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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of January 14, 2009
Please see directions for completing this document on the next page.
DATE: December 9, 2008
FROM: Paul Blikstad Department CDD Phone # 6554
TITLE OF AGENDA ITEM:
Work session to discuss the appeal hearing of the Latham Excavation surface mining applications (CU -
07 -102, SP -07-46) for expanded surface mining operations at the Johnson Road mining site (site no.
303).
PUBLIC HEARING ON THIS DATE? No. However, the public hearing will be conducted the
following week.
BACKGROUND AND POLICY IMPLICATIONS:
The Board issued an Order (no. 2008-097) accepting review of the Hearings Officer's decision on the
Latham Excavation applications. Two appeals of the Hearings Officer's decision were received (both
the applicant and the opponents appealed). The appeals will be consolidated into one hearing and it
will be a de novo hearing.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
The Board will be conducting the hearing. No staff recommendation at this time.
ATTENDANCE: Paul Blikstad, Laurie Craghead
DISTRIBUTION OF DOCUMENTS:
Planning staff will mail out the written decision of the Board once it is completed.
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
DATE: October 30, 2008
TO: Board of County Commissioners
FROM: Paul Blikstad, Senior Planner
RE: Appeal of Hearings Officer's decision on CU -07-102, SP -07-46 (MA -08-3, MA -
08 -4); also file nos. A-08-14, A-08-20, for Latham Excavation
BACKGROUND
Latham Excavation submitted applications for a conditional use permit and site plan for surface
mining activities at what was/is an existing pumice mining site on Johnson Road. The
applicant's original proposal was to expand the surface mining operation at the site approved in
1995 (through site plan SP -95-10), and to include drilling and blasting at the site, and to
construct an office and shop at the site. The applicant modified the request to remove these
two aspects of the proposed use, based mainly on concerns of the neighbors. The amended
applications thus included:
• Seek approval for extraction only within the footprint of the area approved for extraction
in the approval for SP -95-10.
• Approval for excavation of Bend Pumice and associated overburden materials and
aggregate materials incidental to excavating pumice and overburden materials.
• Approval for processing and sale only of materials extracted on-site; no processing or
sale of materials brought in from off-site.
• Recognize importation of materials from off-site for eventual use in reclamation.
• Elimination of any approval for drilling and blasting.
• Show alternative locations for screening and crushing of pumice and overburden
materials.
• Eliminate the office and shop and other structural accessory support facilities on site.
• To allow for use of a portable scale for weighing excavated materials on site.
The modification includes the following refinements and clarifications to those proposed
at the original February 19, 2008 hearing:
• To allow for crushing of welded tuff and other incidental rock materials
encountered in extraction of pumice and overburden materials.
• To provide for extraction, processing and sale of sand and horticultural materials.
Board Memo — Latham Excavation
Page 1 of 3
Quality Services Performed zvith Pride
• To provide for washing of tuff, sand and horticultural materials.
• To modify the maximum area of the slots to be 5 acres.
• To note on the site plan the locations of the area where materials being brought
in are being deposited, where haul roads exist and what vegetation will be
retained.
• To show the type and location of portable weighing scale that applicant proposes
to use.
• To show compliance with DEQ air contaminant discharge permit requirements for
applicant's roll crusher.
The applicant's revised burden of proof from February 19th lists the following as part of
the request:
• To add on-site processing, including crushing, of pumice and pumice overburden
materials within the same footprint approved by the site plan approved by SP -95-
10.
• To include temporary stockpiling on site of excavated material for sale to
consumers.
• To recognize that the pumice overburden is being mined for sale rather than
retained on site.
• To allow for hauling of materials up until 5:00 p.m. during the time period
November 15 through February 15.
• To recognize that the weather station has been removed from Sites 355 and 356
and installed on Site 303.
• To recognize use of a water tank for water storage on site.
• To allow for use of a portable scale for weighing material to be sold.
Two public hearings on the applications were scheduled before the County Hearings Officer.
The first hearing occurred on February 19, 2008, and the second on April 15, 2008. In between
the hearing dates, on March 20, 2008, the applicant submitted modifications to the applications.
The modifications were included in the April 15th hearing proceedings. According to the County
Procedures Ordinance, the modification applications restarted the 150 -day review period. The
Hearings Officer's written decision on the modified applications was mailed out on July 31,
2008, approving the applications, with 18 conditions of approval.
The applicant filed a request for reconsideration of the Hearings Officer's decision on August 12,
2008. Notice of the reconsideration request was mailed out by staff, and a decision on the
reconsideration was issued by the Hearings Officer. Her decision was mailed out on October
14, 2008. During the 12 -day appeal period following the Hearings Officer's original decision, an
appeal of her decision was submitted by opponents Hoffman, through their attorney Paul
Dewey. According to the County's Procedures Ordinance, the reconsideration request is
handled first. Because the Hearings Officer declined to reconsider her decision (the
reconsideration decision left the approval as written), the appeal by Hoffman carries through to
the reconsideration decision.
The applicant filed an appeal of the reconsideration decision as allowed by code.
Consequently, the Board has two appeals to consider in this proceeding.
Board Memo — Latham Excavation
Page 2 of 3
The County Code and State law require a maximum 150 -day review period for land use
proceedings with the County. Staff has calculated the review period, and with the modification
applications, together with the time extension requested by the applicant at the April 15th
hearing, staff believes that the 150 -day review period ends on December 11, 2008.
APPEALS
As indicated above, there are two appeals of the Hearings Officer's decision (file nos. A-08-14.,
A-08-20). The applicant's appeal requests an on -the -record review by the Board. The
opponents appeal includes a request for de novo review by the Board. Staff believes that giver
the time constraints for a hearing and decision on these applications, it may not be possible to
complete a review of these applications and issue a written decision by December 11th
Staff believes there are outstanding policy issues that should be considered by the Board..
These are:
• what constitutes a noise and dust sensitive use;
• whether the expansion of the proposed surface mine requires a revised ESEE
(Environmental, Social, Economic and Energy) analysis by the Board;
• whether the use of the term "processing" in the ESEE analysis (at site 303 as well as
numerous other sites in the County) was intended to allow crushing;
• the degree of protection to be afforded under the visual screening standards of the
code and the manner in which the topographical exception should be applied;
Staff believes that there are also issues related directly to the site itself that warrant review by
the Board. The opponents have listed 17 alleged errors in the decision, and the applicant has
listed 5 alleged errors. Staff will not repeat those here, but they can be reviewed in the attached
notices of appeal.
Staff has a very large file on this matter, which is likely over 2,000 pages in length. Most of it is
available for review on-line, so rather than copy it for the Board, staff will copy only the mos:
pertinent parts for a Board determination of whether or not to hear the appeals.
am submitting for your review the following:
• The applicant's and the appellant's notices of appeal
• Hearings Officer's decisions (original decision and reconsideration decision)
• The County's 1990 ESEE analysis for site no. 303
• Vicinity map showing the location of the mining site
Please contact me at your convenience if you have any questions.
I have a very large air photograph from the record that shows the property in relation to the
surrounding area and development, which I can bring to a work session.
Board Memo — Latham Excavation
Page 3 of 3