Loading...
HomeMy WebLinkAbout86-079BEFORE THE BOARD OF COUNTY COMMISSIONERS OF An Ordinance Amending Ordi- nance No. PL -15, Deschutes County Zoning Ordinance of 1979, as Amended, Rezoning Certain Property from Surface Mining Reserve (SMR) Zone to Surface Mining (SM) Zone, and Declaring an Emergency. S'7- 32'7 ORDINANCE NO. 86-079 REV"D lr.";I CC;Z21IC1Sr.I DESCHUTES COUNTY, OREGON V VOL SOPAGE 9 ( WHEREAS, Franklin Nolan, Fred Gunzner, Robert L. Riemenschneider and Norman Weigand proposed the rezoning of certain property from Surface Mining Reserve (SMR) Zone, to Surface Mining (SM) Zone for approximately 399 acres; and WHEREAS, notice of hearing was given in accordance with law; and WHEREAS, the Hearings Officer held a hearing on the proposed zone change on August 27, 1985; and WHEREAS, the Hearings Officer recommended that the property be rezoned from Surface Mining Reserve (SM) Zone to Surface Mining (SM) Zone by decision dated September 18, 1985; and WHEREAS, the decision of the Hearings Officer was appealed to the Deschutes County Planning Commission by the Applicants on October 2, 1985. The appeal was withdrawn by the Applicants on September 23, 1986; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. That Ordinance No. PL -15, Deschutes County Zoning Ordinance of 1979, as amended, is amended to change the zoning for the parcel of real property described in Exhibit "A", attached hereto and by this reference incorporated herein, and depicted on the map marked Exhibit "B", attached hereto and by this reference incorporated herein from Surface Mining Reserve (SMR) Zone to Surface Mining (SM) Zone. Section 2. To adopt as the Board of County Commissioners, findings and conclusions the Findings and Decisions of the Hear- ings Officer dated September 18, 1985, relating to Zone Change Application No. ZC-85-3, marked Exhibit "C", attached hereto and by this reference incorporated herein. 1 - ORDINANCE NO. 86-079 VOL 80PAGE 97 7 Section 3. This Ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. DATED this Ej�day of ��� IQ �� , 1986. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON BRIS , Cha ATTEST: ' LA VE. TTLE, Commiss Recording S cretary N, Commissioner 2 - ORDINANCE NO. 86-079 EXHIBIT "A" ppOPAGE 9 I ryS POVEY & ASSOCIATES — LAND SURVEYORS VOL p AlwREGISTERED PROFESSIONAL LAND SURVEYORS, OREGON NO. 1652 P.O. BOX 131 • OFFICE 354 S.W. 7th • REDMOND, OREGON 97756 • PHONE OFFICE 548-6778 HOME 548.5270 isfl or2709 4:ESS10 tit EG0Iq 6Y 14.1978 ROBERT A. QovEY �g Description GUNZNER - NOLAN Section 16 T.14S.,R.12E.W.M. MINE PROPERTY Description of a parcel of land to be zoned for mining in a portion of Section 16 T.14S.,R.12E.W.M., Deschutes County, Oregon, more particularly described as follows: All of Section 16 T.14S.,R.12E.W.M., lying West of the Westerly right-of-way of Lower Bridge County Road, being 30.00 feet from the centerline of said road, and also lying West of a line parallel with and 250 feet Westerly of the centerline of The Deschutes River. EXCEPTING a strip of land 800 feet in width, being 400 feet each side of centerline, the North line of which is the North line of said Section 16, and the South line being normal to the centerline described as follows: Commencing at the NW corner of said Section 16, the Initial Point; thence East along the North line of said Section 16 approximately 2300 feet to the centerline of a canyon and the true POINT OF BEGINNING; thence Southwesterly 1831 feet to a point in the center of said canyon and the Southerly terminus of said exception. ALSO EXCEPTING a parcel containing approximately 66.38 acres described on page two: Same containing approximately 399 land acres. VOL SOPIGE 9 19 POVEY & ASSOCIATES — LAND SURVEYORS REGISTERED PROFESSIONAL LAND SURVEYORS, OREGON NO. 1662 P.O. BOX 131 • OFFICE 354 S.W. 7th • REDMOND, OREGON 97756 • PHONE OFFICE 548-8778 HOME 548-5270 or 2709 Description FR UNK NOLAN to FRED GL'NZER Section 16 T.14S.,R.12E.W.M. Description of a narcel of land situate in a portion of Section 16 T.14S.,R.12E.W.M., Deschutes County, Oregon, more particularly described as follows: Coy, .ending at a 3/4" pipe monumenting the Sour:' --west corner of Section i6 T.14S.,R.12E.TJ..`1., the Initial Point as well as the true POINT 0- BEGENNING; thence NG0022'25",d along the :lest line of the South- west Quarter ('V--) of said Section 16 - 2644.67 feet to West 1,4 corner of said Section; thence T00004'15"E along the Nest line of the N"'1/4 of said, Section 16 - 1313.05 feet to the North Line of the SWI/4 of said NWL/4; thence N89°11' 14"E along said .Nc!_ th line - 807.80 feet to a 1/2" pipe; thence S22006'17"W - 352.48 feet to a 1/2" pipe; t'_ence S15°35'01"W - 480.21 feet to a 1/2" pi;.e; thence S47°41' O2"W - �! 4.00 feet to a 1/2" pipe ca -:.s prolongatic^ of an existing fence line; thence S00°31'25"W partial along said fence - 862.33 feet n a i/2" pipe in said fence; thence S89 +5'04"E parallel Kith Cite South line of said SWI/4 - 1098.69 feet to a 1/2" pipe; t-, ce SOC°22'25"E parallel with the West line of said SWl/4 - 1384.44 Leet to a 1/2" pipe on the South line of said SWI/4; thence 489°45'04"7.J al:rg said South line - 1157.35 feet to the P� I`IT OF 3E(, -,T. I ,.)ar'_ containing arL'roximately 66.38 existing easem. n' is and rights of described pazrcel of land, noting alorR the ccmrlete length: of the parcel, containing approximately PPOF_zS+Or`i4L Ulla SlirT/E'1C� Page TWO ac=es, subject to all existing Tway over and across the above a County Road (Lower Bri._,-;- e Way) South line of the above < escribed 0.80 acres of land. EXHIBIT z 4 0.. M ras 'P y ML VV" v s , • a s H' � r �#.'�� �sf,a` ` .# ": �' v�a. F� ,,:� ti,� :� . � . fir'' ♦ A 43A°y , M, ry2 Y a �S (v : Ac t ir/ / v 133qr " Ailk W r � Olt 77. Ml�te 69 Ac rn _ r t � aSb sr r � • a , W � ` y w y+ EXHIBIT "C" L S C VOL SQPIGE 981 Hearings Officer/ w Administrative Law Judge Courthouse Annex / Bend, Oregon 97701 / (503) 388-6626 (503) 382-8721 Michael T. Dugan � 19� DESCHUTES COUNTY HEARINGS OFFICER CGU' PUBLIC HEARING, August 27, 1985 FINDINGS AND DECISIONS File Number: ZC-85-3 Applicant: Franklin Nolan et al Request: An application for a zone change from SMR, Surface Mining Reserve, to SM, Surface Mining, which would allow the active mining of rock for aggregate and fill on the site. Planning Staff Representative: George Read Planning Staff Recommendation: None Public Hearing: A public hearing was held in Conference Room A of the Deschutes County Courthouse Annex, Bend, Oregon, on Tuesday, August 27, 1985 at 7:00 p.m. Burden of Proof: In order to receive approval of this request, the applicant must demonstrate compliance with the comprehensive Plan for Deschutes County and with the criteria as contained in Article 10, Section 10.020 and 10.025 of PL -15, the Deschutes County Zoning Ordinance. FINDINGS: 1. Location: The subject property is located northwest of the intersection of Lower Bridge Road and the Deschutes River and is further described as Township 14S, Range 12E, Section 16 (index map), tax lots 1501, 1052, 1600, and 704. The subject zone change may also involve tax lots 1507 and 1508 which are shown on the applicant's map but not listed on the application. 2. Zone: The subject property is zoned SMR, surface mining reserve. 1 - FINDINGS AND DECISIONS VOL 80PauE 902 3. Comprehensive Plan Designation: The subject property is designated as surface mining reserve on the comprehensive plan map. 4. Site Description: The subject property consists of 550 acres. The majority of the subject site has, in the past, been mined for diatomaceous earth. The site generally has previously been disturbed and most of the vegetation appears to be volunteer vegetation which has reestablished itself on the site. Access to the site is directly from Lower Bridge Road. Land use in the surrounding area consists of surface mining property currently being mined to the east; large parcels (over 100 acres in size) to the northeast, north, and northwest; undeveloped parcels to the south, and a subdivision consisting of 10 -acre lots to the southeast. There is very little development of any kind in the immediate area of the proposed surface mine. The subject property is zoned Surface Mining Reserve and the surrounding property is zoned EFU-80. The exception to this is the existing property to the southeast which is currently being mined and is zoned Surface Mining. 5. Proposed use: The applicant's burden of proof statement (Hearing's Officer exhibit No. 3) requests that the entire 550 acres be rezoned to Surface Mining. This is to allow the crushing and removing of aggregate material. As pointed out at the public hearing, this site also contains a large quantity and varying quality of diatomaceous earth. Diatomaceous earth is a fine silceous earth composed chiefly of the cell walls of diatoms, a fresh water or marine algea. This parcel consists of fresh water variety. The primary use has been in filtration systems, but as evidenced at the hearing, many other uses exist. At the Hearing the applicants revised their request downward seeking to rezone only 399 acres. In addressing the need question, the applicants presented uncontradicted evidence that there exists a substantial difference in quality of the diatomaceous earth in various areas of the proposed site. Further, that the applicants are currently in the process of negotiating large scale contracts for the delivery of this substance. There is now a diatomaceous processing plant being built in Malheur County, which would enable exportation by the applicants. The current demand for the diatamaceous earth is fairly minimal, consisting of approximately 2-3 semi -loaded trucks per week. In terms of the aggregate request, the applicants now state that only the stockpiled aggregate will be removed. The primary request now centers around the current and future use of the Diatomaceous earth. Conformance with the applicable criteria. The Deschutes County Comprehensive plan has established several policies. Policy number 2 specifically states "it shall 2 - FINDINGS AND DECISIONS von SOPAGE 983 be assumed land designated SMR will ultimately be mined." This parcel is currently zoned SMR. Policy number 5 provides the required findings to be made by the county in order for a change from SMR to SM to be made. Policy 5(d) lowers the applicants burden of proof in that the material here sought to be mined consists non -aggregate materials which are most probably to be used for export as there is currently little local demand. The burden with regard to the necessary findings for policy 5(a) and 5(b) is lower. The plan does not specify what a lower burden of proof is, but presumably there must be some showing of need and that the site is otherwise the most economically available. As previously discussed, the majority of the site has been mined previously for diatomaceous earth. Most of the site is disturbed. In effect, this site exists as the most economically viable and available for this material. The applicants have demonstrated that there is currently a local need, on a limited basis. If the property is rezoned, there exists a greater likelihood that greater use, therefore need, will develop, particularly in exportation. Finally, this is a low conflict level site. The applicants have proposed a reclamation plan and have submitted a site plan. The applicants burden of proof statement adequately addresses the other policies and those statements are adopted as a part of this descision. I find that the application is in conformance with policy 5 for the comprehensive surface mining plan. Conformance with Article 10, Section 10.025 of PL - 15, the Deschutes County Zoning Ordinance. As previously discussed, the applicants have addressed and have met the requirements of Section 10.025(1). 10.025(2) provides: "2. The change in classification for the subject property is consistent with the purposes and intent of the proposed zoning'• classification." It is clear from the Comprehensive Plan that areas zoned Surface Mining Reserve were intended to eventually be mined. The Comprehensive Plan also states that there is a shortage of aggregate resources identified in Deschutes County. Additionally, the plan provides a lesser burden for non - aggregate material used for export. Section 10.025 (3) provides: "3. That the change in zoning wil presently serve the public health, safety, and welfare, considering the following factors: a) the availability and efficiency of providing necessary services and facilites; 3 - FINDINGS AND DECISIONS vow ©OPIGE 984 b) the impacts on the surrounding land use will be consistent with the specific goals and policies contained in the Comprehensive Plan." The applicant has addressed these criteria in their burden of proof and has adequately satisfied them. Section 10.025(4) provides: "4. That there has ben a change in circumstances since the property was last zoned or a mistake was made in the zoning of the property in question." The applicant has indicated that the change in circumstances has been the commercial development of inferior grades of diatomaceous earth. With the development of the Malheur County processing plant, further commercial uses will be created. The Comprehensive Plan and the demonstraton of need for the existing stockpiled aggregate on the site, addresses this criteria as well. Conformance with the Statewide Planning Goals: A comprehensive plan change is not required for rezoning from SMR to SM. The existing rezoning standards for Deschutes County do not require conformance with the Statewide Planning Goals with an application is consistent with the Comprehensive Plan. However, the case of Coats vs. the Land Conservation and Development Commission (LCDC), 67 OR APP 504 (1984), has remanded the acknowledgement of the Deschutes County Comprehensive Plan to LCDC. The effect of this has been to cloud the actual issues which must be addressed in order for any land use application in Deschutes County to be approved. However, the applicant's burden of proof statement adequately addresses the goals for this site. The specific nature of the State Court of Appeals' decision is not specifically related to a zone change of this type since there are a very limited number of conflicting uses in the area. The applicant's burden of proof statement addresses the statewide goals and that portion of the burden of proof statement is adopted as part of this decision. The applicant initially requested a rezone of 550 acres. This has now been reduced to 3997acres. The applicant was not specific with regard to the exact legal description of the parcel sought to be rezoned, however they did submit an overly (exhibit 11 of the Hearings office file) which depicts those areas excluded from the request. Zone changes require specific legal descriptions so that they may be clearly identified and recorded. DECISION: I find that the applicant has demonstrated conformance with the applicable criteria and recommend approval subject to the following conditions: 4 - FINDINGS AND DECISIONS vu: �QPav� 985 1. The zone change shall be limited to 399 acres. 2. The applicant shall provide a specific legal description of the land to be rezoned, consistent with Hearings Officer exhibit 11. (the map overlay). 3. The applicant shall receive approval of a site plan and reclamation plan. 4. The applicant shall provide a 10 foot public access easement or conservation easement along Deschutes River which provides access to the public. THIS DECISION BECOMES FINAL 15 DAYS FROM THE DATE MAILED, UNLESS APPEALED. DATED this __ day of September, 1985. N"IX, MICHAEL T. DUGAN Hearings Officer MTD/jh cc: file BOCC City of Bend Planning Director City of Redmond City Planning Director Deschutes County Planning Director Deschutes County Public Works Department Frank Nolan Steve Stadum Fred Gunzer Vauniece Lidell 5 - FINDINGS AND DECISIONS