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HomeMy WebLinkAboutLower Bridge Way Text AmendmentCommunity Development Department Planning Division Building Safety Division Environmental Health Division September 11, 2008 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM To: Deschutes Board of County Commissioners From: Will Groves, Senior Planner Subject: A decision on whether to hear an appeal of the Hearings Officers denial of a comprehensive plan text and map amendment and zone change from Surface Mining to Rural Residential to allow redevelopment of extensively mined site. (Applicant: Daniels Group LLC). File nos.: ZC-08-1 and PA -08-1 (A-08-15). BACKGROUND The applicant requests approval of a plan amendment to change the designation of the subject property from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and to remove Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The applicant also requests approval of a zone change from Surface Mining (SM) and Exclusive Farm Use (EFU-LB) to Rural Residential (RR -10) for the subject property. The removal of the SM zoning on the subject property also would remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on property located within one-half mile of the SM Zone. If these applications are approved, the applicant plans to redevelop the site as a residential planned unit development with up to 74 dwellings. The Hearings Officer agreed with the applicant the site does not include significant mineral or aggregate resources and that it is appropriate to remove the site from the county's Goal 5 mineral and aggregate inventory. In addition, the Hearings Officer concluded that the site does not include agricultural or forest soils, and cannot be put to resource use. Therefore, a non -resource designation is appropriate. However, the Hearings Officer concluded that the applicant has failed to demonstrate that the proposal is consistent with the Transportation Planning Rule (TPR), or that reclamation of the site will occur in accordance with the approved reclamation plan for the site. Therefore, the Hearings Officer concluded that these applications cannot be approved. The 556 -acre subject property is predominantly designated Surface Mine under thE:= Comprehensive Plan. However approximately 9.6 acres are designated agriculture. Under Quality Services Performed with Pride 22.28.030(C), the portion of this plan amendment and zone change concerning lands designated for agricultural use shall be heard de novo before the Board of County Commissioners without the necessity of filing an appeal. The applicant filed appeal A-08-15 on August 22, 2008, requesting limited de novo review of that portion of the application that pertains to property designated Surface Mine in the Comprehensive Plan. As discussed above, the Board must hear the portion of the plan amendment and zone change concerning lands designated for agricultural use de novo. However, the Board may choose to decline to hear, hear limited de novo, or hear de novo the portion of the plan amendment and zone change concerning lands designated for surface mine. The applicant believes that the Board has the option of choosing a limited de novo option to hear the land designated for agriculture because of the provision in DCC 22.28.030(C) that says that all other provisions of DCC Title 22 are applicable. Staff, believes, however, that the intent of DCC 22.28.030(C) is to require a full -de novo hearing. If the Board had the option of deciding what type of hearing to have regarding plan amendments for agricultural land, there would be no need to specify that the hearing be de novo. Additionally, DCC 22.28.030(D) says that, if a party wants the Board to review the non- agricultural portion of a plan amendment, the party must appeal to the party and "The plan amendment shall be heard by the Board consolidated with the appeal of those other applications." What is not absolutely clear from this is whether the Board must hear all by way of a de novo hearing. Staff and legal counsel believes that the Board must hear the agricultural portion de novo but may choose to include in the same hearing a limited de novo or hearing on the record for the non-agricultural portion. Because what type of hearing, if any, to have on each of the portion of this application is a matter of code interpretation, staff requests that the Board provide direction to staff as to the scope of review for the hearing. Staff will then provide the required notice for the hearing accordingly. STAFF DISCUSSION Staff recommends that the Board accept the appeal and hear the entire matter de novo. Limiting testimony to specific issues on specific portions of the property will significantly complicate the hearing. Also, given the intense public interest in this matter, a rule -complicated public hearing may create public frustration with the process. DOCUMENTATION A copy of the Notice of Appeal, staff report, and Hearings Officer decision are attached for your review. SCHEDULE This item is scheduled for the Board's regular meeting on September 29, 2008. Please feel free to contact me with any questions or concerns. nCR eXIUI:CnA! Subject Property Taxlot 14-12-1501,1052,1503,1505 & 1600 Legend L.r.5 ZC-08-1/PA-08-1 Applicant: The Daniels Group LLC Address: 70420 NW Lower Bridge Way Taxmap; 14-12-1501,1502,1503,1505 & 1600 Community Development Department Planning Division 117 NW Lafayette Avenue, Bend, OR 97701-1925 (541) 388-6575 - Fax (541) 385-1764 http://www.deschutes.org/cdd APPEAL APPLICATION FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. It is the responsibility of the Appellant to complete a Notice of Appeal as set forth In Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must Include the Items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Appellant's Name (print): The Daniels Group, LLC Phone: ( ) Mailing Address: 1111 Main Street to 700 City/State/Zip: Vancouver, WA 98660 Land Use Application Being Appealed: ZC 08-1 , PA -08-1 Property Description: Tow ship 1 4 , Rang ction Tax Lot 1501 , 1 502, 1 503. 1 505 , 1 600 Appellant's Signature: Agent: Tia M. Lewis Schwabe Williams n 549 SW Mill View Wa , Suite 100 Bend, OR 97702 #5 1-749-4044 EXCEPT AS PROVIDED IN SE ON 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE 1S 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. Wyatt (over) SCAB 1/07 BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS THE DANIELS GROUP, ) File No. ZC-08-1/PA-08-1 Applicant ) NOTICE OF APPEAL APPLICANT: The Daniels Group, LLC 111 Main Street, Suite 700 Vancouver, WA 98660 ATTORNEY: Tia M. Lewis, OSB #93343 SCHWABE, WILLIAMSON & WYATT 549 SW Mill View Way, Suite 100 Bend OR 97702 Applicant, The Daniels Group, LLC, by and through their attorney, Tia M. Lewis, submit the following Notice of Appeal of the decision of the Deschutes County Hearings Officer dated August 6 and mailed August 11, 2008 recommending denial of its application for a plan amendment and zone change from Surface Mining to Rural Residential to allow redevelopment of the Lower Bridge diatomaceous mining site. The Applicant has standing to file this appeal because it participated in the review below by filing the application and submitting written and oral testimony at the hearing before the Deschutes County Hearings Officer. The Applicant requests the Board limit de novo review to the two issues only as set forth herein. I. REQUEST FOR DE NOVO REVIEW. Pursuant to DCC 22.32.027(8)(2) and DCC 22.28.030, the Applicant requests de novo review of the decision because it presents issues of significant public policy and county -wide implications for Deschutes County as the decision is one which involves a large surface mining site located on a prominent stretch of a wild and scenic portion of the Deschutes River. The decision involves significant issues concerning redevelopment and reclamation of the former mining site for rural residential use and thereby provides an opportunity and incentive to improve public health and safety with the redevelopment. The decision also provides an opportunity for developer funded transportation improvements in an area experiencing transportation deficiencies. De novo review of this decision by the Board of Deschutes County Commissioners is necessary to establish a reasonable interpretation of the County ordinances, a previous surface mining decision on this site, the state statutes and the administrative rules implementing the Statewide Planning Goals so that the citizens of Deschutes County can rely on such interpretations for future land use applications. Such an interpretation cannot be adequately and fairly made by any Page 1 - NOTICE OF APPEAL PDX/116094/150752/PIA/2862659.1 other body as the Board of County Commissioners is the most appropriate authority for setting policy and interpreting the statutes, administrative rules and county ordinances as they apply to surface mining, transportation improvements and resource land within Deschutes County. Further, the applicant would like the opportunity to submit additional evidence addressing the Hearings Officer's findings which include factual errors and conclusions which could not have been addressed in the hearing before the Hearings Officer. The issues relied upon for this appeal are set forth below. The Applicant requests, pursuant to DCC 22.32.027 B3, the Board limit the de novo review solely to the two issues set forth below. All other issues were fully briefed, argues and correctly decided by the Hearings Officer. The facts in the record and those which will be supplied at the hearing before the Board will demonstrate that the application meets all relevant land use approval criteria or can meet the approval criteria through the imposition of conditions of approval, and therefore, should be approved. II. TIME PERIOD FOR REVIEW. The present application for a plan amendment and zone change is not subject to the 150 day deadline within which the County has to make decisions on certain land use applications. III. ISSUES FOR APPEAL. Applicant raises the following issues for. appeal: 1. The Hearings Officer erred in concluding that the application should be denied on the basis that it did not comply with the Transportation Planning Rule OAR 660-012 and the applicable goals, plan policies and ordinances relating to transportation impacts. 2. The Hearings Officer erred concluding the appl' • . . - should be de 7based on the failure to complete the reclamation set forth in SP -85,121W sr- /-)/ DATED: August , 2008 Page 2 - NOTICE OF APPEAL PDX/116094/150752/P1A2862659.1 . Lewis, O B #933 SCHWABE, WILLIAMSON & WYATT Attorney for Applicant/Appellant RECOMMENDATION OF THE DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: ZC-08-1, PA -08-1 LOCATION: The property is identified on the County Assessor's Tax Map as 14-12, Tax Lots 1501, 1502, 1503, part of 1505, and 1600. APPLICANT: The Daniels Group, LLC 1111 Main Street, Suite 700 Vancouver, WA 98660 OWNER: Norman L. Wiegand, et al. 895 SW 23rd St. Redmond, OR 97756 ATTORNEY /PLANNER: Tia M. Lewis Mark Rust, AICP Schwabe, Williamson & Wyatt, PC 549 SW Mill View Way, Suite 101 Bend, OR 97702 REQUEST: Comprehensive plan text and map amendment and zone change from Surface Mining to Rural Residential to allow redevelopment of extensively mined site. STAFF CONTACT: Will Groves, Senior Planner I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining 2. Chapter 18.60, Rural Residential zone * Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone 2. Chapter 18.136, Amendments * Section 18.136.020, Rezoning Standards B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions ZC 08-1/PA 08-1 Daniels Group Page 1 of 31 C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.100, Surface Mining D. Statewide Land Use Goals and Oregon Administrative Rules (OAR) Chapter 660 1. Division 12, Transportation Planning Rule (TPR) * OAR 660-12-0060, Plan and Land Use Regulation Amendments 2. Division 15, Statewide Planning Goals and Guidelines 3. Division 23-0180, Mineral and Aggregate Resources II. FINDINGS OF FACT: A. Location: The property is identified on the County Assessor's tax map as 14-12, tax lots 1501, 1502, 1503, part of 1505, and 1600. Tax Lot 1501 has an assigned address of 70420 NW Lower Bridge Way, Terrebonne. B. Zoning and Plan Designation: The site is generally designated "Surface Mining" on the Comprehensive Plan Map, although the exact boundaries are unclear. The mine is included in the county's Goal 5 inventory of significant mineral and aggregate resource sites as Site 461. Tax lot 1501: Tax Lot 1502: Tax Lot 1503: Tax Lot 1505: Tax Lot 1600: 249.1 acres zoned Surface Mining (SM), including 9.8 acres in Landscape Management Combining Zone (LM) 188.1 acres zoned SM, including 82.3 acres zoned LM 64.4 acres zoned SM, including 64.4 acres zoned LM Only 42.1 acres of this 72.47 acre tax lot are subject to this application. The most southerly portion of this lot adjacent to Teater Road and zoned EFU is not subject to the proposed zone change. 10.6 acres total includes 9.6 acres of Exclusive Farm Use 1.0 acre zoned Flood Plain, 10.6 acres zoned LM, and 10.6 acres zoned SMIA C. Site Description: The 556.9 acre site is a geologically unique tract straddling Lower Bridge Way about 6 miles north of Terrebonne, as shown on the Site Map, submitted as Exhibit 1 and on the aerial photograph, submitted as Exhibit 2. To an observer driving Lower Bridge Way, the site is notable for the chalky white appearance of the exposed diatomite layers.' 1 The site has been mined for several materials, including aggregate, sand and diatomaceous earth. Most of the aggregate and sand on the site have been removed, and the area containing those materials have been reclaimed. The diatomaceous earth is described as "a chalky rock, high in amorphous silica content formed from the structures (or diatomite) of tiny fresh- or salt -water organisms called diatoms." See Applicant's Burden of Proof, Exhibit 23, page 1. Diatomaceous earth is variously referred to in the materials as "D.E.," "dicalite," "diatomite," and diatomaceous earth. For ease of reference, I use the term "diatomite." ZC 08-1/PA 08-1 Daniels Group, LLC Page 2 of 31 As illustrated on the submitted Site Map, the subject property includes Tax Lots 1501, 1502, 1503, 1505, 1600, but excludes the EFU-zoned portion of Tax Lot 1505 bordering Teater Road. The subject property can be divided into five geographic regions: eastern, northern, Deep Canyon, western, and central. The land includes four general landscape types: quarry operations (old and recent), hills/buttes (natural and formed), plains (unmined, mostly natural vegetation), and canyons and drainages (natural vegetation, unmined). The eastern region includes tax lot 1503 and 1505, is east of Lower Bridge Way, and extends east along a steep slope, descending approximately 100 feet to the Deschutes River. It is generally level and covered with overburden rock apparently removed from the former diatomite mining operations. The River is lined with wetlands depicted on the National Wetlands Inventory Cline Falls map. The northern region includes tax lots 1501 and 1600, stretches west along the river from Lower Bridge to Deep Canyon, then south along the southern rim of Deep Canyon. The ground is relatively level, except for steep canyons that reach down to the Deschutes and Deep Canyon. North of the diatomite mining area is a relatively undisturbed "plains" landscape with mature juniper. The subject property is separated from the River in this area by Tax Lot 14-12 1509, owned by the Oregon Parks and Recreation Department. Deep Canyon is primarily located on tax lot 1501, and is a small canyon with a spring and a seasonal pond that drain to the Deschutes River. Two unimproved roads cross the canyon. Across the northern bridge is the western region, a flat area formerly mined for diatomite. The central region, includes tax lots 1501 and 1502 and is a quarry landscape. This region comprises about half of the subject property. A thick diatomite layer and stockpiles make up much of this area, which is accessible only with an all - terrain vehicle. This section of subject property is traversed by several unimproved roads. The area was extensively mined for diatomite, and several derelict buildings, including a former processing building, water tower, pump house, concrete foundations, settling ponds and miscellaneous debris piles remain. The applicant has drilled a well in this area, and is proposing to install a pivot sprinkler to the wellhead. The sprinkler is to be used to control dust and provide water for irrigation. The applicant proposes to remove the remaining derelict structures. This reach of the Deschutes River that forms the east and northeast boundary of the site is designated as a Federal Wild and Scenic River and an Oregon Scenic River. A steep bank limits pedestrian access to the river. However, the river is accessible from Lower Bridge Way, and from the public park near the bridge. D. Soils: Approximately 80% of the soils on the site are defined as Class VII and VIII. Steve Wert, a consulting soil scientist, visited the site and conducted preliminary research of the soils present on the site. His findings are summarized in a letter dated October 4, 2006: "According to NRCS maps, the great majority of the property does not even have a "soil type," but is classified as a "land type" called "Unit 97" which is rock and gravel pits. Unit 97 is rated Class VII and VIII, and NRCS will stand by that rating." However, not all of the property is class VII or VIII. The following table summarizes soils data by tax lot. ZC 08-1/PA 08-1 Daniels Group, LLC Page 3 of 31 Approximate Acreage of Soil Type by Tax Lot Tax Lot NRCS Land / Soil Type Soil Classes Approximate acreage2 Zoning 1501 249.1 acres (central /western) 97 81F 138A 138B 71A 71 B 31A 7 & 8 7 & 8 6, not prime 6, not prime 6, prime if irrigated 6, prime if irrigated 6, prime if irrigated 159 acres 24 acres 48 acres 1.1 acres 12.2 acres 1.8 acres 3.3 acres SM, SMIA, LM 1502 97 7 & 8 160 acres SM, SMIA, LM, 188.1 81F 7 & 8 9 acres FP Acres (central) 138A 6, not prime 19 acres 1503 97 7 & 8 42 acres SM, SMIA, LM, 64.4 31B 6, prime if irrigated 18 acres FP, EFU acres (eastern) 71A 6, prime if irrigated 3.4 acres 1505 97 7 & 8 39 acres SM, SMIA, LM, 41.2 acres (eastern) 81F 7 & 8 2 acres FP 1600 138A 6, not prime 8.2 acres SMIA, FP, EFU 10.6 acres (northern) 81F 7&8 2.4 acres TOTAL 7 & 8 79 % = 438 acres 553.4 6, not prime 14% = 76 acres acres 6, prime if irrigated 7% = 39 acres E. Surrounding Zoning and Land Uses: This section describes zoning and land uses within a 2 -mile radius of the center of the subject property. Surrounding zoning in the area of the subject property includes Exclusive Farm Use—Lower Bridge (to the north, west and south), Exclusive Farm Use-Terrebonne (to the east and further to the south), Surface Mining (to the northeast), Rural Residential (to the east and southeast) and Flood Plain associated with the Deschutes River. The Landscape Management combining zone extends along the Deschutes River. The subject property is predominantly surrounded by active agricultural lands, as shown in the 2008 Google Earth aerial photo included in the record. The surface mining zoned land to the northeast appears to be in agricultural production. Properties to the west and southwest and east are sparsely developed with rural residences. Most of the dwellings in the immediate area have been constructed within the last 25 years. Within a 3 -mile radius there are nearly 700 parcels with over 400 residences. 2 Acreages are based on area measurements taken from the Deschutes LAVA GIS. Due to measurement error, these acreages may not equal the deed or Assessor's acreages for the tax lots. ZC 08-1/PA 08-1 Daniels Group, LLC Page 4 of 31 F. Mining History: The subject property has a long, inconsistently documented mining history. Diatomite mining began on the property prior to the 1920s. Large scale production began in 1936. The Great Lakes Carbon Company mined the property from 1944 to 1961. The mining history between 1966 and 1980 is unclear. The Oregon Department of Geology and Mineral Industries (DOGAMI) file for this site begins in 1980. That file indicates that multiple companies have mined the site, mostly for diatomite but also for aggregate. Although multiple mining permits were issued over the years, various companies were cited for violating environmental laws, mining permits, or operating without permits. By 1980 Deschutes Valley Farms owned the site and leased it to Northwest Diatomite. In January 1982, DOGAMI exempted Mid -Oregon Ready Mix from reclamation requirements because the land was a mined prior to the effective date of the reclamation rules. Mid -Oregon Crushing and Mid -Oregon Ready Mix were extracting aggregate by 1985. Various diatomite and gravel extraction activities occurred in the subsequent years. By 1994, E.A. Moore was extracting, screening and crushing gravel on the eastern portion of the site. Several DOGAMI inspections occurred over the years, which found reclamation plans being implemented. By 2006, DOGAMI was ready to close the file on the site. A Limited Exemption Closure Plan was submitted in late July, 2006. On July 31st DOGAMI closed the file on the site. Due to incomplete DOGAMI records and an apparent history of unpermitted mining, the total quantity of aggregate and mineral removed from the site during over 80 years of mining is unclear. G. Zoning History: In 1985, 339 acres of the subject property was rezoned from Surface Mining Reserve to Surface Mining. The applicants apparently anticipated that diatomite mining would become economically viable again because a processing plant was being constructed in Malheur County, which would enable the applicant to export it. The Hearings Officer found that there was little local demand for diatomite, but that export of the product after off-site processing partially justified the rezone. In 1988, the Deschutes County Goal 5 Aggregate Inventory identified the site as an aggregate resource (as opposed to a mineral resource, which includes diatomite) of 350,000 cubic yards. In the ESEE analysis for site 461, the Board identified the key values that form the basis for the application of SM zoning to the mine site. These include the importance of aggregate resources to development in Deschutes County, the value to the County economy terms of materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site, and that the site is located near a major roadway for highway maintenance and construction jobs. Relevant Previous Land Use Decisions: CU -74-156 — This record contains plan information for a solid and liquid waste disposal site on the subject property. It appears that this application was approved, as solid and liquid waste storage occurred on the property. A variety of wastes, including hazardous wastes were stored on the site and subsequently removed. This is discussed more fully later in the findings. MP -80-96 — Divided modern tax lots 1503 and 1505, as Parcel 2, and 1506, as Parcel 3 from the remainder of the mining site. ZC 08-1/PA 08-1 Daniels Group, LLC Page 5 of 31 ZC-85-3 - A zone change from surface mining reserve to surface mining on tax lots 1501, 1502, 1600, and 704. This decision did not apply to the entire site, but was limited to 339 acres. Condition 3 of this decision required a reclamation plan. SP -85-23 — A site plan to allow surface mining, aggregate mining, and rock crushing on tax lots 1501, 1502, 1600, and 704. This decision included reclamation specifications, The applicant has stated that the topsoil is stockpiled and will be replaced on the area mined approximately 12 inches deep. The applicant proposed to motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and mulch. The applicant also proposes to plant evergreens for shade and windbreaks on the site. This is a summary of the applicant submitted reclamation plan, attached as Exhibit C to the Hearings Officer Decision in SP -85-23. This required reclamation was not completed. Condition 1 of SP -85-23 required an updated reclamation plan to include measures to prevent materials from eroding into the Deschutes River. There is no evidence that topsoil was stockpiled for reclamation, and staff has been unable to locate the updated reclamation plan. ESEE Analysis #461 — On October 24, 1989 the Board of County Commissioners rezoned the remainder of the 660 -acre site (comprised of modern tax lots 1501, 1502, 1503, and 1507) to SM. This decision contains information about the quality and quantity of aggregate and mineral resources on the property. MP -90-74 — Divided historic tax lots 1501, 1507 and 1508 into two legal lots of 66 and 254 acres. All of the above files are incorporated into this record by reference. H. Proposal: The applicant requests approval of a plan amendment to change the designation of the subject property from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and to remove Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The applicant also requests approval of a zone change from SM and EFU-LB to RR -10 for the subject property. The removal of the SM zoning on the subject property also would remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on property located within one-half mile of the SM Zone. If these applications are approved, the applicant plans to redevelop the site as a residential planned unit development with up to 74 dwellings. The site map submitted as Applicant's Exhibit 1 depicts areas presently zoned Flood Plain (FP) as part of this rezoning proposal. Discussions with the applicant have clarified that this proposal is not intended to rezone FP zoned lands. Public/Private Agency Comments: The Planning Division mailed notice to several agencies. Those comments are summarized in the staff report, or are included in the record. To the extent the comments pertain to the applicable approval criteria, they are addressed in the findings. ZC 08-1/PA 08-1 Daniels Group, LLC Page 6 of 31 J. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 750 feet of the subject property. In addition, notice of the public hearing was published in the Bend Bulletin, and the subject property was posted with a notice of proposed land use action sign on February 2, 2008. Numerous residents submitted written testimony and evidence, and provided oral testimony at the public hearing. The residents identified concerns regarding dust (including health concerns specific to diatomite dust), chemical contamination of the site, radiological contamination of the site, site reclamation, traffic impacts, aesthetic impacts of the existing mine and structures, water quality, water rights, and aesthetics of future development. Public comments have also questioned if a new ESEE analysis or Goal 5 exception would be required. These comments are more fully addressed in the findings below. K. Lot of Record: The applicant submitted evidence regarding the status of the tax lots incorporated into these applications. The evidence shows that the property is comprised of legal lots of record created through deed or partition. III. CONCLUSIONS OF LAW: PLAN AMENDMENTS The applicant requests the following: (1) approval of a plan map amendment from Surface Mining and Agriculture to Rural Residential Exception Area, and (2) removal of Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The county plan and development code do not set out a process for quasi-judicial amendments to the plan map and text; it appears that the county relies on consistency with the Statewide Land Use Goals and ORS 197.610 through 197.625 (post -acknowledgement plan amendment procedures) to provide both the process and the substantive review criteria. Those criteria are addressed in Section C. While there are no substantive approval criteria in the plan, it is useful to review the plan designation history of the subject property, and address the parties' arguments regarding plan policies at the onset. 1, Plan Designation History. In the late 1980s the county undertook a lengthy process to inventory its mineral and aggregate resources, to develop a plan to preserve and protect those resources, and to amend the county's comprehensive plan and zoning ordinance to adopt the inventory and measures to protect sites. These plans were adopted through several ordinances and included listing Site 461 on the inventory of significant sites, adoption of a site-specific ESEE (Economic, Social, Environmental and Energy) analysis for Site 461, and adoption of ordinances designating the subject property for surface mining, on October 24, 1989. 2. Current Plan Designation. The subject property is currently designated SM and AG (Tax lot 14-12 1600 only). ZC 08-1/PA 08-1 Daniels Group, LLC Page 7 of 31 3. Applicable Comprehensive Plan Provisions. The following plan policies are relevant to the proposed plan amendment from Surface Mining and Agriculture to Rural Residential Exception Area. A. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.24, Rural Development Section 23.24.020, Goals. A. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County. FINDINGS: The subject property is currently an un -reclaimed mine site. The proposed plan amendments by themselves will not alter open spaces, scenic values, or spoil rural character, but instead will create an opportunity to redevelop and mitigate existing adverse conditions of the site following mining and industrial operations. The present condition of the site adversely affects the scenic value of the area with rusting structures and extensive unreclaimed mine areas. Any future development, not included in that application, would be required to conform to development standards for Rural Residential (RR -10) zoned lands, that are designed to preserve and enhance the open spaces, rural character, and scenic values of the County. Moreover, future development of any structures in the LM zone will be subject to individual site plan review to ensure the protection of the scenic values associated with the Deschutes River. One of the neighbors commented that the proposal is inconsistent with this policy because a future planned development proposal could cluster dwellings along the top of the riverbank. The neighbor asserted that clustered residential development is inconsistent with the local residential development pattern, and therefore a more appropriate zoning designation is EFU- 20.3 The hearings officer finds that there is no such designation in the zoning code, and the evidence shows that the site does not contain agricultural soils. The proposed RR -10 zoning designation would maintain the residential density that occurs within the area, and if a planned unit development is proposed, the layout of the lots can be arranged to minimize their visual impacts on neighboring property owners. The removal of Site 461 from the County's surface mining inventory would preclude access to diatomaceous earth and aggregate materials on the site. The applicant has argued that there is insufficient remaining aggregate to economically extract, and there is little need for diatomite in modern industrial manufacturing. Neighbors dispute this finding, arguing that there are viable industrial uses for diatomite, and that the applicant's present desire to convert the land to residential use does not alter the significance of the site for diatomite production. These issues are discussed in greater depth below. B. To guide the location and design of rural development so as to minimize the public costs of facilities and services, to avoid 3 It may be that the neighbor is referring to the MUA zone, a multi -use zone that permits subdivisions and planned unit residential developments at 7.5 acre densities. See DCC 18.32.040(A)(minimum lot size in MUA district is 10 acres, except planned and cluster developments shall be allowed an equivalent density of [7.5] acres.) The proposed RR -10 zoning designation permits development at similar densities. Therefore, it appears that the development limitations proposed by the neighbors does not currently exist in the code. ZC 08-1/PA 08-1 Daniels Group, LLC Page 8 of 31 unnecessary expansion of service boundaries, and to preserve and enhance the safety and viability of rural land uses. FINDINGS: The applicant argues that the proposal is consistent with this goal because a future developer, and not the public, will bear costs of extending facilities to the property. Staff and the neighbors disagree that the extension of public services is the only consideration under this goal, arguing that it also requires a showing that the proposed rural residential uses "preserve and enhance the safety and viability of rural land uses." The neighbors argue that unless reclamation and remediation measures are included in this approval, neither the neighbors nor the future residents of the site can be assured that the site is safe for development or that development on their properties will remain viable. Public Facility/Service Availability and Capacity This goal requires the county to thoughtfully consider development locations to minimize urban sprawl and to ensure that public facilities and infrastructure are adequate to accommodate anticipated development. This includes consideration of service availability and capacity. Low density residential development allowed in the RR -10 zone does not require urban services such as sewer and water, as those needs can be served by on-site systems. Service boundaries will not be expanded. Public services, such as police and fire, already serve the area. With respect to these facilities and services, the proposed redesignation will have little to no effect. The site borders on Lower Bridge Way, a publicly maintained county road. The applicant's traffic study concludes the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. The applicant's December 2007 traffic study assumed "a reasonable worst-case scenario under the current [SM] plan and zoning designation," and "a reasonable worst-case scenario under the proposed [RR -10] plan and zoning designation." In that study, Kittleson and Associates assumed that mining activities on the site would generate 26 peak hour trips, and that residential uses (based on 55 dwelling units) would generate 55 peak hour trips, for total increase of 31 peak hour trips. Based on the December 2007 study, and on his assumption that the reasonable worst-case rural residential development scenario involved the development of 74 dwelling units in a PUD, the county transportation planner concluded the proposal would have a significant effect on transportation facilities as defined by the Transportation Planning Rule (TPR) at Oregon Administrative Rule (OAR) 660-012-0060(2)(c). Thus, if the development is approved, the applicant will need to provide mitigation sufficient to avoid further degradation of the intersection as required by OAR 660-012-0060(3)(c). In the alternative, the planner recommended that the applications be denied, for failing to satisfy transportation -related approval standards. In response to this preliminary review, the applicant provided evidence that the proposed plan amendment/zone change will not significantly affect a transportation facility because the number of vehicle trips that could be used in mining the site generates more than the peak hour trips that could be generated by rural residential use. Mason v. City of Corvallis, 49 Or LUBA 199 (2005)(if the number of vehicle trips from the proposed development is less than the number of vehicle trips allowed under current zoning, the causative element necessary to find a "significant effect" under the TPR is missing.) In support of this contention, the applicant initially relied on a ZC 08-1/PA 08-1 Daniels Group, LLC Page 9 of 31 transportation impact study conducted by Eugene Sand and Gravel for its Delta Road site.4 Based on the Delta Road evidence the proposed residential use would generate 74 peak hour trips, compared to 89 peak hour trips generated from the mining activities. After reviewing this revised analysis, the county transportation planner expressed concerns regarding the relevancy of an urban aggregate processing facility to the subject property. Thus, on May 20, 2008, the applicant submitted a second revised analysis, using more rural locations in Deschutes and Crook Counties. According to this second revised study, the mining activities on all of the comparison sites would be still be greater than the proposed residential use. The applicant seeks to rezone this property in part because it is depleted of economically viable mineral and aggregate resources. Therefore, if these applications are denied, the site could be used for stockpiling materials, for processing materials (including washing and crushing) and to site an asphalt batch plant. The evidence shows that peak hour rates for these activities vary widely, in part because they are dependent on outside construction schedules. Both ODOT and the county transportation planner question these assumptions, noting that nearby mining operations generate between 16 and 26 peak hour trips, volumes that are generally consistent with the historical trip generation from mining at the site, and consistent with the applicant's December 2007 assumptions. Both the state and the county argue that it is highly unlikely that the types of mining and processing that could occur on the site would generate the assumed peak hour trips upon which the applicant relies. The hearings officer notes that for both the applicant and the transportation officials, the consequence of a "significant impact" determination is costly. For the applicant, it means either amending the county's transportation plan to address the additional trips, or constructing improvements to ensure that the failing turning movement is addressed. For the county and ODOT, it means the difference between planning (and financing) to address other deficiencies, and addressing deficiencies that are exacerbated by a particular, unanticipated development. The hearings officer concludes that the greater weight of the evidence supports ODOT and the transportation planner. The likely trip generation from mining the site is very use and project specific, and is likely to be more sporadic than the anticipated trips from residential development on the site. Given this uncertainty and the historic trip generation for mining related uses in the area, the hearings officer concludes that the applicant has not met its burden of demonstrating that the proposal will not significantly affect a transportation facility within the meaning of the TPR, county code and this policy. In the alternative, the applicant asserts that it is possible to amend the county's transportation systems plan (TSP) to ensure that the proposed plan amendment is consistent with the plan and the TPR, and accordingly is consistent with this policy. The proposal is evaluated against standards and criteria that are in effect at the time the application is deemed complete. ORS 215.427. The applicant cannot rely on future amendments to ensure present consistency. Accordingly, the hearings officer concludes that if the board of county commissioners concludes 4 The applicant based its revised analysis on the use of the site for a variety of mining related activities, including limited extraction and stockpile, batch plant and crushing operations. According to the applicant, such a comparison is appropriate, because the site may be used for mining -related activity, if the property is not re -designated for rural residential uses. The applicant concedes that this comparison is somewhat flawed, as there is a vast disparity in the types of activities that can occur at mining sites, with a corresponding variety in the number of peak hour trips generated by those activities. Nevertheless, the applicant asserts that this is a "reasonable worst-case development scenario," because the applicant holds mineral rights for a nearby site, major transportation facilities are planned for construction in the area, and the applicant will need to find some economic use for the site. ZC 08-1/PA 08-1 Daniels Group, LLC Page 10 of 31 that the proposal will generate more trips than uses under the existing zoning, the applicant has not demonstrated that the impact of the proposed change in plan and zoning designations will minimize the cost of transportation facilities to the site. "To Preserve and Enhance the Safety and Viability of Rural Land Uses" As noted above, opponents argue that before this site is rezoned for rural residential uses, the applicant must demonstrate that it is safe for those residential uses, and that the safety of other local uses, including residential and agricultural uses are preserved and/or enhanced. The neighbors expressed concerns that hazardous wastes from mining activities since 1985 have not been adequately addressed, and that the 1984-85 remediation and removal of hazardous and radioactive wastes were inadequate. Further, the neighbors argue that the applicant has not yet demonstrated that there is sufficient water to accommodate the proposed site reclamation and provide domestic water for the number of dwelling units that could be developed on the property. In addition, the neighbors argue that there is no evidence that the applicant will take steps to address water contamination from the remaining mining materials. Finally, the neighbors insist that this site will not be safe for residential use or preserve the viability of existing rural residential uses in the area until the diatomite is fully contained. The hearings officer disagrees with staff and opponents that this goal requires that prior activities on the site be remedied before the site can be rezoned for rural residential uses. The proposed map designation is consistent with other rural residential zoning in the area. In addition, if the mineral and aggregate resources are no longer needed/available, the site cannot be put to resource use. It includes few agricultural and no forest soils, and there is no dispute that the former mine site is not suitable for farm or forest activities. In addition, permitting rural residential development on the property will certainly be more compatible with neighboring residential uses than mining. Particular development concerns, including water quality and quantity, dust suppression and waste remediation, can be addressed in conjunction with a particular development plan for the site. The hearings officer concludes that the proposal is consistent with this goal. C. To provide for the possible long-term expansion of urban areas while protecting the distinction between urban (urbanizing) land and rural lands. FINDINGS: The unincorporated community of Terrebonne is located approximately seven miles southeast of the site. The proposed zone change and plan amendment would not preclude the possible long-term expansion of the community boundaries, although such expansion to the subject property is not foreseeable at this time. Any future development, not included in that application, would be required to conform to development standards for Rural Residential (RR -10) zoned lands, that are designed to protect the distinction between urban (urbanizing) land and rural lands. Section, 23.24.030, Policies. Residential/recreational development. 1. Because 91 percent of the new County population will live inside an urban area, with only 3,039 new rural lots required, and in light of the 17,377 undeveloped rural tracts and Tots as well as the energy, environmental and public service costs, all future rural development will be stringently reviewed for public need before approval. As a guideline for review if a ZC 08-1/PA 08-1 Daniels Group, LLC Page 11 of 31 study of existing lots within three miles of the proposed development indicates approximately 50 per cent or more of those lots have not had structures constructed thereon, then the developer shall submit adequate testimony justifying additional lots in that area. This will permit development in areas where such is needed (other policies considering energy, public facilities, safety and other development aspects shall also be considered) while restricting future division in areas where many undeveloped lots already exist. FINDINGS: It is not entirely clear whether this policy pertains to a proposal to rezone property from SM to RR -10, as a rezoning is not "development" per se, and development of this site will require further review. To the extent this policy does apply, staff analyzed existing lots within three miles of the subject property and found approximately 58 percent of those Tots have been developed with structures: Zone Parcels Parcels with at least one structure EFUTE 92 33 EFUSC 16 3 EFULB 113 54 MUA10 388 292 RR10 75 23 SM 9 0 Total 693 405 58% The applicant need not provide additional justification for its proposal to redesignate the site for rural residential uses. Overall, the proposal is not inconsistent with this policy. 2. Chapter 23.60, Transportation a. Section 23.60.010, Transportation * * * The purpose of DCC 23.60 is to develop a transportation system that meets the needs of Deschutes County residents while also considering regional and state needs at the same time. This plan addresses a balanced transportation system that includes automobile, bicycle, rail, transit, air, pedestrian and pipelines. It reflects existing land use plans, policies and regulations that affect the transportation system. FINDINGS: This goal is implemented through the provisions of DCC 17.16.115(I)(1) and (2), and the TPR. As noted above, the proposal is not consistent with either the county development code or the TPR because the re -designation will significantly affect a transportation facility and the applicant has not addressed how those effects will be off -set by changes in the TSP or improvements to the Lower Bridge Way/U.S. 97 intersection. Therefore, the proposal is not consistent with this standard. 3. Chapter 23.68, Public Facilities a. Section 23.68.020, Policies ZC 08-1/PA 08-1 Daniels Group, LLC Page 12 of 31 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban and rural services. In this way public services may guide development while remaining in concert with the public's needs. 3. Future development shall depend on the availability of adequate local services in close proximity to the proposed site. Higher densities may permit the construction of more adequate services than might otherwise be true. Cluster and planned development shall be encouraged. 9. New development shall not be located so as to overload existing or planned facilities, and developers or purchasers should be made aware of potentially inadequate power facilities in rural areas. FINDINGS: These policies address public facilities and services that may be needed to serve residential uses on the site.5 With the exception of the local road system, future development is unlikely to overload existing or planned public facilities. Concerns regarding transportation facilities are discussed above. The existing rural residential development in the area indicates that public facilities and services are available. Future development of the property can be served by private wells and septic systems. Utility lines and facilities can be located so as not divide any existing farm units. 4. Chapter 23.88, Agricultural Lands Section 23.88.020, Goal. To preserve and maintain agricultural land. FINDINGS: As noted above, this proposal would result in the conversion of approximately 39 acres of "high value if irrigated" farmland to rural residential use.6 It is unclear if residential use on the property would increase or decrease adverse impacts to nearby agricultural operations. Impacts imposed on agricultural uses by adjacent residential uses typically include vandalism, trespassing, disturbance to livestock, and dust. However, development of the project is likely to result in better dust suppression, to the benefit of nearby agricultural operations. Overall, the hearings officer concludes that the proposal is consistent with these policies because it absorbs some of the pressure to develop on agricultural lands. 5 The applicant does not propose to use or install a public water system to serve residential development on the property, and OAR Chapter 660, division 11, precludes the establishment or extension of urban water or sewer systems outside of urban growth boundaries or existing service areas. Therefore, the potential availability of quality domestic water is not relevant under these goals. The applicant argues that the vast majority of the site does not contain agricultural soils and therefore a Goal 3 exception is not needed. The hearings officer agrees. ZC 08-1/PA 08-1 Daniels Group, LLC Page 13 of 31 a. Section 23.88.030, Zoning Policies. 1. All lands meeting the definition of agricultural lands shall be zoned Exclusive Farm use, unless an exception to State goal 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential. 2. Lands not meeting the agricultural lands definition but having potential for irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon, although presently without water, shall receive exclusive farm use zoning. FINDING: As explained at length below, the subject property, as a whole, is not "agricultural land." The property does not have potential for irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon. A. OAR 660, Division 33, Agricultural Land. 660-033-0020 (1)(a) "Agricultural Land" as defined in Goal 3 includes: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I -VI soils in Eastern Oregon; (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. (D) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed; FINDINGS: The threshold inquiry for determining whether land is "agricultural" is whether the soils are predominately class 1 -VI. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951, 955, 618 P2d 986 (1980); Flury v. Land Use Bd. of Appeals, 50 Or App 263, 267 (1981). The evidence demonstrates that the subject property does not qualify as either high value agricultural or forest land. Soil studies conducted by Wert & Associates confirm that approximately 20% of soils are class VI; in fact only 5% of those are considered high value with irrigation. Staff reaches a similar conclusion, estimating that approximately 21% of soils are class VI, and only 7% of those are considered high value with irrigation. The record demonstrates the subject property is not irrigated and is not necessary to permit farm practices on adjacent agricultural lands, and the soils are not intermingled with agricultural soils within a farm unit. The Forage Report concludes that the property "is not suited for profitable, accepted agricultural use." Because a vast majority of the property contains class VII & VIII soils, and the poorer soils are not intermixed with higher class soils within an existing farm unit, it falls outside ZC 08-1/PA 08-1 Daniels Group, LLC Page 14 of 31 of the default category of "agricultural lands" set out in Goal 3 and OAR Chapter 660, division 33. The hearings officer notes that is site was originally designated for Surface Mining in the county's comprehensive plan and zoned Surface Mining Reserve. The site was rezoned SM in the 1985. The hearings officer finds that the only "resource" designation on this site is for mining, a Goal 5 use, and not farm or forest, Goal 3 and 4 uses, respectively. For these reasons, the subject property does not constitute "agricultural land" as defined in Goal 3, is not subject to protection under Goal 3, and therefore the proposed plan amendment and zone change do not require an exception to Goal 3. B. OAR 660, Division 6, Goal 4 Forest Land. Goal 4 defines "forest land" as follows: Forest lands are those lands acknowledged as forest lands as of the date of adoption of this goal amendment. Where a plan is not acknowledged or a plan amendment involving forest lands is proposed, forest land shall include lands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources. FINDINGS: The subject property is not and never has been zoned for forest use. The detailed soil study prepared by Steve Wert included an analysis of the subject property's soils for production of merchantable tree species, and shows the soil units identified on the subject property are not listed in the NRCS' Woodland Productivity soils table, and therefore are not considered suitable for the production of wood crops by the NRCS. Finally, the record indicates the predominant tree species on the property are juniper trees which historically have not had commercial value and have not been harvested commercially either on the subject property or on nearby lands. Accordingly, OAR Chapter 660, division 6 does not apply. 5. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality a. 23.96.020, Goals. 1. To conserve open spaces and areas of historic, natural or scenic resources. FINDINGS: The site abuts the Deschutes River, a designated federal Wild and Scenic River and Oregon Scenic River. The river and property abutting it are subject to the Landscape Management Combining Zone and that designation will not change with the proposed designation to Rural Residential Exception Area. To the extent that rural residential development may affect open spaces and areas of historic, natural or scenic resources, the hearings officer finds that the proposed designation will better preserve those resources than the existing mining designation. For instance, much of the mined area on the site is exempt from reclamation. Unless the site is put to some other use, the existing conditions will remain. ZC 08-1/PA 08-1 Daniels Group, LLC Page 15 of 31 In addition, the density standards for the proposed RR -10 zoning will ensure that development on the site will preserve significant areas of open space on the property, even if the site is developed with a PUD. Therefore, the hearings officer concludes that the proposal is consistent with this policy. 2. To maintain and improve the quality of the air, water and land resources of Deschutes County. FINDINGS: As noted above, this site has a long history of industrial use, and some of those uses have resulted in significant environmental impacts. Those impacts include dust from the diatomite, hazardous and radioactive waste disposal and remediation, and violations of environmental quality regulations. Neighbors expressed concerns regarding the impact of the proposal on water quantity and quality, arguing that the water needed to reclaim the site will adversely affect the area's water supply. Those issues are addressed as follows: Diatomite dust. According to the applicant, the diatomite on the property is from fresh -water diatoms. The applicant supplied testimony and evidence that shows that fresh -water diatomite contains a smaller percentage of crystalline silica, the type of silica that has been identified as a health hazard if inhaled in quantity. The applicant argues that this type of diatomite poses no more risk than other dust in the area. The applicant also argues that before this site is redeveloped for residential uses, the diatomite will be graded and seeded to prevent dust from blowing from the site to neighboring properties. The neighbors expressed reservations about this assertion, arguing that the cost and feasibility of that type of reclamation is unlikely to be recouped as part of development on this site.' The evidence shows that blowing dust has been an issue for many years, although recent grading activities has exacerbated the situation. The recent activities led the Department of Environmental Quality (DEQ) to issue a notice of violation. In response to the notice, the applicant began using an existing well to water a portion of the site to minimize dust. The applicant is also proposing to implement best management practices to ensure that blowing dust during development is minimized. These measures are adequate to assure that local air quality is maintained. Water quality/quantity. According to the evidence in the record, seven wells have been drilled on the site. These wells are proposed to be used for dust suppression, and may be converted to domestic wells in the future. The applicant proposes to develop individual, shared or group ' The opponents argue that the diatomite has been converted to crystalline silica during through an on- site manufacturing process. They cited evidence showing that crystalline silica is hazardous to worker health, and argued that until the diatomite at the site has been removed or covered with top soil, there is no guarantee that existing or future residents' health will not be affected. They further argue that diatomite doesn't grow much, and unless the applicant plans to import a significant amount of topsoil, it is unlikely that the reseeding efforts will be successful. While the former evidence tends to support a finding that processing of diatomite at the site needs to be regulated, the evidence of the health effects of freshwater diatomite on neighboring property owners is not sufficient to undermine the applicant's evidence that such effects are limited. With respect to the viability of re -vegetation of the site, the hearings officer agrees that soil or soil amendments may be necessary to ensure that vegetation on the site will survive. Undoubtedly, future development on the site will require a landscaping/vegetation plan to address long term plant viability. ZC 08-1/PA 08-1 Daniels Group, LLC Page 16 of 31 wells (serving up to three Tots) as part of its residential development. The residents may use up to 15,000 gallons per day for domestic and yard irrigation (up to one-half acre) and remain exempt from water rights regulation. Similarly, wells developed to serve three or fewer dwellings are exempt from water quality standards. Neighbors expressed concerns regarding potential water contamination from past industrial uses, and also argue that the introduction of 17 or more new wells (assuming 72 dwelling units, and at least one well per three dwelling units minus the seven existing wells) could significantly affect their water quality and quantity. The hearings officer finds that this goal does not directly address the availability (or quantity) of domestic water supplies. Rather, it is intended to assure that quality of air, water and land resources is maintained and improved. Here, the evidence (including evidence from testing of nearby community water wells) shows that existing water quality in the area is adequate, and that past activities on the site have not affected nearby well water quality. With respect to water quality at the site, the hearings officer finds that the question can be better addressed at the time a development proposal is submitted for the site. At this point, the evidence shows that the proposed plan amendment/zone change will not have any effect on water quality. Erosion/Fill. One of the neighbors expressed concerns regarding slope stability at the site, asserting that new grading may undermine the slope along the edges of the river bank. Other neighbors expressed concerns that the fill used for residential foundations be adequate for the purpose, noting that a school in Deschutes County is sinking, in part because the fill used by the contractor was not stable enough to accommodate the building. The evidence shows that diatomite mining occurred closer to the center of the site, and that the aggregate mining has ceased. There is no evidence that past mining has undermined slope stability along the river edge. The applicant has proposed to grade some of the taller diatomite mounds to reduce the areas susceptible to blowing dust. As for future development, land division and development standards impose setbacks from the edge of the bank, require compliance with grading permits, and require that needed fill be appropriate for the intended purpose. The hearings officer concludes that these measures are adequate to assure that development on the site will not adversely affect air, water or land quality. Dumping. The site was an approved waste facility in the mid-1970s, and consequently, sludge, radioactive materials as well as standard solid waste was brought to the site during that time. According to the applicant, the dumping grounds were limited to the central portion of the site, near the former lagoons, and included 55 -gallon drums filled primarily with caustic sand. The site was subject to a DEQ -mandated clean up, which was completed by January 1985. The evidence shows that all of the materials located at the site prior to 1985 were removed to approved hazardous waste disposal sites, including Arlington and the Hanford Reservation. According to Maul Foster and Alongi, Inc., the applicant's environmental consultant, the standards used to evaluate the clean-up was based on one of two standards "clean up to the maximum extent practical" or "clean up to background conditions." Maul Foster and Alongi, Inc. representatives testified that these standards are higher than the current risk-based standards, which permit less comprehensive clean up where the site will be used for industrial purposes than is required for sites that will be redeveloped for residential uses.8 With respect to spills or activities that have occurred since that time, including disposal of mining solvents and industrial 8 The hearings officer realizes that a question remains as to whether the 1985 standards (based on 1985 technology) is equivalent to the clean-up standards that would be imposed if the site was subject to current standards for residential re -development. The hearings officer concludes that this goal requires a demonstration that the site meets applicable DEQ clean-up standards, which in this case, are the 1985 standards. The applicant has met its burden of demonstrating that those standards have been satisfied, therefore, the proposed plan amendment and zone change are consistent with these standards. ZC 08-1/PA 08-1 Daniels Group, LLC Page 17 of 31 F i burning, the evidence shows that the violations have been addressed. The hearings officer concludes that overall, the evidence supports a finding that the site has been remediated and that residential development can safely occur on the property. However, the hearings officer also concludes that it is appropriate to include documentation of the site history and clean-up efforts in the CC&Rs that apply to future development to ensure that if in the future questions arise about activities on the site, the residents have a ready source of information available to them. Based on these findings, the hearings officer concludes that residential development of the property will not significantly impair air, water or land quality in the area. a. Section 23.96.030, Policies 10. As part of subdivision or other development review, the County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those resources to the County while considering the public need for the proposed development. FINDINGS: This plan policy is not applicable to the proposed plan amendment because the applicant is not seeking subdivision approval or development review. If the plan amendment and zone change are approved, then future development will need to satisfy this standard. B. Oregon Administrative Rules 1. OAR 660, Division 12, Transportation Planning Rule (1) Where an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation would significantly affect an existing or planned transportation facility, the local government shall put in place measures as provided in section (2) of this rule to assure that allowed land uses are consistent with the identified function, capacity, and performance standards (e.g. level of service, volume to capacity ratio, etc.) of the facility. A plan or land use regulation amendment significantly affects a transportation facility if it would: (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); (b) Change standards implementing a functional classification system; or (c) As measured at the end of the planning period identified in the adopted transportation system plan: (A) Allow land uses or levels of development that would result in ZC 08-1/PA 08-1 Daniels Group, LLC Page 18 of 31 types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; (B) Reduce the performance of an existing or planned transportation facility below the minimum acceptable performance standard identified in the TSP or comprehensive plan; or (C) Worsen the performance of an existing or planned transportation facility that is otherwise projected to perform below the minimum acceptable performance standard identified in the TSP or comprehensive plan. (2) Where a local government determines that there would be a significant effect, compliance with section (1) shall be accomplished through one or a combination of the following: (3) (a) Adopting measures that demonstrate allowed land uses are consistent with the planned function, capacity, and performance standards of the transportation facility. (b) Amending the TSP or comprehensive plan to provide transportation facilities, improvements or services adequate to support the proposed land uses consistent with the requirements of this division; such amendments shall include a funding plan or mechanism consistent with section (4) or include an amendment to the transportation finance plan so that the facility, improvement, or service will be provided by the end of the planning period. (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (d) Amending the TSP to modify the planned function, capacity or performance standards of the transportation facility. (e) Providing other measures as a condition of development or through a development agreement or similar funding method, including transportation system management measures, demand management or minor transportation improvements. Local governments shall as part of the amendment specify when measures or improvements provided pursuant to this subsection will be provided. Notwithstanding sections (1) and (2) of this rule, a local government may approve an amendment that would significantly affect an existing transportation facility without assuring that the allowed land uses are consistent with the function, capacity and performance standards of the facility where: (a) The facility is already performing below the minimum acceptable performance standard identified in the TSP or comprehensive plan on the date the amendment application is submitted; ZC 08-1/PA 08-1 Daniels Group, LLC Page 19 of 31 b) In the absence of the amendment, planned transportation facilities, improvements and services as set forth in section (4) of this rule would not be adequate to achieve consistency with the identified function, capacity or performance standard for that facility by the end of the planning period identified in the adopted TSP; (c) Development resulting from the amendment will, at a minimum, mitigate the impacts of the amendment in a manner that avoids further degradation to the performance of the facility by the time of the development through one or a combination of transportation improvements or measures; (d) The amendment does not involve property located in an interchange area as defined in paragraph (4)(d)(C); and (e) For affected state highways, ODOT provides a written statement that the proposed funding and timing for the identified mitigation improvements or measures are, at a minimum, sufficient to avoid further degradation to the performance of the affected state highway. However, if a local government provides the appropriate ODOT regional office with written notice of a proposed amendment in a manner that provides ODOT reasonable opportunity to submit a written statement into the record of the local government proceeding, and ODOT does not provide a written statement, then the local government may proceed with applying subsections (a) through (d) of this section. FINDINGS: The TPR applies to these applications because they involve an amendment to an acknowledged plan. The proposed plan amendment would change the designation of the subject property from SM and EFU-LB to RREA, and the applicant has requested approval of a zone change from SM and EFU to RR -10 for the subject property. The applicant's December 2007 traffic study finds the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. The County sets a standard of Level of Service (LOS) D for existing roads while the applicable ODOT volume/capacity (V/C) ratio is 0.70 for the highway and 0.80 for the side street based on functional classification and posted speed. An ODOT project planned for 2009 will reconfigure the Lower Bridge Way/97 and 11th Street/97 intersections. While this will improve the operations of these intersections, it will not address the capacity issue, as the project focuses more on storage issues on the side streets. As noted above, the applicant submitted revised traffic analyses, based on more intensive mining -related uses on the site. As ODOT and the county transportation planner note, however, those assumptions are not related to either historic trip generation from mining at the site, or from comparison facilities in the vicinity. Rather they are an amalgamation of several uses, and assume (with little empirical support) that those uses will generate peak hour trips that exceed the estimated peak hour trips generated from 74 dwelling units that could be developed on the site under the proposed zoning and plan designations. These assumptions are not supported by substantial evidence in the whole record. Even if the applicant conceded that its proposal would exceed the performance standards for the Lower Bridge Way/U.S. 97 intersection, the applications could nevertheless be approved, if the applicant concurrently provided a proposal to address the deficiency in one of the ways ZC 08-1/PA 08-1 Daniels Group, LLC Page 20 of 31 described in OAR 660-012-0060(3). However, the applicant has not provided a proposal to address those alternatives. Therefore, the hearings officer concludes that the proposal does not satisfy the TPR. 2. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDINGS: Goal 1, Citizen Involvement. The proposed plan amendment satisfies this goal because the Planning Division provided public notice of the applicant's proposal through individual mailed notice to affected property owners, posting of the subject property with a notice of proposed land use action sign, and published notice of the public hearing in the "Bend Bulletin" newspaper. In addition, two public hearings will be held before the proposed plan amendment is approved, one before the Hearings Officer and one before the Deschutes County Board of Commissioners (board). The staff report and Hearings Officer decision will provide the public with information concerning the proposed plan amendment. Goal 2, Land Use Planning. The proposal has been reviewed in accordance with the county's acknowledged planning review processes, and will be subject to at least two public hearings. Further, no Goal 2 exceptions are required. The proposal is consistent with this goal. Goal 3, Agricultural Lands. The property contains few agricultural soils and has not been cultivated for crops or livestock. The site is not "agricultural" within the meaning of Goal 3. Goal 4, Forest Lands. This goal is not applicable because the subject property is not zoned or designated for forest use. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. According to the applicant, the site no longer contains aggregate in sufficient quantities to qualify as a "significant site" under Goal 5 and OAR Chapter 660, division 23. The evidence shows that the majority of the aggregate resource is located on the southeastern portion of the site, south of Lower Bridge Way. The site has been closed in accordance with DOGAMI regulations, and the evidence shows that little of the resource remains. The parties apparently agree that vast quantities of diatomite remain, however, they dispute whether the materials are needed for industrial or construction uses in the near future, or that other locations are available to supply long term future needs. Therefore, the hearings officer concludes that removal of the site from the county's Goal 5 inventory is justified, because the market for diatomite is a global market and the supply of the mineral is available on a global scale. There is no evidence that there is a local market for diatomite that could be accommodated by retaining this site in the significant mineral and aggregate inventory. In response to comments that the proposal will only be consistent with Goal 5 if the ESEE analysis for Site 461 is amended to address the relative merits of allowing or not allowing mining on the site based on current conditions, the hearings officer concludes that such a revised analysis is not necessary if the purpose of the amendment is to remove a resource from the protection afforded by the inventory designation. The applicant has requested that the site be removed from the inventory, and there is little or no benefit to retain it. Therefore, further analysis is unnecessary. Goal 6, Air, Water and Land Resources Quality. While a number environmental quality concerns have been identified, the hearings officer concludes that those concerns are ZC 08-1/PA 08-1 Daniels Group, LLC Page 21 of 31 addressed through environmental quality and health administrative rules. Further, residential development on the site will not be permitted unless the applicant demonstrates that adequate area is available for on-site sewage disposal. Goal 7, Areas Subject to Natural Disasters and Hazards. The subject property contains areas subject to flooding along the Deschutes River, as shown on FIRM panel 41017C0300E. This proposal does not include any development in floodplain areas. Any future development in these areas would be required to comply with the provisions of DCC 18.96, which has been reviewed and approved by FEMA. Goal 8, Recreational Needs. The proposed plan amendment and zone change do not reduce or eliminate any opportunities for recreational facilities either on the subject property or in the impact area, and to the extent the development of residential uses on the property will generate a need for recreational opportunities, the hearings officer concludes that those needs can be served on-site or by existing recreational areas/services. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the state for a variety of economic activities. This goal is met because the subject property no longer constitutes a significant mineral and aggregate resource, and therefore allowing it to be re -designated and rezoned for rural residential development will not have adverse economic impacts. Goal 10, Housing. Goal 10 defines needed housing as being housing within urban growth boundaries. This property is outside the urban growth boundary, and therefore Goal 10 is not applicable. Goal 11, Public Facilities and Services. This Goal requires planning for public services, including public services in rural areas. Goal 11 has generally been held to prohibit the extension of urban services (namely sewer and water) to rural lands outside urban growth boundaries. The present application will not result in the extension of urban services because the low-density development allowed in the RR -10 zone does not require urban services. Any residential development will be of a density that can be served by on-site septic and individual wells. Goal 12, Transportation. This goal is to "provide and encourage a safe, convenient and economic transportation system." It is implemented through OAR 660-012, commonly known as the TPR. Based on the findings in response to the TPR, the hearings officer concludes the proposal is not consistent with Goal 12. Goal 13, Energy Conservation. Goal 13 is to conserve energy. Planning Guideline 3 notes that "[I]and use planning should, to the maximum extent possible, seek to recycle and re -use vacant land..." Surface mining activities have ceased on the site and it has been vacant for some years. The applicant proposes re -use of the land consistent with this guideline, and thus this proposal is consistent with Goal 13. Goal 14, Urbanization. The applicant's proposal does not affect property within an urban growth boundary and the proposed RR -10 zoning designation does not permit urban density levels. Goal 14 therefore does not apply. ZC 08-1/PA 08-1 Daniels Group, LLC Page 22 of 31 Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are not applicable because the subject property is not located in or adjacent to any such areas or resources. ZONE CHANGE FINDINGS: The applicant has requested approval of a zone change from EFU-LB and SM to RR -10 for the subject property, and to remove the associated Surface Mining Impact Area (SMIA) overlay from property located within a one-half mile radius of the site. However, because the site is within a one-half mile radius of Site 322, the applicant requests that the SMIA be applied to this property, to protect mining uses at that site. C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining Zone (SM) a. Section 18.52.130, Site Reclamation Plan. Prior to the start of mining activity, a site reclamation plan shall be submitted and approved which demonstrates that the mineral and aggregate extraction site can be reclaimed for a subsequent beneficial land use consistent with the designation of such subsequent use in the surface mining element of the Comprehensive Plan. FINDINGS: The applicant had submitted a reclamation plan as Exhibit C to SP -85-23. The reclamation plan included areas that are exempt from reclamation under DOGAMI standards, and included a proposal to place topsoil and reseed the diatomite mining area. However, DOGAMI did not require reclamation of the diatomite mine prior to closing the site, and it appears that little, if any reclamation has been done in that area. According to evidence from DOGAMI staff, the southeast portion of the site has been fully reclaimed to DOGAMI standards. No post -mining use of the site was identified on the reclamation plan. A. When a site reclamation plan is required by DOGAMI, the site reclamation plan shall be approved by DOGAMI. To the extent practicable, review of the site reclamation plan shall be conducted jointly between DOGAMI and the County. B. When a site reclamation plan is not required by DOGAMI, the site reclamation plan shall be approved by the County in conjunction with the site plan review described in DCC 18.52.070. The County shall review such site reclamation plans for consistency with the site-specific ESEE analysis in the surface mining element of the Comprehensive Plan and the standards and conditions set forth in DCC 18.52.110 and 18.52.140. The County also shall follow the applicable DOGAMI standards and criteria for a site reclamation plan. FINDINGS: Areas southeast of Lower Bridge Way were subject to a DOGAMI reclamation plan and have been reclaimed in accordance with that plan. The mine site northwest of Lower Bridge Way did not have a DOGAMI required reclamation plan. However, a County reclamation ZC 08-1/PA 08-1 Daniels Group, LLC Page 23 of 31 plan was required under SP -85-23, and was attached to that decision as Exhibit C. The applicant proposes to reclaim the site to allow for residential development. b. Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone A. When a surface mining site has been fully or partially mined, and the operator demonstrates that a significant resource no longer exists on the site, and that the site has been reclaimed in accordance with the reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18, the property shall be rezoned to the subsequent use zone identified in the surface mining element of the Comprehensive Plan. FINDINGS: The County's inventory of significant mineral and aggregate sites describes SM Site 461 as follows: Site No. Legal Description Type Quantity Quality 461 141300-00-01500, 1501, Aggregate 350,000 y3 Good 1502, 1503, 1505, 1600 [Diatomite] 2,000,000 y3 Subsection (A) requires the operator to demonstrate that: 1) the site has been fully or partially mined; 2) a significant resource no longer exists on site; and 3) the site has been reclaimed in accordance with DOGAMI, or DCC Section 18.52.130 standards. The applicant asserts that all three conditions are satisfied here. As discussed in detail below Site 461 has been mined. The section below discusses significant resource status. In the Hearings Officer's previous decision in Stott (PA-98-12/ZC-98-6), the Hearings Officer held that the provisions of OAR 660 Division 23 regarding compliance with Goal 5 are relevant to this question. OAR 660-023-0250 provides in pertinent part: (1) [OAR 660, division 23] replaces OAR 660, division 16 * * *. Local governments shall follow the procedures and requirements of this division * * * in the adoption or amendment of all plan or land use regulations pertaining to Goal 5 resources. The requirements of Goal 5 do not apply to land use decisions made pursuant to acknowledged comprehensive plans and land use regulations. (2) The requirements of this division are applicable to [post -acknowledgment plan amendments (PAPAs)] initiated on or after September 1, 1996. * * * (3) Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section, a PAPA would affect a Goal 5 resource only if: (a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5[.] * * *" ZC 08-1/PA 08-1 Daniels Group, LLC Page 24 of 31 In Stott, the Hearings Officer concluded that a plan amendment and zone change to "de -list" and rezone a surface mining site constitutes a "PAPA," and therefore the provisions of OAR 660-023-0180 concerning mineral and aggregate resources apply to such an application to the extent they reasonably can be applied to a decision to remove a site from the county's adopted inventory. The Hearings Officer further found OAR 660-023-180(3) identifies the pertinent standards for determining "significance." This paragraph provides: (3) An aggregate resource site shall be considered significant if adequate information regarding the quantity, quality, and location of the resource demonstrates that the site meets any one of the criteria in subsections (a) through (c) of this section, except as provided in subsection (d) of this section: (a) A representative set of samples of aggregate material in the deposit on the site meets applicable Oregon Department of Transportation (ODOT) specifications for base rock for air degradation, abrasion, and soundness, and the estimated amount of material is more than 2,000,000 tons in the Willamette Valley, or more than 500,000 tons outside the Willamette Valley; (b) The material meets local government standards establishing a lower threshold for significance than subsection (a) of this section; or (c) The aggregate site was on an inventory of significant aggregate sites in an acknowledged plan on September 1, 1996. FINDING: Significant Resources: Mineral and aggregate are not the same resources. Mineral resources refer generally to all inorganic materials that are extracted from the earth and put to beneficial use. It includes precious metals, valuable minerals, diatomite, as well as rock and sand. "Aggregate," on the other hand, refers to those inorganic substances that are used in road or other construction activities. OAR 660-023-0180 only addresses "aggregate" resources. The county's Goal 5 program primarily addresses aggregate resources, although the definition of "mineral" is broader than the definition of "aggregate" set out in OAR 660, division 23. Aggregate resource is significant if it meets one of the three criteria set out in OAR 660-023- 0180(3). Here, the only potentially applicable standard is OAR 660-023-0180(3)(a).9 OAR 660-023-0180(3)(a) requires a demonstration that the aggregate at the site: 1) meets ODOT specs for air degradation; 2) abrasion; 3) sodium sulfate soundness; and 4) include more than 500,000 tons. The Aggregate Resource Assessment Report prepared by GeoDesign, Inc. and submitted as Exhibit 7 ("Aggregate Report") concludes that subject site does not satisfy the criteria because it fails sodium sulfate soundness requirements and contains less than 500,000 tons of aggregate. Based on a site-specific analysis, the Aggregate Report estimates the quantity of the aggregate at 211,000 cubic yards. Assuming a tons -per -cubic yard ratio of 2.1, the Report finds 443,100 tons of aggregate on site, less than the "significant" threshold above. 9 OAR 660-023-0180(3)(b) does not apply because the local government has not established lower standards. OAR 660-023-0180(3)(c) does not apply to requests to remove a site from the acknowledged inventory. See Hearings officer decisions PA -98-12 and ZC-98-6, PA -04-4 at page 30 (submitted as Exhibit 15) and PA -06-2 at page 14 (submitted as Exhibit 19). ZC 08-1/PA 08-1 Daniels Group, LLC Page 25 of 31 In the staff report, staff expressed some concern regarding the evidence the applicant provided to support its assertion that the aggregate resource is no longer significant. First, staff noted that the soundness test was very limited. Second, staff observed that the applicant's estimate of remaining aggregate is based on shallow borings, and not on a more comprehensive geologic analysis. The hearings officer agrees with staff that the evidence is somewhat equivocal, but in the absence of evidence that undermines the applicant's assertions, the hearings officer finds that the applicant has demonstrated that the site no longer contains a significant aggregate supply. With respect to diatomite, the aggregate significance standards do not apply because diatomite is a mineral, not aggregate, resource. Neither local law nor administrative rule define what a significant "mineral" resource is, although it can be assumed that the county concluded that the diatomite located on the property was "significant" enough to justify its inclusion in on the Goal 5 Mineral and Aggregate inventory. In addition, the value of diatomite in the global market justified the rezoning of the property to SM, and the approval of mining in 1985. The applicant has provided information in the submitted burden of proof that there is no economic incentive to mine diatomite on the subject property due to ample global supply, low profitability, less expensive substitute materials, and undesirable environmental impacts. Due to its limited usefulness in the local market, and the evidence that other materials provide a more suitable replacement, the hearings officer agrees with the applicant that diatomite is no longer a "significant" mineral warranting protection. Reclamation: The Deschutes County Code requires that the site be reclaimed in accordance with a reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18.52, DOGAMI has found the site to be reclaimed according to its standards. As the DOGAMI memo explains, 61 acres on tax lots 1503 and 1505 were covered by an operating permit for gravel extraction, and reclamation has been completed there. The overburden stockpiles on that area have been revegetated, are stable, and may remain until used for on-site development. The former DIATOMITE mining site (west of Lower Bridge Way) is exempt from reclamation requirements under ORS 517.770 because it was part of a mine that existed before 1972. Site Plan approval SP -85-23 included reclamation specifications. Below is a summary of the applicant submitted reclamation plan, attached as Exhibit C to the Hearings Officer Decision in SP -85-23. The applicant has stated that the topsoil is stockpiled and will be replaced on the area mined approximately 12 inches deep. The applicant proposed to motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and mulch. The applicant also proposes to plants evergreens for shade and windbreaks on the site. The evidence shows that this plan has not been implemented. Condition 1 of SP -85-23 also required an updated reclamation plan to include measures to prevent materials from eroding into the Deschutes River. Staff has been unable to locate this updated reclamation plan. For these reasons it is Staff's opinion that the applicant has not met the rezoning criteria of DCC 18.52.200(A). There is significant confusion as to the relationship between the DOGAMI reclamation standards and DCC 18.52.200(A). DOGAMI has the statutory authority to regulate reclamation over sites located in Deschutes County, and its reclamation standards supersede local ZC 08-1/PA 08-1 Daniels Group, LLC Page 26 of 31 standards. Therefore, unless the applicant agrees otherwise, sites that are exempt from reclamation under DOGAMI regulations are similarly exempt from other, more restrictive local standards that could be imposed as a condition of land use approval. Thus, as a practical matter, the only role the county has in the reclamation process is to identify a post -mining. use. If the post -mining use is established prior to the adoption of a reclamation plan, the plan must be consistent with that post -mining use. Here, the evidence shows that the applicant proposed to replace the overburden and seed it as part of its total site reclamation plan. Those reclamation activities were not required in the DOGAMI reclamation plan, and the evidence shows that the applicant did not follow through with its proposed reclamation plan. The question then, is whether the county can hold the applicant here responsible for the deficiency of a prior mine operator, when it had no authority to impose the condition that the prior mine operator voluntarily acceded to? The answer, the hearings officer concludes, is "yes." The applicant proposed to reclaim the diatomite mined area, and the application was approved in part, based on that plan. The county had the authority while the mine was active to enforce any and all of the provisions of the approval. DCC 18.52.150. Those conditions similarly must be fulfilled prior to rezoning the site for a post - mining use. Therefore, the hearings officer concludes that this proposal must either be denied because conditions precedent have not yet been fulfilled, or conditioned to require the described reclamation as part of the residential development of this site. B. Concurrent with such rezoning, any surface mining impact area combining zone which surrounds the rezoned surface mining site shall be removed. Rezoning shall be subject to chapter 18.136 and all other applicable sections of this title, the Comprehensive Plan and Deschutes County Code Title 22, the Uniform Development Procedures Ordinance. FINDINGS: Should this zone change be approved, it will also remove the surface mining impact area combining zone which surrounds the rezoned surface mining site. However, as noted above, Site 322 is located within one-half mile of the site. Therefore, a SMIA that covers a one-half mile radius of that site must remain on nearby property and must be applied to this site. 2. Chapter 18.136, Amendments a. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the Plan's introductory statement and goals. FINDINGS: In previous Hearings Officer's decisions, it has been held that comprehensive plan goals and policies do not constitute mandatory approval criteria for quasi-judicial zone changes, but rather are implemented through the zoning ordinance, and therefore if the proposed zone change is consistent with the applicable provisions of the zoning ordinance it also will be consistent with the plan. ZC 08-1/PA 08-1 Daniels Group, LLC Page 27 of 31 The applicant has argued that the public interest is best served by taking the subject property out of mining use. Due to increased rural residential development in the area, and decreased value and demand for diatomite, the applicant argues that diatomite mining is no longer compatible with the area or desirable for the landowners. Rezoning for residential use will provide incentive and the economic resources to clean up the aesthetic and environmental impacts of decades of mining. As noted above, with the exception of transportation -related policies and criteria, and compliance with the county -approved reclamation plan for the site, the proposed plan map amendment and removal of the site from the county's inventory of significant mineral and aggregate sites are consistent with applicable plan policies and the Statewide Land Use Planning Goals. The proposed RR -10 and SMIA zoning designations are consistent with the proposed plan designations. Therefore, the proposal, so long as it is also consistent with the zoning ordinance, is consistent with the plan. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: The applicant is proposing a zone change from Surface Mining to Rural Residential (RR). The purpose of the RR zone, set forth at DCC 18.60.10 is: The purposes of the Rural Residential Zone are to provide rural residential living environments; to provide standards for rural land use and development consistent with desired rural character and the capability of the land and natural resources; to manage the extension of public services; to provide for public review of nonresidential uses; and to balance the public's interest in the management of community growth with the protection of individual property rights through review procedures and standards. FINDINGS: The proposed zone change is consistent with this purpose statement because re- development of the site will create a rural residential living environment consistent with the rural character and capabilities of the land and resources. To the extent existing conditions affect the carrying capacity of the land, air and water, those issues can be addressed through compliance with applicable state health and environmental quality regulations, or through compliance with the county's development standards. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: FINDINGS: The site is currently an unused diatomite and aggregate surface mine. Prior activities on the site have adversely affected public health, safety and welfare, although some of those impacts have been ameliorated. The hearings officer concludes that overall, redevelopment of the site for rural residential uses will presently serve the public health safety and welfare by providing the developer with an incentive to reclaim the site. ZC 08-1/PA 08-1 Daniels Group, LLC Page 28 of 31 1. The availability and efficiency of providing necessary public services and facilities. FINDINGS: AH utilities are available and currently serving other nearby properties, including the RR -10 zoned subdivision to the southeast, and adequate County road frontage is available. While the question is not without doubt, the hearings officer also concludes that the applicant has failed to demonstrate that the proposed rural residential zoning will not significantly affect local transportation facilities. However, if the applicant proposes measures to ensure that the standards are satisfied, the application could meet the applicable transportation -related public improvement standards. The hearings officer concludes that "public services and facilities" within the meaning of this standard does not include private domestic wells, individual subsurface sewage facilities or private roads. To the extent water availability and water quality fall within the category of "public services and facilities," the applicant provided evidence that it has a limited use water permit to allow for dust suppression and irrigation of re -vegetated areas. The applicant also testified that its preliminary testing shows that adequate water is available to develop individual or group wells for domestic water supplies. Domestic wells must be drilled in accordance with Oregon Water Resources Department well drilling standards, which includes a requirement that the well not inject contaminated water into an aquifer, or cause perched water to move to another aquifer. There is substantial evidence in the record to show that these standards are met or can be met through conditions of development approval. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The applicant has stated that rezoning the property will not adversely impact surrounding property because residential use is consistent with the existing residential uses adjacent to the subject property, and will not increase adverse impacts on agricultural uses on other nearby properties. A neighboring farmer testified that he supported the proposal. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDINGS: There have been several changes in circumstances, and new information that shows that mistaken assumptions were the premise of the current zoning. Part of the subject property was zoned Surface Mining in 1985 and the remainder in 1989. The 1985 zoning focused on only the diatomite resource, and was premised on the assumption that diatomite would be economically productive for export. At that time the property was zoned Surface Mine Reserve, and the applicable Comprehensive Plan assumed that land so designated "will ultimately be mined." The applicable Plan also lowered the burden of proof for changing the zoning to Surface Mining because "the material here sought to be mined consists of non -aggregate materials which are most probably to be used for export as there is currently little local demand." In spite of low local demand, the Hearings Officer found that the potential to export diatomite satisfied "the need question." Applicants were "in the process of negotiating large scale contracts for the delivery of [diatomite]" and the county found that construction of a processing plant in Malheur County would "enable exportation by the applicants." Because the ZC 08-1/PA 08-1 Daniels Group, LLC Page 29 of 31 site had already been used for diatomite mining, the Hearings Officer found that rezoning would simply facilitate more use and exportation of the resource. However, circumstances have changed since 1985. Because the identified global supply of diatomite will satisfy global demand for a very long time, the Lower Bridge Way site is not needed. Environmental regulation and fuel costs have increased, while profits for diatomite have decreased. Therefore, according to the applicant, mining diatomite from the site is no longer economically viable or necessary. The second rezoning, as part of the ESEE analysis for site 461, in 1989-1990 focused on the site's aggregate (as opposed to a mineral) resource. It followed the 1988 Deschutes County Goal 5 Aggregate Inventory, which identified an aggregate resource of 350,000 cubic yards. It is unclear from the record how this amount was estimated. In the ESEE analysis for site 461, the Board identifies the key values that form the basis for the determination of SM zoning for the mine site. These include the importance of aggregate resources to development in Deschutes County, the value to the County economy in terms of materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site, and that the site is located near a major roadway for highway maintenance and construction jobs. Neither the mine location nor the importance of aggregate resources to Deschutes County have changed since the last zoning of the property. However, the current estimate of aggregate resources on the property has fallen to 211,000 cubic yards. Also, the current Aggregate Resource Assessment Report indicates that the aggregate on the site does not meet ODOT specifications. This report also indicated that the aggregate resource cannot be profitably mined. These issues constitute a change in circumstances within the meaning of this criterion. IV. RECOMMENDATION For the most part, the hearings officer agrees with the applicant the site does not include significant mineral or aggregate resources and that it is appropriate to remove the site from the county's Goal 5 mineral and aggregate inventory. In addition, the hearings officer concludes that the site does not include agricultural or forest soils, and cannot be put to resource use. Therefore, a non -resource designation is appropriate. However, for the reasons explained above, the hearings officer concludes that the applicant has failed to demonstrate that the proposal is consistent with the TPR, or that reclamation of the site will occur in accordance with the approved reclamation plan for the site. Therefore, the hearings officer concludes that these applications cannot be approved. If, however, the board of county commissioners concludes that the proposal does satisfy all applicable approval standards, the plan amendment and zone change may be conditioned to address some of these concerns. DCC 18.136.030. The hearings officer recommends that the following conditions be imposed concurrent with the amendments to the plan and zoning map. 1. As part of any residential development approval for the site, the applicant shall include an informational section in its CC&Rs that detail the history of the site, including the remediation efforts taken by the applicant and its predecessors in interest. In addition, if fill is brought onto the site, the applicant shall identify the general location of the fill, and if the site is used for development, the applicant shall either certify that the fill is suitable for development, or specifically declaim any knowledge of its suitability. ZC 08-1/PA 08-1 Daniels Group, LLC Page 30 of 31 2. The applicant shall implement the reclamation plan set out in SP 85-23 or shall implement an approved modification to the reclamation plan that permits the site to be redeveloped for residential uses. Dated this ilifin day of August, 2008. Mailed this _ day of August, 2008. t4-. AnCorcoran Briggs Hearings Officer THIS DECISION IS NOT THE FINAL DECISION OF THE COUNTY. THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS RENDERS THE FINAL DECISION FOR PLAN AMENDMENTS AND CORRESPONDING ZONE CHANGES. ZC 08-1/PA 08-1 Daniels Group, LLC Page 31 of 31