the same vegetation
as the subject property - juniper and ponderosa pine trees, with an understory of
scrub brush and grasses. For those properties in farm use in the area, the primary
use of irrigated ground is for pasture.
The properties surrounding the subject property are zoned: Exclusive Farm Use
(EFU-TRB), Multiple Use Agricultural (MUA-10), Open Space and Conservation (OS
& C), and Flood Plain (FP). The surrounding zoning also includes the SMIA
combining zone associated with the subject property, the Landscape Management
Decision on Reconsideration Page 2 of 10
Latham Excavation (File Nos. RC 08-01, CU 07-102/SP 07-46 (MA -08-3, MA -08-4)
(LM) combining zone adjacent to the Deschutes River and Highway 20 (within one-
quarter mile on both sides of each), and the Wildife Area (WA) combining zone for
the Tumalo deer winter range. The subject property is adjacent to, but not within,
the WA zone.
E. PROPOSAL: The applicant is requesting approval of a site plan and conditional
use permit to operate a surface mine on the site. The subject property has most
recently been mined for pumice, as approved in the surface mining approval from
1995 (SP -95-10). The applicant's revised conditional use and site plan request
includes the following, as listed on the applicant's March 20, 2008 submittal:
Extraction within the footprint of the area approved for extraction in SP -95-10.
Extraction will occur in slots or excavation walls, starting with a slot located in the
southwest portion of the property, then moving to the southeast, northwest and
finishing at the northeast corner. The applicant stated that much of the material has
already been removed from the northeastern portion of the property and therefore its
final plans for that area are still somewhat uncertain.
1.
4.
5.
6.
7
8.
9.
Excavation of Bend Pumice and associated overburden materials and
aggregate materials incidental to excavating pumice, sand and
overburden materials.
Processing and sale of materials extracted on-site to industrial and
commercial customers; processing to include crushing of welded tuff and
other incidental rock materials encountered in extraction of pumice and
overburden materials, and washing of the materials as needed to meet
client specifications.
Importation of clean fill from off-site for eventual use in reclamation.
Identification of three alternative locations for screening and crushing of
pumice and overburden materials.
Use of a portable scale for weighing excavated materials on site.
Inclusion of up to five acres of the site in the extraction area at any given
time. The extraction area does not include: stockpile sites; equipment
storage areas, processing areas, and areas undergoing reclamation.
Year-round hauling, from 7 a.m. to 6 p.m. from November 15 through
February 15 and from 7 a.m. to 5 p.m. from February 16 to November 14.
Placement of a monitoring weather station on the site.
Use of a water tank and truck for dust suppression and to allow the use of
the truck as needed to ensure that dust impacts are minimized.
This modified proposal eliminated two aspects of the original application that caused
concern for staff and neighboring property owners: drilling and blasting and the
construction of office and shop and other structural accessory support facilities on
site. The applicant proposes to minimize the impact of the mining activities by
applying dust suppressant to and/or watering the stockpiles, internal drives and
walls, and ceasing extractive activities on days where the wind blows more than 25
miles per hour, as measured from the on-site weather station. In addition, covers
Decision on Reconsideration Page 3 of 10
Latham Excavation (File Nos. RC 08-01, CU 07-102/SP 07-46 (MA -08-3, MA -08-4)
will be placed over the filled truck beds as they leave the site, to minimize dust and
gravel blowing onto local roads.
The applicant proposes to use an excavator to extract the materials, and then
transport the materials to one of two crushers on the site (either a rock crusher or a
roller crusher). According to the applicant, if only one of the crushers is used at a
time, noise levels will not be exceeded. The applicant also submitted information
regarding traffic impacts.
F. PROCEDURAL HISTORY: The hearings officer's initial decision includes a full
description of the procedural history up to the request for reconsideration and is
incorporated by reference herein. The following is the procedural history pertinent to
the reconsideration request.
On July 29, 2008, the hearings officer's decision was issued to the parties to the
application. The hearings officer approved the application, subject to 18 conditions.
Some of those conditions included limitations on the location of excavation activity,
and imposed buffering requirements to screen the mining and crushing activities
from abutting property and Tumalo State Park.
On August 12, 2008, the applicant filed a request for reconsideration of the hearings
officer's decision. The applicant alleges that reconsideration pursuant to DCC
22.30.010(B)(1) is appropriate, because the decision included errors in conditions
that are not supported by the record or is not supported in law. Planning staff
provided notice of the request to interested parties on August 19, 2008. The notice
instructed the interested parties that written comments in response to the request
were to be submitted on or before September 3, 2008. Several parties who
appeared in the initial proceedings submitted written comments opposing the
request for reconsideration.2 The record was closed on September 3, 2008, as
scheduled. The hearings officer's decision is issued on October 7, 2008.
III. APPLICABLE STANDARDS AND FINDINGS:
A. DCC 22.30.010(A) Reconsideration
An applicant may request that the Hearings Officer's decision be
reconsidered as set forth [in DCC 22.30]. A request for reconsideration
shall be accompanied by a fee established by the County and by
•
2 In addition to the request for consideration submitted by the applicant's representative, comments were
received from Paul Dewey 1539 NW Vicksburg, Bend OR 97701, on behalf of Erik and Ronna Hoffman;
David A. Adams, 64222 Tumalo Rim Drive, Bend, OR 97701; Helen Whistler, 64194 Tumalo Rim Drive,
Bend OR 97701; and Rex Gibson, 63870 Johnson Road, Bend, OR 97701.
Decision on Reconsideration Page 4 of 10
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applicant's written consent that the 150 -day time clock will not run
during the period of reconsideration.
FINDING: The applicant filed its request for reconsideration accompanied by the fee
prescribed by the county and a written statement agreeing to toll the 150 -day period
during the period of reconsideration. Therefore, the hearings officer concludes that the
reconsideration request complies with this standard.
B. Grounds for reconsideration are limited to the following instances
where an alleged error substantially affects the rights of the applicant:
1. Correction of an error in a condition established by the Hearings
Officer where the condition is not supported by the record or is not
supported by law; [or]
2. Correction of errors that are technical or clerical in nature.
FINDING: As noted above, the applicant alleges that three conditions of approval are
either not supported by the record, or are not supported in law. The conditions at issue
pertain to limitations on mining activities or buffering requirements.
A. Background
Before turning to the disputed conditions and the parties' arguments, some background
on the relationship between the Goal 5 ESEE analysis (the Site 303 ESEE analysis),
the county's surface mining regulations and the general conditional use regulations are
in order.
The Site 303 ESEE analysis was adopted in 1990. It recognizes that surface mining
has occurred on the site for many years, but also recognizes that conflicting uses
existing in the vicinity could be adversely affected by expansions of mining activities on
the site. The plan identifies a variety of noise- and dust -sensitive uses that exist in the
area. The Site 303 ESEE analysis concludes that both mining and the conflicting uses
could be permitted in the area, provided the uses are conditioned appropriately. The
Site 303 ESEE analysis includes a directive that "[n]oise and visual impacts shall be
mitigated by buffering and screening, with particular attention paid to screening from
Tumalo State Park or the eastern, northeastern and southeastern boundaries." Site 303
ESEE analysis, page 12.
The county's surface mining regulations are set out in DCC 18.52. The standards allow
a range of mining activities, subject to site and conditional use reviews. In this case,
expansions of the mining activities are subject to the site review criteria, while the
crushing activities are subject to conditional use criteria. Generally speaking, those
standards are objective; for example, they permit mining if DEQ noise standards are
met, or if the activity is located more than a certain distance from the noise- or dust -
sensitive uses. The hearings officer may require the applicant to modify its proposal to
meet the standards set out in DCC 18.52, but may not deny the application if, as
conditioned, the proposal satisfies the standards set out in that section.
Decision on Reconsideration Page 5 of 10
Latham Excavation (File Nos. RC 08-01, CU 07-102/SP 07-46 (MA -08-3, MA -08-4)
DCC 18.52.100(B). Proposals to crush mineral and aggregate materials are not subject
to the general conditional use standards set out in DCC 18.128. DCC 18.52.050(6)(2)
and DCC 18.52.140. Consequently, the hearings officer cannot impose generic
conditions to address adverse impacts from crushing activities; the hearings officer may
only impose conditions to ensure that the Site 303 ESEE analysis or the DCC 18.52
standards are met.
B. The disputed conditions
Condition 9. The owner/operator shall control noise generated by the mining
operation and its associated activities so as to meet all applicable DEQ standards.
Natural terrain and vegetative features shall be retained to buffer the mining
activity from the surrounding area. All crushing operations shall be conducted
below grade (ground level). The crusher and materials washer shall only be
located in the southwestern processing site identified on the revised site plan.
This condition was imposed to ensure compliance with Site 303 ESEE analysis
provisions regarding noise- and dust -sensitive uses and DCC 18.52.090(A),
18.52.110(6)(3) and DCC 18.52.140(A)(1).3 The code standards require the applicant to
demonstrate that noise from mining activities be minimized and that the crusher will be
placed in locations that meet the applicable industrial or commercial noise standards or
are greater than one-half mile from noise sensitive uses or structures. The hearings
officer interpreted "noise sensitive uses and structures" to include outdoor activities on
residential properties, based on the Site 303 ESEE program that identified a wide range
of noise -sensitive uses within the vicinity. Because there was insufficient evidence to
demonstrate that the proposal would not generate noise that would exceed the
applicable noise standards as heard from the Hoffman and Todd premises (including
3 The Site 303 ESEE analysis states, in relevant part:
"The Board [of County Commissioners] finds that conflicts with the uses at the site and in surrounding
zones would include:
"Surrounding zones
"(1) The impacts of noise (including heavy equipment, truck traffic, blasting, processing and drilling)
on persons dwelling in or patronizing noise -sensitive uses in the surrounding zoning. The Board finds that
under DEQ noise standards, all possible uses in the surrounding zones would be noise sensitive uses,
except utility uses, landfill uses, other mining or geothermal uses, personal landing strip uses, forest
products processing uses, and hydroelectric uses."
"The Board finds that there are existing uses in the area that would be impacted by the above-described
conflicts. Specifically, the residential uses in the nearby 40 -lot Tumalo Rim Drive subdivision to the North
and the adjacent residence to the East would be subject to noise near the subdivision and possible dust
impacts." (Italics added.)
Decision on Reconsideration Page 6 of 10
Latham Excavation (File Nos. RC 08-01, CU 07-102/SP 07-46 (MA -08-3, MA -08-4)
the fields, gardens, and driveways,) the hearings officer imposed a condition that limited
the location of the crusher to the portion of the site that either lay beyond the one-half
mile radius, or was most likely to meet the noise standard.
Condition 12. The applicant shall maintain the 100 -foot buffer area along the north
property line. No mining activities, except supplied landscaping and reclamation,
shall be conducted within this buffer area. To minimize the visual and noise
impacts to residential uses on the Hoffman property, the applicant shall install a
berm and/or supplied landscaping along the north property line near the water
tower and parking areas and extended to the western edge of the previously mined
area.
This condition was imposed to address Site 303 ESEE analysis provisions regarding
noise- and dust -sensitive uses, DCC 18.52.110(B)(3)(a), (4), and 18.52.100(P). The
code standards require that the applicant maintain or install screening for protected
uses, including noise- or dust -sensitive uses.
Condition 17. Mining may not occur in areas along the upper wall that are visible
from Tumalo State Park Trails. The applicant shall work with the park managers to
revise the mining boundaries to assure those visual impacts are avoided, and shall
submit a modified site plan that depicts the new boundaries of the mining area.
This condition was imposed to address Site 303 ESEE analysis provisions regarding
Tumalo State Park and DCC 18.52.100(B)(3)(b), which requires screening to protect
views from public parks and waysides.
C. Findings of Fact and Conclusions of Law
The crux of the applicant's reconsideration arguments pertain to:
(1) the hearings officer's conclusion that noise- and dust -sensitive uses include
residential activities that are located outside of dwellings, particularly the outdoor
residential activities that occur on the Hoffman and Todd properties, and the
evidentiary conclusion that flows from that legal interpretation, that is, that the
applicable screening and noise standards can only be satisfied by installing a
berm or other landscaping along a portion of the northern property line, and by
limiting the location of the crusher to an area identified as the southwest slot.
(2) the evidentiary conclusion that the mining activities, particularly the excavation of
a portion of the south wall, is visible from Tumalo State Park trails, and the legal
conclusion that the impact of the mining activity on the site can be minimized by
modifying the boundaries of the mining site to prohibit excavation of areas that
are visible from the park.
Decision on Reconsideration Page 7 of 10
Latham Excavation (File Nos. RC 08-01, CU 07-102/SP 07-46 (MA -08-3, MA -08-4)
1. Noise- and Dust -Sensitive Uses
With respect to the first issue, the applicant argues that the hearings officer erred when
she relied on the Site 303 ESEE analysis to expand the definition of noise- and dust -
sensitive uses beyond the definitions set out in DCC 18.04.030.4 The applicant argues
that the definitions make it clear that only the structures that house residential uses are
subject to the noise and dust setback and screening criteria. Thus, the applicant argues,
so long as there is evidence to show that the proposal will either satisfy DEQ standards
for noise when heard from the noise sensitive dwelling, or the activity is more than the
minimum distance away from such structure, the use is allowed without screening.
Paul Dewey, on behalf of Erik and Ronna Hoffman, notes that DCC 18.52.020 provides
that "[w]here there is a conflict between the site-specific ESEE analysis and the
provisions of DCC 18, the site specific ESEE analysis shall control." Mr. Dewey argues
that the list of noise- and dust -sensitive uses set out in the Site 303 ESEE analysis is
more expansive than that set out in the zoning code. Mr. Dewey argues that the
hearings officer correctly relied on the more expansive definition to identify the affected
noise- and dust -sensitive uses, and imposed conditions of approval that are likely to
minimize the proposal's impact on them. Mr. Dewey argues that this construction is
supported by legislative history, because the definitions relied upon by the applicant
were adopted after the Site 303 ESEE analysis was adopted and acknowledged.
Finally, Mr. Dewey argues that the hearings officer's interpretation is consistent with the
zoning code definitions, because the definitions are not limited to structures where
noise- and dust -sensitive activities occur, but include the real property where those uses
are situated. Mr. Dewey asserts that driveways and yards used by residents, their
invitees and licensees also fall within the definition of noise- and dust -sensitive uses.
The hearings officer agrees with Mr. Dewey that the Site 303 ESEE analysis is more
expansive than the code and, therefore, a broader range of noise- and dust -sensitive
uses may be considered when evaluating the applicant's proposal. Even if the DCC
18.52 standards do not conflict with the Site 303 ESEE analysis, the hearings officer's
interpretation regarding the noise- and dust -sensitive uses is consistent with the code
definitions. DCC 18.04.030 defines "noise -sensitive uses" as:
"* * * real property normally used for sleeping or normally used as schools,
churches, hospitals or public libraries. Property used in industrial or agricultural
activities is not 'noise sensitive' unless it meets the above criteria in more than an
incidental manner. Accessory uses such as garages or workshops do not
constitute noise -sensitive areas."
4 The applicant argues that the hearings officer conflated "activities" with "uses," resulting in a broader
interpretation than is warranted by the code. DCC 18.04.030 defines "use" as "the purpose for which land
or a structure is designed, arranged or intended, or for which it is occupied or maintained." The hearings
officer concludes that activities that are associated with residential occupancy is a "residential use,"
notwithstanding that those uses may occur outside of a dwelling.
Decision on Reconsideration Page 8 of 10
Latham Excavation (File Nos. RC 08-01, CU 07-102/SP 07-46 (MA -08-3, MA -08-4)
"Dust -sensitive uses" are defined as:
"* * * real property normally used as a residence or normally used as schools,
churches, hospitals or similar use. Property used in industrial or agricultural
activities is not `dust -sensitive' unless it meets the above criteria in more than an
incidental manner. Accessory uses such as garages or workshops do not
constitute dust -sensitive areas."
While the applicant presents a plausible argument, that argument is not supported by a
plain reading of the definitions. If the board of county commissioners had intended to
limit "noise sensitive uses" to those uses that occur within a dwelling, school, hospital or
public library, it could have said so. Rather, the board of county commissioners
included "real property used for sleeping * * *." The use of the phrase "real property"
connotes the grounds around the dwelling, and not just the dwelling itself. See Black's
Law Dictionary, (5th ed. 1979), 1096 ("Real property. Land, and generally whatever is
erected * * * upon or affixed to land.") This understanding is consistent with the concept
of "noise -sensitive uses." People traveling to and from those structures are likely to be
more affected by noise than people who are entering or using structures for non-
residential, church, library, school or hospital purposes. Further, the definition
recognizes that some structures, namely garages, workshops and the like are not noise -
sensitive areas. Again, if the board of county commissioners had intended to limit the
area included in as a "noise sensitive use" to only the dwelling or other sleeping
quarters, it could have done so. Similarly, the definition of "dust -sensitive uses" applies
to "real property used as a residence * * *."
The evidence shows that the Hoffman property is used as a residence. 5 People driving
along the Hoffman driveway can see and hear mining activities that occur right across
the property line. Further, while the applicant provided testimony and evidence that
applicable standards could be met if measured from the main Hoffman dwelling, there is
no evidence that the standard can be met if they are measured from the driveway
patronized by residents of the dwelling or their guests. Therefore, mining activities that
affect the residential use of the Hoffman property must be considered, and conditions
imposed to ensure that the applicable standards are satisfied. Conditions 9 and 12
provide that assurance.
2. Tumalo State Park
With respect to the second issue, the applicant argues that the only evidence in the
record shows that the proposed mining area is not visible from Tumalo State Park. Paul
Dewey, David A. Adams, Helen Whislter, and Rex Gibson disagree, citing to evidence
5 The applicant asserts that the uses on the Hoffman property are not subject to the noise and dust -
sensitive use standard because it includes a dwelling that was constructed after 1999. The driveway
referred to is a common driveway that serves both the pre -1990 dwelling and the post -1999 dwelling, as
well as the outbuildings on the site. The fields, horse barn, and out -buildings are all used in common.
Therefore, it is a noise -sensitive use associated with the residential activities that were existing on the
property "on the effective date of Ordinance 90-014," as is required by DCC 18.52.110(B)(3)(a).
Decision on Reconsideration Page 9 of 10
Latham Excavation (File Nos. RC 08-01, CU 07-102/SP 07-46 (MA -08-3, MA -08-4)
that the upper wall of the proposed mining area will be visible from some of the higher
elevation trails in the park. The hearings officer relied on the oral and written testimony
of those opponents to conclude that the higher elevation of the proposed mining area
will be visible from the park. See Latham Excavation Decision, page 18. Those findings
are supported by evidence a reasonable person would rely on. Therefore, even though
the applicant's representative testified otherwise, the finding is supported by substantial
evidence.
The applicant argues that even if the excavated area can be seen from the park, the
applicant is exempted from screening standards per DCC 18.52.110(B)(6)(b). In
essence, the applicant argues that the hearings officer cannot modify the proposal to
avoid the anticipated visual impact because that visual impact is exempted from
screening requirements altogether. The hearings officer disagrees. While limited, the
hearings officer has the authority to require modifications to the site plan to "fulfill the
requirements of the ESEE analysis, and the applicable setback standards and
conditions of DCC 18." DCC 18.52.100(B). The Site 303 ESEE analysis requires that
"[n]oise and visual impacts be mitigated by buffering and screening, with particular
attention paid to screening from Tumalo State Park * * *." Site 303 ESEE analysis, page
12. The applicant's plan does not provide for screening from Tumalo State Park, and a
modified mining area will provide the necessary screening. Further, while the hearings
officer could find that the proposed mining is exempt from the supplied screening
requirement due to topography, there is no requirement that the hearings officer accede
to the site plan proposed by the applicant, when a modification will allow for an
expansion of the mining area and screen the mining activities on the site from Tumalo
State Park. Therefore, the hearings officer declines to revise or delete Condition 17.
CONCLUSION
For the reasons stated above, the Hearings Officer declines to reconsider her decision
d g:the applications. The decision is affirmed.
Dated this 7th day of October, 2008
Mailed this fL day of October, 2008
Anne Corcoran Briggs, Hea Ings Officer
UNLESS THIS DECISION IS APPEALED, IT BECOMES FINAL WITHIN 12 DAYS OF
THE DATE THE DECISION IS MAILED. THIS DECISION MAY BE APPEALED TO
THE DESCHUTES COUNTY BOARD OF COMMISSIONERS IN ACCORDANCE WITH
THE PROCEDURES SET OUT IN TITLE 22.
Decision on Reconsideration Page 10 of 10
Latham Excavation (File Nos. RC 08-01, CU 07-102/SP 07-46 (MA -08-3, MA -08-4)
DECISION OF THE DESCHUTES COUNTY
HEARINGS OFFICER
FILE NUMBERS:
APPLICANT:
PROPERTY OWNER:
APPLICANT'S ATTORNEY:
REQUEST:
STAFF CONTACT:
RECORD CLOSED:
DECISION ISSUED:
CU-07-102/SP-07-46 (MA -08-3, MA -08-4)
Mark Latham Excavation, Inc.
d/b/a Latham Excavation
84 SE 5th Street, #100
Bend, OR 97702
McClain Investments, LLC
62628 McClain Drive
Bend, OR 97701
Bruce W. White
P.O. Box 1298
Bend, OR 97709
.A234
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Site plan approval to reflect proposed surface mining operation
at Site No. 303, to extract and process pumice and overburden
resources, and including the addition of a scale and scale
house. Also, a conditional use permit to allow crushing and
washing at the site for excavated material. The applicant has
submitted modification of applications for both the site plan and
conditional use permit.
Paul Blikstad, Senior Planner
June 19, 2008
July 29, 2008
I. APPLICABLE CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance:
Chapter 18.52, Surface Mining - SM Zone;
B. The Deschutes County Comprehensive Plan.
Resource Element: ESEE Site No. 303.
C. Title 22 of the Deschutes County Code, the County Procedures Ordinance
22.20.055, Modification of application
II. BASIC FINDINGS:
A. LOCATION: The subject property is identified on the county's surface mining inventory
and zoning maps as tax Tots 300 and 301 in Township 17 South, Range 12 East, Section
7. This approximately 80 -acre site is also designated on the County's inventory of
mineral and aggregate resources as surface mining Site No. 303. The property has an
assigned address of 63998 Johnson Road, Bend. Johnson Road abuts the property in
the northwest corner of the property. The entrance road for the mining site crosses
through the property identified on map 17-11-12 as tax lot 100, zoned Exclusive Farm
Use.
B. ZONING: The Surface Mining (SM) designation was applied to the property in 1979, in
recognition of its pre-existing use. The mining site is identified as Site No. 303 on the
County's Goal 5 inventory for mineral and aggregate sites. A portion of the eastern one-
half of the property is located within the Landscape Management (LM) combining zone
associated with the Deschutes River. The subject property is designated Surface
Mining, Agriculture, and Landscape Management on the Deschutes County
Comprehensive Plan.
C. LOT OF RECORD: A lot line adjustment (file no. LL -98-26) was approved for tax Tots
300 (17-12-7) and 100 (17-11-12) in 1998. This adjustment also involved tax lot 201 on
map no. 17-11-12, and tax lot 703 on map no. 17-11-1. Tax lot 300 became 52.7 acres,
and tax lot 100 became 40 acres. Because a portion of the revised (adjusted) tax lot
100 (17-11-12) was located in section 7 of township 17 south, range 12 east, the
Assessor's Office created tax lot 301 on map 17-12-7. Tax lot 301 is technically/legally
part of tax lot 100 (17-11-12).
D. SITE DESCRIPTION: Site No. 303 encompasses approximately 80 acres. The
topography of the site ranges from level to a somewhat steep slope, and vegetation on
the uncleared portions of the site consists of juniper and ponderosa pine trees with an
understory of scrub brush and grasses. The site has land disturbed with excavation and
storage areas, as well as several pieces of mining equipment for excavating and
processing the materials on the site. Johnson Road abuts the property in the northwest
corner of the property, and provides access to the property. A left turn refuge and
deceleration lane were constructed on Johnson Road for the mining site in response to a
1995 application for pumice mining on the site. A water tower on the site is used for
watering Toads and driveways. As indicated above, the access road for the mining site
crosses through the property identified on map no. 17-11-12 as tax lot 100.
E. SURROUNDING USES: The subject property is surrounded by parcels of varying sizes,
including a 12.34 -acre parcel immediately northeast (the Hoffman property) which is
developed with two dwellings and a horse breeding/training facility, a residential parcel
(Todd residence) to the east between the site and the Deschutes River. Tumalo State
Park is located northeast of the subject property (17-12-6, tax lot 100), across the
Deschutes River. The Oregon Parks and Recreation Department also owns the property
directly abutting the subject property to the southeast (17-12-7, 502). A 201.03 -acre
parcel is located across Johnson Road to the west, and the approximately one-half acre
lots in the Tumalo Rim subdivision to the northwest.
There is some farming in the area, mainly in the form of pasture for livestock. At least
six of the surrounding parcels are receiving special assessment for farm use. Several
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 2
dwellings are developed on parcels in the surrounding area, the closest of which appear
to be on the Todd property (17-12-7, 200), and the Hoffman property (17-12-6C, 401).
One of the dwellings on the Hoffman property was permitted subject to a waiver of
remonstrance from mining activities on the site, as it is located in the Surface Mining
Impact Area (SMIA) associated with the site. Typical natural vegetation on surrounding
properties consists of the same vegetation as the subject property - juniper and
ponderosa pine trees, with an understory of scrub brush and grasses. For those
properties in farm use in the area, the primary use of irrigated ground is for pasture.
The properties surrounding the subject property are zoned: Exclusive Farm Use (EFU-
TRB), Multiple Use Agricultural (MUA-10), Open Space and Conservation (OS & C), and
Flood Plain (FP). The surrounding zoning also includes the SMIA combining zone
associated with the subject property, the Landscape Management (LM) combining zone
adjacent to the Deschutes River and Highway 20 (within one-quarter mile on both sides
of each), and the Wildife Area (WA) combining zone for the Tumalo deer winter range.
The subject property is adjacent to, but not within, the WA zone.
F. PROPOSAL: The applicant is requesting approval of a site plan and conditional use
permit to operate a surface mine on the site. The subject property has most recently
been mined for pumice, as approved in the surface mining approval from 1995 (SP -95-
10). The applicant's revised conditional use and site plan request includes the following,
as listed on the applicant's March 20, 2008 submittal:
• Extraction within the footprint of the area approved for extraction in SP -95-10.
Extraction will occur in slots or excavation walls, starting with a slot located in the
southwest portion of the property, then moving to the southeast, northwest and
finishing at the northeast corner. The applicant stated that much of the material has
already been removed from the northeastern portion of the property and therefore its
final plans for that area are still somewhat uncertain.
• Excavation of Bend Pumice and associated overburden materials and aggregate
materials incidental to excavating pumice, sand and overburden materials.
• Processing and sale of materials extracted on-site to industrial and commercial
customers; processing to include crushing of welded tuff and other incidental rock
materials encountered in extraction of pumice and overburden materials, and
washing of the materials as needed to meet client specifications.
• Importation of clean fill from off-site for eventual use in reclamation.
• Identification of three alternative locations for screening and crushing of pumice and
overburden materials.
• Use of a portable scale for weighing excavated materials on site.
• Inclusion of up to five acres of the site in the extraction area at any given time. The
extraction area does not include: stockpile sites; equipment storage areas,
processing areas, and areas undergoing reclamation.
• Year-round hauling, from 7 a.m. to 6 p.m. from November 15 through February 15
and from 7 a.m. to 5 p.m. from February 16 to November 14.
• Placement of a monitoring weather station on the site.
• Use of a water tank and truck for dust suppression and to allow the use of the truck
as needed to ensure that dust impacts are minimized.
This modified proposal eliminated two aspects of the original application that caused
concern for staff and neighboring property owners: drilling and blasting and the
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 3
construction of office and shop and other structural accessory support facilities on site.'
The applicant proposes to minimize the impact of the mining activities by applying dust
suppressant to and/or watering the stockpiles, internal drives and walls, and ceasing
extractive activities on days where the wind blows more than 25 miles per hour, as
measured from the on-site weather station. In addition, covers will be placed over the
filled truck beds as they leave the site, to minimize dust and gravel blowing onto local
roads.
The applicant proposes to use an excavator to extract the materials, and then transport
the materials to one of two crushers on the site (either a rock crusher or a roller crusher).
According to the applicant, if only one of the crushers is used at a time, noise levels will
not be exceeded. The applicant also submitted information regarding traffic impacts.
G. PUBLIC AGENCY NOTICE: Staff originally received the comments from public
agencies in response to the county's request for comments on the applicant's initial
proposal. No new notice was sent to these agencies for the modifications, since the
applicant scaled back the proposed mining operation. The comments are summarized in
the April 4, 2008 staff report and are not reiterated here. To the extent the comments
are pertinent to the review of the applicable criteria, they are addressed in the findings,
below.
H. PUBLIC NOTICE: The Planning Division mailed notice of the public hearing on these
applications to all property owners within 750 feet of the subject property. Prior to the
mailing of the notice, staff received a letter from the attorney for an adjacent property
owner discussing the site and the existing and proposed mining operation there,
including code enforcement proceedings. Additional written testimony was received
before, during and after the original hearing on February 19, 2008. Notice of the
continued public hearing (for April 15th) on the revised site plan (modifications) was
mailed out on March 21, 2008.
REVIEW PERIOD: These applications were originally deemed complete and accepted
on November 19, 2007. The applicant submitted a modification of application on March
20, 2008. As required under section 22.20.055 of Title 22 of the Deschutes County
Code, the submittal of a modification of application automatically restarts the 150 -day
review period upon which the County must complete review of the applications. Based
on the modification submittal, the 150th day upon which the County must make a
' According to the opponents, Latham Excavation is primarily a construction excavation business, and its
true purpose is to use the site as a dumping ground for materials removed from construction sites in the
Bend/Tumalo area. The opponents pointed to photographic evidence and testimony to support their
assertions, arguing that if this application is approved, the applicant will bring fill onto the property. The
applicant concedes that when it first bought the property, it brought some fill in from construction sites.
However, the applicant argues that it ceased those activities when regulators informed the applicant's
employees that such a use was not permitted. The applicant asserts that only clean fill is being brought
on to the property, to facilitate reclamation of the site.
The evidence, in the form of correspondence from code enforcement and DOGAMI employees, tends to
support the applicant's testimony. In any event, there is nothing in this proposal that can be construed to
convert the site to a construction landfill, or alter the use of the property as a mining site.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 4
decision on these applications would be August 17, 2008. This decision is issued on
July 28, 2008, within the 150 day review period.2
J. PRIOR LAND. USE ACTIONS: In 1995 Cascade Pumice, Inc. applied for site plan
approval (file no. SP -95-10) to extract up to 750,000 cubic yards of pumice from the
subject property. The site plan application initially went before the County Hearings
Officer, who denied the application. The applicant appealed the Hearings Officer's denial
to the Board of County Commissioners (Board). The Board approved the site plan
application, subject to 19 conditions of approval. The Board's site plan decision listed the
following:
"The Applicant proposes to commence mining activity between 2001 and 2004, and to
commence reclamation of prior -mined areas within 2-3 years of commencing mining.
The Applicant expects to complete mining within eight years."
An extension of the Board's decision (file no. E-99-23) was approved by the Planning
Division on October 18, 1999. The approval states:
"We do not believe an extension is necessary in this instance, since the findings and
decision rendered by the Board of County Commissioners did not specify a time period
during which mining activities must begin. However, we will honor your request for an
extension."
A Code Enforcement complaint has been submitted to the Community Development
Department. The complaint appears to be for the processing of materials on the subject
property without a conditional use permit.3
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. Preliminary Matter—Applicability of SP -95-10
One of the major disagreements between the applicant and the opponents is the applicability of
SP -95-10 to this proposal. The applicant's proposal exceeds the scope of the 1997 application
in several respects, including (1) the volume and types of materials to be extracted; (2) year-
round hauling rather than more limited seasonal hauling; (3) crushing of materials on site; and
(4) the anticipated duration of mining activities. Several neighbors, including Eric Hoffman,
testified that they spoke with representatives from Cascade Pumice, Inc. (Cascade Pumice), the
applicant's predecessor in interest, who assured them that Cascade Pumice did not intend to
mine for longer than eight to ten years on the site. According to the neighbors, Cascade
Pumice representatives asserted that the site's pumice reserves would be depleted within that
time and, therefore, further mining would not be feasible. Several of those same neighbors
asserted that their concerns with respect to Cascade Pumice's activities were allayed based on
those representations.
2 Many of the neighboring property owners expressed concerns regarding the proposal. For ease of
reference, common concerns are generically attributed to "opponents." Specific issues raised by
individuals are separately addressed.
3 The status of pending violations on the property are relevant only to the extent they implicate
compliance with applicable approval standards.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 5
The neighbors also testified that Cascade Pumice's activities caused fewer impacts for
residents and local wildlife, in that Cascade Pumice did not haul during winter months, and took
the materials elsewhere for crushing. Opponents argue that Latham Excavation is bound to the
limitations of the SP 95-10 application and approval, either because that permit established the
outer limits of permissible mining activity, or because they relied on those representations to
purchase or make improvements in the area.
The applicant responds that Cascade Pumice's self-imposed limitations do not impose similar
limitations on the applicant. The applicant seeks approval of a new, expanded operation and, in
the applicant's view, the only relevant review criteria is set out in the Site 303 Goal 5 program
(Site 303 Program) and the zoning code. According to the applicant, its proposal stands on its
own and satisfies all applicable approval criteria.
It is not entirely clear why the opponents believe that SP -95-10 imposes temporal or operational
limitations on mining on the site. Some of the arguments appear to be grounded on their
reliance on Cascade Pumice's representations and/or the fact that some of the self-imposed
limitations minimized the impacts of Cascade Pumice's extraction activities. Regardless, none
of the opponents' arguments demonstrate that the applicant is required to abide by the
limitations or conditions set out in the 1995 application.4
B. Deschutes County Comprehensive Plan—Surface Mining
In 1990, the county adopted ordinances addressing its Goal 5 mineral and aggregate
resources.5 The ordinances included (1) comprehensive plan policies addressing mining in
general, (2) inventory of known mineral and aggregate resources, (3) an economic, social,
environmental and energy (ESEE) analysis for each identified significant sites, (4) programs to
achieve the goal at those sites, and (5) Surface Mining zoning (SM) provisions.
According to the county's Goal 5 inventory, Site 303 contained approximately 10,000 cubic
yards of aggregate and 750,000 cubic yards of "good quality" pumice in 1990. The county
adopted a program that allowed further mining of the site, but required compliance with DEQ
noise and emission regulations, and compliance with county development standards.5 The
introduction of new conflicting uses in the area was limited through the adoption of the Surface
Mining Impact Area (SMIA) overlay. Within the SMIA, conflicting uses could occur provided the
owners and developers acknowledged the existing mining use, and agreed to hold the mine
owner/operator harmless from impacts from the lawful use of the site for mining.
The opponents argue that the proposal is not consistent with the County's surface mining plan
provisions, because the proposal involves the extraction of minerals that were not identified as
4 However, Cascade Pumice's activities do provide perspective on the likely impacts of this proposal and
SP 95-10 provides reasonable alternatives that might address those impacts.
5 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, precious
minerals, diatomaceous earth, 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.
6 In 1992, the Surface Mining Ordinance and ESEE analyses were revised to modify provisions that
addressed wildlife impacts. With respect to Site 303, the amendments removed the requirement that
hauling be prohibited between November 15 and February 15.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 6
"significant" on the Goal 5 inventory; and those materials that were identified as significant have
been extracted during previous operations. Further, opponents argue that the ESEE analysis
adopted by the county did not consider new uses/resources that have been developed in the
area since 1990, specifically, the development of a new domestic water well by the Tumalo Rim
Water Improvement Association, and new residential activities on nearby properties.
Quality/quantity/location considerations are only relevant at the time the resource is designated
as significant and a Goal 5 program is adopted to protect the resource.' Once that designation
is made, and the Goal 5 program allows extraction of the resource, and extraction activities may
continue until the site is removed from the Goal 5 inventory, or the program is amended to
provide additional protection for conflicting uses. See Urquhart v. Lane Council of Governments,
80 Or App 176, 721 P2d 870 (1986) (periodic review is the only mechanism for correcting goal
non-compliance that results from changes in circumstances after acknowledgment, when the
non compliance is not the product of amendment to an acknowledged plan or land use
regulation.) Here, neither the applicant nor the county has rezoned the site to something other
than SM or amended the Site 303 program. Therefore, so long as the property has materials
that can be mined, mining is permitted under the Site 303 program.8
Turning to the question of whether the site includes materials that can be mined, the evidence
shows that while much of the aggregate has been extracted, the site contains pumice and
Tumalo Tuff. Tumalo Tuff is used for backfill, trenches and bridge abutments. This use of fill is
consistent with the county's definition of "surface mining, minerals," which includes, but is not
limited to soil, select fill, coal, clay, stone, sand, gravel, aggregate, pumice, cinders * * * and any
other inorganic solid excavated from a natural deposit in the earth for commercial, industrial or
construction use." DCC 18.04.030. The applicant provided evidence from clients that products
from the site are used for arena floors, fill, and horticultural fill/mix. This is substantial evidence
to show that the site has "inorganic substances * * * for commercial, industrial or construction
use," and can be mined from the site consistent with the SM designation.
Finally, while the record supports the opponents' assertions that the applicant's predecessor in
interest did not intend to mine the site for a long time, there is no evidence that the Site 303
program intended to impose a time limit for extractive activities on the site.
In sum, there is nothing in the adopted Goal 5 program for mining, the Site 303 Program or the
SM ordinance provisions that prohibit the submittal of an application to mine pumice and
Tumalo Tuff at the site.
Implicit in the opponents' argument is the assumption that the applicant intends to "expand" mining
beyond the scope of the Goal 5 program for the site. "Expansion" has a relatively narrow meaning in the
Goal 5 context—it refers to the lateral extension of mining activity outside of the boundaries of the
designated Goal 5 site. See OAR 660-023-0180(1)(c)('"expansion area' is an aggregate mining area
contiguous to a mining site") 660-023-0180(1)(a)(' existing site' is an aggregate site that * * * was
included on an inventory of significant aggregate sites in an acknowledged plan, on September 1, 1996")
and "mining area" in OAR 660-023-0180(1)(i)("'mining area' is the area of a site within which mining is
permitted or proposed, excluding undisturbed buffer areas or areas on a parcel where mining is not
authorized.") The entire 80 site is included on the Goal 5 inventory, and the entire site is zoned SM.
There is nothing to prevent the applicant from expanding mining operations to the edge of the applicable
setbacks from abutting properties/uses, even if the materials that are extracts are different than the
materials listed on the Goal 5 inventory.
8 I address the opponents' separate argument that the provisions of the zoning code elevate the Goal 5
program to approval standards in the findings for the zoning code criteria.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 7
C. Chapter 22.20 of Title 22 of the DCC, Review of Land Use Action Applications
1. Section 22.20.055, Modification of application
A. An applicant may modify an application at any time during the approval
process up until the close of the record, subject to the provisions of DCC
22.20.052 and DCC 22.20.055.
B. The Planning Director or Hearings Body shall not consider any evidence
submitted by or on behalf of an applicant that would constitute
modification of an application (as that term is defined in DCC 22.04) unless
the applicant submits an application for a modification, pays all required
modification fees and agrees in writing to restart the 150 -day time clock as
of the date the modification is submitted. The 150 -day time clock for an
application, as modified, may be restarted as many times as there are
modifications.
C. The Planning Director or Hearings Body may require that the application be
re -noticed and additional hearings be held.
D. Up until the day a hearing is opened for receipt of oral testimony, the
Planning Director shall have sole authority to determine whether an
applicant's submittal constitutes a modification. After such time, the
Hearings Body shall make such determinations. The Planning Director or
Hearings Body's determination on whether a submittal constitutes a
modification shall be appealable only to LUBA and shall be appealable only
after a final decision is entered by the County on an application.
FINDING: At the February 19, 2008 initial evidentiary hearing, the applicant submitted a
revised burden of proof statement, along with revised exhibits. Based on this revised
information, staff was asked by the Hearings Officer whether staff believed this
constituted a modification, which staff indicated it did. The applicant's attorney did not
contest the staff's opinion on this, and the Hearings Officer agreed that this new
information constituted a modification. The Hearings Officer instructed the applicant's
attorney to submit a modification application, and continued the hearing to April 15, 2008
for additional testimony on the revised applications. The written record was left open,
and the continued hearing date allowed for any additional testimony that may be
submitted into the record.
The Planning Division determined that new notice would be appropriate given the
approximately two-month interval between the original and continued hearing dates.
However, a second notice in the newspaper was not submitted and is not required under
DCC 22.24.030(C).
The applicant submitted the modification of application, including the application form, a
cover letter, and the 8 -page modification burden of proof, as well as the appropriate filing
fees for the two modifications, one for the conditional use permit and one for the site
plan application on March 20, 2008. These standards are satisfied.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 8
D. CHAPTER 18.52, SURFACE MINING (SM) ZONE
1. Section 18.52.020, Application of ordinance.
Except as provided in section 18.52.160, the setbacks, operation standards and
conditions set forth in sections 18.52.090, 18.52.110 and 18.52.140, respectively,
apply to every surface mining site and activity to the extent that setbacks,
standards and conditions are not expressly provided for in the site-specific ESEE
analysis within the surface mining element of the Comprehensive Plan. When
there is a conflict between the site-specific ESEE analysis and the provisions of
this title, the site-specific ESEE analysis shall control.
FINDING: The proposed site plan and conditional use applications are subject to DCC
18.52.090, 18.52.110 and 18.52.140. Some of the operating standards and conditions are
modified somewhat by the ESEE analysis for the site. The ESEE analysis will be addressed in
findings below.
2. Section 18.52.040, Uses permitted outright subject to site plan review.
The following uses are permitted outright subject to site plan review as provided
in DCC 18.52.040:
A. Extraction of minerals.
B. Stockpiling and storage of minerals.
C. Screening, washing and sizing of minerals.
D. Sale of minerals and mineral products extracted and produced on the
parcel or contiguous parcels in the same ownership.
E. Buildings, structures, apparatus, equipment and appurtenances necessary
for the above uses to be carried on.
FINDING: The applicant proposes to conduct activities or place structures listed in DCC
18.52.040(A) through (E). Extraction of pumice, tuff and sand, are proposed as part of the
expanded surface mining operation. The stockpiling and storage of these materials are
proposed for the site. Screening, washing and sizing of minerals extracted from the site is
proposed. The applicant also proposes to sell products extracted from and produced on the site
to industrial and commercial customers who travel to the site. The site plan includes a truck
scale, and an approximately 100 square foot scale building to weigh trucks. Driveways to
accommodate the scale and scale building, and the surface mining at the site are proposed. All
of these uses are permitted, subject to site plan review.
3. Section 18.52.050. Conditional uses permitted.
NOTE: The applicant is not proposing any uses listed under subsection A of this section.
Since no uses under A are being proposed, only subsection B is reviewed.
B. The following uses are permitted subject to site plan review and the setbacks,
standards and conditions set forth in DCC 18.52.090, 18.5Z110 and 18.52.140,
respectively, and are not subject to the conditions in DCC 18.128:
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 9
2. Crushing of mineral and aggregate materials on sites designated for
crushing in the ESEE analysis in the surface mining element of the
Comprehensive Plan.
3. Sale of minerals and mineral products extracted or produced on
parcels other than the subject parcel or contiguous parcels in the
same ownership.
FINDING: The applicant is proposing to crush minerals on the site. Opponents argue that the
Site 303 Goal 5 program does not identify "crushing" as a permitted activity. Because crushing
is permitted under DCC 18.52.020 only if it is consistent with the site specific ESEE, opponents
contend that crushing is not allowed.
The ESEE analysis for Site No. 303, under item 23 (page 12), Program to Meet the Goal,
states: "The Board finds that processing on site will be allowed." The applicant and staff argue
that "crushing" is included in the general definition of "processing" set out in DCC 18.04.030.9
Therefore, the applicant and staff assert, crushing is not prohibited at this site and is subject
only to the conditional use criteria set out in DCC 18.52.050. However, one sentence of the Site
303 ESEE analysis lists "extraction, processing, crushing, batching and other mining dependent
uses as permitted or conditional uses and activities in the zone." Site 303 ESEE Findings and
Decision, 13 (italics added.) Thus, it is not entirely clear whether processing includes crushing.
The ESEE analysis for Site No. 303 is ambiguous, in that it does not specify the activities that
may be permitted under the umbrella term "processing," and one sentence in the text of the
analysis identifies "processing" separately from "crushing." Ambiguous provisions are subject to
the analysis set out by the Oregon Supreme Court in PGE v. Bureau of Labor and Industries,
317 Or 606, 610, 859 P2d 1143 (1993)(reviewing body considers first the text and context of an
ambiguous provision before turning to legislative history and maximums of statutory
construction to resolve the ambiguity.)
The Board of County Commissioners adopted ESEE analyses for its mineral and aggregate
sites in 1990, and revised them somewhat in 1992. The ESEE analyses identified the location
of each site, addressed the Goal 5 resources on the site, and considered the impacts of
permitting, prohibiting or conditionally allowing mining on the site, given the conflicting uses that
existed on and nearby each site. Where mining and potentially conflicting uses were allowed,
the Board of Commissioners crafted a Goal 5 program to minimize the conflicts. Many of the
programs adopted by the county contained similar operating requirements. However in some
cases particular mining uses, including crushing, were limited to ensure the mining activity
would not unduly interfere with conflicting uses.
For this site, the Board of County Commissioners identified four major impacts that would flow
from permitting mining at the site: (1) the impacts on nearby residential development, (2) the
impact on agricultural uses, (3) the impact on wildlife resources, and (4) the impact on Tumalo
State Park. The Board of County Commissioners recognized that the site had been mined, and
that other mining activity was occurring in the vicinity. The county commissioners concluded
DCC 18.04.030 provides in relevant part that "'Surface mining, processing' includes crushing, washing,
milling and screening as well as batching and blending of mineral aggregate into asphaltic concrete and
portland cement concrete. * * * " This definition is almost identical to the definition of "processing" set out
in ORS 517.750(10), the statutes setting out the definitions pertaining to the regulation of surface mines.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 10
that if conditioned, mining should be allowed. As noted above, the county commissioners
concluded that "processing" of extracted materials should also be allowed.
Typically, when a term includes component activities, reference to the umbrella term includes its
component activities. If a component activity is specifically excluded in a particular situation, the
exclusion applies only to that situation and not to other circumstances where the general term is
used. Applying that principle here, the term "processing' includes "crushing," because crushing
is included as a component of processing. On those sites where "crushing" is specifically
prohibited or limited, it is prohibited or limited at that site but not at others. Otherwise, "crushing"
is read out of the general definition of "processing" altogether.
While opponents present a plausible argument that the specific ESEE analysis for this site
separates crushing from processing and thus, by negative inference, crushing is not allowed,
that argument is not borne out by the context of the relevant paragraph. That paragraph
describes the provisions of Ordinance 90-014, the Surface Mining Ordinance, and reflects the
differentiation that ordinance makes in how different mining activities are reviewed. Extraction
and processing in general are permitted subject only to site plan review; crushing and batching
are conditional uses. Read in that way, the Site 303 ESEE analysis merely reflects the structure
of the Surface Mining Ordinance; it does not prohibit "crushing" at the site as opponents allege.
In sum, the applicant proposes uses that are permitted subject to site plan review, or are listed
as conditional uses in the Deschutes County Development Code, and the Site 303 ESEE
analysis does not prohibit any of the proposed uses on this site.
4. Section 18.52.060, Dimensional standards.
In the SM Zone, no existing parcel shall be reduced in size and no additional
parcels shall be created by partition, subdivision or otherwise.
FINDING: The applicant is not proposing to divide the subject property as part of the submitted
applications. DCC 18.52.060 does not apply.
5. Section 18.52.070, Site plan review.
Site plan review and final approval of a site plan shall be required before the
commencement of any use which requires site plan review under DCC 18.52.040
and 18.52.050(B), and before any expansion of a preexisting or nonconforming
site under DCC 18.52.160.
FINDING: The applicant has filed a modified site plan application, as well as a conditional use
application, as required above for the uses proposed. The uses fall within the list of activities
set out in DCC 18.52.040 and 18.52.050(B).
6. Section 18.52.080, Site plan application.
The applicant shall submit the following information for site plan review and
approval:
A. An application in a format established by the County and satisfying all
requirements of Title 22, the Deschutes County Developmental Procedures
Ordinance.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 11
B. All information required for a site reclamation plan by DOGAMI.
C. A map or diagram showing all minimum use setbacks required in DCC
18.52.090 are met.
D. A description of how all operation standards set forth in DCC 18.52.110 are
met.
E. A description of all potential Impacts of the mining activities identified by
the ESEE analysis for the speck site and how those impacts are
addressed.
FINDING: The applicant has submitted site plan, conditional use permit and modification
applications on the prescribed Planning Division forms. The applicant has submitted a copy of
the DOGAMI reclamation plan application as exhibit C to the original applications. The
applicant submitted a site plan drawing (revised drawing on 2-19-08 that shows the locations of
the proposed new truck scale and scale building, as well as the driveways, excavation areas,
and stockpile areas.) Conformance with DCC 18.52.090 is addressed below. The applicant
has submitted a revised burden of proof statement addressing DCC 18.52.110, which is also
addressed below. Subsection E above is essentially the same as DCC 18.52.110(P), which the
applicant has addressed on page 29 of the revised burden of proof, and in an email to staff.
Opponents argue that these standards are not satisfied because they fail to demonstrate that
the proposal is consistent with the Site 303 plan, noise and dust standards and fail to address
the impact of mining activities on the Tumalo Rim Water Improvement District well.
The hearings officer finds that DCC 18.52.080 is an informational standard, which is satisfied
when the applicant submits evidence addressing factors (A) through (E). The question of
whether that evidence is sufficient to demonstrate that approval criteria is addressed by
considering other criteria set out in DCC 18.52. The hearings officer also finds that DCC
18.52.080(E) does not require that the impacts on the Tumalo Rim Water Improvement District
be addressed in the initial application. DCC 18.52.080(E) requires only that those "impacts"
identified in the Site 303 plan be addressed. There is no dispute that the district's well is not
identified in the Site 303 plan.
The applicant's submittals are sufficient to satisfy this informational standard.
7. Section 18.52.090. Minimum use setbacks.
A. Except as otherwise provided in DCC 18.52.090, all surface mining
activities and uses, including structures, shall be located and conducted at
least 250 feet from a noise -sensitive or dust -sensitive use or structure.
Exceptions to this standard shall be allowed for the following:
1. Access roads approved as part of site plan review.
2. Dwellings located on the parcel on which the surface mining is to
occur, including replacements or expansions thereof.
3. Pursuant to a written agreement for a lesser setback made between
the owner of the noise -sensitive or dust -sensitive use or structure
located within 250 feet of the proposed surface mining activity and
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 12
the owner or operator of the proposed surface mine. Such
agreement shall be notarized and recorded in the Deschutes County
Book of Records and shall run with the land. Such agreement shall
be submitted and considered at the time of site plan review or site
plan modification.
FINDING: The closest dwelling to the mining site is the dwelling located on the Hoffman
property (17-12-6C, 401.) It is not totally clear from the County's records how close this
dwelling is to the common property line between the mining site and the Hoffman property. The
SMIA decision for the dwelling (SMA -99-28) indicated that the dwelling was to be 230 feet from
this property line. If it is 230 feet from the property line, and with the applicant's proposed 100 -
foot buffer zone around the mining area, the Hoffman dwelling will be 330 feet from the mining
operations, meeting A above. No other adjacent dwellings are located within 250 feet of the
proposed mining operation. The Hoffmans signed an agreement with the prior mining operator,
Cascade Pumice, to allow the construction of their dwelling within 250 feet of the common
property Zine. The agreement is recorded in the Deschutes County Book of Records.
There do not appear to be new access roads proposed for the site. There is no existing
dwelling on the subject property. This standard is met.
B. Storage and processing of mineral and aggregate material, and storage of
operational equipment which creates noise and dust, shall not be allowed
closer than one-quarter mile from any noise or dust sensitive use or
structure existing on the effective of Ordinance No. 90-014, unless the
applicant demonstrates that:.
1. Due to the parcel size, topography, existing vegetation or location of
conflicting uses or resources, there is no on-site location for the
storage and processing of material or storage of equipment which
will have less noise or dust impact; and
2. All noise control and air quality standards of DCC 18 can be met by
the proposed use for which the exception is requested.
FINDING: Two of the applicant's activities are subject to this standard: (1) storage of mineral
and aggregate material and (2) the use of a crusher.10
With respect to the storage of the extracted materials, the applicant proposes to use the existing
stockpile areas for storage. This area is within one-quarter mile of the Hoffman property and the
Todd property. However, the evidence shows that these areas are the best location to
accommodate the stockpile/storage areas because they will have the least visual impact on the
neighborhood, and will minimize the removal of buffering vegetation. Clean fill will be placed
along the eastern perimeter of the mining area in advance of reclamation. Dust suppression,
consistent of site watering and hydro -seeding will also help to minimize dust from mining
operations. The clean fill will be mulched and seeded on an interim basis to contain dust. The
applicant provided evidence showing that noise control and air quality standards can be met for
10 It is not entirely clear from the record whether the applicant's washing equipment is considered a piece
of "operational equipment which creates noise and dust' within the meaning of the code. The hearings
officer concludes that if the washing equipment is sited near the crusher, findings and conditions with
respect to the crusher will be sufficient to minimize the impact of the washing equipment as well.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 13
this activity. Therefore, the applicant has demonstrated that the exception to DCC 18.52.090(B)
is warranted for the storage of extracted materials.
The applicant proposes to place its crushing equipment in one of three areas identified on its
revised site plan. According to the applicant, this flexibility is necessary to maintain on-site
operational efficiency as extraction moves to new "slots" on the site. The applicant's revised
burden of proof indicates that the closest noise or dust sensitive use is the Kemple residence,
which the applicant states is one-quarter mile from the southeastern "processing site." The
applicant submitted a drawing superimposed over an aerial photo, showing that the crusher will
be located outside of the one-quarter mile radius of nearby dwellings and Tumalo State Park.
The applicant submitted an original noise study dated December 18, 2007, and a subsequent
supplemental letter dated February 18, 2008 regarding distances and noise from three
proposed processing sites at the subject property. The noise study lists anticipated sound
levels from the proposed mining operation to the adjacent residences, including the proposed
crushing operations. Staff believes that based on the applicant's noise study information, the
proposed operations meet noise control standards. However, staff recommended that the
crushing of larger materials be limited to the processing site (southwestern location) shown
adjacent to the existing stockpile and imported material areas. The stockpiles could help reduce
the noise impact by providing an additional sound barrier for the crushing. Additionally, staff
recommends that any crushing be required to be located below grade (ground level).
The applicant responds that so long as setback standards are met, it may store and process
mineral and aggregate material on a variety of locations on the site. The applicant argues that
staff's recommendations undermine its desire for relatively flexible extraction/processing areas,
and is not required by the code. The hearings officer disagrees. As explained in other findings
"noise -sensitive uses" include residential activities that occur outside of dwellings. Under that
definition, both the Todd property and the Hoffman property are closer to the proposed crushing
sites than the Kemple property. Both of those residential uses would be affected by the use of a
crusher on the southeast and northeast portions of the site. The hearings officer therefore finds
that because there is a location on the site that minimizes the impact of noise and dust from the
crusher, that site is the most appropriate location for the activity. Accordingly, the hearings
officer imposes a condition of approval limiting the location of the crusher to the southwestern
site, depicted on the applicant's aerial with overlay and contours, dated February 18, 2008.
C. Additional setbacks may be determined as part of the site reclamation
review process. Additional setbacks also may be required by DOGAMI.
D. In addition to the setbacks set forth herein, any greater setbacks required
by applicable building or structural codes adopted by the State of Oregon
and/or the County under DCC 45.04 shall be met.
FINDING: According to the information provided by DOGAMI, approximately 10 acres of the
mined area is exempt from reclamation, and is not subject to any setback restrictions. The
proposed mine area is within the boundaries of the mining area approved for reclamation by
DOGAMI in 1995. According to Robert Houston, DOGAMI reclamationist, the applicant must
maintain a 100 -foot undisturbed setback from the west, north and east property lines, and a
variable setback from the southern property line. That variable setback is depicted on the
applicant's revised site plan. If the site plan scale is correct, the widest setback is approximately
220 feet from the southern property line. The applicant's approved reclamation plan does not
include setback that are more restrictive than county standards.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 14
With respect to building and structural codes, the applicant does not intend to construct
permanent structures on the site, and there is no evidence that the portable structures are
subject to more restrictive setbacks than those provided for in the surface mining regulations.
Accordingly, the hearings officer concludes that there are no additional setback standards that
apply to this proposal.
8. Section 18.52.100, Procedure upon filing of site plan.
A. Each application for site plan review and approval shall be processed
subject to DCC 22, the Uniform Development Procedures Ordinance.
B, The Planning Director or Hearings Body shall review the site plan application
and shall grant or deny site plan approval based on the proposed site plan's
conformance with the ESEE analysis for the site contained in the surface
mining element of the Comprehensive Plan and the applicable setbacks,
standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140,
respectively. The Planning Director or Hearings Body may require the
applicant to make such modifications to the site plan as are necessary to fulfill
the requirements of the site-specific ESEE analysis and the applicable
setbacks, standards and conditions in DCC 18. The Planning Director or
Hearings Body shall not deny site plan approval unless the requirements of
the ESEE analysis and setbacks, standards and conditions of DCC 18 are not
or cannot be satisfied by the proposed site plan.
C. To the extent practicable, the Planning Director or Hearings Body shall
review the site plan application in conjunction with the review of the
applicant's site reclamation plan by DOGAMI.
FINDING: The proposed site plan is being processed in accordance with Title 22 of the
Deschutes County Code, including initial notice to all property owners within 750 feet of the site,
notice in the Bend Bulletin, and the posting of a land use action sign on the property. The
applicant submitted modification of applications for the site plan and conditional use applications
on March 20, 2008. The county mailed notice of the continued hearing (April 15th) to all the
surrounding property owners and to all parties attending the February 19th hearing on March 21,
2008.
The ESEE analysis for Site 303 is addressed in a finding below. The DOGAMI reclamation plan
has been submitted with the application and the site plan is being reviewed in conjunction with
that plan. The standards under DCC 18.52.090 are addressed in a foregoing finding. The
standards under DCC 18.82.110 and 18.52.140 are addressed below.
9. Section 18.52.110, General operational standards.
Prior to the start of any surface mining activity and no later than site plan review if
such review is required under DCC 18.52.110, the applicant shall demonstrate that
the following standards are or can be met by the surface mining operation:
A. Access.
1. All on-site roads used in the mining operation, and access roads
from the site to a public road maintained by a government agency,
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 15
are designed and constructed to accommodate the vehicles and
equipment which will use them, and shall meet the following
minimum standards:
a. All access roads within 100 feet of a paved county road or
state highway are paved unless the applicant demonstrates
that other methods of dust control, including application of
oil or water, will be implemented in a manner which provides
for the safety and maintenance of the county road or state
highway.
b. Roads within the surface mining parcel which are used as
part of the surface mining operation are constructed and
maintained in a manner by which all applicable DEQ
standards for vehicular noise control and ambient air quality
are or can be satisfied.
c. All roads used for mining are paved and will be adequately
maintained at all points within 250 feet of a dwelling or other
dust -sensitive use existing on the effective date of Ordinance
No. 90-014.
2. improvements or fees in lieu of improvements of public roads,
county roads and state highways may be required when the
Planning Director or Hearings Body, in consultation with the
appropriate road authority, determines that the increased traffic on
the roads resulting from the surface mining activity will damage the
road sufficiently to warrant off-site improvements. If a fee in lieu of
improvements is required, the amount of the fee shall reflect the
applicant's prorated share of the actual total cost of the capital
expenditure of the mad construction or reconstruction project
necessitated by and benefiting the surface mining operation.
Discounts for taxes and fees already paid for such improvements,
such as road taxes for vehicles and for property already dedicated
or improved, shall be applied.
FINDING: Johnson Road is a paved County -maintained road that serves the mining site.
Improvements to Johnson Road, including a left turn lane and right turn deceleration lane, have
been completed by the applicant's predecessor in interest. The existing access drive from
Johnson Road into the site is paved for a short distance, and the applicant proposes to extend
that pavement to the proposed weigh station.
The existing roads within the mining site must be maintained to meet DEQ standards for
ambient air quality, which require that they be continuously watered. There are no proposed
driveways on the site that will be within 250 feet of the dwelling on the Todd property to the east.
An access drive near the proposed water tower is located within 250 feet of the Hoffman
property line, but is more than 250 feet from the Hoffman dwellings. As indicated in a foregoing
finding, one of the dwellings on the Hoffman property (17-12-6C, 401) was constructed in 1999-
2000, and was not in place when Ordinance No. 90-014 was adopted (July 12, 1990). Further,
the horse breeding activities on the property, which are arguably dust -sensitive, are located
more than 250 feet from internal roads.
The applicant testified that up to 150,000 cubic yards of material was trucked out of the site
during 2007 and that up to 20,000 cubic yards of clean fill was imported into the site. The
applicant uses dump trucks and combination truck/trailers to haul its products from the site. The
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 16
applicant proposes to use covers for the truck beds to minimize dust and gravel spills from the
trucks. According to the applicant's traffic impact study, the existing level of service on Johnson
Road is "A," and that level of service will remain with the advent of the proposed use." In
addition, while the applicant conceded that the right -tum from the site onto Johnson Road will
not satisfy site distance standards for trucks, that impact has been addressed by the placement
of warning signs along that segment of Johnson Road. County transportation planning and road
department staff agree.
Opponents argue that the proposal includes a significant increase in the number of trips made
by heavy/combination vehicles. The opponents note that sight distance at the approach to
Johnson Road is deficient for Targe vehicles, as the large combination vehicles require
significantly more time to enter the road. Further, neighbors argue that Johnson Road is a
popular bicycle route, with a bicycle lane along the edge of the pavement. The neighbors argue
that the addition of the applicant's and the applicant's clients' vehicles and equipment will
adversely affect non -motorized travel and travel by school busses.
Johnson Road is a collector road that serves a resource and rural residential area. The
hearings officer concludes that in resource areas, drivers and bicyclists should expect large
equipment and vehicles on collector roads. The evidence shows that the level of service on
Johnson Road will not be affected by the proposal, and that traffic safety has been adequately
addressed by the placement of caution signs in the vicinity.
The hearings officer concludes that this standard is satisfied, and no additional dedications or
road improvements are required.
B. Screening.
1. The site is screened to meet the standards specified in DCC
18.52.110(B) (2), unless one of the exceptions in DCC 18.52.110(B)
(6) applies.
2. Performance Standard. When screening is required by DCC
18.52.110(B)(1), it obscures the view of the screened uses from the
protected uses with the methods and to the extent described in DCC
18.52.110(B)(5).
3. Protected Uses.
a. Noise -sensitive or dust -sensitive uses existing on the
effective date of Ordinance No. 90-014.
b. Public parks and waysides.
c. Frontage on roads designated by the Comprehensive Plan as
collectors, arterials and highways.
d. Areas zoned Landscape Management Combining.
e. Those portions of state and federal scenic waterways from
which the surface mining activity is visible from the
perspective of a person standing at the high water mark on
either bank of the waterway.
"The applicant's 2007 traffic impact study was based on the applicants initial proposal to move its
offices and shop to the site. Based on that scenario, the traffic impact study estimated that the proposal
would add 262 daily trips to the local road system. As noted above, the proposal has been scaled back.
The hearings officer concludes that truck trips will be generated by trucks leaving the applicant's
overnight parking area and entering the property in the morning, but that overall, the number of trips
to/from the site will be less than estimated in the 2007 study.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 17
FINDING: This standard requires that all buffer plantings that exist within 50 feet of the property
line as of the date of the application must be preserved and maintained. In addition, the
applicant is required to install new landscaping ("supplied landscaping") to shield the site from
noise and dust sensitive uses that were in place as of 1990. For the most part, those noise and
dust sensitive uses include residential, recreational and commercial uses in the vicinity.12 Site
303 ESEE analysis and DCC 18.52.110(6)(5). However, DCC 18.52.110(6)(6) exempts the
proposal from the supplied landscaping standard where there is evidence that (a) the natural
topography provides sufficient visual screening; (b) screening cannot be achieved due to
topography, or (c) landscaping will not be able to survive over a ten-year period. For those
areas that cannot be screened, DCC 18.52.110(B)(6)(d) requires that extractive activities be
completed within 18 months of the approval, mining equipment removed and the area
reclaimed. DCC 18.52.110(B)(6)(e) permits the applicant to offer an alternative mitigation
program to address noise, dust and visual impacts.
The site slopes from the southwest corner of the property to the Deschutes River to the east.
Most of the dwellings to the northwest were developed prior to 1990, and are subject to the
protections described in DCC 18.52.100(B)(2). Views from the northwest side of Johnson Road,
including the dwellings located in the Tumalo Rim subdivision, the Triplett dwelling and the
Gisler dwelling are screened from the mine by topography and intervening existing trees and
brush. However, as the photos submitted by the opponents show, dust from the mine is visible
from those locations, especially on windy days.
Two dwellings are located on the Hoffman property located to the north of the site. One dwelling
(the main house) was constructed prior to 1990. Based on a site visit conducted in Spring 2008,
the hearings officer concludes that, for the most part, mining is not visible from the main house,
but is visible along the driveway leading from Hoffman Road to the main house.13 In addition,
like the properties to the northwest, dust from mining activities is visible. The evidence shows
that the proposed surface mining activity will not be visible from the dwelling on the Todd
property to the east (17-12-7, 200), nor will it be visible from the Kemple property to the south
(17-12-7, 400) due to topography and existing vegetation. The dwellings on both the Todd
property (1958) and the Kemple property (1987) were in place when Ordinance No. 90-014 was
adopted (July 12, 1990). Like the other dwelling sites, dust can be seen.
With respect to Tumalo State Park, the hearings officer concludes that a portion of the
excavated wall of the mine will be visible from the upper trails of the park. Further, dust from
mining activities will be visible. There is no evidence that views from the Deschutes River will be
affected by most activities at the site, as they will be obscured by topography and vegetation.
Johnson Road is a designated rural collector road, and no changes to the frontage or existing
access road are proposed. The evidence shows that winds typically blow from the west or
72 The applicant asserts, and staff concurs, that this standard requires only that the mining be screened to
protect views from the structures in which those uses occur, and does not apply to appurtenances, such
as fields, driveways or gardens located on properties developed with noise -sensitive or dust -sensitive
uses. The hearings officer disagrees that the standard is limited to structures, when the noise -sensitive or
dust -sensitive uses are broadly defined to include all activities in nearby zones, except forest practices,
airports, landfills and other extractive activities. See Site 303 ESEE, description of noise and dust
sensitive uses in the vicinity, page 5. Therefore, where mining activities are visible from any location on
noise -sensitive or dust -sensitive properties, the screening provisions apply.
13 The second dwelling, which is located between 200 and 230 feet from the common boundary between
the applicant and the Hoffman properties is not protected under this section, because it was constructed
in 1999, pursuant to a SMIA development permit.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 18
northwest to the east, minimizing the potential for dust to blow over the road and obscure vision.
Other properties across the river and on the bluff may be subjected to dust from the site, but are
otherwise screened from the mining activities by topography or vegetation.
4. Screened Uses.
a. All equipment stored on the site.
b. All crushing and processing equipment.
c. All excavated areas except: Areas where reclamation is
occurring; roadways existing on the effective date of
Ordinance No. 90-014; new roads approved as part of the site
plan; material excavated to change the level of the mining site
to an elevation which provides natural screening.
5. Types of Screening.
a. Natural Screening. Existing vegetation or other landscape
features which are located on the surface mining site within
50 feet of the boundary of the site, and which obscure the
view of the screened uses from the protected uses, shall be
preserved and maintained.
b. Supplied Screening. Supplied vegetative screening is
screening not already existing and which is added to the site,
such as hardy plant species. Plantings shall not be required
to exceed either a density of six feet on center or a height of
six feet at the commencement of mining. Supplied earthen
screening shall consist of berms covered with earth and
stabilized with ground cover.
6. Exceptions. Supplied screening shall not be required when and to
the extent that any of the following circumstances occurs:
a. The natural topography of the site offers sufficient screening
to meet the performance standard in DCC 18.52.110(6)(2).
b. Supplied screening cannot meet the performance standard in
DCC 18.52.110(6)(2) due to topography.
c. The applicant demonstrates that supplied screening cannot
reliably be established or cannot survive for a 10 year period
due to soil, water or climatic conditions.
d. Screened uses that are visible from the protected uses will be
concluded and will either be removed or reclaimed within 18
months.
e. The surface miner and the owner or authorized representative
of the owner of the protected use execute and record in the
Deschutes County Book of Records a mitigation agreement
that waives screening requirements and describes and
adopts and alternate program or technique.
7. Continued Maintenance. Vegetative screening shall be maintained
and replaced as necessary to assure the required screening
throughout the duration of the mining activity.
FINDING: The applicant has addressed these criteria on pages 18-21 of the revised burden of
proof statement. The applicant proposes minor changes to the existing natural screening
(provided by topography and vegetation) in order to accommodate the revised surface mining
operations at the site. The applicant proposes to maintain the natural vegetative buffer (juniper
and ponderosa pine trees and an understory of scrub brush) that exists at a minimum distance
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 19
of 100 feet from all property lines on the undisturbed portions of the site. In addition, the
applicant asserts that the view is similar to views of the cuts for OB Riley Road, and poses no
additional visual blight. The applicant is proposing no mining activity on the approximately 700 -
foot wide eastern portion of the site adjacent to the Todd property. Staff concurs with the
applicant's analysis and recommends that a condition of approval be established which requires
preservation of the existing vegetation on the site as a buffer, and that the eastern portion (at
least 700 feet wide) of the mining site be restricted from mining to buffer it from the Todd
property to the east.
Opponents argue that because the excavated area will be visible from the Hoffman property and
Tumalo State Park, the applications must be denied or modified to (1) require full reclamation
along the visible areas of the site or (2) prohibit mining in areas visible from the Hoffman
property and park. In addition opponents argue that denial is justified by the applicant's inability
to adequately control the visual impacts of dust.
DCC 18.52.110(B) screening standards apply only to the "screened uses" listed in DCC
18.52.110(B)(4). Dust from mining activities is not included in that list. Therefore, the applicant is
not required to install or maintain visual buffers to prevent fugitive dust from being visible from
nearby properties, and the applicant's inability to successfully suppress dust in all instances
does not warrant denial under this standard. However, the hearings officer concludes that the
processing activities, equipment and excavated south wall are visible from the Hoffman
property, and that supplied screening and berming along the north boundary is feasible and
appropriate to ensure that views from the Hoffman's property are protected. A condition of
approval is warranted to ensure that a berm is installed and supplied screening is planted within
the setback to screen the site from the Hoffman property.
In addition, the hearings officer finds that the top portion of the proposed excavation will be
visible from Tumalo State Park. The applicant asserts that the exception to DCC
18.52.100(B)(2) is warranted, because supplied screening will not obscure the views of the wall
from the park due to topography. The applicant concedes that it does not intend to "reclaim" the
excavated wall when mining has concluded because, under DOGAMI reclamation standards,
the excavated slope need not be replaced with a 3:1 slope if the excavated wall is stable. The
applicant provided evidence that the wall is stable.14 In response to the applicant's assertion that
the cuts proposed on the upper wall are no more offensive than the cuts for OB Riley Road, the
hearings officer concludes that even if the excavated wall will look like other cuts in the natural
wall, that similarity does not provide a basis for excluding the applicant's proposed excavation
from applicable screening standards.
The hearings officer concludes that the "topography" described in DCC 18.52.110(B)(6)(b)
refers to topography that is outside of the applicant's control or is naturally occurring. It does not
include the creation of a sheer wall where material has been excavated from a slope on the
applicant's property. That man-made topography is fully within the control of the applicant, and
a condition of approval that limits the excavation of the slope to an elevation that is not visible
from the park trails is warranted.
As conditioned, the hearings officer concludes that the applicant has demonstrated that this
standard is met.
74 Opponents dispute this evidence, arguing the excavated wall is one of the major sources of dust from
the site. However, the fact that the wall is dusty does not demonstrate that the wall is unstable.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 20
C. Air Quality. The discharge of contaminants and dust created by the mining
operation and accessory uses to mining does not exceed any applicable
DEQ ambient air quality and emissions standards.
FINDING: The applicant has addressed this criterion on pages 21-23 of the revised burden of
proof statement. The applicant concedes that it may be required to obtain an Air Contaminate
Discharge Permit from DEQ for the crusher proposed for the site. Additionally, fugitive dust is
not permitted to create a nuisance. The applicant has stated that the site currently operates
under a dust abatement program that consists of:
• Using groundwater from a permitted on-site well, applied by water trucks on site.
• Applying dust suppressing sealants.
• Paving the first 150 feet of the access road.
• Monitoring and recording atmospheric conditions so that if certain atmospheric
conditions are present (more than 20 mph winds and Tess than 50 percent humidity),
mining will cease until conditions improve.
• Watering the Toads of open -bodied haul trucks carrying mined materials from the site
with a water bar, or covering the truck beds.
• Keeping the paved access road surface free from dirt.
Staff concurs with the applicant that these measures are adequate to address dust, and
believes that these practices should be included as a condition of approval for any approval
granted for the proposed changes to the site.
Opponents argue that dust from the site is a nuisance and a health hazard, citing photographs
showing dust blowing from the site, and Material Safety Data Sheets (MSDS) from OSHA that
identify silica in dust as a major source of lung disease in workers. Opponents also argue that
there is insufficient evidence to show that the applicant has water rights on the site for the
volume of water necessary to assure adequate dust suppression. Opponents concede that
some of the dust suppression measures employed by the applicant during May and June 2008
have reduced fugitive dust, but express significant doubt that the applicant is committed to
minimizing dust from its operations if the applications are approved.
The applicant supplied a letter from DEQ, stating that DEQ has concluded that the types of
silica that are found on the site are not as hazardous as the silica identified in the MSDS. In
addition, the applicant argues that the concentration of silica found in the pumice and Tumalo
Tuff layers is smaller than the concentration of silica found in the overburden. The applicant
argues that there is more risk from plowing the topsoil in the area than from dust from the
pumice and Tumalo Tuff. The applicant further argues that its dust suppression efforts have
and will minimize dust to a level that meets DEQ standards. The hearings officer agrees. As
conditioned, this standard is satisfied.
D. Erosion Control, Sedimentation and erosion resulting from the mining
operation does not affect any perennial stream so as to violate DEQ's water
quality standards.
FINDING: The subject property does not abut the Deschutes River, the only perennial stream
near the surface mining site.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 21
E. Streams and drainage. Unless agreed to, in writing, by the adjoining
property owner(s), existing natural drainages on the site are not changed in
a manner which substantially interferes with drainage patterns on adjoining
property or which drains waste materials or waste water onto adjoining
property or perennial streams. Where the surface mining site abuts a lake,
perennial stream or other perennial body of water, all existing vegetation
within 100 feet of the mean high water mark shall be retained unless mining
activity is allowed within this area by the site-specific ESEE analysis in the
surface mining element of the Comprehensive Plan.
FINDING: Given the distance and intervening topography from the mining operation to the river
(the nearest natural drainage) and the proposed dust suppression measures, it is unlikely that
the proposal will alter any existing drainage patterns in a manner that would affect drainage
patterns onto adjacent properties or the river. As the site drains from the southwest to the
northeast, the only property that is potentially affected by runoff is the Todd property. The
applicant proposes a 700 -foot buffer between the mining area and the Todd property. There is
no evidence that natural runoff will extend beyond the property boundaries, given the proposed
buffer setback and the existing topography at the site.
F. Equipment Removal. All surface mining equipment and related structures
will be removed from a mining site within 30 days of completion of all
mining and reclamation.
FINDING: This standard can be satisfied through the imposition of a condition of approval.
G. Flood Plain. Any mining operations conducted in a flood plain, as defined
in DCC 18, will satisfy al! applicable conditional use criteria of DCC
18.96.030 through 18.96.060.
FINDING: There is no flood plain area on the subject property, as shown on FEMA map no.
41017C0655E dated September 28, 2007. This criterion does not apply.
H. Noise. Noise created by a mining operation, vehicles, equipment or
accessory uses which is audible off the site does not exceed DEQ noise
control .standards, due to topography or other natural features, or by use of
methods to control and minimize off-site noise, including, but not limited
to: Installation of earth -berms; placing equipment below ground level;
limiting hours of operation; using a size or type of vehicle or equipment
which has been demonstrated to meet applicable DEQ noise control
standards; relocation of access roads, and other measures customarily
used in the surface mining industry to meet DEQ noise standards.
FINDING: The opponents testified that the noise from the mining operations, including the
back-up beepers, and trucks, routinely interfere with the neighbor's quiet enjoyment of their
properties. Mrs. Hoffman testified that the noise bothers her prize livestock and local wildlife,
and often begins far earlier than 7 a.m. Others testified that the noise sometimes begins in the
early morning hours.
The proposed surface mining operation will include vehicles and equipment that will create
noise audible off of the site, as stated in the submitted noise study. The noise study, including
the February 18, 2008 supplemental letter, and testimony from the applicant's noise expert
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 22
reviewed the noise impact that the proposed mining operations will have on the noise and dust -
sensitive uses in the vicinity. According to the study, the proposed mining operation, including
the processing equipment, will meet DEQ noise standards.
Staff concurred that it is feasible to meet the standard, but recommended that conditions of
approval be imposed to identify the types and quantity of equipment that can be used on site, to
ensure that the standard is continuously met. The applicant objects, arguing that it does not
want to be unnecessarily limited in its equipment, especially because new equipment tends to
be quieter than older equipment. Staff also recommended that the crusher be sited in the
southwestern portion of the property, where it is buffered by rock stockpiles and topography.
The applicable noise standards are found in OAR 340-035-0035(1)(b)(A). According to those
standards, a new noise source may not exceed 65 dBA during the hours of 7 a.m. and 10 p.m.
For the purpose of satisfying this standard, noise is measured from the farther of (1) the
property line between the industrial site and the noise sensitive property or (2) 25 feet towards
the noise source from that point on the noise sensitive building nearest the noise source. OAR
340-035-0035(3)(b). The noise measurements exclude warning devices not operating
continuously for more than five minutes, or sounds created by the tires or motor used to propel
any road vehicle complying with the standards for road vehicles. OAR 340-035-0035(4).
Here, the nearest noise sensitive building is either the Todd dwelling, or the main Hoffman
dwelling, depending on the proposed location of the crusher. The evidence shows that if only
one crusher is used on the site at a time, the standard can be met at all three proposed
locations for the crusher. The hearing officer has already concluded that it is necessary to limit
the location of the crusher to one site on the property to minimize impacts from its use. Further,
the impact of the mining activity can be minimized by imposing limited hours of operation, and
by requiring that the applicant meet minimum noise standards at all times. The hearings officer
agrees with the applicant that limiting the types of equipment to those listed in a conditional use
permit is not necessary to assure that the standard is satisfied. As conditioned, this standard is
met.
Hours of Operation.
?. Mineral and aggregate extraction, processing and equipment
operation is limited to the following operating hours:
a. Surface mining sites located within one-half mile of any
noise -sensitive use or structure existing on the effective date
of Ordinance No. 90-014: 7:00 a.m. to 6:00 p.m. - Monday
through Friday and 8:00 a.m. to 5:00 p.m. - Saturday.
b. All other sites: 7:00 a.m. to 10:00 p.m. - Monday
through Saturday.
2. No surface mining operations shall be conducted on Sundays or the
following legal holidays: New Year's Day, Memorial Day, July 4th,
Labor Day, Thanksgiving Day, Christmas Day.
FINDING: As indicated in a foregoing finding, the closest noise -sensitive use established
before July 12, 1990 is a dwelling on the Todd property to the east. Because this dwelling is
within one-half mile of the surface mining activity, the limitations under (1)(a) and (2) above
apply. Consequently, the operating hours for the site would be Monday through Friday 7:00
a.m. to 6:00 p.m., Saturday 8:00 a.m. to 5:00 p.m. Additionally, no surface mining operations
are allowed to be conducted on Sundays or the following legal holidays: New Year's Day,
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 23
Memorial Day, July 4`", Labor Day, Thanksgiving Day, Christmas Day. Compliance with these
operating hours are made a condition of any approval.15
J. Drilling and Blasting.
1. Drilling and blasting are allowed under the site-specific ESEE
analysis in the surface mining element of the Comprehensive Plan.
FINDING: Staff believes that drilling and blasting are included in the "process of mining"
described in DCC 18.04.030 and therefore the drilling and blasting are permitted, because they
are included the definition of "processing":
"Surface mining means
A. Includes:
1. All or any part of the process of mining by removal of the
overburden and extraction of natural mineral deposits
thereby exposed by any method including, open pit mining
operations, auger mining, processing, surface impacts of
underground mining, production of surface mining refuse
and the construction of adjacent or off-site borrow pits,
except those constructed for access roads; (emphasis added)
FINDING: In SP 95-10, the hearings officer concluded that "blasting" is permitted only if it is
specifically allowed by the site specific ESEE analysis. The applicant and staff disagree with
this conclusion, but concede that the conclusion need not be addressed in this decision, as
blasting is not proposed. Consequently, the hearings officer declines to consider the question in
this instance, other than to note that blasting is not approved at this time.
2. Drilling and blasting which are to be conducted within one-half mile
of any noise -sensitive or dust -sensitive use or structure or
agricultural use involving the raising of animals meet or can meet
the following standards:
a. DEQ noise standards for drilling and blasting.
b. A plan addressing the potential for earth movement, flying
rocks and other effects on surrounding uses has been
submitted to and approved by the County.
c. Blasting will be restricted to the hours of 9:00 a.m. to 5:00
p.m., Monday through Friday, and no blasting will occur on
Saturdays, Sundays or legal holidays identified in DCC
18.52.110(1)(2).
d. A plan has been submitted to and approved by the County
describing how the operator will notify the owners and
inhabitants of the protected uses identified in DCC
18.52.110(J)(2), which are located within one-half mile of the
blasting site of proposed blasting by written notice:
i. Delivered in a manner calculated to be received by
each person entitled to notice at least 48 hours prior to
the time the blasting activity will occur;
15 The applicant may water the site at any time to minimize blowing dust.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 24
H. Containing a statement providing that the recipient
property owner must provide the notice to tenants and
inhabitants on the subject property;
iii. In the case of ongoing blasting, given at least once
each month and specifying the days and hours that
blasting will occur; and
iv. Retained by the operator, along with a list of persons
notified, for at least one year after blasting occurs.
FINDING: The applicant proposes to use an excavator to remove material from the property,
and does not propose to blast or drill. Therefore this standard does not apply.
K Extraction Site Size. The size of the area in which extraction is taking place
as part of a surface mine does not exceed five acres. For the purpose of
this title, the extraction site size does not include access roads, equipment
storage areas, processing equipment sites, stockpiles, areas where
reclamation is in progress and similar accessory uses which are necessary
to the mining operation. An exception to this standard may be allowed as
part of site plan review if the applicant demonstrates that mining
techniques normally associated with the specific type of mining in question
and commonly used in the surface mining industry require a larger
extraction site size.
FINDING: The applicant proposes to create an extraction site that does not exceed five acres.
The applicant concedes that in SP -95-10, the applicant agreed to limit its mining activities to an
area to no larger than 160,000 square feet, and notes that its operations are not anticipated to
be significantly larger. However, the applicant requests that it be allowed the flexibility to mine
to the limits of this standard, rather than be circumscribed by the limits of the 1995 application.
The hearings officer agrees with the applicant that SP -95-10 does not preclude the proposed
five acre extraction area. A condition of approval is warranted to assure that this standard is
met.
L. Fish and Wildlife Protection.
1. Fish and wildlife values and habitat required by the site specific
ESEE analysis to be conserved and protected are conserved and
protected by use of methods including, but not limited to: Seasonal
operations and access road closures; retention of or creation of
vegetative cover and riparian habitat; and erection of fencing or
other barriers to protect wildlife from steep extraction site slopes.
2. Mitigation, as defined in DCC 18, will be provided to compensate for
any loss of fish and wildlife habitat caused by the surface mining
activity which habitat is required to be protected by the site-specific
ESEE analysis. When mitigation is provided, the type and
effectiveness of mitigation required has been determined by the
Planning Director or Hearings Body to be appropriate from available
evidence and in consultation with the Oregon Department of Fish
and Wildlife.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 25
FINDING: The protection measures required by the ESEE analysis for this site for fish and
wildlife were amended by Ordinance 92-044, adopted by the County Commissioners on August
5, 1992. That ordinance deleted item "d" under section 23, Program to Meet the Goal. This
deletion removed the wildlife restrictions for this site, as it was not located within a Wildlife Area
(WA) combining zone. Ordinance No. 92-044 incorrectly states that the ESEE analysis
identified a bald eagle nesting site in this area. The findings for the ESEE state, on page 2,
under Natural Resources, the following:
"1. Wildlife. The Department of Fish and Wildlife has identified this site for deer
winter range, with medium frequency of use. The surrounding properties all have
a Wildlife Area combining zone, indicating that this area is part of the Tumalo
winter deer range. There is also medium sensitive raptor use in the area.
Neighborhood residents testified to seeing eagles in this area."
This finding does not indicate a bald eagle nesting site, only that eagles were observed in the
area.
The site does not include fish and wildlife values protected by the Site 303 plan. Therefore, this
standard does not apply.
M. Surface water management is provided in a manner which meets all
applicable DEQ water quality standards and DOGAMI requirements, and
which demonstrates that all water necessary for the proposed operation of
the surface mine, including dust control, landscaping and processing of
material, has been appropriated to the surface mining site and is legally
available for such use. The applicant must provide written documentation
of any water rights from the respective water district and Oregon
Watermaster's office prior to any mining of the site.
FINDING: The subject property has no surface water rights and has no streams or lakes
associated with it. The applicant has stated that an existing well provides water for material
washing and dust control. The applicant's well is located on the northwest corner of the site,
near the intersection of the Hoffman driveway and Johnson Road. The well was permitted by
the Oregon Water Resources Department on October 28, 1996 (File no. G-13903). A copy of
the permit is attached as Exhibit 17 to the revised burden of proof. The No. 9845 well report
(well log) for this well was provided to Cascade Pumice on April 20, 1995. The permit lists the
maximum rate of allowed use as 0.45 cubic foot per second, with year round use allowed.
According to evidence provided by the applicant, the well permit and the water produced by the
well is adequate to provide washing and dust suppressant for the applicant's mining activities.
The applicant also submitted testimony from Siemens & Associates indicating it is their opinion
that the geology of the site should provide adequate protection for ground water at the site. Staff
noted that the well water has been used by Cascade Pumice and the applicant for its mining
activities.
Opponents expressed skepticism that the applicant's well has sufficient water to satisfy the
mining needs, and expressed concerns that the applicant's well would reduce available water
for the Tumalo Rim Water Improvement District well, or would contaminate the aquifer that
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 26
supplies both wells.16 According to the Tumalo Rim Water Improvement District's Source Water
Assessment Report, the water source for both wells is an unconfined aquifer located about 415
feet from the surface. Soils between the surface and the aquifer are highly permeable, meaning
that the soils do not significantly slow or filter contaminants that might sink into the soils and
migrate down to the aquifer. According to that same report, the major risks to the water
supplied from the Tumalo Rim Water Improvement District well include: (1) contamination from
farming (use of pesticides and animal waste); (2) improperly installed or malfunctioning septic
systems; and (3) spills of chemicals/petroleum distillates from mining activities. The water
assessment report states that the potentially conflicting activities need not be prohibited;
however, they need to be monitored or conditioned to ensure the impacts on water quality are
avoided.
The hearings officer concludes that there is uncontested evidence that the applicant has an
adequate water supply to conduct its mining activities at the site and provide for dust
suppression. The hearings officer also concludes that contamination to local groundwater
supplies would likely be from fuel, engine oil or hydraulic fluid spills, rather than from the
washing or crushing of materials excavated at the site. In addition, the hearings officer
concludes that the risks to groundwater posed from the mining of the site are no greater than
from spills on Johnson Road, or from agricultural or residential activities within the Tumalo Rim
Water Improvement District well impact area. As the Source Water Assessment Report states,
those potential impacts can be managed through site monitoring and conditions of approval.
The applicant submitted an Emergency Response Plan (exhibit 7 of the modification submittal).
A condition of approval is imposed to require that the plan be available at the site at all times,
and that the applicant comply with industry best management practices to minimize the potential
of and impacts from contaminants used in mining the site. This plan should be required to be
followed as a condition of approval. In addition, conditions of approval are imposed to require
the applicant to maintain water logs that document its water use, and if a spill occurs, the
applicant will be required to test the water from the applicant's well and the Tumalo Rim Water
Improvement District well, to ensure that aquifer continues to be suitable as a source of
domestic water supply.
N. Storage of equipment, structures and other materials at the site is limited
to that which is necessary and appurtenant to the mining operation or
other uses permitted on the site.
FINDING: The applicant also states that the excavation and loading equipment, haul trucks and
water trucks as well as the screening and crushing equipment are necessary and appurtenant to
the mining operation and accordingly, on-site storage of such equipment is allowed. During the
April 2008 site visit, the hearings officer observed a water tower, a storage/office trailer,
passenger and dump trucks, excavators, water truck, and weather station at the site. The
excavation equipment, water truck and some dump trucks were in use. Other trucks and dump
truck/trailer combinations were parked on site, although it appeared that they were in line to be
filled with product. Other vehicles appeared to be employee passenger vehicles. The applicant
withdrew its request for office and shop facilities at the site, and does not propose to park
unrelated vehicles at this site.
16 There is some question as to whether the approval standards address groundwater quality at all. To the
extent DCC 18.52.110(M) does pertain to groundwater quality, the hearings officer addresses those
concerns here.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 27
A condition of approval is imposed to limit the equipment on the site to those described in the
modified application. No other equipment may be parked or stored at the site.
O. A security plan for the subject site has been submitted and approved by
the county and, where appropriate, by DOGAMI which addresses the
following issues:
1. Lighting;
2 Fencing;
3. Gates at access points;
4. Water impoundments;
5. Sloping; and
6. Security of vehicles and equipment
FINDING: The lighting at the site must meet the County's outdoor lighting requirements. The
applicant indicates that lighting has not been necessary for the site due to the existing security
fencing. The front of the property is already fenced, with a gate across the access road. The
front entrance is the only access to the site. There are no water impoundments at the site.
Water is obtained from the existing well and the water tower used to dampen Toads leaving the
site. Sloping of the pits used for extracting material will be at such an angle to allow the mining
equipment to move back and forth. Most of the site where equipment will be used is generally
level, except where excavation is occurring. The existing fencing and gate adjacent to Johnson
Road, are sufficient security for vehicles and equipment on the site.
P. All Impacts of the mining activities identified in the ESEE analysis for the
specific site are addressed and have been resolved at the time of site plan
approval or before the start of mining activity.
The specific requirements established in the "program to meet the goal" (page 12)
for SM Site #303 are:
a. Setbacks shall be required for potential conflicting residential and
other development;
b. Noise and visual impacts shall be mitigated by buffering and
screening, with particular attention paid to screening from Tumalo
State Park or the eastern, northeastern and southeastern
boundaries;
c. Hours of operation shall be consistent with DEQ standards and
applicable county ordinances;
d. Wildlife restrictions set for in ODFW's letter of August 10, 1989, shall
apply (This requirement was deleted as part of Ordinance 92-044
adopted by the County Commissioners on August 5, 1992.)
e. Excavation shall be limited to five acres with ongoing incremental
reclamation (subject to DOGAMI review and approval);
f. Mining operations, including placement of processing operations
and equipment and excavation and transport of material shall meet
all applicable DEQ noise and dust standards;
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 28
The Board finds that processing on site will be allowed.
FINDING: Setbacks specific to conflicting uses are listed in DCC 18.52.090. For Site 303, there
are two conflicting uses that include setback and/or buffering requirements: residential use and
the uses at Tumalo State Park. The SMIA has been imposed to limit the creation of new
conflicting uses. No new dwellings will be allowed within 250 feet of the surface mining
boundary, except as allowed through the SMIA provisions. As indicated in a foregoing finding,
screening and buffering on the site already exist with the natural topography and vegetation.
Except for the excavation on the southern portion of the site near the highest elevations, mining
operations will not be visible from the Park. With the restriction of no mining occurring on the
eastern approximately 700 feet and within the viewshed from the high trail at the park, and the
installation of a berm and buffering landscaping along the boundary with the Hoffman property,
the impacts on the eastern, northeastern and southeastern boundaries should be minimized.
The hours of operation are specified under DCC 18.52.110(1), as addressed in a foregoing
finding. A condition of approval to that effect is imposed, and any violation of this should be
reported to County Code Enforcement.
The wildlife restrictions are no longer applicable based on the County's adoption of Ordinance
92-044, addressed in foregoing findings. The applicant proposes to extract no more than five
acres at a time, in accordance with the Site 303 plan and the zoning code.
As conditioned, applicant has demonstrated that the mining operation will meet DEQ noise
standards. Additionally, the crusher shall be sited only in the southwestern processing site
location to prevent noise impacts to the surrounding residences.
All aspects of the proposed surface mining operation must meet DEQ dust standards. This may
require continual watering of the roads and stockpiles and loads leaving the site, and the
application of hydroseed and dust suppressant on stockpiles, overburden and areas awaiting
reclamation.
The hearings officer concludes that the impacts on the Tumalo Rim Water Improvement District
well need not be considered under this standard, as the district's well was constructed after the
adoption of the Site 303 plan.
As conditioned, the Site 303 Plan considerations are addressed.
10. Sections 18.52.115, Extended operating hours, and 18.52.120, Partial approval.
FINDING: The applicant is not requesting extended operating hours or partial approval. These
sections are not applicable to the proposed applications.
11. 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.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 29
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 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.
FINDING: The applicant and opponents dispute whether this criterion and state law permit the
county to impose reclamation standards for site that are subject to DOGAMI regulation. As the
applicant notes, all mining in Deschutes County is regulated by DOGAMI. However, not all of
the sites are subject to reclamation. Some sites, like this one, are partially exempt from
reclamation standards under DOGAMI rules. In addition, the DOGAMI standards permit a range
of reclamation alternatives. Opponents argue that the county has the authority to fill in the gaps
between the DOGAMI standards to ensure that the reclamation plan adopted by the applicant
fully addresses the Site 303 plan and zoning ordinance, and addresses mitigation for new
conflicting uses, such as the Tumalo Rim Water Improvement District well. The opponents have
proposed conditions of approval that they believe are necessary to be consistent with the limits
of the Site 303 Plan, the reclamation plan and state law.
The hearings officer disagrees with opponents that the county has the authority to impose
additional reclamation standards for sites that are subject to DOGAMI regulation. Even if
DOGAMI exempts certain areas within the site from reclamation, the site as a whole is subject
to DOGAMI control. The only role the county has in that case is to ensure that the reclamation
plan proposes an ultimate use that is consistent with the county's post -reclamation plans for the
site. Here, the site is planned and zoned for surface mining, and no post -mining use of the site
has been identified. The proposal is consistent with those designations and the reclamation
plan.
VVith respect to the proposed conditions of approval that address reclamation or mining activities
that are otherwise subject to DOGAMI authority, the hearings officer finds that some of the
conditions are warranted to ensure that impacts to conflicting uses identified in the Site 303 plan
are minimized. However, the proposed condition that the reclamation plan recognize that the
site is within a "sensitive hydrogeologic area" is not appropriate, in part because DOGAMI staff
indicates that no such designation exists and if it did exist, there is no evidence that the site falls
within a "sensitive hydrogeologic area" or that it warrants limits on reclamation. The hearings
officer agrees.
This criterion is satisfied.
12. Section 18.52.140. Conditional use criteria.
The criteria set forth in DCC 18.52.140 shall be the only conditional use criteria
applicable to the surface mining activities described below. Compliance with
these criteria shall be demonstrated at the time of site plan review.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 30
A. Crushing. When a site has been designated for crushing of mineral and
aggregate materials under the site-specific ESEE analysis in the surface
mining element of the Comprehensive Plan, the following conditions apply:
1. If a crusher is to be located less than one-half mile from a noise -
sensitive use or structure existing on the effective date of Ordinance
90-014, the applicant shall demonstrate through a noise report from
a qualified, registered sound engineer or similarly qualified
professional, that the crusher can meet all applicable DEQ industrial
and commercial noise control standards as designed and located, or
by methods including, but not limited to: Modification or muffling of
the crusher; placement of the crusher below grade or behind berms.
2. if a crusher is to remain on the site for longer than 60 days in any
18 -month period, the applicant shall demonstrate that it will be
screened in accordance with section 18.52.110(B).
FINDING: As indicated in a foregoing finding, the ESEE analysis adopted for site 303 in the
comprehensive plan contains the following conclusion:
"The Board finds that processing on site will be allowed." (page 12)
As noted above, the hearings officer concludes that "processing" includes "crushing."
Therefore, crushing is allowed as a conditional use on this site. The revised site plan depicts
three proposed locations for the crusher, depending on the location of mining activities on the
site. For the reasons stated above, the hearings officer concludes that this standard will be met
if the applicant is limited to one location for the crusher, and that location is depicted as the
southwest processing site on the applicant's revised site plan.
C. Sale of Products Extracted or Produced on Parcels Other Than the Subject
Parcel. The following conditions shall apply:
1. The portion of the site where products will be stored and sold is at
least one-half mile for a noise or dust -sensitive use or structure
existing on the effective date of Ordinance 90-014.
2. The access from the point where the products are stored and sold to
a public road is not within one-half mile of any noise or dust-
sensitive
ustsensitive use or structure existing on the effective date of Ordinance
90-014.
FINDING: The applicant proposes to allow some clients to retrieve materials from the site.
According to the applicant, only those materials extracted and processed at the site will be sold
from this location. Because the applicant does not seek to sell products extracted or produced
on other sites, this criterion does not apply.
13. Section 18.52.150, Failure to comply.
If the Planning Director or designee determines that surface mining activity which
has received site plan approval is not being conducted in compliance with the
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 31
setbacks, standards or conditions set forth in DCC 18.52.090, 18.52.110 and
18.52.140, respectively, or the site plan, the Planning Director or designee may
institute enforcement proceedings to require such compliance. Enforcement may
include citing for a violation, injunction proceedings, and any other measures
permitted under DCC 18.144.
FINDING: A condition of approval is imposed to this effect.
14. Section 18.52.170. Use permits.
Following site plan approval and prior to starting any surface mining activities on
the site, the Planning Director or designee shall physically review the site for
conformance with the site plan. When it is determined by the Planning Director or
designee that all elements of the approved site plan required for mining have been
completed and the reclamation plan has received final approval, the Planning
Director or designee shall Issue a use permit. No mining activity shall start prior
to the issuance of such use permit.
FINDING: The use permit for this site will require approval from the Planning Division. Mining
activity is occurring on the site pursuant to SP -95-10. Within 30 days of this decision becoming
final or at the time the crusher is placed on the property, whichever is later, planning staff shall
conduct a site visit to ensure that the pertinent conditions of approval are satisfied.
15. Section 18.52.180, Monitoring.
The Planning Director or designee shall periodically visit the surface mining site
to monitor the surface mining operation. If the Planning Director or designee
determines that the operation is not in compliance with the approved site plan and
all setbacks, standards and conditions set forth in DCC 18.52.090, 18.52.110 and
18.52.140, a citation fora violation shall be issued.
Section 18.52.190, Nuisances.
Violations of the surface mining site plan, or the setbacks, standards and
conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively, are
hereby declared nuisances, and abatement action may be taken as specified in
DCC 18.144.
FINDING: These applications are an attempt to remedy the alleged code violations in C-07-
180. If violations are found at the site to the site plan approved in this decision, code
enforcement proceedings can be instituted to obtain compliance. Monitoring of the operation
will be the responsibility of the Planning Division, in combination with DOGAMI personnel.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 32
IV. DECISION:
Based on the findings of fact and conclusions of law set out above, the hearings officer
concludes that the applicant has demonstrated that all applicable approval criteria have been
satisfied or can be satisfied through the imposition of conditions of approval. Accordingly, CU-
07-102/SP-07-46 (MA 08-3/MA 08-4) is APPROVED, subject to the following conditions.
1. The mining operation approval is based on the submitted plan, including the location and
types of materials to be mined and processed, the hours of operation, and the proposed
mitigation, as modified through this decision and associated conditions of approval. Any
substantial change to the plan shall require new land use applications.
2. The owner/operator shall follow and meet all requirements of the ESEE analysis for Site
No. 303.
3. The owner/operator shall satisfy all requirements of the Oregon Water Resources
Department regarding the use of groundwater on the site. This includes documentation
of groundwater use, and modifications as needed to ensure there is an adequate supply
of water to support the proposed mining activities.
4. The owner/operator shall be restricted to conducting mining operations between the
hours of 7:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m. to 5:00 p.m.
Saturday. Mining operations shall not occur on Sundays or the following legal holidays:
New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Day.
5. No drilling or blasting is permitted as part of this approval.
6. The owner/operator shall limit the extraction area to a slot no larger than 5 acres at one
time.
7. The owner/operator shall control dust created by the mining operation and its associated
activities so as to meet applicable DEQ standards. The dust control measures shall
include, at a minimum:
a. regular watering of unpaved portions of the access road and interior roads
b. application the dust -suppressant and/or sealant products that meet State
regulations
c. monitoring of atmospheric conditions in the manner as identified in the AGI Study
from File No. SP -95-10. The applicant shall implement the Nuisance Dust
Anticipation, Identification and Mitigation program submitted as Exhibit 11 to the
SP -95-10 proceedings. A flexible work schedule shall be implemented for high
dust producing activities, such as overburden removal. Those activities will not
be conducted on days when wind speed exceeds 20 mph, humidity is less than
50 percent, and when mining surfaces are dry and exposed.
d. Watering the loads of open -bodied haul trucks carrying mined materials from the
site with a water bar or covering those loads with a tarp/covering.
e. Keeping the paved access road connecting to Johnson Road as dust free as
possible.
8. The applicant shall follow the Emergency Response Plan attached as exhibit 7 to the
modification of application submittal. The Emergency Response Plan shall be
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 33
prominently displayed on site, and employees shall be trained in best management
practices to implement the plan.
9. The owner/operator shall control noise generated by the mining operation and its
associated activities so as to meet all applicable DEQ standards. Natural terrain and
vegetative features shall be retained to buffer the mining activity from the surrounding
area. All crushing operations shall be conducted below grade (ground level). The
crusher and materials washer shall only be located in the southwestern processing site
identified on the revised site plan.
10. The owner/operator shall submit to the Planning Division follow-up noise analyses from
a qualified noise engineer starting in August of 2009, and every other year thereafter for
the life of the mining operation.
11. The owner/operator shall store on-site only equipment necessary and appurtenant to
mining operations for this site only. The owner/operator shall remove all surface mining
equipment from the subject property within 30 days of completion of all mining and
reclamation.
12. The applicant shall maintain the 100 -foot buffer area along the north property line. No
mining activities, except supplied landscaping and reclamation, shall be conducted
within this buffer area. To minimize the visual and noise impacts to residential uses on
the Hoffman property, the applicant shall install a berm and/or supplied landscaping
along the north property line near the water tower and parking areas and extending to
the western edge of the previously mined area.
13. The applicant shall obtain a WPCF-100 permit for wastewater at the site.
14. The applicant shall park/site vehicles and equipment, including on-site watering
equipment, at least 250 feet from any water wells. The applicant shall continuously
protect the on-site wellhead by maintaining a landscaped or fenced area for a radius of
at least 15 feet from the wellhead.
15. Only those materials excavated from the site may be sold at the site. The applicant shall
not bring in off-site materials for processing and re -sale from the site.
16. The applicant shall maintain water logs to document its water use, and make those well
logs available to the county on request. If a spill occurs, the applicant is required to test
the water from the applicant's well and the Tumalo Rim Water Improvement District well,
to ensure that aquifer continues to be suitable as a source of domestic water supply. The
applicant shall comply with all water quality regulations.
17. Mining may not occur in areas along the upper wall that are visible from Tumalo State
Park Trails. The applicant shall work with the park managers to revise the mining
boundaries to assure those visual impacts are avoided, and shall submit a modified site
plan that depicts the new boundaries of the mining area.
18. This approval is subject to the above -stated conditions. Failure to abide by the
limitations of this approval may result in revocation of the permit or other enforcement
action.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 34
lt'
DATED this tiday of July, 2008.
MAILED this
day of
ANne Corcoran Briggs
Hearings Officer
, -2008.
THIS DECISION IS FINAL WITHIN 12 DAYS OF MAILING UNLESS APPEALED IN
ACCORDANCE WITH COUNTY PROCEDURES.
CU -07-102, SP -07-46 (MA -08-3, MA -08-4) Page 35
ESEE Findings and Decision
Site No. 303
Site Number 303,
Township 17, Range 12
Commissioners (Board)
October 26, 1989, the
site. By adoption of
confirms and ratifies
occupying a portion of tax lot 300 in
, Section 7, came before the Board of
for hearing on August 9, 1989. On
Board made a preliminary decision on this
these findings and this decision, the Board
that preliminary decision.
The purpose of the hearing before the Board was to determine
whether the subject site, listed on the County's inventory of
aggregate sites, should be classified under the County's compre-
hensive plan and zoning regulations as "SM" or Surface Mining.
For the reasons given below, the Board determines that this site
should be so classified.
PRELIMINARY FINDINGS
Site number 303 comprises approximately 80 acres and is
located off Johnson Road one mile southwest of Tumalo State Park.
The site is owned by Cascade Pumice and is zoned SM. Adjacent
land is zoned EFU-20, MUA-10 and UAR-10.
This site was identified as containing aggregate and pumice
resources in the Deschutes County Goal 5 Aggregate inventory
adopted by the Board on December 6, 1988. Based upon the site's
inclusion on that inventory, a hearing was held to determine
whether to zone this site under statewide planning goal 5 to
protect the aggregate resource.
APPLICABLE CRITERIA
Criteria applicable to this decision are Statewide Planning
Goal 5, its implementing rule, OAR 660-16-000, the Deschutes
County Year 2000 Comprehensive Plan, as amended, regarding
surface mining goals and policies.
HEARING AND EXHIBITS
Prior to the hearing on this site, a staff report was pre-
pared setting forth the site's aggregate resources and conflict-
ing resource and use values. The report, which was entered into
the record at the hearing before the Board, identified conflict-
ing resources and uses and their impacts and evaluated the
economic, social, energy, and environmental consequences of
protecting the mineral resource or in the alternative, protecting
the conflicting values or uses.
In addition, testimony was received from the Department of
Fish and Wildlife, the Department of State Parks and Recreation
1 - ESEE FINDINGS AND DECISION - SITE NO. 303
(State Parks), the operator of the site, the
Deschutes and neighborhood residents.
A list of the contents of the record is
Exhibit. A.
Coalition for the
appended hereto as
ESEE FINDINGS AND CONCLUSIONS
1. Inventory. The County's Goal 5 mineral and aggregate inven-
tory establishes that the site has two types of mineral
resources:
750,000 cubic yards of good quality pumice; and
10,000 cubic yards of sand and gravel.
The sand and gravel resource has largely been mined out by
previous mining operations. Therefore, this analysis will
focus on the pumice resource.
2. Site characteristics. The site is just off Johnson Road
approximately .75 miles southwest of Tumalo State Park and
1.5 miles south of Highway 20. Johnson Road runs just west
of the site, touching it in the NW corner. Access is via a
dirt/gravel road, off Johnson Road.
The west half of the site is primarily natural with juniper
tree and some sagebrush. There are two small pumice quar-
ries on the west half. Part of the east half has been
cleared and mined. No improvements are located on the
property.
This a relatively sparsely developed area of larger residen-
tial acreages. Directly west of the subject site is a
gravel reserve site. To the south are 40 -acre residential
properties. 500 feet to the east lies the Deschutes River
and the Deschutes Scenic Waterway, with a residential
property in between the mine and the river. Within a half
mile to the north lies the Tumalo Rim subdivision, with
average quality homes on half -acre lots. Also within a half
mile to the north are farm properties, an older gravel pit,
and Tumalo State Park. Across the Deschutes River to the
east is undeveloped land.
3. Conflicts analysis.
a. Conflicts
Natural Resources.
1. Wildlife. The Department of Fish and Wildlife has
identified this site for deer winter range, with medium
frequency of use. The surrounding properties all have
2 - ESEE FINDINGS AND DECISION - SITE NO. 303
a Wildlife Area combining zone, indicating that this
area is part of the Tumalo winter deer range. There is
also medium sensitive raptor use in the area. Neigh-
borhood residents testified to seeing eagles in the
area.
2. State Scenic Waterway. The adjacent segment of the
Deschutes River has been designated by the State of
Oregon as a state scenic waterway. Such designation
includes a 1/4 mile corridor on each side of the river.
The Board finds that a portion of the site falls within
the scenic waterway corridor.
State scenic waterway designation is based upon a river
segment's outstanding scenic, fish, wildlife, geologi-
cal, botanical, historic, archeological, recreational
and outdoor values. From the Deschutes County/City of
Bend Deschutes River study, the outstanding attributes
of the river in this segment appear to be its scenic
and recreational qualities.
The Deschutes River was identified in the Ragatz study
as one of the most important natural features in the
County, that study noted that high proportions of
visitors and residents make use of the river for
recreational purposes.
3. Open space. The surrounding zoning of EFU-20 indicates
high open space values. In addition, as the testimony
of State Parks indicates, the site is located between
two parcels of land that are a part of the Tumalo State
Park, which also indicates high open space values.
Conflicts
Based upon the staff analysis of surface mining impacts on
natural resources, the Board finds the conflicts and impacts
of surface mining at this site to be as follows:
(1) Open space and scenic values are impacted by the
removal of surface vegetation, the opening of a pit in
the ground, storage of excavated materials, the pre-
sence of machinery on the site, the building of infra-
structure, such as access roads, fences, and processing
facilities, and fugitive dust emissions.
(2) Impacts on deer would include destruction of cover and
food sources by excavation and surface disturbance,
interference with migration routes by surface distur-
bance and construction of structures and access roads,
an increased risk of being hit by trucks and other
vehicles serving the mining site. The effect would
3 - ESEE FINDINGS AND DECISION - SITE NO. 303
(3)
generally be to displace deer from such areas or to
curtail their use. The Department of Fish and Wildlife
has characterized the impact of noise on deer at this
site as medium.
Impacts on the Deschutes River State Scenic Waterway
would include visual impacts from surface and vegeta-
tion disturbance within the scenic waterway corridor as
set forth in paragraph (1) above. In addition, testi-
mony of area residents indicated that the usual winds
blow dust from the site toward the river and the state
park. Because the pit is on a bluff, noise from the
site carries over to the river and to Tumalo State
Park. Such impacts would adversely affect the special
scenic and recreational qualities of the Deschutes
River and Tumalo State Park. There is no indication
that surface mining would create water quality pro-
blems, since the site is set back from the river.
State scenic waterway status does not preclude mining
in scenic waterways, but allows for mining operations
in the scenic waterway corridor subject to State Parks
Department regulation.
The Board finds that the resources identified above conflict
with zoning for surface mining in that full protection of
such resources, accounting for impacts of habitat destruc-
tion and topographical alteration, noise, and increased
human presence could preclude zoning for surface mining.
Conversely, the Board finds that the noise, dust, increased
traffic, physical scarring of the landscape and loss of
vegetation associated with surface mining at the site would
have an adverse impact on wildlife, open space and scenic
resources.
b. Land Use Conflicts.
Land Uses
Land uses in the SM, EFU-20, UAR-10, and MUA 10 zones at and
surrounding the site are set forth in Appendix A to the
staff report and at Section 4.100 (SM) of the Deschutes
County Zoning Ordinance, PL -15, and Section 10 of the Bend
Area General Plan, PL -11.
Conflicts
The Board finds that conflicts with the uses at the site and
in the surrounding zones would include:
4 - ESEE FINDINGS AND DECISION - SITE NO. 303
At the site
(1) The Board finds that the site is already committed to
surface mining and that the existing surface mining
conflicts with other allowed and conditional uses in
the SM zone in that occupation of the surface area of
the site for mining prevents other uses from being
established.
(2) The impacts of noise and dust on noise and dust sensi-
tive uses (as defined below) that could be established
on unoccupied portions of the site. As a practical
matter, such conflicts are not of great consequence,
since the owner of the site has chosen to commit the
site to surface mining.
Surrounding zones
(1) The impacts of noise (including heavy equipment, truck
traffic, blasting, processing, and drilling) on persons
dwelling in or patronizing noise -sensitive uses in the
surrounding zoning. The Board finds that under DEQ
noise standards, all possible uses in the surrounding
zones would be noise -sensitive uses, except utility
uses, landfill uses, other mining or geothermal uses,
personal landing strip uses, forest products processing
uses, and hydroelectric uses.
(2) The impacts of dust on dust -sensitive uses. The Board
finds that all commercial, residential, park or com-
munity -type uses are dust -sensitive uses due to the
potential health impacts of dust on occupants and
patrons.
(3) The impact of truck traffic on roads and on public
safety, particularly as truck traffic affects the
safety of residential neighborhoods.
(4) The impact to aesthetic values, due to physical scarr-
ing of the landscape and the introduction of an in-
dustrial -type use into a rural setting. This would
affect primarily residential uses and community and
park -type uses.
The Board finds that the uses identified above as conflict-
ing are conflicting in that full protection of those use
would preclude continued mining at the site or cause limita-
tions to be put on mining activities.
The Board finds that there are existing uses in the area
that would be impacted by the above-described conflicts.
Specifically, the residential uses in the nearby 40 -lot
5 - ESEE FINDINGS AND DECISION - SITE NO. 303
04(30
Tumalo Rim Drive subdivision to the North and the adjacent
residence to the East would be subject to noise near the
subdivision and possible dust impacts. Increased truck
traffic on Johnson Road could adversely affect the safety of
Tumalo Rim Drive subdivision residents. In addition, there
was testimony that Johnson Road is heavily used by bicy-
clists. The Board finds that the surface mine is not
visible from the Tumalo Rim subdivision and would be diffi-
cult to see from the residence immediately to the East. The
site would be most visible from the undeveloped land to the
East.
The Board finds that visitors to Tumalo State Park would
also be affected based upon the testimony of State Parks and
neighborhood residents. Tumalo State Park receives high
campground and day use and that the site is located between
two portions of the Park. State Parks testified that day
hikers use the undeveloped portions of the park adjacent to
site 303. In addition, the site is visible from the devel-
oped portions of the Park and from the River. Neighborhood
residents testified that the usual winds blow dust toward
the park and that sound carries from the site toward the
river and the park.
4. Current Mining Use of Site. The Board finds that surface
mining is a current or previous use at the site and could
possibly continue within any valid existing DOGAMI or County
permit area regardless of whether or not this site is zoned
in the Goal 5 process. Accordingly, the consequences of
allowing mining to proceed on the site have occurred or are
already occurring and could possibly be allowed to occur
until such time as expansion of the site would be necessary.
Therefore, the relevance of the ESEE discussion below is
primarily whether any expansion would be allowed at the site
and whether the site is important enough that limitations
should be placed on existing and potential land use con-
flicts.
Resource Conflicts
Protection of Aggregate Resource
5. Economic Consequences. The Board finds that the economic
consequence of protecting the aggregate in conflicts with
other natural resources is difficult to measure, given that
deer habitat, open space, and scenic waterway values do not
have any economic values attached to them.
Economic consequences would tend to be of a secondary
nature, such as a reduction in tourists who might be dis-
suaded from coming to the area if this site along with
others are developed in such a manner as to create large un -
6 - ESEE FINDINGS AND DECISION - SITE NO. 303
04f»1
sightly areas in the county. This could be an importance
consequence, given the proximity of the site to Tumalo State
Park and since the Deschutes River has been found to be the
most important recreational feature in the County.
6. Social Consequences. The Board finds that the social conse-
quences of protecting the mineral resource over the other
natural resources would be negative. Surface mining would
have negative impacts on wildlife and exacerbate an existing
scar in the landscape. The impact would be felt primarily
by those making use of Tumalo State Park and the Deschutes
River.
7. Environmental Consequences. The Board finds that allowing
surface mining activities would have adverse environmental
consequences on wildlife habitat and the scenic qualities of
the Deschutes River corridor. Surface mining activities
would reduce the available cover and forage at the site,
which would cause increased competition among deer for the
remaining forage and cover. Some wildlife would be forced
to leave the area to find other food sources and cover, thus
adding more competition in other areas for these resources.
Increased truck traffic associated with mining activities
could increase the mortality rate for the area's wildlife.
Scenic views from the Deschutes River corridor would be
adversely affected by fugitive dust and by possible
increased destruction of vegetation and changes in topo-
graphy.
In some cases over the long term surface mining can be
beneficial to environmental values in that it gives an
opportunity for a site already desecrated by the actions of
man or otherwise lacking in natural values to be improved as
part of the reclamation process. There is no evidence to
suggest that this is one of those instances, since in any
event the current operator would have to reclaim those
portions of the site that are not grandfathered.
8. Energy Consequences. The Board finds that the energy conse-
quences of protecting the mineral resource over the other
natural resources would be to increase the energy consump-
tion at the site due to fuel expenditures needed to run the
heavy equipment and processing equipment as well as the fuel
expended in transportation of the product to its end use.
Although pumice is not as necessary a mineral as sand and
gravel is, it is still a basic material and chances are that
energy would be expended in obtaining a substitute material.
There would be no negative effect in protecting the pumice
resource.
7 - ESEE FINDINGS AND DECISION - SITE NO. 303
()(162
Protection of Goal 5 Resources
9. Economic Consequences. Protection of Goal 5 resources could
preclude or curtail mining at the site. Deer habitat is in
limited supply and the proposed surface mine would cause
displacement of wildlife and increased competition in
remaining unaffected areas. The scenic views in the Des-
chutes River corridor could only be fully protected by
precluding or placing limits on mining.
The Board finds that pumice resources are a commodity with a
market value. Failure to allow mining of such resources
would prevent the value of such resources being realized by
the local economy. Although the number of jobs represented
by the local aggregate industry is small in number, manufac-
turing jobs tend to pay at higher rates than those found in
the service sector.
Pumice is not thought to be in short supply in the County.
This coupled with the fact that pumice is not as essential a
mineral as is aggregate would make for much less of an
economic effect if conflicting resources were to be pro-
tected. Still, pumice does have value as a material for
building blocks and as an export for the local economy.
10. Social Consequences. Considering the fact that pumice is in
relative abundance in Deschutes County, the social conse-
quences in protecting the conflicting Goal 5 values at the
expense of the pumice resource would not have the same kind
of social consequence that failure to protect aggregate
sources could. In general, whatever the social consequences
of not allowing increased pumice mining at the various
pumice sites, the effect would not be great.
11. Environmental Consequences. Protection of the natural
resources would preclude mining at the site. The noise,
dust traffic, human presence and disruption of habitat
associated with surface mining is inimicable to the protec-
tion of scenic resources and wildlife habitat. Therefore,
protection of the natural resources by precluding mining
would have positive environmental consequences. As with
mineral resources, wildlife resources and scenic resources
are limited by locational factors. Wildlife habitat is
continually shrinking in the face of increased development.
Scenic views cannot be recreated by the actions of man.
12. Energy Consequences. The Board finds that the energy
consequences from preserving the conflicting Goal 5
resources would be neutral for the reasons set forth in
paragraph 8.
8 - ESEE FINDINGS AND DECISION - SITE NO. 303
OFE3
13. Relative Values of the Conflicting Resources. The Board
finds that based upon the ESEE consequences discussed above,
the Goal 5 resources and the aggregate resource are impor-
tant relative to one another. This finding is based upon
the following facts:
(a) Pumice has value for the economy of Central Oregon as
an economic commodity. Given the quality and quantity
of pumice present at this site, this is a significant
pumice site.
(b) This site has been a mining site of long standing.
(c) Deer habitat is continually shrinking in the face of
new development.
(d) The Deschutes River is among the most important natural
features in the County, as has been demonstrated by the
Ragatz survey and by the designation at this site by
state and federal designation for Scenic Waterway
status.
(e) Preserving the natural qualities of the Deschutes River
is important to the burgeoning recreational economy of
the County.
Therefore, the Board finds that both the aggregate resource
and the conflicting natural resources should be protected.
Accordingly the Board finds that under OAR 660-16-010(3)
protection of the aggregate resource shall be limited by
protection of the Goal 5 resources.
Conflicting Uses
Protection of Mineral Resource
14. Economic Consequences. The economic consequences of pro-
tecting the pumice resource relates to the impacts of
surface mining on adjacent uses, the value of aggregate as a
commercial commodity and the impacts of protecting employ-
ment in the mining industry and the development opportun-
ities foregone by development of the site.
While the impacts of surface mining may in individual cases
have a short term impact on property values of surrounding
properties, trend analysis from the tax assessor's records
of specific parcels either adjacent to or within one-half
mile of both existing and potential surface mines indicates
that there were no drastic fluctuations in these property
values. This same analysis shows that there has been no
appreciable decline in sales of these or similar types of
properties.
9 - ESEE FINDINGS AND DECISION - SITE NO. 303
0464
The most significant impact to surrounding property owners
would be if regulations to protect the mineral resource were
enacted that would make surrounding properties unbuildable.
One potential cost to the community at large is the cost of
road repairs necessitated by increased heavy truck traffic
on public roads. Another potential cost to the community at
large is the possible effects on the region's tourist indus-
try. Tumalo State Park is a major recreation site in the
County, and adverse impacts to the park could have an effect
on visitor's attitudes toward the region.
Allowing surface mining activities at this site could have
some short-term negative impacts on the ability to utilize
this property for other uses. However, there is no shortage
of land in the County available for development for the uses
allowed in the zone. Furthermore, surface mining is a
transitional use, and after reclamation the land surface
would then become available for other uses.
15. Social Consequences. Preserving this site for the produc-
tion of mineral and aggregate resources would have a major
impact on the quality of life associated with the other land
uses in the area. The negative impacts of noise, fugitive
dust emissions, and increased truck traffic would adversely
impact the livability, scenic quality and compatibility of
other uses in the vicinity of the project as set forth
above. Such impacts may be mitigated, however, through
environmental controls on the mining operation.
16. Energy Consequences. The Board finds that preserving this
site for the production of minerals would most likely have
neutral or slightly positive energy consequences. As stated
above, the energy consumed on site by mining equipment is
likely to occur at some source in any event. To the extent
that surface mining would preclude or discourage development
of the surrounding rural lands, the energy consequences
would likewise be positive.
17. Environmental Consequences. The Board finds that protecting
the site for mining would have negative environmental conse-
quences for the same reasons given under paragraph 11 above.
The Board further finds that such impacts can be mitigated.
Protection of Conflicting Land Uses
18. Economic Consequences. Most uses in the surrounding zoning
designations are classed as noise sensitive uses for pur-
poses of DEQ noise regulations. Farm uses may be noise
sensitive uses in certain situations, such as with livestock
operations. Protection of surrounding conflicting uses can
have the effect of precluding or limiting further surface
10 - ESEE FINDINGS AND DECISION - SITE NO. 303
r M
mining activity due to noise regulations. Likewise, dust,
traffic and aesthetic impacts can place constraints on
surface mining operations amongst conflicting land uses.
19. Social Consequences. The Board finds that the social conse-
quences of allowing incompatible development to preclude the
use of all or part of this site would be the same as those
under the natural resource discussion above.
20. Environmental Consequences. The environmental consequences
of protecting land uses at the site and surrounding land
uses is mixed. Protecting the conflicting land uses could
well preclude mining at the site. This would have positive
environmental consequences in that the noise, dust, traffic,
and aesthetic impacts associated with surface mining would
be prevented. However, protectingthe conflicting land
uses, especially in rural sites such as this can also have
negative environmental impacts. Thus, if the site and
surrounding areas become developed, they, too, can have a
detrimental impact on wildlife habitat, reducing the overall
supply of food and cover and increasing competition for
adjoining undeveloped habitat. Likewise, scenic values
could also be negatively affected by development where there
is none now.
21. Energy Consequences. Allowing development that would
preclude or curtail mining at this site could create greater
overall energy consumption. Increased development at this
rural site would increase energy use from those living in or
patronizing the allowed uses. Such development would likely
lead to a long term energy commitment because of the life
span of such development.
22. Relative Values of Aggregate Use and Conflicting Uses.
Based upon the analysis of the ESEE consequences of protect-
ing the identified conflicting uses and protecting the
mineral resource and the relative weight of the conflicting
uses and the mineral resource, the Board finds that with
respect to existing development both the mineral resource
and the conflicting resources and uses are important rela-
tive to one another. This finding is based upon the follow-
ing facts:
(a) Facts (a) and (b) from the paragraph 13 above;
(b) Existing conflicting residential uses are important in
that they represent an economic commitment to occupa-
tion and development of individual parcels of private
property. Associated with such commitment are econo-
mic, quality of life and health and safety expecta-
tions.
11 - ESEE FINDINGS AND DECISION - SITE NO. 303
(c) The use at Tumalo Park and sites along the Deschutes
River are important as a major recreational site in the
County.
Accordingly, the Board finds that pursuant to OAR 660-16-010
it will limit the use of the mineral resource and the
existing conflicting uses surrounding the site in favor of
each other.
Potential development in the impact area is not significant
enough to be considered to be a use that would limit the use
of the aggregate resource at this site. The displaced
future uses can be accommodated on other lands in the
County. There is no compelling need for them to occur at or
near this site.
PROGRAM TO MEET THE GOAL
23. The Board finds that in order to protect both the aggregate
resource and the conflicting resources and uses, the site on
top of the plateau will be zoned for surface mining, subject
to the following ESEE conditions:
(a) Setbacks shall be required for potential conflicting
residential and other development;
(b) Noise and visual impacts shall be mitigated by buffer-
ing and screening, with particular attention paid to
screening from Tumalo State Park or the eastern, north-
eastern and southeastern boundaries;
(c) Hours of operation shall be consistent with DEQ stan-
dards and applicable county ordinances;
(d) Wildlife restrictions set forth in ODFW's letter of
August 10, 1989, shall apply;
(e) Excavation shall be limited to five acres with ongoing
incremental reclamation (subject to DOGAMI review and
approval);
(f) Mining operations, including placement of processing
operations and equipment and excavation and transport
of material shall meet all applicable DEQ noise and
dust standards.
The Board finds that processing on site will be allowed.
Conflicting Resources
24. The Board finds that surface mining use of the site will be
limited by conflicting natural resource considerations by
12 - ESEE FINDINGS AND DECISION - SITE NO. 303
046 ;1
the provisions for screening and buffering to mitigate noise
and visual impact. The Board further finds that the winter
closure of the site will offer protection for deer herds.
The Board finds that the screening and buffering ESEE
requirements are met by the screening and buffering require-
ments in the Deschutes County zoning ordinance, as amended
by Ordinance 90-014.
The Board finds that such mitigation will not prevent the
County from achieving its goal, since the site will be
allowed to be mined. The Board finds that the winter
closure will not be unduly restrictive, since it occurs at a
time of the year when road construction projects are not
typically underway.
Mineral Resource
25. The Board will protect the mineral or aggregate resource by
zoning the site SM to allow for surface mining activities.
The Board finds that Surface Mining Ordinance 90-014,
adopted as part of this surface mining package, allows
mining activities such as extraction, processing, crushing,
batching, and other mining -dependent uses as permitted or
conditional uses and activities in the zone. Conflicting
uses, such as residential uses that would irretrievably
commit surface area to other uses and otherwise conflict
with surface mining are not allowed uses in the zone.
Agricultural and forest uses are allowed in recognition that
such uses can occur without irretrievably committing the
property to uses other than surface mining. In this manner
the surface area of the mineral or aggregate resource is
protected against establishment of uses that would prevent
mining of the mineral or aggregate in the future. Such
protection advances the goal of protection of sufficient
mineral or aggregate resources to meet the County's mineral
or aggregate needs.
26. The Board finds that imposition of a Surface Mining Impact
Area (SMIA) combining zone as a one-half mile buffer sur-
rounding the SM zone, as set forth in Surface Mining Ordi-
nance 90-014, will further protect the aggregate resource
and the Board so zones the one-half mile area surrounding
the SM zone, except to the extent that such buffer area
would extend inside an adjoining county or the urban growth
boundary of the City of Bend or Redmond. The Board finds
that the SMIA zone limits conflicting uses as follows:
(a) New conflicting "noise -sensitive" and "dust -sensitive"
uses, such as single-family dwellings, may be sited
within the SMIA zone only if the applicant has signed a
waiver of remonstrance precluding protest of any
surface mining activities, and closer than one-quarter
13 - ESEE FINDINGS AND DECISION - SITE NO. 303
mile to storage and processing sites only if the
applicant can demonstrate that the proposed use will
not cause a mining operation to violate the siting
standards; and
(b) In all cases new conflicting "noise sensitive" and
"dust sensitive" uses must be located no closer than
250 feet to an SM zone.
The Board finds that these provisions satisfy the ESEE
condition that residential and other development be subject
to setbacks. The Board finds that such a provision is
sufficient to protect the aggregate resource from conflict-
ing future development.
27. The Board finds that, in combination with the action taken
on other aggregate sites, zoning the site for surface mining
and protecting the site from future surrounding conflicting
land uses, the County's goal of preserving sufficient
aggregate resources to meet the needs of the County have
been met.
Land Uses
28. Existing conflicting land uses, if any, are protected by the
requirement that newly sited surface mines or expansion of
existing surface mines meet screening requirements, setback
requirements, noise standards, adhere to limits on maximum
area of surface disturbance and other limitations.
14 - ESEE FINDINGS AND DECISION - SITE NO. 303