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HomeMy WebLinkAbout85-007VOL 62 PACE -- ` j �/ 3658 LEG COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES CO TY, OREGON 175 An Ordinance Amending Ordin- ance 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 Declar- ing an Emergency. ORDINANCE NO. 85-007 WHEREAS, Bend Aggregate & Paving proposed the rezoning of certain property from Surface Mining Reserve (SMR) Zone to Surface Mining (SM) Zone; 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 February 12, 1985; and WHEREAS, the Hearings Officer recommended that the property be rezoned from Surface Mining Reserve (SMR) Zone to Surface Mining (SM) Zone by decision dated February 25, 1985; and WHEREAS, the decision of the Hearings Officer has not been appealed to the Deschutes County Planning Commission; 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 from Surface Mining Reserve (SMR) Zone to Surface Mining (SM) Zone 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. Section 2. To adopt as the Board of County Commissioners' findings and conclusions, the findings and decisions of the Hearings Officer dated February 25, 1985, relating to Zone Change Application No. Z-85-1, marked Exhibit "C", attached hereto and by this reference incorporated herein. 1 - ORDINANCE NO. 85-007 1+ VOL 62' FAU Section 3. This Ordinance being necessary for the immediate preservation of public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. DATED thisJ3t,rj day of �a'y)aAM , 1985. B A D OF COUNTY COMMISSIONERS O ESCHUTES COUNTY, OREGON ATTTEtSLT,': L[.�(/ Recor6ing Secretary 2 - ORDINANCE NO. 85-007 ,/coairman S B1j. STOW ,hLTE, Commissioner AUDLIN; Confmissioner f • Q� EXHIBIT "A" VOL 62 PAGEN9 Legal Description for Bend Aggregate A parcel of land located in the Southeast one-quarter of the Southwest one-quarter (SE4, SWI) of Section 30, Township 16 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, being more particularly described as follows: Beginning at a point on the North-South centerline of said Section 30, with said point being located North 81.04 feet from the South oee-quarter corner of said Section �0; thence North 61 West 639.93 feet; thence North 18 East 975.03 feet; thence East 258.40 feet to the intersection with the North-South centerline of said Section 30; thence along said centerline, South 1237.56 feet to the point of beginning. Containing 10.7 acres, more or less. Sun Country Engineering & Surveying*lnc. 12 EXHIBIT "B" VOL 62 FACE 970 14 1102 ------- 74P., Too 301 307 ID6 30615 J woo 1400 800 jfiryi' 1_5 I 34 93 r.os 16 or L OT 2 j, 100 3022700 308 09 V� & 2 600 ` T fir'=j— — i __ _ _ — - I o _j 40? 00 2500 401 19 A. 404 lop 2400 20 403 LOT 3 2100 Zuvv A r 201 2200 405 fiend 2300 tA. 24 22 + + + + + ++++ 1++ ++ ++ ++ 40 + LOTf 4 3423— + + + 4i 1k It 4 + + .4 Ci v + too 100 01 "P EEIE 4 e 7 5 LOTJ I 34.79 200 200 3001 A 10 11 12 > 15 cc 31 19 20 31 EXHIBIT "C" VOL 62 FADE9!1 } Q •' y J ,� •moi lr r a Admin t've Law Judge Courthouse Annex / Bend, Oregon 97701 / (503) 3BB-6626 (503) 382-8721 DESCHUTES COUNTY HEARINGS OFFICER Michael T. Dugan PUBLIC HEARING, FEBRUARY 12, 1985 4. FINDINGS AND DECISIONS Sky � � FEB 1985 File Number: Z-85-1 MAIL. Y ; L7"'t H "y 'o TY Applicant: Bend Aggregate & Paving r?.� Request: An application for a zone change fro" SMR, Surface Mining Reserve, to SM, Surface Mining, which would allow the active mining of aggregate rock on the site. Planning Staff Representative: George Read Planning Staff Recommendation: Approval Public Hearing: A public hearing was held in Conference Room A of the Deschutes ---County Courthouse Annex, Bend, Oregon, on Tuesday, February 12, 1.985, at 7:00 p.m. Burden of Proof: In order to receive approval of this request, the applicant must demonstrate copmpliance with the criteria for a zone change as contained in Article X of PL -15, the Deschutes County Zoning Ordinance; policy five (5) of the Deschutes County Comprehensive Plan and the State-wide Planning Goals where applicable. FINDINGS: 1. Location: The subject property is zoned SMR, Surface Mining Reserve. 1 — FINDINGS AND DECISIONS ' VOL 62 FACE 972 2. Zone: The Deschutes County Comprehensive Plan description is Rural Residential. 3. Comprehensive Plan Designation: The subject property is located about one-half mile northwest of Tumalo, and is further described as Township 16S, Range 12E, Section 30, Tax Lot 400. 4. Site Description: The subject property consists of 10.7 acres of a parcel of approximately 60 acres in size. The subject property is level and has a disbursed cover of juniper and native grasses. The subject site has previously been used as a motorcycle race track; there are no significant structures on this site. Land use in the surrounding area includes surface mining (the Cline Falls Pit) to the east; rural residential zoning on parcels of five to ten acres in size to the northwest, with the nearest structure approximately 700 feet from the northern corner of the site. To the south is property zoned RSR - M which consists of one vacant lot directly to the south and several homes in the Laidlaw Subdivision of Tumalo to the southwest. The nearest home to the subject property is over 500 feet. The property directly to the west is part of this property for approximately 500 feet, and there are two ten -acre parcels adjoining the remainder of the parcel approximately 500 feet away. These parcels are not occupied by structures at this time. Property further to he west is zoned Surface Mining and has been mined in the past. The Comprehensive Plan designates this area as Rural Residential to the northeast and west; Rural Residential to the northeast and west; Rural Service Center Medium Density to the south and southwest. The subject property is zoned SMR, Surface Mining Reserve. 5. Proposed Land Use: This proposal calls for the removal of overburden, from the existing aggregate resource, which will be stored around the perimeter of t -he site. The excavation will occur to the level of the existing Cline Falls pit to the west (approximately 20 feet lower than the subject parcel). The Cline Falls Pit, immediately to the east, currently is a valid surface mine which has had a crusher located upon it. Rock from the subject site will be crushed within the Cline Falls Pit, which is operated by Robert Taggart of Salem who currently possesses a Department of Environmental Quality permit for a portable crusher. The subject crusher has been located on the property in the past and operated on the site last year. Access to the site will be gained through the Cline Falls Pit to an existing paved road which serves an existing Bend Aggregate surface mine to the northeast. CONFORMANCE WITH ARTICLE X IF PL -15 AS AMENDED BY ORDINANCE 83- 065: The applicable portion of the zone change ordinance requires that the applicant meet specific requirements as follows: 2 - FINDINGS AND DECISIONS R 0 That the change conforms with the VOL 62 FACE973 Comprehensive Plan and -the change is consistent with the plan's inrtroductory statement. To show conformance with the Comprehensive Plan, the applicant must show they meet the policies of the plan applicable to these applcations. These policies are 2, 3, 4 5,6,7,8, 9, 10 and 16. The following findings adopted from the applciant's burden -of - proof statement, are relevant to this regard: Policy No. 2 provides: Surface mining sites actively being utilized at the time of plan adoption shall be zoned SM; so as to prevent continued operation. However, inactive and undeveloped sites indentified in Surface Mining inventory shall be designated SMR, Surface Mining Reserve, in order that: (A) Adequate reserves are maintained for future use; and (B) The sites are easily identified by all concerned. The Comprehensive Plan requires protection of the resource where the area is designated SMR. The proposed site has been zoned SMR. There are aggregate resources located on the property that have been identified for future use, and the site is easily identified by all concerned. Policy No. 3 provides: The new deposits may be designated either SM or SMR. To be designated SM the site must meet the criteria for initial SMR designation and the criteria for conversion from SMR to SM. If only the initial criteria can be met, then the designation shall be SMR. This policy is not directly applicable to this application . The initial criteria for a SMR designation can be presumed to have already been met based on current zoning. Policy No. 4 provides: A new mining deposit not on the existing inventory shall be zoned SMR when: A. A report is obtained from a certified geologist, engineer/geologist or qualified engineering testing firm verifying the location, type, quality and quantity of 3 - FINDINGS AND DECISIONS VOL FAcE 97'4 material. B. Conflict level is zero, one, two or three. (Conflict level number four if there is an exceptional community need. In the case of aggregate resource material an exceptional community need and potential shortage based on the currently known supplies of these materials identified in this plan.) C. The resource is necessary for future community needs. The site has already been designated SMR. To confirm this designation is a report prepared by Century Testing Laboratories, Inc., which is attached hereto as Exhibit "D." The report concludes that the site is underlain by unconsolidated terrace deposits consisting of sand and gravel similar to aggregate materials suitable for various construction uses which are being extracted from other nearby pits. The site has a conlfict level II (Moderate) based on the fact that there are four or more homes within one-quarter mile. The Comprehensive Plan has identified aggregate materials as a scarce resource in Deschtues County that must be protected for future community needs. Policy No. 5 provides: Changes from a surface Mining Reserve (SMR zone) to a Surface Mining Zone (SM zone) shall occur upon findings by the county that: A. The site is needed to meet the next five- year resource requirements of the county (not the individual operator whose resource and financial requirements may be met for many years by this one site). In determining the resource requiremetns, consideration shall be given to the population growth, area needs, fluctuation in the construction industry, the amount of materials with active site permits and the sometimes transient nature of mining activities. B. This site is the closest proximity to the utilization area, or is otherwise the most economical avaiable at the time. Some with holding of materials by resource site of a kind should be avaialable in order that a monopoly not occur. C. The site plan (includes a reclamation 4 - FINDINGS AND DECISIONS � VOL 62 PACE 975 plan; is ;nceauate to mitigate the potential conflicts. Operation,..reclamation or site plan conditions of standards shall consist of recasonable conditions or standrards used in the state to mitigate the adverse and environmental and aethetic impacts of Surface Mining although specific requirements shall vary with the conflict level found to exist at the site. Conflict level 4 Surface Mines shall meet stringent conditions and standards, and these conditions shall exceed those normally used at sites of lesser conflict levels. The first criteria for a change froma Surface Mining Reserve to surface mining is a finding that the site is needed to meet the next five-year resource requirements of the county. In determining the resource requirements, the policy sets forth a number of considerations. Included in this are area needs and fluctuation in the construction industry. The following is a project list compiled by the applicant, Bend Aggregate & Paving, that are scheduled for 1985. This list is by no means comprehensive and relfects only a portion of demand for aggregate products that the applicant is aware of as the date of this application. It does, however, from the applicant's standpoint, reflect a definite increase in construction activity for 1985. OSHD: O.B. Riley - Brosterhaus RP, Grade, Pave, signals Redmond Re-route, Grade, Pave, Signals Division Street Overpass Maintenance Mix, Continued Increase COI Main Canal, Walker Road Bridge Gerke Road, Forest Boundary, Overlay Deschutes County: Eight local improvement districts, grade, pave Cline Falls Road, Newcombe Road, to Hwy 126, paving. Canal Blvd., widen, pave (joint city -county) Murphy Road, widen, pave 8566 Tons chip seal aggregate, Negus site Old Bend -Redmond Hwy., overlay, Deschutes Junction to Redmond Cemetary. Knott Road extension - base and paving Maintenance Hot Mix undetermined amount City of Bend: 05,000 sq. yd. chip seal project 5 - FINDINGS AND DECISIONS Newport Avenue, overlay iva 62 PAGE 976 Portland Avenue, overlay College Way, overlay Division Street, overlay South 15th Street, reconstruct Bear Creek Road, reconstruct Six Local Improvement Districts City of Redmond: Sisters Avenue, grade, pave Wickiup Avenue, grade, pave, bridges Other: Runway, reconstruct, Redmond Airport Taxiway, reconstruct, Bend Airport Awbrey Heights Subdivision, expansion Riverhouse Motel, expansion New Motel Sportsman Motel site New Motel, Sisters. Cascade Meadows Subdivison, Sisters Eagle Crest Destination Resort, Redmond Retirement Apartments, Bend Sunriver, continued expansion and road improvement O.S. Army - night vision facilities, concrete, paving Based upon a three-year average, approximately 65 to 70 percent of all aggregate material that has been used by Bend Aggregate & paving has come from the Highlands site. The Highlands site lies just north and east of the proposed site. The Highlands site, however, does not allow any on-site crushing. All material is removed from the Highlands site by truck to the existing facilities of Bend Aggregate & Paving in Tumalo where it is processed. The amount of material that can be removed from the Highlands site is, therefore, limited. The applicant does not believe that it is possible to remove any additional material from the Highlands site without any on-site crushing and still provide a competitive product. Part of this problem comes from the fact that demand for various types of aggregate materials fluctuates and the timing of demand simply does not allow for any greater utilization of the Highlands site at this time. Therefore, approximately 30 to 35 percent of all aggregate material based upon demand over the last three years must come from additional resources. For the last two years, this additional resource has been from the site indentified as the "Mel Loy" site and some material from the Cline Falls surface mining area owend by the applicant, Bend Aggregate & Paving. However, with an increased demand for aggregate material foreseen in 1985, the applicant, Bend Aggregate & Paving, requires an additional source of aggregate material. There is no additional material remaining in the Mel Loy site. This proposed site is 6 - FINDINGS AND DECISIONS y VOL 62 PAGE977 adj"scent to the Cline Falls pit currently operated by the applicant. Access will be via an existing access road to the existing paved access to Cline Falls highway from the Highlands site. The on- site crushing aspect will be important because of the fluctuation demand for aggregate material. Depending upon actual demand, approximately 40 to 50 percent of the aggregate moved from this site will be transported to the Bend Aggregate & Paving asphalt plant in Tumalo for process. The remainder of the material will either be sold and delivered or sold and picked up by other contractors or used as base rock for Bend Aggregate & Paving projects or other site material calling for base rock and concrete materials. There is one existing material remaining in the Cline Falls pit of hteeast of this property. However, the applicant wants to preserve the material in the Cline Falls pit is reserved for concrete aggregate, there is a good possibility that the material will be removed and processed at the existing plant preservation of this material available from other resources in order to meet the demands of aggregate material. Meeting demand in 1985 and beyond would be difficult from only the Highlands site unless material were extracted from the Cline Falls pit. However, as set forth above, the material at the Cline Falls pit should be preserved from concrete aggregate. This proposed site is the closest proximity to hte utilization area and would be the most economically available at this time. The site and reclamation plan which is attached hereto and made part of this application do mitigate potential conficts. Hours of operation and days of operation for on-site crushing have been proposed by the.applicant. The applicant contends that these are reasonable conditions or standards used to mitigate the adverse and environmental impacts of surface mining on existing residences.- Perhaps the most important aspect of this site is the elevation and topography of the site which protects surrounding residences. Policy No. 6 provides: The operator must also obtain a County approval of site plan reclamation plan, including a phased use and rehabilitation schedule, before the area is mined. The site rehabilitation plan shall return the site to a useful condition and decrease the visual amd environmental impact of the oepration to an extent approved by the County Planning Director. In cases where the applicant is applying for both a zone change and approval of a site and reclamation plan, the decisions 7 - FINDINGS AND DECISIONS VOL fit PAGE 978 may be made concurrently by the Hearing Body. Unless utilization of the site begins within two years of the final decision (includes court decision), the approval of the site and reclamation plan shall expire. Appeals of the site and reclamation plan shall be to the Surface Mining Committee. Further appeal can be taken to the Board of County Commissioners (the Planning Director can require the Board call up a committee decision for review). The applicant is submitting for concurrent approval with its zone change a site and reclamation plan. The site plan is attached hereto as Exhibit "B." The reclamation plan is attached hereto as Exhibit "C." The site plan shows the location of the proposed access road, stopckpile area, proposed crusher site, storage area of overburden to be used for reclamation, site elevation after reclamation and location of proposed site to existing land ues. The reclamation plan sets forth the proposed operational plan, reclamation procedures and the fact that on- site crushing for the site will be limited to 90 days each calendar year during the three-year term of the lease with Tumalo Irrigation District. The applicant is requesting approval of the site plan and reclamation plan. Policy No. 7 provides: In the approval of mining operations the site shall first be utilized for archeological excavation, timber harvesting or other first use activities and other nonrenewable resource conflicts resolved (i.e. historic sites ) before mining begins. There are not any significant first use activities or non- renewable resources in existence on this site. Policy No. 8 provides: Once mining and/or associates activities (i.e. rock crushing) have begun, they shall be in accordance with state standards and any more stringent standards the county may enact. Further, in areas such as F-1, Forestry Residential, Agricuiltural, Wilde Life Senstivie areas (i.e., near sites). intensive recreational or other particularly sensitive areas, the mining and associate operations shall be subject to more restrictive standards to keep noise, dust, erision and other hazards to a level compatible with adjancent uses. Such standards may include reuirements for barrier isolation setbacks, retriction of operating times, concurrent reclamation, 8 - FINDINGS AND DECISIONS . ! VOL FACE 9 l limites to active mining area, limits to mining lifetime, restrictions on on-site processing and other similar restrictions reasonably related to adverse impacts. " The proposed mining on this site will be limited to only three years. This will be sufficient time to remove the existing aggreagte resource located on the site. Becasue of surroundign residences, the applicant proposed to limit the hours of operation to 6:00 a.m. to 6:00 p.m., and to limit on-site crushing of the material removed from this site to only 90 days each calendar year. Access to the site will be on an existing access road to Cline Falls Highway. The access point on Cline Falls Highway provides adequate site distances for trucks entering the highway. The proposed site is adjacent to an existing surface mining site operated by Bend Aggregate and Paving, and the proposed stockpile area and crusher site will actually be located on this existing site zoned SM. Based on the topography of the area, the actual operation should not be seen by any exiosting residence sin the area. The final elevation after reclamation will be the same as the existing site to the east. There will not be any additonal excavation of aggregate removed to the west of this site since the westerly border represents the limits of the existing aggregate resource. The existing DOGAMI permit held by the applicant for the adjacent site will be extended to this proposed site and will be considered a part of the existing permit. Policy No. 9 provides the criteria for establsihing a conflict level. The evidence shows this site to fall within the criteria of a level II conflict area. There are four or more homes within one- quarter mile of the proposed site. Although mining should be considered a temporary land use (interim and second uses such as recreation should be designated in the SM zone), it is important that the resource sites be protected from incompatible development. To reduce this problem timely utilization of the produce shall be encouraged. Also, increased setbacks, screening or other requirements for residencial, recreational or other conflicting development on adjacent lands shall be required where feasible. This policy encourages the timely utilization of a resource. This site does represent the westerly limites of the aggregate resource in this area. Removal of this resource now will be consistent with the further development of the Tumalo townsite in the future. Furthermore, utilizatin of the resource at this time will not require any increased setbacks or other requirements 9 — FINDINGS AND DECISIONS I VOL 62 PAGE 9UV being placed on surrounding properties. Policy No. 16 provides: The county shall conisder the preservation of aggregate material in all of its land use actions. The aggregate resources in the County have been identified as important to the local economy, and the Comprehensive Plan does consider that areas zoned SMR, Surface Mining Reserve, will be ultimately mined. The applicant has adequately met this criteria. 2. That 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 are intended to be eventually mined. The Comprehensive Plan salso states that there is a shortage of aggregate resources identified in Deschutes County. 3. That the change in the zoning will presently serve the public health, safety and weilafate, considering the following factors: a) the availability and efficiency of providing necessary public services and facilities; b) the impacts on surrounding land use will be consistent withe specific goals and policies contained within the Comprehensive Plan. The applicant has met his burden of proof in this regard as well. (see discussion above) 4. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the proeprty in question. The applicants have addressed a change in circumstances relating to the ability to provide the crushed rock without on-site crushing from their existing Highland pit. The applicant addresses the increased demand for aggregate material foreseen in 1985, and the fact that fluctuations in need and the timing of the demand make it difficult to provide a large quantity of material from the Highland pit in a short period of time. The applicant also cites the depletion of the "Mel Loy Pit" which the applicant has used for the past few years. The applicant has also adequately addressed the state-wide planning goals. I make the following findings and conlcusions 10 - FINDINGS AND DECISIONS cc nQ T.. with regard to those issues: VOL U2 PACE 981 CONFORMANCE WITH THE STATE-WIDE PLANNING GOALS: The recent case of Coats v. Land Conservation & Development Commission 67 OR App 504 (1984) has remanded the acknowledgment of the Deschutes County Comprehensive Pian to LCDC. The effect of the remand is to leave Deschutes County without an acknowledged Comprehensive Plan. However, lack of acknowledgment is not fatal. The case actually turns on whether the Comprehensive Plan has sufficient criteria to protect the existing identified surface mines from encroaching conflicting uses. The plan policy only authorizes the county attempt to mitigate potential or actual conflicts by requiring the mining operation to establish greater setbacks. The fatal aspect of the Comprehensive Plan was that the policies did not provide a process of determining whether conflicting uses should be allowed at all and, if so, under what conditons. The plan policies considered by the court would not be applicable to this application. The issue of allowing conflicting uses is not relevant to any decision in -this application. The applicant, however, is required to address, based upon Coats v. Land Conservation & Development Commission, supra, the state- wide goals. State-wide goal Nos. 1 and 2 are not applicable. Goal No. 3 requires that agricultural land be preserved and maintained for farm use consistent with existing and future needs for agricultural production. This property is not currently being used for agricultural purposes. After reclamation, the property could be used for limited agricultural uses consistent with other dry land in the area. Goal No. 4 is not applicable. There is no merchantible timber on the property, and the property is not capable of growing timber. Goal No. 5 provides for the protection and conservation of open space and natural scenic resources. The report from Century Testing Labs does demonstrate that a resource does exist on the site. The Comprehensive Plan in implementing the ordinances did speak in terms of assuming that SMR zones will ultimately be mined. Goal No. 6 provides for air, water and land resources quality. The applicant's reclamation plan addresses the format for removal of material and reclamation of the site. Goal Nos. 7 and 8 are not applicable. 11 - FINDINGS AND DECISIONS VOL 62 FACE 982 GoaP No. 9`provides for the economy of the state. This resource will have a beneficial input on -the economy of Deschutes County. Goal No. 10 is not applicable. Goal No. 11, public facilities and services, is not applicable from the standpoint of providing a development of services. Goal No. 12, transportation, is not applicable. There is no new plan to build or reconstruct new or existing roads at the site. Goal No. 13 is to conserve energy. This proposed site is located in close proximity to the permanent facilities of Bend Aggregate and Paving. Utilization of aggregate resources in such close proximity to an ultimate use will help conserve energy. Based upon the findings and conclusions as above -stated, I find that a zoned change from SMR to SM is warranted and a recommendation of approval will be forwarded with the following conditions. 1. That the applicant comply with all terms of the site plan approval, SP -85-1. 2. That as a condition of any site plan approval for this site, that rock crushing not be allowed more than three months per year or earlier than 9:00 a.m. on weekends and legal holidays. 3. That the applicant provide Deschutes County with a legal description of the specific property subject to this zone change. THIS DECISION BECOMES FINAL 15 DAYS FROM THE DATE MAILED, UNLESS APPEALED. DATED this 25th day of February, 1985. MICHAEL T. DUGAN Hearings Officer MTD/jeh CC: file J. 14. Colia BOCC City of Bend Planning Director Redmond City Planning Director Deschutes Coun Planning Director Bend Aggregate & Paving, Incorporated Tumalo Irrigation District Robert Lovlien 12 — FINDINGS AND DECISIONS